author: Donald L. Corbin, Justice. ROBERT L. Brown, Justice,

text:
    Robert Neal HELTON Jr. v. STATE of Arkansas
    CR 96-106
    924 S.W.2d 239
    Supreme Court of Arkansas
    Opinion delivered June 24, 1996

      Etoch Law Firm, by: Louis A. Etoch, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Deputy Att’y Gen. and Senior Appellate Advocate, for appellee.
   Donald L. Corbin, Justice.

Appellant, Robert Neal Helton Jr. was found guilty by a jury of rape in 1994 and sentenced to life in the Arkansas Department of Correction. This court affirmed. Helton v. State, 320 Ark. 352, 896 S.W.2d 887 (1995). Helton now appeals the ruling of the Saline County Circuit Court denying him postconviction relief under Rule 37.1 of the Arkansas Rules of Criminal Procedure. Jurisdiction is properly in this court pursuant to Ark. Sup. Ct. R. l-2(a)(5). In support of his claims on appeal, appellant argues that he was denied effective assistance of trial counsel during the guilt phase as well as the sentencing phase of the trial. We find no error in the denial of postconviction relief, and therefore we affirm.

We see no need to repeat the facts of this case as they are frilly stated in our prior decision. Helton, 320 Ark. 352, 896 S.W.2d 887 (1995). Suffice it to say that appellant was convicted of rape and sentenced by the jury to life imprisonment. During appellant’s trial, the state called five witnesses, including the victim, the couple with whom the victim resided, the victim’s boyfriend, and the police detective assigned to the case. The state introduced no physical or documentary evidence, nor any medical evidence during the guilt phase of the trial. Appellant did not take the stand in his own behalf; however, three alibi witnesses, appellant’s fiancee and her parents, testified in his defense. Appellant presented no physical or medical evidence during either phase of the trial. Following appellant’s conviction, direct appeal was taken, and this court affirmed the judgment of conviction.

Appellant argues on appeal that his trial counsel was ineffective during both the guilt phase and the sentencing phase of the trial. Specifically, appellant asserts that trial counsel was ineffective during the guilt phase in failing to call three additional witnesses for the defense and in failing to secure independent DNA testing. Appellant claims that trial counsel was ineffective during the sentencing phase for not calling any witnesses nor presenting any argument in mitigation. We conclude there is no merit to either of appellant’s claims.

I. Standard of Review

This court will reverse a trial court’s denial of postconviction relief only if its findings are clearly erroneous or clearly against the preponderance of the evidence. Vickers v. State, 320 Ark. 437, 898 S.W.2d 26 (1995). In order to succeed on a claim of ineffective assistance of counsel, a petitioner must show that counsel’s conduct was outside the range of reasonably professional assistance and sufficiendy deficient to have denied petitioner a fair trial. Neff v. State, 287 Ark. 88, 696 S.W.2d 736 (1985). There is a strong presumption that trial counsel’s conduct falls within the wide range of reasonable professional assistance, and a petitioner has the burden of overcoming this presumption by identifying specific acts or omissions of trial counsel which, when viewed from counsel’s perspective at the time of the trial, could not have been the result of reasonable professional judgment. See, e.g., Wainwright v. State, 307 Ark. 569, 823 S.W.2d 449 (1992); Dumond v. State, 294 Ark. 379, 743 S.W.2d 779 (1988). Furthermore, matters of trial tactics and strategy are not grounds for postconviction relief. Vickers, 320 Ark. 437, 898 S.W.2d 26; Leasure v. State, 254 Ark. 961, 497 S.W.2d 1 (1973).

This court has expressly adopted the criteria for establishing a claim of ineffective assistance of counsel set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). See Crockett v. State, 282 Ark. 582, 669 S.W.2d 896 (1984). In Strickland, the Supreme Court held:

A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction . . . has two components. First the defendant must show 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 defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is rehable.

Strickland, 466 U.S. at 687.

Because there is a strong presumption that a duly licensed attorney is competent, a court deciding an ineffectiveness claim must consider the totality of the evidence that was before the jury and judge the reasonableness of the challenged conduct on the facts of the particular case at the time of counsel’s actions. Dumond, 294 Ark. 379, 743 S.W.2d 779. But, under the Strickland standard, even professionally unreasonable errors by counsel do not warrant reversal of a conviction if the errors were not prejudicial to the defendant and had no effect on the judgment. Noble v. State, 319 Ark. 407, 892 S.W.2d 477 (1995). In other words, a petitioner must show that but for counsel’s errors at trial, the outcome of the case would have been different. Rowe v. State, 318 Ark. 25, 883 S.W.2d 804 (1994); Pruett v. State, 287 Ark. 124, 697 S.W.2d 872 (1985). In reviewing appellant’s claims, we must first determine whether any of counsel’s alleged errors fall outside the range of professionally reasonable assistance, and if so, whether there is a reasonable probability that the outcome of appellant’s case would have been different. We address each of the allegations separately.

II. Omission of Additional Witnesses

Appellant first argues that he was denied effective assistance of counsel because his attorney failed to call three additional witnesses on his behalf: (1) Edward Vollman, Chief Serologist at the Arkansas State Crime Laboratory; (2) Michael Melson, an additional alibi witness; and (3) Tommy Bittle, a friend of appellant. With respect to Mr. Vollman, appellant argues that trial counsel should have called him to testify about the medical evidence submitted by the state upon which he conducted tests. Appellant asserts that this testimony could have changed the outcome of the trial as it would have cleared him of the charge of rape.

Pursuant to court order, blood and hair samples from appellant were submitted to the state crime laboratory for comparison with the semen found on vaginal swabs included in a rape kit performed on the victim and semen found in the victim’s underpants. During the hearing conducted on the Rule 37 petition, Mr. Vollman testified that both appellant and the victim had the same blood type (“O”); that both were secretors (persons who secret their ABO blood grouping into all their body fluids); and that both possessed the PGM Type-1 enzyme. Mr. Vollman stated that the results of the testing of the vaginal swabs revealed the presence of the “H” blood group substance and the PGM Type-1 enzyme. According to Mr. Vollman, the “H” substance could have been deposited by any person who is a secretor (about eighty percent of the population), no matter what the person’s ABO blood type. Mr. Vollman further stated that the “H” substance and the PGM Type-1 enzyme found on the vaginal swabs could have come from either the victim or appellant.

As for the semen discovered in the victim’s underpants, Mr. Vollman stated that he found the presence of the “H” substance, as well as the presence of the “B” blood group substance. Again, Mr. Vollman stated that the “H” substance could have been deposited in the underpants by either appellant or the victim. In contrast, however, Mr. Vollman stated that because the “B” substance could only have been deposited by a person having blood type “B,” someone other than appellant or the victim must have deposited the “B” substance found in the underpants. Appellant thus asserts that Mr. Vollman’s testimony demonstrates that none of the serology tests could connect him to the victim in any way, and that trial counsel was ineffective for failing to put this witness on the stand.

Appellant’s argument is flawed because he assumes that the serologist’s testimony would have completely eliminated him as the perpetrator. Mr. Vollman testified that the semen found on the vaginal swabs taken from the victim could have been deposited by either the victim or appellant, and that the tests he performed did not exclude appellant as the perpetrator. As for the semen found in the victim’s underpants, Mr. Vollman stated that the “H” substance could have been deposited by appellant, but that the “B” substance could not have come from him. The fact that a blood group substance different from appellant’s was detected in the semen found in the victim’s underpants did not rule out that appellant committed the crime, as the victim testified that she had had sexual intercourse with her boyfriend during the same time frame. The jury could have found that the medical evidence was thus consistent with appellant’s guilt. It is certainly possible that the victim’s boyfriend was responsible for the presence of the “B” substance found in the victim’s underpants. It would appear then, that had Mr. Vollman been called as a defense witness, his testimony would not have been entirely favorable to appellant’s case.

During the Rule 37 hearing, appellant’s trial counsel, Joe Kelly Hardin, explained his reasons for not calling Mr. Vollman as a witness. Mr. Hardin stated that he felt that the medical testing done by the state crime laboratory was inconclusive and that it could have hurt the defense as much as it could have helped. Mr. Hardin stated that he had heard the prosecution argue those types of results, whether positive or negative, “a thousand times.” Mr. Hardin stated he felt the tests were inconclusive and that the victim’s testimony that she had sex with her boyfriend on the night of the rape may have explained those findings. Mr. Hardin stated that he felt that appellant’s best chance of being acquitted was to present an alibi defense and then argue that the state had not met its burden of proof since it was only the victim’s word against appellant’s.

The state did not attempt to bolster its case by presenting Mr. Vollman’s testimony or any other medical evidence. In this way, Mr. Hardin’s defense strategy seems logical, as he could and did argue to the jury that the victim’s testimony was not corroborated by any medical evidence linking appellant to the crime. In light of the fact that the medical evidence could have harmed the defense just as easily as it could have helped, we cannot say that the decision not to call Mr. Vollman as a witness for the defense amounted to ineffective assistance of counsel.

Trial counsel’s decision not to present Mr. Vollman’s testimony was a tactical one within the realm of counsel’s professional judgment. This court has previously held that an attorney’s decision not to call a particular witness is largely a matter of professional judgment, and the fact that there was a witness or witnesses who could have offered testimony beneficial to the defense is not itself proof of counsel’s ineffectiveness. Dumond, 294 Ark. 379, 743 S.W.2d 779 (1988); Tackett v. State, 284 Ark. 211, 680 S.W.2d 696 (1984). Moreover, Rule 37 does not provide a forum to debate trial tactics or strategy, even if that strategy proves improvident. Watson v. State, 282 Ark. 246, 667 S.W.2d 953 (1984).

