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

text:
    A.B. ALLEN v. STATE of Arkansas
    CR 96-1099
    939 S.W.2d 270
    Supreme Court of Arkansas
    Opinion delivered February 17, 1997
    [Supplemental Opinion on Denial of Rehearing delivered March 17, 1997.]

      John Wesley Hall, Jr., for appellant.

      Winston Bryant, Att’y Gen., by: O. Milton Fine II, Asst. Att’y Gen., for appellee.

       Glaze, J., concurs. Newbern, J., dissents.

   Ray Thornton, Justice.

The Mayor of the City of Gould, appellant A.B. Allen, was charged with two counts of “prohibited actions by a municipal official” under the provisions of Arkansas Code Annotated § 14-42-108(a)(l) and (b)(1) in that he: (1) received municipal services from the City without paying for such services at the same rate and in the same manner that the general public pays for such services, and (2) furnished persons within the City water service without requiring payment at the regular rates and in the usual manner. Upon conviction, appellant was fined $50.00 on each count. Pursuant to § 14-42-108(c)(2), the trial court removed him from the Gould mayoralty. On appeal, the appellant contends that the evidence was insufficient to convict him, and that the provision removing him from office and making him ineligible to hold municipal office denies him equal protection of the law. We affirm the convictions, and also the removal from office and ineligibility to hold office, which resulted from the convictions.

Count I:

The first count against the appellant was brought under Ark. Code Ann. § 14-42-108, which provides:

It shall be unlawful for any official or employee of any municipal corporation of this state to receive or accept any water, gas, electric current, or other article or service from the municipal corporation, or any public utility operating therein, without paying for it at the same rate and in the same manner that the general public in the municipal corporation pays therefor.

Id. § 14-42-108(a)(l).

Ms. Sherry Taylor testified at trial that during 1994 she was the Water and Sewer Clerk, handling both billing and deposits. She testified that water customers living in the City who were connected to the sewer system were required to pay the minimum water bill, and the minimum sewer bill. If a customer used no water, that customer would receive a minimum bill ($7.00) for water and a minimum bill ($10.50) for sewer, plus a $5.00 charge for sanitation. She stated that the exception to this rule was for people outside the city limits. Arkansas State Police Sergeant Gary Allen conducted an investigation of the allegations, and he testified that there were individuals outside the Gould city limits who were paying only for water, but they were not hooked up to the Gould sewage system. From the evidence, it appears that members of the general public in Gould who were connected to the sewer system were required to pay for sewer and sanitation service in order to obtain water service.

Robert Stephens, a 1994 member of the Gould City Council, testified a person living in Gould and connected to the sewer system would have a minimum bill of $10.94 each month for sewer services and $7.00 for water services. Stephens further testified that as a water commissioner, he was aware of only one person who did not pay the sewer minimum, despite being hooked up to the sewage system and the water system, and identified that person as appellant, who was not paying the sewer minimum.

Appellant testified that he and his wife owned a store in Gould and that water has always been hooked up to the store, but that he stopped paying for the sewer service to the store when it closed in August or September of 1992. This was confirmed by Ms. Taylor’s testimony that appellant had told her that since the store was closed, to leave the water charge on the bill but to take the sewer charge off. During her direct examination in the trial, Ms. Taylor responded as follows to a question whether this was the right thing to do: “Well, I understood that if you stayed within the city fimits and you were connected to sewer, you were required to pay a sewer bill.” The testimony that appellant gave the order to remove his store from the billing requirement for sewer service without disconnecting the store from the sewer fine is evidence that he used his office to obtain preferential treatment not available to the general public.

In reviewing the sufficiency of the evidence, we will affirm if there is any substantial evidence to support the verdict. Wilson v. State, 320 Ark. 707, 709, 898 S.W.2d 469, 470 (1996). The evidence, whether direct or circumstantial, must be of sufficient force that it will, with reasonable and material certainty and precision, compel a conclusion one way or another. Kilpatrick v. State, 322 Ark. 728, 733, 912 S.W.2d 917, 920 (1995). This court does not attempt to weigh the evidence or pass on the credibility of witnesses. That duty is left to the trier of fact. Mann v. State, 291 Ark. 4, 7-8, 722 S.W.2d 266, 268 (1987). The jury is free to believe the testimony of the State’s witnesses and to discount that of appellant and his witnesses. Jones v. State, 326 Ark. 61, 64, 931 S.W.2d 83, 85 (1996).

We find sufficient evidence to support the guilty verdict on the first charge of receiving services without paying at the same rate and in the same manner as the general public.

Count II:

The second count was brought under Ark. Code Ann. § 14-42-108 which provides:

It shall be unlawful for any city official or employee of any municipal corporation in this state to furnish or give to any person, concerns, or corporations any property belonging to the municipal corporation, unless payment is made therefor to the municipal corporation at the usual and regular rates, and in the usual manner, except as provided in subsection (a) of this section.

Id. § 14-42-108(b)(l).

Appellant was charged with violations of this statute for his actions in adjusting bills of persons using water and sewer services. The appellant does not admit making all of the adjustments reflected in the testimony of Ms. Taylor, Officer Allen, or Mr. Stephens, and contends that the adjustments were made to offset faulty meters or leaky water fines. In considering the appeal on the issue of insufficient evidence, we look at the record to determine whether there is substantial evidence.

A procedure for reviewing consumer complaints about bills for services was established by Gould City Ordinance No. 081793, which provides that any user who believes his user charge is unjust and inequitable may make written application to the Gould City Council requesting review of his user charge. The ordinance further provides authority for the City Council to recompute user charges and make them applicable to the next bill. There is no indication that this procedure was used to adjust bills, although Ms. Taylor does indicate that one system-wide reduction of bills ordered by the appellant in July of 1994 had been approved by the City Council. There was no Council approval of the earlier adjustments made in response to user complaints during the month of February. Ms. Taylor testified that she could not remember how many bills were reduced at that time, but she read her note on the last page of the printout that “Adjustments was [ sic] made on all customers, authority per Mayor Allen, with late charges taken off, minimums on past due and current bills will remain the same.” She then indicated that she had signed her name to this note. Ms. Taylor further testified that she documented other adjustments ordered by appellant by noting on the back of the bill stubs “per Mayor Allen.” She identified the bill stubs in a booklet as reflecting adjustment in bills ordered by appellant, and said that she had documented the number of bills actually adjusted during 1994, but left the documentation behind when she was transferred to the police department. When responding to the question, “[D]id you talk to the mayor about those adjustments [during the period of time these adjustments were made]?”, Ms. Taylor replied: “I have — I remember telling him one time that if the meter was read correctly, and I think I told him that I thought that they should be billed for whatever the amount was.” Ms. Taylor also testified that appellant instructed her not to send out bills on election day.

Sergeant Gary Allen testified that the prosecuting attorney directed him to investigate a complaint by a citizen’s group that appellant was not paying for water and sewer at the regular rates and that appellant, without authority to do so, was adjusting or dismissing payments due by others on their water and sewer bills. Officer Allen testified that he pulled several bills for examination and found nine bills from the month of September, October, and November that showed adjustments to lower the bills. On cross-examination, the following exchange occurred:

Q: Mr. Allen was elected the last of November of ‘94, was he not?
A: I believe that is correct.
Q: And these issues came up during election, did they not?
A: They was . . . yes, sir, it was during that period of time.
That was the-the gist of the complaint, that the water bills were being adjusted in exchange for votes.

Mr. Stephens testified that he had reviewed the documents presented in evidence, and had prepared a fist of some of the water bills which had been reduced. This fist was received into evidence as State’s Exhibit 5. The names on the fist were drawn from bill stubs which had been marked by Ms. Taylor as being reduced by the mayor. Exhibit 5 disclosed twelve accounts that were reduced between August 31, 1994, and October 31, 1994. Of the twelve accounts, eight bills ranging from $78.70 down to $45.83 were reduced to bills for minimum usage (approximately $23.75). The remaining four accounts, reflecting bills ranging from $171.33 to $76.60, were adjusted by a total reduction of $260.62, with an aggregate reduction for all twelve accounts of $549.18.

We find that there is sufficient evidence to sustain a conviction on the second charge.

Removal From Office:

We turn to the issue whether the removal from office and the ineligibility to thereafter hold municipal office, which resulted from the conviction, denied to appellant the equal protection of the laws. Arkansas Code Annotated § 14-42-108 provides as follows:

Conviction shall ipso facto remove the official or employee from the municipal office or position held by him and shall render him ineligible to thereafter hold any office or position under, or in connection with, the municipal corporation.

Id. § 14-42-108(c)(2).

A similar provision applicable to all public offices in the state is found in art. V, § 9 of the Arkansas Constitution, which renders an official found guilty of an “infamous crime” ineligible for holding office in perpetuity.

Appellant contends that the provisions for removal and ineligibility established for municipal officers are unconstitutional because they deny to appellant the equal protection of the laws in that county officials are not subject to the same provisions. To meet his burden, appellant must show that the disparate statutory treatment of county and city officers is arbitrary and capricious and is completely devoid of any legitimate purpose. Reed v. Glover, 319 Ark. 16, 22, 889 S.W.2d 729, 732 (1994).

