author: W.H. “DUB” ARNOLD, Chief Justice.

text:
    Danny Lee HILL v. STATE of Arkansas
    CR 99-959
    16 S.W.3d 539
    Supreme Court of Arkansas
    Opinion delivered May 4, 2000

      William A. Storey, Judge;

      Penix and Taylor, by: Stephen L. Taylor, for appellant.

      Mark Pryor, Att’y Gen., by: Michael C. Angel, Ass’t Att’y Gen., for appellee.
   W.H. “DUB” ARNOLD, Chief Justice.

The Court of Appeals ustice. consider whether the doctrine of res judicata applies to probation-revocation proceedings, particularly where a prior revocation was reversed on appeal for denial of due process. Our jurisdiction is authorized pursuant to Ark. R. Sup. Ct. l-2(b)(l), (5) (1999), because the case presents an issue of first impression and a significant issue needing development or clarification of the law. Under the instant facts, where (1) appellant failed to timely object to the State’s amendment of its revocation petition, (2) appellant failed to timely object to the trial court’s failure to follow the appellate court’s mandate on remand, and (3) the prior reversal did not result in a judgment on the merits, we hold that res judicata does not apply. Accordingly, we affirm the circuit court’s judgment revoking appellant’s probation.

Background

In May of 1995, appellant, Danny Lee Hill, pled guilty to felony terroristic threatening and was placed on probation for six years with certain conditions of supervised probation, including that he refrain from the violation of any city, state, or federal laws and that he pay court-ordered fines. On March 12, 1998, the State filed a motion to revoke appellant’s probation on the ground that he violated the terms of his probation when he was arrested for driving while intoxicated on October 31, 1997. Significantly, at the revocation hearing on April 1, 1998, the trial court permitted the State to introduce evidence of probation violations not enumerated in its petition, including nonpayment of fines and three other DWI convictions. Appellant objected to the introduction of the additional evidence on the basis that he was denied due process, specifically, lack of notice. After considering the evidence outside the State’s petition, the trial court revoked appellant’s probation.

Subsequently, Hill appealed the decision to the Court of Appeals, which reversed the revocation and remanded the case to the trial court for further proceedings. Hill v. State, 65 Ark. App. 131, 985 S.W.2d 342 (1999). Notably, the record before the appellate court demonstrated that the trial court’s decision to revoke appellant’s probation was based upon the violations and incidents not enumerated in the petition rather than upon the stated DWI offense. Hill, 65 Ark. App. at 132-33, 985 S.W.2d at 342-43. In fact, the trial court rejected the October 31, 1997, DWI offense as a basis for revocation because evidence of that offense was tainted by failure to give Miranda warnings. Hill, 65 Ark. App. at 132, 985 S.W.2d at 342.

On remand, the State filed an amended motion for revocation on April 9, 1999, alleging that the three DWI convictions and the failure to pay court fines, erroneously introduced into evidence at the first revocation hearing, constituted violations of appellant’s probation conditions. In light of the prior revocation hearing, the State eliminated any reference to the October 31, 1997, DWI arrest. Following a hearing on May 6, 1999, the trial court again revoked appellant’s probation and sentenced him to six years’ imprisonment in the Arkansas Department of Correction on the felony-terroristic-threatening charge and a year each on two related misdemeanors, with three years suspended. From that decision comes the instant appeal.

I. Failure to abstract May 5, 1995, judgment

Before addressing the merits of appellant’s argument, the State contends that Hill’s claim is procedurally barred because he failed to abstract the trial court’s May 5, 1995, judgment following his initial guilty plea. The State suggests that the judgment, which underlies the trial court’s ultimate decision to revoke Hill’s probation, is essential to our review. In response, Hill claims that the judgment actually appealed from is not the May 1995 order but the May 6, 1999, judgment revoking his probation a second time. Similarly, Hill acknowledges that in his first appeal, the judgment appealed from was the April 1, 1998, decision revoking his probation. Significantly, both of these judgments appear in appellant’s addendum in compliance with Ark. R. Sup. Ct. 4-2(a)(8).

We agree with appellant that the May 5, 1995, judgment is not critical to our appellate review. Ark. R. Sup. Ct. 4-2(a)(6) requires an appellant to abstract:

only such material, parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to the Court for decision.

(Emphasis added.) First, the May 1995 judgment is not “necessary” to our understanding of the question presented in this appeal. Although the State cites Wallace v. State, 326 Ark. 376, 931 S.W.2d 113 (1996), in support of its position that the judgment is necessary to our understanding of the issues on appeal, Wallace is distinguishable. In Wallace the court was unable to resolve an issue on appeal because it was unclear whether the original conviction was for one count or two, or for a misdemeanor or a felony, and the judgment in the record was illegible. Wallace, 326 Ark. at 381, 931 S.W.2d at 116. Therefore, the failure to abstract a material judgment warranted our finding that the abstract was flagrantly deficient. Id. Without the abstract of the judgment, the court could not decide the issue in Wallace. Id.

In the instant case, the absence of the May 5, 1995, judgment does not preclude our consideration of the merits of Hill’s argument that the trial court erred by permitting the State to amend its revocation petition. Second, the abstracting requirement applies only to “matters in the record.” Here, the May 5, 1995, judgment was not placed in the record, and its absence indicates that the State, not appellant, failed to introduce the judgment at trial. In sum, we reject the State’s argument that Hill’s abstract is deficient and that his claim is procedurally barred.

II. Amended revocation petition

Appellant’s sole point on appeal challenges the trial court’s decision permitting the State to amend its revocation petition by resubmitting evidence of probation violations that the appellate court determined were improperly introduced in appellant’s first revocation hearing. Hill makes two distinct arguments in support of his position. First, he claims that the trial court failed to follow the appellate court’s mandate reversing and remanding the case for “proceedings according to law and not inconsistent with the opinion of the Court.” Second, Hill asserts that the doctrine of res judicata barred the State’s amendment.

A. Mandate on remand

Hill cites Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979), to establish that the trial court erred on remand by permitting the State to amend its revocation petition. We explained in Ferguson that when a judgment is reversed for error in the proceedings and remanded for proceedings “according to law and not inconsistent with the opinion of the court,” we are not reversing or vacating the trial court proceedings that occurred prior to the stated error. Ferguson, 266 Ark. at 568, 587 S.W.2d at 25-26. Instead, we intend for the trial court to progress the cause anew from the point that the error was adjudicated. Id. Simply, the trial court should resume the proceedings from the point at which the reversible error occurred.

According to the appellate court’s decision in Hill v. State, 65 Ark. App. 131, 985 S.W.2d 342 (1999), reversible error occurred when HUI was denied due process at the point when the State was permitted to introduce evidence of probation violations not enumerated in the petition to revoke. Hill, 65 Ark. App. at 132, 985 S.W.2d at 342. Thus, the reversible error occurred after the original petition was filed and at the point when the additional violations were introduced into evidence and Hill objected to the lack of notice.

Although Hill now argues that the trial court erred on remand by revisiting the State’s petition and permitting amendment, he failed to make a timely objection at the May 6, 1999, hearing. In fact, the trial court provided appellant’s counsel with the opportunity to be heard at the beginning of the hearing. Rather than objecting to the State’s amended petition or addressing the scope of the appellate court’s mandate, counsel stated that he was ready to proceed. Moreover, Hill failed to object to the amended petition when it was filed by the State on April 9, 1999, approximately one month before the revocation hearing. The State correctly notes that Hill objected only to the introduction of the three DWI convictions as evidence but not to their inclusion in the petition.

It is well settled that an appellant may not change the grounds for objection on appeal but is limited by the scope and nature of his objections and arguments presented at trial. Ayers v. State, 334 Ark. 258, 264, 975 S.W.2d 88, 91 (1998). The supreme court cannot consider arguments raised for the first time on appeal. Wallace v. State, 326 Ark. 376, 379, 931 S.W.2d 113, 115 (1996). Hill’s failure to preserve his argument by timely objections constitutes a waiver and precludes our appellate review.