The second witness appellant argues should have been called to testify was Michael Melson. Michael Melson is the brother of petitioner’s fiancee, Deborah Melson. Appellant argues that Mr. Melson would have been the best witness for his alibi defense, and that trial counsel was ineffective for not calling him to testify. During the Rule 37 hearing, Mr. Melson testified that on the night of the rape, appellant spent the night at Melson’s house; that they worked on appellant’s truck until about 11:00 p.m.; that they went inside the house around 11:00 p.m. and each took a shower and went to sleep; that he was awake until 1:00 or 1:30 a.m.; and that when he got up the next morning, appellant was still on the couch. Appellant asserts that Mr. Melson’s testimony would have been better received by the jury than the testimony of Deborah Melson, because of her relationship to appellant, and the testimony of her parents, because their testimony was confusing to the jury.

Had Mr. Melson testified at trial as he did at the Rule 37 hearing, his testimony would have been inconsistent with that of his sister, Deborah Melson, as Deborah Melson testified that appellant had been asleep with her in her bedroom that night, not asleep on the couch as Michael Melson would have claimed. When questioned about the decision not to put Michael Melson on the witness stand, Mr. Hardin stated that his decision was based on the fact that the other three members of the Melson family had testified so badly that he felt it was best not to submit an additional bad witness, especially one who would testify to essentially the same things the other three had described. We cannot say that the decision not to call- Mr. Melson was anything other than trial strategy, and thus counsel’s decision is not grounds for granting postconviction relief.

During the hearing below, both Mr. Hardin and Mr. Melson indicated that Melson would testify essentially the same as appellant’s other three witnesses. We are, therefore, satisfied that Mr. Melson’s testimony would have been cumulative, and as such, counsel’s decision not to call this witness was neither erroneous nor prejudicial to the defense. The omission of a witness when his or her testimony is cumulative does not deprive the defense of vital evidence. Dumond, 294 Ark. 379, 743 S.W.2d 779.

Appellant’s reliance on Farmer v. State, 321 Ark. 283, 902 S.W.2d 209 (1995) is misplaced. In Farmer, this court held that trial counsel was ineffective because he failed to subpoena the only witness who could corroborate the defendant’s version of the events, and because counsel did not request a continuance when the witness did not appear at trial. Because Mr. Melson was not the only witness who could corroborate appellant’s alibi, this case is distinguishable from Farmer. In the present case, three alibi witnesses were presented to the jury.

The third witness appellant asserts should have been called in his defense is Tommy Bitde. Tommy Bitde testified at the hearing below to a prior inconsistent statement made to him by the victim. Specifically, Mr. Bitde stated that he had spoken to the victim and that she had told him that appellant had made advances toward her and that when she declined the last advance, appellant grabbed her by the throat until she screamed, and that appellant then let her go. Mr. Bitde stated that during their conversation, he had stated to the victim, “So, nothing really happened,” and that the victim had responded by saying that, “What he did was he scared me real bad.” Mr. Bitde stated that the victim had told him that she had been raped before. Appellant argues that this testimony by Mr. Bitde would have demonstrated that the victim was lying about the act of rape. Mr. Bitde stated that he had told appellant about this conversation with the victim, and that he had also told appellant’s mother and another individual. On cross-examination, however, Mr. Bitde admitted that he had not reported this conversation to the police.

Mr. Hardin testified that the first time he had ever heard about Tommy Bitde’s conversation with the victim was at the Rule 37 hearing. Mr. Hardin stated that to the best of his recollection, appellant had never told him about Tommy Bittle’s conversation with the victim, and that if appellant had told him about this evidence, he would have remembered it. In contrast, during his testimony at the Rule 37 hearing, appellant claimed that he had told Mr. Hardin about Tommy Bitde’s conversation with the victim prior to the trial.

Appellant asserts that had counsel properly investigated the case, he would have discovered the existence of Mr. Bitde’s prior conversation with the victim. As it appears to be appellant’s word against Mr. Hardin’s concerning counsel’s knowledge of the witness, we are unable to determine whether counsel’s omission fell outside the range of professionally reasonable assistance. However, even if we assume that it was error for counsel not to have discovered Mr. Bitde’s testimony, we cannot say that such an error prejudiced appellant’s defense. Appellant’s counsel had strategically developed an alibi defense and had presented witnesses in support of that strategy. Mr. Bitde’s testimony would have been in direct conflict with this strategy. On the one hand, appellant would have been claiming through his alibi witnesses that he was never with the victim that night, while on the other hand, through Mr. Bitde’s testimony, it would have appeared that appellant was admitting that he was with the victim that night, that he made advances toward her, that he became violent when she rejected his advances, but that she was lying about the occurrence of sexual intercourse. We cannot say that counsel’s omission was prejudicial to appellant’s case, even though it may have tended to somewhat discredit the victim’s testimony. Further, we are not prepared to go so far as to say that counsel omitted this testimony at all, since counsel testified that he had never been informed of the information before trial. Because this conflicting testimony was potentially damaging to the defense, we hold that the failure of counsel to call Tommy Bittle as a defense witness, even if counsel had been aware of his testimony, did not amount to ineffective assistance of counsel.

In his brief,. appellant relies on this court’s decision in Wicoff v. State, 321 Ark. 97, 900 S.W.2d 187 (1995), for the proposition that counsel’s omission of these additional witnesses is grounds for granting him relief. In Wicoff, this court granted postconviction relief on the bases that counsel failed to present additional witnesses to the jury, witnesses which counsel admitted would have provided vital information to the jury and would have tended to raise doubt in the minds of the jurors. This court held that the omitted testimony was prejudicial to Wicoff’s defense, and necessarily deprived him of a fair trial. In contrast, trial counsel in the present case has denied the vitality of the omitted testimony from Mr. Vollman and Mr. Melson, has denied knowledge of the testimony of Mr. Bittle, and has given full explanations as to his reasons for not presenting their testimony to the jury. Given counsel’s reasonable explanations, we are satisfied that the omitted testimony was not in fact prejudicial to appellant’s case. Appellant also relies on Russell v. State, 302 Ark. 274, 789 S.W.2d 720 (1990). In Russell, this court held that because counsel failed to call the two witnesses who could cast doubt on the defendant’s guilt, witnesses of whom counsel admitted he was aware, counsel’s trial performance fell below an objective standard of competence, and that the defendant was prejudiced as a result. Again, for the reasons outlined above, Russell is distinguishable from the present case.

III. Omission of Independent DNA Testing

As part of his first point on appeal, appellant argues that trial counsel was ineffective in failing to secure DNA testing on the semen samples collected from the victim and appellant. Appellant argues that had counsel sought DNA analysis he would have been completely cleared as the perpetrator.

Appellant submits that at the time of his trial, DNA analysis was widely accepted as a means of scientific testing. The state does not dispute this. At the Rule 37 hearing, Mr. Vollman testified that DNA testing was both widely accepted and available to defendants. Mr. Vollman indicated that if appellant had not had sexual intercourse with the victim, the results of a DNA test would likely have excluded him as the perpetrator. On the other hand, Mr. Vollman stated, if appellant had engaged in sexual intercourse with the victim, a DNA test could likely identify him as the perpetrator.

In defense of his decision not to seek independent DNA testing, Mr. Hardin stated that, although he was aware of the availability and acceptance of DNA testing, he did not seek a DNA test because he was concerned that once he had requested the test, he would have been obligated to provide the results to the state, and if the results had “nailed” appellant as the perpetrator, there would have been no possibility of getting him acquitted. As it was, the evidence against appellant consisted of the testimony of the victim and those persons she told about the rape. Mr. Hardin stated that he felt appellant had a better chance at acquittal with the alibi witnesses he had prepared, especially if they would have been better witnesses, and with his argument attacking the state’s case for lack of evidence.

We are convinced that the decision not to seek independent DNA testing was a decision clearly within the realm of counsel’s professional judgment and trial strategy. In Dumond, this court observed:

There are numerous scientific tests which could be conducted on physical evidence in a criminal trial and failure of counsel to seek a particular test will not amount to a denial of the counsel guaranteed by the sixth amendment unless it can be concluded that the test was one which any competent attorney under the same circumstances would have sought.

294 Ark. 379, 386, 743 S.W.2d 779, 782-83 (emphasis added).

We cannot say that any competent attorney defending a client on a charge of rape would necessarily have sought independent DNA testing in an attempt to bolster the client’s defense. This is especially true in a situation where the evidence against a defendant consists solely of the victim’s testimony. The decision whether or not to seek such a test is a big gamble in that the evidence is likely to be conclusive one way or the other — either eliminating the defendant as the perpetrator or implicating him as such. Mr. Hardin’s explanation of his decision not to seek DNA testing is reasonable, especially in light of the fact that had the test been completed and the results were unfavorable to appellant, the state would have been able to use that evidence against appellant in its case-in-chief.

Appellant offers no proof that any competent attorney in Mr. Hardin’s situation would have sought such a test, let alone any proof that but for counsel’s failure to request a DNA test, there is a reasonable probability that the outcome of his trial would have been different. This court is unwilling to view counsel’s conduct in hindsight, and we are not convinced that the results of any scientific testing would have altered the outcome of appellant’s trial. This is especially true in light of this court’s previous determination that a victim’s testimony alone provides substantial evidence to support a conviction of rape. See Bishop v. State, 310 Ark. 479, 839 S.W.2d 6 (1992). Furthermore, since we do not know what the outcome of the tests would have been, we cannot gauge whether DNA testing would have caused the jury to have a reasonable doubt of appellant’s guilt. Thus, we cannot hold that the trial court was clearly erroneous in finding that trial counsel was not ineffective in failing to seek independent DNA testing.

IV Mitigation in Sentencing

For his final point appellant argues that counsel was ineffective during the sentencing phase of the trial because he did not present any mitigating evidence or argument in an attempt to persuade the jury to be lenient in sentencing appellant. Appellant has failed to identify with any specificity what mitigating evidence counsel omitted during sentencing, and instead provides us with only bare allegations. This is his burden under the standard provided in Strickland. Since appellant cannot even prove that any mitigating evidence existed, we hold that trial counsel’s conduct did not deprive petitioner of effective assistance of counsel. See Swindler v. State, 272 Ark. 340, 617 S.W.2d 1 (1981). It is for this reason, as well as those stated above, that we affirm the trial court’s ruling denying appellant postconviction relief.

Affirmed.

NEWBERN and Brown, JJ., dissent.

