author: Annabelle Clinton Imber, Justice.

text:
    Yitzhak Abba MARTA v. STATE of Arkansas
    CR 98-105
    983 S.W.2d 924
    Supreme Court of Arkansas
    Opinion delivered January 14, 1999

      Denny Hyslip, Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: Mac Golden, Asst. Att’y Gen., for appellee.
   Annabelle Clinton Imber, Justice.

The appellant in this case, Yitzhak Abba Marta, told the victim’s mother that her “son was killed because of his sexual preferences.” After a three-day trial, the jury found Mr. Marta guilty of capital murder, and the court sentenced him to life imprisonment without parole. We affirm.

On November 12, 1996, the police discovered Alan Walker’s slain body in the floor of his bedroom near the entrance to his bathroom. Mr. Walker had been strangled and beaten several times in the head with a hard metal or wooden object. At the time of his death, Mr. Walker was wearing only a pair of lady’s heels and a wig. The letters “KKK” were written in blood on the wall, and there was a significant amount of blood splattered on the walls, ceiling, and bed sheets. A reddish fluid, possibly blood, was found on the bathroom sink. The tires to Mr. Walker’s vehicle were slashed, and a television, VCR, boom box, watch, fireplace set, and several rings were missing from his duplex.

After an investigation, the police charged Yitzhak Abba Marta and Adam Blackford with the murder of Mr. Walker. Mr. Marta and Mr. Blackford were tried separately. After Mr. Black-ford was convicted of first-degree murder, he agreed to testify against Mr. Marta with the understanding that his testimony might result in some leniency on his sentence. At the beginning of Mr. Marta’s trial, the court declared Mr. Blackford an accomplice as a matter of law. Mr. Blackford then testified that in the early morning hours of November 9, 1996, he and Mr. Marta went to a local bar where they met Mr. Walker, who was dressed as a woman. Both Mr. Blackford and Mr. Marta thought that Mr. Walker was a woman. Mr. Walker invited them back to his home for a party. When they arrived at Mr. Walker’s home, Mr. Walker and Mr. Marta went into the bedroom, while Mr. Blackford remained in the living room. Mr. Blackford then decided to steal Mr. Walker’s television and boom box for drug money. Mr. Blackford placed both items in the back of his red Chevy pick-up, and then slit the tires to Mr. Walker’s car. Soon after Mr. Black-ford reentered the duplex, Mr. Marta came out of the bedroom and exclaimed, “I’m going to Jack him [Mr. Walker] up.” Mr. Blackford retrieved a crowbar from his pick-up truck and handed it to Mr. Marta. Mr. Blackford also disabled both of Mr. Walker’s phones. As Mr. Walker exited from his bathroom, Mr. Marta struck him approximately five to ten times with the crowbar. As Mr. Walker attempted to arise from the floor, Mr. Blackford took the crowbar from Mr. Marta and struck Mr. Walker two or three additional times. Mr. Blackford then attempted to remove any trace of their presence from the duplex. Meanwhile, Mr. Marta wrote the letters “KKK” on the wall with Mr. Walker’s blood. During this time, Mr. Marta made several derogatory remarks about Mr. Walker’s sexual preference. As the two men left Mr. Walker’s duplex, they decided to get rid of the stolen items. The two men smashed the television and boom box and dumped the pieces in a nearby creek. Mr. Blackford later directed the police to the creek where they retrieved portions of the broken television and boom box.

Several witnesses corroborated Mr. Blackford’s story. First, several people testified that they saw Mr. Blackford and Mr. Marta talk to Mr. Walker outside the bar, and then get into a red Chevy pick-up truck and follow Mr. Walker’s car as it left the bar. One witness, who was suspicious of the two men, correctly recorded the license plate to Mr. Blackford’s Chevy truck. Mr. Walker’s supervisors testified that he did not appear for work on the morning of November 9. Friends and relatives testified that several items were missing from Mr. Walker’s duplex, including a television, boom box, and some rings.

Mr. Marta’s wife, Rochelle Marta, testified that her husband and Mr. Blackford came home around 4:00 a.m. on November 9. While Mr. Marta was taking a shower, Mrs. Marta searched his belongings and found two rings that she had never seen before. Mrs. Marta could not go back to sleep and remained awake in her bedroom until she left for work around 8:00 a.m. During this time, Mrs. Marta overheard her husband and Mr. Blackford talking and “laughing hysterically.” She did not hear either man leave the trailer. Sometime later, Mrs. Marta could not find the clothes, towel or washrag that Mr. Marta used that morning. Mrs. Marta testified that this was unusual because Mr. Marta never cleaned-up after himself. The next day, when Mrs. Marta asked her husband about the rings, he gave her several different explanations including that he found them, that they belonged to his mother, that he got them at a flea market, and that Mr. Blackford gave them to him. Later that day, Mr. Marta showed the rings to his wife again. This time the rings looked like they had been burned.

Next, two men testified about statements Mr. Marta made while he was incarcerated with them. First, Harold Galbraith testified that Mr. Marta made several derogatory remarks about homosexuals, including that they deserved to die, and that whoever killed Mr. Walker was a hero. Mr. Galbraith also overheard Mr. Marta tell Mr. Blackford, “You should have covered your tracks. That’s what you get for not covering your tracks.” According to Mr. Galbraith, Mr. Marta insinuated that Mr. Black-ford should have covered his tracks as he [Mr. Marta] had done. During the investigation, Mr. Galbraith told Officer Anthony Smith that the letters “KKK” were written in blood on the victim’s wall, which was a fact that had not been released to the press.

A second inmate, Dana Coleman, testified that Mr. Marta said that he and Mr. Blackford went home with a man they thought was a woman. When Mr. Marta discovered that Mr. Walker was a man, Mr. Marta became very angry and hit Mr. Walker. Mr. Blackford got a baseball bat from his truck, and Mr. Marta, followed by Mr. Blackford, “slugged” Mr. Walker with the bat.

Finally, Mr. Marta testified in his own defense. Mr. Marta admitted that he and Mr. Blackford went home with Mr. Walker. Mr. Marta asserted that when he discovered that Mr. Walker was a man, he “told the victim that it wasn’t my cup of tea. I don’t do these sort of things. I thanked her, him for inviting me over, but I don’t do these sort of things. I didn’t hurt his feelings in any kind of way.” Mr. Marta claimed that he and Mr. Blackford were shown to the door by Mr. Walker. Mr. Marta declared that he laughed about the matter when they returned home, but Mr. Blackford was not amused. Mr. Marta also claimed that sometime after 5:00 a.m., Mr. Blackford sneaked out of the trailer, and returned to Mr. Walker’s duplex where he killed Mr. Walker and stole some of his property.

At the conclusion of the trial, the jury found Mr. Marta guilty of capital murder. Because the State waived the death penalty, the court sentenced Mr. Marta to life imprisonment without parole. Mr. Marta timely filed a notice of appeal.

I. Sufficiency of the Evidence

For his first argument on appeal, Mr. Mart claims that the trial court erred when it denied his motion for a directed verdict. Motions for a directed verdict are treated as challenges to the sufficiency of the evidence. Bailey v. State, 334 Ark. 43, 972 S.W.2d 239 (1998). When reviewing the sufficiency of the evidence on appeal, we do not weigh the evidence but simply determine whether the evidence in support of the verdict is substantial. Passley v. State, 323 Ark. 301, 915 S.W.2d 248 (1996). In this respect, substantial evidence is direct or circumstantial evidence that is forceful enough to compel a conclusion and which goes beyond mere speculation or conjecture. Id. In making this determination, we review the evidence in the light most favorable to the State. Id.

On appeal, Mr. Marta claims that the State failed to adequately corroborate the testimony of Mr. Blackford, who the trial court declared was an accomplice as a matter of law. Arkansas Code Annotated § 16-89-111 (e)(1) (1987) provides that:

A conviction cannot be had in any case of felony upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof.

The corroboration must be sufficient standing alone to establish the commission of the offense and to connect the defendant with it. Peeler v. State, 326 Ark. 423, 932 S.W.2d 312 (1996); Gordon v. State, 326 Ark. 90, 931 S.W.2d 91 (1996). The test for corroborating evidence is whether, if the testimony of the accomplice were totally eliminated from the case, the other evidence independently establishes the crime and tends to connect the accused with its commission. Peeler, supra; Gordon, supra. Circumstantial evidence qualifies as corroborating evidence but it too must be substantial. Peeler, supra; Gordon, supra. Corroborating evidence need not, however, be so substantial in and of itself to sustain a conviction. Peeler, supra; Gordon, supra.

After eliminating Mr. Blackford’s testimony, we conclude that the State sufficiently connected Mr. Marta to the capital murder of Mr. Walker. Mr. Marta admitted during the trial that in the early morning hours of November 9 he and Mr. Blackford were with Mr. Walker in the duplex where Mr. Walker’s body was later found. Moreover, Mr. Walker’s supervisors testified that Mr. Walker failed to appear at work as scheduled on November 9. In Passley, supra, we said that “the presence of the accused in the proximity of a crime, opportunity, and association with a person involved in the crime in a manner suggestive of joint participation are relevant facts in determining the connection of an accomplice to a crime.”

