author: Jack Holt, Jr., Chief Justice.

text:
    Mark Anthony PERKINS v. STATE of Arkansas
    CR 88-190
    767 S.W.2d 514
    Supreme Court of Arkansas
    Opinion delivered April 3, 1989

      Grant & Berry, by: Sandra T. Berry, for appellant.

      Steve Clark, Att’y Gen., by: R.B. Friedlander, Solicitor General, for appellee.
   Jack Holt, Jr., Chief Justice.

Appellant Mark Anthony Perkins was convicted on charges of burglary, aggravated robbery, rape, and two counts of theft. On appeal, Perkins argues that the evidence was insufficient to support the burglary and rape convictions and that the trial court erred in not granting a directed verdict on one of the theft charges as there was but one act of theft. We find the arguments to be without merit and affirm.

On the evening of May 6,1988, Perkins was driving a truck and was accompanied by two men — James Hammond and Tyrone Jones. Hammond and Jones apparently came up with the idea to rob someone named Wochner. Hammond had done yard work for Ms. Wochner and knew she had money. The trio drove to a residence in Little Rock, and Perkins parked the truck while Hammond and Jones broke in through the front door of the home. Perkins entered the residence only minutes after the others had broken in. He later told detectives of the Little Rock Police Department that the original plan had been to knock on the door, and he had no idea Hammond and Jones actually broke into the residence.

Ms. Wochner testified that she was awakened sometime after 11:30 p.m. on May 6 when she heard the sound of breaking glass. Thinking it was her niece, who shared the home but was not in, Ms. Wochner went to the living room and was confronted by Hammond who held a gun and told her that he would kill her if she did not give him her money. At the same time she heard voices coming from the kitchen.

Ms. Wochner gave Hammond the money she had in her purse and was told to turn around. She heard the individuals in the kitchen come into the room and was told to lie on the floor in the hallway. Some type of clothing from the niece’s bedroom was placed over her head and throughout the remainder of the ordeal Ms. Wochner never again actually saw her attackers. She was able to identify only Hammond.

Perkins, Hammond, and Jones spent an hour or more in the home. Each took turns holding the handgun to prevent Ms. Wochner’s escape while the others searched for valuables. The trio took money, jewelry, credit cards, television sets, lamps, a tape recorder, a camera, a typewriter, Ms. Wochner’s car, and other items. Individually, both Ms. Wochner and her niece each suffered a loss of over $2,500.00 in money and personal property.

Ms. Wochner testified that while she was lying in the hallway she was repeatedly kicked, called names, stepped on, and hit with some object while her attackers demanded to know where she had more money. At one point, someone took the handgun and twisted it into Ms. Wochner’s vagina. After that, the gun was placed between her buttocks several times. Nothing was said by the attackers, and Ms. Wochner was unable to identify the individual or individuals who raped her.

Burglary Sufficiency of the Evidence

Perkins argues that there was insufficient evidence to support the burglary conviction and that the trial court should have granted his motion for a directed verdict. Perkins rests his argument on the scenario in which he parked the truck while Hammond and Jones deviated from the plan to knock on the front door and instead broke into the house. From this, Perkins claims that he could only be convicted of burglary as an accomplice. Because he had no knowledge of the plan to break into the house, rather than gain admittance by knocking, Perkins contends he did not solicit, advise, encourage, or coerce another to commit burglary; or aid, agree to aid, or attempt to aid in planning or committing the offense. Ark. Code Ann. § 5-2-403 (1987). We find the evidence sufficient and resolve this issue without addressing the “accomplice” argument.

The offense of burglary is defined in Ark. Code Ann. § 5-39-201 (1987) as follows:

A person commits burglary if he enters or remains unlawfully in an occupiable structure of another person with the purpose of commiting therein any offense punishable by imprisonment.

Perkins admitted in his statement that the trio intended to rob Ms. Wochner. Perkins makes no argument that he did not actually enter the residence or that he did not subsequently commit aggravated robbery and theft. Nor does he argue that he had a lawful right to be in the house. As such, the jury was warranted in finding that Perkins entered or remained unlawfully in the occupiable structure of another with the purpose of committing therein an offense punishable by imprisonment.

Rape Sufficiency of the Evidence

Perkins contends that the evidence was insufficient to support the rape conviction because there was no evidence he was the one who raped Ms. Wochner and there was no evidence of a common purpose or plan to rape her. Under these circumstances, Perkins claims he could not be convicted as a principal or as an accomplice. We conclude that there was sufficient evidence to support the jury’s verdict.

In cases involving charges of rape or deviate sexual conduct, even where the victim is unable to personally identify the defendant as the one who committed the offense, the issue of the defendant’s guilt may go to the jury based on circumstantial evidence alone. That evidence may serve as the basis upon which to support a conviction provided the evidence is substantial in nature. Smith v. State, 277 Ark. 64, 639 S.W.2d 348 (1982).

On this issue, Ms. Wochner’s testimony was as follows:

Well, they started ransacking the house and every time they walked past me somebody took a sap and hit me in the side of my head up along my head. And they did that numerous times . . . They kept plundering and demanding money and wanting to know where the money was and I told them that was all the money I had. They went through the bank records and stole, took the bank cards and told me how much money I had in the bank and they knew I had more money in the house and when I said that I didn’t they took the gun ... I was still in the hallway face down. And he took the gun and he slid it between the labia to the vagina and twisted it in and held it there. And then cocked the pistol. And several times after that they slid the gun between the buttocks and would hold it there. And then one of them made me get up and go into the front bedroom and shoved me across the foot of the bed ....

The foregoing testimony clearly establishes the commission of rape as set forth in Ark. Code Ann. §§ 5-14-101(1)(B) and 5-14-103(a)(l)(1987).

The issue becomes whether there is sufficient evidence to link Perkins to the conduct described by Ms. Wochner. In his statement to detectives, Perkins admitted that he was with Hammond and Jones when Ms. Wochner was moved from the hallway to the bedroom. The evidence indicates this took place immediately after the rape incident in the hall. The statements by Perkins were corroborated by Hammond who testified for the State that Perkins was with them when they moved Ms. Wochner to the bedroom and that Perkins was actually the one who moved her. Also, while they were still in the hallway, it was Perkins who was “hitting the lady in the head with his, with something wrapped around it, it was a cloth . . . Hitting her in the head asking for more money.” Hammond further testified that Perkins, like the others, took turns holding the gun in order to keep Ms. Wochner in the hallway.

While circumstantial, the foregoing testimony is substantial and supports the verdict. Perkins was in the hall just before Ms. Wochner was moved, which is when the rape took place. More particularly, the evidence indicates Perkins was the one hitting Ms. Wochner and demanding to know where more money was kept. From Ms. Wochner’s testimony it is evident that she was raped with the handgun just after she responded that she had no more money.

Directed Verdict Theft

The argument under this heading is that double jeopardy precludes conviction on more than one count of theft; namely, despite the fact that property belonging to two individuals was taken from the home of Ms. Wochner, there was but one act of theft. We disagree.

A case somewhat related to this one is Watson v. State, 295 Ark. 616, 752 S.W.2d 240 (1988), which involved convictions on three counts of theft by receiving. We found that the act of receiving stolen property was a single act set on foot by a single impulse and operated by an unintermittent force. The result was that only one conviction for theft by receiving could lie.

Watson was based upon Ark. Code Ann. § 5-1-110(a)(5) (1987) which precludes conviction of more than one offense when the same conduct of a defendant may establish the commission of more than one offense, provided the conduct constitutes an offense defined as a continuing course of conduct. In Smith v. State, 296 Ark. 451, 757 S.W.2d 554 (1988), we said that for § 5-1-110(a)(5) to apply, the conduct itself must be defined as a continuing course of conduct crime. Examples are found in Smith, supra, and in Britt v. State, 261 Ark. 488, 549 S.W.2d 84 (1977). While Perkins concedes that theft is not a continuing course of conduct offense, and therefore section 5-1-110(a)(5) does not apply, we find our language in Watson useful in disposing of Perkins’ claim that there was but one act of theft.

The case before us simply does not involve “a single act set on foot by a single impulse and operated by an unintermittent force.” Whereas the initial intent may have been to rob Ms. Wochner, the evidence shows that the intent subsequently shifted to the niece’s property. Where “successive impulses are separately given, even though all unite in swelling a common stream of action, separate charges lie.” Rowe v. State, 271 Ark. 20, 607 S.W.2d 657 (1980). See also, Tarry v. State, 289 Ark. 193, 710 S.W.2d 202 (1986). A review of the abstracted record convinces us that successive impulses were separately given — first as to the theft of Ms. Wochner’s property and, second, as to the niece’s property.

Perkins, Hammond, and Jones intended to rob Ms. Wochner. This intent was carried out, and the theft of Ms. Wochner’s property was accomplished. Ms. Wochner’s testimony then demonstrates (after she had been thrown onto her niece’s bed):

The voice in the bedroom asked me if my niece’s jewelry was diamonds. And I told him no, they were cubic zirconiums. She liked flashy jewelry. [Emphasis ours.]

Later, Ms. Wochner again testified concerning the theft of property belonging to her niece:

The other credit cards I found spread on the floor where they had probably dropped them. They kept insisting I give them the access number for my niece’s bank card. And each time I refused. This one beat me in the head again. My ear turned purple and my eye turned black and my head was black and blue for a week or ten days. [Emphasis ours.]

We have no doubt that two separate impulses are shown. The first was to commit the theft of property belonging to Ms. Wochner. The second came later and involved the separate intent to commit theft of property belonging to the niece. As such, the convictions on separate counts of theft were proper.

Perkins also cites language from our decision in Holder v. Fraser, 215 Ark. 67, 219 S.W.2d 625 (1949), where we said,

If a thief simultaneously steals two objects, the State may charge him with the theft of one, and under that indictment he cannot be convicted of stealing the other. A plea of double jeopardy would nevertheless bar a second trial for larceny; for there is only one offense, which the State cannot subdivide by making separate accusations.

However, in Miller v. State, 222 Ark. 476, 261 S.W.2d 411 (1953), we noted that our language in Holder went further: “When the crimes involve the element of intent we see no difficulty in finding two offenses in one act.”