Dudley, J., not participating.

ROBERT L. Brown, Justice,

dissenting. I would grant a new trial solely on the basis that trial counsel failed to call the crime lab serologist, Edward Vollman. Vollman testified at the Rule 37 hearing that his tests confirmed that the victim and Helton had the same blood type which was “O.” Seminal stains found on the victim’s underpants, however, confirmed a “B” blood type, which was not Helton’s blood group. That was a crucial piece of medical evidence. In my judgment, that evidence could have changed the outcome of the trial by creating a reasonable doubt of culpability. It certainly denied Helton a fair trial.

It is true that Helton is a “secretor,” and evidence of a secretor’s semen was found. But 80 percent of the population are secretors and the inescapable fact is Helton’s blood type was not found. A third party was involved. This is how the serologist put it:

DEFENSE COUNSEL: And Robert Helton, could he have left that fluid or item in her underpants with the B group?
VOLLMAN: No.
DEFENSE COUNSEL: Could not have have (sic) occurred?
VOLLMAN: No.
DEFENSE COUNSEL: So really then Robert Helton is excluded from depositing the bodily fluid or substance that was found in Rebecca Shyrock’s undepants (sic) the very next day in the rape kit that you tested?
VOLLMAN: He is excluded from the “B” substance. There’s also the “H” substance that was present, which he is not excluded from.
DEFENSE COUNSEL: Let me ask about the “B” and the “H” substance. Could the same person that deposited the “B” substance, that person being someone other than Robert Helton, could that person also have deposited the “H” substance?
VOLLMAN: Yes, because a person can deposit the “H” substance no matter what their ABO type is if they are a secretor.
DEFENSE COUNSEL: So the “B” and the “H” could have been deposited by the same person and that person would not have been Robert Helton, correct?
VOLLMAN: That’s a possibility.
DEFENSE COUNSEL: The “H” substance could have been deposited by Rebecca Shyrock because she was a type “O”, is that correct?
VOLLMAN: Yes.
DEFENSE COUNSEL: But there’s no way that “B” substance could have been deposited either by Robert Helton or Rebecca Shyrock?
VOLLMAN: That’s correct.
DEFENSE COUNSEL: It came from some third person?
VOLLMAN: Yes.

Trial counsel urged at the Rule 37 hearing that he did not call the serologist as a witness because he wanted to argue that the State produced no corroborative medical evidence. That argument might have some appeal but for the fact that the serologist had exculpatory evidence that would have aided the defense. The State, of course, did not call Vollman for obvious reasons.

In Wicoff v. State, 321 Ark. 97, 900 S.W.2d 187 (1995), we granted a new trial due to counsel’s failure to call the defendant’s grandmother who would have testified that the eleven-year-old victim told her she fabricated the rape story. The exculpatory evidence in this case, as it relates to blood type, is even more persuasive and less subject to challenge than a grandmother’s testimony.

In 1992, the Missouri Supreme Court reversed a rape conviction due to trial counsel’s failure to obtain requested blood tests and granted a new trial. Moore v. Missouri, 827 S.W.2d 213 (Mo. 1992) (en banc). Those tests would have shown that the source of the semen found on bed sheets could not have been the defendant. The Supreme Court held that counsel’s failure to obtain the results fell below reasonable and customary standards and that there was at least a reasonable probability that the trial results would have been different. The Helton case is certainly analogous to these facts.

The jury should have been privy to this important piece of medical evidence in reaching its verdict. I respectfully dissent.

NEWBERN, J., joins.


source: Caselaw Access Project

author: Donald L. Corbin, Justice.

license: Public Domain

text:
    Corinthian McCOY v. STATE of Arkansas
    CR 96-6
    925 S.W.2d 391
    Supreme Court of Arkansas
    Opinion delivered June 24, 1996

      Joe Kelly Hardin, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Deputy Att’y Gen., Sr. Appellate Advocate for appellee.
   Donald L. Corbin, Justice.

Appellant, Corinthian McCoy, was convicted by a jury of first-degree murder and attempted second-degree murder, and sentenced by the Saline County Circuit Court to life in the Arkansas Department of Correction. McCoy appeals the circuit court’s judgment of conviction, and this court has jurisdiction of the appeal pursuant to Ark. Sup. Ct. R. 1-2(a)(2). McCoy raises two points on appeal: (1) The trial court erred in allowing the prosecution to introduce items seized in an illegal search of appellant’s vehicle; and (2) the trial court erred in allowing the prosecution to introduce appellant’s custodial statement, as it was involuntary and taken without regard to appellant’s request for an attorney. We affirm.

In the early-morning hours of August 6, 1994, a shooting occurred at Jimmy Dirden’s Club in Benton, Arkansas, which resulted in the death of Willie Mills and the injury of Raymond Lewis. Benton Police officers discovered a piece of metal in the club’s parking lot that was similar to a .22 caliber bullet. Raymond Lewis, who suffered a gunshot wound to the leg, told officers that a black male driving a light-colored big car, such as an Oldsmobile or a Buick, left Dirden’s and began shooting from inside his vehicle into a crowd of people standing outside the club. Lewis told the officers that the vehicle driven by the shooter had no license plate, and that the man who did the shooting was kin to Demetrius Woods.

Officers spoke to Demetrius Woods, who stated that he was present when the crime occurred and that it was his cousin Corinthian who did the shooting. Woods told police that he did not know Corinthian’s last name, but that he did know that Corinthian had recently received a traffic ticket for no vehicle license in Alexander or Bryant, Arkansas. Woods also stated that at the time of the incident, Corinthian was driving a big, light-colored car, possibly an Oldsmobile, which had no license plate.

Investigating officers subsequendy located the Arkansas State Police officer who issued the traffic ticket to the individual known to the officers only as “Corinthian.” A copy of the traffic citation, which was written for no vehicle license, revealed that the driver of the vehicle was identified as Corinthian McCoy and that the vehicle driven was a white Oldsmobile. Upon having identified appellant as the suspect, officers located appellant’s residence in Litde Rock, Arkansas, and arrested him later that same day of the shooting. Officers also located the vehicle in question at appellant’s residence and identified it as a 1980 light gray Oldsmobile Delta 88 bearing no license plate. Upon his arrest, appellant was interviewed by a police detective and denied any involvement in the shooting. Officers seized the vehicle from appellant’s residence and later conducted a search of its contents pursuant to a search warrant. The only evidence of the crime found during the search of the vehicle was a .22 caliber bullet.

Prior to appellant’s trial, a hearing was conducted on the motions to suppress appellant’s statement and the evidence recovered in the search. After hearing the testimony presented, the trial court denied appellant’s motion to suppress the physical evidence, stating that there was sufficient identification of the vehicle in the affidavit to support application for the search warrant. After reviewing the contents of the statement itself, the trial court also denied appellant’s motion to suppress the custodial interview.

I. Search of the Vehicle

Appellant argues that the trial court erred in failing to suppress the evidence found in a search of the vehicle appellant was driving on the night of the shooting. Specifically, appellant argues that the affidavit for search warrant insufficiently identified the proper vehicle to be searched, and that the trial court erred in allowing a witness to testify beyond the information contained in the affidavit. The state argues that appellant lacked standing to challenge the search as he did not present any proof that he owned or legally possessed the automobile. We agree.

It is well settled that a proponent of a motion to suppress bears the burden of establishing that his Fourth Amendment rights have been violated. Rockett v. State, 319 Ark. 335, 891 S.W.2d 366 (1995) (citing Rakas v. Illinois, 439 U.S. 128 (1978)). Fourth Amendment rights are personal in nature. Rockett, 319 Ark. 335, 891 S.W.2d 366; State v. Hamzy, 288 Ark. 561, 709 S.W.2d 397 (1986). The pertinent inquiry regarding standing to challenge a search is whether a defendant manifested a subjective expectation of privacy in the area searched and whether society is prepared to recognize that expectation as reasonable. Littlepage v. State, 314 Ark. 361, 863 S.W.2d 276 (1993), (citing United States v. Erwin, 875 F.2d 268 (10th Cir. 1989)). This court will not reach the constitutionality of a search where a defendant has failed to show that he had an expectation of privacy in the object of the search. Littlepage, 314 Ark. 361, 863 S.W.2d 276. A defendant has no standing to question the search of a vehicle owned by another person, unless he can show that he gained possession from the owner or from someone who had authority to grant possession. Id.; State v. Barter, 310 Ark. 94, 833 S.W.2d 372 (1992).

In the hearing below, appellant presented no proof whatsoever that he had a legitimate expectation of privacy in the car. Appellant’s argument to the trial court attacked the search warrant on the basis that there was no evidence linking the car found at his residence with the car involved in the crime; however, counsel’s questions and remarks indicated a different line of attack, specifically, that the car was not appellant’s. Through cross-examination of Officer Jimmy Holiman, appellant’s counsel elicited testimony to the effect that the officer had no evidence to indicate that appellant was the actual owner of the vehicle and that a check of the car’s VIN (vehicle identification number), showed the owner as Irma L. Brooks. Through this line of questioning, appellant’s counsel all but admitted that appellant had no expectation of privacy in the vehicle.

Appellant took the stand during the suppression hearing, but his testimony was limited to the subject of his custodial statement. Appellant offered no proof that the car was his or that he lawfully possessed it. Because appellant failed to establish lawful possession of the car, we conclude he had no standing to challenge the search of the car. For that reason, we do not reach the merits of his argument on appeal, and we affirm the trial court’s ruling.

II. Custodial Statement

For his second point, appellant argues that the police obtained a custodial statement from him in violation of his rights under the Fifth and Sixth Amendments. Appellant asserts that his waiver of Miranda rights was not made voluntarily, that his request for counsel was denied, and that he made the statement under duress and threats from the officer. We do not find any of these arguments persuasive, and therefore we affirm.

