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

text:
    Gary D. BARNES v. Robert WILKIEWICZ and Rothchild Wallace, Jr.
    89-114
    783 S.W.2d 36
    Supreme Court of Arkansas
    Opinion delivered January 29, 1990

      Gary Eubanks & Associates, by: James Gerard Schulze, for appellant.

      Laser, Sharp, Mayes, Wilson, Bufford & Watts, P.A., by: Ralph R. Wilson, for appellee.
   Jack Holt, Jr., Chief Justice.

Gary Barnes, appellant, sued

Rothchild Wallace, Jr., appellee, and Robert Wilkiewicz for personal injuries sustained on December 31, 1986. Barnes and Wallace are employees of Virco Manufacturing Company. Wallace is Barnes’s supervisor. Barnes alleged that his injuries were the result of the combined negligence of Wilkiewicz and Wallace, in that Wilkiewicz collided with a pickup truck which Wallace had parked adjacent to a disabled tractor trailer belonging to Virco.

Wallace moved for summary judgment, contending that Barnes’s remedy against him was limited to the Arkansas Workers’ Compensation Act. The trial judge granted summary judgment and Barnes, after taking a non-suit against Wilkiewicz, has appealed. We affirm the order.

Barnes concedes Wallace’s supervisory status, but maintains that Wallace is not being sued as an employee, but as a driver for having “breached the rules of the road, not the rules of his job.”

Barnes’s reliance on King v. Cardin, 229 Ark. 929, 319 S.W.2d 214 (1959), is misplaced. In King, the appellant, King, drove a dump truck in hauling asphalt on a highway construction job and the appellee, Dyer, spread the asphalt hauled by King. They both were employed by the same contractor. King negligently backed a dump truck over Dyer, contrary to a company practice that dump trucks were not to be backed up to an asphalt paving machine while the machine was shut off, and fatally injured him. The workers’ compensation provisions did not prevent Dyer from maintaining an action for negligence against King, and the trial court awarded damages to Dyer’s estate.

In King, however, a master determined that a company practice established that dump trucks were not to be backed up to an asphalt paving machine while the machine was shut off, which was the underlying act which caused Dyer’s fatal injury.

Barnes interprets King as holding that the duty Wallace owed to Barnes was a personal duty of due care in the use of the public streets, unrelated to any duty between co-employees. But we read that decision as merely recognizing that an employee is held to be a “third party” under Ark. Code Ann. § 11-9-410 (1987) and, therefore, claims between co-employees are not barred by the Arkansas Workers’ Compensation Act. The opinion makes no distinction between rules of the job, as opposed to rules of the road, nor does it deal with the issue of safety at the place of work.

The problem confronting appellant Barnes is that this court has adopted what we regard as the majority view that supervisory employees, like employers, are immune from liability for failing to provide a safe place to work or when their general duties involve the overseeing and discharging of that same responsibility. Simmons First Nat’l Banks. Thompson, 285 Ark. 275, 686 S.W.2d 415 (1985). This court in Simmons announced itself solidly in agreement with language from State ex rel. Badami v. Gaertner, 630 S.W.2d 175 (Mo. App. 1982):

Under present day industrial operations, to impose upon executive officers or supervisory personnel personal liability for an accident arising from a condition at a place of employment which a jury may find to be unsafe would almost mandate that the employer provide indemnity to such employees. That would effectively destroy the immunity provisions of the workmen’s compensation law.

We have continued to adhere to that position in later decisions: Fore v. Circuit Court of Izard Co., 292 Ark. 13, 727 S.W.2d 840 (1987); Allen v. Kizer, 294 Ark. 1, 740 S.W.2d 137 (1987); Lewis v. Industrial Heating & Plumbing of St. Joseph, Mo., 290 Ark. 291, 718 S.W.2d 941 (1986).

The interrelationship between Barnes and Wallace was described as follows:

Rothchild Wallace, Jr., is an employee of Virco Manufacturing Corporation, Conway Division. He is currently classified as a Maintenance Mechanic “A”, lead person, third shift, truck shop. Mr. Wallace was so employed and held that title on December 31, 1986. As lead person for third shift truck shop, Mr. Wallace has supervisory responsibility for all persons employed by Virco Manufacturing and assigned to the truck shop third shift. Mr. Wallace had those same responsibilities on December 31, 1986. In his capacity as third shift lead person, Mr. Wallace had supervisory responsibility over the person of Gary D. Barnes who was a third shift mechanic. At the time of the accident which occurred in the early morning hours of .December 31, 1986, Mr. Wallace was acting in his supervisory capacity.

In this case, both Barnes and Wallace were assisting in the repair of a disabled Virco tractor trailer. Wallace was Barnes’s supervisor at Virco and he transported Barnes to the location of the tractor trailer in a Virco truck. The disabled tractor trailer was located next to a highway; according to Barnes, Wallace partially parked the Virco truck on the highway. While they were engaged in the repair of the tractor trailer, Wilkiewicz collided with the rear of the parked Virco truck and injured Barnes’s leg.

Consequently, Barnes was injured during, and within, the course and scope of his employment with Virco. The accident scene was the employee’s workplace; Wallace was acting in his capacity as Barnes’s supervisor. As in Allen, Barnes’s allegations and Wallace’s actions involve a failure to provide a safe place to work. As a result, Wallace is immune from suit for negligence in failing to provide a safe place to work.

Accordingly, we agree with the trial court that there was no genuine issue of material fact and that the Workers’ Compensation Act provides Barnes’s exclusive remedy.

Therefore, the judgment of the trial court is affirmed.

Glaze and Turner, JJ., not participating.

Hays, J., concurs. Newbern, J., dissents.

Steele Hays, Justice,

concurring. The complaint of Gary Barnes against Rothchild Wallace tells us that Wallace positioned the pickup truck beside the disabled tractor trailer rig of Virco, on which the two men were working. The only allegation of negligence is that Wallace “failed to exercise ordinary care in the manner in which he positioned the pickup truck.”

Several crucial factors are undisputed: Barnes and Wallace are co-employees of Virco; Wallace is Barnes’s supervisor; Barnes’s injuries occurred while the two men were regularly engaged in their duties to Virco; Wallace’s conduct was not intentional; Barnes’s injuries are covered under the Arkansas Workers’ Compensation Act.

Barnes does not challenge any of those factors, he simply asks us to draw a distinction based on his contention that Wallace “failed to prove that his breach of duty was not a personal duty, as opposed to a duty imposed by his employment.”

As the majority opinion notes, in a number of cases we have recognized immunity from tort liability by supervisory employees: Fore v. Circuit Court of Izard Co., 292 Ark. 13, 727 S.W.2d 840 (1987); Allen v. Kizer, 294 Ark. 1, 740 S.W.2d 137 (1987); Lewis v. Industrial Heating & Plumbing, 290 Ark. 291, 718 S.W.2d 941 (1986); and Simmons First Nat’l Bank v. Thompson, 285 Ark. 275, 686 S.W.2d 415 (1985). Were we to adopt the position proposed by the appellant we would, I believe, be effectively overruling those cases (which appellant implicitly disavows he is asking us to do) or, at the very least, be creating a precedent that would not be easily reconciled with those cases. Moreover, we would be further distancing ourselves from a pronounced majority of other jurisdictions. According to Professor Larson, only eleven states allow suits against co-employees. “The great majority of states and the Longshoreman Act now exclude co-employees from the category of third persons.” 2A Larson, Workmen’s Compensation Law § 72.21. “A strong tide toward co-employee immunity has been running for some years.” Id. § 72.11 p. 14-55.

I do not propose that we depart from the position taken by this court in King v. Cardin, 229 Ark. 929, 319 S.W.2d 214 (1959), but neither would I favor moving against Larson’s “strong tide,” absent a clear and informed petition to do so.

David Newbern, Justice,

dissenting. The court’s opinion correctly states that a supervisor cannot be held individually liable to an employee whose injury is covered by workers’ compensation for breach of the general duty to provide a safe workplace. The point raised by appellant Barnes is, however, that the general duty of operators of vehicles to obey the rules of the road is separate from the duty to provide a safe workplace. Contrary to the majority of the members of the court, I find support for the appellant’s position in logic and in law.

Like corporate officers, and with even stronger reason, supervisors and foremen enjoy no general immunity from suits by coemployees, under such outmoded concepts as the vice-principal doctrine. Some states have held, however, that a supervisor, like a corporate officer, cannot be held liable by a coemployee for breach of a corporate duty, such as that to provide a safe place to work, but can be held only for breach of a personal duty. Others have taken the position that a supervisor can be held personally liable for his own failure to fulfill the employer’s duty of providing a safe place to work. [2A Larson, Workmen’s Compensation Law, § 72.14 (1987), footnotes omitted.]

Barnes’s reference to the “rules of the road” seems to me to be a reference to the “personal duty” to which Professor Larson’s book refers.