B. Res judicata

The second prong of appellant’s argument is that res judicata prohibits the State from seeking a subsequent revocation on the basis of violations not enumerated in its prior petition. Essentially, Hill asserts that the trial court erred by permitting the State to amend its petition by adding violations that it could have pled in its initial motion. Res judicata, or claim preclusion, bars the relitigation of a subsequent suit when (1) the first suit resulted in a judgment on the merits; (2) the first suit was based on proper jurisdiction; (3) the first suit was fully contested in good faith; (4) both suits involved the same claim or cause of action which was litigated or could have been litigated but was not; and (5) both suits involved the same parties or their privies. Fariss v. State, 303 Ark. 541, 544, 798 S.W.2d 103, 104 (1990). If applied in this context, res judicata would prevent the State from raising any issue in the second revocation hearing that it could, but did not, raise at the first hearing. Consequently, the State’s decision to enumerate only the October 31, 1997, DWI offense, in the first petition would bar it from citing additional offenses in an amended petition.

However, an initial prerequisite to applying res judicata is that the first suit resulted in a judgment on the merits. An illustrative case aptly presents this principle. In Lincoln v. State, 287 Ark. 16, 696 S.W.2d 316 (1985), this court considered Lincoln’s second appeal from his conviction for attempted.first-degree murder. Previously, the Court of Appeals reversed his conviction following his first appeal. See Lincoln v. State, 12 Ark. App. 46, 670 S.W.2d 819 (1984). In discussing the background of Lincoln’s case, we noted that before the first trial, the trial court refused the State’s request to amend the information to allege prior convictions because it was filed “ ‘too close to trial for the defense to be prepared.’ ” Lincoln, 287 Ark. at 17, 696 S.W.2d at 317. However, on retrial, the State again asked to amend the information to allege three prior convictions. Id. This time, the trial court granted the State’s request. Id.

In his second appeal, Lincoln, like Hill, argued that res judicata prevented the State’s subsequent amendment of the information because the trial court’s earlier decision controlled the issue on retrial. Lincoln, 287 Ark. at 17, 696 S.W.2d at 317. In holding that the doctrine of res judicata did not apply, we acknowledged that the factual basis of the trial court’s decision, i.e., the timeliness of the proposed amendment, was no longer a factor in the later trial. Id. Moreover, we observed that the amendment was not denied at the first trial because it was wrong, or illegal, but simply because it was untimely. Id.

Here, the appellate court reversed Hill’s first probation revocation because he was denied due process. Hill, 65 Ark. App. at 132, 985 S.W.2d at 342 (1999). The court remarked that the State’s failure to timely notify Hill of its basis for the proposed revocation was fundamentally unfair because Hill could not properly prepare for the hearing without knowing in advance what charges of misconduct were to be investigated. Hill, 65 Ark. App. at 133, 985 S.W.2d at 343 (1999). In short, the revocation was reversed on appeal simply because the State’s introduction of the additional violations was untimely. Id. Given our holding in Lincoln, we conclude that the reversal on due-process grounds was not a final judgment on the merits, and res judicata does not apply. Accordingly, we affirm the trial court’s May 6, 1999, judgment revoking appellant’s probation.


source: Caselaw Access Project

author: TOM GLAZE, Justice.

license: Public Domain

text:
    Regina Padgett OSBURN, et al. v. ARKANSAS DEPARTMENT of HUMAN SERVICES
    99-1296
    15 S.W.3d 673
    Supreme Court of Arkansas
    Opinion delivered May 4, 2000

      Joyce Williams Warren, Circuit/Chancery Judge, and Jewel Holloway Harper, Special Judge;

      Charles and Angela Young, pro se intervenors.

      Kathy L. Hall, Office of Chief Counsel, for appellee Arkansas Department of Human Services.

      Stasia D. Burk, Attorney Ad Litem, for minor children, appellees.
   TOM GLAZE, Justice.

This case was initially submitted to this tice. the constitutionality of the Grandparents Visitation Rights Act, see Ark. Code Ann. § 9-13-103 (Repl. 1998), but before the court could consider the case on its merits, the court was confronted with whether the order from which the grandparents, Charles and Angela Young, appealed was a final order, and whether the Youngs had filed a timely record in accordance with Rule 5 of the Arkansas Rules of Appellate Procedure— Civil. We requested the Youngs and the Department of Human Services (DHS) to submit briefs on these two issues. See Osburn v. Arkansas Dep’t of Human Servs., 340 Ark. 201, 8 S.W.3d 533 (2000). They have done so, and upon reviewing their respective arguments, we conclude we must dismiss this appeal.

Because the Youngs have failed to file their record in a timely manner, that failure alone procedurally bars the Youngs from proceeding, so we need not consider and decide if the lower court’s August 2, 1999, order terminating the Youngs’ visitation rights was a final order from which they may appeal under Ark. R. App. P.— Civil 2, and Ark. R. Civ. P. 54(b) (1999).

After the trial court entered its August 2, 1999 order, the Youngs filed a timely notice of appeal on August 31, 1999. See Ark. R. App. P. — Civ. 4(a) (1999). However, after filing the notice of appeal, the Youngs were then obliged to file their record with the Supreme Court Clerk within ninety days from August 31. That ninety-day deadline ended on November 29, 1999. See Ark. R. App. P.— Civ. 5(a) (1999). Alternatively, the Youngs were required to seek an extension of time under Ark. R. App. P. — Civ. 5(b), and that extension was required to be entered before the expiration of the fifing period as originally prescribed. The trial court’s order extending the time in which to file the record was not entered until December 2, 1999, after the time in which to request such an extension had already expired. Indeed, the Youngs themselves never requested an extension. For these reasons, the Youngs are now procedurally precluded from pursuing their appeal. See Mitchell v. City of Mountain View, 304 Ark. 585, 803 S.W.2d 556 (1991). As this court has previously explained, the purpose of Rule 5 is to efiminate unnecessary delay in the docketing of appeals, and compliance with the rule is expected so that lawsuits may proceed as expeditiously as possible. See Alexander v. Beaumont, 275 Ark. 357, 629 S.W.2d 300 (1982).

For the reasons above, we dismiss this appeal.

ThorntonJ., not participating.

       Our earlier per curiam opinion in this case incorrectly recited August 20, 1999, as the date of filing the notice of appeal.


author: DONALD L. Corbin, Justice.

text:
    Roger Don FARMER v. STATE of Arkansas
    CR 99-627
    15 S.W.3d 674
    Supreme Court of Arkansas
    Opinion delivered May 4, 2000

      Tom J. Keith, Judge;

      Mason Law Firm, P.L.C., by: Jeffrey W. Hatfield, for appellant.

      Mark Pryor, Att’y Gen., by: Sandy Moll, Ass’t Att’y Gen., for appellee.
   DONALD L. Corbin, Justice.

Appellant Roger Don Farmer appeals icjudgment e. the Benton County Circuit Court convicting him of rape, second-degree domestic battering, and terroristic threatening and sentencing him to a total of ten years’ imprisonment. For reversal, Appellant argues that there was insufficient evidence to support a conviction of rape. Specifically, he argues that there was no evidence showing that he committed an act of sexual gratification, as provided in Ark. Code Ann. § 5-14-101(1) (Repl. 1997). This appeal was certified to us from the Arkansas Court of Appeals, as presenting an issue of statutory interpretation and requiring clarification or further development of the law. Our jurisdiction is thus pursuant to Ark. Sup. Ct. R. 1 — 2(b) (5) and (6). We find no error and affirm.

The record reflects that on April 23, 1997, Appellant physically attacked his wife, Carol Farmer. The couple had been married for approximately eighteen years at the time. For some time prior to the attack, Appellant had been demonstrating feelings of paranoia and had exhibited violent behavior toward Carol. On the date in question, Appellant and Carol went out to run some errands and eat lunch. Afterwards, they ended up driving around for a while. Appellant became agitated about financial matters and began demanding that Carol tell him the truth about some checks that she had evidently written. Appellant then drove out near Cave Springs and abandoned Carol on a dirt road; he eventually returned and persuaded her to get back into the van. They then started driving home.

