text:
    UNITED SOUTHERN ASSURANCE COMPANY v. Harold BEARD
    94-862
    894 S.W.2d 948
    Supreme Court of Arkansas
    Opinion delivered March 27, 1995
    [Rehearing denied May 1, 1995.]

      Atchley, Russel, Waldrop & Hlavinka, by: Alan Harrel, for appellant.

      Pilkinton, Pilkinton & Yocom, by: Tony Yocom, for appellee.
   Tom Glaze, Justice.

Appellee Harold Beard owned a Freight-liner tractor-trailer which was being driven by his employee, Mary Sodorff, when a multiple collision occurred on Interstate 20 near Roscoe, Texas on September 5, 1991. Beard was in the sleeper of the cab at the time. Sodorff apparently lost control of the tractor-trailer, skidded sideways and collided with a guardrail and bridge support and came to rest at a right angle to the highway. Then another tractor-trailer struck Beard’s trailer, separating it from Beard’s tractor-trailer. Finally, an automobile collided with the Beard trailer. As a result of the collisions, Sodorff was killed, and Beard sustained serious multiple fractures to his lumbar spine.

Beard had no workers’ compensation coverage, but he had a trucker’s insurance policy issued by appellant United Southern Assurance Company. Southern rejected Beard’s claim under the policy, so Beard and his wife filed suit against Sodorff’s estate, alleging Sodorff’s negligence caused Beard’s injuries. Charles M. Walker, attorney for Sodorff’s estate, answered, denying liability based upon the fellow servant and joint venture doctrines.

The parties agreed to try the suit to the court, which was done on January 26, 1994. In opening statement, Walker explained to the court that, by letter dated April 21, 1993, he had contacted Southern and its attorney, Albert Graves, Jr., and demanded they assume defense of the lawsuit. Walker told the trial court that, while Beard had obtained the Southern policy on his vehicle and Beard was an insured, the policy had an omnibus insurance clause allowing coverage for an employee as an additional insured. Because Walker believed Beard could be a claimant under Southern’s policy, he said that he made further inquiry of Southern on June 21, 1993 and July 15, 1993, concerning whether Southern intended to defend under a reservation of rights or assumption of liability against Beard’s suit, but Walker received no response.

After his comments regarding Southern, Walker then told the court that he had investigated the accident and had no evidence to present. He indicated he would have attempted to settle the Beards’ claim, but Sodorff’s estate had only $25,000. The Beards then put on their case, and Walker defended by cross-examining the Beards’ witnesses. The trial court awarded Beard judgment against Sodorff’s estate in the amount of $1.2 million, and Beard’s wife was awarded $100,000.

On March 31, 1994, more than 60 days after judgment was entered in the Beards’ behalf, Southern moved to intervene so it could move for relief of judgment under ARCP Rule 60(b). Southern asserted its grounds for vacating the judgment were to prevent the miscarriage of justice and related the following reasons:

(1) Southern, through its counsel, Mr. Graves, Jr., employed Walker to represent Sodorff’s estate;

(2) Walker stated Southern had coverage under its liability policy when it had denied liability and if Beard recovered, Beard and Sodorff’s estate would try to collect judgment against Southern;

(3) Sodorff’s estate presented no evidence in defense of the Beards’ claims;

(4) Walker offered no evidence at trial;

(5) Walker breached his duty to Southern (and the estate) by injecting insurance matters into the trial and failing to object to the admissibility of certain reports;

(6) Walker failed to request findings of fact or conclusions of law, move for a new trial or file a notice of appeal;

(7) Counsel for the Beards and the estate failed to notify Southern of the January 26, 1994 judgment until March 1, 1994 —after time had expired for filing a motion for new trial or a notice of appeal;

(8) Walker did not require the Beards to specify amount of damages sought before their case was submitted to the trial court;

(9) No justiciable controversy existed between the Beards and Sodorff’s estate;

(10) Defenses existed that were not raised in behalf of the estate.

Counsel for both the Beards and the estate responded to Southern’s motions and generally denied Southern’s grounds for setting aside the January 26 judgment, stating that Southern had been notified of the Beards’ suit and its trial setting, but still failed to provide a defense. Specifically, Walker denied that Southern had hired him to represent Sodorff’s estate. Instead, Walker stated that the estate had money with which to pay him as counsel.

The trial court granted Southern’s request to intervene and held a hearing regarding whether Southern should be granted relief from the January 26, 1994 judgment. After hearing the testimony of Albert Graves, Jr., Charles Walker and argument of counsel, the trial court denied Southern relief from the judgment. Southern appeals from that ruling.

The trial court’s ruling was correct. As previously mentioned, Southern intervened in the Beards’ lawsuit after it was tried by the trial court, and attempted to gain relief from the Beards’ judgment by filing a Rule 60(b) motion. Under Rule 60(b), a party may move to correct any error or mistake or to prevent the miscarriage of justice by requesting the trial court to set aside its decree or order within ninety days of its having been filed. This court has narrowly interpreted Rule 60(b) to apply only to those situations provided in Rule 60(a), namely, to correct clerical mistakes in judgments, orders or other parts of the record and errors arising from oversight or omissions. See Pugh v. St. Paul Fire & Marine Ins. Co., 317 Ark. 304, 877 S.W.2d 577 (1994); Ingram v. Wirt, 314 Ark. 553, 864 S.W.2d 237 (1993); Jackson v. Arkansas Power & Light, 309 Ark. 572, 832 S.W.2d 224 (1992); Phillips v. Jacobs, 305 Ark. 365, 807 S.W.2d 923 (1991). Here, Southern failed to assert in its Rule 60(b) motion a clerical mistake, error or omission referred to in Rule 60(a), and for that reason alone, Southern’s motion should have been denied by the trial court. Cf. Pugh, 317 Ark. at 308, 877 S.W.2d at 579.

Southern’s motion and grounds set out therein might have been proper if timely filed as a request for new trial under ARCP Rule 59(a), but such a new trial motion must be filed no later than ten days after entry of judgment. Here, Southern did not file its motion or take any action until more than sixty days after entry of the Beards’ judgment. Our court has clearly stated that Rule 60 may not be used to breathe life into an otherwise defunct Rule 59 motion. Jackson, 309 Ark. 574, 832 S.W.2d 224; Phillips, 305 Ark. 365, 807 S.W.2d 923.

Southern argues that it never learned of the Beards’ judgment until after the time had expired for filing a new trial motion. That apparently is true. However, it is also true that, after rejecting the Beards’ claim, Southern was well aware that the Beards had filed their lawsuit against Sodorff’s estate. In addition, the estate’s attorney not only made several requests of Southern to assume the defense of the Beards’ suit, but also he notified Southern of the trial date. Southern simply failed to respond to the estate’s requests or notices. This court has emphasized that it is the duty of a litigant to keep himself informed of the progress of his case. Midwest Timber Products Co., Inc. v. Self, 230 Ark. 872, 327 S.W.2d 730 (1959); see also RLI Ins. Co. v. Coe, 306 Ark. 337, 813 S.W.2d 783 (1991) (Glaze, J. concurring). Here, Southern had ample notice and opportunity to have raised and litigated the issues at the trial below or in a timely motion for new trial rather than inappropriately trying to assert such matters in a Rule 60(b) motion. For whatever reasons, Southern failed to take action in an appropriate and timely fashion.

In conclusion, Southern recognizes this court’s decision in Phillips where the court first narrowly interpreted Rule 60(b) to apply only to correct clerical mistakes, but it suggests our Coe decision, decided two months later, offers an exception under which Southern’s Rule 60(b) motion could and should be considered. We disagree. While Rule 60(b) is mentioned in Coe, it was not argued in the context of what such a motion should cover and how it related to Rule 59(a). In addition, the RLI insurance company there filed both a new trial motion and a motion for relief from judgment, neither of which was granted. We fail to see how Coe helps Southern, nor can we conclude Coe in any way diminished the court’s ruling in Phillips and its progeny.

Because Southern’s other points for reversal depend upon its prevailing on its Rule 60(b) argument, we need not reach those additional arguments. Therefore, for the reasons above, we affirm the trial court’s decision.

      Walker also raised workers’ compensation as being Beard’s exclusive remedy.


source: Caselaw Access Project

author: Donald L. Corbin, Justice. David Newbern, Justice,

license: Public Domain

text:
    Robert Wayne GATLIN v. STATE of Arkansas
    CR 94-1187
    895 S.W.2d 526
    Supreme Court of Arkansas
    Opinion delivered March 27, 1995

      Joe Kelly Hardin, for appellant.

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

Appellant, Robert Wayne Gatlin, appeals an order of the Hot Spring County Circuit Court convicting him of the rape of his nine-year-old daughter and sentencing him to forty years in the Arkansas Department of Correction. Appellant raises two points for reversal of the judgment. We find no error and affirm.

First, appellant argues the trial court erred in denying his motion for directed verdict. Appellant timely moved for a directed verdict on the specific ground that the state had not produced any evidence of penetration. On appeal, appellant acknowledges that the victim testified he put his penis inside her body, but argues this is insufficient evidence for the jury to determine that penetration occurred. Appellant argues there was no medical evidence presented to indicate penetration of the victim occurred, nor was there any testimony by any witness, save the victim, that penetration occurred. This argument is wholly without merit and patently contrary to the law.

On appeal from the denial of a motion for directed verdict, we view the evidence in the light most favorable to the party against whom the verdict is sought and affirm if there is substantial evidence to support the verdict. Clark v. State, 315 Ark. 602, 870 S.W.2d 372 (1994). Substantial evidence is evidence of a sufficient force and character to compel a conclusion one way or another, forcing the mind to pass beyond suspicion or conjecture. Id.

