text:
    Irwin GIDRON v. STATE of Arkansas
    CR 92-1388
    872 S.W.2d 64
    Supreme Court of Arkansas
    Opinion delivered March 21, 1994

      Davis H. Loftin, for appellant.

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

The appellant, Irwin Gidron, was sentenced to twenty-six years and fined $10,000 for the second-degree murder of Joseph Houston and the second-degree battery of Sonya Woodley. Although he raises five arguments for reversal of his conviction, none having merit, we must first address and resolve a jurisdictional consideration.

This case was certified to our court by the court of appeals pursuant to Ark. R. Sup. Ct. l-2(a)(3) because it calls for an interpretation of our rules as to the timeliness of the filing of this appeal under a former rule, Ark. R. Crim. P. 36.4. Pertinent to this issue are the following filings:

March 26, 1990 Judgment of Gidron’s conviction for second degree battery and murder in the second degree.
April 18, 1990 Gidron’s motion for new trial arguing ineffective assistance of counsel pursuant to Ark. R. Crim. P. 36.4.
May 18, 1990 Gidron’s notice of appeal from the court’s March 26th judgment.

The jurisdictional problem arises because Gidron filed his notice of appeal after the trial court’s judgment of conviction was entered but before his post-trial motion for new trial under Ark. R. Crim. P. 36.4 claiming ineffective assistance of counsel was acted upon by the trial court. In fact, the record is silent as to any disposition; thus, we are faced with the question of whether or not Ark. R. App. P. 4(c), which provides that certain motions are “deemed denied” after thirty days, applies when a motion for new trial was filed under Rule 36.4 which was abolished in part by our Per Curiam Order of October 29, 1990, effective January 1, 1991. In Re: Post-Conviction Procedure, 303 Ark. 745, 797 S.W.2d 458 (1990).

Obviously, counsel for Gidron was caught in a “Catch-22” situation due to the apparent conflicts between that portion of Ark. R. App. P. 4(c) which provides that motions are deemed denied after thirty (30) days and Ark. R. Crim. P. 36.4 which stated, in part:

The trial judge must address the defendant personally and advise the defendant that if the defendant wishes to assert that his or her counsel was ineffective a motion for a new trial stating ineffectiveness of counsel as a ground must be filed within thirty (30) days from the date of pronouncement of sentence and entry of judgment. The judge must further advise the defendant that, if a motion for a new trial is filed asserting facts sufficient to raise an issue whether his or her counsel was ineffective, a hearing will be held, and the time for filing a notice (of) appeal will not expire until thirty (30) days after the disposition of the motion, as provided in Rule 36.22. (Amended by Per Curiam May 30, 1989, effective July 1, 1989).

(Emphasis added.)

Rather than attempt to resolve this conflict concerning a rule which is now nonexistent, we take the same tack as we did in Tucker v. State, 311 Ark. 446, 844 S.W.2d 335 (1993), where we accepted an appeal as a belated appeal under Ark. R. Civ. R 36.9 because there was some justifiable confusion as to application of Ark. R. App. R 4(c) and because the problems in filing the appeal were not brought about by inadvertence on the part of counsel. Here, as in Tucker, supra, there was obvious conflict in our rules regarding the proper procedures in filing this appeal, which, obviously, created confusion to counsel. For this reason, we accept this case as a belated appeal and decide it on its merits. See Kelly v. Kelly, 310 Ark. 244, 835 S.W.2d 869 (1992) and Mangiapane v. State, 314 Ark. 350, 862 S.W.2d 258 (1993) . In doing so, we affirm the trial court.

The facts giving rise to this appeal are as follows. John Barry and Barry’s cousin were at a pool hall in West Memphis, Arkansas, in the middle of the night when Adolphus Graves got into an altercation with them. Mr. Graves left the pool hall only to run into Barry, his cousin, and the appellant, Gidron. Graves tried to run away from them, but they chased him with a gun, firing shots.

Escaping them, Mr. Graves hid in a ditch and heard them pass. He then ran down the street and went over a fence. Again, Barry and Gidron caught up with him, only to have him slip away. He ran past a girl, telling her that he had been shot (although this turned out to be a cut). She ran in the house and called the police.

This house was the residence of Doris Houston and her husband, the murder victim Jóseph Houston. Mrs. Houston testified that on the night of the murder, she and her husband were in bed and their children were outside. Their daughter Jennifer told them that someone was shooting outside their door, and Mr. Houston walked into the living room. A voice outside announced, “You better tell him to come out because I know he came in there and if he don’t come out, we’re gonna start shooting.” Gun shots poured through the door and window, and Mr. Houston was shot in the stomach. The front door, china cabinet, microwave, stereo, and dining-room wall were riddled with bullets. Mr. Houston died about nine days later as a result of his bullet wound.

Sonya Woodley testified that, prior to the shooting, she was sitting on the Houstons’ front porch when a man ran by with Barry and Gidron chasing him. Barry and Gidron stopped and asked her and the others if they had seen Graves. When they said “no,” the men warned that they were going to shoot up the house if Graves was not sent out. Gidron pulled out a gun, and Sonya and her friends ran into the house. During the ensuing attack, Sonya was shot in the leg.

Jury Selection

We consolidate Gidron’s first two arguments since they pertain to jury selection, and in particular, to the trial court’s failure to exclude a juror as well as its failure to quash the jury panel. Gidron complains that he and his co-defendant had antagonistic defenses and that each should have been given separate peremptory challenges for a total of sixteen rather than eight, and that by so limiting the co-defendants’ challenges, Gidron was forced to accept a juror that the trial court refused to excuse for cause. In addition, Gidron complains that after the initial jury panel was seated, he “noticed, in looking around the courtroom, [that there] didn’t seem to [be] any other black males in the courtroom, the result being that no black males were present” for jury panel selection, and for this reason, the jury panel should have been quashed.

We do not reach these issues as no record was made regarding jury selection or voir dire of the prospective jurors. The first mention of these claimed errors appears in the transcript of trial at the middle of the State’s case, after the first day of testimony, and consists of dialogue between Gidron’s counsel, the prosecuting attorney, and the trial court concerning the trial court’s permission to grant Gidron’s counsel to make a belated record of his objection to the jury venire.

Granted, the trial courts and counsel, in efforts to expedite proceedings, have on occasion treated various matters in a rather cursory fashion and have deferred making appropriate motions and rulings to some later time during the course of trial. Consequently, a premium has too often been placed on procedural convenience at the expense of the observance of certain basic requirements, see Cummings v. State, 315 Ark. 541, 869 S.W.2d 17 (1994); however, we.have repeatedly held that an issue must be presented to the trial court at the earliest opportunity in order to preserve it for appeal, Walker v. State, 313 Ark. 478, 855 S.W.2d 932 (1993). By going to trial without objection to the manner in which the jury was impaneled, the appellant must be deemed to have waived any irregularity in the order of selecting the jury. Bowlin v. State, 175 Ark. 1115, 1 S.W.2d 553 (1928). In order to preserve objections regarding any irregularities affecting the selection or summoning of the jury panel, a timely objection must be made. See Edens v. State, 235 Ark. 996, 363 S.W.2d 923 (1963); Underdown v. State, 220 Ark. 834, 250 S.W.2d 131 (1952). Here, there was nothing timely about Gidron’s objections. Moreover, the burden of obtaining a ruling from the trial court is upon the movant, and unresolved questions and objections are therefore waived and may not be relied upon on appeal. Patrick v. State, 314 Ark. 285, 862 S.W.2d 239 (1993).

In short, the burden is on the appellant to provide a record sufficient to show that reversible error occurred. Kittler v. State, 304 Ark. 344, 802 S.W.2d 925 (1991). This was not done in this instance.

Admission of Photograph of Deceased

In his next argument, Gidron contends that the court erred in admitting exhibit three, a photo of the deceased, for the jury’s consideration. This objection was preserved, but Gidron failed to give a basis for the objection. According to Arkansas Rule of Evidence 103(a)(1), an error may not be predicated upon a ruling admitting evidence unless there was a timely objection stating the specific ground for objection, if the specific ground was not apparent from the context. Here the photograph in issue was of the deceased’s head and torso. However, Gidron had no objection to admission of photos of the bullets removed from Mr. Houston’s body and a closeup shot of his abdomen to show his fatal wound. Therefore, the specific ground for his objection to exhibit three is not clear.

Regardless, Gidron has failed to demonstrate how this photograph was prejudicial. He contends that the photo was irrelevant and was used to portray the victim as old and frail. Since the jury had already been informed that Mr. Houston was 67 years old and in bad health, these characterizations of the victim were not unique. Besides, admission of evidence is within the discretion of the trial judge, and he will not be reversed absent a showing of abuse of that discretion. Moore v. State, 315 Ark. 131, 864 S.W.2d 863 (1993); Kellensworth v. State, 278 Ark. 261, 644 S.W.2d 933 (1983). Gidron has failed to establish that the trial judge abused his discretion in admitting the photograph into evidence.

Failure to Direct a Verdict

Gidron also claims that the court erred in refusing to grant him a directed verdict as to the charge of first-degree murder. Even though he was only convicted of second-degree murder, he contends that if the court had granted his directed verdict motion, then the jury might have given him less than second-degree murder. Gidron has failed to show how he was prejudiced. Besides, we have held that where the defendant’s request to reduce his charge from first- to second-degree murder was denied, error, if any, was cured by the jury finding him guilty of a lesser charge. Montgomery v. State, 277 Ark. 95, 640 S.W.2d 108 (1982).

Refusal to Instruct on Lesser Included Offense

Lastly, Gidron complains that the court erred in refusing to give his proffered jury instruction as to negligent homicide. However, this was not error, for we have stated that “where a lesser included offense has been the subject of an instruction and the jury convicts of the greater offense, error resulting from a failure to give instructions on the lesser included offense is cured.” Branscomb v. State, 299 Ark. 482, 489, 774 S.W.2d 426, 429 (1989).

Applying Branscomb to the facts before us, we note that the jury was instructed as to murder in the first degree, second degree, as well as on manslaughter, and, the jury found Gidron guilty of murder in the second degree. Thus, there is no reason to believe that the jury would have found Gidron guilty of a negligent act, and we hold that the jury instruction was not supported by the facts.