As they approached their house, Appellant stopped the van and repeatedly backhanded Carol with his fists. He indicated that he was doing so to prove that he was crazy, like he claimed everyone thought. Carol tried to get out of the van, but Appellant had electronically locked all the doors. At one point during the attack, Appellant leaned Carol’s seat back and rolled over on top of her. He continued to hit her. He became increasingly agitated, hitting her in the face, pulling her hair, and biting her ear.

While still lying on top of her, Appellant grabbed underneath her clothes and started ripping her panties and pantyhose. He also pulled her pubic hair. Appellant told Carol that if she did not want to be with him, he would fix it so that she could not be with anyone else. He then took a knife, held it up where she could see the blade, and threatened to cut her. Again, he told her that he would fix it so that she could not be with another man. He then put Iris hand up inside her vagina and squeezed her. Carol stated that he shoved his hand so far up inside her that she could feel his fingernails on her cervix. Appellant used the knife to cut across the crotch of her panties and cut the leg of her pantyhose. All the while, Carol begged and pleaded with Appellant not to hurt her. Appellant then choked her to the point that she felt her body relax and thought she was going to die. He eventually let go of her, and she managed to get out of the van. Despite her temporary escape, the ordeal continued outside the van, where Appellant pushed her to the ground and began beating her with a tent pole and kicking her in the ribs. Finally, Carol was able to get away from Appellant and call for help.

During the trial, Appellant moved for a directed verdict on the charge of rape, arguing that there was no proof of deviate sexual activity involving an act of sexual gratification. In support of his motion, Appellant relied on Carol’s testimony that she did not think that the attack was sexual in nature or that it was Appellant’s intent to be sexually gratified by it. After considerable debate by counsel and a brief recess, the trial court denied the motion. At the close of all the evidence, Appellant again moved for a directed verdict on the charge of rape. Another lengthy debate by counsel ensued. The trial court ruled that under this court’s case law, the State was not required to present direct proof of sexual gratification. The trial court ruled further that the State had presented sufficient circumstantial evidence from which the jury could infer that the act involved sexual gratification. We affirm the trial court’s ruling.

Arkansas Code Annotated § 5-14-103 (Repl. 1997) provides in part that a person commits rape if he engages in deviate sexual activity with another person by forcible compulsion. Section 5-14-101(l)(B) defines “deviate sexual activity,” in part, as any act of sexual gratification involving the penetration of the labia majora of one person by any body member or foreign instrument manipulated by another person. “Sexual gratification” is not defined in the statute, but this court has construed the words in accordance with their reasonable and commonly accepted meanings. Strickland v. State, 322 Ark. 312, 909 S.W.2d 318 (1995); Warren v. State, 314 Ark. 192, 862 S.W.2d 222 (1993); McGalliard v. State, 306 Ark. 181, 813 S.W.2d 768 (1991). This court has consistently held that it is not necessary for the State to provide direct proof that an act is done for sexual gratification if it can be assumed that the desire for sexual gratification is a plausible reason for the act. Strickland, 322 Ark. 312, 909 S.W.2d 318; Warren, 314 Ark. 192, 862 S.W.2d 222; McGalliard, 306 Ark. 181, 813 S.W.2d 768; Williams v. State, 298 Ark. 317, 766 S.W.2d 931 (1989) (per curiam).

Appellant does not question the soundness of the foregoing holdings, nor does he deny that there was sufficient evidence of penetration by forcible compulsion. Moreover, he concedes that sexual gratification can be and usually is a plausible reason for forcible penetration. Nevertheless, he argues that such is not the case here. Particularly, he contends that the only evidence presented on this element was Carol’s testimony that she did not think the attack was sexual in nature or that Appellant’s intent was to sexually gratify himself. He contends further that the evidence demonstrated nothing more than a physical battery on a sexual organ. We disagree.

The evidence below demonstrated that there were sexual overtones surrounding the attack. Carol testified that Appellant put his hand inside her vagina and squeezed her. While he was doing this, he was lying on top of her, ripping at her panties and pantyhose. He told her more than one time that if she did not want to be with him, he would fix it so that she could not be with another man. In other words, Appellant threatened to hurt Carol so that she would not be able to have sexual relations with another man. From these circumstances, the jury could have inferred that sexual gratification was a plausible reason for the penetration. Indeed, this evidence is stronger than that presented in Warren, 314 Ark. 192, 862 S.W.2d 222, upon which Appellant relies.

In Warren, the appellant was convicted of capital felony murder, with the underlying felony being rape. The medical examiner testified that the murder victim died from a combination of injuries, which included trauma, rupture, and perforation of both the vagina and the rectum. He opined that all the victim’s wounds could have been caused by a circular object such as a shovel handle. On appeal, Warren argued that the State failed to prove that the penetration of the victim’s vagina and anus was done for the purpose of sexual gratification. This court disagreed: “We have previously stated that ‘when persons, other than physicians or other persons for legitimate medical reasons, insert something in another person’s vagina or anus, it is not necessary that the state provide direct proof that the act was done for sexual gratification.’ ” Id. at 196-97, 862 S.W.2d at 225 (quoting Williams, 298 Ark. 317, 321, 766 S.W.2d 931, 934).

We are not persuaded by Appellant’s attempt to distinguish this case from Warren on the basis that the victim here opined that her attacker was not motivated by a desire for sexual gratification. It is not apparent to us how Carol’s opinion testimony weakened the State’s circumstantial evidence on this issue. As the prosecutor argued below, it is difficult to know for certain in this day and age what is sexually gratifying to another person. Indeed, short of a confession or physical evidence, sexual gratification, like intent, is rarely capable of proof by direct evidence and must usually be inferred from the circumstances. See, e.g., Gaines v. State, 340 Ark. 99, 8 S.W.3d 547 (2000); Green v. State, 330 Ark. 458, 956 S.W.2d 849 (1997). Thus, Carol was in no better position than the jury to assess Appellant’s particular thought processes or motivation. Furthermore, the jury was free to believe or disbelieve any or all of her testimony. See Freeman v. State, 331 Ark. 130, 959 S.W.2d 400 (1998). Likewise, it was within the exclusive province of the jury to determine the weight and value of her testimony. Williams v. State, 338 Ark. 178, 992 S.W.2d 89 (1999). Accordingly, viewing the evidence in the light most favorable to the State, as we are required to do, we conclude that there is substantial evidence to support Appellant’s rape conviction. See Jones v. State, 340 Ark. 390, 10 S.W.3d 449 (2000).

Affirmed.


author: ANNABELLE Clinton Imber, Justice.

text:
    Michael IBSEN v. The Honorable John PLEGGE, Pulaski County Circuit Court
    CR 00-52
    15 S.W.3d 686
    Supreme Court of Arkansas
    Opinion delivered May 4, 2000
    [Petition for rehearing denied June 8, 2000.]

      Price Law Firm, by: Robert J. Price, for petitioner.

      Mark Pryor, Att’y Gen., by: David R. Raupp, Senior Ass’t Att’y Gen., for respondent.
   ANNABELLE Clinton Imber, Justice.

Petitioner seeks a writ sprohibition tice. Pulaski County Circuit Court to prevent trial of the charges against him on grounds of an alleged speedy-trial violation. The State agrees that the Pulaski County Circuit Court has no jurisdiction to act in this matter; however, it argues that the case stands remanded to the Municipal Court of Maumelle. Because it is unclear from the record before us whether the trial court is wholly without jurisdiction in this matter, the writ of prohibition is denied.

On September 16, 1997, petitioner, Michael D. Ibsen, was convicted following a guilty plea in the Maumelle Municipal Court of driving while intoxicated, minor in possession, and unlawful use of a driver’s license. He was sentenced to pay a fine of $865.00 and costs of $65.00. On October 6, 1997, petitioner filed in the municipal court a notice of his intent to appeal to the Circuit Court of Pulaski County. The de novo appeal from municipal court was subsequently filed in the circuit court on October 14, 1997, and assigned to the Seventh Division of the Pulaski County Circuit Court, the Honorable John Plegge presiding. On November 10, 1997, petitioner entered a plea of not guilty, whereupon the trial court scheduled an omnibus hearing for December 22, 1997, and a jury trial for January 28, 1998. Petitioner signed a receipt acknowledging that he received notice of the scheduled hearing and trial dates; however, he failed to appear for the omnibus hearing on December 22, 1997. On that date, the trial court sua sponte ruled from the bench that the case should be remanded to the Maumelle Municipal Court. The trial court ultimately entered an order of remand on January 30, 1998, that dismissed petitioner’s appeal and remanded the case back to the Maumelle Municipal Court.