This court has consistently held that a victim’s testimony may constitute substantial evidence to sustain a conviction of rape. See, e.g., Franklin v. State, 308 Ark. 539, 825 S.W.2d 263 (1992); Prater v. State, 307 Ark. 180, 820 S.W.2d 429 (1991). This is true even when the rape victim is a child. Caldwell v. State, 319 Ark. 243, 891 S.W.2d 42 (1995) (citing Winfrey v. State, 293 Ark. 342, 738 S.W.2d 391 (1987)). More particularly, this court has stated that the testimony of the victim which shows penetration is enough for conviction. Clark, 315 Ark. 602, 870 S.W.2d 372. In addition, this court has consistently held that the rape victim’s testimony need not be corroborated, Winfrey, 293 Ark. 342, 738 S.W.2d 391, nor is scientific evidence required. White v. State, 303 Ark. 30, 792 S.W.2d 867 (1990).

Section 5-14-103 of the Arkansas Code Annotated of 1987 defines rape as follows: “(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 of age.” Section 5-14-101(9) defines “sexual intercourse” as meaning “penetration, however slight, of a vagina by a penis[.]” Section 5-14-101(1) defines “deviate sexual activity” as involving, inter alia, “[t]he penetration, however slight, of the anus or mouth of one person by the penis of another person[.]”

In the present case, there is substantial evidence that appellant penetrated the victim’s vagina or anus or both with his penis. Indeed, as appellant acknowledges in his brief, the nine-year-old victim testified that her father, appellant, put his penis inside her body. After identifying the penis of a stuffed rabbit, the victim stated that appellant had placed his penis inside her and moved it up and down. The victim testified that appellant put his penis both inside and outside her body, that when he put his penis on the inside of her body it hurt and made her cry, and that appellant told her not to tell anybody. She stated further that appellant “put his penis in my bottom” and “hurt me real bad.” She stated that he “touched her in a bad way” a lot of times, sometimes in her bedroom, in her brother’s bedroom, or in the living room.

The foregoing testimony by the child victim is substantial evidence of penetration. It is sufficient, standing alone, absent any corroboration, to sustain appellant’s conviction for rape. Fox v. State, 314 Ark. 523, 863 S.W.2d 568 (1993), cert. denied, 114 S. Ct. 1316 (1994). The state correctly points out that corroboration of the victim’s testimony exists in this case. We need not discuss it, however, as corroboration is not required. The trial court did not err in refusing to direct a verdict for appellant.

As his second point for reversal, appellant argues the trial court erred in admitting hearsay testimonies of the victim’s grandmother and appellant’s mother, Wanda Jean Lightner, and of the victim’s step-grandfather and appellant’s stepfather, David Lightner. The Lightners both testified that, on the morning after the Lightners witnessed appellant climbing out of the top bunk where the victim lay sleeping, the victim told them, while appellant was present, that appellant “put his pee pee in her pee pee.” The Lightners both testified that appellant responded to the victim’s statement by saying, “Mother, do you know what you are doing to me?” The trial court admitted the foregoing testimony after ruling imcamera that anything that was said in front of appellant was ádmissible.

On appeal, appellant contends the testimonies were inadmissible hearsay. The state responds that the testimonies were admissible as an adoptive admission pursuant to A.R.E. Rule 801(d)(2)(ii). Appellant acknowledges that Arkansas law allows an adoptive admission, citing Ralph Barnhart, Statements Made Out of Court, 15 Ark. L. Rev. 125 (1960-61), but contends the trial court’s ruling is based on a peculiar rule in Arkansas that “does not exist in any books.”

Rule 801(d)(2)(h) of the Arkansas Rules of Evidence states that a statement is not hearsay if it is offered against a party and is a statement of which the party has manifested his adoption or belief in its truth. This court has previously stated that, before admitting evidence as an adoptive admission pursuant to Rule 801(d)(2)(h), a trial court must find that sufficient foundational facts have been introducéd so that the jury can reasonably infer that the party-opponent heard and understood the statement, and that, under the circumstances, the statement was such that, if the party-opponent did not believe the statement to be true, the party-opponent would normally respond. Morris v. State, 302 Ark. 532, 792 S.W.2d 288 (1990). Once a foundation has been laid, it is for the jury to determine whether the party-opponent adopted or acquiesced in the statement. Id.

In the present case, the testimony indicates appellant was present when the victim’s out-of-court statement was made. However, the trial court erred in ending its analysis at that point. Before admitting testimony as an adoptive admission, a trial court must find that the requisite foundational facts have been introduced. Morris, 302 Ark. 532, 792 S.W.2d 288. Here, the state failed to produce foundational facts showing that appellant’s response to the victim’s statement manifested his acquiescence thereto. In our view, “Mother, do you know what you are doing to me?” does not indicate appellant adopted the victim’s statement as his own or that he believed in its truth. Therefore, the trial court erred in admitting the Lightners’ hearsay testimonies.

Alternatively, the state contends that the error in admitting the hearsay was not prejudicial and therefore harmless. This court does not presume prejudice when error is alleged. Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), cert. denied, 470 U.S. 1085 (1985). Rather, it is appellant’s burden to produce a record that demonstrates prejudice occurred. Id. This court has repeatedly held that an appellant must show prejudice because we do not reverse for harmless error. Wilson v. State, 317 Ark. 548, 878 S.W.2d 755 (1994).

Appellant objected to the Lightners’ testimonies on the basis of hearsay. On appeal, he makes a general citation to Rule 802 of the Arkansas Rules of Evidence and contends the testimonies were clearly hearsay and used only to bolster and reinforce the victim’s statements. Trial error, even involving the Confrontation Clause, is subject to a harmless error analysis. Watson v. State, 318 Ark. 603, 887 S.W.2d 518 (1994) (citing Delaware v. Van Arsdall, 475 U.S. 673 (1986) and Winfrey v. State, 293 Ark. 342, 738 S.W.2d 391 (1987)). However, appellant did not raise any constitutional objection, either below or on appeal, and has therefore waived any constitutional argument. Killcrease v. State, 310 Ark. 392, 836 S.W.2d 380 (1992). Thus, for purposes of our harmless error analysis, we need not be concerned with the constitutional standard of harmlessness beyond a reasonable doubt. Greene v. State, 317 Ark. 350, 878 S.W.2d 384 (1994).

We conclude the error in this case is harmless. As we have determined, the victim’s out-of-court statement that her father “put his pee pee in her pee pee,” was hearsay erroneously admitted at trial. However, the victim stated on direct examination that appellant had raped her numerous times prior to the incident that generated the Lightners’ hearsay testimonies. Thus, the victim’s own testimony evidenced her rape by appellant, independent of her challenged hearsay statement to the Lightners, and thereby provided competent evidence rendering harmless the error caused by admission of the hearsay. Cloird v. State, 314 Ark. 296, 862 S.W.2d 211 (1993). Moreover, we emphasize that although the hearsay declarant, the victim, testified at trial and was subject to cross-examination by appellant, he chose to forego his opportunity to pursue the issue of statements the victim made to the Lightners. The danger of unreliability inherent in hearsay testimony is alleviated by the opportunity to cross-examine the declarant. Idaho v. Wright, 497 U.S. 805 (1990). This court has held that the Confrontation Clause is not violated by the admission of additional hearsay statements made by a declarant when that declarant testifies at trial and is subject to cross-examination. Watson v. State, 308 Ark. 444, 825 S.W.2d 569 (1992). Thus, the availability of the declarant for cross-examination also rendered harmless the error caused by the admission of the hearsay.

In summary, the substance of the challenged testimonies were admitted without error during the victim’s direct examination and appellant did not take advantage of the victim’s availability for cross-examination on the hearsay statements. Appellant has therefore failed to demonstrate prejudice and the error in admitting the hearsay was harmless.

The judgment of conviction is affirmed.

Newbern and Roaf, JJ„ concur.

David Newbern, Justice,

concurring. The majority opinion is correct to a point. I write to express my reservations about the discussion of adoptive admission and harmless error.

The majority opinion recognizes the error in the Trial Court’s conclusion that any statement uttered in the presence of the accused is not hearsay. It also seems to recognize that an adoptive admission may occur through the silence of the accused in the face of an accusation to which he should have responded. It then shifts, however, and it seems to base its ultimate conclusion on the statement the accused made to his mother rather than his silence, which Mr. Lightner described as “dumbfounded,” after hearing the accusation of his daughter, the victim. The emphasis here should be on that silence and failure to respond to the accusation.

The majority opinion points out that a statement, such as that uttered by the daughter, and evidence of the accused’s silence in the face of that statement become admissible upon the showing of “foundational facts.” Morris v. State, 302 Ark. 532, 792 S.W.2d 288 (1990). The decision to be made by the Trial Court is whether the statement in question is the sort to which a response would be expected if it were not true.

When the hearsay objection was made, the question before the Trial Court was whether Mr. and Mrs. Lightner’s statements could be received, not for the truth of the matter asserted by the declarant (their granddaughter), but as a foundation for permitting testimony that the accused did not respond to it.

The ruling of the Trial Court admitting the evidence was correct, although he gave the wrong reason. The statement made by the child was without doubt of the sort to which the accused should have made a response if he considered it untrue. His silence constituted an adoptive admission. I would hold the evidence admissible on that basis.

Mr. Gatlin was on trial for a particular offense of rape to which his daughter’s statement and his silence in the face of it were relevant. I would not hold it was harmless error to admit those items of evidence on the basis of the daughter’s statement that similar things had occurred on other occasions. Had admission of the daughter’s statement and evidence of Mr. Gatlin’s silence been error, it would not have been harmless.

Roaf, J., joins in this concurrence.


author: Donald L. Corbin, Justice. Glaze, J., Robert L. Brown, Justice, David Newbern, Justice,

text:
    Alan RING, Jr. v. STATE of Arkansas
    94-1083
    894 S.W.2d 944
    Supreme Court of Arkansas
    Opinion delivered March 27, 1995

      John H. Bradley, for appellant.

