author: George Rose Smith, Justice. David Newbern, Justice, Per Curiam. Steele Hays, Justice,

text:
    Olan WEST v. STATE of Arkansas
    CR 86-147
    719 S.W.2d 684
    Supreme Court of Arkansas
    Opinion delivered November 17, 1986
    [Supplemental Opinion on Denial of Rehearing January 26, 1987.]

      Beth Gladden Coulson, and L. Gene Worsham, for appellant.

      Steve Clark, Att’y Gen., by: Joel O. Huggins, Asst. Att’y Gen., for appellee.

      Dudley and Hays, JJ., would grant rehearing.

   George Rose Smith, Justice.

The appellant, Oían West, was convicted of sexual abuse in the first degree and was sentenced to a six-year term of imprisonment and a $5,000 fine. The Court of Appeals transferred the case to us as presenting an issue of statutory construction and a question of significant public interest. Rule 29(l)(c) and (4)(b). For reversal the appellant argues that the testimony of Kenny Ashcraft should have been excluded, that proof of earlier similar accusations by the prosecutrix should have been permitted, and that the State failed to prove “forcible compulsion.” We reverse the judgment on the second of the three grounds.

The prosecutrix, 15 years old at the time of the offense, knew the defendant West slightly, having twice attended the church at which he was the minister. She testified that on December 15, 1984, between one and two in the afternoon, as she was leaving a local store West asked her if she wanted a ride to her home (about two miles out the highway). She said she wanted to walk. He said he would be down that way in a little while and would ask her again. She testified that after she had walked a while she looked back and saw his truck just sitting by the road on top of a hill. As she kept walking he caught up with her and offered her a ride. She accepted because she was tired, but he told her not to get in until some cars had gone by. Instead of taking her home he turned off and drove on a dirt road that went up Hyster Mountain. As they were going up she saw a white car with a black top. He told her to duck her head, because “someone might think something.” He pressed her head down and kept driving until he moved his hand and said, “Okay, you can lift up now.”

When they stopped, he told her there was a trail that went to a cliff from which she could see her house. They got out, and he followed her until she stopped two feet from the cliff. He came up behind her, put his arms around her, put his hand over her left breast, and kissed the back of her neck. She said he cupped her breast firmly and squeezed it. With some difficulty she removed his arms and ran back to the truck, not knowing where else to go. When they started back, he told her not to tell any of her friends she had been with him. He took her home and let her out at the end of the driveway.

The prosecutrix’s mother testified that she heard a car door slam, went outside, and met her daughter about halfway down the driveway. The mother said she knew something was terribly wrong, because the girl was shaking and crying. Under the excited utterances exception to the hearsay rule, A.R.E. Rule 803(2), the mother testified in detail about the girl’s account of what had happened, which was substantially the same as the girl later testified.

Another witness for the State was Kenny Ashcraft, who had known West for 34 years, “all my life.” He said that on the afternoon of December 8, 1984, he met West in his truck on Hyster Mountain. Ashcraft was in a white car. He said West had his arms flung back against the seat, and “something went down in the seat.” He wasn’t sure what it was, but he did see blond hair.

West testified that he had never picked up the prosecutrix, had never taken her anywhere, and had never touched her breasts. He said that at about 9:00 a.m. on Saturday, December 8, he and his wife had left their home in Perry County and had driven to Ashley County, where their son lived. The Wests got there about 3:00 p.m. On the next day, Sunday, West took his wife to Louisiana and returned to his son’s house. The deer season opened on Monday; West testified that he and his son hunted all week. He joined his wife in Louisiana on December 14, and they drove back to Perry County on December 15, getting home at about 5:00 p.m. West’s testimony was corroborated as to various times and places by his son, two grandsons, his mother-in-law, and a brother-in-law. West had been a minister in Perry County for 28 years and presented the testimony of several character witnesses. As the appellant’s brief puts it, the case was reduced to a swearing match. The jury accepted the testimony of the State’s witnesses.

We first discuss the point presenting reversible error; that is, the court’s refusal to allow the defense to cross-examine the prosecutrix about her similar accusations against two other men. The issue arose just before the trial began, when the State made a motion in limine for the court to exclude the evidence about former accusations. The court held that the evidence was not admissible and granted the motion in limine. Defense counsel, in later making a proffer of the proposed testimony, said that it was anticipated that the prosecutrix would deny that she had ever made any such statements to anyone. Counsel then made this proffer:

. . . [Tjhree witnesses would testify that the prosecuting witness . . . had made statements to them on two different occasions. ... At one time at a concert [she] stated that someone had attempted to touch her breast, and upon learning this they went to the area, and there was no one there. On another occasion, she had stated to them that her uncle had attempted to fondle her, and again, this had been denied by the uncle.

The courts are not in agreement about the admissibility, in cases of rape or other sexual offenses, of proof that the prosecutrix had made similar accusations that she later admitted to be false or that are proved to be false. The cases, comparatively few in number, are collected in an annotation to People v. Hurlburt, 166 Cal. App. 2d 334, 333 P.2d 82, 75 A.L.R.2d 500 (1959). In the Hurlburt case the defendant was charged with lewd conduct toward a 9-year-old girl. The defense offered to prove that the child had made an identical charge against a man her mother had been running around with, and that she had made the same statement at a prior time about another person and later said it was a lie. The appellate court held that the proof should have been admitted, relying primarily on the decision in People v. Evans, 72 Mich. 367, 40 N.W. 473 (1888). In the Michigan case the defendant was charged with the rape of his 14-year-old daughter. The defendant offered proof that she had made similar accusations against a number of men, including family members. The Michigan court summed up its position in this language:

If she was accustomed, and had on numerous occasions, as claimed by counsel for respondent, made statements charging, not only her brothers, but numerous other men of that community, with other similar offenses, and then admitted the falsity of such charges, it would have a tendency to show a morbid condition of mind or body, and go a long way in explaining this charge, which, under the circumstances, and the surroundings shown to exist, seems almost unaccountable.

The principal cases that have admitted the evidence are from the two states just cited, California and Michigan.

The only Arkansas decision on the point is Peters v. State, 103 Ark. 119, 146 S.W. 491 (1912). That was a prosecution for the rape of a 12-year-old girl. On cross-examination she was asked if she had not told a certain person that she had had intercourse with old man Sanders, if she had not told another person that she had had intercourse with the defendant, and if she had not told still a third person that she had had intercourse with men a great number of times. The prosecutrix answered all three questions in the negative. The trial judge refused to allow the defense to call witnesses to testify that she had made the alleged statements. We upheld his ruling, giving two reasons. One, the defense did not offer to prove that the statements, if made, were false. Two, although it was argued that the statements would go to show that the prosecutrix had a mania for making such false charges, there was no proof that she was mentally deranged, of weak mind, or subject to hallucinations.

Wigmore severely criticized the second ground for the exclusion, saying that “such a dangerous ruling deserves protest.” Wigmore on Evidence, § 963 (rev. ed. 1970). He recommended that the court peruse § 924a of his treatise. There he quoted several articles by psychiatrists and other specialists to show that some women and young girls have such fantasies about being attacked by men that they are induced to make false accusations from time to time.

We agree with Wigmore’s basic criticism of our holding in Peters, that we went too far in deciding that the defense must show not merely that the prosecutrix had a mania for making such charges but also that she was actually insane. In that respect we disapprove the holding in the Peters case. Treating the point as one of first impression, we agree with the position taken by the California and Michigan courts. Here the defense proposed to show that this is the third time the prosecutrix had made such charges and that the first two were false. If the prosecutrix does deny on cross-examination that she made the statements or admits making them but asserts them to have been true, then the defense should be permitted to prove that the statements were made, if that is not admitted, and that they were false. That proof would be admissible not merely as affecting the prosecutrix’s credibility but also as raising a possible doubt about the truth of the present charge.

The argument that Ashcraft’s testimony should have been excluded is presented on the theory that since the information alleged, and the prosecutrix testified, that the incident on Hyster Mountain took place on December 15, whatever Ashcraft may have seen on the mountain on December 8 is immaterial. That argument is without substance. Under our statute the exact date of the offense is not material. Ark. Stat. Ann. § 43-1015 (Repl. 1977). The material issue is, what, if anything, happened to the prosecutrix on Hyster Mountain on one date or the other. It was the jury’s prerogative to accept the version given by the State rather than the testimony presented by the defense. The court was correct in permitting the jury to hear the testimony of both witnesses, the conflict as to the date going only to the weight of the evidence.

The appellant’s third argument is that the State failed to prove that, in the language of the statute, West engaged in sexual contact with the prosecutrix “by forcible compulsion.” Ark. Stat. Ann. § 41-1808 (Repl. 1977). The court gave AMCI 1808, including the definitions of sexual contact and forcible compulsion. Sexual contact means, among other things, an act of sexual gratification involving the touching of the breast of a female. That definition by itself does not require force. Forcible compulsion is defined as either physical force or a specified threat. Here there was no threat. Hence the State was required to prove that the defendant engaged in an act of sexual contact by the use of physical force. The argument is that no physical force has been shown.

