author: Steele Hays, Justice.

text:
    Carl L. MENY v. STATE of Arkansas
    CR 92-1481
    861 S.W.2d 303
    Supreme Court of Arkansas
    Opinion delivered September 20, 1993

      J. Sky Tapp, for appellant.

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

On November 14,1991, Tyson Efird, eighteen years old, was kidnapped at gunpoint from The Food Center in Malvern where he worked. The state alleged Efird was held captive by Carl Meny, appellant, and Kevin Scott, a co-defendant, until November 20th, when Efird was released by his captors. Efird testified that during his abduction he was repeatedly raped by Meny, and that on two occasions Meny had tried to suffocate him.

Meny was charged with three counts of rape, one count of kidnapping and one count of attempted capital felony murder. Trial was held on June 29,1992, and the jury found Meny guilty on all five counts. He was sentenced to three consecutive life terms for each count of rape, thirty years for the attempted capital felony murder and twenty years for kidnapping. Meny brings this appeal, arguing five points for reversal, none of which have merit.

I

Trial Court Erred In Refusing To Grant Appellant’s Motion To Change Venue To A County In Another Judicial District.

At a pretrial hearing Meny moved for a change of venue based on pretrial publicity. The trial court granted the motion, changing the trial from Hot Spring County to Saline County. Meny was not satisfied and requested a different judicial district. The motion was denied. On appeal Meny argues it was error for the trial court to deny a change of venue outside the judicial district.

While we have indicated that a trial may be moved to another judicial district, see Anderson v. State, 278 Ark. 171, 644 S.W.2d 278 (1983), Meny made no showing in support of such a change, nor even for a change to another county. A criminal case may be removed to the circuit court of another county upon a showing that the minds of the inhabitants of the county where the case is pending are so prejudiced that a fair and impartial trial cannot be had. Ark. Code Ann. § 16-88-201 (1987). The burden is on the defendant to show an inability to obtain a fair trial. Morris v. State, 302 Ark. 532, 792 S.W.2d 288 (1990). We will not disturb the finding of the trial court in the absence of an abuse of discretion. Id.; Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988).

Here the record as abstracted lacks any evidence offered by Meny, other than conclusory argument by defense counsel. It is fundamental that the record on appeal is confined to that which is abstracted. Lee v. State, 297 Ark. 421, 762 S.W.2d 790 (1989). The burden is on the appellant to show prejudice for a change of venue, and absent any evidence to that effect, we must affirm the trial court’s denial of the motion.

II

Trial Court Erred In Refusing To Sequester The Jury And Refusing To Grant A Mistrial After One Of The Prospective Juror’s Made An Unsolicited Reference To Press Coverage Of The Case During Voir Dire.

During voir dire, the following exchange took place:

Prospective Juror. Mr. Harmon, may I ask you a question?
Harmon: Would you state your name?
Juror. My name is Joyce Staggs.
Harmon: Yes, Ma’am.
Juror: We’ve all heard and read the paper, newspaper of the incident.

Defense counsel moved for a mistrial on the grounds that Ms. Staggs’s comment had tainted the jury panel. The trial court denied the motion and the state proceeded to question Ms. Staggs and the other prospective jurors to see if they had read anything about this case and if they had formed any opinions as to guilt or innocence. No one said they had. The state asked whether they could set aside what they had heard or seen and base their decision on the testimony at trial and all responded in the affirmative. The trial court also addressed the panel, explaining the difficulty caused by publicity and encouraging the panel members to indicate if they could not set any preconceptions aside. All panelists said they could set aside what they had heard. Meny argues it was error not to grant the mistrial.

When prospective jurors state that they can lay aside what they have read or heard and try the case upon the evidence, and give the defendant a fair trial, that generally suffices. We wrote in Logan v. State, 299 Ark. 266, 773 S.W.2d 413 (1989):

What the appellant was entitled to and what he got in our judgment was a jury composed of persons who could and did decide the case on the testimony presented in court and not on the basis of news media.

That was shown to be the case here. A mistrial is a drastic remedy and should only be granted under a showing of manifest prejudice. Edwards v. State, 300 Ark. 4, 775 S.W.2d 900 (1989). No prejudice was shown in this case.

III

Trial Court Erred In Refusing To Grant A Mistrial After Appellant Was Seen By Jury Panel In Handcuffs.

Following a lunch break defense counsel asked for a hearing in chambers. He told the court Meny was in the hall with handcuffs on and that all of the jurors coming into the courtroom had seen him. The trial judge expressed his regrets and gave instructions to court officers to avoid any recurrence of such an incident. Counsel made no further offer of proof of what the jurors saw and did not request a hearing for such purpose.

We stated in Hill v. State, 285 Ark. 77, 685 S.W.2d 495 (1985) that where there has been only a brief, inadvertent encounter between potential jurors and a defendant in restraints, prejudice will not be presumed. In the case before us Meny offered no proof that the encounter was anything but inadvertent and momentary and no prejudice occurred.

IV

Trial Court Erred In Refusing To Grant Appellant’s Bill Of Particulars And In Refusing To Dismiss The Charge Of Criminal Attempt At Capital Murder.

The first information charged Meny with rape and kidnapping, but was amended to include attempted capital felony murder, with kidnapping as the underlying felony. This amended information had a supporting affidavit from a police officer who had interviewed the victim. The victim had told the affiant all the details of the kidnapping, rapes and attempted murder and identified Carl Meny as his abductor, which facts were set out in the affidavit. A second amended information was then filed listing all the counts of rape, kidnapping, attempted capital felony murder, as well as new counts of terroristic threatening. This information also included the supporting affidavit from the police officer. The attempted capital felony murder count did not specify the underlying felony.

Meny moved for a bill of particulars to the original information and the first amended information, but the motion was never presented or ruled on. As for the second amended information, no motion for a bill of particulars appears in the record. A pretrial hearing was held where the second amended information was discussed. There was no objection by the defense to the attempted capital felony murder charge at that hearing, although other parts of that information were discussed. The case went to trial, and after the state rested, Meny moved for a directed verdict on the attempted capital felony murder charge, arguing there had been no evidence of any underlying charge. The state responded that rape and kidnapping were the underlying felonies and moved that the information be amended to conform to the proof. Meny protested that it was too late for the state to amend and asked that the attempted murder charge be dismissed. Meny argues he went to trial not knowing the nature of the underlying felony for the murder charge, and though he had requested a bill of particulars, it was denied by the trial court, leaving him in a “Catch-22” situation.

In the first place, there is no record of Meny having moved for a bill of particulars to the information in question, nor was there any objection to the attempted capital felony murder charge at the pretrial hearing where that information was discussed. There is no indication from the record that Meny went to trial without knowing the charges against him. Rather, it appears Meny waited to assess the strength of the state’s case before objecting to the information. The proper time to object to the sufficiency of an indictment or information is prior to trial. Ark. Code Ann. § 16-85-705 (1987); Prince v. State, 304 Ark. 692, 805 S.W.2d 46 (1991).

Further, while the second information itself did not specify the underlying felony, it was clear from the supporting affidavit that the underlying felonies were kidnapping and rape. As a substitute for a bill of particulars the state may furnish an accused with information in its file and any other information within the control of the state reasonably necessary to defend against the charges. Green v. State, 310 Ark. 16, 832 S.W.2d 494 (1992). Where the indictment or information may be deficient, that deficiency can be corrected by supplying the defendant with a bill of particulars, or other facts detailing the elements of the charge. Harris v. State, 299 Ark. 433, 774 S.W.2d 121 (1989); David v. State, 295 Ark. 131, 748 S.W.2d 117 (1988); Murry v. State, 150 Ark. 461, 234 S.W. 485 (1921). As in Green and Murry, we find no prejudice since Meny was sufficiently informed of the charges through the supporting affidavits.

V

Trial Court Erred In Allowing The State To Introduce Character Evidence Against Appellant.

Meny makes three arguments pertaining to testimony given by Tom Andry, a witness for the state. Andry testified that he and Meny lived together as lovers, that when Andry broke off the relationship, Meny shot himself in the arm and told authorities Andry was responsible for the shooting.

Meny first argues the trial judge reversed a pretrial ruling that if Meny elected to testify, the prosecutor would not be allowed to offer evidence that Meny was homosexual. But the trial judge made it clear that he was reserving his ruling until he heard the trial testimony.

Second, Meny contends his prior homosexual acts were not relevant. We disagree. On direct examination Meny testified he was not homosexual but bisexual and had had no sexual relations with a man for twenty years. He further testified that it was the victim who was the sexual aggressor and that he had initially avoided the victim’s advances but finally gave in. The trial court ruled that Meny’s sexual preference in this case was relevant to intent. We cannot say the trial court’s discretion was abused.

Third, Meny objected to Andry’s testimony that Meny had shot himself. However, the defense opened the door to this testimony as Meny had earlier testified that someone had shot into his house and he had been struck in the arm by one of the bullets. He testified that he suspected Tyson Efird, thus explaining his contact with Efird. The state was entitled to meet that proof with Andry’s testimony.

The judgment is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Jim PYLE v. STATE of Arkansas
    CR 92-777
    862 S.W.2d 823
    Supreme Court of Arkansas
    Opinion delivered September 20, 1993
    [Rehearing denied November 1, 1993.]

      McDaniel & Wells, P.A., by: Bobby McDaniel, for appellant.

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

This is an appeal by Jim Pyle from a judgment of conviction on counts of possession and delivery of a controlled substance and possession of drug paraphernalia. Cumulative sentences of eighty years imprisonment were imposed. Our jurisdiction attaches pursuant to Rule 29(1)(b).