In determining whether a statute is an unconstitutional denial of equal protection, we are guided by well-established principles. If there is any basis for a classification, it will be upheld in the face of an equal protection challenge. Cook v. State, 321 Ark. 641, 648, 906 S.W.2d 681, 685 (1995). If the court finds that the act is rationally related to any legitimate objective of state government under any reasonably conceivable state of facts, the statute will be upheld. Id. Upon review, this court merely considers “whether any rational basis exists which demonstrates the possibility of a deliberate nexus with state objectives, so that the legislation is not the product of utterly arbitrary and capricious government purpose and void of any hint of deliberate and lawful purpose.” Id. (citing Reed v. Glover, 319 Ark. 16, 889 S.W.2d 729 (1994)).

In reviewing the constitutionality of a statute, we presume that the statute is constitutional, and the party challenging the constitutionality has the burden of proving otherwise. We resolve all doubts in favor of constitutionality. Misskelley v. State, 323 Ark. 449, 470, 915 S.W.2d 702, 713 (1996), cert. denied, 117 S.Ct. 246 (U.S. 1996); 117 S.Ct. 246 (1996); Reed v. Glover, 319 Ark. at 21, 889 S.W.2d at 731.

In considering the effect of provisions limiting access to public office, we first examine the issue of what combination of rights, privileges, duties, and' responsibilities are included in holding office.

Long ago this court considered this issue in holding that the Governor was not required to issue a commission to the person receiving the largest number of votes for sheriff, when that person was in violation of provisions relating to the accountability for public funds. Taylor v. The Governor, 1 Ark. (1 Pike) 21 (1837). In Taylor, we stated:

The applicant has neither been dispossessed of his freehold nor in any manner deprived of his rights, privileges, or property, nor has he been denied the law of the land or judgment of his PEERS, or the freedom or eqúality of elections. All these privileges he possesses in as ample a manner and in as full a degree as any other citizen. The constitution simply withholds from him public trust which depended upon his own volition or will, provided he complied with the condition annexed to the office.

Id. at 27.

Holding public office is a political privilege and not a civil right. State ex rel. Attorney General v. Irby, 190 Ark. 786, 795, 81 S.W.2d 419, 422 (1935). In Irby, we considered whether a convicted felon who had received a foil and complete Presidential pardon should thereafter be eligible to hold an office of trust or profit, and stated:

To hold that these safeguards and restrictions as they appear in our Constitution were promulgated as a punishment against the banished class cannot be justified by interpretation. Such was neither the intent nor the purpose of the framers of our Constitution. The clear and unmistakable intent and purpose was to safeguard the welfare of the State against invasions as is now thrust upon it. Evidently it was the paramount thought that one who had been convicted for embezzling public funds should not again be trusted with their use, and we are unwilling to admit lack of wisdom in the framers of our Constitution in this regard.

Id., 81 S.W.2d at 423. The court deferred to the intent of the framers in protecting the public against violations of the public trust, and it found that the provisions barring the official from holding public office were safeguards rather than punishments and did not violate any constitutional right. Id. at 794-95, 81 S.W.2d at 422-23. The court stated that ineligibility to hold office did not deny the county official’s rights or personal liberty, but instead withheld an honorable privilege. Id. at 796, 81 S.W.2d at 423.

Based on these principles, we note that the statute excluding appellant from holding office in the municipality is not punitive in nature, but only restricts appellant’s privilege of holding municipal office to protect the public from a recurrence of the abuses which led to the convictions.

With the privilege of holding public office come certain responsibilities and power unique to the specific office. A public office is a public trust, and funds officially received are trust funds. Brewer v. Hawkins, 248 Ark. 1325, 1328, 455 S.W.2d 864, 866 (1970). By statute, city officials are given “unlimited authority” to “manage, operate, improve, extend, and maintain” municipal waterworks. Ark. Code Ann. § 14-234-306(a) (1987). The convictions that led to appellant’s removal involved an abuse of power that the public specifically entrusted to municipal officials. There is a nexus between the grant of power and the protection provided to the public. We find that coupling an extraordinary statutory grant of power to a municipal officer with a provision of ineligibility to hold office if that power is abused is rationally related to a legitimate state purpose.

We hold that the provision excluding appellant from holding office again in the same city is not unconstitutional.

Affirmed.

Newbern, J., dissents.

David Newbern, Justice,

dissenting. For over 150 years, we have heeded the principle that criminal statutes are to be construed strictly. As we said in Hughes v. State, 6 Ark. 131, 134 (1845), this principle of statutory construction “is founded alike upon policy as well as humanity, designed for the protection of the citizen, unless he is clearly charged, and proven guilty, of a violation of a positive enactment of law.” In Weber v. State, 250 Ark. 566, 570, 466 S.W.2d 257, 260 (1971), we said that “[i]t is so firmly established as to need no citation of authority that criminal statutes are strictly construed,” and we said that application of this principle requires that “nothing ... be added or taken away from the precise or express language” of a statute.

More recently, we wrote that, “[o]n appellate review, we stricdy construe criminal statutes, resolving any doubts in favor of the defendant,” Graham v. State, 314 Ark. 152, 157, 861 S.W.2d 299, 302 (1993), and taking “nothing ... as intended which is not clearly expressed.” Hales v. State, 299 Ark. 93, 94, 771 S.W.2d 285, 286 (1989) (citation and internal quotation marks omitted). See also United States v. Resnick, 299 U.S. 207, 209 (1936) (“Statutes creating crimes are to be strictly construed in favor of the accused; they may not be held to extend to cases not covered by the words used.”).

The majority opinion violates this “cardinal rule of construction of criminal statutes.” Hales, supra. Given the language of Ark. Code Ann. §§ 14-42-108(a)(l) and (b)(1) (1987) and our duty to construe that language strictly, it is impossible to conclude that Mr. Allen committed the actus reus, or “the guilty act,” of the offenses contained in these provisions.

1. Count 1

The majority correctly identifies the standard by which we must determine whether the evidence was sufficient to support the conviction under § 14-42-108(a)(l). We will affirm a guilty verdict if it is supported by substantial evidence, which, as we have said, is evidence that would permit the jury to reach its conclusion “without resorting to speculation or conjecture.” Echols v. State, 326 Ark. 917, 938, 936 S.W.2d 509 (1996).

The State, however, was required to prove that Mr. Allen

(1) received or accepted any water, gas, electric current, or other article or service from the municipal corporation, or any public utility operating therein,
(2) without paying for it at the same rate and in the same manner that the general public in the municipal corporation pays therefor.

a. The “received or accepted” element

Although the evidence clearly shows that Mr. Allen did not pay for sewer or sanitation services, where is the evidence that he “received or accepted” those particular services? The terms of § 14-42-108(a)(l) do not impose criminal liability on an individual for paying for a particular service at a different rate or in a different manner unless there is proof that the individual is first receiving or accepting that particular service.

The State proved only that Mr. Allen “received or accepted” the water service, and no one disputes that he paid the monthly minimum charge for that particular service. There is no proof, however, that he “received or accepted” any service for which he did not make payment. Not a single witness testified that he (1) drew from a faucet any water that had been treated or purified in the sewer system; (2) contributed wastewater to the sewer system for purification or other treatment; (3) generated garbage for collection by sanitation personnel; or (4) otherwise received or accepted any form of sewer and sanitation services. In sum, there was no evidence that he committed the “wrongful deed which renders the actor criminally liable” under § 14-42-108(a)(l), Black’s Law Dictionary 36 (6th ed. 1990), and his conviction should therefore be reversed.

If it is the view of the majority that the conviction is supported by the showing that Mr. Allen received water service without paying for sewer and sanitation services, the statute is being badly misconstrued. The proscribed conduct is receiving or accepting a particular municipal service without paying for it at the same rate and in the same manner that the general public pays for that particular service. If an individual does not receive or accept that particular service, and he therefore does not pay for it, he does not become criminally liable under the terms of § 14-42-108(a)(l) by receiving or accepting an entirely different service for which payment is made in the usual manner.

If it is the position of the majority that Mr. Allen committed the offense by maintaining a connection to the sewer system and failing to pay the minimum sewer fee, the majority again fails in its construction of the statute. While Mr. Allen, by receiving the water service and by maintaining a connection to the sewer system, had the means of receiving or accepting sewer services for which he had not made payment, that is not proscribed by the statute.

It is conceivable that the Mr. Allen might, one day, consume water treated in the sewer system or contribute wastewater to the sewer system for treatment. In fact, he indicated that he had retained water services at his store so that he could periodically flush out the building’s pipes in order to keep them from rusting. If there were any evidence whatever that he had acted upon that intention, that would constitute evidence that he was in violation of the statute unless he paid for the sewer service at the same rate and in the same manner as everyone else. There is no such evidence.

Section 14-42-108(a)(1) requires proof of actual receipt or acceptance of a particular service. Proof that Mr. Allen had the means of receiving or accepting a particular service or that he intended to receive or accept it does not suffice to sustain a conviction under this statute. “One basic premise of Anglo-American criminal law is that no crime can be committed by bad thoughts alone. Something in the way of an act, or of an omission to act where there is a legal duty to act, is required too.” LeFave & Scott, Criminal Law § 3.2, at p. 196 (2d ed. 1986). There simply was no evidence that Mr. Allen acted so as to utilize his sewer connection or his water service to receive or accept sewer service.