When voluntariness of a statement is an issue, we make an independent determination based on the totality of the circumstances surrounding the statement. Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996). We will reverse the ruling of the trial court only if that ruling was clearly against the preponderance of the evidence. Magar v. State, 308 Ark. 380, 826 S.W.2d 221 (1992). A custodial statement is presumed involuntary, and the burden is on the state to show that the statement was voluntarily given. Misskelley, 323 Ark. 449, 915 S.W.2d 702. A confession based on threats of harm is inadmissible. Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987). In making a determination of whether a statement was voluntarily made, this court will consider many factors, among which are the age, education, and intelligence of the accused; the length of questioning; the advice or lack of advice on constitutional rights; the repeated or prolonged nature of questioning; and the use of mental or physical punishment. Misskelley, 323 Ark. 449, 915 S.W.2d 702.

During the suppression hearing, appellant and Sergeant Dan Garner of the Benton Police Department were the only persons to testify, and their testimony was conflicting. This court has previously held that conflicts in testimony are for the trial court to resolve, as it is in a superior position to determine the credibility of the witnesses. Duncan, 291 Ark. 521, 726 S.W.2d 653. The issue of whether appellant was threatened is a credibility issue. Stone v. State, 290 Ark. 204, 718 S.W.2d 102 (1986). Based on the testimony presented, we cannot say the trial court’s determination that the statement was voluntary was clearly against the preponderance of the evidence.

Appellant testified that he was twenty-one years old at the time of the interview, that he was advised of his rights, and that he asked for an attorney but the officer told him he would get one when he went to court. Appellant further testified that he felt threatened when the officer informed him that there was a warrant for his arrest and that appellant would be arrested at the conclusion of the interview. On cross-examination, appellant conceded that he had previously been interviewed by the police on two occasions, and that during both those interviews he was read his rights and he understood them. Appellant admitted that during the present interview he understood that he did not have to say anything at all without a lawyer present, but that he went ahead and gave a statement because he felt threatened. Appellant maintained that he only gave a statement because the officer told him “you’re going to jail anyway,” and that by the officer’s statement, he assumed that if he made a statement the officer would let him go.

The officer’s testimony and the transcript of the taped interview contradict appellant’s version of what took place. Sergeant Garner testified that he read appellant his Miranda rights from a statement of rights form prior to questioning appellant. Garner stated that appellant signed the form and appeared to understand his rights. Garner stated that before the interview began, appellant asked if Garner thought appellant needed an attorney, and that Garner responded by telling appellant that it was up to him (appellant) to decide whether he felt like he needed an attorney. Garner stated that he informed appellant that he had an arrest warrant for appellant, and that he was going to arrest appellant whether he made a statement or not.

The state introduced into evidence the statement-of-rights form signed by appellant as well as the transcript of the taped interview. The statement-of-rights form reflects that appellant not only signed his name at the bottom of the document, but that he also responded “Yes” to each of the rights read to him and that he put his initials by each response. The transcript of the interview reflects that Garner informed appellant that there were enough statements and enough witnesses to obtain the bench warrant, and that he was going to arrest appellant regardless of whether appellant gave a statement. The transcript also reflects that Garner stated that he wanted to hear appellant’s side of the story and that appellant had the right to talk to an attorney before giving a statement, but that appellant would be arrested and charged whether he talked to the officer or not. Appellant then gave a statement denying any involvement in the shooting and, furthermore, denying that he had even been in Benton on that night. At no point during the interview, which lasted only twelve minutes, did appellant inculpate himself in the crime.

After careful consideration of the matter, we find that appellant voluntarily waived his Miranda rights, that he gave the statement voluntarily without the presence of an attorney, and that no threats or coercion were used on appellant. We find it particularly persuasive that appellant had been in this situation twice before and that, by his own admission, he understood he did not have to give a statement without an attorney present. There was no evidence that appellant was so lacking in either education or intelligence that he did not understand what he was doing. In fact, appellant was twenty-one years old at the time of the interview, hardly an age at which he was incapable of making such a decision. Morepver, the duration of the interview itself was a mere twelve minutes.

As for the allegations of threats or duress, we find that the officer’s statement that he was going to arrest appellant regardless of whether appellant told his side of the story does not rise to the level of being a threat. To the contrary, it indicates to us that the officer had already planned to arrest appellant and that appellant’s actions in choosing either to give a statement or not to give a statement would not have changed the officer’s plans. There is no evidence at all to support appellant’s claim that he thought that if he gave a statement the officer would release him without arresting him. Appellant’s claim that he felt threatened or pressured into giving a statement is especially unpersuasive in light of the fact that his statement was exculpatory in nature and amounted to nothing more than a blanket denial of the allegations. Based on all of the foregoing, we find that the statement was voluntarily given and that the trial court did not err in denying appellant’s motion to suppress the statement.

In accordance with Rule 4-3 (h) of the Arkansas Supreme Court Rules, the record has been reviewed for adverse rulings objected to by appellant but not argued on appeal, and no error was found. For the aforementioned reasons, we affirm the judgment of conviction.

Affirmed.

Dudley, J., not participating.


author: ROBERT L. Brown, Justice. ANDREE LAYTON Roaf, Justice,

text:
    Rick GANSKY v. HI-TECH ENGINEERING; ITT Hartford
    96-335
    924 S.W.2d 790
    Supreme Court of Arkansas
    Opinion delivered June 24, 1996

      Lane, Muse, Arman & Pullen, by: Donald C. Pullen, for appellant.

      Anderson & Kilpatrick, by: Randy P. Murphy, for appellees.
   ROBERT L. Brown, Justice.

This matter comes to us on review of a decision by the Court of Appeals in which that court was divided by a vote of three to three. Gansky v. Hi-Tech Eng’g, 52 Ark. App. 147, 916 S.W.2d 124 (1996). Because the vote in the Court of Appeals was evenly split, the decision by the Workers’ Compensation Commission to deny additional benefits to appellant Rick Gansky was affirmed. We granted review of the decision of the Court of Appeals pursuant to Ark. Sup. Ct. R. l-2(f). Gansky now raises two issues to this court on review: (1) the Commission erred in refusing to find a need for continued medical treatment, and (2) the Commission was in error when it decided the issue of temporary total disability before a functional capacity assessment was completed and Gansky was released from a physician’s care. We agree that the Commission erred in its decision, and we reverse that decision and remand.

On October 31, 1992, Rick Gansky suffered a work-related injury while working as a machinist for Hi-Tech Engineering (Hi-Tech). It was stipulated by the parties that Hi-Tech accepted the claim and paid' medical and disability benefits from the date of the injury until February 22, 1993, after which time Hi-Tech disputed Gansky’s need for continued medical treatment.

On December 13, 1993, a hearing was held before the Administrative Law Judge on the issue of additional medical treatment for Gansky. At the time of the hearing, Gansky was thirty-four years old. He testified that he began working for Hi-Tech in June of 1991. He admitted that he had sustained a previous work-related injury to his lower back in February of 1990 while working for another company. As a result of that injury, he received a 5% permanent partial disability rating, and the claim was settled through a joint petition for approximately $4,000. Gansky stated that he did not have any physical problems when he started working for Hi-Tech. According to Hi-Tech’s Industrial Injury Reports, Gansky injured his back on March 10, 1992, and missed time from work. Over seven and one-half months later, he experienced the injury that is the subject matter of this claim.

Gansky described the October 31, 1992 injury at Hi-Tech in testimony before the Administrative Law Judge:

I was lifting parts that weighed about — I’d say anywhere from 150 pounds, maybe 200. They were 15 inch in diameter, solid steel, and I was lifting them and putting them in the lathe. I was doing the same parts all day, and finally my back just gave out, and I ended up with pains going from my shoulders into my neck and down my back and into my legs. At that time I had to quit and Joe had to put my shoes— change my shoes for me so I could go to the hospital.

Gansky stated that a subsequent MRI procedure revealed bulging discs in his lower back. He was referred by Dr. Jeffrey Reinhart to Dr. Allan Gocio, a neurosurgeon, and to Cleveland Smith, a physical therapist. Gansky stated that after his injury, he had been feeling better and that he had tried to go back to work at Hi-Tech several times. In fact, he did return to work on January 12 and 13, 1993, but began to feel pain in his neck and upper back and a tingling sensation in both arms. After a week or two, the pain worsened and, according to Gansky, he had returned to Dr. Gocio. Gansky testified that on Friday, February 19, 1993, before he was to see Dr. Gocio on Monday, February 22, 1993, Hi-Tech told him that he could consider himself laid off. He expected Dr. Gocio to release him on February 22, 1993, but Dr. Gocio recommended the functional capacity assessment instead. Hi-Tech, however, contested the need for continued medical treatment and refused to pay for this evaluation. Gansky testified that he has not seen a physician since that time and that he has not gone back to work. He stated that he has been “[a]t home sitting in a chair watching TV.” He testified that since February 22, 1993, he has had headaches that are caused by his neck pain. He also reported continued lower back pain that is less severe. He added that his neck pain and lower back problems prevented him from either standing or driving an automobile for long periods of time. For example, he stated that he could not raise his arms over his head without pain to his neck. The reason, he testified, that he did not seek further medical treatment was because “workmen’s comp quit paying the bills and [he] just [couldn’t] afford it. They won’t see [him] until the bills are paid.” He has taken prescription muscle relaxers, pain medication, and Advil since he last saw Dr. Gocio.

On cross-examination, Gansky admitted that he had been off work “about a year” after his first back injury in 1990. He also admitted that he initially complained of low back problems before complaining of neck problems and headaches. Although he testified that he could not pay for his medical bills, he admitted that he spent a weekend at the theme park, Six Flags, with his girlfriend and children but claimed that his girlfriend paid for the trip. He also admitted that he owns his home, a boat, and a riding lawn mower, and that he is able to do housework and to mow his yard while riding the mower. He stated that he had not been back to work at Hi-Tech because his doctor had not released him.

Under examination by the Administrative Law Judge, Gansky admitted that Dr. Gocio had not refused to treat him. He also advised the judge that he was told that he was being laid off due to a lack of work. It was stipulated that Gansky had an above average work performance record at Hi-Tech.

