author: Robert L. Brown, Justice.

text:
    Ricky Keith BOCKSNICK v. CITY OF LONDON
    CR 91-284
    825 S.W.2d 267
    Supreme Court of Arkansas
    Opinion delivered March 9, 1992

      Robert E. Irwin, for appellant.

      Winston Bryant, Att’y Gen., by: Teena L. White, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

The appellant, Ricky Keith Bocksnick, was arrested and charged with driving while intoxicated and running a stop sign in London, Arkansas. The charges were heard by the London municipal judge, and the appellant was found guilty and fined and his drivers license was suspended for ninety days. Docket entry of the judgment was made by the municipal judge on September 10, 1990. The municipal court clerk confirmed the decision to the appellant’s counsel by letter dated September 12, 1990. No presentence report was prepared on the appellant prior to entry of the sentence by the municipal judge.

The following year, on February 15, 1991 the appellant moved the municipal judge for a presentence report and for entry of judgment after preparation of the report. The municipal judge denied the motion by order dated February 21, 1991. Four days later, on February 25, 1991, the appellant appealed to circuit court. A hearing was held, and the circuit court entered an order on July 24, 1991, denying the appeal as not being timely filed.

The appellant raises two issues on appeal: 1) the municipal judge should have ordered a presentence report prefatory to sentencing, and b) the circuit court erred in ruling that the appeal was not timely filed. We affirm the circuit court’s order due to lack of timeliness.

The Omnibus DWI Act does require a presentence report before sentencing, though this is discretionary with the court when a jury does the sentencing:

(a) Upon finding of guilt or a plea of guilty or nolo contendere for violating § 5-65-103, the court shall immediately request and the Arkansas Highway Safety Program or its designee shall provide a presentence screening and assessment report of the defendant. However, in cases where the jury fixes and agrees on punishment pursuant to § 5-4-103(a), the decision whether to request a presentence screening and assessment report is discretionary with the court.
(b) The presentence report shall be provided within the thirty (30) days of the request, and the court shall not pronounce sentence until receipt of the presentence report.
* * *

Ark. Code Ann. § 5-65-109(a) & (b) (Supp. 1991).

Here, no presentence report was prepared, and the municipal judge — not a jury — fixed sentence. Under the statute, the municipal judge erred in pronouncing the sentence without the benefit of a report. The question then becomes whether the appellant prosecuted his appeal in timely fashion. We hold that he did not.

Rule 9(a) of the Inferior Court Rules mandates an appeal within thirty days of judgment in civil cases: “All appeals in civil cases from inferior courts to circuit court must be filed in the office of the clerk of the particular circuit court having jurisdiction of the appeal within thirty (30) days from the date of the entry of the judgment.” Inferior Ct. R. 9(a). In past criminal appeals, we have looked to Rule 9 as the appropriate procedure to govern those appeals. See Edwards v. City of Conway, 300 Ark. 135, 777 S.W.2d 583 (1989) (appeal from conviction for hunting within a closed zone); McBride v. State, 297 Ark. 410, 762 S.W.2d 785 (1989) (DWI appeal). In the Edwards case, we specifically referred to the language in Rule 9(a) regarding “appeals in civil cases” and applied the rule to the criminal appeal. We further held in Edwards that the thirty-day requirement for filing was mandatory and jurisdictional and that the circuit court had no authority to accept untimely appeals.

We are mindful that part of the statutory code for inferior court appeals places the responsibility for filing the transcript for such appeals on the inferior court itself. See Ark. Code Ann. § 16-96-505 (1987). That statute, however, has clearly been superseded by Rule 9(a) of the Inferior Court Rules, and we so hold. Supersession Rule, Arkansas Court Rules p. 631 (1991).

We further take note of Rule 36.23 of the Rules of Criminal Procedure, which reads:

Matters pertaining to several appeals, the docketing, designation, abbreviation, stipulation, preparation, and correction or modification of the record on appeal, as well as appeals where no stenographic record was made, shall be governed by those statutes presently in force which apply to civil cases on appeal to the Supreme Court.

Rule 36.23 contemplates the application of statutes governing civil appeals, but the same reasoning applies to the application of Rule 9(a) of the Inferior Court rules to criminal appeals. We interpret Rule 36.23 also to embrace Rule 9 of the Inferior Court Rules.

In sum, Inferior Court Rule 9(a) applies to this case, and it together with Edwards v. City of Conway, supra, are dispositive of the issue before us. The judgment was entered by the municipal judge by docket entry, though no presentence report had been ordered. The appellant was advised of the municipal judge’s decision by letter to counsel two days later. No appeal was taken within thirty days. In fact, no appeal was filed until five months later. There was no jurisdiction in the circuit court to hear the appeal because it was untimely.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Reginald SMITH v. STATE of Arkansas
    CR 91-216
    826 S.W.2d 256
    Supreme Court of Arkansas
    Opinion delivered March 9, 1992
    [Rehearing denied April 13, 1992.]

      Ralph M. Cloar, Jr., for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

The appellant, Reginald Smith, appeals his conviction for first-degree murder and his life sentence on essentially two grounds. He first argues that the circuit court unduly limited him in presenting his case and further erred in denying his motion for a mistrial. As part of this contention, he asserts that the circuit court was biased toward his defense counsel, and this denied him a fair trial. For his second point, the appellant urges that the circuit court erred in disallowing his conspiracy instruction. Neither argument has merit, and we affirm.

On May 27, 1990, the appellant and the victim, Gordon Little, were involved in an altercation at a shopping center in North Little Rock. The two men cursed each other and exchanged racial slurs. The appellant, Smith, is black; the victim, Little, was white. Little, who was accompanied by a female friend, drove away in his truck and in the process hit the appellant’s truck. The appellant followed and fired a shot and hit Little’s truck. The appellant’s sister, Dolly Smith, trailed the two men in another vehicle. The appellant eventually caught up with Little at a stop light and pulled in front of Little’s truck. He then shot Little six times through the windshield of his truck. He contended that Little, who was driving a pickup truck and pulling a gooseneck horse trailer, pinned him in between Little’s truck and the appellant’s truck when the appellant got out to discuss the traffic accident. Little died from those shots. Dolly Smith arrived at the scene, and she took the appellant’s pistol and disposed of it behind a bush.

The appellant and Dolly Smith were subsequently arrested. The appellant was charged with capital murder, and Dolly Smith was charged with hindering arrest. The two defendants were tried jointly on May 29 and 30, 1991, and the appellant argued justification as a defense. Dolly Smith was acquitted, and the appellant was convicted of the lesser offense of first degree murder.

The appellant’s initial point centers on a perceived curtailment of his case by the circuit court and overt bias toward his defense counsel, which the appellant asserts, under the totality of the circumstances, denied him a fair trial. The appellant supports this allegation with fifteen illustrations:

1. Ata pretrial hearing, the circuit court called the appellant’s motions “ridiculous” and “bureaucratic nonsense.”
2. At the same pretrial hearing, the appellant’s defense counsel stated that he felt that his method of practice had been maligned. The circuit court answered that it had not done this, although it could have.
3. In chambers before selection of the jury, the circuit court, in, commenting on pretrial publicity, stated that “everybody, including the jury out there, knows that anything you read in the press is probably wrong.”
4. Dolly Smith’s attorney commented on the victim and the state’s witness who had been a passenger in the victim’s car that he found it incredible that one involved in a six-year adulterous relationship had never told a lie to cover it up. The circuit court answered that it was not impressed with what the attorney found to be incredible. This statement was made before the trial began.
5. During cross-examination of a state’s witness, Dolly Smith’s attorney remarked that he was simply trying to get a straightforward answer. The circuit court commented, “You got one and it wasn’t what you wanted. So let’s go on.”
6. The circuit court interrupted Dolly Smith’s attorney and corrected him concerning the number of rounds that the appellant’s pistol held. The attorney then agreed with the court’s correction.
7. A conference was held among the circuit court, defense counsel, and the prosecutor at sidebar concerning the introduction into evidence of a photograph of the interior of the appellant’s car and the gun clips. The appellant’s counsel objected, and though the circuit court stated it would admit the photograph later after an appropriate foundation was laid, the photograph was never received into evidence. The gun clips were admitted later but only Dolly Smith’s attorney objected.
8. At trial, the prosecutor questioned whether a defense witness was telling the truth after she had sworn to do so on the Bible. The prosecutor said that sometimes the oath was “not sufficient.” The appellant’s counsel asked the court to tell the prosecutor to “behave,” and the circuit court replied by telling the prosecutor to “go ahead.” No further request for relief was made by the appellant’s counsel.
9. The attorney for Dolly Smith objected to the prosecutor’s repetitive questioning of a defense witness about whether testimony from other witnesses was correct. The circuit court ruled that he would let it in for credibility purposes and added, “We’ll remember what previous testimony has been, if there has been such.” The court also said that he was trying to keep the rules the same for both sides.
10. The attorney for Dolly Smith asked the court to hold the prosecutor to the same rules as the defense. The circuit court responded, “Mr. Craig, that’s the reason we make a record. I am to the best of my ability. And, if it’s not satisfactory, we can get it corrected.”
11. Dolly Smith’s attorney stated that he was tired of the manner in which the prosecutor was asking questions which presupposed that the appellant intentionally shot at the victim. The circuit court responded that it was not interested in whether Dolly Smith’s attorney was tired or not but only “in the rules of evidence.” The court added, “And, Mr. Craig, when I rule in your favor, it is not necessary that you thank the Court, nor is it necessary that you try to intimidate me when I rule against you. I’m just following the rules.”
12. Dolly Smith’s attorney attempted to make a motion outside of the presence of the jury, and the circuit court refused and then said that counsel could make the motion at a later time.
13. Dolly Smith’s attorney asked before he rested that motions be allowed outside of the jury’s presence. The circuit court ruled that it wanted to hear all of the testimony first and then would entertain motions.
14. Dolly Smith’s attorney moved for a mistrial on grounds that the circuit court had acted improperly in receiving evidence and berated him before the jury. The appellant’s attorney joined in that motion. The court responded that the appellant’s counsel as well as counsel for Dolly Smith had tried to intimidate him in this and other cases and criticized both attorneys for improperly injecting race into the trial. The motion and the collateral conversation occurred in chambers.
15. The circuit court refused to give a conspiracy instruction offered by the appellant’s counsel. The refusal and comments by counsel took place outside of the hearing of the jury.

