author: A NNABELLE CLINTON IMBER, Justice.

text:
    Rhonda FORD v. Jon D. FORD
    01-554
    65 S.W.3d 432
    Supreme Court of Arkansas
    Opinion delivered January 31, 2002

      Sharp & Sharp, P.A., by: J. Baxter Sharp III, for appellant.

      Richard L. Proctor, for appellee.
   A NNABELLE CLINTON IMBER, Justice.

In December 1998, .Appellee Jon Ford filed for divorce from Appellant Rhonda Ford. In an order filed on February 5, 1999, the chancellor placed the children temporarily in the custody of Rhonda and, at Jon’s request, ordered drug testing of both parties. On March 1, 1999, the chancellor changed custody of the children to Jon “until further orders of the Court” because Rhonda had tested positive for the use of drugs. The divorce decree entered on May 15, 2000, awarded custody of the two children to Jon, established child support and visitation for Rhonda, but reserved all issues of property division until the court received additional information. In a document entitled “Supplemental Decree” and filed on October 27, 2000, the chancellor addressed the issues of property division.

On November 27, 2000, Rhonda filed a notice of appeal “from a Divorce Decree entered in this Court on March 3, 2000 and from a Supplemental Decree entered in this Court on September 12, 2000.” She raises three points on appeal: 1) the court erred in awarding custody to the father rather than granting joint custody; 2) the court erred in setting visitation; and 3) the court erred in setting the amount of the child support and in establishing the date to which it was made retroactive. This case also raises the issue of whether the appeal was timely, thereby granting jurisdiction to this court under our Rule of Appellate Procedure—Civil 2(d) (2001). The Arkansas Court of Appeals certified the case to this court as an issue of first impression, a significant issue needing clarification or development of the law, and a substantial question of law concerning the interpretation of a rule of this court. Thus, our jurisdiction is pursuant to Ark. R. Sup. Ct. l-2(b)(l, 5, and 6) (2001). We hold that the appeal was timely filed and affirm the chancellor’s rulings.

I. Jurisdiction

[1-3] The first question is whether Rhonda’s appeal is properly before this court. Neither party raised the issue of jurisdiction based on the timeliness of the appeal; however, “it is well settled that it is our duty to determine that this court has jurisdiction.” Haase v. Starnes, 337 Ark. 193, 194-95 987 S.W.2d 704, 705 (1998). The question of jurisdiction centers around a possible conflict between Ark. R. App. P.—Civ. 2(d) (2001) and the requirement of a final appealable order. Arkansas Rule of Appellate Procedure — Civil 2(a)(1) (2001) limits our appellate review to final orders to avoid piecemeal litigation. Larscheid v. Arkansas Dept. of Human Services, 343 Ark. 580, 36 S.W.3d 308 (2001). Rule 2 establishes a number of exceptions, including Rule 2(d) that provides: “All final orders awarding custody are final appealable orders.” The potential conflict is with Rule 54(b), which provides that “[a]bsent the executed certificate required by paragraph (1) of this subdivision, any . . . order . . . which adjudicates fewer than all the claims . . . shall not terminate the action. ...” Ark. R. Civ. P. 54(b) (2001). We have held that the exceptions identified in Rule 2 specify circumstances in which an issue is appealable even though the order of the chancellor was not final. East Poinsett City Sch. Dist. #14 v. Massey, 317 Ark. 219, 876 S.W.2d 573 (1994).

The issue here is whether Rule 2(d) permitted Rhonda to appeal directly from the May 15, 2000 divorce decree, and, if so, was she required to appeal within thirty days or forfeit her right to appeal. The resolution of this issue requires us to decide whether the phrase “final orders awarding custody” as used in Rule 2(d) means a final order as to all issues as required by Rule 54(b), or merely any order that is final in terms of custody. We hold that Ark. R. App. P. — Civ. 2(d) permits an appeal from any order that is final as to the issue of custody, regardless of whether the order resolves all other issues. Therefore, Rhonda could have appealed directly from the May 15, 2000 divorce decree under Rule 2(d) because it was final as to the award of custody.

Having determined that the divorce decree met the requirements of Rule 2(d), the issue then becomes whether Rhonda was required to file her appeal within thirty days of the divorce decree or lose her right to appeal. The resolution of this issue is found in Rule 2(b) that provides: “An appeal from any final order also brings up for review any intermediate order involving the merits and necessarily affecting the judgment.” Ark. R. App. P.— Civ. 2(b) (2001). In the instant case, while the May 15, 2000 divorce decree was a final award of custody, it was only an intermediate order with reference to property division issues, which were not addressed by the chancellor until the supplemental decree was entered on October 27, 2000. As such, the issues resolved in the divorce decree, as an intermediate order, were brought up for review along with the appeal from the supplemental decree. In summary, while Rhonda could have appealed directly from the May 15, 2000 divorce decree under Rule 2(d), she was not barred from raising the issues resolved in the divorce decree in her appeal from the October 27, 2000 supplemental decree. Therefore, Rhonda’s notice of appeal, filed on November 27, 2000, was timely filed, and this court has jurisdiction.

II. Custody

We review chancery cases de novo, but will only reverse if the chancellor’s findings were clearly erroneous or clearly against the preponderance of the evidence. Skokos v. Skokos, 344 Ark. 420, 40 S.W.3d 768 (2001). A finding is clearly erroneous when the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Id. We give due deference to the chancellor’s superior position to determine the credibility of the witnesses and the weight to be given their testimony. Id. In cases involving child custody, great deference is given to the findings of the chancellor. “This court has held that there is no other case in which the superior position, ability, and opportunity of the chancellor to observe the parties carries a greater weight than one involving the custody of minor children.” Taylor v. Taylor, 345 Ark. 300, 304, 47 S.W.3d 222, 224 (2001). “The best interest of the child is the polestar in every child custody case; all other considerations are secondary.” Id. See also, Norwood v. Norwood, 315 Ark. 255, 866 S.W.2d 398 (1993).

For her first point on appeal, Rhonda argues that the chancellor erred in awarding custody to Jon rather than joint custody because (1) the chancellor gave too much weight to her failed drug test while giving too little weight to her husband’s former drug use; (2) the chancellor awarded custody without a home study for Rhonda; and (3) the chancellor did not factor in Jon’s propensity for violence. After awarding temporary custody to Rhonda, the trial court ordered both parties to submit to drug tests. Jon’s test results were negative, whereas Rhonda’s test results were positive for amphetamines and methamphetamine. Rhonda first moved into her mother’s home, and then into the home of her boyfriend. Jon’s home study was favorable, and the Department of Human Services (DHS) attempted to conduct a home study for Rhonda. The DHS worker, Pat Nordan, testified that Rhonda asked that the home study not be conducted until she was in a more permanent environment. This testimony was disputed by Rhonda. Rhonda, Ms. Nordan, and Rhonda’s mother all testified that Rhonda’s living in her boyfriend’s home was not in the children’s best interest. The only independent witness to any violence between Jon and Rhonda observed Rhonda hitting Jon while he was holding one of their children.

Rhonda’s final argument under this point is that the court should have given greater weight to her role as the primary caretaker of the children, relying on Milum v. Milum, 49 Ark. App. 3, 894 S.W.2d 611 (1995). In Milum, the chancellor awarded temporary custody to James Milum because Marcia Milum was not working and could not support the children. The chancellor also ordered Marcia to pay child support. Id. Marcia testified that she had never worked but had stayed home with the children at James’s parents’ house where they lived. She changed the children’s diapers and was the primary caregiver at the mother-in-law’s request. Id. Marcia, however, did get a job and paid child support as directed by the court. Id. The chancellor in awarding custody to Marcia found that her role as the primary care giver should be given greater weight than the superior financial condition of the father, and the Arkansas Court of Appeals affirmed. Id. Milum provides little support for Rhonda’s argument. Unlike the instant case, there were no issues of drug use or inappropriate living conditions in Milum. Furthermore, unlike Marcia Milum, Rhonda Ford did not get a job and made no effort to pay child support.

The chancellor explained her reasons for awarding custody to Jon and emphasized Rhonda’s decision to move into her boyfriend’s home when she knew it was a situation that was not in the best interest of her children. Rhonda’s failed drug test and her failure to pay child support were also factors influencing the chancellor’s decision. Giving deference to the trial judge’s superior position to evaluate the credibility of the witnesses and the evidence, we cannot say the chancellor was clearly erroneous or that her findings were clearly against the preponderance of the evidence. Thus, we affirm the chancellor’s award of custody to Jon.