Affirmed.

Corbin, J., not participating.

      Per our revised Ark. R. Crim. P. 36.9, Ark. R. App. P. 4(c) does not apply to Rule 37 petitions for post-conviction relief.


source: Caselaw Access Project

author: Jack Holt, Jr., Chief Justice.

license: Public Domain

text:
    Michael D. HUDSON v. STATE of Arkansas
    CR 93-1132
    872 S.W.2d 68
    Supreme Court of Arkansas
    Opinion delivered March 21, 1994

      Callahan, Bachelor, Newell & Oliver, by: Steven D. Oliver, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, Michael D. Hudson, was sentenced to a cumulative term of imprisonment of thirty-two years for the offenses, committed as a habitual offender, of possession of a controlled substance with intent to deliver and possession of drug paraphernalia. He raises a single point for reversal, arguing that the trial court erred in denying his motion to suppress evidence seized as a result of an unlawful traffic stop and arrest. Finding no merit in his claim, we accordingly affirm the judgment of the circuit court.

During the first week of February 1993, Officer Richard W. Wiggins of the South Central Drug Task Force received three reports from confidential informants on activities of the appellant, Michael D. Hudson. On February 1, 1993, an informant advised Officer Wiggins that Hudson had been seen with a quantity of Lysergic Acid Diethylamide (LSD) and a clear plastic bag of marijuana in his possession at the Arkadelphia house shared by Hudson and Kathleen Freeman. An informant notified Officer Wiggins on February 4, 1993, that Hudson had sold the informant a quantity of LSD, the identification of which was presumptively confirmed through a field test.

On February 6, 1993, Officer Wiggins received information from a confidential informant that the informant had just observed Hudson and another person at the Arkadelphia residence of David Pennington in possession of marijuana and in the act of processing and packaging the controlled substance for sale in “quarter bags.” The informant also advised the Task Force officer that Hudson was in possession of cocaine and that he would be traveling in a two-door 1977 Buick Electra. Approximately one hour later, Officer Wiggins and other law enforcement officers, acting upon the information received, stopped an orange 1977 Buick Electra in Arkadelphia and immediately arrested Hudson.

Four bags of marijuana were found stuffed inside the waistband of Hudson’s pants, and a cigarette package in Hudson’s jacket pocket, containing two hand-rolled cigarettes which proved to be marijuana, was also seized. In the vehicle, officers discovered a set of hand scales, a box of zip-lock plastic bags, a package of cigarette rolling papers, a box of .38-caliber ammunition, and a box of .25 caliber ammunition.

Hudson was charged by information with possession of a controlled substance (marijuana) with intent to deliver in violation of Ark. Code Ann. § 5-64-401 (Repl. 1993), possession of drug paraphernalia in violation of Ark. Code Ann. § 5-64-403 (Repl. 1993), and being a habitual offender with seven prior convictions in violation of Ark. Code Ann. § 5-4-501 (Repl. 1993). On May 12, 1993, Hudson filed a motion to suppress evidence taken from his person and from the car he was driving, a motion to suppress evidence seized at Freeman’s residence, a motion to dismiss for lack of probable cause to arrest, and a motion to compel disclosure of confidential informant. The circuit court denied all the motions, and Hudson was tried by a jury and convicted on all charges on June 18, 1993.

On appeal, Hudson contends that the trial court erred in denying his motions to suppress evidence seized as a result of his arrest following an illegal “traffic stop.” He asserts that the first motion to suppress was cast in the form of a motion to dismiss for lack of probable cause to arrest and that the second motion was predicated on the lack of probable cause for a warrantless search following the “traffic stop.”

Hudson focuses upon the criteria for warrantless arrests and vehicular searches set forth in Ark. R. Crim. P. 4.1 and 14.1. Under Ark. R. Crim. P. 4.1:

(a) A law enforcement officer may arrest a person without a warrant if the officer has reasonable cause to believe that such person has committed
(i) a felony. . . .

Rule 14.1 provides, in pertinent part:

(a) An officer who has reasonable cause to believe that a moving or readily movable vehicle is or contains things subject to seizure may, without a search warrant, stop, detain, and search the vehicle and may seize things subject to seizure discovered in the course where the vehicle is:
(i) on a public way or waters or other area open to the public. . . .

The same standards govern reasonable (that is to say, probable) cause determinations, whether the question is the validity of an arrest or the validity of a search and seizure. Perez v. State, 260 Ark. 438, 541 S.W.2d 915 (1976). Because the arrest and the search in the present case were based on the same information supplied to the South Central Drug Task Force, we consider the two occurrences together.

The principal law enforcement officer involved in the arrest was Richard Wiggins, who testified at the hearing held on the motion to suppress evidence that he had received information from two confidential informants that Hudson “had been dealing drugs in Arkadelphia.” On February 6, 1993, the day of the arrest, one of the informants notified Officer Wiggins that Hudson had been processing and packaging marijuana at another person’s house and that he had cocaine in his possession and was traveling in a 1977 Buick Electra in the Arkadelphia area. The informant identified the vehicle’s tag number.

Officer Wiggins stated that the informant who had furnished the information on February 6 had previously provided him with information that resulted in at least a dozen cases and had worked with the Arkansas State Police on “hundreds” of cases. He described the informant as “[v]ery reliable and trustworthy.” According to Officer Wiggins, he and the other officers acted immediately to effect the arrest of Hudson as they were “hoping to catch the drugs on him before they hit the streets.” The officers performed what is known as a “felony stop,” with lights and sirens on, guns drawn, and handcuffs ready. Subsequently, Officer Wiggins prepared an affidavit for a search warrant to be executed at Hudson’s Arkadelphia residence based on information received prior to the arrest.

Despite the fact that no cocaine was found in the car or on Hudson’s person or at Hudson’s and Freeman’s residence, Officer Wiggins maintained that he believed the information was reliable. “I just don’t know what happened to the drugs [i.e., the cocaine] in between the time I received the call and he was stopped,” the Task Force officer explained. An hour had elapsed from the time Officer Wiggins received the information that Hudson was traveling with cocaine in an automobile until the felony stop was made. It is conceivable that, during that period, Hudson might have had the opportunity to dispose of the cocaine in some fashion. Both the suspect, who was arrested, and his vehicle, which was searched, were mobile in the critical hour following Officer Wiggins’s receipt of the informant’s report. And, more to the point, at the time his car was stopped, Hudson was found in possession of a controlled substance, namely marijuana.

As Ark. R. Crim. R 4.1 states, and as we have often held, a law enforcement officer may arrest a person without a warrant if the officer has reasonable cause to believe that person has committed a felony. Chism v. State, 312 Ark. 559, 853 S.W.2d 255 (1993). Reasonable, or probable, cause for a warrantless arrest exists when the facts and circumstances within an officer’s knowledge are sufficient to permit a person of reasonable caution to believe that an offense has been committed by the person to be arrested. Crail v. State, 309 Ark. 120, 827 S.W.2d 157 (1992); Burks v. State, 293 Ark. 374, 738 S.W.2d 399 (1987); Roderick v. State, 288 Ark. 360, 705 S.W.2d 433 (1986). Probable cause to arrest without a warrant does not require the degree of proof sufficient to sustain a conviction. Chism v. State, supra.

On appeal from a trial court’s ruling on a motion to suppress evidence, this Court makes an independent determination based on the totality of the circumstances and reverses only if the trial court’s ruling was clearly against the preponderance of the evidence. State v. Blevins, 304 Ark. 388, 802 S.W.2d 465 (1991); Edwards v. State, 300 Ark. 4, 775 S.W.2d 900 (1989). All presumptions are favorable to the trial court’s ruling on the legality of the arrest, and the burden is on the appellant to demonstrate error. Friend v. State, 315 Ark. 143, 865 S.W.2d 275 (1993); Munnerlyn v. State, 292 Ark. 467, 730 S.W.2d 895 (1987). The determination of probable cause is to be based on the factual and practical considerations of everyday life upon which reasonable and prudent persons, as opposed to legal technicians, act. Hines v. State, 289 Ark. 50, 709 S.W.2d 65 (1986). In assessing the existence of probable cause, our review is liberal rather than strict. Id.

Taking a broad and practical view of the totality of the circumstances, we hold that Officer Wiggins had, under the terms of Ark. R. Crim. R 4.1, reasonable cause to believe that Hudson, at the time of his arrest, had committed a felony. The confidential informant had reported that, a short time before, Hudson and another person had been processing and packaging marijuana and that Hudson had departed in his car with cocaine in his possession. Earlier information, provided on February 1 and 4, 1993, indicated that Hudson was engaged in drug trafficking. Officer Wiggins emphasized the consistent reliability of the informant whose report led directly to the arrest and contemporaneous search on February 6, 1993. Under Ark. R. Crim. R 14.1, the law enforcement officers had reasonable cause to believe that the automobile which had been identified by the informant contained items subject to seizure without a warrant.

We hold that the trial court did not err in refusing to grant the motions to suppress the evidence taken from Hudson’s person and his vehicle.

Affirmed.

Corbin, J., not participating.


author: Jack Holt, Jr., Chief Justice. David Newbern, Justice,

text:
    Calvin THOMAS and Lorraine Thomas v. Paul CORNELL, M.D.
    93-906
    872 S.W.2d 370
    Supreme Court of Arkansas
    Opinion delivered March 21, 1994

      The Cortinez Law Firm, P.A., by: Robert S. Tschiener and Robert R. Cortinez, for appellants.

      Mitchell, Williams, Selig, Gates & Woodyard, by: Richard L. Angel and Amelia Mosely Russell, for appellee.
   Jack Holt, Jr., Chief Justice.

The trial court granted a motion to dismiss in favor of appellee, Paul Cornell, M.D., inasmuch as the applicable statute of limitation in medical malpractice actions limits claims to two years from date of wrongful act complained of, Ark. Code Ann. § 16-114-203 (Supp. 1993). Appellants, Lorraine and Calvin Thomas, urge us to reverse the trial court’s findings in this regard inasmuch as Ark. Code Ann. § 16-114-204 authorizes a ninety-day extension of this limitations period under circumstances relating to their claim. We disagree and affirm.

