text:
    STATE of Arkansas v. John Paul PARKMAN
    CR 96-41
    923 S.W.2d 281
    Supreme Court of Arkansas
    Opinion delivered June 3, 1996

      Winston Bryant, Att’y Gen., by: Clint Miller, Deputy Att’y Gen. and Senior Appellate Advocate, for appellee.
    No response.
   PER CURIAM.

This is an appeal by the State in a criminal matter. The transcript was filed by the State on January 10, 1996, and the appellant’s brief was due forty days from that date. Ark. Sup. Ct. R. 4-3 (b). The State first received a seven-day Clerk’s extension on February 20, 1996. Thereafter, this court granted extensions of time for filing the State’s brief (1) on February 26, 1996; (2) on March 14, 1996; (3) on March 28, 1996; (4) on April 11, 1996; and (5) on April 25, 1996. On April 25, 1996, we noted that this was the final extension and that the extended date for filing was May 8, 1996. No brief was filed by the State on that date.

On May 8, 1996, the State moved for eight additional days in which to file its brief, which would extend the deadline to May 16, 1996. No extension was granted by this court, and no brief was filed by that date.

On May 16, 1996, the State moved for an extension of time to file its brief to May 23, 1996. In that motion, the State observed that appellee Parkman is not incarcerated in Arkansas but is incarcerated in Texas as a suspected serial rapist. The State also mentioned that its basis for appeal was an improvident dismissal of an Arkansas rape charge for violation of the speedy trial rules. Parkman’s counsel had no objection to the extension. No extension was granted by this court, and no brief was filed by May 23, 1996. On May 23, 1996, the State filed an identical motion for extension of time in which to file its brief to May 31, 1996.

In sum, nine extensions have been requested by the State. Three extensions have been requested since the final extension granted by this court on April 25, 1996, and no approval of those later extensions has been forthcoming from this court.

It is clear to this court that the State has not acted responsibly or with diligence in this matter. The specific Deputy Attorney General involved states that he is inundated with work, but even so, there should be others in the Criminal Appeals Division of the office available to take up the slack for him. We, therefore, conclude that if the State’s brief in this matter is not filed by May 31, 1996, the State’s appeal will be dismissed. Henceforth, we will not entertain appeals by the State when the State’s brief is not filed in accordance with the specified deadline in the final extension granted by this court.

Dudley, J., not participating.


source: Caselaw Access Project

author: David Newbern, Justice.

license: Public Domain

text:
    Robert Lee DAVIS v. STATE of Arkansas
    CR 95-1168
    924 S.W.2d 452
    Supreme Court of Arkansas
    Opinion delivered June 10, 1996
    [Petition for rehearing denied July 1, 1996.]

      Heather Patrice Hogobrooks, for appellant.

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

      Dudley, J., not participating.

   David Newbern, Justice.

Robert Lee Davis was convicted of two counts of possession of a controlled substance with intent to deliver. He was sentenced to 33 years’ imprisonment. His sole point on appeal is that he was denied a speedy trial in violation of Ark. R. Crim. P. 28.1. We must affirm the conviction as Mr. Davis’s abstract of the record is flagrantly deficient.

Mr. Davis’s abstract shows he was arrested January 13, 1993, and admitted to bail the following day. He was tried on May 24, 1995, which was obviously more than the time permitted by Rule 28.1 for bringing him to trial. We have, however, no way of knowing if the Trial Court properly found that a sufficient number of days were excluded from that time in accordance with Rule 28.3.

Although the abstract indicates Mr. Davis moved to dismiss for lack of a speedy trial on March 14, 1995, the substance of the motion is not abstracted. The Trial Court’s ruling on the motion is not abstracted. The abstract indicates that there were motions for continuances by Mr. Davis, which apparently were granted. Neither the grounds asserted for the continuances nor the Trial Court’s orders in response to those motions are abstracted.

Apparendy a hearing was held on September 12, 1994, concerning the speedy-trial motion. The hearing has not been abstracted. The abstract refers to a motion for reconsideration, apparendy of an order denying the motion to dismiss, but the substance of the motion is not abstracted. The abstract does not contain the Trial Court’s ruling on the motion. The abstract does not contain the jury verdict, the judgment and commitment order, or Mr. Davis’s notice of appeal.

With only one record on appeal and seven justices, it is essential that the material parts of the record be abstracted. Coney v. State, 319 Ark. 709, 894 S.W.2d 583 (1995). 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). When an abstract is so deficient that we cannot discern what happened in the Trial Court, we must affirm. Franklin v. State, supra.

Affirmed.

DUDLEY, J., not participating.


author: Tom Glaze, Justice.

text:
    Kenneth SLOCUM v. STATE of Arkansas
    CR 95-1039
    924 S.W.2d 237
    Supreme Court of Arkansas
    Opinion delivered June 10, 1996

      Herbert T. Wright, Jr. and Alvin Schay, for appellant.

      Winston Bryant, Att’y Gen., by; David R. Rxrnpp, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

This appeal is a companion to the case, King v. State, 323 Ark. 671, 916 S.W.2d 732 (1996). Elgin King and Kenneth Slocum, the appellant here, were charged with the capital murder of Willie Simpkins. Their cases were severed, and King was convicted of the lesser included offense of first-degree murder and sentenced to forty years’ imprisonment. At his separate trial, Slocum was convicted of capital murder and sentenced to life without parole. Upon King’s appeal, we rejected the contention that the evidence was insufficient to support his conviction, but we reversed, holding the trial court erred in refusing King’s proffered disputed accomplice instruction, AMCI2d 403.

Slocum raises four points for reversal in his appeal, two of which involve the sufficiency of the evidence and accomplice issues we decided in King. The evidence relevant to the disposal of these two points is largely the same as that proof set out in the King opinion, and focuses on the testimony of Vernon Scott, who identified King and Slocum as Simpkins’s abductors and murderers. Scott told the police and later testified at trial that Slocum had given him $40.00 of crack cocaine to get Simpkins to go to a hangout known as Hat Box Hattison’s house. About thirty minutes after Scott and Simpkins arrived at the house, two masked men entered the house, brandished guns, taped Simpkins’s hands together and took Simpkins out towards a field from which Scott said he heard gun shots. Scott identified the masked men as Slocum and King. Scott testified the man holding a .45 gun on Simpkins was Slocum, whom Scott had known most of his life. Other testimony showed Slocum had a motive for killing Simpkins because Simpkins was to be a witness in a murder trial against one of Slocum’s relatives. Simpkins died from at least ten gunshots made with .45 and .38 weapons. A rubber mask was found near Simpkins’s body. As noted previously, we found this evidence sufficient to support King’s conviction, King, 323 Ark. at 676, and it is likewise sufficient here to support Slocum’s capital murder conviction.

As in King, Slocum argues Scott was an accomplice as a matter of law because Scott had lured Simpkins to the scene of his abduction. Slocum contends that because Scott had been offered $40.00 worth of cocaine to lure Simpkins to Hat Box Hattison’s house, Scott had to know some type of criminal activity was intended toward Simpkins. In King, we held this evidence was insufficient to declare Scott an accomplice as a matter of law, and we adhere to that holding as controlling in Slocum’s appeal, as well.

However, in King, we also concluded that Scott’s testimony was sufficient to create fact questions as to his status as an accomplice. King, 323 Ark. 678. Accordingly, we held the trial court erred in refusing to give King’s proffered AMCI2d 403 disputed accomplice instruction, and reversed for that reason. Here, however, Slocum concedes he never raised Scott’s disputed status as an accomplice at trial, nor did he proffer AMCI2d 403 to present that issue to the jury. In view of this failure, he argues for the first time on appeal that his trial attorney’s failure to proffer instruction 403 constituted ineffective assistance of counsel, and asks us to decide this Rule 37 issue on direct appeal. We must reject Slocum’s request. It is well settled that this court will not consider ineffective assistance of counsel as a point on direct appeal unless that issue has been considered by the trial court. Edwards v. State, 321 Ark. 610, 906 S.W.2d 310 (1995). Because the disputed accomplice status issue concerning Scott was not raised or ruled on below, we are unable to consider it in this appeal.

Slocum also raises two other points unique to his appeal. The first evolves from the law enforcement officers’ search of Slocum’s grandmother’s house where Slocum had frequented. The officers found an unfired .45 bullet which was admitted into evidence over Slocum’s objection that the bullet was irrelevant because the state’s expert, Ronald Andrejack, could not say it was the same brand as the .45 bullets found in Simpkins’s body. The state points out Andrejack was able to testify that the unfired bullet and one found in Simpkins were of the same manufacturing process by weight and design. The expert said, “[Tjhey both have the same weight, that being 230 [grams]. They both are full metal copper jacketed. They both have open exposed lead on the base.”

The similarities of the .45 bullets provided some additional link, albeit circumstantial, making it more probable than not that Slocum had committed the murder. Such a link is not irrelevant simply because it is circumstantial. See Huggins v. State, 322 Ark. 70, 907 S.W.2d 697 (1995). The weight to be given such evidence was for the jury to decide. See Weaver v. State, 324 Ark. 290, 920 S.W.2d 491 (1996); cf. Bohanan v. State, 324 Ark. 158, 919 S.W.2d 198 (1996).

In sum, Slocum’s counsel thoroughly cross-examined Andrejack concerning the underpinnings of his opinion which appropriately went to the weight and credibility of this evidence, not to its admissibility. Because Andrejack’s testimony did have some relevance in tending to connect Slocum with a .45 weapon, the caliber of which was used in Simpkins’s murder, we hold the trial court did not abuse its discretion when admitting it into evidence.

