author: Jack Holt, Jr., Chief Justice.

text:
    Rickey Hale DAFFRON v. STATE of Arkansas
    CR 94-282
    885 S.W.2d 3
    Supreme Court of Arkansas
    Opinion delivered October 10, 1994

      Harold W. Madden, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, Rickey Hale Daffron, was sentenced to consecutive sentences totaling fifty years for two counts of rape and one count of criminal attempt to commit rape. On appeal, he argues that the evidence was insufficient to sustain the verdicts for criminal attempt to commit rape and rape, and that the trial court should have granted his motions for directed verdict of acquittal in this regard. We affirm the trial court’s actions.

At trial, Daffron’s counsel stated to the trial court that he was relying on his “standard motions for judgment of acquittal based on insufficiency of the evidence on the State’s case.” His motion for acquittal on the attempted rape charge addressed the “substantial step” element of the crime and therefore was specific enough to apprise the trial court of the particular point raised.

However, by resting on his invocation of “standard motions,” counsel waived the issue of sufficiency of the evidence on the rape charges. We have recently drawn a bright line in holding that a motion for a directed verdict in a criminal case must state the specific ground of the motion. Walker v. State, 318 Ark. 107, 883 S.W.2d 831 (1994).

That being the case, we do not consider the merits of whether there was sufficient evidence to support Daffron’s rape convictions. Brown v. State, 316 Ark. 724, 875 S.W.2d 828 (1994). Instead, we limit our review to his claim concerning criminal attempt to commit rape, and we hold that the trial court did not err in denying the defense motions for directed verdict of acquittal in this regard.

Facts

Daffron was married in 1984 to Twyla (Daffron) Sutton, and a daughter was bom during the marriage. Daffron had another child, a daughter from a previous marriage, who did not reside with him; the girl was twelve years old at the time of trial in 1993. When Mrs. Sutton married Daffron, she had, from a prior marriage, two daughters, ages ten and nine at the time of trial, who lived with the couple for the duration of their marriage.

In September 1989, the parties, who then resided in Little Rock, separated. They were divorced in 1991, and Daffron was awarded custody of the child bom of his union with Mrs. Daffron, while she retained custody of her daughters from the earlier marriage. An informal weekend visitation arrangement was worked out between the couple to enable their daughter and Daffron’s former stepdaughters to maintain their relationship as sisters.

Ms. Daffron married Lee Sutton in August 1992 and subsequently she and her two custodial daughters moved with him to Ozark for several months. During that period, in early November, Daffron drove to Ozark, picked up his former stepdaughters, and returned to his residence in Little Rock for a weekend visit. After the girls returned to Ozark, the ten year old reported to Mr. Sutton and her school counselor that Daffron had engaged in sexual intercourse with her. She was subsequently examined by a doctor in Paris, Arkansas, and both children were later examined by Dr. Jerry G. Jones at Arkansas Children’s Hospital in Little Rock.

Detective Ron Tucker of the Pulaski County Sheriff’s Office, in the process of interviewing Ms. Sutton and her two daughters in December 1992, learned that Daffron’s daughter by his previous marriage had been present in his home at one point. The detective traced the girl through records in the Department of Human Services and discovered that she was presently a ward of the State. In January 1993, Detective Tucker interviewed her and learned that Daffron had taken sexual liberties with her.

Shortly thereafter, Daffron was charged with raping his two stepdaughters, who were less than fourteen years old, in violation of Ark. Code Ann. § 5-14-103 (Repl. 1993) and with criminal attempt to commit rape upon his daughter, who was less than fourteen years old, in violation of Ark. Code Ann. § 5-3-201 (Repl. 1993). Daffron was tried before a jury on September 15, 1993. He was found guilty on all three felony counts and was sentenced to consecutive sentences of twenty years each for the rapes of the ten-year-old and the nine-year-old former stepdaughters and ten years for the criminal attempt to rape his twelve-year-old daughter. From that judgment, he brings this appeal.

I. Criminal attempt to commit rape substantial evidence

In his first point for reversal, Daffron argues that the trial court erred in refusing to grant him a directed verdict of acquittal on the charge of criminal attempt to commit rape. He contends that his actions toward his daughter did not amount to conduct constituting attempted rape.

At trial, Daffron moved for judgment of acquittal on the charge of criminal attempt to commit rape at the close of the State’s case. His attorney stated:

We want to make the standard motions for judgment of acquittal based on the insufficiency of the evidence on the State’s case. They have woefully fallen short of their allegations and burden of proof and — specifically in Count 3, the allegation of attempted rape on the [twelve-year-old] child. ... At best, taking the State’s evidence in its best light, all we have here is perhaps of (sic) inappropriate contacts on this child. Inappropriate touching certainly is not a substantial step to an actual attempt to rape, or to have sexual intercourse with this child. This child was, I didn’t cross-examine the child because I didn’t feel her testimony was anywhere near what the law requires to charge this man with attempted rape. . . .

At the close of all the evidence, the defense counsel renewed the motions. Again, his focus on the element of “a substantial step” specifically informed the trial court of the basis of the motion, thus preserving the attempted-rape issue for our appellate review. See Patrick v. State, 314 Ark. 285, 862 S.W.2d 239 (1993).

A motion for a judgment of acquittal is equivalent to a motion for directed verdict. See Young v. State, 316 Ark. 225, 871 S.W.2d 373 (1994). A directed verdict is a challenge to the sufficiency of the evidence. Graham v. State, 314 Ark. 152, 861 S.W.2d 299 (1993). The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict. Friar v. State, 313 Ark. 253, 854 S.W.2d 318 (1993). On appeal, this court reviews the evidence in the light most favorable to the appellee and sustains the conviction if there is any substantial evidence to support it. Abdullah v. State, 301 Ark. 235, 738 S.W.2d 58 (1990). Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980).

The relevant definition of rape is found at Ark. Code Ann. § 5-4-103(a)(3) (Repl. 1993):

(a) A person commits rape if he engages in sexual intercourse or deviate sexual activity with another person:
(3) Who is less than fourteen (14) years old. . . .

Conduct constituting criminal attempt is defined as follows:

(a) A person attempts to commit an offense if he:
(1) Purposely engages in conduct that would constitute an offense if the attendant circumstances were as he believes them to be; or
(2) Purposely engages in conduct that constitutes a substantial step in a course of conduct intended to culminate in the commission of an offense whether or not the attendant circumstances are as he believes them to be.
(b) When causing a particular result is an element of the offense, a person commits the offense of criminal attempt if, acting with the kind of culpability otherwise required for the commission of the offense, he purposely engages in conduct that constitutes a substantial step in a course of conduct intended or known to cause such a result.
(c) Conduct is not a substantial step under this section unless it is strongly corroborative of the person’s criminal purpose.

Ark. Code Ann. § 5-3-201 (Repl. 1993).

Daffron’s twelve-year-old daughter testified that she first met her father when she was nine years old. She went to his residence on several occasions because she enjoyed the company of Ms. Sutton and her half-sisters. The daughter stated that in 1990, shortly after her tenth birthday, she spent the night at her father’s apartment in Little Rock. She had gone to sleep on a couch and awakened in his bedroom. Daffron informed her that Ms. Sutton and the other girls, who were living with him at the time, had gone.

Then, the twelve year old testified, her father began touching her. “He started to squeeze me tight,” she said, “and then he started to feel of my breast and my vaginal area.” When Daffron began touching his daughter, she told him she was hungry and tried to get up, but he pulled her back. She testified that, while he was touching her, Daffron told her how much he loved her and said, “Oh, you’re so soft.”

The girl was wearing a nightgown and panties. As her father began reaching up beneath her gown, “moving upwards,” the twelve year old got out of bed “[b]ecause I did not want him touching on me” and went to the kitchen. Afterward, she returned to her mother’s apartment in the same complex. She never returned to visit her father, and she reported the incident to her grandmother.

Ms. Sutton recalled, in her testimony, that she and Daffron had an argument the last time his twelve-year-old daughter stayed with him and that she and her two daughters left the apartment. At that time, Daffron’s daughter was asleep on the couch.

On appeal, Daffron insists that while his conduct toward his daughter might be said to have constituted a lesser offense, it cannot be construed as intended to result in rape. He asserts that there was no testimony that he attempted to prevent the girl from going to the kitchen once she got out of the bed or that he subsequently attempted to stop her from leaving his apartment. Daffron argues that unlike the situation of the appellant in Summerlin v. State, 296 Ark. 347, 756 S.W.2d 980 (1988), there was no testimony that he removed any of his clothes or his daughter’s or that he employed violence. This argument is misplaced as it is not necessary, where a child under the age of fourteen is involved, that any degree of force be employed. Ark. Code Ann. § 5-14-103(a)(3). Hence, the Summerlin case, upon which Daffron relies, is inapplicable to the present set of circumstances, where the victim was ten years old at the time of the attempted rape.

Daffron’s actions constituted a substantial step in a course of conduct intended to culminate in the commission of rape under Ark. Code Ann. § 5-3-201(a)(2). It is undisputed that he brought his daughter from a couch to his bedroom; he touched her breasts and vaginal area; he pulled her back on his bed when she first attempted to leave; he moved his hand beneath her nightgown; he made suggestive statements about how “soft” she felt.

Suffice it to say, the evidence of Daffron’s conduct warranted the trial court’s denial of the defense motions for directed verdict on the charge of criminal attempt to commit rape and is sufficient to sustain the jury’s verdict.

II. Rape substantial evidence

In his remaining argument for reversal, Daffron maintains that the evidence of the rapes of his former stepdaughters was insufficient, arguing that the trial court erred in refusing to grant his motions for acquittal. In this regard, counsel for the defense made only general motions on the sufficiency of the evidence. After the close of the State’s case, he said:

We want to make the standard motions for judgment of acquittal based on the insufficiency of the evidence on the State’s case. [There followed the discussion of the attempted-rape issue as quoted above, yet there was no reference or mentioned made by court or counsel as to the evidence surrounding the charges of rape.] . . . And basically, I’ve just made the standard motions on the other two children, that there was insufficient evidence to go to the Jury on the rape of the other two.

(Emphasis added.) Then, at the close of all the evidence, the defense counsel merely stated that he wished to renew the “previous motions” and did not recount the details of either motion for judgment of acquittal.