On February 23, 1998, petitioner filed a motion to set aside the order of remand in the circuit court. He argued that Ark. Code Ann. § 16-96-508 (1987) authorized the circuit court to dismiss his appeal and remand to municipal court only upon his failure to appear for trial. The trial court eventually entered an order on April 29, 1998, that granted the motion and set aside the order of remand. The next hearing in the case occurred on October 11, 1999, at which time petitioner suggested that his right to a speedy trial may have been denied. The trial court proceeded, however, to set the matter for a bench trial on February 7, 2000. On October 19, 1999, petitioner filed a motion to dismiss the charges against him for failure to bring him to trial within twelve months of October 14, 1997. Following a hearing on December 13, 1999, the circuit court denied the motion to dismiss for speedy-trial violation. From that order comes this petition for writ of prohibition. This court granted a temporary stay of the proceedings in the trial court on January 20, 2000.

Petitioner asks this court to issue a writ of prohibition to the trial court barring prosecution of the charges against him for violation of his right to a speedy trial. The State argues that a writ of prohibition is not an appropriate remedy in this matter because the circuit court has no jurisdiction over the case; rather, the case stands remanded to municipal court.

A writ of prohibition is an extraordinary writ that is only appropriate when the court is wholly without jurisdiction. Kelch v. Erwin, 333 Ark. 567, 570, 970 S.W.2d 255 (1998) (citing West Memphis Sch. Dist. No. 4 v. Circuit Court of Crittendon County, 316 Ark. 290, 871 S.W.2d 368 (1994)). The writ will not be granted unless it is clearly warranted. Turbyfill v. State, 312 Ark. 1, 846 S.W.2d 646 (1993). Prohibition is never issued to prohibit a trial court from erroneously exercising its jurisdiction. Leach v. State, 303 Ark. 309, 796 S.W.2d 837 (1990).

We have stated that Rule 28.1 of the Arkansas Rules of Criminal Procedure, which is Arkansas’s rule governing a defendant’s right to a speedy trial, is a jurisdictional rule inasmuch as it requires an accused to be brought to trial within a twelve-month period following arrest, or to be absolutely discharged pursuant to Ark. R. Crim. P. 30.1(a). Kelch v. Erwin, supra; Turbyfill v. State, supra. Therefore, a petition for a writ of prohibition is appropriate to prevent a court from exercising its power in violation of the speedy-trial rules. Richards v. State, 338 Ark. 801, 2 S.W.2d 766 (1999). Furthermore, our rules of criminal procedure expressly authorize an accused to bring a petition for writ of prohibition when the trial court denies the accused’s motion for dismissal under the speedy-trial rules. See Ark. R. Crim. P. 28.1(d).

Ark. R. Crim. P. 28.1 requires that a criminal defendant be brought to trial within twelve months, excluding any periods of delay provided for in Rule 28.3. When an appeal is taken from a municipal court decision to the circuit court, the time for speedy trial begins to run from the day the appeal is filed in circuit court. Johnson v. State, 337 Ark. 196, 987 S.W.2d 694 (1999) (citing McBride v. State, 297 Ark. 410, 762 S.W.2d 785 (1989)). The speedy-trial period commences to run “without demand by the defendant.” Ark. R. Crim. P. 28.2. Once a petitioner presents a prima facie case of violation of speedy-trial rules, the burden shifts to the State to show that the delay is the result of the petitioner’s conduct or is otherwise legally justified. Webb v. Ford, 340 Ark. 281, 9 S.W.3d 504 (2000); Eubanks v. Humphrey, 334 Ark. 21, 972 S.W.2d 234 (1998); Jones v. State, 329 Ark. 603, 951 S.W.2d 308 (1997). If the State fails in its burden, the charges against the petitioner must be dismissed. Webb v. Ford, supra. A dismissal for violation of the speedy-trial rules is an absolute bar to further prosecution. Ark. R. Crim. P. 30.1; Eubanks v. Humphrey, supra; Caulkins v. Crabtree, 319 Ark. 686, 894 S.W.2d 138 (1995); Glover v. State, 307 Ark. 1, 817 S.W.2d 409 (1991).

In the instant case, petitioner has presented a prima facie case of speedy-trial violation. He filed his appeal in circuit court on October 14, 1997, and his motion to dismiss for violation of speedy trial on October 19, 1999, a period 370 days beyond the statutory twelve months. The burden thus shifted to the State to demonstrate that the 370 days of delay were caused by the defendant or were otherwise legally justified. See Webb v. Ford, supra. The State does not argue, however, that the 370 days at issue were excluded for purposes of speedy trial. Rather, the State argues that the trial court lost its jurisdiction when it remanded the case to municipal court on January 30, 1998. Although the State obtained no ruling on its jurisdictional argument from the trial court, the issue of jurisdiction is one that can be raised at any time, even for the first time on appeal. Harmon v. State, 317 Ark. 47, 876 S.W.2d 240 (1994); Skelton v. City of Atkins, 317 Ark. 28, 875 S.W.2d 504 (1994) .

The trial court dismissed petitioner’s de novo appeal from municipal court and remanded the case back to the municipal court in an order filed on January 30, 1998, following petitioner’s failure to appear for an omnibus hearing. Upon dismissal of a municipal court appeal, the judgment of the municipal court remains valid and enforceable. Whitmire v. State, 50 Ark. App. 34, 901 S.W.2d 20 (1995) ; Wilson v. C & M Used Cars, 46 Ark. App. 281, 878 S.W.2d 427 (1994) (concluding that Inferior Ct. R. 9(d) is in accord with holding that municipal court judgment remains valid and enforceable following dismissal of de novo appeal to circuit court). It is unclear from the record before us or the arguments presented, however, whether the circuit court had the authority to set aside its order of remand.

Petitioner asserts that the trial court had the authority to modify its order of remand within ninety days of filing pursuant to Ark. R. Civ. P. 60. However, petitioner cites no convincing authority for the application of Rule 60 in this matter. To the contrary, we know of no case in which the court has ever applied this civil rule to a criminal proceeding. McCuen v. State, 338 Ark. 631, 999 S.W.2d 682 (1999). Petitioner argued below that the power to remand and to reconsider an order of remand stems from Ark. Code Ann. § 16-96-508 (1987). This statute states that when a criminal defendant, in a de novo appeal from municipal court, fails to appear when the case is set for trial, the circuit court can affirm the judgment of the municipal court without a trial. Id. When the circuit court enters an order affirming the municipal court judgment pursuant to section 16-96-508, the order has the full force and effect of any other circuit court judgment. Id. The matter before us, however, was not affirmed. The circuit court merely dismissed petitioner’s de novo appeal from municipal court and remanded the case back to municipal court. Therefore, section 16-96-508 is inapplicable. The petitioner has thus not provided this court with any authority under which the trial court could reconsider its order of remand.

The State argues that the trial court cannot reconsider an order of remand in a de novo appeal from municipal court unless petitioner has been deprived of due process, as in Rawls v. State, 266 Ark. 919, 587 S.W.2d 601 (1979). This argument is also unpersuasive. Rawls clarified that a circuit court has the authority to reconsider an order of remand which is void for want of due process. Id. It did not address whether this authority would or would not extend to other circumstances involving orders of remand.

A writ of prohibition should not issue unless it is clearly warranted and the trial court is wholly without jurisdiction to act. Kelch v. Erwin, supra; Turbyfill v. State, supra. As has been demonstrated, the nature of the circuit court’s jurisdiction in this matter is unclear. Both petitioner and the State argue that the trial court lacks jurisdiction of the matter before us. However, it is far from clear just exactly when, if at all, the trial court was divested of its jurisdiction. Neither party has presented persuasive authority to this court in support of its jurisdictional argument. Consequently, the writ is denied.