In Kingv. Cardin, 229 Ark. 929,319 S.W.2d214 (1959), we held that a coemployee was a “third person” and could thus be sued for his negligence in backing a truck over the decedent even though it was done in the scope of employment and was covered by workers’ compensation. There was no need in that case to discuss the liability the defendant would have had had he been the decedent’s supervisor. What if that had been the case? Would we have held that a supervisor who negligently backed a truck over an employee was immune because he could not be held liable for failure to provide a safe workplace? I think not. Our point in that case was that the coemployee could be liable because there was evidence he was backing the truck too fast, that is, violating the “rules of the road” applicable in the circumstances of that case. In this case, Barnes suggests Wallace violated the rules of the road by improperly parking the employers’ truck in such a way as to cause the accident; anpther violation of the “rules of the road.” Should he be excused from liability because he is a supervisor? I think not because his improper parking of the truck was not an act done in supervision of Barnes and it had nothing to do with keeping a safe workplace in the sense that “workplace” has been used in the other cases cited by the court’s opinion.

In State ex rel. Badami v. Gaertner, 630 S.W.2d 175 (Mo. App. 1982), an employee who had lost three fingers in a shredding machine accident at American Fiber Company attempted to assert personal liability of the president and the production manager of the company for failure to provide a safe place to work because the shredding machine which injured him lacked certain safety devices. In Simmons First Nat’l Bank v. Thompson, 285 Ark. 275, 686 S.W.2d 415 (1985), employees sought to sue supervisory personnel for injuries they received when two chemicals were allowed to flow together at the International Paper Company plant, creating a poison gas. In Lewis v. Industrial Heating & Plumbing of St. Joseph, Missouri, 290 Ark. 291, 718 S.W.2d 941 (1986), the injured employee attempted to sue a supervisor for breach of his duty to keep a safe work place at a construction site in negligently giving instructions about disposition of a flammable substance. In Fore v. Circuit Court of Izard County, 292 Ark. 13, 727 S.W.2d 840 (1987), a supervisor was sued for improperly keying a microphone and causing dynamite to go off at a construction site. We wrote “the undisputed facts ... are that the petitioner was acting within the scope of his supervisory duties . . . .” In Allen v. Kizer, 294 Ark. 1, 740 S.W.2d 137 (1987), supervisors were accused of allowing bare wiring to go uncorrected at Planters’ Cotton Mill.

None of these cases involved the possibility that a separate duty, one which would have existed regardless of the employment relationship, was violated. In all of them the alleged negligence had to do with the supervisory duties of the defendants to keep safe workplaces. All of them involved fixed plant settings with the exception of the construction site case which, I submit, qualifies more readily as a workplace in the sense of the other cases than a roadside repair where rules other than those governing the traditional duties of a supervisor are in effect.

Justice Hays’s concurring opinion in this case suggests that our decision in King v. Cardin, supra, is out of step with the majority of jurisdictions as reported by Professor Larson. I agree with that assessment. Perhaps we should overrule the case. We should not, however, pretend it is distinguishable on the basis that the defendant here happened to be a supervisor absent some showing that he was in violation of his supervisory duty to keep a safe workplace rather than acting as a mere co-employee and parking a truck in such a negligent manner as to cause injury through an automobile accident.

I respectfully dissent.


source: Caselaw Access Project

author: Jack Holt, Jr., Chief Justice.

license: Public Domain

text:
    CITY NATIONAL BANK of Fort Smith v. Larry J. GOODWIN and Sandra J. Goodwin
    89-259
    783 S.W.2d 335
    Supreme Court of Arkansas
    Opinion delivered January 29, 1990

      Harper, Young, Smith & Maurras, by: S. Walton Maurras, for appellant.

      Jack Skinner, for appellee.
   Jack Holt, Jr., Chief Justice.

This appeal involves conversion of a checking account and savings account and wrongful dishonor of checks written on the checking account. Jurisdiction is pursuant to Ark. Sup. Ct. R. 29(1 )(c).

In the fall of 1985, the appellant, City National Bank of Fort Smith (CNB) had two customers named Larry Goodwin, the appellee, Larry J. Goodwin, and Larry K. Goodwin. In November, 1985, two loans of Larry K. Goodwin were in default. On November 26, 1985, a collection officer, Jim Geels, initiated a process to take money from Larry K. Goodwin’s deposit accounts and credit them to Larry K. Goodwin’s loan. Before he withdrew the funds, he pulled Larry K’s loan file and checked the Social Security number on a document in the file. The Social Security number shown for Larry K. Goodwin was, in fact, Larry J. Goodwin’s number. After checking this number in the computer, Geels took $3,229.07 from the joint checking and savings accounts of Larry J. Goodwin and his wife, Sandra Goodwin (Goodwins), instead of the accounts of Larry K. Goodwin.

On Saturday, November 30, Ms. Goodwin received written notice from CNB that four checks she had written between November 21 and 26, 1985, to four merchants (Harps, Vaughn Drug, Radiology Services, and the Colony Shop) had been returned for insufficient funds and that the Goodwins’ joint checking account had a zero balance. Ms. Goodwin went to the central branch on the same day, and someone in the loan department informed her that there was no money in the Goodwins’ checking account and that there was also a hold on their savings account.

After Ms. Goodwin told the employee that there should be funds in the accounts, she was referred to a loan officer, who told her that it appeared Jim Geels had taken the money to pay someone else’s loan. Two unsuccessful attempts to contact Geels were made. Ms. Goodwin requested that certified letters of apology be sent and calls made to the merchants involved, and that her money be returned.

On Monday, December 2, she called three of the businesses to which she had written the checks. Apparently, none of them had received a call or letter. Later in the day, Ms. Goodwin met with Geels at the main bank; Geels told her that he had taken money from the wrong account and that letters would be sent to the persons who received the returned checks stating that the bank was at fault. On the same day, Geels redeposited the money into the accounts and informed her he had done so. Later that day, Geels dictated letters to the businesses that received the returned checks. He mailed the letters on the next day, December 3. No check written on the checking account subsequent to December 2, 1985, was dishonored.

On Thursday, December 5, the Goodwins received notice from CheckRite that the check written on November 21 to Vaughn Drug had been returned; notice from Radiology Services that the check written on November 21 had been returned; notice from Harps that the check written on November 26 had been returned; a bank statement from CNB, dated November 29, postmarked December 3, showing a zero balance in both their checking and savings accounts; and copies of four letters from CNB to Harps, Vaughn Drug, Radiology Services, Colony Shop, each stating that the error was due to a mistake by the bank.

On December 16, the Goodwins received a bank statement dated December 11 reflecting a balance of $1,560.91 in their checking account and that a number of checks had cleared the account between December 2 and 11. The statement did not reflect the status of the savings account. About this time, the Goodwins received another notice from CheckRite that a check written on November 25 had been returned.

The Goodwins received a bank statement on January 10, 1986, reflecting money in the checking account, but again failing to contain anything concerning the savings account. On January 14, 1986, Ms. Goodwin closed both accounts and was paid the correct balances due.

Subsequently, CNB learned from a letter from the Good-wins’ attorney that other checks written to merchants on November 12 and 21 had also bounced. CNB wrote a letter to one merchant and called the other, stating that it was the bank’s fault that the checks were returned. The Goodwins did not notify the bank concerning any discrepancy or omission that occurred after December 2.

On February 6, 1986, the Goodwins filed suit against CNB based upon two causes of action. First they alleged that CNB willfully, maliciously, and intentionally, or in the alternative, acted with such reckless disregard of the consequences from which malice may be inferred, withdrew all the funds from their accounts and converted the funds to its own use. Secondly, they alleged that CNB wrongfully dishonored seven checks. For each cause of action, the Goodwins asked for $20,000.00 in compensatory damages and $144,706.06 in punitive damages.

At the close of the Goodwins’ case, CNB moved for a directed verdict on the issue of punitive damages on both causes of action. The trial court denied the motion. The jury found for the Goodwins and awarded compensatory damages of $10,000.00 and punitive damages of $30,000.00. The court entered judgment for $40,000.00, plus interest and costs. Thereafter, CNB moved for judgment notwithstanding the verdict, or in the alternative for a new trial, on the basis that there was insufficient evidence to support the verdict. The court denied the motion. From this order, CNB appeals.

CNB argues ten points for reversal. We reverse and remand on the ground that the trial court should have granted a directed verdict on the issue of punitive damages and, as a result, the trial court further erred in admitting into evidence two exhibits on the issue of punitive damages. Accordingly, we do not address CNB’s other four contentions relating solely to punitive damages. However, it is necessary to consider three of the four remaining issues inasmuch as we remand to the trial court.

I. PUNITIVE DAMAGES/ADMISSIBILITY OF EXHIBITS

CNB contends that the trial court erred in failing to direct a verdict on the issue of punitive damages and in admitting into evidence plaintiffs’ Exhibit No. 69, a chart showing punitive damages, and Exhibit No. 71, a statement of CNB’s financial condition on December 31, 1985, in that these exhibits were admissible only on the issue of punitive damages.

In considering the denial of a motion for directed verdict, this court views the evidence in a light most favorable to the party against whom the motion is sought and gives it its highest probative value, taking into account all reasonable inferences deducible from it. We affirm if there is substantial evidence to support the verdict. James v. Bill C. Harris Construction Co., 297 Ark. 435, 763 S.W.2d 640 (1989).

