author: Ray Thornton, Justice. Tom Glaze, Justice,

text:
    Kara Kathleen HUFFMAN, a Minor, and William H. Huffman, Guardians of the Person of Jacob Austen Huffman, a Minor v. John Nicholas FISHER
    98-1315
    987 S.W.2d 269
    Supreme Court of Arkansas
    Opinion delivered March 18, 1999

      Shaver & Smith, P.A., by: Tom B. Smith, for appellants.

      Killough & Ford, by: Robert M. Ford, for appellee.
   Ray Thornton, Justice.

The question presented by this appeal concerns the right of a noncustodial parent, in cases involving disputes over a child’s surname, to insist that the child bear his surname. Appellant Kara Kathleen Huffman, mother of Jacob Austen Huffman (Fisher), brings this appeal of the decision of the Cross County Chancery Court to change her son’s surname to that of his father. We reverse the decision of the chancellor and remand for further findings consistent with this opinion.

Appellant Kara Kathleen Huffman was sixteen years old and unmarried when she gave birth to a son on May 18, 1996. She named her son Jacob Austen Huffman and filed a Certificate of Birth with the Arkansas Department of Health listing appellee John Nicholas Fisher (“Nick”) as the father. In August, 1996, the Arkansas Office of Child Support Enforcement filed suit on behalf of Kara against Nick for child support. Nick filed a third-party complaint in which he admitted that he was the child’s father, and he asked that child support be set and reasonable visitation be established. He also requested that the child’s surname be changed to Fisher.

At a hearing on April 23, 1997, before the Cross County Chancery Court, several witnesses testified concerning whether the child’s surname should be changed from his custodial parent’s surname to his father’s surname. The trial court summarized the testimony and its findings in a letter opinion filed on June 3, 1997. The trial court found that Nick had not paid any child support since Jacob’s birth except for $100.00, although his parents had paid a portion of Kara’s lying-in expenses. The trial court also found that Nick had encouraged Kara, a Catholic, to have an abortion, and that he had counseled her to keep her condition from her parents. Furthermore, there was testimony that Nick had become angry with Kara for getting pregnant and that he had ridiculed her physical appearance during the pregnancy. Since Jacob’s birth, the Fishers had exercised visitation with Jacob in their home on alternate Saturdays from 10:00 a.m. until 6:00 p.m.

Nick testified at trial that he wanted Jacob’s surname to be changed to Fisher because “that’s how I grew up” and he didn’t think he, as a father, should be treated any differently because he had a child out of wedlock. He wanted the child’s name changed because there was the possibility that Kara would marry in the future and take her husband’s name, leaving Jacob with a name different from his mother’s. Finally, he stated that Jacob would be better labeled with a different name from the Huffman family that would be raising him.

Nick’s uncle testified that the Fisher family was a good family and that it would be the proper thing for Jacob to bear the Fisher name, although he could think of no advantage or disadvantage to having one name as opposed to the other. Nick’s father testified that it would be awkward for Nick to explain to others why the child bore his mother’s last name, but that such a scenario probably wouldn’t arise for Kara, and that it was only right for the child to be known as Fisher.

Kara Huffman testified that Nick had not provided her with any financial or emotional support during her pregnancy and that she had made the decision to name Jacob with her family name because he would be raised in her family and would spend his life with her. Kara further offered to retain her maiden name in the event she chose to marry in the future if it would be in Jacob’s best interest.

The trial court noted in its letter opinion that it was initially inclined to change the child’s name to Fisher based upon concerns that Jacob would experience stigma in adolescence The court also noted the applicability of our decision in Reaves v. Herman, 309 Ark. 370, 830 S.W.2d 860 (1992), where we held that there must be compelling facts to show that it would be in the best interest of the child to change his surname. Although the trial court acknowledged that under Reaves there appeared to be no compelling reason to change Jacob’s name to Fisher, it was “still convinced that, in spite of the above, that it would be in Jacob’s best interest that his surname be Fisher.”

The trial court concluded with the following explanation:

When Jacob gets older, he will be faced with the task of explaining to his friends why he does not have his father’s name. If Kara never marries and has no other children, perhaps this would not be so difficult nor embarrassing. However, if Kara remarries [sic], she may very well follow a time-honored tradition and take her husband’s name, although she is certainly not required to do so. If Jacob retains the Huffman surname, he will then not have the name of his biological father nor his biological mother. If Kara remarries [sic] and does not change her surname and she has another child, will she give that child the surname of Huffman so that he/she will have the same name as Jacob or will she give that child the surname of her husband? Certainly most, if not all, of the above is speculation. However, I believe it should be given weight. I still believe that it would be less confusing and embarrassing for Jacob if he took his father’s name . . .
A child needs a surname he can connect with for a lifetime; taking the surname of the mother opens up too many opportunities for the child to be later left without that connection.
* * * *
[T]he Reaves case is a very strong case in favor of Kara . . . We should concentrate on the use of which name will cause Jacob less embarrassment and require him to do less explaining to his friends during his adolescence and young adulthood . . .
It is my opinion that there is a compelling reason to change Jacob’s surname to Fisher. That compelling reason is stated above . . . Although this [children with the mother’s surname] happens often, it is not the norm in this locale. The norm in this locale is that the child will have the same surname as the father. Whether that is right or wrong, that is the norm in this locale. Without the surname of Fisher, Jacob will be faced with the task of explaining to his peers why his name is different. If Jacob keeps the surname of Fluffinan, and if Kara marries and takes the name of her husband, Jacob no longer has the surname of either parent. What is of importance to this court is that Jacob have a surname that he is most likely to be able to connect with one of his parents. The most likelihood of that happening is for Jacob to have the surname of Fisher.

Kara Huffman, a minor, and Jacob Huffman, by and through her parents and the guardians of the person, brought this appeal to the Arkansas Court of Appeals, alleging that the trial court erred in finding that the surname of Jacob should be changed from Huffman to Fisher because the father had failed to present any compelling facts to show that it would be in Jacob’s best interest to change the surname he had carried since birth, and requesting that the best interest rationale adopted by this court in Reaves and in McCullough v. Henderson, 304 Ark. 689, 804 S.W.2d 368 (1991) be clarified by the court to adopt a presumption in favor of the surname chosen for a child by the child’s custodial parent. The court of appeals affirmed the trial court by a tie vote, and this court accepted review of the case pursuant to Ark. Sup. Ct. R. 1-2(e)(i). We conduct our review as though the case had been originally appealed to this court. Ark. Sup. Ct. R. 1-2(e).

The use of surnames dates from the Norman conquest, when the growth of population and the development of cities required a means of distinguishing between individuals with identical given names. The Normans also introduced a number of social practices, such as the imposition of a feudal land system and the use of primogeniture as a system of inheritance, that likewise spurred the development of surnames. Gubernat v. Deremer, 140 N.J. 120, 126-127, 657 A.2d 856, 859-60 (1995)(citing Beverly S. Seng, Like Father, Like Child: The Rights of Parents in their Children’s Surnames, 70 Va. L. Rev. 1303, 1323 (1984)). The surname, however, was not as a rule inherited from the father, but was adopted or bestowed based upon one’s occupation, place of habitation, appearance, or other characteristics. Sometimes surnames expressing kinship were chosen, but “patronymics, a name derived from that of the father, was neither compelled nor universal.” Gubernat, 140 N.J. at 128, 657 A.2d at 860 (citing Smith v. U.S. Cas. Co., 197 N.Y. 420, 90 N.E. 947 (1910)). Indeed, it was not uncommon for male children, either illegitimate or the son of a highly respected or dominant married or widowed woman, to be spoken of as belonging to the mother. Id., (citing Seng, supra, at 1321-22).

It was only after the fourteenth century that surnames began to serve as hereditary family names, in part due to the contingency of inheritance of property upon an heir’s retention of the surname associated with that property. Gubernat, 140 N.J. at 129, 657 A.2d at 861 (citing Richard H. Thornton, Note, The Controversy Over Children’s Surnames: Familial Autonomy, Equal Protection and the Child’s Best Interests, 1979 Utah L. Rev. 303, 305 (1979)). A married woman in those times could not maintain suit in her own name; the male was the legal representative of the family. “The custom of patrilineal succession seems to have been a response to England’s medieval social and legal system, which came to vest all rights of ownership and management of marital property in the husband.” Id., (citing In re Schiffman, 28 Cal. 3d 640, 620 P.2d 579, 169 Cal. Rptr. 918 (1980)).