Acknowledging that “a penal statute must not be construed so strictly as to defeat the obvious intent of the legislature,” Thomas v. State, 315 Ark. 79, 80, 864 S.W.2d 835, 836 (1993), there can be no question that the General Assembly only intended to punish municipal officials for receiving or accepting a municipal service without paying for it at the same rate and in the same manner as the general public pays for the service. There is no other way to construe this provision. Because the State did not satisfy this critical element of the offense, the conviction under § 14-42-108(a)(l) should be reversed.

b. The “paying ... at the same rate and in the same manner” element

Reversal is also required on account of the State’s failure to produce substantial evidence that Mr. Allen paid for municipal services in a manner contrary to the general public’s manner of paying for them. Under § 14-42-108(a)(l), the State was obligated to show that Mr. Allen failed to pay for received or accepted services “at the same rate and in the same manner” as the general public pays for such services.

According to the majority, the testimony of Sherry Taylor and Robert Stephens was sufficient to prove that Mr. Allen “used his office to obtain preferential treatment not available to the general public.” They testified that, in their opinion, any customer who resided within the city limits of Gould and was connected to the sewer system was required to pay the minimum sewer fee. The testimony cited by the majority suggests that Mr. Allen was the only person in the City who received water service and was connected to the sewer system who did not pay a minimum sewer fee.

To the contrary, the testimony of Ms. Taylor and Mr. Stephens is not substantial evidence that Mr. Allen’s manner of paying for municipal services and the rate at which he paid for services were contrary to those of the general public. Each witness, through his or her work in city government, was familiar with the billing procedures of the water department, and each testified that members of the “general public” who reside within the city limits and are connected to the sewer system typically pay a minimum sewer fee. But neither Ms. Taylor nor Mr. Stephens testified that it is unusual for members of the “general public” who do not “receive or accept” a particular service to be excused from paying the minimum fee for that service. Moreover, Ms. Taylor conceded on cross-examination that “[a] lot of people” within the city limits paid only the minimum water charge and were excused from paying the other minimum charges. In light of Ms. Taylor’s testimony, Mr. Allen’s manner of payment appears consistent with that of the general public.

More important, a Gould ordinance establishes that the manner in which Mr. Allen paid for municipal services was perfecdy consistent with the manner in which the general public was allowed to make payments. The ordinance provided for the assessment of sewer fees on “all users who contribute wastewater to the City of Gould treatment works.” By the terms of the ordinance, no sewer fee was required of a customer unless (1) he was a user of the sewer service; and (2) he contributed wastewater to the City’s sewer system.

Under the law of the City of Gould, then, it was entirely permissible for a person who did not use, or contribute waste-water to, the sewer system to avoid paying a sewer fee. The State did not show that Mr. Allen qualified as a “user” of the sewer system or a “contributor of wastewater.” The ordinance establishes that Mr. Allen’s manner of payment comported with the manner of payment for municipal services prescribed by the “general public” of Gould.

As the ordinance was applicable to all citizens of Gould, the majority is wrong to say that Mr. Allen’s manner of payment constituted “preferential treatment not available to the general public.” Clearly, any Gould citizen who did not use, or contribute wastewater to, the city sewer system could avoid payment of any sewer fee by operation of this ordinance.

2. Count 2

In order to affirm Mr. Allen’s conviction under § 14-42-108(b)(1), we must be able to conclude there is substantial evidence that Mr. Allen furnished or gave municipal services to other customers without requiring them to pay “the usual and regular rates ... in the usual manner.” According to the majority opinion, violation of that statute was shown by testimony that Mr. Allen adjusted the water bills of certain citizens who used the city’s water and sewer services.

There is no question that Mr. Allen made the adjustments mentioned in the majority opinion, but there is no proof whatsoever that he, in making these adjustments, permitted the customers to receive services without paying “the usual and regular rates ... in the usual manner.” The evidence showed that Mr. Allen, who was serving as the head of the water department, in addition to being Mayor, received numerous complaints from customers about the amount of their water bills. Some of the customers had faulty meters or leaky water lines. Mr. Allen determined that the increase in charges was the result of error on the City’s part, and he adjusted the bills.

What part of § 14-42-108(b)(l) prohibits a mayor, who is doubling as the head of the water department, from responding to allegations of erroneous biffing procedures by adjusting the water bills of the complaining citizens? The majority suggests that Mr. Allen lacked authority to adjust any customer’s bill without the approval of the City Council, and it mentions a city ordinance that permitted, but did not require, citizens to air their grievances before the City Council. What the majority overlooks is that the ordinance did not purport to establish an exclusive procedure for hearing customers’ complaints, and it did not divest Mr. Allen of his authority, especially that arising from his role as head of the' water department, to respond to customers’ complaints by adjusting their bills. Again, the principle of strict construction falls by the wayside.

The manner in which customers were permitted to pay for municipal services was not shown to be contrary to the manner in which those members of the “general public” who have complained about erroneous billing practices have paid for such services. Not a single witness testified that a customer with similar grievances would be treated any differently than the customers who received adjustments from Mr. Allen. There simply was no evidence on the question of how customers who, in general, complain about overbilling go about paying for water services. That kind of evidence was necessary in order to show that Mr. Allen treated the complaining customers in this case better or differently from any other similarly situated customer. We do not have such evidence in the record, and therefore the conviction on this count should also be reversed.

As the convictions on both counts should be reversed, there is no need to address Mr. Allen’s claim that he was denied equal protection of the law in the application of Ark. Code Ann. § 14-42-108(c)(2) and Ark. Const, art. 5, § 9, to remove him from his office because of the convictions.

I respectfully dissent.

March 17, 1997

John Wesley Hall, Jr., for appellant.

Winston Bryant, Att’y Gen., by: O. Milton Fine II, Asst. Att’y Gen., for appellee.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

CR 96-1099

939 S.W.2d 270

Supplemental Opinion Denying Motion for Rehearing.

Ray Thornton, Justice.

In his petition for rehearing, Mr. Allen contends that we failed to address his argument that the statute before us did not afford him the equal protection of the laws because county officials were not subject to its provisions. County officials are not covered by Ark. Code Ann. § 14-42-108; however, neither are most municipal' officials nor any state officials covered by the provisions of the statute. In response to Mr. Allen’s argument, we pointed out the following in our opinion: .

To meet his burden, appellant must show that the disparate statutory treatment of county and city officers is arbitrary and capricious and is completely devoid of any legitimate purpose. Reed v. Glover, 319 Ark. 16, 22, 889 S.W.2d 729, 732 (1994).

Allen v. State, 327 Ark. 350, 939 S.W.2d 270 (1997). Mr. Allen’s argument is answered by the next few paragraphs of our decision.

There, we clearly point out that the classification accomplished by the statute must be rationally related to a legitimate objective, and that there must be a nexus with those state objectives so that the “legislation is not the product of utterly arbitrary and capricious government purpose and void of any hint of deliberate and lawful purpose.” Id. at 358, 939 S.W.2d at 274 (quoting Cook p. State, 321 Ark. 641, 648, 906 S.W.2d 681, 685 (1995)). We then found that with the privilege of holding certain offices comes unique statutory responsibilities and power, and Mr. Allen’s convictions reflected an abuse of trust that triggered the statutory exclusion from eligibility to hold municipal office in order to protect “the public from a recurrence of the abuses which led to the convictions.”

Like county officials, municipal officials in cities that do not operate utility services are not covered by the statutory architecture that Mr. Allen challenges. Our decision carefully considered the constitutional challenge of disparate treatment, and concluded as follows:

The convictions that led to appellant’s removal involved an abuse of power that the public specifically entrusted to [some] municipal officials. There is a nexus between the grant of power and the protection provided to the public. We find that coupling an extraordinary statutory grant of power to a municipal officer with a provision of ineligibility to hold office if that power is abused is rationally related to a legitimate state purpose.

Id. at 360, 939 S.W.2d at 275.

It was clear that the statute did not apply to all municipal officers, to county officers, or to officers of the state; however, we fully and completely addressed the issue whether the statute passed constitutional muster on equal protection of the laws. Our decision is unchanged, and the motion for rehearing is denied.

Glaze, J., concurs.

Newbern, J., dissents.

Tom Glaze, Justice,

concurring. A. B. Allen complains that the court failed to address his equal protection argument. The majority opinion specifically restated Allen’s argument, stating, “Appellant contends that the provisions for removal and ineligibility established for municipal officers are unconstitutional because they deny to appellant the equal protection of the laws in that county officials are not subject to the same provisions.” The majority opinion then continued by addressing the rational basis aspect of Allen’s argument and explains away Allen’s assertion that there is no rational basis for the distinction drawn by certain constitutional and statutory provisions dealing with removal of city and county officials. I need not further readdress the majority opinion on this point.

What I do mention is that Allen’s argument was wrong from its inception because he misidentified the classes. The charges against Allen centered on Ark. Code Ann. § 14-42-108 (1987), which makes it unlawful for a municipal official (1) to receive water, gas, or electric current without paying for it at the same rate as the general public, and (2) to furnish any person service from any public utility unless payment is made at the usual and regular rates. Only city officials violating these statutory provisions are subject to removal from office. Allen in no way contends that county officials engage in this same or similar conduct, namely, providing such utility services.

In sum, I agree that Allen’s rehearing petition should be denied, and although I think his equal protection argument was sufficiently addressed by the majority court, I add only my above thoughts.