We have often remarked that we adhere to a strict construction of Rule 36.21(b) of the Arkansas Rules of Criminal Procedure, which deals with the failure to question the sufficiency of the evidence, and we have held that a general reference to “the usual motions” or to “insufficient evidence” will not satisfy the requirement of the rule. Middleton v. State, 311 Ark. 307, 842 S.W.2d 434 (1992); Pilcher v. State, 303 Ark. 335, 796 S.W.2d 845 (1990). Instead, such a general motion constitutes a waiver of the right to challenge the sufficiency of the evidence. Id.

In Brown v. State, supra, we emphasized that “[w]e have repeatedly written that a challenge to the sufficiency of the evidence requires the moving party to apprise the trial court of the specific basis on which the motion is made. . . . The reasoning underlying our holdings is that when specific grounds are stated and the absent proof is pinpointed, the trial court can either grant the motion or, if justice requires, allow the State to reopen its case and supply the missing proof.” 316 Ark. at 726, 875 S.W.2d at 830. See also Patrick v. State, supra; Middleton v. State, supra. Most recently, in Walker v. State, supra, we underscored these holdings, noting that Ark. R. Crim. P. 36.21 must be read in alignment with Ark. R. Civ. P. 50 and concluding, once again, that “[i]f a motion for directed verdict is general and does not specify a basis for the motion, it will be insufficient to preserve a specific argument for appellate review.” 318 Ark. at 108, 883 S.W.2d at 832.

Since Daffron failed to provide specifics concerning the rape charges, we hold that the trial court did not err in denying the defense motions for directed verdict of acquittal in this regard. Moreover, the sufficiency issue having been waived, we will not consider it on the merits. Andrews v. State, 305 Ark. 262, 807 S.W.2d 917 (1991).

Affirmed.


source: Caselaw Access Project

author: Robert H. Dudley, Justice.

license: Public Domain

text:
    Jo Ann COOK v. City of PINE BLUFF
    93-1342
    885 S.W.2d 7
    Supreme Court of Arkansas
    Opinion delivered October 10, 1994

      Appellant, pro se.

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

The Pine Bluff Police Department was in the process of having appellant’s car towed away when appellant began to strenuously object. As a result of appellant’s actions, she was charged with the misdemeanors of obstruction of government operations, disorderly conduct, and resisting arrest. The charges were pending in municipal court when appellant moved for a jury trial. The municipal judge transferred the case to circuit court. Appellant filed numerous motions. Eventually the City moved to nolle prosse the three charges. On September 9, 1993, the circuit judge granted leave to the City to dismiss the charges. Appellant seeks to appeal from the order dismissing the charges. We dismiss the appeal.

No judgment of conviction was entered against appellant because the charges were dismissed. The Arkansas Rules of Criminal Procedure give “any person convicted of a misdemeanor” in circuit court the right of appeal to an appellate court. A.R.Cr.P. Rule 36.1 (emphasis supplied). The rule requires a person to be convicted of an offense before he or she has a right to an appeal. In addition, none of appellant’s points of appeal are shown to have been decided by the circuit court. If we determined those issues we would be making original decisions. We decline to make original, as distinguished from appellate, decisions. See Trice v. City of Pine Bluff, 282 Ark. 251, 667 S.W.2d 952 (1984); Weston v. State, 265 Ark. 58, 576 S.W.2d 705, cert. denied 444 U.S. 965 (1979).

Appeal dismissed.


text:
    Gary S. GREENLEE v. STATE of Arkansas
    CR 93-1202
    884 S.W.2d 947
    Supreme Court of Arkansas
    Opinion delivered October 10, 1994

      J. Sky Tapp, for appellant.

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

Gary Greenlee was convicted of the rape of a five-year-old girl. Over appellant’s objection, the trial court allowed the State, in its case-in-chief, to introduce into evidence four prior sex offenses committed in Oklahoma, a prior six-count information, and the affidavit of an Oklahoma detective, who was “assigned to sex cases.” The affidavit stated that the detective had “read certain official investigative reports and statements of witnesses regarding the above named defendant, and from the reports [the detective determined]” that appellant should be arrested for six sex felonies in Oklahoma.

The trial court erred in admitting the information and the detective’s affidavit in the State’s case-in-chief. An information in a criminal case is comparable to a complaint in a civil case. We have set out the evidentiary law regarding the admission of complaints as follows in Razorback Cab of Fort Smith, Inc. v. Lingo, 304 Ark. 323, 325, 802 S.W.2d 444, 445 (1991):

Over the objection of the defendants, the plaintiffs were permitted to introduce the complaint in evidence. Razorback charges the trial court with reversible error on this count and we sustain the argument. Complaints, normally phrased in the most partisan language, are in no conceivable sense evidentiary. That seems particularly true in a personal injury case, and one in which punitive damages are sought. The introduction of the complaint as an exhibit which the jury is told it should consider [AMI Civ. 3d 101(d)] and which it may take into the jury room, strikes us as arrant error.
While the cases bespeak no hard and fast rule, pleadings, and especially complaints, are generally treated as inadmissible. Wright v. Hullett, 245 Ark. 152, 431 S.W.2d 486 (1968) (“Statement or allegation in a pleading, such as a bill in equity, or a petition of complaint ... is inadmissible in behalf of the pleader, in the action in which it is filed, against his opponent....”); State Farm Mutual Insurance Co. v. Cates, 261 Ark. 129, 546 S.W.2d 423 (1977); Fumiko Matsuuchi v. Security-First National Bank of Los Angeles, 103 Cal. 2d 214, 229 P.2d 376 (1951) (“Since when has an allegation in a pleading ever been regarded as evidence against an opposing party? The answer is never at all in the history of the law.”); Kroger Company v. Warren, 410 S.W.2d 194 (Tex. Civ. App. 1966); Abramsky v. Felderbaum, 194 A.2d 501 (1963); Toney v. Raines, 224 Ark. 692, 275 S.W.2d 771 (1955).

Id. at 325, 802 S.W.2d at 445.

The same is true of an information. Instruction 108 of the Arkansas Model Criminal Instructions, which is comparable to Model Instruction 101(d), provides: “The filing of an information is merely the means by which a person is brought to trial. It is not evidence and is not to be considered by you in determining the guilt or innocence of [the defendant].” We have long said an indictment or information is a mere pleading and cannot be used as evidence. Edmonds v. State, 34 Ark. 720 (1879). Compounding the error is the fact that the information alleged that appellant committed six felonies in Oklahoma, but he has been convicted of only four prior felonies.

It was also error to admit into evidence the affidavit of the Oklahoma detective. It was written by a detective who was not present at appellant’s trial. This affidavit stated that the detective was “assigned to sex crimes” and “he has read certain official investigative reports and statements of witnesses regarding the above named defendant and, from these statements it appears” that appellant should be held to answer for six felonies. It was inadmissible hearsay evidence.

On appeal, the State suggests that the information and affidavit might be admissible as a business record under Rule 803(6) of the Arkansas Rules of Evidence, or as an “other exception” under Rule 803(24). The State offers neither citation of authority nor convincing argument for its suggestion, and we know of no authority in support of such a suggestion. The hearsay rule is clear. Nothing more need be written about it. The State then makes a more trenchant argument: “If there was any error in admitting the affidavit, it was harmless because the convictions were admissible.” Again, the argument is without merit. The error in admitting the affidavit and the information during the State’s case-in-chief was obviously prejudicial. The affidavit told the jurors that a detective in Oklahoma who investigated sex crimes thought there was sufficient evidence to charge appellant with six sex crimes. The information alleged the same. Yet he had only been convicted of four of the crimes. It is fundamental that such evidence be excluded. See Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954). This evidence was not admitted during cross-examination of the accused, nor was it admitted during the sentencing phase of a bifurcated trial. Rather, it was admitted during the State’s case-in-chief and constituted prejudicial error. As a result, we must reverse and remand.

For some unexplained reason, appellant argued in the trial court that it was error to admit both the information and the affidavit, but in this court he does not argue that it was error to admit the information. In the argument section of his brief, appellant discusses only the affidavit. If we were affirming the case we would not consider that part of erroneous ruling admitting the information because of the procedural defect in appellant’s argument. However, we are reversing and remanding the case for a new trial. We have long held that under such conditions we should reach the issue despite a procedural defect. The difference in reaching procedurally defective issues when reversing, versus affirming, has long been our practice. In Arkansas State Highway Commission v. Arkansas Real Estate Commission, 243 Ark. 738, 421 S.W.2d 883 (1967), we considered on the merits not one, but two, contentions that were procedurally defective. In one, we held that upon retrial the appellant would be entitled to a certain instruction even though the one offered at the first trial was imperfectly drawn. In the other we pointed out that one of appellant’s contentions might be unsound upon a second trial even though we could not tell from appellant’s abstract whether the trial court had erred in the original trial. In commenting on our practice, Justice George Rose Smith, concurring in St. Louis S.W. Railway Co. v. Jackson, 246 Ark. 268, 438 S.W.2d 41 (1969), wrote:

Our practice is demonstrably right. It involves no unfairness either to the trial court or to the losing party, because the case is going back for a new trial in any event. Hence, what we try to do is to prevent still a third trial as a result of some error that is called to our attention upon the first appeal.

St. Louis S.W. Ry. v. Jackson, 246 Ark. 268, 275, 438 S.W.2d 41, 45 (1969) (Smith, J., concurring).

Appellant makes a number of other assignments of error, but none has merit. We address those arguments that might arise upon retrial.

Appellant contends the trial court erred in admitting into evidence, during the State’s case-in-chief, the four prior convictions for sexual offenses. All four of the prior convictions were sex-related offenses, two being for indecent exposure and two being for lewd molestation, and all were committed against five-year-old boys who were entrusted to appellant for baby-sitting care. Similarly, the five-year-old victim in this case was entrusted to appellant for baby-sitting care. When caught with the child in his bedroom, appellant gave the excuse that he was only comforting the child.