On June 1,1990, Pyle’s residence at 803 Lawrence Drive in Jonesboro was searched pursuant to a search warrant executed on May 31. Cocaine, marijuana, cash, and drug paraphernalia were seized. The events leading to the application for the warrant began on May 24 when Donna Bogard, a Drug Task Force Officer, and a confidential informant met with a man named Robert Atkerson to buy drugs. They met near Pyle’s home. Bogard and the informant wore concealed microphones. When Bogard gave Atkerson money to buy the drugs, she asked who the dealer was. When Atkerson refused to say, the informant suggested, “We’ll just say J.P.” Atkerson said, “That’ll work. The Boss. Sometimes I call him Bruce.” Bogard watched Atkerson drive in the direction of Pyle’s home and turn into a driveway at the end of the street. The residence is at the west end of a dead end street. Bogard did not see whether Atkerson actually went into the Pyle residence but did see him turn into the driveway. Atkerson later returned with drugs, which Bogard bought. No attempt was made to get a search warrant at this time.

On May 30 and 31 the confidential informant made three phone calls to Pyle. Police officers were in the room with the informant and recorded the calls. The informant told Pyle he needed “that product.” There was no agreement made to sell anything, only a discussion in which Pyle discouraged the informant from coming to his house. Pyle indicated the informant should call back later to see if Atkerson had returned.

At 5:10 p.m. on May 31 Bogard again purchased cocaine from Atkerson. After she gave Atkerson the money, he said he had to hurry and get the money back to his source. Three minutes later, two other police officers, Officer Thomas and Officer Grigsby, who were conducting a surveillance near Pyle’s house, saw Atkerson approach the house and enter through the garage. The officers took pictures of Atkerson and another man outside the house.

On May 31 Officer Thomas applied for a search warrant. His affidavit generally recounted these events, stating that Atkerson had sold drugs to Bogard on May 24 and 31, had identified his source as “J.P.” both times, and that the informant knew “J.P.” to be Jim Pyle, Jr. Further, that Bogard was able to determine that Atkerson went to Pyle’s house on the 24th and that Thomas and Grigsby saw him enter the house soon after he sold the drugs to Bogard on the 31 st. It stated the officers had observed Atkerson speaking to a “person known to be Jim Pyle” in front of Pyle’s house.

Officer Thomas testified at the probable cause hearing that Atkerson had said on the 24th that he was “going to J.P.’s house.” He testified that Atkerson told Bogard on the 31st that he was taking the drug money “back to J.P.” Bogard also testified that Atkerson had referred to his source as “J.P.”

Jim Pyle moved to suppress the evidence seized under the warrant. He alleged the affidavit and testimony before the magistrate contained false statements and material omissions. His motion was denied, the evidence was admitted and at trial the jury convicted Pyle on all counts. On appeal, he brings six points for reversal.

I

Jim Pyle argues the search warrant was obtained by an affidavit and testimony containing “knowing and reckless false, material statements and structured, material omissions.” He contends his Fourth Amendment rights were violated and the evidence seized pursuant to the warrant should be suppressed.

The established standard of review in such cases requires that we consider the totality of the circumstances to determine if the trial court’s decision was clearly against the preponderance of the evidence. Coleman v. State, 308 Ark. 631, 826 S.W.2d 273 (1992); State v. Blevins, 304 Ark. 388, 802 S.W.2d 465 (1991). We consider the facts in the light most favorable to the appellee. Ryan v. State, 303 Ark. 595, 601, 798 S.W.2d 679, 683 (1990).

The general rule for the application of the Fourth Amendment exclusionary rule to evidence seized under an invalid warrant is set out in United States v. Leon, 468 U.S. 897 (1984). In Leon, the Court fashioned a good faith exception to the requirement of a valid warrant, that suppression of evidence would not be appropriate when a law enforcement officer acted in good faith reliance on a facially valid warrant. Id. at 922. The Court also stated that the good faith exception would not apply when the issuing magistrate is misled by an affiant who either knows the information given is false or has acted in reckless disregard of its truth or falsity. Id. at 923.

Franks v. Delaware provides the test for determining whether a warrant alleged to have such defects falls outside the Leon good faith exception. 438 U.S. 154 (1978). Under Franks, a warrant should be invalidated if a defendant shows by a preponderance of the evidence that: (1) the affidavit contained a false statement which was made knowingly, intentionally, or recklessly by the affiant and (2) the false statement was necessary to a finding of probable cause. Id. at 155-56. If those findings are made, the false material is excised and the remainder of the affidavit is examined to determine if probable cause exists. If the truthful portion of the affidavit makes a sufficient showing of probable cause, the warrant will not be invalidated. Id. We examine Pyle’s arguments in light of Franks.

First, Pyle argues that Officer Thomas falsely stated at the probable cause hearing that at the first drug transaction on May 24 Atkerson identified his source as “J.P.,” when in fact it was the confidential informant who used the term “J.P.” in referring to the source. Thomas conceded at the suppression hearing that Atkerson had not directly referred to his source as “J.P.” and had merely confirmed the reference by responding, “That’ll work.” Even so, we find no basis for a conclusion that Thomas had any intent to mislead the magistrate. Whether it was the informant or Atkerson. who first referred to the source as “J.P.” matters little, so long as Atkerson, the go-between, agreed that “J.P.” was an appropriate reference. It was Atkerson who knew the identity of his supplier and by confirming that cognomen, he effectively identified his source as “J.P.”. We find no indication that Thomas doubted the essential accuracy of his statements to the magistrate. In Franks v. Delaware, the United States Supreme Court stated that “every fact in an affidavit [need not necessarily be] correct... [but must be] truthful in the sense that the information put forth is believed or appropriately accepted by the affiant as true.” 438 U.S. at 165-66.

Pyle also complains that Thomas told the magistrate that Atkerson again named his source as “J.P.” at the second transaction on May 31. Before the magistrate Thomas testified that Atkerson advised Investigator Bogard that “he had to take the money back to ‘J.P.,’ ” when in fact Atkerson said only that he had to take the money back to “his source”. But we are not persuaded that this inaccuracy rises to the level of a knowing or reckless falsehood as defined in Franks and Leon. The trial court, viewing these events as a whole, could accept Thomas’s statement as a reasonable inference. Atkerson had agreed on May 24 that his source could be called “J.P.” and told Bogard on May 31 that he had to take the money back to his source. There were circumstances indicating the same supplier was involved in both transactions and on both occasions Atkerson was observed going toward or into Pyle’s house. Also, the record shows that Bogard had been privy to some undercover phone calls to Pyle which connected Pyle with Atkerson. In light of these circumstances, Thomas’s perception of these events was not unreasonable, and the trial court concluded that his statement, although technically inaccurate, was not made with an intent to deceive.

Officer Thomas also told the magistrate that the informant knew “J.P.” to be Jim Pyle. Pyle asserts there is no specific statement or testimony in the record where the confidential informant directly states that “J.P.” means appellant Jim Pyle. The state cites a conversation between the informant and Investigator Bogard where the informant refers to J.P., and then gives Bogard directions to Pyle’s residence. The state also refers to a taped conversation between the informant and Pyle. Again, the trial court could reasonably infer that Thomas’s testimony was based on his knowledge of these transactions, and not the result of an intent to deceive the magistrate.

Next, Pyle labels as false Officer Thomas’s statements that he saw Pyle talking to Atkerson at the Pyle residence after the drug transaction on May 31 and took photographs of the two. At the suppression hearing Thomas acknowledged this mistake, explaining that when he identified Pyle he was relying on the knowledge of Officer Grigsby, who was conducting the surveillance with him on May 31. The state argues that “this is the type of hearsay contemplated by Franks v. Delaware.” The Court recognized in Franks that an affidavit may be based upon hearsay and reiterated its reluctance to extend the rule of exclusion beyond “those instances of deliberate misstatements and those of reckless disregard.” 438 U.S. at 167, 170. The trial court obviously reasoned that in relying on Investigator Grigsby, Thomas was not making a deliberate or reckless misstatement.

As to the photographs, Pyle offers no evidence that Thomas knew at the time of the probable cause hearing that Pyle was not the man photographed or that Thomas had reason to doubt the identity of the man in the picture at the time he testified before the magistrate. Under Franks, the burden of showing that an affiant knowingly and recklessly included a false statement is upon the challenger of the affidavit. Franks, 438 U.S. at 171. While it has been shown that a false statement was made, Pyle fails to meet the burden of showing that Thomas acted knowingly or recklessly.

Under Franks, if false or erroneous statements meet the standard of knowing deception or reckless disregard, the next step is to extract such statements, examine the remainder, and determine if probable cause exists. 438 U.S. at 156. What remains in this case is the two drug transactions in the same locale, Atkerson’s affirmance of “J.P.” as his source, his statement at the second transaction that he was taking the money back to his source, and Thomas’s observation of Atkerson entering Pyle’s house minutes later. These factors readily equate with probable cause. See Illinois v. Rodriguez, 119 S. Ct. 2793, 2799 (1990).

Additionally, Pyle cites several “material and significant omissions” which should have been disclosed to the magistrate at the probable cause hearing. He insists the magistrate should have been told that Atkerson used the name “Bruce” in referring to the source and that Pyle refused to sell drugs to the confidential informant in the taped conversations. We do not regard these as material omissions. Whether Atkerson chose to refer to his source as “J.P.”, or “Boss” or “Bruce” hardly matters, so long as the same individual is being referred to.

Pyle relies on Harris v. State, in which a number of technical errors, taken together, were found sufficient to invalidate a warrant. 264 Ark. 391, 572 S.W.2d 389 (1978). The errors in Harris were apparent on the face of the warrant and the trial judge, in denying the motion to suppress, conceded that the errors amounted to a total disregard for the rules of criminal procedure. See Harris at 392, 572 S.W.2d at 390. Pyle does not allege that these omissions violated any rules, nor does he show how their existence could be attributed to anything other than mere laxity. The omissions involve factors that might be argued at trial, e.g. such things as Pyle’s refusal to sell drugs on other occasions and the presence of other people at his home on the date of the first drug sale. Given the circumstances as a whole, it was not implausible for the trial court to conclude that the omissions were not significant or material in a probable cause context.

