author: Robert L. Brown, Justice.

text:
    ARKANSAS DEPARTMENT of HUMAN SERVICES v. The Honorable Linda P. COLLIER
    02-1021
    95 S.W.3d 772
    Supreme Court of Arkansas
    Opinion delivered January 23, 2003

      Richard Neil Rosen, Office of Chief Counsel, for petitioner.

      Mark Pryor, Att’y Gen., by: David R. Raupp, Sr. Ass’t Att’y Gen., for respondent.
   Robert L. Brown, Justice.

The Arkansas Department of Human Services (DHS) petitions this court for a writ of prohibition or, in the alternative, for a writ of certiorari, vacating Faulkner County Circuit Judge Linda R Collier’s order in which she declared an unborn fetus to be dependent-neglected and placed the fetus in DHS’s custody. The court further mandated that DHS pay the cost of the mother’s prenatal care. The sole ground for DHS’s petition is that the circuit court was without subject-matter jurisdiction to enter its order or, alternatively, that Judge Collier exceeded her jurisdiction when she entered the custody order. We deny the petition for a writ of prohibition, but we grant the petition for a writ of certiorari.

On August 26, 2002, the circuit court entered an order terminating the parental rights of both Jeff Harper and Alicia Bennett with respect to their 13-month-old son, Justin. In its termination order, the court stated that it was retaining jurisdiction over the case for later review. The next day, the circuit court entered a pick-up order for Ms. Bennett, citing as probable cause the fact that she was placing her unborn child “at imminent and substantial risk of serious physical harm or death.” The court based its finding on the testimony of Diana Rivers, the court-appointed special advocate, and Shelly Lamb, the maternal grandmother. Their testimony revealed that Ms. Bennett was again pregnant, that she had not received prenatal care, that she was abusing illegal drugs, and that she had illegal drugs in the home where she was living. The court further noted that in recent drug tests, prior to the petition to terminate parental rights, Ms. Bennett had tested positive for methamphetamine. For these reasons, the court ordered police officers to locate Ms. Bennett and detain her in the Faulkner County Detention Center. The court further ordered that drug tests be performed on her with the results to be provided to the court and that prenatal care be administered. The court also ordered DHS to place the matter on its docket for a hearing after the mother’s detention.

On August 29, 2002, the circuit court held an emergency hearing and a contempt hearing on its own motion. The court questioned Ms. Bennett as to whether she was pregnant, which she admitted. At the hearing, the court also confirmed from DHS that Ms. Bennett had tested positive for methamphetamine on August 27, 2002, when she was taken into custody. The court then held Ms. Bennett in contempt and ordered her to remain in the custody of the Faulkner County Detention Center until she went into labor. The court added that upon delivery of her baby, Ms. Bennett was to be discharged from the hospital but that the baby would “stay in [the] State’s custody.”

DHS next presented testimony from Ms. Bennett’s case worker, Terri Berger, who testified that Ms. Bennett did not want to participate in any drug treatment and that her sole comment upon discussing drug treatment was: “How long am I gonna have to stay clean to get my baby back?”

At the conclusion of the hearing, the circuit court ruled:

AH right. I want her returned back to the Detention Center, and I want the prenatal care initiated, especiaHy with ultrasound and prenatal testing.
Yeah, I think that the way it works, the Department — because I put this unborn child in your care, and I’ve done that this morning, that actually that unborn child is your client. And then, when — the way that payment works, Medicaid will take over if they get her to the hospital as she goes into labor. And then Medicaid wiU cover the hospital stay, and then she can be discharged any time she wants to leave after the baby’s born.
Now, if you find out through your prenatal testing, ultrasounds and other things, that this baby is malformed and has problems such as limbs missing, if there’s deformed heart valves, anything that looks truly, truly dire and that the baby might not live at birth, then get back in here and let’s discuss the situation. And I might want whatever doctor you take her to to come in and discuss it, as weU.

The court noted that the attorney ad litem would continue to serve in this case, as would Ms. Bennett’s appointed counsel.

On August 30, 2002, the circuit court entered its order holding Ms. Bennett in contempt of court for violating previous court orders that she remain drug-free. The court further found in its order that Ms. Bennett’s unborn child was in imminent danger of severe maltreatment and was dependent-neglected, as defined by the Arkansas Juvenile Code. The court ordered that the child be placed in the custody of DHS and further ordered DHS to ensure that Ms. Bennett receive adequate prenatal care and that she be examined by a doctor as soon as possible.

On September 3, 2002, DHS moved to set aside the court’s order. DHS asserted that because the fetus had not been born, it was not a juvenile, as defined by the Juvenile Code, and the court lacked jurisdiction to order the fetus into DHS custody as dependent-neglected. In addition, DHS argued that the court lacked jurisdiction to order it to pay for prenatal care. According to DHS, it was Faulkner County that was legally obligated to provide the necessary medical care for the mother because she was incarcerated in the detention center. DHS contended that the Juvenile Code only permits DHS to pay for, or provide services to, a family for the purpose of either reuniting the family or to prevent removal of the child from the home. Because there was no juvenile, as defined by the Juvenile Code, DHS concluded that the court lacked jurisdiction to order DHS to provide services in this case. Finally, DHS maintained that the General Assembly was clear in its statutory definition of “juvenile” and that the circuit court could not change the plain meaning of the statute because that would violate the separation-of-powers doctrine.

On September 10, 2002, the circuit court held a hearing on DHS’s motion to set aside the court’s order. DHS repeated its arguments and informed the court that Ms. Bennett’s unborn fetus was, at that time, between five-and-a-half to six months old. After hearing the arguments of counsel for DHS, counsel for Ms. Bennett, and from Diana Rivers, the child advocate representative, the court made the following ruling:

Well, I’m going to the let the Supreme Court tell us what to do because this is about the third case I’ve had just like this in the last year. And, if I’m seeing this many cases, other juvenile judges across the state have got to be seeing just as many, if not more. And I’m finding at this time that the statute which has been cited by the Department, 9-27-303(29) in the Code which gives us the definition of a juvenile is too narrow under these circumstances and, in this Court’s opinion, should read “. . . from viability to age of 18.” And I’d be really interested to see what the Arkansas Supreme Court would tell us in a case such as this.

An order was entered denying DHS’s motion to set aside, and DHS petitioned this court for a writ of prohibition, or, in the alternative, for a writ of certiorari.

DHS reiterates the same arguments in support of its petition. It first argues that the circuit court has exclusive jurisdiction over proceedings in which a juvenile, as defined by Ark. Code Ann. § 9-27-303 (Repl. 2002), is alleged to be delinquent or dependent-neglected. DHS adds, however, that this jurisdiction is limited by the Juvenile Code to those instances where a juvenile, who is defined as an individual from birth to age eighteen, is involved and contends that the Code does not give- the circuit court any power over a fetus prior to birth. DHS further claims that because an unborn fetus does not meet the definition of a juvenile, it follows that a fetus can not be a dependent-neglected juvenile. DHS also distinguishes the instant case from that of Aka v. Jefferson Hosp. Ass’n., Inc., 344 Ark. 627, 42 S.W.3d 508 (2001), in that for purposes of a wrongful-death action, the General Assembly has authorized an action for the death of a viable fetus. See Ark. Code Ann. § 16-62-102 (Supp. 2001). Finally, DHS urges that at the time the circuit court made its rulings, there was no pending DHS petition for a dependent-neglected case, and the circuit court acted sua sponte in a separate case after it had already finalized a parental-termination order in the case of Justin.

The State, on behalf of the circuit court and Judge Collier, responds that the petition for either extraordinary writ should be denied. First, it argues that the circuit court clearly had subject-matter jurisdiction over dependent-neglected proceedings; thus, the court should deny DHS’s petition for writ of prohibition. Secondly, it contends that DHS’s petition for writ of certiorari should be denied as DHS seeks to use that writ as a substitute for appeal, which it cannot do. Moreover, the State claims that DHS advances no interest that would require this court to decide the matter by extraordinary writ. Alternatively, the State urges that a writ of certiorari should be denied because Judge Collier had the authority to declare the fetus dependent-neglected. According to the State, the fetus was an individual under the Juvenile Code and was adjudicated dependent-neglected before reaching 18.

Finally, the State argues that DHS ignores Amendment 68 of the Arkansas Constitution and Arkansas’ clearly enunciated interest in the well-being of the fetus. The State maintains that as to Ms. Bennett’s privacy rights, they are “fairly and constitutionally circumscribed to permit the State to declare the child she intends to carry to term dependent-neglected due to her illegal drug use.” The State concludes that given Arkansas’ clear policy under Amendment 68 to protect the life of every unborn child, this court should conclude that the State’s interest in protecting Ms. Bennett’s fetus from illegal drug use is paramount to any privacy rights vested in Ms. Bennett.

a. Writ of prohibition

This court recently described the blackletter law in this state relating to a writ of prohibition:

A writ of prohibition is an extraordinary writ that is only appropriate when the court is wholly without jurisdiction. Ibsen v. Plegge, 341 Ark. 225, 15 S.W.3d 686 (2000). The writ will not be granted unless it is clearly warranted. Id. Prohibition is never issued to prohibit a trial court from erroneously exercising its jurisdiction. Id. A writ of prohibition cannot be invoked to correct an order already entered. Arkansas Public Defender Comm. v. Burnett, 340 Ark. 233, 12 S.W.3d 191 (2000). A writ of prohibition is not directed to the jurisdiction of the individual judge but to the court itself. Lee v. McNeil, 308 Ark. 114, 823 S.W.2d 837 (1992).

Wynne v. State, 345 Ark. 536, 540, 49 S.W.3d 100, 102 (2001). See also Travelers Ins. Co. v. Smith, 329 Ark. 336, 947 S.W.2d 382 (1997).