If this case did not pertain to child abuse or incest, the evidence of other crimes would be inadmissible character evidence under Rule 404(b) of the Arkansas Rules of Evidence. However, we allow such evidence under a pedophile exception to show “similar acts with the same child or other children in the same household when it is helpful in showing a ‘proclivity toward a specific act with a person or class of persons with whom the accused has an intimate relationship.’” Free v. State, 293 Ark. 65, 71, 732 S.W.2d 452, 455 (1987) (quoting White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986)). Appellant committed the prior offenses against young children, just as he was accused of doing in this case, and in committing the prior offenses, he was successful in luring the children into his lair by baby-sitting, just as he was accused of doing in this case. We have long held that such evidence helps to prove the depraved sexual instinct of the accused. Williams v. State, 103 Ark. 70, 146 S.W. 471 (1912).

Appellant next contends that the trial court erred in allowing into evidence a videotaped deposition of the victim. Section 16-44-203 of the Arkansas Code Annotated permits the presentation of a child’s testimony by videotaped deposition “for good cause shown.” Ark. Code Ann. § 16-44-203(b) (Repl. 1994). Appellant claims there was no showing of good cause, that the only evidence came from the child’s mother, who, he argues, had an obvious bias and who merely testified the child would do better in a “one-on-one basis.” But there was more to her testimony. She said her daughter had nightmares, was nervous and frightened, shied away from men since the occurrence, was undergoing weekly counseling at her school, and would not be able to testify in front of a lot of people. There was, in short, ample basis for a finding of good cause. Kester v. State, 303 Ark. 303, 797 S.W.2d 704 (1990); McGuire v. State, 288 Ark. 388, 706 S.W.2d 360 (1986).

Appellant additionally argues that the child was not competent to testify. The competency of children to testify is an issue largely within the discretion of the trial judges. They see the witnesses in fine relief and can weigh each witness’s manner and demeanor under direct and cross-examination. The relevant criteria for determining competency are: (1) the ability to understand the burden of the oath; (2) an understanding of the consequences of false witness; and (3) the ability to receive and retain impressions so as to impart a reasonably accurate account of what transpired. Kitchen v. State, 271 Ark. 1, 607 S.W.2d 385 (1980).

With this six-year-old, as might be expected, some questions went unanswered and there were some discrepancies in her responses. She had difficulty explaining the consequences of not telling the truth, but children often understand concepts they cannot fully articulate. Her testimony as a whole demonstrated an adequate understanding of the difference between truth and falsehood, and she showed an allegiance to truth. We cannot say that the trial court abused its discretion. See Jackson v. State, 290 Ark. 375, 720 S.W.2d 282 (1986).

Appellant contends the trial court erroneously admitted hearsay evidence by allowing the child’s mother to testify about a statement her daughter made to her. The issue came about as follows. The mother left her daughter with appellant one evening while she and her husband visited friends. When she came home around midnight the child was asleep. The girl never fully awoke, and the next morning when she got up she came to her mother and said, “Mama, do you know what Gary did to me last night? He stuck his tongue in my mouth and his finger in my noo-noo,” referring to her vagina. The trial court admitted the testimony as an excited utterance. A.R.E. Rule 803(2).

In Smith v. State, 303 Ark. 524, 798 S.W.2d 94 (1990), we upheld the admission of a similar utterance under Rule 803(2), noting that it must be spontaneous, excited, or impulsive, rather than the product of reflection and deliberation. Similarly, in Cole v. State, 307 Ark. 41, 818 S.W.2d 573 (1991), we upheld the admission of a statement made the morning after an alleged sexual molestation of a retarded twenty-three year-old victim having the mental capacity of a six- or-seven-year-old as an excited utterance.

Here, the utterance appeared to be entirely spontaneous. It seems to have been the first conscious thought expressed by the child when she awoke the next morning. Indeed, the very words — “Mama, do you know what Gary did to me last night?” — bespeak the child’s heightened state of excitement. It is for the trial court to determine whether the statement was made under the stress of excitement. Marx v. State 291 Ark. 325, 724 S.W.2d 456 (1987).

As to the timing, we have said:

The interval between a statement and an event is governed by the particular circumstances of each case. D. Binder, Hearsay Handbook § 2.03 (1983). “The general rule is that an utterance following an exciting event must be made soon enough thereafter that it can reasonably be considered a product of the stress of the excitement, rather than of intervening reflection or deliberation.” Id. “The trend is toward expansion of the time interval after an exciting event and some courts are more liberal in expanding the time period following an exciting event when the declarant is a child.” Id.

Smith, 303 Ark. at 530, 798 S.W.2d at 97.

We cannot say that the trial court abused its discretion in ruling that the child’s statement was admissible as an excited utterance.

Appellant objected to the trial court’s cautionary instruction to the jury that the evidence of the defendant’s prior crimes was not admitted to prove the character of the defendant or to show that he acted in conformity therewith, but was admitted for the limited purpose of determining any motive, plan, or intent the defendant may have had pertaining to the alleged offense in this case. He contends that the jury could not possibly grasp the distinction between evidence admitted to prove guilt and evidence admitted to prove similarities in motive, plan, or intent. The distinction may involve a fine line, but we are not persuaded it is beyond comprehension. Appellant has cited no authority for this point, and our cases hold that the cautionary instruction should be given. George v. State, 306 Ark. 360, 813 S.W.2d 792 (1991); Young v. State, 296 Ark. 394, 757 S.W.2d 544 (1988).

Appellant maintains the trial court erred by instructing the jury, in accordance with AMCI 203, that evidence of a witness’s prior convictions may be considered by the jury for the purpose of judging the credibility of the witness, but not as evidence of the guilt of the accused. However, the instruction pertained not to appellant, who did not testify, but to a witness for the State who had been convicted of a felony. Appellant has not demonstrated how the court erred in so instructing the jury. Starr v. State, 297 Ark. 26, 759 S.W.2d 535 (1988); Hines v. State, 289 Ark. 50, 709 S.W.2d 65 (1986).

Reversed and remanded for a new trial.


text:
    Larry MINGS, Charles Douglas Grabow and Daisy G. Riley, a/k/a Stacey Smith v. STATE of Arkansas
    CR 94-377
    884 S.W.2d 596
    Supreme Court of Arkansas
    Opinion delivered October 10, 1994
    [Rehearing denied November 14, 1994.]

      Gene O’Daniel, for appellants.

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

Larry Mings, Charles Grabow, and Stacey Smith were traveling on Interstate 40 in a rented motor home. A state trooper stopped the motor home because it was weaving back and forth between the shoulder and the lane line. Smith, one of the lessees, consented to a search. Five compressed bricks of 90% pure cocaine with á retail value of four million dollars were found inside the vehicle. Mings, Grabow, and Smith were jointly charged with possession of cocaine with the intent to deliver. Each was convicted, and each now appeals. We affirm the convictions of all three.

I.

Mings lives in Little Sioux, Iowa and, on May 3, 1993, drove his pickup to a Best Western motel in Houston, Texas. The motel is adjacent to the international airport. After checking into the motel he called one of his sons, Bill, who lives in the Houston area. The next day Bill came to the motel to see his father, and he brought Grabow with him. Mings had casually known Grabow, and the woman who lived with him, Smith, for about two years. On May 5, Bill received a emergency phone call which necessitated his leaving Houston. Mings had very little cash with him and borrowed $300.00 from Bill before he left. Mings testified that, soon after Bill left, Grabow and Smith came to his room and said they were going to rent a motor home and drive to Bran-son, Missouri to see some of the shows. They asked if he would like to go to with them and come back to Houston on May 10th. Mings said Smith borrowed $1500.00 from his son Bill to rent the motor home.

To the contrary, Smith testified that both the trip to Bran-son and renting the motor home were Mings’s idea and that she rented the motor home only at Mings’s request. She testified that Mings fronted $1500.00 in cash for the rental of the motor home. She further testified that Mings was not coming back to Houston with Grabow and her, but, instead, was going to meet his son and go somewhere else.

Veronica Villatoro, who worked at the rental agency that rented the motor home, testified that Smith phoned her three or four times on May 4th about renting a motor home. A person named Oliver had returned a motor home to the agency on the 3rd, and it seemed to be the style that Smith wanted. After Oliver returned the motor home it was cleaned inside and outside and nothing unusual was seen. Ms. Villatoro personally made a brief inspection and did not see anything unusual inside it. The motor home remained on the agency’s enclosed lot until later taken by Smith. On May 4, Villatoro told Smith the agency now had available the style of motor home she wanted. The next afternoon, May 5, Mings and Smith got into Mings’s pickup truck and drove the short distance to the rental agency, which was also located near the airport, to rent the motor home. Mings testified that he took Smith to the agency because Grabow asked him to do so. Villatoro testified that Smith came into the rental office late in the afternoon of May 5, accompanied by Mings. Smith told Villatoro that her name was Daisy Riley, and she produced a Texas driver’s license for a Daisy Riley. Smith signed the rental agreement with the name Daisy Riley and listed Daisy Riley’s Texas driver’s license number as hers. Mings also signed the rental agreement as a lessee. Villatoro testified that Smith had a small purse with her and took out enough cash to pay the rental fee and deposit. She paid a $799.15 rental fee, and a $500.00 cash deposit to cover any damages to the motor home. All totaled, this amounted to 85 cents less than $1,300.00 that she paid in cash. It was agreed that the motor home would be returned on May 10th. Mings drove the motor home and Smith drove Mings’s pickup truck back to the airport motel where Mings had a room. Smith testified that she and Grabow had a residence in Houston and that she wanted to go there to get some clothes for the trip, but Mings rented a room for them in the motel and said that he would buy her some clothes on the way to Branson. The motor home was parked outside the motel that night. Mings testified that the motel had “security.”

Smith testified that early the next morning, May 6, Mings left his motel room and was sitting in the motor home with the motor running before she and Grabow got in. Mings testified that he, Smith, and Grabow left the motel together and got into the motor home together. Mings testified that he drove the motor home from the motel to “about forty to seventy miles south” of where they were stopped. At that point Grabow began driving and continued to do so until they were stopped by an Arkansas state trooper. Mings was riding in the front passenger’s seat when the motor home was stopped.