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

Appellant, Alan Ring, Jr., brings this interlocutory appeal under Ark. Code Ann. § 9-27-318(h) (Repl. 1993), from the Mississippi County Circuit Court’s order denying his motion to transfer one count of rape to juvenile court. Jurisdiction of this interlocutory appeal is properly in this court pursuant to Ark. Sup. Ct. R. l-2(a)(12). We affirm the trial court’s denial of the motion to transfer.

Appellant was fourteen years old and mildly mentally retarded when he was accused of raping a six-year-old girl in the men’s restroom of the Wal-Mart store in Osceola, Arkansas, on October 2, 1993. The prosecuting attorney charged appellant in circuit court by felony information stating that appellant “did unlawfully, feloniously and knowingly, by forcible compulsion, engage in sexual intercourse with [the victim], not his spouse, who was less than fourteen (14) years old.”

Appellant moved to transfer the rape charge to juvenile court. The circuit court held a hearing on the motion in which it heard testimony and received exhibits, and then entered an order denying the motion. Appellant asserts three arguments for reversal of the decision not to transfer; two of the points allege error in the admission of evidence at the hearing; the third is a challenge to the denial of the motion. We find all three assertions of error to be without merit.

First, appellant challenges the admission of a confession he gave at the Osceola Police Department. In the confession, appellant stated that he encountered the victim near the Barbie dolls in the toy department of the store. He stated that he told her he was a security guard and asked her to follow him, and that she followed him into the men’s restroom where he made her bend over the toilet with her pants down and made contact with her rectum with his penis. He also stated that he told her to lie on her back on the floor while he laid on top of her and tried to enter her vagina with his penis.

Appellant made the foregoing statement to a police detective and a juvenile intake officer after signing a written waiver of his Miranda rights. However, appellant contends the confession was inadmissible at the transfer hearing because neither of his parents signed the written waiver of his right to counsel as is required by Ark. Code Ann. § 9-27-317(f) (Repl. 1993). Appellant had not yet been charged when he gave the confession. Thus, he relies on Rhoades v. State, 315 Ark. 658, 869 S.W.2d 698 (1994), and argues that section 9-27-317(f) applied to him and prevented admissibility of his confession at the transfer hearing.

Appellant’s reliance on Rhoades, 315 Ark. 658, 869 S.W.2d 698, is misplaced. True, similar to appellant, Rhoades had not yet been charged in any court when he made his statement. Also similar to appellant, Rhoades was charged in circuit court. However, unlike appellant, Rhoades’s case was transferred to juvenile court where he was ultimately adjudicated a delinquent. Thus, even though Rhoades had not yet been charged in circuit court when he gave the confession, because his offense was ultimately adjudicated in juvenile court, this court held that the Arkansas Juvenile Code applied to Rhoades at the time he gave his confession, such that the law enforcement officers’ failure to comply with section 9-27-317 barred admission of Rhoades’s confession at the adjudicatory hearing.

The state responds that Boyd v. State, 313 Ark. 171, 853 S.W.2d 263 (1993), rather than Rhoades, controls the present case. In Boyd, this court stated that when a prosecutor chooses to prosecute a juvenile in circuit court as an adult, the juvenile becomes subject to the procedures and penalties prescribed for adults. Thus, the state argues that when a juvenile is charged in circuit court, the requirement in section 9-27-317 that the juvenile’s parents consent to the juvenile’s waiver of right to counsel is not applicable.

The state’s argument is correct. In Boyd, 313 Ark. 171, 853 S.W.2d 263, this court held that the Arkansas Juvenile Code does not refer to proceedings in circuit court, rather, only to proceedings in juvenile court. When Rhoades and Boyd are considered together and applied to the facts of this case, they imply but one conclusion: since appellant was ultimately charged in circuit court and, upon this court’s affirmance of the denial of his motion to transfer, will ultimately be tried there, the failure of the law enforcement officers to obtain the consent of appellant’s parents to his waiver of right to counsel, as required by section 9-27-317, does not bar admission of appellant’s confession. Appellant’s first argument is therefore without merit.

However, even assuming arguendo that error occurred in admitting the confession at the transfer hearing, appellant cannot demonstrate any prejudice as a result. In denying the transfer motion, the trial court correctly cited Holland v. State, 311 Ark. 494, 844 S.W.2d 943 (1993), holding that the seriousness and violent nature of the offense alone is a sufficient factor to support a circuit court’s retention of jurisdiction in a case involving a juvenile defendant. This court has stated repeatedly that the serious and violent nature of an offense can be determined solely from a criminal information. See, e.g., Beck v. State, 317 Ark. 154, 876 S.W.2d 561 (1994). Moreover, this court has repeatedly held that rape is by definition a serious and violent offense. See, e.g., Davis v. State, 319 Ark. 613, 893 S.W.2d 768 (1995). Thus, we have no hesitation in concluding the trial court based its decision on competent evidence, the felony information, and was not prejudiced or influenced by any possible error in the admission of the confession at this stage of the proceedings.

For his second assignment of error, appellant challenges the admission of testimony by the victim’s mother concerning the effect the rape had on the six-year-old girl. The mother testified that after the rape, the child had a fear of entering any bathroom, that she wet her pants just to keep from going into a bathroom, that she initially feared her brother and father, that she had crying spells at school when watching safety films, and that she had severe nightmares that progressively worsened to the point she sought counseling for the victim. Appellant contends this evidence is not relevant to any of the factors in section 9-27-318(e), and therefore was inadmissible.

The state contends this evidence is relevant to the factor of the seriousness of the offense. In essence, the state contends the impact of the crime on the victim illustrates the crime was serious. We agree. Although the challenged testimony was wholly unnecessary given the sufficiency of the felony information to determine the seriousness of the offense, it was nevertheless relevant to that factor. For the same reasons expressed in the first point of this appeal, the testimony challenged here was clearly not prejudicial. Therefore, based on the argument presented, we cannot say the trial court abused its discretion in admitting the mother’s testimony.

Third, appellant challenges the decision to deny the motion to transfer the rape charge to juvenile court. The circuit court, in deciding whether to transfer a case to juvenile court, must consider the following requirements: (1) the seriousness of the offense and whether the juvenile employed violence in the commission of the offense; (2) whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that the juvenile is beyond rehabilitation under existing programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts; and (3) the prior history, character traits, mental maturity, and any other factor which reflects upon the juvenile’s prospects for rehabilitation. Ark. Code Ann. § 9-27-318(e) (Repl. 1993); Slay v. State, 309 Ark. 507, 832 S.W.2d 217 (1992). As the party seeking the transfer, appellant had the burden of proof to show a transfer was warranted under section 9-27-318(e). Williams v. State, 313 Ark. 451, 856 S.W.2d 4 (1993). In making its decision, the trial court is not required to give equal weight to each of the statutory factors. Williams, 313 Ark. 451, 856 S.W.2d 4; Hogan v. State, 311 Ark. 262, 843 S.W.2d 830 (1992). The serious and violent nature of an offense is a sufficient basis for trying a juvenile as an adult. Beck, 317 Ark. 154, 876 S.W.2d 561. If a trial court determines a juvenile should be tried in circuit court as an adult, its decision must be supported by clear and convincing evidence. Ark. Code Ann. § 9-27-318(f); Williams, 313 Ark. 451, 856 S.W.2d 4. We do not reverse a circuit court’s denial of a juvenile transfer unless we determine the denial was clearly erroneous. Id.; Vickers v. State, 307 Ark. 298, 819 S.W.2d 13 (1991).

Appellant contends there was no evidence of violence in this case, arguing there was no evidence the child was forced into the restroom, forced to remove her clothes, beaten, or threatened with a weapon. Appellant also contends that appellant’s prospect for rehabilitation could not be determined because there had not yet been any attempts to rehabilitate him.

Ruling from the bench, the trial court stated that the charge of rape itself satisfies the first statutory factor because it is a serious offense requiring the use of violence. The trial court also stated that appellant’s school records indicated numerous infractions followed by suspension and that appellant’s character traits and mental maturity indicated his prospect for rehabilitation was not very good. Accordingly, the trial court denied the motion to transfer to juvenile court. We cannot say these findings are clearly erroneous.

We have repeatedly held that the crime of rape is by definition a violent offense. See, e.g., Davis, 319 Ark. 613, 893 S.W.2d 768. Appellant’s argument that the crime of rápe, in order to be classified as violent, requires additional threats or physical abuse independent of the rape is wholly without merit. This court has previously affirmed, without hesitancy, a circuit court’s denial of a motion to transfer a rape case to juvenile court upon the sole factor of the serious and violent nature of the crime of rape. Wicker v. State, 310 Ark. 580, 839 S.W.2d 186 (1992). In addition, this court has affirmed a circuit court’s retention of jurisdiction of a rape case against a juvenile defendant who was accused of raping a thirteen-year-old victim. Slay, 309 Ark. 507, 832 S.W.2d 217. Our affirmance in Slay was based not only on the serious and violent nature of the crime of rape, but also on the school records of the juvenile defendant Slay, which are remarkably similar to the school records admitted in the current case in that they both indicated a proclivity toward aberrant sexual behavior despite successful attempts at counseling both defendants. We see no distinction between this case and Slay. Furthermore, we observe that, under prior law, this court has affirmed the denial of a transfer of a rape case from circuit court to juvenile court when the juvenile was mildly retarded and the victim was a child of only eight years. Allen v. State, 253 Ark. 732, 488 S.W.2d 712 (1973). Based on these cases and their similarity to the present case, we cannot say the trial court’s decision was clearly erroneous.

Accordingly, we affirm the circuit court’s order denying the motion to transfer this case to juvenile court.

Glaze, J.,

concurs, see Boyd v. State, 313 Ark. 171, 853 S.W.2d 263 (1993), and would consider readdressing Boyd.

Brown, J., concurs.

Newbern and Roaf, JJ„ dissent.