This court has stated that conversion is “the exercise of dominion over property in violation of the rights of the owner or person entitled to possession.” Thomas v. Westbrook, 206 Ark. 841, 177 S.W.2d 931 (1944). See also McKenzie v. Tom Gibson Ford, Inc., 295 Ark. 326, 749 S.W.2d 653 (1988); Ford Motor Credit v. Herring, 267 Ark. 201, 589 S.W.2d 584 (1979). Conversion can only result from conduct intended to affect property. W. Prosser, Handbook of the Law of Torts § 15 (5th ed. 1984). See also First National Bank of Brinkley v. Frey, 282 Ark. 339, 668 S.W.2d 533 (1984); Restatement (Second) of Torts § 222 A. (1965). The intent required is not conscious wrongdoing but rather an intent to exercise dominion or control over the goods that is in fact inconsistent with the plaintiffs rights. W. Prosser, supra.

Punitive damages are not recoverable in a conversion action simply because the defendant intentionally exercised control or dominion over the plaintiffs property. Simply put, the act of conversion in itself will not support an award of punitive damages. Instead, the plaintiff must show that the defendant intentionally exercised control or dominion over the plaintiffs property for the purpose of violating his right to the property or for the purpose of causing damages. See Walt Bennett Ford, Inc. v. Keck, 298 Ark. 424, 768 S.W.2d 28 (1989); Herring, supra. See also McKenzie, supra.

In Walt Bennett Ford, supra, a buyer purchased an automobile from Walt Bennett Ford. Mechanical and other defects immediately developed, and the buyer took it back to the dealer for repair on at least two occasions. On the first occasion, the dealer provided a substitute automobile for the buyer to use while his car was being repaired. On the second occasion, the buyer told the dealer that he would be out of the state for six to eight weeks and needed a “loaner” automobile to use while his car was being repaired. He testified that he was told that there would be no charge for the “loaner.” On both occasions, the buyer signed a lease agreement form but testified that the form was blank when he signed it and that he was told that the form was only necessary to waive liability insurance on the substitute automobile.

When the buyer returned to pick up the car seven weeks later, the dealer demanded $1,200.00 in rent for the use of the substitute automobile. Upon the buyer’s refusal to pay, the dealer reduced the rental to $360.00, calculated to cover the time that the dealer contended the car had been repaired and available to be picked up. The buyer testified that he had not received prior notice that the automobile was ready and refused to pay the reduced demand. Because of the buyer’s refusal to pay rental, the dealer declined to surrender the car, and its service manager told the buyer that the dealer would keep the car until the buyer paid the rental claimed. The buyer left the dealership on foot.

It was undisputed that all repairs to the car were warranty repairs, that the buyer owed nothing for the repairs, and that the lease agreement form for the substitute automobile did not grant the dealer a possessory lien on the automobile being repaired.

On appeal, the dealer contended that the trial court erred in submitting the issue of punitive damages to the jury and that the jury’s award of punitive damages was unsupported by the evidence. This court disagreed, stating:

Appellant’s conduct of retaining the Yugo even through the trial, thirteen months after the demand for surrender, without any claim of mistake or privilege or other legal right to do so, presents a submissible issue on punitive damages. The jury reasonably could have concluded that appellant withheld Keck’s property, his means of transportation, with the intent of causing him such inconvenience and damage that he would be coerced into payment of a questionable debt. Appellant continued his course of conduct even after it was sued for conversion, obtained legal counsel and filed a counterclaim for the disputed rental. The evidence is sufficient to support a finding of intent to cause damage.

There is no evidence in the case at bar that CNB converted the Goodwins’ money for the purpose of violating their rights to the money or for the purpose of causing damages. The evidence simply shows that CNB, as a result of its confusion over the identities of Larry K. Goodwin and Larry J. Goodwin, intentionally exercised dominion over the wrong Goodwins’ funds. After Ms. Goodwin informed CNB of its error and CNB verified what had occurred, CNB promptly redeposited the money into the Goodwins’ checking and savings accounts. When Ms. Goodwin closed the accounts, CNB paid her the correct balances due. Granted, the bank statements sent to the Goodwins after CNB redeposited the money in both accounts did not reflect the status of the savings account; however, this evidence, standing alone, does not show an intent by CNB to violate the Goodwins’ rights to their money or an intent to cause damages. Under the circumstances, we cannot say there is substantial evidence to support an award of punitive damages on the conversion cause of action.

Likewise, we find that there is no substantial evidence to support an award of punitive damages on the wrongful dishonor cause of action. This court has indicated that punitive damages may be recoverable where a payor bank wrongfully dishonors a check written by its customer. See Twin City Bank v. Isaacs, 283 Ark. 127, 672 S.W.2d 651 (1984). However, only actual damages are recoverable where the dishonor occurs through a mistake. Ark. Code Ann. § 4-4-402 (1987).

This court has not defined the parameters of the concept, “mistaken dishonor.” Other courts, interpreting provisions identical to Ark. Code Ann. § 4-4-402, have defined “mistaken dishonor” as wrongful dishonor done erroneously or unintentionally. Yacht Club, Etc. v. First National Bank, Etc., 101 Idaho 852, 623 P.2d 464 (1980) (Interpreting Idaho Code § 28-4-402 (1980)). The word “mistake” is to be construed as limited to wrongful dishonor made in good faith. Elizarraras v. Bank of El Paso, 631 F.2d 366 (5th Cir. 1980) (Interpreting U.C.C. 4-402). Where a dishonor is caused by a set-off or charge made by a bank under an erroneous belief that it had a legal right to do so, the dishonor is not classified as mistaken but as willful or intentional. Yacht Club, supra. See also J. White & R. Summers, Handbook of the Law Under the Uniform Commercial Code, § 17-4 (2d ed. 1980).

There was simply no evidence presented that CNB acted in bad faith or that it deliberately or willfully dishonored the Goodwins’ checks. In addition, the dishonor was not the result of a set-off caused by an erroneous belief by CNB that it had the legal right to do so. The record is devoid of evidence that CNB ever formed a belief as to its legal right to set-off the Goodwins’ checking account. It simply confused the identities of Larry K. and Larry J. Goodwin and, as a result, set-off the checking account of Larry J. Goodwin and Sandra Goodwin instead of the accounts of Larry K. Goodwin. In sum, the dishonor of the Goodwins’ checks occurred through a mistake. Accordingly, punitive damages were not recoverable.

Since the issue of punitive damages should not have been submitted to the jury, plaintiffs’ Exhibit No. 69, the chart showing punitive damages calculated as one percent of CNB’s stockholders’ equity, and Exhibit No. 71, the statement of CNB’s financial condition, were not admissible. See Life and Casualty Ins. Co. of Tenn. v. Padgett, 241 Ark. 353, 407 S.W.2d 728 (1966). See also KARK-TV v. Simon, 280 Ark. 228, 656 S.W.2d 702 (1983).

In law cases, the issues of punitive and compensatory damages may be so interwoven that an error with respect to one requires a retrial of the whole case. Id. See also Shepherd v. Looper, 293 Ark. 29,732 S.W.2d 150 (1987). This court has held that where the issue of punitive damages is erroneously submitted to the jury, together with the defendant’s financial condition, an award of compensatory damages cannot stand. Padgett, supra; KARK-TV, supra.

Accordingly, we reverse and remand the entire case for further proceedings consistent with this opinion.

II. ISSUES ON REMAND

A. JURY INSTRUCTIONS ON CONVERSION

CNB contends that Instruction No. 6 on conversion given by the trial court was defective in that it failed to advise the jury that there must be a finding that CNB intended to exercise dominion over the Goodwins’ accounts. CNB also contends that its proposed Instruction No. 6 correctly advised the jury on the law of conversion.

Instruction No. 6 given by the trial court stated that the Goodwins had the burden of proving three essential propositions to recover on their conversion cause of action:

(1) That they have sustained damages;

(2) That City National Bank took or exercised dominion over the checking and savings account in violation of the rights of the owners or the person entitled to possession; and

(3) That such taking or exercising of dominion over the checking and savings accounts was a proximate cause of Larry and Sandra Goodwin’s damages.

Inasmuch as conversion can only result from conduct intended to affect property, CNB is correct that Instruction No. 6 should have advised the jury that the Goodwins had the burden of proving that CNB intended to exercise dominion over their accounts. However, CNB’s assertion that its proposed instruction properly stated the law on conversion is incorrect. Granted, the proposed instruction correctly informed the jury that the Goodwins had the burden of proving that CNB exercised dominion or control over their accounts in violation of their rights and intended to do so. Notwithstanding, the proposed instruction erroneously stated that the Goodwins had the burden of proving that they made demand for the return of their funds and that CNB refused to return the funds. Proof of demand and refusal is not necessary to support a conversion action. Westark Production Credit Association v. Shouse, 227 Ark. 1141, 305 S.W.2d 127 (1957); Myers v. Myers, 214 Ark. 273, 216 S.W.2d 54 (1948).

B. INTERVENING CAUSE

CNB contends that the court erred in failing to give its offered Instruction A on intervening cause in that the Goodwins’ own actions caused any damages they suffered. We disagree.

Offered Instruction A, modified AMI Civil 2d 503, stated:

If, following any act or omission of a party, an event intervened which in itself caused any damage, completely independent of the conduct of that party, then his act or omission was not a proximate cause of the damage.

The question of intervening cause is simply a question of whether the original act of negligence or an independent intervening cause is the proximate cause of an injury. Hill Construction Co. v. Bragg, 291 Ark. 382, 725 S.W.2d 538 (1987). The original act or omission is not eliminated as a proximate cause by an intervening cause unless the latter is in itself sufficient to stand as the cause of the injury. Id. The intervening cause must be such that the injury would not have been suffered except for the act, conduct, or effect of the intervening cause totally independent of the acts of omissions constituting the primary negligence. Id.

