author: Tom Glaze, Justice,

text:
    Terry Lynn CARROLL v. STATE of Arkansas
    CR 96-770
    923 S.W.2d 872
    Supreme Court of Arkansas
    Opinion delivered July 5, 1996
    Dissenting Opinion delivered July 5, 1996

      William R. Simpson, Jr., Public Defender, by: Bret Qualls, for petitioner.

      Winston Bryant, Att’y Gen., by: Clint Miller, Deputy Att’y Gen., Sr. Appellate Advocate, for respondent.
    Glaze and Roaf, JJ., would deny.
    Dudley, J., not participating.
   Tom Glaze, Justice,

dissenting. This court has authority to stay proceedings pending an appeal, Bowen v. State, 323 Ark. 233, 913 S.W.2d 304 (1996); Clark v. State, 308 Ark. 453, 824 S.W.2d 345 (1992), and certainly it has done so when a meritorious reason has been shown. In the present case, petitioner Terry Carroll requests this court issue a writ of prohibition, to order the trial court to desist from proceeding with his trial scheduled to begin on July 8, 1996. Carroll’s request is assertedly made so that this court might consider his interlocutory appeal from the trial judge’s denial of his motion to transfer to juvenile court. From my review of the record, Carroll’s writ (or stay) request has no merit and should be denied.

On July 5, 1995, Carroll was charged by information with three counts of capital murder and one count of attempted capital murder. Carroll, along with three others, allegedly participated in the execution-style murder of three children and attempted murder of another on June 4, 1995. At the time of the murder, Carroll was 16 years old.

To support his petition for issuance of a writ of prohibition, Carroll cites Hamilton v. State, 320 Ark. 346, 896 S.W.2d 877 (1995), where this court held appeals from motions to transfer to juvenile court are to be interlocutory, and any appeal from such an order after a judgment of conviction in circuit court is untimely. This court, however, has held many times that prohibition is an extraordinary writ and is never issued to prohibit a trial court from erroneously exercising its jurisdiction, only where it is proposing to act in excess of its jurisdiction. Fletcher v. State, 318 Ark. 298, 884 S.W.2d 623 (1994). A circuit court and a juvenile court have concurrent jurisdiction and a prosecuting attorney may charge a juvenile in either court when a case involves a juvenile at least sixteen years old when he engages in conduct that, if committed by an adult, would be any felony. Ark. Code Ann. § 9-27-318 (b)(1) (Supp. 1995). Here, the circuit court indisputably has jurisdiction to try Carroll on the four felony charges, so a writ of prohibition clearly does not lie against it.

Although Carroll was charged and counsel appointed almost a year ago on July 17, 1995, and he had filed other motions, he has waited until now to file his motion for transfer to juvenile court. After a hearing was held on the motion to transfer, the circuit court denied the motion, finding the charged offenses were serious and violent in nature. The order denying the transfer was entered on July 2, 1996.

Carroll’s petition for writ of prohibition to this court fails to show that his interlocutory appeal has any merit. Carroll merely contends because he was aged sixteen at the time the offenses were committed, his case belongs in juvenile court. Carroll’s bare contention is insufficient under the statute to support a transfer, and reflects little, if any, possibility of success on appeal.

The burden is on Carroll, as petitioner, to present a sufficient basis to support his petition and to show that his request to transfer to juvenile court has merit. Butler v. State, 324 Ark. 476, 922 S.W.2d 685 (1996). Carroll does not have an automatic right to a transfer to juvenile court, and this court should not stay proceedings without a show of merit.

For the foregoing reasons, I would treat Carroll’s petition as one for stay of proceedings, and deny it.


source: Caselaw Access Project

author: BRADLEY D. Jesson, Chief Justice.

license: Public Domain

text:
    Freddie Wayne CHOATE v. STATE of Arkansas
    CR 95-1327
    925 S.W.2d 409
    Supreme Court of Arkansas
    Opinion delivered July 8, 1996

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

      Winston Bryant, Att’y Gen., by: Clint Miller, Deputy Att’y Gen., Sr. Appellate Advocate for appellee.
   BRADLEY D. Jesson, Chief Justice.

Appellant Freddie Wayne Choate was convicted by a jury of the first-degree murder of Alfred “Pug” McHeran and was sentenced to life imprisonment. His sole allegation on appeal is that the trial court erred in denying his motion for directed verdict. Particularly, he argues that there was insufficient evidence to corroborate the testimony of the victim’s widow and State’s eyewitness, Francis “Carline” McHeran, whom he claims was an accomplice to the murder. We affirm.

The following evidence, as viewed most favorably to the State, was presented at trial. Carline McHeran testified that she and the victim, Pug McHeran, had been married for two years. Carline, who is white, and Pug, who was black, were homeless. They had been living together in a tent along the Arkansas River for eight years. On the evening of April 13, 1994, the two were at the Greyhound Bus Station in North Little Rock. Pug, an alcoholic, had been drinking whiskey all day. When Carline left the bus station to look for Pug, she found him outside talking to the appellant, who was driving a blue Dodge truck. Carline had never met the appellant before, nor had she seen him with her husband. When she approached the two men, they talked about going to Texarkana. Though Carline did not want to go on the trip, she got in the blue truck, explaining that she followed her husband wherever he went.

Carline sat in the middle of the cab between the two men. Appellant was driving. The three headed toward Texarkana before making a U-turn and proceeding toward Hensley in Pulaski County. Appellant and Pug began fighting over a whiskey bottle that Pug had. During the course of the argument, appellant, claiming to be from the Aryan nation, stated that he “hated niggers” and interracial couples. According to Carline, appellant repeatedly stated he was “going to shoot that nigger.” The argument escalated, and Pug wanted to get out of the truck. Appellant, who had been transferring a gun from one hand to the other, stopped the truck and shot Pug, causing him to fall forward. As Carline was leaning Pug back up, she noticed blood on the right sleeve of the shirt she was wearing. Appellant repeatedly threatened to kill Carline, telling her “I can kill you and get by with it.” They proceeded down Cemetery Road in Hensley, where, at appellant’s direction, Carline opened the passenger door of the truck, and the two pushed Pug out with their feet.

Michael Scroggins discovered the victim’s body shortly after 11:00 p.m. on April 13. Officers from the Pulaski County Sheriff’s Office arrived shortly after 11:30 p.m. Desiree Bell, who lived on a gravel road off Cemetery Road, was driving home when she observed the police. Bell testified that, after driving past the scene, she noticed an unfamiliar Dodge truck parked at the end of Cemetery Road. After the police were gone, she saw the truck drive back and forth down Cemetery Road.

Carline testified that, after her husband was pushed out of the pickup, she and appellant got lost on Cemetery Road for approximately three to four hours. On the way to Heber Springs, they stopped at a Shell Station on Sixth Street in Little Rock, where Carline called her daughter, Tanya “Tammy” Moore. Carline pleaded with her daughter to come get her, telling her “it was life or death.” She then hung up the phone without giving Tammy the phone number, as she was afraid that if her daughter came to get her, appellant would “get them both.”

Upon arrival in Heber Springs on April 14, appellant and Carline stopped to eat before checking into the Holiday Inn Express at approximately 10:00 a.m. Carline went to the front desk and inquired about the cost of a room. She then went outside to get money from appellant and returned to the front desk. She explained that she did not tell the hotel personnel anything because appellant had threatened to kill her. Appellant and Carline checked into Room 117 of the hotel. Once in the room, appellant told her to throw the bloodied shirt she was wearing in a trash bin. Appellant, who had told Carline he was a painter, left the room at approximately 6:00 a.m. the next day to go to work. Carline then called her sister, Patsy Yarberry, and told her where she was. Yarberry, who had to go to work, called Tammy and told her to call the police. Officers found Carline at the hotel that morning, and after questioning her, arrested appellant for the murder.

Officer Sean O’Nale of the Pulaski County Sheriff’s Office recovered the bloodied shirt from the hotel room and carpeting from the blue Dodge truck and sent both to the State Crime Lab. Jane Parsons, a serologist with the State Crime Lab, compared the victim’s blood with the blood on the submitted items. According to Parsons, less than one percent of the African-American population in the United States would have had the combination of enzymes found on the auto carpet. It was her opinion that the blood on the carpet was consistent with the victim’s blood. Parsons further opined that approximately two percent of the African-American population would have the combination of enzymes found on the shirt. There was nothing inconsistent with the blood on the shirt and the victim’s blood. Dr. William Sturner, Chief Medical Examiner of the State Crime Lab, performed the autopsy on the victim and determined that his death was caused by a single gunshot wound to the head, which entered above the victim’s left eyelid and exited through the back of the right side of the head.

The trial court, over the State’s objection, concluded that there was sufficient circumstantial evidence from which the jury could have concluded that Carline was an accomplice, and thus instructed the jury with AMI Crim. 2d 403, entitled “Accomplice Status in Dispute — Corroboration.” The trial court reasoned that the jury could look at the circumstances after the offense and determine that Carline was an accomplice to the murder, thus triggering the corroboration requirement. After hearing all the evidence in the guilt-innocence phase, the jury retired and returned a verdict of guilty of first-degree murder. The State presented evidence of appellant’s four prior felony convictions, and the jury recommended that appellant be sentenced to life imprisonment. The trial court entered judgment accordingly, from which appellant now appeals.

We examine the denial of a directed-verdict motion under the following standards:

This court treats the denial of a motion for directed verdict as a challenge to the sufficiency of the evidence. The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict; substantial evidence must be forceful enough to compel a conclusion one way or the other beyond suspicion and conjecture. On appellate review, it is only necessary for this court to ascertain that evidence which is most favorable to appellee, and it is permissible to consider only that evidence which supports the guilty verdict.