Robert L. Brown, Justice,

concurring. Because the confession of Ring may have been admissible if Ring was tried as an adult but would not have been in juvenile court, it was error to admit it for purposes of the juvenile transfer hearing. Regardless, though, the circuit judge made his ruling concerning the seriousness and violence employed in the alleged crime based on the charge brought against Ring — not his confession. As the majority opinion emphasizes, that is enough to sustain a decision not to transfer. Hence, I concur in the affirmance while recognizing the error in allowing the confession into evidence at the hearing.

David Newbern, Justice,

dissenting. It may well be the enactment of the current Juvenile Code was a bad idea. That is not for us to say. If the notion of offering special protections to juveniles in the hope of putting them on a separate track ending somewhere other than the Department of Correction has been found unworkable, it should be up to the General Assembly to declare it. In the meantime we should try to follow the Code and not weaken it to the point where it becomes virtually meaningless.

Perhaps the effect of Boyd v. State, 313 Ark. 171, 853 S.W.2d 263 (1993), on the purpose of the Juvenile Code is too insidious for recognition. Surely it can be seen, however, that the General Assembly did not intend by the enactment of Ark. Code Ann. § 9-27-317(a)(3) to prevent disclosure of the truth. It must have been enacted to protect children who are at their most vulnerable, in the face of ordinary police tactics, to suggestion and ultimately to misunderstanding which could be avoided by the presence of a parent or counselor.

Once a statement has been taken in violation of the statute, the incentive to proceed in a circuit court rather than a juvenile division of a chancery court becomes, I should think, compelling. Only by avoiding juvenile, proceedings can the State use such a statement.

While it is not my usual practice to continue a skirmish once the battle has been lost, in this instance I must again respectfully dissent for the reasons stated in the dissenting opinion in Boyd v. State, supra.

Roaf, J., joins in this dissent.

       In applying Rhoades and Boyd to this case, we observe that, unlike this case, Rhoades and Boyd were appeals from denials of motions to suppress the admission of statements during the guilt phase of trial. Unlike the present case, neither Rhoades nor Boyd involved the admissibility of a custodial statement during a transfer hearing mandated by the Arkansas Juvenile Code. Further, we observe that neither party to this appeal has briefed the significance, if any, of such a distinction. The trial court, however, observed such a distinction when it specifically stated that it was admitting the confession solely for the limited purpose of the transfer hearing and that it was not ruling on a suppression issue. Thus, the trial court expressly reserved ruling on the admissibility of the confession at trial as evidence of appellant’s guilt. (See Fare v. Michael C., 442 U.S. 707 (1979), and Boyd, 313 Ark. at 173, 853 S.W.2d at 265 for considerations required when determining the suppression of a juvenile’s confession.)


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

text:
    Bruce Lee SIEVERS v. CITY OF FORT SMITH
    94-958
    894 S.W.2d 940
    Supreme Court of Arkansas
    Opinion delivered March 27, 1995

      Sam Sexton. Ill, for appellant.

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

Appellant Bruce Lee Sievers was found guilty in Ft. Smith Municipal Court of driving with a suspended driver’s license. At the time, he had a valid Arkansas driver’s license but a suspended Oklahoma driver’s license. He appealed to Sebastian County Circuit Court, and the municipal court judgment was affirmed. He has two points on appeal from the circuit court judgment. He first argues that he did not waive his right to a jury trial. The State admits error on this point and concedes that the matter should be reversed and remanded for a jury trial. We agree that the failure to provide a jury trial was error. See Ark. R. Crim. R 31.2; Winkle v. State, 310 Ark. 713, 841 S.W.2d 589 (1992). Sievers also contends that the circuit court erred in not dismissing the charge and in entering a judgment of conviction based on a suspended license in Oklahoma because the Oklahoma suspension was contrary to Arkansas law. We agree with Sievers that a dismissal was appropriate under these facts, and we reverse and dismiss.

On November 7, 1993, Sievers was arrested for driving with a suspended license. At the bench trial in circuit court, Arkansas State Police Sergeant Ron Lemons testified that on that date he saw Sievers driving his car above the 55 mph speed limit. Due to other traffic on the roadway, he was unable to check Sievers’s speed with his radar. He radioed State Trooper Michael Springer to “pace” Sievers and to stop him. Sergeant Lemons further advised Trooper Springer that Sievers was known to him as Jed Stewart Lineberry and that he had a suspended license in Oklahoma under one or both names. Sergeant Lemons added that he had stopped Sievers in February of 1993 on suspicion of DWI. He said that at that time Sievers did not have an Arkansas driver’s license and that his Oklahoma license was shown as suspended. He testified that Sievers was again stopped in September of 1993 for reckless driving and that he had a valid Arkansas driver’s license on that occasion. The status of his Oklahoma license was not checked in connection with the September stop.

Trooper Michael Springer testified next. He stated that he stopped Sievers on November 7, 1993, when he was advised by Sergeant Lemons that Sievers was speeding and driving on a suspended Oklahoma license. He testified that after he stopped Sievers, he ascertained that his Oklahoma driver’s license privileges had been suspended. He stated that Sievers did have a current and valid Arkansas driver’s license. At that point the City introduced into evidence a certified copy of Sievers’s Arkansas driver’s license application dated March 10, 1993. On that application Sievers signed the following oath:

OATH. This is to certify that all information on this application is true and correct and that my driving privilege is not suspended or revoked in this state or any other state nor do I hold a driver’s license from any state other than Arkansas.

The application also requested the following information to which Sievers replied:

Have you ever been licensed in any other state or country. Yes.
If yes, where: OK.

He did not answer the question about whether his driver’s license had ever been suspended or revoked in another state. The record does not show that he was ever charged with perjury in obtaining his Arkansas license. See Ark. Code Ann. § 27-16-306 (1987).

Trooper Springer testified that following the stop he checked with the Oklahoma Department of Public Safety for the driving record of Bruce Lee Sievers and Jed Stewart Lineberry. On November 15, 1993, he received documentation from the Oklahoma Department showing the current status of Jed Stewart Lineberry’s license as “Driver Improvement Suspension.” This document gave an expiration date of March 31, 1985. Another document from Oklahoma showed no traffic violations, accidents, or departmental actions of record after June 25, 1983. An order of suspension dated June 25, 1983, was also introduced into evidence by the City. That order notified Jed Stewart Lineberry that his driving privileges would be terminated effective July 25, 1983, and that he would be eligible for reinstatement six months from the date his license was surrendered. He was also notified that a $25.00 reinstatement fee would be charged.

The state trooper then identified an Oklahoma traffic record on Bruce Lee Sievers which stated that his Oklahoma driver’s license had been suspended on September 21, 1984. That driver’s license had been used as bail and surrendered on August 27, 1984, for failure to appear. The record indicated an expiration date on the license as 00/00/00. Sievers was notified by mail on September 20, 1984, that his Oklahoma driver’s license had been suspended effective September 21, 1984. Trooper Springer acknowledged that the points listed against Sievers/Lineberry on the Oklahoma records would have been over ten years old at the time of the traffic stop on November 7, 1993, and “too old to count against him” in Arkansas.

At the conclusion of the hearing, Sievers moved to dismiss the charge on several grounds, including the fact that there was no evidence of a valid suspension under Arkansas law. The court denied the motion and found Sievers guilty of driving on a suspended license. In doing so the court said:

I don’t think there’s any question as to what the police officers have testified to and the documentation that they have provided to the Court here, that Mr. Sievers or Mr. Lineberry was driving on a suspended Oklahoma license. He got an Arkansas license whenever (sic) he wasn’t entitled to it. Probably it wouldn’t be very hard for him to clear up the Oklahoma business, since it’s so old, but he just never did do it.

The court fined Sievers $100 and assessed $62.25 in costs.

Sievers contends on appeal that the trial court erred in denying his motion to dismiss. The statute making it a misdemeanor to drive on a suspended nonresident license provided at the time:

Any person whose operator’s or chauffeur’s license or driving privilege as a nonresident has been cancelled, suspended, or revoked as provided in this act and who drives any motor vehicle upon the highways of this state while such license or privilege is cancelled, suspended, or revoked is guilty of a misdemeanor;

Ark. Code Ann. § 27-16-303(a)(l) (1987). (Emphasis ours.) The term “suspend” as used in this statute means “to temporarily withdraw, by formal action, a driver’s license or privilege to operate a motor vehicle on public highways, which shall be for a period specifically designated by the suspending authority.” Ark. Code Ann. § 27-16-206(a) (1987). Suspensions in Arkansas may not exceed a period of one year. Ark. Code Ann. § 27-16-912 (1987).

A suspension that continues for nine or ten years is not temporary under anyone’s definition and certainly exceeds the one-year limitation set out under § 27-16-912. The statute under which Sievers was cited requires that the suspension in the foreign state be in accordance with Arkansas law. Ark. Code Ann. § 27-16-303(a)(1) (1987). The prolonged suspension manifestly failed that test. The circuit court believed that it was Sievers’s obligation to clear up his record in Oklahoma. However, the lengthy passage of time might also have led Sievers to believe that either his suspension in Oklahoma had expired or his Oklahoma license had expired. Certainly, the Oklahoma records speak in terms of some expiration date.

Suspensions in one state have the effect of precluding a driver from obtaining a license in other states. That is what happens in Arkansas, and recognition of foreign state suspensions is appropriate so long as those suspensions are effective for a fixed period of time. In Arkansas the suspension period may not exceed one year. Foreign state suspensions are not appropriate, though, when they exist for indefinite periods without explanation or reason, and that is the situation in the case before us. We consider it to be the foreign state’s obligation to fix time periods for suspensions and expiration dates. Without any action to reinstate on the part of Sievers, at some point during the ten-year period the Oklahoma suspension should have terminated and the license should have expired or been revoked. That did not happen. Accordingly, we will not affirm a misdemeanor conviction based on an Oklahoma suspension that appears to have no end or rationale to it.

Reversed and dismissed.