Slocum’s final point of appeal involves direct and indirect references to gangs made during Scott’s testimony. However, we are unable to reach the merits of his argument because Slocum failed to preserve this issue for appeal. Prior to trial, Slocum filed a motion in limine to exclude any references to gangs, contending such evidence was irrelevant and unduly prejudicial. At a pretrial hearing, the trial court reserved judgment on the issue indicating that if the evidence was relevant, it would be admitted. Not until Scott had already made a number of references to gangs, nicknames, and colors did Slocum object, and then Slocum based his objection on the state asking leading questions.

When a trial court declines to rule on a motion in limine to exclude specific evidence, it is necessary for counsel to make a specific objection during the trial in order to preserve the issue for appeal. See Massengale v. State, 319 Ark. 610, 906 S.W.2d 310 (1995). Because Slocum failed to make a specific, contemporaneous objection during Scott’s testimony as to his references to gangs, Slocum has waived this issue on appeal.

For the reasons discussed, we affirm.

Pursuant to Ark. Sup. Ct. R. 4-3 (h), the state has reviewed the record in its entirety and has found no other rulings adverse to Slocum that involve prejudicial error.

Dudley, J., not participating.


author: DONALD L. Corbin, Justice.

text:
    R.J. “BOB” JONES EXCAVATING CONTRACTOR, INC. v. FIREMEN’S INSURANCE COMPANY of Newark, New Jersey
    95-1318
    922 S.W.2d 723
    Supreme Court of Arkansas
    Opinion delivered June 10, 1996

      Stanley D. Rauls, for appellant.
    No response.
   DONALD L. Corbin, Justice.

Mr. Stanley D. Rauls, attorney for the appellant, R.J. “Bob” Jones Excavating Contractors, Inc., filed a motion requesting the disqualification of Associate Justice Donald L. Corbin from appellant’s petition for rehearing. The motion for disqualification was filed subsequent to this court issuing a unanimous decision that was adverse to his client’s interest.

Rule 6-4 of the Rules of the Supreme Court and Court of Appeals of the State of Arkansas requires that a motion to disqualify “shall be filed a reasonable time prior to the submission of the case to the Court.” It is questionable whether the present motion to disqualify was timely filed since it accompanied the petition for rehearing, the latter of which, by definition, is filed after a case has been submitted and decided. However, Rule 6-4 is not controlling given that the present motion is for disqualification from the rehearing only. Despite the limited scope of the present motion, a party should not delay filing a motion to disqualify until he receives a ruling that is unfavorable to his position.

The briefs in the instant case did not reflect a conflict of interest, nor was there anything in the briefs that would cause this justice to believe that the law firm where his wife is employed had any interest in the case under submission. I reached my independent decision on the merits of this case based upon the facts and law contained in the briefs presented by the parties to this appeal. I have never had any interest in the disposition of this appeal other than concluding it in the highest degree of professional competence possible.

Motion denied.

DUDLEY, J., not participating.

        Reporter's note: See R.J. “Bob” Jones Excavating Contr., Inc. v. Firemen's Ins. Co., 324 Ark. 282, 920 S.W.2d 483 (1996).


author: ROBERT L. Brown, Justice.

text:
    Reginald JOHNSON v. STATE of Arkansas
    CR 95-1227
    924 S.W.2d 233
    Supreme Court of Arkansas
    Opinion delivered June 10, 1996

      Tell Hulett, for appellant.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Asst. Att’y Gen., for appellee.
   ROBERT L. Brown, Justice.

Appellant Reginald Johnson appeals from an order denying his motion for a new trial on grounds of ineffective assistance of counsel. He urges two points in support of his appeal: (1) trial counsel was ineffective in fading to call witnesses to impeach the testimony of a primary state witness, Charlie Farmer; and (2) trial counsel prejudiced his case by failing to communicate plea options to him. We hold that the appeal is meritless, and we affirm.

Reginald Johnson was charged with first-degree murder in connection with the shooting death of Bruce Hatchett on February 15, 1994, in North Little Rock. The State produced the following testimony: Barbie J. Oliver testified that on the night Bruce Hatchett was killed, two men came to her house looking for him. (She later identified one of the men as Johnson, and she positively identified him at trial.) Johnson asked if Hatchett was there. When Oliver replied that he was not, Johnson retorted that she was lying because he had just seen Hatchett run to the back of the house with his (Johnson’s) stereo. Additional words were exchanged, and Johnson pulled his pistol out and threatened to kill Hatchett.

Derrick Jackson, Johnson’s cousin, testified that he was the unidentified man with Johnson at Oliver’s house. He essentially confirmed the testimony of Barbie Oliver but added that Hatchett was present at Oliver’s house. Johnson asked Hatchett for his things, and Hatchett claimed that he did not have anything belonging to Johnson. Words and threats were exchanged. Jackson testified that Johnson became upset and pulled his gun out and put it in Hatchett’s face. Jackson grabbed Johnson and told him that they should leave.

Johnson and he left the Oliver house and went to the house of Johnson’s aunt. Fifteen to thirty minutes later, Hatchett appeared. Jackson testified that Hatchett entered the room and headed straight for Johnson. Hatchett got close to Johnson, and more words were exchanged. Johnson pushed Hatchett away twice and then shot him several times. Jackson added that a couple of the shots were fired after Hatchett had fallen to the floor.

Melissa Steele, Johnson’s cousin, testified that the shooting occurred at her former residence in North Litde Rock. She testified that Hatchett, a large man, came to the house that night and immediately confronted Johnson. Although she never saw a gun, she stated that Hatchett walked in with his hand behind his back. She testified that Hatchett would not let up and forced Johnson against the wall. Suddenly, Johnson pushed Hatchett off and began shooting him. Steele testified that after Hatchett was shot, he fell to the ground.

Charlie Farmer, Barbie Oliver’s son, testified that he was with Hatchett on the night he was slain and that Hatchett did not have a weapon. Farmer stated that he followed Hatchett into the house where the shooting occurred and was a few steps behind him when he heard a shot and saw Hatchett hit the floor. He then saw Johnson and a “shadow of a weapon.” When he saw Hatchett lying on the floor, he was leaving the house and heard two more shots. He added that someone began shooting at him as he headed for the car.

Lisa Sakevicious, a criminalist with the State Crime Lab, testified that she conducted a gunshot residue examination on the victim’s clothing. She testified that several of the shots were fired at close range. Dr. Frank Peretti, the associate Medical Examiner for the State Crime Laboratory, testified that Hatchett died of multiple gunshot wounds: one to the chest, three to the abdomen, one to the back, and one to the left thigh.

Johnson mounted a defense of self-defense with the following testimony. LaShonda Hatchett, an 11-year-old girl, testified that she saw Hatchett come into the house and begin to shout and push Johnson. She said that Hatchett kept reaching into his back pocket as if he was trying to retrieve something. On cross-examination, she admitted that she saw Johnson shoot Hatchett while he was lying on the floor and that she never actually saw Hatchett with a pistol.

Craig Howard testified that Hatchett came in and began shouting and pushing Johnson. He stated that Johnson kept telling Hatchett to leave him alone and was trying to get away from him but that Hatchett would not stop. He testified that Hatchett was a large man and that it was his impression that Hatchett was going to hurt Johnson.

Johnson testified on his own behalf. He stated that on the afternoon of the murder, he went to Barbie Oliver’s house and saw Hatchett grab his television set and run with it. A verbal altercation followed. Hatchett pushed Johnson, and Johnson ultimately pointed his pistol at Hatchett. He then went to his aunt’s house. According to Johnson, Hatchett arrived later at Johnson’s aunt’s house. He stated that Hatchett walked in and started pushing him, and Johnson began shooting. He stated that he thought Hatchett was going to hurt him because he (Johnson) had pointed a gun at him earlier, and Hatchett had threatened him. He also stated that Hatchett had a reputation for violence. The State asked Johnson if he continued to shoot Hatchett after he had fallen to the floor. Johnson answered that he did not. However, on cross-examination Johnson stated that he did not know whether Hatchett was standing the entire time that he was firing the bullets because he had closed his eyes.

The jury convicted Johnson of first-degree murder and sentenced him to sixty years in prison. After judgment was entered, Johnson filed a motion for a new trial, asserting that his trial counsel, James Massie, had failed to call essential witnesses who could have impeached the testimony of a crucial state witness, Charlie Farmer. Johnson further asserted that he would have accepted a negotiated plea if one had been offered and that the possibility of seeking a negotiated plea was never communicated to him by counsel. Massie testified that he thought he recalled hearing something about 25 years from the prosecutor, but no plea offer was made. He broached reducing the charge to manslaughter to the prosecutor, but nothing was resolved. He stated that he prepared a case of selfrdefense and believed that the 11-year-old girl, Lashonda Hatchett, was his most credible witness. The motion for a new trial was denied by the trial court.

Johnson appeals the denial of his new trial motion. Although Rule 37 generally provides the procedure for postconviction relief due to ineffective counsel, this court has recognized that the issue may be raised by a defendant on direct appeal after the issue is first raised during trial or in a motion for a new trial. See Ark. R. Crim. P. 37; Missildine v. State, 314 Ark. 500, 863 S.W.2d 813 (1993); Tisdale v. State, 311 Ark. 220, 843 S.W.2d 803 (1992); Hilliard v. State, 259 Ark. 81, 531 S.W.2d 463 (1976).