One point bears mention at the outset. All but one of the fifteen incidents enumerated by the appellant’s counsel involved conversations that occurred outside of the jury’s hearing or they were objections raised by counsel for Dolly Smith, not counsel for the appellant. Clearly, matters occurring away from the jurors would not prejudice the appellant in their eyes. See Combs v. State, 270 Ark. 496, 606 S.W.2d 61 (1980). Moreover, the appellant cannot benefit from objections made on behalf of another defendant or personal exchanges between counsel for the other defendant and the court. Unless the appellant’s counsel objects on the appellant’s behalf, the matter is not preserved for him on appeal.

We address two matters which the appellant’s counsel raises. The first relates to the prosecutor’s questioning a defense witness’s veracity, after she had sworn on a Bible. Although the appellant’s counsel requested the court to tell the prosecutor to behave, he did not pursue his objection or ask for an admonition or for any other form of relief. Moreover, there was no prejudice arising from this exchange.

The second matter concerns the appellant’s motion for a mistrial. This motion embraced assertions that the circuit court had acted improperly in receiving evidence before the jury and had chastised the appellant’s counsel in chambers, all of which prejudiced the appellant. We do not agree. A mistrial is an extreme remedy which should be granted only where an error is so prejudicial that justice cannot be served by a continuation of the trial. See Combs v. State, supra. There were clearly strong feelings and some rancor and irritability exhibited in this case between both defense attorneys and the court. Nonetheless, we have held that reversible error does not occur when the record reveals that the trial court was merely irritated by the defense counsel’s trial tactics. See McDaniel v. State, 283 Ark. 352, 676 S.W.2d 732 (1984). And we do not observe that the circuit court rebuked, ridiculed, or humiliated the appellant’s counsel in front of the jury so as to warrant a reversal. Again, we note that most of the illustrations of prejudice advanced by the appellant involved counsel for Dolly Smith, who was acquitted.

For his final point, the appellant asserts error caused by the circuit court’s failure to give the conspiracy instruction, AMCI 201. The appellant is convinced that a conspiracy instruction would have obviated any notion in the jurors’ minds that the murder had been planned by the two defendants before the confrontation or that they were acting in concert so that evidence against one defendant could be considered against the other.

There must be some evidentiary basis for a jury instruction, however, and here there was no evidence presented that a conspiracy to kill Little occurred before the argument between the appellant and Little or that this murder had been planned in any respect. The court did instruct the jury that “you shall consider the evidence for or against each defendant separately and render your verdicts as if each were being tried separately.” The court further admonished the jurors immediately before they began their deliberations to consider the two defendants separately and independently. That was enough. We have held that the circuit court is not required to give multiple instructions stating the law in various ways. See Marx v. State, 291 Ark. 325, 724 S.W.2d 456 (1987). Under these circumstances, the circuit court was correct in refusing the instruction.

An examination of the record has been made in accordance with Ark. Sup. Ct. R. 11 (f), and it has been determined that there were no rulings adverse to the appellant which constituted prejudicial error.

Affirmed.


author: Per Curiam.

text:
    Roy C. GREEN v. Vikita BELL
    91-280
    826 S.W.2d 230
    Supreme Court of Arkansas
    Opinion delivered March 9, 1992

      Randell Templeton, for appellant.

      John Walker, for appellee.
   Per Curiam.

The appellee, Vikita Bell, moves for attorney’s feesof$5,352in connection with her defense on appeal relating to a paternity action against the appellant, back child support, and prospective child support. We deny the motion.

We have awarded attorney’s fees on appeal in the past but only when there was a statutory basis for doing so. We awarded attorney’s fees in Lockley v. Easley, 302 Ark. 13, 786 S.W.2d 573 (1990) and premised the award on Ark. Code Ann. § 16-22-308 (Supp. 1991), which provides for payment in civil actions to recover for breach of contract. The Arkansas Court of Appeals awarded fees using the same statutory basis in ERC Mortgage Group, Inc. v. Luper, 33 Ark. App. 9, 799 S.W.2d 1571 (1990). In making the award in Luper, the court of appeals relied on two of our previous decisions where attorney’s fees had been awarded pursuant to statutory authority. See Fitzgerald v. Investors Preferred Life Ins. Co., 258 Ark. 966, 530 S.W.2d 195 (1975); Rauch v. First National Bank, 244 Ark. 941, 428 S.W.2d 89 (1968).

We have also awarded attorney’s fees for successful appeals in divorce cases relating to enforcement of alimony, maintenance, and support pursuant to Ark. Code Ann. § 9-12-309 (1987). See, e.g., Olaimey v. Turk, 33 Ark. App. 28, 799 S.W.2d 572 (1990).

The case before us is a paternity case, and we find no statutory authority for awarding attorney’s fees in these cases. The motion is, therefore, denied.


text:
    IN RE: Reinstatement of Royce L. LEWIS to the Bar of Arkansas
    91-113
    826 S.W.2d 264
    Supreme Court of Arkansas
    Opinion delivered March 9, 1992

      William L. Wharton; and Herrod, McGough & Herrod, by: Phillip A. McGough, for petitioner.

      Basil V. Hicks, Jr., for respondent State Board of Law Examiners.
   Per Curiam.

Royce Leroy Lewis was admitted to the Bar of Arkansas in 1984. He did not pay his Supreme Court license fee for the years 1986, 1987, 1988, 1989, 1990, and 1991. See Rule 12 of the Rules of Professional Conduct. Failure to timely pay the annual license fee automatically suspends the delinquent member of the Bar. Rule 14 of the Rules of Professional Conduct. When the delinquency is for no more than three years, reinstatement to the Bar may be had by the payment of delinquent dues and penalty. Rule 14(A). However, after three years, all applications for reinstatement are referred to the State Board of Law Examiners for investigation and recommendation to this court. In addition, in appropriate circumstances the applicant may be required to again take the bar examination.

After the applicant had failed to pay his license fee for six years, he applied for reinstatement. The State Board of Law Examiners investigated the matter, filed its report, and made its recommendation to this court. See Rule XIII of the Rules Governing Admission to the Bar. The Board, by a vote of 6 to 4 with one abstention, recommended that the applicant be reinstated. We have examined the record, have considered the split-vote recommendation, and have concluded that the applicant should not be reinstated.

A member of the Bar is charged with the knowledge that failure to pay the Supreme Court license fee will result in his suspension. In addition, two judges, the Honorables Joyce Warren and Annabelle Clinton Imber, informed the applicant that his license was suspended and he could not practice law. Their actions were eminently correct. Rule 14(A) Rules of Professional conduct. Judge Warren twice informed the petitioner, the second time being on July 23,1990, that he could not practice in her court until he obtained a statement from the Clerk of the Supreme Court that he had been reinstated. On the first occasion he stated that he was surprised, and the second time he stated that he would take care of it. On February 12, 1991, Judge Imber wrote to the applicant and, in part, stated:

With reference to the captioned cases, you have appeared as attorney of record for one of the parties in each of these cases. The court has received information from Leslie W. Steen, Office of the Clerk, Supreme Court of Arkansas, that you are no longer licensed to practice law in Arkansas.

On November 6,1990, in Pulaski County Chancery Court case of Pat Lewis v. Asa A. Lewis, the applicant asked for attorney’s fees and costs in the amount of $5,000.00 and certified, “That I am a practicing attorney licensed to practice in the State of Arkansas.” It is undisputed that the applicant practiced law, at the least on a limited basis, during the period of his suspension. In his application for reinstatement the applicant stated under oath that he “terminated practice in 1987. . . .”

In summary, the applicant was suspended from the Bar but continued to practice law. Then, in seeking reinstatement, he stated under oath that he “terminated practice in 1987. . . .’’In the hearing of this matter before the Board of Law Examiners, the applicant’s attorneys admitted that he had violated the rules but contended, in mitigation, that he was under “extreme emotional and financial pressures.” We are not persuaded by the argument, and in addition, such argument does not explain the false swearing. The petition for reinstatement will be denied.


text:
    Randy WINKLE v. STATE of Arkansas
    CR 92-225
    823 S.W.2d 912
    Supreme Court of Arkansas
    Opinion delivered March 9, 1992

      Bill Murphy, for appellant.

      No response.
   Per Curiam.

On February 18, 1992, the petitioner, Randy Winkle, tendered an untimely transcript and now brings this motion for a rule on the clerk. Winkle’s attorney, Mr. Bill Murphy, admits in the motion that the untimely filing of Winkle’s transcript was due to his miscalculation of the time by which to file the transcript.

Where counsel assumes responsibility for the error in filing, in a criminal case, a motion for a rule on the clerk is granted routinely. See Shuffield v. State, 292 Ark. 185, 729 S.W.2d 11 (1987). A copy of this opinion will be forwarded to the Committee on Professional Conduct.

Motion granted.


author: Jack Holt, Jr., Chief Justice. Robert L. Brown, Justice,

text:
    Corey Lamont BLEVINS v. STATE of Arkansas
    91-298
    826 S.W.2d 265
    Supreme Court of Arkansas
    Opinion delivered March 16, 1992

      Daniel D. Becker, for appellant.

      Winston Bryant, Att’y Gen., by: Teena L. White, Asst. Att’y Gen., for.appellee.
   Jack Holt, Jr., Chief Justice.

This case is another in a series involving transfer of cases between circuit and juvenile court under provisions of our new Juvenile Code. Here, the issue is whether the trial coürt’s finding by clear and convincing evidence that the appellant, Corey Blevins, should be tried as an adult under Ark. Code Ann. § 9-27-318 (Supp. 1991) was clearly erroneous and against the preponderance of the evidence. We find that it was and reverse the judgment of the trial court.