Neither Franks nor Leon specifically mentions omissions, but the standards they articulate require a knowing intent to deceive, or a reckless disregard of truth. Applying that standard, it would seem that matters omitted must be material circumstances which contradict or dispel the incriminating factors in the affidavit. Leon states that the good faith standard does not preclude inquiry into the knowing or reckless falsity of the affidavit itself. Therefore, such omissions would need to render what is in the affidavit effectively false because of their nondisclosure. See Franks, 462 U.S. at 171. Such things as refusal to sell cocaine on other occasions, failure to return phone calls, and the presence of other people at the house, do not convert the factors discussed above into deception by negation.

We conclude that the alleged misstatements do not meet the test provided by Franks to invalidate the warrant, and, even if it were otherwise, probable cause is present in the remainder of the warrant.

II

Jim Pyle contends the Court allowed the state to impeach a defense witness by presenting extrinsic evidence on a collateral matter. On cross-examination, the prosecutor asked Ms. Bysshe Stovall, Pyle’s live-in girlfriend, about a vial and a straw with powdery residue found in her purse. She denied knowing these items were there, explaining that she had lent her purse to a friend. The state called a police officer to testify that he had taken the articles from her purse during the search. Pyle cites the well-established rule of law that a witness may not be impeached on a collateral matter by using extrinsic evidence. See Sutton v. State, 311 Ark. 435, 442, 844 S.W.2d 350 (1993); Nard v. State, 304 Ark. 159, 801 S.W.2d 634 (1990). Thus, the question is whether the evidence meets the definition of “collateral.”

Our cases provide definitions of noncollateral matters relevant to this analysis. A matter is not collateral if the cross-examining party would be entitled to prove the issue as part of the case in chief, or if the evidence is relevant to show bias, knowledge, or interest. See Kellensworth v. State, 275 Ark. 252, 255, 631 S.W.2d 1, 2 (1982). Wigmore states that a matter is not collateral if it can be shown for a purpose independent of the contradiction. 3A Wigmore § 1003 at 961. Pyle was charged with possession of drug paraphernalia. To prove this charge the state may show constructive possession, in that illegal items were found in a place subject to the accused’s joint control with another. See Parette v. State, 301 Ark. 607, 786 S.W.2d 817 (1990). The paraphernalia was seized during the search of the residence shared by Pyle and his girlfriend. He contends that neither of them was charged with possession of this particular paraphernalia. However, Count VI of the information alleges possession of paraphernalia, including vials. The evidence is independently provable under the above definition arid is not collateral.

This evidence could also be probative of knowledge by the witness. Ark. R. Evid. 404(b) (1992). Wigmore defines knowledge as what is said by the witness concerning the main event to which he or she is testifying. 3 A Wigmore § 1005 at 972. Ms. Stovall testified that she did not know that drugs or paraphernalia were on the premises. Confronting her with paraphernalia found in her purse would be probative of her awareness that it was there.

Ill

Pyle next contends his Sixth Amendment rights were violated when the court allowed the state to play undercover tapes containing statements by Robert Atkerson without calling Atkerson as a witness. Three cases dealing with the general rule that a defendant has a right to cross-examine his accusers are cited. See Watson v. State, 308 Ark. 444, 825 S.W.2d 569 (1992); Bowden v. State, 301 Ark. 303, 783 S.W.2d 842 (1990); Cogburn v. State, 292 Ark. 564, 723 S.W.2d 807 (1987). These cases do not specifically address the issue presented and we assume appellant is directing us to the policy underlying the hearsay rule. The state responds that because the taped out-of-court statement is that of a co-cónspirator, it is not hearsay. See Ark. R. Evid. 801(d)(2)(v).

Pyle was charged with conspiracy to deliver cocaine. Under our case law, a co-conspirator’s testimony can be deemed competent even without such a charge, but the alleged co-conspirator must be connected to the conspiracy by evidence independent of the statement. See Smithey v. State, 269 Ark. 538, 602 S.W.2d 676 (1980); Patterson v. State, 267 Ark. 436, 591 S.W.2d 356 (1979). Because such statements derive exemption from the hearsay rule under the definition of “admission by a party opponent,” they must in effect be vicarious admissions. See Ark. R. Evid. 801 (d)(1)(v); Patterson, 267 Ark. at 441, 591 S.W.2d at 360. We have held that, where an actual criminal act is performed by an alleged accomplice, the accomplice’s statements made during the transactions are admissible as a statement of a co-conspirator. Foxworth v. State, 263 Ark. 549, 566 S.W.2d 151 (1978). It is undisputed that Atkerson sold cocaine to Officer Bogard on May 24 and May 31, and the taped conversations were part of these transactions. Nor were the statements the only link between Atkerson and the conspiracy. Pyle, after all, was the one who sold the cocaine. Atkerson pled guilty. The issue was whether Pyle was the source. Given these facts, the statements fall within the co-conspirator category.

Further, the trial court followed the procedure set out in United States v. Bell, 573 F.2d 1040 (8th Cir. 1978), and adopted by this court. See Patterson, 267 Ark. at 443, 591 S.W.2d 360 (1979). The trial court first heard the tapes and testimony, conditionally admitted the evidence, and advised the jury before denying the defendant’s motion to strike. This is exactly the procedure set out in Patterson. Id. at 443, 591 S.W.2d at 360.

Pyle also makes a sweeping contention that AMCI 201 is unconstitutional under the due process clause with no explanation as to how due process is violated. We find no merit in the argument. AMCI 201 tells the jury it must find the existence of a conspiracy beyond a reasonable doubt before it can consider any statement allegedly made in furtherance of a conspiracy. The Commentary to AMCI 201 explains that a trial judge has the discretion to admit evidence which is dependent upon a condition of fact, and that it is “better practice” to give a limiting instruction as the evidence is received.” Arkansas Model Crimi nal Instructions 201 (1979) (commentary page 11). Pyle maintains that AMCI 201 allows a jury to decide whether evidence is admissible. We disagree. AMCI 201 facilitates the procedure set out in United States v. Bell by telling the jury in effect what is required by United States v. Bell. This is essentially stated in dicta in Patterson v. State, which was decided before AMCI 201 was adopted. See 267 Ark. 443, 591 S.W.2d at 360. In Patterson, we said the same thing as the commentary to AMCI 201 — the better practice is to give this instruction in handling the testimony of alleged co-conspirators.

Another argument is that the state should not have used Atkerson’s out-of-court statements without calling him as its witness. Pyle cites Roberts v. State, 278 Ark. 550, 648 S.W.2d 44 (1983). In Roberts, the state’s witness had made a prior inconsistent statement that was plainly hearsay. The state was allowed to present this statement through another witness, and on appeal the tactic was seen as an improper attempt to get before the jury evidence that was otherwise inadmissible. Roberts, 278 Ark. at 552, 648 S.W.2d at 46. However, if Atkerson’s statements are viewed as a statement of a co-conspirator, and not as a prior inconsistent statement, they are not hearsay and are otherwise admissible. We regard the cases as distinguishable.

IV

Pyle next contends the trial court abused its discretion in allowing a rebuttal witness (Gary Heflin) to show prior bad acts, to prove an element which should have been presented in the case-in-chief, and to violate pretrial discovery because the witness was not disclosed to the defense prior to trial. The answer lies in whether Heflin was properly a rebuttal witness. If so, the state was not required to disclose him before trial. Asher v. State, 303 Ark. 202, 795 S.W.2d 350 (1990); Weaver v. State, 290 Ark. 556, 720 S.W.2d 905 (1986). Also, the scope of his testimony in that event is given wide latitude, and it will not be restricted merely because it could have been presented on direct. Birchett v. State, 289 Ark. 16, 708 S.W.2d 625 (1986).

The definition of rebuttal evidence found in Birchett v. State is instructive. We wrote that genuine rebuttal evidence “consists of evidence offered in reply to new matters.” Id. at 20. We said that evidence can still be categorized as genuine rebuttal evidence even if it overlaps with the evidence in chief. However, the evidence must be responsive to that which is presented by the defense. Id. at 19. Here, Pyle testified he had no prior knowledge of cocaine being in his house and that he had never sold drugs. Heflin testified that he had traded auto parts with Pyle in exchange for cocaine in the past and had used cocaine with Pyle. Since the defense was lack of knowledge, Heflin’s testimony was proper both as rebuttal and as evidence of prior acts for the purpose of showing knowledge under Ark. R. Evid. 404(b).

V

Jim Pyle contends because the evidence is insufficient to convict him a directed verdict should have been granted. In reviewing the substantiality of the evidence, we examine the evidence in the light most favorable to the appellee, and sustain the verdict if the evidence is substantial. Hooks v. State, 303 Ark. 236, 795 S.W.2d 56 (1990). Evidence is substantial if it is strong enough to compel a conclusion either way. Moore v. State, 297 Ark. 296, 761 S.W.2d 894 (1988). Pyle merely recounts the testimony offered in his defense, rather than addressing the substantiality of the state’s evidence. We find ample evidence which, if believed, would prove the elements of the case. Pyle was charged with delivery and possession of cocaine, possession of drug paraphernalia, and possession of marijuana. To convict him of delivery, the state had to prove that he actually or constructively transferred cocaine for value to another person. Ark. Code Ann. § 5-64-101(f) (Supp. 1991). The state’s proof included taped conversations between Pyle and the confidential informant in which Atkerson and the “product” were discussed. Atkerson was observed going into Pyle’s house immediately after Atkerson sold cocaine to Officer Bogard and had told them he was taking the money back to his source. When the house was searched, drugs and paraphernalia were found, and then marked money for the drug buy was found on Pyle. Pyle does not attack the sufficiency of this evidence, he merely prefers his own. Looking at the evidence in the light most favorable to appellee, we are satisfied it was more than adequate.