Affirmed.


source: Caselaw Access Project

author: Steele Hays, Justice. John I. Purtle, Justice,

license: Public Domain

text:
    James MAXWELL v. STATE of Arkansas
    CR 88-75
    767 S.W.2d 303
    Supreme Court of Arkansas
    Opinion delivered April 3, 1989

      Marc Aaron Kline, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

This appeal from the denial of a Rule 37 petition raises the question whether the petition was timely under A.R.Cr.P. 37.2(c) which requires filing within three years, unless the grounds for relief would render the conviction absolutely void.

Appellant James Maxwell was charged with capital felony murder and on February 21, 1980, he pled guilty to a reduced charge of first degree murder, receiving a sentence of life imprisonment.

On October 26, 1987, appellant filed a Rule 37 petition claiming his guilty plea was involuntary. On November 3, 1987, the trial court issued an order acknowledging the petition and finding it was beyond the time allowed under Rule 37.2(c). The order stated that, “Without considering the issues, the appellant is given 30 days to supplement his petition to show justification or an explanation for the delay.” On November 13,1987, appellant filed a supplemental petition containing allegations that his conviction was void.

A hearing on the Rule 37 petition was held on February 29, 1988. At the beginning of the hearing the circuit judge again noted that the petition was untimely. He further noted that there was no practical way to separate the evidence going to the merits of appellant’s claims and the evidence going to show that the conviction was void, the latter proof allowing an otherwise untimely petition. That being so, the trial court allowed appellant to present all his evidence together. After the evidentiary hearing the court denied the petition, reaching the merits of appellant’s claims and specifically denying the petition on that basis.

We affirm the trial court, but we find the petition should have been denied not on the basis of the merits, but rather for the untimeliness of the petition, as none of appellant’s claims would have rendered his conviction void.

While timeliness was not raised below the state now contends it may be raised for the first time on appeal because the time limits imposed by Rule 37.2(c) are jurisdictional. Though we have not addressed this point before, we agree with the state’s position.

A.R.Cr.P. 37.2(c) provides:

A petition claiming relief under this rule must be filed in circuit court, or, if prior permission to proceed is necessary as indicated in paragraph (a) [a case originally appealed to this court], in the Supreme Court, within three (3) years of the date of commitment, unless the ground for relief would render the judgment absolutely void.

Jurisdiction is the power and authority of the court to act, Mark Twain Life Ins. Corp. v. Cory, 283 Ark. 55, 670 S.W.2d 809 (1984), and to hear a case on its merits, 20 Am. Jur. 2d, Courts § 88 (1965). Here, Rule 37.2(c) clearly limits the court’s power when cases are filed after three years to act on and hear the merits of only those cases where the conviction would be rendered absolutely void, and we have consistently so held. York v. State, 295 Ark. 163, 747 S.W.2d 102 (1988); Hedrick v. State, 292 Ark. 411, 730 S.W.2d 488 (1987); Williams v. State, 293 Ark. 73, 732 S.W.2d 456 (1987); Ellis v. State, 291 Ark. 72, 722 S.W.2d 575 (1987); Sanders v. State, 291 Ark. 200, 723 S.W.2d 370(1987); Craft v. State, 289 Ark. 466, 712 S.W.2d 303 (1986); Locklear v. State, 290 Ark. 70, 716 S.W.2d 766 (1986); Henry v. State, 288 Ark. 592, 708 S.W.2d 88 (1986); Travis v. State, 286 Ark. 26, 688 S.W.2d 935 (1985); Bramlett v. State, 284 Ark. 114, 679 S.W.2d 209 (1984). There are strong policy reasons supporting limitations on the trial court’s authority to act. As we stated in Travis, supra:

At some point we are entitled to presume that the convicted defendant has exhausted his state remedies and stands fairly and finally convicted, (cite omitted). The need for stability of judgments in criminal cases requires that the petitioner raise whatever issues he may desire to raise within the reasonable time set by our procedural rules.

Those same reasons were cited in United States v. Robinson, 361 U.S. 220 (1959), in holding the time limits on post-trial remedies to be jurisdictional. We believe the language of Rule 37.2(c) and the policy reasons behind it are sufficient to hold that the time limits of the rule are jurisdictional in nature.

We note that at the beginning of appellant’s testimony, the trial court inquired as to the reason for the inordinate delay in bringing the petition. Appellant responded he had only recently learned of the existence of Rule 37 relief, and that, he had no reason to complain about a promise of a parole in seven years until the seven years had passed.

The trial court accepted the reasons given as “entirely reasonable.” At the conclusion of the hearing the trial judge repeated his position on the timeliness issue, finding there was reason for delay in the submission of the petition, but finding the claims lacking on their merits. Needless to say, appellant’s explanations for an untimely petition were not sufficient to void his conviction. Contrary to the comments of the trial court, the standard for allowing a late petition is not the “reasonableness” of the delay, but whether the alleged grounds are sufficient to render the conviction absolutely void.

We emphasize that a court always has the power and duty to examine the evidence and determine whether in fact it does have jurisdiction over the matter. LaRue v. LaRue, 268 Ark. 86, 593 S.W.2d 185 (1980); Arkansas Savings & Loan Ass’n v. Corning Savings & Loan Ass’n, 252 Ark. 264, 478 S.W.2d 431 (1972). That being so, a petition once tendered should be filed even though untimely so that the court may exercise the power and duty to determine whether jurisdiction exists. Also, as recognized by the trial court in this case, often in a Rule 37 hearing evidence offered on the merits will be intertwined with evidence on the issue of voidness, making severance of those two issues difficult if not impossible. Even so, once it is determined that jurisdiction does not exist, the disposition of the case must be made on that basis. So, in the case at bar, having heard the evidence, the trial court should have determined that none of the contentions rendered appellant’s conviction absolutely void and dismissed the petition accordingly.

Turning to the specific contentions, appellant claimed ineffective assistance of counsel, comprising four separate allegations. Appellant first claimed that he was misled into believing he was facing the death penalty. We have specifically found this charge insufficient to void a conviction. Travis v. State, supra. Appellant claimed he had abandoned a meritorious suppression motion because of the misleading advice about the death penalty, that his attorney was simultaneously representing interests adverse to him, and that he was promised parole in seven years. None of these claims have merit. We reiterated the point in Travis, supra, that the grounds must be so basic as to make the judgment of conviction a complete nullity, and that issues not sufficient to void the conviction are waived, even if of constitutional dimensions. Appellant’s allegations are not so basic as to render the judgment a nullity. See also, Locklear v. State, 290 Ark. 70, 716 S.W.2d 766 (1986); Williams v. State, 293 Ark. 73, 732 S.W.2d 456 (1987).

Appellant also maintains the trial court was biased, quoting several excerpts from the hearing which he insists support this conclusion. At no time, however, did appellant raise any objection to the comments he now complains of. Absent an objection below, an issue may not be raised on appeal. Fretwell v. State, 288 Ark. 91, 708 S.W.2d 630 (1986).

As appellant’s claims were not sufficient to render his conviction absolutely void, his petition, coming well beyond the three-year limit of Rule 37.2(c), is untimely filed. While the trial court based its denial on the merits of the petition, we uphold the decision for a different reason. Edgemon v. State, 292 Ark. 465, 730 S.W.2d 898 (1987).

AFFIRMED.

Purtle, J., concurs.

John I. Purtle, Justice,

concurring. There was no appeal from the appellant’s guilty plea of February 21, 1980. On October 26, 1987, he filed a Rule 37 petition asserting that his guilty plea was involuntary. The matter was properly filed in the trial court. On November 3, 1987, the trial court issued an acknowledgment of the petition and gave the appellant 30 days to amend his petition to show a cognizable cause in the trial court. The appellant then filed an amended petition.

The court subsequently conducted a hearing on both the petition and amended petition. He found that the original petition was untimely and that there was no evidence to support the allegation that the judgement was void.

I believe the court proceeded in the exact manner intended by Rule 37. Certainly the trial court has jurisdiction to determine whether a cause of action is stated in a Rule 37 petition. The trial court is also vested with jurisdiction to make a determination upon the allegations of voidness. In the present case the trial court acted exactly as it should have. The majority opinion acknowledges this when it states that “ [w] e emphasize that a court always has the power and duty to examine the evidence and determine whether in fact it does have jurisdiction over the matter.” Moreover, the majority opines that once an otherwise untimely petition is tendered, the trial court should exercise its power and determine whether jurisdiction exists.

The court initially determined that the petition was untimely. With the consent of the court, the petition was amended. Thereafter, upon a hearing, the court properly determined that the original petition was untimely and that the conviction was not absolutely void.

The trial court in this case proceeded in strict observance of Rule 37 and the law.


author: David Newbern, Justice. Tom Glaze, Justice, John I. Purtle, Justice,

text:
    Dennis McCASLIN v. STATE of Arkansas
    CR 88-167
    767 S.W.2d 306
    Supreme Court of Arkansas
    Opinion delivered April 3, 1989

      Young & Finley, by: Dale W. Finley, for appellant.

      Steve Clark, Att’y Gen., by: Kay J. Jackson Demailly, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

At the trial in which the appellant, Dennis McCaslin, was convicted of delivery of marijuana, the defense was entrapment. The entrapment issue was submitted to and rejected by the jury. McCaslin’s contention on appeal is that a verdict should have been directed in his favor because the court should have found he was entrapped as a matter of law. The issue is whether entrapment must be found as a matter of law when the testimony of the accused, showing entrapment, is not rebutted by evidence presented by the state. We hold the court was correct in refusing to direct a verdict because, despite the failure of the state to produce evidence bearing directly on the issue of entrapment, the question of the credibility of McCaslin’s testimony remained for the jury to decide. The conviction is affirmed.

Ronnie Fleetwood testified he was at a bar in Morrilton when Norman Bryant asked Fleetwood to take him to Russellville. Fleetwood said he refused but suggested his nephew McCaslin could do it. McCaslin and Theresa Shepherd testified they were sitting together in the bar and that Bryant approached them and asked McCaslin to take him to Russellville. When McCaslin asked “What for?”, Bryant replied “Fifty dollars.”

