text:
    TOWN OF HOUSTON, Arkansas; and Carl G. Hillis, Agent for Petitioners v. Anna CARDEN et al.
    97-715
    965 SW.2d 131
    Supreme Court of Arkansas
    Opinion delivered March 19, 1998

      James F. Goodhart, P.A., for appellants.

      McMillan, Turner, McCorkle & Curry, by: Ed McCorkle, for appellees.
   Robert L. Brown, Justice.

On June 23, 1995, appellant Carl G. Hillis and numerous other landowners petitioned the Perry County Court that 900 acres of land lying west of the Town of Houston be annexed into the town pursuant to Ark. Code Ann. § 14-40-601 (1987). The Perry County Court found that the petition was “right and proper” under Ark. Code Ann. § 14-40-603(a) (1987), and ordered the annexation.

Appellees Anna Carden and other landowners, who live within the annexed area (Carden) filed an action in circuit court against the Town of Houston (Town) and Hillis to prevent the annexation. Carden had received a permit to operate a hog farm in the annexed area, and under a Houston ordinance, she could not do so. At the ensuing trial, witnesses testified and evidence was received, following which the trial court entered an order annulling the annexation. The court specifically found that none of the five factors announced in Vestal v. Little Rock, 54 Ark. 321, 15 S.W. 891 (1891) had been satisfied.

At trial, Carden presented evidence on why the annexation should be annulled and called Jerry Lawson, Mayor of Houston. The mayor testified that the Town was one square mile, or 640 acres, in size and that the population was approximately 175 persons. He testified that the Town did not have a water treatment plant or sewer system and that it received its water by pipeline from the nearby town of Perryville. He admitted that while some of the residents who lived on the periphery of the proposed annexation received water from Houston, others used well water, and that Perryville had restricted the Town’s ability to add new customers. Mayor Lawson also testified that Houston had a volunteer fire department that included members who lived outside of the Town and that service was provided to out-of-town residents. He stated that the Town lacked a street department and equipment but that the Town had reached an agreement with the county judge for the maintenance of portions of a county road located within the proposed annexation.

Mayor Lawson admitted that Houston lacked a planning commission, other than the Town council, and that it did not provide for garbage pickup. He admitted that the population of the Town had decreased in the last twenty or thirty years and that the Town only had three businesses: a general store, an automobile-repair station, and a realty company. He testified that only three to five buildings had been built in the Town the last five years and that no building permits were in existence for the proposed annexation. Although he testified that he heard that persons had land for sale in the proposed annexation, he stated that he knew of no person who was platting land into blocks and lots.

Mayor Lawson described Ordinance No. 95-1, which was passed on December 14, 1995. He testified that that Ordinance was the only ordinance in effect in the Town and that it prevented commercial livestock operations from conducting business within the Town limits. In connection with the ordinance, he admitted that he “heard a lot of talk” about Carden, who lived within the proposed annexation and who had received permission from the Arkansas Department of Pollution Control and Ecology (Department) to operate a hog farm. He maintained that Carden’s activities were not the reason for the ordinance, but he admitted that he wrote to the Department and requested that it revoke her permit. The request was denied.

Mayor Lawson also told the circuit court that the Town had been considering annexation for at least four years in order to receive population-based matching-fund money and to improve its fire department by locating a pumper fire truck and fire house within the proposed annexation. He also believed that the proposed annexation would lead to better security, possibly in the form of a marshall; better lighting; better roads; and city water due to the possibility that the Town would expend money to provide these services.

He further explained that Ordinance No. 95-1 was an exercise of the Town’s police power to prevent nuisances from occurring within the Town’s limits. He agreed that the ordinance was passed, in part, due to noxious odors from a separate hog farm located to the east of town. In apparent contradiction of his testimony on direct examination, he explained that the population of Houston had grown in the last five to ten years with the construction of several new homes. He explained that if the Town had increased revenues, it would be more likely to spend money to provide water service to the annexed land.

Carden next testified that she owned 91 acres of land located within the proposed annexation that she used for raising cattle. She stated that she received her hog-farm permit on December 30, 1995. She related that although a hearing was held on her permit before the Department where appellant Carl Hillis and others testified in opposition, no appeal was sought by them after she was awarded the permit. In her opinion, the purpose of the annexation was to stop the operation of her proposed hog farm.

Carden then described the area to be annexed. She testified that the vast majority of the 900 acres was pasture and timber, with homes located on several parcels of land, and a greenhouse and a “New Beginnings” ministry on others. She testified that she was not aware of the operation of any businesses within the proposed annexation and that she did not know of any land for sale or land being platted for subdivisions. Carden also stated that no roads extended throughout the proposed annexation.

Appellee Toby Davis, who owned approximately 45 acres within the proposed annexation, testified that he raised beef cattle on his property. He stated that he had hoped to operate one or two chicken houses, but that now he could not do so as a result of Ordinance No. 95-1. He added that prior to the annexation, Hillis contacted him about supporting the annexation and told him: “[W]e need to pull together to stop hog farms.” It was clear from his conversation that Hillis was referring to Carden. He testified that there were no roads crossing through the proposed annexation and that he was not aware of any property being for sale.

The Town and Hillis then put on their case. Hillis, who owned 80.5 acres within the annexation, explained that landowners owning 27 parcels of land within the 900-acre proposed annexation joined him in his petition for the annexation. Hillis reiterated that the reasons behind the annexation were better fire and police protection, water, and street lights. He believed that he and other landowners would eventually develop portions of their land into a subdivision once the area was annexed and “absolutely” agreed that Carden’s plans to operate a hog farm played a role in the annexation because he believed it was the only way to address such a nuisance. He stated that he was well aware of the problems caused by hog farms because the noxious odors from the Brook Hog Farm, which was located east of Houston, were generally experienced throughout the community.

Hillis also testified about the use of the land in the proposed annexation. He stated that no people within the area were engaged in row-crop farming because of the quality of the land, which, he opined, was not suited for that farming activity. Much of the land, he said, was pasture, and timber was raised on only one plot. He did admit on cross-examination that he and other landowners used their pastures to raise cows and that numerous landowners held property that contained standing timber. He testified that most of the land was used for residential purposes and that there was a “New Beginnings” ministry, a church, a greenhouse, and a printing business in the affected area. He also admitted that he and other appellants were members of Citizens United Against the Proliferation of Hog Farms, which was engaged in various lawsuits throughout the state to prevent the establishment of hog farms.

Other proponents of the annexation living in the area testified that the best use of the area was not agricultural and that the hog farm would depreciate the value of their property and cripple their ability to enjoy the outdoors. They further claimed that improved Town services for them was a definite factor in favor of annexation.

The circuit court issued a letter opinion and subsequent order in which he annulled the annexation and found that the area in question did not meet any of the Vestal criteria. See Vestal v. Little Rock, supra. The circuit court specifically found:

• There was no evidence the town needed the annexed land for any proper town purpose like extension of streets, sewer, gas, or water.
• There was no evidence the town needed the area for business purposes.
• There was no evidence of crime in the town or surrounding areas.
• There was no evidence that the annexed land had a higher or better use for municipal purposes.
• Prevention of a hog farm is not a prong for annexation and stopping foul odors is not a reason for proper annexation of property.

The Town and Hillis contend on appeal that the circuit court erred in its decision for two reasons: (1) the court improperly shifted the burden of proof to the proponents of the annexation, and (2) the court’s findings were not supported by substantial evidence. We first consider the issue of the burden of proof.

The burden of proof in an action to prevent annexation is placed on the remonstrants to prove that the area should not be annexed. Gay v. City of Springdale, 298 Ark. 554, 769 S.W.2d 740 (1989) (Gay II); Chastain v. Davis, supra; City of Crossett v. Anthony, 250 Ark. 660, 466 S.W.2d 481 (1971). See generally Morton Gitelman, Changing Boundaries of Municipal Corporations in Arkansas, 20 Ark. L. Rev. 135 (1966). For their argument that the circuit court improperly placed the burden of proof on them, the Town and Hillis point initially to the circuit court’s statements in its order: (1) there was “no testimony” the proposed property was needed for street purposes; (2) there was “no evidence” that Houston needed the annexed property for any town purpose, such as for streets or a sewer, gas, or water system; (3) there was no evidence that the town’s people needed the space for business purposes; (4) there was no proof Houston needed to extend its police regulations because there was “no evidence” of any crime, inside or outside the city; and (5) there was “no evidence” that the agricultural land within the proposed annexation had a “higher or better use for municipal purposes.”

In response, Carden contends that the circuit court merely performed its task under Ark. Code Ann. § 14-40-604(a)(2)(A), which provides in part that if the court is satisfied the requirements for annexation have not been complied with, the court “shall” make an order restraining any further action pertaining to the annexation order of the county court and annulling it. According to Carden, the circuit court was merely summarizing the evidence submitted on whether the annexation satisfied the requirements of Vestal v. Little Rock, supra.

The appellants’ argument is without merit. Carden clearly had the burden of proof, and she put on her case first relating to the effect of the annexation on Houston, the highest and best use of the annexed area, and the scheme to stop her hog farm. One of her witnesses was the mayor of the Town, Jerry Lawson, who addressed the issue of whether the land was needed for any municipal purpose. The circuit court’s letter opinion and order addressed this proof and found in Carden’s favor. Regardless of how the court couched its findings, we are convinced that the burden of proof was not impermissibly shifted to the Town and Hillis.

We turn next to the merits of the case. The five Vestal criteria used to justify annexation by adjoining landowners which were alluded to by the circuit court are as follows:

(1) Whether the property is platted and held for sale or use as municipal lots;
(2) Whether platted or not, if the lands are held to be sold as suburban property;
(3) Whether the lands furnish the abode for a densely settled community or represent the actual growth of the municipality beyond its legal boundary;
(4) Whether the lands are needed for any proper municipal purposes such as for the extension of needed police regulation; and
(5) Whether the lands are valuable by reason of their adaptability for prospective municipal uses.