Also presented at the hearing before the Administrative Law Judge was a letter to the company physician, Dr. Jeffrey Reinhart, from Cleveland Smith, the physical therapist, which was dated January 25, 1993. That letter related that as of January 11, 1993, Gansky’s “symptoms have been all but alleviated, except for a minimal amount of soreness in the lumbar region” and that Gansky had gone back to work but returned two days later complaining of cervical spine pain and paresthesia in both upper extremities. The letter concluded: “Symptomatology has reduced during this period of treatments, but continues at a minimal level. Symptoms will increase with activities.” On February 25, 1993, Smith wrote Dr. Reinhart that Gansky’s symptomatology consisted only of a minimal headache, and after concluding that all physical therapy goals had been achieved, Gansky was released from further therapy sessions.

At the hearing, it was revealed that Dr. Godo concluded on January 27, 1993, that Gansky had “cervical and lumbar herniated disc with nerve root compression.” A cervical and lumbar myelogram was performed on that same date. The test revealed a normal lumbar myelogram, but Dr. Godo concluded that a CT scan procedure was needed to better evaluate the cervical spine. That examination showed no evidence of herniation but did show some stenosis. On January 29, 1993, Dr. Godo ordered continued physical therapy.

According to Dr. Gocio’s handwritten progress notes dated February 22, 1993, Gansky was doing better with less pain. However, on that date he wrote to the Levi Work Capacity Center and directed an appointment for Gansky to be evaluated in the functional capacity assessment program. Eight months later, Dr. Godo wrote to the attorney for Hi-Tech on October 21, 1993, as follows:

Mr. Rick Gansky was last seen by me on 02-22-93, and at this time the patient was improving significantly from a suspected cervical strain syndrome. Work up did not reveal a significant disc herniation either on MRI scan or myelography and my diagnosis at the time of the patient’s last visit was that of a cervical strain which was resolving satisfactorily with medical treatment. The patient was referred to the Levi Work Capacity Center for a functional capacity assessment and return to work if feasible after the functional assessment. This is the last contact that I had with the patient. I must assume that he has resolved his symptomatology or sought care from another physician.
I did not feel that the patient’s injury was permanent in nature or that he is likely to have any impairment. I believe that his diagnosis of cervical strain would resolve without significant impairment or long term symptomatology.

In his opinion filed on February 28, 1994, the Administrative Law Judge ordered Hi-Tech to pay Gansky’s medical expenses including the cost of the functional capacity assessment and any warranted treatment thereafter. The judge specifically reserved ruling on Gansky’s entitlement to temporary total disability benefits, pending further development of the medical evidence.

The Administrative Law Judge’s decision was appealed to the Workers’ Compensation Commission. In an opinion filed October 17, 1994, the Commission by a vote of two to one, reversed the Administrative Law Judge and determined that Gansky had failed to prove that further medical treatment was reasonable and necessary and that as a result, he was not entitled to temporary total disability benefits. Focusing on the report by the physical therapist, Cleveland Smith, the Commission concluded that Gansky’s healing period for the temporary aggravation to his lower back had ended by at least February 22, 1993. The Commission stated:

Furthermore, we also find that a preponderance of the evidence establishes that the October 31, 1992, injury only temporally aggravated the claimant’s preexisting back condition. The physical therapy reports establish that the claimant was essentially symptom free by January 11, 1993. Although he did experience another recurrence of symptoms, the physical therapy reports establish that he was again essentially symptom free by at least February 25, 1993. Also, Dr. Gocio has opined that the claimant’s injury was not permanent in nature. While the claimant may continue to need periodic medical treatment due to episodes of back pain related to the degenerative condition, the need for that treatment is not causally related to the compensable injury. Therefore, we find that the claimant failed to prove by preponderance of the evidence that additional medical care is reasonably necessary for treatment of the compensable injury, and we find that the administrative law judge’s decision in this regard must be reversed.

The issue now before us is whether the Commission erroneously denied Gansky benefits in the wake of the decision by the Administrative Law Judge to continue medical treatment. This court reviews a workers’ compensation case as though it had originally been filed here. Ark. Sup. Ct. R. 1-2 (f); Kuhn v. Majestic Hotel, 324 Ark. 21, 918 S.W.2d 158 (1996); Plante v. Tyson Foods, Inc., 319 Ark. 126, 890 S.W.2d 253 (1994). The issue then is whether medical treatment after February 22, 1993, was reasonable and necessary. Ark. Code Ann. § 11-9-508 (a) (1987). What constitutes reasonable and necessary treatment under this section is a question of fact for the Commission. Arkansas Dep’t of Correction v. Holybee, 46 Ark. App. 232, 878 S.W.2d 420 (1994); see also Morgan v. Desha County Tax Assessor’s Office, 45 Ark. App. 95, 871 S.W.2d 429 (1994). The answer to this issue naturally turns on the sufficiency of the evidence.

This court views the evidence and all reasonable inferences therefrom in the light most favorable to the Commission’s decision and affirms that decision when it is supported by substantial evidence. Kuhn v. Majestic Hotel, supra; Plante v. Tyson Foods, Inc., supra; Morgan v. Desha County Tax Assessor’s Office, supra. The Commission’s decision will be affirmed unless fair-minded persons with the same facts before them could not have arrived at the conclusion reached by the Commission. Kuhn v. Majestic Hotel, supra; Plante v. Tyson Foods, Inc., supra; Morgan v. Desha County Tax Assessor’s Office, supra; Tracor/MBA v. Baptist Medical Center, 29 Ark. App. 198, 780 S.W.2d 26 (1989). Credibility of the witnesses is a matter exclusively within the province of the Commission. See Kuhn v. Majestic Hotel, supra.

The Commission found that Gansky had temp orar fry aggravated a pre-existing condition. That is a compensable injury. See, eg., Curry v. Franklin Elec., 32 Ark. App. 168, 798 S.W.2d 130 (1990). The Commission admitted this in its opinion and order. But then the Commission concludes that the aggravation was over by February 25, 1993, and that Gansky was essentially symptom-free. In doing so, the Commission discounted the fact that Dr. Gocio had ordered a functional capacity assessment for Gansky and had refrained from releasing him from his care until that examination was completed and he could decide whether Gansky could return to work. At that juncture, Hi-Tech intervened and refused to pay for additional medical care, including the functional capacity assessment. Hence, that essential examination ordered by Dr. Gocio was never performed, and a final evaluation by the neurosurgeon was never made. The Commission appears to have concentrated on the reports of the physical therapist as opposed to those of Dr. Gocio. Under these circumstances when the treating neurosurgeon has prescribed a functional capacity assessment and that was not done because Hi-Tech would not pay for it, we cannot agree with the Commission that additional medical treatment was not reasonably necessary or that the healing period had ended. We conclude that fair-minded persons, viewing the same evidence, could not decide otherwise.

Moreover, the record, as the Commission states, does not reflect that Dr. Gocio opined that Gansky was rid of all symptomatology or ready to return to work. What Dr. Gocio wrote to Hi-Tech’s attorneys some eight months after he directed the functional capacity assessment was that he “assumed” the symptomatology had resolved itself because he had had no further contact with Gansky. The neurosurgeon added that he “believed” Gansky’s “diagnosis of cervical strain would resolve without significant impairment or long term symptomatology.” It is clear from reading Dr. Gocio’s letter that his opinion hinged on the results of the functional capacity assessment, which was not performed.

Having resolved the first issue in this manner, resolution of the second issue falls into place. The Administrative Law Judge appropriately delayed deciding whether Gansky had a temporary total disability until all the medical treatment, that is, the functional capacity assessment, was completed. This did not transpire. We do not view the reservation of a decision on this point as running afoul of the Court of Appeals’s decision in Gencorp Polymer Prods. v. Landers, 36 Ark. App. 190, 820 S.W.2d 475 (1991). In Landers, that court observed that a claimant should not be permitted a second opportunity to offer proof to meet her burden on the issue of her period of temporary total disability. The Court of Appeals further held that the Workers’ Compensation Commission had exceeded its authority in permitting her to do so. Here, Dr. Gocio ordered an additional assessment of Ganksy, and Hi-Tech contested the need for this additional treatment. The result is that Gansky’s initial medical treatment and evaluation were never completed. Those circumstances are fundamentally different from the facts which resulted in the Gencorp decision.

We, therefore, reverse the Court of Appeals and the Arkansas Workers’ Compensation Commission and remand this matter to the Commission with directions (1) to order payment of continued reasonable and necessary medical treatment, including the functional capacity assessment, and (2) to determine whether payment of additional benefits is warranted.

Reversed and remanded.

Dudley, J., not participating.

Glaze and Roaf, JJ., dissent.

ANDREE LAYTON Roaf, Justice,

dissenting. The majority correctly states that the standard of review for a decision of the Workers’ Compensation Commission is whether the decision is supported by substantial evidence, and a decision of the Commission will be affirmed unless fair-minded persons with the same facts before them could not have reached the conclusion arrived at by the Commission. Kuhn v. Majestic Hotel, 324 Ark. 21, 918 S.W.2d 158 (1996). The standard of review further provides that this Court will view the evidence in the light most favorable to the Commission’s decision. Plante v. Tyson Foods, Inc., 319 Ark. 126, 890 S.W.2d 253 (1994). On appeal, the issue is not whether this Court might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission’s conclusion, the decision must be affirmed. St. Vincent Infirmary Med. Ctr. v. Brown, 53 Ark. App. 30, 917 S.W.2d 550 (1996). The Commission is not bound by medical opinion, although it may not arbitrarily disregard the testimony of any witness. Crow v. Weyerhauser Co., 46 Ark. App. 295, 880 S.W.2d 320 (1994). The Commission may also examine the basis for a doctor’s opinion in deciding the weight to which that opinion is entitled. Id.