Next, Mr. Coleman testified that he heard Mr. Marta say that he “slugged” the victim with a bat. Likewise, Mr. Galbraith testified that he heard Mr. Marta tell Mr. Blackford that homosexuals deserved to die, and Mr. Marta insinuated that Mr. Blackford should have covered his tracks as he [Mr. Marta] had done. In response, Mr. Marta claims that the inmates’ testimony is inherently unreliable because it was possibly given in exchange for leniency from the State. It, however, is well settled that the credibility of witnesses is an issue for the jury, and not this court. See Sanford v. State, 331 Ark. 334, 962 S.W.2d 335 (1998); Bell v. State, 334 Ark. 285, 973 S.W.2d 806 (1998). Moreover, Mr. Marta sufficiently brought the issue of credibility to the jury’s attention during cross-examination of both inmates.

There was also some physical evidence that corroborated Mr. Blackford’s story. First, Mr. Walker was found laying near the entrance to the bathroom in his bedroom, and he was wearing nothing but a wig and women’s shoes. The police also found pieces of a television and a boom box in a creek near the victim’s home.

Finally, Mrs. Marta said that her husband returned to their trailer on the morning of November 9 with some rings she had never seen before. The next time she saw the rings, they appeared to have been burned, which could indicate that Mr. Marta tried to destroy them. In Passley, supra, we said that possession of stolen property by the accused is a proper circumstance to consider in determining whether there was evidence tending to connect him with the crimes. In response, Mr. Marta asserts that the State never proved that the rings were the same rings missing from the victim’s duplex. Again, this would be a factual issue to be resolved by the jury.

Based on this evidence, we conclude that there was evidence independent of the accomplice’s testimony that sufficiently connected Mr. Marta with the capital murder of Mr. Walker. Accordingly, we affirm the trial court’s denial of Mr. Marta’s motion for a directed verdict.

II. Motion for a Mistrial

Mr. Marta took the stand in his own defense. During direct examination, Mr. Marta admitted that he had pled guilty to burglary and spent one year in the penitentiary for that crime. During cross-examination, Mr. Marta, a Mexican citizen, conceded that he falsely used his brother’s name and social security number in order to obtain a job in the United States. Mr. Marta also admitted that the day before Mr. Walker’s body was found he quit his job in the United States so that he could return to Mexico. The following colloquy then transpired:

State: That felony conviction. You said you did one year in the pen, right?
Marta: Yes, sir.
State: You got a five year sentence, though, didn’t you?
Marta: That’s correct.
State: And it wasn’t just a burglary, it was a burglary by —
Marta’s Attorney: Your Honor, I’m going to object if it’s something else. It’s just —
State: Burglary by definition has an underlying felony. You can’t commit burglary without the underlying felony. Now, the State is allowed to inquire into not only on cross-examination, what the —
Court: I think its an issue of credibility. Overruled. You may proceed.
State: It was actually a residential burglary in that you entered someone else’s home and stole personal property from the victims by force, isn’t that correct?
Marta: No, that’s not correct, sir.
State: That’s not correct? Can you explain for me, then, why the documents, your commitment documents describe the crime in that manner?
Marta: Well, the victims accused me of going in with a firearm and holding them at gunpoint. I never did hold them at gunpoint. I was guilty of burglary.
State: In fact, you were originally charged with theft of property —
Marta’s Attorney: Objection.
State: — aggravated robbery and aggravated assault.
Marta: No. I was not.
Court: Just a minute, just a minute. One at a time. Let the witness finish his response, then you ask the question. If there’s an objection, you make and objection and I’ll address the objection. Now, let’s start again. You have an objection?
Marta’s Attorney: I do, Your Honor. May I approach?
Court: You may.
Marta’s Attorney: Your Honor, my objection is that [the State] can’t get into what Mr. Marta was originally charged with. I think he can ask him what he pled to, what he was found guilty of which was residential burglary.
Court: I think he can actually ask him the facts of the particular burglary because he’s testified it was a burglary and apparently there was something else, but as far as the charges are concerned, I don’t think that’s proper impeachment.

(Emphasis added.)

The court sustained Mr. Marta’s objection to the question regarding the charges of aggravated assault and aggravated robbery. Mr. Marta then moved for a mistrial and stated that he did not think that an admonition could cure the error. The court denied the motion, and admonished the jury as follows:

Ladies and gentlemen, members of the jury, you should disregard the former question asked by the prosecutor . . . relating to alleged charges in prior cases involving Mr. Marta. You should totally disregard the question and whatever response was made by this witness and in no way consider it evidence in this case.

The questioning continued as follows:

State: Mr. Marta, let me clarify. Your testimony, then, is that you were not, you did not plead guilty or were convicted of burglary with the underlying felony of stealing personal property from victims by force? That’s what your testimony is?
Marta: I was • — ■ I plead guilty to burglary.
State: I understand that, Mr. Marta. What I’m asking you is are you saying that then, that part of the burglary, which an underlying felony, that’s the definition of burglary, are you disputing that the underlying felony was that you stole personal property from the victims by force?
Marta: Yes — no, no, I’m not disputing that.
State: You’re not disputing that.
Marta: No.

(Emphasis added.)

On appeal, Mr. Marta contends that the trial court erred when it failed to grant his motion for a mistrial due to the prosecutor’s question about his prior charges, but not convictions, for aggravated assault and aggravated robbery. We do not need to consider whether the State’s question was improper because the court sustained Mr. Marta’s objection. Hence, the sole issue is whether the trial court committed a reversible error when it refused to grant a mistrial, and whether the admonition cured any prejudice.

It is well settled that a mistrial is an extreme remedy that should be granted only when the error is beyond repair and cannot be corrected by curative relief. Rychtarik v. State, 334 Ark. 492, 976 S.W.2d 374 (1998); Willis v. State, 334 Ark. 412, 977 S.W.2d 890 (1998). The trial court has wide discretion in granting or denying a motion for a mistrial, and we will not disturb the court’s decision absent an abuse of discretion or manifest prejudice to the movant. Kemp v. State, 335 Ark. 139, 983 S.W.2d 383 (1998); Strawhacker v. State, 304 Ark. 726, 804 S.W.2d 720 (1991).

Mr. Marta did not object to the State mentioning that the underlying crimes for the burglary conviction were aggravated assault and aggravated robbery. In fact, Mr. Marta did not object when the State asked him if “he stole personal property from the victims by force.” Instead, Mr. Marta only objected when the State specifically mentioned that he had been charged with, but not convicted of, aggravated assault and aggravated robbery. In other words, Mr. Marta did not object to the jury knowing about his prior conduct. Instead, he did not want the State to mention that the conduct was the basis for a separate charge of which he was never convicted. Because the jury knew, without objection, that Mr. Marta had immigration problems, that he was a felon, and that he had previously used force to take a person’s personal property [which was similar to the facts of this case], we cannot say that the State’s mention of the charges resulted in such “manifest prejudice” that it was not cured by the judge’s admonition. Accordingly, we also affirm on this point.

III. Medical Examiner’s Testimony

The autopsy of Mr. Walker’s body was performed by Dr. Kokes from the State Crime Laboratory. Dr. Sturner, the chief medical examiner for the State Crime Laboratory, reviewed Dr. Kokes’s report and signed off on the analysis. Dr. Kokes was not able to appear at the trial, so Dr. Sturner testified in his place. After recognizing Dr. Sturner as an expert in the field of forensic pathology, the court allowed Dr. Sturner to testify as to the results of the autopsy performed by Dr. Kokes.

On appeal, Mr. Marta argues that Dr. Kokes’s failure to appear at trial deprived him of his statutory right to confront the person who actually performed the autopsy about his methodology and findings. Arkansas Code Annotated § 12-12-313 (Repl. 1995) provides that:

(a) The records and reports of autopsies, evidence analysis, drug analysis, and any investigations made by the State Crime Laboratory under the authority of this subchapter shall be received as competent evidence as to the matters contained therein in the courts of this state subject to the applicable rules of criminal procedure when duly attested to by the executive director or his assistants, associates, or deputies.
(b) Nothing in this section shall be deemed to abrogate a defendant’s right of cross-examination if notice of intention to cross-examination [sic] is given prior to the date of hearing or trial pursuant to the applicable rules of criminal procedure.
(c) The testimony of the appropriate analyst may be compelled by the issuance of a proper subpoena, in which case the records and reports shall be admissible through the analyst who shall be subject to cross-examination by the defendant or his counsel.
(d) (1) All records and reports of evidence analysis of the State Crime Laboratory shall be received as competent evidence as to the facts in any court or other proceeding when duly attested to by the employee who performed the analysis.
(2) The defendant shall give at least ten (10) days notice prior to the proceedings that he requests the presence of the employee of the State Crime Laboratory who performed the analysis for the purposes of cross-examination.
(3) Nothing in this subsection shall be construed to abrogate the defendant’s right to cross-examination.

In Lockhart v. State, 314 Ark. 394, 862 S.W.2d 265 (1993), we explained that pursuant to this statute, the state official who actually performed the test, or autopsy as in this case, must appear at the trial for cross-examination if the defendant gives notice at least ten days prior to trial. In contrast, we held that the defendant who fails to give timely notice waives his statutory right to confront the person who performed the analysis. Id. Finally, we held in Lockhart that the State has the burden to produce the examiner or obtain a continuance only when the State has caused the defendant to be unable to comply with the statute’s ten-.day notice prerequisite. Id.; see also Dodson v. State, 326 Ark. 637, 934 S.W.2d 198 (1996).