“Allowing the husband to determine the surname of their offspring was part of that system, wherein he was the sole legal representative of the marriage, its property, and its children.” Gubernat, 140 N.J. at 129, 657 A.2d at 861. “Given the secondary status afforded to women at those times, it is not surprising that the masculine lineage was chosen.” Id., (citing M.D. v. A.S.L., 275 N.J. 530, 646 A.2d 543 (1994)). “Inevitably, the institutionalized tradition of assuming the hereditary patronymic surname, and the secondary legal status of women in England, diminished the importance of the maternal surname.” Id., 140 N.J. at 130, 657 A.2d at 862. Review of history demonstrates that the American colonies’ continuation of the English patronymic custom was intrinsically linked to the historical assumption of an inferior social status of women, who belonged legally to their fathers first, then to their husbands. Married women were legally considered the equivalent of children: they could not sue or be sued, deal in property, or be bound on a contract. Gubernat, 140 N.J. at 132, 657 A.2d at 862.

However, a distinction in English common law arose with respect of a child born of unmarried parents. At common law, an illegitimate child wasfilius nullius, the son of no one, or fillius populi, the son of the people. The child had no mother or father recognized by law, and therefore had no legal rights. Because the child could not inherit property, the impetus to bear the paternal surname was diminished. Custom did not dictate the name by which an illegitimate child would be known; the child bore the name gained by reputation in the community.

Id., (citing D.R.S. v. R.S.H., 412 N.E. 1257 (Ind. Ct. App. 1980)).

By the nineteenth century, reform had begun in the consideration of the status of illegitimate children, by replacing the “child of nobody” with a legal family unit of mother and child by way of legislation awarding custody of the child to the mother, consistent with her duty to support him, as his natural guardian. Gubernat, 140 N.J. at 133, 657 A.2d at 864 (citing Secretary of Commonwealth v. City Clerk of Lowell, 373 Mass. 178, 366 N.E.2d 717 (1977)). These statutes made as law that which was already the custom — that a child born of unmarried parents would assume the mother’s surname. Id. “The broader effect of the nineteenth-century statutes was to create divergent treatment of children based upon their birth status. Children born of wedded parents received the paternal surname; children born of unwed parents received the maternal surname.” Id., 140 N.J. at 135, 657 A.2d at 864. “This assumption of matriarchal surnames paralleled the then traditional view that an unmarried woman possessed greater rights to the child as opposed to the putative father.” Id., (citing M.D. v. A.S.L., 275 N.J. at 533, 646 A.2d 543).

Fortunately, society and law have made great strides in the twentieth century, and women have overcome many of the antediluvian attitudes associated with the traditional forms of legal subordination. The General Assembly has eliminated many gender-based differences in marital and parental rights, and refocused our consideration in accordance with each child’s best interests. See, e.g., Ark. Code Ann. § 9-13-101 (Repl. 1998). The best interest of the child is determinative of most all considerations given to a court’s intrusion into the life of a child and his parents, and whl remain the dispositive consideration of this court on the issue at hand, whether the child’s surname should be changed from Huffman, the name he has borne since birth, to Fisher, at the insistence of the father. The best interest rationale has been applied by this court in two recent cases involving the surnames to be given to a child born out of wedlock.

In McCullough v. Henderson, 304 Ark. 689, 804 S.W.2d 368 (1991), Joani McCullough and Mitchell Henderson had a son out of wedlock. Joani named the child Cody McCullough and Mitchell petitioned the court to change the child’s last name to Henderson. The chancellor considered Ark. Code Ann. § 20-18-401(e)(3) (Supp. 1989), which read: “In any case in which paternity of a child is determined by a court of competent jurisdiction, the name of the father and surname of the child shall be entered on the certificate of birth in accordance with the finding and order of the court.” Ark. Code Ann. § 20-18-401(e)(3). Pursuant to this statute, the chancellor concluded that he had no choice but to give the baby its father’s name. McCullough v. Henderson, 304 Ark. 689, 690, 804 S.W.2d 368 (1991).

On appeal, we explained that:

While we agree with the chancellor that the word “shall” renders the provision mandatory, we do not read the statute as directing that the surname of the child should necessarily become that of the father. We think the statute merely states that the full name of the father and the surname of the child shall be entered on the birth certificate “in accordance with the finding and order of the court.” Nothing in the language suggests the two must be the same. In some cases the father may not even want the two names to agree. While we can conceive of instances where the child should bear the father’s name, we can conceive of as many others wherein the welfare of the child, particularly one of more advanced years, would not be well served. We believe a rule which makes the result automatic would be neither prudent nor consistent with the established traditions of the law, hence, we are unwilling to adopt a construction of the statute which produces rigidity, where such an interpretation is decidedly less than self-evident.

Id., 304 Ark. at 691, 804 S.W.2d at 369. Because the chancellor misinterpreted the relevant statute, we remanded the case for a hearing to determine the factors favoring the use of either surname. Id.

A year later, we spoke to the issue again in Reaves v. Herman, 309 Ark. 370, 830 S.W.2d 860 (1992), where we affirmed a lower court finding that there were not compelling facts shown to justify changing a child’s surname from that chosen by his mother, his custodial parent, to that of his father, who sought the name change as well as a determination of paternity. In Reaves, Carrie Herman and Chad Reaves, both seventeen, had a baby boy out of wedlock. Carrie named her son Mitchell Herman. Chad later petitioned the court to change the child’s surname to Reaves, and the chancellor denied his petition. Reaves, 309 Ark. at 372, 830 S.W.2d at 860.

On appeal, we reiterated that Ark. Code Ann. § 20-18-401(e)(3) did not require the child to bear the father’s surname, and that it was a discretionary decision based on the child’s best interest. We affirmed the chancellor’s decision to allow the child to keep his mother’s surname because the father was unwilling to accept the child until sometime after his birth; the mother testified that she had no immediate plans to marry; the mother was willing to retain her maiden name after marriage if that was a concern; and the child had borne the Herman name for nine months prior to the original order. Id. The opinion concluded

Based on the evidence presented at trial we can hardly agree with the appellant that the court abused its discretion since there are no compelling facts that show it would be in the best interest of the minor child to change the surname he has carried since birth. Accordingly, we affirm.

Id., 309 Ark. at 373, 830 S.W.2d at 861.

Most recently, the Arkansas Court of Appeals faced a similar question in Mathews v. Oglesby, 59 Ark. App. 127, 952 S.W. 2d 684 (1997), concerning a mother’s appeal of a chancery court decision to change her son’s surname from that chosen by her at his birth, Mathews, to Oglesby, that of his father. The chancellor in that case was reversed for relying upon a single consideration: the age of the child, to the exclusion of other considerations. Mathews v. Oglesby, 59 Ark. App. 127, 130, 952 S.W.2d 684, 685 (1997). The court of appeals wrote: “The mechanical application of such a policy precludes consideration of the full panoply of factors inherent in determining the best interest of a child.” Rather, “when the best interests of a child are at stake, the chancellor should look into the peculiar circumstances of each case and act as the welfare of the child appears to require.” Id.

Although we adopted the best interest rationale in Reaves and in McCullough, we have not provided sufficient guidelines to trial courts on “the full panoply of factors inherent in determining the best interest of a child,” so as to promote uniformity in the application of the law. The body of case law surrounding this inquiry has produced a compelling list of factors to be considered when addressing a petition to change the surname of a minor child. We hold that in determining the child’s best interest, which must ultimately be the controlling consideration in any change in status, the trial court should consider at least the following factors: (1) the child’s preference; (2) the effect of the change of the child’s surname on the preservation and development of the child’s relationship with each parent; (3) the length of time the child has borne a given name; (4) the degree of community respect associated with the present and proposed surnames; (5) the difficulties, harassment, or embarrassment that the child may experience from bearing the present or proposed surname; and (6) the existence of any parental misconduct or neglect. Barabas v. Rogers, 868 S.W.2d 283 (Tenn. Ct. App. 1993); Daves v. Daves, 105 Wash.2d 24, 31, 711 P.2d 314, 318 (1985); In re Saxton, 309 N.W.2d. 298 (Minn. 1981); In re Marriage of Schiffman, 28 Cal. 3d 640, 620 P.2d 579, 160 Cal. Rptr. 918 (1980); In re Harris, 160 W. Va. 422, 236 S.E.2d 426 (1977)(Harschbarger, J., concurring). See also 57 Am. Jur. 2d Name §§ 46-54 (1988).

We further hold that in order to successfully petition to change a minor child’s surname, the moving party has the burden of demonstrating that such a change is in the best interest of the child. While appellants have not specifically requested that we overrule Reaves, in response to their request to clarify the best interest rationale we have established factors for consideration by the trial court, and we have adopted the clearly erroneous standard of review. These holdings necessarily modify and clarify our holding in Reaves. Where a full inquiry is made by the chancellor of the implication of these factors and a determination is made with due regard to the best interest of the child, the chancellor’s decision will be upheld so long as it is not clearly erroneous. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. RAD-Razorback Ltd. Partnership v. B.G. Coney Co., 289 Ark. 550, 713 S.W.2d 462 (1986)(citations omitted).