See also Ark. Code Ann. § 14-40-603 (a) (1987) (requiring that the prayer of the petitioner for annexation be “right and proper”).

We have stated that these five criteria should be considered in the disjunctive, and an annexation is proper if any one of the five factors is met. Gay II, supra; Lee v. City of Pine Bluff, 289 Ark. 204, 710 S.W.2d 205 (1986); Gay v. City of Springdale, 287 Ark. 55, 696 S.W.2d 723 (1985), reh’g denied, 287 Ark. 58-A, 698 S.W.2d 300 (1985)(Gay I). The criteria apply regardless of whether the annexation proceeding was initiated by the city or by adjoining landowners. Chastain v. Davis, 294 Ark. 134, 741 S.W.2d 632 (1987); Louallen v. Miller, 229 Ark. 679, 317 S.W.2d 710 (1958); Cantrell v. Vaughn, 228 Ark. 202, 306 S.W.2d 863 (1957). If a part of the proposed area does not meet one of the five requirements, the annexation of the entire area is void in toto. Gay II, supra; Chastain v. Davis, supra; Chappell v. City of Russellville, 288 Ark. 261, 704 S.W.2d 166 (1986). Furthermore, agricultural and horticultural lands are not to be annexed when their highest and best use is for agricultural or horticultural purposes. Chappell v. City of Russellville, supra; Louallen v. Miller, supra.

An action to prevent annexation such as that brought by Carden is not an appeal of the county court’s order. Rather, it is an independent attack on the annexation authorized under Ark. Code Ann. § 14-40-604 (1987). Re: Proposed Annexa tion to Town of Beaver v. Ratliff, 282 Ark. 516, 669 S.W.2d 467 (1984); Britton v. City of Conway, 38 Ark. App. 232, 821 S.W.2d 65 (1991). In annexation cases, this court places a high degree of reliance upon the findings of the trial judge and does not reverse unless they are clearly erroneous. Gay II, supra; Lewis v. City of Bryant, 291 Ark. 566, 726 S.W.2d 672 (1987). Furthermore, this court views the evidence in the fight most favorable to the appellee. Id.

The circuit court was correct in being skeptical about the propriety of this annexation. There is very little, if any, credible testimony to the effect that the Town itself would be benefited by annexing this property. For example, Mayor Lawson testified that the Town would be improved because it would receive additional matching-fund money due to the population increase of approximately 110 people, but he focused primarily on the benefits to the area to be annexed in terms of better security, roads, and fire protection rather than the benefit to the Town. While Hillis testified that the additional land would allow the Town to employ a marshall and expand, there was no credible proof that the Town required additional space for businesses or residences or that security was a problem. Thus, while the prospective benefits to Hillis and the other proponents living in the area to be annexed seem fairly clear, we do not believe the circuit court clearly erred in finding that the contemplated benefits to the Town were indeed slim or even nonexisting.

It is, of course, undisputed that predominantly agricultural land may be annexed if it can be made to serve a municipal purpose and its highest and best use is not agricultural. But we, again, question whether there is a viable municipal purpose for the land under the Vestal criteria. Moreover, the cases cited by the Town and Hillis are distinguishable. For example, in Chappell v. City of Russellville, supra, we affirmed the circuit court’s order upholding the annexation of 4,150 acres of land, some of which was woodland, swampland, and farmland. In doing so, we focused on the fact that the mere presence of farmland, when its highest and best use is not for agricultural purposes, will not prevent annexation and that swampland and wooded areas may also pass muster for annexation when the value of the land is derived from its actual and prospective use for city purposes. Chappell v. City of Russellville, 288 Ark. at 262-63, 704 S.W.2d at 167, citing Holmes v. City of Little Rock, 285 Ark. 296, 686 S.W.2d 425 (1985).

In Chappell, the circuit court also found specifically that (1) much of the lands to be annexed represented the actual growth of the city beyond its legal boundary; (2) the lands were needed for extension of police and fire protection for city residents; (3) the lands were valuable by reason of their adaptability for prospective municipal purposes; and (4) that the highest and best use of the land was for purposes other than agriculture.

In sum, the Chappell case is wholly different from the case at bar, where it is difficult to ascertain any benefit to the Town to be gained by annexing the 900 acres under the Vestal criteria. See also Lee v. City of Pine Bluff, 289 Ark. at 209, 710 S.W.2d at 208 (affirming annexation of a flood plain as part of an “honest effort” to encompass the growth of the city, but cautioning: “That does not mean we will recognize annexation proposals that are essentially land grabs [.]”); Gay I (involving a “land grab” by the city). Stated simply, Carden successfully proved that Houston, a town of 640 acres and approximately 175 persons, has no real need for an additional 900 acres and 110 persons. Certainly, Houston does not need to annex 900 acres for the purpose of placing a fire station in that area. Crime is not a factor. And increased revenue from matching funds due to 110 new citizens which can be used for street lights in Houston seems very tenuous.

There is the remaining issue of Houston’s exercise of its police power to stop the hog farm. Testimony at trial clearly established that the prevention of commercial hog farms from operating in the area was a primary reason for the annexation. In the past, this court has indicated that health considerations are proper. See, e.g., City of Little Rock v. Findley, 224 Ark. 305, 272 S.W.2d 823 (1954) (affirming trial court’s order nullifying annexation under substantial-evidence test but acknowledging that arguments relative to curing health and sanitation problems were “persuasive”); Walker v. City of Pine Bluff, 214 Ark. 127, 214 S.W.2d 510 (1948) (affirming circuit court’s annexation order under substantial-evidence test and including evidence that the proposed area was a “health menace”). The question for us to decide is whether the Town’s police power is broad enough to thwart the foul odors emanating from a hog farm which is at issue in this case. See, e.g., Springfield v. City of Little Rock, 226 Ark. 462, 290 S.W.2d 620 (1956) (involving the city’s authority to raze sixteen housing units that were unsanitary and dangerous to public health due to disrepair); Gus Blass D. G. Co. v. Reinman, 102 Ark. 287, 143 S.W. 1087 (1912) (involving the city’s authority to abate the operation of a livery stable).

Regardless of the interest of the Town in preventing foul odors, we hold that the circuit court correctly concluded that that purpose alone cannot be the sole reason for upholding the annexation of 900 acres. As has already been emphasized, if a part of the annexation does not meet one of the Vestal requirements, then annexation of the entire area is void in toto. See Gay II, supra; Chastain v. Davis, supra; Chappell v. City of Russellville, supra. Carden’s land, on which the purported hog-farm nuisance is to be located, comprises only 91 of the 900 acres. Therefore, the remaining 809 or so acres are not necessary for annexation under the exercise of a police power, even assuming that preventing noxious odors was a legitimate health reason for the annexation.

We affirm on the twin bases that the circuit court did not shift the burden of proof in this case and the findings of the court are not clearly erroneous. This being the case, the circuit court’s decision is supported by substantial evidence. See Chastain v. Davis, supra.

Affirmed.


source: Caselaw Access Project

author: Annabelle Clinton Imber, Judge.

license: Public Domain

text:
    William Phillip COTTRELL v. Myrldehne COTTRELL
    97-654
    965 S.W.2d 129
    Supreme Court of Arkansas
    Opinion delivered March 19, 1998

      Jon R. Sanford, for appellants.

      Susan A. Fox, for appellees.
   Annabelle Clinton Imber, Judge.

The appellants, William and Deborah Cottrell, sued the appellees, Myrldehne Cottrell and the Cottrell Corporation, for fraud and breach of an oral employment contract. The trial court granted summary judgment to the appellees. We affirm.

Ralph and Myrldehne Cottrell owned and operated the Cottrell Corporation located in Springdale, Arkansas. In 1992, Ralph was diagnosed with terminal cancer. At the time, Ralph’s son, William Cottrell, and William’s wife, Deborah, were living in Terre Haute, Indiana. In October of 1992, Ralph and Myrldehne asked William and Deborah to move to Arkansas so that William could visit regularly with his father and help run the Cottrell Corporation. Myrldehne also told William that she suspected someone was stealing from the Cottrell Corporation, and that she was afraid of being placed in a nursing home after Ralph died. To entice William and Deborah to move to Arkansas, Ralph and Myrldehne orally promised the couple free housing and jobs with the Cottrell Corporation for a combined salary of $400 a week.

In refiance on these promises, William and Deborah quit their jobs, sold their home, and moved to Arkansas in late January of 1993. Ralph Cottrell died on February 28, 1993, leaving all of his property, including the Cottrell Corporation, to his wife, Myrldehne. The day after Ralph Cottrell’s funeral, Myrldehne terminated William’s and Deborah’s employment, and a few days later, she evicted the couple from their home.

On January 18, 1994, William and Deborah filed a legal action for fraud against Myrldehne and the Cottrell Corporation. Myrldehne and the Cottrell Corporation filed a motion for summary judgment contending that there was no evidence of fraud, and that the termination did not constitute a breach of contract. On March 26, 1997, the trial court found that the parties had entered into an oral employment contract without a specific duration. Thus, pursuant to the employment-at-will doctrine, Myrldehne and the Cottrell Corporation were free to terminate William and Deborah at any time and without cause. The court also granted summary judgment on the fraud claim because there was no evidence of any misrepresentation by Myrldehne or the Cottrell Corporation.