Dudley, Newbern, and Glaze, JJ., dissent.

Tom Glaze, Justice,

dissenting. In dismissing this case, the majority court accepts, wholesale, appellant’s version of the facts and his misstatements of the law. While this case must be reversed on the jury issue, the court is clearly wrong on the facts and law when dismissing it.

Appellant was convicted of violating Ark. Code Ann. § 27-16-303(a)(l) (Repl. 1994), which provides that “any person whose driving privilege as a nonresident has been suspended as provided in this act and who drives any motor vehicle upon the highways of this state while such privilege is suspended is guilty of a misdemeanor.” The issue in this appeal is whether the record shows that, when appellant was stopped and charged under § 27-16-303(a)(l), he was driving on Arkansas highways while he had a suspended nonresident driver’s license. The answer is yes.

On November 7, 1993, the officer stopped the appellant on Interstate Highway 540 in Ft. Smith. Appellant’s vehicle was a red and white Corvette bearing Oklahoma tags. The officer checked appellant’s license and found his Oklahoma driver’s license had been suspended. Based on these facts, the officer properly charged appellant with violating § 27-16-303(a)(l). At trial, the officer identified an Oklahoma Department of Public Safety document dated November 15, 1993, reflecting appellant’s “current license status” — driver improvement suspension. Under Oklahoma law, the Public Safety Department may temporarily suspend a driver’s license, but the suspension cannot exceed one year. Okla. Stat. Ann. §§ 1-173(1988) and § 6-206 (1988); see also Okla. Stat. Ann. § 6-208 (1988). In sum, the facts and law clearly support the trial court’s decision that appellant was in violation of § 27-16-303(a)(l).

The majority opinion tracts and is misled by appellant’s argument and discussion, bearing on appellant’s earlier Oklahoma driver’s license suspensions in 1983 and 1984. These older suspensions are mere red herrings. The opinion also follows appellant’s legal argument which erroneously suggests Oklahoma’s law is different from Arkansas's, which provides only for temporary suspended licenses not to exceed one year. As discussed above, Oklahoma law is the same.

This court’s duty on review is to view the facts in the appellee’s favor and determine if the evidence supports the trial court’s holding. The record clearly does. The case should be remanded for a new trial.

Dudley and Newbern, JJ., join this dissent.

      The section was amended by Act 445 of 1993, which became effective January 1, 1994. The amendment changed “operator’s or chauffeur’s license” to “driver’s license.”


author: Robert L. Brown, Justice.

text:
    Randy WILSON v. STATE of Arkansas
    CR 94-1239
    895 S.W.2d 524
    Supreme Court of Arkansas
    Opinion delivered March 27, 1995

      Dave Wisdom Harrod, Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: Joseph V. Svoboda, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

Appellant Randy Wilson appeals three judgments of conviction for delivery of a controlled substance (marijuana). He was sentenced to 45 years imprisonment as a habitual offender with four or more prior felonies and fined $9,000. His grounds on appeal are that the trial court erred in failing to grant him a continuance of his trial and further failed to run his sentences concurrently. His appeal is meritless, and we affirm.

Wilson’s three charges stemmed from the delivery of marijuana to a confidential informant, Bobby Jenkins, on three occasions. The first two occasions occurred on May 11, 1993, and the third occurred on May 22, 1993. Wilson’s defense centered on his contention that he was simply selling marijuana back to Jenkins, who had previously sold the same marijuana to him. He urged that Jenkins was the real drug dealer and that Jenkins sold drugs to minors. Wilson further contended that he was only a marijuana user and that this was by necessity because he suffered from spina bifida and was in constant pain.

On the day of the trial — April 25, 1994 — Wilson moved for a continuance in order to produce four witnesses who he had anticipated would appear at trial voluntarily and testify about Bobby Jenkins’s alleged drug dealing: Tim Swank, Mark Green, Chris Stacy, and Chris Stacy’s wife. He also stated that he needed to subpoena certain minors who had either purchased drugs from Bobby Jenkins or witnessed his selling drugs. This was the fourth continuance request by Wilson. He had moved for a continuance on December 16, 1993, to enable him to hire an attorney which was granted. He had then subsequently moved for continuances in February and March 1994, which were also granted. The trial court denied the motion and issued forthwith subpoenas for Tim Swank, Mark Green, and Chris Stacy. Two of those witnesses — Tim Swank and Mark Green — testified for Wilson at trial. Wilson and his fiance, Rhonda Coggins, age 17, also testified and stated that Jenkins had sold marijuana to minors.

The jury returned guilty verdicts on the three charges and sentenced Wilson to 15 years and a fine of $3,000 on each charge. Wilson moved that the sentences run concurrently. The trial court cited Wilson’s four previous felony convictions and a previous suspended sentence for delivery of controlled substances as reasons militating against concurrent sentences and ran his sentences consecutively for a total prison sentence of 45 years and fines of $9,000.

On appeal, Wilson first asserts error in the trial court’s refusal to grant a continuance and urges that the testimony of the missing witnesses would have had a favorable impact for him on the outcome of the case. It is well settled that a motion for a continuance is addressed to the sound discretion of the trial court, and a decision will not be reversed absent an abuse of discretion amounting to a denial of justice. King v. State, 314 Ark. 205, 862 S.W.2d 229 (1993); Gonzales v. State, 303 Ark. 537, 798 S.W.2d 101 (1990); Butler v. State, 303 Ark. 380, 797 S.W.2d 435 (1990). The appellant bears the burden of proving that the trial court’s denial of a continuance was an abuse of discretion, and that burden entails a showing of prejudice. Dansby v. State, 319 Ark. 506, 893 S.W.2d 331 (1995); Davis v. State, 318 Ark. 212, 885 S.W.2d 212 (1994); King v. State, supra; Rodriguez v. State, 299 Ark. 421, 773 S.W.2d 821 (1989).

Motions for continuances are governed in part by Arkansas Rule of Criminal Procedure 27.3 which provides:

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

We have denoted several factors to be considered by a trial court in deciding a continuance motion:

(1) the diligence of the movant, (2) the probable effect of the testimony at trial, (3) the likelihood of procuring the attendance of the witness in the event of a postponement, and (4) the filing of an affidavit, stating not only what facts the witness would prove, but also that the appellant believes them to be true.

Cloird v. State, 314 Ark. 296, 862 S.W.2d 211 (1993); French v. State, 271 Ark. 445, 609 S.W.2d 42 (1980).

We question the diligence of Wilson in failing to subpoena his witnesses and in failing to move for a continuance until the day of the trial. But, in addition, the filing of an affidavit by the movant is required under Ark. Code Ann. § 16-63-402(a) (1987). The first sentence of that subsection states:

(a) A motion to postpone a trial on account of the absence of evidence shall, if required by the opposite party, be made upon affidavit showing the materiality of the evidence expected to be obtained and that due diligence has been used to obtain it.

We have consistently interpreted § 16-63-402(a) as mandating an affidavit to justify a continuance due to a missing witness when the State objects to the continuance. Dansby v. State, supra; Cloird v. State, supra; King v. State, supra. We have further held that the denial of a continuance when the motion is not in substantial compliance with § 16-63-402(a) is not an abuse of the trial court’s discretion. Marshall v. State, 316 Ark. 753, 875 S.W.2d 814 (1994); Cloird v. State, supra. Here, the State objected to the continuance in this case, and Wilson filed no affidavit or verified motion in support of his motion.

Moreover, Wilson failed to prove that he was prejudiced by the trial court’s refusal to grant a continuance. All the information that he sought to elicit from the absent witnesses was introduced at trial. Green’s and Swink’s testimony informed the jury that Bobby Jenkins had sold drugs, and Green testified that he had seen Jenkins sell marijuana to Wilson. That Jenkins sold drugs is also the point that Wilson hoped the absent witness, Chris Stacy, would make. Wilson and Coggins both testified that Jenkins had sold drugs to minors. This, too, is the information that Wilson sought to bring to the jury’s attention from the absent minor witnesses. In sum, there has been no showing of prejudice by the trial court’s denial of the continuance. This absence of prejudice, coupled with the failure to file an affidavit and our perceived lack of diligence on Wilson’s part in preparing for trial are all reasons which sustain the trial court’s decision.

Wilson’s second point on appeal is that the trial court erred in finding his sentences should run consecutively rather than concurrently. It is within the province of the trial court to determine whether sentences should proceed consecutively or concurrently, and the decision is left to the sound discretion of the trial court. Brown v. State, 316 Ark. 724, 875 S.W.2d 828 (1994); Patton v. State, 281 Ark. 36, 660 S.W.2d 939 (1983); Hinton v. State, 260 Ark. 42, 537 S.W.2d 800 (1976). The exercise of that discretion will not be altered on appeal unless it is clearly shown to have been abused. Brown v. State, supra.

In the present case, the trial court cited Wilson’s four previous felony convictions and his failure to avoid a continuation of drug trafficking after a prior probated sentence for the same offense. These reasons for the court’s decision on the appropriate sentence to levy are eminently reasonable, and we find no basis for a conclusion that the trial court abused its discretion on this point.

Affirmed.


author: Andree Layton Roaf,

text:
    MAY CONSTRUCTION COMPANY, INC. v. BENTON SCHOOL DISTRICT NO. 8
    94-1138
    895 S.W.2d 521
    Supreme Court of Arkansas
    Opinion delivered March 27, 1995

      Arnold, Grobmyer & Haley, by: Robert R. Ross, for appellant.

      Boswell, Tucker & Brewster, by: W. Lee Tucker, for appellee.
   Andree Layton Roaf,

Justice. Appellant May Construction Company, Inc., (May Construction) appeals from an order denying its motion to compel arbitration. We affirm the decision of the trial court.

