author: Donald L. Corbin, Justice.

text:
    Richard PERRYMAN and Mae Perryman v. Lee HACKLER
    95-788
    916 S.W.2d 105
    Supreme Court of Arkansas
    Opinion delivered February 19, 1996

      Thurman Ragar, Jr., for appellants.

      Bagby Law Firm P.A. , by: Philip A. Bagby, for appellee.
   Donald L. Corbin, Justice.

Appellants, Richard and Mae Perryman, appeal and appellee, Lee Hackler, cross-appeals from the judgment of the Crawford County Chancery Court that found the contract of sale for real property between appellants as purchasers and appellee as seller to be usurious; awarded appellants $6,696.28, twice the amount of interest they paid; awarded appellee $6,224.52, comprised of $284.52 in principal accrued up to the time appellants defaulted and $5,940.00 in rent accrued after appellants defaulted; found that the net judgment in favor of appellants, $471.76, could be satisfied by allowing appellants to remain in possession of the property for twenty-two additional days; directed appellants to vacate the property no later than the twenty-second day; and ordered both sides to pay their own costs and attorneys’ fees. This case presents questions about usury. Jurisdiction is therefore properly in this court pursuant to Ark. Sup. Ct. R. 1-2(a)(13). We find no error and affirm.

PROCEDURAL HISTORY

Pursuant to the contract at issue dated March 6, 1992, appellee sold to Paul and Tina Akin, Lot 145, Royal Oaks Addition to the City of Van Burén, Arkansas. The terms of the contract were a purchase price of $32,145.00, to be financed at twelve percent per annum with $500.00 down and monthly installments of $330.65 until liquidation of the debt. The contract stated it was not to be assigned without appellee’s written consent, that failure to make any installments would result in forfeiture to appellee, and that upon forfeiture, the relationship of landlord and tenant would arise between appellee and the purchasers. The contract was signed by appellee, Paul Akin, and Tina Akin. On the reverse side of the one-page contract, on February 8, 1993, Paul and Tina Akin assigned all their “right, title, and interest in this contract over to Richard and Mae Perryman.”

Appellants filed suit on May 9, 1994, claiming the contract was usurious and void as to interest due, seeking recovery of $13,853.58 as twice the total interest paid under the contract, seeking reformation of the contract to provide for monthly installments on the amount of principal owed, and seeking restraint of appellee’s actions against appellants for non-payment of rent.

Appellee moved to dismiss the complaint for failure to state facts upon which relief could be granted, arguing that usury is an affirmative defense rather than a cause of action, that, due to the lack of appellee’s written consent, there was not a valid assignment of the contract from the Akins to appellants, that the Akins are necessary parties to this action, that there is a pending case between these parties in municipal court on appellee’s complaint for unlawful detainer, and that appellants should respond in that court. The trial court denied the motion to dismiss, ruling appellants had stated sufficient facts to permit the court’s denial of the motion.

After a bench trial in which the only witnesses were appellee and appellants, the trial court announced its ruling from the bench. The written judgment and decree was entered in accordance with that ruling. Appellants raise five points for reversal on direct appeal. Appellee, as cross-appellant, raises four points on cross-appeal should we reverse on direct appeal. We affirm on direct appeal and do not reach the contingent cross-appeal.

STANDARD OF REVIEW

We review chancery cases de novo, and do not reverse the chancellor’s factual findings unless they are clearly erroneous. Lotz v. Cromer, 317 Ark. 250, 878 S.W.2d 367 (1994). Chancellors have broad powers to fashion any remedy that is reasonable and justified by the proof. Id.

DIRECT APPEAL

As their first point for reversal, appellants contend that, in addition to recovering twice the amount of interest they paid under the contract to appellee, they are also entitled to recover twice the amount of interest paid by their assignors, Paul and Tina Akin. Appellants cite Ark. Code Ann. § 4-57-107 (Repl. 1991) as giving an assignee of a contract standing to obtain relief from a usurious contract. Appellants also rely on Bailey v. Commerce Union Bank, 223 Ark. 686, 269 S.W.2d 314 (1954), a pre-Amendment 60 case which held that, pursuant to Act 39 of 1887, of which section 4-57-107 was a part, the defense of usury was not personal to the original borrower and could therefore be raised by the borrower’s assignee.

Appellants rely upon such authority in error. Section 4-57-107 was repealed by implication in 1982 by Amendment 60 to the Arkansas Constitution. Henslee v. Madison Guar. Sav. and Loan Ass’n, 297 Ark. 183, 760 S.W.2d 842 (1988). In addition, since Bailey, 223 Ark. 686, 269 S.W.2d 314, was based on Act 39 of 1887, later codified in part as section 4-57-107, Bailey is likewise not controlling here. We observe that, even if section 4-57-107 and Bailey were applicable to this case, they would not support appellants’ argument that they are entitled to recover twice the interest paid by their assignors. Section 4-57-107 and Bailey provided nothing more than a rule of law establishing that an assignee has standing to sue for recovery of usurious interest paid under a contract that was assigned.

Although it is well-settled that an executory contract for the sale of land is assignable, Ark. Code Ann. § 4-5-102 (1987) and Corcorren v. Sharum, 141 Ark. 572, 217 S.W. 803 (1920), and that the assignor need not be a party, Ark. Code Ann. § 16-61-112 (1987), it is not the law that a cause of action for usury is assignable. See National Fire Ins. Co. v. Pettit-Galloway Co., 157 Ark. 333, 248 S.W.2d 262 (1923). In short, appellants have cited no authority supporting their argument. Accordingly, we cannot say the trial court erred in limiting appellants’ award to twice the amount of interest they paid.

While arguing this point in their brief, appellants contend that one who knowingly charges a usurious interest rate should not be allowed to “keep the fruits of his crime.” Although Article 19, Section 13 of the Arkansas Constitution provides the General Assembly with authority to enact legislation providing punishment for one who knowingly charges a usurious rate of interest, the General Assembly has not done so. Appellee has accused appellants of libel regarding the “fruits of the crime” statements made in their brief and has requested sanctions from this court. We decline to do so. Appellee has cited no authority for this court to impose any sanctions on appellants concerning the contents of their brief. The only authority for sanctioning comments in a brief is when the comments are disrespectful to a trial court. Ark. Sup. Ct. R. 1-5.

The trial court found that the contract of sale terminated in April 1994 due to appellants failure to make their installment payments, and thereupon reverted to a month-to-month lease pursuant to the following terms of the contract:

And it is hereby further covenated [sic] and agreed by and between the parties hereto, that immediately upon failure to pay any of the installments above mentioned, or the annual interest on the balance, from year to year when due, all previous payments shall be forfeitured [sic] to the party of the First part, and the relation of landlord and tenant shall arise between the parties hereto, and in the event of failure or refusal of the Second party to deliver possession of said premises to the First party, after three days’ notice and demand, in writing, for the same, the First party shall have the right to proceed by Writ of Possession, as in the cases of unlawful Detainer.

For their second point for reversal, appellants contend this finding was erroneous because the amount due them on their claim for usury offset any amount that was due under the contract for the period that they did not make payments. Testimonies from both appellants revealed that they continued to live in the house without making any payment to appellee from April 1994, one month prior to when the present suit for usury was filed, until January 1995, when the suit was tried. Appellants explain that their non-payment was an effort to mitigate damages by reducing the amount of interest they could recover as usuriously paid.

The short answer to this argument is that the current usury law only voids the contract as to “unpaid interest.” Art. 19, § 13(a) (ii). As this court observed in Henslee, 297 Ark. 189, 760 S.W.2d 842, when distinguishing Amendment 60’s change to the usury law, although former law voided the entire contract if it exceeded the maximum rate of lawful interest, “[t]he express intent of Amendment 60 is that the taint of usury' voids the agreement only to the extent of unpaid interest[.]” Id. at 189, 760 S.W.2d at 845.

It is undisputed that appellants were in default when they filed suit. Therefore, the acceleration and forfeiture provision of the contract was triggered notwithstanding the usurious interest, and pursuant to the express terms of the contract, the landlord-tenant relationship arose. The trial court did not err in concluding that the relationship of landlord-tenant existed pursuant to the terms of the contract.

As their third point for reversal, appellants contend the trial court erred in awarding appellee judgment for unpaid rent because, due to the amount of usurious interest paid by them under the contract, they did not owe appellee anything at the time suit was filed. This argument is entirely without merit. Appellants cite absolutely no authority that their right under Article 19, Section 13 to recover twice the interest paid arose without proceedings in law or equity. There was evidence to support the chancellor’s finding that the fair rental value of the home was $330.00 per month. The chancellor awarded judgment to appellee based on twice that amount consistent with the unlawful detainer law. See Ark. Code Ann. § 18-60-309 (1987). On this record, we cannot say the chancellor was clearly erroneous in this regard.

As their fourth point for reversal, appellants challenge the chancellor’s denial of their request to reform the contract to provide that the principal due be paid in equal monthly installments over the term of the contract. Appellants rely on Lotz, 317 Ark. 250, 878 S.W.2d 367, in which this court affirmed, as modified, the reformation of a usurious installment sales contract for real property. Appellant’s reliance on Lott is wholly misplaced. Lott did not involve defaulting purchasers such as the present case does, and is therefore not controlling. In fact, the purchasers in Lott continued to make payments under the contract even after they filed suit. In addition, there is no indication in Lott that the contract terminated by operation of its terms such as in the present case.

Given the proof that appellants defaulted on their payments prior to their discovery of the usurious rate of interest, we cannot say the chancellor was clearly erroneous in concluding the contract for sale terminated by its own terms and in consequently denying appellants’ request for reformation.

As their final point on direct appeal, appellants cite Winn v. Chateau Cantrell Apartment Co., 304 Ark. 146, 801 S.W.2d 261 (1990), and request this court to alter the results of the case on de novo review. There are only two allegations made under this point that were not made previously: one, that this court should set aside the writ of assistance entered in favor of appellee to assist him in taking possession of the property and issue a writ in favor of appellants; and two, that this court should award appellants their attorneys’ fees and costs. Appellants’ allegations are made succinctly, without convincing argument or citation to authority for the altered results requested. It is not apparent without further research that these arguments are well-taken; therefore, we do not consider them. Thomson v. Littlefield, 319 Ark. 648, 893 S.W.2d 788 (1995).