King v. State, 323 Ark. 671, 916 S.W.2d 732 (1996) (other citations omitted). In King, we also discussed at length the burden of proof on accomplice liability:

The defendant bears the burden of proving that a witness is an accomplice. Cole v. State, 323 Ark. 8, 913 S.W.2d 255 (1996). An accomplice is one who, with the purpose of promoting or facilitating the commission of an offense, either solicits, advises, encourages, or coerces another person to commit the offense, aids, agrees to aid, or attempts to aid the other person in planning or committing the offense, or, having a legal duty to prevent the offense, fails to make a proper effort to prevent the commission of the offense. Ark. Code Ann. § 5-2-403 (Repl. 1993). One’s status as an accomplice is a mixed question of law and fact. Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981). One’s presence at the crime scene or failure to inform law enforcement officers of a crime does not make one an accomplice as a matter of law. Pilcher v. State, 303 Ark. 335, 796 S.W.2d 845 (1990) (citing Spears v. State, 280 Ark. 577, 660 S.W.2d 913 (1983)).

323 Ark. at 677.

Contrary to the State’s assertion in its brief, the jury in this case was instructed with AMI Crim. 2d 403, and was thus able to consider whether Carline was an accomplice to her husband’s murder. The jury was thus instructed that if they found Carline to be an accomplice, her testimony must be corroborated by other evidence to connect appellant with the murder. The credibility of Carline’s testimony was a matter for the jury to resolve and the jury was so instructed. In this case, we do not know whether the. jury actually found that Carline was an accomplice. Even assuming that they did, there was sufficient corroborative evidence presented.

Patricia Allen, a bartender and waitress of the Rendevous Restaurant in North Litde Rock, corroborated Carline’s testimony regarding appellant’s motive for the murder. Allen testified that appellant was drinking Old Charter at the restaurant, located near the bus station, between 3:00 p.m. and 5:00 p.m. on April 13. Appellant began talking to Allen and asked her if she liked black people, and if she knew anyone who had anything to do with a white supremacist group. Appellant told her that he did not like “niggers.” Desiree Bell testified that she saw an unfamiliar Dodge truck matching the description of the truck appellant was driving down the road from the murder scene. Bill Cooper testified that appellant had his blue Dodge pickup during the time of the murder. Moreover, both Carline’s daughter, Tammy Moore, and her sister, Patsy Yarberry, described Carline as “hysterical” when they spoke with her on the phone. Brenda Ringer, an employee of Holiday Inn Express, testified that Carline appeared shaky and -was trembling when she saw her in the hotel lobby. The blood found on the auto carpet and the blood on the shirt, both consistent with the victim’s blood, corroborated Carline’s story of how the murder occurred. Dr. Sturner’s testimony about the trajectory of the gunshot wound is likewise consistent with Carline’s account of how the murder took place.

Based on the foregoing, we conclude that the evidence was sufficient to support appellant’s conviction for first-degree murder. We have reviewed the record pursuant to Ark. Sup. Ct. R. 4-3(h) and have determined that there are no errors with respect to rulings on objections or motions prejudicial to the appellant not discussed above.

Affirmed.

DUDLEY, J., not participating.


text:
    CITIZENS to ESTABLISH a REFORM PARTY in Arkansas, et al. v. Sharon PRIEST, in Her Official Capacity as Secretary of State for the State of Arkansas
    96-639
    926 S.W.2d 432
    Supreme Court of Arkansas
    Opinion delivered July 8, 1996

      Cuddy & Lanham, by: Samuel Lanham, Jr., of Counsel, and Williams & Anderson, by: G. Alan Perkins, for appellants.

      Winston Bryant, Att’y Gen., by: Angela S. Jegley, Asst. Att’y Gen., for appellee.
   BRADLEY D. Jesson, Chief Justice.

This case concerns the appellants’ efforts to establish the Reform Party as a new political party in the State of Arkansas. Their objective is to field a slate of candidates for national, state, and county offices in the 1996 general election. Arkansas law provides two means of forming a new political party. The convention process permits a political group to hold a convention for the purpose of choosing presidential and vice-presidential candidates. See Ark. Code Ann. § 7-8-302 (Repl. 1993). If the candidates poll at least three percent of the vote in the general election, the candidates’ group is established as a political party. See Ark. Code Ann. § 7-1-101 (1)(A) (Supp. 1995). The petition process, which was used by these appellants, permits a political group to submit a petition to the Secretary of State declaring its intention of organizing a political party. The petition must contain the signatures of qualified electors equal in number to at least three percent of the total vote cast for the office of Governor or nominees for presidential electors at the last preceding election. See Ark. Code Ann. § 7-1-101 (1)(A) (Supp. 1995); Ark. Code Ann. § 7-7-203(g) (Supp. 1995).

The central issue in this case concerns the deadline by which such a petition must be filed. There are two Arkansas statutes which address the deadline and they are in utter conflict. Ark. Code Ann. § 7-1-101 (1)(B) (Supp. 1995) sets out the deadline as follows:

Except in preferential presidential primary elections, the petition shall be filed with the Secretary of State not later than 12:00 noon of the first Tuesday in May before the preferential primary election in which the political party filing the petition desires to participate.
Ark. Code Ann. § 7-7-203 (g) sets out a different deadline:
The petitions shall be filed with the Secretary of State no later than 12:00 noon on the first Tuesday in the fourth month before the preferential primary election....However, this subsection does not apply to preferential presidential primary elections.

Two problems are readily apparent. First, under § 7-1-101(1)(B), the effective filing deadline in 1996 was May 7. Under § 7-7-203(g), the effective filing deadline for 1996 was January 2. Second, each statute exempts preferential presidential primaries from its application. The trial judge resolved these matters by holding that the January 2 deadline in § 7-7-203(g) was controlling and that the legislature did not intend to exempt presidential primaries from § 7-7-203(g). We agree and affirm.

The facts of this case are undisputed. In November of 1995, Deborah Kraus, a political consultant for the Reform Party, approached a representative of the Secretary of State’s office to discuss procedures for formation of a new political party. She was told that her group would have to submit a petition containing 21,505 signatures, which was three percent of the total votes cast for Governor in the 1994 election. She was further told that the deadline for filing the petition with the Secretary of State was January 2, 1996. On that date, the appellants presented a petition containing 28,546 signatures. Forty-five days later, the Secretary rejected the petition after concluding that only 17,262 of the signatures were valid.

Upon rejection of their petition, the appellants reviewed the law and discovered the conflict which exists between § 7-1-101 (1)(B) and § 7-7-203(g). They then took the position that the deadline for filing their petition was not January 2, 1996, as established by § 7-7-203(g), but May 7, 1996, as established by § 7-1-101(1)(B). On May 6, 1996, they tendered to the Secretary of State a petition containing 7,000 new signatures and purported proof that 1,952 signatures from the original petition had been wrongfully rejected. The Secretary refused to accept the tender and reasserted the January 2, 1996 deadline. The appellants immediately filed suit in Pulaski County Circuit Court, seeking the following relief: 1) a writ of mandamus directing the Secretary to accept the May 6 petition and declare the Reform Party a new political party in Arkansas; 2) a declaration that the May 7 deadline set out § 7-1-101(1)(B) was the operative deadline; 3) a declaration that neither § 7-l-101(l)(B) nor § 7-7-203(g) provided a deadline for a new party to participate in a presidential preferential primary election; and, 4) a declaration that the Secretary’s refusal to accept the May 6 petition violated the Arkansas Civil Bights Act of 1993.

A hearing was held on May 9, 1996, just three days after the lawsuit was filed. On May 14, 1996, one week before the State’s preferential primary election, the trial judge issued a letter opinion in which he held that the controlling deadline was January 2, 1996, pursuant to § 7-7-203(g). The judge further held that the legislature did not intend to exempt new parties wishing to participate in presidential preferential primaries from the January 2 deadline. Finally, the judge held that no violation of the Arkansas Civil Bights Act had occurred. The letter ruling was memorialized in an order entered May 17, 1996 and it is that order from which the appellants bring their appeal.

The basic rule of statutory construction, to which all other interpretive guides must yield, is to give effect to the intent of the General Assembly. Pugh v. St. Paul Fire & Marine Ins. Co., 317 Ark. 304, 877 S.W.2d 577 (1994). As a guide in ascertaining legislative intent, we often examine the history of the statutes involved, as well as the contemporaneous conditions at the time of their enactment, the consequences of interpretation, and all other matters of common knowledge within the court’s jurisdiction. City of Little Rock v. AT&T Comm., 318 Ark. 616, 888 S.W.2d 290 (1994); Mears v. Arkansas State Hospital, 265 Ark. 844, 581 S.W.2d 339 (1979). A brief review of legislative history in this case shows the genesis of the conflict between § 7-1-101 (1)(B) and § 7-7-203(g).

1971 Legislation

The first conflict between the statutes appeared after the passage of Acts 261, 347 and 829 of 1971. Act 261 established a deadline which fell during the month of May under § 7-1-101(1)(B). Acts 347 and 829 established a deadline which fell during the month of March under § 7-7-203(g).

1977 Legislation

In 1977, a federal court ruled that the conflict between § 7-1-101(1)(B) and § 7-7-203(g) rendered the new-party-petition deadline vague and unenforceable. American Party of Arkansas v. Jernigan, 424 F. Supp. 943 (E.D. Ark. 1977). Special note was made of the confusion engendered by piecemeal amendment of the State’s election laws. In response to the federal court ruling, the legislature passed Act 888 of 1977. The Act established an identical deadline for both § 7-1-101 (1)(B) and 7-7-203(g): the first Tuesday in May before the preferential primary. For the moment, the conflict was resolved.

1987 Legislation

Ten years later, a new set of significant election laws was enacted. Act 123 of 1987 created a separate and distinct presidential preferential primary to be held the second Tuesday in March (the preferential primary for state and county offices was scheduled two weeks before the second Tuesday in June). Section 1 of the Act contained the requirements for forming a new political party with the purpose of participating in the presidential primary. The petition deadline was the second Tuesday in November in the year preceding the presidential primary. The legislature did not change the “first Tuesday in May” deadlines contained in § 7-1-101 (1)(B) and § 7-7-203 (g). However, language was inserted into those statutes to show that they were inapplicable to preferential presidential primary elections. Section 7-1-101 (1)(B) now began with the phrase “except in preferential presidential primary elections...” and § 7-7-203(g) now ended with the phrase “this section does not apply to preferential presidential primary candidates.”