The criteria for assessing the effectiveness of counsel were enunciated in Strickland v. Washington, 466 U.S. 668 (1984). Strickland provides that when a convicted defendant complains of ineffective assistance of counsel, he must show that counsel’s representation fell below an objective standard of reasonableness, and that but for counsel’s errors, there is a reasonable probability that the jury would have decided differently. See also Missildine v. State, supra. Judicial review of counsel’s performance must be highly deferential, and a fair assessment of counsel’s performance under Strickland requires that every effort be made to eUminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s conduct, and to evaluate the conduct from counsel’s perspective at the time. A reviewing court must indulge a strong presumption that the conduct falls within the wide range of reasonable professional assistance. Finally, a court hearing a claim of ineffective assistance of counsel must consider the totality of the evidence that was placed before the jury. Missildine v. State, supra; Cox v. State, 313 Ark. 184, 853 S.W.2d 266 (1993); Burnett v. State, 310 Ark. 202, 832 S.W.2d 848 (1992).

Johnson first maintains that his trial counsel was remiss in not calling essential witnesses to impeach the testimony of Charlie Farmer. This court has stated that counsel must use his own best judgment to determine which witnesses will be beneficial to his client. Huls v. State, 301 Ark. 572, 785 S.W.2d 467 (1990); Tackett v. State, 284 Ark. 211, 680 S.W.2d 696 (1984). When assessing an attorney’s decision not to call a particular witness, it must be taken into account that the decision is largely a matter of professional judgment which experienced advocates could endlessly debate, and the fact that there was a witness or witnesses that could have offered testimony beneficial to the defense is not in itself proof of counsel’s ineffectiveness. Huls v. State, supra; Dumond v. State, 294 Ark. 379, 743 S.W.2d 779 (1988).

In the case at hand, Johnson specifically contends that his trial counsel was ineffective for failing to rebut the testimony of Farmer, who testified that he was in the house at the time of the shooting and suggested that he saw Johnson shoot Hatchett while Hatchett was lying on the floor. A review of the record, however, reveals that Farmer never testified precisely that Johnson shot Hatchett when he was down. He testified, instead, that he heard a shot and that Hatchett fell to the floor. He was leaving the house when he heard two more shots fired.

Johnson contends, nonetheless, as he did at the new-trial hearing that his trial counsel should have called Toni Hatchett, Tina Steele, and Derrick Jackson as defense witnesses to cast doubt on Farmer’s testimony that he was in the room at the time of the shooting. However, both Hatchett and Steele testified at the hearing on the motion for new trial that they left the room when the fight between Johnson and Hatchett began. Hatchett added that she closed the door after Hatchett came in and that no one entered after him. She did not see Farmer in the house. Jackson testified that he was in the room during the shooting and did not see Farmer until he (Jackson) was leaving the house. The trial court concluded on this point that even if Farmer’s testimony was thrown out, there was ample testimony from other witnesses of the shooting and what transpired between Johnson and Hatchett. We agree. At least three other witnesses described what transpired, as has been already noted in this opinion.

Johnson further contends that these witnesses would have undercut Farmer’s suggestion that Johnson shot Hatchett while he was down. Again, it is unclear that that was Farmer’s testimony. But, in addition, witnesses other than Charlie Farmer testified that Johnson shot Hatchett while he was on the floor. For example, Derrick Jackson testified, “I think maybe one or two [shots] may have went in him after he hit the floor.” LaShonda Hatchett also testified on cross-examination that she saw Johnson shoot Hatchett while he was on the floor. Thus, even if trial counsel had called witnesses to impeach Farmer’s assumed prejudicial statement about shooting Hatchett while he was on the floor, there was other independent testimony to that effect.

We view these circumstances as categorically different from those in Wicoff v. State, 321 Ark. 97, 900 S.W.2d 187 (1995), where trial counsel failed to call the defendant’s grandmother on behalf of the defendant. There, the grandmother would have testified that the alleged rape victim, who was the defendant’s 11-year-old stepdaughter, told her she had fabricated her story. We held, under those circumstances, that a new trial was warranted. Here, the testimony of Charlie Farmer, whether he was present at the scene or not, added little to the State’s case. In sum, we fail to glean any significant prejudice from the failure to impeach Farmer either on his whereabouts or concerning what he saw.

Finally, Johnson contends on appeal that James Massie called a witness on Johnson’s behalf, Craig Howard, who Massie believed was not telling the “whole truth.” This argument, however, was not made to the trial court and, therefore, was not preserved for appeal. See Roberts v. State, 324 Ark. 68, 919 S.W.2d 192 (1996).

Johnson’s remaining point is that trial counsel failed to inform him about specific plea negotiations. This court has stated that “[t]he decision on whether to enter into plea negotiations is a matter of strategy beyond the purview of postconviction relief.” Jones v. State, 308 Ark. 555, 559, 826 S.W.2d 233, 235 (1992); see also Lomax v. State, 285 Ark. 440, 688 S.W.2d 283 (1985). Furthermore, trial counsel testified at the new trial hearing that though he thought he remembered hearing something about 25 years from the prosecutor, the State never made a plea offer to him on Johnson’s case. Thus, there was no basis for communicating a plea offer to Johnson. Tamika Hrobowski, the Deputy Prosecuting Attorney handling this case, confirmed that she made no plea offer. There is, too, the fact that Johnson himself remained resolute throughout his trial that he did not think that he was guilty of first- or second-degree murder because he was acting in self defense. When asked by the trial court if he would lie to the court and say that he did something that he did not do in order to get a lighter sentence, he answered, “No.” Based on these facts, Johnson has failed to show that the trial court’s ruling was clearly erroneous on this point.

Affirmed.

Dudley, J., not participating.

       The testimony of witnesses is in conflict on whether it was a stereo set or a television set.


author: ANDREE Layton Roaf, Justice.

text:
    BILL FITTS AUTO SALES, INC. v. Carrie A. DANIELS
    95-1100
    922 S.W.2d 718
    Supreme Court of Arkansas
    Opinion delivered June 10, 1996

      Diana M. Maulding, for appellant.

      Central Arkansas Legal Services, by: Kenneth E. Baker and Griffin J. Stockley, for appellee.
   ANDREE Layton Roaf, Justice.

Appellant, Bill Fitts Auto Sales, Inc. (“Fitts”), appeals from a judgment awarding appellee Carrie Daniels a surplus resulting from the repossession and resale of a car which she had purchased from Fitts under a security agreement. Fitts contends that the trial court erred in (1) interpreting Ark. Code Ann. § 4-9-504 to require payment of a surplus to Daniels; (2) not allowing credit for expenses incurred by Fitts in a subsequent repossession of the car from the person to whom it had been resold; (3) not finding that Daniels had waived any right to surplus in the contract she signed for purchase of the car; and (4) denying Fitts’ motion to dismiss for lack of sufficient evidence to award judgment. We find no error, and affirm.

Fitts sold a 1992 Mitsubishi Galant to Daniels for $10,500, on February 22, 1993. Daniels made a down payment of $6,500 and financed the remainder at 24 payments of $180.95 each. After Daniels missed a few payments, Fitts repossessed the car on December 1, 1993. Fitts paid off the recourse debt of $2941.81 and incurred the following expenses in connection with the repossession: $300 repossession fee, $300 discount fee, $251.11 commission, $327.45 get ready fee, $100 detail fee and a $100 lot fee.

Fitts then resold the automobile to Joyce Harris on January 3, 1994, for $8950. Harris paid a $1500 down payment but never made any further payments, and the car was again repossessed within a month. Fitts incurred costs attributable to Harris’ repossession and paid off Harris’s recourse debt of $6997.34.

Daniels filed suit seeking the surplus from the resale of the car to Harris. Daniels sought the difference between the $8950 resale price to Harris, and the $2941.81 Daniels owed when the car was repossessed from her, pursuant to Ark. Code Ann. § 4-9-504(2) (Repl. 1991).

After a non-jury trial, the trial court entered judgment against Fitts. The trial court determined the difference between the resale to Harris and the debt Daniels owed on the car to be $6008.19 ($8950 minus $2941.81) and allowed Fitts only the expenses of $1378.56 incurred in the repossession from Daniels, in awarding judgment in favor of Daniels for $4629.63. From that determination comes this appeal.

Fitts first argues that the trial court erred in interpreting the following provision contained in Ark. Code Ann. § 4-9-504(2) (Repl. 1991):

(2) If the security interest secures an indebtedness, the secured party must account to the debtor for any surplus, and, unless otherwise agreed, the debtor is liable for any deficiency. But if the underlying transaction was a sale of accounts or chattel paper, the debtor is entided to any surplus or is liable for any deficiency only if the security agreement so provides, [emphasis added],

Fitts contends that the word “account” does not mean “pay” and requires only that a post-disposition statement of charges and credits be submitted to the debtor and that this was done.

Arkansas Code Annotated § 4-9-504 deals with a secured party’s right to dispose of collateral after default. Section 4-9-504(1) provides that a secured party after default may sell the collateral, and that the proceeds of the disposition shall be applied, first, to the reasonable expenses of retaking, holding, and preparing the collateral for sale, next to the satisfaction of the indebtedness under which the disposition is made, and third to the satisfaction of indebtedness secured by any subordinate security interest in the collateral. We must thus determine what is required of a secured party, such as Fitts, if there are funds remaining from the proceeds of disposition of the collateral after payment of the credits allowed in § 4-9-504(1).