CROSS-APPEAL

Appellee introduces his arguments on cross-appeal with the statement that this court disregard his cross-appeal if we find no error in the rulings on direct appeal. Therefore, consistent with appellee’s request, we do not address the arguments raised on cross-appeal. Farm Credit Bank v. Miller, 316 Ark. 388, 872 S.W.2d 376 (1994); John Cheeseman Trucking, Inc. v. Dougan, 313 Ark. 229, 853 S.W.2d 278 (1993); Kulbeth v. Purdom, 305 Ark. 19, 805 S.W.2d 622 (1991).

The chancellor’s judgment and decree is affirmed on direct appeal. The contingent cross-appeal is rendered moot consistent with appellee’s request. John Cheeseman Trucking, 313 Ark. 229, 853 S.W.2d 278.


source: Caselaw Access Project

author: Robert L. Brown, Justice. Tom Glaze, Justice.

license: Public Domain

text:
    Jerry D. FRISBY v. AGERTON LOGGING, INC. and Colvin Reed Agerton
    95-816
    915 S.W.2d 718
    Supreme Court of Arkansas
    Opinion delivered February 19, 1996

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

      Compton, Prewett, Thomas & Hickey, P.A., by: Robert C. Compton, for appellees.
   Robert L. Brown, Justice.

Appellant Jerry D. Frisby sued appellee Agerton Logging, Inc., for negligence in connection with an automobile accident which involved Frisby’s Toyota automobile and Agerton Logging’s truck. Agerton Logging counterclaimed against Frisby and contended that it was Frisby who was negligent. The jury returned a verdict in favor of Agerton Logging on Frisby’s complaint and in favor of Frisby on Agerton Logging’s counterclaim. Frisby now appeals on several grounds. Agerton Logging has not cross-appealed. We agree with Frisby on one point — that it was reversible error for the trial court to instruct the jury on sudden emergency (AMI 614). We, therefore, reverse the judgment and remand the matter for a new trial.

The vehicular accident in question occurred on Saturday, January 5, 1991, at approximately 1:30 p.m. on the Old Hillsboro Road, which is a narrow gravel road with a clay base, in Union County. At the ensuing jury trial on January 16 and 17, 1995, the following physical evidence came to light. Jerry Thomas, the local assistant fire chief, testified that he arrived at the scene of the accident and observed a small compact car off on one side of the road and a loaded log truck lying on its side on the other side of the road. The fuel tank on the left side of the log truck had been grazed as had the dual wheels on the left side behind the cab of the truck. The car had been struck on the left front side. The driver of the log truck was uninjured, but Thomas testified that Frisby was pinned inside the car and had to be cut out. Thomas observed debris and skid marks in the roadway. Thomas testified that the condition of the road was such that cars travelling in both directions would use the same pathway of ruts in the middle of the road.

Dale Mack, a resident in the area, also saw the vehicles off in the ditches. He further observed debris in the roadway and confirmed that the tracks in the road indicated that the traffic merged into one lane in the course of the turn where the accident occurred. Mack testified that there is a bank next to the road which impedes a driver’s vision around the curve. He admitted that there were no skid marks to indicate that Frisby had turned to avoid hitting the truck head on. He further stated that the truck had to have turned a little bit; otherwise, the car would have hit the front of the truck rather than the side. Mack testified that it was a dangerous, blind curve but that there was room to pass.

Frisby testified that he had been working as a rural mail carrier since 1987 and was delivering mail at the time of the accident. His mail route covered eighty-seven miles. He described how the wreck happened:

Well, I was driving down the Old Hillsboro Road, north on Old Hillsboro Road, and I came to this curve and I was on the inside of the curve going around and all at once just appeared right before me and in my lane of traffic was Mr. Agerton and just like that we were hit.

Later on in his testimony, Frisby reiterated that the truck was in his tracks on his side of the road. He could not tell if he or Agerton took evasive action. The inside of the curve was to Frisby’s right. Frisby testified that the car caved in on his left arm and leg and that he was unable to get out of the vehicle.

Frisby admitted that he carried mail in the front seat of his car during his route, but he stated that he did not look through the mail while driving due to the danger it would cause. Normally, he would operate the car while sitting in the middle, he said, and he would move back to the driver’s seat when there were longer distances between stops. He admitted that there was only one set of tracks in the road even though the road was wide enough for two cars to pass. He also admitted that at the time of the wreck, he and Agerton were both in those tracks, which, Frisby said, were on his side of the road. Frisby testified to injuries to both arms and his left leg and to cuts to his face and lost teeth. His injuries required surgery, and his medical expenses exceeded $63,000.

Colvin Reed “Billy” Agerton, who was driving the Agerton Logging truck at the time of the accident, testified that his son, Gary Agerton, runs the Agerton Logging Company. Billy Agerton, who was sixty-seven at time of trial, described how the wreck happened:

Well, as I was coming up — approaching the hill on the incline in the curve, I begin to move the log truck over to my side of the road. I was driving right down the middle of it . . . following the tracks in the road. It was about half on my side and half on his side.
As I pulled over to the right and got about halfway at the incline I seen Dewayne [Frisby] coming. At the best of my knowledge when I first seen him I might of been doing 40.

Agerton testified that he began to pull to the right because he could not see around the turn. He stated that he was approximately 150 feet away from Frisby when he first saw him and that he (Agerton) was on his side of the road. Frisby, he stated, was in the center of the road. Agerton testified that after he saw Frisby, he moved to the right as far as he could go. He testified that he saw Frisby looking to his right seat rather than at the road:

The minute he [Frisby] looked up and seen me he locked — he locked all four brakes up and pulled the wheel as far to the right as he could and he come into a slide across the road. As I looked back down to my left, the last time I looked back to see him, he was — I thought he was going under the trailer but he hit the back of the diesel tank and the back dual.

The collision occurred at the crown of the hill. Agerton testified that his front right wheel was already in the ditch at the time of the collision. The load shifted when the rear dual went off in the ditch, and the truck turned on its side. Agerton testified that the point of impact was in the middle of the road or slightly on his side.

John Bentley, an accident reconstructionist, testified on behalf of Agerton Logging. Bentley stated that he heard the testimony which had been presented on the second day of the trial. He opined, based on what he heard and other records examined, that Agerton “perceived and reacted early to avoid the collision.” It was also Bentley’s opinion that Frisby did not have an early perception or reaction to the oncoming vehicle. Because of the distance the truck traveled after the collision — about 30 feet — Bentley concluded that the tractor-trailer had reduced its speed considerably by time of impact. The 30-foot estimate he used came from the Motor Vehicle Traffic Accident Report filed by the deputy sheriff. Frisby objected to the reference to the 30-foot measurement and contended that this violated a pretrial order. Counsel for Agerton proposed that the trial court admonish the jury, but Frisby declined the offer of an admonishment.

At the request of Agerton Logging and over the objection of Frisby, the jury was read AMI 614, the sudden emergency instruction. The jury rendered verdicts on the complaint and counterclaim and, in effect, found neither Agerton Logging nor Frisby negligent on the respective claims.

Frisby raises three points on appeal, but it is the third point that we believe has merit. He contends that the trial court erred in giving the sudden-emergency instruction, AMI 614. That instruction reads:

A person who is suddenly and unexpectedly confronted with a danger to himself or others not caused by his own negligence is not required to use the same judgment that is required of him in calmer and more deliberate moments. He is required to use only the care that a reasonably careful person would use in the same situation.

AMI Civil 3rd 614 (1989). Frisby objected to the instruction because it had not been proven that Agerton Logging was free from negligence. In fact, Frisby testified that Agerton Logging was negligent in following the ruts in the middle of the road. At another point in his testimony, Frisby stated that the Agerton Logging truck was in his lane of traffic at the time of the collision.

In order to justify the use of the sudden-emergency instruction, the evidence must show that the driver was in a stressful situation which required a quick decision on the possible courses of conduct. That person must have been aware of the danger, perceived the emergency, and acted in accordance with the stress caused by the danger. Diemer v. Dischler, 313 Ark. 154, 158-59, 852 S.W.2d 793, 795-796 (1993). When there is any evidence of negligence oii the part of the party seeking to invoke the instruction, AMI 614 is inapplicable. Druckenmiller v. Cluff, 316 Ark. 517, 873 S.W.2d 526 (1994). Stated another way, when an emergency arises wholly or partially from the negligence of the person who seeks to invoke the sudden-emergency doctrine, AMI 614 has no application and should not be delivered to the jury. Id; Thomson v. Littlefield, 319 Ark. 648, 893 S.W.2d 788 (1995) (instruction proper where third-party driver encountered collision caused by others and did not in any way create the emergency himself).

The Druckenmiller v. Cluff holding decides the instant case. The sudden-emergency instruction is not appropriate when there are two parties to the action, each of which proves some fault on the part of the other. Such was the situation in the case at hand because there was testimony from Frisby that Billy Agerton was in the wrong lane. Hence, the instruction should not have been given. It added nothing to the comparative fault analysis and only injected confusion into complex proceedings.

Agerton Logging argues that the trial court was required to consider the evidence in the light most favorable to it because it requested the sudden emergency instruction. This is not correct. The trial court must assess whether any proof of negligence on the part of the party requesting the instruction exists. If so, the instruction is inappropriate. The giving of an erroneous instruction is presumptively prejudicial. Skinner v. R.J. Griffin & Co., 313 Ark. 430, 855 S.W.2d 913 (1993). Because of the error in giving the sudden-emergency instruction, we remand the case for a new trial.

Reversed and remanded.

Glaze, J., concurs.

Tom Glaze, Justice.