Upon the testimony in this case, whether physical force was used was a question for the jury. The term “physical force” is not defined in Chapter 18 of the Criminal Code, which is devoted to sexual offenses, but the same definition of physical force is contained in four other chapters of the Code, that definition being: “Physical force” means any bodily impact, restraint, or confinement, or the threat thereof. Ark. Stat. Ann. § 41-501(3) in the chapter on justification, § 41-2101 in the chapter on robbery, § 41-2801 (8) in the chapter on obstructing governmental operations, and § 41-3001(4) in the chapter on prostitution. Here, according to the prosecutrix’s version of the incident, the defendant accomplished his purpose by restraining her until she was able to free herself. From her testimony “[H]e put his arms around me, and compressed, and put his right hand over my left breast firmly, and I had to break away from his arms.” Later she said: “I had to remove his arms, you know, hard, and then I just took off back to the truck.” She also said she had no forewarning of his approach; he came up from behind her. The appellant certainly used all the physical force that was necessary to accomplish his purpose. In the circumstances of this case the proof was sufficient to support the jury’s verdict of guilty.

Reversed and remanded.

Holt, C.J., and Purtle and Newbern, JJ., concur.

David Newbern, Justice,

concurring. Oían West has been convicted of first degree sexual abuse and sentenced to imprisonment for six years and a $5,000 fine for putting his arms around the fifteen-year-old prosecutrix and touching her breast. I do not find this conduct to be that defined in the statute describing the crime. In my opinion there was not the sort of “forcible compulsion” the Arkansas General Assembly condemned in Ark. Stat. Ann. § 41-1808(l)(a) (Repl. 1977) by providing: “A person commits sexual abuse in the first degree if ... he engages in sexual contact with another person by forcible compulsion. . . .”

The crucial direct examination testimony of the prosecutrix was as follows:

Q: And he got in front of me at first, and he said, “This is the trail.” And then I walked, and I walked on ahead in front of him a little ways. I went to the cliff, and I went two feet in front of the cliff, and he came from behind me, without me knowing, put his arms around me, and compressed, and put his right hand over my left breast firmly, and I had to break away from his arms, and I just took back to the truck. I ran back to the truck.
Q: And you stopped in front of the cliff?
A: Yes, ma’am.
Q: And then tell me again what happened.
A: He came up behind me without me knowing, put his arms around me, put his right hand over my left breast, kissed me on the neck.
Q: When he put his hand over your breast, how did he hold your breast?
A: He cupped me firmly.
Q: Okay, so he squeezed your breast, is that what you are saying?
A: Yes, ma’am.
Q: And he kissed your neck?
A: Yes, ma’am.
Q: Okay.
A: And then I broke. I had to remove his arms, you know, hard, and then I just took off back to the truck.
A: So, you had to remove his arms hard, you said, break away?
A: Yes.
Q: Okay, did you have any forewarning that he was going to come up behind you like that? Did he say anything?
A: No, ma’am.
Q: So, he didn’t say anything to let you know that he was going to approach you?
A: No, ma’am.
Q: And when you ran back to the truck, then what happened?
A: I just got in. I didn’t know where else to go, because I didn’t know that place. I got in, and then he came around and got in. I told him I had to go home. That my mom was going to be worried about me. He turned the truck around, and then while we were driving down the road, that same dirt road, he told me not to tell any of my friends, because they might get jealous.
Q: Not tell any of your friends about what?
A: About me being with him.
Q: Okay. Okay. What happened then?
A: He drove on down the road, and then he drove me to the end of my driveway. He pulled up at the end of my driveway, and then he goes, “I’m just going to drive you to the end of the driveway.” And so, before I was starting to get out and I looked over at him, and I saw him coming toward me. He put his hand on the seat and leaned over. I turned my face real quick, and he kissed me on the cheek. And then I got out of the truck and just started walking up fast towards our house.

“Forcible compulsion” is defined in Ark. Stat. Ann. § 41-1801(2) (Repl. 1977) as “physical force, or a threat, express or implied, of death or physical injury to or kidnapping of any person.” The commentary to the statute includes the following:

The term “forcible compulsion” was used by the legislature in 1967 in redefining the offense of first degree rape. See, Act. 362 of 1967, § 1 previously indexed as Ark. Stat. Ann. §41-3401 (Supp. 1973). Although the term was not statutorily defined, the legislature presumably intended to effect no change in the degree of force necessary to constitute the offense of rape. This chapter also employs the term “forcible compulsion” to define rape and other aggravated sex offenses. In essaying a definition of the term, the Commission likewise intended no change in traditional doctrine. Although, as indicated above, the definition is derived from the New York Penal Code, it was found to comport well with Arkansas decisional law. See, Spencer v. State, 255 Ark. 258, 499 S.W.2d 856 (1973) (“It may be violence or it may be putting the woman in fear, physically or mentally”). . . .

Most of the cases dealing with this definition have to do with the evidence necessary to show a sufficient threat of physical harm to rebut an allegation or implication of consent to the sexual conduct alleged. The case of Spencer v. State, cited above in the quoted statutory commentary, was such a case. There Chief Justice Harris dealt with the contention of an appellant that there was no forcible compulsion despite testimony that he had abducted the prosecutrix at knife point but had displayed no weapon a short time later when sexual intercourse occurred. The opinion reviewed a number of cases including Bradley v. State, 32 Ark. 704 (1878), in which we made it clear that the quantum of force is irrelevant as long as “the act be consummated against the will of the female.” The relevant instruction approved in Spencer v. State, supra, was:

Now with regard to force used, it may be violence or it may be putting the woman in fear, physically or mentally. In other words, the test is — was it against the will of the party upon whom the act was committed. [255 Ark. at 263, 499 S.W.2d at 859.]

Most other courts which have considered the definition of forcible compulsion have done so in the context of rape cases. While not directly on point factually, they are illustrative of what is meant by the term “forcible compulsion.”

The drafters of the Model Penal Code discussed the concept of compulsion by force or threat and pointed out that sometimes, in order to make it perfectly clear that a token initial resistance is not enough, existing law specified that a woman must resist to the utmost. The drafters felt that the text requirement that the victim be compelled to submit adequately retained the concept that a token initial resistance is not enough while avoiding the ambiguity of the “utmost” phrase. Model Penal Code § 270.4, Comments at 246 (Tentative Draft No. 4, 1955.)

Several states which have statutes similar to ours use the term “forcible compulsion” to define nonconsensual sexual conduct as a criminal act. Alabama, Ala. Code § 13A-6-61; Hawaii, Hawaii Rev. Stat. § 707-730; Kentucky, Ky. Rev. Stat. § 510.040; Missouri, Mo. Rev. Stat. § 566.030.1; Oregon, Or. Rev. Stat. § 163.375; Pennsylvania, Pa. C.S. 18 § 3121; and Washington, Wash. Rev. Code §§ 9A.44.040,050, Alabama, Hawaii, and Kentucky retained the idea that more than a token initial resistance is required by describing the crime as requiring forcible compulsion sufficient to overcome earnest resistance in its definition.

Pennsylvania has recently had occasion to interpret “forcible compulsion.” In Commonwealth v. Mlinarich, 498 A.2d 395 (Pa. Super. 1985) the court addressed the issue of the legislature’s intention when it defined rape as sexual intercourse with another person “by forcible compulsion” and the interpretation to be placed on the phrase “forcible compulsion.” After a long discussion of the common law and its inadequacy in defining rape because of its emphasis on lack of consent and the requirement that the victim resist to the “utmost” and the efforts of the American Law Institute and the Model Penal Code to find a more satisfactory definition the intermediate appellate court turned to the state supreme court’s interpretation of forcible compulsion. Quoting Commonwealth v. Perrin, 484 Pa. 288, 398 A.2d 1007 (1979), it was held that rape, as defined by the Pennsylvania legislature requires actual physical compulsion or violence or a threat of physical compulsion or violence sufficient to prevent resistance by a person of reasonable resolution.

Again in Commonwealth v. Rhodes, 510 A.2d 1217 (Pa. 1986) the issue was the definition of “forcible compulsion.” The Pennsylvania Superior Court had reversed a conviction for forcible rape of an eight-year-old third grader saying that there was insufficient evidence of forcible compulsion or threats. The supreme court reversed. Quoting Wharton’s Criminal Law, Torcía, C. (14th Ed.) § 288, the supreme court said that “force” required in the definition of rape was not the force inherent in the act of penetration, but rather the force actually used or threatened to overcome or prevent resistance by the victim. From its review of the law and historical development of the term, the Pennsylvania Supreme Court held that forcible compulsion includes not only physical force or violence but also moral, psychological or intellectual force used to compel a person to engage in sexual intercourse against that person’s will.

In Commonwealth v. Stambaugh, 512 A.2d 1216 (Pa. Super. 1986), Stambaugh was convicted of raping his stepdaughter. He appealed, arguing insufficient evidence of “forcible compulsion.” The appellate court held that the “force . . . need only be such as to establish lack of consent and to induce the woman to submit without additional resistance” and affirmed the conviction.

In Salsman v. Commonwealth, 565 S.W.2d 638 (Ky. App. 1978), Salsman was convicted of sexual abuse in the first degree and appealed on the failure to prove “forcible compulsion.” In discussing the definition of forcible compulsion the Kentucky Court reviewed the commentary accompanying the penal code section. The commentary stated in part that:

... the term includes a threat, express or implied, that overcomes earnest resistance by placing a person in fear. . . [T]he threat must be communicated, and it must be the cause of the submission. . . [T]he phrase “earnest resistance” requires more than token initial resistance but less than showing that the victim was physically incapable of additional struggle.

There surely was no “violence” in the instance before us now. Nor was there any “compulsion” in the sense of requiring the prosecutrix to perform some sexual act against her will. From the very moment she expressed her disapproval of the appellant’s conduct by breaking away from his grasp there is no evidence that the appellant in any way coerced the prosecutrix.