The first rule in considering the meaning of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Henson v. Fleet Mortgage Co., 319 Ark. 491, 892 S.W.2d 250 (1995). However, we are not limited to the dictionary definition of a term, as Fitts would suggest. The basic rule of statutory construction to which all other interpretive guides defer is to give effect to the intent of the legislature. McCoy v. Walker, 317 Ark. 86, 876 S.W.2d 252 (1994). In interpreting a statute and attempting to construe legislative intent, the appellate court looks to the language of the statute, the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, legislative history, and other appropriate means that throw light on the subject. Id.

We first note that section 4-9-504(2) further provides that a debtor is not entitled to any surplus from the sale of accounts or chattel paper unless the security agreement so provides. This is surely strong, if not conclusive, indication that a debtor is entided to the surplus from the sale of other collateral. Moreover, the proper procedure for post-sale accounting pursuant to U.C.C. § 9-504 (2) has been described as follows:

When a duty to account exists, the proceeds of the foreclosure sale of the collateral are to be applied to: (a) liquidation expenses, (b) payment of debt, (c) subordinate security interests, (d) payment of remaining surplus.

9A Ronald A. Anderson, Anderson on the Unform Commercial Code, § 9-504. (3d ed. 1994) (emphasis added). Anderson further provides that once the creditor has obtained satisfaction of his or her debt by the disposition of the collateral, the creditor cannot recover more than the deficiency from the debtor. The trial court thus correcdy determined that the requirement to account for any surplus included the payment of the surplus to Daniels.

Fitts next contends that the trial court erred in not considering and crediting Fitts with the expenses of the Harris repossession.

Arkansas Code Annotated § 4-9-504(1) (a) provides that reasonable expenses of retaking, holding, preparing for sale or lease, selling, leasing, and the like shall be deducted from the proceeds of the disposition of the collateral. Section 4-9-504(3) further provides that:

(3) Disposition of the collateral may be by public or private proceedings and may be made by way of one or more contracts. Sale or other disposition may be as a unit or in parcels and at any time and place and on any terms, but every aspect of the disposition including the method, manner, time, place, and terms must be commercially reasonable.

Ark. Code Ann. § 4-9-504(3) (Repl. 1991) (emphasis added). Fitts argues that the expenses incurred after the sale to Joyce Harris should be deducted from the proceeds of the sale to her because collateral may be disposed of by way of “one or more contracts,” and it took more than one contract to effectively dispose of the collateral.

According to Fitts, the Harris repossession costs include a $500 “quick note” that was not collected, $300 repossession fee, $1,254.87 commission, $521.25 dealer discount, and a $367.45 get ready fee along with a payoff of Harris’s debt of $6997.34. Fitts argues that the transaction with Harris was but another expense on the continuum that started when the car was repossessed from Daniels and the Harris expenses should be counted as reasonable expenses under Ark. Code Ann. § 4-9-504(1)(a). Fitts asserts that “disposition” should be construed as a final parting with the collateral by the secured creditor. This argument is also without merit.

According to Anderson, supra, not every transfer of collateral by a secured party is a disposition for the purposes of the section in question. However, after a creditor has repossessed the collateral, a delivery of it to a third person “with the expectation that such person will ultimately pay the balance due” is a “disposition” within U.C.C. § 9-504 of which notice of sale must be given, even though no title is transferred to such third person at the time of delivery. 9A Ronald A. Anderson, Anderson on the Uniform Commercial Code § 9-504 (3d ed. 1994); First City Bank-Farmers Branch, Tex. v. Guex, 677 S.W.2d 25 (Tex. 1984).

The provision for disposition of the collateral by way of one or more contracts clearly pertains to collateral involving more than one unit. To accept Fitts’s construction of the statute would result in a defaulting debtor being liable for any subsequent buyer’s default until that buyer’s contract was folly paid. Clearly, the car was delivered by Fitts to Harris with the expectation that she would ultimately pay the balance due; the collateral was thus disposed of pursuant to § 4-9-504.

Fitts contends that the trial court erred when it did not find that Daniels waived the right to any surplus when she signed the contract for the purchase of the vehicle. The contract between Daniels and Fitts contained the following clause:

REPOSSESSION
You can repossess the property if I default. I’ll turn it over to you upon request. You may enter my property to get the property so long as you do it peacefully. You have the right to sell the property to cover my obligations and I’ll also pay for your costs of retaking it, holding it, preparing it for sale [sic] and the like. If the sale doesn’t cover all that I owe, I’ll still be responsible for the difference. But I can still recover the property before you sell it by paying any amount due and any charges you are entitled to.

Fitts argues that Daniels is bound by the contract and that the contract does not provide that she get any surplus. This argument is also without merit.

Arkansas Code Annotated § 4-9-501 provides:
(3) To the extent that they give rights to the debtor and impose duties on the secured party, the rules stated in the subsections referred to below may not be waived or varied except as provided with respect to compulsory disposition of collateral (4-9-504, and 4-9-505), and with respect to redemption of collateral (4-9-506), but the parties may by agreement determine the standards by which the fulfillment of these rights and duties is to be measured if such standards are not manifestly unreasonable:
(a) Section 4-9-502(2) and 4-9-504(2) insofar as they require accounting for surplus proceeds of collateral[.]

(Emphasis added.) The debtor’s rights to a surplus from the disposition of the collateral cannot be waived even by an express agreement. 68A Am. Jur. 2d Secured Transactions § 693 (1993).

Fitts’s contract with Daniels was silent regarding the possibility of a surplus. However, Daniels’s right to a surplus granted by Ark. Code Ann. § 4-9-504(2), cannot be waived even by an express agreement to do so.

Fitts finally contends that there was insufficient evidence for the court to grant judgment to Daniels. He argues that Daniels failed to prove her case and, therefore, it was error not to grant Fitts’s motion to dismiss.

Fitts argues, in essence, that the trial court erred when it denied the motion to dismiss because there was no sufficient evidence in the record, placed there by Daniels, because Daniels could not testify to the precise amount of the debt owed by her or the expenses incurred by Fitts with the repossession and resale, even though she had obtained this information in discovery. Daniels’s testimony, as well as the contract itself, provided evidence that Daniels paid $6,500 down on a $10,500 automobile. Yvonne Fitts, wife of Bill Fitts, was called as a witness by Daniels and confirmed without objection, that there was $2,941 owing on the automobile. She also testified on direct examination, again without objection, to the costs incurred in the repossession from Daniels.

Furthermore, Fitts waived his claim of error because, after Daniels rested her case and Fitts’s motion to dismiss was denied, he went forward with his proof. Both Fitts and his wife testified again, providing the amount of the payoff for Daniels’s loan and the costs incurred in repossessing the car from Daniels during their testimony. If, after the denial of a request for a directed verdict or a dismissal, a defendant introduces evidence which, together with that introduced by the plaintiff, is legally sufficient to sustain a verdict, he waives his claim of error by the court in refusing to direct a verdict, or dismiss, at the close of the plaintiff’s case. Shamlin v. Shuffield & Garot, 302 Ark. 164, 787 S.W.2d 687 (1990); Higgins v. Hines, 289 Ark. 281, 711 S.W.2d 783 (1986); Kansas City Southern Ind., Inc. v. Stewman, 266 Ark. 544, 587 S.W.2d 12 (1979).

There was clearly sufficient evidence upon which the trial court could base its judgment, without having to resort to conjecture or speculation. See Aronson v. Harriman, 321 Ark. 359, 901 S.W.2d 832 (1995).

Affirmed.

Glaze, J., concurs; Dudley, J., not participating.


author: PER CURIAM.

text:
    Guy C. BARNES v. STATE of Arkansas
    CR 96-114
    924 S.W.2d 453
    Supreme Court of Arkansas
    Opinion delivered June 10, 1996

      Appellant, pro se.
    No response.
   PER CURIAM.

On March 21, 1995, judgment was entered reflecting that Guy C. Barnes had pleaded guilty in the Circuit Court of Sebastian County to four counts of delivery of a controlled substance and had been sentenced to an aggregate sentence of twenty-two years’ imprisonment. Mr. Barnes filed in Sebastian County a pro se petition pursuant to Criminal Procedure Rule 37 seeking to vacate the judgment. An order was entered denying the petition from which an appeal was not taken. Petitioner Barnes sought permission from this court to proceed with a belated appeal. The motion was denied. Barnes v. State, CR 96-114 (March 26, 1996). Petitioner has filed the motion for reconsideration which is now before us.

The motion is denied. There is no provision in the rules of procedure for a motion for reconsideration in a postconviction case. In Re Motions for Reconsideration in Postconviction Matters, 319 Ark. Appx. 826 (1994).

Motion denied.

Dudley, J., not participating.


text:
    James S. SANSON v. STATE of Arkansas
    CR 96-620
    922 S.W.2d 723
    Supreme Court of Arkansas
    Opinion delivered June 10, 1996

      Paul A. Schmidt, for appellant.
    No response.
   PER CURIAM.

Petitioner, James S. Sanson, by his attorney, Paul A. Schmidt, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to a mistake on his part.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981); In Re: Belated Appeals in Criminal Cases, 295 Ark. 964 (1979) (per curiam).

A copy of this per curiam will be forwarded to the Committee on Professional Conduct. In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.