I concur. The majority opinion says it best — “[T]he instruction (AMI 614) should not have been given. It added nothing to the comparative fault analysis and only injected confusion into complex proceedings.” AMI 614 should be abolished, and as long as this court countenances the use of this instruction, confusion will continue to prevail. See Druckenmiller v. Cluff, 316 Ark. 517, 527, 873 S.W.2d 526, 532 (1994) (Glaze, J., concurring).


author: Robert L. Brown, Justice.

text:
    Greg HOGUE v. STATE of Arkansas
    CR 95-985
    915 S.W.2d 276
    Supreme Court of Arkansas
    Opinion delivered February 19, 1996
    [Petition for Rehearing denied April 15, 1996.]

      William R. Simpson, Jr,, Public Defender, by: Latrece Gray, Deputy Public Defender, for appellant.

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

       Glaze and Roaf, JJ., would grant.

   Robert L. Brown, Justice.

Appellant Greg Hogue appeals his capital murder conviction on grounds that the evidence was insufficient to support the judgment. We disagree and affirm the judgment.

On February 22, 1994, Jess Brown was working at Rocky’s One Stop, a convenience store located at the corner of John Barrow Road and Asher Avenue in Little Rock, which he owned. Sometime after 10:00 p.m., another employee, Marcus Hall, returned to the convenience store to buy batteries for a remote control device. He warned Jess Brown that he had seen two men standing by the laundromat near the store and that one of them was wearing a white scarf over his face. He said they ran off after seeing him.

Shortly after that, two men entered the store. One of them fired a shot which hit Jess Brown in the mid-chest region. The men fled the store after the shot was fired and were seen leaving the area in a white car with a dark roof. Jess Brown lived long enough to call 911 but later died from the gunshot wound.

Greg Hogue was ultimately charged with capital felony murder in the shooting death of Jess Brown with aggravated robbery as the underlying felony. A jury trial was held at which Mark Poindexter was the principal State witness. He testified that he hosted a party on February 22, 1994, and that Greg Hogue, Damion Brown, Harold Olive, and Anthony White were there, among others. He testified that Anthony White suggested they commit a robbery. Shortly after that, Poindexter left with Hogue, Damion Brown, White, and Olive to commit the robbery. They used his car — a white Delta 88 Oldsmobile — for transportation. Before they reached the site for the robbery, White “chickened out,” according to Poindexter, and jumped out of the car. When they reached their destination, they got out of the car and took the guns, a .38 revolver and a .380 semiautomatic pistol, out of the trunk. Poindexter testified that Hogue put on a red ski mask, and Damion Brown put a white rag over his face. Hogue and Damion Brown left and walked to the store. Approximately five to ten minutes later, Poindexter heard a gunshot. Hogue and Damion Brown returned to the car, and the group left. Damion Brown told Poindexter that he had dropped the gun. Poindexter testified that Hogue got out of the car somewhere on Barrow Road and that he, along with Damion Brown and Olive, returned to the party.

At the close of the State’s case-in-chief, Hogue’s counsel moved for a directed verdict specifically on grounds that the only connection between Hogue and the events of February 22, 1994, was through the testimony of accomplices and that there was not sufficient independent evidence to connect him to the crime. The trial court stated that Mark Poindexter was obviously an accomplice but found that other evidence presented tended to connect Hogue to the murder. Hogue’s counsel then argued that it was Hogue’s position that two corroborating witnesses were also accomplices and, thus, their testimony could not connect Hogue to the crime. The court ruled otherwise and denied Hogue’s motion for a directed verdict. The defense rested without calling any witnesses. The jury returned a verdict of guilty on the charge of capital felony murder. Following the penalty phase of the trial, Hogue was sentenced to life in prison without parole.

Hogue raises only one issue on appeal. He claims that there was insufficient evidence to support his conviction for capital felony murder and further maintains that adequate evidence corroborating the testimony of Mark Poindexter, the accomplice, was lacking. Because the sole ground given for his directed verdict motion was the absence of sufficient corroborative proof, that is the only ground preserved for our review. Walker v. State, 318 Ark. 107, 883 S.W.2d 831 (1994). Contrary to what he contended before the trial court, Hogue does not argue on appeal that state witnesses, other than Poindexter, occupied the status of an accomplice.

Hogue is correct that when accomplice testimony is involved, our law requires that there be independent, corroborative evidence “tending to connect the defendant with the commission of the offense.” Ark. Code Ann. § 16-89-111 (e)(1) (1987). The State’s retort to this is that Hogue failed to request an instruction informing the jury (1) Mark Poindexter was an accomplice as a matter of law, and (2) it was necessary for the State to produce evidence connecting Hogue to the crime, independent of Poindexter’s testimony. By failing to ask for the instruction, according to the State’s theory, Hogue waived this argument. The State cites several cases in support of its argument. See Rockett v. State, 319 Ark. 335, 891 S.W.2d 366 (1995); Pilcher v. State, 303 Ark. 335, 796 S.W.2d 845 (1990); Moser v. State, 266 Ark. 200, 583 S.W.2d 15 (1979); Odom v. State, 259 Ark. 429, 533 S.W.2d 514 (1976); see also, McDonald v. State, 37 Ark. App. 61, 824 S.W.2d 396 (1992).

We do not agree with the State’s analysis of our cases. We have stated that a defendant must either have the trial court declare a person an accomplice as a matter of law or submit the issue to the jury for determination. See, e.g., Rockett v. State, supra; Clements v. State, 303 Ark. 319, 796 S.W.2d 839 (1990). But we have not required the defendant to do both in order to preserve the issue of an erroneous denial of a directed verdict motion. In the case at bar, there was a finding by the trial court that Poindexter was an accomplice. The court also found that there was sufficient corroborative evidence, and it denied the motion for directed verdict. As a result, the issue of whether the trial court properly denied the motion did not depend on whether a subsequent instruction was requested involving the same legal point. We conclude that Hogue preserved the issue of whether the trial court erred in declining to direct a verdict on insufficient corroborative evidence.

We must then decide whether sufficient evidence tending to connect Hogue to the crime, apart from Mark Poindexter’s testimony, was presented, as required under §16-89-111 (e)(1). We have held that the corroboration must be sufficient standing alone to establish the commission of the offense and to connect the defendant with it. Daniels v. State, 308 Ark. 53, 821 S.W.2d 778 (1992); Andrews v. State, 305 Ark. 262, 807 S.W.2d 917 (1991); Johnson v. State, 303 Ark. 12, 17, 792 S.W.2d 863, 865 (1990); David v. State, 295 Ark. 131, 140, 748 S.W.2d 117, 122 (1988). The corroborative evidence must be substantial evidence which is stronger evidence than that which merely raises a suspicion of guilt. Henderson v. State, 279 Ark. 435, 652 S.W.2d 16 (1983). Circumstantial evidence qualifies as corroborating evidence but it, too, must be substantial. See David v. State, supra. But corroboration need not be so substantial in and of itself to sustain a conviction. See Rhodes v. State, 280 Ark. 156, 655 S.W.2d 421 (1983); Walker v. State, 277 Ark. 137, 639 S.W.2d 742 (1982).

Here, there is enough evidence to connect Hogue to the crime. First, there is the testimony of Marcus Hall, the employee of Rocky’s One Stop, who testified that he saw two men over by the laundromat next to Rocky’s One Stop. One of them had a white scarf that covered his mouth and nose. They ran when they saw him, and he told Jess Brown about them. Jess Brown and Hall then walked behind the counter to find the batteries to fit Hall’s remote control device. While Hall was bent down behind the counter, Jess Brown was shot. The events in the store were confirmed by the surveillance video which was introduced into evidence, although an identification of the men could not be made.

Dr. Peretti, a State medical examiner, confirmed that Jess Brown had been shot in the chest and testified that he died as a result of that wound.

Daniel Reed, a neighbor in the area, testified that as he was taking out his garbage on the night of the murder, he heard a gunshot. When he looked up, he saw two men running across the laundromat parking lot, which is next to Rocky’s One Stop. They got into a white car with a dark roof, possibly an Oldsmobile, which was parked in the parking lot of the Optimist Club and drove away going east on Asher Avenue. The car did not have any license plates. He testified that one of the men was wearing a red ski mask and the other was wearing a white one. He testified that the man wearing the red ski mask was a few inches taller than the other.

Detective Mike Durham of the Little Rock Police Department testified that Greg Hogue’s height was approximately 6’ to 6T, while Damion Brown was 5’9”.

Alfreda Jackson testified that she went to a party at Mark Poindexter’s house on the night of the murder. She said that Mark Poindexter, Damion Brown, Harold Olive, and a person named “Greg” left the party at the same time she did. They followed her car until they reached Asher Avenue. She lost sight of them after that. She later returned to the party, and Poindexter, Damion Brown, and Olive were there, but “Greg” was not.

Dadtrick Arnold testified that he was at the party on the night of the murder. He stated that he overheard a conversation among Greg Hogue, Damion Brown, and Harold Olive in which they discussed “making a lick,” which meant a robbery. He testified that Hogue, Damion Brown, Olive, and Poindexter left approximately an hour later in Poindexter’s white car. He testified that there were guns at the party, a .380 semiautomatic pistol and .38 revolver, and that Anthony White had one and that either Damion Brown or Olive had the other. Olive had a pair of brown gloves. Arnold also testified that he told Little Rock police officers that Hogue had a red ski mask with him that night.

Myron McClendon testified that he, too, was at the party the night of the murder. While there, he saw a .38 revolver and a black .380 semiautomatic pistol. Anthony White and Harold Olive had those guns. He also saw Greg Hogue with a red ski mask that night. He stated that he heard Damion Brown tell Freda Jackson and Lila Harnett that they were going to “hit a lick,” which meant commit a robbery. After hearing that, Poindexter, White, Hogue, Damion Brown, and Olive left in Poindexter’s white Oldsmobile.

Officer Ronnie Smith of the Little Rock Police Department testified that he recovered a red ski mask, some brown gloves, and a .380 semiautomatic pistol from Anthony White’s house. Anthony White’s mother, Joyce White, testified that Hogue came to her house the night of the murder and that he also returned the next morning.