On August 19, 1991, Detective McCoy of the Hot Springs Police Department was on his routine patrol when he observed Blevins and another male sitting on a wall by an apartment complex where each had a quart of beer at his feet. Detective McCoy confirmed that Blevins was sixteen years old, whereupon Blevins started backing away and stated, “Don’t come near me.”

Detective McCoy observed that Blevins was acting as if he had something in his pocket and requested that Blevins turn out his pockets. Blevins pulled his right hand out of his pocket and threw a small package on the ground. Detective'McCoy retrieved the package, which contained what appeared to be fifteen rocks of crack cocaine.

Blevins was placed in custody and charged with possession of a controlled substance with intent to deliver. An information was filed against Blevins in Garland County Circuit Court on August 20,1991. Blevins subsequently filed a motion to transfer the case to Juvenile Court, and a hearing was conducted in accordance with section 9-27-318. The trial court denied Blevins’s motion to transfer, which ruling Blevins argues on appeal was clearly erroneous and against the preponderance of the evidence.

Section 9-27-318 addresses waiver and transfer to circuit court and provides in pertinent part as follows:

* * * *
(c) When a case involves a juvenile age sixteen (16) years or above at the time the alleged delinquent act occurred and the alleged act would constitute a felony if committed by an adult, the prosecuting attorney has the discretion to file a petition in juvenile court alleging delinquency or to file charges in circuit court and . to prosecute as an adult.
(d) Upon the motion of the court or of any party, the judge of the court in which a delinquency petition or criminal charges have been filed shall conduct a hearing to determine whether to retain jurisdiction or to transfer the case to another court having jurisdiction.
(e) In making the decision to retain jurisdiction or to transfer the case, the court shall consider the following factors:-
(1) The seriousness of the offense, and whether violence was employed by the juvenile in the commission of the offense;
(2) Whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that the juvenile is beyond rehabilitation under existing rehabilitation programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts; and
(3) The prior history, character traits, mental maturity, and any other factor which reflects upon the juvenile’s prospects for rehabilitation.
(f) Upon a finding by clear and convincing evidence that a juvenile should be tried as an adult, the court shall enter an order to that effect.

In Walker v. State, 304 Ark. 393, 803 S.W.2d 502, reh’g denied, 304 Ark. 402-A, 805 S.W.2d 80 (1991), a case where we affirmed the trial court’s denial of a criminal defendant’s request to transfer to juvenile court based on an information charging the defendant with murder in the first degree by use of a firearm, we examined section 9-27-318 in light of our prior statutes and case law, concluding that 1) a moving party has the burden of going forward with proof to show that he meets the criteria of the statute to warrant transfer, 2) the trial court need not give equal weight to each factor in juvenile transfer cases, and 3) proof need not be introduced by the prosecutor against the juvenile on each factor. In addition, we held that a criminal information may provide a sufficient basis for a trail court’s decision noting, however, that “[t]his does not mean that the mere filing of an information will qualify as sufficient evidence in every instance. Allegations in the information will vary based on the offense charged as will the positive factors presented at hearing in support of the transfer.”

In Walker, we observed on more than one occasion that the trial court found that the seriousness of the crime and the violence attached to it as set out in the criminal information outweighed the other relevant factors in making its decision to retain jurisdiction. Unlike Walker, the facts of this case are underpinned with the claim of seriousness alone; Blevins presented testimony, at the hearing on his motion, that he was sixteen years old at the time of the incident, he had no prior record, he regularly attended high school, his grades were C’s and D’s, and he had previously participated in the high school’s athletic program. Blevin’s mother also testified that her son lived at home and that she had had no discipline problems with him.

The trial court found there was countervailing evidence that was clear and convincing to deny Blevin’s motion to transfer and reasoned that “ [t] his is not only a serious offense, it’s a very serious offense. . . . I’m going to consider the affidavit. Let’s just assume it was fifteen rocks of cocaine and I’ll take the affidavit for its face value then. So, again that, to me, is a weighted factor against transfer.” Other than the information against Blevins, the trial court was not presented with any opposing evidence relating to the other factors to be considered in accordance with section 9-27-318.

In Walker v. State, supra, we reaffirmed our holding in Evans v. State, 287 Ark. 136, 697 S.W.2d 879 (1985), that, although preferable, there was no statutory duty for the trial court to make findings of fact supporting its decision or to cite a specific rationale for refusing the transfer. Here, however, it would have been most helpful to our analysis for the trial court to have enunciated its rationale; consequently, we can only deduce from the record that the trial court apparently found that the seriousness of the crime outweighed the other factors that were proven by Blevins at his hearing, such as the non-employment of violence in the commission of the alleged offense, the lack of a repetitive pattern of adjudicated offenses, and his positive character traits.

We do not agree and, in light of the facts of this case, find the trial court’s decision that Blevins should be tried as an adult to be clearly erroneous and against the preponderance of the evidence. To hold otherwise would be to allow the trial court to simply categorize all felonies as serious, which they are, and utilize this reason alone to retain jurisdiction rather than transfer the case based on consideration of all of the statutory factors.

Reversed.

Brown, J., dissents.

Robert L. Brown, Justice,

dissenting. This case involves the arrest of a sixteen-year-old youth, who had fifteen rocks of what appeared to be crack cocaine in his possession. The trial judge found that the appellant was engaged in a “very serious offense” which he considered to be a “very weighted factor against transfer.” The majority now reverses that decision, apparently on the basis that the seriousness of the offense, standing alone, is not sufficient to warrant trying a youth as an adult. I disagree.

The Juvenile Transfer Act provides that the trial judge only consider certain factors and then make a decision:

(e) In making the decision to retain jurisdiction or to transfer the case, the court shall consider the following factors:
(1) The seriousness of the offense, and whether violence was employed by the juvenile in the commission of the offense;
(2) Whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that the juvenile is beyond rehabilitation under existing rehabilitation programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts; and
(3) The prior history, character traits, mental maturity, and any other factor which reflects upon the juvenile’s prospects for rehabilitation.
(4) Upon a finding by clear and convincing evidence that a juvenile should be tried as an adult, the court shall enter an order to that effect.

Ark. Code Ann. § 9-27-318 (Supp. 1991). (Emphasis added.)

In past decisions, we have not divested the trial judge of the decision-making function simply because the judge emphasized one factor over the other factors listed in the statute. On the contrary, we have held that the judge need not give equal weight to each factor and that proof of each factor was not required. Smith v. State, 307 Ark. 223, 818 S.W.2d 945 (1991); Pennington v. State, 305 Ark. 312, 807 S.W.2d 660 (1991); Walker v. State, 304 Ark. 393, 803 S.W.2d 502 (1991); reh. denied, 304 Ark. 402A, 805 S.W.2d 80 (1991). By its decision today, the majority alters this precedent and diminishes a trial judge’s authority to retain jurisdiction due to the seriousness of the offense.

The majority states that part of its reasoning for reversal is that violence was not employed in the crime charged. Violence is only one of the factors to be considered, and it is safe to assume that the violence contemplated in Ark. Code Ann. § 9-27-318(e) (1) (Supp. 1991) is violence against a person. Nowhere is it stated in the statute that a serious crime must entail an act of violence for the trial judge to retain jurisdiction. In fact, the statute clearly enumerates “seriousness” and “violence” as separate factors to be considered.

We have not required that violence be an absolute condition for denial of juvenile transfers denied in previous cases. See, e.g., Bright v. State, 307 Ark. 250, 819 S.W.2d 7 (1991) burglary and felony theft of property. In Bright, we said, “The crimes charged in this case, burglary and felony theft of property, are not in the most serious category of crimes and did not involve violence against a person, although they did involve violence against property.” 307 Ark. 251, 819 S. W.2d at 8. We further considered a case without violence where the crime involved was criminal mischief in the first degree and the damage to property was the knocking over of approximately 30 tombstones. See Pennington v. State, 305 Ark. 312, 807 S.W.2d 660 (1991). We reversed for reasons other than the absence of violent behavior.

For the first time, the majority questions a trial judge’s denial of transfer because of the seriousness of the crime. This decision changes the juvenile transfer language considerably. Henceforth, trial judges may not retain jurisdiction unless violence is involved, even though the judge may well have considered all statutory factors and found that the high degree of seriousness — here, significant drug dealing — controlled the decision. Such an interpretation goes well beyond the statutory terms in § 9-27-318(e).

In my opinion, juvenile transfer matters are best left to the trial judges to determine in light of the statutory criteria, and we should only reverse when the findings are clearly erroneous. There is nothing in the record to suggest that the trial judge did not consider all of the statutory factors in this case. The only testimony offsetting the seriousness factor came from the appellant himself and his mother, where the obvious lack of objectivity warrants no further comment.

The majority states that there is a danger that the trial judges will simply look to seriousness, disregard the other factors, and retain jurisdiction. That did not occur in this case and this particular fear, in my judgment, is ill-founded. By holding as the majority does, it has substituted its preference for one statutory factor — violence — over the others. This is contrary to what the statute requires. The trial judges are in an eminently better position to weigh the statutory factors and make an accurate determination than the appellate courts. I would affirm.

       The appellant now Is seventeen and the juvenile court typically has jurisdiction of a juvenile until age eighteen. Ark. Code Ann. § 9-27-303(1) (1987).


author: Steele Hays, Justice.

text:
    Douglas Bernard WILLIAMS v. STATE of Arkansas
    CR 91-269
    825 S.W.2d 826
    Supreme Court of Arkansas
    Opinion delivered March 16, 1992

      Edward T. Oglesby, for appellant.

      Winston Bryant, Att’y Gen., by: Cathy Derden, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Douglas Bernard Williams appeals from a judgment of conviction of robbery. As an habitual offender he received a sentence of forty years in the Department of Correction. The only point of error is that the trial court should have granted a motion for a directed verdict at the close of the state’s case because the victim, Hampton Jones, did not specifically identify the appellant as the man who robbed him. Finding no merit in the argument, we affirm the judgment.

Hampton Jones testified that he and the defendant were shooting craps in the back of the Dixie Dog restaurant in Camden. Jones said he had won all of the money and was sitting down when the defendant struck him three times in the face and took the money, estimated to be $300. Jones called the police. They arrived moments later, entering the restaurant as Williams was leaving. One of the officers knew Williams and spoke to him as they passed.