On appeal, William and Deborah claim that the trial court erred when it granted summary judgment on their claim for breach of contract, but they do not contest the trial court’s ruling on their fraud claim. As we have said on numerous occasions, summary judgment is appropriate if there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. In making this determination, we review the proof submitted in the light most favorable to the party resisting the motion, and resolve all doubts and inferences against the moving party. Lovell v. Brock, 330 Ark. 206, 952 S.W.2d 161 (1997); Sublett v. Hipps, 330 Ark. 58, 952 S.W.2d 140 (1997). Summary judgment is also appropriate when, as in this case, the trial court finds that the allegations, taken as true, fail to state a cause of action. See, e.g., O’Mara v. Dykema, 328 Ark. 310, 942 S.W.2d 854 (1997); Hollomon v. Keadle, 326 Ark. 168, 931 S.W.2d 413 (1996); Rainey v. Keadle, 312 Ark. 460, 850 S.W.2d 839 (1993).

I. The Employment-At-Will Doctrine

For their first challenge to the order of summary judgment, William and Deborah contend that the court erred when it found that their employment agreement was governed by the employment-at-will doctrine. It is well established under Arkansas law that when an employment contract is silent as to its duration, either party may terminate the relationship at will and without cause. Marine Servs. Unlimited, Inc. v. Rake, 323 Ark. 757, 918 S.W.2d 132 (1994); City of Green Forest v. Morse, 316 Ark. 540, 873 S.W.2d 155 (1994); Wal-Mart Stores, Inc. v. Baysinger, 306 Ark. 239, 812 S.W.2d 463 (1991). In Griffin v. Erickson, 277 Ark. 433, 642 S.W.2d 308 (1982), we distinguished that a ‘“contract at will’ . . . may be terminated by either party, whereas a contract for a definite term may not be terminated before the end of the term, except for cause or by mutual agreement, unless the right to do so is reserved in the contract.” Although we have recognized several exceptions to the at-will doctrine, none are applicable to the facts at hand. See Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988); Gladden v. Arkansas Children’s Hosp., 292 Ark. 130, 728 S.W.2d 501 (1987).

In this case, it is undisputed that the parties did not reach an agreement as to the duration of their employment. Accordingly, we hold that the trial court correcdy ruled that, pursuant to the employment-at-will doctrine, Myrldehne and the Cottrell Corporation were free to terminate William and Deborah at any time and without cause.

In reply, William and Deborah ask us to read a reasonable duration into the employment agreement pursuant to Section 204 of the Restatement of Contracts, which provides that:

When the parties to a bargain sufficiently defined to be a contract have not agreed with respect to a term which is essential to a determination of their rights and duties, a term which is reasonable in the circumstances is supplied by the court.

Restatement (Second) of Contracts § 204 (1981). We refuse to adopt this Restatement provision in employment cases as it would completely abrogate the employment-at-will doctrine, which, as explained above, is firmly rooted in Arkansas jurisprudence.

II. Good Faith and Fair Dealing

Next, William and Deborah contend that Myrldehne’s actions constituted a breach of the implied covenant of good faith and fair dealing. William and Deborah did not make this argument before the trial court, and thus they are precluded from raising it for the first time on appeal. Wilson v. Rebsamen Ins., Inc., 330 Ark. 687, 957 S.W.2d 678 (1997); Slaton v. Slaton, 330 Ark. 287, 956 S.W.2d 150 (1997); McGhee v. State, 330 Ark. 38, 954 S.W.2d 206 (1997).

III. Motion for Costs

Myrldehne and the Cottrell Corporation have prepared a supplemental abstract and request $625 in fees and expenses. We agree that William and Deborah’s abstract was flagrantly deficient, and that the supplemental abstract was appropriate pursuant to Ark. Sup. Ct. R. 4-2(b)(2). See also Miller v. Nix, 315 Ark. 569, 868 S.W.2d 498 (1994); Rhodes v. State, 276 Ark. 203, 634 S.W.2d 107 (1982); Roach v. Terry, 263 Ark. 774, 567 S.W.2d 286 (1978). Accordingly, we award Myrldehne and the Cottrell Corporation $500 in fees and expenses.

Affirmed.


author: Ray Thornton, Justice.

text:
    Travis Vincent PEREZ, Jr. v. Donna Sue Ellis TANNER
    97-668
    965 S.W.2d 90
    Supreme Court of Arkansas
    Opinion delivered March 19, 1998

      Rice, Adams & Pace, P.A., by: Ben E. Rice, for appellant.

      Kelly & Huckabee, by: Sandy Huckabee, for appellee.
   Ray Thornton, Justice.

This case involves a jurisdictional dispute between conflicting decrees of Arkansas and Mississippi courts in a child-custody matter. Travis Vincent Perez and Donna Sue Ellis Tanner lived together in Mississippi for approximately five years. During this time, Mrs. Tanner gave birth to a daughter, C.P., and a son, T.V., in 1989 and 1990 respectively. Although both parties acknowledge Mr. Perez as the biological father of these children, the parties have never been married to one another and no court has issued an order establishing paternity.

The initial pleadings relating to custody of the minor children were filed in the Jackson County, Mississippi, Chancery Court on January 16, 1992. At various times, each party has been awarded custody in the context of approximately sixteen different Mississippi court orders. As the Mississippi court exercised continuing jurisdiction over custody and visitation proceedings under the provisions of the Parental Kidnapping Prevention Act of 1980 (PKPA) and the Uniform Child Custody Jurisdiction Act (UCCJA), we reverse and dismiss.

In November 1995, allegations surfaced that Mr. Perez’s brother had sexually abused C.P. An Alabama hospital examination on November 10 revealed no evidence of abuse; however, in a November 14 examination, Dr. John Shriner, an Alabama pediatrician, found evidence of abuse. Consequently, on December 21, the Mississippi court ordered Mr. Perez’s visitation restricted to his sister’s home in Mississippi and ordered Mr. Perez’s brother to not have any contact with C.P. On March 13, 1996, Mr. Perez’s brother appeared before a grand jury in Mississippi that returned a decision not to indict him on charges of child molestation.

A hearing was scheduled in Mississippi for March 6, but two weeks before that date, Mrs. Tanner, who had custody of the children pursuant to a previous Mississippi court order, moved to Arkansas. On March 4, 1996, two days before the hearing scheduled in Mississippi, Mrs. Tanner petitioned the Lonoke County, Arkansas, Chancery Court to suspend Mr. Perez’s visitation in an ex parte proceeding. The Arkansas court granted Mrs. Tanner’s petition on that same date.

A hearing was held in Mississippi on March 6, and Mrs. Tanner did not appear. In its May 9 order, the Mississippi court issued a temporary order finding Mrs. Tanner in contempt for failing to appear and for violating its order in refusing to honor Mr. Perez’s visitation rights. The Mississippi court found that it had continuing jurisdiction over the matter, awarded Mr. Perez temporary custody of both children, and directed that Mr. Perez’s brother have no contact with the children until a full evidentiary hearing could be held. The court made this temporary order a permanent one in an order filed June 29, 1996. No appeal was taken from this Mississippi order.

In an April 1996 letter, Mr. Perez advised the Arkansas court that Mrs. Tanner had requested similar modifications in two other states. He further claimed that an Alabama court declined jurisdiction in January 1996, on the basis that the Mississippi court retained jurisdiction.

On July 9, 1996, Mr. Perez filed a motion in the Arkansas court challenging its exercise of jurisdiction in this case and asking the court to give full faith and credit to the rulings of the Mississippi court giving him custody of the children. In her reply, Mrs. Tanner urged that Mr. Perez had submitted to the Arkansas court’s jurisdiction by requesting that the court award him visitation. She also counterpetitioned, requesting that the Arkansas court find Mr. Perez in contempt for failure to pay child support as ordered by the Mississippi court.

The Arkansas court heard testimony on the issue on August 22, 1996. In its September 17 order, the Arkansas court decided to maintain jurisdiction until home studies could be conducted on both parties and allowed Mr. Perez to have visitation in the office of the children’s counselor and via telephone. The home studies were filed with the court and indicated that both parents could provide a suitable home.

On February 25, 1997, the Arkansas chancery court issued a ruling stating that the court accepted and retained jurisdiction in this matter under Ark. Code Ann. section 9-13-203 (a) (3) (Repl. 1993), the emergency-jurisdiction provision of the UCCJA. The court noted that the Mississippi court orders granted “paramount custody, care and control” of the children to Mrs. Tanner from the time the older child entered first grade, which she did in the 1995-96 school year. The Arkansas court awarded full custody to Mrs. Tanner.

The Arkansas court also refused to extend full faith and credit to the Mississippi orders because it found that Mr. Perez was a “stranger” to the children under Arkansas law. The court refused to recognize the validity of the Mississippi court’s orders. The Arkansas court reasoned that giving visitation and/or custody to a putative father whose paternity has not been established in accordance with the requirements of our Code violated Arkansas law, notwithstanding that the paternity determination complied with Mississippi law. The court also refused to hold Mr. Perez in contempt for nonpayment of child support on the basis that Arkansas law does not provide for an award of support against a putative father until after a judicial decree establishes paternity.

Mr. Perez filed a motion in the Arkansas court for a new trial on March 6, 1997, which the court denied. Mr. Perez appeals this order of the Lonoke County Chancery Court. Mr. Perez raises four points on appeal. Because our analysis of the first and third points is similar, we address those points together.

In points one and three, Mr. Perez argues that the Full Faith and Credit Clause, the PKPA, and Arkansas’s UCCJA require the Arkansas chancery court to give full faith and credit to the Mississippi chancery court’s orders. We agree.