In light of our language in Hill, it is clear that the intervening cause is a negligence concept. It has no application to intentional tort or wrongful dishonor cases such as the case before us. In short, the court was correct in refusing to give the instruction on intervening cause.

C. TORT OF OUTRAGE

CNB contends that the trial court erred in failing to give its offered Instruction E, modified AMI Civil 3d 404, on the tort of outrage. Since there was no evidence presented at trial to warrant an instruction on outrage, this argument is meritless.

Reversed and remanded.

Turner, J., not participating.


text:
    Thomas WOMACK v. STATE of Arkansas
    CR 89-171
    783 S.W.2d 33
    Supreme Court of Arkansas
    Opinion delivered January 29, 1990

      Honey & Honey, P.A., for appellant.

      Steve Clark, Att’y Gen., by: R.B. Friedlander, Solicitor General, for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, Thomas Womack, was convicted of two counts of delivery of cocaine and one count of delivery of marijuana and sentenced to forty years imprisonment and a fine of $50,000. For reversal, Womack contends that (1) he established the defense of entrapment by a preponderance of the evidence; (2) that the trial court erred in overruling his objection to hearsay testimony; (3) that the trial court erred in denying his motion for directed verdict based upon the State’s failure to properly identify him at trial; and (4) that the court erred in allowing testimony concerning a criminal charge other than the one for which he was being tried. We find no error and affirm.

From February 2, 1988, until October 25, 1988, Arkansas State Police conducted an undercover drug operation in Ouachita County. Mark Tokie, an undercover agent employed by PLE, a private law enforcement firm, was hired by the LTV plant in East Camden to identify drug dealers and make buys on company property when possible.

The plan was that Tokie would work a month at LTV to “fit in” with and meet employees who were involved with drugs and work in cooperation with the police authorities in the area.

Tokie met Mike Nix on the first day he worked. Approximately six weeks later, Nix sold him marijuana. This was around April 15, 1988. On several occasions thereafter, Tokie “hit Nix up” for marijuana, and around the first week of May he had a conversation with Nix “about buying bigger amounts.” On May 6, Nix introduced Tokie to Womack, an electrician at the plant, and told him (Tokie), “Here’s the guy you need to talk to.” Prior to this time, Tokie had no information that Womack was selling or using drugs.

On the same day, Tokie and Womack went out to Womack’s truck. Womack smoked and Tokie simulated smoking marijuana, which was supplied by Womack. At trial, Womack’s version of the facts was radically different from that of the State. He testified that Tokie brought up the subject of marijuana, suggested he use it to help his back problems, and then supplied it for them to smoke. According to Womack, Tokie told him he would like to locate some marijuana, and he (Womack) told Tokie he would “look around and see if he could find some.”

Tokie and Womack spoke again on May 18. At 8:00 p.m. on May 31, Tokie and Womack met to conduct a drug transaction. Tokie followed Womack to a road leading to Womack’s residence. Womack stopped on the road, got out of his truck, approached Tokie, and told him that they should do business on the road because his mother-in-law was living with him and his wife. Womack went back to his truck and returned with a shoebox containing ten bags of marijuana. Tokie paid him $80.00 for two half-ounces bags.

Once again, Womack’s version of the facts was quite different from that of the State. Womack testified that Tokie bought all of the marijuana in the shoebox and that he (Womack) put the money in a sack and laid it in a ditch to be retrieved by a guy from Bearden, who had brought the marijuana to him. Womack also stated that he made no money out of the deal but that he did get a “bud” of marijuana to smoke.

On July 10, Womack called Tokie and told him he had an “eight ball” of cocaine for him. They had discussed this transaction earlier in the week. Tokie and Womack met again at the same place where the previous buy had occurred. They got out of their vehicles and talked for a short time. Womack placed three ounces of cocaine on the front seat of his truck. Tokie heard someone else coming down the road and picked up the cocaine and put it in his pocket.Womack said, “Don’t be alarmed. He’s probably looking for some stuff, too.” Tokie paid Womack $260 and took the cocaine.

According to Womack, the individual from Bearden placed the cocaine on the seat of his (Womack’s) truck, and Tokie placed $260 on the seat of the truck and took the cocaine. The man from Bearden, who was hiding in the woods, got the money. Womack testified that he did not touch the cocaine.

On July 16, Womack called Tokie and told him he had two and one-half grams of cocaine that he wanted to sell. There was no prior plan or conversation to set up this transaction. The two men agreed that Womack would come over and deliver drugs to Tokie in his apartment. While Womack was in the apartment, he asked Tokie for a drink of water. When Tokie opened up the cupboard to get a glass for him, Womack put the cocaine in the cupboard. Tokie paid Womack $200 for the cocaine.

Tokie testified that his relationship with Womack was purely business in nature.

ENTRAPMENT

Womack contends that he established the affirmative defense of entrapment by a preponderance of the evidence. In examining appellant’s argument, it is obvious that his allegation of error is, in fact, that the trial court should have directed a verdict at the conclusion of the State’s case on the ground that entrapment was established as a matter of law.

Entrapment is an affirmative defense, upon which the defendant bears the burden of proof by a preponderance of the evidence. Wedgeworth v. State, 301 Ark. 91, 782 S.W.2d 357 (1990); McCaslin v. State, 298 Ark. 335, 767 S.W.2d 306 (1989); White v. State, 298 Ark. 163, 765 S.W.2d 949 (1989). Entrapment occurs when a law enforcement officer or any other person acting in cooperation with him induces the commission of an offense by using persuasion or other means likely to cause normally law-abiding persons to commit the offense. Ark. Code Ann. § 5-2-209 (1987). Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment. Id.

“Entrapment as a matter of law is established only if, viewing the evidence in a light most favorable to the State, there is no factual issue to be decided.” Wedgeworth, supra; Leeper v. State, 264 Ark. 298, 571 S.W.2d 580 (1978). See also Walls v. State, 280 Ark. 291, 658 S.W.2d 362 (1983). Otherwise, entrapment is a question of fact for the jury to resolve. Wedgeworth, supra.

Here, there were factual issues to be decided by the jury as to whether or not the conduct of the authorities and the person acting in cooperation with them would have caused a law-abiding citizen to possess and deliver cocaine and marijuana. See Wedgeworth, supra. The trial court was correct in refusing to direct a verdict in favor of Womack.

HEARSAY TESTIMONY

Womack argues that the trial court erred in overruling his objection to hearsay testimony.

On direct examination, Mark Tokie testified that he made a purchase of marijuana from Mike Nix on April 15. This was before Tokie met Womack. When the prosecuting attorney asked Tokie about his conversation with Nix concerning buying larger amounts of marijuana from another person, defense counsel objected on hearsay grounds, and the trial court sustained the objection. Tokie then testified concerning his meeting with Nix and his introduction to Womack. The following exchange then occurred:

Prosecutor: What happens in this meeting?
Tokie: Mr. Nix brought me up and introduced me to Thomas Womack and he said —
Defense counsel: Objection.
The Court: I’m going to overrule it right now.
Mr. Tokie: All Right. He introduced me to him and he said, “Here’s the guy you need to talk to.”
Defense counsel: Judge, I object to that.
The Court: Well, I’ve overruled that.
Defense counsel: Save our exceptions. I think it’s hearsay.

The State claims that the testimony by Tokie that Nix introduced him to Womack and stated, “Here’s the guy you need to talk to,” was not hearsay since it was not offered for the truth of the matter asserted, but rather to show the basis of how Tokie first met Womack.

We need not address whether the testimony was inadmissible hearsay. Even assuming the trial court erred in admitting the testimony, the error was harmless beyond a reasonable doubt in that the prejudicial effect of the testimony was minimal and the evidence of guilt was overwhelming. See Schneble v. Florida, 405 U.S. 427 (1972). A defendant is entitled to a fair trial, not a perfect one. Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), cert. denied, 470 U.S. 1085 (1985).

IDENTITY OF APPELLANT

Womack asserts that the trial court erred in denying his motion for directed verdict based upon the State’s failure to identify him at trial. We disagree.

“ [A] n element to be proved in every case is that the person who stands before the court in the position of the defendant is the one whom the indictment or information accuses and to whom the evidence is supposed to relate.” Moore v. State, 297 Ark. 296, 761 S.W.2d 894 (1988). Identification of a defendant can be inferred from all the facts and circumstances that are in evidence. Becker v. State, 298 Ark. 438, 768 S.W.2d 527 (1989).

In Becker, we held that there was sufficient proof of identity, stating:

Here, there were no codefendants; the defendant was tried alone. He was specifically identified as “Mr. Becker” and “the defendant” throughout the trial. The witnesses were eyewitnesses to the robbery, and the fact that none of them pointed out that the wrong man had been brought to trial was eloquent and sufficient proof of identity.

In the case at bar, TOkie testified that Womack was the person from whom he purchased marijuana and cocaine. Womack was tried alone and was identified as “Mr. Womack” or “Thomas Womack” throughout the trial. Furthermore, Tokie was a participant in the drug buys and did not point out that the wrong man had been brought to trial. In sum, this was sufficient proof of identity.

OTHER CRIMINAL CHARGES

Womack contends that the trial court erred in allowing testimony concerning a criminal charge other than the one for which he was being tried. This argument is without merit since Womack’s counsel raised the issue by electing to recall Womack to the witness stand on redirect, at which time Womack furnished testimony as to the other charge.