In May 1990, the Thomases discovered they were going to have a baby and employed Dr. Cornell as their obstetrician. During the pregnancy, Mrs. Thomas, according to her complaint, suffered considerable abdominal cramping, and on October 22, 1990, she advised Dr. Cornell that the pain was becoming more severe and asked for treatment. Dr. Cornell allegedly refused to provide treatment, prescribed medication, and, ultimately, told her that her pains were false labor and recommended ultrasonography. On October 27, 1990, Mrs. Thomas again called the doctor and told him that she had suffered severe abdominal cramping, but he only prescribed bedrest. At about 10:30 a.m. that day, Mrs. Thomas went into labor in her bathroom, without the attendance of a physician, and the baby fell on the floor, and, thereafter, died.

On October 20, 1992, nearly two years later, the Thomases sent Dr. Cornell a letter by certified mail notifying him that they were making a claim against him for medical negligence, and, on January 19, 1993. the Thomases filed their complaint against Dr. Cornell in circuit court.

In response, Dr. Cornell filed a motion to dismiss, explaining that pursuant to Weidrick v. Arnold, 310 Ark. 138, 835 S.W.2d 843 (1992), the requirement of a sixty-day notice letter being forwarded to a medical care provider prior to commencement of a medical malpractice action had been eliminated, and therefore, the ninety-day extension of the limitations period when notice letters were issued to medical care providers had likewise been “abolished.” Dr. Cornell further claimed that the applicable statute of limitations in medical malpractice actions, as provided in Ark. Code Ann. § 16-114-203 (Supp. 1993), remained as two years from date of the “wrongful act complained of.” The trial court agreed and granted Dr. Cornell’s motion. The Thomases appeal.

For their first argument for reversal, the Thomases contend that the trial court erred in dismissing their complaint because Weidrick merely negated the necessity of sending a right-to-sue letter when one is desiring to file suit against a physician for malpractice and did not provide for supersession of Ark. Code Ann. § 16-114-204 (b), which extended the two-year statute of limitations provided in Ark. Code Ann. § 16-114-203 by ninety days, thus making the filing of their claims timely.

Granted, we have encountered the notice requirement of this statute several times since its inception and have held it to be constitutional. See Jackson v. Ozment, 283 Ark. 100, 671 S.W.2d 736 (1984); Simpson v. Fuller, 281 Ark. 471, 665 S.W.2d 269 (1984); Gay v. Rabon, 280 Ark. 5, 652 S.W.2d 836 (1983). In Jackson, supra, we also held that the statute was not superseded by Ark. R. Civ. P. 3 but, instead, “adds an additional step to the proper commencement of a medical injury case provided under ARCP Rule 3.” Jackson, 283 Ark. at 101-103, 671 S.W.2d at 738.

More recently, in Weidrick v. Arnold, 310 Ark. 138, 835 S.W.2d 843 (1992), noting the court’s adoption of the Super-session Rule, we reevaluated our position on § 16-114-204 and overruled Jackson on that point, holding that Ark. R. Civ. P. 3 directly conflicts with and supersedes Ark. Code Ann. § 16-114-204 (1987, Supp. 1991) with respect to the commencement of civil actions.

In Weidrick we stated:

We can think of few rules more basic to the civil process than a rule defining the means by which complaints are filed and actions commenced for a common law tort such as medical malpractice. The express intent of the Arkansas Constitution and Act 38 of 1973 is for the governance of the procedure of the courts of this state to fall within the power and authority of the Arkansas Supreme Court. How civil actions are commenced is a fundamental cog in that procedural wheel.
We hold, therefore, that Rule 3 directly conflicts with and supersedes Ark. Code Ann. 16-114-204 (1987, Supp. 1991) with respect to the commencement of civil actions.

Weidrick, 310 Ark. at 146, 835 S.W.2d at 847-848.

The crux of the issue before us now is whether we intended in Weidrick to hold that Rule 3 supersedes all of Ark. Code Ann. § 16-114-204 or merely section (a), concerning the commencement of the civil action, thus leaving section (b), relating to the statute of limitation, intact. In answering this issue, we first focus on both subsections of Ark. Code Ann. § 16-114-204 (Supp. 1993), which provide:

(a) No action for medical injury shall be commenced until at least sixty (60) days after service upon the person or persons alleged to be liable, by certified or registered mail to the last known address of the person or persons allegedly liable, of a written notice of the alleged injuries and the damages claimed. Provided, service of the written notice of the alleged injuries and damages claimed may also be made by hand delivery.

(b) If the notice is served within sixty (60) days of the expiration of the period for bringing suit described in § 16-114-203, the time for commencement of the action shall be extended ninety (90) days from the service of the notice. When service is by certified or registered mail, the date of service of the notice shall be the date of the mailing of the written notice.

The primary rule in the construction of a statute is to ascertain and give effect to the intent of the legislature, and in determining legislative intent, we look to the language of the whole statute or act. Shinn v. Heath, 259 Ark. 577, 535 S.W.2d 57 (1976). In order to give effect to every part of a statute, it is the court’s duty, as far as practicable, to reconcile the different provisions so as to make then consistent, harmonious, and sensible. Id.

We have held that where the purpose of a statute is to accomplish a single object, and some of its provisions are invalid, the entirety must fail unless sufficient language remains to effect the object without the aid of the invalid portion. As we explained in Allen v. Langston, 216 Ark. 77, 224 S.W.2d 377 (1949):

But if its (the statute’s) purpose is to accomplish a single object only, and some of its provisions are void, the whole must fail, unless sufficient remains to effect the object without the aid of the invalid portion. And if they are so mutually connected with and dependent on each other, as conditions, considerations, or compensations for each other, as to warrant the belief that the Legislature would not pass the residue independently, then if some parts are unconstitutional, all of the provisions which are thus dependent, conditional, or connected must fall with them.

Allen, 216 Ark. at 85, 224 S.W.2d at 381 (citing Oliver v. Southern Trust Co., 138 Ark. 381, 212 S.W. 77 (1919)).

Arkansas Code Annotated § 16-114-204 has a single object — to promote the settlement of actions against medical care providers prior to the initiation of the lawsuit. See Gay v. Rabon, 280 Ark. 5, 652 S.W.2d 836 (1983). Applying the analysis of Allen to the facts before us, it is clear that the notice requirement of section (a) was a condition of section (b), which provided an extension to the two-year statute of limitations. Thus, these sections are dependent upon one another, and, accordingly, to have held in Weidrick that section (a) is superseded in its application is to render the entire statute superseded.

For their next argument for reversal, the Thomases contend that even if Weidrick affects the statute of limitations, it should be applied prospectively rather than retroactively. Although the Thomases questioned below when an appellate court decision becomes effective, they did not specifically question whether a decision should be applied retroactively or prospectively. Since the Thomases failed to raise this issue of prospective or retroactive application of a supreme court decision before the trial court, it is waived on appeal. Green v. State, 313 Ark. 87, 852 S.W.2d 110 (1993); Daley v. Boroughs, 310 Ark. 274, 835 S.W.2d 858 (1992).

Lastly, the Thomases argue that they, and other similarly situated parties, are entitled to a reasonable period of time before being held accountable for an “alteration” of a limitations period brought about by a supreme court decision. However, our decision in Weidrick did not alter the limitations period for medical malpractice lawsuits — as before, the limitations period is still two years. Ark. Code Ann. § 5-114-203 (Supp. 1993). The.effect of Weidrick was only to eliminate a condition whose fulfillment provided an extension to the two-year limitations period for some ninety days. Therefore, the Thomases’ contention that they should not be held accountable for the “shortening” of the limitations period until a reasonable time after the opinion had been released is without merit because Weidrick did not, strictly speaking, shorten the limitations period.

Granted, we have upheld actions subject to a shortened limitations period where the parties had 104 days notice of the shortened period, Thomas v. Service Finance Corp., 293 Ark. 190, 736 S.W.2d 3 (1987); and ninety days. Steele v. Gann, 197 Ark. 480, 123 S.W.2d 520 (1939). Here, there was no shortening of the limitations period in which to bring a medical malpractice action. Thus, the matter of notice is a non-issue.

Affirmed.

Newbern and Dudley, JJ., dissent.

David Newbern, Justice,

dissenting. The basis of our decision in Weidrick v. Arnold, 310 Ark. 138, 835 S.W.2d 843 (1992), was that Ark. Code Ann. § 16-114-204 (1987) conflicted with Ark. R. Civ. R 3 because it added a condition for commencing a civil action for medical injury. The condition added was the requirement that a plaintiff wait 60 days after notifying the defendant before commencing an action for medical injury. The question here is whether our invalidation of the 60-day requirement for commencement of an action for medical injury caused the entire statute, including the statute of limitations extension, to be invalid.

The majority opinion, correctly I believe, notes that “where the purpose of a statute is to accomplish a single object, and some of its provisions are invalid, the entirety must fail unless sufficient language remains to effect the object without the aid of the invalid portion.”

Subtracting the 60-day delay requirement leaves a law that provides a 90-day extension of the statute of limitations when notice of the alleged injuries and damages claimed has been provided to a potential medical injury defendant. May the object of the statute be effected absent the invalid portion?

The object of the statute “is to encourage the resolution of claims without judicial proceedings, thereby reducing the cost of resolving claims and, consequently, the cost of malpractice insurance.” Cox v. Bard, 302 Ark. 1, 786 S.W.2d 570 (1990); Gay v. Rabon, 280 Ark. 5, 652 S.W.2d 836 (1983).

While the statute may no longer require that the notice be given 60 days before suit is filed, if only that part of it is excised, the extension of the statute of limitations remains, and it gives an incentive to provide the notice. Providing the notice serves the object we have attributed to the statute, so the statute should not be held to have been altogether invalidated.

I respectfully dissent.

Dudley, J., joins in this dissent.