Jurisdiction over child-custody disputes is governed by two acts, the UCCJA, Ark. Code Ann. §§ 9-13-201 to -223 (Repl. 1993), and the federally preemptive PKPA, 28 U.S.C. § 1738A (1994). Issues of child visitation are considered under the definition of “custody determination.” 28 U.S.C. § 1738A(b)(3); Ark. Code Ann. § 9-13-202(2). The PKPA applies directly to modification proceedings; however, it also indirectly governs initial custody determinations. Atkins v. Atkins, 308 Ark. 1, 823 S.W.2d 816 (1992). We have stated that this is due to the fact that the PKPA does not accord a custody decree full faith and credit in another state if the decree failed to conform to the requirements of the PKPA. Id.

The purposes stated in our UCCJA include avoiding jurisdictional conflicts with other state courts and avoiding the relitigation of custody decisions made in other states. Ark. Code Ann. § 9-13-201. We have previously looked to the Florida appeals court for guidance and quoted the following with respect to the purposes of the UCCJA: “Those purposes are not served when a court, with knowledge that the subject matter of child custody is pending in another state, totally ignores the foreign proceeding and exercises jurisdiction over a child, who has been in the state for less than a month, for the purpose of making a permanent award.” Norsworthy v. Norsworthy, 289 Ark. 479, 486, 713 S.W.2d 451, 455 (1986) (quoting Bonis v. Bonis, 420 So.2d 104 (Fla. Dist. Ct. App. 1982)).

Based on these principles of law, we first consider whether the Arkansas court properly took jurisdiction in this case under the PKPA and UCCJA. Before a state may exercise jurisdiction in a custody or visitation dispute, it must determine whether a sister state is exercising jurisdiction. Under the PKPA, if a state finds that another action is pending, the state must look to subsection (g). Subsection (g) provides that a state shall not exercise jurisdiction in a custody proceeding that is commenced while a proceeding is pending in a sister state, which is exercising jurisdiction consistent with the PKPA. 28 U.S.C. § 1738A(g). This provision means that no two states shall exercise concurrent or simultaneous jurisdiction.

The PKPA provides that a court may modify a custody order of a sister state only if two criteria are met. First, the court must determine that it has jurisdiction to make child-custody determinations. 28 U.S.C. § 1738A(f)(l). Second, the court of the sister state must no longer have jurisdiction or must have declined to exercise jurisdiction to modify the order. 28 U.S.C. § 1738A(f)(2). If the sister state still has jurisdiction under the laws of that state and the state remains the residence of one of the parties or the child, then the sister state retains continuing jurisdiction and the other court shall not modify the order. 28 U.S.C. § 1738A(d).

Turning to the second criterion, we look at whether the sister state had proper jurisdiction to enter the initial decree. Mississippi has adopted a version of the UCCJA, Miss. Code Ann. §§ 93-23-1 to 93-23-47 (Supp. 1993). Under its UCCJA, the Mississippi chancery court may exercise jurisdiction where Mississippi is the “home state of the child at the time of commencement of the proceeding.” Miss. Code Ann. § 93-23-5(1) (a). Additionally, the PKPA gives priority to home-state jurisdiction in initial custody determinations. Garrett v. Garrett, 292 Ark. 584, 732 S.W.2d 127 (1987); see also 1 Jeff Atkinson, Modern Child Custody Practice § 3.01, at 106. In this case, when the initial proceeding was commenced in 1992, Mississippi had been the residence of both children since their birth. Therefore, Mississippi properly exercised its home-state jurisdiction under both the UCCJA and the PKPA in entering the initial custody order.

Having decided that the Mississippi court had original jurisdiction in this dispute, we next determine whether the Mississippi court had declined to exercise jurisdiction or no longer had jurisdiction. See 28 U.S.C. § 1738A(f). Under the Mississippi Code, the Mississippi court could have declined to exercise jurisdiction to modify its own order if it had found that Mississippi was an inconvenient forum and that the court of another state was more convenient. Miss. Code Ann. § 93-23-13(1). The Mississippi court may make this determination upon its own motion, or upon motion of one of the parties or of the child. Miss. Code Ann. § 93-23-13(2).

In this case, the Mississippi court did not decline to exercise jurisdiction. Furthermore, it does not appear that Mrs. Tanner ever made a motion to the Mississippi court requesting that it decline jurisdiction in favor of a more appropriate or convenient forum, even though Mississippi law provides for such a request. Instead, the Mississippi court was continuing to exercise jurisdiction under subsection (d) of the PKPA.

Subsection (d) of the Act provides that the jurisdiction of the court of the state that “has made a child custody determination consistently with the provisions of this section continues as long as the requirement of subsection (c)(1) of this section continues to be met and such State remains the residence ... of any contestant.” 28 U.S.C. § 1738A(d). Subsection (c)(1) of the PKPA requires that the court must have “jurisdiction under the laws of such State.” As discussed above, the Mississippi court entered the initial custody order in compliance with its UCCJA, as the home state of the children. The Mississippi court retains jurisdiction under its UCCJA to modify its decree if the state was the children’s home state at the commencement of the proceeding and “a parent or person acting as parent continues to live within this state.” Miss. Code Ann. § 93-23-5(l)(a). Since Mr. Perez continues as a resident of Mississippi, the Mississippi court has jurisdiction under Mississippi law. Therefore, we conclude that the requirements of subsection (c)(1) of the PKPA, as well as subsection (d), have been met.

When the issue is which state has jurisdiction to modify a custody decree, the PKPA gives preference to the state with continuing jurisdiction. Moore v. Richardson, 332 Ark. 255, 964 S.W.2d 377 (1998) (citing Murphy v. Danforth, 323 Ark. 482, 915 S.W.2d 697 (1996)). Because the Mississippi court still had continuing jurisdiction as the decree state and had not declined to exercise it, the Arkansas court did not have jurisdiction under the PKPA to modify the Mississippi court’s order. The PKPA requires that the Arkansas court give the Mississippi court’s order full faith and credit. We conclude that the Arkansas court had no jurisdictional basis under which to enter the modifications, and we reverse and dismiss.

We note that much of this jurisdictional confusion might have been avoided had the Arkansas court complied with the UCCJA’s directive to communicate with the Mississippi court. See Norsworthy v. Norsworthy, 289 Ark. 479, 713 S.W.2d 451 (1986) (citing Ark. Code Ann. § 9-13-207(d) in reaching the conclusion that it was incumbent on the Arkansas court under the UCCJA to enter into some form of direct communication with the foreign court to ascertain which forum was the better one in which to decide custody); Mellinger v. Mellinger, 26 Ark. App. 233, 764 S.W.2d 52 (1989). The Arkansas court clearly had knowledge as early in the case as April 16, 1996, that another proceeding was pending in Mississippi because it granted Mrs. Tanner’s request for a protective order directing her not to leave Arkansas to appear at the April 17 hearing in Mississippi.

Mrs. Tanner argues that it was necessary for the Arkansas court to assume jurisdiction in this proceeding because an emergency existed in which the child’s welfare was in danger. We disagree.

The UCCJA and the PKPA both contain language providing that a foreign court may exercise jurisdiction in an emergency situation. Ark. Code Ann. § 9-13-203(a) (3); 28 U.S.C. § 1738A(c)(2)(C). The requirements for exercising emergency jurisdiction are the physical presence of the child in the state and the existence of a genuine emergency, such as abandonment or neglect. Id.; Murphy v. Danforth, 323 Ark. at 491, 915 S.W.2d at 702. This jurisdictional basis is available only in extraordinary or extreme situations where the immediate health and welfare of the child is threatened. Caskey v. Pickett, 274 Ark. 383, 625 S.W.2d 473 (1981).

Courts’ emergency powers are limited under both acts. Murphy, 323 Ark. at 491, 915 S.W.2d at 702. Emergency jurisdiction may only be used to enter a temporary order to give a party sufficient time to travel with the child to the proper forum to present her allegations of abuse and seek a permanent modification of custody. Id.

In the present case, when Mrs. Tanner filed with the Arkansas court, she had custody of both children under the order of the Mississippi court. The Mississippi court had restricted Mr. Perez’s visitation with the children to his sister’s house. Mrs. Tanner presented us with no evidence that the daughter was in any danger from Mr. Perez’s brother. If Mrs. Tanner felt that her daughter' was in danger because Mr. Perez was not complying with the order, she could have sought temporary relief from an Arkansas court. However, she could only seek temporary relief for the purpose of giving her adequate time to petition for permanent relief from the Mississippi court because Mississippi was the only jurisdiction at that time with authority under the PKPA to permanendy modify the order.

Because there was no evidence supporting a finding that the health or welfare of the child was in immediate danger, we conclude that Mrs. Tanner was merely shopping for a forum that would completely deny Mr. Perez’s visitation rights. After trying a Mississippi court and an Alabama court, she finally found an Arkansas court that would grant her requested relief. Such forum shopping directly contravenes the express purposes of the UCCJA and PKPA.

The Arkansas court’s actions in modifying the original Mississippi decree went beyond the reach of emergency jurisdiction under either the PKPA or UCCJA. We conclude that the Arkansas court erred in exercising emergency jurisdiction under these circumstances.

For his second point, Mr. Perez claims that the Arkansas court erred in refusing to accord the Mississippi court’s orders full faith and credit. The Arkansas court refused to recognize the Mississippi orders, reasoning that the Mississippi orders should not be accorded full faith and credit because they awarded custody, visitation, and support absent a judicial determination of paternity, which the court found to contravene Arkansas law.