Jones pointed Williams out as the man who had robbed him as Williams entered the Chat and Chew, next to the Dixie Dog. The officers followed and Williams left the Chat and Chew by the back door and began to run when the officers ordered him to halt. Williams was caught and had $149 in a wad of bills.

Citing only Hamm v. State, 296 Ark. 385, 757 S.W.2d 932 (1988), appellant argues a directed verdict should have been ordered because he was never specifically identified by the victim. But identification was not an issue in Hamm. The opinion simply notes, in rejecting an argument of harmless error, that proof of guilt was not overwhelming because, among other factors, the victim had testified the robber was not in the courtroom. That observation, lifted out of context, has no relevance here, as Hamm drove the getaway car while his accomplice Ray Graves, perpetrated the robbery and Graves was the only person seen by the victim.

Clearly it is essential to every case that the defendant be shown as the one who committed the crime. However that connection can be inferred from all the facts and circumstances of the case. Becker v. State, 298 Ark. 438, 768 S.W.2d 527 (1989); Womack v. State, 301 Ark. 193, 783 S.W.2d 33 (1990). We answered a similar argument in Becker:

Here, there were no co-defendants; the defendant was tried alone. He was specifically identified as “Mr. Becker” and “the defendant” throughout the trial. The witnesses were eyewitnesses to the robbery, and the fact that none of them pointed out that the wrong man had been brought to trial was eloquent and sufficient proof of identity.

Id at 441, 768 S.W.2d at 529.

The appellant alone was on trial. He was repeatedly referred to as “the defendant” or as Bernard Williams or Mr. Williams. The victim was asked at the outset if he had ever seen “this defendant” before, answering “I have.” The victim, who knew the appellant by name, then proceeded to describe the incident at the Dixie Dog, as well as the events that ensued, ending in appellant’s arrest. The victim also testified that sometime after appellant was released from jail, appellant and his mother came to see him to see if he might be willing to drop the charges. In short, the record contains innumerable and unchallenged references to the appellant as the offender so that any doubt as to appellant’s identification is eliminated.

Affirmed.


author: David Newbern, Associate Justice.

text:
    Rodney Dale UTLEY v. STATE of Arkansas
    CR 91-189
    826 S.W.2d 268
    Supreme Court of Arkansas
    Opinion delivered March 16, 1992

      Joseph C. Self, for appellant.

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

The appellant, Rodney Dale Utley, was convicted of aggravated robbery and sentenced to eighty years imprisonment as a habitual offender. He argues the Trial Court erred by not allowing an expert witness to testify about factors affecting the reliability of eyewitness testimony. He raises other issues which we decline to consider as they were presented to the Trial Court only in an untimely motion for a new trial. We find no abuse of discretion in the exclusion of the proffered expert testimony as the testimony would not have assisted the jury and would have invaded the province of the jury.

On November 6,1989, at 9:57 p.m.,aman entered a Subway Sandwich Shop in Fort Smith and asked two employees, Charlene Guinn and Vicki Duncan, if they had ever been robbed. He showed them a pistol and told them to give him the money in the cash register. Guinn testified she became so frightened she could not move. Duncan pushed Guinn toward the register, and Guinn removed money which she gave to Duncan who handed it to the man who then told them to get down on the floor and left.

Both witnesses described the culprit as being 5T0” tall with dark hair, dark eyes, and a mustache. He was wearing a lightweight tan jacket. They said the incident took approximately two minutes. Guinn testified she looked at the man for about sixty seconds. She also stated she was very frightened and focused most of her attention on the gun. Guinn tried not to look at the man’s face because it scared her. Duncan testified she looked at the man’s face for approximately thirty seconds. She also admitted focusing part of her attention on the gun. Both witnesses identified Utley in a photographic line-up and at trial as the man who robbed the store. The women were certain of the accuracy of their identifications.

Utley was arrested in connection with another offense in Louisiana, and the police seized a plastic pellet pistol and a tan jacket from his car. Guinn and Duncan stated the gun seized looked like the gun used in the offense, and the jacket seized looked like the jacket the robber wore.

Utley claimed the two witnesses were mistaken in identifying him, and he presented an alibi defense though the testimony of Angela Morgan and John Hamilton. Morgan was a prostitute living at the Colonial Motel in Fort Smith. She testified Utley was in her motel room on November 6 at 9:36 p.m. when she left to visit a friend. When she returned at 10:41, Utley was still in the room and remained there until friends helped him start his car at 11:30. Records from a cab company corroborated Morgan’s testimony that she left the motel at 9:36 and returned at 10:41. Hamilton lived with Morgan. He stated Utley was in their motel room from approximately 9:30 until 11:30 on November 6th.

Utley proffered the testimony of Dr. Ira Bernstein about factors affecting eyewitness perception, including, (1) the negative correlation between the confidence of an identification and its accuracy; (2) the effect of stress on the accuracy of an identification; (3) the effect presence of a weapon has on the accuracy of an identification, and (4) the effect of a subsequent photographic line-up on the accuracy of an identification. Dr. Bernstein stated he would not specifically testify whether Guinn and Duncan were accurate in identifying Utley.

The Trial Court refused to allow the testimony because (1) Utley was given the opportunity to cross-examine the witnesses and argue to the jury on the areas the expert would testify, (2) the jury would not receive appreciable help from the testimony because most of the matters could be understood by a jury of average intelligence, and (3) the probative value of the testimony was outweighed by the potential for prejudice.

The jury returned a guilty verdict on the aggravated robbery charge. A judgment and a commitment order were entered August 22, 1990, and Utley was advised he had 30 days to move for a new trial pursuant to former Ark. R. Crim. P. 36.4. Utley moved for new trial on October 22, 1990, alleging, among other things, ineffective assistance of counsel. The motion was denied.

a. Expert testimony

Utley contends Dr. Bernstein’s testimony should have been admitted and cites cases from other jurisdictions supporting his argument. See, e.g., State v. Chapple, 135 Ariz. 281, 660 P.2d 1208 (1983); People v. McDonald, 37 Cal. 3d 351, 690 P.2d 709, 208 Cal. Rptr. 236 (1984); State v. Moon, 145 Wash. App. 692, 726 P.2d 1263 (1986).

In evidentiary determinations, a trial court has wide discretion. We do not reverse absent abuse. Hubbard v. State, 306 Ark. 153, 812 S.W.2d 107 (1991). The general test for admissibility of expert testimony is whether the testimony will aid the trier of fact in understanding the evidence or in determining a fact in issue. Ark. R. Evid. 702 (1991); Russell v. State, 289 Ark. 533, 712 S.W.2d 916 (1986). An important consideration in determining whether the testimony will aid the trier of fact is whether the situation is beyond the ability of the trier to understand and draw its own conclusions. Russell v. State, supra.

Both this Court and the Court of Appeals have upheld a trial court’s decision not to allow expert testimony on reliability of eyewitness identifications. In Criglow v. State, 183 Ark. 407, 36 S.W.2d 400 (1931), an expert witness was called to testify about whether two eyewitnesses were mistaken in identifying Criglow. The Trial Court excluded the testimony, and we affirmed holding:

The question whether these witnesses were mistaken in their identification, whether from fright or other cause, was one which the jury, and not an expert witness, should answer. This was a question upon which one man as well as another might form an opinion, and the function of passing upon the credibility and weight of testimony could not be taken from the jury, [citations omitted].

In Caldwell v. State, 267 Ark. 1053, 594 S.W.2d 24 (Ark. App. 1980), the testimony of a qualified expert in the field of human perception was offered to help the jury understand how human perception works and what factors influence it. The Court of Appeals upheld the Trial Court’s decision not to allow the testimony as it would have invaded the province of the jury. The jury was fully capable of assessing the eyewitnesses’ ability to perceive and remember without the assistance of expert testimony.

We cited the Caldwell case with approval in a case involving expert testimony on the effect of a suggestive photographic lineup on eyewitness perception. Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982). We held the introduction of the expert testimony would invade the function of the jury.

The majority of cases in other jurisdictions uphold trial court decisions refusing to allow this type of expert testimony. The most. common reason given is that it does not help the jury and invades their function. See, e.g., United States v. Hudson, 884 F.2d 1016 (7th Cir. 1989); United States v. Langford, 802 F.2d 1170 (9th Cir. 1986); State v. Kemp, 199 Conn. 473, 507 A.2d 1387 (1986); State v. Reed, 226 Kan. 519, 601 P.2d 1125 (1979); State v. Gurley, 565 So. 2d 1055 (La. App. 4th Cir. 1990); State v. Fox, 98 Or. App. 356, 779 P.2d 197 (1989).

We find no abuse of discretion in the Trial Court’s decision that Dr. Bernstein’s testimony was a matter of common understanding and would not assist the trier of fact. For example, the fact that stress might affect the reliability of an identification is easily understood. Utley was given adequate opportunity to cross-examine the eyewitnesses on the reliability of their identifications. In fact, defense counsel asked witnesses whether the weapon diverted their attention from the man’s identity. He also asked several questions regarding the effect of the photographic line-up on the in-court identifications. Expert testimony could have hindered the jury’s ability to judge impartially the credibility of the witnesses and the weight to be accorded their testimony. Smith v. State, 258 Ark. 601, 528 S.W.2d 389 (1975).

b. New trial

Utley raised several issues in a motion for new trial filed two months after judgment was entered. Rule 36.4 provided in pertinent part:

The trial judge must address the defendant personally and advise the defendant that if the defendant wishes to assert that his or her counsel was ineffective a motion for a new trial stating ineffectiveness as a ground must be filed within thirty (30) days from the date of pronouncement of sentence and entry of judgment.

Utley did not file his motion within 30 days and did not comply with Rule 36.4. Nor did he comply with Ark. R. Crim. P. 36.22 which requires a motion for a new trial to be filed prior to the time fixed for filing notice of appeal. The motion was untimely. Chisum v. State, 274 Ark. 332, 625 S.W.2d 448 (1981); Smith v. State, 301 Ark. 374, 784 S.W.2d 595 (1990).