In his letter opinion, the chancellor addressed the fifth factor at length: the difficulties, harassment, or embarrassment that the child may experience from bearing the present or proposed surname. He then found that the child would suffer less embarrassment and humiliation in adolescence if he took his father’s surname. The trial court’s finding, however, was based almost exclusively upon the chancellor’s perception of the “norm in the locale”; specifically, that Jacob would suffer embarrassment if he were known as Huffman because this was not the prevailing custom in the community. The record, however, does not reflect that any evidence was presented with regard to the “norm in the locale,” and in the absence of testimony presented or judicial notice of the fact that it was indeed such a custom in the area for illegitimate children to take their father’s surname, we can only surmise that the chancellor must have based his conclusion on his own opinion or observations. It is well-settled that a judge cannot be both a witness and a judge in one proceeding. See Ark. R. Evid. 605 (“The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.”).

In any event, the “norm in the locale” is not one of the factors to be considered in determining the child’s best interest, although such evidence may be relevant in determining whether the child may experience difficulties, harassment, or embarrassment from bearing a particular surname. See e.g., Clinton v. Morrow., 220 Ark. 377, 247 S.W.2d 1015 (1952)(affirming chancellor who found it was in the best interest of children to have their surname changed from their biological father’s name to their mother’s new married surname to spare the children confusion and embarrassment at school because their name was different from that of their mother). It is important here to re-emphasize that it is always the interest of the child that is paramount. The argument that it might be awkward for Nick to explain why Jacob hears the name Huffman does not carry any weight in supporting a name change. We also note that the trial court reflected on how Jacob might be affected if Kara were to marry and take her husband’s surname or have other children by her husband who might bear a different name from Jacob. Certainly, marriage and having other children in the future is a possibility for both Kara and Nick. However, such reflection on possible future events and their potential impact on Jacob is mere speculation.

In a second point on appeal, appellant asks us to adopt a presumption in favor of the surname chosen for a child by the child’s custodial parent. We have previously held that “a rule which makes the result automatic would be neither prudent nor consistent with the established traditions of the law.” McCullough, 304 Ark. at 691, 804 S.W.2d at 369. Likewise, we decline to do so in this case, on the grounds that such an inflexible resolution will not serve the best interests of the children involved. An individualized determination by the chancellor of the specific facts and relationships through thoughtful and careful consideration of the factors outlined above is required to resolve the question.

While the record before us on appeal might be sufficient to support a reversal and dismissal based upon a de novo review of the record in light of the six factors we have established, we are unwilling to do so without allowing the chancellor an opportunity to address the issue of changing Jacob’s name from Huffinan to Fisher following a full consideration of the holdings in this case. Accordingly, we reverse and remand for further consideration consistent with this opinion.

Reversed and remanded.

Arnold, C.J., Glaze and Corbin, JJ., dissenting.

Tom Glaze, Justice,

dissenting. The significance of this case is that the majority opinion changes the standard of review in equity cases where parents seek to have their surnames assigned to their child. In Clinton v. Morrow, 220 Ark. 377, 247 S.W.2d 1015 (1952), the court held chancellors have broad discretion when assigning surnames, and the court has adhered to that standard as recently as 1992. See Reaves v. Herman, 309 Ark. 370, 830 S.W.2d 860 (1992); see also McCullough v. Henderson, 304 Ark. 689, 804 S.W.2d 368 (1991). In today’s surname decision, without mentioning overruling the court’s earlier cases on this point, the majority opinion adopts the clearly erroneous standard of review, and in addition, sets forth six factors a chancellor must consider henceforth. The appellant Kara Huffinan never requested this court to change the standard of review, and as for the six factors adopted by the court, Huffinan never raised or argued those factors below.

This court’s decision to employ a clearly erroneous standard as opposed to an abuse-of-discretion one is enough to change the outcome of this case. Under the abuse-of-discretion principle, this court examines a discretionary decision made by a chancellor by deciding, as a matter of law, whether the judgment call made by the chancellor is arbitrary or groundless. Looper v. Madison Guaranty Savings & Loan Ass’n, 292 Ark. 255, 729 S.W.2d 156 (1987); c.f. Black’s Law Dictionary 5-6 (6th ed. 1990) (“[a]buse of discretion” by trial court is any unreasonable, unconscionable and arbitrary action taken without proper consideration of facts and law pertaining to the matter submitted).

In the present case, the chancellor’s ruling was anything but arbitrary, groundless, unreasonable, or unconscionable. In a six-page letter opinion, the chancellor found, among other things, that assigning appellee John Fisher’s name to the parties’ infant child, Jacob, would be less confusing and embarrassing as Jacob grew older and associated with friends. More significant, however, was the chancellor’s recognition that, because Fisher was given visitation rights with Jacob, their intermittent visits would be less awkward, and having the same name would better allow Jacob to connect with his father. Perhaps of lesser significance, the chancellor additionally found that it was not the norm in the locale for the child to have a surname different from his father’s.

Instead of deciding if the chancellor’s foregoing findings are arbitrary or groundless (as required by our prior case law), the majority court has reviewed the trial court’s findings under the clearly erroneous standard. In other words, a finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. RAD-Razorback Ltd. Partnership v. B. G. Coney Co., 289 Ark. 550, 713 S.W.2d 462 (1986) (emphasis added). By definition, this court, I'submit, is reversing the chancellor’s findings in this case even though, based on the evidence, the chancellor rendered a reasonable judgment call when he assigned Jacob his father’s surname. In sum, the majority opinion has denuded the chancellor of the greater deference given him under our abuse-of-discretion standard, and does so contrary to the Clinton, McCullough, and Reaves decisions.

The majority court’s decision to set out six factors that a chancellor must consider in surname cases may be helpful, but I disagree that, in doing so, it is necessary for this court to change its standard of review in order that these factors can be utilized by chancellors. This court has required various factor applications in other types of cases where the abuse-of-discretion standard is employed. E.g. Burns v. Burns, 312 Ark. 61, 847 S.W.2d 23 (1993) (factors are considered by chancellors when they exercise discretion in awarding alimony); and Chrisco v. Sun Indus., Inc., 304 Ark 227, 800 S.W.2d 717 (1990) (trial courts should be guided by recognized factors in determining attorney’s fees and such fees will not be set aside absent an abuse of discretion).

In conclusion, based on the record and the chancellor’s findings, I cannot say he abused his discretion in deciding Jacob’s best interests would be served by bearing Fisher’s surname. The majority’s decision to change the abuse-of-discretion standard in this case is entirely unnecessary, and in fact is procedurally barred, since no one has asked that the clearly erroneous standard be adopted in surname cases. See Parrish v. Pitts, 244 Ark. 1239, 429 S.W.2d 45 (1968) (precedent governs until it gives a result so patently wrong, so manifestly unjust, that a break becomes unavoidable.); see also Cottrell v. Cottrell, 332 Ark. 352, 965 S.W.2d 129 (1998) (argument not made at trial cannot be raised for first time on appeal). For these reasons, I would affirm.

        Huffman v. Fisher, 62 Ark. App. 174, 976 S.W.2d 401 (1998).

       In McCullough, this court actually reversed the chancellor, but the reason was because the chancellor erroneously found he had no discretion under a paternity statute to name the child other than by its father’s surname. This court disagreed, holding that the best interests of the child required the chancellor to exercise his or her informed judgment in the matter. 304 Ark. at 692, 804 S.W.2d at 369.

       The chancellor concluded, too, that confusion would result if Huffman remarried and took the surname of her husband.

       As a matter of interest, this court promulgated Ark. R. Civ. P. 52(a) which provides that the findings of fact of a trial court in a contested action shall not be set aside unless clearly erroneous. Before Rule 52(a), a circuit court’s findings had to be affirmed if there was substantial evidence to support them. Chancery court findings largely had already been subject to the clearly erroneous standard on appeal, except in certain designated cases such as alimony and child support awards. Exactly why the distinction exists in different type chancery court cases is unclear.


source: Caselaw Access Project

author: Lavenski R. Smith, Justice.

license: Public Domain

text:
    IN the MATTER of $3,166,199 Arkansas Highway Police v. Crittenden County Prosecuting Attorney’s Office; Brent Davis, Prosecuting Attorney for the Second Judicial District; and State of Arkansas, Nominal Plaintiff Below
    98-957
    987 S.W.2d 663
    Supreme Court of Arkansas
    Opinion delivered March 18, 1999

      Robert L. Wilson, Chief Counsel; and Lawrence W. Jackson, William L. Wharton, and Calvin R. Gibson, Staff Attorneys, for appellant.