To convict one of possession of cocaine, marijuana, and paraphernalia, the state had to show that the defendant exercised control or dominion over it. Plotts v. State, 297 Ark. 66, 759 S.W.2d 793 (1988). It is undisputed that no drugs or paraphernalia were found on Pyle’s person. However, our cases have held that constructive possession is sufficient- that is, when illegal items are found in an area subject to a defendant’s control. Id. The state established that drugs and paraphernalia were found in Pyle’s home. His witnesses testified that these items belonged to other people and that others had free run of the house. When contraband is found in a place under a defendant’s dominion and control a jury may infer constructive possession, but if joint control is established, proof of knowledge of the contraband is required. See Cary v. State, 259 Ark. 510, 517, 534 S.W.2d 230 (1976); Parette v. State, 301 Ark. 607, 616, 786 S.W.2d 817 (1990). Pyle owned and lived in the house where the items were found. There was proof from which the jury could find that Pyle had dominion and control over the house, and to infer constructive possession.

Since Pyle shared the house with Ms. Stovall, a showing of knowledge is required under our cases. See Plotts, 297 Ark. 72, 759 S.W.2d at 794 (1988). Pyle testified he did not know the items were in his house. However, given the fact that drugs and paraphernalia were found in the bathroom of the master bedroom, that the phone calls discussing Atkerson and “that product” could be interpreted as implicating his involvement, a jury could reach this conclusion without speculation or conjecture. Hooks v. State, 303 Ark. 236, 795 S.W.2d 56 (1990). Evidence is substantial if a reasonable inference can be made from the facts, when viewed in the light most favorable to the state. Cary, 259 Ark. at 510, 534 S.W.2d at 230.

VI

The final argument is that $4,000.00 in cash seized at Pyle’s home should have been suppressed as the fruit of an illegal search, and was irrelevant to the case. The legality of the search warrant is discussed at length under Point I and warrants no further attention here. The remaining questions are (1) whether the trial court abused its discretion in admitting this proof over an A.R.E. 401 relevance objection or (2) in balancing the probative value versus prejudice under A.R.E. 403. Our cases reflect that the trial court’s discretion in determining relevance is broad, and subject to reversal only if such discretion is abused. Qualls v. State, 306 Ark. 283, 812 S.W.2d 681 (1991); Walker v. State, 301 Ark. 218, 783 S.W.2d 44 (1990); White v. Clark Equipment Co., 262 Ark. 158, 553 S.W.2d 280 (1977). In Walker, we stated that evidence need only have “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Id. at 221, S.W.2d. In Qualls, we held that a picture of the defendant with large sums of money in a room where he had conducted drug transactions was relevant to show that he sold drugs. Id. at 285, 812 S.W.2d at 683-83. Given the broad discretion of the trial court and the nature of the charges, we think Qualls is controlling and the trial court’s discretion was not abused.

For the reasons stated, the judgment is affirmed.


author: David Newbern, Justice.

text:
    William Mac HUFFORD v. STATE of Arkansas
    CR 93-280
    861 S.W.2d 108
    Supreme Court of Arkansas
    Opinion delivered September 20, 1993
    [Rehearing denied October 25, 1993.]

      Charles M. Duell, Chief Asst. Public Defender, for appellant.

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

William Mac Hufford was convicted of six counts of burglary and five counts of theft of property and sentenced to 60 years in prison. His first point on appeal is that his right to a speedy trial as provided in Ark. R. Crim. P. 28.1(b) was violated. Specifically, Mr. Hufford contends the state’s delay in providing a court-ordered mental examination caused his trial to be delayed beyond the one-year time limit. Second, Mr. Hufford contends the State’s failure to send him to the State Hospital in compliance with the court order and the insufficiency of the examination violated his Fourteenth Amendment right to due process. As the continuance for the examination came at Hufford’s request and the examination was in substantial compliance with the law, we find no merit in either point and affirm.

While on parole resulting from an Arkansas conviction, Hufford was arrested in Neosho, Missouri, September 28,1990. On October 1, 1990, he was transferred to Benton County as a suspect in several thefts there. On October 30, 1990, he was charged with several counts of burglary and theft. His parole was revoked, and between November and January he was transferred at least twice between the Benton County Jail and the Arkansas Department of Correction (ADC).

In January, while at the Benton County Jail, Hufford attempted suicide. On February 12, 1991, the Trial Court granted his motion for a mental evaluation. The order specified he be committed to the State Hospital in Little Rock for a period not to exceed 30 days. The next day, the Benton County Sheriff returned Mr. Hufford to the ADC.

Mr. Hufford was evaluated at the ADC by doctors from the Arkansas State Hospital on October 9, 1991, approximately seven and one-half months after the judge’s order. The evaluation concluded Hufford was capable of assisting in his defense. Hufford was granted a continuance on March 5,1992, until July 22,1992, so he could have additional time to prepare for trial. On July 23, 1992, he was convicted and sentenced.

1. Speedy trial

A defendant charged with an offense and incarcerated pursuant to a conviction for another offense shall be entitled to have the charge dismissed if not brought to trial within twelve months from the time the charge is filed or the time of arrest, whichever occurs first. Ark. R. Crim. P. 28.1(b) and 28.2(b). When a defendant is not brought to trial within this twelve-month period, the State has the burden of showing the delay was legally justified. Brawley v. State, 306 Ark. 609, 816 S.W.2d 598 (1991). Hufford contends the seven and one-half month mental examination delay was due to a lack of good faith and due diligence, and the State is to be charged with that time in calculating the speedy trial period.

The time necessary to complete a mental examination requested by a defendant is excluded from the twelve-month period in the speedy trial rule. Arkansas Rule of Criminal Procedure 28.3(a) states that the twelve month period excludes, “[t]he period of delay . . . including but not limited to an examination and hearing on the competency of the defendant and the period which he is incompetent to stand trial.”

The facts in the Brawley v. State, supra, case were similar to those in this case. The defendant’s mental examination was delayed for nine and three-quarters months. Brawley argued that time should not be excluded as he was not responsible for the delay. We stated “[t]he literal language of Rule 28.3(a) states simply that the period required by a competency examination is excluded. Brawley cites no authority for his assertion that the burden should shift back to the State, and we are not persuaded by his argument.” 306 Ark. at 613, 816 S.W.2d at 601.

2. Due process

Mr. Hufford next contends he was denied due process when the State failed to comply strictly with the Trial Court’s order committing him to the Arkansas State Hospital for evaluation. Although Hufford was not transferred to the State Hospital, he was examined by doctors from the State Hospital. We find this was substantial compliance with the order and with the examination requirements found in Ark. Code Ann. § 5-2-305(b) (Supp. 1991). See Brooks v. State, 308 Ark. 660, 827 S.W.2d 119 (1992).

Hufford also contends his evaluation was insufficient to determine his mental condition. The report to the Trial Court by the doctor conducting the examination stated that many tests could not be completed because of Mr. Hufford’s uncooperative and hostile behavior. Hufford presented nothing to show he was not responsible for the uncooperativeness and hostility described in the report. Under those circumstances, we do not know what more could have been done to comply with his request to be examined.

Affirmed.


author: Tom Glaze, Justice.

text:
    NATIONWIDE MUTUAL INSURANCE COMPANY v. Jeannie WORTHEY, Individually and as the Mother and Next Friend of Dustin Worthey, A Minor
    93-87
    861 S.W.2d 307
    Supreme Court of Arkansas
    Opinion delivered September 20, 1993

      Mixon & McCauley, for appellant.

      Henry, Walden & Halsey, for appellee.
   Tom Glaze, Justice.

Jeannie Worthey and her husband Kenneth obtained an automobile liability policy from Nationwide Mutual Insurance Co. on their two pickup trucks and Cadillac. The policy covered the Wortheys and their son Dustin, for all bodily injuries sustained by them and caused by an accident and arising out of another’s ownership, maintenance, or use of an uninsured automobile. The Wortheys also owned a 1975 Honda Trail 70 vehicle which they did not insure; it is that vehicle which is the center of this litigation.

In short, Dustin was operating the Trail 70 vehicle on a county road when an uninsured motorist ran into Dustin. Nationwide refused to pay for Dustin’s injuries, so Jeannie, as Dustin’s next friend, brought suit against Nationwide to recover under the uninsured motorist coverage of the Wortheys’ policy with Nationwide. The trial court awarded judgment against Nationwide from which Nationwide now appeals.

Nationwide argues that Dustin is excluded from the uninsured motorist coverage of Wortheys’ policy because the policy terms provide that “[I]t (the uninsured motorist coverage) does not apply to bodily injury suffered while occupying a motor vehicle owned by you or a relative living in your household, but not insured for Uninsured Motorists coverage under this policy.” Nationwide contends the Worthey Trail 70 vehicle was a motor vehicle and therefore excluded from coverage since the Wortheys owned the vehicle but failed to insure it for uninsured motorist coverage.

Worthey counters Nationwide’s contention by arguing the Trail 70 is not a motor vehicle. The trial court agreed with Worthey, and Worthey submits the evidence presented below clearly supports the trial court’s holding.

Both Worthey and Nationwide point to the policy which defines “motor vehicle” as follows:

[A] land motor vehicle designed to be driven on public roads. They do not include vehicles operated on rails or crawler-treads. Other motor vehicles designed for use mainly off public roads are covered when used on public roads.

In discussing the foregoing definition, Worthey cites cases and Arkansas statutes to support her position that the uninsured Trail 70 vehicle owned by the Wortheys and operated by Dustin was not a motor vehicle and therefore did not come within the uninsured motorist exclusion provision of Nationwide’s policy. For clarity sake, we first dispel any thought or suggestion that the Trail 70 vehicle is not a motor vehicle under state law. Second, we will consider if the language contained in Nationwide’s policy definition of motor vehicle permits or dictates a different result.