A state trooper, Karl Byrd, was one of six members of the Arkansas State Police that were assigned to the area as a part of a “saturation” program. Their assignment, after making legitimate traffic stops, was “to take the stops farther.” “Instead of jumping out and writing a ticket, we talk to the people and try to see if there’s any criminal activity going on.” Trooper Byrd saw the motor home being driven in a weaving manner onto the shoulder of the Interstate and back to the lane line. He stopped the motor home and asked the driver to get out and stand near the rear of the vehicle. He asked about the erratic driving. Grabow, who was driving, told the trooper that he had very little experience driving a motor home and also that the wind was bothering him. The trooper observed that Grabow had a Bandito tattoo on his arm. The trooper asked to see Grabow’s driver’s license, got some information from it, and went back to his police car to ask for information about Grabow by police radio. Grabow stood behind the motor home and in front of the police car. The trooper testified that Grabow was extremely nervous and evidenced a “noticeable shaking.” The radio report came back informing the trooper that Grabow had several felony convictions and was, at that time, on parole for murder. The trooper went back to the motor home and briefly asked some questions of Smith, who was in the back of the motor home with a child of Grabow’s. She said the motor home was rented to her. The trooper handed Grabow a warning ticket and asked if there was contraband in the motor home. Grabow replied there was not. The trooper asked if he could search the motor home and Grabow replied that he could, but he would have to ask Smith because she had rented the motor home.

The trooper asked Smith if she would consent to a search of the motor home. She got out of the motor home, and the trooper explained to her that he could not search the motor home unless she consented. He also explained that she had the right to refuse to consent to the search. She consented and, as Daisy Riley, signed a consent to search form. She then stood with Grabow in the area between the back of the motor home and the police car. Mings also got out of the motor home.

Another state policeman, Sergeant John Scarberough, was nearby and was contacted by Byrd by radio. Scarberough quickly arrived and joined Trooper Byrd in the search.- Almost immediately, Sergeant Scarberough found 11.17 pounds of cocaine hidden under a drawer which was below a closet inside the motor home. The cocaine was divided into five bricks with each of the bricks being separately wrapped in a thin plastic wrapping. Trooper Byrd informed them they were under arrest. Smith did not reveal her true identity and, as a result, was charged as Daisy Riley, the name in which she had rented the motor home and the name appearing on her driver’s license. She did not disclose her real name in any of the preliminary proceedings. It was only when she testified in the circuit court trial that she gave her real name, Stacey Smith, and stated that the Daisy Riley driver’s license and identification were false. As a result, she was charged as Daisy Riley, and the State did not check her background before she was cross-examined. That is also the reason this appeal was lodged with her name as Daisy Riley.

At the time they were arrested Mings had $1,116.50 in cash. The small amount of clothes he had with him were nearly all new, and some still had tags on them. Smith and Grabow had no clothes other than those they wore. Smith testified that personal finances at the time were “tough” for her and Grabow, as neither of them had a job.

II.

Each of the appellants argues that the foregoing evidence was insufficient to sustain his or her conviction for possession of cocaine with intent to deliver, and that the trial court erred in refusing to grant his or her motion for a directed verdict. A motion for a directed verdict is a challenge to the sufficiency of the evidence. Littlepage v. State, 314 Ark. 361, 863 S.W.2d 276 (1993). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, whether direct or circumstantial. Brown v. State, 315 Ark. 466, 869 S.W.2d 9 (1994). Evidence is substantial if it is of sufficient force and character to compel a conclusion one way or the other beyond suspicion or conjecture. Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993). On appeal, this court need only look at that evidence most favorable to appellee and consider only that testimony which supports the verdict. Brown, 315 Ark. at 471, 869 S.W.2d at 12.

It is not necessary for the State to prove literal physical possession of drugs in order to prove possession. Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982). Possession of drugs can be proved by constructive possession. Littlepage v. State, 314 Ark. 361, 863 S.W.2d 276 (1993). Constructive possession can be implied when the drugs are in the joint control of the accused and another. However, joint occupancy of a vehicle, standing alone, is not sufficient to establish possession or joint possession. There must be some other factor linking the accused to the drugs. Osborne, 278 Ark. at 50, 643 S.W.2d at 253. Other factors to be considered in cases involving automobiles occupied by more than one person are: (1) whether the contraband is in plain view; (2) whether the contraband is found with the accused’s personal effects; (3) whether it is found on the same side of the car seat as the accused was sitting or in near proximity to it; (4) whether the accused is the owner of the automobile, or exercises dominion and control over it; and (5) whether the accused acted suspiciously before or during the arrest. Plotts v. State, 297 Ark. 66, 69, 759 S.W.2d 793, 795 (1988).

In this case there was joint occupancy of the motor home, and each of the appellants had some degree of control over it at the time of the arrest. Mings was one lessee of the rented vehicle. Smith was a lessee even though she had leased the vehicle in a false name. Grabow was the driver. The cocaine weighed 11.17 pounds and was packaged into five bricks. The bricks were so large that in an exhibit they cover practically all of the seat of an office chair. The bulk of the cocaine was so great that it was not merely a residue inadvertently left in the motor home by someone else. The size and location of the bricks is substantial circumstantial evidence that the bricks were deliberately hidden under the drawer in the motor home. The cocaine’s retail value, four million dollars, is additional, strong circumstantial evidence that the cocaine was not inadvertently left in the motor home by someone else.

Additionally, as some circumstantial evidence, it was improbable that some third party would have guessed the three appellants would rent a motor home and travel to Branson, but, even if some third party might have so guessed, it is even more inconceivable that the third party would hide four million dollars worth of drugs in the motor home in the hope that the appellants would in fact go to Branson, and that the third party could in some way recover the cocaine. Such a notion is even more untenable when the fact is considered that the motor home was inspected inside and outside before Mings and Smith leased it, and nothing unusual was seen. The motor home then remained on an enclosed lot until Smith and Mings rented it. Thus, the size and value of the drugs constitute some circumstantial evidence that appellants were aware of, and in possession of, the drugs. The fact that the motel where all three stayed was adjacent to the international airport is also some slight circumstantial evidence in this particular case, especially since Grabow and Smith had a home in Houston but spent the night at the motel next to the airport.

The additional factors linking the individual appellants to the cocaine are as follows. Smith testified that Mings is the one who planned the trip from Texas to Missouri and that Mings fronted $1,500.00, in cash, for her to rent the motor home. It is undisputed that Mings drove Smith to the agency to rent the motor home and later drove the motor home back to the motel. Mings signed the agreement as one of the lessees, and, according to Smith, Mings had the opportunity to place the drugs in the motor home on the morning they left Houston. Mings drove the motor home out of Houston. Smith testified that Mings was not going to return to Houston even though his pickup truck remained there. Mings said he had to borrow $300.00 from his son to make the trip to Branson, yet he had $1,116.50 in cash when he was arrested.

Smith called the rental agency three or four times on May 4th, and signed the rental agreement on the 5th as one of the lessees. She gave a false name and used a false driver’s license. She paid cash to rent the motor home even though she was unemployed and times were “tough” for her and Grabow. Mings said the trip was made at the urging of Smith and Grabow. Finally, Smith was inside the motor home near the drugs when the officer asked to search the vehicle.

Grabow was driving the vehicle at the time of the arrest. He appeared to be “extremely nervous” and there was a “noticeable shaking” about him. Mings testified that Grabow and Smith urged him to make the trip, and Grabow asked Mings to drive Smith to the rental agency to rent the motor home. Grabow and Smith stayed at the motel with Mings, even though Grabow and Smith had a home in Houston.

All three were on a journey from Houston to Bran-son, a good distance, supposedly to see the shows. The motor home was to be returned to Houston on the 10th, so the trip was ostensibly for five days. Yet all admitted they were only casually acquainted. Grabow and Smith did not have enough clothes for the extended stay, and most of Mings’s clothes had just been purchased. Taken together, there was sufficient circumstantial evi- • dence for the jury to reasonably conclude that all three were in joint control and possession of the cocaine as “mules,” carrying four million dollars worth of drugs from the Houston International Airport area to Branson, Missouri.

III.

Each appellant separately argues that the stop of the motor home was in violation of his or her Fourth Amendment rights and that the trial court erred in refusing to suppress the evidence seized in the search. Each makes the primary argument that his or her arrest was pretextual. They do not challenge the constitutionality of the saturation program, but argue that the saturation program itself showed that the police had an ulterior motive in making the stop, and, therefore, the arrests were pretextual.

Pretextual arrests are unreasonable under the Fourth Amendment. Richardson v. State, 288 Ark. 407, 706 S.W.2d 363 (1986). Pretext is a matter of the arresting officer’s intent, which must be determined by the circumstances of the arrest. Ray v. State, 304 Ark. 489, 495, 803 S.W.2d 894, 897, cert. denied, 501 U.S. 1222 (1991). An ulterior motive does not in itself render an arrest pretextual when there is a valid overt reason to make the arrest. Hines v. State, 289 Ark. 50, 55, 709 S.W.2d 65, 68 (1986). The reasoning is that the arrest for the overt violation would have taken place in any event; thus there is no reason to bring the Fourth Amendment and the exclusionary doctrine into play. Id. Professor LaFave writes, “[I]f the police stop X’s car for minor offense A, and they ‘subjectively hoped to discover contraband during the stop’ so as to establish serious offense B, the stop is nonetheless lawful if ‘a reasonable officer would have made the stop in the absence of the invalid purpose.’” 1 Wayne R. LaFave, Search and Seizure § 1.4 at 22 (Supp. 1994).

In this case the motor home was weaving from the shoulder to the lane line of the highway when the trooper stopped it. Therefore, a valid, objective reason existed for the stop. An “otherwise valid stop does not become unreasonable merely because the officer has intuitive suspicions that the occupants of the car are engaged in some sort of criminal activity.” United States v. Cummins, 920 F.2d 498, 501 (8th Cir. 1990). Thus, the trial court correctly refused to suppress the evidence seized on the ground that the stop was pretextual.

There is a suggestion in Mings’s brief that the search was objectionable under Garrett v. Goodwin, 569 F. Supp. 106 (E.D. Ark. 1982). That case is inapposite as it involved a roadblock where all vehicles were stopped without regard to whether a violation of the law had occurred.