In the same legislative session, the General Assembly passed Act 248 of 1987 and it is here that we see the origin of the present conflict. Without explanation, § 7-7-203(g) was amended to read, in pertinent part, as follows:

The petitions shall be filed with the Secretary of State no later than twelve o’clock (12:00) noon on the first Tuesday in the fourth calendar month before the preferential primary election.

Act 248 not only changed the statute’s May deadline to a January deadline, it removed all language excepting presidential primaries from the statute’s application. Thus, at the end of 1987, election laws pertaining to new-party-petition deadlines were in hopeless conflict. One law imposed a November deadline for parties wishing to run a candidate in the presidential primary; another law imposed a May deadline but excepted presidential primaries; and a third law imposed a January deadline with no exceptions.

1989 Legislation

Two years later, some of this confusion was alleviated. Act 700 of 1989 repealed those parts of Act 123 of 1987 pertaining to presidential primaries. Thus, the separate and distinct presidential primary, along with the November deadline, ceased to exist. Sections 7-l-101(l)(B) and 7-7-203(g) continued in full force and effect. However, even though it was no longer necessary, each statute continued to reflect that its provisions were inapplicable to presidential primaries. In the case of § 7-1-101 (1)(B), it is clear that the legislature simply failed to address the further necessity of the presidential-primary exception. In the case of § 7-7-203 (g), the presence of the presidential-primary exception was more puzzling. Act 248 of 1987 completely removed all such language from the statute. Yet the following phrase, somewhat modified from its original form, appeared in the Arkansas Code version of the statute:

this subsection does not apply to preferential presidential primary elections. (Emphasis added to show modification of language).

See Ark. Code Ann. § 7-7-203(g) (Supp. 1987). See also the 1989, 1993, and 1995 Supplements and the 1993 Replacement volume.

1995 Legislation

We arrive now at the contemporary legislation that was spawned by this history. Three Acts pertaining to election laws were passed by the legislature in 1995. The first, Act 901, was passed for the purpose of establishing state-supported primary elections. Although Act 901 did not purport to amend § 7-7-203(g), it set out the January deadline and, inexplicably, added the type of language which had been deleted by Act 248 of 1987: “this subsection does not apply to preferential presidential primary elections.” This language is identical to that contained in the Arkansas Code beginning in 1987.

Acts 946 and 943 were passed for the purpose of complying with the National Voter Registration Act of 1993. See 42 U.S.C. §§ 1973gg to gg-10 (Supp. 1996). Neither Act purported to amend § 7-l-101(l)(B), yet they each reiterated the May deadline and the statute’s presidential-primary exception. These Acts were approved two days after Act 901 was approved.

With this history in mind, we turn to our analysis of the issues. We address first the language of both statutes, which excepts presidential primaries from their application. The exception is superfluous in both cases. It is held over from a time when it was necessary to distinguish between presidential and nonpresidential primaries. Once Act 700 of 1989 did away with separate presidential primaries and their corresponding November deadline, the exception contained in § 7-l-101(l)(B) and § 7-7-203(g) was no longer necessary. Words that the legislature has inadvertently left in a statute and that are unnecessary or serve no useful purpose may be disregarded. City of Fort Smith v. Tate, 311 Ark. 405, 844 S.W.2d 356 (1993); 2A N.J. Singer Sutherland Statutory Construction, § 47.37 (5th ed. 1994). Further, repeal of one act may render provisions of another act meaningless. Witt v. Arkansas Game & Fish Comm’n, 195 Ark. 21, 110 S.W.2d 704 (1937).

We also note that, in the case of § 7-7-203(g), the presidential-primary exception appears to have been included by mistake. As previously stated, the legislature eliminated the exception in Act 248 of 1987. Nevertheless, it was erroneously included in the Code beginning with the 1987 Supplement. In drafting Acts 946 and 963 of 1995, the legislature obviously looked to the Code provisions. The language used in those Acts does not reflect the original language contained in Act 123 of 1987. It mirrors the modified version of the exception which erroneously appeared in the Arkansas Code. We are reluctant to interpret a statute in a manner contrary to its express language, but we cannot allow a drafting error or codification error to circumvent legislative intent. Rosario v. State, 319 Ark. 764, 894 S.W.2d 888 (1995); Cox v. City of Caddo Valley, 305 Ark. 155, 806 S.W.2d 6 (1991).

Finally, the legislature could not have intended that new parties wishing to run a candidate for president be completely exempt from any petition deadline. The appellants admitted to the trial court that some type of deadline was necessary, as a practical matter. We will not adopt an interpretation of the law that leads to an absurd result. Henson v. Fleet Mtg. Co., 319 Ark. 491, 892 S.W.2d 250 (1995). We therefore hold that the legislature did not intend to except presidential primaries from the application of the new party petition deadlines in these statutes, § 7-7-203(g) in particular.

We now turn to the question of which deadline must prevail. The statutes are in hopeless conflict, so one must control and one must yield. The appellants urge us to adopt the approach we have often taken when two statutes are in conflict with each other, i.e., the latter act controls. See Gibson v. City of Trumann, 311 Ark. 561, 845 S.W.2d 515 (1993); Roberts v. Tice, 198 Ark. 397, 129 S.W.2d 258 (1939). They point to the fact that Acts 946 and 963 of 1995, which set out the May deadline, were passed two days later than Act 901 of 1995, which sets out the January deadline. We decline to make a rigid application of the “last passed” rule in this case. In Horn v. White, 225 Ark. 540, 284 S.W.2d 122 (1955), we observed that the rule must yield when its application would undermine legislative intent. We stated the following:

Where Acts passed at the same session contain conflicting clauses, the whole record of legislation will be examined to ascertain the Legislative intent, and such intent, if ascertained, will be. given effect, regardless of priority of enactment.

It is also noteworthy that, since 1987, the only enactments of the deadlines in either statute were in the nature of nonamendatory reenactments. Act 241 of 1991 and Acts 946 and 963 of 1995 merely retained the May deadline originally established in Act 123 of 1987. Act 901 of 1995 merely retained the January deadline from Act 248 of 1987. When an act amends the law, portions of the law that are not amended but simply retained are not thought of as new enactments. Peterson Produce Co. v. Cheney, 237 Ark. 600, 374 S.W.2d 809 (1964). Resorting to the “last passed” rule under such circumstances would elevate mechanical application over thoughtful analysis.

In divining the intent of the legislature, we may construe the statutes in question by looking to all laws on the subject, viewing them as a single system and giving effect to the general purpose of the system. Hercules, Inc. v. Pledger, 319 Ark. 702, 894 S.W.2d 576 (1995); Pace v. State Use Saline County, 189 Ark. 1104, 76 S.W.2d 294 (1934). When we view our State’s system of election laws as a whole, it is clear that the January deadline contained in § 7-7-203(g) would most likely serve the intention of the legislature.

The May deadline contained in § 7-l-101(l)(B) is virtually unworkable under Arkansas’s scheme of election laws. Political party nominees in special or general elections must be selected first at a primary election. Lewis v. West, 318 Ark. 334, 885 S.W.2d 663 (1994). In 1996, the preferential primary election fell just two weeks after the May 7 deadline established by § 7-1-101 (1)(B). A potential political party submitting its petition on May 7 could not, from a practical standpoint, have participated in the primary process. Jacque Alexander, Director of Elections for the Secretary of State, testified below that her office had needed thirty days to review the 28,546 signatures submitted in the original petition. The January deadline would allow a proper review of petition signatures; a May deadline would not. Additionally, various statutory deadlines that peaceably coexist with a January 2 deadline would be rendered meaningless if the May 7 deadline prevailed. See Ark. Code Ann. § 7-7-203(c) (Supp. 1995) (party pledges and filing fees in March and April); Ark. Code Ann. § 7-7-203(d) (Supp. 1995) (certification of candidates in March); Ark. Code Ann. § 7-7-305(b) (Supp. 1995) (drawing for ballot positions in April); Ark. Code Ann. § 7-5-418(a) (Supp. 1995) (early voting beginning on May 6). Interpretation of a statute that leads to absurd or unworkable consequences will be rejected. Henson v. Fleet Mtg. Co., supra; Horn v. White, supra.

The appellants argue that the trial judge invaded the province of the legislature by considering the wisdom or expediency of the statutes involved. It is true that courts must take care when interpreting statutes to avoid overstepping the bounds of the judiciary function. However, that was not done in this case. The trial court was faced with the task of choosing between two conflicting statutes. It was proper, and in fact necessary, for the court to consider the practical effect of choosing one statute over another.

Finally, we observe that the last purposeful, unadulterated enactment of a new-petition deadline, which was not the product of a mere restatement of existing law, occurred in Act 248 of 1987. That act established a January deadline with no exceptions of any kind.

In light of the foregoing, we are convinced that the deadline contained in § 7-7-203 (g) best reflects the intention of the legislature. Since that deadline for purposes of 1996 would have been January 2, and since the appellants did not file a meritorious petition by that date, they failed to qualify as a new political party.

The appellants conceded in oral argument that the viability of their claim under the Arkansas Civil Rights Act of 1993, Ark. Code Ann. §§ 16-123-101 to 108 (Supp. 1995) was dependent upon our ruling with regard to the statutory deadline. In light of our holding, it is not necessary to address the appellants’ civil rights claims.

In closing, we note that the relief sought by the appellants in this case is unusual. They do not wish to hold a primary. Rather they ask that we allow them to hold a convention for the purpose of selecting candidates for the general election in November, much the way a vacancy in office is filled. See Ark. Code Ann. § 7-7-104(a)(1) (Repl. 1993). Since we are holding against the appellants on the deadline question, we do not reach the issue of whether such a remedy is available, in light of Lewis v. West, supra.

Affirmed.

DUDLEY, J., not participating.