David Newbern, Justice,

dissenting. The appellant, A.B. Allen, has petitioned this Court to rehear his claim that the statute by which he was removed from the Gould mayoralty and barred from holding office in that City denies him equal protection of the law. Mr. Allen claims in his petition that the majority opinion left “the question unresolved.” If the majority of this Court could satisfactorily resolve that issue, I might join in the denial of rehearing, although I dissented on other points. Because Mr. Allen is correct in his assertion that the equal protection issue was ignored in the majority opinion, the majority has a duty at least to address the issue in a supplemental opinion.

On appeal, Mr. Allen asserted that Ark. Code Ann. § 14-42-108(c)(2) (1987), which requires the removal from office of any city official convicted under §§ 14-42-108(a)(l) or 14-42-108(b)(1) and renders the official ineligible to hold any city office thereafter, is unconstitutional because it denied him equal protection of the laws. Mr. Allen asserted that, under the statutes and case law governing the removal of errant county officials, a county official convicted for a similar offense would not be declared ineligible to hold county office if he or she were re-elected after the commission of the offense. Mr. Allen’s position was that § 14-42-108(c)(2), by not affording this “interceding election” defense to city officials, denied him equal protection.

The majority opinion does not respond to this charge of disparate treatment of city officials and county officials. The majority correctly identifies the standard by which we review equal protection claims, and it correctly states that the legislature may provide for the removal and ineligibility of any public official convicted of certain offenses, but it does not explain how the enforcement of a provision of removal and ineligibility against city officials, but not county officials, comports with equal protection guarantees.

The error in assuming that such an explanation is sufficient results from focusing solely on city officials rather than comparing them with the other class, i.e., county officials. The best the majority opinion can offer is a singularly unsupported, and in my view insupportable, conclusion that the granting to city officials of “extraordinary . . . power” requires an extraordinary remedy. Is that a suggestion in the Court’s opinion that the authority to run a waterworks confers a greater trust upon a city official than, for example, the authority given to county officials to run a road-building program? If so, I know of no rational basis or authority for it.

This Court should identify the rational basis, if any, for treating one class of public officials differently from another, and it has not done so.

I respectfully dissent from the denial of the petition for rehearing.


source: Caselaw Access Project

author: Ray Thornton, Justice.

license: Public Domain

text:
    James AMBRUS v. RUSSELL CHEVROLET COMPANY
    96-969
    937 S.W.2d 183
    Supreme Court of Arkansas
    Opinion delivered February 17, 1997

      Dodds, Kidd, Ryan & Moore, by: Robert T. James, for appellant.

      Barber, McCaskill, Jones &Hale, P.A., by: Micheál L. Alexander and Thomas E. Osment, Jr., for appellee.
   Ray Thornton, Justice.

Mr. James Ambrus, appellant, was injured in an accident while driving cars for his employer at an automobile auction. He alleged that the negligence of the driver of a van belonging to Russell Chevrolet caused the accident. At the conclusion of Mr. Ambrus’s case, Russell was granted a directed verdict based on the trial court’s ruling that no substantial evidence had been introduced to establish that Russell’s driver was negligent. Mr. Ambrus appeals, and we affirm the decision of the trial court.

As we review an order granting a motion for a directed verdict, we view the evidence most favorably to the party against whom the verdict was directed; if evidence exists that establishes negligence beyond conjecture or speculation, it is error for the trial court to take the case from the jury. City of Little Rock v. Cameron, 320 Ark. 444, 897 S.W.2d 562 (1995). For that reason we carefully examine the evidence presented by Mr. Ambrus during the trial.

Mr. Ambrus’s case-in-chief consisted of testimony from himself, James Richard, a Mid-Ark employee, and deposition testimony of his treating physician, Dr. Jim Moore.

Mr. Ambrus was employed to work for Mid-Ark Auto Auction in North Litde Rock during October and November of 1994. His job was to drive cars through the sales barn during Mid-Ark auctions and to assist in setting up chairs and tables and in cleaning the sales barn following those events. Mr. Ambrus worked at Mid-Ark for three to four weeks prior to the accident which was the basis of his Complaint.

On November 3, 1994, Mid-Ark held an auction for General Motors (“GM”). This was the first GM auction Mr. Ambrus worked. While performing his duties as a driver for Mid-Ark, Mr. Ambrus pulled an automobile out of a parking space to turn to the right and enter the flow of auction traffic. A van being driven by a Russell employee was approaching from Mr. Ambrus’s left. The two vehicles collided.

Mr. Ambrus’s testimony concerning the collision was somewhat contradictory. He said he saw the van to his left before he pulled out but he did not have time to stop. He also stated that he did not see the van at all prior to pulling out from the parking space, and asserted that if he had seen the van driving down the lane, he “wouldn’t have pulled out in front of him.”

Mr. Ambrus testified that it was his understanding that “the Mid-Ark people was the only somebody that was supposed to be out there driving cars.” When asked if it was normal for other vehicles to be in the space where the cars collided, Mr. Ambrus replied, “Not that I know of.” He explained that when he believed it was his turn to go, he pulled out from the parking spot without looking, and the accident resulted.

James Richards, the safety coordinator and comanager of Mid-Ark Auto Auction, testified that he coordinates both the labor and outside companies involved in the auction and implements the safety policies. He testified that he held a safety meeting for auction employees before each auction to talk about the proper procedure to remove vehicles from a parking space and to remind the drivers they need to drive defensively. Specifically, he testified that he told drivers to look out for dealers who were driving their cars off the lot, and that customers have the right to come out onto the lot and remove the vehicles which they have purchased.

Mr. Richards testified that the Russell employee had a right to be in the lane where he was traveling because Russell owned the vehicle and had every right to remove it from the auction parking lot. He explained further that while there were alternative routes the Russell employee could have taken, he would have been going against the flow of traffic. He testified that the Russell driver went with the flow of traffic rather than going against it.

Based on the above testimony, the trial court found there was no substantial evidence to support a claim of negligence against Russell. Dr. Moore’s testimony concerning Mr. Ambrus’s injuries was not relevant to the issue of which driver was at fault.

We have defined negligence as “the failure to do something which a reasonably careful person would do.” City of Little Rock v. Cameron, 320 Ark. at 444, 897 S.W.2d at 564 (quoting Arkansas Kraft v. Cottrell, 313 Ark. 465, 470, 855 S.W.2d 333, 337 (1993)). To establish a prima facie case of neghgence, a plaintiff must show that he sustained damages, that the defendant was negligent, and that such neghgence was the proximate cause of those damages. Arkansas Kraft v. Cottrell, 313 Ark. at 470, 855 S.W.2d at 337. While direct or circumstantial evidence may establish neghgence, reliance on inferences based on conjecture or speculation are not sufficient. Id. at 471, 855 S.W.2d at 337.

Evidence of neghgence is insubstantial where a factfinder is merely given a choice of possibilities that require the jury to resort to conjecture or guess as to a cause. Id. The fact that an injury, cohision, or accident occurred is not of itself evidence of neghgence or fault on the part of anyone. Mahan v. Hall, 320 Ark. 473, 477, 897 S.W.2d 571, 573 (1995).

There is no substantial evidence that Russell’s employee was neghgent in being in the lane of traffic where the accident occurred. The only testimony supporting the assertion that the Russell driver was not authorized to be in the traffic lane was Mr. Ambrus’s statement that, as far as he knew, only Mid-Ark employees were supposed to be in the lane of traffic. Mr. Ambrus did not state that owners were denied the right to be there, but only that he did not possess personal knowledge of that right. Mr. Ambrus’s own witness, James Richards, testified that the Russell employee was rightfully in the lane of traffic, and that Mr. Ambrus had been informed of this possibility during the preauction safety meeting.

Neither was substantial evidence introduced to show that the Russell employee was negligent in failing to stop before the collision. Mr. Ambrus testified that he did not see the van or he would have stopped before the collision, and he contends that the fact that a collision occurred creates an inference that the van driver was speeding and that inference is enough to support a finding of negligence. He stated that the accident “just caved in the whole side and part of the door caved in” and that the impact was enough to kill the engine of the car he was driving. However, James Richards testified that there was only a small scratch on the driver’s side costing approximately $250.00 to repair. An exhibit was admitted showing an estimate in the amount of $264.47. As we ruled in Mahan v. Hall, the fact that an accident occurred is not of itself evidence of negligence or fault. Mahan, 320 Ark. at 477, 897 S.W.2d at 573. The damage to Ambrus’s vehicle does not establish beyond conjecture or speculation that the Russell driver was speeding.

In his reply brief, Mr. Ambrus asserts that the trial judge should have recused himself. It does not appear from the record that this issue was ever addressed to that court. Additionally, Mr. Ambrus does not mention it in his first brief, precluding any response. Russell requests that this part of Mr. Ambrus’s reply brief be stricken. Rather than strike a portion of the brief, we simply note that we do not address arguments raised for the first time on appeal.

Because we agree with the trial judge’s finding that no substantial evidence of negligence by Russell’s driver had been presented, we affirm the trial court’s directed verdict.

Affirmed.

Glaze, J., not participating.


author: Per Curiam.

text:
    Robert CAPLE v. STATE of Arkansas, County of Van Buren
    CR 96-799
    937 S.W.2d 186
    Supreme Court of Arkansas
    Opinion delivered February 17, 1997

      Mel A. Jackson, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Deputy Att’y Gen. and Senior App. Advocate, for appellee.
   Per Curiam.