      Mark Pryor, Att’y Gen., by: Kelly K Hill, Deputy Att’y Gen., for appellees.
   Lavenski R. Smith, Justice.

This is an appeal from the Circuit Court of Crittenden County and involves the seizure and forfeiture of over $3.1 million found in the course of a random search of a tractor-trailer truck on an Arkansas highway. The litigation is a dispute between state and local authorities over the proper jurisdiction for forfeiture proceedings. The case requires a first-impression interpretation of Ark. Code Ann. § 5-64-505 (Repl. 1997). We affirm in part and reverse in part.

At approximately 8 p.m. on March 7, 1998, Roberto V. Zamarripa, a truck driver, stopped at the Lehi Weigh Station on Interstate 40 in Crittenden County for a routine check by the Arkansas Highway Police (“AHP”). Upon entering the cab and sleeper section of the truck, Officer J.R. Smith (“Smith”), the searching officer, discovered alcohol, multiple log books with entry violations, and several suitcases. When Officer Smith opened the suitcases, he discovered the currency, later determined to be in the amount of $3,166,199. AHP immediately notified its headquarters, which contacted Ray Davis (“Davis”), the liaison officer for the Little Rock office of the Drug Enforcement Agency (“DEA”). Davis “adopted” the seizure pursuant to federal forfeiture law sometime between 8:30 p.m to 10 p.m. and agreed with the AHP that the DEA would process the money.

At approximately 10:20 p.m. tol0:30 p.m., Deputy Prosecuting Attorney James C. Hale, Jr. (“Hale Jr.”) arrived on the scene with his son, James C. Hale, III (“Hale III”) (collectively referred to as “the Hales”), who handles the contract with Crittenden County to pursue state forfeiture actions. The Hales arranged for the funds to be kept in a Marion bank overnight. The Hales directed AHP on proper preservation and chain-of-custody concerns regarding the seized contraband. After giving these directions, the Hales left the scene and AHP transported the money and deposited it in the Marion bank that night. The following day, a Sunday, bank employees counted the money under the supervision of AHP. AHP also conducted “shake tests” on the money to determine if drugs were present on the money.

The procedural facts are somewhat complicated. On Monday, March 9, 1998, Hale Jr. filed a notice of seizure of forfeiture against Zamarripa, the truck driver, for an “uncontested” forfeiture proceeding in Crittenden County Circuit Court. At approximately the same time, AHP retrieved the money from the bank in Marion and transported it to Little Rock to place in AHP’s vault. A dispute exists regarding whether Hale Jr. authorized the transportation and deposit of the funds in Little Rock. AHP contends that Hale Jr. authorized this action in anticipation of the DEA taking over the seizure action. The Hales contend that no such permission was given.

Sometime between March 10, 1998, and March 16, 1998, the DEA took physical custody of the money, completing its paperwork confirming the initiation of DEA proceedings by March 16, 1998. During that time, Hale Jr. filed a second notice of seizure of forfeiture against the owner of the tractor-trailer rig, Omar Saenz, on March 11, 1998.

On March 18, 1998, the Crittenden County Circuit Court entered an ex parte order based on a motion filed by the Hales. At that time, no civil or criminal drug forfeiture case was pending in federal or state court, save for the notices of seizure of forfeiture filed against Zamarripa and Saenz in the Crittenden County Circuit Court. The ex parte order directed AHP to deposit the money in a bank to be wired to the Crittenden County Prosecuting Attorney’s drug-asset account. The order also stated that the currency had been seized by AHP at the weigh station on March 8, 1998.

AHP filed a motion to vacate the order on March 20, 1998, contending that it was without notice, service, written motion, or verified pleading or affidavit as required by Ark. R. Civ. P. 65. The Hales, on behalf of the State of Arkansas, filed their complaint for forfeiture as a civil in rem action against the money, along with a notice of pending forfeiture on that same day. AHP and the United States were not joined as parties, nor did either intervene as parties to the civil in rem action. Thereafter, on March 20 and March 24, 1998, the circuit court entered agreed orders of forfeiture against Zamarripa and Saenz of which AHP had no knowledge.

AHP next filed on March 27, 1998, a motion to dismiss based on lack of jurisdiction, lack of service, lack of necessary parties, and pendency of another action or, in the alternative, an amended motion to vacate the March 18, 1998, ex parte order as that order relates to AHP. The circuit court denied AHP’s motion to dismiss on May 8, 1998, finding that it had jurisdiction over the property and that AHP became a party when it filed motions and presented evidence. The circuit court ruled, however, that AHP had no standing to challenge the order and that, despite its previous statement in the March 18, 1998, ex parte order, the Crittenden County Prosecuting Attorney, and not the AHP, was the “seizing law enforcement agent” that first seized the money. The circuit court also found that AHP no longer held the money and, therefore, could not comply with the court’s March 18, 1998, ex parte order directing AHP to turn over the money to the Crittenden County Prosecuting Attorney. The circuit court failed to rule on AHP’s motion to vacate. On May 18, 1998, AHP responded to the May 8, 1998, ruling with a motion to reconsider its motion to dismiss and motion to vacate which it claimed it filed pursuant to Ark. R. Civ. P. 12, and asked for specific findings of fact and conclusions of law. AHP also filed its first notice of appeal from the previous orders issued by the circuit court.

On June 24, 1998, AHP filed a second notice of appeal including an appeal from the previous orders and from the denial of its motion to reconsider. The circuit court did not rule on the reconsideration request. Apparently in response, the circuit court entered a judgment on July 16, 1998, finding that AHP was not a party as previously stated in its May 8, 1998, and that AHP did not have standing to object to the circuit court proceedings. The circuit court did not rule on AHP’s motions, but made findings of fact and conclusions of law regarding the proceedings in this matter. AHP filed a third notice of appeal on July 22, 1998, again appealing from the previous orders entered by the circuit court.

The United States filed a complaint of judicial forfeiture in the United States District Court for the Eastern District of Arkansas on July 27, 1998, in response to a submission of claim of ownership to the money filed by the Crittenden County Deputy-Prosecutor on June 2, 1998. The complaint of judicial forfeiture is now pending as United States v. $3,166,199, No. 98 CV-509.

In addition to its appeal from the orders of the circuit court, AHP also filed a petition for writ of certiorari or, alternatively, for prohibition and/or mandamus to the Crittenden County Circuit Court and a request for temporary relief on August 5, 1998. These petitions were denied without prejudice by this Court on September 10, 1998. Shortly thereafter on September 23, 1998, the Arkansas Attorney General’s office filed a motion to dismiss the appeal filed by AHP, arguing that AHP was not a party below and, therefore, has no standing to appeal.

Standing

The threshold issue for this appeal is Arkansas Highway Police’s standing to object to the trial court’s actions on appeal in that they were not a party to the proceedings below. The general rule regarding standing is that an appellate court cannot act upon an appeal taken by one not a party to the action below. In the Matter of Allen, 304 Ark. 222, 800 S.W.2d 715 (1990); Arkansas Dep’t of Human Svcs v. Bailey, 318 Ark 374, 855 S.W.2d 677 (1994); Quattlebaum and CBM, Inc. v. Gray, 252 Ark. 610, 480 S.W.2d 339 (1972). Under our rules party status is generally obtained by initiating an action through fifing a complaint or responding to a complaint by answer. It is also possible to become a party by intervention under Rule 24 or by joinder under Rule 19. In the instant case, none of these events is in evidence and therefore, ordinarily, AHP would not have standing to bring this appeal. However, we have recognized two other circumstances in which a nonparty may gain standing to pursue appellate review of a trial court’s orders. The first occurs when a nonparty seeks relief under Rule 60(k), which provides that an independent action may be filed to relieve a person from judgment who was not actually served with process. Arkansas Dep’t of Human Services v. Bailey, 318 Ark. 374, 885 S.W.2d 677 (1994). AHP has not sought such relief so it is inapplicable. The other circumstance is the unique set of facts where any appellant, though not a party, has a pecuniary interest affected by the court’s disposition of the matter below. In Allen, supra, this court noted that it has long recognized an exception to the general rule for one pecuniarily affected by a judgment. Arkansas State Hwy. Comm’n v. Perrin, 240 Ark. 302, 399 S.W.2d 287 (1996).

We disagree with the trial court’s determination that the “seizing law enforcement agency” was the Crittenden County Prosecuting Attorney’s Office. Clearly, the AHP was the seizing law enforcement agency as that term is used in Ark. Code Ann. § 5-64-505 (Repl. 1997). Though not specifically defined in the statute, it is apparent from the context that police rather than prosecutors are contemplated by the term. It is undisputed that AHP, for its role in the seizure, is entitled to some portion of the res pursuant to Ark. Code Ann. § 5-64-505 (k) (2) (iii). The amount will be impacted by pending litigation in this court and in federal court. We hold, therefore, that AHP has a pecuniary interest affected by the court’s action and therefore has standing to bring this appeal.