In this case, the trial court asked Mr. Marta if he had subpoenaed Dr. Kokes, and Mr. Marta responded, “No, I did not, Your Honor.” On appeal, Mr. Marta declares, for the first time, that he actually subpoenaed Dr. Kokes on three occasions, and thus he properly asserted his confrontation rights under Ark. Code Ann. § 12-12-313. We, however, cannot reach the merits of this issue for two reasons. First, Mr. Marta never referred to or otherwise brought the statute to trial court’s attention. Instead, he merely argued that he had a general right to confront Dr. Kokes. Second, Mr. Marta failed to disclose to the trial court that he actually subpoenaed Dr. Kokes on three occasions. The purpose of the contemporaneous-objection rule is to give the trial court an opportunity to know the reason for the disagreement with its proposed action prior to making its decision. State v. Donahue, 334 Ark. 429, 978 S.W.2d 748 (1998); State v. Brummett, 318 Ark. 220, 885 S.W.2d 8 (1994). Likewise, we have precluded appellants from raising arguments on appeal, that were not first brought to the attention of the trial court. Burris v. State, 330 Ark. 66, 954 S.W.2d 209 (1997); McGhee v. State, 330 Ark. 38, 954 S.W.2d 206 (1997). Here, Mr. Marta failed to apprise the trial court of the correct facts and the necessary statute in order for it to rule on his objection. It would be inherently unfair to reverse the trial judge on a matter of which he was never properly apprised. Accordingly, we hold that the issue is procedurally barred.

Mr. Marta’s argument also fails on the merits because we have said that an appellant must also demonstrate that he has been prejudiced, beyond the bare assertion of the constitutional right to confront the witness, by the denial of cross-examination or that such request would have availed him anything. Lockhart, supra; Dodson, supra. On appeal, Mr. Marta argues that he was prejudiced by his inability to cross-examine Dr. Kokes about his estimation of the time of death. Specifically, Mr. Marta wanted to question Dr. Kokes about: 1) the time Mr. Walker’s body arrived at the morgue, 2) whether the police reports accompanied Mr. Walker’s body, and 3) the amount of ethyl alcohol that was in the Mr. Walker’s bloodstream. Mr. Marta claims that by questioning Dr. Kokes about these matters, he could have established the Mr. Walker died several hours later when Mr. Blackford sneaked out of the trailer and returned to Mr. Walker’s duplex. Because this information could only be determined by reading reports prepared by other individuals, Dr. Kokes would not have possessed any more knowledge about the matters than Dr. Sturner. Thus, we hold that Mr. Marta has failed to demonstrate how he was prejudiced by Dr. Kokes’s failure to appear at his trial.

Affirmed.

       Mr. Marta subpoenaed Dr. Kokes on three occasions: 1) March 26, 1997, for testimony on April 1, 1997; 2) April 16, 1997, for testimony on June 2, 1997; and 3) May 12, 1997, for testimony on July 9, 10, and 11, 1997. Mr. Marta’s trial was held on July 9, 10, and 11, 1997.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Kingrale COLLINS v. STATE of Arkansas
    CR 98-563
    983 S.W.2d 431
    Supreme Court of Arkansas
    Opinion delivered January 14, 1999

      Chris Tarver, for appellant.
    No response.
   Per Curiam.

Attorney Chris Tarver represents appellant Kingrale Collins, who was convicted of capital murder and sentenced to the death penalty. A notice of appeal was filed on Mr. Collins’s behalf, and the appellate record was subsequently filed in this court. Thereafter, on June 22, June 30, August 24, and November 12, 1998, Mr. Tarver received extensions of the deadline for filing of Mr. Collins’s brief. In granting these extensions, we cautioned Mr. Tarver that the August 24 and November 12, 1998, extensions were final extensions. The final deadline for Mr. Tarver to file Mr. Collins’s brief was December 10, 1998. The deadline was not met; instead, on December 10, 1998, Mr. Tarver filed a fifth motion for an extension of time in which to file Mr. Collins’s brief.

Based on the circumstances described above, we order Chris Tarver to appear before this court on Thursday, January 21, 1999, at 9:00 a.m., to show cause why he should not be held in contempt for fading to file his client’s brief on or before December 10, 1998, as previously ordered.


text:
    James KIRBY v. STATE of Arkansas
    CR 98-1442
    983 S.W.2d 431
    Supreme Court of Arkansas
    Opinion delivered January 14, 1999

      Lea Ellen Fowler, for appellant.
    No response.
   Per Curiam.

Appellant James Kirby was convicted of aggravated robbery and theft of property on May 13, 1997. No timely appeal was filed by Kirby or his counsel, James O. Clawson. Kirby retained new counsel, Lea Ellen Fowler, after the time to file an appeal and post-conviction relief had expired. On May 12, 1998, Fowler filed a motion for belated appeal. We remand this matter to the trial court to conduct a hearing to determine if Mr. Kirby had requested his trial counsel, James O. Clawson, to file an appeal, and direct the trial court to make its findings and remand them to this court within thirty days. See Sanders v. State, 329 Ark. 571, 950 S.W.2d 220 (1997).


text:
    Cecil POYNER v. ARKANSAS CONTRACTORS LICENSING BOARD; Bruce Earl WARD v. STATE of Arkansas
    98-952; CR 98-657
    985 S.W.2d 298
    Supreme Court of Arkansas
    Opinion delivered January 14, 1999

      Lyon, Emerson & Cone, for appellant Cecil Poyner.

      No response.

      Deborah R. Sailings, for appellant Bruce Earl Ward.
    No response.
   Per Curiam.

The procedural background in these matiam. forth in our per curiam on November 19, 1998. Poyner v. Arkansas Contractors Licensing Bd., 335 Ark. 260, 979 S.W.2d 902 (1998); Ward v. State, 335 Ark. 265, 979 S.W.2d 902 (1998). On December 11, 1998, a bench warrant was issued because Ms. Lene Collins-Sontag failed to appear before this court on December 10, 1998, as ordered by the per curiam orders issued on November 19, 1998. Poyner v. Arkansas Contractors Licensing Bd. & Ward v. State, 335 Ark. 379, 985 S.W.2d 297 (1998). Pursuant to the bench warrant issued on December 11, 1998, the State Police took custody ofMs. Collins-Sontag on December 17, 1998, and delivered her to the Pulaski County Detention Facility, where she was held until she appeared before this court on December 21, 1998, at 9:00 a.m. As a result of said appearance, Ms. Collins-Sontag was ordered to appear before this court on Wednesday, January 6, 1999, at 9:00 a.m., and the Pulaski County Sheriffs Department was directed to release Ms. Collins-Sontag upon the posting of a $500.00 bond.

Ms. Collins-Sontag, substitute court reporter for the Third and Seventh Divisions of Pulaski County Circuit Court, appeared with her counsel, Kenneth G. Fuchs, for the hearing before this court on January 6, 1999, to show cause why she should not be held in contempt for her failure to comply in a timely manner with the command of the writs of certiorari issued in both cases and for her failure to appear before this court as scheduled on December 10, 1998. Also present at the January 6 hearing was Ms. Vicki Pickering, attorney for the Arkansas Contractors Licensing Board.

During the hearing, Ms. Collins-Sontag entered pleas of guilty for her failure to comply with the writs of certiorari issued in both cases and for her failure to appear as previously scheduled. We accepted Ms. Collins-Sontag’s guilty pleas. In mitigation of her contempt, Ms. Collins-Sontag advised the court that she failed to timely prepare and file the transcripts in the Poyner and Ward cases because of recent domestic problems. Specifically, she stated that due to her separation from her husband, she does not have access to her computer and has been unable to locate the original tape recording of the hearing in the Poyner case. Ms. Collins-Sontag also admitted that she was drinking alcohol excessively during the past several months. She represented to the court that she has been sober since her arrest on December 17, 1998. She further stated that she has no income at this time and that she and her teenage son are living with friends.

According to Ms. Collins-Sontag, the back-up tape recording of the hearing in the Poyner case is not audible. Both she and her attorney do not believe that audio enhancement of the tape recording is a viable option under the circumstances. Ms. Collins-Sontag represented to the court that no witnesses testified at the Poyner hearing. Ms. Pickering, attorney for the Arkansas Contractors Licensing Board, confirmed that no testimony was taken during the Poyner hearing and that the hearing was limited to argument by counsel regarding summary judgment. Ms. Pickering further stated that affidavits were submitted after the hearing.

With regard to the Ward case, Ms. Collins-Sontag assured the court that she had the disk containing the record of the relevant hearing, and that she could arrange for access to a computer in order to print the transcript and file it with the Supreme Court Clerk no later than Friday, January 8, 1999.

Based upon the inability of Ms. Collins-Sontag to submit the record of the relevant hearing in the Poyner case and based upon the representations by Ms. Pickering and Ms. Collins-Sontag that the hearing was limited to argument by counsel, we hereby remand this matter to the Pulaski County Circuit Court, Third Division, to allow counsel to prepare a statement of the evidence or proceedings and to allow the trial court to settle the record, pursuant to Ark. R. App. P. — Civ. 6(d) & (e).

Based upon the foregoing, we hold that Ms. Collins-Sontag is in contempt for failing to comply in a timely manner with the command of the writs of certiorari issued in the Ward and Poyner cases and for failure to appear before this court as scheduled on December 10, 1998. We sentence Ms. Collins-Sontag to four days in the Pulaski County jail, with credit for four days having already been served by her. We further order her to file the transcript in the Ward case with the Supreme Court Clerk no later than Monday, January 11, 1999.

The clerk is also directed to forward a copy of this per curiam order to the Board of Certified Court Reporter Examiners for any action it might deem necessary under its rules.


text:
    William Wesley SKIVER v. STATE of Arkansas
    CR 96-527
    983 S.W.2d 931
    Supreme Court of Arkansas
    Opinion delivered January 14, 1999

      Appellant, pro se.