McCaslin testified he borrowed Fleetwood’s truck, and when he and Bryant left for Russellville, Bryant obtained some marijuana from a place behind the bar. McCaslin testified that Bryant asked McCaslin to sell the marijuana to Kimberly Powell and tell her it belonged to Fleetwood because he, Bryant, owed Powell $200, and she would try to deduct it from the price if she knew it belonged to Bryant. McCaslin testified he agreed to make the sale after being asked several times.

Powell was an undercover Russellville police officer. Bryant was also being paid “expenses,” including apartment rent and money for drinks and entertainment, by the state police to work with them in apprehending drug offenders. Bryant was also being paid a fee for each “transaction” he consummated for the police. In addition, Bryant was in trouble with the law over charges that he had shot a man in the same bar where he, McCaslin, Theresa, and Fleetwood testified this episode began.

The jury was shown a video tape of the meeting of Bryant, McCaslin, and Powell, at Powell’s Russellville apartment, in which McCaslin sold Powell a quarter of a pound of marijuana for $650. She tried to get him to take less, but he said Fleetwood told him he had to have $650. At one point after the transaction, while Bryant was out of the room, the video showed McCaslin discussing marijuana prices with Powell. Although the audio portion of the recording is difficult to understand, it is clear enough that one can hear McCaslin explaining to Powell that someone had been buying from the same source as Fleetwood for less than Fleetwood was paying. At one point McCaslin stated Fleetwood kept his own books and he paid the source $24,000 last year. McCaslin then said, “He’s trying to tell us he’s giving $2800 a pound for it. I can figure maybe eighteen.”

Bryant was subpoenaed as a witness by both the state and McCaslin. The state’s subpoena was served, and Bryant was at the courthouse on the day of trial. However, when the prosecutor called him as a witness, he had fled and was unavailable to testify. McCaslin did not seek a continuance for the purpose of obtaining Bryant’s testimony, thus the only evidence bearing on what happened between McCaslin and Bryant as they drove from Morrilton to Russellville came from McCaslin’s testimony.

In Arkansas, entrapment is an affirmative defense, Ark. Code Ann. § 5-2-209(a) (1987), upon which the defendant bears the burden of proof by a preponderance of the evidence. Ark. Code Ann. §5-1-111 (d) (1987). See Spears v. State, 264 Ark. 83, 568 S.W.2d 492 (1978). McCaslin has cited no case decided in this jurisdiction in which it was held that entrapment, or any affirmative defense, was established as a matter of law solely on the basis of the unrebutted testimony of the party asserting it. There is no requirement that his testimony be believed. In civil cases we hold that a party who bears the burden of proof is not entitled to a directed verdict because the jury need not necessarily believe his evidence. James v. Bill C. Harris Construction Co., 297 Ark. 435, 763 S.W.2d 640 (1989). Also in civil cases, we have held that a directed verdict in favor of a party bearing the burden of proof may be proper, but only if the facts he must establish have been admitted by the other (adversary) party, leaving no question for a jury to decide. Barger v. Farrell, 289 Ark. 252, 711 S.W.2d 773 (1986). Absent evidence from the state confirming his entrapment story, McCaslin’s credibility was for the jury to decide.

McCaslin has cited and quoted extensively from Sorrells v. United States, 287 U.S. 435 (1932), a landmark case on entrapment in which the Supreme Court discussed the nature of the defense and held that the petitioner had presented an issue of entrapment for the jury to decide. Also cited is Sherman v. United States, 356 U.S. 369 (1958), in which the Supreme Court concluded the petitioner had established entrapment as a matter of law on the basis of the testimony of the prosecution witnesses.

McCaslin also cites Roundtree v. State, 271 So. 2d 160 (Fla. App. 1973), and State v. Sainz, 84 N.M. 259, 501 P.2d 1247 (1972), as cases in which it was held there was entrapment as a matter of law. In the Roundtree case there was testimony by an undercover deputy sheriff showing that the deputy induced the drug sale with which Roundtree was charged. In the Sainz case the court recited facts without attribution to testimony, so we cannot tell how the entrapment was shown.

Two Mississippi cases in which it was held that entrapment had been established as a matter of law are, on their facts, remarkably similar to the case before us now. In Jones v. State, 285 So. 2d 152 (Miss. 1973), the defendant testified an informant asked him to make the sale of marijuana because the informant owed the buyer money and thus would expect to get the marijuana as repayment of the debt. The Mississipi Supreme Court noted that entrapment is an affirmative defense but concluded it was established, apparently solely on the defendant’s unrebutted testimony. The decision was followed by Sylar v. State, 340 So. 2d 10 (Miss. 1976), where the court noted that the exchange of government marijuana for government money is not even a sale. In Torrence v. State, 380 So. 2d 248 (Miss. 1980), the other case factually similar to the one before us now, the defendant testified that the informant told him she needed to sell marijuana but could not make the sale personally because she owed the buyer money. Absent government rebuttal testimony it was again held that entrapment was established.

These Mississippi cases offer no discussion of the burden of proof issue and do not explain why the credibility of the defendant was not an issue for the jury. An explanation of a similar Arizona ruling is offered in State v. McKinney, 108 Ariz. 436, 501 P.2d 378 (1972). There, a defendant testified to facts showing entrapment. The state offered no rebuttal. The defendant had sought from the state the name of the informant who, he said, had set him up, and the court denied his motion seeking the information. The court also denied the defendant’s motion for a continuance to obtain the presence of the informant at the trial. The Arizona Supreme Court pointed out that a defendant is in a weak position to establish entrapment. While it is an affirmative defense, once the defendant has raised it, the burden of proof shifts to the state, the court held.

The authority cited by the Arizona court for the shifting of the burden of proof is from federal court cases, primarily United States v. Brown, 421 F.2d 1283 (9th Cir. 1970). There the court of appeals affirmed the conviction but stated the federal standard according to which the government must prove lack of entrapment beyond a reasonable doubt if the defense has been raised. The Brown decision was based on Notaro v. United States, 363 F.2d 169 (9th Cir. 1966), in which it was noted that the Supreme Court in the Sorrells and Sherman cases had not established the nature of the burden of proof for federal entrapment cases and had not determined by which party it was to be borne.

Wherever the burden may lie in federal cases, as we noted at the outset of this opinion, it has been placed on the defendant by statute in Arkansas. Even if the matter had been discussed in the Sorrells and Sherman cases, those were not decisions on constitutional law. They only dealt with federal law and thus would not be binding on the states. See Sylar v. State, supra. We have no quarrel with the proposition that Bryant should have been present to testify about his role in the selling of the marijuana to Powell. McCaslin does not argue that here, and properly so, as he did not pursue it with the trial court. The only issue before us is whether McCaslin’s testimony established entrapment as a matter of law. We hold it did not, and it was thus proper for the question to be submitted to the jury.

Affirmed.

Purtle, J., dissents from this opinion.

Hickman and Glaze, JJ., concur with this opinion.

Tom Glaze, Justice,

concurring. I certainly agree with the result reached by the majority, but the majority opinion confuses matters by citing and discussing cases from Mississippi, Arizona and United States Ninth Circuit Court of Appeals that are simply inapplicable. Arkansas law specifically provides that entrapment is an affirmative defense which the defendant must prove by a preponderance of the evidence. However, the defendant’s burden does not arise until the state has met its burden of proof as to the elements of the offense with which he is charged. Fairchild v. State, 284 Ark. 289, 681 S.W.2d 380 (1984), cert. denied, 471 U.S. 1111 (1985); Spears v. State, 264 Ark. 83, 568 S.W.2d 492 (1978).

Here, the state undisputedly met its burden of proof. In fact, the appellant admitted his complicity in the sale and delivery of the marijuana to police officer Powell. Since only the appellant’s testimony — that he had been entrapped — conflicted with the state’s proof that he willingly committed the crime, the appellant failed to meet his burden of proving his affirmative defense. Arkansas law is well settled that a jury is not bound to believe the appellant’s story. This court’s decision should end at this point. Since it does not, I remain hopeful that today’s decision in no way suggests this court is entertaining the idea that the respective burdens of proof of the state and defendant in cases where the defense of entrapment is raised should be reanalyzed or reshuffled along the views expressed in the cases from other jurisdictions discussed in the majority opinion. If such a suggestion is intended, I am unequivocally against such an idea.

John I. Purtle, Justice,

dissenting. We are called upon frequently to review cases involving allegations of entrapment by various law enforcement agencies. This case, like White v. State, 298 Ark. 163, 765 S.W.2d 949 (1989), and many others, was initiated by the. police. Naturally, the scheme included an informant who has a criminal record and is facing another trip to the penitentiary, and an “undercover” law enforcement person — in this case a woman.

The informant in this case faced not just a sentence involving a shooting; he faced a sentence for shooting with intent to kill. His desire to obtain favorable action in his own criminal case no doubt weighed most heavily on his mind as he went about his designated job of setting people up for criminal charges. The fact that the informant’s rent was paid by the police, as were his expenses such as travel, food, drinks, pool fees, and game machine costs, did not reduce his desire to trap the appellant. The informant was also paid $30 to $50 “by the sale” for each transaction for all those he could get to deal in marijuana. The state also paid the rent and expenses for the undercover officer and her live-in state police boyfriend.

In the present case only two people know what actually occurred when this deal was planned — the appellant and the informant. The informant, pursuant to a subpoena issued by the state, showed up at the commencement of the trial but mysteriously disappeared for the rest of the trial. This disappearing act, although not new, is becoming commonplace in this type of case. Had this witness been compelled to testify, it is not too inconceivable that the jury might have believed that indeed the appellant was entrapped. The defense counsel had caused a subpoena to be issued for the same witness but it was not served by the sheriff because he had already served the state’s subpoena.

The jury was shown a video tape of the meeting of Bryant, McCaslin, and Powell, at Powell’s Russellville apartment, in which McCaslin sold Powell a quarter of a pound of marijuana for $650. All of this, of course, had been pre-planned by the officers and the informant. No doubt Bryant coached the appellant on what to do and say when they arrived at the undercover agent’s apartment. If the appellant and the informant had rehearsed the transaction, the video could not have been more incriminating to the appellant’s case. The missing witness was absolutely essential to the defense. The state offered no explanation for his mysterious disappearance, but I have no doubt whatsoever that the state could have produced him for trial.