Statutory Construction

On the merits, the crucial issue before this court is the interpretation of our forfeiture statute, § 5-64-505. AHP’S first and most critical point on appeal concerns whether AHP’s seizure of the res on the night of March 7, 1998, and subsequent DEA adoption resulted in a federal seizure or state seizure. AHP contends it resulted in a federal seizure, relying upon the Eighth Circuit federal cases of Madewell v. Downs, 68 F.3d 1030 (8th Cir. 1995) and U.S. v. $12,390.00, 956 F.2d 801 (8th Cir. 1992). The appellee, on the other hand, contends that due to the “turnover” nature of our statute, a state seizure occurred and that the money remains under the jurisdiction of the circuit court. Appellees cite Seventh and Fifth Circuit cases for authority that the nature of the state statute is determinative. We agree with appellees and hold that our statute vests initial jurisdiction of the res in the circuit court of the county where seized. Any subsequent transfer of the res requires a circuit court order.

In Madewell, the Missouri State Highway Police seized $9,400 in cash incident to an arrest for drug-related charges. The defendant sought return of the currency in state court but before the state court ruled Missouri State Highway Police’s seizure was adopted by the DEA. The Missouri State Highway Police delivered the money in the form of two cashier’s checks to the DEA without any order from the court. The claimant sued in federal district court seeking return of the money, but the court held adversely to him finding that a valid federal adoption occurred. Upon review, the Eighth Circuit held the adoption effective and that it had the same effect as if the federal agency had originally seized the property on the date the local authority seized it. Id. at 1039. The court determined that the Missouri law in effect at the time of the seizure did not require a court order before the property could be turned over to federal authority. The court did note that Missouri subsequently enacted a “turnover” statute with specific language vesting jurisdiction of the seized property in state court.

AHP also strongly relies on $12,390.00, which held that a voluntary transfer from state authorities to federal authorities before institution of state court proceedings allowed the federal agency to have control of the property for purposes of forfeiture. In $12,390.00, a federal agent adopted the seizure immediately with consent of the state authorities. Id. State court proceedings were filed by the claimant but subsequent to initiation of federal administrative forfeiture proceedings. This case, like Madewell, was decided in Missouri prior to enactment of a “turnover” statute.

Appellee responds to the above cases by citing Fifth and Seventh Circuit federal cases that it contends are more apposite to the instant facts because of relevant Arkansas law. The State cites United States v. One 1979 Chevrolet C-20 Van, 924 F.2d 120 (7th Cir. 1991). In that case, local authorities in Illinois seized a van incident to an investigation of suspected drunk driving. An inventory search of the van had revealed a significant quantity of marijuana under the driver’s seat. Subsequently, the local authorities requested the Federal Bureau of Investigation to “adopt” the seizure which they did by initiating administrative forfeiture proceedings. Pursuant to applicable state law, the State of Illinois filed a complaint in state court for forfeiture of the van. Approximately one month later, the FBI filed a forfeiture action in federal district court. An Illinois federal district court upheld the adopted seizure by federal authorities but the Seventh Circuit Court of Appeals reversed. It stated, “A local police department may not take seized property and just pass it on as it pleases to the FBI in flagrant disregard of state laws mandating judicial authority for such turnovers.” Id, at 122. The court followed its own precedent and invalidated the federal adoption where a state statute put control of the res in state court and state court proceedings had commenced prior to federal court proceedings. The court stated, “If the federal authorities wanted the van, they were bound to seek a turnover order from the circuit court of the county in which the van was seized.” Id., at 123. United States v. $79,123.49 in U.S. Cash and Currency, 830 F2d 94 (7th Cir. 1987). The Fifth Circuit has also recognized that under a state “turnover” statute, it is the seizure by a state agency and not the institution of a formal proceeding which exclusively vests jurisdiction in the state court. See Scarabin v. Drug Enforcement Administration, 966 F.2d 989 (5th Cir. 1992).

Interestingly, the Illinois statute in One 1979 Chevrolet C-20 Van is almost identical to Arkansas’s forfeiture provision found at Ark. Code Ann. § 5-64-505. Our statute provides in pertinent part:

(d) Property taken or detained under this section shall not be subject to replevin, but is deemed to be in the custody of the director or seizing law enforcement agency subject only to the orders and decrees of the circuit court having jurisdiction over the property seized.

(Emphasis added.)

This statute vests authority for disposition of seized property in the circuit court. We find the holdings and rationale of the Seventh and Fifth Circuits persuasive. Although not binding on this Court, those decisions offer compelling reasoning for our holding that absent an order of the appropriate circuit court, transfer of seized property by the seizing law enforcement agency is invalid. While we disagree with and reverse the trial court’s finding that the Crittenden County Prosecutor’s Office was the seizing law enforcement agency, we affirm the court’s attempted exercise of jurisdiction over the seized property pursuant to § 5-64-505. Appellant raises many issues on appeal but these issues are essentially resolved by our interpretation of § 5-64-505 to be a “turnover” statute. Accordingly, we affirm the trial court in part and reverse it in part.

Affirmed as modified.

       II ST CH 56 ½ ¶ 712(d)


text:
    James Vernon McLENNAN v. STATE of Arkansas
    CR 98-760
    987 S.W.2d 668
    Supreme Court of Arkansas
    Opinion delivered March 18, 1999

      Brenton D. Bryant, for appellant.

      Winston Bryant, Att’y Gen., by: Kelly S. Terry, Ass’t Att’y Gen., for appellee.
   Lavenski R. Smith, Justice.

Appellant James Vernon McLennan (“McLennan”) appeals his conviction on three counts of terroristic acts, one count of aggravated assault and one count of felon in possession of a firearm from the Washington County Circuit Court. All the charges arose from an incident in which appellant fired multiple shots from a handgun into his former girlfriend’s apartment. His aggregate sentence is 540 months in the Arkansas Department of Correction. This case was certified to the Arkansas Supreme Court pursuant to Ark. Sup. Ct. R. 1-2(b)(6) for an interpretation of Ark. Code Ann. §§ 5-13-310(a)(2) (Repl. 1997) and 5-1-110(a)(5) (Repl. 1997).

Appellant raises three points for reversal on appeal. Appellant first contends that his convictions on three counts of terroristic acts rather than on one count violated his Fifth Amendment right to be free from double jeopardy. He contends that his shooting into the apartment was an uninterrupted and continuous act and not a series of three separate acts. Appellant next contends that the trial court erred in denying his motion to suppress his pretrial statements made during interrogation based on the circumstances surrounding his waiver of his constitutional rights. Finally, appellant contends that the trial court erred in overruling his objection regarding the introduction of the victim’s testimony regarding an attempted bribe by appellant to induce the victim not to testify at the trial. We find no merit in any of appellant’s contentions and affirm.

On September 23, 1997, appellant appeared at the apartment of Onita Jenkins, appellant’s former girlfriend and mother of his two children. Appellant knocked on the door, but Jenkins refused him entry. The two argued, and appellant left the premises. Appellant returned shortly thereafter and asked Jenkins to go to the back of the apartment to a kitchen window to talk. Jenkins agreed to talk but steadfastly refused him entry. After speaking to one another for a moment, Jenkins noticed that appellant had a gun. Jenkins immediately fled from the window, gathered her children and hid in the bathroom, where she called 911. During this time, appellant, after unsuccessfully attempting to fire the weapon, raised it to the window and fired three quick, successive shots through the kitchen window into the apartment. Fortunately, no one was injured by the gunshots.

Appellant was later picked up by the Fayetteville police at his current girlfriend’s house. The police arrested him and took him to the Fayetteville City Jail. On the morning of September 24, 1997, Fayetteville Police Detective Timothy Franklin questioned appellant at the Detective Division in the police department. During the interview, Officer Franklin wore his badge, but did not have his gun. At the onset of questioning, Officer Franklin read appellant his Miranda rights, and had appellant complete a “CID” form, a form which the Fayetteville Police Department regularly uses to explain and verify a suspect’s Miranda rights. Routinely, the form is read and explained by the officer, who also allows the defendant to read and initial each paragraph to verify the defendant’s understanding of his rights. Appellant completed this form during his interrogation.

After Officer Franklin and appellant completed and signed the “CID” form, Officer Franklin completed an information form by gathering information from appellant, including his name, age, social security number, address, and other pertinent data. Officer Franklin then began questioning appellant and, in doing so, began to take notes of the interview. Officer Franklin, however, ceased taking notes when appellant began taking a serious interest in what he was writing. Officer Franklin testified at a suppression hearing prior to trial that it was his practice to cease taking notes at an interrogation when a defendant pays such close attention because his experience had been that the defendant “becomes somewhat reluctant to continue parts of sentences if they feel they may have said something important.” Officer Franklin memorialized the interview by recording his report on a micro-cassette which was later transcribed into a typed report.