      Jon A. Williams, for appellant.

      Winston Bryant, Att’y Gen., by: Vada Berger, Ass’t Att’y Gen., for appellee.
   Per Curiam.

The appellant, William Wesley Skiver, was convicated of aggravated robbery and was sentenced as a habitual offender to life in prison. Pursuant to Anders v. California, 386 U.S. 738 (1996), his attorney has filed a motion to withdraw and a brief stating there is no merit to the appeal. Skiver, pursuant to Arkansas Supreme Court Rule 4-3 (j), has filed a pro se brief in which he raises arguments for reversal of his conviction. The State agrees that there is no merit to the appeal and recommends that Skiver’s conviction be affirmed. We conclude that there can be no meritorious issue raised from the rulings that were adverse to Skiver during the trial. Accordingly, we grant the motion to withdraw and affirm Skiver’s conviction and sentence.

Skiver’s conviction arose from an incident that occurred in a convenience store in Paragould. After threatening the store clerk with a hidden knife, Skiver took the cash from the store’s register and several items from the clerk’s purse. Two witnesses arrived at the store as Skiver was leaving, and the store clerk was able to alert one of them to what had just occurred. One of the witnesses ascertained the direction Skiver travelled as he left, and the police were alerted. A chase ensued, and Skiver was apprehended after barricading himself in the bedroom of a residence.

On the day of his arrest, Skiver gave a taped statement to Lieutenant Stephenson of the Paragould Police Department. In the statement, Skiver confessed to robbing the convenience store, and he also stated, “I’m going back to the penitentiary.” Skiver sought to exclude his reference to the penitentiary from the jury on the basis of relevancy. The Trial Court, finding that the sentence was relevant to show consciousness of guilt, denied Skiver’s motion.

Adverse Rulings

The first adverse ruling that we must discuss is the denial of Skiver’s motion for a directed verdict. This court considers arguments on the sufficiency of the evidence prior to the review of trial errors. Jameson v. State, 333 Ark. 128, 970 S.W.2d 785 (1998).

At the conclusion of the State’s case, Skiver moved for a directed verdict on the basis that the State failed to prove that it was Skiver, and not another person, who robbed the convenience store. Skiver also argued that the State failed to prove that the robbery was committed with a deadly weapon. In the no-merit brief, Skiver’s counsel contends that it was proper for the Trial Court to deny his motion for a directed verdict.

The test for sufficiency of the evidence on appeal is whether there is substantial evidence to support the verdict. Lukach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992). On review, we need only consider evidence that is favorable to the State. Luckach v. State, supra.

The first witness to testify for the State was Barbara Wyatt, the convenience-store clerk who was the victim of the aggravated robbery. Ms. Wyatt testified that she was working at the convenience store in the early morning hours of June 17, 1995. At approximately 8:00 a.m., Skiver came into the store and purchased a soda. He then left and stood outside as Ms. Wyatt waited on other customers. Ms. Wyatt testified that when the store was clear of other customers, Skiver came back into the store, threw down a paper bag, and threatened to cut her throat with a knife unless she gave him all of the money in the cash register. After Ms. Wyatt complied, Skiver also emptied the contents of her purse into the paper bag.

Ms. Wyatt also testified that after Skiver took the money from the cash register and her purse, he ordered her into the back room of the convenience store. Ms. Wyatt walked in that direction while Skiver’s attention was distracted, but went beyond the back room and into the cooler of the convenience store. After a brief struggle at the door of the cooler, Skiver said he would cut her throat unless she remained there for thirty minutes. Through the glass-windowed doors that formed the front of the cooler, Ms. Wyatt saw Skiver leave the store.

Ms. Wyatt stated that as she watched Skiver leave the store and walk away, she spotted two women drive up to the store. When she saw Skiver round the front corner of the store, Ms. Wyatt ran outside and informed one of the women that she had been robbed. At the conclusion of her testimony, Ms. Wyatt made an in-court identification of Skiver as the man who robbed her.

The two women who drove up to the convenience store at the conclusion of the robbery also testified. The woman who got out of the car, Carol Wickinger, testified that she saw Skiver come out of the store. He was carrying a large brown paper bag in one hand and a beer in the other. Ms. Wickinger stated that shortly afterward, the convenience-store clerk came out of the store, told her she had just been robbed, and asked her not to leave. Ms. Wickinger also made an in-court identification of Skiver as the person she saw coming out of the convenience store with a large paper bag.

The friend that drove Carol Wickinger to the convenience store, Lisa Porter, also testified. Ms. Porter testified that Ms. Wickinger got out of the car to purchase a newspaper from a rack that was located on the outside of the convenience store. At that time, Ms. Porter said that Skiver walked out of the convenience store, and that he was shortly followed by Ms. Wyatt. Ms. Porter stated that she decided to follow Skiver in her car. She eventually found him shirtless and behind the wheel of a red car. She noted the description of the car and its license plate number, and reported that information to the police. Ms. Porter’s testimony also included an in-court identification of Skiver.

The State then introduced the testimony of a series of police officers who participated in the pursuit and apprehension of Skiver. Through the testimony of these officers, the State established that the police encountered Skiver’s vehicle, identified him according to Lisa Porter’s description, and pursued him at high speeds to the house where he eventually barricaded himself. Skiver, along with his car, the brown paper bag containing money, the items stolen from Ms. Wyatt’s purse, and a butcher knife were all recovered from the house and the surrounding area.

The State also introduced Skiver’s custodial statement. In his statement, Skiver claimed that he decided to rob the convenience store in order to obtain cash to purchase drugs. -He admitted that he was armed with a butcher knife, and that he put the money into a brown paper bag. He also admitted to leaving Ms. Wyatt in the cooler, and to fleeing to the residence where he barricaded himself from police.

We think there is substantial evidence that it was Skiver, and not another person, who committed the crime. Three eyewitnesses, including the victim, saw him in the convenience store and immediately thereafter. It was pursuant to the description of one of those eyewitnesses that the police were able to identify Skiver’s vehicle and then pursue him to the location where he was eventually apprehended. In our view, this evidence excludes the possibility that another person robbed the convenience store.

We also conclude that there was substantial evidence to support the aggravated-robbery conviction. According to Ark. Code Ann. § 5-12-102 (Repl. 1997), a person commits aggravated robbery if he commits a robbery and he is armed with a deadly weapon or represents by word or conduct that he is so armed. Although he never produced the weapon in Ms. Wyatt’s view, Skiver did represent that he had a knife and would use it to cut her throat unless she complied with his demands. In his custodial statement, Skiver admitted to having a butcher knife while in the convenience store, and a butcher knife was recovered from the area surrounding the house where he barricaded himself. We believe this is ample evidence to support the aggravated-robbery conviction.

Hearsay Rulings

During the testimony of Carol Wickinger, the Trial Court overruled Skiver’s objection to the introduction of a hearsay statement by the victim, Barbara Wyatt. According to Ms. Wickinger, she arrived at the convenience store in time to see Skiver come out of the store. She testified that he was carrying a brown paper bag in one hand and a beer in the other hand. Ms. Wickinger stated that Skiver was followed shortly thereafter by Barbara Wyatt. When Ms. Wickinger attempted to testify about what Ms. Wyatt said as she came out of the door, however, Skiver objected on the basis of hearsay. After the State argued that the statement was admissible as an excited utterance, the Trial Court overruled the objection and allowed Ms. Wickinger to testify that Ms. Wyatt whispered, “He just robbed me. Don’t leave me.”

Arkansas Evidence Rule 801(c) defines hearsay as a statement, other than one made by the declarant at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Rule 802 provides that hearsay is inadmissible except as provided by law or other rules of evidence. Rule 803(2) provides an exception to the rule against hearsay for “excited utterances.” According to the Rule, an excited utterance is a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." In order to correctly apply this exception, the court must find that there was a startling event and that at the time the utterance was made the declarant was still under the stress of excitement resulting from that event. Tackett v. State, 12 Ark. App. 57, 670 S.W.2d 824 (1984). Latham v. State, 318 Ark. 19, 883 S.W.2d 461 (1994).

It is evident from Ms. Wickinger’s testimony that her arrival at the convenience store was contemporaneous with the conclusion of the robbery. Shortly after Skiver left the store, Ms. Wyatt emerged and stated that Skiver had just robbed her. In these circumstances, it is clear that Ms. Wyatt was still under the stress of the excitement caused by the aggravated robbery, in which she was the victim. Accordingly, the Trial Court correctly overruled Skiver’s objection to the introduction of Ms. Wyatt’s hearsay statement.

The next series of adverse ruhngs occurred during the testimony of police officers who responded to the robbery and who pursued and apprehended Skiver. On six occasions, the Trial Court overruled Skiver’s hearsay objections to witness reports or radio transmissions received by the officers. In these instances, the Trial Court either ruled that the officer could testify about what he did in response to the information he received, or about the specific contents of the reports in order to explain his subsequent actions. The Trial Court’s basis for overruling the hearsay objections was that the statements were not offered for the truth of the matter asserted, but to explain the testifying officer’s subsequent actions in the investigation. On three occasions, the Trial Court admonished the jury that the statements were to be considered in that manner.

As noted above, “hearsay” is defined as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. We have examined each of the six adverse ridings, and we conclude that the information the prosecution sought to introduce during the testimony of the police officers was not hearsay because it was not offered for the truth of the matter asserted. Rather, the information was offered to explain the subsequent actions of the police officers in their pursuit and apprehension of Skiver.