No matter now disgusting we may find the act of this amorous preacher and grandfather of the prosecutrix’s best friend, I cannot say the evidence was sufficient to show the “forcible compulsion” necessary to a conviction of first degree sexual abuse.

There is no showing that the appellant used any force whatever after the prosecutrix’s first display of resistance. I cannot imagine we would be considering this case had the appellant been someone more nearly the age of the prosecutrix. This appellant must be treated equally under the law.

I agree the conviction must be reversed, but I would include as a basis for reversal the state’s failure to prove “forcible compulsion.”

722 S.W.2d 284

Holt, C.J., and Purtle, J., join in this opinion.

Supplemental Opinion on Denial of Rehearing January 26, 1987

Per Curiam.

We deny the State’s petition for rehearing, but for purposes of clarification, we briefly address the Rape-Shield-law argument raised by the State but not specifically mentioned in the majority opinion. That law excludes evidence of any kind about the victim’s prior “sexual conduct” and defines “sexual conduct” as deviate sexual activity, sexual contact or sexual intercourse. See Ark. Stat. Ann. §§ 41-1810.1 and 41-1810.3. As conceded in the State’s petition, the victim’s purported conduct, as proffered by appellant here, simply is not sexual conduct as that term is defined by law. Thus, appellant’s proffered, relevant testimony clearly was not excludable under the Rape-Shield law, and the trial court, in ruling otherwise, committed error.

Dudley and Hays, JJ., dissent.

Steele Hays, Justice,

dissenting. We were mistaken to decide this case initially without regard to the rape-shield statute. The case was certified to us by the Court of Appeals on that issue and the point was argued by the parties. I believe the rape-shield statute does apply and that the trial judge was right in ruling that defense counsel could not cross-examine the prosecuting witness about the alleged prior accusations. I offer three reasons in support of that conclusion:

I. The Rape-Shield Statute by its Terms is Applicable.

The rape-shield statute begins by specifically defining its applicability:

In any criminal prosecution under Arkansas Statutes Annotated 41-1803 through 41-1810, . . . opinion evidence, reputation evidence, or evidence of specific Instances of the victim’s prior sexual conduct with the defendant or any other person is not admissible by the defendant, either through direct examination of any defense witness or through cross-examination of the victim or other prosecution witness, to attack the credibility of the victim, to prove consent or any other defense, or for any other purpose. Ark. Stat. Ann. § 41-1810.1 (Repl. 1977).

It will be noted that the statute applies to any criminal prosecution under Sections 41-1803 through 41-1810. The charge in this case was filed under Section 41-1808.

The section excludes evidence of any kind, for any purpose, about the victim’s prior “sexual conduct.” Section 3 of the rape-shield statute defines “sexual conduct”:

As used in this Act, unless the context plainly requires otherwise, “sexual conduct” means deviate sexual activity, sexual contact, or sexual intercourse, as those terms are defined by Section 41-1801. [§ 41-1810.3.]

The present case involves “sexual contact.” That term is defined in the section referred to:

As used in this Chapter, unless the context plainly requires otherwise: . . .
(8) “Sexual contact” means any act of sexual gratification involving the touching of the sex organs or anus of a person, or the breast of a female. [§ 41-1801.]

Sexual conduct includes sexual contact, which in turn includes touching the breast of a female. That is the charge in this case. Inasmuch as the pertinent definitions are word-for-word the same in both the Criminal Code and the rape-shield statute, it would be difficult to say that “sexual conduct” means one thing as used in the charging statute but another thing in the rape-shield statute.

II. This Case is Within the Policy of the Rape-Shield Statute. We compared the earlier practice in rape cases with the practice under the rape-shield statute in Duncan v. State, 263 Ark. 242, 565 S.W.2d 1 (1978):

The courts have historically permitted a defendant’s attorney to cross-examine in detail a victim as to her complete sexual history. This information is usually totally irrelevant to the charge of rape. Act 197 was obviously designed to limit this type of examination and protect the victim from unnecessary humiliation.

In a later case, Marion v. State, 267 Ark. 345, 590 S.W.2d 288 (1979), we explained the policy in greater detail, pointing out that it may exclude testimony having some probative value:

After giving due deference to the right of the accused to present his defense, the statute seeks to protect the victim from unnecessary humiliation at trial based on irrelevant and prejudicial, though probative, evidence. [Citations omitted.] The appellant certainly has no constitutional right to present irrelevant evidence at trial. Here, for example, the fact that the victim has two illegitimate children and an alleged reputation as a prostitute is not relevant to the central fact in issue; i.e., whether the alleged act of sexual intercourse actually occurred. . . .
. . . Here the statute is a valid exercise of the legislature’s authority to shield the victim of a sexual offense from becoming, herself, the defendant.

The present case falls within the policy of the rape-shield statute. Whether someone attempted to touch the prosecutrix’s breast at a concert has no substantial relevance to the main issue, i.e. did the defendant take the girl up Hyster Mountain and there forcibly squeeze her breast? Certainly the primary aim of the attempted cross-examination was to show that the prosecutrix is a liar, just as the law preceding the rape-shield statute permitted a defendant to show by cross-examination and by third persons that the prosecutrix had had sexual intercourse with other men, so that she might be found to have lied in saying that the accused used force to overcome her resistance when she claimed to have been raped. The rape-shield law is intended to prevent the victim “from becoming, herself, the defendant.”

III. The Appellant’s Remedy Was Under the Rape-Shield Statute. Section 1 of the rape-shield law, quoted earlier, excludes evidence of any kind, for any purpose, about the victim’s prior sexual conduct. But Section 2 of the Act, § 41-1810.2, provides that notwithstanding that prohibition, if the defendant has relevant evidence of the victim’s prior sexual conduct, a written motion “shall be filed” stating the purpose for which the evidence is believed to be relevant. An in-chambers hearing is then held. If the court finds that the offered proof is relevant to a fact in issue and that its probative value outweighs its prejudicial nature, the court may make a written order stating what evidence may be introduced by the defendant.

No such motion was made in this case, though it might have been made even after the court sustained the State’s motion in limine to prohibit the expected cross-examination of the victim. The defense, however, elected not to proceed under the statute. Instead, counsel insisted upon the right to cross-examine the victim in a way that would have put her in a “no-win” situation. She would be asked if she had not made similar accusations about other men. If she said yes and then admitted that they were false, the defense would have shown her to be a liar. If she denied having made such accusations, or admitted them but said they were true, the defense would be in a position to call witnesses to show that the accusations had been made and were false. As the trial judge said to defense counsel in sustaining the motion in limine: “You’re getting into totally separate trials on other sexual conduct is what you’re doing by going into this.”

The unfairness inherent in defense counsel’s argument could have been easily avoided had they filed the motion permitted by the rape-shield statute. It must be remembered that the defense did not have an absolute right to prove the incident at the concert even if the prosecutrix stood her ground. What we held in Peters v. State, 103 Ark. 1191, 146 S.W. 491 (1912), and adhered to in our opinion in this case, is that the defense may show that the prosecutrix has a pronounced tendency for making such accusations. That is the effect of even the cases favorable to the appellant, the California and Michigan cases that we cited. I am aware of no case holding that a single incident of a false accusation is admissible. The in-chambers hearing would allow the issue to be fully explored, instead of letting the defense put the prosecutrix in a helpless position even though the defense might not in fact have evidence to justify those tactics.

Finally, had the motion been filed the evidence would have been preserved for the record. If the ruling had been adverse to the State, the rape-shield statute permits the prosecutrix to confer privately with the prosecuting attorney and permits the State to take an interlocutory appeal. A principal reason for the unusual difficulty we have experienced in ruling on this appeal is that the defense has not yet disclosed exactly what its testimony might be. We have dealt with an issue without full knowledge of the facts. If the defense testimony were before us, the issue would be clear-cut. Absent the required motion, the trial court’s decision has not been shown to be wrong.

I would grant rehearing and affirm the judgment.

Dudley, J., joins in this dissent.


source: Caselaw Access Project

author: Darrell Hickman, Justice.

license: Public Domain

text:
    Nancy Davis LAMONS v. Christina M. CROFT
    86-95
    719 S.W.2d 426
    Supreme Court of Arkansas
    Opinion delivered November 17, 1986

      Highsmith, Gregg, Hart, Farris & Rutledge, by: Phillip Farris, for appellant.

      Harkey, Walmsley, Belew & Blankenship, by: John Norman Harkey, for appellee.
   Darrell Hickman, Justice.

This is an appeal from the trial court’s granting of a new trial. The suit was for personal injuries caused by an automobile accident. While waiting to turn left into a parking lot, Christina Croft’s automobile was struck from behind by a car driven by Nancy Davis Lamons, causing personal injuries to Croft. A jury returned a verdict in Croft’s favor and awarded damages in an amount equal to her medical expenses. Croft filed a motion for a new trial claiming the verdict was too small. The trial court granted the motion. Lamons appeals, alleging the trial court abused its discretion. We affirm the decision.

The granting of a new trial is within the trial court’s discretion. Adams v. Parker, 289 Ark. 1, 708 S.W.2d 617 (1986). When a motion for a new trial is made, the test to be applied by the trial court is whether the verdict is clearly against the preponderance of the evidence. ARCP Rule 59(a)(6); Dyer v. Woods, 289 Ark. 127, 710 S.W.2d 1 (1986). If the motion is denied, the test on appeal is whether the verdict is supported by substantial evidence. The test, when the motion is granted, is whether there is a manifest abuse of discretion. In Roberts v. Simpson, 275 Ark. 181, 628 S.W.2d 308 (1982), we said:

. . . [A] showing of abuse of discretion is even more difficult when a new trial is granted, because the beneficiary of the verdict which has been set aside has less basis for a claim of prejudice than does one who has unsuccessfully moved for a new trial.