In the case at hand, the circuit court clearly had subject-matter jurisdiction because a circuit court has exclusive jurisdiction over proceedings in which a juvenile is alleged to be dependent-neglected and in which custody of a juvenile is transferred to DHS. See Ark. Code Ann. § 9-27-306 (Repl. 2002). Furthermore, in the instant case, the circuit court in its parental termination order expressly retained jurisdiction over the case and called for a review hearing on November 19, 2002. Moreover, the circuit court had already entered its order finding the fetus to be dependent-neglected, transferring custody of the unborn fetus to DHS, and directing DHS to provide prenatal services to the mother on August 30, 2002, prior to the filing of the prohibition petition. Accordingly, a writ of prohibition would be inappropriate in this case, because the circuit court was not wholly without subject-matter jurisdiction and because the circuit court had already taken the action sought to be prohibited. We deny the petition for a writ of prohibition.

b. Writ of certiorari

As to a writ of certiorari, this court has said the following:

A writ of certiorari is extraordinary relief, and we will grant it only when there is a lack of jurisdiction, an act in excess of jurisdiction on the face of the record, or the proceedings are erroneous on the face of the record. Cooper Communities, Inc. v. Benton County Circuit Court, 336 Ark. 136, 984 S.W.2d 429 (1999). Unlike a writ of prohibition, the writ of certiorari can address actions already taken by the lower court. Oliver v. Arkansas Professional Bail Bonds, 340 Ark. 681, 13 S.W.3d 156 (2000). In determining its application we will not look beyond the face of the record to ascertain the actual merits of a controversy, or to control discretion, or to review a finding of facts, or to reverse a trial court’s discretionary authority. Juvenile H. v. Crabtree, 310 Ark. 208, 833 S.W.2d 766 (1992). A writ of certiorari lies only where it is apparent on the face of the record that there has been a plain, manifest, clear, and gross abuse of discretion, and there is no other adequate remedy. Hanley v. Arkansas State Claims Comm’n, 333 Ark. 159, 970 S.W.2d 198 (1998). These principles apply when a petitioner claims that the lower court did not have jurisdiction to hear a claim or to issue a particular type of remedy. Id.

Kraemer v. Patterson, 342 Ark. 481, 485, 29 S.W.3d 684, 686 (2000). See also Arkansas Democrat — Gazette v. Zimmerman, 341 Ark. 771, 20 S.W.3d 301 (2000).

The question, then, is whether Judge Collier erred and exceeded her authority and committed a plain, manifest, clear, and gross abuse of her discretion by declaring Ms. Bennett’s unborn fetus to be dependent-neglected, by placing custody of the fetus in DHS, and by assessing the costs of prenatal care against that department. We conclude that she did.

Arkansas Code Annotated § 9-27-303(16) (Repl. 2002) provides several definitions of what constitutes a “dependent-neglected juvenile.” However, it is Ark. Code Ann. § 9-27-303(29) (Repl. 2002), that specifically defines the term “juvenile:”

(29) “Juvenile” means an individual who:
(A) Is from birth to the age of eighteen (18) years, whether married or single;
(B) (i) Is under the age of twenty-one (21) years, whether married or single, who is adjudicated delinquent for an act committed prior to the age of eighteen (18) years, and for whom the court retains jurisdiction.
(ii) In no event shall this person remain within the court’s jurisdiction past the age of twenty-one (21) years; or
(C) (i) Is adjudicated dependent-neglected before reaching the age of eighteen (18) years.
(ii) The juvenile may ask the court to retain jurisdiction past his or her eighteenth birthday.
(iii) The court shall grant the request only if the juvenile is engaged in a course of instruction or treatments.
(iv) The court shall retain jurisdiction only if the juvenile remains in instruction or treatment.
(v) The court shall dismiss jurisdiction upon request of the juvenile or when the juvenile completes, leaves, or is dismissed from instruction or treatment.
(vi) In no event shall this person remain within the court’s jurisdiction past the age of twenty-one (21) years [.]

Ark. Code Ann. § 9-27-303(29) (Repl. 2002).

This court recently set forth its standard of review for statutory construction:

When reviewing issues of statutory interpretation, we are mindful that the first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Yamaha Motor Corp. v. Richard’s Honda Yamaha, 344 Ark. 44, 38 S.W.3d 356 (2001); Dunklin v. Ramsay, 328 Ark. 263, 944 S.W.2d 76 (1997). When the language of a statute is plain and unambiguous, there is no need to resort to rules of statutory construction. Burcham v. City of Van Buren, 330 Ark. 451, 954 S.W.2d 266 (1997). A statute is ambiguous only where it is open to two or more constructions, or where it is of such obscure or doubtful meaning that reasonable minds might disagree or be uncertain as to its meaning. ACW, Inc. v. Weiss, 329 Ark. 302, 947 S.W.2d 770 (1997). When a statute is clear, however, it is given its plain meaning, and this court will not search for legislative intent; rather, that intent must be gathered from the plain meaning of the language used. Ford v. Keith, 338 Ark. 487, 996 S.W.2d 20 (1999); State v. McLeod, 318 Ark. 781, 888 S.W.2d 639 (1994). This court is very hesitant to interpret a legislative act in a manner contrary to its express language, unless it is clear that a drafting error or omission has circumvented legislative intent. Id.

Cave City Nursing Home, Inc. v. Arkansas Dep’t of Human Servs., 351 Ark. 13, 21-22, 89 S.W.3d 884 (2002).

In our judgment, the language of § 9-27-303(29)(A) is plain and unambiguous, and it clearly defines “juvenile” as an individual from “birth to age eighteen.” An unborn fetus obviously does not fall within this definition as by it very nature, there has been no birth. Subsection (B) is equally inapplicable, contrary to the State’s position, as it deals with an individual who has been adjudicated delinquent, and the unborn fetus at issue here has never been adjudicated delinquent. Finally, subsection (C) refers to an individual who has been adjudicated dependent-neglected before reaching the age of eighteen. The paragraphs under subsection (C) specifically refer to “the juvenile,” which necessarily takes us back to the definition of individual “from birth to the age of eighteen.” Nowhere has the General Assembly suggested that the term “juvenile” encompasses an unborn fetus.

Our conclusion is emphasized by Ark. Code Ann. § 9-27-302 (Repl. 2002), which sets forth the purposes of the Juvenile Code relating to protection and custody of juveniles:

This subchapter shall be liberally construed to the end that its purposes may be carried out:
(1) To assure that all juveniles brought to the attention of the courts receive the guidance, care, and control, preferably in each juvenile’s own home when the juvenile’s health and safety are not at risk, which will best serve the emotional, mental, and physical welfare of the juvenile and the best interest of the state;
(2) (A) To preserve and strengthen the juvenile’s family ties when it is in the best interest of the juvenile;
(B) To protect a juvenile by considering the juvenile’s health and safety as the paramount concerns in determining whether or not to remove the juvenile from the custody of his or her parents or custodians, removing the juvenile only when the safety and protection of the public cannot adequately be safeguarded without such removal;
(C) When a juvenile is removed from his or her own family, to secure for him or her custody, care, and discipline as nearly as possible equivalent to that which should have been given by his or her parents, with primary emphasis on ensuring the health and safety of the juvenile while in the out-of-home placement; and
(D) To assure, in all cases in which a juvenile must be permanendy removed from the custody of his or her parents, that the juvenile be placed in an approved family home and be made a member of the family by adoption;
(3) To protect society more effectively by substituting for retributive punishment, whenever possible, methods of offender rehabilitation and rehabilitative restitution, recognizing that the application of sanctions which are consistent with the seriousness of the offense is appropriate in all cases; and
(4) To provide means through which the provisions of this subchapter are executed and enforced and in which the parties are assured a fair hearing and their constitutional and other legal rights recognized and enforced.

Although § 9-27-302 dictates that the subchapter shall be “liberally construed,” the purpose of the Juvenile Code is made crystal clear: to protect juveniles, preferably in each juvenile’s home, to protect and strengthen familial ties, to protect a juvenile’s health and safety when determining whether to remove the juvenile from the custody of his parents or custodian, and to secure worthwhile care upon removal from custody. Again, nowhere in § 9-27-302 is it suggested, or even implied, that its provisions are applicable to an unborn fetus still in its mother’s womb.

Our conclusion in the instant case dovetails with a similar conclusion reached by the Supreme Court of Wisconsin in the case of State ex rel. Angela M. W. v. Kruzicki, 209 Wis. 2d 112, 561 N.W.2d 729 (1997). Angela M.W. was carrying a viable fetus due on October 4, 1995, and blood tests had confirmed that she was using drugs. On September 5, 1995, the county Department of Health and Human Services moved to have the unborn child taken into custody. The motion requested an order to remove the unborn child from his present custody and to place it in protective custody. On September 6, 1995, an order was issued by the juvenile court to detain the unborn child and transport it to the local hospital for inpatient treatment and protection. The order further noted that “[s]uch detention will by necessity result in the detention of the unborn child’s mother. . . .” Angela M.W., 209 Wis. 2d at 118, 561 N.W.2d at 732. That same day, the county filed a CHIPS (child alleged to be in need of protection or services) petition, alleging that the unborn fetus was in need of protection due to exposure from its mother’s prenatal drug use. Detention hearings were held, and a plea hearing was scheduled on the CHIPS petition for September 13, 1995. On that date, Angela M.W. filed an original action in the Wisconsin Court of Appeals seeking a writ of habeas corpus, or, in the alternative, a supervisory writ. The court of appeals denied the writs, and Angela M.W. was permitted review by the Wisconsin Supreme Court.

In the resulting decision, the supreme court noted that the case was not about the propriety or morality of the mother’s conduct; nor was the case about the mother’s reproductive rights. Rather, the supreme court concluded that the case was one of statutory construction, and specifically concerned whether a viable fetus was included within the definition of “child” under Wisconsin statutory law. The court first discussed the fact that different courts had given different meanings to the terms “person” and “child.” Observing that it had previously held that a viable fetus was a “person” for purposes of the Wisconsin wrongful-death statute, the supreme court alluded to the fact that the United States Supreme Court had held that a fetus was not a person under the Fourteenth Amendment of the United States Constitution. The Wisconsin statute defined “child” as “a person who is. less than 18 years of age,” but the court emphasized that courts in other states had arrived at different interpretations of similar statutory language:

Perhaps most compelling, courts in other states have arrived at different interpretations of statutory language nearly identical to that in § 48.02(2). Compare State v. Gray, 62 Ohio St. 3d 514, 584 N.E.2d 710, 713 (1992) (holding that a third trimester fetus is not “a child under eighteen years of age,” as provided in Ohio’s child endangerment statute), with Whitner v. State, No. 24468, 1996 WL 393164, at *3, — S.C. -, -, — S.E.2d — (S.C. July 15, 1996) (concluding that a viable fetus is a “person under the age of eighteen,” pursuant to South Carolina’s child abuse and endangerment statute).

Id. at 123, 561 N.W.2d at 734.

The Wisconsin Supreme Court concluded that the term “child,” as defined by the statute, was ambiguous. After reviewing the legislative history of the Wisconsin statute and considering the context of the statute in conjimction with other relevant sections of the Wisconsin code, the supreme court observed that those sections would be rendered absurd if “child” were interpreted to include a viable fetus. The court’s reasoning included the following: (1) the court had been historically wary of expanding the scope of the Children’s Code by reading into it language not expressly included within the statutory text; (2) while the chapter was to be liberally construed, the court would not read into statutes legislative intent that was not evident and expand the definition of child to the moment after conception; and (3) the court’s prior decisions placing limited legal duties upon a third person, such as wrongful-death decisions, should not be read to “confer full legal status upon a fetus.” Id. at 130, 561 N.W.2d at 737. The Wisconsin Supreme Court ultimately held that the Wisconsin legislature did not intend to include a fetus within the Children’s Code definition of “child” and reversed the court of appeal’s denial of a writ of habeas corpus.