       Though the style of the petition names an individual circuit judge as respondent, prohibition lies to the circuit court and not to a judge. Ford v. Wilson, 327 Ark. 243, 939 S.W.2d 258 (1997); Lee v. McNeil, 308 Ark. 114, 823 S.W.2d 837 (1992).

       Petitioner’s motion to dismiss actually argued that the time for speedy trial began to run on October 3, 1997. The original appeal transcript from the municipal court was file-stamped October 14, 1997, by the circuit clerk. Petitioner acknowledges in his brief that the proper date to begin computation for speedy trial purposes is October 14; 1997. He notes that the October 3, 1997, date was in error.


author: RAY THORNTON, Justice.

text:
    FOUNDATION TELECOMMUNICATIONS, INC. v. MOE STUDIO, INC.
    00-96
    16 S.W.3d 531
    Supreme Court of Arkansas
    Opinion delivered May 4, 2000

      Andrew Miller, Judge;

      Davis, Cox & Wright, PLC, by: Laura J. Andress, for appellant.

      Jay B. Williams, P.A., by: Jay B. Williams, for appellee.
   RAY THORNTON, Justice.

Moe Studio, Inc., brings this appeal icpetition e. review of the decision of the Arkansas Court of Appeals, alleging that the court erred in reversing and remanding its judgment against Foundation Telecommunications, Inc., on the grounds that the election of the special judge who heard the case did not comply with the requirements of Arkansas Constitution article 7, section 21. When this court grants a petition to review a case decided by the court of appeals, we review the case as if it was originally filed in the supreme court. McKay v. McKay, 340 Ark. 171, 5 S.W. 3d 525 (2000). Because we agree with Moe Studio that Foundation failed to meet its burden to overcome the presumption of validity that accompanies the election of a special judge, we affirm the trial court.

Moe Studio brought suit against Foundation in municipal court and prevailed; Foundation appealed that decision. The case was tried de novo in circuit court, and Moe Studio again prevailed. Foundation appealed that decision to the court of appeals alleging three points on appeal: (1) that the special judge hearing the case was not properly elected to hear the case and therefore the judgment rendered was void; (2) that the trial court erred in finding that Foundation’s employee had apparent authority to bind the corporation to enter into an oral contract; and (3) that the trial court committed error in finding that substantial evidence supported the determination that a valid oral contract existed. The court of appeals held that the judgment rendered was void and dismissed the appeal without reaching the remaining allegations of error.

This case was tried to the bench in Benton County Circuit Court on January 11, 1999. Division I Circuit Judge Tom Keith was not present on that day; instead, local attorney Andrew Miller, as special judge, presided over the trial without objection from appellant during the course of the proceedings. At the conclusion of the trial, Special Judge Miller found in favor of Moe Studio and awarded $4715 in damages for work completed. He stated from the bench that Rhonda Roper, an employee of Foundation, possessed the apparent authority to bind the company and that a valid contract was entered into by the parties with the consent of George Livergood, the president of Foundation. Miller did not accept Foundation’s contention that Moe Studio was engaging in a proposal process and producing work on speculation to be considered along with other bidders for the job of preparing sales brochure packets for Foundation; rather, he found that a valid contract was formed by offer and acceptance with the price subject to change based upon the requests of the client.

An order was rendered and provided to the attorneys with the understanding that it would be entered absent objection by either party. Foundation’s counsel responded in a letter to Judge Keith, alleging that the special judge did not meet the requirements of Ark. Code Ann. § 6-10-115 (1999), which provides for trial by temporary judge by stipulation of the parties, and objecting to the entry of his order. In a second letter, counsel for Foundation alleged that she had not been aware that the presiding judge was a special judge and would have requested a continuance had she known. Moe Studio responded by letter that Foundation’s counsel had been apprised of the situation and that a special judge would be hearing the case and noted that no objection had been made until after the verdict was rendered. No pleading or motion was filed, and no ruling was made by Judge Keith on the issue raised in Foundation’s correspondence. The judgment was signed and entered on January 28, 1999.

On appeal, Foundation contended that the circuit court failed to follow the requirements of article 7, section 21, of the Arkansas Constitution, and thus, the special judge was without judicial authority and his actions were coram non judice. Moe Studio responded that the issue was not preserved for appellate review because Foundation had failed to raise the objection below. The court of appeals held that because the record on appeal did not reflect that an election was held, there could be no objection to the election procedure, and reversed the judgment and remanded the case for a new trial.

Article 7, section 21, of the Arkansas Constitution, providing for the election of special judges, and section 22, permitting circuit judges to temporarily hold court for each other, are the modes expressly set out and are exclusive of all other methods of temporarily replacing a circuit judge. Any statute providing for a different method is unconstitutional. Wessett Bros. Drill. v. Crossett Sch. Dist., No. 52, 287 Ark. 415, 701 S.W.2d 99 (1985). The constitution provides that a special circuit judge or chancellor be elected by the attorneys in attendance on the court and that the proceedings be entered upon the record at large. Abercrombie v. Green, 235 Ark. 776, 362 S.W.2d 12 (1962). If the election was not in the manner prescribed by law, the special judge had no judicial power, his acts were coram non judice, and, on direct attack, the decree must be set aside as void and the cause remanded for trial as if it had never been tried. Titan Oil & Gas, Inc. v. Shipley, 257 Ark. 278, 517 S.W.2d 210 (1974). It is not required that the reasons for the election be stated upon the record of the proceedings for the election of a special judge under this constitutional provision and the presumption will be indulged that the facts that make the election necessary exist. Id.

The election of a special judge is presumed to be valid, Travis v. State, 328 Ark. 442, 944 S.W.2d 96 (1997), and, under the law, that election is impervious to attack unless the facts that would defeat the election are recited in the record. Metal Proc. Inc. v. Plastic & Recon. Assoc., Ltd., 287 Ark. 100, 687 S.W.2d 87 (1985). It is the appellant’s burden to produce a record showing that an attack on the election was made in the trial court, Travis, supra, and it is anticipated that the trial court, by the regular circuit judge, will make a finding whether the special judge was duly elected. Metal Proc. Inc., supra. Because the record is devoid of any facts that would defeat the election, and because appellant failed to raise this issue to the trial court in a proper pleading and obtain a ruling upon the issue, we must first determine whether the question is preserved for appeal.

An issue must be presented to the trial court at the earliest opportunity in order to preserve it for appeal. Even a constitutional issue must be raised at trial in order to preserve the issue for appeal. Fuller v. State, 316 Ark. 341, 872 S.W.2d 54 (1994). A defendant may not wait until the outcome of a case to bring an error to the trial court’s attention. Id. Furthermore, parties cannot change the grounds for an objection on appeal, but are bound on appeal by the scope and nature of their objections as presented at trial. Hinkston v. State, 340 Ark. 530, 10 S.W. 3d 906 (2000). Even if we were to accept Foundation’s correspondence to the judge as a valid objection, notwithstanding that there was no ruling on the issue, the objection raised to the trial court did not point out the reasons it believed the procedure was defective. We note further that the letter only contended that the selection of the special judge did not meet the statutory requirements of Ark. Code Ann. § 6-10-115. Only on appeal has Foundation sought to raise the issue of compliance with the constitutional provisions for conducting an election.

On appeal the burden is placed on the challenger to show that he properly challenged and offered specific facts and reasons why the election was void. The proceedings of the circuit court are presumed to be regular, unless the contrary is made to appear upon the record of the cause in which error is alleged. Sweeptzer v. Gaines, 19 Ark. 96 (1857). “Nothing short of the proper record to the contrary can rebut the violent presumption, that the regular Judge, in the midst of his regular term, would not permit a mere usurper to take the bench and presume to administer justice to his Court.” Id. In order to present any question of that sort for our review here, the power and authority of the special judge must have been questioned in the court below, and the grounds of the objection stated in the record. Nothing of this sort appears in this record. See Fernwood Mining Co. v. Pluna, 136 Ark. 107, 205 S.W.2d 822 (1918) (citing Blagg v. Fry, 105 Ark. 356, 151 S.W. 699 (1912); Caldwell’s Adm’r. v. Bell, 6 Ark. 227 (1841); and Caldwell v. Bell & Graham, 3 Ark. 419 (1840)). Rather than merely writing a letter questioning the authority of a special judge, on the basis of allegations unsupported by the record they have presented, the record might have been developed by filing the appropriate pleadings and giving the regular circuit judge the opportunity to review the proceedings which occurred before this case was called. This procedure would not only provide the trial court an opportunity to consider the challenge, it would also provide us an opportunity to reach the issue. To allow Foundation to challenge the selection of a judge on one ground below, and then to pursue a different objection on appeal would defeat not only the presumption in favor of such elections but also our long-standing rule that issues must be preserved for appeal and that the burden is upon the movant to bring forth a record to support his contentions on appeal. Therefore, we hold that Foundation has failed to meet its burden to challenge the validity of the election of the special judge and turn now to the remaining points on appeal regarding the merits of his decision.