Affirmed.


author: Tom Glaze, Justice.

text:
    Kenneth MORGAN v. STATE of Arkansas
    CR 91-251
    826 S.W.2d 271
    Supreme Court of Arkansas
    Opinion delivered March 16, 1992

      Joe Kelly Hardin, for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant, a sixty-three-year-old man, was convicted of raping twelve-year-old and seven-year-old girls. He received concurrent life sentences for the two rape convictions. On appeal, he argues that the trial court erred in (1) allowing four additional girls to testify under A.R.E. Rule 404 about the appellant’s sexual conduct towards them; and (2) denying the appellant’s motion for mistrial after the appellant exposed himself to a witness and the jury. We find no merit in the appellant’s arguments and therefore affirm his conviction.

At the trial, the two victims appellant was charged with raping and four other young girls testified about the appellant’s sexual conduct towards them. In short, the girls testified that the appellant had them undress, undressed himself, kissed them, touched their breasts, performed oral sex, and penetrated their vaginas with his penis. The girls testified that the appellant gave them money after the sexual encounters. Appellant’s account at the time he was arrested; and during his trial was that he thought of the girls as his grandchildren and had no sexual contact with them, but he did give them money to buy things. Appellant stated that the girls started demanding too much money, and he had to stop. According to the appellant, the girls got mad and told him that they would make up sexual stories involving him. During their visits, appellant claimed that the girls told him they were being sexually penetrated by Mr. Webb. Appellant testified that he could not have had sex with the girls because he had been unable to have an erection for four years, and his theory is that the girls are mad at him because he stopped giving them money and they are protecting Mr. Webb.

During a pretrial hearing, the appellant objected to the testimony of the four girls of appellant’s sexual acts towards them as being irrelevant to the appellant’s charge of raping the two victims. In addition, the appellant stated their testimony would be highly prejudicial. The trial court ruled that the testimony of the four girls was relevant to show a course of conduct, a scheme, a plan, a design and intent. Rule 404(b) of the Arkansas Rules of Evidence provides the following on the admissibility of other crimes, wrongs or acts:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

This court has recognized that testimony is admissible under Rule 404, if it is independently relevant to the main issue — relevant in the sense of tending to prove some material point rather than merely to prove that the defendant is a criminal or a bad person. Young v. State, 296 Ark. 394, 757 S.W.2d 544 (1988). In Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954), we stated that evidence of a prior similar offense in cases where the charge involves unnatural sexual acts shows not that the accused is a criminal but that he had a “depraved sexual instinct.” Following this reasoning, we affirmed the trial court’s ruling that the defendant’s prior conviction for first degree sexual abuse involving a young boy was probative of intent, motive or plan under Rule 404(b) in the defendant’s current trial for sexual abuse of a young girl. George v. State, 306 Ark. 360, 813 S. W.2d 792 (1991); see also Baldridge v. State, 32 Ark. App. 160, 798 S.W.2d 127 (1990).

Likewise, in the present case, we affirm the trial court’s ruling that the girls’ testimony was admissible under Rule 404(b) to show motive, intent, or plan. The evidence was especially probative since the appellant denied having any sexual contact with the victims, blamed another person, and in fact appellant stated that it was physically impossible for him to have sexual intercourse.

Appellant also argues that the girls’ testimony was inadmissible under A.R.E. 403, because its probative value is substantially outweighed by the danger of unfair prejudice. During the pretrial hearing, the appellant stated that the girls’ testimony was highly prejudicial. Assuming that this objection was specific enough to raise the Rule 403 issue, he failed to obtain a ruling by the court on his objection. We have stated numerous times that the burden of obtaining a ruling is on the movant and objections and questions left unresolved are waived and may not be relied upon on appeal. See, e.g., Richardson v. State, 292 Ark. 140, 728 S.W.2d 189 (1987).

In his second point on appeal, the appellant argues that the trial court erred in denying his motion for mistrial when he exposed himself to a witness and the jury. After Dr. Graham’s testimony concerning the physical evidence of sexual abuse present in the seven-year-old girl’s genitalia, the appellant approached the witness, dropped his pants to expose his penis, and stated the following to the witness, “Doctor, could I do anything with that. That thing hasn’t been hard, it hasn’t had an erection in four years.” The trial judge ordered the bailiff to get the appellant under control and immediately instructed the jury to disregard all of what just happened. The court then went into recess for fifteen minutes.

We have recognized that a mistrial is an extreme remedy that should only be granted when justice cannot be served by continuing the trial. Taylor v. State, 303 Ark. 586, 799 S.W.2d 519 (1990). As we recently noted in Terry v. State, 303 Ark. 270, 796 S.W.2d 332 (1990), a defendant cannot be allowed to abort a trial and frustrate the process of justice by his own acts. Further, we have repeatedly held under the invited error rule, that one who is responsible for error cannot be heard to complain of that for which he was responsible. See Berry v. State, 278 Ark. 578, 647 S.W.2d 453 (1983); Kaestel v. State, 274 Ark. 550, 626 S.W.2d 940 (1982); see also Clinkscale v. State, 13 Ark. App. 149, 680 S.W.2d 728 (1984). Clearly, the appellant alone was responsible for the outburst in front of the jury, and the trial court did not abuse its discretion in refusing to award appellant’s misbehavior with a mistrial.

In accordance with Ark. Sup. Ct. R 11(f), the record of the proceedings has been examined, and the court has determined that there are no rulings adverse to appellant which resulted in prejudicial error. For the reasons set out above, we affirm the appellant’s convictions.

       Apparently, Mr. Webb was also arrested and charged with the rape of young girls, but not the two girls who were the rape victims in the present case.


author: Robert H. Dudley, Justice. David Newbern, Justice,

text:
    Lee Marvin COLEMAN v. STATE of Arkansas
    CR 91-267
    826 S.W.2d 273
    Supreme Court of Arkansas
    Opinion delivered March 23, 1992

      William R. Simpson, Jr., Public Defender, by: Thomas B. Devine, Asst. Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant was charged as a habitual offender with possessing cocaine with the intent to deliver and with possessing marijuana and drug paraphernalia with intent to use. He filed a motion to suppress the evidence of these crimes that was seized from his residence in a nighttime search. The basis of the motion was that the supporting affidavit did not state sufficient facts for the issuance of a nighttime search warrant. The trial court denied the motion. Appellant then entered conditional pleas of guilty and was sentenced to a total of fifty years in prison. He appeals from the denial of the motion to suppress. See A.R.Cr.P. Rule 24.3(b). We affirm the ruling of the trial court.

An affidavit for a search warrant must set out facts showing reasonable cause to believe that circumstances exist that justify a nighttime search. Those circumstances include: (a) the place to be searched is difficult of speedy access, or (b) the objects to be seized are in danger of imminent removal, or (c) the warrant can only be safely or successfully executed at nighttime or under circumstances the occurrence of which is difficult to predict with accuracy. A.R.Cr.P. Rule 13.2(c); State v. Martinez, 306 Ark. 353, 811 S.W.2d 319 (1991). In reviewing a trial court’s ruling on a motion to suppress because of an alleged insufficiency of the affidavit, we make an independent determination based upon the totality of the circumstances and reverse the trial court’s ruling only if it is clearly against the preponderance of the evidence. State v. Blevins, 304 Ark. 388, 802 S.W.2d 465 (1991).

The two and one-half page affidavit, which was prepared by using a word processor with a memory bank, stated that the Little Rock Police Department had received three reports that appellant was selling drugs in Little Rock, and in addition, the police had received three reports that drugs were being sold in the house located at 21 Halifax Court. The affidavit stated that on January 24, 1991, the affiant, a detective, was contacted by a reliable informant who said that appellant possessed cocaine and was distributing it from his residence at 21 Halifax Court. The affidavit additionally said that after dark on the same date the informant purchased cocaine from the appellant at 21 Halifax Court, that the cocaine was packaged in a clear plastic bag, and that the drugs located in the house were “packaged and maintained in a manner that [their] destruction or removal can be easily accomplished.” Finally, the affidavit stated that the affiant had been to the residence, and it “is so situated that the approach of the officers serving this warrant can readily be detected.”

Our cases have consistently held that a factual basis must be stated in the affidavit, or in sworn testimony, before a nightime search warrant may be validly issued. See, e.g., State v. Martinez, 306 Ark. 353, 811 S.W.2d 319 (1991). The appellant argues that the affidavit in this case contains only conclusory, not factual, statements. He contends that this case is similar to Garner v. State, 307 Ark. 353, 820 S.W.2d 446 (1991), in which we held that the affidavit did not contain a sufficient factual statement when the affiant only made check marks on a form that quoted the language of A.R.Cr.P. Rule 13.2(c), which sets out the three circumstances that justify a nighttime search. The appellant argues that the only difference is that the affiant in this case used a word processor with a memory bank rather than a printed form with places for check marks. The appellant’s argument is valid with regard to the language generated by the word processor’s memory bank that says the residence “is so situated that the approach of the officers serving this warrant can be readily detected.” It is regrettable that the affiant used only the language stored in the computer memory bank because, in fact, he knew that the residence was located on a cul-de-sac with only one way of entering, and the affiant had been informed that the appellant watched for cars approaching his house and that he had a gun. Therefore, the only safe way for the police to serve the warrant was to approach the house under cover of darkness.

However, the affidavit did specify that “after dark” on that very night an informant had purchased cocaine from the appellant, that the purchase was made inside appellant’s residence at 21 Halifax Court, that the cocaine purchased was packaged in a clear plastic bag, that cocaine was “now being concealed” there, that appellant “was in possession of and was distributing cocaine from the residence,” and that the drugs located there were “packaged and maintained in a manner that [their] destruction or removal can be easily accomplished.” The last phrase is a computer generated phrase, and if it were all the information that was contained in the affidavit, there would be no difference between this case and Gardner v. State, supra, the case where the affiant simply made the check marks. However, in this case, in addition to the rote use of the computer generated phrase, the affiant set out a number of pertinent facts.