Smith and Grabow argue that once Trooper Byrd issued the warning ticket to Grabow, there was no justification for continuing to hold them, and there was no justification for the greater intrusion caused by the search of the motor home because the totality of the circumstances known to the officer did not meet the requisite level of reasonable suspicion. They cite United States v. Ramos, 20 F.3d 348 (8th Cir. 1994) in support of their argument. We do not reach the issue because it was not raised below. At trial, Smith and Grabow argued that the trooper was on a “fishing expedition” for drugs and that the trooper was trying to “find criminal activity in the area,” but that argument was made in the context that the stop was pretextual. Appellants never apprised the trial court that the scope of the stop was exceeded after the warning ticket was issued because the officer did not articulate the requisite level of reasonable suspicion. When an appellant’s argument at trial did not apprise the trial court of the argument made on appeal, we will not reach the argument. Hewitt v. State, 317 Ark. 362, 877 S.W.2d 926 (1994). Further, a party cannot change the basis of his argument on appeal. Id. Even constitutional arguments can be waived on appeal. Green v. State, 313 Ark. 87, 852 S.W.2d 110 (1993).

IV.

Appellant Mings argues that the consent to search the motor home, which was given by Smith using the name of Daisy Riley, was not voluntarily given, and, as a result, the trial court erred in refusing to suppress the evidence seized in the search. The fact that Smith does not make such an argument for herself portends the lack of merit in Mings’s argument. Even so, we reach the argument because Mings was one of the lessees of the motor home and had standing to object to the search. See Littlepage v. State, 314 Ark. 361, 863 S.W.2d 276 (1993). Trooper Byrd testified that Smith’s consent was freely and voluntarily given. The trooper’s testimony concerning voluntariness is supported by the form that was signed by Smith. Finally, the stop and Smith’s giving consent were videotaped, and at the suppression hearing the trial court watched a videotape of the entire roadside proceedings. The videotape supports the trial court’s finding.

V.

Grabow and Smith argue that the trial judge erred in not giving an instruction about proof of possession in joint occupancy cases. Again, we do not reach the issue. Appellants’ attorney merely requested an instruction that would charge the jury that in cases of joint occupancy of a vehicle there must be some additional link between the accused and the contraband. A proposed instruction was not proffered to the trial court. We have repeatedly stated that an appellant cannot assign as error the failure to instruct on any issue unless he has submitted a proposed instruction on that issue. E.g., Stewart v. State, 316 Ark. 153, 870 S.W.2d 752 (1994). Further, we have said that the proffered instruction must be included in the record and in the abstract to enable the appellate court to consider it. Id. In addition, the instruction or instructions given on joint occupancy were not abstracted. The State contends that an AMI criminal instruction on joint occupancy was given and that it adequately covered the subject. While we do not require an appellant to abstract all of the instructions given, where the issue is whether other instructions adequately covered an issue, we require that an appellant abstract the instructions given on the subject so that we can determine whether the other instructions did adequately cover the issue. Ross v. State, 300 Ark. 369, 779 S.W.2d 161 (1989). That was not done in this appeal.

Affirmed.


author: Steele Hays, Justice.

text:
    Lamar Boris DAVIS v. STATE of Arkansas
    CR 94-641
    885 S.W.2d 292
    Supreme Court of Arkansas
    Opinion delivered October 10, 1994

      Norman Mark Klappenbach, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Acting Deputy Att’y Gen., for appellee.
   Steele Hays, Justice.

This is an appeal from a conviction for armed robbery. There are nine points for reversal. We affirm the judgment of conviction.

On January 20, 1994, two men entered a convenience store in Prattsville. One pointed a gun at the cashier as the other walked behind her and held a knife to her throat as he took money from the cash drawer. She was told to lie on the floor and the men began to bind her with duct tape. They fled to a waiting car when another vehicle stopped for gas.

The clerk was able to obtain the license number and a description of the car and notified the Grant County Sheriff’s Office. Lamar Davis, appellant, and two other men were apprehended shortly thereafter in a car matching the description and license number given by the clerk. A hand gun, a lockblade knife, a kitchen knife and cash were found in the car.

Appellant was arrested and charged with aggravated robbery and was tried by a jury on February 28, 1994. He was found guilty and sentenced to life imprisonment. He appeals from that conviction.

First, appellant argues the trial court erred in denying his motion for a continuance. He points to the fact he was first notified on February 18 that the trial would be held on February 28 and therefore he had only a week-and-a-half to prepare for trial. He submits the state did not respond to discovery until February 17 giving him only ten days to review those materials.

The record reveals appellant was arrested on January 20, 1994, appeared before the court on January 24, and at that time told the court he was going to retain his own attorney. The trial court appointed an attorney in case appellant was not successful and a week later, when appellant had not yet retained counsel, the court appointed his present'attorney to represent him. Therefore the attorney was aware of his appointment to defend appellant approximately four weeks before trial.

Appellant moved for a continuance on February 22 and again on the day of trial but the motions were denied. In order to have a continuance granted appellant must make a showing of good cause. A.R.Cr.P. 27.3. Additionally appellant must show prejudice from the denial of the continuance. Gonzales v. State, 303 Ark. 537, 798 S.W.2d 101 (1990). When a motion for continuance is based on a lack of time to prepare, we will consider the totality of the circumstances. Id. The burden of showing prejudice is on appellant and we will not overturn the trial court’s ruling unless appellant has demonstrated an abuse of that discretion. King v. State, 324 Ark. 205, 862 S.W.2d 229 (1993). A lack of diligence alone is sufficient cause to deny a continuance. Walls v. State, 280 Ark. 291, 658 S.W.2d 362 (1983).

While appellant has argued generally that he lacked time to prepare for trial, the only specific he has given is that he did not receive the discovery materials until ten days before trial. Even so, appellant has not shown how he was prejudiced. As we stated in Brandon v. State, 283 Ark. 478, 678 S.W.2d 341 (1984), appellant has failed to show “what the attorney failed to do that could have been done, or what he did that he would not have done, if he had been afforded more time.” Appellant’s argument on this point is at best conclusory and lacks the essential demonstration of prejudice. The trial court’s comment is pertinent:

I would assume that this is not a complicated discovery and is not something that would require a lot of expertise, etc., therefore that is the basis for the court’s ruling.

Appellant made no response to the court’s observation and moved on to his next point.

Second, appellant argues the trial court erred in not suppressing his photo identification. Appellant points out that three of the six participants in the photo lineup were suspects in the robbery. He contends that since the three suspects were all captured in the same vehicle shortly after the robbery, identification of any one of these suspects would have implicated and prejudiced the other two suspects. We find no merit in this contention.

When a photo identification is followed by an eyewitness identification at trial, the conviction is set aside only if the photo identification'was so suggestive as to create a substantial possibility of misidentification. Matthews v. State 313 Ark. 327, 854 S.W.2d 339 (1993). A trial court’s ruling on the admissibility of an identification is not reversed unless it is clearly erroneous. Chism v. State, 312 Ark. 559, 570, 853 S.W.2d 255 (1993).

Here, the photo identification took place six days after the crime occurred. Melissa Price, the victim, was able to identify Davis, with no difficulty, as the man who had a gun pointed to her head, both in the photo lineup and at trial. Price testified that during the robbery, she was watching Davis with the gun and he told her, “Quit looking at me.” Secondly, the witness, Barry Cooper, was also able to quickly identify Davis, both in the photo lineup and in the courtroom.

Appellant also argues neither he nor his attorney were notified that the lineup was being conducted. No authority for this argument is cited, but we assume United States v. Wade, 449 U.S. 431 (1981), is invoked. However, there was no objection on this basis in the trial court and the point now argued on appeal is waived. .

Third, appellant contends the trial court erred in failing to suppress the statement he gave to police. He admitted his participation in the robbery and that he held the gun. On appeal he argues the state failed to prove the statement had been made, or that it was voluntarily and intelligently made.

At the suppression hearing- Officer Haley who had taken appellant’s statement, testified to the circumstances of the statement. His testimony was sufficient to support a finding the statement was made, that it was voluntary, and that the state had met its burden of proof. See Brawley v. State, 306 Ark. 609, 816 S.W.2d 598 (1991). The appellant also testified, but that testimony was in conflict with that given by Officer Haley.

The credibility of witnesses who testify at a suppression hearing concerning circumstances surrounding the appellant’s in-custody confession is for the trial judge to determine and we defer to the superior position of the trial court in matters of credibility. Weger v. State, 315 Ark. 555, 869 S.W.2d 688 (1994).

Fourth, appellant assigns error to the trial court allowing the sheriff, Danny Ford, to testify at trial when his name was not on the witness list as required by A.R.Cr.P. 17.1. When the state called Ford to testify, appellant objected, but did not claim surprise or prejudice. The state pointed out to the trial court that the defense had been given a copy of Ford’s statement and was on notice that he was a potential witness. In an identical situation in Brooks v. State, 308 Ark. 660, 827 S.W.2d 119 (1992), we found no prejudice and affirmed on that basis.

Fifth, appellant argues that during redirect of Sheriff Ford, the state attempted to elicit testimony in an area that was not subject to the original direct or cross-examination. We decline to address this point because of deficient abstracting. We cannot determine the objection made or the nature of testimony challenged. The burden is on the appellant to demonstrate error and it is fundamental that the record on appeal is confined to that which is abstracted. Lee v. State, 297 Ark. 421,762 S.W.2d 790 (1989).

Sixth, appellant alleges error in allowing the state to recall the victim to the witness stand after having excused her. After being recalled, her testimony included the identification of a photograph showing a knife shaped welt on her neck which appellant claims was inflammatory. However, we find no objection to the photo on this basis in the abstract and the point is not subject to review. Harris v. State, 315 Ark. 398, 868 S.W.2d 58 (1993).

As to recalling the witness, the matter is specifically addressed in Ark. Code Ann. § 16-43-703 (1987). The statute permits recall “with leave of court,” and that decision will not be reversed absent an abuse of discretion. Holmes v. State, 257 Ark. 871, 520 S.W.2d 715 (1975). Appellant has not demonstrated how he was prejudiced by recalling the witness.

Next appellant argues the trial court erred in allowing a demonstration of how the knife and gun were held on the victim. During the state’s direct examination of the victim, the state asked her to show the jury how the edge of the knife was put to her throat and how the gun was pointed at her head. Appellant objected on the grounds that the demonstration was prejudicial.