III. Visitation

Rhonda next argues that because Jon works during the day and the children are placed in day care while she neither works nor pursues further education, the trial court erred by not allowing her to care for the children when Jon is at work and the children are not in school. She also argues that the court erred in eHminating Wednesday evening visitation. The chancellor established standard visitation according to Schedule “A” of the Chancery Court Visitation Schedule and specifically prohibited overnight visitation at the home of Rhonda’s boyfriend. The trial court also required a home study before overnight visits would be allowed at Rhonda’s residence. Both parties were prohibited from having non-relatives of the opposite sex staying overnight while the children were present. The chancellor removed Wednesday night visitation because the oldest child was in school but permitted such visits when the children were not in school.

Rhonda’s argument is without merit. First, she did not pay child support because she chose not to get a job even though she had marketable skills. Remarkably, Rhonda now argues that because she does not work and does not support her children, she should be allowed to care for the children while Jon is at work. Furthermore, Rhonda does not explain how the trial court erred in granting standard visitation. As far as Wednesday visitation is concerned, the chancellor simply held that it was not appropriate while the oldest child was in school. We affirm the chancellor on the issue of visitation as well.

IV Child Support

For her final point on appeal, Rhonda claims that the chancellor erred in both the computation of her income for child support and in making the child support retroactive. The trial court calculated her 1999 income as $7500 from farm rent, $3000 from grandparents, $3000 from a certificate of deposit, and $700 from retirement. Rhonda argues that the gift from her grandparents, the certificate of deposit, and the one-time retirement payment should not have been calculated as income because they would not be available as income in the future. She also argues that child support should not have been applied retroactively because in the March 1999 order the chancellor stated: “The Defendant will not be ordered to pay support at this time but will provide employment information to the Plaintiff’s attorney when she is employed and child support will commence according to the chart.” Rhonda suggests that she had no reason to know or expect that she would have to pay child support prior to the letter opinion dated March 8, 2000.

According to the letter opinion, the chancellor calculated Rhonda’s income as $14,200 and used the child-support chart to determine that her child-support obligation should be $263 per month. In applying the child support retroactively to June 1999, the trial court explained: “It would have been reasonable for the Defendant to have become employed within four (4) months of entry of that order. By her admission there are no barriers to her employment and she has marketable skills. There is no reason then the child support should not be retroactive.” In the supplemental decree, Rhonda was given credit toward her child-support obligation for one-half of the parties’ AIM investment fund and one-half of the parties’ tax refund. She was also given credit for one month’s child support as a result of her marital interest in personal property awarded to Jon. After noting Rhonda’s concern about the amount of child support and Jon’s concern about the high cost of medical insurance, the court concluded that “[i]t is agreed that either party may ask for a modification of child support in the future.”

The amount of child support lies within the sound discretion of the chancellor, and the chancellor’s finding will not be reversed absent an abuse of discretion. McWhorter v. McWhorter, 346 Ark. 475, 58 S.W.3d 840 (2001); Kelly v. Kelly, 341 Ark. 596, 19 S.W.3d 1 (2000); Smith v. Smith, 337 Ark. 583, 990 S.W.2d 550 (1999). The chancellor is required to reference to the child-support chart, and the amount specified in the chart is presumed to be reasonable. Smith v. Smith, supra. However, the presumption that the chart is correct may be overcome if the chancellor provides written findings that the chart amount is unjust or inappropriate. Id.

A. Calculation of Income.

For the calculation of child support, “income” is statutorily defined as:

(4) (A) “Income” means any periodic form of payment due to an individual, regardless of the source, including wages, salaries, commissions, bonuses, workers’ compensation, disability, payments pursuant to a pension or retirement program, and interest.
(B) The definition of “income” may be expanded by the Arkansas Supreme Court from time to time in the Guidelines for Child Support Enforcement, § 9-99-901;

Ark. Code Ann. § 9-14-201(4) (Supp. 2001). In Administrative Order No. 10, we expanded the definition of “income” as follows: “Income means any form of payment, periodic or otherwise, due to an individual, regardless of source, including wages, salaries, commissions, bonuses, worker’s compensation, disability, payments pursuant to a pension or retirement program, and interest. ...” In re: Administrative Order Number 10: Arkansas Child Support Guidelines § II, 331 Ark. 581 (1998) (emphasis added). Factor 12 of the sources of income is also very broad: “Other income or assets available to support the child from whatever source.” Id., § V(a)(12) (emphasis added). The definition is intentionally broad and designed to encompass the widest range of sources consistent with this State’s policy to interpret “income” broadly for the benefit of the child. McWhorter v. McWhorter, supra (allowing the inclusion of gambling winnings and losses in the calculation of sources of income for child-support purposes).

We have, however, held that a salary bonus was not an appropriate source of income where the chancellor was unable to reduce the amount to a sum certain. Kelly v. Kelly, supra. As Rhonda points out, the Arkansas Court of Appeals has held that past farm income did not constitute a source of income once the farm was sold. Mearns v. Mearns, 58 Ark. App. 42, 946 S.W.2d 188 (1997). Likewise, in Rowlett v. Burton, 68 Ark. App. 228, 6 S.W.3d 336 (1999), the court of appeals reversed a chancellor’s decision to include an inheritance as income for child-support purposes and order a lump-sum payment of 15% as child support. Id. The appellate court noted that it had previously held that inheritance was not income because the definition of income under federal tax laws excluded gifts and inheritances. Id. (citing Halter v. Halter, 60 Ark. App. 189, 959 S.W.2d 761 (1998)).

In 1997, this court expanded the definition of “income” for child-support purposes to include “any form of payment, periodic or otherwise . . . from whatever source.” Administrative Order Number 10, supra. As noted above, the definition is intentionally broad to encompass the widest range of sources consistent with this State’s policy to interpret “income” broadly for the benefit of the child. As such, the gift from Rhonda’s grandparents, the certificate of deposit, and the retirement payment all fall within the broad range of Rhonda’s sources of income for child-support purposes. A chancellor is not without discretion to deviate from the guidelines if the chancellor determines that non-periodic payments do not represent the noncustodial parent’s ability to pay child support. In this case, however, the chancellor noted that there were no barriers to Rhonda’s employment, that she had marketable skills, and that she had testified finances would not be a problem for her. Under such circumstances, the trial court correctly found that Rhonda’s non-periodic sources of income could be included for determination of child support. Furthermore, the trial court did not require Rhonda to pay child support for a period of time so that she could find employment. In the supplemental decree, the chancellor invited the parties to request a modification of child support at any time.

Because we have purposely provided a very broad definition of income in Administrative Order No. 10, we affirm the chancellor’s decision to calculate Rhonda’s income by including all sources, periodic or otherwise. In so holding, we overrule all prior decisions by the Arkansas Court of Appeals to the extent that they are inconsistent with this opinion.

B. Retroactive Award of Child Support.

A parent has a legal obligation to support a minor child regardless of the existence of a support order. Fonken v. Fonken, 334 Ark. 637, 976 S.W.2d 952 (1998). This court has upheld a child’s right to sue for past child support even though there was no support order. Id. We further affirmed the chancellor’s award of retroactive child support. Id.

Rhonda asserts that she received no notice and that she neither knew nor could she expect child support to be awarded retroactively. This argument is without merit. As Rhonda admits in her brief, the trial court made it clear in the February 1999 hearing that the court expected her to find employment, at which point child support would be set according to the chart. Thus, Rhonda was put on notice that she would be expected to pay child support. When the trial court awarded child support in March 2000, it allowed Rhonda four months to find employment and only made the award retroactive to June 1999. As previously stated, Rhonda had a legal obligation to support her minor children. Although she had been informed by the trial court that she would be expected to pay child support once she was employed, Rhonda chose not to seek employment. We hold that the chancellor did not abuse her discretion by making the initial child-support award retroactive to June 1999.

Affirmed.

       November 27, 2000 was a Monday. The deadline would have fallen on Sunday, November 26, 2000. Because the 27th was the next business day following the deadline, the appeal was timely filed. Watanabe v. Webb, 320 Ark. 375, 896 S.W.2d 597 (1995).

       This definition of “income” was adopted by per curiam order on October 1, 1997. In re: Administrative Order Number 10: Arkansas Child Support Guidelines, 329 Ark. 668 (1997). The current version of Administrative Order No. 10 retains this definition. In re: Administrative Order Number 10: Arkansas Child Support Guidelines, 331 Ark. 581 (1998).


source: Caselaw Access Project

author: J IM Hannah, Justice.

license: Public Domain

text:
    Jerry SHORT v. WESTARK COMMUNITY COLLEGE
    01-753
    65 S.W.3d 440
    Supreme Court of Arkansas
    Opinion delivered January 31, 2002

      Walters, Hamby & Verkamp, by: Michael Hamby, for appellant.