The next adverse ruling occurred when the Trial Court sustained the State’s objection during Skiver’s cross-examination of Officer Jeff Tyner of the Paragould Police Department. Officer Tyner collected evidence from the residence where Skiver had barricaded himself. During cross-examination, Skiver asked Officer Tyner for his opinion as to whether Skiver could have carried some of the items collected from the bedroom into the house without anyone seeing the items. The prosecutor lodged an objection to Skiver’s effort to have the officer guess about whether Skiver could conceal the items. The Trial Court sustained the objection.

In the no-merit brief, counsel characterizes the State’s objection as an assertion that Officer Tyner lacked the personal knowledge necessary to render an opinion. Counsel further asserts that the Trial Court correctly sustained the objection because Officer Tyner arrived on the scene after Skiver had barricaded himself in the residence, and therefore did not see him carry the items inside. Under these circumstances, counsel contends that Officer Tyner did not have sufficient personal knowledge to testify about whether anyone could have seen Skiver carry the items.

The context of Skiver’s cross-examination of Officer Tyner suggests that he was requesting the officer’s lay opinion, rather than an opinion that required his expertise as a law enforcement officer. Consequently, the propriety of the request for his opinion is governed by Arkansas Evidence Rule 701. The rule provides:

Opinion Testimony by lay witnesses. — If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are
(1) Rationally based on the perception of the witness; and
(2) Helpful to a clear understanding of his testimony or the determination of a fact in issue.

In Carton v. Missouri Pacific Railroad, 303 Ark. 568, 798 S.W.2d 674 (1990), we observed that in order to satisfy the first requirement of Rule 701, the testimony must initially pass the personal-knowledge test of A.R.E. Rule 602. We conclude, however, that it was unnecessary for Officer Tyner to see Skiver carry the items in order to render an opinion about whether he could have concealed them from the view of others. Such an opinion could be given after an observation of the size of the items.

We find that the Trial Court correctly sustained the objection because the opinion Skiver sought failed to satisfy the second requirement of Rule 701. We can perceive no reason for seeking Officer Tyner’s opinion as to whether the items could be concealed, and no reason was offered when the objection was made. Consequently, we affirm the Trial Court’s ruling on this issue.

The next adverse ruling occurred when the Trial Court refused to modify a verdict form in order to comply with a jury instruction for aggravated robbery. The instruction gave the jury a choice of three alternatives when deciding Skiver’s guilt or innocence on the charge of aggravated robbery. The alternatives were that they could find Skiver guilty of the offense with “the use” of a deadly weapon, guilty of the offense without “the use” of a deadly weapon, or not guilty. The alternatives on the verdict form that corresponded to the instruction, however, substituted Skiver’s alleged “use” of a deadly weapon with his being “armed with” a deadly weapon. We conclude that Skiver was not prejudiced by the Trial Court’s refusal to modify the verdict form.

The appearance of the word “use” in the aggravated-robbery instruction does not comply with the statutory language, which provides that a person commits aggravated robbery if he commits a robbery and he is armed with a deadly weapon or represents by word or conduct that he is so armed. Ark. Code Ann. § 5-12-103 (Repl. 1997). Even so, we see little difference between the effect of “used” and “armed with” a weapon. The focus of the crime of aggravated robbery is the threat of harm to the victim. Wheat v. State, 297 Ark. 502, 763 S.W.2d 79 (1989). To the extent that Skiver represented to Ms. Wyatt that he was armed with a knife and would use it to cut her throat unless she complied with his demands, he “used” the knife to perpetrate the aggravated robbery. Accordingly, we can perceive of no prejudice that Skiver could have suffered as a result of the Trial Court’s refusal to modify the verdict form.

The next adverse ruling occurred when the Trial Court, over Skiver’s objection, allowed the State to amend the information to charge Skiver as a habitual offender. After the jury retired to consider Skiver’s sentence on the aggravated-robbery conviction, the Trial Court made the following record of Skiver’s objection to the amendment of the information to charge him as a habitual offender:

We need to put on the record that the State, that they were seeking enhanced punishment as a result of the defendant being a habitual offender.
This took place in chambers. Mr. Williams asserted his objection in a timely manner, and the Court recognizes the amendment on the date of trial to allege the defendant an habitual offender. He did find that the prosecuting attorney made the prior convictions available to defense counsel as soon as they had them. The Court felt that it would not be appropriate to instruct the jury in that regard.

It is well settled that the State may amend an information up to a point after the jury has been sworn but before the case has been submitted to it, as long as the amendment does not change the nature or degree of the crime charged and the defendant is not surprised. Kilgore v. State, 313 Ark. 198, 852 S.W.2d 810 (1993). The Trial Court recognizes the amendment “on the date of trial,” which indicates that the information was amended to include the habitual-offender allegation before the two-day trial began. Furthermore, an amendment that adds an allegation that the defendant is a habitual offender does not change either the nature or the degree of the crime. It simply authorizes a more severe punishment. Finch v. State, 262 Ark. 313, 556 S.W.2d 434 (1977). Lastly, the record indicates that Skiver cannot claim surprise because defense counsel was made aware of the prior convictions that the State intended to introduce during the sentencing phase.

The next adverse ruling occurred when the Trial Court overruled Skiver’s objection to the introduction of evidence of his attempt to escape from jail two weeks before the trial. The evidence was introduced during the sentencing phase of the trial.

In the absence of prejudice, Arkansas law permits the introduction of “additional evidence relevant to sentencing.” Ark. Code Ann. § 16-97-101(2) (Supp. 1997); Hill v. State, 318 Ark. 408, 887 S.W.2d 275 (1994). Moreover, a trial court has wide discretion in admitting evidence of other crimes or wrongs, and its decision will not be reversed absent an abuse of discretion. Cupit v. State, 324 Ark. 438, 920 S.W.2d 852 (1996); McClish v. State, 331 Ark. 295 962 S.W.2d 332 (1998).

We perceive no abuse of discretion in the Trial Court’s decision to allow the State to introduce evidence of Skiver’s attempted escape in the sentencing phase of the trial. A criminal defendant’s proclivity for escape is a pertinent factor in a jury’s sentencing decision. Accordingly, we conclude that the Trial Court correctly determined that the probative value of the evidence of the attempted escape substantially outweighed the danger of unfair prejudice.

The last adverse ruling concerns the custodial statement that Skiver gave to the police. Skiver sought to have three of his remarks in the statement excluded because he believed they were irrelevant. The Trial Court agreed to excise two of the remarks from the statement, but concluded that Skiver’s remark that he was “going back to the penitentiary,” should remain in the statement. According to the Trial Court, that statement was relevant to show a consciousness of guilt. Although Skiver did not object on the basis of Rule 403, the Trial Court further decided that the probative value of the remark was not substantially outweighed by the danger of unfair prejudice.

A trial court is accorded wide discretion in evidentiary rulings and will not be reversed on such rulings absent a manifest abuse of discretion. Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996). A trial court’s ruling on relevancy is entitled to great weight and will not be reversed absent an abuse of discretion. Misskelley, supra; Dixon v. State, 311 Ark. 613, 846 S.W.2d 170 (1993).

We conclude that the Trial Court’s ruling does not constitute reversible error. Skiver’s reference to “going back to the penitentiary” could be considered evidence of a prior bad act, which must have relevance independent of proving that the defendant is of bad character. We have recognized that when evidence of prior bad acts reflects a consciousness of guilt, it has independent relevance under A.R.E. Rule 404(b). See generally, Henderson v. State, 322 Ark. 402, 910 S.W.2d 656 (1995). Once independent relevancy is established, the trial court is then obliged to scrutinize the evidence under A.R.E. Rule 403. Price v. State, 268 Ark. 535, 597 S.W.2d 598 (1980). That Rule provides that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.

According to our examination of the ample evidence that was introduced against Skiver, his reference to “going back to the penitentiary” had little probative value as consciousness of guilt. We also find, however, that the substantial evidence that was introduced, including direct evidence from eyewitnesses, warrants a conclusion that the danger of unfair prejudice did not “substantially outweigh” the probative value of the evidence. In other words, any error the Trial Court made in its determination of the probative value of the evidence was harmless. Abernathy v. State, 325 Ark. 61, 925 S.W.2d 380 (1996). Accordingly, we must affirm.

Skiver’s pro se arguments

Skiver has filed a pro se brief in which he raises several additional points on appeal. We decline to reach the merits of these arguments, however, because they are composed only of conclusory statements and contain no supporting legal authority. Conclusory arguments, without supporting authority, will not be considered. Collins v. State, 308 Ark. 536, 826 S.W.2d 231 (1992); Cox v. State, 305 Ark. 244, 808 S.W.2d 306 (1991).

Compliance with Rule 4-3 (h)

The record has been reviewed in accordance with Arkansas Supreme Court Rule 4-3 (h), and as set out above, it has been determined that there were no errors with respect to rulings adverse to the appellant.

Affirmed.


author: W.H. “Dub” Arnold, Chief Justice.

text:
    The ESTATE of Dennis R. DONLEY, et al. v. PACE INDUSTRIES, et al.

    98-626
    984 S.W.2d 421
    Supreme Court of Arkansas
    Opinion delivered January 21, 1999

      Gerald K. Crow, and Vowell & Atchley, by: Russell C. Atchley, P.A., for appellants.

      Warner, Smith & Harris, PLC, by: Joel Johnson, for separate defendant Cleveland Automatic Machine Company, joining with plaintiffs/appellants for this appeal.

      Bassett Law Firm, by: Curtis L. Nebben, for appellees.
   W.H. “Dub” Arnold, Chief Justice.