DUDLEY, J., not participating.


author: BRADLEY D. Jesson, Chief Justice.

text:
    Anthony Lamar ABERNATHY v. STATE of Arkansas
    CR 95-966
    925 S.W.2d 380
    Supreme Court of Arkansas
    Opinion delivered June 17, 1996

      William R. Simpson, Jr., Public Defender, by: Julia B. Jackson, Deputy Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   BRADLEY D. Jesson, Chief Justice.

Appellant Anthony Lamar Abernathy was convicted by jury of the first-degree murder of his girlfriend, seventeen-year-old Kendra Broadway, and sentenced to life imprisonment. On appeal, he asserts that the trial court abused its discretion in admitting testimony of prior bad acts. We affirm.

The State’s evidence against the appellant included the following. On the evening of January 28, 1994, and into the early morning hours of January 29, 1994, appellant was drinking at a friend’s house in Litde Rock when he noticed he was missing $80.00. Angrily suspecting that his girlfriend Kendra had taken the money, he took a cab to his duplex at 125 College Park Circle in North Little Rock, where Kendra was staying. According to appellant’s statement to police, he thought about shooting her during the taxi ride home, but decided not to do so.

Upon arrival at the duplex at approximately 3:00 a.m., appellant confronted Kendra with the allegations of theft. When she refused to admit that she had stolen the $80.00, appellant beat her with his fists and kicked her with his steel-toe boots. Sherrie Pitts, who lived on the other side of the duplex, was watching television when she heard fighting, yelling, and what she described as “licks” or continuous hitting lasting approximately thirty minutes. She further recalled hearing the appellant repeat, “Bitch, don’t you know I will kill you?” to which the victim, who was crying, would reply, “I know. I know.” Pitts did not call the police because she did not have a telephone.

Shortly before 7:00 a.m., appellant called 911 from a pay telephone at a nearby intersection. Officer John Murphy of the North Little Rock Police Department was dispatched to the appellant’s location. When Murphy arrested him, appellant stated, “I think I killed my girlfriend. I beat her up.” Officers then located the victim’s body at the duplex. Officer Tom Osborne testified that he found evidence of the appellant’s attempt to clean up blood stains, including a water spot on the wall, a mop bucket filled with dirty and bloody water, and bloody rags. According to appellant’s statement to Detective Jerry Smith, appellant told the victim he wanted her to die. He told Smith that he was mad at Kendra for stealing his money and admitted to hurting other people with whom he had intimate relationships, stating, “I stay with a person until I end up hurting them.”

Dr. Charles Kokes of the State Crime Lab performed the autopsy on the victim and determined that her death was caused by “multiple blunt force injuries to everywhere actually.” He estimated that Kendra would have died within two hours of sustaining the injuries. These injuries included a severe wound to the internal nasal structures, a laceration on the left frontal region near the forehead, hemorrhages to the chest and abdominal wall, a large laceration of the liver and right kidney, intestinal bruises, and extensive defensive injuries. According to Dr. Kokes, Kendra could have bled to death from the injury to her internal nasal structures alone. The State introduced photographs depicting the extent of these injuries.

Despite this overwhelming evidence it had against appellant, the State chose to introduce at trial the testimony of four witnesses regarding alleged prior threats and acts of violence by him. The State’s theory was that this evidence was necessary to refute the theory that Kendra’s killing was an accident. We need only discuss the most egregious of this prior-bad-act evidence, which was offered in the form of testimony of Sam Abernathy, appellant’s stepbrother. Sam testified that on January 9, 1993, appellant kicked open the front door of his apartment in the middle of the night and shot him in both thighs, causing a compound fracture in one of his legs necessitating surgery. After Sam, who was unarmed, had fallen to the floor, appellant stood over him and kicked him in the head.

The evidentiary rule at issue in this case is A.R.E. 404(b). It reads:

Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or 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.

We have interpreted this rule as permitting introduction of testimony of other criminal activity if it is “independently relevant to the main issue — relevant in the sense of tending to prove some material point rather than merely to prove that the defendant is a criminal — then evidence of that conduct may be admissible with a proper cautionary instruction by the court.” White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986); Price v. State, 268 Ark. 535, 597 S.W.2d 598 (1980), quoting Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954). On appeal, we review the trial court’s decision on this issue, like other evidentiary determinations, under an abuse-of-discretion standard. Larimore v. State, 317 Ark. 111, 877 S.W.2d 570 (1994) .

We stressed the requirement that there be a very high degree of similarity between the charged crime and the prior uncharged act in Diffee v. State, 319 Ark. 669, 894 S.W.2d 564 (1995). While the issue in that case was identity and the erroneously admitted evidence was offered to show a method of operation, the requirement of similarity in circumstances between the uncharged misconduct and the charged crime also applies when the State offers the evidence to prove intent or the absence of mistake. Professor Imwinkelried illustrates this point in his treatise:

Although the courts have been receptive to uncharged misconduct offered to disprove accident, there are restrictions on the introduction of evidence for this purpose. As is generally true under Wigmore’s theory, the uncharged act must be similar to the charged act. Wigmore’s theory rests on the doctrine of chances, and the evidence does not trigger the doctrine unless the charged and uncharged acts are similar.
Furthermore, the judge has wide discretion to exclude the evidence under Rule 403. The ideal case for exclusion is one in which (1) the defendant has not affirmatively claimed accident and (2) the nature of the crime is such that accident would not be a plausible defense.

Edward J. Imwinkelried, Uncharged Misconduct Evidence § 5:10 at 26-27 (1984)(footnotes omitted).

We are mindful of the State’s burden to prove that appellant killed Kendra with the purpose of doing so. See Russey v. State, 322 Ark. 786, 912 S.W.2d 420 (1995); Ark. Code Ann. § 5-10-112(a)(2)(Repl. 1994). Nevertheless, we can find no logical connection between the uncharged acts perpetrated against appellant’s stepbrother and the killing of his girlfriend in the present case. The trial court remarked that appellant’s act of kicking his stepbrother in the head is similar to what is alleged in the present incident. Yet to accept that this evidence was relevant would require an inference that if appellant shot his stepbrother in the legs and kicked him in the head afterwards, he therefore had the purpose to kill his girlfriend when he hit and kicked her one year later. Because we conclude that the uncharged act perpetrated against Sam was not sufficiendy similar to the charged offense, we hold that the trial court abused its discretion in admitting Sam’s testimony at trial.

We must now consider whether this evidence was sufficiendy prejudicial to mandate reversal. The universal view is that an error in the admission of uncharged-misconduct evidence is not error per se. Edward J. Imwinkelried, Uncharged Misconduct Evidence § 9:73 at 124 (1984). For the most part, other courts purport to apply the same harmless-error test to uncharged-misconduct errors as they apply to other trial mistakes. Id., §9:74 at 125. As appellant did not raise any constitutional objection to the admission of the prior-bad-acts evidence either at trial or on appeal, we need not evaluate the admission of this evidence under the constitutional standard of harmless beyond a reasonable doubt. See Griffin v. State, 322 Ark. 206, 909 S.W.2d 625 (1995).

We have said that when the evidence of guilt is overwhelming and the error is slight, we can declare that the error was harmless and affirm. Rockett v. State, 318 Ark. 831, 890 S.W.2d 235 (1994); Greene v. State, 317 Ark. 350, 878 S.W.2d 384 (1994). We find one Eighth Circuit case particularly persuasive. In U.S. v. Johnson, 879 F.2d 331 (8th Cir. 1989), the defendant was convicted of second-degree murder arising from a stabbing. The defendant stabbed the victim in the chest and face following an argument and claimed self-defense. The trial court admitted evidence of an incident six years earlier in which the defendant had allegedly threatened his aunt with a knife, reasoning that this evidence was relevant to defendant’s state of mind or intent. While concluding that the trial court erred in admitting this evidence, as it was remote in time and unconnected to the events surrounding the murder at issue, the Johnson court held that the error was harmless in light of the fact that the jury could have inferred from the act itself that Johnson had the requisite mental state to commit the crime charged. The Johnson court also noted that the erroneously admitted evidence was admitted for limited purposes only.

Although Sam’s testimony should not have been admitted into evidence, in light of the entire record, we determine that its admission constituted harmless error. As in Johnson, we think it significant that Sam’s testimony, like the testimony of the other three witnesses at issue, was admitted with the following cautionary instruction:

Members of the jury, you are instructed that evidence of other alleged crimes, wrongs, or acts of Anthony Lamar Abernathy may not be considered by you to prove the character of Anthony Lamar Abernathy in order to show he acted in conformity therewith. This evidence is not to be considered to establish a pertinent trait of character that he may have, nor is it to be considered to show that he acted similarly or accordingly on the day of the incident. This evidence is merely offered as evidence of motive, opportunity, intent, preparation, plan, knowledge, absence of mistake or accident. Whether any other alleged crimes or acts have been committed is for you to determine.

Moreover, as appellant concedes in his brief, the State had very strong evidence against him, which included: (1) the “earwitness” testimony of Sherrie Pitts, who heard appellant repeatedly tell the victim, “Bitch, don’t you know I will kill you?”; (2) appellant’s confession, which included admissions that he thought about shooting the victim during the cab ride to the duplex; that he told the victim he wanted her to die; and that he was mad at her for stealing his money and blamed her for their child’s death; (3) the lapse in time between the beating at approximately 3:00 a.m. and appellant’s call to police at approximately 7:00 a.m. in light of Dr. Kokes testimony that the victim would have died within two hours after sustaining the injuries; and (4) the evidence discovered at the duplex indicating that appellant tried to clean up the murder scene. Moreover, as in Johnson, the jury could have inferred purposeful murder from the act itself, as they heard Dr. Kokes’s testimony regarding the nature and number of wounds to the victim’s body, and were able to view photographs of these injuries as well. In sum, while we conclude that the State erred in admitting the testimony of Sam Abernathy because it was not sufficiently similar to the circumstances surrounding Kendra’s murder, we hold that the admission of this evidence was harmless.