      The Supersession Rule, which we adopted as part of the Arkansas Rules of Civil Procedure, provides, “All laws in conflict with the Arkansas Rules of Civil Procedure, Rules of Appellate Procedure and Rules for Inferior Courts shall be deemed superseded as of the effective dates of these rules.” Supersession Rule, Arkansas Court Rules p. 689 (1993).


author: Robert H. Dudley, Justice.

text:
    Earl BAUMGARNER v. STATE of Arkansas
    CR 93-383
    872 S.W.2d 380
    Supreme Court of Arkansas
    Opinion delivered March 21, 1994

      Chet Dunlap, for appellant.

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

Appellant, Earl Baumgarner, was arrested December 30, 1991, and charged with the kidnapping and first degree battery of Brenda Dixon. He abducted the victim at knifepoint from a convenience store in Fisher, cut her, and caused her to suffer a broken kneecap. Appellant was convicted of both charges and, as a habitual offender, received consecutive sentences of life imprisonment and forty years. We affirm the judgment of convictions.

Six of appellant’s seven assignments of error involve the denial of various motions made at trial. He does not question the sufficiency of the evidence, so we recite only the facts related to the motions. On March 31,1992, appellant filed a motion requesting a psychiatric examination. The trial court promptly ordered an examination. See Ark. Code Ann. § 5-2-305(a)(2) (Repl. 1993). Dr. Thomas Heissler, a forensic psychologist, went to the jail to conduct the examination, but appellant stated that he would not talk to him until he conferred with his attorney. Dr. Heissler could do nothing further and left without conducting the examination. Neither appellant nor his attorney made an effort to contact Dr. Heissler and let him know thát appellant was ready to proceed with the examination. On August 27, Dr. Heissler wrote the deputy prosecuting attorney that he had been unable to complete the examination.

The case was set for jury trial on November 23. A pre-trial hearing was held on November 16, 1992, and, at that time, appellant’s attorney stated that appellant had never been examined. The next day, November 17, another pre-trial hearing was held. Appellant’s sister testified that appellant was not competent to stand trial. The trial court ordered that a mental examination be conducted forthwith. Dr. Heissler returned to the jail and conducted a clinical interview, administered a Wechsler Adult Intelligence Scale-Revised test, reviewed statements of the victim, a deputy sheriff, and a friend of appellant’s, and looked at appellant’s “rap sheet.” Shortly thereafter, Dr. Heissler told the deputy prosecu-' tor that his preliminary evaluation was that appellant was competent to stand trial and knew the difference between right and wrong at the time he committed the crimes. The deputy prosecutor passed this information on to appellant’s attorney. Meanwhile, on November 18, yet another pre-trial hearing was conducted, this time to determine whether appellant should be granted a change of venue. The trial court denied the motion. At this same hearing the State sought, and was granted, permission to amend the information to allege that the kidnapping was done to “terrorize another” and to allege that appellant was a habitual offender.

By November 20, appellant’s attorney had not received a copy of Dr. Heissler’s written report, and he moved for a continuance on the ground that he had not received a copy of the report. Dr. Heissler called the deputy prosecutor on November 22 and told him the written report was completed. The deputy prosecutor drove to Dr. Heissler’s office in Wynne, got the report, drove back to Harrisburg, called appellant’s lawyer, and gave him a copy of the report at 6:00 that evening. The report was filed the next morning, the first day of appellant’s trial. Appellant again moved for a continuance, this time on the ground that he did not have adequate time to prepare his affirmative defense of lack of mental capacity. The trial court denied the motion.

Appellant’s first assignment is that the trial court erred in refusing to grant a continuance because the written psychiatric report was given to the defense attorney only fourteen hours before the trial began. The trial court’s ruling was based, in part, on facts stated by counsel in their argument on the motion, and those facts, along with the others shown by the pleadings, are as follows. As soon as appellant’s counsel mentioned the possibility of defense of mental disease the trial court ordered the examination. The forensic psychologist immediately attempted to conduct the examination, but was thwarted by the refusal of appellant to cooperate. This was on March 31. Appellant’s attorney did not notify the trial court that the examination had not been conducted until November 20, or just three days before the trial was set. When the trial court learned there had not been an examination, it ordered one conducted forthwith. The psychologist completed the examination the next day, and, by phone, told the deputy prosecutor the preliminary result. The deputy prosecutor immediately told appellant’s attorney of the preliminary report. The written report was received on November 22 and given to appellant’s attorney at 6 p.m. The written report conformed with the earlier preliminary statements that appellant was competent to stand trial. From this it is clear that, while the appellant’s attorney only received the written report fourteen hours before the trial commenced, he knew in advance what it would provide. In addition, the difficulties were caused by appellant’s refusal to submit to the tests at an earlier time and his failure to notify the trial court that the examination had not been conducted.

Appellant failed to exercise due diligence in obtaining the examination. Failure to exercise due diligence alone can be the basis to deny a motion for a continuance. Walls v. State, 280 Ark. 291, 658 S.W,2d 362 (1983). In addition, A.R.Cr.P. Rule 27.3 provides for the grant of a continuance “only upon a showing of good cause.” The denial of a motion for continuance is within the sound discretion of the trial court and will not be reversed absent a showing of abuse. Stone v. State, 290 Ark. 204, 718 S.W.2d 102 (1986). Appellant bears the burden of showing abuse and of demonstrating prejudice. Mann v. State, 291 Ark. 4, 722 S.W.2d 266 (1987). Appellant has failed to show that the trial court abused its discretion under these facts. Appellant has also failed to show that he was prejudiced by the denial of the motion because he was able to secure an examination and the testimony of a neuropsychologist on the issue of his competence.

Appellant’s next two assignments are that the court erred in allowing the State to amend the information to allege that he was a habitual offender and that the kidnapping was done to “terrorize another.” The habitual offender act is based on the concept that one who is a persistent offender warrants an increased punishment for the protection of the community. Finch v. State, 262 Ark. 313, 556 S.W.2d 434 (1977). Whenever the State seeks to charge a defendant as a prior offender in order to seek additional punishment, it is essential that a habitual offender allegation be included in the information. Id. at 316, 556 S.W.2d at 436. The purpose of this requirement is to give the defendant notice of the essential elements the State relies upon to assess punishment. Id; see also Baugh v. State, 256 Ark. 64, 505 S.W.2d 519 (1974).

It is well settled that an information may be amended up to a point after a jury has been sworn if it does not change the nature of a crime, or create unfair surprise. See Kilgore v. State, 313 Ark. 198, 852 S.W.2d 810 (1993); Wilson v. State, 286 Ark. 430, 692 S.W.2d 620 (1985). We have held that an amendment which adds an allegation of habitual offender does not change the nature or degree of the crime. Finch, 262 Ark. at 317, 556 S.W.2d at 436; Osborne v. State, 237 Ark. 170, 371 S.W.2d 518 (1963). Such an amendment simply authorizes a more severe punishment, not by creating an additional offense or an independent crime, but by affording evidence to increase the final punishment in the event the defendant is convicted. Finch, 262 Ark. at 317, 556 S.W.2d at 436; see also Higgins v. State, 235 Ark. 153, 357 S.W.2d 499 (1962).

The sole question for the trial court to resolve is whether the defendant is unfairly surprised by such an amendment. We addressed an argument similar to the one at bar in Kilgore, in which the appellant urged reversal because the State was allowed to amend on the day of the trial, charging him as a habitual offender, and he did not “fully know the charges against him until the day of the trial.” 313 Ark. at 201, 852 S.W.2d at 812. We refused because Kilgore did not show that either he was unaware of the charges against him or surprised by the nature of the amendment. Id. We wrote that “[t]he fact that an amendment authorizes a more severe penalty does not change the nature or degree of the offense.” Id.

Similarly, in Traylor v. State, 304 Ark. 174, 177, 801 S.W.2d 267, 269 (1990), we refused to reverse for the addition of a habitual offender amendment when it was shown that the defendant had been given a “rap sheet” showing prior convictions, thus could not effectively argue surprise. See also Mann v. State, 291 Ark. 4, 722 S.W.2d 266 (1987).

A similar situation exists in this case. There was ample evidence that appellant’s attorney knew he was a prior offender and that the attorney was not surprised by the amendment. At a pretrial hearing appellant’s sister testified that he had been incarcerated in California on more than one occasion for various crimes, and appellant’s attorney acknowledged that the deputy prosecutor had given him a copy of appellant’s lengthy “rap sheet.” The deputy prosecutor previously stated that he would seek to amend the information if the certified copies of the convictions were received from the State of California before the trial commenced. In sum, there was no showing of unfair surprise by the amendment.

The trial court did not err in allowing the State to amend the charge of kidnapping to allege that it was done for the purpose of “terrorizing another.” An amendment may be made, with permission of the trial court, so long as it does not change the nature of the crime charged or the degree of the crime charged. Ark. Code Ann. § 16-85-407 (1987); Prokos v. State, 266 Ark. 50, 282 S.W.2d 36 (1979). This amendment did not change the nature of the alleged kidnapping, rather it amended only the manner of the alleged commission of the crime of kidnapping. See Jones v. State, 275 Ark. 12, 627 S.W.2d 6 (1982). Appellant additionally argues that, even if allowing the amendment was not error, the refusal to grant a continuance after the amendment was error. Again, the burden is on appellant to show that the trial court abused its discretion and that he was prejudiced. David v. State, 295 Ark. 131, 748 S.W.2d 117 (1988). Appellant failed to make such a showing. In his argument to the trial court, appellant’s attorney stated that he needed additional time to “investigate this ‘terrorizing another’ [so as to] be able to defend on it.” However, the trial court was aware that the original information contained the allegation that appellant restrained the victim and interfered with her liberty. Thus, appellant had fair notice that the State was accusing him of using physical force on the victim and should not have been surprised when he was charged with “terrorizing” her.

Appellant additionally argues that the trial court erred in not granting a continuance after allowing the amendments, but since there was no surprise to appellant, there was no error in refusing to grant a continuance. Appellant contends that until the written report on competency was received, it was not necessary to prepare his defense of mental defect, and, by the time it was received, he needed more time to secure witnesses for that affirmative defense. The argument is without foundation for either of two reasons. First, appellant did not exercise due diligence because he did not disclose that he planned to offer an affirmative defense even though he had been ordered to disclose the names of his witnesses. Sécond, while the court did not grant a continuance, it did grant a recess from November 24 until November 30, and, during that time, appellant employed Dr. William Wilkins, a neuropsychologist, who testified that appellant was unable to conform his behavior to the law. Thus, appellant has not shown any possible prejudice.