This is an appeal from an order of the Carroll County Circuit Court granting appellees Pace Industries, Inc., and Precision Industries, Inc.’s motion for summary judgment. Our jurisdiction is authorized pursuant to Ark. Sup. Ct. Rule l-2(b)(1), (4), (5), and (6) (1998) because the appeal raises an issue of first impression, an issue needing clarification of the law, and a question concerning the validity of Ark. Code Ann. § 11-9-105(a). The appellants, Eugene Schulze and the Estate of Dennis R. Donley, brought an action against the appellees seeking damages for the wrongful death of Donley and for Schulze’s personal injuries sustained while Donley and Schulze were employed at Automatic Castings, Inc. On May 10, 1993, the appellants were injured at work when Donley turned a valve on a die-cast machine, causing a piston rod to slice through a hose containing flammable hydraulic fluid. The hydraulic fluid sprayed onto the furnace of the machine, ignited, and injured both men.

Although Donley’s estate and Schulze received workers’ compensation benefits, they also filed a products-liability suit against the die-cast machine’s manufacturer (Cleveland Automatic Machine Company), the company that previously owned the machine (appellee Precision), and Precision’s parent company (appellee Pace). On August 9, 1990, approximately three years before the date the appellants were injured, Automatic Castings, the appellants’ employer, Precision, and Pace merged, and Pace became the surviving corporation. According to the appellees, Automatic Castings and Precision continued to operate only as subsidiaries or divisions of Pace. However, the appellants suggest that the three companies remained separate entities.

Sometime after the merger, Precision transferred the die-cast machine to Automatic Castings. The appellants’ theory suggests that this transfer was a “sale” that constituted placement of a product into the stream of commerce, making Precision a “supplier” subject to liability. Further, the appellants allege in their briefs that Precision modified the machine and that those modifications were the direct and proximate cause of the appellants’ injuries. On the other hand, Precision and Pace contend that the transfer of the die-cast machine was a book-entry transfer only and that the transfer simply constituted movement of the machine from one location of the company to another.

In response to the appellants’ complaint, Pace and Precision asserted that Pace qualified as a self-insured corporation pursuant to the Arkansas Workers’ Compensation Act and that the claim fell within the exclusive-remedy provisions of the Act. Flowever, the appellants argued that the case fell within the “dual persona” exception to the exclusive remedy of workers’ compensation, which this court adopted in Thomas v. Valmac Indus., Inc., 306 Ark. 228, 812 S.W.2d 673 (1991). Notably, following our decision in Thomas, the legislature enacted amendments to section 11-9-105(a) in 1993, that abolished the dual-persona doctrine.

On the basis that the Workers’ Compensation Act provided the exclusive remedy, Precision and Pace moved the trial court for summary judgment. On February 23, 1998, the trial court agreed that the application of Thomas to the instant facts, where the injuries occurred after the date on which the corporations merged, would be an impermissible expansion of Thomas’s holding. From this order comes the instant appeal, challenging (1) the trial court’s finding that a ruling in appellants’ favor would represent an impermissible expansion of our holding in Thomas, (2) the trial court’s grant of summary judgment, and (3) the constitutionality of section ll-9-105(a). We find no merit in appellants’ first two arguments, and we decline to reach the merits of the third point on appeal. Accordingly, we affirm the trial court’s grant of summary judgment to appellees.

I. Expansion of Thomas v. Valmac Indus., Inc.

In our decision in Thomas v. Valmac Indus., Inc., 306 Ark. 228, 812 S.W.2d 673 (1991), we recognized the “dual persona” doctrine as an exception to the exclusive-remedy provisions of the Workers’ Compensation Act. In Thomas, the claim involved a corporation that later merged with the claimant’s .employer. Under those particular facts, we held that the exclusivity provisions do not bar a tort action against the employer, where the injured employee had a valid third-party claim against the alleged tortfeasor on the date of his injury and the tortfeasor later merged with the injured worker’s employer. Thomas, 306 Ark. at 234-35. We also noted that the claim was not against the employer in its capacity as employer but as the successor corporation to the alleged tortfeasor. Id.

The appellants’ argument that our holding in Thomas should be extended to embrace a situation where the injury occurred some three years after the corporate merger is unpersuasive. First, the Thomas decision explicitly states that its holding is limited to the particular facts of that case. Second, the appellants’ rebanee on Billy v. Consolidated Machine Tool Corp., 51 N.Y.2d 152, 412 N.E.2d 934, 432 N.Y.S.2d 879 (1980), is misplaced. Although we looked to Billy in our Thomas decision as one of the first cases to adopt the dual-persona theory, the facts underlying Billy are distinguishable from the instant case.

The injured employee in Billy was permitted to maintain a suit against his employer, who had merged with two other corporations prior to the date of the injury, like the instant case. However, the product that resulted in the injury was manufactured and installed by the two merged corporations prior to the merger. Had the plaintiff in Billy not been permitted to sue the employer-manufacturer, the plaintiff would have been barred from any products-liability action against the manufacturer and installer of the defective product. In that vein, the Billy court noted that through the employer’s merger with two other companies, the employer “voluntarily assumed any obligations that those corporations may have had to individuals who might suffer injury as a result of a defect in their product.” (Emphasis added.) Billy, 51 N.Y.2d at 161-62. Here, the appellees neither manufactured nor installed the die-cast machine prior to the merger, and the appellants were not barred from maintaining an action against the die-cast machine’s manufacturer, Cleveland Automatic Machine Company.

Third, the legislature reacted to the Thomas decision by adopting amendments to section ll-9-105(a) that abrogate the dual-persona exception. It would be unreasonable for this court to expand a doctrine that is now clearly defunct and that the legislature has unequivocally annulled. Notably, in section 11-9— 107(e), the legislature stated that a purpose of the section was to annul any inconsistent case law, including Thomas. Accordingly, we conclude that the trial court did not err by finding that the facts of the instant case do not warrant an expansion of the dual-persona exception adopted by this court in Thomas.

II. Summary-judgment motion

The appellants’ second point on appeal contests the trial court’s grant of appellees’ motion for summary judgment. In reviewing summary-judgment cases, this court need only decide if the trial court’s grant of summary judgment was appropriate based on whether the evidence presented by the moving party left a material question of fact unanswered. Further, the moving party always bears the burden of sustaining a motion for summary judgment. All proof must be viewed in the light most favorable to the resisting party, and any doubts must be resolved against the moving party. The moving party is entitled to summary judgment if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entided to a judgment as a matter of law. Ark. R. Civ. P. 56 (1998); Robert D. Holloway, Inc. v. Pine Ridge Add’n Resid. Prop. Owners, 332 Ark. 450, 966 S.W.2d 241 (1998) (citing McCutchen v. Huckabee, 328 Ark. 202, 943 S.W.2d 225 (1997)).

First, Donley and Schulze disagree with the trial court’s finding that there is no genuine issue as to any material fact, and they suggest that the characterization of the transfer of the die-cast machine from Precision to Automatic Castings is one such disputed issue. Appellants argue that the transfer constituted a “sale” by a “supplier” within the meaning of the products-liability statute. On the other hand, the appellees contend that they presented uncontradicted evidence that Precision neither manufactured the machine nor sold it into the stream of commerce. According to the testimony of Dan Jones, the comptroller of Automatic Castings at the time of the transfer, Precision transferred the machine after the merger for book value and entered the transfer as a bookkeeping entry in order to depreciate the machine while in use at Pace’s Automatic Castings site.

The appellants offered no proof to contradict Jones’s testimony. Therefore, we agree with the appellees that the appellants failed to meet proof with proof and that allegations in briefs are not sufficient to demonstrate that a genuine issue of material fact exists. See Sublett v. Hipps, 330 Ark. 58, 952 S.W.2d 140 (1997). Absent any evidence contradicting appellees’ argument that Precision neither sold nor introduced the machine into the stream of commerce, Pace cannot be deemed a supplier, and there are no grounds to reverse the trial court’s grant of summary judgment. Viewing the evidence in the light most favorable to appellants, resolving any doubts against Pace and Precision, and concluding that there is no genuine issue as to any material fact, we hold that the trial court did not err in finding that appellees were entitled to a judgment as a matter of law.

III. Constitutionality of Section 11-9-105(a)

The appellants’ third point on appeal challenges the constitutionality of section 11-9-105(a). However, given that the appellants’ cause of action arose prior to the enactment of the amendment abrogating the dual-persona doctrine, the statute, as amended, has no application to them nor were they prejudiced by its application. In short, appellants suffered no personal harm and lack standing to challenge the statute’s constitutionality.

Moreover, the trial court never ruled on the issue, and the burden of obtaining a ruling was on the appellants. Thus, appellants failed to preserve the issue and have waived the argument on appeal. See Priest v. Polk, 322 Ark. 673, 912 S.W.2d 902 (1995); Brumley v. Naples, 320 Ark. 310, 896 S.W.2d 860 (1995). In light of the foregoing, we decline to reach the merits of this argument. We affirm the trial court on all other points.


author: Donald L. Corbin, Justice.

text:
    YELL COUNTY TELEPHONE COMPANY v. Honorable Van B. TAYLOR, Chancellor, Fifteenth Judicial District
    98-1041
    984 S.W.2d 416
    Supreme Court of Arkansas
    Opinion delivered January 21, 1999

      Tatum, Rife & Tatum Law Firm, by: John Rife, for appellant.

      Barham Law Office, P.A., by: R. Kevin Barham, for appellee.
   Donald L. Corbin, Justice.