We have reviewed the record pursuant to Ark. Sup. Ct. R. 4-3(h) and have determined that there are no errors with respect to rulings on objections or motions prejudicial to the appellant not discussed above.

Affirmed.

Dudley, J., not participating.

Brown, J., concurs.


author: David Newbern, Justice. Robert L. Brown, Justice,

text:
    Donald L. McPEEK, et al. v. WHITE RIVER LODGE ENTERPRISES, et al.
    93-1267
    924 S.W.2d 456
    Supreme Court of Arkansas
    Opinion delivered June 17, 1996

      Austin & Osborne, by: Brenda Austin, for appellants.

      Matthews, Campbell, Rhoads, McClure & Thompson, P.A., by: David R. Matthews and Larry J. Thompson, for appellees.
   David Newbern, Justice.

The procedural history of this case, which began in 1988, is long and tortured. It now comes to an end as we must affirm on appeal and on cross-appeal because of failure of the parties to furnish abstracts of the orders from which the appeal and cross-appeal have been taken.

Donald and Mary Louise McPeek sought an injunction preventing White River Lodge Enterprises and its general partners (White River) from discharging effluent on the McPeeks’ property from White River’s sewage disposal system. White River counterclaimed, alleging the McPeeks were improperly claiming tide to property belonging to White River at their joint boundary. The boundary dispute counter-claim was not pursued by White River at the trial, and ajudgment was entered on June 21, 1993, denying the injunctive relief sought by the McPeeks.

The McPeeks filed a notice of appeal on July 9, 1993, and proceeded with an appeal before this Court. Thereafter, they moved in the Chancery Court to have the judgment set aside on the ground that Timothy Coplin, one of the owners of White River, had given false testimony. The appeal pending in this Court was dismissed, and the case was remanded to the Chancellor to setde the record. On March 25, 1994, the Chancellor set the original judgment aside.

After further hearings, the Chancellor awarded an injunction in favor of the McPeeks by an order entered August 2, 1994. The McPeeks filed a supplemental motion on October 20, 1994, alleging unnecessary delay, harassment, interference with discovery, false testimony, and a false claim against their real property, seeking costs and fees pursuant to Ark. R. Civ. P. 11. As abstracted, the motion mentions only Rule 11 as a basis for recovery.

In an order entered January 24, 1995, the Chancellor imposed Rule 11 sanctions on White River, and the McPeeks were given 10 days to submit an itemized list of fees and costs. The abstract contains no further order concerning the fees and costs; nor is there any abstract of the list of fees and costs to be considered by the Chancellor. Some fee and costs lists are included as “addenda” at the conclusion of the McPeeks’ brief, but we have no way of knowing if, how, or when, these lists were submitted to the Chancellor. Many of the items in them are stated as “fees” without further information as to who charged them or to whom they were paid, if they were paid, or to what aspect of the case they may have been related. We do have an abstract of testimony by Mr. McPeek stating that he was, during his testimony, handed a list of fees and expenses he says he paid in connection with the litigation, but we do not have any way of knowing if the lists in the addenda to the brief are the ones handed to him during his testimony.

In arguing their first point of appeal, the McPeeks contend the Chancellor erred in denying attorney’s fees sought pursuant to Ark. Code Ann. § 14-236-106 (Supp. 1995). That section provides for the awarding of attorney’s fees, damages, and a penalty against one who “willingly and knowingly” violates the Arkansas Sewage Disposal Systems Act. Ark. Code Ann. §§ 14-236-101 through 14-236-118 (1987 and Supp. 1995). The abstract contains no order denying a request for fees made pursuant to that statute. As noted above, the only reference in the abstract of the motion for fees shows that the fees were sought pursuant to Rule 11, and there is no mention of the statute. The McPeeks have not demonstrated that the Chancellor ruled on their motion, even if we could conclude the motion was made pursuant to the statute. Farmers Bank v. Perry, 301 Ark. 547, 787 S.W.2d 645 (1990).

In their second point, the McPeeks argue the Chancellor erred by excluding part of the fees and costs requested for violation of Rule 11 and by denying fees and costs sought by them pursuant to Ark. Code Ann. § 16-22-309 (a)(1) (Repl. 1994). The latter is the legislative provision for recovery of an attorney’s fee against a party who files an action lacking a justiciable issue. Again, we have no order in the abstract denying such relief or showing that it was considered by the Chancellor.

In its first argument on cross-appeal, White River contends the Chancellor erred in setting aside the original judgment. There is no abstract of the motion to vacate or response to such a motion, nor is there any abstract of a hearing held to consider the motion. The order from which the cross-appeal is taken is abstracted in the McPeeks’ abstract only as follows: “ORDER, dated March 21, 1994, filed March 25, 1994.” White River provided no supplemental abstract in its opening brief on cross-appeal, so we have no idea what the order said or the basis of its entry.

A summary of the pleadings and the judgment appealed from are the bare essentials of an abstract. Logan County v. Tritt, 302 Ark. 81, 787 S.W.2d 239 (1990); Jolly v. Hartje, 294 Ark. 16, 740 S.W.2d 143 (1987). An appellant’s abstract or abridgement of the record should consist of an impartial condensation of the material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to the court for decision. Davis v. Peebles, 313 Ark. 654, 857 S.W.2d 825 (1993). The reason for the rule, as we have often explained, is that there is only one record and there are seven judges. It is impractical, and oftentimes impossible, for all seven judges to attempt to pass around the one record. Pennington v. City of Sherwood, 304 Ark. 362, 802 S.W.2d 456 (1991). It is the appellant’s burden to abstract the record to demonstrate error, and the appellate court will not go to the record to determine whether reversible error occurred. Farmers Bank v. Perry, supra. The same rule applies, of course, to cross-appellants. See Stephens Prod. Co. v. Johnson, 311 Ark. 206, 849 S.W.2d 479 (1993).

Without abstracts of the sanction ruling from which the McPeeks appeal and the order setting aside the judgment from which White River appeals, we decline to reverse the Chancellor on either.

In conclusion, we note that White River has moved to dismiss the McPeeks’ appeal, supporting the motion with a supplemental abstract in its reply brief. The McPeeks have moved to strike White River’s supplemental abstract. In view of our decision to affirm on the basis of Rule 4-2(h), we need not consider or decide those motions.

Affirmed on appeal and on cross-appeal.

Dudley, J., not participating.

Brown, J., concurs in part and dissents in part.

Robert L. Brown, Justice,

concurring in part; dissenting in part. I agree with part of the majority opinion but take issue with one significant point. After White River Lodge Enterprises argued in its appellee’s brief that the McPeeks’ original brief was defective due to failure to abstract a certain trial court ruling on statutory fees and a statement of fees and costs, McPeek moved for permission to substitute an abstract to correct those deficiencies. The motion to substitute was filed on the date the McPeeks’ reply brief was due, which was February 20, 1996. On that same date, McPeek tendered a substituted original abstract and brief to rectify the deficiencies pursuant to Ark. Sup. Ct. R. 4-2(b)(2). This, of course, all occurred long before the case was submitted for this court’s consideration. The motion to substitute was denied.

Now, a majority of the court refuses to consider the McPeeks’ argument on appeal for failure to abstract a court ruling on statutory fees and a statement of fees and costs pursuant to Supreme Court Rule 4-2 (b). This is so even though the McPeeks sought permission to correct their abstract deficiency well in advance of the submission of the case.

This court routinely grants motions to supplement abstracts before the case is submitted with any costs necessitated by the opposing party’s rebriefing to be assessed against the moving party. See, e.g., Dixon Ticonderoga Co. v. Winburn Tile Manuf. Co., 322 Ark. 817, 911 S.W.2d 955 (1995) (per curiam). We do so under the authority of Ark. Sup. Ct. R. 4-2 (b)(2), which reads:

(2) Whether or not the appellee has called attention to deficiencies in the appellant’s abstract, the Court may treat the question when the case is submitted on its merits. If the Court finds the abstract to be flagrantly deficient, or to cause an unreasonable or unjust delay in the disposition of the appeal, the judgment or decree may be affirmed for noncompliance with the Rule. If the Court considers that action to be unduly harsh, the appellant’s attorney may be allowed time to revise the brief, at his or her own expense, to conform to Rule 4-2(a)(6). Mere modifications of the original brief by the appellant, as by interlineation, will not be accepted by the Clerk. Upon the filing of such a substituted brief by the appellant, the appellee will be afforded an opportunity to revise or supplement the brief, at the expense of the appellant or the appellant’s counsel, as the Court may direct. (Emphasis added.)

Hence, our rule allows us to accept substituted abstracts even after the matter has been submitted for decision. We have typically declined to do that, but where the requested abstract substitution occurred before submission, we generally grant the request.