Appellant next contends that trial court erred in refusing to grant a change of venue. He testified that he is a distant relative of an infamous convicted felon, and, because of the stigma attached to his name, it was impossible to assemble an impartial jury in Poinsett County. His motion was supported by affidavits of three disinterested residents of the county. However, the distant relative’s conviction was ten years earlier, and the witnesses did not state that they had a general knowledge of the state of mind of the county’s inhabitants, nor did they state that they were aware of prejudice throughout the county.

The defendant carries the burden of proof in showing that a court has abused its discretion in denying a change of venue. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). A change of venue should be granted only when it is clearly shown that a fair trial is not likely to be had in that county. Id. at 53, 754 S.W.2d at 523. This court has held that witnesses who testify in support of a change of venue must be able to show that they have a general knowledge of the state of mind of the county’s inhabitants, or that they are aware of prejudice throughout the county. McArthur v. State, 309 Ark. 196, 830 S.W.2d 842 (1992). Appellant’s witnesses did state that they were aware of prejudice existing throughout the area, but they admitted that they had not discussed the matter with anyone lately. The trial court had the opportunity to observe these witnesses and to determine the weight of their testimony. We have repeatedly emphasized this opportunity in deciding whether the trial court abused its discretion. McArthur, 309 Ark. at 203, 830 S.W.2d at 846; Gardner, 296 Ark. at 52, 754 S.W.2d at 523; Hill v. State, 275 Ark. 71, 628 S.W.2d 284 (1982).

We have also said that there is no error in refusing a change of venue if voir dire shows that an impartial jury has been selected. Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982). Voir dire is omitted from the record, and, accordingly, appellant cannot demonstrate error.

Appellant also contends the trial court erred in finding that he was mentally competent to stand trial. The trial court held a hearing on the matter, and Dr. Heissler testified that the Wechsler Adult Intelligence Scale-Revised test showed that appellant’s verbal intelligence quotient was 85 and that he had a good vocabulary. Based on this data, the interview of appellant, and other records, he concluded that appellant was able to understand the proceedings against him and was able to assist in his defense. Appellant put on the testimony of five lay witnesses who testified that appellant was not communicative, was withdrawn, and seemed to lack all emotion. Four of the lay witnesses, who were jail inmates, testified that he was “not right in the head.” The fifth witness, his sister, testified that he did not remember committing the crimes. The trial court concluded that appellant was competent to stand trial.

The test of competency to stand trial is whether a defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational, as well as factual, understanding of the proceedings against him. Lipscomb v. State, 271 Ark. 337, 609 S.W.2d 15 (1980). Dr. Heissler’s testimony and the test results support the finding that appellant had a present ability to communicate with his lawyer and that he understood the proceedings. While there was testimony that appellant did not remember the crime, the psychologist’s report expressed doubt about appellant’s truthfulness. In addition, lack of memory alone cannot serve as a basis for a finding an accused incompetent to stand trial. See Rector v. State, 277 Ark. 17, 638 S.W.2d 672 (1982). An accused is presumed competent to stand trial, and the burden of proving incompetence is on the accused. Mask v. State, 314 Ark. 25, 858 S.W.2d 108 (1993). Appellant failed to meet this burden, and the trial court’s ruling was based upon substantial evidence.

Appellant next argues that the trial court erred in refusing to direct a verdict for him on his affirmative defense of lack of mental capacity. The State proved the elements of both crimes. After the State met its burden of proving the elements of an offense beyond a reasonable doubt, the burden shifted to the defendant to prove the affirmative defense by a preponderance of the evidence. Mask, 314 Ark. at 28, 858 S.W.2d at 110; Walker v. State, 308 Ark. 498, 825 S.W.2d 822 (1992). The question is one for the jury, and the judge may direct a verdict only if no factual issue exists. Franks v. State, 306 Ark. 75, 811 S.W.2d 301 (1991). The question for a reviewing court to resolve on a denial of a directed verdict is whether there is substantial evidence to support the verdict. Mask, 314 Ark. at 28, 858 S.W.2d at 110; Davasher v. State, 308 Ark. 154, 823 S.W.2d 863 (1992).

To succeed on his affirmative defense, appellant had to show by a preponderance of the evidence that, at the time of the kidnapping and battery, “he lacked capacity, as a result of mental disease or defect, to conform his conduct to the requirements of the law or to appreciate the criminality of his conduct.” Ark. Code Ann. § 5-2-312(a) (Repl. 1993). In his attempt to meet this burden, appellant presented testimony from three fellow inmates, his sister, and Dr. William E. Wilkins, a neuropsychologist. The inmates each testified that they had concluded, upon observing appellant’s behavior while they were in jail with him, that he did not know right from wrong, and that something was “bad wrong” with him. His sister, Ms. Runyon, testified that, based on her observations of her brother’s noncommunicative and depressed behavior around the time of the crime, she believed he lacked capacity to obey the law. Dr. Wilkins, who had examined appellant during the time of the trial, testified that, although appellant knew right from wrong, it was his opinion that he was unable to control his behavior. He had concluded that appellant had some brain damage and an organic personality disorder, which, when coupled with the long-term effects of alcohol abuse, rendered appellant unable to conform his behavior to the law.

In rebuttal, the State presented testimony from Dr. Thomas Heissler, the forensic psychologist who had examined appellant in jail. Dr. Heissler disagreed with Dr. Wilkins that appellant had brain damage. He concluded that the actions, statements, and test results supported a finding of mental capacity to obey the law.

As is obvious, the above-recited testimony was disputed. Therefore, the trial court did not err in submitting it to the jury, and there was substantial evidence to support the jury’s decision that appellant was not mentally incompetent at the time of the kidnapping and battery. Traylor v. State, 304 Ark. at 178, 801 S.W.2d at 270.

Appellant’s final argument is that the convictions should be reversed because of cumulative error. We summarily dismiss the argument because there was no such motion made at the trial level. Even if such motion were made, we have said that we will entertain the argument of cumulative error only in rare and egregious cases. Vick v. State, 314 Ark. 618, 863 S.W.2d 820 (1993). Clearly, this case would not reach that level.

Because of the sentence in this case, an examination of the record has been made in conformity with Rule 4-3 (h) of the Rules of the Supreme Court, and we find no reversible error on other rulings that were adverse to appellant.

Corbin, J., not participating.


text:
    Thomas Randall COOK v. STATE of Arkansas
    CR 93-1245
    872 S.W.2d 72
    Supreme Court of Arkansas
    Opinion delivered March 21, 1994

      William R. Simpson, Jr., Public Defender, by: Phyllis A. Edwards, for appellant.

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

Appellant was convicted of rape, kidnapping, and terroristic threatening. His sentence was enhanced because he is a habitual criminal. He appeals. We affirm the judgment of convictions.

Since appellant does not question the sufficiency of the evidence, we need not recite the details of the crimes. In appellant’s first point of appeal, he contends that the trial court erred in refusing to declare a mistrial after a comment by the deputy prosecutor. The comment, made in closing argument, related to the trustworthiness of an alibi witness who had testified that appellant was at her home, rather than at the scene of the crimes, when the crimes were committed. The alibi witness testified that she remembered the exact date because it was the date her boyfriend’s family flew into Little Rock from Chicago. She testified that her boyfriend, Richard, confirmed the date by calling his relatives and having them check their airline tickets.

In closing argument, the deputy prosecutor argued that the witness did not know the exact date appellant was in her home. He questioned the source of the confirmation of the date and asked: “Where’s Richard? Where’s the boyfriend? Where is Richard? Richard is working in town today, presumably could have been subpoenaed.” Defense counsel objected and stated that the argument implied that it was up to the accused to prove his innocence and moved for a mistrial. The trial court denied the motion for a mistrial and instructed the jury:

Ladies and gentlemen of the jury, the defendant is not required to prove his innocence. He’s not required to subpoena any particular individual for any reason. He does not have to do any of that. And I want to read for emphasis an instruction I’ve already given.
There is a presumption of the defendant’s innocence in a criminal prosecution. In this case Thomas Cook is presumed to be innocent. That presumption of innocence attends and protects him throughout the trial and should continue and prevail in your minds until you are convinced of his guilt beyond a reasonable doubt.

A mistrial is an extreme remedy that should only be granted when justice cannot be served by continuing the trial. Taylor v. State, 303 Ark. 586, 799 S.W.2d 519 (1990). A mistrial is only appropriate when the error is beyond repair and cannot be corrected by any curative relief. Hall v. State, 314 Ark. 402, 862 S.W.2d 268 (1993). A trial court has broad discretion in granting or denying a motion for a mistrial, and the trial court’s decision will not be reversed absent abuse of that discretion. Id-la addition, we have said that a trial court has discretion to control closing argument and is in a better position to determine the possibility of prejudice by observing the argument firsthand. Woodruff v. State, 313 Ark. 585, 592, 856 S.W.2d 299, 303 (1993). This court will not reverse the action of a trial court in matters pertaining to its control, supervision, and determination of the propriety of arguments of counsel in the absence of manifest gross abuse. Id.

The trial court did not abuse its considerable discretion in the ruling in this case. The comment was not about the accused’s failure to testify in violation of his Fifth Amendment privilege against self-incrimination. See Aaron v. State, 312 Ark. 19, 846 S.W.2d 655 (1993). Rather, it was about the trustworthiness of a witness’s recollection of a date and her confirmation of that date. At most, it was an attempt to shift the burden of proof, and we cannot say that the trial court erred in determining that the instruction remedied that wrong.