The admission of evidence is within the discretion of the trial court, and appellant has failed to show an abuse of discretion on this point. See Jarrett v. State, 310 Ark. 358, 833 S.W.2d 779 (1992). The law permits a reenactment, provided it is substantially similar to the original event, Loy v. State, 310 Ark. 33, 832 S.W.2d 499 (1992).

Eighth, appellant argues the trial court erred in denying his motion for a directed verdict. He urges that because we should find his confession, the photo lineup, and Sheriff Ford’s testimony inadmissible, we must find that without them the evidence is insufficient and a directed verdict was mandated.

The argument misconstrues our review Of the denial of a directed verdict motion: We consider the sufficiency question before we consider any trial errors and it is only if the evidence is insufficient, including the errors, that we will reverse. See Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). The evidence before the jury in this case was easily sufficient to support the denial of the directed verdict motion. Appellant admitted his participation in the robbery, admitted he was the one with the gun, and the victim firmly identified appellant as a participant. The directed verdict motion was properly denied.

Finally, appellant argues the trial court erred in refusing to set aside the jury’s sentence of life imprisonment. He argues the sentence should shock the conscience of the court and is unduly harsh, as appellant is not a “hardened criminal,” this being his first conviction. The abstract only states that appellant requested the court to set the sentence aside but no grounds are stated, and the nature of the objection is not apparent from the context. Therefore the objection is not sufficiently abstracted for review. See Lee v. State, supra. There is nothing in the record to support appellant’s claim that this was his first conviction. We find no error in the trial court’s refusal to set aside the sentence.

The record has been examined in accordance with Ark. Sup. Ct. R. 4-3(h), and the objections have all been abstracted and certified by the state. There are no other rulings adverse to the appellant which constituted prejudicial error.

Affirmed.


author: David Newbern, Justice.

text:
    STATE of Arkansas v. Robert Wayne BRUMMETT and Rickey Lee Haney
    CR 94-516
    885 S.W.2d 8
    Supreme Court of Arkansas
    Opinion delivered October 10, 1994

      Winston Bryant, Att’y Gen., by: Clint Miller, Acting Deputy Att’y Gen., for appellant.

      Harold W. Madden, for appellees. -
   David Newbern, Justice.

The appellees, Robert Wayne Brummett and Rickey Lee Haney, pleaded guilty to burglary and theft of property having a value of over $200. The charges against them resulted from an incident in which both were involved on November 14, 1992. Rickey Lee Haney was charged under Ark. Code Ann. § 5-4-501 as an habitual criminal with more than one but fewer than four previous felony convictions. Robert Wayne Brummett was charged under the same law with having more than four previous felony convictions. The guilty pleas also encompassed the charges of being habitual criminals. The Trial Court sentenced each man to five years imprisonment despite the State’s insistence that the law in effect at the time the crimes were committed required a minimum 10-year sentence.

The State has appealed pursuant to Ark. R. Crim. P. 36.10, contending it may do so as the appeal is required to assure “correct and uniform administration of the criminal law.” We agree with the State’s contentions that the appeal is to be permitted and that the judgment must be reversed and remanded so that the sentences may be corrected.

This case is like State v. Dennis, CR94-439, rendered September 26, 1994. Again, the Trial Court did not have the benefit at the time the sentences were imposed of our decision in Neely v. State, 317 Ark. 312, 877 S.W.2d 589 (1994). There we held that Act 550 of 1993 was intended by the General Assembly to make five years the minimum sentence for certain habitual offenders effective with respect to offenses committed after June 30, 1993, rather than June 30, 1983, as the Act provided.

Messrs. Brummett and Haney make an argument that was not made in State v. Dennis, supra. They contend the State did not make a timely objection to the sentences.

At a hearing held to determine appropriate sentences, Mr. McCormick, the deputy prosecutor advised the Court that the range of punishment for burglary, given habitual criminal status under the law at the time the offense was committed, was 10 years.

THE COURT: Well, the legislature changed that though.
MR. MADDEN [Defense Counsel]: Yes, sir.
MR. McCORMICK: Your Honor, I would submit to the court, though, that under the Murphy opinion [State v. Murphy, 315 Ark. 68, 864 S.W.2d 842 (1993)], that, . . . is for offenses committed after July the 1st of 1993, and this was committed, . . . November the 14th, 1992; therefore, . . . changes by Act 550 would not be applicable to this case.

The hearing proceeded, testimony was taken, and counsel were allowed to present argument. The Trial Court then announced it would “follow the recommendation,” apparently meaning the recommendation to accept the pleas of guilty, and then pronounced a sentence of five years for Mr. Haney. Mr. Madden asked that Mr. Haney be given a few days prior to reporting to the Department of Correction. The request was denied. Mr. McCormick asked the Court to note his objection pursuant to the Murphy decision.

Further evidence was taken with respect to Mr. Brummett, and the Court pronounced a five-year sentence for him whereupon Mr. McCormick lodged the same objection, citing the Murphy decision.

The State’s objection was timely. It was sufficient for the State to call the Trial Court’s attention to its assertion that the minimum sentence for each defendant was 10 years when the subject first arose even though the word “objection” was not used until the sentences were actually imposed.

The Trial Court was obviously apprised of the State’s position in time to consider it prior to making a decision on the point in question. The reason for our contemporaneous objection rule is that a trial court should be given an opportunity to know the reason for disagreement with its proposed action prior to making its decision or at the time the ruling occurs. See Withers v. State, 308 Ark. 507, 825 S.W.2d 819 (1992). The Trial Court was fully apprised of the State’s position prior to announcing its decision on the sentences. That is all we require.

Reversed and remanded.


author: Tom Glaze, Justice.

text:
    Marsha Gail BAKER v. STATE of Arkansas
    CR 94-779
    884 S.W.2d 603
    Supreme Court of Arkansas
    Opinion delivered October 10, 1994

      John Wesley Hall, Jr., for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Acting Deputy Att’y Gen., for appellee.
   Tom Glaze, Justice.

Marsha Gail Baker was convicted by a jury of promoting obscene materials, and the jury fixed punishment at six months probation. After the jury was excused, Baker requested the trial judge to sentence her as a first offender under Act 346 of 1975 [Ark. Code Ann. § 16-93-303 (1987)]. That Act permits an accused who is not a prior felon to plead guilty or nolo contendere, receive a probation and later have his or her case dismissed and record expunged, if the defendant fulfills the terms and conditions of probation. Based upon her notion that Arkansas law did not provide similar expunction relief for defendants exercising their right to jury trial, Baker urged that, to deny her relief under Act 346, encouraged guilty pleas and violated her rights under the Sixth and Fourteenth Amendments. The trial judge rejected Baker’s arguments, and we do likewise on appeal.

First, we point out that, under Ark. Code Ann. § 5-4-301 (d) (Repl. 1993), the trial court enters a conviction judgment only if it (1) sentences the defendant to pay a fine and suspends imposition of sentence or places the defendant on probation or (2) sentences the defendant to a term of imprisonment and suspends imposition of sentence as to an additional term of imprisonment. Thus, where a conviction is not entered by the court at the time of suspension or probation and the defendant complies with his or her conditions of suspension or probation, the court shall discharge the defendant and dismiss all proceedings against him. See Ark. Code Ann. § 5-4-311 (Repl. 1993).

Here, Baker received only probation — no fine or prison term. That being so, no conviction judgment should have been entered, thus entitling her later to be discharged and have all proceedings dismissed against her, if she complied with the conditions of her probation. Baker, however, failed to object to the entry of her judgment of conviction, and in so failing, lost that relief to which she was entitled under § 5-4-311. In sum, Baker’s inability to have her case dismissed stems from her own inactions and is not due to Arkansas law or its disparate treatment of a defendant pleading guilty rather than exercising his right to a jury trial.

Even if the relief sought by Baker had not been available to her under §§ 5-4-301 (d) and 5-4-311, her constitutional arguments would fail. Baker relies on United States v. Jackson, 390 U.S. 570 (1968), where the Supreme Court held unconstitutional a federal kidnapping statute which provided that only defendants who went to trial could be sentenced to death; those who were tried by the court or plead guilty could not get death. The Supreme Court reasoned, “[F]or the evil in the federal statute is not that it necessarily coerces guilty pleas and jury waivers but simply that it needlessly encourages them.” Id. at 583.

In Ruiz & Denton v. State, 275 Ark. 410, 630 S.W.2d 44 (1982), this court noted that the Jackson decision has been eroded. For instance, in Corbitt v. New Jersey, 439 U.S. 212 (1978), the Supreme Court stated the following:

The cases in this court since Jackson have clearly established that not every burden on the exercise of a constitutional right, and not every pressure or encouragement to waive such a right, is invalid. There is no per se rule against encouraging guilty pleas. The Supreme Court has squarely held that a State may encourage a guilty plea by offering . substantial benefits in return for the plea.

For the reasons above, we uphold the trial court’s decision rejecting Baker’s argument and therefore affirm.


author: Donald L. Corbin, Justice. Steele Hays, Justice,

text:
    Jacque CASEMENT v. STATE of Arkansas
    CR 94-448
    884 S.W.2d 593
    Supreme Court of Arkansas
    Opinion delivered October 10, 1994

      Hurst Law Office, by: Sherry L. Daves, for appellant.

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

This case is before us on a petition for certiorari to review an appeal bond proceeding. Petitioner, Jacque Casement, asks this court to review the order denying bond, and argues the trial court erred when it applied Act 3 of 1994 (“the Act”) in considering his request for appeal bond because (1) his constitutional protection against ex post facto laws was thereby violated, and (2) appeal bond procedures are properly controlled by the provisions of A.R.Cr.P. Rules 36.5 through 36.8 (“the Rules” or “the Rule”), rather than the Act. Jurisdiction of this matter is properly in this court pursuant to Ark. Sup. Ct. R. 1-2(a)(1), (3) and (10). Inasmuch as we find merit to petitioner’s second argument, we grant his petition and remand the matter to the circuit court for a rehearing on the appeal bond. For that reason, we do not address petitioner’s other argument.