       The Eighth Circuit had just decided that political parties could not be required to pay for their own primaries. Republican Party of Arkansas v. Faulkner County, 49 F.3d 1289 (8th Cir. 1995).


author: DAVID Newbern, Justice.

text:
    Antwan Terrell SCOTT v. STATE of Arkansas
    CR 96-20
    924 S.W.2d 248
    Supreme Court of Arkansas
    Opinion delivered July 8, 1996

      J. Blake Hendrix, for appellant.

      Winston Bryant, Att’y Gen., by: Vada Berger, Asst. Att’y Gen., for appellee.
   DAVID Newbern, Justice.

Antwan Terrell Scott was charged with first-degree murder after witnesses identified him as the person who shot and killed Corey Jones. He was convicted by jury and sentenced to forty years imprisonment. He contends on appeal that the Trial Court should have suppressed all evidence of his gang membership and should have granted his motion for mistrial when it was revealed that he smoked marijuana on the evening of the murder. The conviction is affirmed because the gang-affiliation evidence was admissible to show the motive for the crime and the evidence of drug use was initially brought out by defense counsel during its case-in-chief.

On the evening of September 7, 1994, William Watkins, an officer with the Little Rock Police Department, received a disturbance call concerning the discharge of firearms. Officer Watkins responded to the call and found three young men standing over the body of the victim, Corey Jones. Mr. Jones had been fatally shot one time in the chest with a small caliber firearm.

Detective Ronnie Smith was assigned to the case and questioned the witnesses to the shooting. As a result of the investigation, the police determined that Mr. Scott was the shootist. Mr. Scott, who was seventeen years old at the time, was transported to the police station by a school resources officer on September 19, 1994. He was mirandized and questioned on his role in the shooting.

Although Mr. Scott initially denied being at the party, and later denied his role as the shootist, he ultimately admitted that he fired the fatal shot. According to the statement given by Mr. Scott, he went to the party with two of his friends, left the party, then returned. A short time after his return “about fifteen Crips and Folks started coming in.”

Mr. Scott told the police that he and his friends left the house in order to avoid trouble, but approximately five minutes later the victim and several of his friends followed them out of the door. When the victim walked out, Mr. Scott saw him reach for a handgun and reacted by pulling his own .25 caliber pistol, firing one shot, and fleeing from the scene. He explained his actions by saying that he was in fear for his life.

Mr. Scott was charged with first-degree murder. Prior to trial he filed motions in limine to suppress any evidence of gang membership. The Trial Court ruled that the evidence would be admissible because it was relevant to the motive for the shooting.

At trial, the State presented evidence that Mr. Scott was a member of the Vice Lords gang and the victim was a member of the Folks gang. Evidence was also presented that the members of the two gangs did not get along. The State theorized to the jury that the gang rivalry was the motive behind the killing.

Mr. Scott’s brother, Rodney Scott, testified for the defense. On direct examination he stated that he did not see his brother fire a weapon. However, he admitted that they were in the yard rolling up a marijuana cigarette just prior to the shooting. On cross-examination, he repeated his admissions concerning drug use. Following the last admission, Mr. Scott moved for a mistrial but requested no other relief. The Trial Court denied the motion.

Í. Gang affiliation

Generally, evidence of motive behind a criminal offense is admissible. Cooper v. State, 324 Ark. 135, 919 S.W.2d 205 (1996); Williams v. State, 321 Ark. 344, 902 S.W.2d 767 (1995). The State is entitled to produce evidence “showing all circumstances which explain the act, show a motive for acting, or illustrate the accused’s state of mind.” Smith v. State, 310 Ark. 247, 837 S.W.2d 279 (1992); Richmond v. State, 302 Ark. 498, 791 S.W.2d 691 (1990). See also Snell v. State, 290 Ark. 503, 721 S.W.2d 628 (1986), cert. denied, 484 U.S. 872 (1987), 490 U.S. 1075 (1989). Where the purpose of evidence is to disclose a motive for killing, anything and everything that might have influenced the commission of the act may, as a rule, be shown. Cooper v. State, supra; See Sullivan v. State, 171 Ark. 768, 286 S.W. 939 (1926).

In Mr. Scott’s statement he admitted membership in a gang called the Vice Lords. He then revealed that the victim was a member of the Folks gang, and that the members of the two gangs did not get along. Quawn Marshall, a witness for the State testified that Corey Jones was a Folk and Mr. Scott was a Vice Lord. He stated that the Crips and Folks did not get along with the Vice Lords. Brad Howard, another witness for the State, also identified the victim and Mr. Scott as members of rival gangs. We hold that the evidence of gang membership was relevant to show Mr. Scott’s motive for shooting the victim.

Rule 403 of the Arkansas Rules of Evidence allows a trial court to exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice. Passley v. State, 323 Ark. 301, 915 S.W.2d 248 (1996); Larimore v. State, 317 Ark. 111, 877 S.W.2d 570 (1994). This weighing is a matter left to the Trial Court’s sound discretion and will not be reversed absent a showing of manifest abuse. Passley v. State supra; Billett v. State, 317 Ark. 346, 877 S.W.2d 913 (1994). We hold that under these circumstances the Trial Court properly found that the prejudicial effect of the gang-affiliation evidence was not so great as to outweigh its probative value.

2. Mistrial

On direct examination a defense witness, Rodney Scott, stated that just prior to the shooting “We [including Mr. Scott] was rolling up a sack of weed.” On cross-examination, Rodney Scott again mentioned, without an objection by the defense, that they were “rolling up a blunt” in the yard before the shooting occurred. Later in the cross-examination, the State asked Rodney if he drank. Rodney denied drinking anything but again admitted that he smoked “dope”, and admitted that his brother, the appellant, smoked “weed” on the night of the shooting.

After the last admission, defense counsel moved for a mistrial on the ground that the evidence of the drug use was not admissible. The Trial Court noted that Rodney mentioned marijuana use on direct examination and denied the motion. Mr. Scott did not ask for any other relief.

One who opens up a line of questioning or is responsible for error should not be heard to complain of that for which one was responsible. Russell v. State, 306 Ark. 436, 815 S.W.2d 929 (1991); Berry v. State, 278 Ark. 578, 647 S.W.2d 453 (1983). The record shows that it was defense counsel’s direct examination which first elicited testimony concerning drug use. Where similar evidence was previously admitted without objection, the admission of later testimony on the same subject is not prejudicial. Hooper v. State, 311 Ark. 154, 842 S.W.2d 850 (1992). We have refused to find prejudicial error where the evidence erroneously admitted was merely cumulative. Griffin v. State, 322 Ark. 206, 909 S.W.2d 625 (1995); Bunn v. State, 320 Ark. 516, 898 S.W.2d 450 (1995); Gibson v. State, 316 Ark. 705, 875 S.W.2d 58 (1994); Snell v. State, supra. Nor will we reverse in the absence of prejudice. Bunn v. State, supra.

Mr. Scott was responsible for bringing the matter of drug use to the attention of the jury. The evidence of which he complains was merely cumulative. Under these circumstances he can show no prejudice.

Affirmed.

Dudley, J., not participating.


author: DONALD L. Corbin, Justice.

text:
    BORAL GYPSUM, INC., Arkansas Chemicals, Inc., Cross Oil & Refining Co., Inc., Green Bay Packaging, Inc., International Paper Co., Lion Oil Company, Quincy Soybean Company of Arkansas, Acme Brick Company, Aluminum Company of America, and Gaylord Container Corporation v. Timothy LEATHERS, in His Official Capacity as Commissioner of Revenues, Arkansas Department of Finance and Administration
    96-282
    924 S.W.2d 805
    Supreme Court of Arkansas
    Opinion delivered July 8, 1996
    [Petition for rehearing denied September 9, 1996.]

      The Rose Law Firm, by: James H. Druff, Stephen N. Joiner and Deanna J. Weisse, for appellants.

      Michael J. Wehrle, for appellee.
   DONALD L. Corbin, Justice.

Appellant, Boral Gypsum, Incorporated, appeals the judgment of the Pulaski County Chancery Court granting summary judgment to appellee, Timothy Leathers, in his official capacity as Commissioner of Revenues with the Arkansas Department of Finance and Administration (DF&A). The chancellor’s order ruled that appellant’s payment in-kind of compressor fuel diverted from a natural gas pipeline to NorAm Gas Transmission Company (NGT) (formerly known as Arkla Energy Resources Company), the transporter of the gas and owner of the pipeline, is subject to Arkansas use tax. Appellant raises two points for reversal of that order and asserts jurisdiction of the appeal lies in this court because statutory interpretation is required. We find merit to the first point and reverse and remand.

The present case is a consolidation of four cases below involving a total often taxpayers-plaintiffs-appellants: Boral Gypsum, Inc.; Arkansas Chemicals, Inc.; Cross Oil & Refining Co., Inc.; Green Bay Packaging, Inc.; International Paper Co.; Lion Oil Co.; Quincy Soybean Company of Arkansas; Acme Brick Co.; Aluminum Company of America; and Gaylord Container Corporation. Pulaski County Chancery Court Cases E-94-5607, E-94-7096, and E-95-0657 were consolidated into appellant Boral Gypsum’s case, E-94-2629. The operative facts are essentially identical in each case, save the particular amounts of tax. Therefore, the chancellor focused on the facts in appellant Boral Gypsum’s case when drafting the order appealed. All ten appellants filed a joint notice of appeal, followed by a single brief on appeal. The brief follows the chancellor’s approach in focusing on the facts of appellant Boral Gypsum’s case. We do likewise in our opinion, using the word “appellant” to refer specifically to Boral Gypsum, but applying generally to the remaining nine appellants.

Appellant uses natural gas to manufacture sheetrock at its plant in Nashville, Arkansas. The gas is supplied by companies located outside Arkansas and transported to appellant’s plant by NGT through NGT’s interstate pipeline. In order to maintain the correct pressure in the pipeline, NGT diverts gas traveling through the pipeline to compressor stations, where the gas passes through a regulator to reduce its pressure and then is immediately burned. This diverted gas is known as “compressor fuel” and is the subject of this appeal.

