author: ANDREE LAYTON Roaf, Justice.

text:
    Ledell LEE v. STATE of Arkansas
    CR 96-466
    931 S.W.2d 433
    Supreme Court of Arkansas
    Opinion delivered October 7, 1996

      Wallace, Hamner, and Adams, by: Dale E. Adams, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., and Stuart A. Cearley, Law Student Admitted to Practice Pursuant to Rule XV(G)(l)(b) of the Rules Governing the Admission to the Bar, for appellee.
   ANDREE LAYTON Roaf, Justice.

Appellant Ledell Lee appeals his convictions for kidnapping and rape. He was sentenced to sixty years on each conviction, to be served concurrently. Lee argues that there was insufficient evidence to sustain the verdicts without erroneously admitted DNA evidence. He contends that the DNA evidence was inadmissible because the state failed to establish a proper chain of custody for blood samples and tissue swabs used to perform the DNA analysis. We find no error and affirm.

Lee was convicted of the kidnapping and rape of a seventeen-year-old girl in Jacksonville, Arkansas. The victim was abducted from her sister’s home on the night of November 27, 1990, and was raped in a wooded area behind the house. The victim described her attacker as a tall, black male, but was unable to identify him because he prevented her from seeing his face during the attack. Evidence from a rape-kit examination performed on the victim was submitted to the state crime laboratory for analysis. Hair combings from the victim’s clothing contained two Negroid hairs, and semen was identified in vaginal swabs taken from the rape examination. After the analysis, the rape-kit evidence was stored by the state crime lab in a secure freezer in May, 1991. Also, two days after the rape, Jacksonville police officers processed the victim’s home for evidence and took latent fingerprints from inside and outside the residence. The case remained in an inactive status until Lee became a suspect in February, 1993.

Hand prints and fingerprints, hair samples, and a blood sample were taken from Lee in February, 1993. Lee’s palm print matched a palm print found on a bedroom window at the victim’s home. Lee’s blood was tested along with the victim’s blood and the vaginal swabs from the rape kit. The FBI agent who performed the DNA analysis concluded that the probability of the assailant being someone other than Lee was one in eighty-three million from the black population. The palm print and the DNA profile evidence essentially comprised the state’s case against Lee.

i. Sufficiency of the Evidence

Lee contends that because the state failed to establish an adequate chain of custody for blood samples used in the DNA analysis, his motion for a directed verdict should have been granted. Lee submits that the motion for directed verdict should have been granted because, without the erroneously admitted DNA testimony, the evidence of the matching palm print was insufficient to connect him to the assault on the victim. Although Lee combines his argument concerning the sufficiency of the evidence with his challenge to the admissibility of the DNA evidence, the preservation of an appellant’s right to freedom from double jeopardy requires that we review the sufficiency of the evidence prior to examining trial error. Passley v. State, 323 Ark. 301, 915 S.W.2d 248 (1996). Consequently, we address Lee’s challenge to the sufficiency of the evidence before considering his other assignments of trial error. In determining the sufficiency question, we disregard any alleged trial errors. Young v. State, 316 Ark. 225, 871 S.W.2d 373 (1994).

On appeal, we determine whether the evidence in support of the verdict is substantial. Substantial evidence is that which is forceful enough to compel reasonable minds to reach a conclusion one way or another. Id. In a criminal case, we review the evidence in the light most favorable to the state, and consider only that evidence which supports the guilty verdict. Id.

In the instant case, the victim testified that she was home alone with her three-year-old nephew and three-month-old niece on the evening of the assault. She stated that while she was rocking her niece, a man came up behind her, put an arm around her neck, struck her on the head and face with an iron, forced her out of the house and into a wooded area, where he raped her, choked her, and held her head under water in a ditch until she lost consciousness. She testified that when she regained consciousness, she was lying face up in the ditch, wearing only a bra and a tee shirt. She returned home and was taken to a hospital emergency room where the rape examination was performed. The victim described her attacker as a tall, black man with large hands.

Dr. George McCrary, a physician who was working at the Rebsamen Regional Medical Center Emergency Room on the night of the assault, testified that he examined the victim and performed the rape-kit examination. He stated that she had lacerations on the forehead and nose, choke-mark-type bruises on her neck, and scratches on her leg. He further testified that there was an abrasion on her vagina and mud and leaves in the area of her groin. Kenny King, a latent fingerprint examiner employed by the state crime lab, testified that the right-palm print taken from Lee matched State’s Exhibit Thirty-One, which was a latent-palm print recovered from the crime scene. Robert Baker, a lieutenant with the Jacksonville police department, testified that he lifted eleven latent fingerprints from inside and outside the victim’s house two days after the assault. He identified State’s Exhibit Number Thirty-One as a latent print obtained from the outside glass of a bedroom window that was believed to be the assailant’s point of entry, because it was unlocked on the night of the assault.

Harold Deadman, a special agent in the DNA-analysis unit of the FBI laboratory in Washington, D.C., testified that he performed an analysis of blood samples from Lee and the victim, and two vaginal swabs taken from the victim after the rape. Deadman testified that he obtained a match with four of six probes used in comparing the known blood sample from Lee with the male fraction of DNA obtained from the vaginal swabs; he stated that the results from two of the probes were inconclusive for purposes of matching. Based on this analysis, Deadman testified that the probability of finding someone in the black population who had the same DNA as Lee would be one in eighty-three million.

Clearly, there was overwhelming evidence of the rape and kidnapping from the testimony of the victim and the emergency-room physician. Moreover, the evidence linking Lee to the assault was substantial. This court has held that fingerprints can constitute evidence that is sufficient to sustain a conviction. Howard v. State, 286 Ark. 479, 695 S.W.2d 375 (1985); Ebsen v. State, 249 Ark. 477, 459 S.W.2d 548 (1970). Furthermore, semen in the vaginal swabs taken from the victim and Lee’s blood matched with the chance of an identical match being one in eighty-three million. We hold that the evidence was sufficient to support Lee’s conviction for the crimes charged and that the trial court did not err in denying Lee’s motion for directed verdict.

2. Chain of Custody

We next consider Lee’s assertion that the trial court erred in admitting the DNA evidence and testimony because the State failed to establish a proper chain of custody for the blood samples and vaginal swabs used to perform the DNA analysis. Lee’s chain of custody argument is twofold. First, he asserts that there is a break in the chain of custody with respect to State’s Exhibits Forty-Four and Forty-Five, which are the vials that contained the blood drawn from the victim and Lee on February 18, 1993. These blood samples were drawn by Lisa Holt, an employee of Crestview Family Clinic in Jacksonville. Holt testified that she drew two vials of blood from Lee on the morning of February 18, 1993, and two vials of blood from the victim later that day. She stated that she placed her initials and the date on the vials and handed them to the officers who accompanied Lee and the victim to the clinic. When it was called to her attention during cross-examination that her initials were not on any of the vials in either exhibit, Holt testified that she did not understand why because it was her normal procedure to initial such evidence, and that she “must have been told not to put them [her initials] on.” However, on recall, Holt further observed that the vials were properly dated and labeled with the names of the victim and Lee, and she recognized her handwriting on the vials. Lee objected to the introduction of Exhibits Forty-Four and Forty-Five and argued to the trial court that Holt could not identify the vials because they did not bear her initials as she had originally testified; the trial court overruled the objection.

Lee’s second chain of custody objection pertains to the testimony of Dr. Deadman, the FBI special agent who provided the DNA analysis and DNA profiling testimony at trial. Lee first objected to the introduction of the autorads (films of matched DNA bands) prepared by Deadman in his analysis of the vaginal swabs and blood samples drawn in February, 1993, and in a subsequent analysis performed with a second blood sample drawn from Lee in August, 1994. Lee argued to the trial court that Deadman did not testify as to where the blood samples or the vaginal swabs came from, only that he had received them, and that this omission constituted a break in the chain of custody. The trial court overruled the objection, and the autorads, State’s Exhibits number Fifty-Nine through Seventy, were received into evidence. Later, at the conclusion of Deadman’s testimony, the State sought to introduce all of its exhibits, numbers One through Seventy, and Lee again objected to the introduction of the autorads. Lee argued that the State had not established a chain of custody to support either the first or second DNA analysis because of the chain of custody lapse in Deadman’s testimony and that of Lisa Holt. The trial court again overruled Lee’s objection and allowed the State’s exhibits to be introduced into evidence.

With regard to Deadman’s testimony, Kermit Channel, a for-senic serologist employed with the state crime lab, testified that he sent the blood samples drawn from Lee and the victim in February, 1993, along with the vaginal swabs from the rape kit to the FBI laboratory on March 1, 1993. Phil Rains, also a state crime lab serologist, testified that he sent the second blood sample drawn from Lee in August, 1994, to the FBI on September 6, 1994, along with the probed membrane which had been submitted by the FBI following the first analysis in 1993. Deadman’s testimony was as follows:

Q. Doctor, did you have occasion to receive a known blood sample from [the victim] and a known vaginal swab from a rape kit of [the victim] from the Arkansas State Crime Laboratory?
A. Yes, I did.
Q. And when did you receive that?
A. In March of 1993, March 5th, 1993.
Q. And in what form did you receive that blood sample of [the victim]?
A. Typically, and in this case we received it in the form of a dried stain....
Q. And that is how you received [the victim’s] blood?
A. Yes.
Q. Okay. And in what form did you receive the swab?
A. The swab would have been — there are actually two swabs. The sticks of the swabs were broken. The swabs are contained in a, in a small envelope, a small envelope.
Q. And did you also have occasion to receive a known blood sample from the defendant, Ledell Lee?
A. Yes, I did.
Q. And in what form was that received?
A. It was received as a dried stain also. ...
A. ...Sometime last fall, early in the fall the FBI Laboratory began using two additional probes and at that time the membrane was re-submitted to the laboratory and the DNA on the membrane was subjected to two additional probes and then the results from that additional probing were combined with the earlier results, another report was generated, and then I returned the membrane.
Q. Okay. The, this, the — when the probed membrane that you created was resubmitted to the crime laboratory, was there also a new sample of the defendant’s, Ledell Lee’s blood sent to the FBI Laboratory?
A. Yes. A second sample of his blood was submitted.

Deadman was not asked when he received the second blood sample.