I would correct the error in refusing to allow an abstract substitution in this case and reach the merits of White River Lodge Enterprises’ motion to dismiss and the McPeeks’ request for additional fees. For that reason, I respectfully dissent.


author: Donald L. Corbin, Justice.

text:
    Anthony KEY v. STATE of Arkansas
    CR 96-121
    923 S.W.2d 865
    Supreme Court of Arkansas
    Opinion delivered June 17, 1996

      Didi H. Sailings, Executive Director, by: Teri Chambers, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant, Anthony Key, appeals a judgment of the Pulaski County Circuit Court convicting him of capital murder and sentencing him to life imprisonment without parole. Jurisdiction of this appeal is properly in this court. Ark. Sup. Ct. R. l-2(a)(2). Appellant presents three arguments for reversal of the judgment entered pursuant to a jury verdict. We find no merit to the arguments and affirm.

Appellant’s first argument for reversal is that the trial court erred in denying his motions for directed verdict. At trial, appellant moved for a directed verdict at the close of the state’s case, contending the state had not proven that appellant acted with the premeditated and deliberated purpose of causing a person’s death. Appellant presented defense witnesses and then renewed the motion for directed verdict at the close of his evidence, adding as additional grounds that he was incapable of forming the requisite mental state. Appellant then renewed the motion at the close of the state’s rebuttal evidence and again at the close of his surrebuttal evidence.

Appellant’s initial motions were sufficiently specific to apprise the trial court of the particular evidence he claimed was lacking. The renewal motions were likewise sufficient to preserve the argument for our review. Heard v. State, 322 Ark. 553, 910 S.W.2d 663 (1995); Durham v. State, 320 Ark. 689, 899 S.W.2d 470 (1995). Although appellant asks us to review the evidence as it existed both at the close of the state’s evidence and again at the close of the case, appellant waived his former motion for directed verdict by presenting evidence in his defense. Therefore, we decide his challenge to the sufficiency of the evidence as the evidence existed at the close of the case when he renewed his former motions. Rudd v. State, 308 Ark. 401, 825 S.W.2d 565 (1992).

In reviewing the sufficiency of the evidence, we consider the evidence in a light most favorable to appellee and affirm if there is substantial evidence to support the verdict. Nance v. State, 323 Ark. 583, 918 S.W.2d 114 (1996). Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id. We consider only the evidence that supports the conviction without weighing it against other evidence favorable to the accused. Farris v. State, 308 Ark. 561, 826 S.W.2d 241 (1992). Circumstantial evidence alone may constitute substantial evidence when every other reasonable hypothesis consistent with innocence is excluded. Nance, 323 Ark. 583, 918 S.W.2d 114. Once the evidence is determined to be sufficient to go to the jury, the question of whether the circumstantial evidence excludes any other hypothesis consistent with innocence is for the jury to decide. Hadley v. State, 322 Ark. 472, 910 S.W.2d 675 (1995); Missildine v. State, 314 Ark. 500, 863 S.W.2d 813 (1993); Lolla v. State, 179 Ark. 346, 15 S.W.2d 988 (1929).

Because appellant does not dispute that he killed the victim, we need not recite the evidence in great detail. Suffice it to say that appellant shot and killed Lisa Williams as she was looking out the window of her trailer following an argument she had with appellant’s sister. The only issue we need determine is whether there is substantial evidence to support a finding that he acted with the premeditated and deliberated purpose of causing death.

As applied to this case, a person commits capital murder if, “[w]ith the premeditated and deliberated purpose of causing the death of another person, he causes the death of any personf.]” Ark. Code Ann. § 5-10-101 (a)(4) (Repl. 1993). Premeditation and deliberation are not required to exist for any particular length of time and may be formed in an instant. Ward v. State, 298 Ark. 448, 770 S.W.2d 109 (1989); Ford v. State, 276 Ark. 98, 633 S.W.2d 3, cert. denied, 459 U.S. 1022 (1982). Premeditation and deliberation may be inferred from the circumstances of the case, which include the type and character of the weapon used, the manner in which the weapon was used, the nature, extent, and location of the wounds inflicted, and the conduct of the accused. Kemp v. State, 324 Ark. 178, 919 S.W.2d 943 (1996); Farris, 308 Ark. 561, 826 S.W.2d 241.

The type of weapon used was a 12-gauge shotgun. As for the character of the weapon, appellant described it in his statement as being sawed-off at both ends. Three 12-gauge shell casings were recovered at the scene. Investigating officers described the shell casings as being mag load, double-00 buckshot, two and three-quarter inch. The officers estimated that the victim fell backward six feet from the window where she was looking outside when she was shot. According to the associate medical examiner, she suffered eleven entrance wounds from a single shotgun blast that caused multiple penetrations and perforations of her head, neck, chest, and right arm.

Willie Williams, the victim’s husband, testified that he and his wife were at home in their trailer when they heard a gunshot. He stated that they went to the doorway and saw appellant shooting at the trailer next door. He thén saw appellant turn and shoot in their direction, with the shot hitting the corner of the doorway where they stood. Mr. Williams stated that his wife then went to the bedroom while he remained near the doorway and called 911. He testified that, while still on the phone to 911, he saw appellant moving closer to their trailer in their direction. He stated that when he went to the bedroom he saw his wife looking out the corner of the window; he then heard another shotgun blast and she fell backwards.

A total of five shots were fired at the scene. One shot hit the trailer next to the Williamses’, and one shot hit the Willliamses’ car. Three shots hit the Williamses’ trailer, one on the north side near the doorway where the Williamses stood when they heard the first shot, and two at the west end near the corner of the window where the victim was looking outside. One of these hit above the window and the other hit the corner of the window. Photographs of the crime scene indicated that the shot that hit near the doorway and the shot that hit the corner of the window were both fired at head level.

On appeal, appellant’s argument is twofold. First, he argues that the number and scattering of the blast patterns indicate he acted with an intent to scare or to cause property damage, rather than to kill the victim. Second, he argues that he was incapable of forming the mental state of premeditated and deliberate purpose to kill because, given the quick period of time between the argument and the homicide, he was unable to weigh consequences in his mind and to cope with the stress of the fight between his sister and the victim. In support of this argument, appellant relies on testimony from Charlotte Bull, appellant’s former special education teacher; Drew Camp, a licensed psychological examiner for the North Little Rock School District; and Dr. James Moneypenny, a psychologist. Collective testimonies of these three witnesses revealed that appellant had an IQ of 72, which borders on the mildly-mentally-retarded range, and was reading at the third-grade level when he quit school approximately two years prior to the homicide; that he had diminished reasoning abilities when under stress; and that he had difficulty developing coping skills. Dr. Moneypenny opined that, given appellant’s lack of abilities and the stress of his sister being involved in a fight, appellant was functioning under a diminished capacity on the date of the homicide. He also testified that the fact that the gunshots were scattered and disorganized was consistent with his opinion of appellant’s diminished capacity.

We are convinced there was substantial evidence from which a jury could very easily conclude, without speculating, that appellant acted with a premeditated and deliberated purpose to cause the death of Lisa Williams. In short, appellant used a sawed-off, 12-gauge shotgun loaded with double-00 buckshot in March; the shots were fired into the trailer at head-level; and the shots appeared to have been aimed at a certain target as they followed the victim when she moved from the doorway of her home to the bedroom. It was for the jury to determine that this evidence excluded every other hypothesis consistent with appellant’s innocence, and they could do so on this evidence without speculating. The jury was not persuaded by appellant’s evidence. This was a credibility determination by the jury that we affirm upon substantial evidence. Accordingly, we find no merit to appellant’s first argument.

Appellant’s second argument for reversal is a challenge to the trial court’s finding that appellant was fit to proceed to trial. Ordinarily, a criminal defendant is presumed to be mentally competent to stand trial, and the burden of proving incompetence is on that defendant. Mitchell v. State, 323 Ark. 116, 913 S.W.2d 264 (1996). The test for determining an accused’s competency to stand trial is whether he is aware of the nature of the proceedings against him and is capable of cooperating effectively with his attorney in the preparation of his defense. Ark. Code Ann. § 5-2-302 (Repl. 1993); Mitchell, 323 Ark. 116, 913 S.W.2d 264. On appellate review of a finding of fitness to stand trial, we affirm if there is substantial evidence to support the trial court’s finding. Id. at 121, 913 S.W.2d at 266 (quoting Mauppin v. State, 314 Ark. 566, 865 S.W.2d 270 (1993).

Appellant argues that, because he told the examiner at the state hospital that he was charged, with first-degree murder when he was actually charged with capital murder, he was not aware of the nature of the charges against him. He argues further that he had a significant history of poor communication abilities, thus he could not assist in his defense. Following the filing of appellant’s notice pursuant to Ark. Code Ann. § 5-2-304 (Repl. 1993) and motion for evaluation, the trial court entered an order committing appellant to the state hospital for examination. Dr. O. WendaU Hall, a psychiatrist at the state hospital, filed a report with the court finding that appellant appeared to be aware of the nature of the charges and the proceedings taken against him and was capable of cooperating effectively with an attorney in the preparation of his defense.

The trial court later held a competency hearing and heard testimony from Drew Camp, a licensed psychological examiner in the North Little Rock School District; Dr. Albert Kittrell, a fourth-year psychiatry resident at the state hospital; and Dr. Susan Doi, a clinical psychologist at the state hospital. Collectively, their testimonies established that appellant had an IQ of 72, which is on the borderline of mild mental retardation; that various tests of language skills, motor skills, and behavior skills indicated appellant functioned at an equivalent age of ten to twelve years; that while in the eleventh grade he functioned at the third-grade level in all areas except math, in which he functioned at the fifth-grade level; that appellant had no problems functioning in the social environment at the state hospital; that appellant was fairly poor in both judgment and insight; that appellant showed no evidence of major mental illness or psychotic behavior; and that appellant was aware of the charges and could assist in his own defense.