During the trial, Officer Franklin testified that he questioned appellant about prior criminal convictions he had in Texas, as well as the events which resulted in the current charges being brought against appellant. Officer Franklin testified that appellant denied most of the report of the incident from the day before. Onita Jenkins also testified at the trial regarding the events of September 23, 1997. Additionally, Jenkins testified that subsequent to McClennan’s arrest but prior to the trial, appellant attempted to “bribe” her into re&sing to testify by promising to pay her $700. Appellant objected to admission of this testimony but the court overruled the objection finding the testimony relevant.

At the conclusion of the trial, the jury returned guilty verdicts on all counts, including each of three counts of terroristic acts brought for each of the three shots fired into the apartment. Appellant moved for a directed verdict at the conclusion of his case and the conclusion of trial on two of the three counts of terroristic acts or, in the alternative, all of the terroristic acts, contending that it was violation of the Double Jeopardy Clause for him to be convicted on four separate offenses for one course of conduct. He appeals the court’s denial of that motion.

I. Standards of Review

In criminal- cases, this Court will affirm if there is substantial evidence to support the verdict. Smith v. State, 296 Ark. 451, 757 S.W.2d 554 (1988). The Court reviews the evidence in the light most favorable to the appellee. Id. In reviewing the validity of a statement made to the police, we review the totality of the circumstances and reverse the trial court only if its decision was clearly erroneous. Sanford v. State, 331 Ark. 334, 962 S.W.2d 335 (1998). Determining the relevancy of evidence and the probative value of that evidence against the unfair prejudice pursuant to Ark. R. Evid. 403 is within the trial court’s discretion which will not be reversed on appeal absent a manifest abuse of that discretion. Brown v. State, 54 Ark. App. 44, 50, 924 S.W.2d 251 (1996) and Hill v. State, 325 Ark. 419, 931 S.W.2d 64 (1996).

Double Jeopardy

Appellant’s first point on appeal is whether the terroristic act of shooting into an occupiable structure under Ark. Code Ann. § 5-13-310(a)(2) is a “continuous offense.” Appellant contends that Ark. Code Ann. § 5-1-110 should bar his being charged with multiple counts because the shots were part of a single impulse and thus constituted a continuous offense. Appellant contends that these multiple charges violated his Fifth Amendment right to be free from double jeopardy for being charged and tried multiple times for the same crime. In this case, the State charged appellant with three counts of terroristic act under the statute and obtained conviction on all three, one for each of the three shots he fired into the apartment.

The general rule in Arkansas is that a “continuing course of conduct crime” under Ark. Code Ann. § 5-1-110(a)(5) may only be prosecuted under one charge. Hagen v. State, 318 Ark. 139, 883 S.W.2d 832 (1994) and Smith v. State, 296 Ark. 451, 757 S.W.2d 554 (1988). A “continuing offense” is one that is a “continuous act or series of acts set on foot by a single impulse and operated by an unintermittent force.” Britt v. State, 261 Ark. 488, 549 S.W.2d 84 (1977). The test to determine if a situation involves a continuing offense is “whether the individual acts are prohibited, or the course of action which they constitute; if the former, then each act is punishable separately; if the latter, there can be but one penalty.” Id., 261 Ark. at 493, quoting Wharton, Criminal Law, 11th ed. § 34, n. 3. Put another way, “when the impulse is single, but one indictment lies, no matter how long the action may continue. If successive impulses are separately given, even though all unite in swelling a common stream of action, separate indictments lie.” Id. Examples given in Britt and cited in several subsequent cases of continuing offenses include nonsupport [Ark. Code Ann. § 5-26-401], promoting prostitution [Ark. Code Ann. §§ 5-70-104 — 106], and erecting or maintaining a gate across a public highway [Ark. Code Ann. § 5-71-214].

Appellant contends that a violation of Ark. Code Ann. § 5-13-310 “Terroristic Act” is a continuing-course-of-conduct crime, which should limit the charges against him under this statute to one charge for shooting into the apartment three times. The pertinent part of this statute states:

(a) For the purposes of this section, a person commits a terroristic act when, while not in the commission of a lawful act:
* * *
(2) He shoots with the purpose to cause injury to person or property at an occupiable structure.

Nothing in this statute defines this crime as being a continuous-course-of-conduct crime, or even gives the impression that it was created with such a purpose. One could argue that the word “shoots” includes multiple shots, but it would not be the preferred reading of the statute. There is no question that one shot would be sufficient to constitute the offense. Multiple shots, particularly where multiple persons are present, pose a separate and distinct threat of serious harm for each shot to any individual within their range. Moreover, had appellant fired his weapon and injured or killed three people there is no question that multiple charges would ensue. Each of appellant’s shots required a separate conscious act or impulse in pulling the trigger and is accordingly punishable as a separate offense.

We have previously addressed the continuous-course-of-conduct question. In Smith v. State, 296 Ark. 451, 757 S.W.2d 554 (1988), a case akin the one at bar, the defendant was convicted of seven counts of terroristic threatening in the first degree and seven counts of false imprisonment, and sentenced to a total of 252 years. In Smith, the defendant held seven people at gunpoint at his place of employment when he and his employer got into an argument. On appeal, Smith argued that his conduct was one uninterrupted event based on one impulse, so the multiple counts could not lie. However, the Court determined that terroristic threatening was not defined as a continuing offense in the statute, so Ark. Code Ann. § 5-1-110(a)(5) could not apply. In addition, the Court pointed out that had Smith shot the seven people, he would not have been convicted of only one count of murder. Smith is similar to this case now before the Court. First, the Court found in Smith that “terroristic threatening” under Ark. Code Ann. § 5-13-301 is not a continuous-course-of-conduct crime. Notably, this statute is found in the same subchapter as “terroristic act” at Ark. Code Ann. § 5-13-310. In addition, the seven counts of terroristic threatening found in Smith occurred during one “episode.” Although McLennan’s actions took place during one period of time, they should be considered separate offenses.

In Ricks v. State, 327 Ark. 513, 940 S.W.2d 422 (1997), this Court determined that rape is not a continuing offense. In Ricks, cited by the State here for analogy, the defendant was convicted on four counts of rape. On appeal, Ricks contended that he could only be convicted of one count, because rape should be a continuing-course-of-conduct crime. The Court disagreed, and determined that each episode of rape and each means of penetration during the rapes constituted different occurrences of an “impulse” to allow four counts to be sustained. In Hagen v. State, 318 Ark. 139, 883 S.W.2d 832 (1994), the defendant was convicted on three counts including terroristic threatening, battery, and attempted kidnapping, all stemming from his attempt to abduct a woman at a grocery store parking lot. The defendant argued on appeal that his conduct was a continuing course of conduct crime which should have only sustained one charge of attempted kidnapping since the other charges were included in that crime. However, this Court determined that “the evidence displayed an impulse to kidnap the victim and additional impulses to batter and threaten to kill her when she resisted the kidnapping.” Id., 318 Ark. at 141.

We hold the appellant’s firing three shots into the apartment constituted three separate terroristic acts for purposes of Ark. Code Ann. § 5-13-310, and, therefore, the trial court’s ruling is affirmed.

Miranda Waiver

Appellant next contends that the denial of his motion to suppress at a pretrial suppression hearing was reversible error. Appellant attempted to have his statements made during the police interrogation suppressed on the basis of an invalid waiver of his Constitutional rights due to the circumstances surrounding the interrogation. Appellant’s waiver of his Miranda rights is reviewed by this Court under a totality-of-the-circumstances test. Sanford, supra. The Court makes this determination by looking at the circumstances surrounding the waiver, including the appellant’s age, education, background, and intelligence. Id., 331 Ark. at 346. In using these guidelines, the Court determines whether the appellant waived his rights “with the full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” Id., quoting State v. Bell, 329 Ark. 422, 948 S.W.2d 557 (1997).

Appellant is an adult who has had experience with the criminal justice system when he was convicted of felonies and misdemeanors in Texas. Appellant argues that the circumstances surrounding his interrogation were peculiar because the police detective did not take notes or a recording of the conversation. However, the police detective did have appellant read, initial, and sign a Miranda rights waiver form at the beginning of the interview. The police detective indicated that he was under the belief that appellant understood the rights he was giving up by speaking with him.