The Arkansas court was obligated to determine whether the foreign court had jurisdiction, as well as testing the validity and effect of the foreign court’s order, under the law of the foreign state, not Arkansas law. See Hinchee v. Golden Oak Bank, 540 So.2d 262 (Fla. Dist. Ct. App. 1989). In enforcing the Mississippi court’s judgment, a finding that the Mississippi court erred in interpreting its own law or statutes or failed to apply the proper state law would still not be grounds for refusing to recognize the judgment. Fauntleroy v. Lum, 210 U.S. 230, 237 (1908); see also 1 Restatement of Confl. of Laws 2d § 106 (1969); Corliss v. Corliss, 89 N.M. 235, 549 P.2d 1070 (1976) (looking to Missouri law to determine whether to modify alimony and child support awarded in Missouri divorce decree). Of course, if the order was entered by a court that was wholly without jurisdiction or if the order was procured by fraud, the Arkansas court need not recognize the judgment because the order would be void in the rendering state itself and not entitled to full faith and credit. Id.; see also Kricfalusi v. Brokers Securities, Inc., 305 Ark. 228, 806 S.W.2d 622 (1991).

The United States Congress clearly intended for the PKPA to extend full faith and credit to custody and visitation decrees entered in conformity with the UCCJA. In Thompson v. Thompson, 484 U.S. 174 (1988), the Supreme Court determined that Congress enacted the PKPA to make the requirements of full faith and credit apply to child-custody proceedings. See also Roger M. Baron, Federal Preemption in the Resolution of Child Custody Jurisdiction Disputes, 45 Ark. L. Rev. 885 (1993). Additionally, Congress physically positioned the PKPA as an addendum to the Full Faith and Credit Clause, 28 U.S.C. § 1738, which demonstrates that Congress intended for the Act to have the same operative effect as the Full Faith and Credit Clause. Thompson, 484 U.S. at 183.

The United States Constitution directs that “Full Faith and Credit shall be given in each State to the [judicial proceedings] ... of every other State.” U.S. Const. art. IV, § 1; see also 28 U.S.C. § 1738 (1994). Under the PKPA, our courts will accord full faith and credit to the custody determinations of a sister state that had jurisdiction over the parties and the subject matter. 28 U.S.C. § 1738A. Since we determined above that the Arkansas court lacked jurisdiction and was therefore required to give full faith and credit to the Mississippi orders under the PKPA, we likewise conclude that the Arkansas court erred in refusing to recognize the Mississippi orders under the Full Faith and Credit Clause of the United States Constitution.

For his fourth assignment of error, Mr. Perez asserts that the Arkansas court erred in assuming jurisdiction because Mississippi was the most convenient forum to determine the child-custody dispute.

The UCCJA and PKPA do not require a court that properly has jurisdiction to decline jurisdiction in favor of the most convenient forum. As touched on above, our UCCJA, as well as Mississippi’s UCCJA, contains a provision allowing a court to decline to exercise jurisdiction where the court determines that another forum is more appropriate for any of several reasons. See Ark. Code Ann. § 9-13-207; Miss. Code Ann. § 93-23-13; see also Blocker v. Blocker, 57 Ark. App. 218, 944 S.W.2d 552 (1997). However, the Arkansas court was not in the position to consider whether the Mississippi court was a more appropriate forum because the PKPA preempted any claim to jurisdiction that the Arkansas court might have possessed in favor of the continuing jurisdiction of the Mississippi court. Because we have determined that the Arkansas court was without jurisdiction, we need not reach this issue.

Reversed and dismissed.


author: Per Curiam.

text:
    Antonio AYERS v. STATE of Arkansas
    CR 97-368
    960 S.W.2d 453
    Supreme Court of Arkansas
    Opinion delivered March 19, 1998

      R.S. McCullough, for appellant.
    No response.
   Per Curiam.

Antonio Ayers was convicted of capital murder and sentenced to life imprisonment without parole. A notice of appeal was filed on his behalf. He is represented by Attorney R.S. McCullough who filed the appellate record with this Court on April 1, 1997. Mr. McCullough, after receiving three extensions of the deadline for filing his client’s brief, filed a brief with this Court on September 11, 1997. The abstract of the record was deficient, and upon motion by the State, counsel was instructed to comply with the requirements of Ark. Sup. Ct. R. 4-3(h). The deadline for compliance was November 15, 1997. It was not met.

By letter of February 4, 1998, the Clerk of this Court inquired of counsel as to the status of the appeal. Counsel responded on February 17, 1998, with a motion for further extension until March 6, 1998. On March 6, 1998, counsel sought an extension to March 25, 1998, blaming the delay on a “young associate” who is “no longer employed by this firm.”

We grant the extension and caution that it is a final extension. A copy of this order will be sent to the Committee on Professional Conduct.


text:
    Jerry SCHALK v. STATE of Arkansas
    CR 98-227
    960 S.W.2d 452
    Supreme Court of Arkansas
    Opinion delivered March 19, 1998

      Teri Swicegood, for appellant.
    No response.
   Per Curiam.

Jerry Schalk, by his attorney, Teri Swicegood, has filed a motion for rule on the clerk. His attorney admits that the transcript was tendered late due to an error on her part.

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

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


text:
    Sandra S. VANDIVER v. Ronald BANKS
    97-272
    962 S.W.2d 349
    Supreme Court of Arkansas
    Opinion delivered March 19, 1998

      Cearley Law Firm, P.A., by: Robert M. Cearley, for appellant.

      Gruber Law firm, by: Wayne A. Gruber, for appellee.
   Per Curiam.

Appellant petitions for rehearing and requests that we undertake to award attorney’s fees, expenses, costs, and prejudgment interest in this cause. However, in her opening brief, appellant previously asked that we direct the chancery court to enter judgment against appellee, and to award a reasonable attorney’s fee and the costs of this action beginning in April of 1990. Because this case is being remanded to the trial court for further proceedings consistent with our opinion, we believe the making of such awards should be decided and made by the trial court on remand. Thus, we issue this per curiam directing the trial court to decide and award appropriate prejudgment interest, attorney’s fees, and costs in accordance with Arkansas law.


text:
    Michael WHITTEN v. STATE of Arkansas
    CR 97-447
    965 S.W.2d 124
    Supreme Court of Arkansas
    Opinion delivered March 19, 1998

      Ronald C. Nichols, for appellant.
    No response.
   Per Curiam.

On January 14, 1997, appellant, Michael Whitten, by his attorney, Ronald C. Nichols, filed a petition for writ of certiorari, requesting that the trial court clerk be directed to complete the record on appeal. We granted a thirty-day extension to complete the record and issued a writ to the circuit clerk and court reporter on January 29, 1998, for the purpose of obtaining the transcript of testimony in this case. On February 17, 1998, Appellant filed for an additional sixty-day extension of time to complete the record, noting that the trial court reporter has been ill and that her workload is seriously backlogged. On February 27, 1998, we received a duplicate copy of the record alreády on file with the supreme court clerk, but we have yet to receive a record of the trial testimony.

We grant appellant’s motion for a sixty-day extension of time to complete the record. We also grant a writ of certiorari and direct the court reporter to prepare a transcript of the trial for appeal and to file the record with the supreme court clerk within sixty days from the date of this per curiam order. An appropriate briefing schedule will then be set by the clerk of this court.

However, we are concerned that a serious backlog problem may be developing with respect to the court reporter for the Pulaski County Circuit Court, Seventh Division, that may impact cases currently on appeal or to be appealed from that court. A copy of this opinion will be forwarded to Judge John B. Plegge for a determination to be made by him as to (i) the nature and degree of the backlog problem, and (ii) the necessity or advisability of retaining additional help to alleviate the problem.


author: W.H. “Dub” Arnold, Chief Justice.

text:
    Nancy D. MARKS, a/k/a Ann Gable v. STATE of Arkansas
    CR 97-1088
    965 S.W.2d 764
    Supreme Court of Arkansas
    Opinion delivered March 26, 1998

      Paul Petty, for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   W.H. “Dub” Arnold, Chief Justice.

Nancy D. Marks, a/k/a Ann Gable, seeks a writ of prohibition against the Poinsett County Circuit Court to prevent a trial on a theft-by-receiving charge. The trial court denied Marks’s motion to dismiss the charge on speedy-trial grounds. She contends that this ruling was erroneous because she was not brought to trial within twelve months following the issuance of the warrant for her arrest. There is no merit to Marks’s argument, and we deny her request for a writ of prohibition.

On March 31, 1994, a warrant for Marks’s arrest was issued for the offense of theft by receiving, Class B felony, in violation of Ark. Code Ann. § 5-36-103 (Repl. 1997). The warrant was issued after the Harrisburg Municipal Court judge determined that probable cause existed. Marks was not arrested, however, until September 6, 1996. The felony information charging Marks with theft by receiving was filed on October 16, 1996. Following a hearing, the Poinsett County Circuit Court denied Marks’s motion to dismiss, concluding that, because the delay between the issuance and service of the arrest warrant was attributable to Marks’s unavailability, this time was excludable under Rule 28.3(e) of the Arkansas Rules of Criminal Procedure. Marks filed her petition for writ of prohibition on June 19, 1997.

The pertinent speedy-trial rules in this case are Rules 28.1(a) and 28.2(a) of the Arkansas Rules of Criminal Procedure. Rules 28.1(a) and 28.2(a) require the State to bring a defendant to trial within one year from the date a charge is filed in circuit court, unless prior to that time, the defendant has been arrested and is in custody or lawfully at liberty. In the latter case, the defendant must be brought to trial within one year from the date he or she was arrested. If a defendant is not brought to trial within the requisite time, she will be discharged. Ark. R. Crim. P. 30.1. This discharge constitutes an absolute bar to prosecution of the same offense and for any other offenses required to be joined with that offense. Id.