The jury decided that Lamons was one hundred percent at fault in this accident and awarded damages in an amount equal to Croft’s medical expenses. In her motion for a new trial, Croft argued this award did not include damages for the other injuries she proved at trial. The trial court made the following findings:

1. That the court is convinced that under Rule 59 of the Arkansas Rules of Civil Procedure that the jury erred in assessing the amount of plaintiff’s recovery and such award was contrary to the law and evidence.
2. The jury award was the amount of the medical expenses and failed to take into account the plaintiff’s other elements of damages such as loss of wages or pain and suffering. This result could not be based on comparative fault because the jury in answering interrogatory No. 2 stated “No” to the question of plaintiff being a proximate cause of the accident.

The trial court weighed the evidence and found the verdict contrary to the law and the evidence. We find no abuse of discretion in granting the new trial.

Affirmed.


author: John I. Purtle, Justice.

text:
    Jewell BOLDEN, James DALTON, & Jerry PALMER v. Vicki WATT, et al. & the City of Little Rock
    86-90
    719 S.W.2d 428
    Supreme Court of Arkansas
    Opinion delivered November 17, 1986

      Walter G. Riddick, III, for appellants.

      Mark Stodola, City Att’y, by: Thomas M. Carpenter, Asst. City Att’y, for appellees.
   John I. Purtle, Justice.

The appellants were denied permits to operate taxicabs in the City of Little Rock. They filed suit in the circuit court alleging that the city ordinance relied on to deny them permits was unconstitutional and void under Article 12, Section 4 of the Arkansas Constitution, and Ark. Stat. Ann. § 71-2601 et seq. (Repl. 1979). The trial court upheld the ordinance and dismissed the complaint. We find that the trial court was correct in upholding the ordinance.

The facts are not in dispute. The appellants were denied permits to drive taxicabs in the City of Little Rock pursuant to ordinance 23-7 (e)(6). This ordinance prohibits the issuance of a taxicab driver’s permit to any person convicted of driving while under the influence of intoxicating liquor within the past three years. Also, the city is given discretion to withhold permits for an additional two years.

This case is resolved through an understanding of two Arkansas statutes. The first is Ark. Stat. Ann. § 19-3513 (Repl. 1980), (part of Act 213 of 1939), and the second is § 71-2601 et seq., (Act 280 of 1973). If these statutes are not in conflict, then there is no violation of Article 12, Section 4 of the Arkansas Constitution, which prohibits cities from enacting local laws contrary to state statute. We find the statutes compatible for the reasons stated below.

In pertinent part Ark. Stat. Ann. § 19-3513 declares:

Cities ... are hereby vested within their respective corporate limits with the exclusive power and authority to permit, regulate and control by ordinance the business and operation of motor driven taxicabs over or upon the streets and public ways of said respective municipalities. . . .

The Little Rock ordinance in question would give us no trouble were it not for Ark. Stat. Ann. § 71-2601 et seq., which states in part as follows:

It is the policy of the State of Arkansas to encourage and contribute to the rehabilitation of criminal offenders and to assist them in the assumption of the responsibilities of citizenship. The public is best protected when such offenders are given the opportunity to secure employment or to engage in a meaningful trade, occupation or profession.
§ 71-2602(b). The following criminal records shall not be used, distributed or disseminated in connection with an application for a registration, license, or certificate: . . .
(3) Misdemeanor convictions.
§ 71-2605. This Act shall cover any Board, Commission, Department or Agency, or any other body that deals in licensing [or] regulating a profession, trade or occupation in the State of Arkansas.

We have no hesitancy in holding that the provisions of A.S.A. § 71-2601 et seq. apply to the City of Little Rock. However, we also view the two statutes as compatible.

The first rule in considering the meaning of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. City of North Little Rock v. Montgomery, 261 Ark. 16, 546 S.W.2d 154 (1977). If statutes relate to the same general subject matter, each one must be read in a manner harmonious with the other, if possible. Sargent v. Cole, 269 Ark. 121, 598 S.W.2d 749 (1980). All acts passed upon the same subject are in pari materia and must be construed together and made to stand if capable of being reconciled. Vandiver v. Washington County, 274 Ark. 561, 628 S.W.2d 1 (1982).

Arkansas Statute § 71-2601 et seq. applies to the State of Arkansas and any political subdivisions thereof. The purpose of the legislation is to encourage the rehabilitation of individuals who have been convicted of a crime. The legislation by its own language covers any state agency or any other body that deals in licensing or regulating a profession, trade or occupation in the State of Arkansas. When Act 280 of 1973 was passed by the General Assembly, Act 213 of 1939 had been in the statutes for about 35 years and cities had been regulating the business and operation of taxicabs during this entire period. The legislature is presumed to have known of a prior statute on the same subject. Town of Benton v. Willis, 76 Ark. 443, 88 S.W. 1000 (1905).

When there are two statutes on the same subject the courts should give effect to both, if possible. Louisiana Oil Refining Co. v. Rainwater, 183 Ark. 482, 37 S.W.2d 96 (1931). We find that it is possible to read these statutes together and to give effect to both. The general statute, Ark. Stat. Ann. § 71-2601 et seq., states a broad policy of rehabilitating those who have been convicted of a crime. However, we must presume that the legislature was aware of the specific statute providing for municipal regulation of the taxicab business when the general rehabilitation statute was passed in 1973.

We do not blindly follow the exact words of a statute without considering its purpose. In using this basic common sense approach and giving each statute its obvious intended meaning, we find that the statutes in question can be reconciled. Driving a taxicab after having been convicted of DWI is quite different from driving a taxicab after having been convicted of stealing something to eat. The public safety and welfare are sound reasons for holding taxi drivers to a higher degree of accountability than the ordinary automobile driver. On the other hand, a person who has a DWI conviction may perform well as a maintenance worker. Therefore, the rehabilitation statute still benefits those who have DWI convictions even though this specific ordinance may prevent them from obtaining a particular job because of the direct connection between the nature of the conviction and the job. The general statute did not attempt to give a person a right to a particular job.

Affirmed.


author: Steele Hays, Justice.

text:
    Donald Ubbe BRUNS v. Norma Jean BRUNS
    86-35
    719 S.W.2d 691
    Supreme Court of Arkansas
    Opinion delivered November 17, 1986

      Williams, Gunn & Borgognoni, by: Mary Ann Gunn and Charles E. Hanks, for appellant.

      William A. Storey, for appellee.
   Steele Hays, Justice.

Appellant Donald Bruns has appealed in two cases, one at law and one in chancery. Both involve his former wife, appellee Norma Jean Bruns. One appeal is from a judgment awarding damages to Mrs. Bruns for a battery inflicted on her by Mr. Bruns. The other appeal is from an order in a divorce suit upholding a garnishment by Mrs. Bruns of proceeds belonging to Mr. Bruns, and derived from the sale of property under the divorce decree. The two appeals are consolidated and our jurisdiction is based on Rule 29(1 )(o).

These parties married in 1957. The marriage, by Mrs. Bruns’s account, was stormy because of frequent outbursts of violence by Mr. Bruns. On July 16, 1984 as Mrs. Bruns was leaving for work Mr. Bruns struck her, knocking her down the front steps. She sustained injuries to her face, chest and ankle. Mrs. Bruns promptly filed suit for divorce. She also filed an action for personal injuries sustained as a result of the battery. The case was tried to a jury, which returned a verdict for $9,468 as compensatory damages and $14,000 as punitive damages.

The appeal from the judgment alleges two errors by the trial court: first, by modifying the model jury instructions to include embarrassment as an element of damage and, two, by submitting the issue of punitive damages to the jury. In the other appeal Mr. Bruns alleges the chancellor erred by holding in the divorce suit that undistributed funds in the registry of the chancery court were subject to garnishment on the judgment awarded Mrs. Bruns, while motions were pending with respect to such funds. We sustain the argument that the jury was wrongly instructed and, accordingly, the judgment is reversed.

The pertinent testimony is summarized as follows: Dr.John Vinzant testified that he examined Mrs. Bruns soon after the incident. He described a bruise of her left rib cage measuring about 2 inches by 8 inches. He prescribed medication for “moderate pain.” He said the injury would be tender for a couple of weeks but the pain itself would last no longer than three or four days. Her ribs would be sore for six weeks but Mrs. Bruns was, he said, able to return to work the next day. Dr. Vinzant’s charge was $40. Out-of-pocket expenses totalled $205. Mrs. Bruns testified that her injuries were sore and painful for three months, during which she was handicapped in her work as a real estate saleswoman. She estimated her loss in commissions at $3,000 per month. Mrs. Bruns’s mother said her daughter’s face was swollen and it was difficult for her to speak, that she appeared to be in very much pain. Mr. Bruns admitted striking Mrs. Bruns with his fist, but denied he had any intent to injure her.

On appeal Mr. Bruns contends embarrassment as an element of damage is included in mental anguish, covered by instruction No. 10, a modification of AMI 2201, to which AMI 2204, 2205 and 2206 had been added. Also added without explanation was a fourth element, embarrassment, over the specific objection of Mr. Bruns. The instruction as given reads:

You are required to assess the damages of Plaintiff, Norma Jean Bruns. Therefore, you must fix the amount of money which will fairly and reasonably compensate her for any of the following four elements of damage sustained:
First: The reasonable expense of any necessary medical care, treatment and services rendered. [AMI 2204].
Second: Any pain and suffering and mental anguish experienced in the past. [AMI 2205].
Third: The value of any earnings lost. [AMI 2206].
Fourth: Embarrassment.
Whether any of these elements of damage has been proved by the evidence is for you to determine.