On May 18, 1995, appellant Robert Caple was convicted, and on June 18, 1995, his counsel, Public Defender Karen Baker, filed a notice of appeal. During this same period, Caple retained attorney Steve Kirk to file his appeal, and Kirk filed a notice of appeal on Monday, June 19, 1995.

On July 15, 1995, George Stephens became the Public Defender, replacing Karen Baker. However, Kirk took the next step on Caple’s behalf on September 14, 1995, by obtaining a 120-day extension to file the appellate record. This was Kirk’s last act, apparently because the record reflects Caple dismissed Kirk as his counsel on January 2, 1996. Apparently, Kirk never moved to withdraw as counsel or obtain this court’s approval to do so.

On April 9, 1996, Stephens resigned from the Public Defender’s Office and was replaced by Ralph Blagg. On July 8, 1996, Blagg’s deputy, Mel A. Jackson, filed a motion for rule on the clerk in order to file a late record, and on September 16, 1996, this court, by a 4-3 vote, granted that motion. In granting the motion, the circuit court and court reporter were given until October 16, 1996, to complete the record. However, on September 25, 1996, the Attorney General’s Office filed a motion, stating it had been contacted by the court reporter in this cause, and was informed she had never been asked to prepare a record. As a consequence, the Attorney General requested this court grant an additional ninety days, or until January 14, 1997, to file the record, and by a 4-3 vote, this court granted the extension to January 14, 1997. Apparendy, the Attorney General’s extension motion triggered deputy defender Mel A. Jackson to write a letter dated October 25, 1996, to the court reporter, requesting she prepare the transcript.

Notwithstanding the granting of the foregoing extensions to file the transcript, no record was filed on or before the last January 14, 1997 deadline, but instead on January 24, 1997, Mel A. Jackson filed a second motion for rule on the clerk. At the same time, Jackson moved to withdraw as Caple’s counsel, stating that he no longer was a deputy public defender.

In sum, four attorneys, Steve Kirk, George Stephens, Ralph Blagg, and Mel A. Jackson have served as Caple’s counsel in this cause and have requested and been granted motions in order to perfect Caple’s appeal. Nontheless, twenty-two months have passed without any record having been filed. From what has been filed with the court, we are unable to determine why repeated delays have occurred and no record has been filed.

Therefore, attorneys Steve Kirk, George Stephens, Ralph Blagg, and Mel A. Jackson are directed to appear before this court at 9:00 a.m. on Monday, March 3, 1997, to show cause why any one or all of them should not be held in contempt of court for failure to perfect the appeal in this case.


text:
    Johnny COOK v. STATE of Arkansas
    CR 96-1507
    937 S.W.2d 187
    Supreme Court of Arkansas
    Opinion delivered February 17, 1997

      Keith Watkins, for appellant.
    No response.
   Per Curiam.

Appellant, Johnny Cook, by his attorney, Keith Watkins, has filed a second motion for rule on clerk. In response to our order issued January 27, 1997, Cook v. State, 327 Ark. 125, 937 S.W.2d 641 (1997) (per curiam), Watkins admits by motion and affidavit that the record was tendered late due to a mistake on his part.

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

A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Allen Eugene DRYMON v. STATE of Arkansas
    CR 96-260
    938 S.W.2d 825
    Supreme Court of Arkansas
    Opinion delivered February 17, 1997

      Brenda Horn Austin, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., and Rinda Baker, Law Student Admitted to Practice Pursuant to Rule XV(E)(l)(b) of Rules Governing Admission to the Bar of the Arkansas Supreme Court, for appellee.
   Per Curiam.

The appellant, Allen Eugene Drymon, was convicted of four counts of rape and was sentenced to fifty years’ imprisonment. We affirmed his conviction on direct appeal in Drymon v. State, 316 Ark. 799, 875 S.W.2d 73 (1994). Within sixty days of the mandate that was issued from the direct appeal, Drymon filed a petition for postconviction relief pursuant to A.R.Cr.P. Rule 37. The Trial Court denied his petition. We affirm.

Drymon’s conviction arose from charges that he raped his two minor stepdaughters. During its investigation of the matter, the Washington County Sheriffs Office sent Deputy Sheriff Freiheit to Drymon’s place of employment to pick him up for questioning. When they arrived at the police station, Drymon waived his Miranda rights and gave a statement in which he admitted to having intercourse with his two stepdaughters.

In a suppression hearing before the trial, Drymon challenged the admissibility of his inculpatory statement on the basis that he was too intoxicated to knowingly and intelligently waive his rights. The Trial Court denied the motion to suppress, and in the direct appeal, we affirmed. Drymon v. State, supra.

In his petition for postconviction relief and in this appeal, Drymon argues that he did not receive effective assistance of counsel because his attorney did not move to suppress the statement pursuant to A.R.Cr.P. Rule 2.3, which reads:

If a law enforcement officer acting pursuant to this rule requests any person to come to or remain at a police station, prosecuting attorney’s office or similar place, he shall take such steps as are reasonable to make clear that there is no legal obligation to comply with such request.

Drymon contends that Deputy Freiheit, at the time she appeared at his place of employment to take him in for questioning, did not give him the warning required by the rule. Accordingly, he argues that his attorney performed deficiendy when he did not raise this issue in the motion to suppress. Drymon also contends that he was prejudiced because his attorney’s failure allowed the admission of his inculpatory statement.

To prevail on a claim of ineffective assistance of counsel, the petitioner must show first that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the sixth amendment. Second, the petitioner must show that the deficient performance prejudiced the defense, which requires showing that counsel’s errors were so serious as to deprive the petitioner of a fair trial. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. A court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. The petitioner must show there is a reasonable probability that, but for counsel’s errors, the factfinder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. In making a determination on a claim of ineffectiveness, the totality of the evidence before the judge or jury must be considered. Strickland v. Washington, 466 U.S. 668 (1984).

Before we reach the merits of Drymon’s arguments, we must note that the trial, while abstracted by both of the parties, has not been included in the record. According to Ark. Sup. Ct. R. 4-2(a)(6), an appellant in a “second or subsequent appeal” is required to abstract all pertinent portions of the record from the first appeal. Those portions of the first record, however, need not be included in the record that is filed in the second appeal. The record of the first trial, having already been filed with the appellate court in the earlier appeal, is a public record which need not be incorporated into the record on the second appeal.

In this case, Drymon appeals from an order that denies postconviction relief, rather than from a judgment that is entered after a case has been remanded. His appeal, therefore, is not a “second or subsequent appeal,” and the relevant portion of Rule 4-2(a)(6) is not direcdy applicable. We are inclined, however, to allow Drymon and the State to abstract material portions of the trial because it was included in the record that was filed in Drymon’s direct appeal. Therefore, we will treat the parties’ effort to abstract the trial as a motion to consolidate the record from the direct appeal with the record in this appeal; and we grant the motion.

Regarding the merits of Drymon’s argument, we find that he did not prove that he received ineffective assistance of counsel. Specifically, Drymon has not proven that he was prejudiced by his attorney’s failure to move to suppress the statement on the basis of A.R.Cr.P. Rule 2.3. The State’s supplemental abstract indicates that each of the victims testified that Drymon had intercourse with them. It is well established that the uncorroborated testimony of a child rape victim is sufficient evidence to sustain a conviction. Caldwell v. State, 319 Ark. 243, 891 S.W.2d 42 (1995). Consequently, there is not a reasonable probability that the outcome of the trial would have been different even if Drymon’s inculpatory statement had been suppressed pursuant to A.R.Cr.P. Rule 2.3. Accordingly, we affirm the Trial Court’s order.

Affirmed.


text:
    James Hollis GUSS v. STATE of Arkansas
    CR 96-905
    939 S.W.2d 817
    Supreme Court of Arkansas
    Opinion delivered February 17, 1997

      Jeffrey H. Kearney, for appellant.
    No response.
   Per Curiam.

The procedural background in this matter is set forth in our per curiam opinion delivered on January 27, 1997. Guss v. State, 327 Ark. 127 (1997). Attorney Jeffrey FI. Kearney, counsel for appellant James Hollis Guss, was cited to appear before this court on February 10, 1997, to show cause why he should not be held in contempt for his failure to file the appellant’s brief in a timely manner.

Mr. Kearney appeared on February 10, 1997, and acknowledged receiving notice of the show cause hearing from the Clerk of the Arkansas Supreme Court. Mr. Kearney entered a plea of guilty to the contempt citation and accepted full responsibility for fading to fde his client’s brief in a timely manner. In mitigation, he stated that his fadure was due to the fact that he practiced law in a smad firm with one other lawyer, and that he had delegated the calendering of deadlines to clerical staff. Since Mr. Kearney began his law practice five years ago, mistakes in time management and calendering resulted in several missed deadlines. See Guss v. State, 325 Ark. 521 (1996); Johnson v. State, 325 Ark. 417 (1996); West v. State, 321 Ark. 513 (1995). However, Mr. Kearney has not previously been held in contempt or fined by this court.

Because of these errors, Mr. Kearney intends to implement corrective action by personally calendering the deadlines in his law practice. In addition to extending his apologies, Mr. Kearney displayed candor and forthrightness in his statements to this court.