Under Arkansas Registration and Licensing laws, motor vehicle means every vehicle which is self-propelled and every vehicle which is propelled by electric power obtained from overhead trolley wires, but not operated upon rails. Ark. Code Ann. § 27-14-207 (Supp. 1991); see also Motor Vehicle Safety Responsibility Act, Ark. Code Ann. § 27-19-206 (1987) for the same definition. Obviously, a Trail 70 is self-propelled, and is further included within the statutory definition of a “motor-driven cycle,” which is a motor vehicle having a seat or saddle for use of the rider and designed to travel on no more than three wheels in contact with the ground and having a motor which displaces 250 cubic centimeters or less. Ark. Code Ann. § 27-20-101(2) (1987). It is also clear that when a motor-driven cycle (which by definition includes a Trail 70 motor vehicle) is operated on the streets and highways of Arkansas, that vehicle must be registered and licensed. Ark. Code Ann. § 27-20-105 (Supp. 1991). In addition, state law requires such a motor vehicle be equipped with standard equipment, including a headlight, tail light, red reflector, horn and standard muffler. Ark. Code Ann. § 27-20-104 (1987).

Here, the Wortheys knew their Trail 70 had a 70 cc engine, they allowed Dustin to ride the vehicle on public streets and knew the accident giving rise to this litigation had occurred on a public road. From the record before us, we have no doubt that, under state law at least, the Worthey Trail 70 vehicle was a motor vehicle (motor-driven cycle), and because it was used upon public streets, was subject to Arkansas’s registration and licensing laws. Thus, if statutory law alone controlled the terms or coverage of the Nationwide policy here, Dustin obviously could not recover since he was operating a Trail 70 motor vehicle when injured and the motor vehicle had not been insured by the Wortheys for uninsured motorists coverage. Having said this, however, does not resolve the issue concerning the Nationwide policy definition of motor vehicle — which differs from the one defined by statutory law — and whether that difference precludes Nationwide from using the uninsured motorist exclusion provision of its policy to deny Dustin damages. We believe it does.

As previously set out above, the Nationwide policy defines “motor vehicle” as a land motor vehicle designed to be driven on public roads. Because the policy definition limits “motor vehicle” to one “designed to be driven” (not merely used) on public roads, such a definition appears somewhat narrower than that contemplated by Arkansas’s statutory law. Thus, Worthey argues that, because she offered evidence below that the Trail 70 vehicle Dustin operated was designed and intended for use off the public road, such vehicle did not come within the policy definition of motor vehicle. This being so, she concludes the uninsured motorists coverage exclusion simply is inapplicable and cannot be used to prevent Dustin’s recovery for the damages he sustained.

In support of Worthey’s argument, she cites Carner v. Farmers Ins. Co. of Ark., 3 Ark. App. 201, 623 S.W.2d 859 (1981), which factually is similar to Worthey’s present situation. In Carner, the insurance automobile policy covered three cars owned by Carner, the insured, and it provided further that the named insured or relative could recover necessary medical service expenses for bodily injury sustained through being struck by a motor vehicle while not occupying any other motor vehicle. Carner’s son was riding on a friend’s motorcycle when the motorcycle was struck by a car, and in seeking medical expenses under the policies covering his three automobiles, Carner contended the motorcycle which his son rode was not a motor vehicle as defined by the policies issued on Carner’s automobiles. Carner pointed to the definition of motor vehicle contained in his policies which provided that the term means a land motor vehicle designed for use principally upon public roads. The court of appeals held that, in determining the character of the vehicle in issue, it must consider (1) the vehicle’s actual use, (2) the design and intended use by the manufacturer and (3) how it is commonly used. When considering Carner’s proof relative to these factors, the court rejected earner’s contention by finding the evidence was insufficient to show that the vehicle his son was riding was not a trail bike rather than a motorcycle. To the contrary, the court held that the record showed the vehicle was a motorcycle which by definition was a motor vehicle.

Worthey argues that, contrary to the insured’s failure of proof in Carner, she presented ample proof below that the Trail 70 vehicle was designed and intended for use off public roads. Based on that proof, the trial court here found that under the Nationwide policy terms, the Trail 70 was not a motor vehicle and such finding should be affirmed unless determined clearly erroneous.

If sufficiency of the evidence in this appeal proved the determinative issue, we might readily differ with Worthey’s view that the evidence bearing on the three factors noted in Carner require a finding that Worthey’s Trail 70 is. not a motor vehicle. While Worthey certainly offered evidence indicating that the Trail 70 was not designed and manufactured for use on public roads, considerable proof also showed that Dustin’s actual use of the vehicle was on public streets and roads. As to the third factor in Carner or how the Trail 70 was commonly used, we do not find the evidence or argument compelling on either party’s side of the issue.

The clear answer to whether the uninsured motorist coverage provision in Nationwide’s policy bars Worthey recovery is found in the third sentence of the policy definition of motor vehicle, and when reading it, in determining whether an ambiguity exists as a matter of law. It has been held that where a term is defined in the policy, the court is bound by the policy definition. Enterprise Tools, Inc. v. Export-Import Bank, 799 F.2d 437 (8th cir. 1986). It is also settled that an insurer may contract with its insured upon whatever terms the parties may agree upon which are not contrary to statute or public policy. Aetna Ins. Co. v. Smith, 263 Ark. 849, 568 S.W.2d 11 (1978).

Under Arkansas law, the intent to exclude coverage in an insurance policy should be expressed in clear and unambiguous language, and an insurance policy, having been drafted by the insurer without consultation with the insured, is to be interpreted and construed liberally in favor of the insured and strictly against the insurer. Baskette v. Union Life Ins. Co., 9 Ark. App. 34, 36, 652 S.W.2d 635, 637 (1983). If the language in a policy is ambiguous, or there is doubt or uncertainty as to its meaning and it is fairly susceptible of two or more interpretations, one favorable to the insured and the other favorable to the insurer, the one favorable to the insured will be adopted. Drummond Citizens Ins. Co. v. Sergeant, 266 Ark. 611, 620, 588 S.W.2d 419, 423 (1979).

Keeping in mind the foregoing rules, we direct our attention to the policy language contained in the third sentence following the policy definition of motor vehicle which reads, “other motor vehicles designed for use mainly off public roads are coveréd when used on public roads.” In reading this language in conjunction with the first sentence defining motor vehicle, it appears to say that even motor vehicles not designed to be driven on public roads are covered under the policy when the vehicle is used on public roads. Nationwide attempts to argue the reference to the word “covered” does not mean covered by the policy, but instead means the definition of motor vehicle covers an off-road vehicle when it is used on a public road. Nationwide’s explanation for the term “covered” in this context is somewhat puzzling. Significantly, we think, Nationwide offers no reason or purpose why such coverage language would be placed in the definition section of the policy, especially when the policy contains provisions which exclude physical damage, personal injuries and uninsured motorist coverage when such damages are sustained when occupying an insured’s off-road motor vehicle. Nevertheless, the language employed in the policy unquestionably lends itself to the reasonable interpretation we mentioned above, namely, that the policy provides coverage even when off-road motor vehicles are used on public roads. Because we hold an ambiguity exists in Nationwide’s policy, we must adopt the interpretation that favors the insured in these circumstances, and in doing so, hold Dustin’s injuries were covered under the Nationwide policy. Accordingly, we affirm the trial court’s decision and award favoring Worthey. While we recognize the trial court decided this case on a different theory, the court sustains a trial court’s ruling if it reached the right result. Bushong v. Garman Co., 311 Ark. 228, 843 S.W.2d 807 (1992).

In conclusion, we mention Nationwide’s second point for reversal wherein it argues the trial court erred in allowing into evidence a report from the Code of Federal Regulations which indicated that a mini-bike was not a motor vehicle under the terms or meaning of the National Traffic and Motor Vehicle Safety Act of 1966. Of course, this evidentiary point has no relevance on whether Nationwide’s policy contained an ambiguity. Whether an insurance contract is ambiguous is a question of law. Enterprise Tools, Inc., 799 F.2d 437. Thus, the federal report admission into evidence has no relevance to this case as decided on appeal and suffered no harm by its introduction below.

Affirmed.

Brown, J., concurs.

       We note that this court has held this type uninsured motorist exclusion is valid. See Crawford v. Emcasco Insurance Company, 294 Ark. 569, 745 S.W.2d 132 (1988); see also Ark. Code Ann. § 23-89-403 (1987).

       This definition does not include a motorized bicycle. See Ark. Code Ann. § 27-20-101(3).

       At one point, we hypothesized that perhaps the Nationwide policy would cover certain medical or physical damages when an insured’s off-road vehicle was struck by another’s insured vehicle even though the policy coverage would not extend to uninsured motorist coverage. This possibility was dismissed when examining other parts of the policy which appear to exclude all damages when sustained under such circumstances.


author: Donald L. Corbin, Justice. Tom Glaze, Justice, Robert H. Dudley, Justice, David Newbern, Justice,

text:
    William Bryant WARREN v. STATE of Arkansas
    CR 92-1053
    862 S.W.2d 222
    Supreme Court of Arkansas
    Opinion delivered September 20, 1993

      Gibbons Law Firm, P.A., by: David L. Gibbons, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant, William Bryant Warren, appeals a judgment of the Pope County Circuit Court convicting him of capital murder. Appellant was tried by a jury, found guilty, and sentenced to life in prison without parole. Our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a) (2).

On appeal, appellant raises four points for reversal.' We find no error in any of these points and affirm the trial court’s judgment of conviction.

I. Directed Verdict

Appellant’s first point on appeal is that the trial court erred in denying his motion for a directed verdict because the penetration of the victim’s vagina and rectum by a foreign instrument, which served as the basis for the underlying felony of rape, was also a contributing cause of the victim’s death. Therefore, appellant argues the proof does not support the underlying felony of rape and his conviction for capital murder pursuant to Ark. Code Ann. § 5-10-101 (a)(2) (Supp. 1991) must be reversed.