We think it was error for the trial court to instruct the jury that it could consider embarrassment as an element of damage in addition to mental anguish, as we believe the two are not separate elements. That conclusion finds support in dictum in the case of Erwin v. Milligan, 188 Ark. 658, 67 S.W.2d 592 (1934):

As a general rule, damages are recoverable for mental suffering consisting in a sense of wrong or insult, indignity, humiliation or injury to the feelings. . .(Our emphasis).

Mr. Justice Fogleman expressed a similar view in a dissenting opinion in Adkins v. Kelley, 244 Ark. 199, 424 S.W.2d 373 (1968):

If there is any element that is not covered in case of disfigurement in the usual elements of damage, then I cannot see how it would be any more than humiliation and embarrassment which I feel are covered by mental anguish.
Other legal authorities are consistent with this position:
Other elements that may be taken into consideration in determining such damages [mental suffering] include the affront to the plaintiffs personality, and the indignity, disgrace, humiliation, and mortification to which he was subjected by the defendant’s conduct. 6 Am.Jur.2d, Assault and Battery, § 183, p. 151.

In 25 C.J.S. Damages, § 70, p. 833, humiliation, indignity, embarrassment, or insult, are listed under the heading “Particular Forms of Mental Suffering.” In discussing “humiliation,*” the author states:

[A] recovery may be had for such mental pain and injury to the feelings as humiliation, indignity, embarrassment, or insult, provided the conduct of the defendant was such as would likely cause humiliation and insult to any person in like circumstances. . .

We do not suggest the appellant could not argue to the jury that embarrassment contributed to the appellee’s mental anguish, merely that the jury could not be instructed that embarrassment and mental anguish were separate elements to be weighed in determining her compensation.

We note, too, the trial court’s modification of the model jury instructions in adding an element of damage not included in the instructions was not in conformity with the Per Curiam Order of April 19, 1965, appearing at p. XIII of the Arkansas Model Jury Instructions, Civil. When AMI instructions are modified, the reason for the modification must be stated in the record. Adkins v. Kelley, 244 Ark. 199, 424 S.W.2d 373 (1968). Chicago, Rock Island & Pacific Ry. Co. v. Hughes, 250 Ark. 526, 467 S.W.2d 150 (1971). Had the trial court heeded the per curiam order it might have recognized that modifying the AMI instructions in this fashion was misguided. Nor do we consider the error harmless, as appellee urges. The verdict was general and while the amount, $9,468, roughly coincides with the medical expenses of $205 and the lost commissions, approximately $9,000, we cannot say with confidence the jury was not influenced by the erroneous instruction.

While reversal of the judgment renders the remaining arguments moot, we will address the issue of punitive damages for purposes of retrial. Mr. Bruns argues there was no proof of “intent, willfulness, wantonness, or conscious indifference” from which malice may be inferred. We wholly disagree.

Mr. Bruns readily admitted he deliberately struck Mrs. Bruns in the side of the face with his fist. Beyond that, the blow was delivered from behind as she was descending the stairs of their front porch, subjecting her to greater injury. A more willful act could hardly be designed. Punitive damages are recoverable when there is an intentional violation of another individual’s rights, Ft. Smith Iron & Steel Mill v. Southern Round Bale Press Co., 139 Ark. 101, 213 S.W. 21 (1919). Mrs. Bruns had a right not to be the physical object of Mr. Bruns’s anger. As we observed in Boren v. Qualls, 284 Ark. 65, 680 S.W.2d 82 (1984), “it can hardly be questioned that punitive damages are recoverable by one who suffers injury as a result of blows intentionally inflicted.” Citing Ray Dodge, Inc. v. Moore, 251 Ark. 1036, 479 S.W.2d 518 (1972).

Reversed and remanded.


author: David Newbern, Justice.

text:
    Gloria J. JOLLY v. Sandy E. JOLLY
    86-68
    719 S.W.2d 430
    Supreme Court of Arkansas
    Opinion delivered November 17, 1986

      William J. Velek, for appellant.

      Ronald L. Burton, for appellee.
   David Newbern, Justice.

The issue in this appeal is whether the court erred in holding the appellant, Gloria Jolly, in contempt and in sentencing her to thirty days imprisonment with twenty-six days suspended. We hold that the contempt citation was erroneous because it was not justified by the conduct of the appellant, and we note that a suspension of a sentence for criminal contempt amounts to a remission.

The appellant and the appellee, Sandy Jolly, were formerly married to each other. Since their divorce in 1982, they have been in court numerous times arguing over property division and support orders. Apparently the home and land on which the appellant and the two children of the former marriage live is adjacent to land on which the appellee operates a dairy farm. Because of their inability to agree on a boundary line, some of the land between the appellant’s place and the dairy farm was put in a trust for the children.

The appellee constructed a fence which the appellant contended would, if completed, enclose with the appellee’s land not only the land which had been placed in the trust but some land which belonged to her. The fence was not completed when the appellee sent word to the appellant that he intended to spread urea fertilizer on his side of the fence.

Prior to learning of the intended fertilization of the land, the appellant had brought an action in the circuit court as next friend of her children, later joined by her as a party in her own right, contending that the appellee had unlawfully cut trees on the trust land and on her land. At a hearing in that action, the appellant’s counsel orally moved the court to enjoin the appellee from spreading the fertilizer on the land in question. The appellant testified that urea fertilizer, which was used, was “totally poisonous” to horses, and the incomplete fence would not keep the children’s nine horses from going on the fertilized pasture. The appellee testified that he had already spread the fertilizer. The court ordered a temporary injunction to prevent any further fertilization and set a hearing at which expert testimony could be heard to determine the toxicity of the fertilizer. The court stated that if it were found that the fertilizer was harmful to the horses he would hold the appellee in contempt, and if it were found that the fertilizer was not harmful he would hold the appellant in contempt.

At the subsequent hearing, a court appointed expert, a veterinarian, testified that the fertilizer could be toxic to horses if ingested before being dissolved by rain or other moisture. He further testified that the samples he had taken at random on the land showed no toxic amounts of the fertilizer remained, and he did not see any undissolved clumps of it on the ground. He also said that any ammonia nitrate fertilizer could cause toxicity, and that urea was in common usage for pasture land in the area. He testified the same protective measures, that is, keeping the horses separated from the freshly applied fertilizer, should be taken no matter what sort of fertilizer was used.

The appellant testified she had in fact removed the horses when she learned the fertilizer was to be applied to the trust land and to land of which she had been in possession and claimed ownership, that she had heard urea was harmful to horses, and that she did not wish to take a chance that it would prove harmful.

The court found that the appellant was “using” the court in a contemptuous manner, that she was guilty of contempt. The sentence was thirty days in jail with twenty-six days suspended.

1. Criminal contempt

The contumacious conduct found by the court must have been either in the appellant’s oral motion to enjoin the spreading of fertilizer on trust land and land she thought was hers or in testifying that urea was “totally poisonous” to horses based upon nothing more than something she had heard.

a. The motion

The court was obviously frustrated by the duration of the bickering between the parties. In announcing his decision he reviewed the 1982 divorce, a motion to intervene filed by the children’s maternal grandmother, a motion seeking sanctions for “non-payment,” a petition by the appellee claiming he had been threatened with a pistol, and another petition by the maternal grandmother, all of which occurred in 1983. The court apparently regarded the motion which he determined not to have been made in good faith as the capstone of a course of conduct calculated to “use” the court for a purpose for which the court was “not designed.”

In Clark v. State, 287 Ark. 221, 697 S.W.2d 895 (1985), we dealt with a trial court’s finding that a motion for recusal of the trial judge was contumacious. The motion had apparently accused the judge of bribing a witness, intimidating a witness, making a false statement, and conspiring against the accused in a criminal case. We held the trial judge should recuse in the case, and we said such a motion could possibly be the basis of a contempt citation, leaving the matter open to decision by the substituted trial judge. For the proposition that the motion could serve as the basis of a contempt citation we cited Ex Parte Stroud, 167 Ark. 331, 268 S.W. 13 (1925). In that case a criminal defendant had been held in contempt for causing 167 witnesses to be subpoenaed. Many of the witnesses were never sworn or called to testify. In quashing the contempt judgment we made it clear that an abuse of the process of the court is not a basis for a contempt citation. Quoting Johnson v. State, 87 Ark. 45 (1908), we said:

The mere filing and presentation of a motion or repeated motions which are thought to be for the purpose of vexation or delay, do not constitute contempt of court. The court may, in the exercise of its inherent powers, strike them from the files because they are not presented to subserve the ends of justice, and are merely for vexation or delay, but, unless they are presented in a contemptuous or disrespectful manner, or unless they contain matter which of itself constitutes contempt, the court cannot treat them as contemptuous merely because they are thought to be for vexation or delay. Take, for instance, motions for continuance or change of venue. The court may well treat repeated motions of this kind as dilatory in their purpose, and refuse to hear them; but, if they are presented in a respectful manner, it shows no contempt of court, and cannot be so treated, unless they involve some violation of the court’s order, so as to amount to an obstruction of the administration of justice. [167 Ark. at 333-334; 268 S.W. at 14]

We find no evidence here to support a determination that the appellant’s motion showed any disrespect for the court or that it constituted a wilful disruption. See Jones v. Jones, 287 Ark. 72, 696 S.W.2d 727 (1985); Widmer v. State, 243 Ark. 952, 422 S.W.2d 881 (1968).

b. False testimony

Although not by this court, as far as we know, it has been held that the making of a false statement may constitute contumacious conduct if it obstructs the judicial process. In re Michael, 326 U.S. 222 (1945); Ex Parte Hudgings, 249 U.S. 378 (1919). It has been said that the basis for such a determination is the similarity between giving false testimony and refusal to testify altogether. See Steingut v. Imrie, 270 App. Div. 34, 58 N.Y.S. 2d 775 (1945). A criminal contempt citation must be based on evidence showing guilt beyond a reasonable doubt. Howell v. State, 257 Ark. 134, 514 S.W.2d 723 (1974). When the question is whether false testimony is contumacious, a contempt citation should not follow from proof showing the party in question testified falsely because of misunderstanding as opposed to proof that she lied wilfully. Silver v. State, 117 So. 2d 509 (Fla. App. 1960). See also Steingut v. Imrie, supra, and the published abstract of People v. Cumby, 348 Ill. App. 223, 108 N.E.2d 736 (1952).