This court has stated that blood samples, which are considered interchangeable items, require a more conclusive chain of custody than items of evidence which are subject to positive identification. Neal v. State, 298 Ark. 565, 769 S.W.2d 414 (1989). However, evidentiary matters regarding the admissibility of evidence are within the sound discretion of the trial court, and rulings in this regard will not be reversed absent an abuse of discretion. Harris v. State, 322 Ark. 167, 907 S.W.2d 729 (1995); Hubbard v. State, 306 Ark. 153, 812 S.W.2d 107 (1991).

Additionally, we have stated that the purpose of establishing a chain of custody is to prevent the introduction of evidence that is not authentic or that has been tampered with. Harris v. State, supra; Pryor v. State, 314 Ark. 212, 861 S.W.2d 544 (1993). The trial court must be satisfied, within a reasonable probability, that the evidence has not been tampered with. Harris, supra; Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). It is not necessary that the State eliminate every possibility of tampering. Id. The mere possibility of access to blood, where there is no evidence of tampering, is not enough to render test results from that blood inadmissible. See Turner v. State, 258 Ark. 425, 527 S.W.2d 580 (1975).

In Phills v. State, 301 Ark. 265, 783 S.W.2d 348 (1990), the court could not determine the nature of the appellant’s objection to a serologist’s testimony regarding blood samples. The court concluded that the objection had to do with the adequacy of the foundation laid for the testimony, stating that:

Appellant may be arguing that [the] foundation [which was laid] was inadequate. As in Munnerlyn v. State, 264 Ark. 928, 576 S.W.2d 714 (1979), appellant does not allege that the samples had been tampered with and there is nothing in the record to suggest such a possibility. It is not necessary that every moment from the time evidence comes into the possession of a law enforcement agency until it is introduced at trial be accounted for by every person who could have conceivably come into contact with it. It is only necessary that the trial judge, in his discretion, be satisfied that the evidence presented is genuine and, in reasonable probability, has not been tampered with. The trial judge did not abuse his discretion in allowing the result of the serological test of appellant’s blood sample.

Id. Likewise, in Neal v. State, supra, the appellant argued an inadequate chain of custody resulting from blood samples that were not properly stored, leading to the possibility of tampering and contamination. However, this court did not accept this argument noting that the trial court had determined that the integrity of the evidence had been sufficiendy established. While we were sympathetic to the defendant’s concerns in Neal, we could not say that the trial court abused its discretion in admitting the evidence.

Here, we cannot say that the trial court abused its discretion in admitting the DNA evidence and testimony. With regard to the rape kit (and the swabs contained therein), the abstract does not reveal that Lee made a specific objection to its introduction. Instead, Lee made an objection to the autorads prepared at the FBI lab, which were made using the swabs. Arguably, this can be seen as a waiver of the right to raise this point on appeal. See Gibson v. State, 316 Ark. 705, 875 S.W.2d 58 (1994). However, even on the merits, the testimony reveals a continuous chain of custody from the time the rape kit was used to examine the victim until it was submitted to the FBI for DNA testing. Deadman in fact testified when and from whom he received this evidence.

Likewise, the blood samples taken from Lee and the victim on February 18, 1993, reveal a successive chain of custody. The same can be said for the sample taken from Lee on August 26, 1994. While Holt testified that she did not follow her normal routine by failing to initial the February 18 samples, she unequivocally stated that the labels on the blood samples were written in her own handwriting. Deadman testified to receiving both of the blood samples, although he did not specify the date he actually received the second sample of Lee’s blood.

The trial court determined that the integrity and authenticity of the evidence had been clearly established. There is no evidence in the record which reflects any actual tampering or contamination of the samples, or a significant gap in the chain of custody. Absent evidence of tampering, the trial court’s ruling will not be disturbed unless there is a clear abuse of discretion. See Gomez v. State, 305 Ark. 496, 809 S.W.2d 809 (1991). We find no abuse of discretion in admitting this evidence.

Affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Allen SMITH v. STATE of Arkansas
    CR 96-662
    928 S.W.2d 799
    Supreme Court of Arkansas
    Opinion delivered October 7, 1996

      Louis A. Etoch, for appellant.
   Per Curiam.

Appellant, Allen Smith, was convicted by a jury of two counts of aggravated assault for which he was sentenced to a total of twelve years in prison. On July 2, 1996, Smith’s attorney, Louis Anthony Etoch, was granted an extension until August 29, 1996, to file his brief on appeal. Again, on August 21, 1996, Etoch was granted a second and final extension to file a brief with such being due on September 19, 1996. However, on September 19, 1996, Etoch filed a “Motion for Belated Appeal,” asserting that he intended to file the brief “next week” and asking that he be allowed to file the brief “as soon as possible.” Etoch has thus far failed to file or tender a brief on behalf of his client.

The Motion for Belated Appeal is denied. Louis Anthony Etoch is hereby ordered to appear before this court on the fourteenth day of October, 1996, at 9:00 a.m., to show cause why he should not be held in contempt of this court for his failure to file the appellant’s brief.


author: BRADLEY D. Jesson, Chief Justice.

text:
    TERMINIX INTERNATIONAL COMPANY v. James STABBS and Iris Stabbs
    96-488
    930 S.W.2d 345
    Supreme Court of Arkansas
    Opinion delivered October 14, 1996

      Lyons, Emerson & Cone, by: Jim Lyons, for appellant.

      Mike Everett, for appellees.
   BRADLEY D. Jesson, Chief Justice.

Appellees James and Iris Stabbs filed a complaint in circuit court alleging that a home which they had purchased in 1992 had lost all its value due to termite infestation. The lawsuit named the appellant Terminix and four others as defendants. Terminix asked the trial judge to compel arbitration of the case. Part of the case was ordered into arbitration, but the Stabbses were allowed to pursue the remainder of their case in circuit court. Terminix appeals from that ruling and contends that the entire case should have been ordered into arbitration. We affirm the trial court’s decision.

In October of 1992, Mr. and Mrs. Stabbs began negotiating to buy a home in the Blytheville area. The home was owned by Mr. and Mrs. Lambert. The sale was handled by Logan Real Estate, although it is not clear whether Logan was operating as the agent for the buyer or the seller. On October 15, 1992, Terminix was engaged to perform certain repairs on the substructure of the home. A contract entided “Sub-Structure Service Agreement” was entered into whereby Terminix agreed to place two sets of supports under the bathroom for $300.00. The purchaser on the contract was listed as “Logan Real Estate for James W. Stabbs,” and the contract was signed by a representative of Logan Real Estate. On October 19, 1992, Terminix issued a “Termite Protection Plan” to James W Stabbs. The Plan provided that, in exchange for an annual fee, Terminix would provide protection against subterranean termite damage occurring after October 19, 1992. Both of these documents contained arbitration clauses.

On October 20,1992, Terminix executed a Veterans Administration-Department of Housing and Urban Development form entitled, “Wood Destroying Insect Information Existing Construction.” The information in the form was to be used in evaluating property for a VA or HUD loan. Terminix stated in the form that the property had once contained visible evidence of infestation but noted that the problem had been corrected by the use of additional supports. The form was signed by a Terminix representative on October 20, 1992 and by Mr. and Mrs. Stabbs, who acknowledged its receipt, on October 23, 1992. Closing occurred on October 23, 1992, with the Stabbses paying $53,500 for the property.

On June 15, 1995, Mr. and Mrs. Stabbs filed suit against Terminix, Logan Real Estate, Logan Finance Company, and Mr. and Mrs. Lambert for “fraud and deceit and for breach of contract.” The Logan defendants and the Lamberts were sued for misrepresentation; Terminix was sued on the contract count. The Stabbses alleged that Terminix had breached the October 20 VA-HUD “contract” by failing to properly inspect the premises, failing to correct termite damage, and failing to notify Mr. and Mrs. Stabbs of the extent of the termite damage. The October 15 Sub-Structure Service Agreement and October 19 Termite Protection Plan were not mentioned. The prayer for relief sought the purchase price of the house, $53,500, from all defendants joindy and severally, punitive damages from the Lambert and Logan defendants, and attorney fees from Terminix.

Terminix filed a motion to compel arbitration of the case on the grounds that both the Sub-Structure Service Agreement and the Termite Protection Plan contained arbitration clauses. Mr. and Mrs. Stabbs responded that they were not basing their contract claim on those instruments but on the VA-HUD “contract” which had no arbitration clause. Additionally, they said, they had not signed either the Sub-Structure Agreement or the Protection Plan.

Prior to the hearing on the motion to compel arbitration, Mr. and Mrs. Stabbs amended their complaint to remove all reference to a breach of contract claim. Instead of alleging that Terminix had breached its contract, they claimed that Terminix had been negligent in failing to properly inspect the property and in failing to report its condition. Terminix filed no objection to or motion to strike the amended complaint.

After a hearing, the trial judge split the cause of action into arbitrable and non-arbitrable claims. He declared that damages occurring after October 19, 1992, were subject to arbitration; all other claims were cognizable in a negligence action. Terminix appeals and argues that the entire case should be subject to arbitration. We note that a trial court’s denial of a motion to compel arbitration is an appealable order. See American Ins. Co. v. Cazort, 316 Ark. 314,

871 S.W.2d 575 (1994).

Terminix contends that, because the arbitration clauses in the Sub-Structure Agreement and the Protection Plan cover any controversy or claim “arising out of or relating to” those agreements, Mr. and Mrs. Stabbs have agreed to arbitrate their claims. To a great extent, Terminix relies on case law from the federal courts and from other jurisdictions to argue that use of such broad language — “arising out of or relating to” — renders arbitrable any claim with a connection to the contract. However, the Federal Arbitration Act and the laws of other jurisdictions do not restrict the scope of arbitration as we do in this state. Under Arkansas law, certain matters are not arbitrable, regardless of the language used in an arbitration agreement. Written agreements to arbitrate have no application to tort matters, Ark. Code Ann. § 16-108-201 (1987) (in effect at the time these contracts were executed); see also Lancaster v. West, 319 Ark. 293, 891 S.W.2d 357 (1995); Jim Halsey Co. v. Bonar, 284 Ark. 461, 683 S.W.2d 898 (1985), and the complaint in effect at the time of the hearing stated a cause of action in tort rather than contract. In the absence of objection by an opposing party asserting prejudice or undue delay, a party may amend his complaint at any time without leave of the court. ARCP Rule 15(a). Additionally, we have recognized that the existence of a contractual relationship between parties does not preclude the institution of a tort action. A party to a contract may sue on an independent tort claim. Quinn Cos. v. Herring-Marathon Group, Inc., 299 Ark. 431, 773 S.W.2d 94 (1989). That is not to say that we will declare a matter non-arbitrable merely because of the manner in which a party chooses to characterize his action. The claim must legitimately sound in tort.