      Smith, Maurras, Cohen, Redd & Horan, PLC, by: S. Walton Maurras, for appellee.
   J IM Hannah, Justice.

Appellant Jerry Short appeals the dismissal of his civil-rights case against Appellee Westark Community College (Westark) due to the Sebastian County Circuit Court’s finding that Westark was immune from suit under sovereign immunity. Short filed suit in Logan County Circuit Court on January 1, 2001, against Westark claiming that Westark violated his civil rights by removing or failing to provide reasonable work accommodations for his physical disability of bilateral carpal tunnel syndrome. According to Short’s complaint, Westark hired him on August 21, 1997, fully knowing of his disability, but after a year or two changed his job and removed certain accommodations, causing him to have to either attempt work outside of his restrictions or refuse to perform required work. Short alleged that on April 20, 2000, Westark terminated him because he was unwilling and unable to perform the work assigned to him. Short’s complaint alleged a violation of the Arkansas Civil Rights Act for negligent or intentional acts of discrimination.

After being served with the summons and complaint, Westark filed a motion to dismiss the action, arguing that it is entitled to sovereign immunity because it is an arm of the State and is protected by both constitutional and statutory sovereign immunity. Westark argued that because the State provides the bulk of its financing and operating expenses, any judgment against the school would be tantamount to a judgment against the State. Westark offered the affidavit of Mark Horn, Vice President for Planning and Accountability at Westark, and attached graphs detailing the financial breakdown of income sources to the school. Furthermore, Westark noted that the venue of the lawsuit was improper in that the action should have been filed in Sebastian County Circuit Court, Fort Smith District, because the school is located in that district.

Short answered the motion to dismiss on March 9, 2001, arguing that the legislature waived sovereign immunity for Westark when it enacted the Arkansas Civil Rights Act. Furthermore, Short argued that Westark is similar to a local school district, and that the Arkansas Supreme Court has recognized that school districts are not entitled to sovereign immunity. Short also argued that statutory sovereign immunity does not apply because the legislature carved out an exception to such immunity. Finally, regarding venue, Short argued that although he believed venue was proper, he preferred the case to be transferred rather than be dismissed.

By letter filed April 2, 2001, the Logan County Circuit/Chancery Court transferred the case to Sebastian County Circuit Court, Fort Smith District, and the complaint was refiled on April 11, 2001. On April 24, 2001, Westark again filed a motion to dismiss prior to answering the complaint, and attached the same brief in support and supporting affidavit and documentation. Short filed the same response on May 10, 2001.

On May 16, 2001, the court issued its order granting Westark’s motion to dismiss the complaint based on sovereign immunity. Specifically, the court found that the main issue is whether Westark is “an arm of the State,” and, if so, whether the State treasury would be tapped by a judgment against Westark. The court reviewed statutes and constitutional provisions establishing the college and creating funding for its operation, and noted that the State provided from 69.94% to 73.77% of the funding to Westark from 1994 to 2000. The court also considered that the State retained substantial control over Westark’s operations through the State Community College Board and the Arkansas Higher Education Coordinating Board. As such, Westark is both financially and operationally dependent upon the State, and a judgment against Westark would have to be satisfied from the State treasury. Therefore, the court concluded that sovereign immunity exists. Short filed his notice of appeal on May 29, 2001.

While the circuit court dismissed the case pursuant to a motion to dismiss, the court’s action was actually one of summary judgment due to its consideration of Horn’s affidavit and the attached financial documentation. Pursuant to Ark. R. Civ. P. 12(b) and (c), a motion to dismiss is converted to a motion for summary judgment when matters outside of the pleadings are presented to and not excluded by the court. Francis v. Francis, 343 Ark. 104, 31 S.W.3d 841 (2000); McQuay v. Guntharp, 331 Ark. 466, 963 S.W.2d 583 (1998); Clark v. Ridgeway, 323 Ark. 378, 914 S.W.2d 745 (1996). Because it is clear from the wording of the order that the trial court considered matters outside of the pleadings, we review this appeal as one from summary judgment.

In reviewing a summary-judgment case, we need only decide if the trial court’s grant of summary judgment was appropriate based on whether the evidence presented by the moving party left a material question of fact unanswered. Aka v. Jefferson Hospital Assoc., 344 Ark. 627, 42 S.W.3d 508 (2001). Notably, the moving party always bears the burden of sustaining a motion for summary judgment. All proof must be viewed in the light most favorable to the resisting party, and any doubts must be resolved against the moving party. However, the moving party is entitled to summary judgment if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Ark. R. Civ. P. 56 (2000); Robert D. Holloway, Inc. v. Pine Ridge Add’n Resid. Prop. Owners, 332 Ark. 450, 453, 966 S.W.2d 241, 243 (1998) (citing McCutchen v. Huckabee, 328 Ark. 202, 943 S.W.2d 225 (1997)). Once the moving party makes a prima facie showing that it is entitled to summary judgment, the opponent must meet proof with proof by showing a material issue of fact. Dillard v. Resolution Trust Corp., 308 Ark. 357, 359, 824 S.W.2d 387, 388 (1992).

On appeal, Short expounds on his argument that Westark is “more in the nature of a school district rather than a branch of the State” so that it cannot claim protection from suit through sovereign immunity. Short also asserts for the first time on appeal that Westark is comparable to a housing authority, which does not enjoy sovereign immunity. Short addresses Horn’s affidavit for the first time on appeal, arguing that his assertions indicate that Westark is controlled by a local board, much like a local school board, and that the State’s Higher Education Coordinating Board acts more as an advisor than as a regulator. Because Westark has “the power to tax, acquire, use, and own property in the College’s name, and to govern itself locally,” it has more autonomy than schools in the University of Arkansas system and does not enjoy sovereign immunity. Short argues that on the funding issue, Westark is within a constitutionally created district that can levy taxes to fund the school. Therefore, although the State provides financing to Westark, Westark’s district can levy taxes to pay for school operations, and the school has great discretion in how it uses bequests, gifts, and donations to the school. Short argues that the district could levy a millage earmarked in a general fund to pay for such money judgments, and that this would relieve the State from making up the shortfall. In all, Short argues that a money judgment against Westark does not necessarily implicate the State treasury, and that other funding sources could pay such a judgment, thus rendering sovereign immunity an inapplicable protection.

Westark responds first by noting that Short has expanded his argument on appeal and has argued issues that were not addressed below. Particularly, Westark points out that Short’s argument that the private endowment funds could be used to pay a judgment was not raised below, that this argument is not supported by proof presented below, and therefore, the argument is speculative. Furthermore, Short’s proposition that the Westark district could “raise revenue” by levying a millage for paying judgments is meritless in that millage assessments must be voted on by people in the district, and such millage assessments may only be raised to retire bonds issued to fund capital construction. Westark also notes that the voters in Sebastian County voted to repeal the entire assessed millage for Westark and to dissolve the district in order to merge Westark into the University of Arkansas system as the “University of Arkansas at Fort Smith.” In addition, Westark argues as it did below that this case is similar to Hadley v. North Arkansas Community Technical College, 76 F.3d 1437 (8th Cir. 1996), in which the Eighth Circuit Court of Appeals found that North Arkansas Community Technical College (NACTC) enjoyed sovereign immunity under the Eleventh Amendment to the U.S. Constitution in a 42 U.S.C. § 1983 discrimination/employment termination case. Westark notes that that court analyzed the case both on the funding issue and on the control issue, and determined that, although Arkansas community colleges had elements of local funding and control, the majority of the funding and control rested with the State. Therefore, because the Arkansas Civil Rights Act did not waive immunity, sovereign immunity applies. Finally, Westark argues that it also benefits from statutory sovereign immunity created in Ark. Code Ann. § 21-9-301 (Supp. 2001).

At issue is whether Westark is immune from this lawsuit under the protection of the doctrine of sovereign immunity. We must determine whether Westark is “an arm of the State” subject to the protections of sovereign immunity and, if so, whether the legislature has somehow waived that immunity. Sovereign immunity is jurisdictional immunity from suit. State v. Goss, 344 Ark. 523, 42 S.W.3d 440 (2001); Milberg, Weiss, Bershad, Hynes, & Lerach, LLP v. State, 342 Ark. 303, 28 S.W.3d 842 (2000); State Office of Child Support Enforcem’t v. Mitchell, 330 Ark. 338, 954 S.W.2d 907 (1997). This defense arises from Article 5, Section 20, of the Arkansas Constitution, which provides: “The State of Arkansas shall never be made a defendant in any of her courts.” This court has consistently interpreted this constitutional provision as a general prohibition against awards of money damages in lawsuits against the state and its institutions. See, e.g., Cross v. Arkansas Livestock & Poultry Comm’n, 328 Ark. 255, 943 S.W.2d 230 (1997); Fireman’s Ins. Co. v. Arkansas State Claims Comm’n, 301 Ark. 451, 784 S.W.2d 771, cert. denied, 498 U.S. 824 (1990). The doctrine of sovereign immunity is rigid and may only be waived in limited circumstances. Mitchell, supra. This court has recognized only two ways in which a claim of sovereign immunity may be surmounted: (1) where the state is the moving party seeking specific relief; and (2) where an act of the legislature has created a specific waiver of immunity. Id.