Initially we note the remedy of the writ of certiorari is appropriate to review bail bond proceedings. Foreman v. State, 317 Ark. 146, 875 S.W.2d 853 (1994) (per curiam); Duncan v. State, 308 Ark. 205, 823 S.W.2d 886 (1992); Thomas v. State, 260 Ark. 512, 542 S.W.2d 284 (1976). The scope and nature of the writ of certiorari has been defined as follows:

Certiorari lies to correct proceedings erroneous on the face of the record where there is no other adequate remedy, and it is available to the appellate court in its exercise of superintending control over a lower court that is proceeding illegally where no other mode of review has been provided. Lupo v. Lineberger, 313 Ark. 315, 855 S.W.2d 293 (1993). A demonstration of a plain, manifest, clear, and gross abuse of discretion is essential before this court will grant a petition for writ of certiorari. Shorey v. Thompson, 295 Ark. 664, 750 S.W.2d 955 (1988).

Foreman, 317 Ark. 146, 148, 875 S.W.2d 853, 854.

Petitioner was tried by jury in the Pulaski County Circuit Court on March 10 and 11, 1994, convicted of conspiracy to deliver a controlled substance (cocaine) in violation of Ark. Code Ann. § 5-3-401 (Supp. 1993), and sentenced to a term of imprisonment for eighteen years in the Arkansas Department of Correction; his direct appeal from the judgment of conviction is pending in the Court of Appeals. On March 11, 1994, at the conclusion of the culpability and sentencing proceedings and after the jury had been finally excused, petitioner asked the trial court to set an appeal bond whereupon the trial judge responded as follows:

THE COURT: Counsel, I have in front of me here something I received in the mail yesterday. Let me see if I can find what I did with it so I can tell you exactly. Yes. What is now entitled “The Officer Henry Callalan [sic] Memorial Post-Conviction Appeal Bond Elimination Act.”
MR. DONAHUE [COUNSEL FOR STATE]: Your Honor, for the record, the State would object.
THE COURT: According to this Act, this Court shall not release the Defendant in any way upon appeal until number one, after an appeal has been filed, and then a hearing is held where you show this Court by clear and convincing evidence that he’s not likely to flee, not a substantial risk the Defendant will commit a serious crime, intimidate witnesses, harass, or take retaliatory action against any juror or otherwise interfere with the administration of justice, or pose a danger to the safety of any other person, and that the appeal is not for the purpose of delay, and that it raises a substantial question of law or fact. This is an exact reversal of what we have had in the rules that we’ve been following where the Court considers those things. It now appears that this Court must positively find by clear and convincing evidence that there’s a strong possibility this trial’s going to be reversed upon appeal as well as saying that this Court must be shown evidently by you now that you’ve got to show these things. One of the key factors of it is that it states that until an appeal is filed, this Court cannot consider bond.

On March 21, 1994, petitioner filed both his notice of appeal from the judgment of conviction, and his petition to set bail on appeal. The appeal bond hearing was conducted on April 1, 1994. At the conclusion of the evidence presented and arguments of counsel, the trial judge ruled as follows:

THE COURT: Counsel, this new statute which both counsel have been referring to, Act 3 of 1994, states that when Defendant has been found guilty and has filed an appeal, the Court shall not release the Defendant on bail or otherwise pending appeal unless the Court finds (a) by clear and convincing evidence that the person is not likely to flee, or that there is not a substantial risk Defendant will commit a serious crime, intimidate witnesses, harass or take retaliatory actions against any juror, or otherwise interfere with the administration of justice, or pose a danger to the safety of any other person. . . . Now, this is not a matter for the State to prove anymore. Under our new law you must prove to me by clear and convincing evidence that these matters are not so. I cannot find that, counsel. You must also show me that the appeal, by clear and convincing evidence, that the appeal is not for the purpose of delay, and that it raises a substantial question of law or fact. . . . I cannot find either by clear and convincing evidence either (a) or (b), much less both of them. So there will be no bond for appeal in this case.

We note preliminarily that the challenged Act was effective from and after its approval on March 4, 1994 and amended existing Ark. Code Ann. § 16-91-110 (Adv. Code Serv. April 1994), by adding certain Class Y felonies to those offenses for which appeal bond is prohibited. Otherwise, section 16-91-110, which has been in place since 1987, was unchanged by the 1994 legislatión. Therefore, as to the instant case, the Act did not alter the provisions of section 16-91-110 as codified in 1987.

Petitioner argues the provisions of the Act conflict with those of the Rules, and, therefore, the trial court acted “illegally” in applying the Act to his appeal bond request because the Rules control appeal bond procedures. The state argues the Act is valid because it is an expression of the General Assembly on a matter of substantive law, rather than procedure, and, therefore, the Act controls.

We disagree with the state’s argument. In Miller v. State, 262 Ark. 223, 555 S.W.2d 563 (1977), in the context of a-pretrial appearance bond, we considered the issue of whether bail bond provisions are properly classified as “procedural” and within the scope of the criminal procedural rules adopted by this court. As was stated there “‘[t]he test must be whether a rule really regulates procedure, — the judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for disregard or infraction of them.’” Id. at 225-26, 555 S.W.2d at 564 (quoting Sibbach v. Wilson, 312 U.S. 1 (1924)). We determined there that such provisions are procedural and “merely provide the process or procedure by which a defendant, as here, may obtain pre-trial release on a charge arising out of his alleged violation of substantive law.” Miller, 262 Ark. at 226, 555 S.W.2d at 564. We apply the same reasoning to the post-conviction appeal bond provisions and conclude they are “procedural” within the meaning of our court rules.

In considering petitioner’s argument, w.e find it helpful to review the general'state of the law on the subject of conflicts in the procedures contained in the Act and the Rules. The Arkansas Rules of Criminal Procedure were adopted by this court by per curiam order entered December 22, 1975, to be effective on January 1, 1976, pursuant to Act 470 of 1971, and in harmony with this court’s superintending control over the trial courts under our state Constitution. Matthews v. State, 268 Ark. 484, 598 S.W.2d 58 (1980). That act specifically authorized this court to prescribe rules of practice and procedure with respect to all criminal case proceedings, and provided further that all laws in conflict with such rules are of no further effect after such rules have taken effect. Section 4, Act 470 of 1971.

We have recognized that, in the interests of promoting important public policies and state interests, the legislature will enact laws which will occasionally conflict with the rules of this court. State v. Sypult, 304 Ark. 5, 800 S.W.2d 402 (1990). In that event, we have declared that, to protect against the total abrogation of the rules of procedure vital to the interests and policies of the judicial process, “we will defer to the General Assembly, when conflicts arise, only to the extent that the conflicting court rule’s primary purpose and effectiveness are not compromised; otherwise, our rules remain supreme.” Id. at 7, 800 S.W.2d at 404; Hickson v. State, 316 Ark. 783, 785, 875 S.W.2d 492, 493 (1994) (“Statutes are given deference only to the extent that they are compatible with our rules, and conflicts which compromise these rules are resolved with our rules remaining supreme.”) The purpose of Rule 36.5, the Rule primarily at issue here, was described by the drafting Committee for the criminal procedure rules in 1974 as follows:

Rule 36.5 addresses eligibility for release pending appeal. Unlike present complementary authority, the rule does not speak solely in terms of money bail. Further it does not require that bail be fixed pending appeals of all non-capital convictions. Cf. § 43-2714 (Repl. 1964); Lane et al. v. State, 217 Ark. 428, 230 S.W.2d 480 (1950); Walker v. State, 137 Ark. 402, 209 S.W. 86 (1919). Rather, Rule 36.5 establishes criteria requiring release pending appeal or fixing of bail only after a finding that disqualifying factors are not present[.]

Arkansas Criminal Code Revision Committee, Rules of Criminal Procedure, April 1974 Proposed Official Draft, Commentary to Article X at p. 85 (emphasis added). We note the form of the Rule contained in the 1974 official draft was enacted in 1976, and remains unchanged at present.

The record here clearly establishes that the circuit court, in denying the appeal bond, operated under the misconception that the Act is superior to the Rules. Consequently, we grant the petition for writ of certiorari and remand the matter to the Pulaski County Circuit Court, for reconsideration of the petition to set bail on appeal.

Hays and Glaze, JJ., dissent.

Brown, J., not participating.

Steele Hays, Justice,

dissenting. The majority states that in the event of a conflict between rules of this court and laws enacted by the legislature, we will defer to the General Assembly only to the extent that our rule’s “primary purpose and effectiveness are not compromised.” State v. Sypult, 304 Ark. 5, 800 S.W.2d 402 (1990). The majority then simply declares, without analysis, that the statute in this case is in conflict with our rules.

In my estimation the element of conflict between our rules and Ark. Code Ann. § 16-91-110 (Supp. 1993), is nonexistent, and therefore no need to supersede is presented. The statute consists only of matters supplementary to our rules affecting appeal bonds. For purposes of this case, the only differences between the rules and the statute are:

1. § 16-91-110 (both the 1987 and 1994 versions) provides that the unlikelihood of the defendant fleeing, etc., must be shown by clear and convincing evidence. In A.R.Cr.P. 36.5, the same intent must be demonstrated, but no standard for the burden of proof is mentioned.
2. § 16-91-110 (both the 1987 and 1994 versions) requires that the defendant must show the appeal is not for purposes of delay and that the appeal raises a substantial question of law or fact. There is no similar or conflicting provision in our criminal procedure rules.

Even applying the holding of Sypult, supra, I fail to see how the “primary purpose and effectiveness” of our criminal rules on appeal bonds are “compromised,” as there is simply an absence of conflict between the rules and the legislative enactment. The additions by the legislature merely supplement the rules and it has been our practice to harmonize the rules with legislative enactments whenever possible. See Morton Gitelman and John Watkins, No Requiem for Ricarte, 1991 Ark. L. Notes 27. The majority holding cuts too wide a path with its rule making authority and takes the Sypult holding farther than is judicially sound. That case has already been soundly criticized and today’s decision only exacerbates the problems it created. Id.

In sum I find no basis for this court’s nullification of the legislature’s additions to this area of the law, and I respectfully dissent.

Glaze, J., joins in this dissent.

Brown, J., not participating.


author: Per Curiam.

text:
    Shirley MATTHEWS v. STATE of Arkansas
    CR 94-1007
    884 S.W.2d 264
    Supreme Court of Arkansas
    Opinion delivered October 10, 1994

      Blackman Law Firm, by: Phillip Crego, for appellant.
    No response.
   Per Curiam.