With this standard in mind, I do not agree that the decision of the Commission should be reversed in this case. The abstract and record reflect that, in addition to the evidence outlined by the majority, at the time Gansky went to work for Hi-Tech in June of 1991, he completed and signed under oath a pre-employment medical history, in which he denied ever having had trouble with his back and further denied that he had ever received Workers’ Compensation benefits. However, the record before the Commission reflects that Gansky suffered a back injury on February 14, 1990, while employed, under the name of Rick George, by Advanced Machine Corporation. He was off work about one year and filed a Workers’ Compensation claim as a result of this injury; this claim was setded by joint petition on May 17, 1991, less than one month prior to his employment with Hi-Tech. At the hearing on the joint petition, Gansky testified that he continued to experience recurrent episodes of back pain. He received a setdement in the sum of $3,815.78 for a 5% permanent impairment at the time of the joint petition. At Gansky’s last visit to the physician who treated him for this injury on March 20, 1991, he related that he experienced weekly episodes of back pain, which he claimed to be due to the physical demands of his employment as a machinist, and that this back pain caused him to sometimes miss work. Although Hi-Tech ultimately abandoned its Shippers defense based on Gansky’s misrepresentations at the time of his employment, this evidence certainly had bearing on his credibility in the proceedings before the Commission.

More importantly, it is clear from the evidence that Gansky was advised by Hi-Tech on Friday, February 19, 1993, that he was being laid off due to lack of work. Gansky signed the termination report which contained this information. He testified that when he visited Dr. Gocio three days later on Monday, February 22, 1993, he “thought Dr. Gocio would release him to return to work on that day,” but the doctor “decided to do a functional capacity evaluation because Hi-Tech told me prior to seeing the doctor, I could consider myself laid off.” This testimony, coupled with the report of Gansky’s physical therapist, is substantial evidence that Gansky had completed his period of temporary disability and was ready to return to work. The record further reflects that Gansky made no attempt to either return to employment or seek follow-up medical care after his last visit to Dr. Gocio on February 22, 1993. Although he testified that his neck and back continued to hurt, these were essentially the same complaints that he voiced following his injury of February 1990.

I conclude that this Court has chosen to disregard the standard for review of Commission decisions in reversing the Commission in this instance. Here, reasonable minds could clearly have reached the same conclusion as reached by the Commission; I would affirm its decision.

Glaze, J., joins in this dissent.


author: ROBERT L. Brown, Justice.

text:
    J.T. MONCRIEF v. STATE of Arkansas
    CR 96-166
    925 S.W.2d 776
    Supreme Court of Arkansas
    Opinion delivered June 24, 1996

      Winfred A. Trafford and Green, Henry & Green, by: J. W Green, Jr., for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   ROBERT L. Brown, Justice.

This appeal involves a charge brought against appellant J.T. Moncrief for violation of Ark. Code Ann. § 16-15-109 (Repl. 1994), which makes it unlawful for a county official to develop an “interest” in a county contract. Following a jury trial, Moncrief was convicted of the charge, a misdemeanor, and fined $500. As a result of the conviction, he was later removed from his office of County Judge of Lincoln County pursuant to § 16-15-109(b). He appeals both the judgment against him and his removal from office. We do not address the merits of the appeal because we find the appellant’s abstract of the record to be flagrandy deficient under Ark. Sup. Ct. R. 4-2 (b). For that reason, we affirm.

On July 6, 1995, this case was tried to a jury. The testimony at trial was that after an ice storm in Lincoln County, the county received federal financial assistance (FEMA funds) to make repairs and clean up the roads. Moncrief reviewed bids for the project and chose Hal Garrison as the contractor to perform the work. Garrison, however, needed a performance bond before he could finalize the arrangement with Lincoln County. In order to obtain the bond, Garrison went to the Bank of Star City with Moncrief and Weldon Wynn, a bond writer, and sought a $4,000 dollar loan from the bank to be used for a ten percent cash bond. Moncrief assured a lending officer of the bank, Mark Owen, that he would make sure that the bank got paid and that there would be no risk in the bank’s making the loan to Hal Garrison. Moncrief then signed a personal guaranty on July 1, 1994, to repay the $4,000 promissory note made by Garrison, and in return, the bank issued a cashier’s check in the amount of $4,000 payable jointly to Garrison and Moncrief.

Moncrief never revealed to the Lincoln County Quorum Court that he had guaranteed the note for Garrison and, in fact, told Quorum Court members when asked that he was not directly responsible for Garrison’s obtaining the $4,000. Garrison paid off the note, and the bank employee handling the loan testified that Moncrief never received any money or other benefit from his involvement in the Hal Garrison loan.

The jury returned a guilty verdict and fixed Moncrief’s sentence at a fine of $500.00. On July 11, 1995, the trial court entered an order in accordance with the verdict. On that same day, the State filed a petition for removal of appellant as county judge pursuant to Ark. Code Ann. § 16-15-109(b) (Repl. 1994). The following day, the trial court entered an order granting the petition.

Moncrief first contends that there was no evidence that he was “interested” in any contract or transaction made or entered into in Lincoln County as required by § 16-15-109(a)(l), and thus, the trial court erred in not entering a judgment of acquittal. The State responds that this point must be affirmed because Moncrief did not abstract any motion for a directed verdict or the trial court’s ruling, all of which is in violation of Ark. Sup. Ct. R. 4-2 (a) (6). The State is correct.

In Taylor v. State, 299 Ark. 123, 771 S.W.2d 742 (1989), this court did not reach the merits of the defendant’s challenge to the sufficiency of the evidence to support a guilty verdict in part because the defendant failed to abstract the motion for directed verdict. We stated:

We do not reach the merits of Taylor’s claim because he failed to abstract his motion for directed verdict and because he never challenged the sufficiency of the evidence below on the grounds the State failed to prove premeditation and deliberation.
Parties have an affirmative obligation to abstract those portions of the record relevant to the points on appeal, and the record is confined to that which has been abstracted. It is equally axiomatic that arguments made for the first time on appeal will not be considered by this court, and parties cannot change the grounds for an objection on appeal.

Id. at 124, 771 S.W.2d at 743 (citations omitted). Following suit, in Brown v. State, 316 Ark. 724, 875 S.W.2d 828 (1994), we refosed to address the merits of a challenge to the sufficiency of the evidence because the defendant’s abstract did not sufficiently reflect the content of his motions for directed verdict at the trial court level. We stated:

Appellant’s abstract reflects that at the conclusion of the State’s case he “[m]oved for a directed verdict,” which was denied, and at the end of the case he “renewed motion for a directed verdict,” which was denied. Appellant’s record on appeal is limited to that which is abstracted. Thus, we do not know whether the motion to the trial court applied to one, two, or all three of the charges, and we do not know the specific grounds of the motion or motions.

Id. at 727, 875 S.W.2d at 830.

In the instant case, we cannot tell from the abstract that Moncrief actually moved for a directed verdict at all, much less the content and basis of his motions. His Statement of the Facts and Argument do refer to motions for a directed verdict and to a denial of those motions, but this court has explained that such scattered references are not a substitute for a proper abstract. See, e.g., Franklin v. State, 318 Ark. 99, 884 S.W.2d 246 (1994); Watson v. State, 313 Ark. 304, 854 S.W.2d 332 (1993).

In his Reply Brief, Moncrief relies on Fight v. State, 314 Ark. 438, 863 S.W.2d 800 (1993), for the point that since the State does not deny that Moncrief made the motions and that they were denied, this court should address the merits. The Fight case is distinguishable, though. In Fight, the defendant’s abstract did indicate that the motions for a directed verdict had been made. Indeed, in Fight we took pains to distinguish Taylor v. State, supra, and similar cases which totally failed to abstract motions. Because the abstract in this case does not show in any way that motions for a directed verdict were made, Fight v. State, supra, is not controlling. We affirm for violation of Ark. Sup. Ct. R. 4-2(a)(6).

Moncrief next asserts that he moved to dismiss the criminal charge before the jury trial on the basis that the criminal information did not set forth sufficient allegations and facts to support a criminal charge and he could not prepare a defense based on the insufficient information and that the information was unconstitutionally vague. The State again responds that Moncrief’s abstract is deficient on this point because he failed to abstract any ruling by the trial court on the motion to dismiss.

We agree that the abstract is lacking on this issue. Moncrief did abstract his two motions to dismiss. However, there is nothing in the abstract to show that he ever obtained a ruling by the trial court on his motions, and this court has emphasized time and again that the record on appeal is confined to that which is properly abstracted. See, e.g., Brown v. State, supra. Moreover, we have held numerous times that the burden of obtaining a ruling is on the movant, and objections and questions left unresolved are waived and may not be relied upon on appeal. See, e.g., Watson v. State, supra; Williams v. State, 289 Ark. 69, 709 S.W.2d 80, (1986). Both the arguments made to the trial court and the trial court’s ruling are vital to this court’s decision on review. Watson v. State, supra. Without the trial judge’s ruling or order, we have no basis for a decision. See Johnson v. State, 316 Ark. 509, 872 S.W.2d 400 (1994) (per curiam). Hence, we must also affirm the judgment and order below on this point because Moncrief’s abstract is flagrantly deficient. See Ark. Sup. Ct. R. 4-2(b).

For his next point, Moncrief asserts that the trial court erred in allowing Betty Dickey, the prosecuting attorney who had been disqualified on her own motion, to sit at the counsel table with the special prosecutor. Moncrief asserts that Wayne Juneau, a deputy prosecuting attorney in Dickey’s office, testified for the State, and because of this, allowing Dickey to sit inside the bar amounted to a comment on the evidence. The State responds once again that the abstract is flagrantly deficient with respect to this issue, and therefore the issue should be decided in the State’s favor.

We agree. The abstract contains only the motion for appointment of the special prosecutor filed by Dickey and the order granting the motion and appointing a special prosecutor. The abstract contains nothing further regarding Dickey’s seat at the counsel table. As we have previously noted, scattering references throughout a Statement of the Case and Argument is not a substitute for a proper abstract. See, e.g., Watson v. State, supra. Since failure to make a timely objection waives the objection, [Rockett v. State, 319 Ark. 335, 891 S.W.2d 366 (1995)], and the record on appeal is limited to that which is abstracted, we affirm this point based on Moncrief’s failure to abstract any objection and ruling on the objection. See Stone v. State, 321 Ark. 46, 900 S.W.2d 515 (1995).