As we stated long ago in Pitock v. State, 91 Ark. 527, 535 (1909), “[A] sovereign State cannot be sued except by its own consent; and such consent is expressly withheld by the Constitution of this State.” See also, Arkansas Tech University v. Link, 341 Ark. 495, 17 S.W.3d 809 (2000). Recently, we reiterated this express prohibition in Brown v. Arkansas State HVACR Lie. Bd., 336 Ark. 34, 984 S.W.2d 402 (1999). In Brown, we pointed out that sovereign immunity is jurisdictional immunity from suit, and where the pleadings show the action is one against the State, the trial court acquires no jurisdiction. However, unlike subject-matter jurisdiction, sovereign immunity can be waived. Newton v. Etoch, 332 Ark. 325, 331, 965 S.W.2d 96 (1998); State v. Tedder, 326 Ark. 495, 932 S.W.2d 755 (1996); Cross, supra; Department of Human Servs. v. Crunkleton, 303 Ark. 21, 791 S.W.2d 704 (1990). The doctrine makes no distinction between actions in equity and actions at law. Id. Furthermore, a suit against a state official in his or her official capacity is not a suit against that person, but rather is a suit against that official’s office. Brown, supra. A suit against the board of trustees of a state university is a suit against the State, and is barred by the doctrine of sovereign immunity. State Comm’r of Labor v. University of Ark., 241 Ark. 399, 407 S.W.2d 916 (1966).

The decisive issue is whether the State’s financial obligations would increase if the plaintiffs prevail in their suit. Link, supra; Commission on Judicial Discipline and Disability v. Digby, 303 Ark. 24, 792 S.W.2d 594 (1990). If so, the action is barred by the doctrine of sovereign immunity. Id. As the rule has been more commonly stated, if a judgment for the plaintiff will operate to control the action of the State or subject it to liability, the suit is one against the State and is barred by the doctrine of sovereign immunity. Grine v. Board of Trustees, 338 Ark. 791, 2 S.W.3d 54; Fireman’s Ins. Co. v. Arkansas State Claims Comm’n, 301 Ark. 451, 784 S.W.2d 771 (1990); Page v. McKinley, 196 Ark. 331, 118 S.W.2d 235 (1938).

As the initial consideration, we must consider whether Westark is “an arm of the State” or a State entity subject to the protections of the sovereign-immunity doctrine. While Short raises several arguments here in support of his position that Westark is not a State agency, only one of those arguments was raised below at the trial level. It is well settled that this court does not consider arguments raised for the first time on appeal. Windsor v. State, 338 Ark. 649, 1 S.W.3d 20 (1999). Preserved for this appeal is Short’s assertion that Westark is more akin to a school district, which does not enjoy sovereign immunity, see Dermott Special School District v. Johnson, 343 Ark. 90, 32 S.W.3d 477 (2000), rather than a State university and its employees acting in their official capacity, which do, see Grine, supra. Short is correct that Westark is within a legislatively established district created to oversee the operations of Westark. The creation of this district stems from Arkansas Constitutional Amendment 52, §§ 1 and 2, allowing the General Assembly to authorize the State Board of Higher Education to formulate criteria for establishing community colleges, and to propose the creation of the district to the qualified voters in the proposed district, who then may vote to create the district. See also, Ark. Code Ann. §§ 6-61-505 to -510, -513 (Repl. 1996) (Supp. 2001). Once that district is created, the voters may levy a property tax to help fund the operation of the district for the “acquisition, construction, reconstruction, repair, expansion, operation, and maintenance of facilities therefor.” Arkansas Const. Amend. 52, §§ 1 and 2. The voters may also vote to repeal or eliminate any millage previously assessed. Id. Funding is also provided by the State for the “general operation of an adequate comprehensive educational program.” Ark. Code Ann. § 6-61-601 (Repl. 1996). This statute further states:

The amount of state revenues to be recommended for the general operation of each community college shall be the difference between the recommended budget and the total of income for general operation, including student fees and any other income except local taxes. The recommended budget for general operation shall be sufficient to provide an adequate comprehensive educational program which serves the needs of the state and the community college’s service area as determined by the State Community College Board.

Ark. Code Ann. § 6-61-601(c) (2). Furthermore, because Westark receives funds from the State as a state-supported institution of higher learning, the General Assembly considers it a “State agency.” Ark. Code Ann. § 19-4-801(1) (Repl. 1996).

The evidence presented in Westark’s motion indicates that from 1994 to 2000, Westark averaged over 70% in state-appropriated funds, approximately 25% in funds from tuition and fees, and about 3% in funds from interest, rental, library, fines, student fees, etc. Most notably, Westark received no fees during this time from local tax levies. These facts make this case quite similar to Hadley, supra, in which the Eighth Circuit Court of Appeals considered whether the North Arkansas Community Technical College, another Arkansas community college, enjoyed Eleventh Amendment sovereign immunity as a State agency in a federal discrimination lawsuit. The court determined that it did. In coming to this conclusion, the Eighth Circuit Court of Appeals considered the Arkansas constitutional and statutory provisions noted above, and found that during the 1993-1994 fiscal year, NACTC’s operating expenses totaled 75.1% in state-appropriated funds, 22.1% in tuition payments, and 2.8% in federal grants and private donations. NACTC also received approximately 3% of its total budget from local tax revenues specifically earmarked to finance new acquisitions. Clearly, the numbers here are on par with those in Hadley, and, in fact, do not include any levied taxes to complete the total operating budget as NACTC received in Hadley.

As in Hadley, Short argues here that money to pay the judgment could come from other sources within Westark’s budget than those monies received from the State. However, as the Hadley court explained, that is not the proper inquiry. The court stated:

In these circumstances, we conclude that Hadley’s claim “is in reality a suit against the state,” Sherman, 16 F.3d at 863, because “the funds to pay any award will be derived from the state treasury,” Dover Elevator, 64 F.3d at 446. Hadley argues that he seeks damages of less than $250,000 and therefore any award could be paid from other sources, such as future local tax increases, tuition, federal grants, or other discretionary funds. However, while there is dictum in Sherman suggesting it is relevant “whether a judgment against the University can be paid from non-state funds under the University’s discretionary control,” 16 F.3d at 865 (emphasis added), traditional Eleventh Amendment cases did not require a speculative analysis of whether a college largely funded by the State might be able to pay a judgment in the first instance from other revenue sources, and Greenwood and Sherman were not departures from prior Eleventh Amendment jurisprudence. See Treleven v. University of Minnesota, 73 F.3d 816, 818-19 (8th Cir.1996). Mt. Healthy directs us to examine “the nature of the entity,” 429 U.S. at 280, 97 S.Ct. at 572, not the nature of the relief the plaintiff seeks.
Arkansas calls NACTC a state agency and has made its daily operations financially dependent upon the state treasury The district’s never-exercised authority to supplement NACTC’s operating budget with limited local tax revenues does not change the fact that the State has created an institution of higher learning “that is dependent upon and functionally integrated with the state treasury.” Kashani v. Purdue Univ., 813 F.2d 843, 846 (7th Cir.), cert. denied, 484 U.S. 846, 108 S.Ct. 141, 98 L.Ed.2d 97 (1987). The relevant funding inquiry cannot be whether NACTC enjoys some non-state funding, such as user fees (tuition), because then most state departments and agencies, and all state universities, would be denied Eleventh Amendment immunity. Here, even if NACTC could initially satisfy a judgment from other operating revenues, such as tuition payments or federal grants, the judgment would produce a higher operating budget shortfall that must, by state law, be satisfied by an appropriation from the state treasury. Thus, Hadley’s action “is in essence one for the recovery of money from the state.” Ford Motor, 323 U.S. at 463-64, 65 S.Ct. at 350.

Hadley, 76 F.3d at 1440-1441. Such is the case here in that if Westark were not immune from suit merely because it receives money for general operating expenses from sources other than the State treasury, such as funding from tuition, tax levies, or private grants, the State by law would be statutorily required to make up the difference. Therefore, any money pulled from Westark’s operating funds would necessarily have to be replaced with State money to cure the shortfall. As such, a suit against Westark is a suit against the State.