Appellant, Shirley Matthews, by her attorney, has filed for a rule on the clerk.

Her attorney, Phillip Crego, admits that the failure to file the record in time was due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Phillip SCHALCHLIN v. STATE of Arkansas
    CR 93-270
    885 S.W.2d 2
    Supreme Court of Arkansas
    Opinion delivered October 10, 1994

      Appellant, pro se.

      J. G. Molleston, for counsel, Claudell Woods.

      Winston Bryant, Att’y Gen., by: Clint Miller, Acting Deputy Att’y Gen., for appellee.
   Per Curiam.

In 1992 Phillip Schalchlin was found guilty by a jury of rape and sentenced to thirty years imprisonment. He was represented at trial by his retained attorney Claudell Woods. No appeal was taken, and Schalchlin, acting pro se, sought a belated appeal pursuant to Criminal Procedure Rule 36.9. This court granted the motion, accepted appellant’s assertion of indigency, and appointed Mr. Woods to represent him in the appeal.

In February 1994 Mr. Woods filed a motion asking that this court permit the record on appeal to be lodged belatedly on the ground that he had the record in his possession in January 1994 but thought some other person, whom he did not name, would lodge it. We denied the motion on April 11, 1994, but said that if Woods would concede that he was at fault for the late tender of the record or present some good cause for the failure to lodge the record in a timely fashion, the record would be lodged so that the appeal could proceed. Schalchlin v. State, CR 93-270 (April 11, 1994). Mr. Woods did not file a second motion accepting fault or alleging some good cause for the late tender of the record, and on August 24 the state moved to dismiss the appeal. The motion was denied and Mr. Woods was ordered to appear on October 3, 1994, to show cause why he should not be held in contempt. After being served with that order Mr. Woods did accept responsibility for the failure to lodge the record. At the show cause hearing Mr. Woods appeared with counsel, Mr. J.G. Molleston, and confessed to being in contempt of court. Mr. Woods stated that he had tendered his brief on behalf of the appellant. Mr. Woods also stated that a similar problem existed in the matter of Young v. State, (CR94-850), which we are handing down today.

Having considered the premises, the statements of counsel and Mr. Woods at the show cause hearing, and noting that identical developments occurred in another case in which Mr. Woods was attorney for appellant (see Undra Sumlin v. State, CR94-362), we direct Mr. Woods to file appellant’s abstract and brief forthwith, find him to be in contempt of court, and impose a fine of $500.00 for such conduct.

It is so ordered.


text:
    Brenda J. YOUNG v. STATE of Arkansas
    CR 94-850
    884 S.W.2d 591
    Supreme Court of Arkansas
    Opinion delivered October 10, 1994

      Appellant, pro se.
    No response.
   Per Curiam.

On May 11, 1993, petitioner Brenda J. Young was found guilty by a jury of aggravated robbery and theft and sentenced to concurrent terms of twenty and five years imprisonment. On May 27, 1993, her appointed attorney Claudell Woods filed a timely notice of appeal from the judgment. The record has not yet been tendered to the appellate court. Petitioner Young has filed a pro se motion styled “motion for belated appeal.” Because there was a timely notice of appeal filed in the case, we will treat the motion as a motion for rule on clerk to lodge the record belatedly.

In an affidavit filed in response to the motion, Mr. Woods states that he filed the notice of appeal as he told petitioner after trial would be done and erroneously believed that the filing of the notice of appeal constituted a request for the transcript. He further states that he made the same error in the case of Undra Sumlin v. State, a case in which this court found that Mr. Woods had failed to render effective assistance of counsel in that he failed to perfect the appeal properly. Sumlin v. State, CR 94-362 (May 2, 1994). He asks that petitioner’s request for a belated appeal be granted, conceding that his conduct amounted to “neglect.”

The pro se motion is granted. As we said when we directed the appeal to proceed in Sumlin, the direct appeal of a judgment of conviction is a matter of right, and a state cannot penalize a criminal defendant by declining to permit his appeal when his appointed counsel has failed to follow mandatory appellate rules. Reagan v. State, 316 Ark. 511, 872 S.W.2d 396 (1994), citing Evitts v. Lucey, 469 U.S. 387 (1985). Criminal Procedure Rule 36.26 provides:

Trial counsel, whether retained or court appointed, shall continue to represent a convicted defendant throughout any appeal to the Arkansas Supreme Court, unless permitted by the trial court or the Arkansas Supreme Court to withdraw in the interest of justice or for other sufficient cause.

Once the notice of appeal was filed, Mr. Woods was obligated to either perfect the appeal or proceed in this court on a motion to be relieved as counsel. He did neither and remains responsible for representing petitioner Young. See Atkins v. State, 308 Ark. 675, 827 S.W.2d 636 (1992).

Counsel Woods is directed to file in this court within ten days an appropriate petition for writ of certiorari designating that portion of the record necessary for the appeal of the judgment.

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

Motion for rule on clerk granted.


text:
    Delbert O. LEWIS v. Lambert B. WEST, Chairman of the Independent Party of Arkansas, Wayne M. Grommet, Secretary of the Independent Party of Arkansas, and W.J. “Bill” McCuen, Arkansas Secretary of State, and Skip Cook
    94-1073
    884 S.W.2d 604
    Supreme Court of Arkansas
    Opinion delivered October 12, 1994
    [Rehearing denied October 28, 1994.]

      James F. Lane, for appellant.

      Winston Bryant, Att’y Gen., by: Angela S. Jegley, Senior Asst. Att’y Gen., for cross-appellant Secretary of State Bill McCuen.

      Mackey & Wills, P.A., by: Frank J. Wills, III, for appellees.
   Per Curiam.

On October 7, 1994, the Pulaski County Circuit Court entered an amended and substituted order that required the Secretary of State to certify the appellee, Skip Cook, as a gubernatorial nominee of the Independent Party of Arkansas for the November 8, 1994, general election. The appellant, Delbert O. Lewis, claims that he is entitled to and should be certified as the party’s gubernatorial nominee. On Friday, October 7, 1994, Mr. Lewis filed notice of appeal and a petition in this court asking for expedited consideration of his appeal and requesting that an order be entered expediting the briefing and submission schedule of this court.

This court, through its clerk, directed all parties to this action to file contemporaneous briefs by noon Friday, October 14, 1994, and further directed the clerk of the court to advise the parties that each side would be given ten minutes oral argument on the matter on Monday, October 17, 1994, or as soon thereafter as convenient to the court.

We are mindful of the fact that the county board of election commissioners is required to “prepare official absentee ballots and deliver them to the county clerk for mailing to all qualified applicants as soon as practicable before the last day on which the ballot will be counted but in any event not less than twenty-five (25) days before any election.” Ark. Code Ann. § 7-5-407 (Repl. 1993) (emphasis added). This motion to expedite was presented to us on October 7. The election is on November 8. There are only twenty-six days between now and the date of the election, and briefs on the appeal have yet to be filed. It may be impossible at this point for both sets of briefs to be prepared and for this court to take this case under advanced submission, prepare an opinion, and issue a writ, if appropriate, in time for the county election officials to perform their statutory duty.

Under these circumstances, we order an oral argument of the matter on Monday, October 17, 1994, at 9:00 a.m., or as soon thereafter as convenient to the court, to consider whether any appropriate action might immediately be taken. Each side will be allowed ten minutes. If no appropriate action can be taken on an expedited basis, we will consider the appeal in due course and will answer any questions that we think should be answered.

Argument ordered.


text:
    Alice MERTZ v. Michael STATES, Clay Ferrar, Jr., Lance Hudnell, as City Clerk of the City of Hot Springs, Arkansas, and Dan McCraw, Toni Phillips, and Charles Tapp, as Commissioners of the Garland County Election Commission
    94-1082
    884 S.W.2d 264
    Supreme Court of Arkansas
    Opinion delivered October 12, 1994

      Mackey & Wills, P.A., by: Frank J. Wills, III; and J. Sky Tapp, for appellant.

      Robert D. Ridgeway, Jr., for appellee.
   Per Curiam.

Alice Mertz sponsored a proposal for an ordinance to be included on the 1994 general election ballot in the City of Hot Springs and filed the completed petitions with the City Clerk. Michael States and Clay Ferrar, Jr. filed suit in circuit court against the City Clerk and the Garland County Election Commission and, contending the proposal was a referral, sought a declaratory judgment that the petitions were insufficient and that the Clerk be ordered not to certify the proposal to the Commission for inclusion on the ballot at the general election. Apparently Mertz, as a sponsor, was allowed to intervene in the action. On September 29, 1994, the circuit court ordered the Clerk not to certify the proposal to the Commission.

On October 4, 1994, Alice Mertz filed a notice of appeal and Michael States and Clay Ferrar, Jr. filed a notice of cross-appeal. On October 10, 1994, Alice Mertz filed a petition in this court and asked expedited consideration of her appeal. Alice Mertz asks that the briefing schedule be advanced so that her brief will be due on October 17. Michael States and Clay Ferrar, Jr. ask that the case be taken in due course.

The county board of election commissioners is required to “prepare official absentee ballots and deliver them to the county clerk for mailing to all qualified applicants as soon as practicable before the last day on which the ballot will be counted but in any event not less than twenty-five (25) days before any election.” Ark. Code Ann. § 7-5-407 (Repl. 1993) (emphasis added). This motion to expedite is presented to us on October 12. The election is on November 8. There are only twenty-six days between now and the date of the election. Briefs on the appeal and cross-appeal have not been filed. It appears impossible to have time for both sets of briefs to be prepared and for this court to take the case under advanced submission, to prepare an opinion on the writ, and to issue a writ in time for the county election officials to perform their statutory duty. At this time we do not know the grounds of the cross-appeal.

We order an oral argument of the matter on Monday, October 17, at 9:00 a.m., or as soon thereafter as convenient to the court, to consider whether any appropriate action might be immediately taken. Each side will be allowed ten minutes. If no appropriate action can be taken on an expedited basis, we will consider the appeal and cross-appeal in due course and will answer any questions that we think should be answered.

Argument ordered.