Detective Don Bakelekos of the Little Rock Police Department testified chat he executed the arrest warrants for Greg Hogue and Damion Brown. When the police knocked on the door and announced their presence, Hogue and Damion Brown tried to leave out the back door.

In sum, we have evidence placing Hogue in a white Oldsmobile with a red ski mask on Asher Avenue about the time the murder occurred. We have evidence that the occupants of the car were armed. We have evidence that the plan was to commit a robbery and that Hogue participated in formulating that plan. A man was seen at the crime scene wearing a red ski mask and returning to a white car that looked like an Oldsmobile after a gunshot was heard. A red ski mask was recovered by police officers at a home where Hogue had been. Hogue tried to escape when police officers announced their presence at his door. We conclude that the evidence connecting Hogue to the murder is substantial.

The record has been examined pursuant to Supreme Court Rule 4-3(h) for other reversible error, and none has been found.

Affirmed.


author: Andree Layton Roaf, Justice. David Newbern, Justice,

text:
    Terry HOLADAY and Sandra Holaday v. Roberta FRAKER, et al.
    95-909
    915 S.W.2d 280
    Supreme Court of Arkansas
    Opinion delivered February 19, 1996
    Substituted opinion delivered March 18, 1996
    [Petition for Rehearing denied March 25, 1996.]

      Pawlik & Associates, by: Kevin J. Pawlik and Ella Maxwell Long, for appellants.

      Matthews, Campbell, Rhoads, McClure & Thompson, P.A., by: David R. Matthews, for appellees.
   Andree Layton Roaf, Justice.

This appeal arises from a chancellor’s order finding that appellants had violated a restrictive covenant which prohibited use of their property for other than residential purposes, and requiring that appellants remove a shop building they constructed on the property. Appellants assert the chancellor erred in 1) interpreting the restrictive covenant to apply to the building erected by appellants and; 2) granting injunctive relief which required that appellants remove the building. We find no error and affirm.

Appellants Terry and Sandra Holaday purchased a lot with a house and two car garage in the Willow Oak Place subdivision in Rogers, Arkansas. A protective covenant and- a bill of assurances encumbered the lot, and provided that “all lots in Willow Oak Place subdivision shall be used exclusively for residential purposes.” The bill of assurances, which was adopted by all homeowners in the subdivision in 1988, also stated that “no structure of a temporary character, trailer, basement, tent shack, barn, or other outbuilding shall be used on any lot at any time as a residence either temporarily or permanently.” The warranty deed to the property in question also contained the requirement that “all lots in FRAKER SUB-DIVISION #1 shall be used exclusively for residential purposes.” The warranty deed further provided that “no dwelling shall be erected ... in said subdivision other than a detached, single family dwelling, not to exceed two and one-half stories in height and a one, two or three car garage.” This subdivision was initially created by appellee Roberta Fraker. Appellants purchased the lot in question by warranty in 1989, and were fully aware of the protective covenant and bill of assurances.

In April, 1993, appellants constructed a blue metal shop building approximately thirty (30) feet by fifty (50) feet with fourteen (14) foot high walls on the property. Appellants claim to have gotten permission from appellee Fraker before building the shop. On September 19, 1994, appellee Fraker filed a complaint in chancery court alleging that appellants had violated the bill of assurances and protective covenants of the subdivision. Fraker subsequently filed an amended complaint adding other appellees, who also are residents of the Willow Oak Subdivision, further alleging that appellants undertook to perform commercial automobile repairs in the outbuilding and also boat repairs, both for compensation.

Appellants filed a counterclaim against appellee Fraker alleging appellants had contacted Fraker to seek assurances that the proposed outbuilding would not violate the bill of assurances and protective covenants. Appellants alleged that during their conversation with Fraker the appellants disclosed to Fraker the type, size and location of the shop building, and that appellee Fraker represented to appellants that this type of building would not be in violation of the restrictive covenants. Appellants further made estoppel, false representation, and negligence arguments for recovery against Fraker. The lower court dismissed appellants’ action against Fraker pursuant to Rule 12(b)(6) of the Arkansas Rules of Civil Procedure.

The appellees’ cause of action was tried on May 3, 1995. The Chancellor found that appellants had violated the restrictive covenant by erecting a building of the size suitable for commercial purposes. The court further ordered appellants to remove the building from their property within six months. An order for stay of judgment was granted to allow appellants to appeal the lower court’s decision.

Appellants first argue that they have not violated any of the restrictions contained in the covenant, bill of assurances, or warranty deed. Although we try chancery cases de novo on the record, we do not reverse a finding of fact by the chancellor unless it is clearly erroneous. Welchman v. Norman, 311 Ark. 52, 841 S.W.2d 614 (1992). Deference is given to the superior position of the chancellor to judge the credibility of witnesses. Riddick v. Streett, 313 Ark. 706, 858 S.W.2d 62 (1993). In order to overturn the chancellor’s ruling, the appellants must demonstrate that the trial court abused its discretion by making a judgment call that was arbitrary or groundless. Ingram v. Wirt, 314 Ark. 553, 864 S.W.2d 237 (1993). We cannot say that the trial court’s determination was completely erroneous in this instance.

Appellants correctly state that courts do not favor restrictions upon the use of land, and if there is a restriction on the land, it must be clearly apparent. McGuire v. Bell, 297 Ark. 282, 761 S.W.2d 904 (1988). Appellants rely heavily on Casebeer v. Beacon Realty, 248 Ark. 22, 449 S.W.2d 701 (1970), for the proposition that restrictive covenants are to be strictly construed against limitations upon the free use of property, and all doubts resolved in favor of the unfettered use of the land. Appellants assert that any doubts are to be construed strictly against those seeking to enforce them and liberally in favor of freedom in the use of land. Casebeer at 25.

However, in later cases, we have stated that the general rule governing the interpretation, application and enforcement of restrictive covenants is that the intention of the parties as shown by the covenant governs. McGuire at 289. The rule of strict construction limited by the basic doctrine of taking the plain meaning of language employed. Hays v. Watson, 250 Ark. 589, 466 S.W.2d 272 (1971). In Hays, we recognized the doctrine of strict construction stating “. . . . where there is uncertainty in the language by which a grantor in a deed attempts to restrict the use of realty, freedom from restraint should be decreed; . . . when the language of the restrictive covenant is clear and unambiguous the parties will be confined to the meaning of the language employed; and it is improper to inquire into the surrounding circumstances or the objects and purposes of the restriction for aid in its construction.” However, we further stated “. . . but such strict rules of construction shall not be applied in such a way as to defeat the plain and obvious purpose of the restriction.” Hays.

Moreover, we stated in McGuire that where no general plan of development exists, restrictive covenants in either a bill of assurance or a deed conveying the land are not enforceable. McGuire at 290. The test of whether such a plan exists is whether substantial common restrictions apply to all lots of similar character or similarly situated. Id. Here, of course, a general plan or scheme of development exists because all homeowners in the subdivision adopted the bill of assurances and restrictive covenant in 1988. Further, appellants were fully aware of the provisions contained in their warranty deed and restrictive covenant when they purchased the lot. One taking title to land with notice that it is subject to an agreement restricting its use will not, in equity and good conscience, be permitted to violate its terms. Harbour v. Northwest Land Co., 284 Ark. 286, 681 S.W.2d 384 (1984).

Appellants’ warranty deed and bill of assurances clearly state that all lots shall be used exclusively for residential purposes. However, appellants contend that since the bill of assurances states that no dwelling shall be erected on any lot other than a single-family dwelling with no more than a three car garage and also no outbuilding shall be used on any lot at any time as a residence, the restrictive covenants do not specifically exclude their blue metal shop building because it is not a dwelling, nor is it used as a residence. We agree that appellants’ building is not a dwelling, the definition being a place to live in, The American Heritage Dictionary, 431 (2d ed. 1976), nor is the building being used as a residence. However, the trial court’s determination was based on whether appellants’ lot was being used exclusively for residential purposes.

The trial court specifically found that appellants violated the covenant by placing on their lot a bright blue metal shop building suited for commercial purposes. Appellant Terry Holaday admitted to bringing automobiles and boats of others to the shop building, and repairing them for compensation. Appellees testified that appellant regularly brought cars to the shop to fix and that the appearance of the shop building caused the value of their property to decrease.

The Arkansas Court of Appeals stated in Briarwood Apartments v. Lieblong, 12 Ark. App. 94, 671 S.W.2d 207 (1984):

There is no ambiguity in the expression ‘No lot shall be used for other than residential purposes.’ Any additional use must be reasonably incidental to residential uses and such an inconsequential breach of the covenant as to be in substantial harmony with the purposes of the parties in making the covenants, and without substantial injury to the neighborhood.

Citing Thompson v. Squibb, 183 So.2d 30 (Fla. D.C. App.2d 1966).

In this instance, the lower court made a determination that appellants’ building constituted a violation of the provision that all lots be utilized exclusively for residential purposes. The chancellor’s determination will not be reversed by this court unless it is clearly erroneous. Constant v. Hodges, 292 Ark. 439, 730 S.W.2d 892 (1987). Although there is ambiguity in the language of the covenant, the plain and obvious purpose of the restriction is clear, that the lots be used exclusively for residential purposes. From our review of the evidence, we cannot say that the lower court’s determination was clearly erroneous.

Appellants also contend that the trial court clearly abused its discretion to grant injunctive relief by ordering appellants to remove the shop building because the court concluded the building was suited for commercial purposes. Appellants suggest that a more equitable and appropriate remedy would be to restrict their use of the structure. We do not reach appellant’s second point on appeal because it does not appear to have been presented to the trial court. We have consistently held that we will not consider an issue for the first time on appeal. Hercules Inc. v. Pledger, 319 Ark. 702, 894 S.W.2d 576 (1995).

Affirmed.

Newbern, J., dissents.