Because Westark is a State agency subject to sovereign-immunity protection, we move to the second leg of the inquiry to determine whether the State waived immunity for Westark by enacting the Arkansas Civil Rights Act. As noted above, this court has recognized only two ways in which a claim of sovereign immunity may be surmounted: (1) where the state is the moving party seeking specific relief; and (2) where an act of the legislature has created a specific waiver of immunity. Mitchell, supra. Clearly, here the State is not the moving party seeking specific relief. Therefore, unless the legislature has waived immunity, both the constitutional and statutory guarantees of immunity stand.

Short argued below that the General Assembly waived sovereign immunity for the State in the Arkansas Civil Rights Act, codified at Ark. Code Ann. §§ 16-123-101 — 16-123-108 (Supp. 2001). However, the legislature specifically stated in Section 16-123-104 that “[n]othing in this subchapter shall be construed to waive the sovereign immunity of the State of Arkansas.” Therefore, Short’s argument has no merit. Furthermore, Short offers no other source to show that the legislature waived the State’s immunity in any manner.

Affirmed.

       While our inquiry into sovereign immunity under Arkansas law ends with a determination that the State treasury would be tapped if the pending lawsuit were successful, the Eighth Circuit Court of Appeals in Hadley continued its inquiry into Eleventh Amendment sovereign immunity by considering the amount of control the State had over NACTC. The court found that the State’s “ultimate control” of NACTC also contributed to the court’s determination that NACTC, as a State agency, was immune from federal suit under Eleventh Amendment sovereign immunity.


author: P ER CURIAM. TOM Glaze, Jusin death cases

text:
    Ray DANSBY v. STATE of Arkansas
    CR 00-1218
    65 S.W.3d 448
    Supreme Court of Arkansas
    Opinion delivered January 31, 2002

      David W. Talley, Jr., for appellant.

      Mark Pryor, Att’y Gen., by: Kent G. Holt, Ass’t Att’y Gen., for appellee.
   P ER CURIAM.

This is an appeal by appellant Ray Dansby from the denial of his petition for postconviction relief under Ark. R. Crim. P. 37.5 in connection with his capital murder convictions and death sentences. Dansby raises multiple issues in his Rule 37.5 appeal, including (1) trial counsel was ineffective in pretrial preparation; (2) trial counsel was ineffective in conducting voir dire of the jury panel; (3) trial counsel was ineffective in failing to secure the presence of a witness, Calvin Paschal; (4) trial counsel was ineffective in falling to move to suppress Dansby’s statement given to law enforcement; and (5) trial counsel was ineffective in preparing mitigation evidence for the penalty phase of the trial. Counsel for Dansby in this Rule 37.5 appeal has failed to abstract the testimony and rulings from the underlying trial which give rise to his claims of ineffective assistance of counsel. Therefore, we order counsel to refile his brief within thirty days in compliance with Ark. Sup. Ct. R. 4-2(a)(5).

Just last year, this court advised appellant’s counsel in a Rule 37.5 death case to correct a flagrantly deficient abstract. See McGehee v. State, 344 Ark. 602, 43 S.W.3d 125 (2001). In McGehee, we referred to our “heightened standard of review in death cases.” McGehee, 344 Ark. at 604, 43 S.W.3d at 127. We further referred to our longstanding doctrine that we would not go to the record to reverse a trial court and concluded that an affirmance of the trial court because of an abstract deficiency in this death case would be too harsh.

A proper abstract, which includes material portions of the underlying trial, is essential to this court’s review of Rule 37.5 decisions. Without it, we are unable to perform a comprehensive review of Dansby’s claim for postconviction relief. When this court adopted Rule 37.5 in 1997, we noted that we were doing so in response to Act 925 of 1997 and the federal Antiterrorism and Effective Death Penalty Act of 1996. Later, we noted the purpose behind Rule 37.5:

Rule 37.5 evolved from Act 925 of 1997, now codified at Ark. Code Ann. §§ 16-91-201 to -206 (Supp. 1999), where the General Assembly expressly noted that the intent of the Act is to comply with federal law by instituting a comprehensive state-court review. See section 16-91-204; Porter v. State, 332 Ark. 186, 964 S.W.2d 184 (1998) (per curiam). The purpose of a meaningful state review is to eliminate the need for multiple federal habeas corpus proceedings in death cases. Id. Thus, “in death cases where a Rule 37 petition is denied on procedural grounds, great care should be exercised to assure that the denial rests on solid footing.” Id. at 188-89, 964 S.W2d at 185.

Echols v. State, 344 Ark. 513, 517, 42 S.W.3d 467, 469 (2001) (quoting Wooten v. State, 338 Ark. 691, 695-96, 1 S.W.3d 8, 10-11 (1999) (emphasis added)).

The State suggests that this court should go to the record of the underlying trial and read those portions of the trial that pertain to Dansby’s claims on appeal. In other words, the State suggests that this court should do appellate counsel’s work and engage in the cumbersome process of passing a record back and forth among seven judges in an attempt to find the relevant portions of the record. We decline to do that. Proper abstracting of the record was the obligation of Dansby’s attorney.

Dansby’s counsel, accordingly, is given thirty days to revise the abstract and submit to this court a substitute brief so that we can engage in a meaningful review of his issues on appeal. The argument section of the brief should remain the same as that currendy included in the brief before this court. Because the argument portion of the appellant’s brief will be unchanged, a response by the State should be unnecessary, unless the State objects in some way to the compilation of the revised abstract.

Rebriefing ordered.

IMBER, J., not participating.

Glaze, J., dissents.

TOM Glaze, Jusin death cases

dissenting. I agree with the court that, in death cases where a Rule 37 petition is denied on procedural grounds, great care should be exercised to assume that the denial rests on solid footing. Here, that assurance exists without rebriefing, because this case can be decided on its merits, not on procedural grounds.

While the appellant here failed to abstract the record, the State has gone to the transcript to argue and discuss the merits of appellant’s points. Our court has held repeatedly that it may go to the record to affirm, see McGehee v. State, 344 Ark. 602, 42 S.W.3d 474 (2001), and the State asks our court to do so here. Appellant Dansby is in no way prejudiced by our considering his and the State’s arguments in these circumstances, since appellant had every opportunity to review the record, as the State did, and argue in reply. The only one prejudiced, if you can call it that, is this court, which is called on to review those few portions of the record relevant to an understanding of appellant’s and the State’s arguments. Although this court always retains the discretion to require an appellant to abstract the record to cure a deficiency, it need not require such abstracting, if the court can reach the issues on their merits and judicial economy can be served. Cf. In re: Supreme Court Rules 2-3, 4-2, and 4-4, 346 Ark. Appx., per curiam delivered September 20, 2001.

For the above reasons, I would proceed to consider this appeal on its merits rather than waste time making the appellant abstract a record which in no way is going to help his case, but will serve only to increase attorney’s fees and costs and will end in an unnecessary delay of this court’s decision.

       By per curiam order, previous Supreme Court Rule 4-2(a)(6) became Rule 4-2(a)(5). See In Re: Modification of the Abstracting System - Amendments to Supreme Court Rules 2-3, 4-2, 4-3, and 4-4, 345 Ark, Appx. (May 31, 2001).


author: P ER CURIAM.

text:
    Charles Anthony MARTIN v. STATE of Arkansas
    CR 01-1072
    64 S.W.3d 755
    Supreme Court of Arkansas
    Opinion delivered January 31, 2002

      Wilson & Associates, P.L.L.C., by: Patrick J. Benca, for appellant.
    No response.
   P ER CURIAM.

On October 2, 2001, petitioner Charles Martin moved to file a belated appeal, and, on October 25, 2001, this court issued a per curiam remanding this case to the trial court to settle the record in order to determine whether Martin had requested his then attorney, Dale Finley, to file a notice of appeal. The trial court complied with our per curiam on November 27, 2001, and the trial court’s order was subsequently filed with our clerk’s office on December 5, 2001. The trial court concluded that Martin had directed Finley to file a motion, but Finley failed to do so in violation of Rule 16 of the Rules of Appellate Procedure— Criminal.

On January 2, 2000, Martin’s motion for belated appeal was resubmitted, but, because the court was not apprised of the trial court’s November 27, 2001, order settling the record, we requested compliance with the October 25, 2001, be done. Now, being knowledgeable of the trial court’s order settling the record, we grant Martin’s motion for belated appeal. We also refer the matter concerning Mr. Finley to the Professional Conduct Committee.


text:
    Terrance ROBINSON and Tamagum Antonio Robinson v. STATE of Arkansas
    CR 01-351
    64 S.W.3d 754
    Supreme Court of Arkansas
    Opinion delivered January 31, 2002

      Roy Lewellen, for appellants.