The Medical Examiner, Dr. Fahmy Malak, testified the victim died from a combination of injuries which included external injuries to the head, face, nose, lips, right breast, elbows, vagina and anus; trauma and fracture of the skull, with damage to the underlying brain; perforation, rupture and bruising of the vagina and perforation of the rectum which resulted in a connection between the vagina and the rectum and loss of about one pint of blood which was found in the pelvis. Additionally, there was evidence the victim was submerged in water. The Medical Examiner concluded the terminal event was drowning and the cause of death was multiple injuries. The Medical Examiner testified that all the wounds could have been caused by the same object, a circular object such as a shovel handle.

Appellant argues that since the penetrating wounds in the vagina and rectum of the victim were probably made by the same weapon as the wounds to the head and abdomen of the victim, the penetration of the vagina and the rectum was for the purpose of committing murder and not for the purpose of committing rape. Appellant argues, since the penetration of the vagina and anus of the victim caused injuries which contributed to the death of the victim, the penetration is used to support the charge of murder and cannot also be used to support the charge of rape.

In support of his argument, appellant cites cases holding an assault and battery, which caused the death, cannot be used as an underlying felony to support a capital murder charge and burglary cannot be used as an underlying felony to support a capital murder charge when the proof showed the murderer entered the occupied dwelling solely in order to kill those within and not for a separate purpose which would support the burglary charge. Sellers v. State, 295 Ark. 489, 749 S.W.2d 669 (1988); Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987), cert. denied, 111 S. Ct. 218 (1990). Unlike the cases appellant cites, penetration of the victim’s vagina and rectum was not necessarily committed with the same objective as the other blows to. the victims body. While the penetration of the victim’s vagina and rectum with a blunt object caused internal injuries that contributed to the victim’s death, the penetration of the victim’s vagina and rectum was not necessary to cause the victim’s death. An assault and battery is necessary to cause death; and burglary by entering into an occupiable structure is necessary in order to kill the person within. Strawhacker v. State, 304 Ark. 726, 804 S.W.2d 720 (1991). “Rape and first degree battery are separate and distinct crimes . . . with different elements of proof. And neither is a crime which can be subsumed under the other.” Strawhacker, 304 Ark. at 731, 804 S.W.2d at 723. Rape by deviate sexual activity, which was the underlying felony in this case, requires the penetration “of the vagina or anus of one person by any body member or foreign instrument manipulated by another person.” Ark. Code Ann. § 5-14-101(1)(B) (1987). Penetration of the vagina or anus of a person is not an act which is subsumed by the murder as the penetration is not necessary to cause the death.

II. Sexual Gratification

Appellant argues the trial court erred in denying his motion for a directed verdict because there was insufficient proof to support a finding that appellant committed the underlying felony of rape. Specifically, appellant argues the state failed to prove the penetration of the victim’s vagina and anus was done for the purpose of “sexual gratification” as required by Ark. Code Ann. § 5-14-103(a)(1) (1987). The state contends appellant’s argument was not preserved for appellate review because appellant did not specify the basis for his objection in the trial court. At the close of all the evidence, appellant moved for a directed verdict “based on the fact that there is no showing of a rape.” Appellant stated in his motion that the basis was the state’s failure to prove rape. This was sufficient to apprise the trial court appellant was arguing the state failed to prove the elements of rape. “Sexual gratification” is an element of rape. Therefore, appellant’s argument was preserved for appeal.

Appellant argues the state failed to prove the penetration of the victim’s vagina and anus was done for the purpose of “sexual gratification” as required under the statute. Ark. Code Ann. § 5-14-103(a)(1). Section 5-14-103(a)(1) provides in pertinent part:

A person commits rape if he engages in sexual intercourse or deviate sexual activity with another person:
By forcible compulsion[.]

“Deviate sexual activity” is defined in pertinent part as:

any act of sexual gratification involving:
The penetration, however slight, of the vagina or anus of one person by any body member or foreign instrument manipulated by another person[.]

Ark. Code Ann. § 5-14-101 (1)(B) (1987). “Sexual gratification” is not defined in the statute, but we have construed the words in accordance with their reasonable and commonly accepted meanings. McGalliard v. State, 306 Ark. 181, 813 S.W.2d 768 (1991).

We have held it is not necessary for the state to provide direct proof that an act is done for sexual gratification if it can be assumed that the desire for sexual gratification is a plausible reason for the act. McGalliard v. State, 306 Ark. 181, 813 S.W.2d 768; see also Holbert v. State, 308 Ark. 672, 826 S.W.2d 284 (1992). We have previously stated that “when persons, other than physicians or other persons for legitimate medical reasons, insert something in another person’s vagina or anus, it is not necessary that the state provide direct proof that the act was done for sexual gratification.” Williams v. State, 298 Ark. 317, 321, 766 S.W.2d 931, 934 (1989). Appellant argues that our interpretation of “sexual gratification” in this manner does not reflect the will of the legislature, which has never defined sexual gratification nor changed the definition of deviate sexual activity despite many opportunities to do so. The legislature has also had several opportunities to define sexual gratification since the Williams case was decided and has not chosen to do so. Therefore, following Williams, McGalliard and Holbert, the state had sufficient proof to support the charge of rape and the trial court did not err in denying appellant’s motion for a directed verdict.

III. Hearsay Statement

Appellant argues the trial court erred by excluding hearsay testimony from the victim’s father that the victim had told him she was dating a married man. Appellant contends the information solicited by his question falls under Ark. R. Evid. 804(b)(3) and should have been allowed. Ark. R. Evid. 804(b)(3) provides in pertinent part:

Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
Statement against interest. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability or to render invalid a claim by him against another or to make him an object of hatred, ridicule, or disgrace, that a reasonable man in his position would not have made the statement unless he believed it to be true.

Appellant argues that even today for a woman to admit she is dating a married man to another is to subject her to disgrace and ridicule and that a reasonable woman would not say she was dating a married man unless it was true. Appellant argues he was prejudiced by the trial court’s decision because he was unable to argue that the married man might have murdered the victim when she told him she thought she was pregnant.

We uphold the trial court’s ruling if it was correct for any reason. Chisum v. State, 273 Ark. 1, 616 S.W.2d 728 (1981). The state argues that the trial court’s ruling can be upheld because the question was beyond the scope of direct examination and was irrelevant. “The trial judge has considerable discretion in determining the scope of cross-examination” and we do not reverse absent an abuse of that discretion. Bennett v. State, 308 Ark. 393, 400, 825 S.W.2d 560, 564 (1992). Ark. R. Evid. 611 provides in pertinent part:

(b) Scope of Cross-Examination. Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.

The state only asked the victim’s father about his race, the race of his family and his daughter, the victim, during direct examination. Therefore, the question was outside the scope of direct examination as the state contends. It was within the trial court’s discretion to allow appellant’s question, but it was not error for the trial court to refuse to allow the question. Additionally, if appellant had wished to ask the question of the witness, appellant could have called the witness on direct and asked the question. However, appellant chose not to call any witnesses in his defense.

IV. Photographs

As his last point on appeal, appellant argues the trial court erred in admitting photographs of the victim’s autopsy over his objection. Appellant objected to nine photographs which were admitted over his objection. These photographs are reproduced in the appendix along with the photographs which were admitted and to which he did not object. However, in his argument appellant only specifically refers to three photographs which were introduced over his objection. Therefore, we will only address those photographs for which appellant presents an argument on appeal. They are: State’s Exhibit #56, State’s Exhibit #58, and State’s Exhibit #65.

Appellant claims there were sufficient pictures of the autopsy to which he did not object to show the cause of the victim’s death and it was error to admit the pictures to which he objected because the prejudicial effect of those photographs outweighed the probative value. “The question of prejudicial effect versus probative value is a matter addressed to the discretion of the trial judge, and on appeal” we do not reverse absent a manifest abuse of that discretion. Bennett v. State, 297 Ark. 115, 129, 759 S.W.2d 799, 807 (1988), cert. denied, 111 S. Ct. 144 (1990). The trial court admitted the photographs only after argument by counsel and review of the photographs during which the trial court determined that the photographs were not repetitious and were needed by Dr. Malak to explain his testimony. We have held that “even if photographs are inflammatory in the sense that they show human gore repulsive to the jurors, they are admissible within the discretion of the trial judge if they help the jury understand the testimony.” Richmond v. State, 302 Ark. 498, 503, 791 S.W.2d 691, 694-95 (1990). In this case we cannot say that the trial court abused its discretion. Richmond, 302 Ark. 498, 791 S.W.2d 691.

As to State’s Exhibit #56, appellant argues that it is simply a distant view of State’s Exhibit #55 to which appellant also objected. Dr. Malak’s testimony regarding State’s Exhibit #56 was as follows:

Exhibit 56 is a photograph of [the victim] as I received her. Exactly as she is I photographed the body. The photograph shows that she was wearing a short-sleeve pullover shirt, multi-colored. The shirt was above the breast area and it shows the foam coming from the nose. It is like shaving cream, if you like, around the — mushroom-like around the nose. This indicates that she was breathing air when she was placed in water. It shows also the damage — some damage to the face and the right side of the — of the head. It also indicates — there is a number 3-1-6. This is the case number to indicate this is [the victim], the one I did the autopsy upon.

As to State’s Exhibit #55, Dr. Malak testified as follows:

Exhibit No. 55 is a front view of [the victim] showing her face and also the number to indicate that this is [the] same body. The photograph shows a tear — t-e-a-r on the left eye about the angle of the eye, bruise of the eye, bruise of the nose, and the lips, as well as shows also damage to the right side of the head and also shows the pearl earring on the right side.