David Newbern, Justice,

dissenting. The majority opinion points out correctly that the bill of assurances and the warranty deed prohibited commercial use of the Holadays’ lot and use of any outbuilding as a residence. The presence of the metal building violated neither provision.

The Holadays argue the injunction should have been limited to prohibiting commercial activity on their lot. The majority opinion answers the point by saying it was not raised to the Chancellor and, therefore, it will not be considered.

The following are excerpts from the Holadays’ abstract of the Chancellor’s ruling from the bench:

In this case it is a question of fact of whether the blue metal shop building is a commercial building or nothing more than an oversized garage. But maybe I could say that is a question of fact whether or not it violates the covenants. I guess if we argued that the building is ok if you do not use [it] for anything except to tinker with and you do not ever use [it] for anybody’s benefit or sell your services. That would be the hardest question I would have to answer.
Let’s say that the Defendant [the Holadays] is going to use the building for his own private use. So, everybody in the neighborhood is entitled to one of those. The next thing you know somebody sells one of those lots with that building up there and the guy brings in the lawnmowers. He can advertise in the paper because signs are prohibited on the property and pretty soon you have folks coming in with their lawnmowers.

The question whether the injunction should be limited to prohibition of commercial activity was before the Chancellor. His apparent conclusion was that a building which could be used for commercial purposes would necessarily be so used. Nothing in the evidence presented compels that conclusion; nor am I able to say it is demanded by logic.

While a chancellor has broad power to fashion a decree that is reasonable in the circumstances, the effect of a decree should be limited to the minimum necessary to solve the problem at hand. It must be limited to action which is “justified by the proof.” See Lott v. Cromer, 317 Ark. 250, 878 S.W.2d 367 (1994); Chambers v. Manning, 315 Ark. 369, 868 S.W.2d 64 (1993); Keith v. Barrow-Hicks Extensions of Water Improvement Dist. No. 85, 275 Ark. 28, 626 S.W.2d 951 (1982).

I respectfully dissent.


author: Andree Layton Roaf, Justice.

text:
    Oscar E. MOORE v. STATE of Arkansas
    CR 94-590
    915 S.W.2d 284
    Supreme Court of Arkansas
    Opinion delivered February 19, 1996

      Bramblett & Pratt, by: James M. Pratt, Jr., for appellant.

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

Appellant Oscar E. Moore was convicted of capital murder and rape of a ninety-year-old neighbor, and of the burglary of her home. He was sentenced as an habitual offender to life without parole for the capital murder. He raises four points on appeal of his conviction and sentence, that the trial court erred in 1) refusing to suppress results of testing of appellant’s blood; 2) admitting DNA matching and probability testimony without conducting a preliminary hearing; 3) refusing to grant a mistrial when the state’s witness testified that appellant had admitted to committing another murder unrelated to this case; and 4) permitting an investigating officer to give lay opinion testimony that the appellant’s tennis shoes matched a footprint found at the scene of the murder.

We agree that the trial court erred in not declaring a mistrial, and reverse and remand. Moore’s remaining points are discussed to the extent they are relevant to a second trial.

Facts

On the morning of November 4, 1990, a neighbor went to the home of Ms. Nethealve Cannon and after being unable to get a response from her, kicked in a door and discovered her body. Ms. Cannon had blood on her nose, mouth and legs, and her undergarments were removed; she had been raped, strangled and her home had been burglarized.

Appellant lived with his mother across the road from Ms. Cannon and was present outside her home when her body was discovered. Appellant was heard to say that Ms. Cannon had only had a heart attack and should be taken to the hospital, and that her death would probably be pinned on him because he had been in some trouble lately. A tennis shoe print was discovered in Ms. Cannon’s bedroom near where her undergarments were found; the footprint was preserved and photographed.

Five days after Ms. Cannon’s body was discovered, Lester “Fleabag” Parker informed police that he had gone to appellant’s home the night before Ms. Cannon’s body was discovered, to collect money from appellant for a marijuana sale. Parker stated that appellant told him that he did not have the money at that moment, but that he had stolen $7200.00 from Ms. Cannon after killing her. Parker further contended that he did not believe that appellant had killed Ms. Cannon until her body was discovered the next day.

Based on Parker’s information, the appellant was arrested, a search warrant was obtained for his home, and a pair of appellant’s tennis shoes were recovered. The state crime lab could not conclusively say that appellant’s tennis shoes matched the print found in Ms. Cannon’s home.

Also, twenty days after the appellant’s arrest and several days before the information was filed by the prosecution, investigators filed a Motion for Disclosure requesting that appellant’s blood be drawn to compare with semen found in the decedent. Appellant had informed the court the day after his arrest that he was in the process of hiring an attorney, consequently an attorney had not been appointed for him on the date this order was issued and the blood drawn.

The FBI laboratory concluded that the DNA in appellant’s blood matched the DNA in the semen recovered from Ms. Cannon and that the chance of randomly selecting an unrelated individual from the black population who would have the same DNA profile as the appellant was 1 in 500,000. The appellant moved to suppress the evidence from the blood alleging it was unlawfully obtained; this motion was denied. The appellant further moved to exclude the DNA testing results which declared the match and calculated the probability of a random match or, in the alternative, to require that the court hold a preliminary hearing, to determine whether the results of the DNA testing should be admitted into evidence in accordance with Prater v. State, 307 Ark. 180, 820 S.W.2d 429 (1991). The trial court recognized Prater, but declined to order a preliminary hearing, reasoning that DNA testing was no longer a “novel” approach which warranted a preliminary hearing and, further, other jurisdictions had begun to take judicial notice of the reliability of DNA testing.

After hearing all the evidence, including testimony regarding the DNA profiling, the jury found appellant guilty of capital murder, rape, and burglary and recommended a sentence of life imprisonment without parole for the capital murder.

a. Mistrial

We agree that the trial court should have granted appellant’s motion for mistrial during the testimony of Lester Parker. Parker had testified on direct examination that appellant had told him that he had killed Ms. Cannon on the night before her body was discovered. During the cross-examination by appellant’s counsel, the following colloquy occurred:

Q: Now, Fleabag, I don’t suppose we could be so lucky as for you to tell us that there was somebody else besides you that heard Oscar Moore on this Saturday night confess to you that he had killed Ms. Cannon?
A: Did —.
Q: Oscar Moore, on this Saturday night that he confessed to you that he killed Ms. Cannon, there was nobody else present there, was there?
A: No, but he admitted to killing another woman to his brother.

Appellant requested that the comment be struck, the jury be admonished, and made a motion for mistrial. The trial court denied the mistrial after a brief in-chambers hearing, and delivered an admonition to the jurors instructing them to disregard Parker’s answer to the defense counsel’s question.

Declaring a mistrial is a drastic remedy and proper only where the error is beyond repair and cannot be corrected by any curative relief. Cupples v. State, 318 Ark. 28, 883 S.W.2d 458 (1994). The trial court should resort to mistrial only where the error complained of is so prejudicial that justice cannot be served by continuing the trial or when the fundamental fairness of the trial itself has been manifestly affected. Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995). Since the trial court is in a better position to determine the effect of a remark on the jury, Cupples, supra, it has wide discretion in granting or denying a motion for a mistrial and its discretion will not be disturbed except where there is an abuse of discretion or manifest prejudice to the movant. Stewart, supra. Finally, an admonition to the jury usually cures a prejudicial statement unless it is so patently inflammatory that justice could not be served by continuing the trial. King v. State, 317 Ark. 293, 877 S.W.2d 583 (1994).

We agree that Parker’s unresponsive testimony that the appellant had admitted he killed another woman was so prejudicial that it could not be cured by an admonition to the jury. Here the trial court’s denial of the motion for mistrial was abuse of discretion in the face of such a patently inflammatory and prejudicial statement. See Lackey v. State, 283 Ark. 150, 671 S.W.2d 757 (1984); King v. State, 9 Ark. App. 295, 658 S.W.2d 434 (1983).

b. Suppression of blood tests

Appellant argues that his blood was drawn over his objection and when he was not represented by counsel, even though he had requested permission to talk to a lawyer immediately before his blood was drawn.

Prior to trial, appellant’s counsel filed a motion to suppress the results of any scientific tests performed on the blood samples taken from appellant, asserting that the State had the samples drawn from appellant in violation of his constitutional rights under the Fourth and Fifth Amendments to the United States Constitution and in violation of Ark. R. Crim. P. 18.1. The motion was denied and appellant raises the same arguments on appeal.

Fifth Amendment

We first address the appellant’s Fifth Amendment argument because this claim may be more readily resolved. The appellant contends that his right to remain silent and not incriminate himself has been violated by the taking of his blood. He invokes the Fifth Amendment but cites no further authority; his argument is untenable. The protections of the Fifth Amendment do not extend to demonstrative, physical tests, but are intended to immunize a defendant from providing the State with evidence of a testimonial or communicative nature. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). In determining whether evidence is testimonial in nature the courts look to see if the activity performed is for the purpose of communication, such as a gesture; if it is, the activity is privileged. Urquhart v. State, 273 Ark. 486, 621 S.W.2d 218 (1981). In Schmerber v. California, 384 U.S. 757 (1966), the United States Supreme Court determined that the privilege against self-incrimination does not bar compelled intrusions into the body for blood to be analyzed for alcohol content. Appellant’s Fifth Amendment argument clearly has no merit.

Fourth Amendment

Appellant also asserts that the order for blood withdrawal and the taking of the blood against his will constituted an unreasonable search and seizure forbidden by the Fourth and Fourteenth Amendments of the United States Constitution. There are two components to this argument. Appellant first argues that the search was not proper because the affidavit for probable cause to arrest him was based on the statement of Lester Parker, an unreliable informant. However, at issue is the probable cause which existed for the issuance of the order for withdrawal of appellant’s blood, not his arrest. This court applies a “totality of circumstances” approach in determining whether the neutral and detached magistrate had a substantial basis for concluding that probable cause existed. Rainwater v. State, 302 Ark. 492, 791 S.W.2d 688 (1990).