      Fred Thorne, for appellee.
   P ER CURIAM.

On October 11, 2001, this court issued a per curiam directing the Supreme Court Clerk to accept a substituted copy of the trial transcript in this matter when all of the attorneys of record certify to the Clerk by affidavit that the trial transcript is true, accurate, and complete. Robinson v. State, 346 Ark. 266, 57 S.W.3d 162 (2001) (per curiam). We further directed the attorneys of record to reconstruct the record in the appeal, including trial exhibits, and certify in the same affidavit that the full record with the transcript and exhibits was accurate and complete. Id.

On October 26, 2001, attorney for the appellants filed a “Certification” and stated that the trial transcript was complete but that the thirteen trial exhibits are “presumed lost.” On November 7, 2001, the deputy prosecuting attorney filed an affidavit approving the trial transcript and stating in part: “If requested, I will attempt to reconstruct the trial exhibits.”

On December 6, 2001, we again directed counsel of record to reconstruct the trial exhibits, as they appeared pertinent to this appeal, and certify the same to this court by affidavit. We stated that this must be done within thirty days from the date of this per curiam. Robinson v. State, 347 Ark. 231, 60 S.W.3d 484 (2001) (per curiam).

On January 3, 2002, the deputy prosecuting attorney, Fred Thorne, filed his affidavit with a packet of reconstructed exhibits with this court. To date, defense counsel, Roy Lewellen, has again failed to comply with this court’s order concerning reconstruction of the exhibits for purposes of his clients’ appeal.

We order Mr. Lewellen to appear before this court at 9:00 a.m. on February 14, 2002, to show cause why he should not be held in contempt for failing to comply with this court’s order regarding certification of the reconstructed exhibits.


author: P ER CURIAM. Glaze, J.,

text:
    Bruce Earl WARD v. STATE of Arkansas
    CR 00-1322
    65 S.W.3d 451
    Supreme Court of Arkansas
    Opinion delivered January 31, 2002

      William A. McLean, for appellant.

      Mark Pryor, Att’y Gen., by: Kent G. Holt, Ass’t Att’y Gen., for appellee.
   P ER CURIAM.

Appellant Bruce Earl Ward appeals the order of the Pulaski County Circuit Court denying his petition for postconviction relief under Ark. R. Crim. P. 37. A jury convicted Ward of capital murder and sentenced him to death. This court affirmed his conviction on direct appeal, but reversed and remanded for resentencing in Ward v. State, 308 Ark. 415, 827 S.W.2d 110, cert. denied, 506 U.S. 841 (1992). Ward was again sentenced to death, but this court ordered the case to be remanded for resentencing, due to an error by the court reporter. See Ward v. State, 321 Ark. 659, 906 S.W.2d 685 (1995) (per curiam). Ward was then sentenced to death a third time, and this court affirmed that sentence in Ward v. State, 338 Ark. 619, 1 S.W.3d 1 (1999).

Rule 37.5 provides the postconviction procedure to be applied in death-penalty cases in which the defendant became eligible to file a Rule 37 petition on or after March 31, 1997. See Rule 37.5(k). This court issued the mandate affirming Ward’s conviction and sentence on October 19, 1999. On February 10, 2000, Ward filed a timely petition for postconviction relief, asserting that he was denied the effective assistance of counsel during his trial. Thus, Rule 37.5 governs this appeal, as Ward became eligible to file his petition under Rule 37.2(c) after March 31, 1997.

In his petition to the circuit court, Ward raised six allegations of ineffective assistance of counsel. A hearing was held on the petition, and the circuit court entered a written order denying relief on July 20, 2000. Ward now appeals the denial of his petition, but limits his appeal to only two of the allegations raised in his original petition. First, Ward argues that he is entitled to relief under Rule 37, because his trial counsel failed to object to the admission of hearsay testimony introduced through State’s witness Dale Danzeisen. Second, Ward argues that his counsel was ineffective for failing to seek recusal of the judge who presided over his trial. We are unable to reach the merits of Ward’s arguments because the abstract presented to this court is flagrantly deficient. Specifically, the abstract does not comply with Ark. Sup. Ct. R. 4-2(a)(5), because it does not consist of an impartial condensation of the material proceedings necessary to an understanding of the issues presented to this court.

When this court is presented with a deficient abstract, we may summarily affirm the judgment for noncompliance with our rule. See Ark. Sup. Ct. R. 4-2(b)(3). Where such a disposition would be unduly harsh, however, this court also has the option to order Appellant’s counsel to revise the brief at his own expense. Id.; McGehee v. State, 344 Ark. 602, 43 S.W.3d 125 (2001). We believe that summarily affirming for a deficient abstract in the present case would be an unduly harsh result, particularly in light of the underlying policy of Rule 37.5.

This court has stated that Rule 37.5 requires a heightened standard of review in death cases. Echols v. State, 344 Ark. 513, 42 S.W.3d 467 (2001) (citing Jackson v. State, 343 Ark. 613, 37 S.W.3d 595 (2001). We have also recognized that death-penalty cases are different from other criminal cases, due to the obvious finality of the punishment. See, e.g., Gregg v. Georgia, 428 U.S. 153 (1976); American Civil Liberties Union v. State, 339 Ark. 314, 5 S.W.3d 418 (1999); Franz v. State, 296 Ark. 181, 754 S.W.2d 839 (1988), modified on other grounds, State v. Robbins, 339 Ark. 379, 5 S.W.3d 51 (1999). Furthermore, as this court stated in Wooten v. State, 338 Ark. 691, 1 S.W.3d 8 (1999), the purpose of the exacting requirements of Rule 37.5 is to provide a comprehensive state-court review of a petitioner’s claim, thus efiminating the need for multiple postconviction actions in federal court. See also Echols, 344 Ark. 513, 42 S.W.3d 467. Summarily affirming this case due to a deficient abstract would deny Appellant his right to a comprehensive state-court review.

In light of the foregoing, we order Appellant’s counsel, at his own expense, to abstract relevant portions of Appellant’s trial, including the complete testimony of witness Dale Danzeisen, as well as any portions of the trial that would support Appellant’s argument that counsel was ineffective in faffing to seek recusal of the trial judge. The argument portion of Appellant’s brief is to remain unchanged. Counsel will have thirty days from the date of this opinion to rebrief this matter and file it with the clerk of this court.

Rebriefing ordered.

Glaze, J.,

dissents. See Dansby v. State, 347 Ark. 509, 65 S.W.3d 448 (January 31, 2002) (per curiam).

ÍMBER, J., not participating.

       By per curiam order, previous Supreme Court Rule 4-2(a)(6) became Rule 4-2(a)(5). See In Re: Modification of the Abstracting System — Amendments to Supreme Court Rules 2-3, 4-2, 4-3, and 4-4, 345 Ark. Appx. (May 31, 2001).


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

text:
    Thomas Edmond BRADLEY v. STATE of Arkansas
    CR 01-681
    65 S.W.3d 874
    Supreme Court of Arkansas
    Opinion delivered February 7, 2002
    [Petition for rehearing denied March 14, 2002.]

      Phillip A. McGough, P.A., for appellant.

      Mark Pryor, Att’y Gen., by: Misty Wilson Borkowski, Ass’t Att’y Gen., for appellee.
   w .H. “Dub” Arnold, Chief Justice.

This case involves the revocation of a suspended sentence. Appellant Thomas Bradley pled guilty to breaking or entering, two counts of burglary, and three counts of theft of property in 1997. Imposition of appellant’s sentences were suspended on several conditions, one of which was that appellant live a law-abiding life, be of good behavior, and not violate any state, federal, or municipal law. On February 20, 2001, the State filed a revocation petition based on alleged violations of the conditions of appellant’s suspended sentences, particularly the alleged violation of Ark. Code Ann. § 5-64-1301 (Supp. 2001), which states:

Any person who knowingly possesses anhydrous ammonia in a container which does not comply with the regulations of the Boiler Inspection Division of the Department of Labor for the containment of anhydrous ammonia is guilty of a Class B felony.

The trial court revoked appellant’s suspended sentences, and the appellant now appeals that revocation. We affirm.

Appellant was a passenger in a vehicle driven by a friend. The vehicle was stopped for speeding, and the odor of ammonia coming from the trunk was so strong that two police officers and a police dog were overcome. The officers obtained permission to search the vehicle, and found hypodermic needles in the door pocket of the driver’s door. The trunk key initially could not be found; however, access to the trunk was gained through the back seat, and the anhydrous ammonia was found there, leaking from a red nonconforming container.