In her brief, Judge Collier relies on the case of Whitner v. State, 328 S.C. 1, 492 S.E.2d 777 (1997), in support of her argument that “it would be absurd to recognize the viable fetus as a person for purposes of homicide laws and wrongful-death statutes but not for purposes of statutes proscribing child abuse.” In Whitney, the South Carolina Supreme Court held that a viable fetus was a “child.” However, South Carolina’s definition of child was different from Arkansas’ statutory definition of “juvenile.” The South Carolina statute provided that a “child” is a “person under the age of eighteen.” Id. at 6, 492 S.E.2d at 779 (quoting S.C. Code Ann. § 20-7-30(1) (1985)). On the other hand, the Arkansas Juvenile Code, as already stated, defines “juvenile” as an individual “from birth to the age of eighteen[,]” regardless of which subsection of the definition is used. Even using subsection (C) of § 9-27-303(29), as urged by Judge Collier, eventually brings us back to the definition of “juvenile.” We must construe all parts of the statute together, and that requires us to use the definition under subsection (A), which clearly and unambiguously says “birth.” In short, Whitner v. State, supra, is not persuasive authority for interpreting our statute.

We conclude, as did the Wisconsin Supreme Court in State ex rel. Angela M.W. v. Kruzicki, supra, that this is a case of statutory construction, and merely because (1) this court has recognized a viable fetus to be a “person” within the meaning of the Arkansas wrongful-death statute, see Aka v. Jefferson Hosp. Ass’n., Inc., supra, and (2) the General Assembly has seen fit to include the death of a fetus within the definition of victims of a homicide in the Criminal Code, see Ark. Code Ann. § 5-1-102(13)(B)(i) (Supp. 2001), this does not mandate that the definition of the term “juvenile” in our Juvenile Code be changed to include an unborn fetus. Viable or not, the plain meaning of our term “juvenile” does not include an unborn child, but rather an individual “from birth to the age of eighteen.” Nor does the purpose section of the Juvenile Code, as set forth by our General Assembly in § 9-27-302, either expressly or by implication, suggest that the term “juvenile” embraces an unborn fetus. Indeed, had the General Assembly intended to include an unborn child in its definition of “juvenile,” it could have done so as it did in the definition of “person” in our Criminal Code in § 5 — 1—102(13)(B) (i). It did not.

Finally, we disagree with the State that Amendment 68 to the Arkansas Constitution, which establishes a public policy to protect the life of every unborn child, requires an amendment to the legislature’s statutory definition of juvenile and conveys authority to state agencies to take custody of fetuses. Nor do we agree with the State that the extraordinary writ of certiorari is being used in this case as a substitute for appeal. It is obvious to this court that before an appeal of this issue could have been resolved, the fetus would have been born. We view certiorari as the appropriate vehicle for bringing the matter to this court for resolution.

We conclude that Judge Collier clearly exceeded her statutory authority and that, as a consequence, her order placing the fetus in the custody of DHS and requiring that department to render prenatal care constituted a plain, manifest, clear, and gross abuse of discretion. Accordingly, the writ of certiorari should issue.

Writ of prohibition denied. Writ of certiorari granted.

       A writ of prohibition lies against the circuit court and not against an individual judge. See Ford v. Wilson, 327 Ark. 243, 939 S.W.2d 258 (1997). We will treat the prohibition petition as if it were filed against the Faulkner County Circuit Court.

       In a related case, submitted for decision by this court on January 9, 2003, Bennett v. Collier, No. 02-1327, Ms. Bennett asserted in a petition for a writ of habeas corpus that Judge Collier exceeded her authority in ordering her jailed until the birth of her child. This court temporarily stayed that order on December 11, 2002, and Ms. Bennett was released from the custody of the Faulkner County Detention Center.

       This court recognizes that the child may have been born as of this writing, thereby rendering this case moot, although there is nothing in the record before this court to suggest that this is the case. Nevertheless, placing a viable fetus in the custody of DHS is a matter likely to be repeated in other cases, and we will address the issue. See Nathaniel v. Forrest City Sch. Dist. No. 7, 300 Ark. 513, 780 S.W.2d 539 (1989).

       DHS also filed a notice of appeal from the August 30, 2002 order. The record received by the Clerk of the Supreme Court on December 12, 2002, was a copy of the record in the instant case. The appeal was docketed as No. CA 02-1342.

       It is unclear whether the trial court actually intended to retain jurisdiction over Ms. Bennett after entry of the termination order, but that is of no moment. Although there was no formal petition filed leading to the pick-up order, a trial court is permitted by statute to take a juvenile into custody without a warrant and prior to service upon him or her of a petition and notice of a hearing under limited circumstances. See Ark. Code Ann. § 9-27-313 (Repl. 2002). This is appropriate where there are clear and reasonable grounds to conclude that the juvenile is in immediate danger, where removal is necessary to prevent serious harm from the juvenile’s surroundings, where the parents have not taken action necessary to protect the juvenile from the danger, and where there is no time to petition and obtain a court order prior to taking the juvenile into custody. See Ark. Code Ann. § 9-27-315(a)(1)(C) (Repl. 2002). Clearly, the court believed that to be the situation in the instant case for the unborn fetus. The circuit court could not separate Ms. Bennett’s unborn fetus, which the court found to be in imminent danger of harm, from Ms. Bennett herself. Accordingly, to take the fetus into custody, the court necessarily had to detain Ms. Bennett as well. Whether the court exceeded its authority m taking Ms. Bennett’s unborn fetus into DHS’s custody is the very issue presented to this court in the instant case. Ms. Bennett’s individual rights as the mother of the unborn fetus and as the subject of incarceration for criminal contempt are at issue in Bennett u. Collier, No. 02-1327.


source: Caselaw Access Project

author: Annabelle Clinton Imber, Justice.

license: Public Domain

text:
    Buckie Allan MILLS v. STATE of Arkansas
    CR 02-67
    95 S.W.3d 796
    Supreme Court of Arkansas
    Opinion delivered January 23, 2003

      Henry & Cullem, LLP, by: Mark Murphy Henry, for appellant.

      Mark Pryor, Att’y Gen., by: DavidJ. Davies, Ass’t Att’y Gen., for appellee.
   Annabelle Clinton Imber, Justice.

Appellant Buckie Mills was convicted of the kidnapping and rape of an eleven-year-old girl, and sentenced to thirty years in prison for kidnapping and to life in prison for raping her, with both terms to run consecutively. On appeal, he challenges the sufficiency of the evidence to support the convictions, and he claims that the trial court erred in failing to properly instruct the jury on the kidnapping count. The points raised on appeal are without merit. We affirm.

On April 6, 2000, an eleven-year-old girl, D.W., was riding her bicycle to school when she was approached by a white male riding a bicycle. The man grabbed D.W. and brandished a knife, stating that if she tried anything, he would slit her throat. He told her he was taking her with him because people were trying to kill him. She was then taken for a fifteen-minute ride on her bicycle to an area located off the main road and near the Arkansas River in Sebastian County.

After reaching the secluded location by the river, the man pushed the girl to the ground and tried to spread her legs open. When she resisted, he pulled her pants and underwear down and put her shirt over her face. Then, he penetrated D.W.’s vagina with his fingers and penis. After D.W. told the man that she had to go to school, he got on his bicycle and left. At that point, she pulled her pants up and tried to find her way back home. However, she became confused and had to stop and ask for directions. D.W. finally got home and reported the incident to her parents. Her father notified the police immediately.

The same day, D.W.’s story aired on the local evening news. As a result of the television coverage, the Fort Smith Police Department received numerous phone calls from potential witnesses. Some of the phone calls pointed to the appellant, Buckie Allan Mills, as a suspect. When police officers arrived at his home, Mills was seen running out the back door. He was stopped a few blocks away and agreed to be interviewed. Mills denied any knowledge of or involvement in the crime.

The police continued to investigate Mills as a primary suspect, and he was eventually identified by the victim and several other witnesses in a photo line-up. Mills was then charged with rape and kidnapping. A Sebastian county jury convicted him on both charges. Mills now appeals, challenging the sufficiency of the evidence to support the convictions and claiming that the trial court erred in failing to properly instruct the jury on the kidnapping count.

1. Sufficiency of the Evidence

As to his first point on appeal, Mills contends that the trial court erred in refusing to direct a verdict in his favor. A motion for a directed verdict is a challenge to the sufficiency of the evidence. Miles v. State, 350 Ark 243, 85 S.W.3d 907 (2002); Britt v. State, 344 Ark. 13, 38 S.W.3d 363 (2001). The test for such motions is whether the verdict is supported by substantial evidence, direct or circumstantial. Miles v. State, 350 Ark 243, 85 S.W.3d 907. Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. Id. On appeal, we review the evidence in the light most favorable to the appellee and consider only the evidence that supports the verdict. Id.

At trial, several witnesses testified on behalf of the State. Three police officers testified that the victim, D.W., was able to give a detailed description of her assailant that matched Mills. According to the officers, she was also able to identify the crime scene. One officer related that in developing Mills as a suspect, two people called in and identified Mills by name. Furthermore, one officer testified that the victim identified Mills as her assailant from a photographic line-up.

D.W. also testified on behalf of the State. She gave a detailed recitation of the events leading up to the crimes. She said that the perpetrator grabbed her, showed her a knife, and told her that he would slit her throat if she tried anything stupid. Then she was taken on a 10 to 15 minute bike ride to the river where Mills told her to get off her bike because they were going to make love. D.W. explained how Mills pulled down her pants and panties and put her shirt over her head. She testified that Mills penetrated her vagina with his fingers and his penis. According to D.W., the perpetrator got up and left when she told him she had to go to school. After Mills left, she pulled her pants up and tried to get home as fast as she could. On the way home, D.W. stopped to ask directions because she was lost. When she finally got home, she reported the incident to her mother. In her testimony, D.W. described what the perpetrator was wearing and his physical characteristics. She also recounted her initial identification of Mills at a photo line-up, and she unequivocally identified Mills from the stand as her assailant.