Mixed into appellant’s Miranda waiver argument are two additional points which were raised but never argued. First, appellant cites court rules regarding the determination of the voluntariness of confessions made during a police interrogation. Generally, a custodial confession is determined to be involuntary, and the burden is on the State to show that the statement was made voluntarily, knowingly, and intelligendy. Hood v. State, 329 Ark. 21, 947 S.W.2d 328 (1997). Again, in reviewing the voluntariness of the confession, the appellate court performs a totality of the circumstances review, considering the following factors: age, education, and intelligence of the accused, lack of advice as to his Constitutional rights, length of detention, the repeated and prolonged nature of questioning, or the use of physical punishment, statements made by the interrogating officer and the vulnerability of the defendant. Id., citing Kennedy v. State, 325 Ark. 3, 923 S.W.2d 274 (1996) and Oliver v. State, 322 Ark. 8, 907 S.W.2d 706 (1995). None of the above factors raises any question regarding the circumstances of appellant’s statement. For example, appellant was an adult who had prior experience with the criminal justice system. He read, initialed, and signed a Miranda waiver form, and the interrogation only lasted approximately forty minutes at most. In addition, there is no evidence that the police detective promised anything in return for a statement. Appellant mentions the fact that his statements could not have been voluntarily made because he did not have an attorney present when he spoke with the detective. However, there is no contention by the appellant that he ever requested to have an attorney present at the questioning and, in fact, his initials and signature on the Miranda waiver form so indicate. Appellant cites Metcalf v. State, 284 Ark. 223, 225, 681 S.W.2d 344 (1984), for the proposition that “the supposed willingness to make an uncounseled statement is immaterial.” However, in Metcalf, the defendant requested the presence of an attorney, and one was not provided to him before the police began their interrogation. We find no merit to appellant’s assertion that the trial court erred in admitting his statement.

Ark. R. Evid. 403 Objection

For his final point on appeal, appellant contends that the trial court erred in admitting testimony from Onita Jenkins, the victim, regarding an attempted bribe by appellant to keep Jenkins from testifying against him at trial. This point is also meritless. Jenkins testified that appellant offered her $700 not to testify. Appellant objected at trial, claiming that such testimony was more prejudicial than probative and should be excluded under Ark. R. Evid. 403. In addition, appellant argued that this alleged offer had no relevancy to the issues before the court. Ark. R. Evid. 401 defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Rule 402 states that relevant evidence is generally admissible, but is limited by Rule 403 on grounds including prejudice.

We have previously held such testimony to be admissible as evidence of subsequent crimes or wrongs. In Henderson v. State, 322 Ark. 402, 910 S.W.2d 656 (1995), we joined other jurisdictions in holding that evidence of witness tampering is relevant and probative of consciousness of guilt. In allowing the testimony, the court, after citing similar holdings in other jurisdictions, stated, “Certainly, a factfinder is entitled to know whether a defendant attempted to thwart his prosecution by secreting a witness who had implicated him in the charged offense.” Henderson, supra at 408. The same would hold true for an attempted bribe. We hold that there was no error in admitting evidence of an attempted bribe. The judgment of the trial court in all points is affirmed.

Affirmed.


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

text:
    MINNESOTA MINING & MANUFACTURING and Old Republic Insurance Company v. Theodore BAKER
    98-1290
    989 S.W.2d 151
    Supreme Court of Arkansas
    Opinion delivered March 25, 1999

      Barber, McCaskill, Jones & Hale, P.A., by: Gail Ponder Gaines, for appellants.

      Davis, Mitchell & Davis, by: Zan Davis, for appellee.

      Rose Law Firm, by: Phillip Carroll, for amicus curiae ALCOA.

      Kaplan, Brewer & Maxey, P.A., by: Silas H. Brewer, Jr., for amicus curiae John Cook.
   W. H.“Dub” Arnold, Chief Justice.

This case is before us on petition for review from the Arkansas Court of Appeals. Appellants, Minnesota Mining & Manufacturing (3M) and Old Republic Insurance Company, appealed the Workers’ Compensation Commission’s decision that Theodore Baker is entitled to disability benefits for an occupational noise-induced hearing loss. For reversal, appellants contended that the Commission’s finding that appellee sustained a compensable hearing loss is not supported by substantial evidence and that appellee’s claim is barred by the statute of limitation. The Court of Appeals affirmed the Commission’s decision, concluding that substantial evidence existed to support the Commission’s finding that appellee proved his hearing loss was caused by his employment and that the statute of limitation cannot apply to scheduled injuries involving hearing loss where there is no loss of wages. Minnesota Mining & Mfg. v. Baker, 63 Ark. App. 160, 975 S.W.2d 863 (1998).

The appellants petitioned this Court for review, contending that only the General Assembly can create a statute of limitation and only the General Assembly can exempt a subset of cases from the statute of limitation. Appellants assert that the legislature did not exempt scheduled injury hearing loss workers’ compensation claims from the applicable statute of limitation, nor does a reading of the statute and cases interpreted mandate such a result. Appellants assert that to hold otherwise will subject the Workers’ Compensation Commission and courts to a flood of stale cases where claims are brought for no reason other than a retroactive change in law. Given the specific facts presented in this case, we agree.

Baker’s employment with appellant 3M began on August 18, 1977, and continues. On February 23, 1978, a baseline hearing test was administered to appellee, the results of which demonstrated significant bilateral hearing deficiencies. Appellee underwent subsequent tests that demonstrated no clinically significant decrease in hearing from the February 1978 baseline test through the time he filed his claim in February 1992.

Appellants contend that the Commission’s finding that Baker sustained a compensable hearing loss is not supported by substantial evidence and that it is further barred by the applicable two-year statute of limitation. We granted appellant’s petition for review because this case presents an opportunity to address the statute-of-limitation issue with regard to claims for work-related injuries where no loss of wages occurred. We also address whether there is substantial evidence to support the Commission’s determination that Theodore Baker’s injury was compensable.

It is well settled that upon a petition for review, we consider the case as though it were originally filed in this Court. ERC Contractor Yard & Sales v. Robertson, 335 Ark. 63, 977 S.W.2d 212 (1998); Frette v. City of Springdale, 331 Ark. 103, 959 S.W.2d 734 (1998); Travis v. State, 331 Ark. 7, 959 S.W.2d 32 (1998). On appeal of a workers’ compensation case from the Court of Appeals to this Court, we view the evidence in a light most favorable to the Commission’s decision, and we uphold that decision if it is supported by substantial evidence. Ester v. National Home Centers, Inc., 335 Ark. 356, 981 S.W.2d 91 (1998); Golden v. Westark Community College, 333 Ark. 41, 969 S.W.2d 154 (1998); Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997). Substantial evidence exists if reasonable minds could reach the same conclusion. Id. We will not reverse the Commission’s decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusion arrived at by the Commission. Id. The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission’s conclusion, we must affirm its decision. Id.

At the administrative hearing on his claim, Baker testified that his employment with 3M began on August 18, 1977, and that he initially was assigned to work in the bagging department where 3M’s principal product, roofing granules, are prepared for shipping. According to Baker, he began experiencing moderate to severe hearing loss within three to four months of his employment, and the hearing tests he took within the following two-month period showed significant hearing loss.

Subsequent tests, including an audiogram administered in December 1992, showed no significant change in his hearing from the results of the February 23, 1978, hearing test. Baker testified that he was transferred to another department shortly after his initial hearing examination in 1978. Documentary medical evidence corroborated Baker’s testimony regarding his hearing loss.

Dr. Daniel J. Orchik opined in a report dated June 2, 1993, that, based on the appellee’s medical records, work history, and other relevant history, Baker suffers from noise-induced hearing loss related to his employment with 3M. He noted that during the six-month period between the time he was hired and the time of his first audiological exam, the appellee was exposed to workplace noise as high as ninety-nine decibels without the benefit of any hearing protection. Appellee worked an average of forty-seven hours weekly, including some twelve-hour shifts. Dr. Orchik agreed that appellant’s audiogram results did not change significantly between his baseline or initial test in February 1978 and the test he underwent in December 1992. He concluded that Baker suffered 46.25 percent impairment in the left ear, 38.8 percent in the right, and binaural impairment of 39.82 percent.

Appellant 3M contends that because appellee did not experience a significant decrease in his hearing after the February 1978 baseline audiogram, the Commission could not find that his hearing loss is related to his employment. It is well established that it is within the Commission’s province to weigh all the medical evidence and to determine what is most credible. Ester v. National Home Centers, Inc., 335 Ark. 356, 981 S.W.2d 91 (1998); see also, McClain v. Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34 (1989). The Court of Appeals held, and we agree, that Dr. Orchik’s opinion, coupled with Baker’s testimony that he did not have a hearing impairment prior to becoming employed by 3M, and the fact that he was transferred from the bagging station, 3M’s noisiest job site, shortly after his first hearing test, constitute substantial evidence to support the Commission’s finding that appellee proved his hearing loss was caused by his employment with 3M.