The trunk key was later found under the appellant’s passenger seat, and the trial court found that, from all of the circumstances, appellant was in constructive possession of the anhydrous ammonia found in the trunk in the nonconforming container. The court found that while there might not be enough evidence to convict the appellant of violating the statute, there was sufficient evidence to revoke his suspended sentences. On appeal, appellant challenges the court’s denial of his motions for directed verdict, alleging that the State did not sufficiently prove that appellant constructively possessed the contraband found in the trunk of the automobile.

I. Standard of Review

We have held that to revoke probation or a suspended sentence, the burden is on the State to prove the violation of a condition of probation or suspended sentence by a preponderance of the evidence. See Ark. Code Ann. 5-4-309(d) (Supp. 1999); Lemons v. State, 310 Ark. 381, 836 S.W.2d 861 (1992); Hoffman v. State, 289 Ark. 184, 711 S.W.2d 151 (1986); Pearson v. State, 262 Ark. 513, 558 S.W.2d 149 (1977). On appellate review, the trial court’s findings will be upheld unless they are clearly against a preponderance of the evidence. Hoffman, supra. Because the burdens are different, evidence that is insufficient for a criminal conviction may be sufficient for a probation revocation. Thus, the burden on the State is not as great in a revocation hearing. Lemons, supra; Gordon v. State, 269 Ark. 946, 601 S.W.2d 598 (1980). Since determination of a preponderance of the evidence turns on questions of credibility and weight to be given testimony, we defer to the trial judge’s superior position. Id.

II. Merits

At trial, West Memphis Police Officer Joseph Applegate testified that on October 12, 2000, at 2:39 a.m., he stopped a white Ford Thunderbird on Interstate 40 for speeding. He testified that upon approaching the vehicle, he smelled a strong odor of ammonia coming from inside the car. The driver gave Officer Applegate permission to search the vehicle. Both the driver and appellant, who was a passenger in the car, were placed in Office Applegate’s patrol car while he performed the search. Officer Applegate first attempted to use a drug dog to search the car; however, the dog had an abnormal alert and ran away from the car and the smell of ammonia. Officer Applegate then began conducting the search by accessing the trunk through the upper part of the back seat because the trunk key was “missing,” although it was later found underneath the passenger seat in which appellant had been sitting. Officer Applegate testified that the parties acted very nervous — more nervous than is normal during a traffic stop for speeding. When Officer Applegate opened the trunk, the strong ammonia odor caused him to vomit on the side of the road.

West Memphis Detective Vance Plumhoff testified that he arrived to assist Officer Applegate. Detective Plumhoff is certified to recognize dismantled clandestine methamphetamine laboratories. Located inside the trunk was a red plastic gas tank, which contained anhydrous ammonia. Detective Plumhoff testified that the tank was leaking, causing the ammonia to evaporate, which would indicate that the trunk had recently been opened in order to place the ammonia inside it. The red plastic container is not the approved type for transportation of anhydrous ammonia in Arkansas. Detective Plumhoff further testified that antifreeze and windshield washer fluid containers were also located in the trunk and that although carrying these items in one’s automobile trunk is in no way illegal, given the circumstances and other findings in the trunk, these items were suspicious, as antifreeze may be used to manufacture methamphetamine or transport other chemicals and the methanol in certain brands of windshield washer fluid can be used in certain forms of manufacturing methamphetamine. Additionally, an empty silver pressurized tank and sixty-six Dilantin capsules were found in the trunk, although Detective Plumhoff testified that the pills would not have been used in the manufacture of methamphetamine. Appellant’s objections to Detective Plumhoffs testimony relating how they were used were sustained by the court.

Based on the evidence presented at the revocation hearing, we cannot say that the trial court erred in finding that the State had proved by a preponderance of the evidence that appellant had constructively possessed anhydrous ammonia in an unlawful container and, therefore, violated the conditions of his suspended sentences. We have held that the State need not prove that the accused physically possessed the contraband in order to sustain a conviction for possession of a controlled substance if the location of the contraband was such that it could be said to be under the dominion and control of the accused, that is, constructively possessed. Darrough v. State, 330 Ark. 808, 957 S.W.2d 707 (1997). We have further held that while constructive possession can be implied when the contraband is in the joint control of the accused and another, joint occupancy of a vehicle, standing alone, is not sufficient to establish possession or joint possession. Dodson v. State, 341 Ark. 41, 14 S.W.3d 489 (2000). Other factors to be considered in cases involving automobiles occupied by more than one person are: (1) whether the contraband is in plain view; (2) whether the contraband is found with the accused’s personal effects; (3) whether it is found on the same side of the car seat as the accused was sitting or in near proximity to it; (4) whether the accused is the owner of the automobile, or exercises dominion or control over it; and (5) whether the accused acted suspiciously before or during the arrest. Id. Possession may be imputed when the contraband is found in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control. See Wade v. State, 267 Ark. 1101, 594 S.W.2d 43 (1980); see also Crossley v. State, 304 Ark. 378, 902 S.W.2d 459 (1991).

In this case, the trial court placed substantial emphasis on the fact that the trunk key was found underneath the seat where appellant was sitting. Since the ammonia was evaporating, the trunk would have recently been opened in order to place the ammonia inside it. As such, the fact that the key was found underneath appellant’s seat led the trial court to believe that appellant placed it there in order to delay the officer’s access to the trunk, and thus, that appellant had knowledgeable possession of anhydrous ammonia in an unlawful container. Moreover, other factors considered are the plain smell of ammonia, which was obviously so powerful that it was basically in “plain view,” and the testimony of the officers that the driver and the appellant acted “very nervous — more than is normal during a traffic stop for speeding.”

Because this was a revocation proceeding, and the burden of proof was by a preponderance of the evidence, we hold that even if there was not enough evidence to sustain a conviction for violation of the anhydrous ammonia statute, the trial court’s finding by a preponderance that appellant was in constructive possession of anhydrous ammonia being transported in an unlawful container is clearly sufficient to revoke his suspended sentences.

Affirmed.


author: w .B. “Dub” Arnold, Chief Justice. T OM GLAZE, Justice.

text:
    STATE of Arkansas v. Tiffany ASHLEY
    CR 01-774
    66 S.W.3d 563
    Supreme Court of Arkansas
    Opinion delivered February 7, 2002

      Mark Pryor, Att’y Gen., by: Kent G. Holt, Ass’t Att’y Gen., for appellant.

      Hurst Law Office, by: Q. Byrum Hurst, Jr., for appellee.
   w .B. “Dub” Arnold, Chief Justice.

The appellee, Tiffany Ashley, was charged and convicted of public sexual indecency in Garland County Municipal Court. She appealed the municipal court conviction to Garland County Circuit Court, where the trial court granted Ashley’s order for dismissal. The State appeals from the circuit court’s order granting Ashley’s motion to dismiss. Here, the State questions the trial court’s application of Ark. Code Ann. § 5-14-111(b) (Repl. 1997) to the facts at hand and not its interpretation, so the appeal must be dismissed. In so holding, it is unnecessary to reach the State’s argument that the trial court erred in ruling that the establishment has taken itself out of the statutory definition of public place or public view by hanging a bead curtain where the proscribed acts occurred.

Appellee, Tiffany Ashley, worked as an exotic dancer at Centerfold Club in Hot Springs. In May 2000, the Hot Springs Police Department conducted undercover investigations of various night clubs, including Centerfold Club. The interior of the Centerfold Club has a stage where most of the dancers employed there dance topless. The club, also, has another area that is surrounded by a curtain of beads. Ashley was arrested and charged with public sexual indecency based on an arrest warrant alleging that an undercover officer observed, at a particular angle, Ashley and another individual, inside the beaded area, as she performed a lap dance for the patron.

Prior to trial in circuit court, Ashley filed a motion to dismiss the charge of public sexual indecency against her. Following a hearing, the trial court granted her motion to dismiss the charge based on the evidence presented, and found “all acts of sexual contact, as defined by the Code, occurred in a separate area or room within which only the participants were present. The view from the main club area into the separate area or room was substantially or totally obscured.” The State contends that the trial court erred in ruling that the offense of public sexual indecency be dismissed. The State claims that the evidence presented to the trial court was sufficient to constitute consideration as a public place or in public view and, as such, the trial court should not have dismissed the charge of public sexual indecency. The State argues that because Centerfold Club is a public place, the trial court erred in ruling that the establishment’s beaded curtain area had taken itself out of the statutory definition of public place or public view. The State requests this court to vacate the circuit court’s order of dismissal, reverse, and remand the case back to Garland County Circuit Court for trial on the charge of public sexual indecency.