In Arkansas, entrapment is by statute an affirmative defense, Ark. Code Ann. § 5-2-209(a) (1987). Consequently the tradition has been that the defendant must bear the burden of proof on this defense by a preponderance of the evidence. Ark. Code Ann. § 5-1 -111 (d) (1987); see Walls v. State, 280 Ark. 291, 658 S.W.2d 362 (1983); and Spears v. State, 264 Ark. 83, 568 S.W.2d 492 (1978). The majority correctly notes that McCaslin has cited no precedent from this jurisdiction in which it was held that entrapment was established as a matter of law solely on the basis of the unrebutted testimony of the defendant. However, I have found no Arkansas decision where this issue has been presented to an appellate court.

Ordinarily there is no requirement that the trier of fact believe a defendant’s testimony. Thus, given the defendant’s burden of proof on the issue of entrapment, this question of fact was submitted to and decided by the jury. However, it is significant that the state made no effort to offer any evidence to rebut the appellant’s version of the facts.

McCaslin has cited and quoted extensively from Sorrells v. United States, 287 U.S. 435 (1932), and also has cited Sherman v. United States, 356 U.S. 369 (1958). These two decisions define the entrapment defense in the federal courts, but they are not binding on this court. The Supreme Court’s discussion of the entrapment defense is, however, quite instructive.

The United States Supreme Court discussed the function of the entrapment defense in Sherman v. United States, supra:

In Sorrells v. United States, 287 U.S. 435, this Court firmly recognized the defense of entrapment in the federal courts. The intervening years have in no way detracted from the principles underlying that decision. The function of law enforcement is the prevention of crime and the apprehension of criminals. Manifestly, that function does not include the manufacturing of crime. Criminal activity is such that stealth and strategy are necessary weapons in the arsenal of the police officer. However, “A different question is presented when the criminal design originates with the officials of the Government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.” 287 U.S. at 442. Then stealth and strategy become as objectionable police methods as the coerced confession and the unlawful search. Congress could not have intended that its statutes were to be enforced by tempting innocent persons into violations.

The majority opinion discusses in some detail several Mississippi, Arizona, and Ninth Circuit Court of Appeals decisions that essentially shift the burden to the state once the defense has been raised. As noted by the Arizona Supreme Court in State v. McKinney, 108 Ariz. 436, 501 P.2d 378 (1972), a defendant is in a very poor position to establish entrapment. The question to be decided is whether we should do as the Mississippi and Arizona courts have done and hold that, by presenting a prima facie case of entrapment, a defendant has satisfied his burden of proof at that point and that the burden then shifts to the state to come forward with evidence that the defendant was not entrapped.

The nature of entrapment is such that it is often unlikely the act itself will be observed by anyone other than the defendant and the government operative. Moreover, I cannot help but note the pattern of “unavailability” of these “informants” to testify at trial. A defendant who asserts entrapment necessarily places himself in the posture of admitting commission of an illegal act. Spears v. State, supra; and Brown v. State, 248 Ark. 561, 453 S.W.2d 50 (1970). He thus is in a very weak position to convince a jury that he was indeed induced by the state to commit a crime.

The state cites Walls v. State, supra, and Leeper v. State, 264 Ark. 298, 571 S.W.2d 580 (1978), in support of its contention that entrapment may be established as a matter of law only where there are no disputed facts. In Leeper, there was testimony by the undercover officers who participated in the illegal whisky purchase. The “informant” also testified. In Walls, the informant was not present to testify. However, an undercover state police officer testified that, while the alleged informer had “paved the way” for the drug sale, he was not, to the officer’s knowledge, employed by or otherwise compensated by the state police. That left open the question whether, in the words of Ark. Code Ann. § 5-2-209(b) (1987), the alleged informant was “a person acting in cooperation with” a law enforcement officer. Walls is distinguishable from the present case because here there is no dispute concerning the fact that Bryant was acting in cooperation with the police.

There is absolutely no rebuttal by the state of McCaslin’s testimony that Bryant supplied the marijuana and induced him to make the sale. The majority cites no case holding that the testimony of a defendant asserting entrapment may not establish the defense as a matter of law if the state has produced no rebuttal evidence. Nor have I found any such case. Since this question is one of first impression in this jurisdiction, we should strive to insure that this decision is founded upon solid principles of law and justice.

I conclude that we should follow the decisions from other jurisdictions holding that the burden of proving the defense may be satisfied by the testimony of the accused unless that testimony is rebutted by evidence produced by the state. Because an accused must in effect admit having committed what would otherwise be an offense in order to take advantage of the entrapment defense, it is of no consequence whether the state must prove lack of entrapment beyond a reasonable doubt. That is so because assertion of the defense of entrapment does not negate an element of the crime. See E. Osenbaugh, The Constitutionality of Affirmative Defenses to Criminal Charges, 29 Ark. L. Rev. 429 (1976). The overall burden of proof, or the “burden of persuasion” as Professor Osenbaugh calls it, remains with the defendant on the issue of entrapment. However, the state must go forward with the evidence when the defendant’s evidence has presented a prima facie case on the issue. When the state is unable to produce any evidence to dispute that evidence, even if it consists only of the testimony of the accused, a verdict should be directed.

The police in this case at the least actively participated in the crime; at worst the police actually were the major factor that precipitated this crime. Under such circumstances, it is not unreasonable to place upon the state the burden of establishing that the defendant was not entrapped. I would reverse and dismiss because, in my opinion, it was the police who planned and executed this crime. After all, the function of law enforcement does not include the manufacturing of criminal activity.


author: Tom Glaze, Justice.

text:
    James E. ATCHISON v. STATE of Arkansas
    CR 88-154
    767 S.W.2d 312
    Supreme Court of Arkansas
    Opinion delivered April 3, 1989

      Sexton Law Firm, P.A., by: John R. VanWinkle, for appellant.

      Steve Clark, Att’y Gen., by: 01 an W. Reeves, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

This is an appeal from the trial court’s denial of the appellant’s pro se motion for reduction of sentence pursuant to Ark. Code Ann. § 16-90-111 (1987). The trial court treated the appellant’s motion as a petition for post-conviction relief under A.R.Cr.P. Rule 37.1. Appellant’s sole argument on appeal is that the trial court’s finding is clearly against the preponderance of the evidence. We disagree and therefore affirm.

Appellant was charged with four counts of burglary, four counts of theft of property, and with being a habitual criminal. Pursuant to a plea agreement, the appellant pled guilty to all counts and was sentenced to imprisonment for twenty years with five years suspended. Appellant filed a pro se motion for reduction of sentence alleging, among other things, that he only accepted the plea bargain because he was threatened with more prison time by his court appointed attorney and that his sentence was too harsh for his crime. The trial court appointed an attorney for the appellant, and a hearing was held on appellant’s motion. At this hearing, the appellant’s main argument was that his sentence should be reduced because he had given information to Noel Harvey, Captain of the Fort Smith Police Department, who in return had promised him that he would only have to serve a few years in prison for his crimes. The only relief the appellant sought was a reduction of his sentence.

All parties agree that Officer Harvey’s intervention on the appellant’s behalf resulted in the appellant being released from jail on a signature bond. Officer Harvey testified that he helped the appellant because the appellant had told him that he could locate some stolen property and provide information to help with some felony arrests. Apparently, the appellant did give the police some information, but according to Officer Harvey the information did not lead to any arrests. When we review the evidence presented at the hearing, we find a conflict in testimony about the agreement between the appellant and Officer Harvey. Appellant testified that he had an agreement with Officer Harvey that if he gave him information, Officer Harvey would help him out so that he would only have to serve a few years in prison. Officer Harvey testified that he never promised the appellant that he would help him get a reduced sentence, but instead he told the appellant that if he was able to make a relatively large case, it might help him with the prosecuting attorney’s office. Paul Hughes, appellant’s court appointed attorney at the time of his plea agreement, testified that he called Officer Harvey, but the officer told him that he could not help the appellant.

When there is a conflict of testimony, it is the trial judge’s job to resolve it. Huff v. State, 289 Ark. 404, 711 S.W.2d 801 (1986). The trial judge is not required to believe any witness’s testimony, especially the testimony of the accused, since he has the most interest in the outcome of the proceedings. Id. Here, the trial court believed Officer Harvey’s testimony that he made no agreement with the appellant to get him a reduced sentence. Further, the trial judge found that the appellant received a fair sentence, which was far below the statutory limits. This court has repeatedly held that we will not reverse the trial court’s denial of post-conviction relief unless the trial court’s findings are clearly against the preponderance of the evidence. See, e.g., Madewell v. State, 290 Ark. 580, 720 S.W.2d 913 (1986). Since there was evidence presented at the hearing to support a ruling either way, we cannot say the trial court’s ruling is clearly against the preponderance of the evidence. See Ackers v. State, 294 Ark. 47, 740 S.W.2d 620 (1987). For the reasons stated above, we affirm.

       In Williams v. State, 291 Ark. 255, 724 S.W.2d 158 (1987), this court affirmed the trial court’s treatment of a motion under the same statutory provision as a Rule 37 petition.


author: Jack Holt, Jr., Chief Justice. Steele Hays, Justice,

text:
    Russell Gene JERNIGAN v. Hubert Lynn CASH and James H. Wilson
    89-29
    767 S.W.2d 517
    Supreme Court of Arkansas
    Opinion delivered April 10, 1989

      Dale Lipsmeyer, for appellant.

      Laser, Sharp, Mayes, Wilson, Bujford & Watts, P.A., by: Walter A. Kendel, Jr., for appellee Hubert Lynn Cash.

      Lizabeth Lookadoo, for appellee James H. Wilson.
   Jack Holt, Jr., Chief Justice.

Appellee Hubert Lynn Cash filed suit against appellant Russell Gene Jernigan alleging that Jernigan damaged Cash’s automobile by negligently driving his own automobile into Cash’s. Jernigan denied this allegation and moved to join appellee James H. Wilson, whose vehicle was also damaged in the incident, as a plaintiff pursuant to Ark. R. Civ. P. 19(a). The trial court granted his motion. After trial without jury, the trial court found that Jernigan was negligent and entered judgment for Cash in the amount of $7,500.00 and for Wilson in the amount of $1,143.16. From this order, Jernigan appeals. We find that the trial court erred in allowing an amendment to Cash’s complaint and reverse and remand.