In Westark Specialties, Inc. v. Stouffer Family Ltd. Partnership, 310 Ark. 225, 836 S.W.2d 354 (1992), we addressed the issue of whether a party to a contract had legitimately stated a cause of action in tort. Westark leased a building to Stouffer. The lease provided that Westark would maintain the building’s sprinkler system. During the course of the lease, the sprinkler pipes froze, cracked, and flooded the premises. Stouffer’s inventory was damaged and it filed suit against Westark for negligence and breach of contract. Westark, having certain defenses available to it under the contract, moved to strike the tort claim. We said the following:

Generally, a breach of contract is not treated as a tort if it

consists merely of a failure to act (nonfeasance) as distinguishable from an affirmatively wrongful act (misfeasance). The courts, however, have tended to extend the tort liability for misfeasance whenever the conduct involves a foreseeable, unreasonable risk of harm to the plaintiff’s interests.

We decided that water damage from a poorly maintained sprinkler system was foreseeable and that the action was cognizable in tort. Similarly, the Stabbs’s amended complaint contained allegations against Terminix that could either be characterized as affirmatively wrongful acts or misfeasance of the type that would result in a foreseeable, unreasonable risk of harm. A termite company’s failure to properly inspect a residence and report on the extent of damage can be said to involve a foreseeable, unreasonable risk of harm to potential buyers of the residence. Mr. and Mrs. Stabbs stated a legitimate tort claim, and the trial court was correct in refusing to compel arbitration of that portion of the action.

Affirmed.

       The Stabbs’s status as nonsignatories to the Sub-Structure and the Termite Protection Plan was not fully explored below; therefore we do not have sufficient information to consider that issue on appeal.

       In fact, the claim was more aptly characterized as a negligence action rather than a contract action from the beginning. The Stabbs’s attorney admitted that he initially tried to establish a breach of contract claim so that he might recover attorney fees pursuant to Ark. Code Ann. § 16-22-308 (Repl. 1994).


text:
    Larry THOMPSON, et al. v. POTLACH CORPORATION
    95-386
    930 S.W.2d 355
    Supreme Court of Arkansas
    Opinion delivered October 14, 1996

      Wells Law Office, by: Bill G. Wells, and Bowden Law Firm, by: David O. Bowden, for appellants.

      Haley, Claycomb, Roper & Anderson, by: Richard L. Roper, for appellee.
   BRADLEY D. Jesson, Chief Justice.

Appellant Larry Thompson, an officer of the Pair-O-Geese Hunting Club, claims that the Potlatch Corporation orally agreed to lease the club hunting and trapping rights to certain lands in Bradley County. When Podatch leased the rights to others, Thompson fried suit for specific performance. The chancellor ruled against the club, finding that no contract had been formed between Pair-O-Geese and Potlatch. We affirm.

Hunting clubs such as Pair-O-Geese have, for many years, hunted the woods of Bradley County on land now owned by Potlatch. In 1989, rumors began to circulate that Podatch would begin formally leasing the hunting rights to its land. Larry Thompson, as a representative of Pair-O-Geese, visited the Potlatch offices to make an inquiry. He spoke with Curtis Blankenship, a Podatch land representative. According to Thompson, Blankenship told him the following: that Podatch was talking about leasing but didn’t know when that might happen or how much would be charged to lessees; that Thompson should submit a letter requesting a lease and containing a legal description of the land desired; that Thompson should incorporate the hunting club; and that existing clubs would be given the right of first refusal. Blankenship’s account of the meeting differs markedly. According to him, Thompson was told that if he forwarded a letter and a map of the desired area, Podatch would keep it on file, as it did in the case of many other interested parties. Blankenship denied that he told Thompson to incorporate the club or that existing clubs would have right of first refusal.

In early 1990, Thompson incorporated the club. He sent the incorporation papers to Podatch, along with the following letter:

This letter is to request that Pair-O-Geese Deer Club have a chance to lease the highlighted areas indicated on the attached map when and if Podatch decides to lease the land. We have been hunting this area for the past 40 years and would like to continue if you would allow us to do so.

In 1991, Potlatch management gave its approval for a hunting lease program. On November 6, 1992, over 1,000 letters were mailed to sportsmen who had expressed an interest in leasing hunting rights from Potlatch. The letter read, in pertinent part, as follows:

Dear Sportsman:
For several months Podatch management has been considering the possibility of beginning a hunting lease program. After careful deliberation a decision has been made to initiate a hunting lease program for the Southern Division of Pot-latch Corporation in 1993.
As you are probably aware, for several years our Land Agent has been keeping a file of requests from hunters to lease hunting rights for specific areas of interest to them. From this file interested parties are being notified of Podatch’s policy change along with the basics of the program.
1. Leasing priority will be given to individuals and-or clubs that are already utilizing Podatch’s land. Other criteria will also be considered in determining the award of leases.
2. The cost of the program to the Lessee will be $2.50 per acre. Applications will be accepted on any size tract, but no lease shall cost less than $100.
3. Lessee will be required to be incorporated as a not-for-profit corporation under the laws of the State of Arkansas.
4. Lessee will not be required to furnish liability insurance.
5. There will be no subleasing of the leased lands.
Enclosed is a self-addressed postcard which should be completed and mailed back to Podatch by December 1. This postcard will provide Podatch with a current mailing address and indicate whether or not you desire to continue with the lease application process. For interested parties a lease application packet containing instructions for continuing with the lease process WILL BE MAILED in early 1993. The application packet will provide information but will in no way constitute a promise or commitment for a lease from Podatch. After mailing the postcard, YOU SHOULD NOT CONTACT POT-LATCH. You have done ALL that is necessary at this time. (Emphasis in original.)

The letter was signed by Potlatch representatives William Pope, Curtis Blankenship, and Gary Thornton.

Over 900 interested parties, including Pair-O-Geese, responded to the letter. Potlatch, in turn, sent a mailing to the interested parties on January 12, 1993. The mailing contained, among other things, a leasing-priority list and a hunting-lease application form. The priority list provided that applications would be ranked with preferences for established deer camps, adjacent landowners, local residents hunting on Potlatch lands, and other interested parties. The hunting-lease application requested general information about the prospective lessee and contained the following language just above the applicant’s signature line:

I understand this application provides information and in no way constitutes a promise or commitment from Potlatch Corporation.

In April of 1993, Thompson noticed that other hunting clubs had received their leases but Pair-O-Geese had not. He contacted Gary Thornton at Potlatch and was told that his club would not receive a lease. Through his attorney, he sent a letter to Potlatch expressing a desire to lease the hunting rights to 354.3 acres and enclosing a check for $885.75. Potlatch returned the check.

On September 15, 1993, Thompson and other club members filed suit against Potlatch, William Pope, Curtis Blankenship and Gary Thornton in Bradley County Chancery Court. The complaint alleged that Thompson’s 1989 conversation with Blankenship constituted an offer to lease and that the club’s subsequent incorporation constituted acceptance and consideration. No summons was issued for Potlatch. Instead, the complaint contained a certificate of service signed by the plaintiff’ attorney stating he had hand-delivered a copy of the complaint to Richard Roper, an attorney in Warren, Arkansas.

Podatch responded to the complaint on October 11, 1993, by filing a motion to dismiss for failure to state facts upon which relief could be granted. See ARCP Rule 12(b)(6). The motion was signed by attorney Roper. The appellants filed a motion to strike and a motion for default judgment claiming that Potlatch had missed the twenty-day deadline for responsive pleadings. See ARCP Rule 12(a). The chancellor denied the motions on two grounds: one, no complaint and summons were properly served on Potlatch or a person legally authorized to accept service, and two, under the case of Citicorp Industrial Credit, Inc. v. Wal-Mart Stores, Inc., 305 Ark. 530, 809 S.W.2d 815 (1991), Podatch had thirty days to respond to the complaint. The order, which was filed December 6, 1993, also denied Potlatch’s Rule 12(b)(6) motion to dismiss. Pot-latch thereupon filed its answer on December 16, 1993.

A trial of the matter was held before the chancellor on September 26, 1994. After hearing testimony and reviewing the documentary exhibits, the chancellor requested briefs from the parties. The appellants’ brief contained not only their arguments for specific performance, but, for the first time, alleged an entitlement to a lease through the doctrine of prescriptive easement. On November 18, 1994, the chancellor made the following findings:

Plaintiffs seek specific performance of a purported contract based on a conversation between Plaintiff Larry Thompson and Podatch representative, Curtis Blankenship, in late 1989. The testimony of Larry Thompson and Curtis Blankenship was at odds as to the content of that conversation.
The burden of proof to establish the existence of a contract rests upon the Plaintiffs in this case. That burden is not met relying solely on the testimony of Mr. Thompson and Mr. Blankenship. Further, that burden is not met by considering the remainder of the evidence presented in this cause. In fact, much of the documentary evidence introduced into evidence preponderates against the formation of a contract in late 1989. (See first page of Defendant’s Exhibit 1 [Thompson’s first letter to Podatch], Plaintiffs’ Exhibits C and D) [Potlatch’s January 12, 1993 letter and the Hunting Lease Application].
Also, there was no evidence presented by Plaintiffs as to when the purported contract was to begin, how long it was to last and what compensation would be paid. There was no evidence of a “meeting of the minds” on these matters.
Plaintiffs failed to prove their case by a preponderance of the evidence. Therefore, their complaint for specific performance should be denied.
Counsel for Defendant should prepare a proposed order pursuant to these findings and submit it to the Court, with a copy to opposing counsel. If there are any objections, they should be made known to the Court immediately.

The findings were incorporated into an order which was filed on December 16, 1994. The record reflects no objection from the appellants.