We must first raise the question of whether this appeal is properly before this court. Specifically, we must determine whether the correct and uniform administration of justice requires us to review this appeal. Ark. R. App. P. — Crim. 3(c). State v. Guthrie, 341 Ark. 624, 19 S.W.3d 10 (2000). In criminal cases, we accept appeals by the State in limited circumstances. State v. McCormack, 343 Ark. 285, 34 S.W.3d 735 (2000). This court has held our review of a State appeal is not limited to cases that would establish precedent. State v. Gray, 330 Ark. 364, 955 S.W.2d 502 (1997). Moreover, there is a significant and inherent difference between appeals brought by criminal defendants and those brought on behalf of the State. The former is a matter of right, whereas the latter is not derived from the Constitution, nor is it a matter of right, but is granted pursuant to Rule 3. State v. Guthrie, supra; State v. McCormack; supra. We accept appeals by the State when our holding would be important to the correct and uniform administration of the criminal law. Rule 3(c). As a matter of practice, this court has only taken appeals which are narrow in scope and involve the interpretation of law. State v. Banks, 322 Ark. 344, 909 S.W.2d 634 (1995). Where an appeal does not present an issue of interpretation of the criminal rules with widespread ramifications, this court has held that such an appeal does not involve the correct and uniform administration of the law. State v. Harris, 315 Ark. 595, 868 S.W.2d 488 (1994).

Appeals are not allowed merely to demonstrate the fact that the trial court erred. State v. Stephenson, 330 Ark. 594, 955 S.W.2d 518 (1997); State v. Spear and Boyce, 123 Ark. 449, 185 S.W. 788 (1916). Thus, where the resolution of the issue on appeal turns on the facts unique to the case, the appeal is not one requiring interpretation of our criminal rules with widespread ramification, and the matter is not appealable by the State. State v. Guthrie, supra; State v. Howard, 341 Ark. 640, 19 S.W.3d 4 (2000); State v. Gray, 330 Ark. 364, 955 S.W.2d 502 (1997); State v. Edwards, 310 Ark. 516, 838 S.W.2d 356 (1992) (“Here, the State questions the trial court’s application of our rule to the facts at hand and not its interpretation, so the appeal must be dismissed.”). This court will not even accept mixed questions of law and fact on appeal by the State. State v. Gray, supra; State v. Edwards, supra; State v. Hart, 329 Ark. 582, 952 S.W.2d 138 (1997) (“Because the issue presented in this appeal involves a mixed question of law and fact, an interpretation of our rules with widespread ramifications is simply not at issue here.”). Likewise, where an appeal raises the issue of application, not interpretation, of a statutory provision, it does not involve the correct and uniform administration of the criminal law and is not appealable by the State. State v. Jones, 321 Ark. 451, 903 S.W.2d 170 (1995); State v. Mazur, 312 Ark. 121, 847 S.W.2d 715 (1993).

Here, the State’s argument is based entirely on the application of the law to the facts and in no way raises an issue of statutory interpretation. The trial court held a hearing on Ashley’s motion to dismiss, during which the parties offered a proposed stipulation. This stipulation contained the following information:

Once inside, the Defendants, or most of them would dance topless on a stage. Located on the inside of a club would be another area which in the instance of Playmates and Centerfold is surrounded by beads as a curtain to make the area private where a dancer can perform a “lap dance.” Defendants would contend that it is difficult to observe anyone in this area; however, State’s witnesses would testify that it was possible at some angles to see from the outside what was occurring on the inside of this area.

At the hearing on Ashley’s motion to dismiss, Ashley asserted two main arguments for dismissal of the public sexual indecency charge. First, Ashley cited the definition of sexual contact being “any act of sexual gratification involving the touching, directly or through clothing, of the sex organs or buttocks or anus of a person or the breast of a female.” Ark. Code Ann. § 5-14-101(6) (Repl. 1997). Ashley contended that the Legislature specifically said a sex organ and the breast of a female, thus implying buttocks or anus of a person or the breast of a female are not sex organs. Second, Ashley declared the beaded area of the club was private, therefore she did not violate Ark. Code Ann. § 5-14-111(c). Ashley argued that the Legislature, in referring to a public place, does not mean the exact location of the place as it is referring to the general public protection from the possibility of being exposed to the viewing or to the viewing of acts that they do not want to be exposed to. Here, the beaded area is set up as a private area within the club, therefore the general public is not exposed to the area, nor do substantial numbers of people have access to the area.

The trial court also heard arguments from the prosecutor asserting that the beaded area was not a private place. The prosecutor introduced the affidavit of an undercover police officer setting out probable cause for an arrest warrant on the charge of public sexual indecency for Ashley. The affidavit included “[t]he affiant observed the defendant perform what is called a ‘private dance’ with another patron of the establishment. The defendant took the patron to a room surrounded by tassels which were being suspended by the ceiling area. ...” The State maintains that because the undercover officer could view the acts inside the beaded area, so could other members of the general public.

After the hearing, the trial court found the acts performed by Ashley occurred in a separate area or room within which only the participants were present. The view from the main club area into the separate area or room was substantially or totally obscured, therefore the sexual contact did not occur in a public place or public view. Therefore, the trial court dismissed the public sexual indecency charge against Ashley. It is from this dismissal order that the State seeks an appeal with this court. The State argues in its brief to this Court that “[t]he circuit court clearly misapplied the law in finding that the portion of the nightclub where the lap dances were being performed was not a ‘public place’. . .”

Hówever, it is clear under Arkansas law that the trial court acted within its discretion in making an evidentiary decision based on the motions, briefs in support of motions, stipulations, and oral arguments. This appeal by the State turns on the facts unique to this particular case, therefore it does not require interpretation of criminal rules with widespread ramifications. Accordingly, this Court does not accept this appeal by the State under Ark. R. App. P.— Crim. 3(c). The trial court’s order to dismiss was within its discretion, therefore we do not accept this appeal because it does not involve the correct and uniform administration of the law, only the application of the law.

Appeal dismissed.

Glaze, J., dissents.

T OM GLAZE, Justice.

If this court is unable to review this State appeal under Ark. R. App. P.—Crim. 3(c), then we might as well remove the rule from our Rules of Appellate Criminal Procedure because no State appeal will qualify. Simply stated, Rule 3 provides that if the Attorney General is satisfied that error has been committed to the State’s prejudice and that the correct and uniform administration of the criminal law requires review, the Attorney General may appeal. Here, the Attorney General has satisfied himself that error in this case has occurred, and all he needs to show is that the uniform administration of the criminal law requires review. Both the State and the defendant Tiffany Ashley stipulated to the facts in this case, which leaves our court only to interpret the applicable law covering Arkansas’s public sexual indecency statute, Ark. Code Ann. § 5-14-111 (a)(3) (Repl. 1997).

Ms. Ashley is an exotic dancer who performs a striptease and other acts at the Centerfold Club, a private business in Hot Springs, Arkansas. Based on the stipulated facts, the circuit court found that Ashley had performed a “lap dance” for a patron of the establishment that satisfied the offense’s requirement that an “act of sexual contact” had occurred. However, the circuit court held that the acts occurred in a separate area or room within which only the participants were present and the view was substantially or totally obscured. The trial court erroneously concluded the sexual contact did not occur in a public place or public view.

Section 5-14-lll(a)(3), in pertinent part, defines public sexual decency when a person, in a public place or public view, engages in an act of sexual contact. Ark. Code Ann. § 5-14-101 (Repl. 1997) defines public place, public view, and sexual contact as follows:

“Public place” means a publicly or privately owned place to which the public or substantial numbers of people have access;
“Public view” means observable or likely to be observed by a person in a public place;
“Sexual contact” means any act of sexual gratification involving the touching, directly or through clothing, of the sex organs, or buttocks, or anus of a person or the breast of a female.

In short, the trial court misinterpreted the foregoing statute in ruling Ashley’s acts were not in public view or in a public place. The commentary to § 5-14-101 states in relevant part as follows: “ ‘Public place’ is defined broadly to include any locality to which substantial numbers of people have access. ...” Moreover, the commentary provides that “ ‘public view’ includes all that can be seen by a person in a public place . . . and it is the location of the viewer, not the situs of the activity viewed, that determines the public character of the view.”

Ashley stipulated she engaged in topless dancing at the Centerfold Club where patrons paid a cover charge to enter the common area. It was from this public place that patrons could view Ashley engage in “lap dancing” with a patron behind a beaded curtain. Ashley stipulated that State witnesses would testify that it was possible for people to see the “lap dancing” act through the curtain.

Apparently, this court chooses not to interpret Arkansas’s public sexual indecency statutes. In doing so, this court tacitly allows such clubs, open to the public, to continue to operate contrary to law. This court should assume jurisdiction of this appeal and enunciate its clear interpretation of these laws.

For the above reasons stated, I would assume jurisdiction of this appeal and reverse the trial court.