The task of the issuing magistrate is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for . . . concluding] that probable cause existed.”

Id. at 494, citing Illinois v. Gates, 462 U.S. 213 (1983).

In this instance, the trial court had a substantial basis in which to conclude that probable cause existed to grant the order for blood withdrawal. In addition to the statement of Parker, the affidavit of the state police investigator in support of the Motion for Disclosure recited: that he had been informed by Lester Parker that the evening prior to the discovery of the victim’s body appellant had informed Parker that he had killed Ms. Cannon; that black, high-top tennis shoes that had been recovered from appellant’s bedroom matched the print of a large tennis shoe that was lifted and preserved from the victim’s bedroom; that appellant claimed to have cleaned and cooked for Ms. Cannon on numerous occasions even though no one else could verify this claim; that appellant was seen with a large amount of money on the night after the murder, which was quite unusual because appellant did not have a job; that appellant informed the police that he had entered Ms. Cannon’s house upon the discovery of her body, put her phone on top of a table, and covered Ms. Cannon’s body with a blanket, while the individual who discovered the body stated that she was the only person to enter Ms. Cannon’s house before the police arrived; and that because she kept her doors locked and would not unlock the door unless she knew the caller, the killer was probably known by Ms. Cannon.

With regard to Parker, appellant further argues that an affiant must demonstrate particular facts bearing on an informant’s reliability as required by Ark. R. Crim. P. 13.1. Jackson v. State, 291 Ark. 98, 722 S.W.2d 831 (1987). However, no additional support for the reliability of witnesses is required where the witness volunteered the information as a good citizen and not as a confidential informant whose identity is to be protected. Simmons v. State, 278 Ark. 305, 645 S.W.2d 680 (1983). Although Parker, an admitted drug seller, may not be a model citizen, in this instance he did not play the role of an informant. In his statement, Parker said that he was “scared” and told his cousin, appellant’s brother and his boss about appellant’s confession before reporting the matter to the police, after his boss urged him to do so. Parker also voluntarily gave a blood sample for DNA analysis when requested by the police. Clearly, there was a substantial basis for the court to conclude that probable cause existed to order the taking of appellant’s blood.

The second aspect of appellant’s Fourth Amendment argument involves the taking of the blood sample. Appellant contends the search was not reasonable, because his blood was drawn in the police station, in violation of the order, and that it falls short of the standard for reasonableness provided by Schmerber, supra. Although the order provided that appellant be taken to a medical facility, he was taken from his cell to the sheriffs office, where his blood was drawn in private, by a physician. In Schmerber, the Supreme Court held that a minor intrusion into the body performed in a reasonable manner (by needle) in a hospital by a physician, met the Fourth Amendment test of reasonableness. However, the Court cautioned:

We are thus not presented with the serious question which would arise if a search involving use of a medical technique, even of the most rudimentary sort, were made by other than medical personnel or in other than a medical environment - for example, if it were administered by police in the privacy of the stationhouse. To tolerate searches under those conditions might be to invite an unjustified element of personal risk and pain.

Schmerber.

Initially, we note that Schmerber does not expressly prohibit the taking of a blood sample in the manner employed in the instant case. Despite the cautionary language warning against conducting searches which employ medical techniques in other than medical environments, here the appellant’s blood was drawn by a physician, not a police officer. As blood is routinely drawn by nurses, technicians, and other non-physicians, frequently in non-medical facilities, appellant was not in this instance subjected to an “unjustified element of personal risk and pain.”

We consequently cannot say that the manner in which appellant’s blood was taken constituted an unreasonable search, in violation of the Fourth Amendment.

Ark. R. Crim. P. Rule 18.1

Appellant asserts Ark. R. Crim. P. 18.1(b) was violated because it requires that “reasonable notice” be given to a defendant and his counsel. Arkansas Rules of Criminal Procedure Rule 18.1 gives a judicial officer the authority to require a defendant to permit the taking of samples of his blood, hair and other materials of his body if it involves no unreasonable intrusion. This rule provides in pertinent part:

(a) Notwithstanding the initiation of judicial proceedings, and subject to constitutional limitations, a judicial officer may require the defendant to:
(vii) permit the taking of samples of his blood, hair and other materials of his body which involve no unreasonable intrusion thereof;
(b) Whenever the personal appearance of the defendant is required for the foregoing purposes, reasonable notice of the time and place of such appearance shall be given by the prosecuting attorney to the defendant and his counsel. (Emphasis added.)

When appellant’s blood was drawn, he had been in jail for twenty days on the charges involved in this case and did not have an attorney, although he was represented by a public defender on a pending unrelated burglary charge. On the date the blood was drawn, the state police investigator, with the help of the prosecutor, prepared a motion seeking permission to draw blood from appellant, obtained an order from the circuit judge granting the motion, filed the motion and order with the clerk, and picked up a physician and took him to the jail to draw the blood. The order provided that “a copy of the order shall be personally served on [appellant] and upon his attorney, should said attorney be made known to the Arkansas State Police or the prosecuting attorney’s office,” and that appellant be taken to the health department or other medical office for the drawing of blood. Appellant admitted at his suppression hearing that he was advised by the judge the day after his arrest that an attorney would be appointed for him if he could not afford to hire one; appellant at that time informed the court that he was “seeking the means to hire an attorney” and that he had already hired a lawyer because Investigator Glenn Sligh did not like him. He stated that he did not know his attorney’s name.

Appellant further testified at the suppression hearing that he asked to call his mother and an attorney immediately before his blood was withdrawn but his requests were refused. State Police Investigator Glenn Sligh testified that he asked appellant who his lawyer was in order to serve the order on the attorney, and that appellant stated that his attorney was coming from Texas. Mr. Sligh further testified that he allowed appellant to call his mother immediately prior to the drawing of the blood and that appellant was apparently seeking to determine if she had obtained a lawyer for him. He stated that appellant made no further mention of a lawyer after this call. Appellant’s mother denied receiving a call from appellant that day and a jailer testified to hearing a sheriff’s employee refuse to allow appellant to call his family or a lawyer, but stated that she did not recall seeing Mr. Sligh that day with the appellant. This court has repeatedly stated that conflicts in the testimony of the witnesses is for the trial court to resolve. Smith v. State, 296 Ark. 451, 757 S.W.2d 554 (1988).

Although appellant argues on appeal that he was deprived of counsel when his blood was drawn, it is clear that he initially caused the delay in the appointment of counsel by representing to the judge at his probable cause hearing that he had already hired an attorney. Appellant cannot decline appointed counsel on the one hand and later claim he was denied the assistance of counsel; this is akin to the invited error doctrine. He further argues that the order was obtained without affording him a hearing, and that he had no prior notice that the state intended or desired to draw his blood. Rule 18.1(b) provides that “whenever the personal appearance of the defendant is required [for the taking of samples], reasonable notice of the time and place of such appearance shall be given ... to the defendant and his counsel.” A defendant who must present himself for the taking of samples is contemplated by this language. Here, the appellant was in custody at the time, and was given a copy of the order immediately prior to the blood withdrawal.

Moreover, even if the State violated Rule 18.1(b), we have said that suppression of the evidence is not the appropriate remedy for this violation. See Davasher v. State, 308 Ark. 154, 823 S.W.2d 863 (1992). The standard of review on imposing sanctions for discovery violations is whether there has been an abuse of discretion. In Davasher, the defendant was represented by counsel, and argued that the failure to notify his counsel of the taking of samples from defendant shortly after his arrest was “prosecutorial misconduct” for which the remedy was suppression of the evidence. Id. at 163. We rejected this argument and stated that when there has been a failure to comply with discovery procedures, a trial court is not required to suppress evidence unless prejudice will result. Id. at 164.

Here, as in Davasher, appellant does not explain how prejudice might have occurred because an attorney was not present when the blood samples were taken. Appellant suggests that had he been represented by counsel when the court determined whether to order his blood drawn, “it is possible that probable cause could have been shown to have been lacking,” because Lester Parker’s trustworthiness could have been challenged, and that the trial court “might have ruled differently if the truth were known.” He further asserts that had the damaging blood test evidence not been submitted to the jury, there is a “reasonable probability” that the result below would have been different. However, appellant does not explain how the detailed investigator’s affidavit presented with the Motion for Disclosure failed to meet the standard for probable cause for search warrants, or could have been attacked. In sum, even assuming a violation of Ark. R. Crim. P. 18.1(b) occurred, we cannot say that appellant has demonstrated that he suffered prejudice as a result.

Finally, we note that appellant argues for the first time in his reply brief that he had an absolute right to counsel in the blood withdrawal proceeding because Ark. R. Crim. P. 8.3(b) forbids any action being taken after a defendant’s first appearance until the defendant and his counsel have had an opportunity to confer. He also asserts for the first time on appeal that the drawing of the blood sample violated his Sixth Amendment right to counsel. Neither of these arguments were made in his Motion to Suppress or Amended Motion to Suppress or argued to the trial court. We will not consider even constitutional arguments not raised before the trial court. See Williams v. State, 320 Ark. 211, 895 S.W.2d 913 (1995).

c. DNA Matching and Probability Testimony

Prior to trial, the State advised the appellant that it intended to introduce test results conducted by the FBI laboratory which indicated a “match” in the DNA of semen found in the victim and the DNA of the blood drawn from the appellant. The State further announced plans to introduce, by population frequency statistics, the likelihood of the “match” being someone other than the appellant. Amending his motion to suppress, appellant requested a preliminary hearing to determine whether the results of any DNA testing was admissible pursuant to the requirements of Prater v. State, 307 Ark. 180, 820 S.W.2d 429 (1991). The trial court determined that the preliminary hearing was not necessary and took judicial notice of the reliability of DNA profiling. The order denying the preliminary hearing provided in pertinent part:

Since the filing of the motion and the request for a hearing, the court and the parties have reviewed current decisions regarding the DNA issue including, but not limited to [U.S. v. Martinez, - F.3d - 62 USLW 2199, (8th Circuit September 2, 1993), [U.S. v. Jakobetz, 955 F.2d 786 (2d Circuit), Daubert v. Merrell Dow Pharmaceuticals, Inc., 125 L.Ed. 2d 469 (June 28, 1993). The Court has also reviewed a twenty-one page affidavit with exhibits attached of Audrey Grace Lynch, supervisory Special Agent, DNA Analysis Unit II, FBI, who conducted the forensic analysis of the DNA evidence involved in this cause. The affidavit indicates how the laboratory work was done and what analysis and assumptions underlie the probability calculations. The defendant, through his attorney, has advised the Court that his DNA expert witnesses have reviewed the laboratory notes of the FBI and if asked, would testify that the laboratory protocol was appropriate.
The Court is aware that Prater v. State infra directed that a preliminary hearing or inquiry be conducted when novel scientific evidence coupled with evidence of mathematical probabilities is offered. The evidence offered is no longer new or unusual, there having been over 50 appellate court decisions which support the admissibility of forensic DNA-RFLP profiling. DNA Evidence and Massachusetts, Crime Laboratory Digest, Vol. 19, No. 3 July, 1993. Based on the above, the Court concludes that the DNA profiling was derived from the application of reliable methodology or principle and that according to the affidavit of the affiant finds she properly performed protocol involved in DNA profiling. Accordingly, the Court is of the opinion that no preliminary hearing is necessary.
The Court therefore takes judicial notice of the general theory and reliability as well as the techniques of DNA profiling. Based upon the affidavit of Audrey Grace Lynch and the statement of defendant’s counsel that he has no evidence attacking the methodology of the FBI laboratory procedures, the Court further finds that the proposed testimony by the FBI witnesses is relevant and will be admitted.

This court adopted in Prater a relevancy standard in determining the admissibility of novel scientific evidence. The relevancy approach requires:

that the trial court conduct a preliminary inquiry which must focus on (1) the reliability of the novel process used to generate the evidence, (2) the possibility that admitting the evidence would overwhelm, confuse or mislead the jury, and (3) the connection between the novel process evidence to be offered and the disputed factual issues in the particular case.

Id. at 186. Under this relevancy approach, reliability is the critical element.

However, as the trial court correctly noted, since we decided Prater in 1991, there have been significant developments regarding the admissibility of DNA profiling; a number of appellate courts have recognized the reliability of this process, and no longer consider it novel scientific evidence.

Two of the cases relied upon by the trial court, U.S. v. Jakobetz, 955 F.2d 786 (2nd Cir. 1992), and U.S. v. Martinez, 3 F.2d 1191 (8th Cir. 1993), warrant our consideration. Both hold that trial courts may take judicial notice of the reliability of DNA profiling. In Jakobetz, the court undertook an exhaustive analysis and discussion of the scientific background of DNA profiling and the legal standard of admissibility for novel scientific evidence, before concluding that the general theories of genetics which support DNA profiling are unanimously accepted in the scientific community and that the specific techniques used by the FBI laboratory in DNA analysis are commonly used by scientists in microbiology and genetics research.

In Martinez, supra, the court relied heavily on the Jakobetz decision, stating, “We conclude that the Second Circuit’s conclusions as to the reliability of the general theories and techniques of DNA profiling are valid under the Supreme Court’s holding in Daubert, and hold that future courts can take judicial notice of their reliability.” However, the Martinez court further stated that its holding does not mean that expert testimony concerning DNA profiling would be automatically admissible without preliminary inquiry to determine if the expert properly performed a reliable methodology in arriving at his opinion, and further provided that the testifying expert should be required to submit affidavits attesting that he properly performed the protocols involved in DNA profiling.

Since Prater, we have on three occasions considered whether a scientific procedure should be considered novel scientific evidence, thus warranting a preliminary hearing or inquiry. We determined that the Horizontal Gaze Nystagmus test used to determine the presence of alcohol by observing the involuntary jerking of the eyeball, is not novel scientific evidence. Whitson v. State, 314 Ark. 458, 863 S.W.2d 794 (1993). We reached the same conclusion with regard to human bite mark identification. Verdict v. State, 315 Ark. 436, 868 S.W.2d 443 (1993). However, we held that luminol testing for the presence of blood is novel evidence of that requires a preliminary hearing to determine admissibility. Houston v. State, 321 Ark. 598, 906 S.W.2d 286 (1995).

In light of the developments in the treatment of DNA evidence, we believe that we should revisit our now four-year-old holding in Prater, that DNA profiling is novel scientific evidence. We first observe that in Prater, we rejected the majority approach for determining the admissibility of novel scientific evidence as set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The Frye standard relies solely on the general acceptance of this theory upon which the evidence is based in the relevant scientific community. We instead adopted the more liberal standard of admissibility, based upon the relevancy approach of the Uniform Rules of Evidence, in particular Rules 401, 402 and 702.

In 1993, the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993), held that the Federal Rules of Evidence supersede the Frye test and that the admissibility of expert opinion testimony concerning novel scientific evidence would no longer be limited solely to knowledge or evidence generally accepted as reliable in the relevant scientific community. The Court stated that, under the Rules of Evidence, the trial court must ensure that scientific evidence admitted is not only relevant, but reliable. Daubert, supra. Although Jakobetz was decided prior to Daubert, both courts adopted a reliability approach to Rule 702, comparable to the relevancy approach of Prater in which reliability is the critical element.

It remains for us to determine whether the trial judge was correct in his findings that DNA profiling is no longer novel scientific evidence requiring a preliminary inquiry to determine its reliability. We agree with his findings and hold that DNA profiling evidence should no longer be viewed as novel scientific evidence requiring a preliminary inquiry beyond the showing that the expert properly performed a reliable methodology in creating the DNA profiles.

The trial court conducted this inquiry in the instant case. Indeed, the trial court noted that the appellant’s experts conceded that the laboratory protocol employed by the FBI expert was appropriate, in determining that the evidence was relevant and would be admitted at trial. The trial court also correctly determined that any challenge to the conclusions reached by the state’s expert, including the statistical probability of whether the test results constituted a match, would appropriately be made at trial, by cross-examination of the state’s experts and presentation by the defendant of his own experts to express differing opinions about the results of the FBI tests and statistical probability of a match.

We note that at trial, appellant’s counsel conducted an extensive cross examination of the FBI agent who performed the DNA profiling and the two other prosecution experts who confirmed the DNA matched that of the appellant. During the cross examination of the FBI agent, the following testimony was brought forth:

[Defense Counsel]
Q. — and the DNA in the semen that came from Mrs. Cannon, when you compare them or look at them, and you say it is a match, you are not saying absolutely that that is Oscar Moore’s semen that was found in Mrs. Cannon, are you?
A. Correct. I am not saying absolutely.
Q. And you can’t say that and be telling the truth, can you?
A. No. Again, I cannot individualize to the point to say that it came absolutely from one person.
Q. [Y]ou are not saying that these results established absolutely that the DNA found in the semen in the victim is the DNA of Oscar Moore? You’re not saying that at all, are you?
A. I am not saying that absolutely without any question. That’s correct.
Q. . . . it’s either [appellant’s], or it’s somebody who has a DNA profile similar to him? That is your opinion, is it not?
A. That is correct.

In addition, appellant presented two experts who disputed the testimony of the prosecution experts and testified that the probability of a match with appellant’s DNA was actually 1 in 2662 and 1 in 355, as opposed to 1 in 500,000, as concluded by the FBI agent. Appellant was thus able to challenge the reliability of the DNA evidence by cross examination and with his own experts at trial.

d. Lay Opinion Testimony

At trial, a state crime lab report regarding the shoe print was introduced during the testimony of state police investigator Glenn Sligh. The crime lab was unable to identify or eliminate the print found in the victim’s bedroom as having been made by appellant’s shoe due to the lack of sufficient individual markings. However, the report stated that the shoe sole pattern of the print was consistent with the pattern on appellant’s shoe.

The testimony that appellant complains of came about during the examination of Investigator Sligh. On direct examination by the State, Sligh testified that the sole of the appellant’s athletic shoe matched the shoe print found on the center of the victim’s bedroom floor by stating, “That’s the right foot. This is what we believe to be a match to that picture and to the lifted print.” Appellant objected to Mr. Sligh’s opinion about the shoe print when he realized that Mr. Sligh apparently did not have the education or training to qualify as an expert. The trial court ruled that although Sligh testified that he had compared shoe prints in several cases, he was not an expert, and his testimony would be allowed as lay opinion testimony pursuant to Ark. R. Evid. 701.

Rule 701 of the Arkansas Rules of Evidence allows admission of opinion testimony by lay witnesses if the opinions or inferences are “(1) [rationally based upon the opinion of the witness and (2) [h]elpful to a clear understanding of his testimony or the determination of a fact in issue.” Brown v. State, 316 Ark. 724, 875 S.W.2d 828 (1994). This court has stated that the requirements of Rule 701 are satisfied if the opinion or inference is one which a normal person would form on the basis of the observed facts, but if an opinion without the underlying facts would be misleading, then the objection should be sustained. Id. at 729.

Whether to admit relevant evidence rests in the sound discretion of the trial court, and the standard of review is abuse of discretion. Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995). Rule 701 is not a rule against opinions, but is a rule that conditionally favors them. Crow v. State, 306 Ark. 411, 814 S.W.2d 909 (1991).

We cannot say that the trial court abused its discretion in allowing the officer in this instance to give lay opinion testimony to show that the appellant’s shoe print matched the picture, because, even though the officer was not an expert in that field, the trial court made a determination that he had some experience in that area and he was clearly testifying that the patterns matched, which was not inconsistent with the crime lab report.

Reversed and remanded.


author: Per Curiam.

text:
    Johnny Austin BENTON v. STATE of Arkansas
    CR 96-145
    915 S.W.2d 284
    Supreme Court of Arkansas
    Opinion delivered February 19, 1996

      Edgar R. Thompson, for appellant.
    No response.
   Per Curiam.