The law does not require an accused to identify with specificity the charges filed against him. Rather, section 5-2-302 requires that an accused have the capacity to “understand the proceedings against him.” Both doctors from the state hospital testified that appellant knew he had been charged with murder. They both concluded that appellant was aware of the nature of the charges against him. In addition, both doctors testified that he cooperated in their examinations and with others at the state hospital. Again, both doctors stated appellant could assist in his defense. Their testimonies constitute substantial evidence to support the trial court’s conclusion that appellant was competent to stand trial.

Appellant’s third argument for reversal is that the trial court erred in refusing to suppress appellant’s pretrial statement, wherein he admitted to firing the shotgun at the Williamses although he did not intend to kill anyone. Appellant contends his waiver of Miranda rights was not voluntary, knowing, or intelligent because the interrogating officer made a false promise to send appellant home if appellant would admit to being the shooter. He argues that persons of ordinary intelligence would not be induced to confess on such an obviously false promise and that his low intelligence and lack of education rendered him extremely vulnerable.

When the voluntariness of a confession is in issue, we make an independent determination of voluntariness based upon the totality of the circumstances surrounding the confession, and we do not reverse the trial court’s finding of voluntariness unless it is clearly against the preponderance of the evidence. Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996). Some of the factors we consider are the age, education, and intelligence of the accused; the advice or lack thereof on constitutional rights; the length of the detention; the repeated or prolonged nature of the questioning; and the use of physical punishment. Id. A custodial confession is presumed involuntary and the burden is on the state to show the confession was voluntarily made. Id.

A confession obtained through a false promise of reward or leniency is invalid. Id. However, the only evidence that appellant’s custodial statement was obtained through a false promise of reward comes from appellant’s testimony at the suppression hearing. In his statement, however, he clearly stated that the detective advised him of his Miranda rights in a manner that he understood, that no one had made any threats or promises in exchange for the statement, and that he was giving the statement “of [his] own free will.” Thus, this is a credibility issue that the trial court assessed in favor of the state. See Misskelley, 323 Ark. 449, 915 S.W.2d 702.

While the factors of age and mental capacity are factors to consider in determining voluntariness of a confession, those factors alone are not sufficient to require suppression. Misskelley, 323 Ark. 449, 915 S.W.2d 702. In addition, a low score on an intelligence quotient test does not render an accused incapable of voluntarily giving a confession. Id. The facts of Misskelley are almost identical to the facts of this case. Misskelley was aged seventeen when he was interrogated, had an IQ of 72, and read at the third-grade level. In the present case, appellant was aged eighteen when he was interrogated, had an IQ of 72, and read at the third-grade level. We found Misskelley’s confession to be voluntary. Likewise, we find appellant’s to be voluntary. On this evidence, we cannot say the trial court’s finding of voluntariness was clearly against the preponderance of the evidence.

In accordance with Rule 4-3 (h), the record has been reviewed for adverse rulings objected to by appellant but not argued on appeal, and no such errors were found. For the aforementioned reasons, the judgment of conviction is affirmed.

DUDLEY, J., not participating.


author: DONALD L. Corbin, Justice. ROBERT L. Brown, Justice,

text:
    Natalie Ann McGARRAH, Appellant v. Joe McGARRAH, Appellee; Johnny McGarrah and Sharon McGarrah, Intervenors
    94-680
    924 S.W.2d 453
    Supreme Court of Arkansas
    Opinion delivered June 17, 1996
    [Petition for rehearing denied September 9, 1996.]

      Naif Samuel Khoury, for appellant.

      Paul R. Post, for appellee and intervenors.
   DONALD L. Corbin, Justice.

Natalie Ann McGarrah appeals a divorce decree from the Crawford County Chancery Court. We affirm the chancellor’s decision pursuant to Ark. Sup. Ct. R. 4-2(b)(2) due to appellant’s failure to sufficiently abstract the proceedings below.

The standard of review of chancery court proceedings is whether the chancellor’s findings were clearly erroneous or clearly against the preponderance of the evidence. Riddick v. Streett, 313 Ark. 706, 858 S.W.2d 62 (1993). This we cannot determine with the abstract we have been provided. We have frequendy held that the record on appeal is limited to that which is abstracted, and that it is appellant’s burden to produce a record sufficient to demonstrate error. See, e.g., McAdams v. Automotive Rentals, Inc., 324 Ark. 332, 924 S.W.2d 464 (1996); Burgess v. Burgess, 286 Ark. 497, 696 S.W.2d 312 (1985). We find that the abstract submitted in this case is a record too insufficient for a review of the merits of appellant’s arguments.

Pursuant to Ark. Sup. Ct. R. 4-2(a)(6), an appellant is required to compile an abstract containing material parts of the pleadings, proceedings, facts, documents, and any other matters which are necessary for an understanding of all questions presented to this court. Chrysler Credit Corp. v. Scanlon, 319 Ark. 758, 894 S.W.2d 885 (1995). Surely, the orders of the lower court, as well as the notice of appeal, are encompassed in that requirement.

Both of appellant’s arguments on appeal question the chancellor’s rulings and orders concerning the validity of several pre-divorce agreements entered into by appellant and appellee. Appellant has not, however, abstracted any order which indicates the chancery court’s ruling as to that issue. Specifically, appellant has omitted the final chancery court order. We assume that it is the holding contained in that final chancery court order upon which appellant bases this appeal, although we cannot be sure as appellant has failed to abstract the notice of appeal. It is, therefore, impossible for this court to determine whether or not the chancellor’s rulings were clearly erroneous when we have not been provided with the rulings themselves and when we cannot discern from which order or orders the appeal is taken. For this reason, we affirm the decision below.

Affirmed.

Brown and Roaf, JJ., dissent.

Dudley, J., not participating.

ROBERT L. Brown, Justice,

dissenting. The majority affirms on grounds of a deficient abstract and concludes that it is “impossible for this court to determine whether or not the chancellor’s rulings were clearly erroneous when we have not been provided with the rulings themselves and when we cannot discern from which order or orders the appeal is taken.” I disagree. Both parties abstracted the ruling made by the chancellor on April 21, 1994, regarding the invalidity of Joe McGarrah’s relinquishment of his parental rights, and the appellee and intervenors abstracted the ruling relating to the visitation rights of the intervening paternal grandparents. The appellant makes it clear that she is appealing from these rulings.

On pages 16 and 17, appellant Natalie Ann McGarrah included this ruling by the chancellor:

Plaintiff is granted a Decree of Divorce on the grounds of general and personal indignities. Custody would be with the mother. We’re going to start today with a completely clean slate. ... Now, let me make another statement about this document where the parental rights were given up in anticipation of the divorce. It’s unfortunate that it occurred, but it has no legal effect, not yet, not just the signing of it. But, the Court is the only person or the only entity that can terminate someone’s right as a parent. He could sign - he could have red, white and blue ribbons put on it, it still doesn’t isn’t effective. (Emphasis ours.)

The same ruling, as well as the ruling regarding grandparental visitation rights, was abstracted by the appellee and intervenors on pages 10 and 11 of their supplemental abstract:

THE COURT: Plaintiff is granted a divorce and custody of the child to be with the mother. You (Natalie McGarrah) were treading on very thin ice trying to substitute your judgment for that of the Court. There will be unsupervised visitation according to the Standard Order of Visitation. Visitation will be overnight for one weekend a month but visitation will begin every Saturday from 9:00 a.m. until 5:00 p.m. Starting in June we are going to use the Standard Order allowing weekend visitation on the first weekend of each month. Make sure the house is safe and that the child is never left unattended. While the child is in the home, no smoking around the child. Visitation mil be the right of the father. The grandparents and the father can exercise that jointly, or if the father is not available the grandparents can exercise it. Visitation is to be in the home of the Defendant and unsupervised. Let me make another statement about this document were (sic) the parental rights were given up in anticipation of divorce. It is unfortunate that it occurred, but it has no legal effect, not just the signing of it. It’s not a piece of property. We are talking about a human being and parental rights. The Court is the only entity that can terminate someone’s rights as a parent. It isn’t effective. (Emphasis ours.)

In short, both parties to this appeal agree essentially on the chancellor’s rulings from the bench. The chancellor’s rulings were later memorialized in two orders: the Divorce Decree entered June 2, 1994, and the Contempt Order entered August 31, 1994, and it is true that the formal Divorce Decree and Contempt Order were not abstracted. But where the rulings are abstracted by both parties and where both parties agree on what the rulings were, I cannot conclude that the abstracting is fatally deficient under Ark. Sup. Ct. R. 4-2 (b) or that this court cannot discern the issue on appeal from the abstract.

This court has affirmed on grounds of a fatally deficient abstract, when the order appealed from has not been abstracted. See, e.g., Winters v. Elders, 324 Ark. 246, 920 S.W.2d 833 (1996). But this is not such a case. The rulings from the bench are abstracted, and the parties agree on what those rulings were. Under these facts, to decide the appeal on (1) the failure to abstract the two orders, which merely duplicate the chancellor’s rulings, and (2) the failure to abstract the notice of appeal is unduly technical. I would reach the merits of the case. For that reason, I respectfully dissent.

ROAF, J., joins.