From the foregoing, we hold that Mr. Kearney is in contempt for fading to file the appellant’s brief in a timely manner and we fine him $250. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Clarence MANNING v. STATE of Arkansas
    CR 97-102
    937 S.W.2d 185
    Supreme Court of Arkansas
    Opinion delivered February 17, 1997

      Chris Jester, for appellant.

      No response.
   Per Curiam.

Clarence Manning, by his attorney, has filed a motion for a rule on the clerk.

His attorney, Chris Jester, admits in his motion that the record was tendered 48 days late due to a mistake on his part.

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

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


author: David Newbern, Justice.

text:
    Terry COLEMAN v. STATE of Arkansas
    CR 96-1022
    938 S.W.2d 845
    Supreme Court of Arkansas
    Opinion delivered February 24, 1997

      Val P. Price, for appellant.

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

Terry Coleman, the appellant, was convicted of several charges resulting from burglaries of auto muffler and radiator shops. One of the charges was theft by receiving. Ark. Code Ann. § 5-36-106 (Repl. 1993). According to § 5-36-106(e)(2)(A), theft by receiving is a class C felony if the property received has a value in excess of $200. The General Assembly recently changed Ark. Code Ann. § 5-36-103 (Supp. 1995) to make theft, as opposed to theft by receiving, a felony if the value of the property taken is over $500, in place of $200. Mr. Coleman argues we should hold § 5-36-106(e)(2)(A) was impliedly amended to make the felony threshold the same amount for theft by receiving. As the General Assembly did not amend the latter statute, we cannot agree with Mr. Coleman’s argument. As Mr. Coleman does not argue that the value of the property did not exceed $200, and we hold that amount was the threshold amount for establishment of the class C felony, we affirm the conviction.

Mr. Coleman confessed to having received items he knew had been stolen from the radiator shop. As to the value of the items, the owner testified as follows: (1) microwave oven — purchased for $150 about a year and a half earlier, replacement cost, $125; (2) four unused welding tips — replacement cost, $85; (3) Chicágo electric grinder — three years old, replacement cost same as purchase price, $135; (4) small air grinder — six months old, replacement cost, $65; (5) tool tap and die set — fifteen years old, replacement cost, $85; (6) two air ratchets — unused, replacement cost, $130; (7) starter pistol • — - two years old, replacement cost $25; and (8) floor jack — six months old and “like new,” replacement cost, $150. While it appears that a strong case could be made that the value of the items was in excess of the $500 threshold for which Mr. Coleman argues, we need not reach that conclusion in view of our rejection of the argument that § 5-36-106(e)(2)(A) was impliedly amended.

Act 277 of 1995 amended only the theft statute, § 5-36-103, and altered none of the terms contained in § 5-36-106, the theft-by-receiving provision. Thus, regardless of changes the Act effected in the language of the theft statute, the language of the theft-by-receiving statute only required the State to show, in order to sustain a class C felony charge, that the value of the property pilfered at the radiator shop exceeded $200.

The title of the Act supports this conclusion. The title, set out below, clearly limits application of the Act to § 5-36-103:

“AN ACT TO AMEND ARKANSAS CODE ANNOTATED 5-36-103 TO INCREASE THE MINIMUM VALUE OF CERTAIN PROPERTY TO $500 FOR FELONY THEFT; AND FOR OTHER PURPOSES.”

Nothing in the language of the Act suggests that it was intended to amend the terms of § 5-36-106.

“This court adheres to the basic rule of statutory construction which is to give effect to the intent of the legislature, making use of common sense.” Rosario v. State, 319 Ark. 764, 769, 894 S.W.2d 888, 890 (1995). In light of this fundamental principle, it seems impossible to conclude that the legislature intended Act 277 to amend the terms of § 5-36-106. The express language of the Act simply does not permit such a conclusion. Absent a clear indication that “a drafting error or omission [has] circumvented] legislative intent,” this Court should not “interpret a legislative act in a manner contrary to its express language.” Id. See State v. McLeod, 318 Ark. 781, 888 S.W.2d 639 (1994); Neel v. State, 317 Ark. 312, 877 S.W.2d 589 (1994).

Mr. Coleman argues that Act 277 applied to theft by receiving because of the “consolidation of offenses” statute. According to that provision,

[a] criminal charge of theft may be supported by evidence that it was committed in any manner that would be theft under this chapter, notwithstanding the specification of a different manner in the indictment or information, subject only to the power of the court to ensure fair trial by granting a continuance or other appropriate relief where the conduct of the defense would be prejudiced by lack of fair notice or by surprise.

Ark. Code Ann. § 5-36-102(a)(2) (Repl. 1993). This provision merely merged “all crimes dealing with the wrongful acquisition of property or services into a single, comprehensive offense.” Original Commentary to § 5-36-102, Vol. B, p. 219. The drafters hoped that “making theft a single offense, regardless of the manner in which it occurs, will reduce the needless wrangling at both trial and appellate levels over whether particular conduct that is obviously criminal constitutes one offense rather than another.” Id. The aim of the statute was simply to prevent a defendant from escaping “conviction of one offense by proving he is actually guilty of another.” Id.

This provision does not authorize a court to alter the elements of one type of theft offense, which has not been amended, by applying to it a statute that amends a different theft offense.

We do not make light of Mr. Coleman’s point that it may seem illogical for the General Assembly to treat the offenses of theft and theft by receiving property differently in respect to the value of property taken or received in order to constitute a felony. If an oversight has indeed occurred, we assume the General Assembly will correct it. We cannot, however, say for certain that a legislative oversight or mistake has occurred, and we clearly cannot say that a “drafting” error resulted in leaving § 5-36-106 unchanged. As the law stands, Mr. Coleman was shown to be guilty of a class C felony.

Affirmed.


author: Donald L. Corbin, Justice.

text:
    Vernon O. WILSON, Jimmy Ray Wilson, Joe Wayne Wilson, and Neoma Irene Wilson v. Penny Elaine WILSON
    95-1034
    939 S.W.2d 287
    Supreme Court of Arkansas
    Opinion delivered February 24, 1997

      Ball & Mourton, Ltd., by: Kenneth R. Mourton and Dee A. Bailey, and Davis & Watson, P.A., by: Cables E. Davis, for appellants.

      F. Lewis Steenken, for appellee.
   Donald L. Corbin, Justice.

Appellants, Jimmy Ray Wilson, Joe Wayne Wilson, Neoma Irene Wilson, and Vernon Wilson, the latter being deceased, appeal the order of the Carroll County Chancery Court awarding title to Appellee, Penny Elaine Wilson, of the 240 acres and any other assets in their possession obtained from the estate of Appellee’s deceased father, Christopher Wilson. For reversal, Appellants contend the chancery court lacked subject-matter jurisdiction to review the probate court’s actions, erred in ruling a constructive trust existed pursuant to the will, and, alternatively, erred in awarding the estate assets to Appellee. The court of appeals certified this case to us as presenting a question about the construction of a will; our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(a)(16) and (d)(1) (as amended by per curiam July 15, 1996). We find merit to Appellants’ first argument that the chancery court lacked subject-matter jurisdiction and therefore reverse and dismiss. Accordingly, we need not address Appellants’ remaining two arguments for reversal.

Appellants Jim and Joe Wilson and the decedent Christopher Wilson are brothers. Their mother is Appellant Neoma Wilson and was substituted as a party for their father Vernon Wilson, who is now deceased. Appellee Penny Wilson is Christopher’s only child; she was aged five years when her father died on July 30, 1976.

Christopher’s will was admitted to probate on August 10, 1977, and named Appellants Jim and Joe as executors. Appellant Jim was appointed executor of Christopher’s estate.

The inventory Appellant Jim filed listed only one asset of the estate valued at $18,000, the 240 acres of real estate in Carroll County that is at the heart of this case. Appellants offered evidence that the land was encumbered by two mortgages totaling $12,600, but there was no evidence of the mortgages in the probate proceedings. The inventory stated there were no household goods, personal effects, or tangible or intangible personal property. Appellants testified, however, that Christopher left several items of personal property including a saddle, a rope, and some silver dollars, among other various items.

The portions of Christopher’s will that are relevant to this appeal state as follows:

2.
It is my will and desire that my brothers, Jimmy Ray Wilson and Joe Wayne Wilson, of Route # 4, Huntsville, Arkansas, take joindy and unto the survivor, all my property, consisting of real, personal and mixed, wheresoever same may be situated; and that they and each of them, have authority without having to get any court orders, to take care of financial business upon my demise, to the best interests of my estate.
3.
I have one child, named Penny Elaine Wilson, aged Two years, who now is in the legal custody of my divorced wife, Charley V. Wilson, her mother; and the where-a-bouts of both my divorced wife and child, is not now within my knowledge.
4.
My daughter will be Twenty-one years of age on the 8th day of January, 1992; and it is my desire, that my aforementioned brothers turn my entire estate, that they may have in their hands, and under their control over to my daughter, upon her reaching Twenty-one years of age, on the 8th day of January, 1992, if in their opinion she is capable of looking after same for her best interests; and if in their opinion, she is not capable of looking after this property for her best interests, then they are to continue to supervise the care of same, and turn the proceeds over to my daughter, as in their opinion her best interests may demand.