In his second point of appeal appellant contends that the trial court erred in limiting his cross-examination of the prosecutrix. Appellant’s attorney attempted to question the victim about an attempted suicide that occurred three months before the crimes were committed. The State objected, and the trial court ruled that an attempted suicide three months earlier was not relevant to the crimes charged. Appellant made a proffer that if he were allowed to question the prosecutrix, he would show that the attempted suicide was really an attempt to get attention and that the prosecutrix’s allegations in this case were made for the same reason. Appellant argued that the questions should be allowed to show motive of the victim to fabricate her story and cited A.R.E. Rule 404(b). On appeal appellant contends that honesty is a character trait and that he should have been allowed to question the prosecutrix’s trait for honesty. In support of his argument he cites Kellensworth v. State, 275 Ark. 252, 631 S.W.2d 1 (1982). We summarily dismiss the point. The argument made at trial involved Rule 404(b), and that rule is not applicable. Further, a ruling on relevancy is discretionary and will not be reversed by an appellate court absent an abuse of discretion. Owens v. State, 313 Ark. 520, 856 S.W.2d 288 (1993).

Affirmed.

Corbin, J., not participating.


text:
    FARM CREDIT BANK of St. Louis v. Bob MILLER and Karon Miller
    93-652
    872 S.W.2d 376
    Supreme Court of Arkansas
    Opinion delivered March 21, 1994
    [Rehearing denied April 25, 1994.]

      Friday, Eldredge & Clark, by: Richard D. Taylor, for appellant.

      David Hodges and Bay Fitzhugh, for appellees.

      Corbin, J., not participating.

   Robert H. Dudley, Justice.

Appellees Bob and Karon Miller, a real estate agent and a real estate broker who own Miller Realty in Bald Knob, filed suit against the Farm Credit Bank of St. Louis. They pleaded that they had a real estate sales agreement with Farm Credit and were entitled to receive a commission for the sale of a tract of land owned by Farm Credit. They alleged that Farm Credit refused to pay the agreed commission and asked damages for tortious interference with contractual relations and breach of contract. The trial court directed a verdict against the Millers on the tort claim, but let the contract claim go to the jury. The jury found that the Millers were the procuring cause of the sale and returned a verdict for them in the amount of $88,000. Farm Credit files a direct appeal, and the Millers file an alternative cross-appeal. We affirm on direct appeal and do not reach the alternative cross-appeal.

Appellant Farm Credit first argues that there was no substantial evidence to support the verdict. The facts, viewed most favorably to appellee Millers, as we must do, are as follows. Farm Credit owned a 3,700 acre farm in Woodruff County that was known as the Little Dixie Farm. In late 1988, the Millers asked Farm Credit employee Jack Runsick about listing the farm for sale. As a result, they obtained a nonexclusive contract, under which they were to receive four percent of the sale price as their commission if the property was sold to a prospect the Millers had listed with Farm Credit. On December 12, 1988, the Millers confirmed the agreement by letter and registered twenty-three prospects, including the United States Fish and Wildlife Service. The Millers also testified that they later mailed to Farm Credit a photocopy of the December 12 letter with the handwritten notation that the Nature Conservancy was to be added as a registered prospect.

The Millers often corresponded with the federal agency in order to pique its interest. They sent brochures, made aerial photographs showing the suitability of the tract for wildlife, advised the agency of the flood plain, and kept the agency advised of potential buyers. The Millers made fifty to sixty telephone calls to the agency and Farm Credit. Their contact with the agency was through John Yount of its Atlanta, Georgia, office. Yount testified that after receiving the informational packets and aerial photographs, the agency determined that it had a real interest in the tract because it was within the ten-year flood plain and was within the acquisitional boundary of the Cache River National Wildlife Refuge. The agency subsequently classified the tract as a priority purchase and obtained authority to acquire the property.

The agency did not have an appropriation for the purchase of the land that fiscal year. A plan was devised by which Nature Conservancy, a private organization that acquires land for wildlife refuges, would purchase the farm and hold it until the agency could purchase it. Yount and Nancy Delamar of Nature Conservancy both testified that the two organizations had an ongoing and cooperative relationship through which Nature Conservancy bought land and held it until the agency was able to purchase it.

Tom Norsworthy replaced Jack Runsick as Farm Credit’s local employee, and on March 7, 1989, Yount contacted Norsworthy for permission to appraise the property. Norsworthy gave Yount approval for the appraisal on March 10, 1989.

Meanwhile, on February 7, 1989, Miller Realty had written E. M. Radcliffe about duck hunting properties and mentioned that the federal agency was in the process of acquiring the farm. Soon thereafter, in March 1989, Tim Streeter, an associate of Radcliffe, and Gordon Brent met with Jim Miller, an agent of Miller Realty, and discussed the agency’s interest in acquiring the land. Gordon Brent corresponded with the federal agency about its desire to'purchase the land. Streeter and Brent knew that the agency wanted the land and formed a corporation, Little Dixie Planting Company, for the purpose of purchasing the farm. A jury could fairly infer that Little Dixie Planting was formed for the purpose of reselling the land to the federal agency. In April 1989, Little Dixie Planting signed a contract with Farm Credit to purchase the farm for 2.2 million dollars. Little Dixie Planting had only one asset, a $100,000 certificate of deposit that had been in the name of Gordon Brent. Its officers cashed the certificate and paid $100,000 to Farm Credit upon signing the agreement. The remainder was to be paid at closing.

It was at about this same time that the federal agency asked Nature Conservancy to acquire the land. Nature Conservancy contacted Tim Streeter and sought an assignment of Little Dixie Planting’s contract. Streeter contacted Farm Credit to see if he could assign the contract to Nature Conservancy. Farm Credit advised Streeter that it would not authorize an assignment of the contract from Little Dixie Planting to Nature Conservancy.

The closing of the sale took place on August 15, 1989. At that time, Nature Conservancy advanced $2,346,000 to Streeter and Little Dixie Planting. Farm Credit deeded the land to Little Dixie Planting for $2,200,000, and Little Dixie Planting, in turn, deeded the land to Nature Conservancy for the $2,346,000. The federal agency was to buy the land from Farm Credit as “migratory bird money” became available. On October 10, 1991, Nature Conservancy conveyed 1,152.96 acres of the tract to the federal agency for $663,000 and on January 31, conveyed all but 300 of the remaining acres to the federal agency for $1,019,363.

Arkansas, along with the majority of jurisdictions, has long adhered to the procuring cause doctrine to determine whether a real estate broker is entitled to a commission. See Hodges v. Bayley, 102 Ark. 200, 143 S.W. 92 (1912); see also Luther Zeigler, Brokers and Their Commissions, 14 Real Est. L. J. 122, 123 (1985). This doctrine can be used affirmatively to infer a contract between the broker and the principal by allowing the broker to show that his part of the contract was performed and the principal reaped a benefit, or defensively to prevent broker fraud. See D. Barlow Burke, Jr., Law of Real Estate Brokers § 3.4 at 3:50, 3:54 (2d ed. 1992). It functions as a parol or extrinsic evidence rule to allow courts to look past the four corners of the listing agreement, and recovery under the doctrine is not dependent upon the express terms of the contract. Burke, supra, § 3.4 at 3:63; see also Hopper v. Denham, 281 Ark. 84, 663 S.W.2d 379 (1983); Hodges, 102 Ark. at 203, 143 S.W. at 93.

In determining whether a broker is entitled to a commission, this court has said that the determination is highly fact-dependent, and the court looks at the whole context of the relevant transactions. Schnitt v. McKellar, 244 Ark. 377, 427 S.W.2d 202 (1968). We have long recognized that a broker is not allowed to recover a commission when he merely performs one event in a chain of actions. He must be a proximate cause of the eventual sale rather than a mere incidental link, and the sale must be a ' result of his continuous course of conduct. Hatchett v. Story, 221 Ark. 120, 252 S.W.2d 78 (1952). However, he need not perform the actual sale to be due his commission; if this continuous course of conduct is demonstrated, he may still receive his commission even if he is excluded from the final transaction. Hopper, 281 Ark. at 87, 661 S.W.2d at 381; see also Barrett v. Land Mart of America, 3 Ark. App. 70, 621 S.W.2d 889 (1981); Storey v. Johnson, 270 Ark. 392, 605 S.W.2d 480 (Ark. App. 1980). Arkansas courts have found that a broker is due a commission if it appears that a sale to a third party is a straw transaction designed to avoid paying it. See McKay & Co. v. Garland, 17 Ark. App. 1, 701 S.W.2d 392 (1986).

The test is whether the Millers were the procuring, or efficient, cause of the sale to the federal agency. The Louisiana Court of Appeals set out factors that are helpful in this regard. In Farnsworth Samuel, Ltd. v. Grant, it wrote:

Some of the [factors which determine whether a broker procured a sale are]: whether the prospect who ultimately purchased the property knew about the property before being contacted by the broker; the relative success or failure of the negotiations conducted by the broker, including the continuity or discontinuity of the original and final negotiations, the length of time elapsing between the broker’s negotiations and the final sales agreement, and the development of a new, independent motive for prospect to purchase; whether or not the broker abandoned efforts to negotiate the transaction with a particular prospect; and, finally, the good or bad faith of the principal and the broker.

470 So. 2d 253, 254 (La. App. 1985). See also Lora C. Sykora, The Law of Real Estate Brokerage Contracts: The Broker’s Commission, 14 La. L. Rev. 847 (1981). In this case there was testimony that the federal agency was not interested in purchasing the land until contacted by the Millers, and once the agency became interested, the Millers continually worked toward the sale and never abandoned those efforts.

Farm Credit’s argument for reversal rests upon the express language of the listing agreement and the fact that the Millers did not register Little Dixie Planting, but such an argument ignores the procuring cause doctrine. The Millers do not claim that they registered Little Dixie Planting. Rather they claim that they were the procuring cause of the entire transaction that resulted in the sale to the federal agency. See Schnitt, 244 Ark. at 385, 427 S.W.2d at 207. Showing a continuous course of conduct leading to the sale can mean that a broker is due a commission. Hatchett, 221 Ark. at 123, 252 S.W.2d at 79-80. A broker can be due a commission even if the first sale is to a third party, if it can be shown that the first sale is a straw transaction. McKay & Co., 17 Ark. App. at 4, 701 S.W.2d at 394. There was substantial evidence that the Millers were the procuring cause of the federal agency’s purchase of the land.

In a related argument, Farm Credit contends that the Millers’ attorney, in closing argument, admitted the Millers did not register Little Dixie Planting and consequently there was not substantial evidence to support the verdict. Again, the argument is without merit because it ignores the procuring cause doctrine.