Appellant, Johnny Austin Benton, by his attorney, Edgar R. Thompson, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to a mistake on his part.

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

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


author: Robert H. Dudley, Justice.

text:
    Natal EICHELBERGER and Johnny Elam v. STATE of Arkansas
    95-992
    916 S.W.2d 109
    Supreme Court of Arkansas
    Opinion delivered February 26, 1996

      William M. Pearson, for appellant Natal Eichelberger.

      Roderick H. Weaver, for appellant Johnny Elam.

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

Appellants Natal Eichelberger and Johnny Elam, along with two other young men, destroyed property owned by the Lamar School District, United States Corps of Engineers, Gary Hamilton, and Jack Cline, Sr. The juvenile division of chancery court conducted a bifurcated hearing at which it first adjudged appellants to be delinquents and then determined the amount of restitution they are to make. Before the restitution phase of the hearing began, appellants presented a motion in limine asking that restitution be limited to $2,000 for each victim. The basis for the motion was that the property was destroyed on April 2, 1994, and at that time, restitution could not exceed $2,000 for each victim. Ark. Code Ann. § 9-27-331 (d) (Repl. 1993). The State contested the motion and contended that the amount of allowable restitution was raised to $10,000 by Acts 61 and 62 of 1994. Appellants responded that the 1994 acts became effective on August 26, 1994, or four months after defendants destroyed the property, and that the retroactive application of the 1994 acts would violate the ex post facto provision of the Constitution of the United States. The trial court denied appellants’ motions and ordered them to pay $9,956.47 to one of the victims, Jack Cline, Sr. The trial court ordered appellants to make restitution of less than $2,000 to the Lamar School District, the Corps of Engineers, and Gary Hamilton.

Appellants’ first point of appeal is that the.trial court’s ruling applying the 1994 acts violated the Ex Post Facto Clause. The argument is well taken. Sections 9 and 10 of Article I of the Constitution of the United States prohibit Congress or the States from enacting ex post facto laws. A law is prohibited as ex post facto when it authorizes punishment for a crime because of an act previously done and which was not a crime when done, makes more burdensome the punishment for a crime, after its commission,” or deprives one charged with a crime of any defense that was available according to law at the time when the act was committed. Beazell v. Ohio, 269 U.S. 167, 169-70 (1925) (emphasis added). The retroactive enhancement of a penalty is just as onerous as the retroactive creation of a penalty. Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798). Several state and federal courts have considered whether restitution is a “penalty” that falls within the Constitutional prohibition of ex post facto laws, and they are unanimous in holding that an increase in the amount of restitution constitutes the increase of a penalty.

In Spielman v. State, 471 A.2d 730 (Md. App. 1984), the Maryland Court of Appeals remanded a case in which the defendants were ordered to pay restitution for malicious destruction of property under a statute passed after the commission of the offense. The statute added insurance companies to the victims that could receive restitution. Id. at 733. The State argued that the statute was procedural and provided “ ‘only for a new method for enforcement of a preexisting right.’ ” Id. The trial court agreed, but that appellate court vacated and remanded the judgment, stating that it viewed the amended statute as “creating a right in [third-party payors] not existing under the previous statute and, therefore, one of substance and not procedure.” Id. In response to the State’s argument that restitution is not punishment, the court said, “It can hardly be contended that one who has been ordered to pay restitution, as a condition of probation, and is subject to revocation of that probation for failure to make payment, has not received punishment.” Id. at 734. The opinion concludes, “Having determined that restitution of these amounts is punishment, it follows that to require the appellants to pay restitution in far greater amounts to the third party payors is to increase that punishment.” Id. at 735.

The Arizona Court of Appeals was confronted with facts comparable to the facts of the case at bar in the case of In the Matter of the Appeal in Maricopa County Juvenile Action No. J-92130, 677 P.2d 943 (Ariz. App. 1984). There, the statute authorized the juvenile court, when committing a delinquent to the Department of Correction, to also impose a monetary assessment and to order restitution. Id. at 944. The offense was committed on July 5, 1983, and the law went into effect on July 27, 1983. Id. The State argued that “in light of the unique procedures involved in the juvenile court setting and particularly, the focus on rehabilitation in the dispositional phase,” restitution is not punitive in nature, but only a part of the State’s scheme of rehabilitation of juveniles. Id. at 945. The court agreed with the State that the ex post facto prohibition only applies to laws dealing with criminal punishment, but held that the rehabilitative focus of juvenile proceedings is not dispositive. Id. at 946. It noted that the United States Supreme Court in Breed v. Jones, 421 U.S. 519 (1975) made applicable in juvenile proceedings “those constitutional guarantees associated with traditional criminal prosecutions,” with the exception of jury trial. Id. It held that it was “too late in the day” to conclude that dispositions for juveniles, which include incarceration, fines, and restitution, “are not to be considered criminal sanctions for the purposes of the ex post facto clause.” Id. The court took note of the fact that sanctions had been increased to permit the imposition of a fine and restitution where they were not previously permissible, and in addition, the conditions of parole had been modified to make payment of the fines and restitution a condition of release. Id. It concluded that this was the type of “legal disadvantage” contemplated by Weaver v. Graham, 450 U.S. 24 (1981), in which the Supreme Court set out the following two-pronged test to determine whether there is an ex post facto violation: (1) The statute must be retrospective, and (2) the statute must disadvantage the offender.

In People v. Slocum, 539 N.W.2d 571 (Mich. App. 1995), the Michigan Court of Appeals held that retroactive application of a statute authorizing the court to order the defendant to pay for extradition costs increased the defendant’s punishment, as it increased the amount of restitution for which he would be responsible, and thereby violated the Ex Post Facto Clause. In State v. Short, 350 S.E.2d 1 (W. Va. 1986), the West Virginia Supreme Court of Appeals held that retroactive application of the Victim Crime Protection Act, which requires the defendant to pay restitution beyond his period of probation, increased his punishment and was an ex post facto application of law. Finally, the Sixth Circuit Court of Appeals in United States v. Streebing, 987 F.2d 368 (6th. Cir. 1993) and in United States v. Jewett, 978 F.2d 248 (6th. Cir. 1992), held that expanded definitions of “victim” in acts passed after the offenses were committed created additional rights and increased applicable penalties, making retroactive application ex post facto.

Acts 61 and 62 of 1994, as applied to appellants, constituted a violation of the Ex Post Facto Clause. The 1994 acts increased the burden of the punishment to the juveniles. The scheme of the statute is punitive, as it allows for revocation of probation if restitution is not paid. See Ark. Code Ann. § 9-27-339(f) (Repl. 1993 & Supp. 1995); compare with In the Matter of the Appeal in Maricopa County Juvenile Action No. J-92130, 677 P.2d at 946. The trial court ordered appellants to pay Jack Cline, Sr., more than $2,000. We have held that the statutory limits apply per victim. Leach v. State, 307 Ark. 201, 819 S.W.2d 1 (1991). Thus, the trial court erred in applying the 1994 acts to appellants and in ordering them to pay in excess of $2,000.00 to Jack Cline, Sr. Accordingly, we reverse and remand the part of the order relating to Jack Cline, Sr.

Appellants next contend that the trial court erred in admitting proof of Gary Hamilton’s damages. The trial court allowed Gary Hamilton to prove his damages with an invoice from a windshield-repair company that was addressed to Hamilton’s insurance agent. It reflected that the glass company would charge the insurance company $511.59 to replace the broken windshield. The invoice was hearsay because it was a written assertion made out of court and offered into evidence to prove the amount of damages. See Ark. R. Evid. 801 and 803; Wilburn v. State, 317 Ark. 73, 876 S.W.2d 555 (1994). The State tacitly recognizes that the ruling was erroneous, but contends that it was harmless.

We have often held that we will not reverse where the evidence erroneously admitted was merely cumulative. See Williams v. Southwestern Bell, 319 Ark. 626, 893 S.W.2d 770 (1995). Here, the State contends that Hamilton testified to the amount of his damages aside from the invoice, and as a result, the invoice was merely cumulative. The record does not support the State’s contention. Gary Hamilton never testified to the amount of his damages. The closest he came to such testimony was when he stated that he did not file a claim with his insurance company because his insurance policy had a $500 deductible provision. However, this did not constitute proof of the amount of the damages, as he would have made that statement if his damages were anywhere between $1.00 and $500. Thus, we must reverse and remand the part of the order relating to restitution to Gary Hamilton.

Appellants next contend that the trial court made an erroneous evidentiary ruling when it allowed the State to introduce an itemized list of damages to prove the amount of restitution for the Corps of Engineers. We need not address the argument in any detail. The itemized statement reflected damages to the Corps of Engineers in the amount of $1,374.70, but in making their hearsay objection, appellants stated, “We would object to anything other than the $382.00.” The trial court ordered appellants to make restitution to the Corps of Engineers in the amount of $382.00. Thus, the ruling allowing the entire itemized statement into evidence did not prejudice appellants.

In their final argument, appellants contend that the trial court erred in refusing to grant their motions for a directed verdict on that part of the bifurcated trial involving restitution. In making the argument, they first contend that the trial court erred in admitting evidence as set out in the first three points of appeal, and they next contend that, when the erroneously admitted evidence is excluded, the remaining evidence is insufficient to support the orders of restitution. The argument is based upon a false premise about appellate review. In determining the sufficiency of evidence, an appellate court reviews all of the evidence introduced at trial, whether correctly or erroneously admitted. Findley v. State, 300 Ark. 265, 778 S.W.2d 624 (1989). If substantial evidence was presented, but prejudicial trial error occurred, the case is reversed and remanded. If, however, after considering all of the evidence, whether correctly or erroneously admitted, the party having the burden of proof failed to prove its case by the appropriate standard, the case is reversed and dismissed. If the evidence was sufficient, the appellate court considers other assignments of trial error. If it was insufficient, the case is reversed and dismissed and there is no need to consider the other arguments. This is the reason an appellate court routinely first considers sufficiency of the evidence. Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984).

Affirmed in part; reversed and remanded in part.