Two other witnesses testified about seeing Mills in the area of the crime. Rita Green saw Mills on a dark bike in the vicinity of the crime. She identified him at a photo line-up and again at trial. Roy Whitfield saw two people riding bikes on the same path where D.W. was taken; one of them was a man holding the handlebars on a little girl’s bike. Mr. Whitfield had also identified Mills from a photo line-up as a person who “favored” the perpetrator. A third witness, Randy Whitlock, testified that he encountered a young girl who was crying and asking for directions.

Additionally, two of the defendant’s friends testified about certain admissions he made to them. According to Donald Mizer, Mills told him that he had done something very wrong. Specifically, Mills told Mizer that he saw a little girl on a bicycle going to school. He grabbed the handlebars on the girl’s bicycle and showed her a knife. Then, he took her to the woods and told her to take off her clothes. The other friend, Jerry Thompson, testified about Mills telling him that he “took a girl to the river and tried to put it in, but it would not fit.”

In Arkansas, a person commits the offense of kidnapping if, without consent, he restrains another person so as to interfere substantially with his liberty with the purpose of inflicting physical injury upon him, or for engaging in sexual intercourse, deviate sexual activity, or sexual contact with him. Ark. Code Ann. § 5-11-102 (Repl. 1997). Kidnapping is a Class Y felony, except that if the defendant shows by a preponderance of the evidence that he or an accomplice voluntarily released the person restrained alive and in a safe place prior to trial, it is a class B felony. Ark. Code Ann. § 5-ll-102(b) (Repl. 1997). A person commits rape in Arkansas if he engages in sexual intercourse or deviate sexual activity with another person by forcible compulsion. Ark. Code Ann. § 5-14-103 (Repl. 1997).

Mills cites Gregory v. State, 341 Ark. 243, 15 S.W.3d 690 (2000), for the proposition that a conviction based on circumstantial evidence must exclude every other reasonable hypothesis other than that of the guilt of the accused. Evidence that comes from witnesses who testify to what they saw, heard or experienced is direct evidence. See AMI Crim. 2d 106. Circumstantial evidence is evidence that allows a fact to be established by inference from other facts in the case. Id. In the instant case, there was direct evidence in the form of the victim’s own testimony. She unequivocally identified Mills as the perpetrator. Thus, Gregory v. State, supra, is inapposite.

Next, without citation to legal authority, Mills contends that the appellate court “must review the quality and substance of all witness testimony, including the victim’s testimony.” We first note that this court will not entertain an argument where there is no citation to authority or convincing legal argument. Kelly v. State, 350 Ark. 238, 85 S.W.3d 893 (2002). In any event, such a contention is contrary to our well-established standard of review. The credibility of witnesses is an issue for the jury and not this court. Sanford v. State, 331 Ark. 334, 962 S.W.2d 335 (1998). On appeal, we review the evidence in the light most favorable to the appellee and consider only the evidence that supports the verdict. Miles v. State, supra.

With regard to the rape conviction, the State properly points out that the testimony of a rape victim alone is sufficient to support a conviction. Laughlin v. State, 316 Ark. 49, 872 S.W.2d 848 (1994). In this case, D.W.’s testimony, including her in-court identification of the defendant, is alone sufficient evidence to support the rape conviction. Moreover, the testimony of at least four other witnesses linked Mills to the kidnapping and rape.

Mills also suggests the evidence established by a preponderance of the evidence that the victim was released alive and in a safe place. As stated earlier, in order for kidnapping to be reduced from a class Y felony to a class B felony, the defendant must show by a preponderance of the evidence that he or an accomplice voluntarily released the person restrained alive and in a safe place prior to trial. Ark. Code Ann. § 5-ll-102(b). Here, the evidence shows that after being sexually assaulted, D.W. was left in the woods and that she was scared, lost, and confused. We agree with the trial court that a fact question existed for the jury to decide which of the felonies applied. See Jameson v. State, 333 Ark. 128, 970 S.W.2d 785 (1998). The jury found that Mills failed to prove by a preponderance of the evidence that he released D.W. alive and in a safe place. Once again, it is not within this court’s province to try issues of fact. Sanford v. State, supra. In sum, there was sufficient evidence to support the jury verdict convicting Mills of rape and kidnapping as a class Y felony.

2. Jury Instructions Kidnapping

Mills’s second point on appeal is two-fold. First, he contends that the trial court erred in refusing to submit the kidnapping charge as a class B felony to the jury. “Kidnapping is a Class Y felony, except that if the defendant shows by a preponderance of the evidence that he or an accomplice voluntarily released the person restrained alive and in a safe place prior to trial, it is a Class B felony.” Ark. Code Ann. § 5-ll-102(b). Mills states that the jury was not allowed to decide whether the victim was released alive and in a safe place. That assertion is not supported by the record.

The verdict form signed by the jury reads as follows:

We, the jury, find beyond a reasonable doubt that Buckie Mills is guilty of kidnapping and we further find that he has not proved by a preponderance of the evidence that he released the victim alive and in a safe place prior to trial.

The jury made two separate findings: (1) Mills was guilty of kidnapping; and (2) Mills did not prove by a preponderance of the evidence that he released the victim alive and in a safe place. Thus, any error asserted about the trial court failing to present the issue of the victim’s voluntary release to the jury is wholly without merit, because the issue was both placed before, and decided by, the jury.

For his second argument, Mills claims a preponderance of the evidence proved that the victim was released alive and in safe place. We have already addressed this contention, which appears to be another challenge to the sufficiency of the evidence. There was substantial evidence, as set out earlier in this opinion, to support the jury’s finding that Mills failed to establish by a preponderance of the evidence that he released his victim in a safe place. The eleven-year-old victim was left in the woods at a secluded location by the Arkansas River. Furthermore, she got lost trying to find her way home.

For the foregoing reasons, the convictions and sentences are affirmed. The record has been reviewed for other reversible error, as required by Supreme Court Rule 4-3 (h), and none has been found.

Affirmed.


author: Ray Thornton, Justice. Tom Glaze, Justice,

text:
    STATE of Arkansas v. Michael AUD
    CR 02-479
    95 S.W.3d 786
    Supreme Court of Arkansas
    Opinion delivered January 23, 2003

      Turbeville Law Firm, P.A., by: Richard N. TurbeviUe, for appellant.

      Mark Pryor, Att’y Gen., by: Lauren Elizabeth Heil, Ass’t Att’y Gen., for appellee.
   Ray Thornton, Justice.

On October 11, 1998, appellee, Michael Aud, was arrested for driving while intoxicated. A breathalyzer test administered at the time of arrest indicated a reading of 0.10% as the blood alcohol content.

At a bench trial held on November 26, 2001, and November 30, 2001, the results from appellee’s breathalyzer test, together with evidence of possible contamination of the breath sample, the standard of accuracy of the breathalyzer machine, evidence concerning the circumstances leading to the stop, including the results of field sobriety tests, and other evidence was presented to the trial court.

At trial, the State argued that if a criminal defendant receives a 0.10% BAC reading from the breathalyzer machine, and this reading is admitted into evidence, an irrebuttable presumption of guilt is created. The trial court did not accept this argument, and based on the evidence presented at trial, the trial court determined that there was insufficient evidence to support a conviction for driving while intoxicated.

It is from appellee’s acquittal that the State appeals. The State brings its appeal pursuant to Rule 3 of the Appellate Rules of Criminal Procedure. The rule provides:

If the Attorney General, on inspecting the trial record, is satisfied that error has been committed to the prejudice of the State, and that the correct and uniform administration of the criminal law requires review by the Supreme Court, he may take the appeal by filing the transcript of the trial record with the clerk of the Supreme Court within sixty (60) days after the filing of the notice of appeal.

Ark. R. App. P. — Crim. 3(c). In State v. Hulum, 349 Ark. 400, 78 S.W.3d 111 (2002), we outlined the requirements for a State’s appeal. We explained that in criminal cases:

We accept appeals by the State when our holding would be important to the correct and uniform administration of the criminal law. Rule 3(c). As a matter of practice, this court has only taken appeals which are narrow in scope and involve the interpretation of law. State v. Banks, 322 Ark. 344, 909 S.W.2d 634 (1995). Where an appeal does not present an issue of interpretation of the criminal rules with widespread ramifications, this court has held that such an appeal does not involve the correct and uniform administration of the law. State v. Harris, 315 Ark. 595, 868 S.W.2d 488 (1994).
Appeals are not allowed merely to demonstrate the fact that the trial court erred. State v. Stephenson, 330 Ark. 594, 955 S.W.2d 518 (1997); State v. Spear and Boyce, 123 Ark. 449, 185 S.W. 788 (1916). Thus, where the resolution of the issue on appeal turns on the facts unique to the case, the appeal is not one requiring interpretation of our criminal rules with widespread ramification, and the matter is not appealable by the State.

Hulum, supra.

With these legal principles in mind, we must determine whether the issue raised by the State involves a matter that is important to the correct and uniform administration of criminal law. In its only point on appeal, the State argues that “the trial court erred as a matter of law by acquitting the appellee on the basis that the breathalyzer is not an accurate method for measuring blood-alcohol content.” We have carefully reviewed the proceedings before the trial court and the trial court’s findings, and we conclude that the trial court did not acquit appellee based on a broad finding that results from breathalyzer tests are suspect. In fact, we note that the trial court found that “the test is probably as accurate as we can possibly get” and the trial court stated that “I think it’s a fairly accurate test.” Rather than challenging the accuracy of all breathalyzer machines, the trial court weighed the evidence presented at appellee’s trial. The trial court considered evidence regarding the possible contamination of appellee’s air sample, and testimony from the breathalyzer machine operator who stated that a variance of plus or minus 0.01% met the standards for approval of the breathalyzer machine set by the Arkansas Regulations for Alcohol Testing Manual established by the Department of Health. As previously noted, the trial court accepted the accuracy of the breathalyzer machine, and stated that the reading of 0.10% was right on the line. After reviewing the evidence, and determining the credibility of the witnesses, the trial court found that the State did not prove appellee’s guilt beyond a reasonable doubt. Under these circumstances, we conclude that the State has failed to establish a proper appeal. Specifically, we conclude that the only issue presented in this appeal is whether the trial court erred in its consideration of the evidence. Resolution of this issue turns on facts that are unique to this case. Because resolution of this matter does not present an issue of interpretation of our criminal rules with widespread ramifications, we hold that this appeal does not involve the correct and uniform administration of the law. Accordingly, we dismiss the appeal.

Arnold, C.J., not participating.

Glaze and Imber, JJ., dissent.