As the State suggests in its brief, Marks’s argument is premised on the incorrect assumption that the time for speedy trial began running on the date the arrest warrant was issued. The case of Archer v. Benton County Circuit Court, 316 Ark. 477, 872 5. W.2d 397 (1994) is dispositive of this point. In that case, a warrant for Archer’s arrest was issued on April 16, 1992, following a finding of probable cause and a filing of an affidavit of probable cause on the same date. He was arrested pursuant to the warrant on December 25, 1992. The felony information against Archer accusing him of various drug offenses was filed on March 1, 1993. On appeal, Archer claimed that the twelve-month period for his trial began to run on April 16, 1992, the date the arrest warrant was issued. The State contended that charges were filed against Archer when the information was filed on March 1, 1993, after his arrest on December 25, 1992. Citing Rule 28.2(a), the State maintained that the time for Archer’s trial began to run on the date of his arrest. This court agreed with the State, holding that, for purposes of his speedy-trial rights and Rule 28.2(a), “the date charges were filed” against Archer was the date the felony information was filed in circuit court, and thus, the date of Archer’s arrest was the date the time for speedy trial began to run under Rule 28.2(a).

The same reasoning applies in the present case. The felony information was filed against Marks on October 16, 1996. This is “the date charges were filed” under Rule 28.2(a). Marks was arrested prior to the filing of the information, on September 6, 1996. The time for speedy trial began running on that date, and had not yet expired when Marks filed her petition in this matter on June 19, 1997. Thus, for purposes of Marks’s speedy-trial argument, we need not decide whether the delay between the issuance and service of the arrest warrant was attributable to her unavailability. Based on the foregoing, we must conclude that the trial court did not err in denying Marks’s motion to dismiss for lack of a speedy trial.

Writ denied.


author: David Newbern, Justice.

text:
    Aaron Michael HODGE v. STATE of Arkansas
    CR 97-406
    965 S.W.2d 766
    Supreme Court of Arkansas
    Opinion delivered March 26, 1998

      Alan Copetín and David Copetín, Public Defenders, for appellant.

      Winston Bryant, Att’y Gen., by: C. Joseph Cordi, Jr., Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

This is a capital-murder case in which Aaron Michael Hodge, who was seventeen years old at the time of the crime, was convicted of shooting to death his mother, Barbara Flick, his stepfather, David Flick, and his half-sister, Andria Flick in their home at Rector. Mr. Hodge was sentenced to life imprisonment without parole for each of the killings. He raises numerous points of appeal to be discussed below, but none of them presents reversible error; thus, we affirm the convictions.

In his testimony at the trial, Mr. Hodge admitted that he had taken Mr. Flick’s pistol from Mr. Flick’s place of business and returned to the home where he lived with the victims. His testimony was that Mr. Flick found him with the pistol and summoned him to their living room to talk. At that point, he informed Mr. Flick that Ms. Flick was leaving Mr. Flick and that he, Aaron Hodge, had won the long-standing battle between them for his mother’s affection. He said that he then left the home and that, when he returned, he found Mr. Flick lying on the couch making a loud “snoring” noise. Mr. Hodge said that he went to check on his mother and sister and found them in their respective bedrooms shot to death. He said that he returned to the living room where Mr. Flick was and shot him twice with the pistol in retaliation for Mr. Flick’s having presumably killed Mr. Hodge’s mother and sister. The implication of that trial testimony was that Mr. Flick had committed suicide after killing his wife and daughter. A further implication is that Mr. Flick was already dead from a self-inflicted gunshot wound when Aaron Hodge shot him. The contrary evidence presented by the State is the subject of Mr. Hodge’s first point of appeal, which raises the issue whether his motion for a directed verdict should have been granted on the ground that the evidence was not sufficient for presentation to the jury.

i. Sufficiency of the evidence

During the week prior to October 14, 1995, the interest of the Rector Police Department in the welfare of the Flick family was aroused by telephone calls, received initially from persons in Florida who were expecting some or all of the family to arrive for a visit, and later from local persons who had been alerted by the friends in Florida. A friend of Barbara Flick first alerted the police to the fact that the Flicks had not arrived in Florida and that she was concerned for their well being.

Officer Audrey Emberton testified that the police were aware that Mr. Hodge was driving Mr. Flick’s pickup truck and was in Paragould. He was in Paragould attending Friday-night homecoming festivities on the evening of October 13. The Paragould Police were notified, and they located Mr. Hodge. Officer Emberton went to Paragould to interview him. When the officer arrived after 1:00 a.m. on Saturday, October 14, Mr. Hodge was at the Paragould police station. When asked about his family, he reported that he had heard from them, although not that day, and that they were to return later that day. The officer thanked him for the information and left.

Officers Pruett and Emberton knew that Mr. Hodge had returned to the home and was up at around 3:00 a.m. They knocked on the door to a garage room or apartment at the Flick home, and Mr. Hodge invited them in. He told them that he had not heard anything further from the Flicks. When asked if he lived in the main part of the house, he replied that it was locked and that he could not get in. Officer Pruett apparently had looked in a window of the main dwelling, and he mentioned that there seemed to be some sheets on the floor. To that, Mr. Hodge responded that there was some remodeling in progress.

Officers went to Mr. Flick’s transmission shop to see if they could find any information that might lead to the family’s whereabouts. They were accompanied by one of Mr. Flick’s employees who had told them he could let them into the building for that purpose. The employee was able to enter the building by moving a metal panel at the rear. Once inside, he noticed that a tool box appeared to have been forced open and that money and the pistol that had been there were missing.

Later that morning, around 10:00 a.m., Officer Glenn Leach drove past the Flick home and saw Mr. Hodge and Mr. Hodge’s friend, David Gunn, standing by the front door. He pulled in the driveway and told the young men that the police needed to know something about the family, as they continued to receive calls expressing concern. Mr. Hodge replied that he would “tell [him] about it at City Hall.” Mr. Hodge got in the police vehicle. Officer Leach asked if he could go in the main portion of the house to check on the family, and Mr. Hodge said, “No.”

When Officer Leach and Mr. Hodge arrived at City Hall, Mr. Hodge asked to be taken to a room where they could speak privately. Officer Leach complied and reiterated that the calls were still coming in and that he had to know something about the family. Mr. Hodge replied that they were in the house. When asked if they were alright, Mr. Hodge replied, “They’re dead.” He said he had found them in that condition earher in the week. When asked why he had not told anyone, Mr. Hodge replied, “I was waiting to hear.” The officer informed Mr. Hodge that he had to go and check the house, and Mr. Hodge told him that the outer door was unlocked but that the inner door to the main house was locked.

Officer Leach left Mr. Hodge with the police dispatcher and went immediately to the Flick home where he forced open the inner door, after entering through the garage-apartment area, and found the bodies in advanced stages of decomposition. There were sheets, blankets, and pillows arrayed about the floor and the couch area in the living room. He pulled back a cover on the couch and found blood. Moving through a hallway back to the bedroom area, he saw more stains that appeared to be blood. It appeared to him that a body had been dragged from the couch area back into the bedroom area. He also found one spent .38-caliber cartridge on the floor near a waste basket and four additional cartridges in an open desk drawer in a bedroom obviously occupied by Mr. Hodge.

David Gunn testified that Mr. Hodge came to him and asked him to drive Mr. Hodge to Mr. Flick’s transmission shop at 11:00 p.m. on Sunday, October 8, 1995. Keys in Mr. Hodge’s possession did not unlock the door, so he “broke in” and broke open a tool box, finding $30, which he took. He had expected to find more money. He also took a pistol, holster, and shells from the tool box. He loaded five of the shells in the pistol. Mr. Hodge and Mr. Gunn then drove to a cemetery, and Mr. Hodge got out of the vehicle there and said he needed to “think.” Shortly thereafter, he returned to the car, and they returned to Mr. Gunn’s home. Mr. Hodge walked to his home, carrying the pistol. The next time Mr. Gunn saw Mr. Hodge was when the latter showed up at school on the following Monday, driving Mr. Flick’s truck.

More than one witness testified that it was understood that Mr. Hodge did not have permission to drive the truck and that it was unusual for him to be driving it. Mr. Hodge drove the truck during the ensuing week and took his friends to the movies and rode around Rector, Paragould, and Jonesboro in the truck. The succeeding week saw a good deal of partying in the garage apartment at the Flick home with Mr. Hodge. There was testimony about smoking marijuana and drinking alcohol by a number of young people in the apartment. One young woman testified to sleeping with and having sexual relations with Mr. Hodge during that time. Testimony showed that Mr. Hodge used Mr. Flick’s credit card and business checks to obtain cash and make purchases during the week. There was testimony that Mr. Hodge appeared calm and “normal” during that time and that he remarked it was “the best week of [his] fife” because he had plenty of money to spend and a nice vehicle to drive about. He made more than one such remark during that week.

After the corpses were found, Mr. Flick’s truck, which was parked in the driveway of the Flick home, was searched. Bloody clothing was found in the truck along with a pillow that appeared to have a gunshot hole in it.

A State Police investigator interviewed Mr. Hodge. He did not admit to having killed his family but equivocated about remembering what had happened and whether he “could have” done it.

In addition to Mr. Hodge’s testimony that he hated his stepfather and was “out of control,” in the sense that he had begun walking away from the domestic situation rather than be a part of the continuous conflict among himself, his mother, and his stepfather, there was testimony that Barbara and David Flick were afraid of Mr. Hodge. Darlene Bowlin, a friend of Barbara Flick who visited in the home, testified that David Flick had expressed to her his fear of Mr. Hodge and “what was going to happen” and that Barbara Flick had expressed her fear earlier.

David Gunn testified that Mr. Hodge had told him some six months earlier of a plan to kill Mr. Flick by striking him on the head with a wrench and burying the body. Mr. Hodge said he would then drive the pickup truck and report later that Mr. Flick was “missing.”

There was testimony that David Flick was right-handed. Lisa Sacevicius of the State Crime Laboratory testified that his left hand tested positive for gunshot residue and that his right hand tested negative but had some residue on it. She also found gunshot powder residue on two pillows submitted for examination. She said Mr. Flick could have fired a weapon or the residue could have been rubbed off on him if his body were dragged away by some person who had it on him.