The first issue on appeal concerns the chancellor’s denial of the appellants’ motion to strike and motion for default judgment. The appellants claim that, despite our holding in Citicorp, supra, a foreign corporation located in Arkansas is not entitled to thirty days to respond to a complaint. We decline to address the substance of that issue because the record does not reflect the issuance of a summons. Rule 4(d)(5) of the Arkansas Rules of Civil Procedure requires that a corporation be served by delivering a copy of the summons and complaint to the appropriate person. See also ARCP Rule 4(d), which provides that the summons and complaint shall be served together. A certificate of service, such as the one used in this case, is no substitute for a summons. A summons is necessary to satisfy due process requirements. Meeks v. Stevens, 301 Ark. 464, 785 S.W.2d 18 (1990). Rule 4(b) of the Arkansas Rules of Civil Procedure sets out the technical requirements of a summons, and compliance with those requirements must be exact. See Carruth v. Design Interiors, Inc., 324 Ark. 373, 921 S.W.2d 944 (1996). Since the appellants failed to issue an appropriate summons, the chancellor was correct in denying their motion to strike and their motion for a default judgment.

Next, the appellants contend that the chancellor erred in finding that no contract existed between Pair-O-Geese Hunting Club and Podatch. We do not reverse a trial court’s findings of fact unless they are clearly against the preponderance of the evidence. ARCP Rule 52(a). In this case, there was ample evidence to support the chancellor’s findings. Conflicting accounts were given of the 1989 meeting between Thompson and Blankenship. According to Blankenship, there was no promise of a right of first refusal and no offer to lease made to Pair-O-Geese. The chancellor chose to believe Blankenship. Deference is given to the superior position of the chancellor to judge the credibility of witnesses. Riddick v. Streett, 313 Ark. 706, 858 S.W.2d 62 (1993). The chancellor also noted, and we agree, that the documentary evidence belied any notion that Podatch had made a contractual offer to Pair-O-Geese in 1989. Those documents indicated that Podatch made its decision to begin leasing hunting rights in 1992 and, even then, cautioned interested parties that it was not making a promise or commitment regarding the leases. Additionally, the letter sent to Potlatch by Thompson in early 1990 indicates an awareness on Thompson’s part that a leasing program was, at that time, a mere possibility.

The appellants make two final arguments on appeal, but we cannot address those arguments because they were not ruled upon by the chancellor. No findings were made regarding the appellants’ claim that a contract was formed through their detrimental reliance on Blankenship’s alleged promises, nor were any findings made concerning their prescriptive easement claim. Issues that are raised during the course of trial proceedings must be brought to the attention of the chancellor for a ruling before they are reviewable on appeal. Britton v. Floyd, 293 Ark. 397, 738 S.W.2d 408 (1987).

Affirmed.

ROAF, J., not participating.

       Pope, Blankenship, and Thornton filed motions to dismiss which were granted by the chancellor.

       The Citicorp case held that foreign corporations doing business in Arkansas have thirty days to respond to a complaint under ARCP 12(a).


author: Tom Glaze, Justice.

text:
    Chad Wayne CLIFTON v. STATE of Arkansas
    CR 96-405
    930 S.W.2d 354
    Supreme Court of Arkansas
    Opinion delivered October 14, 1996
    [Petition for rehearing denied November 11, 1996.]

      Richard M. Grasby, for appellant.

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

Chad Clifton files this petition for writ of prohibition against the Pulaski County Circuit Court after that court denied his motion to dismiss for failure to provide a speedy trial. Our review of the record reflects the trial court was correct; therefore, we deny Clifton’s request for writ of prohibition.

This matter arises from a motor vehicle accident that occurred on August 20. 1994. Donna Hutchinson was killed as a result of the accident, and Clifton was taken to the hospital for medical treatment. The deputy sheriff who investigated the accident interviewed Clifton at the hospital, and as a result of that interview, the deputy issued a citation for driving while intoxicated, driving left of center, and driving off pavement on right. The deputy sheriff also took Clifton’s driver’s license. Clifton later appeared in Pulaski County Municipal Court on September 27, 1994, when the offenses with which he was cited were dismissed, and he was arrested for manslaughter and released upon posting a $15,000 bond. On November 10, 1994, the prosecutor formally filed an information in the Pulaski County Circuit Court, alleging Clifton had feloniously and recklessly caused Ms. Hutchinson’s death. The circuit court set a jury trial date for September 22, 1995.

One week prior to the date of trial, Clifton moved to dismiss on speedy-trial grounds, and in doing so, relied on Ark. R. Crim. P. 28.2(a). Rule 28.2(a) provides in relevant part that the time for trial commences running from the date of arrest for an offense based on the same conduct or arising from the same criminal episode. Clifton asserts the deputy sheriff arrested him on August 20, 1994, for DWI and the two traffic offenses, and since those offenses arose out of the same criminal episode as the manslaughter charge, his twelve-month speedy-trial time began on the August 20 date. As a consequence, he claims the last date for trial on any and all charges was August 20, 1995. Clifton is mistaken.

The short answer to Clifton’s argument is that no arrest occurred on August 20, 1994. Instead, after interviewing Clifton at the hospital on the August 20, 1994 date, the deputy sheriff issued a citation in lieu of arrest or custody, which is authorized under Ark. R. Crim. P. 5.1(a) and 5.2(a). See Manatt v. State, 311 Ark. 17, 842 S.W.2d 845 (1992) (court held that where officer issued offender a citation in lieu of arrest after a routine traffic stop, the accused was not “in custody” for purposes of Miranda warnings); Mosley v. State, 22 Ark. App. 29, 732 S.W.2d 861 (1987) (court held that a citation in lieu of arrest issued by an officer to the accused at a hospital is not an arrest).

Here, the citation merely ordered Clifton to appear in municipal court on September 27, 1994, and it was on the September 27 date when Clifton was actually arrested for any offense. Because Clifton’s arrest for felony manslaughter occurred on September 27, 1994, and the twelve-month speedy-trial time commenced then, the circuit court’s September 22, 1995 trial date was within the one-year period. Accordingly, the circuit court has jurisdiction to proceed to trial.

For the reasons above, we deny Clifton’s request for a writ of prohibition.

       Rule 5.1(a) provides “Citation means a written order, issued by a law enforcement officer who is authorized to make an arrest, requiring a person accused of violating the law to appear in a designated court or governmental office at a specified date and time.”
      Rule 5.2(a) provides “[A] law enforcement officer in the field acting without a warrant who has reasonable cause to believe that a person has committed any misdemeanor may issue a citation in lieu of arrest or continued custody.”


text:
    Charles CLOWNEY and V & H Logging, Inc. v. Harley and Agnes GILL and Jeff Denman
    96-349
    929 S.W.2d 720
    Supreme Court of Arkansas
    Opinion delivered October 14, 1996
    [Petition for rehearing denied November 18, 1996.]

      Claude W. Jenkins, for appellant.

      Russell D. Berry, for appellees Harley and Agnes Gill.

      Brad Green, for appellee Jeff Denman.
   Tom Glaze, Justice.

This appeal arises from the appellants, Charles Clowney and V & H Logging, Inc., wrongly cutting timber located on Harley and Agnes Gills’ land. Clowney hired appellee Jeff Denman, a forester, to locate and re-mark the boundary lines of Clowney’s property, but in doing so, gave Denman an ownership map which mistakenly showed forty acres of the Gills’ land as belonging to Clowney. After the cutting began, the Gills notified V & H that it was logging their land and demanded V & H cease its operation.

The Gills later brought suit against Clowney and V & H for trespass and for having harvested the Gills’ trees. They sought treble damages. Clowney and V & H filed a third-party negligence action against Denman who counterclaimed for indemnification. Denman also sued Clowney for breach of contract.

The trial court granted a partial summary judgment finding the Gills owned the land on which the timber was wrongfully cut and also determined Clowney and V & H were liable for trespass when cutting the timber. Following trial, the jury awarded the Gills treble damages in the sum of $135,000.00 against Clowney and V & H. The jury further rendered a verdict in Denman’s favor against Clowney for $763.27 and returned a defendant’s verdict for Den-man on Clowney’s and V & H’s third-party claim. Clowney and V & H now appeal, raising three points for reversal. Unfortunately, we are unable to reach the merits regarding any of the three arguments.

We first consider Clowney’s and V & H’s argument that the evidence was insufficient to have made the treble damages award or the award of damages on Denman’s contract claim. In order to preserve a sufficiency of the evidence argument on appeal, a motion for directed verdict must have been made at the close of the plaintiff’s case-in-chief, and again at the conclusion of all the evidence. Stroud Crop, Inc. v. Hagler, 317 Ark. 139, 875 S.W.2d 851 (1994); Ark. R. Civ. P. 50(a) and (e). As the Gills and Denman point out, Clowney and V & H failed to make any directed-verdict motion, and as a consequence, we cannot consider their sufficiency of evidence argument on appeal.

Clowney’s and V & H’s other two arguments question the trial court’s giving certain jury instructions. This court’s setded law, however, is that no party may assign as error the giving or failure to give an instruction unless he objects thereto before or at the time the instruction is given, stating distincdy the matter to which he objects and the grounds of his objection. Newton v. Chambliss, 316 Ark. 334, 871 S.W.2d 587 (1994); MIC v. Barrett, 313 Ark. 527, 855 S.W.2d 326 (1993).

Here, the record fails to reflect that either Clowney or V & H timely objected to the jury instructions now questioned on appeal. The record does show they objected to the instruction on treble damages, but their objection was interposed after the jury had returned its verdict and the jurors had been excused.

Clowney and V & H mention that they had timely objected to the jury instructions and specified their grounds at an in camera hearing in the trial court’s chambers prior to the jury receiving its instructions, but that hearing was not recorded. In Barrett, we were met with the same problem and reiterated the rule that it is appellant’s duty to demonstrate error in the proceedings below and to bring up a record sufficient to demonstrate error. Barrett, 313 Ark. at 350. Here, Clowney and V 8c H fail to present a record of their timely objections with stated grounds, and we are unable to consider belated objections on appeal.

We emphasize once again that all bench conferences and in chambers conferences should be “on the record” unless they involve matters unrelated to the current trial, in which case, a note to that effect may be made in the record. Fountain v. State, 269 Ark. 454, 601 S.W.2d 862 (1980); see also McDonald v. Wilcox, 300 Ark. 445, 780 S.W.2d 17 (1989); ARCP, Adm. Order No. 4 (1991). While it is the responsibility of the trial court to see that a fair and adequate record of a trial is preserved, counsel must be diligent and responsible to seeing one is made. Fountain, 269 Ark. at 456.