Petitioner Yell County Telephone Company, a closely held corporation, seeks a writ of prohibition against Respondent Honorable Van B. Taylor, Chancellor for the Fifteenth Judicial District. Our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(a)(3). We deny the writ.

On September 15, 1994, plaintiffs Joe Sivley Sr., Joe Sivley Jr., John W. Furey, Amelia S. Furey, and Fonda K. Smith filed a declaratory-judgment action in the Yell County Chancery Court against Petitioner and Todd Sanders, officer and director of the corporation. Plaintiffs, who are individual shareholders of the corporation, sought equitable relief and damages based on a reverse stock split. On January 19, 1996, plaintiffs moved for a voluntary nonsuit, stating that Joe Sivley Jr., who had previously transferred all of his shares to Joe Sivley Sr., should be dismissed from the action. On February 6, 1996, Respondent granted plaintiffs’ motion, finding “[t]hat the Motion for Voluntary Non-Suit should be and hereby is granted.” The court clerk then erroneously placed the entire case with the court’s closed files. Since mid-1996, the clerk has refused plaintiffs’ repeated requests to obtain a trial date. Plaintiffs were not notified that the entire file had been closed until 1997.

On April 30, 1998, over two years later, plaintiffs filed a motion to require the clerk to place their pending case with Respondent’s open files. Respondent conducted a hearing on the matter and reviewed plaintiffs’ motion to dismiss Joe Sivley Jr., and its subsequent order granting dismissal. On August 4, 1998, Respondent granted plaintiffs’ motion, finding:

1. That the Clerk of this Court erroneously closed this file pursuant to an Order of Voluntary Non-Suit pertaining specifically to Plaintiff, Joe Sivley, Jr., and that this matter should be and hereby is still pending for Plaintiffs [sic] Joe Sivley, Sr., John W. Furey, Amelia S. Furey and Fonda K. Smith and that the Clerk of the Court shall re-open the Court file.

In Young v. Smith, 331 Ark. 525, 528, 964 S.W.2d 784, 785 (1998), this court explained that jurisdiction is the sole issue in granting or denying a writ of prohibition:

[T]he purpose of the writ of prohibition is to prevent a court from exercising a power not authorized by law when there is no adequate remedy by appeal or otherwise. Tatro v. Langston, 328 Ark. 548, 944 S.W.2d 118 (1997). It is well settled that a writ of prohibition is an extraordinary writ that is appropriate only when the lower court is wholly without jurisdiction. Nucor Holding Corp. v. Rinkines, 326 Ark. 217, 222, 931 S.W.2d 426, 429 (1996). We have stated that a writ of prohibition is never issued to prohibit an inferior court from erroneously exercising its jurisdiction. Dougan v. Gray, 318 Ark. 6, 17, 884 S.W.2d 239, 242 (1994).

Jurisdiction is tested on the pleadings rather than the proof. Bonnell v. Smith, 322 Ark. 141, 908 S.W.2d 74 (1995). Prohibition is proper where the jurisdiction of the trial court depends on a question of law, rather than a question of fact. Id. Petitioner bears the burden of showing that it is entitled to proceed by prohibition instead of appeal. Village Creek Imp. Dist. of Lawrence County v. Story, 287 Ark. 200, 697 S.W.2d 886 (1985).

We first observe that Petitioner, in its attempt to argue that Respondent’s actions were untimely under ARCP Rule 60(b), has mischaracterized plaintiffs’ motion as a motion to reinstate the case. See Slaton v. Slaton, 330 Ark. 287, 956 S.W.2d 150 (1997) (holding that a trial court loses jurisdiction to set aside or modify an order pursuant to Rule 60(b), if it fails to take such action more than ninety days after entering the order). Petitioner thereby suggests that Respondent lacks jurisdiction to hear this action, because it “reinstated” the case after the expiration of ninety days.

Rule 60(b), however, does not apply to the facts of this case for two reasons. First, plaintiffs did not move to modify or vacate Respondent’s order. Second, the relevant pleadings, which include plaintiffs’ motion for voluntary dismissal as to Joe Sivley Jr. and Respondent’s order granting such motion, clearly demonstrate that the action in its entirety was not dismissed. Moreover, under ARCP Rule 41(a), the right to a voluntary non-suit rests solely with plaintiffs. See Walton v. Rucker, 193 Ark. 40, 97 S.W.2d 442 (1936). Respondent was thus limited to the relief requested by plaintiffs, who clearly and unequivocally asked Respondent to dismiss only Joe Sivley Jr.’s claim; hence, the February 6, 1996 order must be construed with plaintiffs’ January 19, 1996 motion. Accordingly, we hold that Respondent correctly granted plaintiffs’ motion, as the clerk erred in a ministerial duty, and that Respondent has jurisdiction to hear this action involving equitable relief. Young, 331 Ark. 525, 964 S.W.2d 784. The writ for prohibition is denied.


author: Robert L. Brown, Justice.

text:
    Alton C. HALL, Ronald J. Hall, and James E. Burns v. Jim Guy TUCKER, et al.; Junction City School District, Intervenor
    98-151
    983 S.W.2d 432
    Supreme Court of Arkansas
    Opinion delivered January 21, 1999

      Pat Hall, for appellants.

      Winston Bryant, Att’y Gen., by: Tim Humphries, Sr. Asst. Att’y Gen., for appellees.

      Cathleen V. Compton, for intervenor.
   Robert L. Brown, Justice.

Appellants Alton C. Hall, stiJ. ce. James E. Burns (hereinafter referred to jointly as Hall) appeal an order of summary judgment in favor of multiple state officials, including the Governor of the State, the State Board of Education, the State Department of Education, and the State Treasurer (hereinafter referred to jointly as Board of Education) and a second order in favor of the intervenor, Junction City School District. Alton Hall is a property owner and taxpayer in Union County. Ronald Hall and James Burns are certified school teachers in the Junction City School District. The crux of Hall’s appeal is that the Arkansas statute permitting Louisiana school teachers to teach in a border school district without Arkansas certification (Ark. Code Ann. § 6-17-404 (Repl. 1993)) is special and local legislation. Hall further contends that the Junction City School District’s allowance of in-kind services from Louisiana as per pupil contributions for the eighty-four Louisiana students educated in that school district was wrong and adversely affected the Arkansas students. We find no error in the trial court’s two orders, and we affirm.

The Junction City School District #75 (School District) is located in Union County and is near the Louisiana border. For years, students from neighboring Claiborne Parrish and Union Parrish in Louisiana have attended school in the School District, and the cost for educating those students has been borne primarily by Arkansas. On September 9, 1994, Hall filed a lawsuit to enjoin the Board of Education from violating the School Finance Act of 1984 and further to compel the Board of Education to prevent the misallocation of state-administered aid to the School District. Specifically, Hall sought to prevent the School District from including Louisiana students in the School District’s average daily membership, which permitted the School District to receive Arkansas minimum foundation funds for the Louisiana students. He further complained that in the 1995-96 school year, Louisiana sent no money to defer the cost of educating its students but instead sent in-kind services, including teachers and two school buses. Following Hall’s complaint, the School District was granted the right to intervene in the action.

The Board of Education then moved for summary judgment and asserted that the School Finance Act of 1984 had been repealed by the Equitable School Finance System Act of 1995, codified at Ark. Code Ann. §§ 6-20-301 through 322 (Supp. 1997). Hall amended his complaint and added the Junction City School Board as a party defendant. He alleged that for the 1996-97 school year, the amount spent in in-kind services by Louisiana was valued at approximately $3,200 for each Louisiana student whereas the contribution was about $4,000 for each Arkansas student. Hall complained that the diminished value attributable to the Louisiana in-kind services was diluting the funds spent by Arkansas on its own students. He further stated that the Board of Education had ordered the School District to stop including Louisiana students in its average daily membership in 1994 and that the practice had halted. He also complained about various wrongful practices, including laying off two of the plaintiffs from their coaching jobs and replacing them with Louisiana coaches with less seniority. As a final point, he alleged wrongful conduct on the part of the School District’s administration, including treating the Louisiana teachers more favorably regarding salary, retirement plans, and certification requirements. In his prayer for relief, Hall (1) prayed that Ark. Code Ann. § 6-17-404 (Repl. 1993), be declared invalid and unconstitutional; (2) sought to enjoin the Board of Education from (a) allowing Louisiana employees to educate Arkansas students in the School District, (b) accepting in-kind educational services from Louisiana, (c) violating various Arkansas Code sections; (3) prayed for a writ of mandamus requiring the Board of Education to perform its duties imposed by law; and (4) sought a judgment for any money fraudulently obtained. After filing his amended complaint, Hall moved for summary judgment and asserted that there were no issues of material fact surrounding the in-kind services from Louisiana and that he was entitled to an injunction to stop the acceptance of these services.

The trial court granted summary judgment to the Board of Education. In doing so, the trial court found that Ark. Code Ann. § 6-17-404 (Repl. 1993) was constitutional under the rational-basis test; that the Board of Education had no statutory duty to monitor or prohibit the School District’s receipt of in-kind services from Louisiana; and that the requests for injunctive relief against the Board of Education were essentially petitions for writs of mandamus and outside a chancery court’s jurisdiction. The trial court refused to grant summary judgment on whether the School District was properly receiving in-kind contributions from Louisiana because the issue involved questions of disputed fact.

The issue of in-kind contributions was set for a hearing, and the School District filed a motion in limine, requesting that the trial court prohibit Hall and his witnesses from referring to any of the other matters raised in the amended complaint that were disposed of by the summary-judgment order. The trial court granted the motion. After a hearing, the court found in favor of the School District and concluded that Hall had put forth no proof that the in-kind services from Louisiana, with a value of approximately $3,200 per student, materially and adversely affected the Arkansas students.