Foundation contends that the trial court erred in holding that an employee of the company had apparent authority to bind the corporation or to enter into a contract with Moe Studio on behalf of the corporation. In bench trials, the standard of review on appeal is whether the judge’s findings were clearly erroneous or clearly against the preponderance of the evidence. Scheuck v. Burris, 330 Ark. 780, 957 S.W.2d 702 (1997). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. Wade v. Arkansas Dep’t. of Human Servs., 337 Ark. 353, 990 S.W.2d 509 (1999).

Apparent authority of an agent is such authority as the principal knowingly permits the agent to assume, or which he holds the agent out as possessing; such authority as he appears to have by reason of the actual authority which he has; or such authority as a reasonably prudent man, using diligence and discretion, in view of the principal’s conduct, would naturally suppose the agent to possess. General Motors Acc. Corp. v. Salter, 172 Ark. 691, 290 S.W. 584 (1927). The principal is bound by all the acts of his agent coming within the apparent scope of the authority conferred upon him. Crossett Lumber Co. v. Fowler, 137 Ark. 418, 208 S.W. 786 (1919). Every delegation of authority, whether it be general or special, express or implied, unless its extent be otherwise expressly limited by the same instrument conferring it, carries with it as an incident, the power to do all those things which are necessary, proper, usual, and reasonable to be done in order to effectuate the purpose for which it was created. Brown v. Brown, 96 Ark. 456, 132 S.W. 220 (1910). When the evidence as to the nature and extent of an agent’s authority is in conflict, it is a question of fact for the fact-finder. Southland Mobile Home Corp. v. Chyrchel, 255 Ark. 366, 500 S.W.2d 778 (1973). An agency can be established by circumstances, and any evidence tending to establish agency is admissible. Id.

The evidence presented at trial was that Mark Moesta, general manager of Moe Studio, met with three employees of Foundation, including Rhonda Roper, to discuss designing a sales packet on July 17, 1997. The company president appeared for a brief introduction, then they were provided with a copy of Foundation’s current sales packet, samples of what they wanted to include in their new packet, and specific instructions for the copy, cover, and interior of the packet. Moesta was told that Roper would be his contact person in the company and were given an October 1st deadline and told to “get to work.” On their way out, the company president, Mr. Livergood, stopped Moesta and said, “You guys are under the gun, so let’s get to work.” Moe Studio’s designers started work on the project immediately and Moesta prepared a pricing sheet outlining the cost of the project based on their requests, which he faxed to Roper on August 12, 1997. The following day, Roper requested that the studio find a less expensive method of obtaining photographs for the pamphlets and resubmit the pricing sheet. Two weeks later Moesta submitted new photography samples to Roper by fax, then had a second meeting at Foundation with Roper on August 29th to view sample pages of the layout design. Roper requested specific changes to the designs, and, over the next four weeks, selected photographs from those submitted by Moesta. Roper also sketched out basic design ideas, or “thumbnails,” and made numerous and explicit changes to the samples provided.

On September 29th, Moesta faxed to Roper a revised price sheet showing the photography changes and other costs associated with the new design. Moesta also testified that Roper told him around that time not to worry about the October 1st deadline, just to get them mock-ups of the packet as soon as possible. At this point, according to Moe Studio’s evidence, the work on the project was ninety-five percent complete and that all that remained was the final printing of the color brochures. Then, on October 3, 1997, Roper called Moesta and told him that they were pulling Moe Studio off the job and were going to look for another contractor to do the job. Moesta responded that he would be sending a bill for the work completed and did so on November 4, 1997. The final bill, less a five percent reduction for the uncompleted work, was $4,715.

On appeal, this court defers to the trial court’s credibility assessments. McKay, supra. Sufficient evidence exists in the record to support that the trial judge’s findings were not clearly erroneous or against the preponderance of the evidence. The evidence presented by Moe Studios supports the finding that Roper acted with the apparent authority from the principal, Mr. Liver-good, to enter into an oral contract with Moe Studio. Notwithstanding Foundation’s evidence that Moesta was told that only the company president could authorize the expenditure of funds, given that Moe Studio’s only communication was through Roper, who edited, revised, and reviewed all work done and made specific requests with regard to the project, it was reasonable for Moe Studio to conclude that she was the authority on this project. Whether an agent is acting within the scope of his actual or apparent authority is a question of fact for the fact-finder to determine. Henry v. Gaines-Derden Enters. Inc., 314 Ark. 542, 863 S.W.2d 828 (1993). As the fact-finder, it was within the trial judge’s province to believe or disbelieve the testimony of any witness. Schueck, supra. We cannot agree that the judge’s decision that Roper had authority to do those things necessary, proper, usual, and reasonable to achieve the finished project was clearly erroneous, or that it was clearly beyond the preponderance of the evidence to determine that Roper possessed such authority as a reasonably prudent person, using diligence and discretion, in view of the principal’s conduct, would naturally suppose the agent to possess. General Motors, supra. Because we cannot agree with Foundation’s contention that the special judge’s finding as to the apparent authority of their employee was clearly erroneous, we affirm the decision below.

In the final point on appeal, Foundation takes issue with the trial court’s finding that a valid contract was created between the parties, notwithstanding the scope of Roper’s authority. Foundation argues that Moe Studio was asked to prepare a proposal for the project, along with other bidders, and that they were not selected for the job because the quality of their “spec” work was unacceptable. Moe Studio denied that they were ever told that other bidders were being considered and argued that the level of detail and effort expended on the project, together with the extensive cooperation with the client and the direction of the company president to “get to work,” clearly suggested to them that an oral contract was in place for them to do the job. While Foundation cited the price lists submitted to them bore captions suggesting that they were only quotes on the proposed cost of completing the project, Moesta testified that this was simply a form that he used for convenience. While the price of the job remained nearly consistent in each price list, Moesta acknowledged price changes based upon Foundations’s requests for revisions, but testified that Foundation had agreed in July to pay what it would cost to prepare the brochures. An early estimate of cost on August 12 was $5430, not including printing charges, compared with the final bill of $4715.

The essential elements of a contract are (1) competent parties, (2) subject matter, (3) legal consideration, (4) mutual agreement, and (5) mutual obligations. Gentry v. Hanover Ins. Co., 284 F. Supp. 626 (D.C. Ark. 1968) (died in Hunt v. McIlroy Bank & Trust, 2 Ark. App. 87, 616 S.W.2d 759 (1981). See also Southern Surety Co. v. Phillips, 181 Ark. 14, 24 S.W.2d 870 (1930)). We keep in mind two legal principles when deciding whether a valid contract was entered into: (1) A court cannot make a contract for the parties but can only construe and enforce the contract which they have made; and if there is no meeting of the minds, there is no contract; and (2) It is well settled that in order to make a contract there must be a meeting of the minds as to all terms. Hunt, supra (citing Hanna v. Johnson, 233 Ark. 409, 34 S.W.2d 846 (1961); Irvin v. Brown Paper Mills Co., 52 F. Supp. 43 (D.C. Ark. 1943), rev’d. on other grounds, 146 F.2d 232 (8th Cir. 1944)).