In In Re Cantor, 215 F. 61 (2nd Cir. 1914), there appears the following which is part of the district court’s opinion in the case (Hand, J.):

In criminal contempts the accused has all the substantive benefits of one indicted. . . among them that of the degree of proof and ... I certainly cannot say on this record that beyond a reasonable doubt this man was deliberately blocking the course of the proceeding by swearing to what he knew was false. The power undoubtedly exists, but it ought to be used very circumspectly. By that, I do not mean that it ought to be surrounded with absurd technicality which will destroy its value, but I do mean that all reasonable explanations should be made. A judge ought not to commit a man for contempt for perjury except in so plain a case as makes further attempt to examine the witness a farce, so obviously that no observer, who was present, could doubt that the witness was obviously trifling with the proceeding. He ought not to judge upon the balance of proof introduced to contradict the witness and so turn the examination into a trial of perjury, for this trenches on the criminal law itself. And, while the line cannot be abstractly stated with success, it can be so administered, if the judges will remember the purpose which it answers, and loyally accept the limitations which the defendant’s right to a jury trial throws upon them. [215 F. at 63.]

See also Johnson v. Austin, 76 App. Div. 312, 78 N.Y.S. 501 (1902); Annot., 89 A.L.R. 2d 1258 (1963).

2. The suspended sentence

The parties have raised no issue about the purported suspension of a portion of the sentence, and our reversal of the conviction makes the point moot; however, we point out, as we have consistently done in the past, that a suspension of a contempt citation sentence amounts to a remission. Higgins v. Merritt, 269 Ark. 79, 598 S.W.2d 418 (1980); Johnson v. Johnson, 243 Ark. 656, 421 S.W.2d 605 (1967); Songer v. State, 236 Ark. 20, 364 S.W.2d 155 (1963).

3. Conclusion

We hold that the evidence was not sufficient to sustain a citation for contempt as to either the motion made by the appellant or her testimony. Although this case was not difficult to resolve, the review of our contempt cases it entailed makes it clear to us that our general assembly might well consider the adoption of a comprehensive statute on civil and criminal contempt proceedings as we suggested in Clark v. State, supra. See H. Brill, A Proposed Arkansas Contempt Statute, 1984 Ark. L. Notes 29.


author: George Rose Smith, Justice.

text:
    Charles B. DAVIS and Billy R. COLLINS v. ARKANSAS STATE HIGHWAY COMMISSION
    86-94
    719 S.W.2d 694
    Supreme Court of Arkansas
    Opinion delivered November 24, 1986

      Walker, Snellgrove, Laser & Langley, for appellant Charles Davis.

      Mooney & Boone, for appellant Billy R. Collins.

      Thomas B. Keys, Robert L. Wilson, and Philip N. Gowen, for appellee.
   George Rose Smith, Justice.

This is an action brought by the State Highway Commission to recover $409,887.50 which the Commission is alleged to have been fraudulently induced to pay to the two defendants, Charles B. Davis and Billy R. Collins. The defendants denied the charges of fraud, insisting that they had acted in good faith in their dealings with the highway department. The jury’s verdict awarded the Commission the sum of $337,837.50, for which judgment was entered against Davis and Collins. Their appeal comes to us as a tort case. Rule 29 (l)(o).

The appellants’ five points for reversal may be grouped as presenting essentially three arguments: The Commission did not prove actionable misrepresentations, the proper measure of damages was neither proved nor submitted to the jury, and the Commission failed to mitigate its damages. Ultimately all three arguments present questions of law, none very difficult, but the facts must be narrated in some detail for an understanding of the ultimate issues.

The principal defendant, Davis, and his son had for some years been engaged as a partnership in the buying and selling of horses in Craighead County. Their operations were conducted on a 76-acre tract of land. The Highway Commission brought an eminent domain action to take about 8 Vi acres of the land for highway purposes. The land being taken included not only Davis’s residence but also the barns, corrals, and other improvements used in his business as a horse trader.

The Commission, pursuant to federal regulations, has a program for relocating businesses that might otherwise be shut down as a result of condemnations for highway purposes. This program is administered by the department’s Relocation Section, headed by Danny Arendt. Arendt explained the program, which may take either of two forms, but not both. The first choice is always to assist the owner to relocate his business, so that it may be continued in a new location with as little interruption as possible. If such a relocation cannot be accomplished, the alternative is to assist the owner in moving his commercial personal property to some other place while the business is being interrupted, after which the business will be resumed at or near its original site. The moving expenses to be paid by the Commission under this alternative may include payment for the storage of the personal property. Storage payments cannot continue for more than 12 months and must be made to a disinterested third person. The owner cannot be paid for storing the personalty on land that he owns or leases.

There is no dispute about the program itself, nor is it disputed that the Commission made payments totaling over $400,000 for the moving and storage of Davis’s horses and equipment. The disputed issue is whether Collins, who boarded the horses and stored the equipment, was a disinterested third person, as the defendants contended at the trial, or was a “straw man” set up by Davis as a means of secretly channeling most of the money to himself, as contended by the Commission. The jury resolved that issue in favor of the Commission. We follow our usual practice of viewing the evidence in the light most favorable to the appellee, resolving conflicts in favor of the verdict.

Darrell Hatchett, employed by the Commission as a Relocation Coordinator, was the plaintiffs principal witness with respect to the making of the storage contract. During Hatchett’s first contact with Davis, in July, 1980, he explained the relocation program and gave Davis a relocation assistance brochure. In May, 1981, Hatchett again discussed the matter with Davis. At that time Davis was concerned about whether he would have to quit his business or go into storage. The initial plan was to try to get Davis back into business at another location. From May until October both Hatchett and Davis looked for a new location, but none was found.

On November 3 Hatchett and the Relocation Section decided that it was necessary to resort to the alternative, storage. Davis testified that on November 20 he knew that Hatchett was “leaning toward storage.” On November 30 Hatchett and Davis reached a decision to store the horses. Davis said he would like to have a grand opening around the first of the year, but Hatchett explained that storage would not be for business purposes; the business could not be continued. Davis understood that. Hatchett also explained that the payments had to go to a third party. Davis understood that. Another Commission employee, Glendol Jackson, testified that Davis was told that the department had to deal with a bona fide third party. He and other witnesses testified that the department would not have entered into the storage contract if they had known that Collins was not a disinterested third party.

On the evidence as a whole the jury could find that Davis and Collins entered into a collusive scheme as early as the latter part of November. Hatchett and Davis were looking for a place to store the horses. Davis testified, as an adverse witness for the plaintiff, that on November 27 Collins asked Davis if he knew where Collins could borrow money for a down payment on a farm he had found. Collins, also an adverse witness for the plaintiff, testified that he heard that Darrell Qualls had some property for sale and went to see him. Qualls, apparently disinterested, testified that he had no idea of selling the property until Collins came out and asked him if he would sell it. Qualls said he would. The price was to be $50,000 minus a $22,000 mortgage: $28,000. There was no bargaining about the price. “He asked me what I would take for it, and I told him, and that was it.” Collins left to think it over, but he was back in three or four hours and agreed to buy. During those three or four hours Collins apparently went to see Davis about a loan, for both Davis and Collins testified that Davis agreed to lend Collins $28,000 to buy the Qualls property. There was no written agreement, but both said that Davis lent the money “provided that [Collins] would give the State the first chance to lease or rent the place to relocate [Davis’s] business.” Qualls executed the deed to Collins a few days later.

Davis testified that on December 10 he had 37 horses. He admitted that he increased his herd to 160 by the time the horses were moved on and after February 6, 1982, to the 26 acres that Collins had bought from Qualls. There was no testimony that Davis had ever before had that many horses. Davis’s son testified that on February 1 he bought 36 horses in Como, Mississippi, before he had “actual” knowledge the next day that “we were going into storage.” Robert Lipscomb, the horse and cattle dealer in Como, testified that Davis normally bought one or two horses at a time, but on December 1 Davis Jr. bought 21 horses for $9,020 and on February 1 he bought 36 horses for $14,822. One of the horses had a bad eye and was good only to be sold to the slaughterhouse. Some of the others were inexpensive horses, the lowest price being $160, and others were expensive, the highest being $635.