The Probate Court of Carroll County entered an Order Approving Final Account, Directing Distribution, and Discharging Personal Representative on May 16, 1978, which awarded Christopher’s entire estate, including the 240 acres as joint tenants with right of survivorship, to Appellants Jim and Joe. Approximately six weeks later, on June 30, 1978, Appellants Jim and Joe transferred the property by quitclaim deed to their parents, Appellant Neoma and Vernon, for the sum of one dollar and love and affection.

Appellee initiated this action in Carroll County Chancery Court by filing a petition for an accounting of her father’s estate and to set aside the quitclaim deed. She claimed that her father’s will devised his entire estate to Appellants Jim and Joe as co-trustees for her benefit. Appellee filed her petition on April 22, 1994, over two years after reaching age twenty-one. Over Appellants’ objections to subject-matter jurisdiction, the chancellor entered an order finding that a fiduciary relationship existed between Appellants and Appellee and that evidence of fraud existed, and ruhng that Appellee receive title to the 240 acres and any personal property of her father’s in Appellants’ possession. This appeal followed.

As their first point for reversal, Appellants contend that the trial court erred in assuming subject-matter jurisdiction of this case and in reviewing the probate court’s actions. A review of the trial court’s findings and rulings are necessary for a true understanding of this issue.

The chancellor found that Appellee was never given notice of the probate proceedings in her father’s estate in accordance with the Probate Code or the Arkansas Rules of Civil Procedure and that no guardian or guardian ad litem was ever appointed for her to take notice. The chancellor also found that no claims were made against Christopher’s estate and that, although Appellants offered evidence that there were mortgages against the land at the time of Christopher’s death, there was no evidence of the mortgages in the probate file. Thus, the chancellor found that, because Appellants Joe and Jim held the land free of debt, they were obligated to hold it for Appellee’s benefit, and when Appellants Joe and Jim transferred the debt-free land to Appellant Neoma and Vernon, it was without benefit to Appellee. The chancellor thus concluded that there was evidence of fraud and that Appellee was entided to the land.

Appellants rely on Article 7, Section 34, of the Arkansas Constitution of 1874, which vests probate courts with “exclusive original jurisdiction in matters relative to the probate of wills, the estates of deceased persons, executors, [and] administrators[.]” Appellants also rely on the rule that when exclusive jurisdiction to adjudicate a matter has been fixed to a specific court by the Arkansas Constitution or statute, such as probate matters in the probate court, the chancery court is without jurisdiction to act. Liles v. Liles, 289 Ark. 159, 711 S.W.2d 447 (1986).

Appellants’ citations of authority on the distinction of probate and equity jurisdiction are accurate, but grossly incomplete for the factual complexities presented in this case. Here, we must be concerned with the factual findings of lack of notice and fraud in the probate case. These concerns are complicated further by matters relating to Appellee’s initial minority and still further by matters relating to express trusts and constructive trusts.

It has long been the law in Arkansas that where a probate court has jurisdiction of the subject matter, its judgment, although erroneous, is conclusive, so long as it is not reversed, and cannot be attacked collaterally. Brown v. Kennedy Well Works, Inc., 302 Ark. 213, 788 S.W.2d 948 (1990) (citing Currie v. Franklin, 51 Ark. 338, 11 S.W. 477 (1888)). It has also long been the law in Arkansas that courts of equity have subject-matter jurisdiction to grant relief from judgment obtained by fraud in probate court only when there is no adequate remedy at law or when some circumstance removes the probate court’s jurisdiction. Id.; Tucker v. Leonard, 228 Ark. 641, 311 S.W.2d 167 (1958); Hankins v. Layne, 48 Ark. 544, 3 S.W. 821 (1886). As this court explained in Brown, there is an adequate legal remedy for a judgment obtained by fraud in probate court: Arkansas Rules of Civil Procedure 60(b) and (c)(4) provide that a probate court may vacate an order that has been obtained by fraud. Thus, chancery courts have no subject-matter jurisdiction to set aside a probate court’s judgment when the probate court had subject-matter jurisdiction, even when fraud was used to obtain the judgment. Here, the chancellor lacked subject-matter jurisdiction to review the probate court’s actions, even though the chancellor found that fraud existed.

In Brown, 302 Ark. 213, 788 S.W.2d 948, this court affirmed a chancellor’s refusal to allow a collateral attack on a probate court judgment when fraud was alleged. That holding was expressly conditioned upon the fact that no problems of jurisdictional notice were raised as to the probate court. Id. at 218, 788 S.W.2d at 951. The question of whether Appellee received jurisdictional notice as defined in Ark. Code Ann. § 28-40-101 (1987) is a question within the probate court’s jurisdiction. In probating Christopher’s will, the probate judge entered an order approving the final account and distribution of assets, which states in relevant part:

That the petitioner, was duly appointed personal representative of the estate of the deceased on the 10th day of August, 1977; that notice of the appointment of said personal representative as well as notice to the creditors, was duly published in the manner and form and for the time required by law; . . . that notice was given in the manner and for the time required by law and by orders of the Court; that no objections or exceptions have been filed and the same is true and correct and should be in all things approved; and that there is no liability to the estate by the personal representative or his surety.
. . . The Court further finds that pursuant and according to the terms and conditions of the decedent’s last will and testament, the following named Devisees and Distributees of the estate are entitled to receive the assets and property of the estate in the following manner: To fimmy Ray Wilson and foe Wayne Wilson, jointly and unto the survivor, the decedent's entire estatej.] [Emphasis added.]

As is reflected in the probate court’s order, the court determined that Jim and Joe Wilson were entitled to Christopher’s estate jointly with right of survivorship. The order further shows the court’s orders had provided for all required notices. Of particular significance, the record reflects that Appellee’s mother’s attorney was notified of the opening of Christopher’s estate after he had requested a copy of the will to be probated. See Ark. Stat. Ann. § 62-2012(d)(2)(a) and (e) (Repl. 1971).

The probate court’s order closing and distributing Christopher’s estate, was conclusive because no appeal or motions have been filed in that court challenging the validity of its order. If Appellee had any cause for relief in this matter — for fraud or otherwise — she should have sought that relief in the probate proceeding. What Appellee seeks is a collateral attack on the probate court’s order. Jurisdiction to hear an attack on the probate court’s order is in the probate court because the probate court has exclusive jurisdiction to review its own orders. The chancery court lacked subject-matter jurisdiction of this case. Accordingly, we reverse the chancery court’s order and dismiss Appellee’s complaint.


author: Annabelle Clinton Imber, Justice.

text:
    Donald BRIDGES v. STATE of Arkansas
    CR 96-181
    938 S.W.2d 561
    Supreme Court of Arkansas
    Opinion delivered February 24, 1997
    [Petition for rehearing denied April 7, 1997.]

      Mike Everett, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Deputy Att’y Gen., Sr. Appellate. Advocate for appellee.
   Annabelle Clinton Imber, Justice.

The appellant, Donald Bridges, was convicted by a jury in Poinsett County of criminal use of a prohibited weapon, fleeing from an officer, and reckless driving. On appeal, Bridges contends that his conviction of criminal use of a prohibited weapon should be reversed. Finding no merit to his arguments, we affirm.

. On February 18, 1994, around 10:30 p.m., Officer Miller received a call over his police radio that a white Cadillac bearing a handicapped license plate had been stolen from Don Landers’s home in Harrisburg, Arkansas. Soon thereafter, Officer Miller spotted the Cadillac driving on Highway 14. As the officer approached the vehicle, it sped off. Officer Miller chased the Cadillac for approximately six minutes at a high rate of speed over the winding highway. After almost hitting another car, the Cadillac approached two police backup- vehicles and stopped.

The appellant, Donald Bridges, emerged from the Cadillac. The police searched Bridges and found a loaded, semiautomatic handgun in his front coat pocket. The police also observed in plain view in the front seat of the Cadillac a loaded handgun and a loaded shotgun. Officer Miller noticed that the serial number on the shotgun had been filed off and that the tip of the barrel was ragged and appeared to have been altered.

The owner of the Cadillac later verified that the vehicle had not been stolen, but rather, Bridges had borrowed the vehicle without the owner’s permission. Thus, the owner refused to press charges against Bridges for theft. However, Bridges was arrested for fleeing and possession of the guns. Upon arrival at the station, the police searched Bridges and discovered five Valium pills in his pocket.

Bridges was charged with fleeing, reckless driving, criminal use of a prohibited weapon, possession of a defaced firearm, carrying a weapon, and possession of a controlled substance. The jury convicted Bridges of fleeing, reckless driving, and criminal use of a prohibited weapon. On appeal, Bridges raises several arguments for reversal of his conviction for criminal use of a prohibited weapon.

1. Constitutionality of Ark. Code Ann. § 5-73-104 (Repl. 1993)

For his first argument on appeal, Bridges asserts that his conviction of criminal use of prohibited weapon should be reversed because the statute is unconstitutionally vague. The statute provides in relevant part that:

A person commits the offense of criminal use of prohibited weapons if, except as authorized by law, he uses, possesses. . .any bomb, machine gun, sawed-off shotgun or rifle. . .or other implement for the infliction of serious physical injury or death which serves no common lawful purpose.

Ark. Code Ann. § 5-73-104(a) (Repl. 1993). The original commentary articulates the purpose of Ark. Code Ann. § 5-73-104 as follows:

This section is directed at the use, possession, sale, etc. of instruments which have exclusive usefulness as implements of crime.