On June 7,1986, Jernigan and a friend, Hayden Booth, went to the “Party Tyme” bar in Morgan, Arkansas. Jernigan had several drinks and then started playing pool. A stranger, hereinafter referred to as John Doe, approached Jernigan and began harassing him. John Doe was asked to leave “Party Tyme” but returned a short time later and renewed the harassment. Eventually, both Jernigan and Booth were asked to leave “Party Tyme” because they were arguing loudly. While Jernigan and Booth were sitting in Jernigan’s car with the motor running in a parking lot adjacent to “Party Tyme,” Jernigan was approached by John Doe, who began to hit him through the open window. John Doe then told Jernigan to get out of the car; Jernigan refused. Thereafter, John Doe informed Jernigan that if he would not get out of the car, he would shoot him. According to Jernigan, Doe drew a gun from his waist. Booth testified that he heard the threat but did not see a gun. Jernigan put his vehicle in gear, backed up, and drove off in an erratic manner, running into several vehicles, two of which were owned by appellees. Jernigan exited his car immediately and ran from the scene.

Jernigan first contends that there was no substantial evidence for the trial court to find him negligent in that he acted reasonably in an emergency situation.

When a case is tried by a circuit court sitting without a jury, our inquiry on appeal is not whether there is substantial evidence to support the factual findings of the court, but whether the findings are clearly erroneous (clearly against the preponderance of the evidence). Bassett v. Hobart Corp., 292 Ark. 592, 732 S.W.2d 133 (1987). See also Superior Improvement Co. v. Mastic Corp., 270 Ark. 471, 604 S.W.2d 950 (1980). In reviewing a finding of fact by a trial court, we consider the evidence and all reasonable inferences therefrom in a light most favorable to the appellee. McCartney v. McLaughlin, 296 Ark. 344, 756 S.W.2d 907 (1988).

The test for negligence is whether the defendant, in light of all the circumstances, acted as a person of ordinary prudence would have acted under the same or similar circumstances. Earnest v. Joe Works Chevrolet, Inc., 295 Ark. 90, 746 S.W.2d 554 (1988). Verson Allsteel Press Co. v. Garner, 261 Ark. 133, 547 S.W.2d 411 (1977).

When a person is confronted with a sudden emergency created by the conduct of another, his course of conduct must be measured by what a man of ordinary prudence would do in an emergency, rather than what he might do on more mature deliberation. James v. South Central Stages, Inc., 160 F. Supp. 288 (W.D. Ark. 1958); Keene v. George Enterprises, 145 F. Supp. 641 (W.D. Ark. 1956). See Lambert v. Saunders, 205 Ark. 717, 170 S.W.2d 375 (1943); Missouri Pacific Transportation Co. v. Mitchell, 199 Ark. 1045, 137 S.W.2d 242 (1940). See also Restatement (Second) of Torts § 296 (1965). The existence of an emergency does not automatically absolve one from liability for his conduct; the standard still remains that of a reasonable man under the circumstance. Ferrer v. Harris, 55 N.Y.2d 285, 434 N.E.2d 231, 449 N.Y.S.2d 162 (1982).

The fact that a person was voluntarily intoxicated at the time of the occurrence can be considered by the trier of fact in determining whether he was negligent. See Mills v. Silbernagel & Co., 204 Ark. 734, 164 S.W.2d 893 (1942); Powell v. Berry, 145 Ga. 696, 89 S.E. 753 (1916). See also Inderrieden v. Phillips, 294 Ark. 156, 741 S.W. 255 (1987). Ordinary care is measured by what a prudent sober man, not a prudent intoxicated man, would do under like circumstances. Little Rock Ry. & Elec. Co. v. Billings, 173 F. 903 (8th Cir. 1909); Powell, supra.

When viewed in a light most favorable to appellees, the evidence shows that Jernigan drank several bourbon and Cokes before the accident; he was threatened by John Doe; John Doe did not employ a gun; and in response to these threats, Jernigan took a path of retreat that caused extensive damage to appellees’ vehicles. After considering this evidence, the trial court determined that Jernigan was negligent in that a reasonable person would not have created a “demolition derby” in response to the circumstances with which Jernigan was confronted.

We cannot say that the trial court’s finding that Jernigan was negligent is clearly erroneous. Whether Jernigan acted reasonably under the circumstances is a matter for the trier of fact to determine. See Jones v. Ferguson, 243 Ark. 698, 421 S.W.2d 607 (1967). See also Elk Corp. of Arkansas v. Jackson, 291 Ark. 448, 725 S.W.2d 829 (1987). Simply stated, we decline to substitute our judgment for that of the trial court.

Jernigan also argues that the trial court erred in allowing an amendment to appellee Cash’s complaint after he had rested his case.

In his complaint, Cash asked for $4,314.04 (cost of repair) in damages to his new 1986 Honda Accord. Testimony was introduced at trial that he paid $13,500.00 for the car; repair costs were $4,314.04; the car was worth five or six thousand dollars after the accident; and the car still has air leaks, and its doors rattle and will not shut. At the'close of trial, the following exchange took place:

The Court: I’m awarding Mr. Wilson $1,143.16 and Mr. Cash $7,500.00. I know what Hondas are worth. I drive one. I feel sorry for him. I wouldn’t trade mine for any other car. Maybe a Porsche 944 Turbo, but — -that’s a good car and I feel for him.
Mr. Staten (Cash’s counsel): Your Honor, for the record, in my complaint I believe that we only asked for damages in the amount of the repair bill and I’m going to—
The Court: Well, that’s all you’re entitled to.
Mr. Staten: Well, I was going to amend my complaint since there is still — this trial is bifurcated and open-end damages.
The Court: You should have done that before you came in here. What did you pray for?
Mr. Staten: The amount of the repair bill.
The Court: Forty-three fourteen.
Mr. Staten: Four Thousand three hundred fourteen dollars and four cents.
The Court: I think he’s been damaged more than that. I really do.
Mr. Staten: I think he has too, your Honor, based upon the proof I found out about today. And since the trial is not over yet and judgment technically has not been entered—
The Court: All right, I’ll allow you to amend it. I think like I say, maybe I know too much about Hondas but I know a brand new Honda with a hundred miles on it and it gets wrecked like this and you say I’ve only been damaged forty-three hundred dollars, that car has appreciated a lot more than that because I know what the value of a Honda is. It stays very high and his would have appreciated a lot more than that.
The Court: I’m going to award him $7,500.00.1 think he was damaged that much.
Mr. Lippsmeyer (Jernigan’s counsel): Your Honor, for the record, I’d like to object to allowing Mr. Cash to amend the complaint—
The Court: It’s discretionary and I’m going to do it.

Granted, the proper measure of damages for damage to an automobile is the difference in the fair market value of the automobile before and after the occurrence. AMI 2210. Notwithstanding, by making biased comments concerning the value of Hondas, the trial judge induced or persuaded Cash to move to amend his complaint to pray for additional damages to his car. In effect, the judge made the motion to amend. This conduct was improper. A trial judge should refrain from actions that tend to favor one litigant over another. Western Coal & Mining Co. v. Kranc, 193 Ark. 426, 100 S.W.2d 676 (1946).

Under the circumstances, we conclude that the trial court abused its discretion in allowing the amendment. We reverse and remand.

Reversed and remanded.

Glaze, J., not participating.

Hays, J., dissents.

Steele Hays, Justice,

dissenting. This was a bifurcated trial before the court. Appellant Russell Gene Jernigan (defendant below), testified that he had been drinking at the Party Tyme bar from 10:00 p.m. to 12:30 a.m., when he was asked to leave due to an altercation with another patron, who then followed him to his car and struck him several times through the car window. He said this individual, identified only as “John Doe,” then pointed a pistol at him and ordered him out of the car, presumably to fight. Jernigan made a frenzied attempt to escape and crashed into several parked vehicles in what the trial judge aptly characterized as a “Demolition Derby.” One of the parked vehicles belonged to appellee Hubert Lynn Cash (plaintiff below). Cash testified that his vehicle, a new Honda, had been purchased the day of the collision at a price of $13,500, that it cost $4,314.04 to repair the damage and the value of the car had been reduced to only $5,000 or $6,000.

As with most bench trials, the dialogue between court and counsel at the close of the case was casual and the trial judge commented that the damage to the new Honda exceeded the amount of the repair bill — a fairly obvious fact in view of the testimony. Mr. Cash’s counsel then remarked that he intended to amend the complaint, which, in the absence of prejudice, a party can now do “at any time without leave of court.” ARCP Rule 15(a). The trial judge permitted the amendment over appellant’s general objection. The issue of prejudice was not argued then or now.

The majority concludes that the trial judge “induced” or “persuaded” the appellee’s amendment to the complaint and by so doing abused his discretion. I respectfully disagree. The trial judge has broad discretion under Rule 15, and that discretion was not abused by the trial judge merely by observing what was obvious, that the damage to the Honda plainly exceeded the amount of the repair bill. Hogue v. Jennings, 252 Ark. 1009, 481 S.W.2d 752 (1972). I would affirm.


author: Darrell Hickman, Justice.

text:
    Don RAGAR v. Joseph (Buz) HOOPER, et al.
    89-70
    767 S.W.2d 521
    Supreme Court of Arkansas
    Opinion delivered April 10, 1989

      David Hodges and Gene O’Daniel, for appellant.

      Friday, Eldredge & Clark, by: Richard D. Taylor, for appellees Shackleford Street Development Company and Flake & Company, Inc.

      Wallace, Dover & Dixon, P.A., for appellees Tad Krug, Sheldon Rand, Alan Rothman, James Rasco, Howard E. Hardin, Tim Farrell, Leon Teske, Aaron Lubin, Gary Burris, Larry Wilson, Milt Rothman, William Payne, M.D. Graham, Robert Winter, C. Dudley Rogers, and Robert Lapin.
   Darrell Hickman, Justice.