The defense theory of the case was that David Flick killed Barbara and Andria Flick and then himself It is argued that the testimony by crime laboratory personnel about the gunshot residue found on the hands of Mr. Flick supports the suicide theory because he could have cradled the pistol in his left hand and fired it with his right after using the pillows to muffle the sound when he shot the two females.

Our standard of review of an allegation that a directed verdict should have been granted is that we consider the evidence in the light most favorable to the appellee and affirm if there is substantial evidence in support of the verdict. Kemp v. State, 324 Ark. 178, 919 S.W.2d 943 (1996); Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996). Circumstantial evidence may constitute sufficient evidence to sustain the conviction,

[b]ut it must give rise to more than suspicion and the fact finder must not be left to speculation and conjecture in arriving at its conclusions on the question. Upton v. State, 257 Ark. 424, 516 S.W.2d 904 [1974]. It is the duty of this court to set aside a judgment based upon evidence that did not meet the required standards and left the fact finder only to speculation and conjecture in choosing between two equally reasonable conclusions, and merely gave rise to a suspicion of guilt. Jones v. State, 246 Ark. 1057, 441 S.W.2d 458 [1969].

Smith v. State, 264 Ark. 874, 880, 575 S.W.2d 677, 681 (1979).

Mr. Hodge’s argument is that there is no evidence of premeditation on his part and that the evidence does not exclude his hypothesis of Mr. Flick committing suicide after shooting Barbara and Andria Flick.

As to Mr. Hodge’s hypothesis, we agree with the State’s argument that it is “preposterous” to consider that Mr. Hodge was so distraught over the shooting deaths of his mother and sister, of whom he purported to be very fond, that he shot Mr. Flick twice in the head after perceiving him to be dead and then, after trying to cover up the bodies and the blood, engaged in a week of partying without reporting to the authorities what had happened. We also agree with the proposition that the jury was not required to believe the testimony of Mr. Hodge but was free to find his testimony incredible. Allen v. State, 327 Ark. 350, 939 S.W.2d 270 (1997); Jones v. State, 326 Ark. 61, 931 S.W.2d 83 (1996).

The definition of capital murder, as charged in this case, is found in Ark. Code Ann. § 5-10-101 (a)(4) (Repl. 1997). It provides that one is guilty of capital murder if, “[w]ith the premeditated and deliberate purpose of causing the death of another person, he causes the death of any person.” With respect to the evidence of premeditation and deliberation, we have held that the nature of the weapon used, and the nature, extent, and location of the wounds inflicted, may supply the required evidence. Kemp v. State, supra. Given the jury’s apparent conclusion that Mr. Hodge shot the victims in their heads with a firearm, causing their deaths, the evidence of premeditation and deliberation was sufficient.

2. Suppression of physical evidence

a. The house

Mr. Hodge moved to suppress evidence seized from the Flick home, from Mr. Flick’s transmission shop, and from Mr. Flick’s truck, and to suppress still and video photographs taken in the-home and the shop. Although there is a suggestion that Mr. Hodge ultimately consented to Officer Leach’s entry into the home by explaining to him the manner in which he would have to gain entrance to the home, we need not consider the consent issue. Rather, we agree with the State’s position that the officer was allowed to enter and to seize that which was in plain view because of exigent circumstances. Such an entry is permitted in accordance with Ark. R. Crim. P. 14.3, but any subsequent search and seizure is limited to that which is in plain view and observed incident to the entry in response to the emergency. Mincey v. Arizona, 437 U.S. 385 (1978).

In Wofford v. State, 330 Ark. 8, 952 S.W.2d 646 (1997), the evidence showed that officers entered Ms. Wofford’s home without a search warrant because of information that she was injured, bleeding, and in danger. A relative of Ms. Wofford had previously been in the home and had informed the officers that Ms. Wofford’s son was in Ms. Wofford’s bedroom and that she believed the son to be dead. After attending to Ms. Wofford, of whose condition they had been made aware, one of the officers went through the rest of the residence and found Ms. Wofford’s son’s corpse. Ms. Wofford was convicted of first-degree murder, and on appeal she argued that the exigent circumstances did not justify the entry into her bedroom because the exigency no longer existed, i.e., that there was no justification to enter the bedroom because the officer had been informed that the son was dead.

In affirming the conviction, we held that the entry into Ms. Wofford’s bedroom was justified because, quoting Patrick v. State, 227 A.2d 486 (Del. 1967), “[frequently, the report of a death proves inaccurate and a spark of life remains, sufficient to respond to emergency police aid.” Wofford v. State, 330 Ark. at 19, 952 S.W.2d at 651. We reach the same conclusion here. Mr. Hodge’s report that the members of his family were dead, and his cryptic statement that he had not reported it because he was “waiting to hear,” surely made it incumbent upon Officer Leach to go immediately to the scene to ascertain the situation and whether there might be some hope that one or more of the victims might still be alive.

In Mitchell v. State, 294 Ark. 264, 742 S.W.2d 895 (1988), we reached the opposite conclusion, but the facts were different. There the police had received an anonymous telephone call about a dead body inside a house. They went to the house, and a neighbor was asked if he had heard any gunshots. He replied he had not. The police entered and found a body. We held that the entry was not justified by exigent circumstances and implied that the anonymous telephone call and the lack of any other evidence that there was a body in the house was not sufficient to suggest anyone in the house was in need of aid.

In this instance, however, we have substantial evidence that three members of Mr. Hodge’s family were missing; his statement that they were dead and had been in the house several days; his initial refusal to allow anyone to enter; and his cryptic statement that he had not reported it because he was waiting to hear.

Mr. Hodge argues that a factor in the exigent-circumstances review is the overpowering smell of the decaying corpses that Officer Leach encountered progressively as he entered the house, indicating that those inside were dead. The fact that the officer might thus have suspected that he would encounter at least one or two corpses did not make it inconceivable that one or two of the victims might have been alive.

b. The shop and the truck

Mr. Hodge also challenges the search of Mr. Flick’s transmission shop and of the pickup truck because it was parked in the curtilage of the house and thus, he claims, was protected against a warrantless intrusion. Mr. Hodge was not the owner of the shop or the truck and thus had no standing to challenge the search on the basis of a proprietary interest in either. He had no reasonable expectation of privacy in either the shop or the truck. Rawlings v. Kentucky, 448 U.S. 98 (1980). See Davasher v. State, 308 Ark. 154, 823 S.W.2d 863 (1992).

As to the argument that he could expect privacy in the truck because it was situated on the curtilage of his home, he cites only authority to the effect that a building or structure or a garden in the curtilage falls within that protection, not a vehicle belonging to some other person.

3. Suppression of the October 14 statements

Mr. Hodge argues that he was “seized” when Officer Emberton spoke with him in Paragould, when Officers Pruett and Emberton spoke with him at his residence some two hours later, and when he spoke with Officer Leach and volunteered to speak further with him at City Hall. His contention is that his statements made on those occasions, and any evidence obtained as a result of them, were inadmissible because he was given no Miranda warnings. There simply is no evidence that Mr. Hodge was a suspect on any of those occasions or that he was involuntarily present when any of those conversations occurred.

The only instance that might be questionable is Officer Emberton’s encounter with Mr. Hodge at the Paragould police station. She testified that she assumed he had been “asked” to be there in response to the Rector police request. There is no evidence that the Paragould police had forced Mr. Hodge to accompany them to the station. He was not in handcuffs and was standing by himself with no officers in his presence. Mr. Hodge’s abstract of the record reveals nothing about how he came to be present at the Paragould police station, and we are unwilling to speculate on what the facts may have been.

We view the issue of whether one has been seized by considering the totality of the circumstances. State v. Bell, 329 Ark. 422, 948 S.W.2d 557 (1997). None of the instances complained of here have been shown to have constituted a seizure; thus the evidence of the statements given by Mr. Hodge on those occasions was admissible.

4. Suppression of October 21 statement

Rector Chief of Police Tommy Baker drove Mr. Hodge from Rector to Corning for a hearing on October 27, 1995. There is no evidence that Chief Baker initiated any conversation with Mr. Hodge by asking a question of him. To the contrary, Chief Baker testified that Mr. Hodge insisted on speaking to him even though he told Mr. Hodge that his lawyers would not want him to do so.

During the trip, Mr. Hodge asked if the gun had been found. The Chief replied that it had not. Mr. Hodge indicated he could show the police the location of the holster he had discarded from the car driven by David Gunn shortly after the pistol was stolen from Mr. Flick’s shop. He said it was “across from the cemetery.” Chief Baker asked, “Across where,” and Mr. Hodge explained further. The Chief and a State Police officer went to the cemetery and found the holster where Mr. Hodge said it would be.

Mr. Hodge contends that the statement and the holster should have been suppressed because the Chief initiated the conversation without giving any warning and “steered the conversation” and “interrogated” Mr. Hodge. The evidence is simply to the contrary. In addition, Mr. Hodge testified at his trial that he had David Gunn throw the holster out of the car in which they were riding because it made the gun too bulky. There clearly was no unfair prejudice resulting from the introduction of the holster into evidence.

5. Suppression of photographs and videotape

Mr. Hodge contends it was error to allow introduction of photographs showing the decomposing bodies of the victims as they were found by the police as well as the photographs of the blood found on the couch where Mr. Flick apparently lay when he was shot, the bloody pillows apparendy used to muffle the gunshot sounds, and the blood trail down the hallway of the house. The photographs of the bodies are, no doubt, gruesome, but that does not automatically require their exclusion from evidence. Jones v. State, 329 Ark. 62, 947 S.W.2d 339 (1997).