The judge who issued the warrant knew that the affidavit was presented to him at 9:02 p.m. and, from the information contained in the affidavit, he had reasonable cause to believe that an informant had purchased cocaine from the appellant earlier that same night, and the cocaine was packaged in a clear plastic bag. He had reasonable cause to believe that, at that time, the appellant had additional drugs inside his residence and that those drugs were packaged so that they could be easily destroyed or removed. In a somewhat similar case, Harris v. State, 262 Ark. 506, 558 S.W.2d 143 (1977), the issuing judge knew from the affidavit a reliable informant had stated that the appellant had been involved in a crime, that evidence of the crime was inside appellant’s house and could be readily disposed of. We upheld the issuance of the search warrant. Similarly, in this case we cannot say that the ruling of the trial court was clearly erroneous.

Affirmed.

Newbern, J., dissents.

David Newbern, Justice,

dissenting. The majority opinion admirably recognizes that the boiler plate, computer generated reference to the residence to be searched was insufficient to permit a nighttime intrusion. The evidence cited in the majority opinion to support the Court’s reliance on the “danger of imminent removal” provision of Ark. R. Crim. P. 13.2(c)(ii) is inadequate.

The fact that the affidavit was presented at 9:02 p.m. suggests nothing about the imminent removal of the drugs. Nor does the fact that drugs were purchased by the informant earlier that evening.

The fact that the drugs were contained in a clear plastic bag does not suggest imminent removal. The statement in the affidavit that “the evidence sought is packaged and maintained in a manner that its destruction or removal can be easily accomplished” is no less conclusory than the statement that “the residence is so situated that the approach of the officers serving this warrant can be readily detected.”

The majority opinion suggests that anytime drugs are to be searched for officers can press a button on a word processor, spew out a wholly conclusory statement that drugs to be found can easily be removed and, if approved by the magistrate, conduct a nighttime search.

Even if it were proper for a magistrate to rely on a conclusion, the one discussed is irrelevant. While ease of removal may be related to the “danger of imminent removal,” they clearly are not the same. “Imminence” has to do with time. It would, for example, be appropriate to invade a home at night if the magistrate were presented with information that preparation had been made by the suspect to remove drugs to another location or perhaps to destroy them soon because of fear of being caught with them. The fact that drugs can be, say, flushed down a toilet quickly is just as true in daylight as in darkness.

It is true that in Harris v. State, 262 Ark. 506, 558 S.W.2d 143 (1977), we seemingly approved a nighttime search on the basis of an officer’s statement that evidence might be disposed of. The opinion does not, however, quote the language of the affidavit presented to the Court in that case.

Although the majority opinion does not refer to it, the State argues the conviction should be affirmed, regardless of deficiencies the affidavit may have had, because the officers were acting in good faith in executing the warrant. United States v. Leon, 468 U.S. 897 (1984). I cannot find good faith on an objective basis when officers use a computer print-out of an affidavit in conclusory form obviously intended to be used in virtually any drug search regardless of the facts necessary to justify the search pursuant to Rule 13.2(c). See Abbott v. State, 307 Ark. 278, 819 S.W.2d 694 (1991), in which we declined to apply the Leon balm to evidence obtained in a search resulting from a warrant which charged a nonexistent offense and was thus facially deficient.

Approval of the nighttime search in this case eviscerates the heightened requirement for nighttime invasion of people’s homes in all future cases where an officer concludes it would be easy to dispose of the drugs; in other words, all drug search cases.

I respectfully dissent.


author: Robert H. Dudley, Justice.

text:
    Jeff J. VACHON, On Behalf of Himself and All Persons Similarly Situated v. CITY OF FORT SMITH
    91-216
    826 S.W.2d 277
    Supreme Court of Arkansas
    Opinion delivered March 23, 1992

      Anthony J. Sherman and Timothy Davis Fox, for appellants.

      Dailey, West, Core, Coffman, & Canfield, by: Wyman R. Wade, Jr., for appellee.
   Robert H. Dudley, Justice.

Appellant was charged with and convicted of three moving traffic violations in the Municipal Court of Fort Smith. Fines were imposed. He paid the fines and court costs to the Clerk of the Municipal Court and subsequently filed this suit in chancery court. He alleged that the City of Fort Smith illegally exacted court costs from him and violated his right to due process. He sought to have the suit declared a class action and asked for attorney’s fees under 42 U.S.C. § 1988 (1988) and Ark. Code Ann. § 26-35-902 (1987). The chancellor dismissed the suit because of a lack of jurisdiction. We affirm the dismissal of the action, but do so without prejudice.

Appellant’s theory of his “illegal exaction” count, his principal basis for chancery jurisdiction, is derived from the fact that criminal offenses are now defined as either felonies, misdemeanors, or violations, see Ark. Code Ann. § 5-1-105 (1987), and while some traffic offenses continued to be “misdemeanors,” others are designated only as “violations” under Ark. Code Ann. § 5-1-108 (1987). The City therefore wrongfully collected “misdemeanor” costs from him because he was only guilty of “violations.” As stated, the chancellor dismissed the suit for a lack of jurisdiction.

Jurisdiction must be determined entirely from the pleadings, and if jurisdiction is not established by the pleadings, the court is not to proceed further. Department of Human Services v. Crunkleton, 303 Ark. 21, 791 S.W.2d 704 (1990). The complaint in this case is similar to the complaint filed in McKinney v. City of El Dorado, 308 Ark. 284, 824 S.W.2d 826 (1992), and supplemental opinion, 308 Ark. 288-A, 824 S.W.2d 826 at 828 (1992). In this suit, just as in McKinney v. City of El Dorado, the complaint, while lengthy, is conclusory in nature and neither sets out the itemized costs charged to appellant nor sets out the statutory costs which appellant contends were wrongfully collected. Just as in McKinney v. City of El Dorado, we cannot decide the issue of jurisdiction until the appellant alleges the specific facts upon which he bases his claims and, accordingly, we affirm the chancery court’s dismissal but do so because of appellant’s failure to meet the requirements of A.R.C.P. Rule 12(b)(6), and thus the dismissal is without prejudice.

Affirmed as modified.


text:
    Cindy GRICE and Bill Grice, Her Husband v. Robbie R. ATKINSON, D.D.S., M.D.
    91-174
    826 S.W.2d 810
    Supreme Court of Arkansas
    Opinion delivered March 23, 1992

      Bill R. Holloway, for appellants.

      Friday, Eldredge & Clark, by: C. Tab Turner and Guy Alton Wade, for appellee.
   Steele Hays, Justice.

This is an appeal from a judgment entered by the trial court in a dental malpractice action following a directed verdict for the defendant at the close of the plaintiffs’ case.

Cindy Grice and her husband sued Dr. Robbie R. Atkinson for failure to give Mrs. Grice the type of information customarily given to patients by other members of the dental profession in securing an adequate, informed consent to the performance of oral surgery. The trial judge granted the motion for a directed verdict on the premise the plaintiffs had failed to establish that the defendant did not supply the type of information given by other dentists in the same or a similar locality as that of the defendant. Finding no error we affirm the judgment.

When x-ray photographs revealed that third molars, or wisdom teeth, were threatening other teeth, Mrs. Grice was referred by her family dentist to Dr. Atkinson, a Pine Bluff oral surgeon. Dr. Atkinson reviewed x-ray films and explained to Mrs. Grice that a wisdom tooth on the lower right was growing into the roots of permanent jaw teeth. He advised removal by oral surgery, Mrs. Grice testified that Dr. Atkinson did not discuss the surgical procedure with her and did not tell her that her tongue might be permanently numb as a result of the surgery.

On June 10, 1986, when Mrs, Grice appeared at Dr. Atkinson’s office for the scheduled surgery, she was instructed by the receptionist to sign some papers. The receptionist explained that one was an insurance form and one was a consent form giving the doctor permission to work on her. Mrs. Grice signed the forms without reading them. The consent form reads in part:

I, Cindy Grice request that Dr. Atkinson perform surgery to remove three (3) third (3rd) molars. ... I understand the hazards in connection with these procedures such as swelling; hematoma or discoloration; infection; nerve damage; numbness of lips, face or tongue; loss or damage to other teeth. . . .

She then went to the operating room where Dr. Atkinson administered an injection to deaden her jaw. Following the removal of the tooth she went home and by the afternoon feeling had returned except for the right side of her tongue, which remained desensitized. She reported this to Dr. Atkinson the next day and was advised to come in if the numbness persisted beyond a week. When she came in as instructed Dr. Atkinson confirmed the numbness by pricking her tongue with a needle. Dr. Atkinson told Mrs. Grice to come back in nine months.

Mrs. Grice contends she has never regained the feeling in her tongue, which feels thick all the time. She has no taste on the right side of her mouth and her saliva glands do not work properly. Speech is difficult and she has trouble eating. She bites her tongue and often burns the roof of her mouth or the opposite side of her mouth from hot foods and liquids.

In determining the propriety of a directed verdict we give the evidence its strongest probative weight favorable to the appellant, drawing all inferences reasonably consistent therewith. Grain Dealers Mutual Insurance Co. v. Porterfield, 287 Ark. 27, 695 S.W.2d 833 (1985).

The deposition of Dr. Anthony Michael Captline was introduced on behalf of the Grices. Dr. Captline testified that he was board certified in 1974 as an oral and maxillofacial surgeon, limiting his practice to oral surgery. His credentials in the field of oral surgery are extensive. He said Mrs. Grice was referred by Dr. Martin for the removal of three third molars, one of which was in a vertical position with the crown angled toward the front of the mouth. He theorized the only reason Dr. Martin would want the tooth removed would be on a prophylactic, or preventative basis, “in other words, elective surgery.” Dr. Captline advised telling patients the risks before they sign a consent, which he considered inadequate if it lacks a complete description of the nature of the numbness that may occur. Quoting from his deposition:

(T. 234-235). My biggest complaint in regards to Dr. Atkinson is the consent to sign by Mrs. Grice. I feel that the consent to sign is not adequate in that it lacks a complete description of the nature of the numbness that may occur, specifically, in this case to the lingual nerve being temporal or permanent in nature. I believe that information is necessary for a person of ordinary intelligence and awareness to know the risks or hazards inherent in this surgery. I believe that information should be given to a patient that is going to undergo elective surgery. I believe a person of ordinary intelligence and awareness in a position similar to Mrs. Grice’s should be given information so that she could reasonably be expected to know the risk or hazard inherent in the surgery that Dr. Atkinson was going to perform.