Tom Glaze, Justice,

dissenting. This court’s refusal to review appellee Michael Aud’s case on appeal will produce dire future consequences in the trying of DWI cases across the state. The trial judge who acquitted Mr. Aud was well aware that, in doing so, his interpretation of Ark. Code Ann. § 5-65-103 (Repl. 1997), would invite “more and more experts” to testify, challenging the validity of blood-alcohol content tests. Under this court’s prior cases, the court has held this 1983 statute has made driving with a blood alcohol content of .10% or more illegal, per se. Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984). The Lovell decision stated that a defendant was innocent until the state proved beyond a reasonable doubt that he or she was driving and that their blood alcohol measurement was .10% or more. Id. at 430. Until the case now before us, the State sustained its burden by proving that the defendant was driving and that his “blood-alcohol measurement was .10% or more.”

A driver clearly retains the right to question whether the chemical analysis was performed according to methods approved by the Arkansas State Board of Health. See Ark. Code Ann. § 5-65-206 (Repl. 1997). Moreover, the driver also has the right to have a test administered by a physician or qualified technician, registered nurse, or other person qualified to administer a complete chemical test — blood, breath, or urine — in order to question the government’s tests. See Ark. Code Ann. § 5-65-204(e) (Repl. 1997).

In the instant case, the trial court has added and engrafted another defense to Arkansas’s DWI laws by allowing a purported expert witness to give his opinion questioning the breathalyzer test administered to Mr. Aud, stating that, while Aud’s blood-alcohol measurement was .10% or more, such a measurement does not necessarily mean Aud actually had a blood-alcohol content of .10%. Again, until now, this court has upheld the constitutionality of Arkansas’s DWI laws as a reasonable means of protecting the public safety, and that the State proves its case when it shows that the defendant driving has a blood-alcohol measurement of .10% or more.

The trial court in the present case strongly urged the parties to appeal to determine whether our DWI statutory provisions could be considered and interpreted to permit a defendant’s expert testimony to show that a defendant’s actual blood-alcohol content may differ from the statutory blood-alcohol measurement proved by the State. The trial court’s expressed concern was that, if Mr. Aud prevails on appeal, more and more experts will be employed to offer drivers charged with DWI a defense that was not heretofore provided or recognized. Because the interpretation of this State’s DWI laws will clearly have widespread ramifications and this court’s holding would be important to the correct and uniform administration of our DWI statute, this court should take this on review instead of dodging a very difficult, controversial issue.

Imber, J., joins this dissent.

       At the time of the arrest, the effective statute provided:
      (a) It is unlawful and punishable as provided in this act for any person who is intoxicated to operate or be in actual physical control of a motor vehicle.
      (b) It is unlawful and punishable as provided in this act for any person to operate or be in actual physical control of a motor vehicle if at that time there was one-tenth of one percent (0.10%) or more by weight of alcohol in the person’s blood as determined by chemical test of the person’s blood, urine, breath or other bodily substance.
      Arkansas Code Annotated § 5-65-103 (Repl. 1997)(superseded).

       In its review of the evidence, the trial court noted that resolution of the case depended upon the credibility of the witnesses. Specifically, the trial court stated:
      I think that the expert kind of helps to give the court a little understanding as to the mechanics and the science of how the breathalyzer works and why you should or should not accept it. But the bottom line is, whatever the results are, the accuracy — they [do not] fall within the range where the defendant was either . . . way above the legal limit or below the legal limit, but right at the line.
      So the question really becomes . . . one of credibility. So do you believe the defendant when he says he only had four beers or do you believe that he had more? So, that, that’s essentially what it boils down to.

       The factors identified by the trial court as possible contaminates were: (1) appellee’s having blown into the machine multiple times without cleaning the equipment, and (2) the presence of chewing tobacco in appellee’s mouth at the time the breathalyzer test was performed.

       The 2001 Amendment changed the blood-alcohol content threshold to .08%. See Acts 2001, No. 561, § 2. Sections 5-65-206 and 5-65-204(e) referred to herein, infra, have also been modified by Act 561.

       The State objected to Mr. Aud’s expert witness because the witness was not qualified to operate a BAC machine.


author: Ray Thornton, Justice.

text:
    T&T CHEMICAL, INC. v. Sharon PRIEST, Secretary of State for the State of Arkansas, and Jimmie Lou Fisher, Treasurer for the State of Arkansas
    02-286
    95 S.W.3d 750
    Supreme Court of Arkansas
    Opinion delivered January 23, 2003

      Trammell Rogers, PLC, by: Gill A. Rogers, for appellant.

      Mark Pryor, Att’y Gen., by: Timothy G. Gauger and Jeff R. Priebe, Ass’t Att’ys Gen., for appellees.
   Ray Thornton, Justice.

This is an interlocutory appeal from the trial .court’s denial of a petition for certification under the provisions of Rule 23 of the Arkansas Rules of Civil Procedure. On November 30, 1999, appellant, T&T Chemical, Inc. (“T&T”), brought an action against appellees, Sharon Priest, Secretary of State, and Jimmie Lou Fisher, State Treasurer, alleging that appehees wrongfully collected a six-dollar increase in the annual corporate franchise tax from T&T and similarly situated taxpayers for 1993 and subsequent years. That case is still pending before the trial court as an action for an alleged illegal exaction.

With regard to the underlying action for an illegal exaction, we note that taxpayers who are the victims of an illegal exaction form a class as a matter of law under Article 16, Section 13, of the Arkansas Constitution. Frank v. Barker, 341 Ark. 577, 20 S.W.3d 293 (2000). An illegal-exaction claim is by its nature in the form of a class action. Hamilton v. Villines, 323 Ark. 492, 915 S.W.2d 271 (1996). Here, the existence of the class based upon the illegal-exaction clause of our constitution does not depend upon, or require certification under, the provisions of Rule 23. We recently held in Worth v. City of Rogers, 351 Ark. 183, 89 S.W.3d 875 (2002), that “although an illegal-exaction case is a class action, it is not a class action established under Rule 23.” Id.

Notwithstanding its status as a taxpayer plaintiff in an illegal-exaction action with its attendant class of similarly situated taxpayers, T&T sought to invoke the provisions of Rule 23, and petitioned for additional certification as the class representative pursuant to the provisions of Rule 23. Following a hearing in which T&T failed to produce any evidence upon which such a Rule 23 certification could be based, the trial court denied the petition for Rule 23 certification, and T&T brings this interlocutory appeal, contending that the trial court erred in failing to certify the existence of a Rule 23 class as a matter of law.

T&T argued to the trial court that Rule 23 is applicable to this case, and that T&T satisfied the prerequisites for certification by meeting all requirements of Rule 23(a) and (b). In this appeal, T&T now contends that its status as a plaintiff in an illegal exaction case should automatically entitle it to certification as a class representative under Rule 23. T&T did not present this argument to the trial court, but specifically asserted that Rule 23 was applicable and that T&T met the requirements of the rule. The .trial court denied the Rule 23 certification, but did not deny or otherwise rule against T&T’s continuing status as a taxpayer in an illegal exaction action with its attendant class of similarly situated taxpayers.

In this interlocutory appeal, T&T relies upon arguments that were not presented to the trial court. In its petition to the trial court seeking certification under Rule 23, T&T stated:

The class of taxpayers previously described meets all requirements of Rule 23(a). Furthermore, the questions of law and fact at issue in the case at bar are common to all members of the class previously described and predominate over any possible questions affecting only individual members of the class. As such, a class action is superior to other available methods for the fair and efficient adjudication of the issues and controversies raised by this suit and thus certifiable under Rule 23(b) of the Arkansas Rules of Civil Procedure.
4. The named plaintiff, T&T, represents the type of taxpayer who has been, and will be, subjected to the payment of illegal franchise fees in question and has claims that are typical of the claims of all class members. T&T will fairly and adequately protect the interest of all class members, and is qualified to prosecute this action to a conclusion. As such, it should be allowed to proceed as the named plaintiff on behalf of all other class members.

T&T then asserted in its motion that subsection (c) of Rule 23 was not applicable because, according to appellant, no notice was required.

By a letter dated August 21, 2001, the trial court notified the parties that it would conduct a hearing on October 30, 2001, on the motion to certify T&T as the representative of the class. At the scheduled hearing, the trial court afforded T&T an opportunity to present evidence supporting its petition for certification under the provisions of Rule 23, but T&T was not present at the certification hearing. Moreover, counsel for T&T did not offer any witnesses, documents, or other evidence to support its contested motion for certification under Rule 23.

At the trial level, T&T never advanced the argument that ¿he provisions of Rule 23 were inapplicable to illegal-exaction cases. To the contrary, T&T argued to the trial court that it fully met the requirements of Rule 23. It is well settled that to preserve an issue for appeal, the trial court must be apprised of the particular error alleged. Grandjean v. Grandjean, 315 Ark. 620, 869 S.W.2d 709 (1994). An appellant may not change the basis for its arguments or raise issues for the first time on appeal. Id.

Here, however, we have said numerous times that taxpayers in an illegal exaction lawsuit constitute a class as a matter of law. Frank, supra. Accordingly, an appeal from a refusal to grant Rule 23 certification of a class in an illegal-exaction case is not a proper basis for an interlocutory appeal' under Ark. R. App. P. — Civ. 2(a)(9) because the taxpayers are already a class under Article 16, Section 13, of the Arkansas Constitution. We hold that there is no interlocutory appeal from a refusal to certify a Rule 23 class in an illegal-exaction case, but only from a refusal to certify a class in a civil action brought pursuant to Rule 23, and we dismiss the appeal for lack of jurisdiction. To the extent that City of Little Rock v. Cash, 277 Ark. 494, 644 S.W.2d 229 (1982), can be read to require the application of Rule 23 to an illegal exaction lawsuit, we overrule it.

Accordingly, we dismiss this interlocutory appeal from the trial court’s decision denying certification under Rule 23, and remand the case to the trial court for further proceedings as an action for an illegal exaction under the provisions of Article 16, Section 13, of the Arkansas Constitution.


author: Jim Hannah, Justice.

text:
    Ricky GAMBLE v. STATE of Arkansas
    CR 02-688
    95 S.W.3d 755
    Supreme Court of Arkansas
    Opinion delivered January 23, 2003

      William R. Simpson, Jr., Public Defender, by: Clint Miller, Deputy Public Defender.

      Mark Pryor, Att’y Gen., by: Vada Berger, Ass’t Att’y Gen., for appellee.
   Jim Hannah, Justice.

Appellant Picky Gamble appeals his conviction for the class C felony of theft of property having a value of less than two thousand five hundred dollars but more than five hundred dollars. Gamble asserts that his conviction must be reversed due to a lack of substantial evidence. He also asserts that the trial court erred in admitting testimony about the contents of his statement when the actual audio tape of his statement was the best evidence.