I. Summary Judgment

Hall first contends, generally, that the trial court incorrectly granted summary judgment in favor of the Board of Education. In his argument on appeal, he incorporates all of the grievances he has amassed against the Board of Education and the School Dis- . trict and concludes that his motion for summary judgment should have been granted and the Board of Education’s motion denied. In making this claim, he argues that the trial court erred in finding no genuine issues of material fact.

We recently summarized the major legal principles we use when reviewing a summary-judgment order:

In these cases, we need only decide if the granting of summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. All proof submitted must be viewed in a light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. Our rule states, and we have acknowledged, that summary judgment is proper when a claiming party fails to show that there is a genuine issue as to a material fact and when the moving party is entitled to summary judgment as a matter of law.

Milam v. Bank of Cabot, 327 Ark. 256, 261-262, 937 S.W.2d 653, 656 (1997) (quoting Renfro v. Adkins, 323 Ark. 288, 295, 914 S.W.2d 306, 309-310 (1996) (internal citations omitted)). Bearing these principles in mind, we turn to Hall’s specific arguments.

II. Special or Local Legislation

Hall claims that the trial court erred in its decision that Ark. Code Ann. § 6-17-404 (Supp. 1997) was not special or local legislation. . We disagree.

Amendment 14 of the Arkansas Constitution contains this proscription: “The General Assembly shall not pass any local or special act.” Local legislation is legislation that is arbitrarily applied to only one geographic area of the state, while special legislation arbitrarily separates from the operation of an act some person, place, or thing from another. See Boyd v. Weiss, 333 Ark. 684, 971 S.W.2d 237 (1998); Fayetteville Sch. Dist. No. 1 v. Arkansas State Bd. of Educ., 313 Ark. 1, 852 S.W.2d 122 (1993). Arkansas statutes are presumed constitutional, and the party attacking a statute has the burden of showing that the challenged statute clearly violates the Arkansas Constitution. See Boyd v. Weiss, supra; McCutchen v. Huckabee, 328 Ark. 202, 943 S.W.2d 225 (1997).

The fact that a statute ultimately affects less than all of the state’s territory does not per se render it local or special legislation. See McCutchen v. Huckabee, supra; City of Little Rock v. Waters, 303 Ark. 363, 797 S.W.2d 426 (1990). We have consistently held that a statute that applies to only one area of the state is constitutional if the reason for limiting the statute to one area is rationally related to the purposes of that statute. See McCutchen v. Huckabee, supra; Fayetteville Sch. Dist. No. 1 v. Arkansas State Bd. of Educ., 313 Ark. 1, 852 S.W.2d 122 (1993). What we review is whether the decision to apply the act to only one area of the state is rational. See McCutchen v. Huckabee, supra. The rational-basis standard presumes the rationality of the statute, which when applied to social and economic legislation can only be overcome by a clear showing of arbitrariness. See Kadrmas v. Dickinson Public Schools, 487 U.S. 450 (1988). We may also go beyond the legislation and take judicial notice of facts relevant to whether the act’s operation and effect are local. See McCutchen v. Huckabee, supra; Littleton v. Blanton, 281 Ark. 395, 665 S.W.2d 239 (1984).

We turn then to § 6-17-404, which reads:

Any person licensed as a school teacher or administrator in an adjoining state, who serves as a teacher or administrator in any public school in this state located in a county having a population of at least forty-two thousand (42,000) but not more than forty-seven thousand (47,000) according to the 1970 federal Decennial Census and having an intermix of students from Arkansas and an adjoining state, and who is compensated for services in this state by an adjoining state or school district or districts in such adjoining state, shall without further qualification be allowed to serve in such school in a capacity for which qualified in the adjoining state without affecting the rating of the school.

The population parameters of § 6-17-404 indicate that the statute may well be limited to one county of the state. Nevertheless, Hall offered no proof on that point, and we will not engage in speculation or conjecture about whether other Arkansas counties are affected. Moreover, whether the application of § 6-17-404 is limited to one geographic area is largely irrelevant to our decision because we agree with the trial court that the statute is rationally related to Arkansas’s interest in assisting one or more border school districts to obtain teachers from adjoining states and thereby foster better education for all students. Nor do we view the fact that a neighboring state may have different certification requirements or a dissimilar retirement plan as a reason for concluding that § 6-17-404 is arbitrary or capricious.

Hall goes further and questions whether in fact § 6-17-404 assists a border school district to obtain teachers. He points to his experience with the School District and argues that Arkansas teachers are replaced by teachers not certified by this State. This at least, he urges, raises a fact question regarding the rational basis behind § 6-17-404. We disagree. Hall’s burden was to show that a statute which is presumed constitutional clearly violated the Arkansas Constitution as local or special legislation. We hold that a rational basis exists for this law affecting border school districts and that Hall’s allegations of improper teacher replacements do not undermine or invalidate the legitimate purposes behind the statute.

On a related point, Hall argues that § 6-17-404 is unconstitutional because it allows the School District, in its sole discretion, to prescribe who it can educate and who it can use as teachers and to place a value on in-kind services. According to Hall, the effect of this is an impermissible exercise of legislative authority by an administrative body to arbitrarily set school-funding requirements and place values on in-kind services. The Board of Education answers in its brief that there are guidelines in the statute which have the effect of limiting local authority: the out-of-state teacher must be licensed in an adjoining state, the public school must be located in a county with a population of at least 42,000 but no more than 47,000, and the county must have an intermix of children from Arkansas and an adjoining state.

We decline to reach the issue of a wrongful exercise of legislative authority because the record and abstract do not reveal that Hall ever obtained a ruling from the trial court on this precise issue. As a result, we will not decide the question for the first time on appeal. See Jackson v. State, 334 Ark. 406, 976 S.W.2d 370 (1998); C.H. v. State, 333 Ark. 613, 973 S.W.2d 477 (1998). Hall also contends that § 6-17-404 is unconstitutionally vague, but, again, he failed to obtain a trial court ruling on this specific question, and we decline to decide the issue. See id.

III. Motion in Limine

Hall next argues that the School District’s motion in limine was improperly granted because it limited the evidence that he could introduce at the hearing on in-kind services following the summary-judgment order. This argument is meritless. The trial court’s decision to limit evidence to matters not already decided appears eminently sensible. Moreover, it is well within the province of the trial court to limit testimony to the issue at hand. We have often emphasized the importance of a trial court’s controlling the orderly progression of matters before that court. See Solomon v. State, 323 Ark. 178, 913 S.W.2d 288 (1996); Cook v. State, 316 Ark. 384, 872 S.W.2d 72 (1994). That is precisely what the trial court did with its ruling.

IV. In-Kind Services

For his final point, Hall claims that the trial court should have found that the Louisiana in-kind services, which represented contributions on behalf of the Louisiana students adversely impacted the Arkansas students in the School District. According to testimony, the services provided from Louisiana to educate eighty-four Louisiana students in school year 1996-97 were eight teachers, one bus driver and bus, material for the bus, paper, and library books. We first observe that the trial court issued an opinion with findings of fact. Our standard of review for a trial court’s findings of fact is whether the findings are clearly against the preponderance of the evidence. Ark. R. Civ. P. 52(a). In this regard, due regard should be given to the trial court’s opportunity to evaluate the credibility of witnesses. See Ford Motor Credit Co. v. Ellison, 334 Ark. 357, 974 S.W.2d 464 (1998).

It is true that the per student value placed on Louisiana’s in-kind services was $3,200 while the per student Arkansas contribution was $4,000. The trial court, however, justified the disparity with the following reasoning. The court first pointed out that Claiborne Parrish in Louisiana contributed eight teachers to the School District, five of which were used to meet Arkansas standards. Without these teachers, the trial court found that courses would be deleted from School District curriculum and class sizes increased. Alternatively, if new teachers were hired to replace the Louisiana teachers, funds would have to be redirected from other services. The trial court then concluded:

The Plaintiff presented no proof that the Claiborne Parrish in-kind contribution, which is less than the Arkansas per student contribution, materially and adversely affects the Arkansas students. As Mr. Kelly stated, JCSD could absorb all eighty-four (84) Claiborne Parrish students in its school district without much additional cost. The Claiborne Parrish students are distributed throughout the school district from kindergarten through the twelfth grade. The contributions made by Claiborne Parrish allowfs] the JCSD to redirect its own resources in a manner that benefits direcdy the Arkansas students by providing additional elective courses. Without the contribution from Claiborne Parrish, the Arkansas funds would have to be used to meet the Arkansas standards currently paid for by Claiborne Parrish. The State Department of Education has audited the in-kind contributions for 1995 and 1996 and has not objected to the use of in-kind contributions.

In short, the trial court spelled out the benefits derived from the Louisiana in-kind services and, particularly, the Louisiana teachers, while also detailing the drawbacks if the services were not available. In effect, the disparity in per student contributions was resolved by these tangible benefits. The trial court further underscored the fact that no proof was offered on how Arkansas students were damaged by using these in-kind services as a contribution for educating the Louisiana students. On the contrary, as already pointed out, the Arkansas students derived a clear benefit, in the court’s opinion. The trial court concluded that should the disparity in the Louisiana in-kind services and the Arkansas contributions become such that Arkansas students did indeed suffer, the issue could be revisited. We discern no error in the trial court’s findings or conclusions.

Affirmed.

       Miscounting average daily membership is not an issue on appeal.