A bench conference took place during cross-examination of Womack in which the issue of the admissibility of the other charge was addressed by counsel and the court. After a lengthy exchange concerning the admissibility or inadmissibility of facts relating to the “Calhoun County case,” the court stated: “I think they can go into it.” Womack’s counsel replied, “I want to save my exceptions to that ruling. But then based on that ruling, I feel like I must inquire about it.”

Womack’s counsel then elected to place Womack on the stand for a brief redirect examination:

Q. Mr. Womack, you are charged with three transactions in this county — one marijuana, two being cocaine.

A. (Nods affirmatively).

Q. Now that’s not the only charges that are against you or is it sir?

A. No sir.

Thereafter, the State presented testimony of Mark Tokie as a rebuttal witness; however, from our examination of the appendices the testimony has no relationship to the criminal charge other than the one for which Womack was being tried.

Notwithstanding the fact that the court in its ruling indicated that it thought the State could go into the matter of the other criminal charge, it was Womack who raised the issue of the charge when he testified on redirect examination. He cannot now be heard to complain of that for which he was responsible. Berry v. State, 278 Ark. 578, 647 S.W.2d 453 (1983); Kaestel v. State, 21A Ark. 550, 626 S.W.2d 940 (1982). See also Aaron v. State, 300 Ark. 13, 775 S.W.2d 894 (1989); Williams v.State, 288 Ark. 444, 705 S.W.2d 888 (1986).

Affirmed.

Hickman, J., concurs.


author: Darrell Hickman, Justice. David Newbern, Justice,

text:
    Jimmy HART v. STATE of Arkansas
    CR 89-164
    783 S.W.2d 40
    Supreme Court of Arkansas
    Opinion delivered January 29, 1990

      Jim Carfagno, Jr., for appellant.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

Jimmy Hart was convicted of theft by receiving and sentenced to 28 years imprisonment, being a four-time convicted felon. The most significant question presented in this appeal is whether the state offered sufficient proof to corroborate the statements he made to the police. The state proved, independent of Hart’s statements, that the property in question was stolen. (It was an expensive computer, keyboard and printer.) Hart argues that, while such evidence may be proof that the offense of theft occurred, it is not proof that the separate offense of theft by receiving occurred. He asked the trial court for a directed verdict, which was denied. We affirm that decision.

First, we point out the clear distinction between evidence needed to corroborate a confession and that needed to corroborate the testimony of an accomplice. The former, which is the case before us, is governed by Ark. Code Ann. § 16-89-111(d) (1987) and reads as follows:

A confession of a defendant, unless made in open court, will not warrant a conviction, unless accompanied with other proof that the offense was committed.

We have consistently held the proof need only be that the offense was committed. Morgan v. State, 286 Ark. 264, 691 S.W.2d 164 (1985). When corroboration of an accomplice’s testimony is sought, the state must do more than show the offense was committed. The testimony of an accomplice must be corroborated by other evidence tending to connect the defendant with the commission of the offense. Ark. Code Ann. § 16-89-111(e)(1) (1987). In this case, the state did not have to connect Hart to the offense by independent evidence. There must only be “other proof’ that the offense occurred, in other words, proof of the corpus delicti. Johnson v. State, 298 Ark. 617, 770 S.W.2d 128 (1989).

That matter aside, we address the question of whether the state satisfied the law when it proved independently that the crime of theft was committed but not theft by receiving. To answer the question, we first examine the purpose of the corpus delicti requirement. The primary reason the state must prove the corpus delicti is to insure that a person is not convicted of a crime that did not occur. Johnson v. State, 198 Ark. 871, 131 S.W.2d 934 (1939). See also People v. Williams, 422 Mich. 381, 373 N.W.2d 567 (1985). The state must prove, independent of a confession, that two elements exist: 1) an injury or harm constituting the crime, and (2) that the injury or harm was caused by someone’s criminal activity. E. Cleary, McCormick on Evidence, § 145 at 366-67 (3d ed. 1984). As a general rule, the connection of the accused with the crime is not an element of the corpus delicti. 23 C.J.S. Criminal Law, § 1110 at 398 (1989).

Some courts literally require every essential element of the crime to be proved by independent evidence. See Forte v. United States, 94 F.2d 236 (D.C. Cir. 1937). See also Annot., 45 A.L.R.2d § 7(b) at 1329-31. Others do not; it is sufficient if the corroborating evidence tends to establish the major or essential harm.

In People v. Cantrell, 8 Cal.3d 672, 105 Cal. Rptr. 792, 504 P.2d 1256 (1973), disapproved on other grounds, People v. Wetmore, 22 Cal.3d 318, 149 Cal. Rptr. 265, 583 P.2d 1308 (1978), and Gentry v. State, 416 So.2d 650 (Miss. 1982), it was held that in felony-murder prosecutions, independent proof of the underlying felony, such as robbery, does not have to be produced to establish the corpus delicti of the offense. In People v. Cantrell, the court quoted with approval:

The corpus delicti of the crime of murder having been established by independent evidence, both reason and authority indicate that the circumstances surrounding the commission of the crime can be shown by the extra-judicial statements of the accused, and that such evidence of the surrounding circumstances may be used to establish the degree of the crime committed.

The California courts still follow this reasoning. See People v. Howard, 44 Cal.3d 375, 243 Cal. Rptr. 842, 749 P.2d 279, cert. denied,_U.S__, 109 S.Ct. 188 (1988).

In Gentry v. Mississippi, the court said the following:

It is well established in this state that the corpus delicti in a homicide case is made up of two fundamental facts, the first being the death of the deceased and the second the fact of the existence of a criminal agency as to the cause of death, (citation omitted) Thus, in a prosecution for premeditated murder the state is not required to prove independently those mental elements if the defendant had made a confession that admitted them. It follows that independent proof of the felony in a felony-murder prosecution is not necessary if the proof of the felony can be gathered from the confession. In this case the state satisfied the burden upon it by proving the death and that it resulted from a criminal agency. Appellant confessed that he killed the deceased while committing armed robbery.

It would seem our decisions in murder cases generally follow the reasoning in these cases. See Derring v. State, 273 Ark. 347, 619 S.W.2d 644 (1981); Hays v. State, 230 Ark. 731, 324 S.W.2d 520 (1959) (the state must prove beyond a reasonable doubt that the deceased was in fact killed and that he came to his death by the act of someone other than himself).

More directly on point is the case of State v. Fuller, 446 So.2d 799 (La. App. 1984). The defendant was charged alternatively with theft and receiving stolen goods. The defendant argued that his conviction for receiving stolen goods could not stand because there was no independent evidence of that crime, only the crime of theft. The court dealt with the question this way:

Thus the defense argues that, while the defendant admitted seeing the theft occur, his subsequent confession to receipt of items taken in that theft cannot sustain a conviction because the only evidence of the fact that the offense of receiving stolen goods occurred is the defendant’s own confession.
We categorically reject this ingenious contention. We hold that where, as here, there is proof of the corpus delicti of a theft and the defendant is charged alternatively with theft or receiving stolen things, that sufficient proof of a corpus delicti exists to make admissible a voluntary confession to having received goods which were the subject of that theft.

It is noteworthy that in Arkansas, the distinction between types of theft has been abolished. Ark. Code Ann. § 5-36-102 (1987) reads as follows:

(a)(1) Conduct denominated theft in this chapter constitutes a single offense embracing the separate offenses heretofore known as larceny, embezzlement, false pretence, extortion, blackmail, fraudulent conversion, receiving stolen property, and other similar offenses.

The commentary to this section adds this insight:

It is hoped that making theft a single offense, regardless of the manner in which it occurs, will reduce the needless wrangling at both trial and appellate levels over whether particular conduct that is obviously criminal constitutes one offense rather than another.

The crime in this case is theft. It was undisputed that a theft occurred. Hart’s receipt of the goods, knowing or having good reason to be believe they had been stolen, could be established by his confession. The state need not independently prove each specific element of the offense of theft by receiving to establish the corpus delicti. See Harshaw v. State, 94 Ark. 343, 127 S.W. 745 (1910); Bright v. State, 490 A.2d 564 (Del. 1985). See also, E. Cleary, McCormick on Evidence, § 145 at 371 (3d ed. 1984).

We also find the remaining arguments meritless. Appellant asked the court to instruct the jury on the legal requirement that a confession be corroborated. He did not proffer a typewritten instruction, but he read § 16-89-111 (d) to the court and asked that the jury be so instructed. We note there is no instruction in AMCI which parallels this statute. Since the appellant did not proffer a typewritten copy of his proposed instruction, the argument is not preserved for appeal. See Willett v. State, 18 Ark. App. 125, 712 S.W.2d 925 (1986); A.R.Cr.P. Rule 33. Appellant claims he could not have anticipated the need for the instruction, but he did not make that known to the trial court, nor was a continuance or a recess requested to have the instruction typewritten.

Appellant also claims error occurred as the result of a suspended sentence revocation hearing that was held prior to his trial. At the hearing, appellant took the stand to testify that his suspended sentence period had expired. On cross-examination, the state asked him several questions concerning the theft by receiving charge. Citing Simmons v. State, 390 U.S. 377(1968), he claims the state should have been prevented from using any information gained at the revocation hearing as a basis for his conviction. Hart has not shown that the state used such information at the trial. Therefore even if error occurred, he has shown no prejudice as he is required to do. Tillman v. State, 300 Ark. 132, 777 S.W.2d 217 (1989).