When the plaintiffs rested their case in chief the defense moved for a directed verdict on the ground that Mrs. Grice admitted signing the form without reading it and that Dr. Captline’s testimony did not establish familarity with the type of information given to a patient in Pine Bluff or similar localities. The motion was granted.

We have addressed the similar locality rule in several cases. In Gambill v. Stroud, 258 Ark. 767, 531 S.W.2d 945 (1975), we wrote:

The rule we have established is not a strict locality rule. It incorporates the similar community into the picture. The standard is not limited to that of a particular locality. Rather, it is that of persons engaged in a similar practice in similar localities, giving consideration to geographical location, size and character of the community. The similarity of communities should depend not on population or area in a medical malpractice case, but rather upon their similarity from the standpoint of medical facilities, practices and advantages. For example, appellants state in their brief that it was uncontroverted that the medical standards of practice in Jonesboro, Little Rock, and Memphis are comparable. Thus, they could be considered similar localities. The extent of the locality and the similarity of localities are certainly matters subject to proof. Modern means of transportation and communication have extended boundaries but they have not eliminated them. The opportunities available to practitioners in a community are certainly matters of fact and not law and may be shown by evidence under our own locality rule.

(Citations omitted.)

Later, in White v. Mitchell, 263 Ark. 787, 568 S.W.2d 216 (1978), the similarity rule was examined from a slightly different angle. There, the plaintiffs medical expert, an orthopedic surgeon, was challenged on the ground that he was not familiar with the practice of medicine by a general practitioner in Malvern, Arkansas, and hence, not a competent witness. Citing Gambill v. Stroud, supra, we said that an expert witness need not be one who has practiced in the particular locality, or one who is intimately familiar with the practice in it in order to be qualified as an expert to testify in a medical malpractice action, “if an appropriate foundation is established to demonstrate that the witness is familiar with the standard of practice in a similar locality, either by his testimony or by other evidence showing the similarity of localities.”

More recently, in Fuller, Adm’x v. Starnes, 268 Ark. 476, 597 S.W.2d 88 (1980), we discussed in some depth the divergent views of American courts concerning the degree .of disclosure necessary to render a consent adequate and informed so as to bind the patient:

Although the existence of a physician’s duty to warn a patient of hazards of future medical treatment is generally recognized, a wide divergence of views has developed concerning the appropriate standard for measuring the scope of the duty. The minority view is that the duty of a physician to disclose is measured by the patient’s need for information material to the patient’s right to decide whether to accept or reject the proposed medical treatment. Emphasizing the right of the patient to control what happens to his body, the minority view is undergirded by the proposition that what a patient should be told about future medical treatment is primarily a human judgment. The majority view is that the duty of a physician to disclose is measured by the customary disclosure practices of physicians in the community or in a similar community. This view emphasizes the interest of the medical profession to be relatively free from vexatious and costly litigation and holds that what a patient should be told about future medical treatment is primarily a medical decision.

(Citations omitted.)

In Fuller, this court chose the majority view, influenced by the contemporaneous adoption of that position by the enactment by the Arkansas General Assembly of Act 709 of 1979, codified as Ark. Code Ann. § 16-114-206(b)(l) (1987), which places on the plaintiff the burden of proving that the physician failed to supply the type of adequate information regarding the surgery as would have been given by other physicians in the same, or in a similar, locality.

In affirming the trial court, we are not overlooking Dr. Captline’s avowal that he was “familiar with the information which must be given to a patient in order to have informed consent in Pine Bluff, Arkansas, or a similar locality.” However, support for that single, conclusory assertion is not found in his testimony, at least as abstracted. Nor was there any attempt to compare the locale of Dr. Captline’s practice to that of Dr. Atkinson’s. We are not told the size, character or availability of facilities of the community where Dr. Captline practices. Indeed, his testimony does not even identify the location of his practice. There is no attempt to compare the similarity of medical/dental facilities, practices and advantages available in Pine Bluff with those existing in comparable localities with which Dr. Captline is familiar. In fact, when asked on cross-examination if he knew the common practice of oral surgeons in Arkansas with respect to consent forms, Dr. Captline answered: “I do not know what they commonly do.”

We must agree with appellee, as did the trial judge, that while our rule is not stringent, it requires more than was provided in this case. When the testimony of Dr. Captline is given its fullest weight it lacks that essential constituent of proof required by § 16-114-206(b) (1) and we cannot say the trial court ruled incorrectly.

Affirmed.


author: Donald L. Corbin, Justice.

text:
    Albert WATSON v. STATE of Arkansas
    CR 91-291
    826 S.W.2d 281
    Supreme Court of Arkansas
    Opinion delivered March 23, 1992

      Daniel D. Becker, for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant Albert Watson urges this court to reverse his conviction for the rape of an eleven-year-old girl in November 1990. A Garland County jury convicted appellant, and sentenced him as an habitual offender to forty years imprisonment in the Arkansas Department of Correction. Appellant relies on four points for reversal, all of which are affirmable.

Appellant’s first argument for reversal asserts that the trial court erred in denying appellant’s motion to suppress a videotape and photographic stills filmed by police during a search of appellant’s residence. The alleged rape occurred in November 1990, but a search warrant was not issued and executed until January 3, 1991. According to appellant, the lapse of time between the alleged rape and the search warrant proceedings either negated or diminished probable cause because appellant was not violating the law at the time the warrant was issued.

In reviewing a trial judge’s ruling on a motion to suppress, we make an independent determination based on the totality of the circumstances and reverse only if the ruling is clearly against the preponderance of the evidence. Cherry v. State, 302 Ark. 462, 791 S.W.2d 354 (1990); Campbell v. State, 294 Ark. 639, 746 S.W.2d 37 (1988).

In this case, the warrant to search appellant’s residence was supported by the affidavit of Investigator Todd Sanders. Sanders averred that appellant’s neighbor, Donald Lybarger, contacted him on December 21, 1990, after Lybarger discovered sexually explicit photographs on the ground near appellant’s residence. The photographs depicted the act of sexual intercourse, between a young female and a male with only his genitalia exposed. On January 3, 1991, Sanders identified the female in the photographs, and conducted an interview with her in the Garland County Sheriffs office. During the interview, the victim identified appellant as the male in the photographs, and stated that appellant took the pictures in November 1990, at appellant’s residence.

Sanders obtained and executed a search warrant on January 3, 1991, the same day that the victim first identified appellant as the man in the photographs. During the search, Sanders videotaped the interior of appellant’s residence. The video depicted a sheet on appellant’s bed which appeared identical to a sheet depicted in the photographs found by Lybarger. On January 6, 1991, appellant was arrested and charged with rape. At trial, the state admitted the photographs found by Lybarger and photographic stills from the videotape of the search of appellant’s residence.

Appellant argues that probable cause did not exist because appellant was not violating the law at the time the warrant was issued. However, appellant’s argument overemphasizes the significance of a time lapse in the context of determining a warrant’s validity. While probable cause must exist at the time the warrant is issued, not at an earlier time, United States v. Stevens, 525 F.2d 33 (8th Cir. 1975), a lapse of time is not necessarily the controlling consideration. United States v. Ellison, 793 F.2d 942 (8th Cir.), cert. denied, 470 U.S. 415 (1986). Other factors include the nature of the criminal activity and the type of property sought, considered in the light of common sense. Id.

In this case, the items specified in the search warrant included cameras, telephones, and items of identification tending to identify the individual in control of the residence. Such items are not per se inculpatory. In the federal case United States v. Pelham, 749 F. Supp. 304 (D.D.C. 1990), the district court noted that a delay is less significant when the search warrant lists items innocent on their face as opposed to per se inculpatory items that probably would remain in a suspect’s residence for a short period of time.

In this case, the search warrant was obtained and executed the same day the police ascertained appellant’s identity and within two months of the alleged rape. Based on the totality of the circumstances, considered in the light of common sense, we believe the magistrate had probable cause to issue the search warrant for appellant’s residence.

Appellant’s final three arguments allege error in the trial court’s admission of the sexually explicit photographs discovered by appellant’s neighbor. Appellant argues that the photographs were unduly prejudicial and cumulative.

This court has consistently held that the question of prejudicial effect versus probative value is a matter addressed to the discretion of the trial judge. Ward v. State, 308 Ark. 415, 827 S.W.2d 110 (1992); Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988). On appeal, this court will not disturb the trial court’s decision in the absence of manifest abuse of that discretion. Ward, supra.

One challenged photograph, State’s Exhibit No. Four, depicts a nude female, later identified as the victim, lying on a bed with her genitalia fully exposed. Appellant argues that this picture is not probative to the rape charge because the photograph does not depict the act of sexual intercourse. However, this photograph provides the most identifiable view of the victim’s face. Consequently, as the state points out, this picture is relevant to show that the photographed female was indeed the victim. Since the photograph corroborates the victim’s testimony that appellant raped her, we discern no abuse of discretion.

State’s Exhibits Nos. One, Two, and Three are photographs depicting the act of sexual intercourse. The victim identified herself and appellant in the photograph. Exhibit No. Three is distinguishable from exhibits Nos. One and Two because the victim is wearing a shirt. Appellant’s sole objection to these photographs at trial was to the cumulative or duplicative effect of admitting both photographs. We reject this argument since we have held that photographic evidence is not inadmissible on grounds that it is cumulative or unnecessary due to admitted or proven facts. Cotton v. State, 276 Ark. 282, 634 S.W.2d 127 (1982). On appeal, appellant argues that the photographs were unduly prejudicial. However, he did not raise the argument at trial and we will not address it on appeal. Johnson v. State, 308 Ark. 7, 823 S.W.2d 800 (1992); Blaney v. State, 280 Ark. 253, 657 S.W.2d 531 (1983).