(Emphasis added.)

In August of 1994, the General Assembly amended the General Definitions section of the Arkansas Criminal Code to define a “sawed-off shotgun” as a shotgun having one or more barrels less than eighteen inches in length or an overall length of less than twenty-six inches. 1994 Ark. Acts 45 § 2 (codified at Ark. Code Ann. § 5-1-102(21) (Supp. 1995)). However, when Bridges committed the crime in February of 1994, there was no statutory definition of a “sawed-off shotgun”; hence, Bridges claims the statute was unconstitutionally vague.

This identical position was rejected by this court six years ago in Moore v. State, 304 Ark. 257, 801 S.W.2d 638 (1990). In Moore, this court explained that a statute survives a due process challenge of vagueness if it is clear enough to provide a standard of conduct for those whose activities are proscribed, as well as a standard for police enforcement and for ascertainment of guilt. Id. Because it was apparent from the plain meaning of Ark. Code Ann. § 5-73-104 that a sawed-off shotgun was “a shotgun with a barrel shortened by cutting off a portion thereof,” this court held that the statute was not unconstitutionally vague. Id. Thus, on appeal, Bridges is asking this court to overrule our prior holding in Moore. For the following reasons, we decline to do so.

As in Moore, the barrel of the shotgun in this case had clearly been “cut-off,” and the extent to which it had been shortened is not relevant to this appeal. In fact, Bridges conceded during oral argument that one could tell by looking at the shotgun that it was “sawed-off”:

[A]nd it was sawed off by what apparently was a blind man using a dull hacksaw. I mean you could clearly tell by looking at it, I think, that, yes, the barrel was sawed, to be honest.

Thus, notwithstanding the claim of vagueness, Bridges was in fact able to apply the usual and ordinary meaning of the words “sawed-off” to the appearance of the shotgun and conclude that the barrel had been “shortened by cutting off a portion thereof” so as to come within the statutory term “sawed-off shotgun.”

Moreover, each of the prohibited weapons listed in Ark. Code Ann. § 5-73-104, including a sawed-off shotgun, is further defined as being an implement “for the infliction of serious physical injury or death which serves no common lawful purpose.” (Emphasis added.) These words of limitation adequately narrow the definition such that a person of ordinary intelligence would be on notice that he or she is in jeopardy of violating the law if he or she uses, possesses, sells, etc., a sawed-off shotgun which 'will inflict serious physical injury or death and serves no lawful purpose. In response to an inquiry by this court during oral argument, Bridges conceded that cutting the barrel off the shotgun in this case would serve

exactly the purpose that we want to prohibit. That is to say, I want to make a gun that if I have to shoot somebody in a building, I want to cover the whole side of the wall.

We must therefore conclude, as we did in Moore, that the statute is sufficiently clear to overcome Bridges’s vagueness argument.

2. Nature and Sufficiency of the Evidence

Next, Bridges contests the nature and the sufficiency of the evidence supporting his conviction of criminal use of a prohibited weapon. At trial, Officer Miller testified that the end of the shotgun barrel appeared and felt rough and jagged as if it had been recently cut. As an example, Officer Miller compared the end of the shotgun barrel to a severed plumbing pipe in that the end contained a sharp lip that would cut a finger if touched. Officer Miller concluded that the shotgun barrel “appeared to me to have been cut.”

Although Officer Miller admitted that he was not an expert in shotguns, the trial court allowed his testimony as a lay witness’s observation of the condition of the weapon at the time of arrest. On appeal, Bridges argues that the judge’s ruling was incorrect. We disagree.

According to Ark. R. Evid. 701, a lay witness may testify as to opinions and references which are rationally based on his perception and are helpful to the clear understanding of his testimony or the determination of a fact issue. Moore v. State, 323 Ark. 529, 915 S.W.2d 284 (1996); Crow v. State, 306 Ark. 411, 814 S.W.2d 909 (1991). It is also well settled that Rule 701 is not a rule against opinions, but is a rule that conditionally favors them. Moore; supra. Thus, a trial judge’s decision to allow lay opinion testimony under Rule 701 will not be reversed by this court absent an abuse of discretion. Moore, supra.

In Moore, this court affirmed a trial court’s decision to allow a nonexpert to testify that a shoe print found at the scene of the crime was similar to an impression made of the defendant’s shoe. Id. Clearly, if a lay witness may make such an observation, the trial court properly allowed Officer Miller to testify as to the appearance of the end of Bridges’s shotgun. Hence, we affirm the trial court’s decision to allow Officer Miller’s testimony.

Bridges also contests the sufficiency of the evidence on this charge. As this court has stated numerous times, a jury’s verdict will be affirmed if there is substantial evidence to support it. Peeler v. State, 326 Ark. 423, 932 S.W.2d 312 (1996). Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another. Id. When making this determination, this court will review the evidence in the light most favorable to the appellee. Id. According to Officer Miller’s testimony, the end of the shotgun barrel appeared as if it had been cut or shortened. Therefore, there was sufficient evidence to submit the issue to the jury.

3. Closing Arguments

For his third argument for reversal, Bridges asserts that the trial court improperly precluded him from mentioning during his closing arguments that the federal definition of a sawed-off shotgun was a gun with a barrel less than eighteen inches.

This court has repeatedly held that a trial judge has wide latitude in controlling closing arguments. Lee v. State, 326 Ark. 529, 932 S.W.2d 756 (1996); Mills v. State, 322 Ark. 647, 910 S.W.2d 682 (1995). At the time Bridges committed the crime, the applicable state definition was not a barrel less than eighteen inches. Moore, supra. Therefore, this court cannot say that the trial judge abused his discretion when he prevented Bridges from mentioning the federal eighteen-inches definition during his closing argument.

4. Jury Instructions

Next, Bridges contends that the trial court abused its discretion when it gave the following instruction:

Donald Bridges is also charged with the offense of criminal use of a prohibited weapon. To sustain this charge the State must prove beyond a reasonable doubt that Donald Bridges unlawfully possessed a sawed-off shotgun.
“Sawed-off shotgun” — A shotgun with a barrel shortened by cutting off a portion thereof constitutes a sawed-off shotgun.

It is well settled that no party may assign as error the giving or failure to give an instruction unless he objects thereto before or at the time the instruction is given, stating distinctly the matter to which he objects and the grounds of his objection. Clowney v. Gill, 326 Ark. 253, 929 S.W.2d 720 (1996); Precision Steel Warehouse,Inc. v. Anderson-Martin Mach. Co., 313 Ark. 258, 854 S.W.2d 321 (1993).

At trial, Bridges objected to the instruction given by the trial court on grounds that the instruction should have defined a “sawed-off shotgun” as being a shotgun having a barrel shorter than eighteen inches. Bridges proffered an instruction which included the eighteen-inch definition contained in the 1994 amendment to the Arkansas Criminal Code, Ark. Code Ann. § 5-1-102(21). We find no error in the trial court’s refusal to instruct the jury on a statutory definition that was not enacted at the time of the offense.

In a supplemental record, the trial judge by affidavit stated that Bridges also objected to the instruction given by the trial court on grounds that the definition of “sawed-off shotgun” was unconstitutionally vague. The abstract makes no reference to this particular objection. We have often written that the record on appeal is limited to that which is abstracted. Taylor v. State, 299 Ark. 123, 771 S.W.2d 742 (1989). Moreover, we will not examine the transcript of a trial to reverse a trial court, while we will do so to affirm. Haynes v. State, 314 Ark. 354, 862 S.W.2d 275 (1993). We, accordingly, affirm due to the lack of sufficient information in Bridges’s abstract to enable us to decide this point.

Bridges further argues on appeal a separation of powers theory in which he alleges that this court does not have the power to judicially define a statutory term. Bridges did not raise this argument before the trial court. As this court has repeatedly prohibited appellants from raising arguments for the first time on appeal, this argument is procedurally barred from review. See Betts v. Betts, 326 Ark. 544, 932 S.W.2d 336 (1996).

5. Inconsistent Verdicts

For his final argument for reversal, Bridges alleges that the jury’s conclusion that he was guilty of criminal use of a prohibited weapon under Ark. Code Ann. § 5-73-104 (Repl. 1993) was inconsistent with its verdict that he was innocent of possession of a defaced firearm under Ark. Code Ann. § 5-73-107 (Repl. 1993). At trial, Bridges did not contest that the serial number on the sawed-off shotgun had been removed. Thus, Bridges argues that the jury could only find him innocent of possession of a defaced firearm if it determined that he did not in fact possess the shotgun. Bridges concludes that therefore the two verdicts are inconsistent.

Although Bridges is correct that the two verdicts appear inconsistent, this court has repeatedly held that a defendant may not attack the inconsistency of verdicts on separate charges because res judicata does not apply, and more importantly, “the jury is free to exercise its historical power of lenity if it believes that a conviction on one count would provide sufficient punishment.” Jordan v. State, 323 Ark. 628, 631, 917 S.W.2d 164, 165 (1996); accord McVay v. State, 312 Ark. 73, 847 S.W.2d 28 (1993). Therefore, the trial court did not err when it denied Bridges’s motion for a mistrial due to the inconsistency of the verdicts on the two charges related to his possession of the altered weapon.

Affirmed.