One of the appellant’s statements admitted into evidence against him contained references to a trip to Little Rock during which his companions sold some tools. Appellant asked that the statement not be admitted because it contained the implication that the tools were stolen. (In fact, the tools were stolen from the same place that the computer had been stolen, but appellant was not charged with that theft.) The court refused to suppress the statement. The statement, at most, contained vague implications that the tools were stolen; but it was Hart who let the jury know that the tools were definitely stolen goods. In questioning a police officer on cross examination, he elicited the response that the tools were in fact stolen. The appellant, although inadvertently, placed the allegedly objectionable matters before the jury, therefore, he may not complain on appeal. Aaron v. State, 300 Ark. 13, 775 S.W.2d 894 (1989).

Finally, Hart claims that the jury should have been instructed it could sentence him to five to forty years in prison rather than the twenty to forty years set out in the habitual offender statute. Ark. Code Ann. § 5-4-501 (b)(3) (1987). His argument is based on the wording of the statute, which is that a person convicted of four or more felonies may be sentenced to an extended term of imprisonment. Hart claims that use of the word “may” indicates the jury is permitted to sentence him to twenty to forty years, but is not required to.

The sensible meaning of the statute is that the jury may sentence the offender to any term of years between twenty and forty. See Rogers v. State, 10 Ark. App. 19, 660 S.W.2d 949 (1983).

Affirmed.

Dudley and Newbern, JJ., dissent.

David Newbern, Justice,

dissenting. The court’s opinion is not quite convincing. Murder in the course of committing a felony is one act. It makes sense to say evidence of death by criminal means satisfies the corpus delicti requirement where the charge may be felony murder. Theft and theft by receiving are two separate acts. The receiving may occur miles from and weeks after the theft. A showing that the theft occurred has no relationship to a showing that theft by receiving occurred. The gravamen of the latter offense is knowledge that the goods were stolen, Ark. Code Ann. § 5-36-106 (1987); the corpus delicti, therefore, should be a showing that the goods were received with such knowledge rather than that the owner suffered an unlawful taking.

The court’s opinion cites only one case directly on point, State v. Fuller, 446 So.2d 799 (La. App. 1984). There, a Louisiana court of appeals referred to the appellant’s argument as “ingenious.” The court was stonewalling to avoid the frustration we must sometimes endure in order to follow the law.

I respectfully dissent.

Dudley, J., joins in this dissent.


author: Robert H. Dudley, Justice. Darrell Hickman, Justice, Otis H. Turner, Justice,

text:
    Junior CURTIS v. STATE of Arkansas
    CR 89-193
    783 S.W.2d 47
    Supreme Court of Arkansas
    Opinion delivered January 29, 1990
    [Rehearing denied March 5, 1990.]

      Edward T. Barry, for appellant.

      Steve Clark, Att’y Gen., by: Oían W. Reeves, Asst. Att’y Gen., for appellee.

      Price, J., not participating.

   Robert H. Dudley, Justice.

Appellant was convicted of the rape of his girlfriend’s seven-year-old daughter. We affirm the conviction.

Appellant’s primary point of appeal is that Ark. Code Ann. § 16-44-203 (1987), the statute which authorizes the videotaping of the testimony of a young victim of a sexual offense, is unconstitutional because it is procedural in nature and, under the separation of powers doctrine, only courts can promulgate rules of court procedure.

The rule-making power of courts comes from three (3) sources: (1) inherent in the constitutional separation of powers, (2) express constitutional grant, or (3) enabling legislation. There is no real question about the existence of the court’s rule-making power, the only questions in this case concern the scope and exclusiveness of that power.

We have long had rules of court, possibly as far back as 1457. Joiner & Miller, Rules of Practice and Procedure: A Study of Judicial Rule Making, 55 Mich. L. Rev. 623 (1957). In 1927, Dean Roscoe Pound pointed out the defects in legislative regulation of court proceedings. Pound, Regulating Procedural Details by Rules of Court, 13 A.B.A.J. 12 (1927). By 1928, Professor Wigmore was arguing that all legislatively created rules of practice and procedure were constitutionally void. Wigmore, All Legislative Rules for Judiciary Procedure Are Void Constitutionally, 23 Ill. L. Rev. 276 (1928). In the past twenty-five years the courts in many states have exercised their rule-making power. We are no exception. By rule, we have adopted the Arkansas Rules of Civil Procedure, the Arkansas Rules of Criminal Procedure, and the Arkansas Rules of Evidence. See Ricarte v. State, 290 Ark. 100, 717 S.W.2d 488 (1986).

Unfortunately, however, there is a crepuscular, or twilight, zone which makes it difficult to determine whether the legislature or the judiciary should establish some procedures. A paper which was prepared for the purpose of making recommendations to the Michigan Legislature, Supreme Court of Michigan, and the Michigan State Bar for the revision of Michigan procedural statutes and rules is informative. In the paper, Joiner and Miller, Rules of Practice and Procedure: A Study of Judicial Rule Making, 55 Mich. L. Rev. 623, 628-29 (1957), the authors explain:

In Michigan, as in the political structure of the federal government and many states, the powers of government are divided in the traditional American pattern between the legislative, executive, and judicial branches. The judicial power is vested in the constitutionally created courts and such other courts as may be created by the legislature. Wigmore argues in an editorial referring to the pattern of government in Illinois (similar in this respect to that of Michigan) that all legislatively created rules of practice and procedure were constitutionally void, basing his argument on the logic of the constitution itself and the policy and experience with court rules and legislatively prescribed procedure. Two courts have recognized the validity of this argument. In other words, giving effect in fullest measure to the theory of separation of powers, the judicial branch, and only the judicial branch, would be authorized to promulgate rules regulating court procedure. Some writers have taken Wigmore’s argument as jeu d’esprit while another has taken it as a serious attempt to justify the judiciary’s exercise of a complete and exclusive rule-making power. However, the better interpretation of Wigmore’s editorial would seem to be that he was pointing up the supremacy of judicially created rules of practice and procedure in the event of conflict with legislative rules and refuting the legislators who argued that rule making was a legislative power and could not constitutionally be delegated to the judicial branch.
As interpreted by Dean Pound, Wigmore’s proposition was that “if every power exercisable in government must go exclusively and as a whole into one of the three categories, the power of making detailed rules of legal procedure is analytically judicial — it is inherent in the exercise of the power committed to the judiciary of determining controversies and applying laws.” It is submitted that Wigmore was underlining the fallacy of a strictly logical chain of reasoning as concerns the classification of those powers exercisable by the three branches of government. In this connection it should be remembered that political science has also abandoned the theory of complete and exclusive authority over precisely delineated spheres of activity. It is well established that the operational areas of everyday governmental functions are not defined with precision and are not capable of assignment to distinctive categories; instead there is and always has been a twilight zone of indefinition, wherein the functions and activities of the three branches overlap and conflict, and wherein cooperation among the three branches has been the key to the resolution of the conceptual puzzle. Therefore, it is submitted that while a purely theoretical argument can be made for total and exclusive possession of the rule-making power by the judiciary, such a position ignores the realities of practical operational techniques necessarily utilized in government and presumes that a total separation of powers is possible. The conclusion should rather be that theory must give way to reality. It must be recognized that there are areas in which it is not clear whether the legislature or the judiciary should establish the necessary rules.

Thus, while it is clear that courts possess rule-making power, the scope of the power cannot be defined until we determine the purpose of the questioned rule. If the purpose of the rule is to permit a court to function efficiently, the rule-making power is supreme unless its impact conflicts with a fixed public policy which has been legislatively or constitutionally adopted and has at its basis something other than court administration. When the purpose of the rule is to provide for the establishment or maintenance of the efficient administration of judicial business, and it does only that, the scope of the power vested in the courts is complete and supreme. However, until an area of practice or procedure is preempted by rules of court, we will give full effect to legislation. This will allow a healthy and orderly development of procedural reform.

The statute at issue involves procedure and evidence, but it deals with a subject which we have not preempted, videotape depositions of young victims of sexual crimes. Accordingly, the statute is not an unconstitutional violation of the separation of powers doctrine.

For his next assignment of error, the appellant contends that the trial court erred in refusing to permit him to voir dire the young victim prior to her testifying on direct examination. There is no merit to the argument under the facts of this case. Here, the qualification as to competency and the testimony was videotaped out of the presence of the jury. It was to be shown to the jury when the case was tried. At the videotaping session, after the trial court ruled that the victim was competent to testify, the appellant asked to voir dire the witness. The trial court denied the request but stated that appellant could ask the same questions going to competency on cross-examination. During cross-examination appellant conducted voir dire by asking questions going to the witness’s qualification to testify. After appellant’s cross-examination, the court again ruled that the witness was competent. Appellant did not object to the jury viewing the voir dire portions of the videotape. Under these facts, there is no error. The jury did not hear the taped testimony until appellant had completed his cross-examination and the trial court had ruled the witness competent.