The parties stipulated that when appellant purchases gas from out-of-state suppliers such as Continental Natural Gas Company in Oklahoma, the supplier’s single invoice itemizes separately the amounts of gas and compressor fuel purchased. Thus, appellant purchases the compressor fuel along with the gas from a supplier, and the gas and compressor fuel then begin transportation to appellant’s plant through NGT’s pipeline. During transport, NGT diverts and uses the gas known as compressor fuel at its compressor stations, some of which are located in Arkansas. Consequendy, when appellant receives the gas at its plant, it actually receives a lesser amount of gas than the total amount it purchased from the supplier. The compressor fuel, although purchased from a third-party supplier, is appellant’s payment in kind to NGT pursuant to a tariff authorized by the Federal Energy Regulatory Commission (FERC). According to the terms of the FERC tariff, NGT receives the compressor fuel from appellant at the point of receipt at its pipeline.

In 1993, appellee issued assessments for use tax due on appellant’s payment in-kind of compressor fuel for the previous three years, January 1990 through December 1992. Appellant protested the assessment and requested an administrative hearing. The administrative law judge upheld the assessment, and appellee refused appellant’s request to revise the assessment. Appellant paid the assessment under protest and filed this suit for a refund pursuant to Ark. Code Ann. § 26-18-406 (Repl. 1992). The chancellor heard the case on stipulated facts and cross motions for summary judgment, ultimately granting summary judgment to appellee. This appeal followed.

Our standard for review of a summary judgment is whether the evidentiary items presented by the moving party in support of the motion left a question of material fact unanswered and, if not, whether the moving party is entided to judgment as a matter of law. Baker v. Milam, 321 Ark. 234, 900 S.W.2d 209 (1995). We view all proof in the light most favorable to the party opposing the motion, resolving all doubts and inferences against the moving party. Id. When the facts are undisputed, we simply determine whether the movant was entitled to judgment as a matter of law. Equity Fire & Casualty Co. v. Needham, 323 Ark. 22, 912 S.W.2d 926 (1996).

Appellant’s first argument for reversal is that the trial court erred in ruling that the compensating or use tax statute, Ark. Code Ann. § 26-53-101 to -138 (1987 and Supp. 1995), supports taxing appellant for compressor fuel. Appellant contends that it should not be subject to use tax on compressor fuel that is exclusively owned and used by NGT to transport appellant’s natural gas.

The stipulated facts are that appellant purchased natural gas from out-of-state suppliers who billed appellant in a single invoice for all natural gas purchased, including the compressor fuel. Attached to the stipulations was an invoice from Continental Natural Gas Company in Oklahoma to appellant itemizing separately the natural gas and the compressor fuel. According to the specific terms of the FERC tariff, NGT received the compressor fuel from Boral at the point where it was delivered to NGT’s pipeline.

Appellant contendí that, because the compressor fuel is delivered to NGT outside the State of Arkansas before transportation ever begins and because NGT is the owner of the compressor fuel and the party who burns the fuel at its compressor stations within Arkansas, appellant is not the owner of the compressor fuel and does not use the compressor fuel in Arkansas and should, therefore, not be subject to use tax. This argument is consistent with the terms of the FERC tariff, whereby NGT takes receipt of the compressor fuel from appellant at NGT’s pipeline.

Appellee responds that it is not NGT’s use of the compressor fuel that it seeks to tax, rather it seeks to tax appellant’s use of the compressor fuel as payment to NGT for transporting appellant’s gas to its plant in Nashville. Appellee maintains that, under section 26-53-102(6) (A), there is no requirement for the imposition of use tax that title or possession of property be transferred; rather, all that is required is a transfer of the right to use the property. Appellee also relies on American Television Co., Inc. v. Hervey, 253 Ark. 1010, 490 S.W.2d 796 (1973), to support this contention.

Appellant strengthens its argument with the claim that because appellee admitted that appellant’s partial cash payments of the tariff to NGT were not subject to use tax, likewise the in-kind payment of compressor fuel should not be taxed. We agree with this contention. Appellee did indeed state below that, if NGT had charged appellant for the compressor fuel, then the payment to NGT would not be taxable under the gross-receipts tax as the payment would constitute a transportation charge billed by a transporter other than the seller. This is a correct statement of the law according to DF&A’s Gross Receipts Tax Regulation GR-18.A, which provides that transportation costs paid to an independent carrier other than the seller of the goods do not constitute part of the gross receipts of the sale. When the transportation costs are paid to the seller of the goods, however, they do constitute part of the gross receipts of the sale and are thus subject to gross-receipts tax. Pledger v. Featherlite Precast Corp., 308 Ark. 124, 823 S.W.2d 852, cert. denied, 113 S. Ct. 82 (1992). We have recently reiterated this general concept in Weiss v. Best Enterprises, Inc., 323 Ark. 712, 718, 917 S.W.2d 543, 546 (1996): “However, since the non-taxable service was included as part of the total consideration received..., the charge for services constitutes part of the gross proceeds, and the entire proceeds are subject to taxation.” Thus, we agree that if appellant had paid NGT cash rather than in-kind with compressor fiiel, the cash payment would not be subject to gross-receipts tax, and the in-kind payment would likewise not be taxable.

While recognizing that imposition of the use tax does not require a transfer of ownership or possession, see Hervey, 253 Ark. 1010, 490 S.W.2d 796, we are nevertheless unwilling to extend application of the use tax to the facts of this case for two reasons. First, the transfer of ownership as well as the right to use the compressor fuel occurred in Oklahoma, not in this state. Section 26-53-106(a) levies the use tax on uses of tangible personal property in this state. Second, even assuming arguendo that the transfer occurred in Arkansas, appellant’s payment in-kind of compressor fuel was a direct payment to NGT as compensation for the cost of transporting appellant’s gas from Oklahoma to its plant in Nashville, regardless of the fact that appellant actually purchased the compressor fuel from a third-party supplier. Thus, even if the transaction occurred in Arkansas, it would not be taxable under the gross-receipts tax. This is a significant assurance that there is not an avoidance of tax on these facts. If a cash payment of transportation costs is not taxable, an in-kind payment should likewise not be taxable. That appellant purchased the compressor fuel from a third-party supplier and then paid the compressor fuel in-kind to NGT does not negate the fact that it was a direct payment of transportation costs to a transporter other than the seller.

If we were to follow appellee’s argument that appellant’s use of the compressor fuel (as a form of making payment) was taxable, we would be expanding the reach of the use tax beyond its scope and perhaps indefinitely. We are not willing to make such a broad extension of the scope of the tax; such an extension is better left to the General Assembly. Accordingly, we conclude the trial court erred in granting summary judgment to appellee, and we need not address appellant’s remaining sub-points in support of its claim that it is not subject to use tax.

Appellant’s second argument for reversal is that the trial court erred in holding that it was subject to the gross-receipts tax for the compressor fuel at issue here. Appellant refers to certain language in the trial court’s order as confusing because it is an analysis of gross-receipts tax law. Because appellee never assessed a gross-receipts tax against appellant, we need not address this argument.

The order granting summary judgment is reversed, and the case is remanded to the trial court with directions to enter summary judgment for appellant.

Dudley, J., not participating.


author: ROBERT L. Brown, Justice.

text:
    Donnietha BRADFORD v. STATE of Arkansas
    CR 96-5
    927 S.W.2d 329
    Supreme Court of Arkansas
    Opinion delivered July 8, 1996

      Mikke Connealy, for appellant.

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

Appellant Donnietha Bradford contests her convictions for capital murder, kidnapping, and aggravated robbery and her sentence of life imprisonment without parole. She argues insufficiency of the evidence, breach of her Fifth and Sixth Amendment rights as they pertain to her statements to police, and failure of the trial court to give certain instructions to the jury relating to termination of her accomplice status. Because we conclude that her Sixth Amendment rights were violated in connection with her third statement to police officers, we reverse the convictions and remand for a new trial.

On June 1, 1994, Blytheville police officers were called to the house of Lester Frazier. When they arrived at the house, they found that it had been ransacked, that there was considerable blood on the premises, and that Frazier, a 79-year-old man, was missing. Three days later, Frazier’s body was discovered in the Mississippi River south of Osceola. According to the medical examiner, Frazier’s death was due to a fractured skull caused by a blunt force. Defensive wounds were found on Frazier’s right hand.

On Friday, July 22, 1994, Donnietha Bradford was arrested in connection with Frazier’s murder. She was instructed of her Miranda rights, and she executed a waiver of rights form at 6:20 p.m. that same Friday. A recorded statement was taken more than four hours later. In that statement, she related that she had a conversation with Rodney Barnett on May 24, 1994, at an Arby’s restaurant in Blytheville. She stated that Barnett asked her if she planned to rob Frazier. She informed him that if she had intended to rob Frazier, she would have done so. Barnett replied, “I’ll get him.” Barnett told her that he knew Frazier’s family and that the family had money.

A week later, Barnett told her that he had killed the old man, but gotten no money. She stated that Barnett told her that he cut the screen on Frazier’s door and that when Frazier opened the door, he knocked him down. He proceeded to hit Frazier over the head and ask where his money was. Barnett ransacked the house looking for the money, but he could not find it. At that point, he walked across the street to his father’s house and got his car. He forced Frazier into the car and drove him to the river. Once they arrived at the river, Barnett took a rock and repeatedly hit Frazier over the head with it. According to her statement, about a month later, she visited with Barnett at Coleman’s Combo in Blytheville. Barnett inquired if Bradford had said anything to anybody about the murder. When she answered “no,” he said he wanted to keep it that way. He patted his waistband, indicating that he had a gun.