In support of his argument, Mr. Hodge cites Berry v. State, 290 Ark. 223, 718 S.W.2d 447 (1986), a decision in which we held that autopsy photographs of a murder victim should have been suppressed because their prejudicial effect outweighed their probative value. The distinction here is that the photographs in the Berry case had very little if any probative value, but the photographs in this case showed the positions of the bodies as they were found and depicted the efforts of the killer to cover up the bodies and the blood.

The still photographs were not cumulative to each other. While the videotape showed some of the same scenes as those depicted in the still photographs, it gave different perspectives. The Trial Court refused to allow the jury to see that part of the video tape showing the removal of the bodies from the house. He also excluded the autopsy photographs. There was no need, as contended by Mr. Hodge, for the Trial Court to require alternative pictures, such as drawings or black-and-white photographs instead of the color ones, because the photographs and the videotape were relevant. We cannot say their prejudicial effect outweighed their probative value. Ark. R. Evid. 403.

6. Closure of pretrial hearing

Mr. Hodge’s counsel asked that a pretrial hearing be closed to the public on the ground that motions concerning the admissibility of evidence were to be considered and that the resulting publicity would be prejudicial to Mr. Hodge’s case. The Trial Court denied the motion, citing Memphis Publishing Co. v. Burnett, 316 Ark. 176, 871 S.W.2d 359 (1994), a case over which he had presided and which resulted in a reversal due to a closed pretrial hearing.

Mr. Hodge does not contend that the Trial Court lacked the authority, within his discretion, to hold the hearing open to the public. The decision is indeed within the discretion of a judge, and a hearing may be closed if it will result in irreparable damage to a party. Arkansas Television Co. v. Tedder, 281 Ark. 152, 662 S.W.2d 174 (1983). The argument here is that the decision was only a reaction to the Memphis Publishing Co. case and that no discretion was exercised.

To the contrary, the Trial Court invited proof of the prospect of irreparable harm to Mr. Hodge and stated that he would reconsider the matter if it appeared at the hearing in question that it should be closed. No error occurred on this point.

7. Ms. Bowlin’s testimony

There was a motion in limine to suppress the testimony of Darlene Bowlin that Mr. and Ms. Flick had told her that they were afraid of Mr. Hodge. The motion was denied. It is contended that the statements were irrelevant, too remote in time, ánd unfairly prejudicial. The State argues the statements are particularly important and relevant in view of its right to prove Mr. Hodge had a motive or plan for killing his mother and stepfather and in view of the fact that the other evidence was circumstantial.

The statement made to Ms. Bowlin by Mr. Flick was hardly remote in time, as it was made some three weeks before the deaths occurred. The statement by Ms. Flick had occurred some two months prior to that time. They were not hearsay evidence because they were statements by declarants of their present states of mind and thus fell within an exception to the hearsay rule. Ark. R. Evid. 803(3).

With respect to the relevancy of the statements, Mr. Hodge’s counsel cite a passage from a motion for rehearing quoted in a supplemental opinion accompanying the denial of rehearing in Vasquez v. State, 287 Ark. 468, 473A-474, 702 S.W.2d 411 (1986). The quoted passage was itself a quotation from McCormick on Evidence, § 296, pp. 853-854 (3d ed. 1984), in which it was recognized that an expression of fear falls within the hearsay exception of Rule 803(3). It continues to point out that statements such as “I am afraid of D” are rare and that the usual case is “D had threatened me.” The treatise condemns the latter because it would probably be used by the jury to punish the defendant for a specific act. The instant case is the “rare case” of which the passage speaks. What we have here are mere statements of the declarants’ fear of Mr. Hodge, and neither the Vasquez case nor the passage from McCormick can be said to require that we exclude the statements on the basis of their irrelevancy.

Relevancy-of-evidence decisions are within the discretion of the Trial Court, Dixon v. State, 311 Ark. 613, 846 S.W.2d 170 (1993), and we cannot say that discretion was abused in this instance.

8. Rule 404(b)

Mr. Hodge argues that the introduction of evidence of his party behavior, including the use of alcohol and marijuana, his engaging in sexual relations with a teenaged girl, and his unauthorized use of his stepfather’s credit card and business checks to obtain cash and goods was error in violation of Ark. R. Evid. 404(b).

The evidence was admitted by the Trial Court who quoted from the rule to the effect that a defendant’s bad acts may be introduced if they tend to prove the defendant’s motive for the crime at hand. The State contends that at least a part of Mr. Hodge’s motive in killing his victims was his desire to engage in a “hedonistic lifestyle.” Again, we cannot say that the Trial Court’s application of Rule 404(b) was an abuse of discretion. That is the standard we apply in reviewing decisions made pursuant to Rule 404(b). Bragg v. State, 328 Ark. 613, 946 S.W.2d 654 (1997).

9. Admissibility of audio-tape statement

The jury was permitted to listen to an audio tape of Mr. Hodge’s statement made to the State Police investigator. There were a number of inaudible portions of the tape, some of which were apparently caused by the fact that Mr. Hodge was crying and placing the sleeve of his shirt in or over his mouth while the recording was being made. Mr. Hodge contends the inaudible parts may have been of exculpatory answers he was giving to the questions being asked.

There was no abuse of discretion, and, again, that is the standard we apply. Hamm v. State, 301 Ark. 154, 782 S.W.2d 577 (1990). As mentioned above, the statement was not per se inculpatory. Mr. Hodge said, through his tears, that he could not remember what happened and felt he could not have committed the crimes. It was hardly as inculpatory or prejudicial as his testimony at the trial.

The Trial Court permitted the jurors to see a transcript of the tape as it was being played for them, but he did not allow them to take the transcript to the jury room during their deliberations. In addition, he admonished the jurors that they were to determine what they heard, and if the transcript varied from the audio tape, they were to follow the tape. Thus, to the extent the transcript may have varied from the tape recording, as Mr. Hodge contends, there was no prejudice.

10, The threat

When David Gunn was asked to testify about Mr. Hodge’s statement that he had a plan to kill Mr. Flick, counsel for Mr. Hodge objected on the basis of irrelevancy and questioned the prosecutor as to when Mr. Hodge was supposed to have made the statement. The prosecutor replied he thought “within the last 2 or 3 months before this.” The Trial Court announced he would allow the evidence if the statement was made within the previous two or three months. Defense counsel then stated his position that the evidence was irrelevant. Upon further examination, Mr. Gunn stated that Mr. Hodge told him of the plan some six months earlier. The objection was renewed.

On appeal, Mr. Hodge argues that it was error for the Trial Court to allow the evidence of the statement made six months ago after having ruled that he would admit it if the statement had occurred within the last two or three months. The State responds that there was no abuse of discretion in that the statement was relevant to the elements of premeditation and deliberation, see Shankle v. State, 309 Ark. 40, 827 S.W.2d 642 (1992), and cites a case in which a threat a year and a half before the event was held admissible. Lang v. State, 258 Ark. 504, 527 S.W.2d 900 (1975).

We do not see how it can be said that the evidence is irrelevant, and, in view of the Lang opinion, we are not troubled by the remoteness argument, assuming it was preserved at the trial.

ÍÍ. Refusal of sex-paraphernalia evidence

When the police entered Mr. Flick’s shop, they found and photographed certain sex paraphernalia. One of the photographs was introduced by the defense in connection with its proof that David and Barbara Flick slept separately; that she was having an affair with another man; and that Mr. Hodge was incensed over discovering the paraphernalia, which led to the argument to which he testified as having occurred on the evening of October 8.

The Trial Court excluded a second photograph of the paraphernalia because it was cumulative. Mr. Hodge simply states in his argument that the photograph was not cumulative without any description of the differences and the prejudice resulting from the photograph being held inadmissible. There was no abuse of discretion.

12. Exclusion of David Flick’s criminal record

Mr. Hodge presented evidence that David Flick had been convicted of a felony in California. The conviction resulted from an automobile collision in which a woman was injured and Mr. Flick was found to have been driving under the influence of alcohol. There was also some evidence that Mr. Flick’s probationary sentence was revoked and that he was incarcerated for 45 days in 1981.

The Trial Court correctly excluded the evidence because the conviction and Mr. Flick’s last release from incarceration occurred more than ten years before the trial in this case. Ark. R. Evid. 609(b).

13. Testimony of Pam Suitt

Over Mr. Hodge’s hearsay objection, the Trial Court allowed Pam Suitt to testify that David Flick and Mr. Hodge would not be making the trip to Florida to visit with Ms. Suitt because they could not get along. The Trial Court overruled the objection, citing Ark. R. Evid. 803(3), apparently because it was a statement of Ms. Flick’s plan to visit.

In view of Mr. Hodge’s testimony about his relationship with Mr. Flick, and how he hated him, we can hardly say that the testimony was prejudicial.

14. Testimony of Courtney Simpson

Courtney Simpson, a friend of Mr. Hodge who rode in Mr. Flick’s truck with Mr. Hodge on Thursday, October 12, testified that Mr. Hodge pulled a pistol out of the truck console and told him that he had the pistol in the truck in case someone tried to “fuck with” them. Mr. Hodge contends it was error to have allowed that testimony because it was irrelevant and improper character evidence, excludable pursuant to Rules 403 and 404(b). The only trial objection abstracted mentioned Rule 403. Thus, the only question we consider is whether the evidence was so unfairly prejudicial as to outweigh its probative value.

Again, we hold there was no abuse of discretion. The evidence showed Mr. Hodge remained in possession of the pistol for several days after the killings occurred before disposing of it. The vulgarity of the statement did not make it unduly prejudicial.

15. Rule 4-3 (h) '

The record in this case has been examined for errors prejudicial to the defendant in accordance with Ark. Sup. Ct. R. 4-3(h), and none has been found.

Affirmed.