Farm Credit’s final argument is that the trial court erred in refusing to answer an inquiry from the jury. The facts surrounding the argument are as follows. The jury was instructed about the procuring cause doctrine as follows: “You are instructed that Arkansas adheres to the general rule that a broker is entitled to his or her commission if he or she is the procuring cause of an eventual sale between the owner and purchaser.” During deliberations, the jury foreman handed the bailiff a handwritten note requesting clarification. The note asked: “In the legal Instruction No. 6, the last part says ‘an eventual sale concluded between owner and purchaser.’ Is the owner interpreted to be the original owner or the owner at the time of the sale on the contract?” After a bench conference in which both parties stated their positions, the Court answered the inquiry by a note which said, “The Court is not permitted to respond to your inquiry.”

Farm Credit contends that the trial court abused its discretion in refusing to answer. Section 16-64-115 of the Arkansas Code Annotated of 1987 allows a jury to request further instruction during deliberations by requesting the bailiff to conduct them into court. Id. Whether to give the additional information is a matter for the trial court’s discretion. National Bank of Com merce v. HCA, 304 Ark. 55, 800 S.W.2d 694 (1990).

The trial court refused to answer the question because it would have been required to resort to speculation and conjecture to understand the exact question, and the jury’s inquiry may have involved a question of fact about who should be considered the owner for the purpose of the procuring cause doctrine. The instruction was given without objection. The trial court’s subsequent refusal to elaborate on the instruction under these circumstances did not amount to an abuse of discretion. There are no reversible errors on direct appeal, and, accordingly, we affirm.

The Millers filed a notice of cross-appeal and submitted briefs and arguments on cross-appeal, but made their arguments conditional on reversal of the direct appeal. The Millers state that their cross-appeal becomes moot if the case is affirmed on direct appeal. Since we affirm on direct appeal, we do not reach the conditional cross-appeal.

Corbin, J., not participating.


author: Steele Hays, Justice. Tom Glaze, Justice,

text:
    Steven GRIMES v. NORTH AMERICAN FOUNDRY
    93-722
    872 S.W.2d 59
    Supreme Court of Arkansas
    Opinion delivered March 21, 1994

      Walker Law Firm, by: Eddie H. Walker, Jr., for appellant.

      Davis, Cox & Wright, by: Paul H. Taylor, for appellee.
   Steele Hays, Justice.

This is a Workers’ Compensation case. Claimant/appellant is Steven Grimes. Respondents/appellees are North American Foundry and its carrier. Grimes sustained a compensable injury to his back on August 20, 1987. He received temporary total disability for three months and returned to his employment at the foundry on November 23. Fifteen months later he was laid off along with other employees.

An administrative law judge determined that Grimes had sustained a seventeen percent permanent partial disability, seven percent of which was attributable to an impairment rating and ten percent due to wage loss. Both parties appealed to the Commission, which remanded the case to the administrative law judge to determine whether Grimes was laid off as a result of his injury or for economic reasons.

The administrative law judge reinstated his previous award, at the same time finding that Grimes was laid off for economic reasons. North American Foundry appealed and the Commission, with one dissenting member, agreed with the seven percent anatomical impairment rating but held that Grimes had not suffered a loss in wage earning capacity attributable to his injury.

On appeal to the Court of Appeals, Grimes assigned three errors to the Commission: it erred in remanding the case to the administrative law judge for additional evidence, erred in denying benefits in excess of seven percent and erred in the interpretation of Ark. Code Ann. § 11-9-522 (1987). By a vote of three to three the Court of Appeals affirmed the Commission and, because of the tie vote, we granted Grimes’s petition to review the decision of the Court of Appeals. We now affirm the Commission.

I

Citing Gencorp Polymer Products v. Landers, 36 Ark. App. 190, 820 S.W.2d 475 (1991) and Ark. Code Ann. § 11-9-705(c)(l)(1987), Grimes argues the Commission abused its discretion in initially remanding the case to the administrative law judge for additional evidence when no request for a hearing for the introduction of additional evidence had been filed by either party. Grimes maintains the remand gave the appellee/respondent a second chance to present sufficient evidence to carry its burden of proof. Appellee points out in response that it was Grimes who benefitted from the remand because the burden of proof at that hearing rested on the claimant, not on the appellee.

In its ensuing opinion the Commission explained why the remand was warranted:

It appears that the significance of why we remanded this case may have been lost. The issue is whether the claimant has met his burden of proving by a preponderance of the evidence that he has suffered a loss in wage earning capacity. The question of whether claimant is laid off for economic reasons or as a result of his compensable injury is extremely relevant in determining whether the claimant has met his burden of proof.
* * * *
Further, this is a very important factor because if the claimant had not been laid off for economic reasons, he would still be earning the same wages or greater wages than those he was earning at the time of the accident. This indicates that the claimant’s earning capacity has not been diminished, as a result of his injury, but that he was simply laid off along with other employees of the company for economic reasons. While the claimant is currently working for D & N Machine making $5.25 or $5.50 per hour as opposed to $6.15 per hour he was earning when he was laid off, the claimant has offered insufficient proof that he took a lesser paying job because of his compensable injury.

Section ll-9-705(c)(l) provides that each party shall present all oral or documentary evidence at the initial hearing. It also provides that further hearings for additional evidence “will be granted only at the discretion of the hearing officer or the Commission.” The statute also provides that a request for a hearing must show the substance of the evidence to be presented.

Undoubtedly this section was intended to inhibit piece-meal proceedings in workers’ compensation cases, but without foreclosing the Commission’s discretion to order additional hearings when appropriate. As it is clear from the statute that the Commission has the authority to do what was done in this case, the only question is, was it an abuse of discretion? Since there were sound reasons for the remand and it inured no less to the benefit of the claimant than to the respondent, we cannot say the Commission’s discretion was abused.

Nor do we read the Gencorp case as mandating a reversal of the Commission’s order of remand. The administrative law judge in Gencorp had “reserved for future determination” claimant’s entitlement to temporary total disability and the Commission affirmed and adopted that ruling. Reversing, the Court of Appeals observed that it is the duty of the Commission to translate the evidence on all issues into findings of fact [Sanyo Manufacturing Corporation v. Leisure, 12 Ark. App. 274, 675 S.W.2d 841 (1984)], whereas, reserving a material issue for future determination was not a finding of fact, but a declination to find a fact. Granted, the opinion takes note of § 1 l-9-705(c)(l), requiring that all evidence be presented at the initial hearing and that the claimant had been allowed “a second bite at the apple.” However, the greater emphasis, we believe, was placed on the failure to make the finding of fact, as opposed to the order of remand, as evidenced by the comment:

“disregarding its duty to find the facts in order to give the appellee [claimant] the benefit of the doubt is not within the Commission’s authority,” citing Allen Canning Co. v. McReynolds, 5 Ark. App. 78, 632 S.W.2d 450 (1982).

Gencorp, supra, at 195.

The intimations of that opinion, as we read it, are that the reversible error lay in the failure of the administrative law judge and the Commission to make an essential finding of fact and the reference to § ll-9-705(c)(l) was merely surplusage. Whether that is an accurate reading of Gencorp we leave to the Court of Appeals. It is enough to note that § ll-9-705(c)(l) specifically contemplates that while all evidence is to be offered at the initial hearing, the Commission and the administrative law judge have the discretionary power to permit the introduction of additional evidence. We cannot say the Commission exceeded the authority given it under the statute by ordering additional evidence in this instance.

II

Second, Grimes submits the Commission erred in denying disability benefits in excess of seven percent to the body as a whole. Steven Grimes is a thirty-six year old high school graduate with a long and productive record of employment. Prior to his injury Grimes had obtained 140 hours of community college training in machine shop, carpentry and automotive repair. He had no problems before but can no longer do carpentry or automotive work because of his injuries. Before being hired by the foundry Grimes worked for ten years for Whirlpool. At the time of his termination by the foundry Grimes was earning $6.15 per hour. As a machine operator he pushed large sand molds weighing eighty pounds or so and was on his feet all day.

Grimes suffered a herniated disc when he slipped and fell climbing onto a conveyer. He underwent a CAT scan which revealed a moderate bulging of the disc in the lumbar spine. An MRI showed a herniated disc, L5-S1, which was treated conservatively. On May 18, 1988, Grimes’s physician described his condition as “asymptomatic at the present time.” Grimes continued his employment at the foundry until he and others were terminated on February 9, 1989.

At the behest of the administrative law judge, Grimes was examined by an independent physician who diagnosed a herniated disc at the L5-S1 vertebrae level with decreased motion of the lumbar spine, but “no hard neurological symptoms other than a very mild decrease in the ability to extend the great toe which is not a functional deficit. Additional treatments, if Mr. Grimes feels this problem is too painful to live with, would be excision of the disc, and I would rate him with approximately thirteen percent total body impairment as he stands at this time.”

Three or four weeks after his termination at the foundry Grimes found employment at D & N Machinery earning $4.00 an hour operating a computerized milling machine. Grimes testified his employers were aware of his condition and required no heavy lifting on his part.

In sum, Grimes submits that when his age, education, experience, physical impairment and other factors affecting his earning capacity are weighed, there is no substantial evidence on which to base an award of seven percent permanent partial disability.

Appellee cites countervailing evidence: Dr. Raby’s testimony, taken on March 1, 1990, was the most recent evidence as to Grimes’s condition. Dr. Raby allocated a rating of ten to thirteen percent, but he also conceded that it should be seven percent under the guidelines of the AMA. Also, the neurological examination of Dr. Reul, on January 19, 1990, contained the following:

COMMENTS: He has a completely normal neurological examination, and EMG-NCV of left lower extremities is normal. MRI scan shows no significant pathology at this point and I would feel there is no neurological basis for his complaints.

According to appellee, the “most compelling evidence” that Grimes suffered no wage loss disability is the fact that he returned to work in November 1987 at the'same wage rate and continued to earn at that level until his discharge in February 1989. There was no evidence that Grimes missed any work at D & N Machining because of his back, or that standing on his feet all day posed any difficulties for him.