Approximately an hour and a half after the first interview, the police officers renewed their questioning of Bradford. Bradford gave a second statement in which she added that she had borrowed a pistol from an acquaintance, Frankie Milton, the night before Frazier was murdered. The pistol was inoperable because the cylinder was “broken off.” She stated that she borrowed the pistol because she had been threatened by another man. She stated that the next day she talked with Barnett, and she let him borrow the gun. Barnett told her that he had been watching Frazier’s house because he was going to rob him. He asked Bradford if she was going to go with him, arid she answered that she did not know. Thirty minutes later, they walked to Frazier’s house. She saw Barnett approach the front door and begin to cut the screen so that he could unlatch the door. At that point, Bradford left, she stated, because she did not want to rob the man. Later, she returned to Frazier’s house to see what Barnett was doing. She stated that she saw the screen door wide open and the front door cracked open. A few minutes later, the door slammed and Barnett began turning the lights off in the house. She walked back down the street and returned to Frazier’s house in her car. She saw Barnett put Frazier into the front seat of his car, which he had backed into the driveway. Barnett then drove away with Frazier.

The next day, she saw Barnett, and he told her that he had killed Frazier. He then gave her a detailed account of the murder which tracked the description that Bradford gave in her earlier statement to the police officers. She added that he told her that he had left the gun he had borrowed from her at the river, but that he would retrieve it. Bradford denied helping transport Frazier to the river. She also denied leaving the gun at the river, acting as a lookout for Barnett, and entering Frazier’s house.

On Monday, July 25, 1994, a hearing to determine whether there was probable cause to detain Bradford was held before the Blytheville Municipal Court. Following the hearing, an affidavit for probable cause was issued, bond was set, and the public defender’s office was appointed to represent her. Appointment of counsel was noted by the court on the affidavit for probable cause. Shortly after her appearance, another waiver of Miranda rights was executed by Bradford, and police officers renewed their questioning of her. At about 6:45 p.m., Bradford gave a more detailed account of the events of May 31, 1994. Her statement was similar to the previous statements, except that in this statement she added that Barnett forced her at knifepoint to search Frazier’s house for money. He further pretended to threaten her with the disabled gun in order to scare Frazier. Barnett stated that he was going to take Frazier to the bank to get some money. When Barnett left to get his car, he ordered Bradford to watch Frazier, and she did so. She saw Barnett hit Frazier on the head, and she saw that his head was bloody. She left the house after Barnett drove away with Frazier in the car.

Bradford was eventually charged with the capital murder, aggravated robbery, and kidnapping of Frazier. Prior to trial, Bradford moved to suppress her three statements to police officers. At the Denno hearing conducted during the course of the trial, the trial court denied her motion and allowed all three statements to be introduced into evidence. Following a jury trial, the jury returned a verdict of guilty on all three counts, and Bradford was sentenced to life in prison without parole.

I. Insufficient Evidence

We first address Bradford’s claim that there was insufficient evidence to support the verdict. A motion for a directed verdict is a challenge to the sufficiency of the evidence. Passley v. State, 323 Ark. 301, 915 S.W.2d 248 (1996); Williams v. State, 321 Ark. 635, 906 S.W.2d 677 (1995). Preservation of an appellant’s right to freedom from double jeopardy requires a review of the sufficiency of the evidence prior to a review of trial errors. Passley v. State, supra; Davis v. State, 319 Ark. 460, 892 S.W.2d 472 (1995). Accordingly, this court must address a challenge to the sufficiency of the evidence prior to considering an appellant’s other assignments of trial error. Passley v. State, supra; Byrum v. State, 318 Ark. 87, 884 S.W.2d 248 (1994).

When reviewing the sufficiency of the evidence on appeal, this court does not weigh the evidence but simply determines whether the evidence in support of the verdict is substantial. Passley v. State, supra. Substantial evidence is that which is forceful enough to compel a conclusion one way or the other and pass beyond mere suspicion and conjecture. Id. In determining whether there is substantial evidence, we review the evidence in the light most favorable to the state, and it is permissible to consider only that evidence which supports the guilty verdict. Id. Further, circumstantial evidence may constitute substantial evidence when every other reasonable hypothesis consistent with innocence is excluded. Id. Whether a reasonable hypothesis exists is for the trier of fact to resolve. Id.

At trial, Bradford made the following arguments for her motion for a directed verdict: On the capital murder charge, she argued that the State failed to prove that she acted alone or with others in causing the death of Frazier in the furtherance of a robbery. As to the aggravated robbery charge, she argued that there was no evidence that she threatened or employed force or that she was armed with a deadly weapon. With respect to the kidnapping charge, she contended there was no evidence to support the claim that she restrained the victim in any way.

The State urges that Bradford has changed her argument on appeal in that she now argues she was forced to participate in the robbery and that she never agreed to participate in the crimes. The State adds that this argument is, in reality, not an argument regarding the sufficiency of the evidence to support the conviction but is, rather, an argument that her participation was the result of duress, which requires an acquittal. We disagree with the State. Bradford maintains that the only evidence presented to prove her complicity is her third statement to police officers that she was forced to participate in the crimes and that that evidence is not valid evidence to show that she was an accomplice to the crimes. Accordingly, her argument continues to be that the State’s evidence was inadequate to sustain the convictions.

The keystone of the State’s case against Bradford was her third statement to police officers. Putting aside for the moment the legitimacy and propriety of that third statement, we hold that the State presented substantial evidence for the jury to find that she committed the crimes. Discounting her duress defense, there was evidence that she discussed the planning of the crime with Barnett, that she loaned him a pistol to use, that she entered Frazier’s house with Barnett, that she was present when Barnett initially struck Frazier on the head, that she searched the house for money, that she watched Frazier while Barnett left to get his car, and that Frazier’s head was bleeding when he left the house. There was also much blood on the premises evidenced by photographs which showed the severity of the beating.

The jury did not have to believe Bradford’s contention that she acted only out of duress. The jury could reasonably have believed that she voluntarily participated in the robbery attempt, that she voluntarily restrained the victim prior to his kidnapping by Barnett, and that her actions culminated in Frazier’s death. Indeed, the jury could well have concluded that the fatal head injury occurred at Frazier’s house. Cause of death was a fractured skull, and Frazier’s head was bleeding when Barnett placed him in the car.

II. Suppression of Statements

Bradford next argues that the trial court erred in denying her motion to suppress the three statements she gave to Blytheville police officers. She initially asserts that she requested an attorney prior to giving her first statement to the police officers but was denied counsel in violation of her Fifth Amendment rights. The investigating officers testified at the Denno hearing, however, that Bradford never requested an attorney. They stated, to the contrary, that she completed the waiver of rights form and that, from all appearances, she understood her rights.

In reviewing a trial court’s decision concerning the voluntariness of a custodial statement, this court makes an independent determination based on the totality of the circumstances and does not reverse the trial court unless that court’s ruling is clearly against the preponderance of the evidence. Moore v. State, 321 Ark. 249, 903 S.W.2d 154 (1995). When conflicting testimony concerning the circumstances of a confession is offered, it is within the trial court’s province to weigh the evidence and resolve the credibility of the witnesses. Id. In the instant case, there was conflicting evidence on whether Bradford requested counsel prior to her statements. The trial court apparently did not find that she requested an attorney. We conclude that this ruling was not clearly erroneous.

Bradford’s second suppression argumentas that her third inculpatory statement taken after her probable cause hearing and appointment of counsel should have been suppressed as a result of a violation of her Sixth Amendment right to counsel. She points to the fact that she was arrested on Friday, July 22, 1994 and appeared before the Blytheville Municipal Court on the following Monday, July 25, 1994. At that appearance, the court determined that there was probable cause to support the charges against her. The court fixed bond and appointed the public defender’s office to represent her. This action was memorialized in the court’s affidavit of probable cause which was executed that same date. Bradford admitted at the Denno hearing that she was unaware that the court had appointed counsel for her. The investigating police officers also denied knowledge that Bradford had been appointed counsel. The trial court found, following the Denno hearing, that counsel had indeed been appointed for her prior to her third statement but that she had waived the right to counsel before giving that last statement.

The issue before us is whether the municipal court’s appointment of counsel at the probable cause hearing curtailed subsequent police interrogation though neither police officers nor Bradford were aware of the appointment and though Bradford waived her Miranda rights before the third interrogation. The United States Supreme Court addressed the Sixth Amendment right to counsel in Michigan v. Jackson, 475 U.S. 625 (1986). That case involved two consolidated cases. One defendant, Bladel, was arraigned on a murder charge and asked at his arraignment that an attorney be appointed for him because of his indigency. The Court appointed counsel and mailed a notice of the appointment to the law firm. Bladel was not told that counsel had been appointed. Before the notice was received, police officers interviewed Bladel and, after advising him of his Miranda rights, obtained a confession. Jackson, the other defendant, also asked that counsel be appointed for him during his arraignment on murder charges. The next day, before he had an opportunity to consult with counsel, police officers interviewed him and, again, after advising him of his rights under Miranda, obtained a confession. In both cases, the investigating officers were present at the arraignment.

The Michigan trial courts denied the defendants’ motions to suppress, but the Michigan Supreme Court reversed. The United States Supreme Court affirmed that reversal. In its decision, the Court framed the pivotal issue by first stating that the Sixth Amendment provides the right to counsel at postarraignment interrogations which is a critical stage of the proceedings and signals the initiation of adversary judicial proceedings. The question then was whether the defendants effectively waived that right by executing a Miranda waiver after arraignment. In the course of its opinion, the Court stated:

Indeed, after a formal accusation has been made — and a person who had previously been just a “suspect” has become an “accused” within the meaning of the Sixth Amendment — the constitutional right to the assistance of counsel is of such importance that the police may no longer employ techniques for eliciting information from an uncounseled defendant that might have been entirely proper at an earlier stage of their investigation.
The State points to another factual difference: the police may not know of the defendant’s request for an attorney at the arraignment. That claimed distinction is similarly unavailing. In the cases at bar, in which the officers in charge of the investigations of respondents were present at the arraignments, the argument is particularly unconvincing. More generally, however, Sixth Amendment principles require that we impute the State’s knowledge from one state actor to another. For the Sixth Amendment concerns the confrontation between the State and the individual. One set of state actors (the police) may not claim ignorance of defendants’ unequivocal request for counsel to another state actor (the court).

475 U.S. at 632, 634. The Court went on to hold that “ [i]f police initiate interrogation after a defendant’s assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant’s right to counsel for that police-initiated interrogation is invalid.” 475 U.S. at 636.