This is the fourth time this case has been before us, and unfortunately it is still not resolved. Hooper-Bond Limited Partnership Fund III v. Ragar, 294 Ark. 373, 742 S.W.2d 947 (1988); Ragar v. Hooper-Bond Limited Partnership Fund III, 293 Ark. 182, 735 S.W.2d 706 (1987); Hooper v. Ragar, 289 Ark. 152, 711 S.W.2d 148 (1986).

The appellant, not satisfied with the results of his lawsuit in circuit court, filed this time in chancery court, essentially seeking to litigate issues already resolved, or those that could have been resolved. The chancellor ruled that two counts in the appellant’s complaint directed at Flake & Company and Shackleford Street Development Company were barred by the doctrine of res judicata. The chancellor’s ruling is affirmed in that regard. Swofford v. Stafford, 295 Ark. 433, 748 S.W.2d 680 (1988); Talbot v. Jansen, 294 Ark. 537, 744 S.W.2d 723 (1988).

The remaining issue concerns a summary judgment granted in favor of the sixteen appellees who were limited, partners in the Shackleford Street Development Company. The appellant, a limited partner himself, had asked for an accounting from the other limited partners. On February 4,1988, the appellees filed a motion for summary judgment, attaching affidavits and documents which they claimed constituted an accounting. The appellant responded that discovery had not been completed. No counter affidavits were attached to his response. The chancellor scheduled a hearing on the motion for May 12.

Before the summary judgment motion was filed, the appellant had notified the sixteen limited partners that he would take their depositions. The partners asked for a protective order. At a March 15 hearing on the protective order, the chancellor ruled, without notice, that the summary judgment would be granted, apparently without ruling on the protective order. There is no record of exactly was transpired at the hearing.

The appellant protested that the early ruling deprived him of the opportunity to take the partners’ depositions and file counter affidavits before the scheduled hearing date.

ARCP Rule 56(c) reads as follows:

The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party, prior to the day of hearing, may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages. (Italics supplied.)

The chancellor did not have to set the matter for a hearing twelve weeks away. But having done so, he should not have granted summary judgment before that day unless it clearly appeared that Ragar could produce no proof contrary to the affidavits. We distinguish the case of BWH Inc. v. Metropolitan Nat’l Bank, 267 Ark. 182, 590 S.W.2d 247 (1979), in which the court held that the appellant’s desire for further discovery, in a promissory note case, was a mere fishing expedition. Here, it is not so clear, as it was in BWH, that the appellant could not obtain the necessary proof to rebut the allegations in the summary judgment motion. See First Nat’l Bank v. Newport Hospital & Clinic, Inc., 281 Ark. 332, 663 S.W.2d 742 (1984).

We do not address the appellant’s argument that Rule 56 requires ten days notice of an intent by the trial court to rule on a motion for summary judgment.

Affirmed in part and reversed and remanded in part.

Holt, C.J., not participating.


author: Robert H. Dudley, Justice.

text:
    Thomas Truman HAYES, Jr. v. STATE of Arkansas
    CR 88-200
    767 S.W.2d 525
    Supreme Court of Arkansas
    Opinion delivered April 10, 1989

      Terry Crabtree, for appellant.

      Steve Clark, Att’y Gen., by: Oían W. Reeves, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

The primary issue in this criminal case is whether the trial court erred in refusing to allow the appellant to testify that he was willing to take a polygraph examination. The trial court’s ruling was correct and, accordingly, we affirm the convictions.

Arkansas law prohibits the admission of polygraph test results, except upon a written stipulation of the parties. See Ark. Code Ann. § 12-12-704 (1987); Foster v. State, 285 Ark. 363, 687 S.W.2d 829 (1985), cert. denied, 482 U.S. 929, 107 S. Ct. 3213 (1987). Such stipulation agreements are to be scrutinized carefully by the courts, and will not be honored if any questions or problems arise. See, e.g., Foots v. State, 258 Ark. 507, 528 S.W.2d 135 (1975). Further, we have held that any reference to a polygraph test, in the absence of an agreement or other justifiable circumstances, ordinarily constitutes prejudicial error. Roleson v. State, 272 Ark. 346, 614 S.W.2d 656 (1981). In Roleson v. State, 277 Ark. 148, 640 S.W.2d 113 (1982), we held that the trial court did not commit error when it refused to allow a line of questioning which might have led to the mention that a lie detector test had been taken. We noted that the trial court bore the responsibility of preventing any occurrence which might warrant a mistrial in the case. We similarly approve of the trial court’s ruling in this case.

Our holding is in accordance with the case law in the majority of other jurisdictions and with several noted treatises. See Annotation, Propriety and Prejudicial Effect of Comment or Evidence as to Accused’s Willingness to Take Lie Detector Test, 95 A.L.R.2d 819 (1964); Gianelli and Imwinkelried, Scientific Evidence § 8-1 to 8-8 (1986); Wharton, Wharton’s Criminal Evidence § 593 (14th ed. 1987); and Underhill, Underhill’s Criminal Evidence § 150 (5th ed. 1956). These sources state the general rule is that a defendant’s willingness or unwillingness to take a lie detector test is inadmissible in evidence. The refusal to allow any reference to the accused’s willingness to take a polygraph test is based on the inadmissibility of the results of such a test, once taken. These sources point out that the self-serving nature of such testimony destroys any probative value it might have, especially since an accused may be aware that the results of such a test are generally inadmissible. While it is true that allowing testimony of this nature will not always constitute prejudicial error, Van Cleave v. State, 268 Ark. 514, 598 S.W.2d 65 (1980), we cannot fault the trial court’s use of caution in excluding such testimony.

The appellant also tries to attack the sufficiency of the evidence to support his conviction. However, he did not preserve this issue for appeal by making a motion for directed verdict below, or by questioning the sufficiency of the evidence against him in any other manner. See A.R.Cr.P. Rule 36.21(b); Hughes v. State, 295 Ark. 121, 746 S.W.2d 557 (1988).

Affirmed.


author: Robert H. Dudley, Justice. John I. Purtle, Justice, concurring.

text:
    Van Martin RICHIE v. STATE of Arkansas
    CR 88-44
    767 S.W.2d 522
    Supreme Court of Arkansas
    Opinion delivered April 10, 1989

      Pamela S. Osment, for appellant.

      Steve Clark, Att’y Gen., by: Oían W. Reeves, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

In 1978, the appellant was charged in an eight count information with committing the following crimes against Dorothy Mullen: capital murder, kidnapping, rape, and robbery; and committing the following crimes against Axie Crinen attempted capital murder, kidnapping, rape, and robbery. The information did not specify which charges constituted the underlying felony or felonies to the capital charges. The next year, in 1979, appellant pleaded guilty to all eight counts and was sentenced to life without parole on the capital murder conviction and to life on each of the other seven convictions. In 1986, he filed a Rule 37 petition seeking to have the convictions for the underlying felonies set aside. On February 9,1988, the trial judge wrote “Rule 37 denied” in his docket book. No judgment was entered, and the appellant was not informed of the ruling. Under such circumstances we granted appellant’s motion for a belated appeal.

On September 12, 1988, the Attorney General apparently recognized that a denial of post-conviction relief without specifying any findings was reversible error and, by motion, asked us to remand the case to the trial court so that a judgment with findings of fact could be entered showing that the prisoner was not entitled to relief. On December 5, 1988, we granted the State’s motion and remanded the case to the trial court so that the trial court could state the reason the prisoner was not entitled to relief. The Writ issued by this Court specifically provides: “Trial court is directed to comply with A.R.Cr.P. Rule 37.3(a).” That subsection of the rule provides: “If the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the trial court shall make written findings to that effect, specifying any parts of the files or records that are relied upon to sustain the court’s findings.” Instead of entering a judgment with findings stating the reason the prisoner was not entitled to relief, the trial court entered an order vacating the convictions and sentences for the underlying felonies of kidnapping, rape, and robbery in the capital murder of Dorothy Mullen. The order did not give any reasons for the refusal to vacate one or some of the felonies underlying the attempted capital murder of Axie Criner. The order was then lodged in this court pursuant to writ of certiorari.

The appellant argues on direct appeal that he is entitled to have all six convictions and six life sentences for the kidnappings, rapes, and robberies vacated because they are underlying felonies. The State admits that the appellant is entitled to have one conviction and sentence set aside as underlying the capital murder of Dorothy Mullen, and another set aside as underlying the attempted capital murder of Axie Criner. The State, in a veiled cross-appeal, argues that the trial court granted too much relief to appellant when it set aside the kidnapping, rape, and robbery charges underlying the capital murder of Dorothy Mullen.

It is interesting that a part of appellant’s argument is that he is entitled to have the three convictions and sentences for felonies underlying the Mullen capital murder vacated, when the trial court granted that very relief. We assume the argument is made because the appellant’s attorney questions the validity of the trial court’s order, but does not want to openly disclose the issue to the State. It is a jurisdictional issue which we raise on our own. After a notice of appeal is docketed and the record is filed in this court, the trial court loses jurisdiction, except for appointment of defense counsel. Glick v. State, 283 Ark. 412, 677 S.W.2d 844 (1984). Here, the belated appeal was docketed, and the record was filed. The trial court had lost jurisdiction at that point. We remanded and vested the trial court with jurisdiction only “to comply with Rule 37.3(a).” Thus, the trial court acted without jurisdiction in vacating three of the convictions. Since we hold the trial court’s order is void, we do not reach the issue of whether the State can cross-appeal from the order. See State v. Hurst, 296 Ark. 132, 752 S.W.2d 749 (1988).

Unquestionably, at least one of the felonies underlying the capital murder of Dorothy Mullen must be vacated, Martin v. State, 277 Ark. 175, 639 S.W.2d 738 (1982), and at least one of the felonies underlying the attempted capital murder of Axie Criner must be set aside. Rowe v. State, 275 Ark. 37, 627 S.W.2d 16 (1982). Appellant, however, urges us to vacate the kidnapping, rape, and robbery convictions as underlying the capital murder of Dorothy Mullen and to vacate the kidnapping, rape, and robbery convictions as underlying the attempted capital murder of Axie Criner, based upon Hill v. State, 275 Ark. 71, 628 S.W.2d 285 (1982).