This appeal was filed in the court of appeals. On October 31, 2002, the State filed a motion in the court of appeals asking that the case be certified to the supreme court because Gamble was relying in part on a 1917 criminal case of the supreme court, which the State alleges has been overruled by implication. That motion was granted on November 12, 2002. Jurisdiction is proper in the supreme court under Ark. Sup. Ct. R. l-2(b). We hold there was no error and affirm.

Facts

Dr. Michael Young testified that he was staying at the Capitol Hotel on July 19, 2001. Dr. Young also testified that while he was staying at the Hotel, he returned to his room and found two pistols were missing. An investigation was undertaken on July 19, 2001.

Lorene Davis testified that on July 19, 2001, she was employed at the Capitol Hotel as a room attendant. She identified Gamble as a fellow employee whose duties included pulling linens and removing trash, but whose duties did not include entry into rented rooms. She testified that she nonetheless saw Gamble enter rented rooms 302, 322 and 330 on July 19, 2001.

Denise Johnson testified that she was employed in housekeeping at the Capitol Hotel on July 19, 2001, and she identified Gamble as a fellow employee whose typical duties were to pull linens and “stuff” from vacant rooms. Johnson testified that on July 19th, she cleaned room 322, a rented room, and later saw Gamble leaving room 322. She further testified that Gamble had no business in the room because it was rented and because she had just cleaned it. She also testified that fifteen minutes later she saw Gamble enter room 322 again, but this time in company of another person. Johnson testified that she did not see either Gamble or the other person leave the room with anything.

Detective Darrell Casteel of the Little Rock Police Department testified that he was called to investigate the theft of the pistols at the Capitol Hotel on July 19, 2001. He further testified that he interviewed Gamble as a part of that investigation. Detective Casteel then testified that Gamble waived his rights and gave a statement including an admission that he entered a hotel room at the Capitol Hotel and stole two guns. Detective Casteel testified that Gamble told him where one pistol was hidden and that the other pistol was sold to a person on the streets in North Little Rock. According to Detective Casteel’s further testimony, the hidden pistol was recovered and returned to Dr. Young.

Directed Verdict

Gamble first challenges the sufficiency of the evidence. He argues that evidence obtained through his confession to Detective Casteel was inadmissible because the tape of the confession was the best evidence. As discussed later in this opinion, Detective Casteel’s testimony about the statement was properly admitted in this case.

The right against double jeopardy requires that we consider the challenge to the sufficiency of the evidence before we consider alleged trial error even where the issue was not presented as the first issue on appeal. Price v. State, 347 Ark. 708, 66 S.W.3d 653 (2002); King v. State, 323 Ark. 671, 916 S.W.2d 732 (1996). It is well settled that a motion for a directed verdict is a challenge to the sufficiency of the evidence. Atkinson v. State, 347 Ark. 336, 64 S.W.3d 259 (2002). See also, Smith v. State, 346 Ark. 48, 55 S.W.3d 251 (2001). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Smith, supra. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Atkinson, supra. When a defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in the light most favorable to the State. Id. Only evidence supporting the verdict will be considered. Id.

The State relied entirely upon circumstantial evidence. The State provided no witness who testified he or she saw Gamble steal or exercise unauthorized control over the pistols. Direct evidence is evidence that proves a fact without resort to inference, when for example, it is proved by witnesses who testify to what they saw, heard or experienced. “Direct evidence is evidence which, if believed, resolves the issue. . . .For example, a witness who testifies that he saw A stab B with a knife is direct evidence of whether A did in fact stab B.” John W. Strong, McCormick on Evidence §185, at 641-642 (5th ed. 1999).

Guilt, however, can be established without eyewitness testimony, and evidence of guilt is not less because it is circumstantial. Gregory v. State, 341 Ark. 243, 15 S.W.3d 690 (2000); Trimble v. State, 316 Ark. 161, 871 S.W.2d 562 (1994). Whether evidence is direct or circumstantial, it must meet the requirements of substantiality. Gregory, supra. It must force the fact-finder to reach a conclusion one way or the other without resort to speculation or conjecture. Chism v. State, 312 Ark. 559, 853 S.W.2d 255 [853 S.W.2d 555] (1993). Where circumstantial evidence alone is relied upon, it must exclude every other reasonable hypothesis than that of guilt of the accused or it does not rise to the required substantial evidence. Gregory, supra.

Gamble was accused of exercising unauthorized control over two pistols belonging to Dr. Young in violation of Ark. Code Ann. § 5-36-103 (Supp. 2001). In the felony information, it was asserted that the value of the property was less than $2500.00 but more than $500.00.

Gamble argues:

[A]lthough Appellant Gamble told Little Rock Police Detective that he stole some guns from the Capitol Hotel and although Appellant Gamble knew the location of one of Mr. Young’s missing pistols, Detective Casteel did not testify that Appellant Gamble specifically told him that he stole two pistols from Michael Young’s room in the Capitol Hotel on July 19, 2001.

Gamble asserts that his knowledge of the location of one of the stolen pistols does not prove he stole it.

At trial, Dr. Young testified that two pistols were stolen from his room at the Capitol Hotel. He also testified that their value was in the range asserted by the State in the felony information. Testimony of hotel employees Davis and Johnson was admitted that showed Gamble was a hotel employee who was present during Dr. Young’s stay, and an employee who had access to rented rooms such as Dr. Young’s room. Further, Davis’s and Johnson’s testimony established that Gamble was entering rented rooms even though his job duties did not require him to do so, and even though he was not supposed to enter rented rooms. Detective Casteel then testified that he investigated the theft of Dr. Young’s pistols and recovered one of the pistols from where Gamble told him he had hidden it. Detective Casteel returned the recovered pistol to Dr. Young. This constitutes substantial circumstantial evidence.

In addition, Gamble confessed to Detective Casteel that he took the pistols, and that the second pistol was sold on the street in North Little Rock. The evidence with or without the confession constitutes substantial evidence that Gamble exercised unauthorized control of Dr. Young’s pistols in violation of Ark. Code Ann. § 5-36-103.

Contemporaneous Objection

The State makes the argument that this court may not hear any issue regarding testimony about the contents of Gamble’s statement because Detective Casteel responded to a question about the contents of the statement before Gamble objected to the question. There is no merit to the issue. The testimony at issue is:

Q: Did he give you a statement?
A: Yes.
Q: During the course of the statement you took from him, did he admit to entering into a hotel room at the Capitol Hotel and stealing two guns?
A: Yes, he did.
Ms. Cordi: Your honor I’ll object. The basis of my objection is this apparently, I believe, was a taped statement that was taken from Mr. Gamble and that would be the best evidence in this case, so I’ll object to any statements by Detective Casteel regarding this conversation with Ricky since there is a taped conversation.

We first note that what was objected to was the admission of testimony about the Contents of the statement, not the fact that a statement had been taken. Thus, what occurred at trial was the posing of a leading question about the contents of the statement that invited a simple “yes” as a response. Gamble’s counsel objected, but not before Detective Casteel said, “Yes, he did.” It appears the State’s argument is reduced to an assertion that counsel must manage to insert the objection between the question and answer so as to preclude a response or the objection is waived. The law is not so narrow as that.

In Robinson v. State, 348 Ark. 280, 72 S.W.3d 827 (2002), this court stated that the purpose of the contemporaneous-objection rule is to give the trial court a fair opportunity to consider an allegation of error and to correct it, if the allegation is meritorious. See Brooks v. State, 256 Ark. 1059, 511 S.W.2d 654 (1974); Western Union Tel. Co. v. Freeman, 121 Ark. 124, 180 S.W. 743 (1915); Jones v. Seymour, 95 Ark. 593, 130 S.W. 560 (1910). Robinson, 348 Ark. at 294-295. We also note that this was a bench trial. In Stewart v. State, 332 Ark. 138, 143, 964 S.W.2d 793 (1998) this court stated:

If a contemporaneous objection is not made at the time the evidence is offered during a jury trial, the proverbial bell will have been rung and the jury prejudiced. However, when the contested evidence is mentioned during a bench trial, there is no risk of prejudice because a trial judge is able to consider evidence only for its proper purpose.

Stewart, 332 Ark. at 143. To preserve a point for appeal, a proper objection must be asserted at the first opportunity after the matter to which objection has been made occurs. Smith v. State, 330 Ark. 50, 953 S.W.2d 870 (1997); Asher v. State, 303 Ark. 202, 795 S.W.2d 350 (1990), cert. denied, 498 U.S. 1048 (1991). This was done in the present case. There is no merit to the State’s argument that the issue was not preserved.

The Statement

Gamble argues that his confession may not be considered because where a confession has been recorded, the recording must be produced at trial if the State wants to put on evidence of the confession. In support, Gamble asserts that Finn v. State, 127 Ark. 204, 191 S.W. 899 (1917) requires that where a confession has been reduced to writing, the State may not prove the contents of the confession by oral testimony of a witness who heard the confession. The holding in Finn is not so broad as Gamble alleges.

In Finn, the court cited 2 Encyclopedia of Evidence, 281 stating that the best evidence of the content of a writing is the writing itself. Finn, 127 Ark. at 210. That remains the law. Ark. R. Evid. 1002. In Finn, the issue was the admission of oral testimony regarding the contents of a written confession. Finn, 127 Ark. at 210. Finn stands for the proposition that where the contents of a written confession are at issue, the best evidence of the written confession is the writing. That holding is consistent with subsequent case law.

In Sumlin v. State, 266 Ark. 709, 587 S.W.2d 571 (1979), appellant argued that the trial court erred in admitting a tape of the confession where only a transcript was available at the Denno hearing. In Sumlin, citing Ark. R. Evid. 1002, this court stated, “The judge was right, the tape was the best evidence of the confession.” Sumlin, 266 Ark. at 718. The contents of the taped confession were at issue in Sumlin. In Williamson v. State, 263 Ark. 401, 565 S.W.2d 415 (1978), the State had a taped statement and transcription of the statement, neither of which were provided to the criminal defendant even though a request had been made under Ark. R. Crim. P. 17.1. This court stated that the criminal defendant was entitled to not only the statement, but also the tape because the tape was the best evidence and would be needed to determine if the transcription was a correct reproduction of the tape. Williamson, 263 Ark. at 405.

In Hamm v. State, 296 Ark. 385, 757 S.W.2d 932 (1988), the appellant’s statement was taped, but the tape was erased when it was reused. At trial, the appellant moved to suppress the statement because the State introduced a transcription of the tape. The trial court allowed the transcription to be introduced into evidence. This court held that admission of the transcription was in error, that the appellant was prejudiced in that the recording was the best evidence and without it the appellant had no way to determine whether the transcription was accurate.