What distinguishes this case from Michigan v. Jackson, supra, is that in this case, Bradford did not request counsel at her probable cause hearing, but nevertheless the public defender was appointed to represent her without her knowledge. Thus, must a defendant affirmatively invoke her Sixth Amendment right to counsel in order to be afforded the protections provided by Michigan v. Jackson, supra? In footnote 6 of Michigan v. Jackson, supra, the Court stated:

In construing respondents’ request for counsel, we do not, of course, suggest that the .right to counsel turns on such a request. See Brewer v. Williams, 430 U.S. at 404 (“[T]he right to counsel does not depend upon a request by the defendant”); Carnley v. Cochran, 369 U.S. 506, 513 (1962)(“[I]t is settled that where the assistance of counsel is a constitutional requisite, the right to be furnished counsel does not depend on a request”). Rather, we construe the defendant’s request for counsel as an extremely important fact in considering the validity of a subsequent waiver in response to police-initiated interrogation.

465 U.S. at 633.

We read Michigan v. Jackson to stand for the proposition that once the Sixth Amendment right to counsel attaches and once the defendant requests counsel, an ordinary waiver of Miranda rights will not suffice to validate a subsequent confession. The same principle should apply to appointed counsel, which is the situation that we have before us. The fact that Bradford was unaware that she was appointed counsel is irrelevant. We note in this regard that defendant Bladel in Michigan v. Jackson, supra, was similarly unaware. Moreover, police officers under Michigan v. Jackson, supra, are deemed to be aware of counsel’s appointment through imputed knowledge. Once counsel was appointed by the court, knowledge of the appointment was imputed to police officers, and they were under an affirmative obligation to respect it. Just as a police officer who wishes to initiate an interrogation during the custody stage must determine if a request for counsel has been made (Arizona v. Roberson, 486 U.S. 675 (1985)), simple diligence requires that police officers take pains to learn whether counsel was appointed at a probable cause hearing.

The State relies on Patterson v. Illinois, 487 U.S. 285 (1988), to support its theory that Bradford waived her right to counsel by executing the Miranda waiver prior to the third statement. It is true that in Patterson, the defendant was interrogated postindictment and signed a waiver-of-counsel form. But defendant had not requested counsel; nor had one been appointed for him. Thus, the Supreme Court held that the defendant’s waiver in Patterson was knowing and intelligent under Johnson v. Zerbst, 304 U.S. 458 (1938). The critical fact, though, that did not exist in Patterson but exists in the instant case is that counsel had already been appointed for Bradford, and under Michigan v. Jackson, supra, knowledge of that fact was imputed to the police officers. The failure of police officers to learn about the appointment and obtain a statement from Bradford that she did not want appointed counsel present at the interrogation is what requires suppression in this case.

Case law in this state also militates in favor of suppression. In Bussard v. State, 295 Ark. 72, 747 S.W.2d 71 (1988), we held that once the Sixth Amendment right to counsel attached and once counsel had been retained, even if there had been no formal request at the probable cause hearing as in Michigan v. Jackson, a defendant enjoyed the right to rely on counsel as a medium between himself and the state. See Maine v. Moulton, 474 U.S. 159 (1985). More significantly, in Sutherland v. State, 299 Ark. 86, 771 S.W.2d 264 (1989) (per curiam), we held that once counsel had been appointed, any waiver in connection with police-initiated interrogation was invalid under Michigan v. Jackson, supra, and Arizona v. Roberson, supra. In the instant case, the Sixth Amendment right to counsel had clearly attached, and counsel had been appointed. Though Bradford never formally requested counsel, the court’s appointment provided a medium between herself and investigating officers. Her mere waiver of Miranda rights could not equate to a waiver of appointed counsel, a fact of which she was unaware.

The State concedes that Sutherland v. State, supra, dictates an outcome in favor of Bradford on this issue but urges this court to overrule Sutherland on the basis that Sutherland does not accurately reflect the opinions of the United States Supreme Court. We decline to do so. Sutherland v. State seems to fit squarely within the Supreme Court decisions on the issue of when the Sixth Amendment right to counsel attaches and the validity of subsequent Miranda waivers. Michigan v. Jackson, supra, holds that the Sixth Amendment right to counsel attaches when counsel is requested and a subsequent waiver of Miranda rights is of no consequence. We perceive no valid reason for not applying the same principle to situations where counsel has already been appointed. Patterson v. Illinois, supra, is distinguishable on its facts because in that case no counsel had been appointed by the court.

It should be noted that the Arkansas Court of Appeals has recently held that the mere appointment of counsel is not enough. Rather, there must be an affirmative invocation of the right to counsel in order to invalidate a later confession. See Lanes v. State, 53 Ark. App. 266, 922 S.W.2d 349 (1996). That decision is in direct conflict with our decision today. Accordingly, we overrule Lanes v. State on that point.

We further note that Rule 8 of the Arkansas Rules of Criminal Procedure dictates a reversal in this case. Rule 8.2 provides that the trial court shall appoint counsel to represent an indigent defendant at the first appearance, if the right is not knowingly and intelligently waived. An appointment of counsel was made here. Rule 8.3 provides that upon the first appearance of the defendant before the judicial officer, and after the defendant is advised of his rights:

No further steps in the proceedings other than pretrial release inquiry may be taken until the defendant and his counsel have had an adequate opportunity to confer, unless the defendant has intelligently waived his right to counsel or has refused assistance of counsel.

Thus, under our rule, an attorney for an indigent defendant should be appointed at the probable cause hearing, or the State must show that right to have counsel appointed at the hearing was specifically waived. See Sutton v. State, 262 Ark. 492, 559 S.W.2d 16 (1977).

There is a third issue raised by Bradford in this case. Nevertheless, because it is somewhat speculative as to whether the issue of alleged trial court error in not giving a certain instruction — AMCI2d 601 — will reoccur on retrial, we will not address the point. Suffice it to say, that where any evidence to support an instruction is before the jury, that instruction must be given. State v. Jones, 321 Ark. 451, 903 S.W.2d 170 (1995).

Reversed and remanded.

DUDLEY, J., not participating.

       According to Frankie Milton, the firing pin was missing, and the chamber would not open.


text:
    Kirk FILES v. ARKANSAS STATE HIGHWAY AND TRANSPORTATION DEPARTMENT
    95-952
    925 S.W.2d 404
    Supreme Court of Arkansas
    Opinion delivered July 8, 1996

      Eichenbaum, Scott, Miller, Liles & Heister, P.A., by: Christopher O. Parker, for appellant.

      Robert L. Wilson and Maria L. Schenetzke, for appellee.
   ROBERT L. Brown, Justice.

Appellant Kirk Files appeals the denial by the appellee, Arkansas State Highway and Transportation Department (Department), of his application for a billboard permit on land bordering Interstate Highway 40 in Brinkley. His arguments on appeal are twofold: the Department had no authority to question city zoning for the property in question, and the Department’s hearing officer erred in finding that the purpose behind the city zoning was to permit the erection of billboards. The circuit court affirmed the hearing officer’s decision. We affirm the circuit court.

On November 9, 1992, the County Court of Monroe County ordered the annexation of 58.51 acres of land owned by the Duke family into the City of Brinkley. On December 15, 1992, the City of Brinkley approved the annexation and designated the property as C-2, which was Highway Commercial under the city ordinances. On March 1, 1993, Kirk Files, Inc., purchased the land from the Duke family. Kirk Files already owned several billboards on land along 1-40 but within the city limits of Brinkley, and on March 11, 1993, he applied to the Highway Department for a permit to place a billboard on the purchased property.

On May 4, 1993, the Department denied Files’s application for a billboard permit. The stated reasons for the denial were the sign site was not located on zoned or unzoned commercial or industrial land as defined by Highway Commission regulations, and, secondly, the land was annexed and zoned commercial by the City of Brinkley primarily for the purpose of erecting billboards, which contravened the policy expressed in the Federal and State Highway Beautification laws.

Files contested the Department’s denial and requested a hearing. A hearing was held before a designated hearing officer, and Files testified that at the time he purchased the land at issue, it lay within the city limits of Brinkley and was zoned C-2, which under the City Ordinance is a Highway Commercial District. Files implicitly admitted that at the time of purchase the property was not commercially developed, and he stated that he had no present plans to develop the property. Files further testified that he owned other land along 1-40 within the city limits of Brinkley and that he had placed billboards on those properties. He stated that none of those tracts had been commercially developed except for one which contained a retirement facility. He testified that he never approached any city official in Brinkley about the annexation and rezoning of the Duke land prior to his purchase.

Larry Long, section head of the Department’s Environmental Division — Beautification Section, testified that, although the City of Brinkley had zoned the Duke land C-2, he did not consider that zoning to be valid commercial zoning for purposes of the outdoor advertising regulations because the land had been zoned solely to allow billboards. Long further stated that federal regulations gave the Department the authority to look to the intent of the zoning to determine if the zoning was valid under the State and Federal Highway Beautification laws.

At a second hearing, Files again testified and stated that one of the pieces of land where he already maintained a billboard was used for agricultural purposes and was rented on a sharecropping basis. At the time the City annexed that land, he said that a manufacturing plant was to be built on the property. The company, though, went bankrupt. Files added that there was no commercial activity on the proposed site for the billboard, nor on any of the property he owned north of 1-40 which had billboards. He stated that the proposed site is served by a dirt farm road. All improvements on the land are for agricultural purposes, and there are no utilities provided, except there is access to electricity and telephone services. Files finally stated that he never informed the Dukes that he would purchase the property if it was zoned commercial and that he had nothing to do with the property’s annexation and rezoning. As to the land east of his property, Files testified that it was owned by a neighbor, who is also in the billboard business. That land is zoned C-2, and since 1983, it has never been commercially developed.