In reviewing the record, we do find where the trial court attempted to recall and recite one of the instructions to which Clowney and V & H objected, but that attempted recreation of the hearing made no mention of any grounds for the objection. We also note Clowney’s and V & H’s argument that one of the instructions was a binding and inherently erroneous one, and that only a general objection was necessary to raise the instruction’s validity on appeal. While that may be true, no objection was shown to have been made concerning the purported binding instruction.

Because the points raised on appeal were not properly preserved at trial, we must affirm without considering the merits of those arguments.


author: TOM GLAZE, Justice.

text:
    WESTERN WASTE INDUSTRIES v. Honorable John PURIFOY, Judge
    96-416
    930 S.W.2d 348
    Supreme Court of Arkansas
    Opinion delivered October 14, 1996

      Mitchell, Williams, Selig, Gates & Woodyard, by: Marcella J. Taylor and Sherry P Bartley, for appellant.

      Barry A. Bryant, for appellee.
   TOM GLAZE, Justice.

Western Waste Industries filed this petition for writ of prohibition to prevent the Circuit Court of Miller County from asserting jurisdiction over claims Western Waste contends belong to the Arkansas Workers’ Compensation Commission. Western Waste owned and operated a municipal solid-waste landfill in Texarkana, and Toronza Wilson was its employee until Western Waste closed the landfill in 1993. Subsequently, Wilson filed claims against Western Waste with the Commission, alleging that, during her employment, she had sustained injuries due to exposure to chemicals. She also alleged that, because of her work, she had acquired carpal tunnel syndrome. On May 17, 1994, Western Waste and Wilson executed a joint petition before the Commission, settling Wilson’s claims whereby Western Waste agreed to pay Wilson $12,500.00, plus attorney’s fees, as a full, complete and final payment and discharge of its liability to Wilson for any past or future injuries or medical expenses relating to her employment with Western Waste.

On February 22, 1995, or nine months after the settlement of her Workers’ Compensation claim, Wilson filed a personal injury suit against Western Waste and twelve other entities whom she alleged either generated or transported solid waste which was disposed of at the landfill. Wilson alleged that she sustained injury by virtue of exposure to toxic chemicals during the course of her employment at Western Waste. Wilson’s complaint asserted gross negligence, strict liability, and intentional infliction of emotional distress. Western Waste filed a motion to dismiss pursuant to Ark. R. Civ. P. 12(b) and 12(b)(6), arguing that the Commission had exclusive jurisdiction over Wilson’s claims against Western Waste and that Wilson had failed to state facts upon which relief could be granted.

In her response to the motion to dismiss, Wilson contended that her action was based upon the “intentional tort” exception to the exclusive-remedy doctrine of the Arkansas Workers’ Compensation Act, more particularly, Ark. Code Ann. § ll-9-105(a) (Repl. 1996). Wilson also filed a first amended complaint which added a claim of assault to the previous claims. Western Waste renewed its motion to dismiss, and reasserted that exclusive jurisdiction was with the Commission. The circuit court denied Western Waste’s motions to dismiss, and Western Waste filed its petition for writ of prohibition in this court, stating the trial court has no jurisdiction to proceed on Wilson’s tort claims since those claims were properly concluded before the Commission. We agree.

We first point out that, where the encroachment on Workers’ Compensation jurisdiction is clear, we have not hesitated to hold writs of prohibition are clearly warranted. Hill v. Patterson, 313 Ark. 322, 855 S.W.2d 297 (1993). When considering a petition for a writ of prohibition, jurisdiction is tested on the pleadings, not the proof. Nuco-Yamato Steel Co. v. Circuit Court, 317 Ark. 493, 878 S.W.2d 745 (1994). In addition, this court has held that prohibition is only proper when the jurisdiction of the trial court depends on a legal rather than a factual question. Id.

We conclude that, because the issue in this case is one of law with no facts in dispute, Western Waste’s resort to writ of prohibition is appropriate. This court has held that the general rule is that an injured employee’s right to recover for job-related injuries is exclusively under the Workers’ Compensation Act, but when the employee is able to show actual, specific and deliberate intent by the employer to injure him, he may avoid the exclusive remedy under the Act and proceed in a common-law tort action. Sontag v. Orbit Valve Co., 283 Ark. 191, 672 S.W.2d 50 (1984). In other words, the employee has the option to pursue his or her claim for damages either in tort or under the Workers’ Compensation Act. However, once the employee makes that election, the employee may not later avail himself or herself of the remedy not chosen. Id.; see also Heskitt v. Fisher Laundry & Cleaners, Inc., 217 Ark. 350, 230 S.W.2d 28 (1950).

In the present case, Wilson sought remedy under the Workers’ Compensation Act, claiming her injuries resulted from exposure to toxic chemicals during the time of her employment with Western Waste. As mentioned earlier, she recovered $12,500.00, plus attorney’s fees, and by agreement, the parties concluded that their settlement was a full, complete and final payment and discharge of Western Waste’s liability to Wilson for any past or future injuries or medical expenses. Because of Wilson’s decision to pursue her Workers’ Compensation remedy, we hold that as a matter of law, she is precluded from pursuing any tort action for the same claim.

We note Wilson’s argument that her Workers’ Compensation claim was limited only to an injury she sustained as a result of a chemical exposure which occurred on April 17, 1993. She suggests that other exposures prior or subsequent to the April 17 claim were the bases for her tort action and, therefore, she should not be precluded from electing to pursue these “other injuries” in tort. We dismiss Wilson’s argument because, as we pointed out earlier, in determining whether a trial court has jurisdiction in prohibition matters, this court is limited to the parties’ pleadings. Here, in its motion to dismiss below, Western Waste asserted that Wilson’s injuries from chemical exposure had been settled before the Commission, but Wilson never alleged in her complaint or in her response to Western Waste’s motion that her so-called new claims were different from the one(s) resulting from the April 17, 1993 occurrence which was (were) setded by the parties on May 17, 1994. However, even if we were permitted to consider the parties’ joint settlement agreement, which was not made a part of the pleadings, that agreement bears broad language, reflecting complete and total payment of all benefits due in the present or future for any injuries to Wilson, and it provided Wilson could pursue no further claims in any subsequent proceedings.

Because we hold Wilson’s prior filing of her claim under the Workers’ Compensation Act was an election of remedies barring any subsequent common law remedy, we grant Western Waste’s request for writ of prohibition.


author: Donald L. Corbin, Justice.

text:
    Freddy THARP v. Velma SMITH
    96-451
    930 S.W.2d 350
    Supreme Court of Arkansas
    Opinion delivered October 14, 1996

      Johnson & Keith, by: Paul W. Keith, for appellant.
   Donald L. Corbin, Justice.

Appellant, Freddy Tharp, appeals the order of the Ashley County Circuit Court refusing to set aside a default judgment that awarded damages of $4,723.00 plus costs and interest to Appellee, Velma Smith, on her complaint for damages for repairs she made to Appellant’s real property in contemplation of purchasing the property pursuant to an oral contract. Appellant presents two arguments for reversal. First, he contends the trial court should have set aside the default judgment to prevent a miscarriage of justice. Second, he contends there was no evidence to support the award of damages. Appellant’s first argument requires our interpretation of ARCP Rule 55, specifically Rule 55(c)(4). Thus, our jurisdiction of this appeal is pursuant to Ark. Sup. Ct. R. 1-2 (a) (3). We find no merit to Appellant’s first argument, but do find merit to his second argument and therefore affirm the default judgment as to liability but reverse and remand for a hearing to determine the amount of damages.

Appellee filed a complaint on June 9, 1995, alleging that Appellant orally agreed to sell her a house he owned at 500 North Carolina Street in Crossett, Arkansas, for $4,723.00, provided that she would repair the house, which was not in habitable condition. According to the complaint, Appellee completed the repairs in good faith and tendered a check for $4,723.00 to Appellant, who then refused the check, refused to reimburse her for the repairs, and instead initiated eviction proceedings against her. The complaint fisted itemized repairs in the total amount of $2,438.00 and prayed for damages for that sum “AND LABOR AND PUNITIVE DAMAGES IN THE SUM OF $2,562.00, PLUS ALL COSTS AND REPRESENTATIVE OF $300. WITH 8% INTEREST PER ANNUM FROM THE DATE OF JUDGMENT AND ALL OTHER PROPER RELIEF.” The Ashley County sheriff served Appellant with a summons on June 20, 1995. Appellant did not answer the complaint or make an appearance in this case until he filed a motion to set aside the default judgment.

The record does not indicate that Appellee ever moved for a default judgment or that a hearing was ever held. However, the trial court entered a default judgment for Appellee on September 5, 1995, finding that Appellant was served with a copy of the complaint and summons but had failed to appear.

Appellee’s counsel then filed a writ of execution and a writ of garnishment naming First State Bank of Crossett as garnishee. Garnishee answered and admitted being indebted to Appellant in excess of $5,301.13. The trial court entered an order on October 4, 1995, ordering the release of funds from Garnishee in the amount of $5,301.13.

On October 13, 1995, Appellant filed a single motion captioned “MOTION TO SET ASIDE JUDGMENT AND MOTION TO QUASH WRIT OF GARNISHMENT.” The trial court set a hearing on this motion and temporarily restrained Ap-pellee and her counsel from disbursing the funds released by Garnishee until the hearing could be held. The trial court allowed Garnishee to intervene in the case. At the hearing on the motion to set aside judgment, the trial court received evidence from both Appellant and Appellee. The trial court entered an order denying Appellant’s motion. This appeal followed. Appellee did not file a brief in this appeal.

Appellant’s first point on appeal is that the trial court erred in refusing to set aside the default judgment in toto. He contends that he was justified in failing to answer the complaint, that the trial court did not consider the proper factors in making its decision, and that a miscarriage of justice will result if he is not allowed to present a defense. Appellant’s second point for reversal is that the trial court erred in failing to set aside the default judgment as to damages because there is no evidence of the amount of the damages. The standard by which we review the granting or denial of a motion to set aside a default judgment is whether the trial court abused its discretion. B & F Eng’g, Inc. v. Cotroneo, 309 Ark. 175, 830 S.W.2d 835 (1992).