On February 24, 1994, appellee Benton School District No. 8 (Benton) filed a complaint against May Construction in the Circuit Court of Saline County. Benton alleged it entered into a contract in May 1991 with May Construction for the construction of a building to be used as a middle school. According to the complaint, the contract documents set out specifications for curing materials to be used as a sealer on the concrete floors. On July 12, 1991, May Construction requested the use of a substitute curing material and represented that the substitute product met or exceeded the quality level of the original product. Based upon May Construction’s assurances, the architect approved the requested change.

In paragraph five of the complaint, Benton further alleged:

5. That after application of “Kur-N-Seal 30,” the finish on the concrete floors of the building began experiencing gross and unsightly scuff marks from student traffic to the extent that the floors’ appearance became totally unacceptable in that the sealer was magnifying all traffic in an unsightly manner. The floors became sticky in some areas and remain so at this time. That the finished product fails to comply with the plans and specification^] set out in the contract and is totally unacceptable to Plaintiff. That notwithstanding Plaintiff’s demand, Defendant has failed and refused to comply with the contract.

(Emphasis supplied.) In addition, Benton alleged May Construction negligently failed to properly apply the substituted product, negligently failed to properly clean the pre-finished floors, negligently supplied a defective product, breached its implied warranty of merchantability, and breached its expressed warranty of fitness for a particular purpose.

In response to Benton’s complaint, May Construction filed a motion to stay proceedings and compel arbitration. May Construction admitted the parties entered into a contract for the construction of the building; however, May Construction contended the contract incorporated Act 260 of 1969 as amended [Uniform Arbitration Act, Ark. Code Ann. §§ 16-108-201 - 224 (1987 and Supp. 1993)] and the “General Conditions of the Contract for Construction, Document A201 of the American Institute of Architects, 1987 Edition.” Pursuant to the terms of these provisions, May Construction requested Benton be compelled to submit to arbitration. Benton responded that controversies or claims relating to “aesthetic effect” are not subject to arbitration under the terms of the agreement.

The trial court found “aesthetic affect” claims are not subject to arbitration and the complaint encompasses claims relating to “aesthetic affect” of the finished product. Therefore, the trial court denied the motion to stay proceedings and compel arbitration. The sole issue on appeal is whether the trial court erred in denying May Construction’s motion to compel arbitration.

We have recognized this state’s strong public policy favoring arbitration. Chem-Ash, Inc. v. Arkansas Power & Light Co., 296 Ark. 83, 751 S.W.2d 353 (1988). Further, we have written:

The same rules of construction and interpretation apply to arbitration agreements as apply to agreements generally, thus we will seek to give effect to the intent of the parties as evidenced by the arbitration agreement itself. 5 Am. Jur. 2d § 14; and see Prepakt Concrete Co. v. Whitehurst Bros., 261 Ark. 814, 552 S.W.2d 212 (1977). It is generally held that arbitration agreements will not be construed within the strict letter of the agreement but will include subjects within the spirit of the agreement. Doubts and ambiguities of coverage should be resolved in favor of arbitration. 5 Am. Jur. 2d § 14; Uniform Laws Annotated, Vol. 7, Uniform Arbitration Act, § 1, Note 53 (and cases cited therein).

Wessell Bros. Foundation Drilling Co. v. Crossett Pub. School Dist., No. 52, 287 Ark. 415, 701 S.W.2d 99 (1985). Finally, the construction and legal effect of a written contract are to be determined by the court as a question of law except where the meaning of the language depends upon disputed extrinsic evidence. Duvall v. Massachusetts Indem. & Life Ins. Co., 295 Ark. 412, 748 S.W.2d 650 (1988).

Section 4.5.1 of the General Conditions of the Contract for Construction provides in part:

Controversies and Claims Subject to Arbitration. Any controversy or Claim arising out of or related to the Contract, or the breach thereof, shall be settled by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator or arbitrators may be entered in any court having jurisdiction thereof, except controversies or Claims relating to aesthetic effect and except ...

(Emphasis supplied.) On appeal, the appellant contends the plaintiff’s complaint is based upon breach of contract rather than “aesthetic effect.” We hold, however, that the plaintiff’s complaint is based upon a question concerning “aesthetic effect.” “Aesthetic” is defined as “pertaining to a sense of the beautiful or to the science of aesthetics.” The Random House Dictionary of the English Language (2d ed. 1987).

If the appearance of the concrete floors was not “totally unacceptable” as the plaintiff contends, then there would be no claim. Granted, the plaintiff’s complaint refers to May Construction’s negligently supplying a defective product and breach of warranties. However, if the aesthetic effect of the floors was not unacceptable, the product would not be defective and the warranties would not be breached. The plaintiff does not contend that the floor has cracked or been damaged due to defective sealer. Rather, the plaintiff contends the floors began experiencing “unsightly scuff marks.” The contract provides “controversies or Claims relating to aesthetic effect” are not subject to arbitration.

Finally, the appellant has not abstracted the complete contract, nor is it in the record. Therefore, contrary to the appellant’s argument, we do not know whether Benton contracted “to make the floor beautiful.” It is the appellant’s burden to bring up a record sufficient to demonstrate error. Young v. Young, 316 Ark. 456, 872 S.W.2d 856 (1994). When an appellant fails to demonstrate error we will affirm. Id.

Affirmed.

Brown, J., not participating.


author: Andree Layton Roaf, Justice.

text:
    Robert L. WRIGHT and Robert A. Wright v. Bonnie EDDINGER
    94-816
    894 S.W.2d 937
    Supreme Court of Arkansas
    Opinion delivered March 27, 1995
    [Rehearing denied April 24, 1995.]

      Rieves & Mayton, by: Elton A. Rieves IV, for appellant.

      Easley, Hicky & Clive, by: B. Michael Easley, for appellant.
   Andree Layton Roaf, Justice.

This case involves the construction and interpretation of the Arkansas Rules of Civil Procedure. The principal point on appeal is whether under ARCP Rule 41(a) a trial court may grant a request for voluntary non-suit where the trial court has announced its decision to grant the defendants’ motions for summary judgment but the order has not been entered. We hold the granting of a voluntary nonsuit after final submission of the case is within the trial court’s discretion. In accordance, we hold the trial court did not abuse its discretion and affirm the granting of the appellee’s voluntary nonsuit.

On March 3, 1990, appellee Bonnie Eddinger was involved in an automobile collision in West Memphis, Arkansas. The driver of the other vehicle was appellant Robert Allen Wright. The accident report listed “Robert Wright” as operator and reported his address as 921 Rosewood, West Memphis, Arkansas. On March 3, 1993, the appellee filed a complaint in the Circuit Court of Crittenden County against “Robert Wright” and an insurance company. The complaint and summons named “Robert Wright” and were mailed certified to 921 Rosewood, West Memphis. However, process was served upon appellant Robert L. Wright, the father of the Robert Wright who was driving the vehicle. Robert L. Wright filed a timely answer admitting jurisdiction and that the accident occurred; however, he denied that “this defendant was in any way negligent with regard to the occurrence.” On July 6, 1993, several days after expiration of the time which appellee had to obtain proper service pursuant to ARCP Rule 4(i), Robert L. Wright moved for summary judgment on the basis that he was not the operator of the vehicle identified in the plaintiff’s complaint. He acknowledged that his son, Robert A. Wright, was the operator of the vehicle.

On July 30, 1993, the appellee amended her complaint to include Robert Allen Wright of Nashville, Tennessee, as a defendant based on information provided by Robert L. Wright in discovery. Robert A. Wright filed a timely answer, and, on August 24, 1994, he also moved for summary judgment, on the basis that the action was barred by the statute of limitations. The same attorney represented both father and son.

A hearing was held on March 10, 1994, and the appellants’ motions for summary judgment were argued to the trial court. During the hearing, counsel for the appellee conceded Robert L. Wright was not the correct “Robert Wright.” Consequently, the trial judge stated he would grant the motion for summary judgment dismissing Robert L. Wright from the complaint. During the remainder of the hearing, the court entertained arguments regarding Robert Allen Wright’s motion for summary judgment. At the conclusion of the hearing, the trial court indicated “I’m going to grant your motion for summary judgment.” However, on March 18, 1994, the appellee filed a “Supplemental Memorandum Brief Resisting Defendant’s Motion for Summary Judgment” in which she argued summary judgment was not proper and, in the alternative, requested a voluntary nonsuit pursuant to ARCP Rule 41(a). The appellants filed a response to Eddinger’s memorandum on March 22, 1994.

The trial court granted the appellee’s request to nonsuit without prejudice, and an Order of Nonsuit was entered on April 14, 1994. The trial court never entered any orders granting the summary judgments. Subsequently, the appellants moved to set aside the order of nonsuit; however, after conducting a hearing, the trial court denied the motion.

On appeal, the appellants submit: (1) the circuit court erred in permitting the plaintiff to nonsuit her complaint after announcing that summary judgment would be entered in favor of the defendants but before the orders for summary judgment were entered, and (2) the circuit court erred by abusing any discretion it might have had in permitting the plaintiff to take a voluntary nonsuit after announcing that summary judgment was being entered on the plaintiff’s complaint.

Arkansas Rule of Civil Procedure 41 provides in part:

(a) Voluntary dismissal: Effect Thereof. Subject to the provisions of Rule 23(d) and Rule 66, an action may be dismissed without prejudice to a future action by the plaintiff before the final submission of the case to the jury, or to the court where the trial is by the court, provided, however, that such dismissal operates as an adjudication on the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based upon or including the same claim, . . .

We have held that the privilege to take a voluntary nonsuit is an absolute right prior to final submission to a jury or to the court sitting as a jury. Lemon v. Laws, 305 Ark. 143, 806 S.W.2d 1 (1991); Whetstone v. Chadduck, 316 Ark. 330, 871 S.W.2d 583 (1994); Duty v. Watkins, 298 Ark. 437, 768 S.W.2d 526 (1989).