Davis admitted that on January 11,1982, he opened a joint bank account in the name of Collins and Davis’s son-in-law, Glen Patterson. Patterson had nothing to do with the account. All the Commission’s checks were deposited in that account; all the checks on the account were written by Collins. A CPA who examined the account testified that $214,873.36, about 63% of the total, was paid to Davis.

The storage agreement was an oral one, made by Hatchett and Davis. Neither Hatchett nor Arendt, who were acting for the Commission, had any knowledge of horses or of a proper charge for their storage, facts which Davis must have known. Arendt and Hatchett had obtained only two bids for storage, one from Little Rock for $200 a month and another for $250, but both included grooming and exercising the horses. There was testimony that a horse could be stabled and fed for $90 a month.

The oral storage agreement made with Davis was for $225 a month per horse, plus $1,825 a month for the storage of equipment. Hatchett had expected the number of horses to be about 75, but Davis had increased his herd to 160 horses when the agreement went into effect on February 2. The Commission honored its agreement, paying Collins $36,000 a month for boarding the horses plus $ 1,825 for the gear, or a total of $37,825 a month, for ten and a half months. Unquestionably Hatchett and Arendt were naive, misguided, perhaps foolish, in entering into the agreement. Even so, Davis and Collins were not entitled to cheat the Commission. In Justice Holmes’s terse sentence: “Men must turn square corners when they deal with the Government.” Rock Island, Ark. & La. R.R. v. United States, 254 U.S. 141 (1920). There the Court was referring to the federal government, but we have applied Holmes’s statement in our own law. State, Use Miller County v. Eason, 219 Ark. 36, 47, 240 S.W.2d 36 (1951).

Although Davis had financed the purchase of the Qualls property about December 1 and had opened the bank account on January 11, it was not until January 26 that Davis called Hatchett and said he had found a place to store the horses. He said the man was Billy Collins. Hatchett testified that he asked Davis if he knew Collins, and Davis said, “ [N]o, that he knew of him.” Collins likewise told Hatchett that he “knew of’ Davis, when Hatchett called Collins that evening. In truth, the men had known each other for 40 years.

The oral agreement went into effect six days later, on February 2. Davis had all 160 horses moved by February 19. In view of the collusion already existing between Davis and Collins, the jury probably did not believe Davis’s testimony that Collins was “shocked and surprised” when he found there were 160 horses to be boarded nor Collins’s statement that he at once told Davis he could not care for that many by himself and on the spot employed Davis at $10,000 a month to be responsible for the horses and necessary labor. Collins said he agreed to pay all the other expenses, and did so. There was apparently very little labor. The veterinarian testified that the horses did not appear to have been groomed or brushed. Hatchett visited the place from time to time and never saw anyone grooming the horses, exercising them, or doing anything else. Hatchett was probably right in saying about the horses: “They were just there.” Davis testified that he lost money in accepting employment for $ 10,000 a month, though his explanation was not convincing. The jury evidently preferred to believe the partnership income tax return, which showed that Davis’s participation in the storage agreement resulted in a net profit of $91,170, after all deductions.

Arendt and Hatchett had expected Davis to have his barns and other improvements rebuilt by April 1, but Davis apparently delayed completion as long as he could, to keep the horses in storage. When Arendt finally decided that Davis was dragging his feet, an ultimatum was given to Davis on October 7, cutting his storage payments in half. Davis then sold all his horses by about December 1 and removed his equipment by December 15. We should add that although the Commission could have terminated the agreement at any time, Davis was forbidden to sell any of his horses while they were in storage. Whether he wanted to sell any of them was a matter for the jury to consider.

In view of the foregoing facts, the points of law do not require much discussion. The appellants argue that the Commission failed to prove that it relied upon Davis’s misrepresentations, Hatchett having made his own investigation of proper storage charges, and that any false representations were not actionable because they were made after the contract had been agreed upon. Both arguments ignore the Commission’s theory of recovery. The complaint did not allege misrepresentation. To the contrary, it alleged concealment: that Davis had set up Collins as a straw man because Davis knew that the Commission would not have made or performed the agreement had it known that Davis was in reality a party to the agreement. There is an abundance of evidence to support the Commission’s theory, which the jury obviously accepted.

The third point is that the Commission failed to submit evidence of what is argued to be the correct measure of damages, the difference between the amount paid and the proper cost of performance. The fourth point is that the court erroneously instructed the jury that the measure of damages was the amount paid to Collins.

Neither argument can be sustained. At the request of the plaintiff the court instructed the jury that if they found for the plaintiff, they should award the amount of money that would fairly and reasonably compensate the plaintiff for any damage sustained which was caused by the fraud and deceit of the defendants or either of them. Also, that the measure of plaintiffs damage was the recovery of funds paid by plaintiff to Collins. Under Civil Procedure Rule 51, a general objection to an instruction is not sufficient; a specific objection is required. In this case the defendants did not make either a general or a specific objection to the instruction given by the court. Instead, the defendants submitted an instruction of their own, which the trial court refused to give. The submission of a correct instruction would of course have served as a proper objection to the plaintiffs requested instruction, but the trouble is that the defendants’ proposed instruction was not a correct statement of the law. It read in part:

If you should find for the plaintiff in this case, the measure of damages is the difference between the price the plaintiff would have been required to pay for the storage of the horses [our italics] if it had not received any statements from [defendants] and the price which was paid to them in reliance upon their statements.

We have italicized a fatal flaw in the proffered instruction. The reference to the storage of the horses necessarily meant all 160 horses, even though the jury might believe that Davis had wrongfully expanded his herd in order to pyramid the excessive storage charges. If we assume that the appellants’ theory is sound, a correct instruction would nevertheless have limited the recovery to the storage of the number of horses that were reasonably needed in Davis’s business. The trial court’s refusal to give an incorrect instruction is not error. Kanis v. Rogers, 119 Ark. 120, 177 S.W. 413 (1915).

The appellants’ last argument is that the Commission’s failure to mitigate its damages in specified possible ways is a basis for reversal. The defendants did not plead a failure to mitigate damages, did not raise it during the trial, and did not request an instruction on the subject. We do not consider arguments raised for the first time on appeal.

Affirmed.


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    Shelia Ann SANDLIN v. James R. SANDLIN
    86-98
    719 S.W.2d 433
    Supreme Court of Arkansas
    Opinion delivered November 24, 1986

      Orvin W. Foster, for appellant.

      Tapp Law Offices, by: J. Sky Tapp, for appellee.
   George Rose Smith, Justice.

This appeal must be dismissed for want of an appealable order.

The parties, both native Arkansans, were married in Montgomery County and lived at Mt. Ida for over ten years. They moved to Oklahoma with their three children. Upon their separation in 1983, the husband returned to Mt. Ida with the children. The wife remained in Oklahoma and obtained a divorce there and an award of custody. That decree, except as to the divorce, was set aside. The wife obtained a second award of custody in May, 1985. The children were still with the father in Arkansas.

After the entry of the first Oklahoma decree the mother filed the present petition for custody, in Montgomery County. The matter lay dormant during further proceedings in Oklahoma. The father filed a separate petition to obtain an award of custody. The two cases were eventually consolidated by agreement. Both Arkansas and Oklahoma have adopted the Uniform Child Custody Jurisdiction Act. After a preliminary hearing on the issue of jurisdiction, the chancellor held that Arkansas is the “home state” of the children under the Uniform Act and that therefore the court was not required to give full faith and credit to the Oklahoma award of custody. Ark. Stat. Ann. § 34-2703 (Supp. 1985). The mother appeals from that order.

There is evidently no final order, for the main issue, that of custody, is yet to be decided. No proof on that issue has been taken. Even though an order of temporary custody is appealable, Chancellor v. Chancellor, 282 Ark. 227, 667 S.W.2d 950 (1984), there can be no appeal, as we held in that case, until the proof has been completed and the order entered. We raise the issue ourselves, the matter being jurisdictional.

Appeal dismissed.


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    SPARKS REGIONAL MEDICAL CENTER v. ARKANSAS DEPARTMENT OF HUMAN SERVICES, et al. and MEDICAL CARE INTERNATIONAL, INC. d/b/a SURGICARE CORP.
    86-80
    719 S.W.2d 434
    Supreme Court of Arkansas
    Opinion delivered November 24, 1986

      Skokos, Simpson, Buford, Graham & Rainwater, P.A., by: Harold H. Simpson and John W. Fink, for appellant.

      Hilburn, Bethune, Calhoon, Harper & Pruniski, Ltd., by: Sam Hilburn and Dorcy Kyle Corbin, for appellee, Medical Care International, Inc. d/b/a Surgicare Corp.

      Steve Clark, Att’y Gen., by: George A. Harper, Special Asst. Att’y Gen., for appellee.
   John I. Purtle, Justice.

Medical Care International, Inc., d/b/a Surgicare Corporation (Surgicare), applied for a Certificate of Need (CON) on July 13,1983. Surgicare sought to build a three room outpatient surgery center in Fort Smith, Arkansas. Sparks Regional Medical Center (Sparks) opposed the application primarily on the grounds that it had two “shelled-in” outpatient operating rooms and, additionally, that its regular operating rooms were available for outpatient surgery. Sparks contended that these shells and its regular operating rooms should be considered in determining whether a CON should be granted.

The first hearing on the application was presented, as required by law, to the West Arkansas Health Systems Agency (WAHSA) which recommended that the CON be denied. Surgicare then applied to the Arkansas Health Planning and Development Agency (AHPDA) and was granted a CON.

At the AHPDA hearing evidence was taken and a tape recording of the proceeding was preserved. A record of the public meeting held by WAHSA, as well as other proceedings held by it, had also been preserved by a verbatim recording. However, these recordings were not transcribed until the AHPDA decision was appealed to the circuit court.