It is well established that in Arkansas a default judgment establishes liability but not the extent of damages. See, e.g., Byrd v. Dark, 322 Ark. 640, 911 S.W.2d 572 (1995); see also Rice v. Kroeck, 2 Ark. App. 223, 619 S.W.2d 691 (1981) (giving historical basis for this rule of law). This rule of law is reflected in part in ARCP Rule 8(d), which provides in part: “Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied, either generally or specifically, in the responsive pleading.” Thus, proof must be presented as to the amount of damages. The only exception to the proof requirement is in a suit on an account where a verified statement of the account is filed with the complaint. Ark. Code Ann. § 16-45-104 (1987). Even assuming arguendo that this is a suit on account, there is no verified statement of the account in this case. Appellee’s complaint is not even verified; it was merely signed by a paralegal identified only as “jin” and by Appellee pro se. See McWater v. Ebone, 234 Ark. 203, 350 S.W.2d 905 (1961) (discussing definition of “account” and requirement of verification).

A hearing is required to determine the amount of damages, and the plaintiff is required to introduce evidence of the damages. Cotroneo, 309 Ark. 175, 830 S.W.2d 835. In Arkansas, Rule 55(b) does not require that notice of the hearing be given to a defaulting defendant who has not appeared. Divelbliss v. Suchor, 311 Ark. 8, 841 S.W.2d 600 (1992). A defendant has the right to cross-examine the plaintiff’s witnesses, to introduce evidence in mitigation of damages, and to challenge the sufficiency of the evidence on appeal. Clark v. Michael Motor Co., 322 Ark. 570, 910 S.W.2d 697 (1995). However, after having received evidence, the trial court may not transform the judgment from one of default to one based on the merits such that ARCP Rule 55 no longer applies. Harold M. v. Clark, 316 Ark. 439, 872 S.W.2d 410 (1994).

Appellant argues that he was justified in not answering the complaint. However, at the hearing on the motion to set aside, the trial court stated that it did not find any reason for setting aside the default judgment. We find no abuse of discretion in this ruling as it applies to the judgment of liability.

Appellant testified at the hearing on the motion to set aside that he never received service of the complaint and that he had been out of town, but admitted that “somebody come [sic] up and found it on the floor there.” This testimony is in direct conflict with the summons, which clearly states that service was made on Appellant. Appellant explained that he thought this matter was being attended to by the attorney he had hired to handle the eviction proceeding in municipal court, although that proceeding was not filed until after service was made on Appellant and although Appellant did not even notify that attorney of the writ of garnishment that Appellant admitted he received. The trial court stated that the record was clear that Appellant was served with summons by the sheriff and that Appellant chose to deal with the dispute between himself and Appellee by pursuing the eviction proceeding in municipal court. On this record, we cannot say the trial court abused its discretion in finding that there was no excuse for Appellant’s default or that the trial court failed to apply the relevant consideration of Rule 55(c).

Appellant cites Rule 55(c)(4) and argues that a miscarriage of justice will result if he is not allowed to present a defense and that such miscarriage of justice constitutes “any other reason justifying relief from the operation of the judgment.” This is nothing more than a back-door attempt to satisfy Rule 55(c), which requires, in effect, two steps to having a default judgment set aside. First, a defaulting defendant must show one of the four enumerated categories of reasons to have the judgment set aside. Second, if the reason is any other than that the judgment is void, a defaulting defendant must then demonstrate a meritorious defense to the action. Here, appellant argues that the “reason” to set aside the judgment is because he has a meritorious defense and a miscarriage of justice will result if he is not allowed to present it. This argument clearly circumvents the dual requirements of Rule 55(c). Moreover, it ignores the cogent fact that the reason Appellant was not allowed to present a defense in the first place is because of his own unexcusable default.

Because Appellant did not file an answer or otherwise appear in this case, Appellee was entitled to the default as to liability without further notice. However, Appellee was not relieved of the requirement of proving the amount of her damages. There is nothing in the record to indicate that the trial court heard evidence as to the amount of the damages. In fact, there is every indication to the contrary. At the hearing on the motion to set aside the default judgment, Appellee testified that she did not testify as to the amount of her damages at the time the default judgment was entered, and the trial court stated that he did not recall whether proof was presented or not. Moreover, the default judgment itself does not recite that it was based on any evidence being presented, and we will not presume otherwise. See Rice, 2 Ark. App. at 227, 619 S.W.2d at 693 (quoting Dent v. Adkisson, 184 Ark. 869, 874, 43 S.W.2d 739, 741 (1931)).

As recited above, our law is clear that a plaintiff must prove his damages against a defaulting defendant. We note that, at the hearing on the motion to set aside the default judgment, the trial court did receive testimony from Appellee as to what repairs she had made to the house; however, her testimony included only a relative few specific dollar figures and the remainder of her testimony was so vague it does not support the amount awarded by the trial court. We note further that the amount the trial court awarded is the amount Appellee stated Appellant paid for the house at auction; Appellant, however, contradicted this with testimony that he paid $13,000 for the house pursuant to a negotiated sale. In any event, even if the trial court had decided to set aside or adjust the damages at that point, it could not have done so. We have stated that Rule 55(c) does not authorize a trial court to vacate a judgment for damages while the judgment on liability stands. Byrd, 322 Ark. 640, 911 S.W.2d 572.

In summary, we conclude the trial court did not abuse its discretion in refusing to vacate the default judgment as to liability. However, the trial court should not have entered judgment as to damages without conducting a hearing where Appellee should have been required to prove the amount of her damages and where Appellant should have been allowed the opportunity to cross-examine her witnesses and to offer his own evidence of mitigation. Accordingly, we affirm the judgment in part and reverse and remand in part.


author: Per Curiam. Tom GLAZE, Justice,

text:
    Lamont BOWDEN v. STATE of Arkansas
    CR 95-1258
    931 S.W.2d 104
    Supreme Court of Arkansas
    Opinion delivered October 14, 1996

      Ronald Carey Nichols, for appellant.

      Winston Bryant, Att’y Gen., by: Vada Berger, Asst. Att’y Gen., for appellee.
   Per Curiam.

On June 21, 1996, we issued a show-cause order to the appellant’s counsel for failure to file the appellant’s brief after having been granted four extensions totaling 104 days. The appellant’s brief was tendered on June 28, 1996. However, his counsel was given seven days to correct this brief. A brief containing sixteen pages of abstract and three pages of argument was ultimately filed on July 9, 1996.

On August 6, 1996, the State filed a Motion to Direct Compliance with Rule 4-3 (h) because the appellant’s counsel had only abstracted the parts of the record which pertained to the one issue he raised on appeal. Because the appellant was sentenced to life without parole, Rule 4-3 (h) requires that the appellant abstract all rulings adverse to him. On September 9, 1996, this court granted the State’s motion and allowed the appellant until September 29, 1996 to file a brief in compliance with Rule 4-3 (h).

However, also on September 9, 1996, appellant’s counsel filed two additional motions which are now before this court, a motion to amend brief, and a motion to supplement the record. In his motion to supplement the record, appellant’s counsel asserts that the omnibus hearing was not transcribed and is not a part of the record, and asks that the court reporter be ordered to prepare a transcript of this hearing. In the motion to amend his brief, he requests that he be allowed to supplement his brief with an abstract of this hearing. As it will be necessary for the omnibus hearing to be transcribed if the appellant is to comply with Rule 4-3 (h), we grant the motions.

The court reporter is directed to complete the record as requested within thirty days of this opinion, and appellant’s amended brief shall be due seven days thereafter.

Although the concurring justice has taken issue with this court’s dismissal of the State’s appeal in a previous and unrelated case, we do not need to belabor the obvious. There is a significant and inherent difference between appeals brought by criminal defendants and those brought on behalf of the state. The former is a matter of right, and to cut off a defendant’s right to appeal because of his attorney’s failure to follow rules would violate the Sixth Amendment right to effective assistance of counsel. See Franklin v. State, 317 Ark. 42, 875 S.W.2d 836 (1994); Ark. R. App. P. — Crim. 1. The latter is not derived from the Constitution, nor is it a matter of right, but is granted pursuant to our rules. See Ark. R. App. P. — Crim. 3.

We further gave the State fair notice in State v. Parkman, 325 Ark. 35, 923 S.W.2d 281 (1996) which was handed down on June 3, 1996:

Henceforth, we will not entertain appeals by the State when the State’s brief is not filed in accordance with the specific deadline in the final extension granted by this Court.

Glaze, J. concurs.

Tom GLAZE, Justice,

concurring. Two weeks ago, this court dismissed the State’s appeal because its attorney was 89 days late in filing a brief. That dismissal resulted in two defendants’ confessions being suppressed at a murder trial without this court determining the legality of suppressing those confessions. See State v. Tien, 326 Ark. 71, 929 S.W.2d 155 (1996).

Today we have the flip-side of the Tien case. Here the defendant Bowden, convicted of murder, has appealed, but his attorney has not, as yet, filed a correct or proper brief even though 249 days have passed since his first brief was due. Even though Bowden’s attorney was given 105 days, plus 60 more days after a final extension, this court voiced no intention of dismissing Bowden’s appeal. In fact, after these 165 days passed, we issued a show cause order and allowed Bowden’s attorney to come before us to give his excuse for being late. After hearing his story, this court permitted the attorney to continue on the case. Now, as previously mentioned, 249 days have passed, but this court has given no thought or consideration (nor should it) to dismissing defendant Bowden’s appeal.

This court attempts to shield itself from justifiable criticism by saying a defendant’s Sixth Amendment right to counsel is the reason why a defendant’s appeal cannot be dismissed, but a state’s appeal can. It suggests that, because the State has no constitutional right to have its appeal heard, its appeals may be dismissed for its attorney’s error.

The court’s expressed justification for treating State and defendant criminal appeals differently would be funny if it did not have such grave consequences. The court’s per curiam ignores two glaring principles.

One, this court over the years has consistendy applied the same rule to all appeals, both state and defendant — it has never dismissed a criminal appeal because an attorney failed to file a timely brief. Simply put, this court, aside from any Sixth Amendment differences, has always treated state and defendant criminal appeals the same. In other words, the court’s decision to treat all appeals the same is case-precedential, not constitutional. The real question is why did this court in Tien choose to depart from its longstanding precedent by deciding to dismiss a state criminal appeal? The majority court’s reference to a defendant’s right to effective counsel in no way answers this question.

The second principle this court has applied when a defendant’s or state’s counsel erred in filing an untimely brief is the court would invite or order the attorney to proffer his or her reason for being late. Again, why did the court not extend that courtesy to the State’s attorney in the Tien case? The court’s per curiam in no way tries to justify its failure on this point, and I submit there is none.