Appellant next argues that the victim should not have been allowed to testify because she was incompetent as a matter of law. This argument is also without merit. As we explained in Logan v. State, 299 Ark. 266, 773 S.W.2d 413 (1989):

A trial court must begin with the presumption that every person is competent to be a witness. A.R.E. Rule 601. The burden of persuasion is upon the party alleging that the potential witness is incompetent. To meet that burden the challenging party must establish the lack of at least one of the following: (1) the ability to understand the obligation of an oath and to comprehend the obligation imposed by it; or (2) an understanding of the consequences of false swearing; or (3) the ability to receive accurate impressions and to retain them, to the extent that the capacity exists to transmit to the factfinder a reasonable statement of what was seen, felt or heard. . . . The competency of a witness is a matter lying within the sound discretion of the trial court and, in the absence of clear abuse, we will not reverse on appeal.

Appellant’s argument focuses primarily upon the first two factors listed above. While it is true that the victim stated that she did not know what a lie was, nor what happens to a person when they tell a lie, her overall testimony showed her ability to understand the obligation of an oath and the consequences of false swearing. We cannot say that the judge abused his discretion in refusing to declare the witness incompetent.

Appellant asks us to review de novo the videotape to determine competency of the witness. We decline to do so. We can see no good reason to employ a de novo review when the testimony is by videotape and to use an abuse-of-discretion standard of review when the witness testifies in person. Appellant’s request loses sight of the purpose and goals of appellate review.

Finally, the appellant contends that there was insufficient evidence to sustain his conviction. The argument is without merit. The victim told her maternal grandmother that appellant had intercourse with her. She told the same basic story to others, although there were inconsistencies in her statements. The appellant resided in the same house as the victim. The victim testified that appellant committed the crime. There is no requirement of corroboration. The inconsistencies were for the jury to resolve, Ellis v. State, 279 Ark. 430, 652 S.W.2d 35 (1983), and the victim’s testimony in this case provided a rational basis for the jury to find proof of guilt beyond a reasonable doubt.

Affirmed.

Holt, C.J., Newbern and Turner, JJ., dissent.

Hickman and Hays, JJ., concur.

Darrell Hickman, Justice,

concurring. I agree with the result but write about this court’s inherent rule making power. It’s a power we have abused, and I am not confident we can use it with proper restraint. At least, it needs a thorough airing.

I have no disagreement with the theoretical principle that courts have an inherent power, if they choose to use it, to adopt purely practice and procedural rules. But when courts speak of their inherent power, it is like monarchs invoking divine rights: the people had better check their pockets and their persons because they are about to lose something they thought was theirs.

The most notable and flagrant instance of our misuse of this power is found in the Rules of Criminal Procedure. Virtually all of the rules relating to arrest and search and seizure are merely restatements of principles of law announced by the United States Supreme Court, or codification of Arkansas Statutes. Take for example Rule 14.2, Search of Open Lands, which reads:

An officer may, without a search warrant, search open lands and seize things which he reasonably believes subject to seizure.

See also Rule 12.4, Search of Vehicles: Permissible Circumstances, which reads:

(a) If, at the time of the arrest, the accused is in a vehicle or in the immediate vicinity of a vehicle of which he is in apparent control, and if the circumstances of the arrest justify a reasonable belief on the part of the arresting officer that the vehicle contains things which are connected with the offense for which the arrest is made, the arresting officer may search the vehicle for such things and seize any things subject to seizure and discovered in the course of the search.
(b) The search of a vehicle pursuant to this rule shall only be made contemporaneously with the arrest or as soon thereafter as is reasonably practicable.

These are not rules of procedure, they are statements of substantive law gleaned from Supreme Court decisions interpreting the United States Constitution. By what authority do we legislate principles of law? Absolutely none. We not only cannot do so, the legislature cannot delegate its powers to us to do so. The general principle of law is not equivocal. 16 Am. Jur. 2d Constitutional Law § 335 reads:

Since under the doctrine of the separation of the powers of government the lawmaking function is assigned exclusively to the legislature, it is a cardinal principle of representative government (and one not uncommonly stated, in terms, in state constitutional provisions), that except when authorized by the constitution — as may be the case in reference to municipal corporations — the legislature cannot delegate the power to make laws to any other authority or body, regardless of any exigency or emergency which may arise. The legislature may not in any degree abdicate its power; it may not make the effectiveness of a specific act dependent upon the will of another, and certainly it may not delegate to another the power to enact a law, whether in form or effect. Any attempt to abdicate legislative power in any particular field, although valid in form, is unconstitutional and void.

Section 337 reads:

The powers which the legislature is prohibited from delegating are those which are strictly, or inherently and exclusively, legislative. Thus, the rule is that in order that a court may be justified in holding a statute unconstitutional as a delegation of legislative power, it must appear that the power involved is purely legislative in nature — that is, one appertaining exclusively to the legislative department. It is the nature of the power, and not the liability of its use or the manner of its exercise, which determines the validity of its delegation. Purely legislative power, which can never be delegated, has been described as the authority to make a complete law — complete as to the time when it shall take effect and as to whom it shall be applicable — and to determine the expediency of its enactment. Thus, the legislature may not delegate its power to enact, suspend, or repeal laws. Nor may it delegate such essential elements of its lawmaking power as its power to declare principles and standards, or general public policy.

This doctrine of separation of powers is contained in Ark. Const., art. 4, §§ 1 and 2.

We have, in some cases, shed doubt on our ability to distinguish between laws of substance and procedure. In a recent decision involving the elementary principle of whether an act of the legislature could be applied retroactively, the majority could not differentiate between a statute that was substantive or procedural. Spires v. Russell, 300 Ark. 530, 780 S.W.2d 547 (1989) (Hickman, J., dissenting.)

So I question the opinion in this case which contains dictum that could lead to an extension of this court’s rule making power. We do not need to extend that power: we need to limit it and use it with careful restraint. That we have not done.

Otis H. Turner, Justice,

dissenting. Society regards nothing as more repugnant than the sexual abuse of a minor. Because of the emotions such misconduct evokes, we must take care to assure, when it is alleged, that all of the accused’s rights are protected. This is especially imperative since Ark. Code Ann. § 16-44-203 permits, at the prosecutor’s request, the testimony of the minor to be taken by video tape and introduced at trial. Further, the testimony of the victim does not require corroboration. Sales v. State, 291 Ark. 338, 724 S.W.2d 469 (1987).

In this instance, the trial court conducted voir dire of the seven-year-old minor and refused to permit counsel for the accused to conduct further voir dire until he interrogated the child on cross-examination. Since the minor was being permitted to testify by video, away from the tensions of the courtroom — the very reason why the testimony is permitted by video tape in the first place — and her testimony would have been sufficient for conviction without further corroboration, my sense of fairness compels me to conclude that counsel for the accused should have been permitted to test the competency of the minor without having to do so on cross-examination.

Any person who has ever tried a case to a jury knows the inherent difficulty of cross-examining a child. Competency to testify is a preliminary matter to be decided by the trial court, and the court’s decision is subject to review here. I would reverse this cause to permit the defense counsel to conduct a reasonable voir dire to test the competency of the witness as a preliminary matter, without having to run the appreciable risk of alienating the jurors by conducting a meaningful voir dire as a part of cross-examination.

My concerns are magnified by the circumstances of the present case, where the minor’s testimony was replete with inconsistency.

I respectfully dissent.

Holt, C.J., and Newbern, J., join this dissent.


author: Robert H. Dudley, Justice.

text:
    Darryl WALKER v. STATE of Arkansas
    CR 89-186
    783 S.W.2d 44
    Supreme Court of Arkansas
    Opinion delivered January 29, 1990

      Linda P. Collier, for appellant.

      Steve Clark, Att’y Gen., by: Paul L. Cherry, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

A burst package containing 3.33 grams of crack cocaine was intercepted by security officials at the Federal Express hub in Memphis, Tennessee. The package was addressed to: “Mr. D. Walker, 1851 South Donaghey, No. 132, Conway, Ark.” The appellant’s name is Darryl Walker, and he lived at the address listed on the package. The Conway police were notified and, with additional information, obtained a search warrant and searched appellant’s residence. There, they found 2.53 grams of cocaine packaged in zip-lock baggies, an opened but empty envelope in which appellant had received something through Airborne Express, and receipts from Emery Air Freight and United Parcel Service, along with drug paraphernalia, including various sizes of zip-lock bags, single-edge razor blades, a set of scales of the type used to weigh drugs, and a police radio scanner.

Appellant was charged with: (1) attempted possession of a controlled substance based upon the package intercepted in Memphis, (2) possession of a controlled substance based upon the cocaine found in his residence, and (3) possession of drug paraphernalia. The three counts were tried together. At the close of the State’s case, the trial court directed a verdict on count one (1), attempted possession. The jury returned a verdict of guilty on counts two (2) and three (3), possession of a controlled substance and possession of paraphernalia. We affirm those convictions.