Jeff Ingram, a Beautification Coordinator for the Department, testified that the denial decision was based on the fact that there had been no commercial development in the annexed area. He also stated that the land adjoining the proposed site was agricultural and the only non-agricultural activity on that land was the placement of billboards. He admitted that the spread of billboards on farm land along 1-40 raised a “red flag” that there was a problem with the zoning. The fact that the city had annexed another tract of land and zoned it commercial when the previous annexations had had no subsequent commercial development created a pattern in his opinion. Ingram further testified that he spoke with Brinkley’s building inspector, Wayne Young, who informed him that property annexed into the city was normally annexed as residential property and that it was unusual for the Duke/Files property to be annexed and then commercially zoned. According to Ingram, Young told him that the land was zoned commercial because Files had stated that he wanted to place billboards there.

Larry Long retook the stand and agreed with Ingram’s assessment of the billboard proliferation. He also admitted that the Department had not certified Brinkley for comprehensive zoning which would have ended the Department’s regulation of signs in the area but would still have permitted the Department to question commercial zoning purely for outdoor advertising.

The hearing officer upheld the Department’s denial. In doing so, he found that there was no industrial or commercial development on several tracts of land adjacent to 1-40 and inside the city limits of Brinkley, including the Files property. He further found that the evidence showed that the City of Brinkley did not want the responsibility of providing dedicated access or utilities to the Files property to encourage its development, and that Files had no plans to construct access or provide utilities on the land or to develop it in any way, either commercially or industrially. The hearing officer concluded by making these principal points:

1. The AHTD Environmental Division’s Beautification Section acted within its authority to investigate the circumstances surrounding the City of Brinkley’s zoning of Mr. Kirk Files’s property for purposes of the Highway Beautification program.
2. The AHTD Beautification Section had sufficient information and precedent to conclude that the current zoning of this property was for the erection of outdoor advertising and acted properly within their authority under the Highway Beautification Act in denying the application/ permit.
3. It is necessary, when considering an outdoor advertising application/permit for approval, for the Department to review the specifics of the contents of the application and the circumstances behind it to determine if it complies with Federal and state law with respect to the placement of outdoor advertising in zoned or unzoned commercial or industrial areas pursuant to the Regulations, and thereby satisfies the purposes and intent of the Highway Beautification Act.
4. This property has not been zoned commercial for the purposes of the Highway Beautification program until the zoning procedures outlined in the Cities’ zoning ordinances have been satisfied and a final determination of the properties’ correct zoning under the Cities’ comprehensive zoning plan has been completed.

Files filed a petition for judicial review of the hearing officer’s decision, and the circuit court affirmed that decision.

Files now argues on appeal that the hearing officer erred as a matter of law in finding that the Department could look behind Brinkley’s zoning designation and examine the motivation behind that zoning for purposes of the Arkansas Highway Beautification Act. The standard of review for decisions of administrative agencies is well-established:

Our review is not directed toward the circuit court but toward the decision of the agency recognizing that administrative agencies are better equipped by specialization, insight through experience, and more flexible procedures than courts, to determine and analyze legal issues affecting their agencies. If we find the administrative decision is supported by substantial evidence and is not arbitrary, capricious or characterized by an abuse of discretion, we uphold it.

Arkansas Dep’t of Human Servs. v. Wilson, 323 Ark. 151, 155, 913 S.W.2d 783, 785 (1996), quoting Franklin v. Arkansas Dep’t of Human Servs., 319 Ark. 468, 472, 892 S.W.2d 262, 264 (1995) (citations omitted). The construction of a statute by an administrative agency is not overturned unless it is clearly wrong. Arkansas Dep’t. of Human Servs. v. Wilson, supra. However, where the statute is plain and unambiguous, this court will interpret the statute to mean only what it says. Id.

We first look to the policies to be accomplished by the State and Federal Highway Beautification laws. The 1965 Federal Highway Beautification Act (23 U.S.C. § 131 et seq.) provides for the control of junkyards and billboards to preserve natural beauty and promote public safety and investment in areas adjacent to the interstate and primary highway systems. In furtherance of the Act’s objectives, Congress required states receiving federal funds to establish provisions for the effective control of billboards and junkyards or risk jeopardizing ten percent of those funds. See 23 U.S.C. § 131(b). The Arkansas Highway Beautification Act, codified at Ark. Code Ann. § 27-74-101 et seq. (Repl. 1994), was adopted with that congressional directive in mind. See Arkansas State Hwy. Comm’n v. Roark, 309 Ark. 265, 828 S.W.2d 843 (1992). The purpose behind the Arkansas Act is likewise to promote the reasonable, orderly, and effective display of outdoor advertising, to promote the safety and recreational value of public travel, and to preserve natural beauty. See Ark. Code Ann. § 27-74-201 (Repl. 1994).

Files relies on Ark. Code Ann. § 27-74-204 (Repl. 1994), and Department regulations as authority for his argument. Section 27-74-204 states in part:

(a) [N]othing contained in this chapter shall prohibit the erection and maintenance of outdoor advertising signs, displays, and devices consistent with customary use within six hundred sixty feet (660’) of the nearest edge of the right-of-way of interstate, primary, and other state highways designated by the State Highway Commission:
(1) Within those areas which are zoned industrial or commercial under authority of the laws of this state____

A Department regulation reenforces this point. Regulations for Control of Outdoor Advertising, Agreement III E. (Arkansas State Highway Commission 1972) (cited hereinafter as “Highway Regulations”). There is no statutory definition of what comprises industrial or commercial activity.

Files contends that § 27-74-204(a)(l) is unambiguous and must be interpreted precisely as it reads to give full effect to local zoning actions. While we agree with that stated principle of statutory interpretation, we disagree that the adduced statute decides the issue. This court has held that the Arkansas Highway Beautification Act is remedial in nature and must be broadly construed so to effectuate the purpose sought to be accomplished by its enactment. Arkansas State Hwy. Comm’n v. Roark, supra. Moreover, the General Assembly has vested the Highway Commission with regulatory authority to enforce the Arkansas Highway Beautification Act. Ark. Code Ann. §§ 27-74-203, 27-74-211(b) (Repl. 1994). And while the Arkansas statute relied on by Files does not define what constitutes valid “commercial activity” for zoning purposes, Highway regulations do define it as excluding “outdoor advertising structures.” Highway Regulations I.F.l.

Federal regulations make this same point precisely. Zoning actions of the states will be accepted by the Secretary of Transportation for the purposes of 23 U.S.C. § 131(d), but state actions that are created primarily to permit outdoor advertising structures will not be recognized as valid zoning for outdoor advertising control purposes. C.F.R. § 750.708(b).

State Highway regulations also provide that when a city has adopted a certified comprehensive zoning plan and the Department delegates authority over the control of outdoor advertising to the city because of that comprehensive plan, the Department may continue to retain authority to prohibit invalid outdoor advertising. Revised Highway Regulations, I. J. A comprehensive zoning plan has not been implemented for Brinkley. But the policy expressed in this regulation is still another example of the Department’s express authority to monitor outdoor advertising.

In Alper v. Nevada, 97 Nev. 5, 621 P.2d 492 (1980), the Nevada Supreme Court examined local commercial zoning and held that the Federal and State Highway Beautification laws should be interpreted broadly and that an inquiry into the status of billboard areas should not be limited to a review of the face of a zoning ordinance. Rather, the Nevada Supreme Court held that the inquiry should include reference to actual as well as contemplated land uses. In reaching its decision, the Nevada Supreme Court focused on federal regulation 23 C.F.R. 750.708(d), which does not recognize commercial zoning created primarily to allow billboards. See also United Outdoor Advertising Co., Inc. v. Business, Transportation and Housing Agency, 44 Cal. 3d 242, 746 P.2d 877, 242 Cal. Rptr. 738 (1988) (commercial zoning to permit outdoor advertising must have independent validity or will run afoul of 23 C.F.R. § 750.708(b)); but see Penn Advertising, Inc. v. Department of Transportation, 147 Pa. 624, 608 A.2d 1115 (Pa. Comwlth. 1992) (state statute providing commercial zoning authority was unambiguous).

We agree with the analysis of the Nevada Supreme Court and hold that the Department appropriately examined the propriety of the Brinkley zoning ordinance. Some deference must be given to the Department’s interpretation of state and federal regulations in this area. The Department’s interpretation of its authority enables it to review limited commercial zoning decisions relating to outdoor advertising to determine validity. This fosters the purposes of the Highway Beautification Act and assures compliance with federal law. The General Assembly certainly contemplated that the Department would regulate outdoor advertising in accordance with state and federal law.

Files next contends that there was no substantial evidence to support the hearing officer’s finding that the real purpose behind the rezoning was to permit the erection of billboards. It is well-settled that this court must affirm the decision of an administrative agency, if there is substantial evidence of record to support it. Arkansas Dept. of Human Servs. v. Wilson, supra; Partlow v. Arkansas State Police Comm’n, 271 Ark. 351, 609 S.W.2d 23 (1980). Substantial evidence is valid, legal, and persuasive evidence and such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Arkansas Dep’t of Human Servs. v. Wilson, supra; Partlow v. Arkansas State Police Comm’n, supra.

Here, there is substantial evidence to support the hearing officer’s conclusion that the commercial zoning designation was given for ffie sole purpose of erecting billboards. To summarize that evidence, land with billboards adjacent to the proposed site had been zoned commercial but otherwise were being used only for agricultural purposes. One of these properties had been zoned commercial in 1982 — ten years prior to the zoning of the proposed site — and still had no commercial development. Files candidly acknowledged that he was in the billboard business and that he had no plans to develop the land at issue. In fact, he owned other commercially zoned lands which were used for agriculture and which contained billboards. No dedicated access or services by the city were planned for the Files property. Finally, there is Jeff Ingram’s testimony that he was told by a Brinkley building inspector, Wayne Young, that Files wanted the C-2 Highway Commercial designation so that he could place billboards on the property. This evidence more than supports the hearing officer’s conclusion. We hold that the evidence sustaining the hearing officer’s decision is substantial.

Because we affirm the hearing officer’s decision, we need not address the Department’s alternative contention that the City of Brinkley’s C-2 classification for the Files property was not a final zoning action.

Affirmed.

Dudley, J., not participating.