This court’s unfair, disparate treatment in dismissing the public’s case for the mistake of a State’s attorney, but refusing to dismiss and affirm a defendant’s appeal for his attorney’s repeated tardiness, only fosters distrust and a lack of confidence in our judicial system. This court’s uneven application of its criminal appellate rules and its exercise of discretion is incredibly punitive. In short, it punishes the people of this state by denying them the fairness of having their cases procedurally heard on appeal and decided in the same manner as a defendant’s. Until Tien, this court adhered to a fairness principle when deciding state and defendant appeals, but has abandoned it for no expressed reason.

In the Tien case, I dissented and pointed out the fact I reiterate now — this court has never dismissed a criminal appeal (the State’s or defendant’s) because an attorney filed a late brief. I listed twenty-three defendants’ appeals in this court in 1994 and 1995 where we granted further extensions after this court had previously established a final extension date. Eighteen (18) of those appeals involved situations where a defendant’s attorney was more than 100 days late with his or her brief. This court appropriately never dismissed (or even considered dismissing) a defendant’s appeal for an attorney’s tardiness. Again, nor has the court ever dismissed a state’s appeal for that reason.

When a State’s attorney errs, this court has available to it the same sanctions and discretion it exercises in a defendant’s appeal when his or her attorney errs. The court can remove the attorney, have the attorney appear before it to give a reason why he or she missed filing deadlines and send the attorney’s name to the Professional Conduct Committee. This court has routinely followed these procedures and sanctions in past appeals. Once again, why it now chooses to abandon these longstanding procedures and precedents in only State appeals puzzles me; but as already noted, the court’s decision to do so punishes the Attorney General’s Office, and more importandy, the people of this state.

This court’s decision in Tien is fundamentally wrong, and it poisons the very core of our court’s criminal appellate rules whose object is to provide equal justice for all parties — even the State. Significantly, this court’s criminal appellate rules nowhere provide for the dismissal of a criminal case for the failure to file a brief, although such dismissal may be granted in civil cases. I submit that our criminal appellate rules do not provide for dismissals in such circumstances because the court never contemplated dismissing criminal appeals for such reasons.

This court should overrule its decision in Tien, return to our rules and case law precedent and allow all criminal appeals to come to a conclusion, even if an attorney files a late record or brief. See Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981); In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam). Accordingly, even though Bowden’s attorney is 249 days late, this court is correct in allowing him to supplement his record and file a corrected brief. In any event, his case should not be dismissed because of his attorney’s tardiness.

Finally, I must add that the deputy attorney general, who erred in Tien, has an otherwise excellent reputation for filing well-researched and well-written briefs for the State. That reputation has been recognized at one time or another by every member of this court. His failure to perform in the Tien appeal was not at all consistent with his past outstanding performances. Nonetheless, this court never gave this deputy attorney general an opportunity to explain why he had failed to file a timely brief— an opportunity this court has extended even the worst offending defendant’s attorney, such as Bowden’s in the present case. I am embarrassed for this court’s failure to extend that courtesy to the deputy attorney general in Tien. Perhaps this court could in some manner offer recompense by reversing itself in Tien and own up to its own mistakes.


text:
    James CARRIGAN v. STATE of Arkansas
    CR 96-353
    929 S.W.2d 164
    Supreme Court of Arkansas
    Opinion delivered October 14, 1996

      David Mark Gunter, for appellant.
   Per Curiam.

James Carrigan was convicted below and seeks to appeal the judgment of conviction. On March 27, 1996, his attorney, David Mark Gunter, lodged the transcript from the trial in the Circuit Court of Hempstead County. The Clerk of this Court notified the attorney that appellant’s brief was to be filed in this court by April 27, 1996. On September 12, 1996, the Clerk of this Court notified the attorney that appellant’s brief was five months overdue, and yet he had neither tendered a brief nor asked for an extension of time in which to file a brief. The attorney did not respond until September 27, 1996, when he asked that he be given until November 8, 1996, to file a belated appellant’s brief. The attorney has given no reason for his failure to timely file the brief.

The motion to file a belated brief is denied, and David Mark Gunter is ordered to appear before this court at 9:00 a.m. on October 28, 1996, to show cause why he should not be held in contempt for the failure to timely file the appellant’s brief.


text:
    Donald PENNINGTON, et al. v. HARVEST FOODS, INC.
    95-732
    929 S.W.2d 162
    Supreme Court of Arkansas
    Opinion delivered October 14, 1996

      Boswell, Tucker, Brewster & Hicks, by: Dennis J Davis, for appellants John Oldner; John Oldner, Inc.; and John Oldner Consulting Services, Inc., d/b/a John Oldner & Associates.

      Dodds, Kidd, Ryan & Moore, by: Charles Gregory Alagood, for appellants Joel Tumblson, Sr., and Soundra Tumblson.

      David H. Williams, for appellants Joel Tumblson, Jr., T.S.P., Inc., and Top Spread Potato, Inc.

      Wilson, Engstrom, Corum & Coulter, by: Stephen Engstrom, Gary D. Comm, and Nate Coulter, for appellee Harvest Foods, Inc.
   Per Curiam.

Appellee Harvest Foods, Inc., has moved to stay the appeal of Donald B. Pennington, et al., from a judgment in favor of Harvest Foods, Inc. The basis of the motion is § 362 of Title 11 of the United States Bankruptcy Code (Supp. II [1978]). In support of an earlier motion, Harvest Foods, Inc., supplied a copy of a United States Bankruptcy Court order indicating that Harvest Foods, Inc., had filed a bankruptcy petition and was the debtor in an ongoing proceeding before the Bankruptcy Court.

Section 362 provides for an automatic stay of all proceedings “against” the debtor. In support of its motion, Harvest Foods, Inc., cites Association of St. Croix Condominium Owners v. St. Croix Hotel Corp., 682 F.2d 446 (3rd Cir. 1982), which contains this language:

In our view, section 362 should be read to stay all appeals and proceedings that were originally brought against the debtor, regardless of whether the debtor is the appellant or appellee. Thus, whether a case is subject to automatic stay must be determined at its inception. That determination should not change depending on the particular stage of the litigation at which the filing of this petition in bankruptcy occurs.

In response to the motion for stay of the appeal, two of the appellants, Joel Tumblson and Soundra Tumblson, contend, and we agree, that the St. Croix case does not require a stay of an appeal when the proceeding on appeal was “originally brought” by the debtor. In the St. Croix case, the action was one “originally brought” against the debtor for eviction and damages. The debtor counterclaimed against the plaintiff for a monetary award and prevailed. Both parties appealed. Both appeals were stayed. The opinion does not address the question whether the debtor’s counterclaim could be regarded as one “originally brought” by the debtor.

In the case now before us, the situation is the reverse of that presented in the St. Croix case. The action was “originally brought” by Harvest Foods, Inc., rather than against it, and three of the original defendants, John Oldner, John Oldner, Inc., and John Oldner Consulting Services, Inc., d/b/a John Oldner and Associates (the Oldner appellants), counterclaimed against Harvest Foods, Inc. Their counterclaim was dismissed, and they have appealed. Unlike the Tumblsons, these appellants have no objection to the stay of their appeal. We grant the stay as to the appeal of the Oldner appellants.

When the debtor is the appellant, it is held that a stay is required if the action was originally brought against the debtor. Farley v. Henson, 2 F.3d 273 (8th Cir. 1993); Cathey v. Johns-Manville Sales Corp., 711 F.2d 60 (6th Cir. 1983). When a debtor counterclaims against the plaintiff in initial proceedings, the counterclaim is not stayed by section 362, Merchants & Farmers Bank of Dumas, Ark. v. United States of America, 122 B.R. 539 (E.D. Ark. 1990), because the proceeding is not “against” the debtor.

We find no authority interpreting § 362 in a manner requiring us to stay the appeal of the judgment in favor of Harvest Foods, Inc. Although it might be said that the appeal in this case is “against” Harvest Foods, Inc., all of the authority of which we are aware holds that the initial proceedings, and not the appeal, constitute the reference point for determining whether the action is one “originally brought” against the debtor.

Motion for stay granted in part and denied in part.


text:
    Paul SCHLAF and Scott Harford v. Sharon PRIEST, Secretary of State, and Frank Gilbert
    96-1037
    929 S.W.2d 164
    Supreme Court of Arkansas
    Opinion delivered October 14, 1996

      Oscar Stilley, for petitioners.

      Kelly Law Firm, PLC, by: A.J. Kelly, for respondent Frank Gilbert.
   Per Curiam.

In this original action, Respondent Frank Gilbert has filed a response to Petitioners’ motion to expedite and has moved the Court for judgment as a matter of law as to the factual allegations contained in the original petition. Mr. Gilbert moves in the alternative for appointment of a special master pursuant to Ark. Sup. Ct. R. Rule 6-5 (b), and he asks the Court to compel the Petitioners to respond to his requests for discovery.

Petitioners filed a motion to expedite on October 1, 1996. We granted the motion on October 7, 1996, relying on Petitioners’ statement that their challenge to the sufficiency of Proposed Amendment 9 would concern only legal issues. Petitioners clearly stated in their motion that they did not intend to offer proof on the factual allegations contained in their original petition; thus, we will be concerned only with the legal issues pertaining to the popular name and ballot tide. It is unnecessary to appoint a special master or to order discovery in this case, and we deny the motions.


text:
    Johnny WRIGHT v. STATE of Arkansas
    CR 96-1133
    931 S.W.2d 107
    Supreme Court of Arkansas
    Opinion delivered October 14, 1996

      Paul M. Herrod, for appellant.
   Per Curiam.

Appellant, Johnny Wright, by his attorney, Paul M. Herrod, has filed a motion for rule on the clerk. The Clerk refused to docket the record concerning Mr. Wright’s conviction because it revealed that the notice of appeal was untimely filed. Mr. Herrod accepts responsibility for the failure. We treat the motion for rule on the clerk as a motion for belated appeal in this circumstance.

Failure of counsel to perfect an appeal for a defendant who wishes to appeal constitutes ineffective assistance of counsel and good cause for granting a belated appeal. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam). The motion is granted.