After the directed verdict on the attempted possession count was granted, the appellant took the stand to deny any knowledge about the cocaine and the paraphernalia found in his apartment. On cross-examination he was asked why he had so many zip-lock baggies, why he had a police scanner, why he used an alias, why he had scales which measured in grams, why he had cocaine in baggies, and finally, “Who was it that was mailing you 3.33 grams of crack?” Appellant objected to the last question and asked for a mistrial on the basis that a directed verdict had been granted on the attempted possession charge. On appeal he contends the refusal to grant a mistrial is error. There is no reversible error for a number of reasons. First, the trial judge did not rule on either the objection or the motion for a mistrial. The burden of obtaining a ruling on an objection or a motion is upon the movant, and the failure to secure a ruling constitutes a waiver, precluding its consideration on appeal. Porter v. Lincoln, 282 Ark. 258, 668 S.W.2d 11 (1984). Error must be clearly shown before we will reverse. Second, immediately after appellant’s objection the prosecutor repeated the question and appellant failed to object or to again ask for a mistrial. When a question is repeated, and there is no objection, the matter is waived. Gregory v. Rees Plumbing Co., 222 Ark. 908, 263 S.W.2d 697 (1954). Third, the argument now advanced on appeal, an A.R.E. Rule 403 issue of weighing probative value vs. prejudice, was not made to the trial court. Since the weighing issue was not brought to the attention of the trial court, the matter cannot be considered on appeal. Hobbs v. State, 277 Ark. 271, 641 S.W.2d 9 (1982); A.R.E. Rule 103(a)(1). Stated differently, a party cannot change the grounds for objection on appeal. Vasquez v. State, 287 Ark. 473-A, 702 S.W.2d 411 (1986) (supplemental opinion on denial of rehearing).

The other point of appeal also concerns the 3.33 grams of crack cocaine found in the burst package. As previously stated, the three (3) counts were tried together. During the State’s cases-in-chief, the 3.33 grams of cocaine were admitted into evidence without objection. After the trial court directed a verdict on count one (1), the attempted possession count, the appellant moved that the 3.33 grams of crack cocaine be removed from evidence because, he argued, that evidence was no longer relevant. The trial court refused to grant the motion. On appeal, the appellant argues that the evidence was no longer relevant, but even if it were relevant, it should not have been allowed to remain in evidence under an A.R.E. Rule 403 weighing. Again, the 403-weighing argument was not made in the trial court, and we will not consider matters as error which were not ruled upon. Thus, we consider only the relevancy part of the argument.

A trial court’s ruling on relevancy is entitled to great deference, and a trial court’s ruling will be reversed only if the trial court abused its discretion. White v. Clark Equipment Co., 262 Ark. 158, 553 S.W.2d 280 (1977). This is especially so where the evidence has been properly admitted and one later seeks to remove that evidence.

“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. A.R.E. Rule 401. [Emphasis supplied.] Under this expansive definition, evidence “need not conclusively prove the ultimate fact in issue, but only have ‘any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’ ” New Jersey v. T.L.O., 469 U.S. 325 (1985). [Emphasis supplied.] Dean'McCormick has written: “To be relevant evidence it need only be a brick, not a wall.” E.W. Cleary, McCormick on Evidence 543 (3d ed. 1984). Accordingly, we have held that evidence that an accused has previously been involved in similar criminal activity is relevant to show his culpable state of mind. Holloway v. State, 293 Ark. 438, 738 S.W.2d 796 (1987); Lincoln v. State, 285 Ark. 107, 685 S.W.2d 166 (1985). We have held that an accused’s involvement with a nefarious gang that committed robberies and his possession of a weapon were relevant evidence in a subsequent robbery-murder case. The evidence was relevant to show a method of operation, or scheme. Snell v. State, 290 Ark. 503, 721 S.W.2d 628 (1986). Similarly, the burst package of cocaine with appellant’s name and address on it, when coupled with the cocaine packaged in baggies and other air-express items found at his residence, makes it more probable that the packaged cocaine found in his apartment was not there by mistake, as claimed by the appellant. It further shows the overall plan to acquire and intent to distribute cocaine.

The trial judge did not abuse his considerable discretion in denying the motion to remove the evidence.

Affirmed.


author: David Newbern, Justice.

text:
    Randy BURROW v. STATE of Arkansas
    CR 88-105
    783 S.W.2d 52
    Supreme Court of Arkansas
    Opinion delivered January 29, 1990

      Michael Everett, for appellant.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

Randy Burrow has appealed from denial of a motion that he be allowed to introduce evidence of past sexual conduct on the part of his stepdaughter whom he stands accused of raping. Act 197 of 1977 permitted appeal by either the state or the defendant of the court’s action on such a motion. By Act 889 of 1983 the general assembly removed the provision for appeal by the defendant. Burrow argues that the depriviation of his right to interlocutory appeal violates his right to equal protection of the laws. He claims that because Act 889 is unconstitutional his right to an interlocutory appeal is reinstated. We hold Act 889 is not unconstitutional and dismiss the appeal.

Mr. Burrow acknowledges that a number of cases following United States v. Bitty, 208 U.S. 293 (1903), hold that it is not a deprivation of equal protection of the laws to permit an interlocutory appeal by the state but not the defendant in a criminal case. That is so because there is a rational basis for discrimination; if the state ultimately loses it cannot wage an effective appeal of the acquittal, but the defendant can do so with respect to a conviction. Burrow contends, however, that this is not a contest between him and the state but between him and the alleged victim. He cites no authority for that position, and even if we could agree that the alleged victim is the “real party in interest,” we would have no reason to grant this appeal. His argument that he is just as traumatized by the accusation as the alleged victim would be by revelation in open court of her past amounts to no more than an attack on the protective provisions of the “rape-shield law.”

In Dorn v. State, 267 Ark. 365, 590 S.W.2d 297 (1979), we upheld the “rape-shield law,” now codified as Ark. Code Ann. § 16-42-101 (1987), against an equal protection challenge to its provisions designed to protect victims of sex crimes. We have been given no reason to depart from that holding.

Appeal dismissed.


text:
    Ralph ST. CLAIR v. STATE of Arkansas
    CR 89-215
    783 S.W.2d 835
    Supreme Court of Arkansas
    Opinion delivered January 29, 1990

      John Rushing Hudson, for appellant.

      Steve Clark, Att’y Gen., by: Joseph V. Svoboda, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

Ralph St. Clair, the appellant, was convicted of sexual abuse of his seven-year-old stepdaughter. He contends A.R.E. 803(25)(A) permitting certain hearsay evidence to be admitted in child sexual abuse cases was unconstitutionally enacted by the general assembly after this court had declared its inherent authority to promulgate rules of evidence in Ricarte v. State, 290 Ark. 100, 717 S.W.2d 488 (1986). We hold the separation of powers doctrine does not preclude the general assembly from enacting a rule such as the one in question here. He also contends that the case must be reversed because, even if the rule is not unconstitutional, the court failed to instruct the jury in accordance with the rule. We decline to reverse on the latter point because there was neither a request for the instruction nor an objection at the trial to the court’s failure to give it.

1. Separation of powers

In the Ricarte case and its accompanying per curiam order this court exercised its' inherent authority to adopt the Uniform Rules of Evidence as the Arkansas Rules of Evidence. We adopted them “ as set forth” in the 1976 act by which the general assembly adopted them. In Re Adoption of the Uniform Rules of Evidence, 290 Ark. 616, 717 S.W.2d 491 (1986). After the original adopting act of 1976 and before our 1986 order, the general assembly enacted Rule 803(25)(A). That rule establishes an exception to the hearsay rule for a “statement made by a child under ten (10) years of age concerning any act or offense against that child involving sexual offenses, child abuse or incest . . . .” provided a hearing is held to determine the reasonable trustworthiness of the evidence based on factors named in the rule.

In this case such a hearing was held, and the court determined that testimony as to the child’s out-of-court statements would be admitted. At the trial a psychological examiner, a physician, and the child’s mother were allowed to testify about the child’s statements to them.

In Curtis v.State, 301 Ark. 208, 783 S.W.2d 47 (1990), which we hand down today, we explain that we share the rule making power with the general assembly. We point out that we give full effect to legislation in an area of procedure or practice we have not preempted by rule and note that we will defer to the general assembly where a court rule conflicts with a public policy adopted by legislative act or as part of the constitution.

The general assembly’s adoption of Rule 803(25)(A) deals with a matter our rules do not cover. We have provided no exception to the hearsay rule for child victims of sexual crimes. We hold the rule to be not unconstitutional.

2. Failure to instruct

Rule 803(25)(A)3. provides:

If a statement is admitted pursuant to this Section the Court shall instruct the jury that it is for the jury to determine the weight and credit to be given the statement and that, in making the determination, it shall consider the age and maturity of the child, the nature of the statement, the circumstances under which the statement was made, and any other relevant factor.

The jury was given no such instruction, but St. Clair did not ask for it and did not object to the failure to give it.

St. Clair relies on Pennington v. State, 24 Ark. App. 70, 749 S.W.2d 680 (1988). In that case the court of appeals held Rule 803 (25) (A) inapplicable because there had been no attempt by the state to invoke it as a basis for admitting into evidence hearsay statements of a child victim. The court noted there had been no hearing on trustworthiness, no notice of intent to offer the evidence, and no jury instruction on weight to be given, and the court noted that all of these would have been required had the rule been the basis of admitting the evidence at trial.

While it is correct to say the trial court was required to give the instruction and erred in failing to do so, it was given no opportunity to correct its error at the trial, and we will not consider the matter for the first time on appeal. Hegwood v. State, 297 Ark. 218, 760 S.W.2d 859 (1988); Horn v. State, 282 Ark. 75, 665 S.W.2d 880 (1984).

Affirmed.

Hickman, J., concurs.

See concurring opinion of Hickman, J. in Curtis v. State, 301 Ark. 208, 783 S.W.2d 47 (1990).