Moncrief states as his fourth argument that he objected at the trial level to any action being taken by the trial court in Jefferson County on the petition for his removal for a cause of action that was tried in Lincoln County. He makes the additional argument that his removal from office constituted double jeopardy. The State responds that the abstract does not contain any hearing or any objections made by him on this point, and therefore this point should be affirmed. Again, the State is right. In fact, the abstract does not contain any response or objection to the State’s petition for removal whatsoever. Based on the previous discussion, we will not address this point.

For his final point, Moncrief urges that Article 5, Section 9, of the Arkansas Constitution provides that a person may be removed from public office if he is convicted of “embezzlement of public money, bribery, forgery, or other infamous crime” and that here he was only convicted of a misdemeanor, which is not listed in Ark. Const, art. 5, § 9. Hence, he argues that his removal from office was unconstitutional. The State responds that Moncrief did not abstract any such argument made to the trial court or any hearing on this point. Accordingly the issue should be resolved in favor of the State. We agree.

Again, the record on appeal is confined to that which has been abstracted, and the abstract in the instant case does not reflect that Moncrief raised this constitutional argument before the trial court. Even constitutional arguments are waived unless raised before a trial court. Marshall v. State, 316 Ark. 753, 875 S.W.2d 814 (1994). Moreover, without the abstract of the hearing we are left in the dark as to what transpired before the trial court. See Pogue v. State, 316 Ark. 428, 872 S.W.2d 387 (1994); Haynes v. State, 313 Ark. 407, 855 S.W.2d 313 (1993). We will not address this argument.

Finally, Moncrief requests in his Reply Brief that if this court determines that his abstract is deficient, he should be allowed time to revise his brief to conform to Ark. Sup. Ct. R. 4-2 (a) (6). Ark. Sup. Ct. R. 4-2(b)(2) provides that if the court determines that an affirmance for noncompliance with the abstracting rules is unduly harsh, “the appellant’s attorney may be allowed time to revise the brief, at his or her own expense, to conform to Rule 4-2(a)(6).”

In Harris v. State, 315 Ark. 398, 868 S.W.2d 58 (1993), we affirmed the defendant’s convictions on two counts of delivery of a controlled substance on the basis that his abstract was flagrandy deficient. In a footnote, we noted:

We note that in his reply brief, Harris requested that he be permitted to supplement his abstract, but that request was without a prior timely motion, and as a matter of course, would not (and did not) come to the court’s attention until after this case was submitted to the court for decision. It is not permissible to supply a deficiency in the abstract of the record in a reply brief.

Id. at 399, 868 S.W.2d at 59 (citation omitted). Similarly, in the instant case, Moncrief did not file a prior timely motion requesting that he be allowed to revise his brief to provide a sufficient abstract.

In Young v. State, 308 Ark. 372, 823 S.W.2d 911 (1992), this court allowed an appellant to supplement his abstract and brief. The Young case differs, however, from the instant case in that in Young the appellant’s attorney filed a motion requesting that he be allowed to supplement his abstract and brief. We stated:

Since the case is not yet ready for submission, we grant the motion and allow the appellant fifteen days within which to file a substituted abstract and brief.
Rule 9(e)(2) of the Rules of the Supreme Court and Court of Appeals provides that, when it does not cause an unreasonable or unjust delay in the disposition of an appeal, an appellant’s attorney may be allowed time to reprint his brief, at his own expense, to conform to Rule 9(d). Granting the motion in this case will not cause an unjust delay since the case is not yet ready for submission and other cases are ready for submission.

Id at 372, 823 S.W.2d at 911; see also Dixon Ticonderoga Co. v. Winburn Tile Manufacturing Co., 322 Ark. 817, 911 S.W.2d 955 (1995).

In short, Moncrief’s failure to move to supplement or substitute his abstract prior to the submission of this case for decision is fatal to his appeal. To decide otherwise would unjustly delay the disposition of this matter.

Affirmed.

DUDLEY, J., not participating.


author: Andree Layton Roaf, Justice.

text:
    Walter L. YOCUM v. STATE of Arkansas
    CR 95-1095
    925 S.W.2d 385
    Supreme Court of Arkansas
    Opinion delivered June 24, 1996

      Christopher O’Hara Carter, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Deputy Att’y Gen. and Senior Appellate Advocate, for appellee.
   Andree Layton Roaf, Justice.

Walter L. Yocum, Jr., appeals from his conviction of criminal use of a prohibited weapon and sentence of eight years’ incarceration. He contends that the trial court erred in 1) not declaring Ark. Code Ann. § 5-73-104 unconstitutionally vague in it contains no definition of a “bomb”; 2) not suppressing evidence obtained when he was searched after he was arrested, without basis, for public intoxication while he was inside a private residence; 3) giving an overly broad jury instruction which did not fit the allegations against him; 4) refusing to give an affirmative defense jury instruction; and 5) failing to dismiss the charge against him because there was no proof presented of the culpable mental state required for commission of the offense. We affirm.

On December 28, 1994, the Baxter County Sheriff’s Office responded to a call from the mobile home of appellant Yocum’s mother. The call indicated that Yocum’s mother needed help because Yocum was causing a disturbance at her home and had passed out. Deputy Sheriff John Booker was admitted by Yocum’s mother who whispered “don’t wake him up.” Booker found appellant passed out on the kitchen floor. Booker testified that he detected a strong odor of intoxicants about Yocum, that kitchen utensils were thrown about on the floor, and that there appeared to have been a disturbance at the home. Yocum’s mother also told Booker that Yocum had on his person a number of knives. Booker stated that Yocum’s mother was very upset, and appeared scared. He further testified that he found four knives on Yocum, one strapped to each leg and two on his belt. After removing the knives, Booker testified that he took Yocum from the home and patted him down prior to placing him in a patrol car. During the patdown search, Booker discovered an object in Yocum’s pocket which appeared to be a pineapple-type hand grenade with a fuse cord at one end.

John Miller, a bomb expert from the state police, was called in to examine the object. Miller testified that he broke it open and that it was sealed at both ends, had a fuse, and contained low explosive powder and shotgun type pellets. He further testified that the object had been made by removing the lighter parts from a novelty cigarette lighter, that he considered it a bomb, and that it was functional and capable of exploding and killing people. He also stated that it served no lawful purpose and was “not something for the Fourth of My.”

A forensic chemist from the Bureau of Alcohol, Tobacco, and Firearms (“ATF”) testified concerning the components of the device. Agent Krista Truss testified that it had a grenade body with a pyrotechnic fuse extending to the outside and was sealed with epoxy. She testified that the fuse extended to the inside of the device, which contained smokeless powder and five shotgun pellets. She further stated that there was enough powder to explode the device. Another ATF agent testified that he classified the device as an improvised explosive grenade under federal law and that it would have exploded had it been lit. He stated that it had an effective range of fifteen feet and that persons within two to three feet could receive life threatening injuries if the device exploded.

Tommy Steen of the Baxter County Sheriff’s Office testified that he talked with Yocum on December 30, 1994, two days after his arrest, after first advising him of his Miranda rights. He stated that Yocum told him that the item was “just a cigarette lighter” and that he owned the device that was found in his possession.

Although Yocum was arrested for public intoxication, he was not charged with that offense. Yocum was instead charged by an information filed January 16, 1995 with one count of criminal use of a prohibited weapon, a class B felony, and three counts of carrying a knife as a weapon, a class A misdemeanor. The information provided that at the time of his arrest on December 28, 1994, Yocum had a grenade in his pocket and three knives on his person, and that at a later arrest on January 13, 1995, Yocum also had three knives, a butterfly knife, a knife which had been welded to a pair of brass knuckles, and a hunting type knife with a blade approximately ten inches long.

Yocum’s motion to sever the misdemeanor offenses from the felony count was granted by the trial court. He was convicted after a jury trial of the single count of criminal use of a prohibited weapon.

1. Directed Verdict

For his fifth and final point of error, Yocum contends that the trial court erred in not granting his motion for directed verdict. Yocum essentially argues that the state failed to prove that he possessed the culpable mental state required for conviction of the offense of criminal use of a prohibited weapon, because he was passed out at the time of his arrest.

A motion for a directed verdict is a challenge to the sufficiency of the evidence. Williams v. State, 321 Ark. 635, 906 S.W.2d 677 (1995). Preservation of an appellant’s right to freedom from double jeopardy requires a review of the sufficiency of the evidence prior to a review of trial errors. Davis v. State, 319 Ark. 460, 892 S.W.2d 472 (1995). Consequently, we address Yocum’s challenge to the sufficiency of the evidence prior to considering his other assignments, of trial error. Byrum v. State, 318 Ark. 87, 884 S.W.2d 248 (1994).

When reviewing the sufficiency of the evidence on appeal, this court does not weigh the evidence but simply determines whether-the evidence in support of the verdict is substantial. Williams, supra. Substantial evidence is that which is forceful enough to compel a conclusion one way or the other and pass beyond mere suspicion and conjecture. Drummond v. State, 320 Ark. 385, 897 S.W.2d 553 (1995).

In determining whether there is substantial evidence, this court reviews the evidence in the light most favorable to the appellee, and it is permissible to consider only that evidence which supports the guilty verdict. Williams, supra. Further, circumstantial evidence may constitute substantial evidence when every other reasonable hypothesis consistent with innocence is excluded. Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995). Whether a reasonable hypothesis exists is for the trier of fact to resolve. Id.

Arkansas Code Annotated § 5-73-104, entitled “Criminal use of prohibited weapons,” provides in pertinent part:

(a) A person commits the offense of criminal use of prohibited weapons if, except as authorized by law, he uses, possesses, makes, repairs, sells, or otherwise deals in any bomb, machine gun, sawed-off shotgun or rifle, firearm specially made or specially adapted for silent discharge, metal knuckles, 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)(emphasis added).

This court stated in State v. Setzer, 302 Ark. 593, 791 S.W.2d 365 (1990), that the “Use of Prohibited Weapons” statute does not create a strict liability offense. Under the provisions of Ark. Code Ann. § 5-2-203(b) (Repl. 1993), where the statute defining an offense does not prescribe a culpable mental state, culpability is nonetheless required and is established only if a person acts purposely, knowingly, or recklessly.