In Mitchell v. State, 295 Ark. 341, 750 S.W.2d 936 (1988) (overruled on other grounds in MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998)), this court was also faced with an attempt to introduce a transcription of a taped statement where the tape had been reused and was no longer available. The State asserted unavailability, which this court rejected. This court stated that where a statement was taped, the tape needed to be kept for a reasonable period of time if the State wished to admit the transcription. Mitchell, 295 Ark. at 354. The court went on to state that if the State could simply argue unavailability, “[t]he authorities could, with impunity, simply destroy the best evidence of what was said by the accused, and then assert its unavailability in every case.” Id.

At issue in Finn and the other noted cases was the admission of evidence of the content of a writing or recording. Therefore, the best evidence rule was applicable. However, in the case before us, there is no best evidence issue. The content of the tape was not at issue. The best evidence rule applies only to writings, photographs and recordings. Redman v. State, 265 Ark. 774, 580 S.W.2d 945 (1979). Further, it is only when the writing itself must be proved that the writing must be produced. Canady v. Canady, 285 Ark. 378, 687 S.W.2d 833 (1985). The best evidence rule deals with writings alone. Meyer v. State, 218 Ark. 440, 236 S.W.2d 996 (1951).

What was at issue in this case was what Gamble told Detective Casteel. In Hamm, supra, the tape of the statement was erased and the case was reversed where the State had obtained admission of the transcription of the tape. The transcription was not admissible because of the best evidence rule. The court went on to say, however:

In summation, the trial court erred in allowing the transcription of the appellant’s confession to be read into evidence. This does not mean, however, that upon retrial the trial court cannot allow oral testimony about the confession into evidence. It is the transcription itself which was admitted in violation of the rules of criminal procedure

Hamm, 296 Ark. at 389. (emphasis added).

No writing was at issue in this case. The State did not attempt to introduce a transcript of the confession. Testimony of Detective Casteel about what Gamble told him was at issue. The best evidence rule was not applicable under these facts. No other objection was made. The testimony was properly admitted in this case.

Affirmed.

       See also Stout v. State, 244 Ark. 676, 426 S.W.2d 800 (1968), where the State used a written statement to impress upon the jury the prosecution’s contentions about inconsistencies between the written statement and testimony of the accused. This court in Stout cited Finn in stating that it was not error to permit the sheriff to testify to other oral statements made to him by the accused. The written statement at issue in the case had been given to the prosecutor, and the sheriff was not testifying about the contents of the written statement. Stout, 244 Ark. at 680. In Norton v. State, 237 Ark. 783, 376 S.W.2d 267 (1964), this court again noted Finn and stated that even where a confession had been reduced to writing, oral evidence of other statements by the accused were admissible.


text:
    Loretta JUDKINS and Marilyn J. Levinson v. Heather Judkins HOOVER
    02-68
    95 S.W.3d 768
    Supreme Court of Arkansas
    Opinion delivered January 23, 2003

      Doyle L. Webb, for appellants.

      Hopkins & Allison, by: Gregory M. Hopkins and Jeffrey C. Humiston, for appellee.
   Jim Hannah, Justice.

Appellants Loretta Judkins and Marilyn Levinson appeal the order of the Pulaski County Circuit Court, Seventeenth Division, which found that Richard Alan Judkins died intestate because his purported will had not been properly executed or witnessed. During a hearing on December 20, 2000, the appellee withdrew her objections to the purported will, and the circuit court orally admitted the will to probate. No written order was ever signed or entered. On August 21, 2001, the circuit court heard additional evidence and held that the decedent died intestate because his will had not been properly executed or witnessed. The appellants claim that the circuit court was without subject-matter jurisdiction to hear the will contest and to determine that the decedent died intestate. We hold that the circuit court had subject-matter jurisdiction of this matter and, accordingly, we affirm. This appeal was certified to this court by the court of appeals, pursuant to Ark. Sup. Ct. R. 1-2(b)(4), (6), and (d)(2) (2002).

Facts

Richard Alan Judkins died on February 27, 2000. Appellant Loretta Judkins is the mother of the decedent, and appellant Marilyn Levinson is the sister of the decedent. Appellee Heather Judkins Hoover is the only child of the decedent. On March 15, 2000, “Notice of Hearing/& Petition for Appointment of Personal Representative with Will Annexed” was served on Hoover. Attached to the notice was a copy of a will dated December 15, 1989 (“1989 Will”). On March 27, 2000, Hoover filed a motion questioning the validity of the will and its operative effect upon her. Hoover withdrew her challenge to the validity of the will at a hearing on December 20, 2000, after which the circuit court orally admitted the will to probate from the bench. No written order admitting the will to probate was ever signed or entered.

On January 16, 2001, Hoover filed a “report of possible irregularities of will admitted to probate,” in which she stated that approximately two weeks after the December 20 hearing, she was approached by Heidi Levinson, the estranged daughter-in-law of Marilyn Levinson. In a conversation with Hoover, as weE as in a letter to the circuit court, Heidi aEeged that the 1989 WiE admitted to probate was actuaEy only an unwitnessed draft found by the proponents of the wiE after the decedent’s death and that the proponents had thereafter secured witness signatures to the 1989 WiE.

At a hearing on August 21, 2001, the circuit court heard testimony from Heidi; MarEyn; Daniel George, MarEyn’s boyfriend; MEes Levinson, MarEyn’s son; Bobby Jenkins, the former court-appointed special administrator of the estate; and WEliam Hunt and Agnus Hunt, who signed as witnesses to the 1989 WiE. On September 14, 2001, the circuit court found that the 1989 WiE was not properly executed or witnessed. Further, the circuit court found that unless another wiE were brought forward, the decedent would be considered to have died intestate.

Subject-Matter Jurisdiction

AppeEants’ sole argument on appeal is that the circuit court lacked subject-matter jurisdiction to hear appeEee’s wiE contest and to determine that .the decedent died intestate. AppeEee argues that the appeal must be dismissed because it is based upon an argument raised for the first time on appeal. AppeEants acknowledge that “this aspect of jurisdiction was not raised or addressed” below; however, appeEants argue that their appeal is proper because subject-matter jurisdiction may be questioned for the first time on appeal.

It is weE-settled that this court wiE not hear arguments raised for the first time on appeal. See, e.g,, Laird v. Shelnut, 348 Ark. 632, 74 S.W.3d 206 (2002); Hurst v. Holland, 347 Ark. 235, 61 S.W.3d 180 (2001); Ghegan & Ghegan, Inc. v. Barclay, 345 Ark. 514, 49 S.W.3d 652 (2001). However, we have made it clear that subject-matter jurisdiction is always open, cannot be waived, can be questioned for the first time on appeal, and can even be raised by this court. Terry v. Lock, 343 Ark. 452, 37 S.W.3d 202 (2001); Hamaker v. Strickland, 340 Ark. 593, 12 S.W.3d 210 (2000). Therefore, we will address the appellants’ argument and determine whether the circuit court was without subject-matter jurisdiction.

Arkansas Code Annotated § 28-1-104 (1987) provides, in part:

(a) The probate court shall have jurisdiction over:
(1) The administration, setdement, and distribution of estates of decedents;
(2) The probate of wills ....

Clearly, the circuit court had jurisdiction to hear matters concerning the probate of the 1989 Will. However, appellants contend that, pursuant to Ark. Code Ann. §§ 28-1-115(a) (1987), and 28-40-113(b) (1987), the circuit court was without any authority to consider appellee’s challenge to the 1989 Will subsequent to the December 20, 2000, hearing at which the circuit court orally admitted the 1989 Will to probate.

Arkansas Code Annotated § 28-l-115(a) provides, in part, that the circuit court shall have “no such power ... to set aside the probate of a will after the time allowed for contest thereof.” Ark. Code Ann. § 28-40-113(b) provides, in pertinent part, that if a will contest is on any ground other than that another will has been discovered, and if the will contestant has been given proper notice, the contestant’s grounds for objection must be filed at or prior to the time of the hearing on the petition for probate.

Lack of Effective Order

The appellee argues that Ark. Code Ann. §§ 28-1-115(a) and 28-40-113(b) are inapplicable because the order admitting the 1989 Will to probate was never entered. We agree. Administrative Order 2(b)(2) provides that an “order is entered when so stamped or marked by the clerk . . . . “ In addition, a will must be declared to be valid by an order of probate by the circuit court to be effective to prove the transfer of any property or to nominate an executor. See Ark. Code Ann. § 28-40-104(b) (1987). Clearly, pursuant to Administrative Order 2(b)(2), an oral order announced from the bench does not become effective until reduced to writing and filed.

When faced with a situation similar to the present case, the court of appeals held that a probate judge was free to alter a ruling from the bench which was not reduced to writing and filed of record. See Morrell v. Morrell, 48 Ark. App. 54, 889 S.W.2d 772 (1994). In that case, the appellant petitioned the probate court for the appointment of a guardian of her mother’s person and estate. Morrell, supra. However, a few months after the trial, after considering the facts and circumstances surrounding the case, the probate court decided not to appoint a guardian. Id. The court of appeals stated:

Since the probate judge’s ruling from the bench was not reduced to writing and filed of record, it would appear that he was free to alter his decision upon further consideration of the matter. Appellant has cited no authority to indicate otherwise, and we know of none.

Morrell, 48 Ark. App. at 57.

The same reasoning applies to the present case. The oral ruling admitting the 1989 Will to probate was not reduced to writing and filed of record. Therefore, Ark. Code Ann. § 28-40-113(b) is not applicable because the circuit court never lost subject-matter jurisdiction and was free to hear additional evidence and to alter its decision upon further consideration of the facts and circumstances surrounding the 1989 Will. Also, Ark. Code Ann. § 28-l-115(a) is not applicable because no written order was entered after the December 20, 2000, hearing and, thus, there was no order admitting a will to probate to set aside.

We note that the appellee filed a motion to strike the appellants’ reply brief. Because the appellants’ reply brief did not prejudice the appellee or affect the outcome of the case, the appellee’s motion to strike the reply brief is moot.

Affirmed.

       Pursuant to Amendment 80 of the Arkansas Constitution, which became effective subsequent to the adoption of Ark. Code Ann. § 28-1-104 (1987), we no longer have separate “probate courts” and “circuit courts.” These courts have merged and now carry the designation of “circuit courts.”


author: Per Curiam.

text:
    CITY OF DOVER, Arkansas v. CITY OF RUSSELLVILLE, Arkansas
    02-308
    95 S.W.3d 808
    Supreme Court of Arkansas
    Opinion delivered January 23, 2003

      Michael Robbins, for appellant.

      Dunham & Paught, P.A., by: James Dunham, for appellee.
   Per Curiam.