In Hill, we stated:

We affirm the conviction and sentence for capital felony murder but set aside the lesser included offenses of kidnapping and aggravated robbery in connection with offenses against Donald Lee Teague. Ark. Stat. Ann. § 41-105(l)(a) and (2)(a) (Repl. 1977) [Ark. Code Ann. § 5-1-110 (á) (1) and (b)(1)] prohibit the entry of a judgment of conviction on capital felony murder or attempted capital felony murder and the underlying specified felony or felonies. Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981); Singleton v. State, 274 Ark. 126, 623 S.W.2d 180 (1981). (Emphasis added.)

“Underlying specified felony or felonies” means the felony or felonies set out in the information as underlying the capital murder charge. In Hill, we assumed that the underlying felony or felonies would always be set out in the information, or else the defense would request that it be so designated. We made such an assumption because the underlying felony or felonies become an element of the capital murder charge, Cozzaglio v. State, 289 Ark. 33, 709 S.W.2d 70 (1986), and it would seem that the defendant would always move to reduce a capital murder charge to a first degree murder charge if an underlying felony were not listed. However, in this case the information does not specify a felony or felonies underlying the capital murder charges, and the defense did not question the charges. Even so, the appellant is now entitled to some relief since the capital murder conviction and the attempted capital murder conviction each required at least one underlying felony which, in turn, merged into the capital murder. The doctrine of merger then prevents conviction and sentencing on the underlying felony.

The only issue to be decided is whether all of the felonies enumerated in separate counts merged into the two capital charges, or whether only one merged into each capital charge. The capital murder statute, Ark. Code Ann. § 5-10-101(a)(l), requires only one underlying felony to be merged into the capital murder conviction. It does not require that all other felonies charged at the same time be merged into the capital murder conviction. Accordingly, we hold that one felony conviction, the robbery conviction, was merged into the conviction for the capital murder of Dorothy Mullen, and likewise, the robbery conviction was merged into the conviction for the attempted capital murder of Axie Criner. The other convictions and sentences remain in effect.

Reversed.

Purtle, J., concurs.

John I. Purtle, Justice, concurring.

It is the duty of the state to make specific allegations in the information or amended information. In this case we have had to guess at the underlying felony. The trial court made a logical conclusion in deciding that all three felonies at issue supported the capital murder charge.

If we are to strictly construe criminal statutes we must conclude that the trial judge was right. Our guess as to the underlying felony is no better than his, but we are right because there are more of us. All four of the charges concerning the criminal acts against Dorothy Mullen grew out of one episode, and all four of the charges concerning the criminal acts against Axie Criner grew out of one episode. Perhaps the state intended to prove that all of the other felonies were supporting the capital felony murder charge and the attempted capital murder charge. See, e.g., Hill v. State, 275 Ark. 71, 628 S.W.2d 285 (1982). However, the prosecution and the court should not strive to multiply the crime and sentence beyond the facts. After all, the appellant cannot be expected to serve more than one life sentence.

The majority captions the decision as a reversal, but it seems to me to be more of an affirmance.


author: Robert H. Dudley, Justice. John I. Purtle, Justice,

text:
    Helen WADE v. MR. C. CAVENAUGH’S and Cigna Insurance Company
    88-245
    768 S.W.2d 521
    Supreme Court of Arkansas
    Opinion delivered April 10, 1989

      Riff el, King & Smith, by: Kirby Riffel, for appellant.

      Friday, Eldredge & Clark, by: Elizabeth J. Robben, for appellees.
   Robert H. Dudley, Justice.

At the initial hearing in this workers’ compensation case the Administrative Law Judge denied the appellant’s entitlement to additional benefits. The Administrative Law Judge’s order was affirmed by the full Commission. The Court of Appeals remanded the case to the Commission. See Wade v. Mr. C. Cavenaugh’s and Cigna Insurance Company, 25 Ark. App. 237, 756 S.W.2d 923 (1988). We granted a petition for review and now affirm the order of the Workers’ Compensation Commission.

I. Facts

On October 15, 1985, the appellant, Fleten Wade, was working the night shift as a cashier in a convenience store located in Black Rock. At about 4:00 a.m. the store was robbed, and one of the robbers struck the appellant on the left side of the face, momentarily knocking her unconscious. The police investigated the robbery, and she resumed her work. After her shift was finished a friend drove her to the emergency room of the hospital in nearby Walnut Ridge where a physician x-rayed her jaw. Later, a dentist, James Phillips, treated her for pain and inability to open her mouth. On October 21, he recommended she return to work. She was only able to work for two hours and returned to Dr. Phillips and complained of a loss of vision. He referred her to Dr. Joe Stainton, an ophthalmologist, but she was not happy with his treatment. Phillips then referred her to another ophthalmologist, Dr. Bobby McKee, of Jonesboro.

The claimant worked from October 23,1985, until November 10, 1985, when she was fired. There was testimony that her termination was the result of threejcash shortages. The record also contains testimony of a store bookkeeper who stated that the claimant was one of several employees who had cash shortages, and at least one of her shortagejs could be explained as a bookkeeping error. y

The claimant then went to Dr. Steven Flannigan, Chairman of the Department of Neurosurgery at the University of Arkansas Medical School who, in turn, referred her to a neuro-ophthalmologist, Dr. Walter Jay. She told Dr. Jay that her visual acuity diminished immediately after she was struck by the robber. Dr. Jay initially could not make any objective findings, so he hospitalized her for tests. After thorough testing he found there was no objective etiology for her visual loss. It was his opinion that the visual loss was psychological and he referred her to Dr. Gary Souheaver, a clinical neuro-psychologist who administered a Minnesota Multiphasic Personality Inventory and concluded that the most that could be said about her MMPI is that it would be associated with a high probability of alcohol or drug abuse, or both. Dr. Jay then referred the appellant to a psychoanalyst in Jonesboro, which was closer to her home. That psychoanalyst, Dr. Edwin Price, stated that the appellant did not relay a past history of blurred vision, or that she was refused unemployment benefits because of making a material misrepresentation on her application for unemployment. He attributed all of her emotional problems to the robbery and the blow to her face suffered on October 12, 1985.

However, the record reflects that a Memphis ophthalmologist had seen the appellant on June 17,1983, almost twenty-eight months before the October 1985 robbery. At that time she complained of headaches, pain around the left eye, and blurred vision in the left eye. In 1983 and 1984, he saw her seven times and hospitalized her twice for the same complaints. He also saw her after the robbery and was unable to connect any visual problem to her having been struck in the face during the robbery. In addition, he did not see any difference in her emotional state before and after the robbery.

Appellee paid for appellant’s medical treatment until March 1986, including her initial evaluation by Dr. Price, but refused to pay for further treatment, controverting appellant’s claim for additional temporary total disability benefits and medical benefits. After two hearings, an Administrative Law Judge denied appellant’s request for additional benefits. The Commission affirmed the Law Judge’s decision. The Commission found that appellant had failed to prove a causal connection between the compensable injury received during the robbery and the disability and additional benefits appellant claimed after her employment was terminated. Although the Commission found that appellant was upset by the robbery, it found that her emotional reaction did not rise to the level of a psychiatric problem or the level of disability within the meaning of Ark. Code Ann. § 11-9-102(5) (1987) [formerly Ark. Stat. Ann. § 81-1302(e) (Repl. 1976)].

The claimant’s five points of appeal can be reduced to three issues: (1) whether the Commission erred by not extending the benefit of doubt to the claimant on all factual determinations; (2) whether the Commission erred in finding that the claimant’s preexisting eye condition was not aggravated by the robbery; and (3) whether the Commission’s decision denying additional benefits was supported by substantial evidence.

II. Benefit of Doubt

The appellant first argues that the Commission erred by not giving her the benefit of the doubt on all factual questions. She bases her argument on our case of Brower Mfg. Co. v. Willis, 252 Ark. 755, 480 S.W.2d 950 (1972). It is true that in Brower, this court held that the claimant was entitled to the benefit of the doubt in every factual determination. However, this is no longer the law. Act 10 of 1986, Second Extraordinary Session, codified as Ark. Code Ann. § 1 l-9-704(c)(4) (1987) changed the existing law to provide that in determining whether a party has met its burden of proof, Administrative Law Judges and the Commission shall weigh the evidence impartially and without giving the benefit of the doubt to any party. In Fowler v. McHenry, 22 Ark. App. 196, 737 S.W.2d 663 (1987), the Court of Appeals noted this change in the law and determined that it should be applied retroactively to any case heard by the Administrative Law Judges or the Commission after the effective date of the act in June of 1986, regardless of the date of the claimant’s injury. See also Marrable v. Southern LP Gas, Inc., 25 Ark. App. 1, 751 S.W.2d 15 (1988). Thus, even though appellant’s injury occurred before the effective date of the act, the Commission correctly refused to give the appellant the benefit of the doubt in making factual determinations, since it reviewed the case well after the effective date of the act.

III. Pre-existing Injury

The appellant argues that she should not be denied additional workers’ compensation benefits merely because of evidence that she had diminished visual acuity which pre-existed her injury. Appellant correctly states the rule that when a preexisting injury is aggravated by a later compensable injury, compensation is in order. As the Court of Appeals said in Henson v. Club Products, 22 Ark. App. 136, 736 S.W.2d 290 (1987), the employer takes the employee as he finds him. The Commission did not dispute this point; rather, it merely stated that it did not find that the robbery had aggravated the appellant’s pre-existing eye condition.

IV. Substantial Evidence

An appellate court must affirm the Commission’s decision if it is supported by substantial evidence. Substantial evidence exists if reasonable minds could have reached the same conclusion. Here, there is substantial evidence to support the Commission’s conclusion.

Dr. Richard Drewry, Jr., who had treated appellant for her eye condition in 1983 and 1984, could find no connection between appellant’s eye problem and appellant’s being struck in the face during the robbery. He testified that there was no change in the December 1985 examination of appellant from his earlier examinations of her in 1983 and 1984. Further, Dr. Walter Jay, who specializes in neuro-ophthalmology, testified that, in his opinion, appellant suffered from psychological visual loss in 1983 and 1984, and that the loss pre-existed the October 12, 1985, injury. Thus, there was substantial evidence to support the Commission’s finding that appellant’s pre-existing eye condition was not aggravated by the robbery injury.