Affirmed.


author: Donald L. Corbin, Justice. David Newbern, Justice,

text:
    Vaugn YOUNG v. STATE of Arkansas
    CR 91-219
    826 S.W.2d 814
    Supreme Court of Arkansas
    Opinion delivered March 23, 1992

      Henry H. Boyce, for appellant.

      Winston Bryant, Att’y Gen., by: Didi H. Sailings, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant, Vaugn Young, appeals his conviction of delivery of cocaine. He was found guilty by a Jackson County jury and sentenced to forty years in the Arkansas Department of Correction. As his sole point for reversal, appellant contends the trial court erred in prohibiting testimony that an undercover drug task force agent brought cocaine to appellant’s home and smoked it there. Appellant attempted to offer the testimony as evidence of his defense of entrapment; the trial judge prohibited the testimony as impeachment of the agent’s testimony on a collateral matter. We find the trial court did not abuse its discretion in excluding the evidence and affirm.

At trial, appellant denied that he sold cocaine to Officer Phillip Crutchfield of the Jackson County-Newport Drug Task Force. He contended that Officer Crutchfield confused appellant with appellant’s deceased brother and former next-door neighbor, Rex Young, who appellant testified had a similar appearance to his own. However, the thrust of appellant’s defense was entrapment. Appellant argued that, prior to the delivery of cocaine on December 6, 1990, for which appellant was being tried, Officer Crutchfield engaged in a course of conduct that entrapped appellant to sell him cocaine on December 6, 1990.

As part of the prosecution’s case in chief, Officer Crutchfield testified on direct examination that he contacted appellant on two occasions prior to December 6, 1990. He testified that he saw appellant on September 4, 1990, and that he went to appellant’s home on September 14, 1990. He testified that on one of these occasions, he provided cocaine to appellant. However, on cross-examination, Officer Crutchfield denied ever smoking cocaine.

We have recently stated the law on the defense of entrapment:

Entrapment is an affirmative defense, upon which the defendant bears the burden of proof by a preponderance of the evidence. [Citations omitted.] Entrapment occurs when a law enforcement officer or any other person acting in cooperation with him induces the commission of an offense by using persuasion or other means likely to cause normally law-abiding persons to commit the offense. Ark. Code Ann. § 5-2-209 (1987). Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment. Id.

Wedgeworth v. State, 301 Ark. 91, 93, 782 S.W.2d 357, 358 (1990).

In an attempt to meet his burden of proving entrapment by a preponderance, appellant twice tried to present the testimony of Linda Fair, Officer Crutchfield’s former girlfriend. Appellant attempted to call Fair as his first witness. The state objected to her testimony arguing that it would impeach the officer’s credibility on a collateral matter. The trial judge sustained the objection. As is required on a ruling excluding evidence, appellant made a proffer of Fair’s testimony. The proffered testimony was that Fair “did drugs, bought drugs and sold drugs” with Officer Crutch-field. The trial court stated it would sustain the objection until after appellant testified.

Appellant then took the stand and testified that on September 14, 1990, Officer Crutchfield and his friend came to appellant’s home, that Officer Crutchfield brought some cocaine with him, asked appellant to “cook it up,” which appellant did, and that Officer Crutchfield and his friend then smoked the cocaine at appellant’s home.

Again, appellant tried to call Fair as a witness, arguing not only that her testimony would impeach Officer Crutchfield, but also that it would show Officer Crutchfield’s course of conduct in entrapping appellant. The prosecution renewed its objection to her testimony as impeachment on a collateral matter. The trial court inquired about the dates Fair’s testimony would concern. Appellant responded that she would testify to events occurring on September 14, 1990. After careful consideration, the trial court made a final ruling on the admissibility of Fair’s testimony; it concluded that her testimony did not concern Officer Crutch-field’s conduct on the date in question, December 6, 1990, her testimony would serve only as impeachment of Crutchfield on a collateral matter and was therefore not admissible.

On appeal, appellant maintains his theory of defense presented at trial, that it was error to exclude Fair’s testimony because it is evidence of entrapment which he has the burden of proving by a preponderance. The state’s response is that, because appellant denied having committed the offense for which he was tried, the defense of entrapment is not available to him. Therefore, any error that may have been committed in excluding the testimony is harmless.

The question then is whether the exclusion of Fair’s testimony was prejudicial error. However, we must first determine if Fair’s testimony is admissible as evidence of entrapment or if it must be excluded as impeachment of Officer Crutchfield’s testimony on a collateral issue.

We have previously decided that entrapment is not a collateral issue. In French v. State, 260 Ark. 473, 541 S.W.2d 680 (1976), we relied on Sorrells v. United States, 287 U.S. 435 (1932), and rejected the government’s argument that the defense of entrapment would lead to the introduction of collateral character issues. In French, we concluded the trial court erred in excluding testimony of an officer’s conduct concerning the alleged entrapment. In Brascomb v. State, 261 Ark. 614, 550 S.W.2d 450 (1977), we relied on French, and again held that the defense of entrapment is not a collateral issue. Brascomb is particularly applicable to the present case in that Brascomb, like appellant, was attempting to show a course of conduct or series of actions which constituted the alleged entrapment.

Common j ustice requires that any evidence pertinent to the issue of entrapment be admitted. Brascomb, supra. When proving entrapment, primary importance is accorded to the conduct of a law enforcement officer, or the person acting in cooperation with the officer. Spears v. State, 264 Ark. 83, 568 S.W.2d 492 (1978). The defendant should be allowed a reasonable latitude in presenting whatever facts and circumstances he claims constitute an entrapment, subject to ordinary rules of admissibility. Id. Our rules of admissibility provide that evidence having any tendency to make the existence of entrapment more probable is admissible, A.R.E. Rule 401, and that evidence which is competent for one purpose but incompetent for another be admitted with a limiting instruction, A.R.E. Rule 105.

Based on the foregoing rules of law, it is clear that Fair’s testimony would have been admissible on the issue of entrapment, if appellant would have been able to proceed with that defense given his denial on direct testimony that he committed the crime for which he was on trial. Thus, whether a defendant is entitled to the defense of entrapment when he denies committing the acts with which he is charged is the next issue we must resolve.

On several occasions we have considered the defense of entrapment and concluded that when the defense is invoked, it is necessarily assumed that the act charged was committed. Fight v. State, 254 Ark. 927, 497 S.W.2d 262 (1973). Where an accused insists that he did not commit the acts he is charged with, one of the bases of the entrapment defense is absent, and the accused is not entitled to that defense. Robinson v. State, 255 Ark. 893, 503 S.W.2d 883 (1914); Brown v. State, 248 Ark. 561, 453 S.W.2d 50 (1970). However, in Morris v. State, 300 Ark. 340, 779 S.W.2d 526 (1989), we recognized that the federal courts have adopted the rule that even if a defendant denies one or more elements of a crime, he is entitled to an instruction on entrapment whenever there is sufficient evidence from which a jury could find entrapment. See Mathews v. United States, 485 U.S. 58 (1988).

When presented with the issue of the Mathews rule in Morris, we declined to adopt the federal courts’ view because the Mathews case applied federal criminal rules of procedure rather than principles of constitutional law. We stated in Morris that we could think of two possible situations in which we would consider adopting the Mathews rule. See Morris, 300 Ark. at 342, 779 S.W.2d at 527. Neither of those two situations is presented in the current case. Therefore, we adhere to the principle of stare decisis and follow the rule enunciated in Fight, Robinson, and Brown.

We conclude that because appellant denied having committed the act charged, he was not entitled to proceed with evidence of the defense of entrapment.

Appellant was not entitled to the defense of entrapment. Therefore, although we have concluded that entrapment is not a collateral issue, it was not error for the trial court to have excluded Fair’s testimony. Although the trial court’s reasoning for excluding the evidence differs from our reasoning today, we affirm the ruling because it achieves the correct result. Laymon v. State, 306 Ark. 377, 814 S.W.2d 901 (1991).

Affirmed.

Newbern, J., dissents.

David Newbern, Justice,

dissenting. Every appellate judge is faced from time to time with deciding whether to give up on a point of view previously published and rejected by the majority of the members of the court on which the judge serves. For me, this case presents such an occasion.

In a concurring opinion in Morris v. State, 300 Ark. 340, 779 S.W.2d 526 (1989), I stated my view that a defendant’s assertion of entrapment and denial should not result in denying consideration of both issues by the trier of fact. I choose to restate it here because I hope that in a future case this Court, as did the United States Supreme Court in Mathews v. United States, 485 U.S. 58 (1988), may recognize the point.

The entire concurring opinion from the Morris case need not be repeated here. I will, however, say again that the federal case, Rodriguez v. United States, 227 F.2d 912 (5th Cir. 1955), which formed the basis of our initial decision, Brown v. State, 248 Ark. 561, 453 S.W.2d 50 (1970), that entrapment and denial were fatally inconsistent defenses is no longer the law in view of the Mathews case.

While I understand the majority opinion’s reference to stare decisis, which forms one horn of the dilemma expressed at the outset of this opinion, I am troubled by blind adherence. I must point out that in the Morris case the majority did not ignore the logic of the Supreme Court’s decision in the Mathews case because it “applied federal criminal rules of procedure rather than principles of constitutional law.” That, of course, was only a reason we were not bound by the Mathews decision. Our reason for not even getting to the issue in the Morris case — a reason with which I could not then or now quarrel — was that the defendant had not presented a prima facie case of entrapment.

If the defendant’s contention is, as here, that there was a misidentification which led to his being accused of a crime he did not commit, it is not logically improper to instruct the jury on the defense of entrapment. While those theories of defense may be inconsistent, that should not deprive the trier of fact of the opportunity to consider both. A jury could readily decline to believe the accused’s denial but believe the evidence of entrapment. Refusal to allow the defense may thus result in infliction of punishment upon a defendant which should not be inflicted upon one who was entrapped. The result may be that the defendant is punished for a serious crime when his “offense” is only that he sought to require the State to prove its case against him in addition to offering an affirmative defense.

I respectfully dissent.