The foam around the victim’s nose referred to in State’s Exhibit #56 has been removed in State’s Exhibit #55. Clearly State’s Exhibit #56 was used by Dr. Malak and shows that the victim was breathing when she was placed in the water. Thus it was helpful to the doctor’s testimony and was not repetitive of State’s Exhibit #55. Appellant objected to the introduction of State’s Exhibits #58 & #65 because he contends they are repetitive of State’s Exhibits #59 & #64. The photographs are all essentially of the same view, but they are not identical. State’s Exhibit #59 is a view of the right side of the head before any blood has been cleaned from the face and before the foam has been cleaned from the nose. According to Dr. Malak’s testimony, State’s Exhibit #59 shows damage to the right temple, blood trickling toward the right ear, and foam around the nose. State’s Exhibit #64 is the same view of the right side of the head, but from slightly farther away and after the blood and foam have been cleaned from the face. According to Dr. Malak, the right side of the head was re-photographed after the blood and foam were cleaned up “to show the nature of the wound; to demonstrate exactly what the injuries are; and it shows also the damage to the nose and to the lips and to her right cheek.” Dr. Malak also testified he thought it was important that this photograph showed one pearl earring and a total of four pierced holes in the ear. State’s Exhibit #58 is a photograph of the right temple after Dr. Malak shaved the hair to show the wound and demonstrates that on the right side of the wound there is a circular wound and on the left side there is a tear extension. Dr. Malak testified that the nature of the wound “indicates the direction of — of the blow was coming from above down and to the right and the circular nature of the wound indicates a circular object has been used.” State’s Exhibit #65 is a close-up photograph of the wound to the right temple after the area has been cleaned and shaved which, according to Dr. Malak, shows the circular nature of the rounded object which had been thrust in the bone.

Thus, although the photographs are similar, each photograph was used by Dr. Malak during his testimony to show the nature of the victim’s wounds and were helpful to the jury. Therefore, the trial court did not err in allowing the photos to be admitted.

Under Ark. Sup. Ct. R. 4-3(h), the record has been reviewed concerning the rulings made against the appellant by the trial judge during the trial, and we find no error. For the reasons stated above, we affirm.

Glaze, J., concurs.

Holt, C.J., Dudley and Newbern, JJ., dissent.

Tom Glaze, Justice,

concurring. I join the majority opinion, but concur to its treatment of points one and three, and particularly address appellant’s third argument. In this respect, appellant sought to ask the victim’s father if the victim had previously stated she had been dating another man. Appellant argues such testimony was relevant because the victim had told appellant that she thought she was pregnant. Appellant states this would have allowed him to argue to the jury that when the victim left him, she went to meet this other married man, who, after being told that she thought she was pregnant, killed her. Nothing in the record supports such rank speculation. Certainly, the statement sought to be elicited offered no foundation for such an argument. In sum, the testimony proffered was wholly irrelevant, and the trial court properly excluded it.

Robert H. Dudley, Justice,

dissenting. The difficulty in this case is caused by the formal charge. The State charged appellant with capital felony-murder by killing the victim while “in the course of or furtherance of’ the crime of rape. Ark. Code Ann. § 5-10-101 (a)(1) (Supp. 1991). The State did not charge appellant with capital murder as the result of causing death with premeditation and deliberation. Ark. Code Ann. § 5-10-101 (a) (4) (Supp. 1991). Because of the charge filed the State had to prove the underlying felony of rape. There was insufficient evidence to prove that underlying felony, and, accordingly, I dissent from the affirmance of the conviction.

The State’s proof was exactly as set out in the majority opinion. Appellant killed the victim by beating her about the head, breasts, abdomen, elbows, vagina, and anus with a blunt circular object one and one-half inches in diameter, something like a shovel handle. At some time during the series of murderous blows, appellant penetrated the victim’s vagina and anus with the circular object. The wounds to the head and abdomen were also penetrating. The majority opinion holds this proof constituted sufficient evidence of rape by deviate sexual activity. I cannot agree.

Deviate sexual activity is “any act of sexual gratification involving the penetration... of the vagina or anus. . . by a. . . foreign instrument.” Ark. Code Ann. § 5-14-101 (1)(B) (1987) (emphasis added). It is necessary that the State prove the penetration of the vagina or anus was done for sexual gratification. McGalliard v. State, 306 Ark. 181, 813 S.W.2d 768. (1991). Such proof could have been by either direct or - circumstantial evidence. Here, there was no direct proof. The proof is wholly circumstantial, but the proof is that blows to the head, abdomen, vagina, and anus were all penetrating blows. The penetrating blows to the vagina and anus might have been inflicted for the purpose of sexual gratification, but it is just as likely that they were inflicted for the purpose of murder since all of the blows were administered in the same manner and with the same object.

Circumstantial evidence may be sufficient to constitute substantial evidence. Hooks v. State, 303 Ark. 236, 795 S.W.2d 56 (1990). However, for circumstantial evidence to constitute sufficient evidence to sustain a conviction, it must be consistent with guilt of the defendant, and inconsistent with any other reasonable conclusion. Gillie v. State, 305 Ark. 296, 808 S. W.2d 320 (1991). The circumstantial evidence of rape in this case in not inconsistent with another reasonable conclusion. Here, it is just as likely that appellant administered the penetrating blows for the purpose of murder as it is that he administered them for the purpose of sexual gratification. Accordingly, in conformity with our long-established case law, I would hold that the State did not offer sufficient circumstantial evidence to convict appellant of killing another while “in the course of or furtherance of’ the crime of rape.

I dissent.

Holt, C.J., joins in this dissent.

David Newbern, Justice,

dissenting. As the majority opinion states, one statutory definition of rape, as charged in this case, is “deviate sexual activity with another person ... by forcible compulsion.” “Deviate sexual activity” has been defined by the General Assembly as “any act of sexual gratification involving: [t]he penetration, however slight, of the vagina or anus of one person by any body member or foreign instrument manipulated by another person.” Thus, to prove rape in the circumstances of this case, it was necessary for the state to show that Warren penetrated the victim as an act of “sexual gratification.”

The Court’s opinion concludes, in effect, it is unnecessary that there be proof of sexual gratification, relying on our decisions in Williams v. State, 298 Ark. 317, 766 S.W.2d 931 (1989), McGalliard v. State, 306 Ark. 181, 813 S.W.2d 768 (1991), and Holbert v. State, 308 Ark. 672, 826 S.W.2d 284 (1992). I disagree.

In the Williams case, Williams sought post-conviction relief on the ground that his lawyer was ineffective. See Ark. R. Crim. P. 37. He argued his lawyer should have challenged the sufficiency of the evidence used to convict Williams of rape. The evidence against Williams was that, during an attack on a woman he had once dated, he had placed his fingers in her vagina. We explained that the issue in an appeal from a denial of post-conviction relief is whether there is any evidence, no matter how slight, to support the conviction. We made this statement:

The plain fact is that when persons, other than physicians or other persons for legitimate medical reasons, insert something in another person’s vagina or anus, it is not necessary that the state provide direct proof that the act was done for sexual gratification. [Emphasis supplied.]

In my view we were not saying that there need be no proof whatever, but that circumstantial evidence would suffice. As the General Assembly has made sexual gratification an element of the definition of the offense, of course we cannot disregard it. The State must prove each and every element of the offense beyond a reasonable doubt. To do otherwise would be a violation of the Due Process Clause of the Fourteenth Amendment. See Mullaney v. Wilbur, 421 U.S. 684 (1975); Patterson v. New York, 432 U.S. 197 (1911); Norton v. State, 271 Ark. 451, 609 S.W.2d 1 (1988).

In the McGalliard case, we were dealing with a conviction of first degree sexual abuse, Ark. Code Ann. § 5-14-108(a)(3)(1987), which also requires a finding of sexual gratification. We rejected McGalliard’s contention that the requirement of finding sexual gratification made the Statute vague. We pointed out the dictionary definition of “sexual” and that of “gratification” and said “[w]hen construed in accordance with their reasonable and commonly accepted meaning and with the specific acts described in section 5-14-101(8) [defining “sexual contact”], the words leave no doubt as to what behavior is prohibited under the statute.” We then dealt with McGalliard’s claim that the evidence was insufficient and found evidence of sexual gratification in the victim’s testimony that McGalliard had touched her “between my legs. . . (indicating) right there in the middle ... my private parts.”

In the Holbert case, we again reviewed a conviction of sexual abuse in the first degree. The events giving rise to the charge occurred at a day care center. Witnesses, who were some of the child victims, testified they observed Holbert holding other girls and touching them between their legs in a manner that was not accidental. In another instance a witness testified that Holbert had touched the victims in their “privates.”

In both the McGalliard and Holbert cases we cited the language quoted above from the Williams case for the proposition that there need be no direct evidence of sexual gratification, and that was correct. It is incorrect, however, to rely on it in this case in which there is no evidence whatever of sexual gratification. In all three of these earlier cases relied upon by the Court’s opinion there was strong evidence of physical touchings, not involving an instrument, which could easily have been perceived by the fact finders as done for sexual gratification as we defined it in the McGalliard decision. I find no such evidence here.

As long as the General Assembly defines rape by deviate sexual activity as including sexual gratification on the part of the perpetrator, however ill advised that may be, I cannot ignore the requirement and vote to affirm a conviction when there is no such evidence, direct or circumstantial.

I respectfully dissent.

Holt, C.J., joins this dissent.


author: Robert L. Brown, Justice.

text:
    Everett Lawrence KING v. STATE of Arkansas
    CR 93-266
    862 S.W.2d 229
    Supreme Court of Arkansas
    Opinion delivered September 20, 1993

      Huggins & Huggins, by: Joel O. Huggins, for appellant.

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

Appellant Everett King was found guilty of delivery of a controlled substance and possession of a controlled substance with intent to deliver. He was sentenced to 36 years in the Department of Correction. He appeals his conviction on two grounds: (1) the trial court erred in refusing to grant a motion to suppress evidence seized following a search of his home; and (2) the trial court abused its discretion by failing to grant a motion for continuance of the trial. Neither point has merit, and we affirm the convictions and sentences.

The facts are these. In December 1991, Jeffery Kragel, who later became a confidential informant, was arrested by the Fayetteville police for delivery of marijuana. Following the arrest, he agreed to cooperate with the Fayetteville police in making a drug buy in order to minimize problems for himself and his wife. He called the home of Everett King, spoke to him, and arranged to purchase one-quarter pound of marijuana. After Kragel completed the arrangements, the police searched Kragel and his car. Kragel was then given $500 of photocopied Drug Task Force funds and outfitted with a body mike. Detective Allen McCarty of the Fayetteville Police Department testified that Kragel was then kept under surveillance as he drove to a brown and white trailer in Sonora outside of Springdale. McCarty observed Kragel pull into the driveway and exit his car.