We have previously held that an uncertain agreement may be supplemented by subsequent acts, agreements, or declarations of the parties as to make it certain and valid. Swafford Ice Cream v. Sealtest Foods, 252 Ark. 1182, 483 S.W.2d 202 (1972). The acts of practical construction placed upon a contract by the parties are binding and maybe resorted to relieve it from doubt and uncertainty. The objection of indefiniteness may be obviated by performance and acceptance of performance. Id. Such is the case here. Based upon the level of cooperation with Foundation and the extensive revisions that agreed to between Roper and Moesta, it was reasonable for Moe Studios to conclude that Foundation had engaged them to prepare a sales brochure and that they would be paid for their work. We cannot agree with Foundation’s assertion that the trial court’s finding that a contract “evolved over a period of time to a meeting of the minds, ... created by offer and acceptance” was clearly erroneous. Therefore, we affirm the trial court on this point as well.

Affirmed.

        Foundation Telecom., Inc. v. Moe Studio, Inc., 69 Ark. App. 20, 9 S.W. 3d 542 (2000).


author: LAVENSKI R. SMITH, Justice.

text:
    Houston GREGORY, Jr. v. STATE of Arkansas
    CR 99-820
    15 S.W.3d 690
    Supreme Court of Arkansas
    Opinion delivered May 4, 2000

      David Bogará, Judge;

      Gregory E. Bryant, for appellant.

      Mark Pryor, Att’y Gen., by: James R. Gowen, Jr., Ass’t Att’y Gen., for appellee.
   LAVENSKI R. SMITH, Justice.

Appellant Houston Gregory, Jr., appeals stice. for capital murder, robbery, and theft from Pulaski County Circuit Court in connection with the death of Jimmy Ridenhour. Following the convictions, the jury imposed sentences of life without parole for capital murder, twenty-two years for robbery, and ten years for theft. Our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(a)(2). On appeal, appellant challenges only the sufficiency of the evidence. He contends that the trial court erred in denying his motions for a directed verdict. We find no error and affirm.

Facts

In February 1996, Ridenhour worked at a Little Rock AutoZone parts store with Justin Flunt. Aside from work, the two were friends, and spent time together on weekends. According to Hunt, Ridenhour agreed to sell Hunt’s gray 1987 Ford Mustang for a $100.00 commission. Ridenhour found a prospective buyer in Gregory. On February 23, 1996, during Ridenhour’s lunch break at about 6:00 p.m., Ridenhour drove Hunt’s Mustang to 420 West 22nd Street in North Little Rock to meet Gregory and discuss the sale. Hunt and Hunt’s friend Andrew Pearlman followed in Pearl-man’s truck. Ridenhour and Hunt hoped to complete the sale during Ridenhour’s break. Ridenhour pulled into the driveway of the home and went to the door. Hunt and Pearlman waited in their truck at the curb. Hunt testified that when they first got to Gregory’s house, an occupant of the house told Ridenhour that Gregory was not home, so they drove both vehicles to a fast-food restaurant to eat. The occupant of the home was later identified as Eric Lamont Ticey. Upon their return, Ridenhour pulled up into the driveway at the residence. Ridenhour went inside and shortly thereafter came back out. He then told Hunt and Pearlman that the occupants of the house didn’t want “some white guy’s truck” parked in front of their house. By this time, appellant had arrived and was in the house with Ticey. Hunt and Pearlman moved their truck to a nearby parking lot and waited. They were about a block away as darkness approached. Hunt recalled that a tree partially obstructed their view of the house,. Although the tree limited full view, Hunt and Pearlman did see two people come out of the house, get in the Mustang, and leave. However, they were unable to identify either of them as Ridenhour. About thirty minutes later, the car returned, and the driver backed it down the side of the house. After about ten minutes, the Mustang was driven away again and did not return. Hunt and Pearlman waited for about another half hour, and then drove past the house, and around the area, but did not find the car or Ridenhour. They then returned to the AutoZone to see if perhaps Ridenhour had returned there, but he had not returned. Hunt and Pearlman then went to the police, and reported the incident. They also informed Ridenhour’s wife Sonja. Sonja testified her husband failed to call her from work that evening, as was his custom. She also testified that he was due to get off work at 9:00 p.m., and did not come home that night as expected. Sonja further testified that he had come home late only twice in the almost eight years they had known each other. No one saw Ridenhour again alive.

On February 29, 1996, police found the Mustang abandoned at a MacDonald’s restaurant fifteen to twenty blocks from Gregory’s mother’s house. Apparently, the car’s interior had been wiped down and all fingerprint evidence erased. On March 4, 1.996, while looking for stolen property, the sheriff’s department discovered Ridenhour’s body in an abandoned house one block from Gregory’s sister’s home. Ridenhour appeared to have been beaten and strangled. The body was partially clothed with a handcuff on one wrist. Police searched the residence at 420 West 22nd Street and found blood on the carpet and on a door-jamb to the bathroom. They also found a shotgun with blood on it.

Police questioned Gregory on February 27, 1996, and on March 6, 1996. He acknowledged Ridenhour had come to his residence, and that he had arranged to meet with him there. He asserted that Ridenhour could not find the car title on the car and so ‘pawned’ the car to Gregory for a few days for $40.00, so Gregory could try it out. Gregory also stated that after giving Ridenhour the $40.00, Ridenhour got in a small white car with two men and left. He then stated he used the car until February 24, 1996, when he again met Ridenhour and returned the car to him.

Approximately one year later on February 28, 1997, the prosecuting attorney filed a three-count felony information against Gregory charging him with capital murder, aggravated robbery, and theft of property. On March 11, 1997, the sheriff arrested Gregory pursuant to a bench warrant. Pulaski Circuit Court tried Gregory before a jury on February 9, 1999. He moved for a directed verdict at the close of the State’s case and again at the close of all the evidence, based upon failure to identify him as the perpetrator of the charged crimes. The trial court denied both motions. The jury convicted him on all counts. Gregory timely filed his notice of appeal. On appeal, as noted, Gregory raises the single issue of sufficiency of the evidence.

Sufficiency of the Evidence

A directed-verdict motion is a challenge to the sufficiency of the evidence. McDole v. State, 339 Ark. 391, 6 S.W.3d 74 (1999); Ayers v. State, 334 Ark. 258, 975 S.W.2d 88 (1998). When an appellant challenges the sufficiency of the evidence, we address the issue prior to all others. Byrd v. State, 337 Ark. 413, 992 S.W.2d 759 (1999). The test for determining sufficiency of the evidence is whether there is substantial evidence to support the verdict. Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Ladwig v State, 328 Ark. 241, 943 S.W.2d 571 (1997). We view the evidence in the light most favorable to the State. Windsor v. State, 338 Ark. 649, 1 S.W.3d 20 (1999); Dixon v. State, 310 Ark. 460, 839 S.W.2d 173 (1992). Only evidence supporting the verdict will be considered. Hendrickson v. State, 316 Ark. 182, 871 S.W.2d 362 (1994); Steggall v. State, 340 Ark. 184, 8 S.W.3d 538 (2000).

Circumstantial Evidence

A conviction must be supported by substantial evidence. Sanders v. State, 340 Ark. 163, 8 S.W.3d 520 (2000). The evidence supporting Gregory’s conviction is entirely circumstantial in nature. However, circumstantial evidence may constitute substantial evidence. Dixon v. State, 311 Ark. 613, 846 S.W.2d 170 (1993). Guilt can be established without eyewitness testimony, and evidence of guilt is not less because it is circumstantial. Trimble v. State, 316 Ark. 161, 871 S.W.2d 562 (1994). A criminal defendant’s intent or state of mind is rarely capable of proof by direct evidence and must usually be inferred from the circumstances of the crime. Byrd, supra; Green v. State, 330 Ark. 458, 956 S.W.2d 849 (1997). Whether the evidence is direct or circumstantial, however, it must still meet the requirement of substantiality. It must force the fact-finder to reach a conclusion one way or the other without resorting to speculation or conjecture. Chism v. State, 312 Ark. 559, 853 S.W.2d 255 (1993); see also, Booker v. State, 335 Ark. 316, 984 S.W.2d 16 (1998).