At the AHPDA hearing neither the “shelled-in” operating rooms at Sparks nor the number of outpatient surgeries done in Sparks’ regular operating rooms was considered in determining whether there was a need for the three rooms sought by Surgicare.

Sparks’ request for reconsideration by AHPDA was subsequently denied. After AHPDA granted Surgicare a CON, Sparks requested a review of the decision by the Department of Human Services (DHS). The review, which was the last administrative proceeding available to Sparks, affirmed the AHPDA decision. Sparks then appealed to the Sebastian Circuit Court, which affirmed the agency determination. In the appeal to the circuit court, the record was supplemented to include all materials considered by WAHSA and the transcript of the AHPDA proceedings. Testimony from witnesses relating to Sparks’ two recently activated outpatient operating rooms which had been “shelled-in” was allowed. The trial court affirmed the granting of a CON to appellee Surgicare.

Sparks argues on appeal to this Court that the CON was issued contrary to law because the addition of Surgicare’s three rooms is inconsistent with the state health plan, and that the matter should be remanded because the administrative record was not properly completed. We do not agree with either argument for the reasons stated below.

The parties are in basic agreement that the Criteria and Standards for Outpatient Surgery provide a limit of eight outpatient surgery operating rooms in the Fort Smith area. At least this is the only need calculation which is supported by the record before us. All parties agree that Sparks had in service four operating rooms totally dedicated to outpatient surgery at the time Surgicare made its application for a CON.

While Surgicare’s application for three outpatient rooms was pending, Sparks placed into service its two additional outpatient rooms. Those two rooms had been “shelled-in” and were being used for storage when Surgicare initiated the application for the three rooms being considered. Activation of these two rooms was expressly exempted from AHPDA review.

We have recently decided two of the questions presented herein in our cases of Statewide Health Coordinating Council v. General Hospitals of Humana, 280 Ark. 443, 660 S.W.2d 906 (1983) and Washington Regional Medical Center v. Medical Care International, 289 Ark. 198, 711 S.W.2d 457 (1986). Washington Regional was decided while this appeal was pending before this Court. In Washington Regional we decided the issue of whether outpatient surgeries performed in non-dedicated operating rooms were to be considered in determining need. We also addressed the lack of a complete record. We decided both issues adversely to the appellant. We will therefore not go into great detail in this opinion.

The only remaining issue in this appeal is whether Sparks’ two “shelled-in” rooms should have been counted by AHPDA against the eight rooms needed. Based on AHPDA regulations, we believe that AHPDA was correct in not counting the “shelled-in” rooms and granting Surgicare’s CON application. The regulations provide a detailed methodology for computing the need for outpatient surgery operating rooms in each area of the state. The final step in this computation is as follows:

The number of outpatient surgery operating rooms existing is subtracted from the number shown as needed in any given year to arrive at the number of additional units needed. [Emphasis added.]

On review of agency decisions, courts determine whether the agency’s interpretation of its regulations is reasonable. Although an agency’s interpretation of its own rules is not binding upon the courts, it is highly persuasive. Clinton, Governor v. Rehab Hospital Services Corp., 285 Ark. 393, 688 S.W.2d 272 (1985); Washington Regional, supra. We find that the agency’s interpretation of its rules was reasonable under the facts of this case.

The policy relating to the regulation of and need for outpatient surgery operating rooms is fully discussed in Humana and we see no need to address it again here.

Affirmed.


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    Myron W. GARMON v. STATE of Arkansas
    CR 86-32
    719 S.W.2d 699
    Supreme Court of Arkansas
    Opinion delivered November 24, 1986

      James H. Phillips, for appellant.

      Steve Clark, Att’y Gen., by; Clint Miller, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Myron W. Garmon appeals from the trial court’s refusal to grant a hearing on his petition for post conviction relief under A.R.Cr.P. Rule 37. As the result of negotiations between his counsel and the prosecuting attorney, Garmon pleaded guilty to four counts of kidnapping, four counts of aggravated assault and one count of rape. Judgments were entered on November 30, 1982 imposing sentences of thirty years, to run concurrently.

Garmon’s Rule 37 petition alleged some of the sentences were excessive, that his guilty plea was involuntary and that his counsel was ineffective. The trial court found the sentences for the aggravated assaults were excessive and corrected the judgments accordingly. The court also found that on the basis of the record, Garmon was not entitled to any further relief.

Garmon brings this appeal arguing he was entitled to a hearing on his petition. A petitioner is not entitled to a hearing for post conviction relief under A.R.Cr.P. Rule 37 if the petition and the files and records of the case conclusively show the prisoner is entitled to no relief, Morrison v. State, 288 Ark. 636, 707 S.W.2d 323 (1986).

Garmon contends the record is incomplete on two points. First, he claims his guilty plea was involuntary because the court failed to follow the requirements regarding the receipt of a guilty plea. He specifically alleges he was not fully informed of the nature of the charges and all facts and circumstances set forth in the information. In McDaniel v. State, 288 Ark. 629, 708 S.W.2d 613 (1986), we stated that to determine the accuracy of the plea in satisfaction of Rule 24.6, the court must ask the defendant if he did the things of which he stands accused and if he is pleading guilty because he is guilty. We have said the information required by Rule 24.4 must be given. Atkins v. State, 287 Ark. 445, 701 S.W.2d 109 (1985). We find full compliance with the law in this case.

The record shows the trial court addressed Garmon directly and carefully went through all the steps specified in Rules 24.4,24.5 and 24.6, asking him about each item. The court stated the charges and the factual circumstances surrounding each count. Garmon acknowledged his guilty plea was consistent with the facts as he knew them regarding the assault and kidnapping charges. He declared his guilt on each charge.

The second point Garmon claims is ineffective assistance of counsel. He contends his counsel misinformed him on four aspects of his incarceration. The first had to do with the felony classification of kidnapping. Counsel wrote Garmon and told him “kidnapping in your case was a Class A felony.” The crime was in fact a Class Y felony which carries a longer sentence. Even so, Garmon was not prejudiced by the error, as only the risk of a greater sentence could have influenced the acceptance of the plea bargain. The risk of a long term of imprisonment creates the incentive to negotiate a plea. An accused is under less pressure to plead guilty where a trial and conviction will result in a short sentence. Garmon was erroneously told his crime carried a shorter sentence than it actually did.

The next three points are more than conclusory allegations which we discuss after detailing the particular claims. In the same letter, Garmon’s attorney told him the “normal parole eligibility was one-sixth of the sentence.” In fact, one convicted of a Class Y felony must serve one-half of the sentence. However, erroneous advice concerning parole eligibility does not automatically render a guilty plea involuntary. Haywood v. State, 288 Ark. 266, 704 S.W.2d 168 (1986).

Garmon also claims his attorney told him the aggravated assault charges carried a maximum term of forty years when the correct term is only six years. While the record does not contain evidence of this allegation, there is evidence he was given conflicting information as to the sentence which was never resolved by his attorney. At the plea hearing, the court stated the charge was a Class B felony carrying a term of five to twenty years. Later, Garmon signed a plea statement which correctly classified the charge as carrying a term of zero to six years. He then received concurrent sentences of thirty years on all counts, exactly the sentence he bargained for. While the excessive sentences were corrected by the trial court, the analysis must focus on the effectiveness of defense counsel at the time the pleas were made.

As his last point, Garmon claims he was not told if a victim is released under the conditions set out in § 41-1702(2), there is the possibility of a reduction of the kidnapping charge from a Class Y to a Class B felony. In the same letter mentioned above, the attorney commented on this claim and stated that of the four victims kidnapped, three were not released under the conditions that would allow the reduction to apply, though one of them was released voluntarily.

We have stated the primary objective of a review of allegations of ineffective assistance of counsel is not to grade counsel’s performance, but to determine whether actual prejudice occurred. Isom v. State, 284 Ark. 426, 682 S.W.2d 755 (1985). In the context of a review of a Rule 37 petition where relief was denied without a hearing, a claim of prejudice must be supported by the allegation that had he been correctly informed, a petitioner would have pleaded not guilty. Hill v. Lockhart, __ U.S __, 106 S.Ct. 3656 (1985), Haywood v. State, supra and Carter v. State, 283 Ark. 23, 670 S.W.2d 439 (1984). Mere recitation of such an allegation, however, is not sufficient. Additionally, a petitioner must show a reasonable probability that but for counsel’s errors, he would not have pleaded guilty. Hill v. Lockhart, supra. Moreover, the prediction of the outcome had the error not occurred will be made objectively and without regard to the idiosyncrasies of a particular individual. Garmon has made no such showing. We note in any case that the alleged errors of Garmon’s counsel are of no consequence. Under the proposed thirty year plea agreement Garmon would in fact become eligible for parole in fifteen years, rather than in five years as he was told. It also appears that he may have been misinformed about the potential of the sentence he was facing. However, while he claims he originally understood he faced five life terms and 360 years, it is clear that had he been correctly informed, he would still be facing four life terms plus 260 years. In either case, the sentence was lengthy, to say the least.

From an objective standard we reject the premise that he would have turned down this plea agreement but for the advice that his “normal parole eligibility” would be one-sixth of the term rather than one-half. The evident fact is that in either case the plea bargain was clearly in his interest and his plea was not rendered involuntary because of the misinformation. Hill v. Lockhart, supra.

The record establishes conclusively that Garmon was not entitled to relief and therefore the order is affirmed.