Kragel was met on the porch by an unidentified person, and the two entered the house. Detective McCarty testified that he heard the conversation inside by way of the body mike but admitted that parts of the conversation were inaudible. He testified that he overheard what appeared to be a drug transaction. McCarty stated that he and a companion officer, Scott McElveen, drove by the King residence as Kragel got into his car. They then followed Kragel a short distance away to Spe-Dee Mart where he stopped and turned over a quarter pound of marijuana to the officers. The officers then followed Kragel back to the Fayetteville Police Department where the body mike was removed. The police searched Kragel and his car and found no drugs or money.

The transcript of the tape resulting from conversations overheard by means of the Kragel body mike indicates that Kragel stated that he saw no other drugs in the King trailer. However, Kragel and McCarty testified at the hearing before the circuit court that Kragel told the officers at Spe-Dee Mart that he saw about 60 small-growing marijuana plants at the trailer. He also testified at the hearing that a woman named Charlotte and another man were present at the house as well as King. King, he stated, actually sold him the marijuana.

Based on this information Officer McElveen prepared a search warrant and affidavit in support of the warrant. At midnight, McElveen presented both documents to Springdale Municipal Court Judge Stanley W. Ludwig. Judge Ludwig signed the warrant for a nighttime search of the King trailer. The police executed the search warrant and found approximately five to seven pounds of marijuana, approximately sixty marijuana plants, and numerous items described as drug paraphernalia. Police also recovered a loaded 30/30 caliber rifle. King was arrested and charged with possession of a controlled substance with intent to deliver; manufacturing marijuana; delivery of a controlled substance; and felon in possession of a firearm.

A motion to suppress the evidence obtained pursuant to the search warrant was filed, and at the hearing before the circuit court Kragel, the participating officers, Judge Ludwig, and King’s wife testified. The circuit court denied the motion.

Following a jury trial, King was found guilty of delivery of a controlled substance and possession of a controlled substance with intent to deliver. He was acquitted of drug manufacturing and the firearm charge. He was sentenced to consecutive terms totalling thirty-six years.

I. SUPPRESSION

For his first argument, King challenges the sufficiency of the affidavit underlying the search warrant. Our standard of review for a denial of a motion to suppress evidence is well established. We make an independent examination based on the totality of the circumstances and reverse the circuit court’s decision only if it was clearly against the preponderance of the evidence. Watson v. State, 308 Ark. 643, 826 S.W.2d 281 (1992); Ryan v. State, 303 Ark. 595, 798 S.W.2d 679 (1990); Edwards v. State, 300 Ark. 4, 775 S.W.2d 900 (1989). On appeal we view the facts most favorably to the State as appellee. Holden v. State, 290 Ark. 458, 721 S.W.2d 614 (1986).

King’s argument for suppression is premised on his assertion that there were several statements contained in the underlying affidavit that were false and misleading. The alleged misstatements are these:

STATEMENT 1
On December 18, 1991, Detective McCarty was contacted by a confidential informant, who advised him that the resident of the aforementioned house, Everett King, had a quantity of marijuana for sale. [King argues that Kragel was arrested on a drug charge and agreed to cooperate only because of that.]
STATEMENT 2
At approximately 10:55p.m., the confidential informant met with Detective McCarty and Detective McElveen at the Fayetteville Police Department. [King disputes the word “met” because King was an involuntary informant.]
STATEMENT 3
Detectives McCarty and McElveen . . . overheard the confidential informant purchase approximately one quarter pound of marijuana from Everett King. [King argues that a precise marijuana buy could not be overheard since no mention of marijuana was made.]
STATEMENT 4
The confidential informant was then interviewed and indicated that he/she had observed approximately sixty seedling marijuana plants in the living room of King’s trailer. [King points out that on the tape Kragel said, “I didn’t see any other than what he gave me,” and that the plants were not found in the living room.]
STATEMENT 5
[The confidential informant] was kept under constant surveillance by Detectives Lovett and Owens .... [King says the surveillance was intermittent.]

King continues that under the Supreme Court decision of Franks v. Delaware, 438 U.S. 154 (1978), a hearing is required to be held on allegations of intentionally false statements, or statements made in reckless disregard of the truth, in the warrant affidavit. If falsity is established, then those items must be carved out of the affidavit, and the remainder of the information must suffice to establish probable cause.

The State takes issue with the appellant’s argument under Franks and vigorously contends that King did not follow the correct procedure under that decision. Specifically, the State argues that King never presented the circuit court with preliminary proof of material falsity, as was his burden, or requested the court to discard misstatements of fact and then determine whether probable cause to search remained. Because of these lapses by King, according to the State, a Franks argument is not preserved for appeal.

We do not agree with the State on this point. A hearing was held before the circuit court in which the informant, the municipal judge, and the police officers all testified. All were cross-examined by defense counsel on the accuracy of statements in the affidavit and search warrant. Certain errors were admitted. The circuit court concluded, however, after hearing the testimony that based on the four corners of the affidavit it would deny the suppression.

The circuit court was correct. Here, the transaction between the informant and King was a controlled buy, and the informant’s person and car. were searched before contact with King. The informant was watched arriving at King’s house and leaving King’s house. The body mike worn by the informant allowed the officers to overhear the conversation between the informant and the occupant of the house where reference to a quarter-pound was overheard. The informant was searched at Spe-Dee Mart after leaving the house, and marijuana was found. The informant identified King as the person who sold him the marijuana. The informant told the officers that he had observed approximately 60 marijuana plants at the King residence and restated this on cross examination at the hearing. The officers continued surveillance on the residence while in radio contact with the affiant, Officer McElveen, and assured the affiant that no one had left the trailer.

There is at least one factual discrepancy in the affidavit. Certainly the informant, Jeffery Kragel, cooperated with the Fayetteville police because of his arrest for delivery of marijuana and subsequently met with the police officers as part of that cooperation. However, we cannot conclude that the statements in the affidavit that the officers overheard a drug sale or that Kragel saw approximately 60 plants in King’s living room or that two officers kept Kragel under “constant” surveillance are intentional or reckless falsifications. Kragel told the officers about the 60 plants at the Spe-Dee Mart. The plants may have been in a room other than the living room and the surveillance may not have been continuous, but the statements made are substantially correct.

In sum, though a few inaccuracies may appear in the affidavit they are relatively minor when viewed in the context of the totality of the circumstances, including the affidavit taken as a whole and the weight of the testimony of the participants who procured and executed the search warrant. This is essentially what the circuit court found when it concluded that the affidavit “was sufficient in its four corners.” There was no error in the circuit court’s refusal to suppress the evidence seized.

II. CONTINUANCE

For his second point, King urges that the circuit court erred by failing to grant his motion for a two-week continuance based on lack of time to prepare.

Motions for a continuance are governed by Arkansas Rule of Criminal Procedure 27.3 which provides: It is well settled that a motion for a continuance is addressed to the sound discretion of the trial judge, and a decision will not be reversed absent an abuse of discretion amounting to a denial of justice. Gonzales v. State, 303 Ark. 537, 798 S.W.2d 101 (1990); Butler v. State, 303 Ark. 380, 797 S.W.2d 435 (1990). The appellant bears the burden of proving that the circuit court’s denial of a continuance was an abuse of discretion, and that burden entails a showing of prejudice. Rodriguez v. State, 299 Ark. 421, 773 S.W.2d 821 (1989); David v. State, 295 Ark. 131, 748 S.W.2d 117 (1988).

Rule 27.3. Continuances. The court shall grant a continuance only upon a showing of good cause and only for so long as is necessary, taking into account not only the request or consent of the prosecuting attorney or defense counsel, but also the public interest in prompt disposition of the case.

King filed his motion on August 12,1992 — the day of the trial — though he had mentioned it to the court two days earlier and requested a two-week continuance to prepare further for trial. In his motion and argument he noted that he was represented by his first attorney, Barry Watkins, until June 1, 1992, and that his second attorney, Joel Huggins, was appointed. King maintained that he needed additional time to meet with his second attorney to prepare and alluded to the fact that he was incarcerated in Calico Rock some distance away and was not available to meet with his attorney until Saturday, August 8, 1992, when he was returned to Washington County by the Sheriff.

In deciding this matter, the circuit court observed that appellant’s return to Washington County on August 8 gave counsel the weekend to discuss a defense with King. The court then added: “And it’s obvious to the Court from your pleadings that you’re thoroughly familiar with the case, that you have it in hand, and I frankly can’t see any reason to continue the case, unless you want to give me some more meat to your motion.” In this regard, we note that Huggins advised the circuit court at the hearing that he met with King twice on June 3.

Defense counsel argues on appeal, as he did before the circuit court, that he needed additional time to prepare because his defense had changed. He added that he needed to subpoena an additional witness, Charlotte Guthrie, who he asserted was present at the drug sale. In rejecting this argument, the circuit court stated that defense counsel had known of Ms. Guthrie for some time and that her identity had not just come to light. To accommodate King and his counsel, however, the court issued a forthwith subpoena for Ms. Guthrie.

For that facet of his continuance argument relating to an absent witness, King failed to meet the statutory requirement. See Ark. Code Ann. § 16-63-402 (1987). That statute requires that a motion for continuance due to an absent witness be accompanied by an affidavit showing what facts the affiant believes the witness will prove, that the affiant believes them to be true, and that the witness is not absent by the consent, connivance, or procurement of the party asking for the postponement. No affidavit as required by § 16-63-402 accompanied King’s motion.

Finally, King has failed to show how he was prejudiced by the denial of his motion. Rodriguez v. State, supra. The circuit court was entirely correct in its ruling.

Affirmed.