The longstanding rule in the use of circumstantial evidence is that the evidence must exclude every other reasonable hypothesis than that of the guilt of the accused to be substantial. Smith v. State, 337 Ark. 239, 988 S.W.2d 492 (1999); Smith v. State, 282 Ark. 535, 669 S.W.2d 201 (1984); Upton v. State, 257 Ark. 424, 516 S.W.2d 904 (1974); Jones v. State, 246 Ark. 1057, 441 S.W.2d 458 (1969); Johnson v. State, 210 Ark. 881, 197 S.W.2d 936 (1946); Turner v. State, 192 Ark. 937, 96 S.W.2d 455 (1936); O’Neal v. State, 179 Ark. 1153, 15 S.W.2d 976 (1929); Cohen v. State, 32 Ark. 226 (1877). With respect to the exclusion of every other reasonable hypothesis, Judge Butler, speaking for the court, said in the case of Bowie v. State, 185 Ark. 834, 49 S.W.2d 1049 (1932):

This demands that in a case depending upon circumstantial evidence the circumstances relied upon must be so connected and cogent as to show guilt to a moral certainty, and must exclude every other reasonable hypothesis than that of the guilt of the accused. Circumstances, however strong they maybe, ought never to coerce the mind of the jury to a conclusion of guilt if they can be reconciled with the theory that one other than the defendant has committed the crime, or that no crime has been committed at all.

Johnson v. State, 210 Ark. 881, 197 S.W.2d 936 (1946); Carter v. State, 324 Ark. 395, 921 S.W.2d 924 (1996). See also, Studdard v. State, 243 Ark. 73, 419 S.W.2d 134 (1967); Kagen & Tibbett v. State, 232 Ark. 189, 334 S.W.2d 865 (1960); Taylor v. State, 211 Ark. 1014, 204 S.W.2d 379 (1947). Once a trial court determines the evidence is sufficient to go to the jury, the question of whether the circumstantial evidence excludes every hypothesis consistent with innocence is for the jury to decide. Smith v. State, 337 Ark. 239, 988 S.W.2d 492 (1999). Upon review, this court determines whether the jury resorted to speculation and conjecture in reaching its verdict. Boone v. State, 282 Ark. 274, 668 S.W.2d 17 (1984). Two equally reasonable conclusions as to what occurred merely gives rise to a suspicion of guilt. Carter v. State, 324 Ark. 395, 921 S.W.2d 924 (1996). We will set aside a judgment based upon evidence that did not meet the required standards, and thus left the fact finder only to speculation and conjecture. Smith v. State, 264 Ark. 874, 575 S.W.2d 677 (1979); see also, Jones v. State, 246 Ark.1057, 441 S.W.2d 458 (1969).

The evidence in the instant case is not huge in quantity, however what evidence there is does not admit of any other reasonable conclusion than the appellant’s guilt. The appellant’s own statement placed him at 420 West 22nd on February 23, 1996, with the victim and Ticey, who was also charged in the murder. Forensic evidence admitted during trial consisting primarily of DNA taken from blood found at the residence established that the victim was killed at this address.

The medical examiner testified that strangulation and blunt-force injury to the head and chest caused Ridenhour’s death. He also testified that some of the blunt-force injury was consistent with an injury that could be inflicted by the butt - of a shotgun. Ridenhour’s stomach contents were consistent with Hunt’s and Pearlman’s testimony of having gotten a hamburger at a local restaurant. The State put on DNA evidence that the chances were one in 400,000 that the blood in the carpet came from someone unrelated to Ridenhour, and one in six thousand the blood on the door-jamb came from someone unrelated to Ridenhour. The blood sample on the shotgun was not of a sufficient amount to allow any determination other than it was blood.

The testimony of Hunt and Pearlman showed that two men were in the house when Ridenhour went inside to negotiate the sale after returning from eating. A shotgun, which had blood bn the butt and which the medical examiner testified could have caused the blunt trauma to Ridenhour, was recovered from appellant’s home. Hunt and Pearlman observed Hunt’s car being driven to the side of the house, which is consistent with the body being moved. Ridenhour’s body was found one block from appellant’s sister’s house. Appellant’s own statement placed him at his sister’s house that evening. The car was recovered fifteen to twenty blocks from appellant’s mother’s home, where appellant’s own statement placed him that weekend. Appellant’s own statement also puts the mustang in his possession, when the car belonged to Hunt.

Ridenhour’s disappearance coinciding with the failed car sale also implicates Gregory. Appellant’s explanation for the sale’s failure lacked credibility. Appellant stated Ridenhour was there by the time he got there and that the sale fell through because Ridenhour didn’t have the title. Appellant asserts Ridenhour ‘pawned’ him the car for $40.00 so he could try it out for a couple of days. Appellant also asserted he returned the car to Ridenhour on the 22nd of February. Apparently, the jury did not believe this explanation. False and improbable statements may be admissible as proof of guilt. Smith v. State, 282 Ark. 535, 669 S.W.2d 201 (1984).

Even though the evidence against appellant is circumstantial, it is sufficient. Overwhelming evidence of guilt in cases based upon circumstantial evidence is not required. Here, the evidence of the guilt of appellant meets the test of substantiality. It is of sufficient force and character to compel reasonable minds to the conclusion appellant committed the crimes charged, and, thus, passes well beyond suspicion or conjecture. The evidence excludes every other reasonable hypothesis than that of the guilt of the appellant. We therefore hold that the trial court did not err in denying appellant’s directed-verdict motions and accordingly, affirm.

Rule 4-3(h)

In compliance with Ark. Sup. Ct. R. 4-3 (h), the record has been examined for all objections, motions, and requests made by either party that were decided adversely to appellant, and no error has been found.

Affirmed.


author: PER CURIAM.

text:
    Tracy Donnell SIMMONS v. STATE of Arkansas
    CR 00-425
    15 S.W.3d 344
    Supreme Court of Arkansas
    Opinion delivered May 4, 2000

      F. Russell Rogers, Judge;

      Boyd & Buie, by: Rufus T. Buie, III, for appellant.

      Mark Pryor, Att’y Gen., by: David R. Raupp, Ass’t Att’y Gen., for appellee.
   PER CURIAM.

The State brings this Motion for Rule on the IAM. alleging that the Clerk of the Court improperly declined to file the State’s petition for review of the court of appeals’s decision denying the State’s motion to dismiss in this case. From the pleadings, it appears that there is a dispute as to whether appellee perfected a conditional plea of guilty in order to preserve his right to appeal. The court of appeals’ decision to deny the motion to dismiss will permit that court to review that question as it considers the merits of the appeal. In these circumstances, we do not review the denial of a motion for dismissal by the court of appeals. The court of appeals has determined that it will review this case on its merits and the Clerk of the Court correcdy declined to lodge the State’s petition; therefore, we deny the State’s motion for Rule on the Clerk.

Motion denied.


text:
    Dianna SMITH v. STATE of Arkansas
    CR 00-458
    15 S.W.3d 344
    Supreme Court of Arkansas
    Opinion delivered May 4, 2000

      G.B. “Bing” Colvin, III, for appellant.
    No response.
   PER CURIAM.

Appellant Dianna Smith, by and through her attorney, has filed a motion for rule on the clerk. The record reflects that the judgment and commitment order was filed on September 10, 1999, and a notice of appeal was filed on October 7. An amended order was filed on October 19, followed by an amended notice of appeal-filed on October 28. An order extending the time to lodge the record on appeal was entered on January 13, 2000, more than ninety days after the first notice of appeal was filed. The transcript was not tendered until April 7.

Pursuant to Ark. R. App. P.- — Crim. 5(a), the record on appeal must be tendered within ninety days from the filing of the first notice of appeal. Rule 5(b) provides that the trial court may order an extension of time to file .the record, but the order must be entered before the expiration of the ninety-day period provided in subsection (a). Thus, the order for extension in this case was untimely.

Appellant’s attorney, G.B. “Bing” Colvin III, admits responsibility for negligently miscalculating the time to file the record on appeal. We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. Jones v. State, 338 Ark. 29, 992 S.W.2d 85 (1999) (per curiam) (citing Tarry v. State, 288 Ark. 172, 702 S.W.2d 804 (1986) (per curiam)).

The motion for rule on the clerk is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).