Accordingly, we must first determine whether the nonsuit occurred before the “final submission of the case.” If the nonsuit was requested before the final submission of the case, then the voluntary nonsuit was an absolute right. If the nonsuit was requested after final submission of the case, then we must determine whether it was within the trial court’s discretion to grant a nonsuit under the instant circumstances.

We have noted that a case is not submitted until the argument is closed and the case submitted to the jury or the Court. Haller v. Haller, 234 Ark. 984, 356 S.W.2d 9 (1962); See also Mutual Benefit Health & Accident Assoc. v. Tilley, 174 Ark. 932, 298 S.W. 215 (1927). In Duty v. Watkins, supra, a hearing was held in reference to a defendant’s motion to dismiss the complaint for failure to answer discovery requests. The plaintiff appeared at the hearing and requested a nonsuit under ARCP 41(a); however, the trial court granted the defendant’s motion to dismiss. We held a nonsuit should have been granted where the “case had not been finally submitted because, although the case had come to a hearing, the argument was not yet closed.”

In Mutual Benefit Health & Accident Assoc. v. Tilley, supra, we affirmed the trial court’s finding that a nonsuit was requested before final submission of the case. This Court stated the relevant facts as follows:

At the close of the testimony the court indicated to the attorney for the appellee [plaintiff] that the proof was not sufficient to justify a recovery, and thereupon the attorney for the appellee asked leave to take a nonsuit, which leave the court granted, and dismissed the action without prejudice.

(Emphasis supplied.) In affirming the trial court’s decision to grant the nonsuit, the Court wrote:

Here, notwithstanding the court had indicated to the counsel for the plaintiff that the court did not think the proof sufficient to justify a recovery, counsel for plaintiff still had the right to ask permission to argue his client’s cause before the court; and there is nothing in the record to show that the court, if asked, would have denied him this right and privilege. If counsel had availed himself of this right and privilege, he might have been able to convince the court that its view of the testimony before hearing the argument of counsel was erroneous and thus induced the court to find in favor of his client. Instead of taking this course, counsel for plaintiff elected to take a nonsuit, which he had a right to do.

In the instant case, the appellee contends the argument had not been concluded because she filed a Supplemental Memorandum in the “nature of a motion for reconsideration.” However, under the appellee’s theory, the losing party could simply submit a brief after the trial court’s ruling and contend the case was never finally submitted. Further, there is no indication in the record that the trial court requested further argument. The hearing had concluded and counsel had made its argument to the court. Although the case was submitted on motions for summary judgment, an adverse ruling to the plaintiff would finally dispose of the case. Consequently, we hold the case had been submitted to the court. See Duty, supra.

Even assuming the case was submitted, we hold the trial court did not abuse its discretion in granting the voluntary non-suit. After final submission, the motion for voluntary nonsuit is within the discretion of the trial court. Haller v. Haller, 234 Ark. 984, 356 S.W.2d 9 (1962) (interpreting Ark. Stat. Ann. § 27-1405 (superseded)); Fortuna v. Achor, 254 Ark. 1035, 497 S.W.2d 251 (1973); Raymond v. Young, 211 Ark. 577, 201 S.W.2d 583 (1947); D. Newbern, Arkansas Civil Prac. & Proc., §§ 22-2 and 22-3 (2d. ed. 1993). Although these decisions were based on superseded statutes, we have recognized that the superseded statutes were virtually identical to Rule 41(a) and the cases construing Rule 41(a) have interpreted it the same way the superseded statute was interpreted. Duty v. Watkins, supra; Lemon v. Laws, supra; D. Newbern, Arkansas Civil Prac. & Proc., §§ 22-2 and 22-3 (2d. ed. 1993).

The appellants principally contend “the court abused its discretion since it is not apparent from the record that any good purpose would be served by such action and since the Plaintiff failed to show good cause as to why the Plaintiff delayed in seeking to nonsuit her Complaint.” However, the appellants have the burden of demonstrating the trial court abused its discretion. See Jones v. State, 317 Ark. 131, 876 S.W.2d 262 (1994); Burnett v. State, 299 Ark. 553, 776 S.W.2d 327 (1989). Under the unique circumstances presented, we cannot conclude the trial court abused its discretion.

Finally, the appellee contends in her brief that ARCP Rule 11 sanctions should be assessed against the counsel for the appellants. The appellee submits she sought Rule 11 sanctions below; however, the trial court did not grant the request. Because the appellee seeks affirmative relief, she is precluded from raising this argument on appeal since she did not file a cross appeal. See Edwards v. Neuse, 312 Ark. 302, 849 S.W.2d 479 (1993).

In addition, the appellee filed a motion with this Court requesting Rule 11 sanctions. The Rules of Civil Procedure gov-em only the procedure in the circuit, chancery, and probate courts; therefore, we do not consider the appellee’s motion for Rule 11 sanctions. See ARCP Rule 1; Widmer v. Touhey, 297 Ark. 85, 759 S.W.2d 562 (1988) (Glaze, J., concurring).

Affirmed.

Glaze, and Brown, JJ., concur.


author: Per Curiam.

text:
    Christine M. JONES v. Jerry A. JONES
    CA 94-1022
    896 S.W.2d 431
    Supreme Court of Arkansas
    Opinion delivered March 27, 1995

      The. Perroni Law Firm, by: Samuel A. Perroni, for appellant.

      Helen Rice Grinder, for appellee.
   Per Curiam.

Jerry A. Jones, the appellee, by motion asked the Court of Appeals to allow him to submit a brief of 40 pages, 15 pages in excess of the 25-page limit for argument found in Rules of the Supreme Court and Court of Appeals 4-1 (a). The Court of Appeals denied the motion.

Mr. Jones then submitted a brief the argument section of which was within the 25-page limit. Christine M. Jones, the appellant, moved before the Court of Appeals to strike the brief because the type was 16 point rather than the 10 point specified by Rule 4-1(a). The Court of Appeals certified the motion to this Court because it requires interpretation of the Rule.

The pertinent part of Rule 4-1(a) presently reads as follows: “If a standard typewriter is used, type shall be no smaller than 10 point, i.e., 10 characters to the inch. If a computer or word processor is used, the type shall be no smaller than a 10 pitch font.”

In our consideration of this matter, we have learned that a 10 pitch font may be used to produce characters so small that far more than 10 may be placed in a one-inch space. We are amending our Rule by a separate per curiam order of this date to specify, in pertinent part: “The style of print shall be either mono-spaced, measured in characters per inch, not to exceed 10 characters per inch, or produced in a proportional serif font, measured in point sizes, not to be less than 12 points.”

We overrule the motion to strike Mr. Jones’s brief because it complied with the Rule as written when the brief was submitted. We appreciate the Court of Appeals having brought this matter to our attention and trust the revision of the rule will prevent its recurrence.

Glaze, J., not participating.


text:
    Ivan Floyd PIPKIN v. STATE of Arkansas
    CR 94-515
    896 S.W.2d 432
    Supreme Court of Arkansas
    Opinion delivered March 27, 1995
   Per Curiam.

The procedural background in this matter is set forth in our per curiam opinion delivered on January 30, 1995. Pipkin v. State, 319 Ark. 371, 892 S.W.2d 241 (1995). Attorney A. Wayne Davis, counsel for appellant Ivan Floyd Pipkin, was cited to appear before this court on February 6, 1995, to show cause why he should not be held in contempt for failing to file the abstract and brief in his client’s case and for failing to pay the $500 fine levied in our per curiam opinion of January 9, 1995. See Pipkin v. State, 319 Ark. 237, 892 S.W.2d 240 (1995). Mr. Davis did not appear on February 6, 1995.

The Clerk of the Arkansas Supreme Court, in a letter dated March 8, 1995, informed Mr. Davis of the outstanding January 30 per curiam order and advised him that he was directed to appear on March 13, 1995, and show cause why he should not be held in contempt for failure to file briefs in the Pipkin appeal. During his appearance before this court on March 13, 1995, Mr. Davis stated that he had paid the $500 fine but acknowledged that he still had not filed the appellate brief.

The following exchange occurred between Chief Justice Jack Holt, Jr., and Mr. Davis on Monday, March 13, 1995:

Chief Justice Holt: All right, let’s go on to the second issue. The fine has been paid; what about the brief?
Mr. Davis: The brief will be filed not later — I will not be able to rest until it is done — it should be filed by Wednesday [March 15], not later than Friday [March 17]. It.is with much humility and embarrassment that I am out here again, and I will not be able to rest until I get this brief finished — and it is substantially finished. What I’ve done is that I decided to add another point to the — all the abstracts are done.
Chief Justice Holt: Did you not tell Judge Cracraft [the Master] back in December that it would be in in a few days?
Mr. Davis: That is correct. I did, and, Your Honor, at the time I thought I would be able to complete that, but there was some circumstances created there that necessitated me leaving the state, and I just simply could not — and we started this jury trial at the end of January ■— first of February — February 2nd. At that time, I thought I — it was reasonable for me to anticipate being completed by that time, and some things happened.
Chief Justice Holt: Did you make any attempt to notify anyone or make any motions for continuance?
Mr. Davis: No. After the hearing with Judge Cracraft, I visited with Mr. Steen [the Clerk], and I was going to bring the brief in.

Mr. Davis failed to file the brief on either March 15 or March 17, the dates he indicated at his show-cause hearing. Indeed, as of this date, the brief in question has not been filed.

Before a person may be held in contempt for disobeying a court order, that order must be couched in definite terms with respect to the duties imposed upon him, and the command must be expressed rather than implied. McCullough v. Lessenberry, 300 Ark. 426, 780 S.W.2d 9 (1989). The duties imposed upon Mr. Davis in our per curiam orders were precise in expression. Therefore, pursuant to the authority granted by Ark. Code Ann. § 16-10-108(a)(3) (Repl. 1994), we declare Mr. Davis to be guilty of criminal contempt for his willful and continued disobedience of this court’s per curiam orders directing him to file the abstract and brief in the above-styled criminal appeal.