The appellant contends that the Commission erroneously based its decision on facts outside the record when it relied upon the observations made by the Administrative Law Judge at the initial hearing. The Court of Appeals may have accepted such an argument when it wrote, “[t]he Commission’s finding about the claimant’s physical reactions during her testimony before the law judge is not a matter that the Commission can see or judge for itself.” We wholly reject the argument and expressly hold that the Commission is entitled to rely on the Administrative Law Judge’s observations and comments made about the claimant’s demeanor, conduct, appearance or reaction at the hearing. Here, the Administrative Law Judge, in his opinion wrote:

Doctor Edwin Price, in his deposition, as noted above, does not feel, from his contact and treatment of the claimant, that the Employment Security Division’s rulings and claimant’s contact with same were significant. Having had benefit of observing the claimant during two (2) hearings, I note and the transcripts of same reflects, whenever this area was broached, either on questioning of the claimant or other witnesses, claimant appeared to become distraught, upset, and began crying, seemingly uncontrollably.

The transcript does reflect these emotional outbursts. The Commission relied on the above quoted statement and the transcript and wrote:

The preponderance of the evidence in the record is that even if Wade is too traumatized to work and in need of psychotherapy, the emotional problems stem not from the robbery but from the firing and accusations regarding the alleged cash shortages and the denial of benefits by the Employment Security Division. Not only do these other matters figure much more prominently in Dr. Price’s reports and testimony, but we find it significant that Wade became distraught and began crying during the hearing before the Administrative Law Judge when questioned about the ESD problems but not while describing the robbery. In the absence of a showing of incapacity to work or other [wise] function normally and of a definite causal connection between the emotional stress and the robbery, we are unable to award either disability or psychiatric benefits.

The Commission was entitled to rely upon the Law Judge’s observations and the transcript.

The appellant next argues, alternatively, that even if the Commission can consider the Administrative Law Judge’s observations, it did so in error here, because the appellant cried once while first discussing the robbery, and therefore, appellant argues, the observation is in error>, The short answer is that the first incident was not as intense as\the later ones, and it is clear from the record that the frequency of becoming upset and crying increased significantly when the appellant was testifying about being fired and being denied unemployment benefits.

The appellant argues that the Commission also relied on facts outside the record when it stated that Dr. Price found that the events surrounding the appellant’s firing and denial of unemployment benefits were a prominent cause of her emotional problems. In its opinion, the Commission specifically stated:

While Dr. Price opined that her emotional stress was serious enough to be disabling and that it was causally connected to the robbery, his opinion is necessarily based upon the history and description of symptoms given him by the patient. A physician’s opinion is not conclusive or binding on the commission. It merely constitutes competent evidence to be considered along with all other evidence. (Citations omitted.) . . . Not only do these other matters [the firing, accusations, and denial of benefits] figure much more prominently in Dr. Price’s reports and testimony, but we find it significant that Wade became distraught. . . .

Nowhere in its opinion does the Commission state that Dr. Price found the ESD matters to be more prominent in relation to appellant’s problems than the robbery itself. Indeed, the opinion clearly recognizes Dr. Price’s conclusion that the appellant’s problems were causally connected to the robbery. The Commission simply decided not to give much weight to that opinion in light of all the other evidence. This was a proper thing for the Commission to do, since the weight and credibility of a witness’ testimony are exclusively within the province of the Commission. See Price v. Servisoft Water Co., 256 Ark. 702, 510 S.W.2d 293 (1974); May v. Crompton-Ark. Mills, Inc., 253 Ark. 1080, 490 S.W.2d 794 (1973).

Appellant’s final contention about the Commission basing its decision on facts not in the record relates to the Commission’s finding that appellant had returned to the same duties and salary after her period of disability. Specifically, the Commission stated:

Wade was able to return to work until she was discharged for alleged cash shortages. There is a presumption that one returning to the same job with the same duties and salary has suffered no loss of earning capacity. Bragg v. Evans-St. Clair Inc., 15 Ark. App. 53, 688 S.W.2d 956 (1985). Although she says she is afraid to drive a vehicle, she drove herself to work. She repeatedly told the manager that she was “fine.” Although she expresses fear that the robbers might return, she refused an offered transfer to the day shift. She also told the Employment Security Division that she was ready, willing, and able to work. She gave no testimony that she had been unable to find or hold employment due to physical or mental injuries stemming from the robbery .... In the absence of a showing of incapacity to work or other [wise] function normally . . . we are unable to award either disability or psychiatric benefits.

The appellant argues that she testified that she was not fit to return to work, and that she was not able to perform her normal duties. She points out that she only worked 16 to 18 hours per week after the robbery, while before the robbery she never worked less than 32 hours per week. However, the evidence indicated that the decrease in appellant’s working hours was more attributable to her employer’s suspicions about her being responsible for the robbery and to the cash shortages she had been having, than to any inability to work on her part. The appellant also contends that the Commission should not have relied on the testimony of Marge Starling in concluding that she was fit to return to work. She argues that Starling’s testimony was discredited by the fact that appellant’s hours were substantially reduced after her return. Once again, the credibility of the witnesses is entirely up to the Commission. They did not have to believe appellant over the other evidence that she was, in fact, ready and able to return to work on October 21, 1985.

Finally, the appellant argues that the Commission did not give sufficient weight to Dr. Price’s testimony. The appellant argues that Dr. Price was the only person to give an opinion as to the cause of appellant’s problems; therefore, she contends that the Commission was bound to accept his opinion on the matter. First, it is not true that no other witness gave an opinion as to the cause of appellant’s problems. Dr. Richard Drewry, who had treated the appellant for her pre-existing eye condition prior to the robbery, testified that appellant’s emotional condition seemed to be exactly the same after the robbery as it was before the robbery. As the Administrative Law Judge noted in his opinion, Dr. Drewry was unable to connect appellant’s most recent injury to her continuing eye problem. Dr. Walter Jay, a neuro-ophthalmologist, who had examined appellant after her injury, concluded that appellant had sustained a psychological visual loss and that such a loss pre-existed the robbery injury. Even Dr. Price’s opinion is not unequivocal. While he does state that in his opinion the appellant’s problems are causally connected to the robbery, his testimony and reports reveal that a large factor in the appellant’s problems were the events surrounding her being fired and being accused of cash shortages, as well as the denial of unemployment benefits and the continuing litigation with regard to workers’ compensation benefits. Thus, there was testimony that conflicted with that of Dr. Price, and it was for the Commission to decide who to believe.

Even if Dr. Price had given the only medical opinion as to causation, the Commission would not be unconditionally bound by his opinion. As we stated in Wilson & Co. v. Christman, 244 Ark. 132, 424 S.W.2d 863 (1968), the Commission has never been limited to medical evidence only in arriving at its decision as to the amount or extent of a claimant’s injury. Rather, we wrote that the Commission should consider all competent evidence, including medical, as well as lay testimony, and the testimony of the claimant himself. Further, the Court of Appeals has stated several times recently that while medical opinions are admissible and frequently helpful in workers’ compensation cases, they are not conclusive. Henson v. Club Products, 22 Ark. App. 136, 736 S.W.2d 290 (1987); Boyd v. General Industries, 22 Ark. App. 103, 733 S.W.2d 750 (1987).

The holding of the Commission is affirmed.

Glaze, J., concurs.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I am not prepared to say that the appellant is or is not disabled from work as a result of the robbery or as a result of the firing. Nor do I believe that this court (or, for that matter, the Court of Appeals or the Commission) is able to render a just decision regarding appellant’s claim due to the completely erroneous statement of fact found in the Commission’s opinion. The Commission found it “significant that Wade became distraught and began crying during the hearing before the Administrative Law Judge when questioned about the ESD problems but not while describing the robbery.” (Emphasis added.) The record reflects otherwise.

I agree with the disposition made by the Court of Appeals. See Wade v. Mr. C. Cavenaugh’s and Cigna Insurance Co., 25 Ark. App. 237, 756 S.W.2d 923 (1988). The Court of Appeals correctly recognized that the statement of the facts by the Administrative Law Judge was incomplete, and that the summary of the record as considered by the Commission was inaccurate and downright misleading. Although there is no reason to suspect that it was intended to be incomplete and inaccurate, it nevertheless came out that way.

The crux of the matter is that the Administrative Law Judge did not listen to all of the evidence, and he did observe the appellant cry when her termination was mentioned. However, the full record discloses that she also cried on several other occasions, including those times when the robbery was mentioned.

This court’s standard of review on appeal is whether the decision of the Commission is supported by substantial evidence. Henson v. Club Products, 22 Ark. App. 136, 736 S.W.2d 290 (1987); and Boyd v. General Industries, 22 Ark. App. 103, 733 S.W.2d 750 (1987). This court does not reverse a decision of the Commission unless we are convinced that fair minded persons with the same facts before them could not have arrived at the conclusion reached. Henson, supra; and Boyd, supra. There was substantial evidence to support the Commission’s finding, but the Commission’s decision appears to have been substantially based on a completely erroneous interpretation of the record — i.e., that the appellant did not become visibly upset when the robbery was being discussed. The Commission was consequently handicapped and has not yet had an opportunity to rule on the case with all of the relevant evidence before it.

The evidence does not compel a decision one way or the other as to whether the appellant’s emotional problems stemmed from the robbery or from the firing or from both. However, it is clear that the Commission did not have a full picture before it in making its decision. In fairness to the appellant and the Commission, the case should be remanded as directed by the Court of Appeals. The Commission is entitled to rely on the findings of the Administrative Law Judge, but when the decision of the Commission is founded upon a completely erroneous interpretation of the record, the decision should not be allowed to stand.

The majority opinion of this court recognized that the statement of the facts in the Commission’s decision was in error. This court then dismisses this significant error by stating that “[t]he short answer is that the first incident [when the robbery was discussed] was not as intense as the later ones.” The majority simply does not address the argument that the decision of the Commission apparently was based on a completely erroneous statement of fact.

Fair minded men with different facts before them can and do arrive at different conclusions. Since the Commission did not have an opportunity to make a determination based upon all of the evidence, I would affirm the action of the Court of Appeals in remanding the case to the Commission for consideration on its merits.