Appellant, City of Dover appeals the decision of the Circuit Court of Pope County granting a motion to dismiss. The trial court found that the City of Dover lacked standing to challenge the City of Russellville’s annexation ordinance and the vote approving that annexation. Although not raised by appellee City of Russellville, we do not reach the merits of City of Dover’s case because of a failure to comply with our abstract and addendum requirements. See Ark. Sup. Ct. R. 4-1 and 4-2. We may raise issues of deficiencies on our own motion. Ark. Sup. Ct. R. 4-2(b)(2). We note that the Addendum contains only a copy of the order appealed from. It does not include photocopies of the complaint, the motion to dismiss, or the notice of appeal. Furthermore, the hearing on the motion that is the subject of this appeal has not been abstracted.

It is a practical impossibility for seven justices to examine a single transcript filed with this court, and we will not do so. Cleveland v. Estate of Stark, 324 Ark. 461, 923 S.W.2d 857 (1996). In the absence of this vital information being properly abstracted, according to the rules of this court, it is impossible for this court to make an informed decision on the merits of this case. Because City of Dover’s brief fails to include an abstract of the hearing on the motion to dismiss and photocopies of pleadings that are essential to an understanding of the case and the court’s jurisdiction on appeal, we find it to be deficient such that we cannot reach the merits of the case. Therefore, appellant City of Dover has fifteen days from the date of this opinion to file a substituted abstract and addendum to conform to Rule 4-2(a)(5) and (7). See In re: Modification of the Abstracting System, 345 Ark. 626 (2001) (per curiam); Ark. Sup. Ct. R. 4-2(b)(3). Mere modifications of the original brief will not be accepted. Id. According to Rule 4-2(b)(3), if appellant City of Dover fails to file a complying abstract and addendum within the prescribed time, the judgment or decree may be affirmed for noncompliance with the Rule.


text:
    FORD MOTOR COMPANY and North Point Ford, Inc. v. Milton HARPER, et al.

    01-1286
    95 S.W.3d 810
    Supreme Court of Arkansas
    Opinion delivered January 23, 2003
    Substituted Opinion delivered January 27, 2003

      Wright, Lindsey & Jennings, by: Troy A. Price, for appellants.

      David A. Hodges, for appellees.
   Per Curiam.

This appeal arises from the trial court’s July 27, 2001 pretrial discovery hearing order. Appellants, Ford Motor Company and North Point Ford, Inc., argue in their interlocutory appeal that we should reverse the trial court’s finding at a pretrial discovery hearing that certain documents were not protected by the attorney-client privilege and the work-product doctrine. Appellees, Reverend Milton Harper, Janice Harper, Upper Room Apostolic Church and Leon Dulemer, respond primarily to the main issue of privilege. We hold that this jurisdictional issue is an important one that we should address, and, therefore, we order the parties to rebrief that issue for our consideration.

Appellees in this product liability action submitted discovery requests to appellant seeking information relating to incidents of fires in Ford Motor Company Vehicles. Appellant produced the pertinent documents it considered to be nonprivileged and a privilege log of documents that were responsive to appellants’ discovery requests but protected by the attorney-client privilege or the work-product doctrine. Appellant submitted the actual privileged documents to the trial court for an in camera review. On July 27, 2001, the trial court issued a pretrial order that declared that some of the documents were protected by neither attorney-client privilege nor work-product doctrine and ordered that those documents be disclosed to appehee. On August 27, 2001, appellants filed a notice of appeal from the trial court’s July 27, 2001 order. Appellees filed a motion to dismiss the appeal and cited Rule 2(a) of the Rules of Appellate Procedure — Civil, arguing that Rule 2(a) prohibits appeals of judgments that are not final. Without requiring briefs on this issue, and without issuing an opinion addressing the jurisdictional question concerning the applicability of Rule 2(a), we denied the motion to dismiss.

On July 15, 2002, appellants filed a motion to supplement the record requesting that we allow the documents at issue to remain under seal. We granted that motion in a per curiam order entered September 12, 2002, that stated that the documents under seal appeared be pertinent to Ford’s appeal and directed that the sealed documents be filed with the clerk of this court. See Ford v. Harper, 350 Ark. 45, 84 S.W.3d 441 (2002) (per curiam).

A threshold issue in this case is whether this court has jurisdiction over this interlocutory appeal of a pretrial discovery issue. Whether a judgment, decree, or order is final is a jurisdictional issue that this court has a duty to raise, even if the parties do not, in order to avoid piecemeal litigation. Ark. Rules App. P. — Civ., Rule 2. We believe that the issue of whether this court has jurisdiction over this interlocutory appeal, in light of Rule 1-2(a)(5) of our rules and Rule 2(a) of the Arkansas Rules of Appellate Procedure — Civil, is an important issue that needs further development for us to fully consider the issue. The parties are ordered to rebrief the issue of whether we should exercise jurisdiction over this interlocutory appeal. Appellants’ brief will be due twenty days from this date, and appellees’ brief shall be filed within ten days from the date appellants’ brief is filed.

Pursuant to our rule, this case will remain under submission until the briefing directed by this order has been accomplished.

Corbin, J., dissents..


text:
    Richard L. HAMILTON v. Teddy D. JONES
    02-749
    95 S.W.3d 809
    Supreme Court of Arkansas
    Opinion delivered January 23, 2003
    S. Butler Bernard, Jr., for appellant.
    No response.
   Per Curiam.

Court reporter Iris Brooks failed to timely complete the transcript in the above-captioned case. Ms. Brooks was ordered to show cause why she should not be held in contempt of court for failing to comply with our order granting writ of certiorari to complete the record. See Hamilton v. Jones, 351 Ark. 382, 93 S.W.3d 694 (2002). The final deadline to return the writ was December 8, 2002. On December 6, attorney for the plaintiff S. Butler Bernard, Jr., spoke with Ms. Brooks about procuring the record for filing, at which time she explained it would not be ready until the following week. Mr. Bernard subsequently filed a motion for extension of time in which to return the writ. On January 9, 2003 the record was tendered to our clerk. At the show-cause hearing on January 16, 2003, Ms. Brooks pleaded guilty and offered mitigating circumstances to account for the delay. Ms. Brooks explained that she worked very long days that sometimes begin at 4:30 in the morning and extend until 11:00 at night. She candidly stated to the court that she was ill and too tired to continue working and had to stop. She also stated that she has two disabled children for whom she provides care.

We accept Ms. Brooks guilty plea to the charge of contempt of court, and in light of the mitigating circumstances of this case, we impose a reduced fine of $100.00 and refer the matter to the Board of Certified Court Reporter Examiners.


text:
    Melton SMITH v. STATE of Arkansas
    CR 02-1108
    97 S.W.3d 385
    Supreme Court of Arkansas
    Opinion delivered January 23, 2003

      Dennis R. Morlock, for appellant.
    No response.
   Per Curiam.

Petitioner, Melton Smith, by his attorney, Dennis R. Molock, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to a mistake on his part.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981); In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

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


author: Per the Curiam.

text:
    Johnny WARREN v. STATE of Arkansas
    CR 03-21
    97 S.W.3d 386
    Supreme Court of Arkansas
    Opinion delivered January 23, 2003

      Gina H. Reynolds, for appellant.
    No response.
   Per the Curiam.

On July 1, 2002, following a bench trial in the Circuit Court of Pulaski County, Johnny Warren was found guilty of misdemeanor driving while intoxicated, driving with a suspended license, refusal to submit to a blood analysis, and failure to wear a seatbelt. A fine of $500 was imposed. Warren was represented at his bench trial by his appointed attorney, Gina Reynolds. The judgment and disposition order in this case was entered on July 15, 2002. On July 30, 2002, Warren filed a pro se “Motion for Post-Trial Relief,” asking the court to reverse the conviction. The motion was deemed denied on August 29, 2002. An order denying the motion on the ground that the judgment was on appeal was not entered until November 7, 2002. On August 28, 2002, Warren had timely filed a notice of appeal.

The record was tendered to the clerk of this court on December 11, 2002. Because the record was not received within 90 days of the effective date of the notice of appeal, Ms. Reynolds was advised that a motion for rule on the clerk would be necessary. Ms. Reynolds was still Warren’s attorney of record because there was no order in the record relieving her as counsel before the notice of appeal was filed. See Ark. R. App. P. — Crim. 16.

Instead of filing a motion for rule on the clerk, Ms. Reynolds filed the instant “Response to Request for Rule on the Clerk.” She states that Warren no longer wanted her as his attorney, and that she was not made aware by Warren or the circuit court clerk that a timely notice of appeal had been filed. She also notes that Warren picked up the record and was informed by the deputy circuit clerk that the record was due to be filed in the appellate court that same day, December 2, 2002, but he did not tender the record until nine days later. Reynolds declines to accept responsibility for the late tender of the record in these circumstances and asks to be relieved of further responsibility in the matter. She asks in the alternative that, if this Court should be unwilling to accept her declining of responsibility for the late tender, the matter be remanded for a fact-finding hearing.

This court dealt with a similar situation in the case of Bealer v. State, 314 Ark. 352, 862 S.W.2d 259 (1993). In Bealer, the petitioner’s attorney was unaware that his client had filed the appeal pro se without informing his attorney of his intentions. The trial court ruled that the petitioner waived his right to appeal by not directly informing his attorney within thirty days of the end of his trial. Id. This court reversed, holding that the filing of a timely notice of appeal pro se is proof of the defendant’s desire to appeal. Id. The court also held that an attorney who has not been relieved as counsel by the trial court must be held responsible for being aware of filings in the case in which he or she has remained the attorney of record. Id.

Bealer is controlling in this case, and Ms. Reynolds is responsible for being aware of the filing of the notice of appeal. Ms. Reynolds must file within thirty days from the date of this per curiam a motion and affidavit, accepting fault for an untimely filing of the record. Upon filing same, the motion for rule on the clerk to accept the record will be granted, and a copy of the opinion will be forwarded to the Committee on Professional Conduct.

Simultaneously with her “Response to Request for Motion for Rule on the Clerk,” Ms. Reynolds also filed a “Motion to be Relieved as Counsel,” arguing that Warren will not be prejudiced by proceeding pro se because he is already defacto proceeding pro se. According to Rule 16 of the Arkansas Rules of Appellate Procedure-Criminal, after the notice of appeal is filed with this court, we shall have exclusive jurisdiction to relieve counsel in the interest of justice or for other sufficient cause. Ms. Reynolds has not met these conditions and her motion is denied.

       A notice of appeal filed before disposition of any post-trial motions shall be treated as filed on the day after the entry of an order disposing of the last motion outstanding or the day after the motion is deemed denied by operation of law. Ark. R. App. P.- — Crim. 2(b)(2).