It has long been held that the right to punish for contempt is inherent in all courts. Edwards v. Jameson, 284 Ark. 60, 679 S.W.2d 195 (1984); Neel v. State, 9 Ark. 259, 50 Am. Dec. 209 (1849). We hereby order Mr. Davis to be imprisoned for five (5) days for criminal contempt. Accordingly, we direct the Arkansas State Police to take immediate custody of Mr. Davis and to deliver him forthwith to the Pulaski County Regional Detention Facility.

Glaze, J., not participating.


text:
    Robert STUBBS v. STATE of Arkansas
    CR 95-240
    896 S.W.2d 430
    Supreme Court of Arkansas
    Opinion delivered March 27, 1995

      Bill Luppen, for appellant.
    No response.
   Per Curiam.

The appellant, Robert Stubbs, has filed a motion for rule on the clerk. His attorney, Bill Luppen, admits that the record was prematurely and untimely filed due to a mistake on his part. We find that such admission of fault by an attorney in a criminal case is good cause to grant the motion. See Tarry v. State, 288 Ark. 172, 702 S.W.2d 904 (1986).

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

Dudley, J., not participating.


author: Jack Holt, Jr., Chief Justice.

text:
    Christopher Lindsey WATKINS v. STATE of Arkansas
    CR 94-659
    895 S.W.2d 532
    Supreme Court of Arkansas
    Opinion delivered April 3, 1995

      Evelyn L. Moorehead, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Acting Deputy Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, Christopher Lindsey Watkins, raises two points for reversal in this appeal from his conviction of the offense of attempted murder. He argues that the trial court erred in (1) not declaring Acts 535 and 551 of 1993 unconstitutional and (2) not allowing cross-examination of a witness for the prosecution on a previous criminal history involving theft. Neither issue has merit, the first having been recently addressed in Williams v. State, 318 Ark. 846, 887 S.W.2d 530 (1994), and reiterated in Diffee v. State, 319 Ark. 669, 894 S.W.2d 564 (1995) (rev’d on other grounds). We therefore affirm the judgment of the trial court.

It should be noted at the outset that this court has jurisdiction in the present matter, despite the fact that the appellant’s term of incarceration is thirty years, because the constitutionality of an act of the General Assembly was called into question. Ark. Sup. Ct. R. l-2(a)(3).

Facts

Shortly after 4:00 p.m. on Friday, September 25, 1992, Teresa Sims, a secretary at Parkview High School in Little Rock, heard the front-office intercom buzz. When she responded, she heard a scream from a classroom. Ms. Sims alerted the school security officer, Jill Makowsky, and the two went to investigate. Ms. Sims reached the classroom first and, looking through the window of the locked door, saw the appellant, Christopher Watkins, standing over someone who was lying on the floor. She noticed blood “all over the floor and some on the person.”

When Ms. Makowsky arrived at the classroom, she pulled on the bolted door and ordered Watkins to open it. Watkins refused, saying, “Go around. The other door’s open.” Ms. Makowsky found no other entrance into the classroom. Meanwhile, at Ms. Makowsky’s direction, Ms. Sims left to call 911.

The lights in the classroom had been turned off, but Ms. Makowsky was able to see a teacher, Debbie Fulbright, on the floor and a pocket knife cupped in Watkins’s hand. She then went to the cafeteria where the football team was meeting and sought assistance. One of the adults returned with her to the classroom, from which Watkins was emerging. Ms. Makowsky instructed him to leave and watched him walk “real calmly” around a wall and up a hallway.

At that point, Ms. Makowsky ran into the classroom and spoke to Mrs. Fulbright, who was lying in blood. The assistant principal, Anne Hansen, appeared, and she and Ms. Makowsky asked Mrs. Fulbright who had stabbed her. Mrs. Fulbright stated that Chris Watkins had done it because he had received a “behavioral document.” Ms. Hansen and Ms. Makowsky kept talking to her until the emergency services arrived. During that period, Mrs. Fulbright continued to repeat the name “Chris.”

Mrs. Fulbright was subsequently diagnosed in a hospital emergency room as being in a state of “profound shock,” having sustained multiple knife wounds and having lost about half of her blood volume. Approximately five or six hours of surgery were required that night and additional surgery the following week.

Before this incident occurred, James Alden, a Parkview student, also received from Mrs. Fulbright a “behavioral document” similar to that given Watkins. He testified that Watkins had showed him a knife after they had received their behavioral documents and had told him that he was going to stab Mrs. Fulbright.

Watkins was arrested on the same day of the attack and was charged by information with the felony offense of criminal attempt to commit murder in the first degree, pursuant to Ark. Code Ann. § 5-3-201 (Repl. 1993). Prior to Watkins’s initial trial, the Arkansas General Assembly met in regular session and passed Acts 535 and 551, identical legislation setting forth new sentencing guidelines and procedures in felony criminal cases. Under the new acts, a bifurcated sentencing procedure was mandated after January 1, 1994, for a period extending to June 30, 1997, replacing the previous unitary system in which punishment was fixed by the jury at the same time that guilt was determined.

In December 1993, Watkins was tried under the earlier unitary procedure. A mistrial was declared due to a hung jury. In mid-February 1994, after the effective date of Acts 535 and 551, a second trial was conducted. During that trial, Watkins filed a motion requesting the trial court to find Act 535 of 1993, as codified at Ark. Code Ann. § 5-4-103 (Repl. 1993) and Ark. Code Ann. § 16-97-101 et seq. (Supp. 1993), unconstitutional, arguing, among other things, that, by making the bifurcation process applicable to offenses occurring before its effective date, the act violates the ex post facto requirements of Article I, § 9(3) of the United States Constitution and Article 2, § 17 of the Arkansas Constitution; that, by allowing victim-impact statements, the act violates the requirements of Payne v. Tennessee, 111 S.Ct. 2597 (1991); and that the bifurcation process violates the Due Process and Equal Protection Clauses of the United States and Arkansas Constitutions. The trial court denied the motion.

In the second trial, the jury found Watkins guilty of attempted first-degree murder. During the penalty phase, the jury received victim-impact testimony and other evidence and fixed Watkins’s sentence at thirty years. From that judgment, this appeal arises.

I. Constitutionality of Act 535 and 551 of 1993

On Friday, February 18, 1994, the second day of trial, Watkins filed a written motion requesting the trial court to declare Act 535 of 1993 unconstitutional. The trial court denied the motion. It is Watkins’s position on appeal that the bifurcation procedures set forth in Acts 535 and 551 were applied retroactively to him; that the attempted first-degree murder occurred on September 25, 1992; and that the bifurcated procedure did not become effective in Arkansas circuit courts until January 1, 1994.

The trial court found that the motion was untimely and, further, that the Attorney General had not been notified and that the motion had no merit. Granted, the effective date of the legislation accounts for the fact that the motion was not filed at the time of the first trial. The change in the law, however, cannot afford extenuation for Watkins’s failure to file his motion at the earliest opportunity.

At the very outset of the first day of trial, Thursday, February 17, 1993, the trial court conducted a proceeding under the heading of “Bill of Exceptions” in which witnesses and other trial-related matters were discussed at length. Watkins had ample opportunity at that point to make his motion concerning the constitutionality of Act 535, yet he announced that he was ready for trial. He elected to wait until the second day of trial, Friday, February 18, 1993, to file his motion and alerted the court of its pendency only on the third day of trial, Tuesday, February 22, 1993. An issue must be presented to the trial court at the earliest opportunity in order to preserve it for appeal. Fuller v. State, 316 Ark. 341, 872 S.W.2d 54 (1994).

We hold that the motion in question was untimely and that the trial court did not err in denying it. For this reason, it is unnecessary for us to address the subpoints relating to ex post facto application, due process, equal protection, and victim-impact evidence.

II. Witness’s previous criminal history

At trial, James Alden, a Parkview student who, along with Watkins, received a behavioral document from Mrs. Fulbright on September 25, 1992, testified that, after the two had been written up, “Chris told me that he was going to stab Mrs. Fulbright, but I didn’t believe him. And then he showed me a knife.” Alden stated that Watkins had “said like he was going to stab other teachers and stuff like that before” and that he didn’t believe he was serious, even after he displayed the knife.

Subsequently, outside the hearing of the jury, defense counsel proffered information, through voir dire of the witness, that Alden had stolen a gun:

Q Have you ever stolen a gun?
A Yes, ma’am. But I’m not proud of that.
Q Okay. Have you ever lied about it?
A To my mom and other people.

The trial court declined to allow counsel to cross-examine Alden about the stolen gun, ruling that Ark. R. Evid. 608(b) does not permit the introduction of proof by extrinsic evidence of specific instances of the conduct of a witness for the purpose of attacking or supporting credibility other than conviction of a crime as provided by Rule 609.

Under Ark. R. Evid. 609(a), it is provided that

For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted but only if the crime (1) was punishable by death or imprisonment in excess of one [1] year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party or a witness, or (2) involved dishonesty or false statement, regardless of the punishment.

According to Watkins, his counsel should have been able, under Rule 609(a), to ask Alden whether he had ever stolen a gun. Yet nowhere in the record does there appear proof that Alden had been convicted of an offense entailing one year or more imprisonment or involving dishonesty or false statement, a prerequisite under Rule 609(a).

Further, Watkins’s effort to cross-examine Alden was denied specifically on the basis of Rule 608(b), which focuses on the character of the witness for truthfulness or untruthfulness. Whether Alden had previously stolen a gun was not probative of truthfulness. See Rhodes v. State, 276 Ark. 203, 634 S.W.2d 107 (1982), where we held that an absence of respect for the property rights of others, though an undesirable trait, does not directly indicate an impairment of the trait of truthfulness. The trial court did not err in refusing to permit cross-examination of Alden with respect to the previous theft of a gun.

Affirmed.

      No court session was held on Monday, February 21, 1993, a holiday.