In determining the sufficiency of the evidence to sustain the findings of the Workers’ Compensation Commission, we weigh the evidence in the light most favorable to the findings of the Commission and affirm if there is substantial evidence to support such findings. Cummings v. United Motor Exchange, 236 Ark. 735, 368 S.W.2d 82 (1963). In so doing, we recognize that it is the prerogative of the Commission to determine issues of weight and credibility. Bankston v. Prime West Corporation, 271 Ark. App. 727, 610 S.W.2d 586 (1981). Beginning with Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 (1961), the wage loss factor is defined, in contradistinction to the functional or anatomical loss, as the extent to which a compensable injury has affected the claimant’s ability to earn a livelihood. Rooney & Travelers Insurance Co. v. Charles, 262 Ark. 695, 560 S.W.2d 797 (1978). Attendant factors include medical evidence, age, education, experience and other circumstances reasonably related to a claimant’s earning power. Perry v. Mar-Bax Shirt Co., 16 Ark. App. 133, 698 S.W.2d 302 (1985).

While there was evidence of substance in this record to support a finding greater than the rating awarded, we cannot say the finding of the Commission of seven percent of the body as a whole is not supported by substantial evidence.

Ill

The final point involves a procedural discrepancy which we think is effectually resolved by our disposition of the first point. Grimes asks us to hold the Commission erred in its interpretation of Ark. Code Ann. § ll-9-522(b) (1987). A part of that provision purports to disentitle an employee to benefits in excess of the percentage of permanent physical impairment so long as he or she has returned to work, or had a bona fide offer of work, at the same wage level.

On remand the administrative law judge, though reinstating his original award of seven percent and ten percent, made a finding that Grimes was laid off from North American Foundry for economic reasons. When that opinion was appealed by the employer there was no cross-appeal by Grimes, prompting the Commission to declare the finding to be res judicata.

Grimes relies on White v. Air Systems, Inc., 33 Ark. App. 56, 800 S.W.2d 726 (1990), as support for the premise that res judicata applies only to final orders and a timely appeal to the Commission from an administrative law judge by either side prevents such order from becoming final. Assuming, without deciding, that to be a correct interpretation of White, we do not read the Commission’s opinion as relying on § ll-9-622(b) in denying wage loss benefits. Rather, it is evident the Commission relied on a variety of factors, including those mentioned under Point I, in rendering its opinion.

For the reasons stated, the order appealed from is affirmed.

Dudley and Glaze, JJ., dissent.

Tom Glaze, Justice,

dissenting. I must disagree with the majority opinion. The administrative law judge fully tried Steven Grimes’ claim, and on July 11, 1990, the judge found Grimes’ anatomical impairment was seven percent and his loss in wage earning capacity to be ten percent. That decision was appealed to the Commission. On February 5, 1991, the Commission affirmed the judge’s anatomical finding, but vacated the loss in earning capacity determination and instructed the judge to take additional evidence, particularly as to whether Grimes had been laid off by North American for economic reasons. In my view, the Commission’s ruling to remand was an abuse of discretion.

The Commission justified its remand based on the premise that Grimes had failed to meet his burden of showing that he suffered a loss of earning capacity. Such is not the case.

Grimes’ proof showed he suffered a moderately large disc herniation at the L5 S1 level, and experienced intermittent pain in his lower back and left extremity. An independent examination by Dr. Steven Heim caused him to opine that Grimes suffered a thirteen percent impairment to the body as a whole. Physicians cautioned that Grimes should avoid bending, stooping and excessive lifting. Based on these and other findings and the fact that Grimes’ subsequent or new employment paid over two dollars less than he had received at North American, the judge appropriately awarded a ten percent loss in earning capacity.

Although the administrative law judge’s findings appear to amply support the ratings and award given Grimes, the Commission on appeal raised the issue as to whether Grimes had been laid off for economic reasons or as a result of his compensable injury. In its written opinion, the Commission explained that North American’s reason for laying off Grimes was extremely relevant when determining whether he met his burden of proof as to the wage-loss issue. In my view, the Commission apparently failed to review the evidence presented to the administrative law judge on this very issue when the judge made his initial decision.

In this respect, Grimes testified that one of his physicians had told him to ask North American’s personnel manager if Grimes could stop climbing to the top of the sand silo. He was allowed to stop this job responsibility, and this seemed to help his back. However, two weeks later, Grimes was laid off work, as were others at the company. He said that employees with less seniority than he, but who had no injuries, were kept on the job. Grimes related that he was never recalled to work even though he-knew North American hired other people through a temporary service. He testified that, after North American terminated him, he applied for other employment, but on each occasion, he was asked if he had back problems, and he revealed that he did. None of these potential employers expressed an interest in hiring Grimes. A small business employer did eventually hire Grimes (at lower wages), but he did so without asking Grimes whether he had any prior back injury.

Obviously, the foregoing evidence was circumstantial but sufficient to support the administrative law judge’s ten percent wage-loss ruling. Of course, the judge (or the Commission) could have just as easily disbelieved Grimes’ assertion that he was terminated because of his injury, but Grimes’ credibility has never been the issue. Significantly, North American made no attempt to rebut Grimes’ proof on the earning capacity issue, but the Commission absolved North American of its failure in this respect by finding the layoff/wage-loss issue “had not been contemplated” by the parties. The Commission, however, offered no explanation for such a supposition, and the record clearly fails to support it.

As previously discussed, Grimes certainly addressed the lay off/loss of earning capacity issue at the initial hearing. And North American was well aware (or should have been) that this wage-loss issue would be considered by the law judge since it is a factor set out and required to be addressed under Ark. Code Ann. § ll-9-522(b) (Supp. 1993). That specific provision provides as follows:

“[S]o long as an employee, subsequent to his injury, has returned to work, has obtained other employment, or has a bona fide and reasonably obtainable offer to be employed at wages equal or greater than his average weekly wage at the time of the accident, he shall not be entitled to permanent partial disability benefits in excess of the percentage of permanent physical impairment established by a preponderance of the medical testimony and evidence.”

Here, Grimes met his burden under § ll-9-522(b), and while it had the opportunity to rebut Grimes’ proof at the initial hearing, North American simply failed to do so. The Commission gave North American a second opportunity to rebut Grimes’ evidence even though the court of appeals has forbidden such a “second bite at the apple” by its holding in Gencorp Polymer Products v. Landers, 36 Ark. App. 190, 830 S.W.2d 475 (1991). No one suggests the Landers decision should be overturned.

For the foregoing reasons, I would reverse the Commission’s decision with directions to reinstate the loss in earning capacity benefit awarded Grimes by the administrative law judge.

Dudley, J., joins this opinion.

      Apparently this herniated disc problem changed to a bulging disc which was further described as disc degeneration. Grimes was also diagnosed as having structural damage to his disc.


author: Steele Hays, Justice.

text:
    Reginald JACKSON v. STATE of Arkansas
    CR 93-1235
    871 S.W.2d 591
    Supreme Court of Arkansas
    Opinion delivered March 21, 1994

      Bill Luppen, for appellant.

      Winston Bryant, Att’y Gen., by: Vada Berger, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

This is an appeal from a conviction for aggravated robbery. The only issue is the sufficiency of the evidence. We affirm the trial court.

Reginald Jackson, appellant, was arrested for an aggravated robbery that occurred on January 30, 1993, at the automatic teller machine (ATM) of First Commercial Bank at Fillmore and Cantrell in Little Rock. A jury convicted Jackson of aggravated robbery and theft of property, imposing consecutive sentences of thirty-four years and ten years in the Department of Correction.

The victim testified Jackson had approached her from behind and grabbed her around the waist, ordering her to give him money from the machine. As she was trying to get the money out Jackson showed her a knife and told her, “Don’t mess up.” She testified he continued to hold her around the waist as she worked with the machine and although she could not see it, she felt what she thought was the knife at her back. She positively identified Jackson as the robber.

On appeal the only argument is the sufficiency of the evidence for aggravated robbery as opposed to simple robbery. Jackson testified in his .own defense, admitting the robbery and being in possession of a knife at the time of the incident, but maintaining that he did not use the knife in the robbery.

A challenge to the sufficiency of the evidence must be made by a directed verdict motion. A.R.Cr.P. 36.21(b). Defense counsel moved for a directed verdict at the end of the state’s case, which was denied, but failed to renew the motion at the end of all the evidence as required by Rule 36.21. Easter v. State, 306 Ark. 452, 815 S.W.2d 924 (1991). Because appellant did not renew his directed verdict motion the issue is not preserved for appeal. Henry v. State, 309 Ark. 1, 828 S.W.2d 346 (1992).

Jackson argues however that his directed verdict motion was not waived. He concedes he did not renew the motion at the close of all the evidence but points out that he requested a jury instruction for the lesser included offense of simple robbery, which was granted. Jackson argues that this request “resuscitated” his directed verdict motion.

We view the argument as a request for a directed verdict by implication, for his reasoning is that if he requested an instruction for a lesser offense, implied in that request is the contention there was not sufficient evidence for the charge of aggravated robbery. Jackson cites two cases: Eskew v. State, 273 Ark. 490, 621 S.W.2d 221 (1991) and Lee v. State, 27 Ark. App. 198, 770 S.W.2d 148 (1989). Neither case is supportive. Rather, as to the issue of an implied motion for a directed verdict, our rules are • settled. We have held that A.R.Cr.P. 36.21 is to be strictly construed. Easter v. State, supra. In accordance with such requirement we have indicated our unwillingness to consider challenges to the sufficiency of the evidence in a case in which the defense made, “the usual motions.” Middleton v. State, 311 Ark. 307, 842 S.W. 2d 842 (1992). We stated in Middleton in declining to recognize that phrase as a proper directed verdict motion:

A challenge to the sufficiency of the evidence, whenever it is made, requires a specific motion to apprise the trial court of the particular point raised; a general “usual motion” will not suffice. Rule 36.21(b) is strictly construed.

We decline to hold, as appellant would have us do, that a motion for a directed verdict may be made by implication. Only a specific motion that apprises the trial court of the particular action requested will be recognized. This is true of all motions and objections and we have consistently so held. See e.g. Taylor v. State, 299 Ark. 123, 771 S.W.2d 742 (1989).

Affirmed.

Corbin, J., not participating.