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


text:
    Mary Ann HOLT, J.D. McClard, Joe McClard, and Joe Pulliam, Individually and as Arkansans Against a Second Monopoly — Amendment 4, and All Others Similarly Situated, Petitioners v. Sharon PRIEST, Secretary of State of the State of Arkansas, Respondent; Craig Douglass, On Behalf of Arkansans for Amendment 4 Committee, Intervenor
    96-1156
    930 S.W.2d 359
    Supreme Court of Arkansas
    Opinion delivered October 15, 1996
    Q. Byrunt Hurst, Jr., and Mark Justin Riable, for petitioners.

      Winston Bryant, Att’y Gen., by; Kay J. Jackson DeMailly, Asst. Att’y Gen., for respondent.

      Kevin Arlen Crass, for intervenor.
   Per Curiam.

On September 27, 1996, an original action was filed in this court seeking an order invalidating a proposed constitutional amendment offered under Amendment 7 to the Arkansas Constitution, enjoining the respondent from placing the proposed initiated constitutional amendment on the November 5, 1996 general election ballot, and directing that any votes cast thereon not be counted or certified because the petition contained invalid signatures and other irregularities. The petitioners’ Motion for Expedited Scheduling, For Appointment of a Master, and For Leave of the Court to Take Depositions was filed October 9, 1996.

The original action filed by the parties raises issues of fact. Arkansas Supreme Court Rule 6-5 (b) provides that evidence on issues of fact will be taken by a Master to be appointed by this court. Therefore, we appoint the Honorable Gerald Brown as Master and direct him to conduct such proceedings and hearings subject to and in accordance with our Rule 6-5(a) and Rule 53, Arkansas Rules of Civil Procedure, as are necessary to determine whether the allegations contained in the original action petition are true and to file his report with this court by October 24, 1996.

Arkansas Supreme Court Rule 6-5 (b) provides in pertinent part:

As a condition to the appointment of a master, the Court may require both parties to file a bond for costs to be approved by the Clerk.

All costs are to be shared equally between the petitioners and the intervenor as the respondent, Sharon Priest, Secretary of State, is not subject to payment of costs because of sovereign immunity. Bailey v. McCuen, 319 Ark. 369, 891 S.W.2d 797 (1995) (per curiam). Petitioners and intervenor are directed to file a bond, to be approved by the clerk, to secure payment of costs adjudged against them incurred in taking and transcribing the proof, including the Master’s fee.

In addition, the Master is instructed to set a deposition schedule so that discovery will be completed in sufficient time for him to submit his findings to this court on October 24, 1996.

Finally, an expedited briefing schedule is established as follows: simultaneous opening briefs from all parties by 4:00 p.m. October 28, 1996; reply briefs, if any, by 4:00 p.m. October 30, 1996.


author: Bradley D. Jesson, Chief Justice.

text:
    Timothy G. EVANS v. STATE of Arkansas
    CR 96-649
    931 S.W.2d 136
    Supreme Court of Arkansas
    Opinion delivered October 21, 1996

      Davis & Watson, PA., by: Charles E. Davis, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   Bradley D. Jesson, Chief Justice.

The appellant, Timothy Evans, was convicted of raping a fifteen-year-old boy and was sentenced to forty years in prison. We affirm.

Evans first argues that the evidence was insufficient to support his conviction. At trial, the victim testified unequivocally that Evans, a close family friend, raped him during an overnight camping trip on September 23, 1994. Evans contends that the State offered no proof to corroborate the victim’s testimony. We cannot address this issue because the appellant is presenting it for the first time on appeal. His directed verdict motion at the trial level was made on the sole ground that the prosecution had not proven the offense occurred in Carroll County. Parties cannot change their grounds for objection on appeal. They are bound by the scope and nature of the objections and arguments presented at trial. Campbell v. State, 319 Ark. 332, 891 S.W.2d 55 (1995). In any event, we have held many times that the uncorroborated testimony of a rape victim is sufficient to support a conviction. Gatlin v. State, 320 Ark. 120, 895 S.W.2d 526 (1995); Caldwell v. State, 319 Ark. 243, 891 S.W.2d 42 (1995).

Next, Evans argues that the trial court erred in failing to suppress a videotaped statement he gave to Lieutenant J.R. Ash-lock of the Carroll County Sheriff’s Department. In November and December of 1994, Lt. Ashlock conducted an investigation concerning allegations that Evans had raped the victim herein. On December 8, 1994, Evans agreed to come in to the Sheriff’s Department for an interview. During the course of the interview, Evans confessed to the crime. Prior to trial, he filed motions to suppress his confession on the basis that he was unaware the interview was being videotaped and on the basis that the confession was the product of coercion, improper influence, and deception. The trial judge denied the motions. In reviewing a trial judge’s ruling on a motion to suppress, we make an independent determination based on the totality of the circumstances and reverse only if the ruling is clearly against the preponderance of the evidence. Watson v. State, 308 Ark. 643, 826 S.W.2d 281 (1992). We are unable to conduct such a review in this case because Evans has not abstracted either the videotape or the transcript of his statement, nor has he shown that the abstract requirement was waived by the court. See Rule 4-2(a)(6) of the Arkansas Supreme Court Rules. Some of the testimony at trial alluded to matters contained in the statement, but, in the absence of the statement itself, we cannot make an independent determination based on the totality of the circumstances. We are aware that a videotape does not ordinarily lend itself to abstracting in a brief, but we have held that failure to abstract the prejudicial parts of a videotape precludes our consideration of the videotape on appeal. Donihoo v. State, 325 Ark, 483, 931 S.W.2d 69 (1996); Edwards v. State, 321 Ark. 610, 906 S.W.2d 310 (1995). Additionally, Evans could easily have abstracted the transcript of his statement. Since he did not do so, we cannot address the issues surrounding the admissibility of his statement. See Beebe v. State, 301 Ark. 430, 784 S.W.2d 765 (1990).

Finally, Evans argues that the trial court erred in excluding evidence that the victim in this case had sexually abused his stepsister. The record indicates that the abuse occurred in November of 1994, more than a month after the victim herein was raped. The State argued that such evidence was highly prejudicial and irrelevant. A trial judge’s ruling regarding relevancy is entitled to great weight and will be reversed only if the court abused its discretion. Dixon v. State, 311 Ark. 613, 846 S.W.2d 170 (1993). We find no abuse of discretion in this case.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    Jared Benjamin KINDLE v. STATE of Arkansas
    96-431
    931 S.W.2d 117
    Supreme Court of Arkansas
    Opinion delivered October 21, 1996

      Tim Buckley, for appellant.

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

This is another interlocutory appeal from an order denying a motion to transfer a case to juvenile court. Jared Benjamin Kindle was charged in circuit court with aggravated robbery and attempted capital murder. He was sixteen years old at the time of the offense. At the hearing on his motion to transfer, he presented evidence from a psychiatrist, an assistant principal, two teachers, and his grandmother and grandfather. The testimony showed that he made good grades and was well behaved at home and in school. The psychiatrist testified that Kindle has attention deficit disorder, which gives him low frustration tolerance, impulsiveness, an active fantasy life, and poor judgment.

The victim of the aggravated robbery testified that Kindle held a loaded pistol to his head and tried to pull the trigger. Kindle confessed that he held the pistol on the victim, that he had planned the robbery for about a week, and that he waited until all the customers left the store before he attempted the robbery. He denied attempting to pull the trigger.

In its ruling, the trial court recognized that there were a number of factors mitigating in favor of transfer, including the possibility of rehabilitation, but indicated that the seriousness of the offense and the fact that Kindle planned the robbery for a considerable period of time outweighed the mitigating factors. The trial court denied the motion.

Kindle argues that the trial court’s decision to deny the transfer was clearly erroneous. The applicable parts of the juvenile code and our interpretations of the code are as follows. A prosecutor has the discretion to file charges in circuit court when the case involves a juvenile sixteen years of age and the alleged act constitutes aggravated robbery and attempted capital murder. Ark. Code Ann. § 9-27-318(b) (2) (J) (Supp. 1995). A defendant seeking a transfer has the burden of proof to show that, under the factors delineated in section 9-27-318(e), a transfer is warranted. Ring v. State, 320 Ark. 128, 894 S.W.2d 944 (1995). If the defendant meets the burden, then the transfer is made unless there is clear and convincing countervailing evidence that he should remain in circuit court. Bradley v. State, 306 Ark. 621, 623, 816 S.W.2d 605, 606 (1991); Ark. Code Ann. § 9-27-318(f) (Supp. 1995). Clear and convincing evidence is that degree of proof which will produce in the trier of fact a firm conviction as to the allegation sought to be established. Holmes v. State, 322 Ark. 574, 911 S.W.2d 256 (1995). We will not reverse a decision on a motion to transfer unless it is clearly erroneous. McGaughy v. State, 321 Ark. 537, 906 S.W.2d 671 (1995). In reviewing a denial of a motion to transfer, the appellate court views the facts in light most favorable to the State. Wicker v. State, 310 Ark. 580, 839 S.W.2d 186 (1992).

The factors to be considered in deciding whether to transfer a case to juvenile court are the seriousness of the offenses, along with the prior history, character traits, mental maturity, and any other factors that reflect upon the juvenile’s prospects for rehabilitation. Myers v. State, 317 Ark. 70, 72, 872 S.W.2d 246, 248 (1994); Ark. Code Ann. § 9-27-318(e). A trial court is not required to give equal weight to each factor, nor is proof required to be presented with regard to each factor. Pennington v. State, 305 Ark. 312, 807 S.W.2d 660 (1991). We have held that the serious and violent nature of the crimes with which a juvenile is charged is an adequate reason to deny a motion to transfer, without regard to the evidence of other factors. Bell v. State, 317 Ark. 289, 877 S.W.2d 579 (1994).

Here, there was testimony that Kindle held a pistol to the victim’s head and that he attempted to pull the trigger. These facts are aligned with those in cases in which we have held that sufficient violence was employed so as to uphold the denial of the transfer to juvenile court. See, e.g, Butler v. State, 324 Ark. 476, 922 S.W.2d 685 (1996) (holding that use of shotgun in robberies “made use of” violence); Cole v. State, 323 Ark. 8, 913 S.W.2d 255 (1996) (holding that use of pistol at school to intimidate a student employed violence). Accordingly, we cannot say that the trial court’s ruling was clearly erroneous.

Affirmed.

ROAF, J., dissents. See dissenting opinion of Justice Roaf in Butler v. State, 324 Ark. 476, 922 S.W.2d 685 (1996).