Here, there is substantial evidence, both direct and circumstantial, of Yocum’s culpability, that he purposefully and knowingly possessed the prohibited weapon. Officer Booker testified that he discovered Yocum lying on the kitchen floor of his mother’s home smelling of intoxicants, and that a disturbance had obviously occurred in the kitchen. Yocum had knives strapped to both legs and two on his belt. He was also in possession of a pineapple-type grenade. The base of the grenade was originally a cigarette lighter. Someone, however, had converted the cigarette lighter to a grenade. The device had no recreational, industrial or commercial use. The device contained a low explosive filler powder, had a visible fuse sealed with epoxy, could be ignited and was capable of exploding and killing or injuring human beings. Although Yocum did not admit that the object was anything other than a cigarette lighter, he knew that he had it and admitted that he owned the object. Possession of a prohibited weapon is all that is required for commission of the offenses; the State need not show that Yocum used or intended to use the weapon. Consequendy, we cannot say that the trial court erred in denying Yocum’s motion for directed verdict.

2. Due Process

Yocum contends that the trial court erred by not finding that Ark. Code Ann. § 5-73-104(a) violates the Fourteenth Amendment requirement of procedural due process. He argues that the statute is impermissibly vague because it does not contain the definition of a “bomb” and consequently does not provide adequate warning of the conduct which it seeks to prohibit. This argument is without merit, for it overlooks the fact that Yocum was not charged with, nor convicted of possession of a bomb. He was charged with criminal use of a prohibited weapon. The information which was filed against him set out the statutory language contained in Ark. Code Ann. § 5-73-104(a) in its entirety. The information described the device found in Yocum’s possession as a grenade. Although the prosecutor argued that the device was a bomb, and the witnesses for the State identified the object variously as a bomb and a grenade, the testimony of the State’s witnesses also clearly established that the object was an “implement for the infliction of serious physical injury that had no common lawful purpose.” Arkansas Code Annotated § 5-73-104(a) provides that the offense may be committed by possessing “any bomb, ... or other implement for the infliction of serious physical injury or death which serves no common lawful purpose.” As the testimony of the State’s witnesses clearly established that Yocum possessed such an implement, we need not consider Yocum’s due process challenge based on the lack of statutory definition of a bomb.

3. Suppression of Evidence

Yocum next argues that because the arresting officer had no basis to arrest him for public intoxication in his mother’s residence, the trial court erred in denying his motion to suppress the evidence seized in the search conducted after his arrest. In reviewing the trial court’s ruling on a motion to suppress, this court makes an independent determination based on the totality of the circumstances and reverses only if the ruling is clearly against the preponderance of the evidence. Nance v. State, 323 Ark. 583, 918 S.W.2d 114 (1996).

Yocum’s counsel raised the motion in a pre-trial hearing and again during a bench conference at trial and argued that Yocum was charged with public intoxication when he was not in a public place and that his arrest and search were therefore not valid. The trial court determined that the officers acted appropriately and denied Yocum’s motion to suppress.

Arkansas Rule of Criminal Procedure 4.1 provides that “a law enforcement officer may arrest a person without a warrant if the officer has reasonable cause to believe that such person has committed any violation of the law in the officer’s presence.” In Crail v. State, 309 Ark. 120, 827 S.W.2d 157 (1992), this court determined that misdemeanor possession was a violation of the law that took place in the presence of the officer and, consequently, the officer had reasonable cause to arrest appellant without a warrant. This court also affirmed the proposition that “an arrest shall not be deemed to have been made on insufficient cause . . . solely on the ground that the officer ... is unable to determine the particular offense which may have been committed.” Ark. R. Crim. P. 4.1; Crail, supra.

This court has held that reasonable cause to arrest without a warrant exists when the facts and circumstances within the officers’ collective knowledge, and of which they have reasonably trustworthy information, are sufficient in themselves to warrant in a man of reasonable caution the belief that an offense has been committed by the person to be arrested. Williams v. State, 321 Ark. 344, 902 S.W.2d 767 (1995). All presumptions are favorable to the trial court’s ruling on the legality of the arrest, and the burden is on the appellant to demonstrate error. Hudson v. State, 316 Ark. 360, 872 S.W.2d 68 (1994).

We cannot say that the trial court’s determination was clearly against the preponderance of the evidence. Officer Booker was summoned to the residence of Yocum’s mother because of a disturbance. He testified that she appeared scared and very upset because Yocum had been violent toward her. Yocum was passed out in the kitchen floor and the kitchen appeared to be in complete disarray. Under these circumstances, the officer had reasonable cause to arrest Yocum for criminal trespass for remaining unlawfully on his mother’s premises. See Ark. Code Ann. § 5-39-203(Repl. 1993).

4. Overly Broad Jury Instruction

Yocum also argues that the trial court erred in giving the following instruction:

Walter Yocum, Jr., is charged with the offense of criminal use of a prohibited weapon. To sustain this charge, the State must prove beyond a reasonable doubt that Walter Yocum, Jr., unlawfully possessed any bomb or other implement for the infliction of serious physical injury or death which serves no common lawful purpose.

Yocum objected at trial that the language “or other implement for the infliction of serious physical injury or death which serves no common lawful purpose” should be stricken because that language does not modify a bomb but describes other items not enumerated in the statute and for which Yocum was not charged. We agree that the clause Yocum complains of does not modify a bomb, but do not agree that Yocum was charged with possessing a bomb.

This court has repeatedly stated that if there is some evidentiary basis for a jury instruction, giving the same is appropriate. Mitchell v. State, 314 Ark. 343, 862 S.W.2d 254 (1993). The instruction given by the trial court in this case comes from AMI Crim. 3104 and mirrors the statutory definition of criminal use of a prohibited weapon set forth in Ark. Code Ann. § 5-73-104(a). The evidence presented by the state clearly supported giving an alternative instruction on the type of prohibited weapon possessed by Yocum.

5. Affirmative-Defense Instruction

Yocum next argues that the trial court erred in not giving an affirmative-defense jury instruction. The instruction he requested reads as follows:

It is a defense to this statute that the defendant used, possessed, made, repaired, sold, or otherwise dealt in any of the above enumerated articles under circumstances negating any likelihood that the weapon could be used unlawfully.

This instruction was taken direcdy from the Criminal Use of Prohibited Weapons statute, which provides that:

(b) It is a defense to prosecution under this section that:
(2) The defendant used, possessed, made repaired, sold, or otherwise dealt in any of the above enumerated articles under circumstances negating any likelihood that the weapon could be used unlawfully.

Ark. Code Ann. § 5-73-104(b)(2)(Repl. 1993).

The law is clear that a party is entitled to an instruction on a defense if there is sufficient evidence to raise a question of fact or if there is any supporting evidence for the instruction. Davis v. State, 293 Ark. 472, 739 S.W.2d 150 (1987). Where the defendant has offered sufficient evidence to raise a question of fact concerning a defense, the instructions must fully and fairly declare the law applicable to that defense; however, there is no error in refusing to give a jury instruction where there is no basis in the evidence to support the giving of the instruction. Purifoy v. State, 307 Ark. 482, 822 S.W.2d 374 (1991).

In this instance, Yocum presented no evidence whatsoever to warrant the giving of the requested instruction. He suggests that his statement that all he had was a cigarette lighter and the fact that the object was created from a cigarette lighter was evidence that he believed it to be a novelty item and sufficient to justify the instruction. We do not agree. Further, the original commentary to § 5-73-104 states:

Subsection (b)(2) is designed to permit a legitimate collector to possess a prohibited weapon, provided he takes steps such as rendering the weapon inoperable to make criminal use unlikely.

See 1988 Supplementary Commentary to Ark. Code Ann. § 5-73-104 (1995 Commentaries)(emphasis added). We cannot say that the trial court’s refusal to give this instruction was in error.

Affirmed.

Dudley, J., not participating.


author: PER CURIAM.

text:
    Timothy G. EVANS v. STATE of Arkansas
    CR 96-649
    923 S.W.2d 872
    Supreme Court of Arkansas
    Opinion delivered June 24, 1996

      Davis & Watson, P.A., by: Charles E. Davis, for appellant.
    No response.
   PER CURIAM.

Petitioner, Timothy G. Evans, by his attorney, Charles E. Davis, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to a mistake on his part.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981); In Re: Belated Appeals in Criminal Cases, 295 Ark. 964 (1979) (per curiam).

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


author: Per Curiam.

text:
    Randolph George HICKS v. STATE of Arkansas
    CR 96-482
    923 S.W.2d 872
    Supreme Court of Arkansas
    Opinion delivered June 24, 1996

      Wayne Emmons and Chandler Law Firm, by: Edward Witt Chandler, for appellant.
    No response.
   Per Curiam.

Appellant, Randolph George Hicks, by his attorneys, has filed a motion for a rule on the clerk. Consistent with our direction in Hicks v. State, 324 Ark. 450, 921 S.W.2d 604 (1996) (per curiam), his attorneys, Wayne Emmons and Edward Witt Chandler, admit by motion and affidavit that the notice of appeal was filed untimely due to a mistake on their part. This court has held that it will treat a motion for rule on the clerk as a motion for belated appeal and grant the motion when counsel admits that the notice of appeal was not timely filed due to an error on his part. See, e.g., Brown v. State, 321 Ark. 282, 900 S.W.2d 954 (1995) (per curiam). 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.

Dudley, J., not participating.


author: Per CURIAM.

text:
    Robert WATSON v. STATE of Arkansas
    CR 96-425
    923 S.W.2d 871
    Supreme Court of Arkansas
    Opinion delivered June 24, 1996

      John F. Stroud III, for appellant.
    No response.
   Per CURIAM.

Appellant Robert Watson, by his attorney, has filed for a rule on the clerk.

His attorney, John E Stroud III, admits that the failure to file the record in time was 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 our Per Curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964. A copy of this opinion will be forwarded to the Committee on Professional Conduct.

DUDLEY, J., not participating.