Appellants next contend that Baker’s claim was barred by the statute of limitation. It is undisputed that appellee’s hearing deficiencies were established and known following hearing tests administered on February 23, 1978. The parties also agree that appellee has not suffered any loss of earnings because of the injury.

The case at bar presents an issue of first impression for this Court because whether the statute of limitation applies to scheduled injuries has yet to be decided by this Court. The beginning point in interpreting a statute is to construe the words just as they read and to give them their ordinary meaning. Arkansas Dept. of Health v. Westark Christian Action, 322 Ark. 440, 910 S.W.2d 199 (1995). The basic rule of statutory construction is to give effect to the intent of the legislature, making use of common sense. Office of Child Support Enforcement v. Harnage, 322 Ark. 461, 910 S.W.2d 207 (1995); Arkansas Dept. of Health v. Westark Christian Action, 322 Ark. 440, 910 S.W.2d 199 (1995). Statutes relating to the same subject should be read in a harmonious manner, if possible. L.H. v. State, 333 Ark. 613, 973 S.W.2d 477 (1998); City of Ft. Smith v. Tate, 311 Ark. 405, 844 S.W.2d 356 (1993). All legislative acts relating to the same subject are said to be in pari materia and must be construed together and made to stand if they are capable of being reconciled. Id.

Because appellant filed his claim in February 1992, the commencing of the statute of limitation is controlled by Arkansas Code Annotated § 11-9-702(a)(1) (1987), which provides:

Time for Filing. (1) A claim for compensation for disability on account of injury, other than an occupational disease and occupational infection, shall be barred unless filed with the Commission within two (2) years from the date of injury.

We have held that the time of injury means when an injury becomes compensable, not the date of the accident. Donaldson v. Calvert-McBride Ptg. Co., 217 Ark. 625, 232 S.W.2d 651 (1950). Following this Court’s 1950 decision in Donaldson, we held that a claimant’s injury did not become a compensable one until he suffered a loss of earnings. Disability, which is compensable under our statute, is based upon incapacity to earn because of injury. Arkansas Louisiana Gas Co. v. Grooms, 10 Ark. App. 92, 661 S.W.2d 433 (1983). For purposes of commencing the statute oflimitation under § 11-9-702(a)(1), an “injury” is not to be construed as “compensable” until (1) the injury develops or becomes apparent and (2) the claimant suffers a loss in earnings on account of the injury. Thus, the statute of limitation does not begin to run until both elements of the rule are met. Hall’s Cleaners v. Wortham, 311 Ark. 103, 842 S.W.2d 7 (1992).

In a majority of jurisdictions, the statute of limitation generally begins to run on a workers’ compensation claim for alleged hearing loss when the claimant is aware of his injury and aware that the injury is causally related to the working environment. See 4 Larson, Workers’ Compensation Law, App. A-2C-1(1997). However, Arkansas is technically a “compensable injury” state. Hall’s Cleaners, supra.

Appellants contend that the legislature surely did not intend that a gradual-onset occupational, noise-induced hearing loss would not have an applicable statute of limitation. This is so, according to appellants, because gradual-onset hearing loss by its very nature will generally not result in time missed from work or in a loss of earning capacity. We agree.

As the Court of Appeals correctly held, because the permanent injury suffered by appellee in this case affects only his hearing, the permanent injury may be reduced to a scheduled injury. See Federal Compress & Warehouse Co. v. Risper, 55 Ark. App. 300, 935 S.W.2d 279 (1996), and Anchor Const. Co. v. Rice, 252 Ark. 460, 479 S.W.2d 573 (1972).

Arkansas Code Annotated § 11-9-521 (a) (16) (1987) provides:

(a) An employee who sustains a permanent injury scheduled in this section shall receive, in addition to compensation for the healing period, weekly benefits in the amount of the permanent partial disability rate attributable to the injury, for that period set out in the following schedule:
(16) loss of hearing of both ears, one hundred fifty-eight (158) weeks [.]

Compensation for an injury scheduled in Ark. Code Ann. § 11-9-521 (a) is payable to the injured worker without regard to subsequent earning capacity. These benefits are awarded more in the nature of an indemnity for physical or functional loss and are payable whether the worker is employed or unemployed and irrespective of what his wages or earning capacity may be. Rash v. Goodyear Tire & Rubber Co., 18 Ark. App. 248, 715 S.W.2d 449 (1986).

As the Court of Appeals acknowledged, Professor Larson, in his treatise on workers’ compensation law, sets forth the following reasons for awarding scheduled benefits:

Under most acts, if an injury has left the claimant with a permanent bodily impairment, compensation for a specified number of weeks is payable without regard to presence or absence of wage loss during that period.
[T]hese payments are not dependent on actual wage loss. This is not, however, to be interpreted as an erratic deviation from the underlying principle of compensation law that benefits relate to the loss of earning capacity and not to physical injury as such. The basic theory remains the same; the only difference is that the effect on earning capacity is a conclusively presumed one, instead of a specifically proved one based on the individual’s actual wage-loss experience. (Emphasis added.)

4 Larson, Workers’ Compensation Law, § 58 (1997).

The Court of Appeals held that it is “clear that the legislature intended that compensation for scheduled injuries be awarded without regard to the statute of limitations in § 11—9-702(a)(1) Minnesota Mining & Mfg. v. Baker, 63 Ark. App. at 167, 975 S.W.2d at 867. They further held that disability benefits for compensable injuries under other sections of the workers’ compensation act continue until the employee’s healing period has ended, and compensation for injuries scheduled by statute are limited to the period scheduled and do not extend until a cure is effected. Continuing, they held that in cases involving scheduled injuries, it is clear that a loss in earnings has no effect on the award of benefits. This is so, because the benefits are awarded in the nature of an indemnity for bodily impairment. They decided that if the court were to decide that the statute of limitation applies to scheduled injuries, the result would be that the injury would not become compensable until a loss in earnings occurred. In that case, workers such as the appellee who have not experienced a loss of earnings would never satisfy the requirements of a compensable injury. With this holding, we cannot agree.

Any statute of limitation will eventually operate to bar a remedy, and the time within which a claim should be asserted is a matter of public policy, the determination of which lies almost exclusively in the legislative domain, and the decision of the General Assembly in that regard will not be interfered with by the courts in the absence of palpable error in the exercise of the legislative judgment. Owen v. Wilson, 260 Ark. 21, 537 S.W.2d 543 (1976); Hamilton v. Jeffrey Stone Co., 25 Ark. App. 66, 752 S.W.2d 288 (1988). We cannot agree with the Court of Appeals that the General Assembly intended no statute of limitation for scheduled injuries. As previously stated, statutes relating to the same subject should be read in a harmonious manner, if possible. L.H. v. State, 333 Ark. 613, 973 S.W.2d 477 (1998); City of Ft. Smith v. Tate, 311 Ark. 405, 844 S.W.2d 356 (1993). All legislative acts relating to the same subject are said to be in pari materia and must be construed together and made to stand if they are capable of being reconciled. Id. Arkansas Code Annotated §§ 11-9-702(a)(1) (1987) and 11-9-521(a)(16) (1987) can easily be read harmoniously when applying the Larson theory.

The Court of Appeals cited Larson’s treatise on Workers’ Compensation Law for the proposition that for scheduled injuries, compensation for a specified number of weeks is payable without regard to the presence or absence of wage loss during that period and that the effect on earning capacity is a conclusively presumed one, instead of a specifically proved one based on the individual’s actual wage-loss experience. This theory means that a claimant seeking benefits for a scheduled injury is not required to prove a loss of earnings or earning capacity in order to be entitled to compensation. The impact on a claimant’s earnings or earning capacity is conclusively presumed.

Applying this theory to the two-prong test recited in Hall’s Cleaners, supra, a work-related noise-induced hearing-loss injury does not become compensable until (1) the injury develops or becomes apparent and (2) the claimant suffers a loss in earnings on account of the injury, which loss is conclusively presumed. Because the statute of limitation does not begin to run until both elements of the rule are met, and because of the conclusive presumption as to loss of earnings, which satisfies the second element, the statute of limitation with respect to work-related noise-induced hearing loss begins to run when the hearing loss becomes apparent to the claimant.

Here, appellee became aware of his hearing loss in February 1978. The statute of limitation began to run in February 1978, and because his hearing did not continue to deteriorate, appellee’s claim became time-barred in February 1980, pursuant to Arkansas Code Annotated § 11-9-702(a)(1) (1987). Although appellee’s claim may well be meritorious, we cannot extend the time for him to file his claim by some twelve years. The burden of filing a claim within the statute of limitation is on the claimant. Plunkett v. St. Francis Valley Lumber Co., 25 Ark. App. 195, 755 S.W.2d 240 (1988); St. John v. Arkansas Lime Co., 8 Ark. App. 278, 651 S.W.2d 104 (1983). The court cannot extend the period of the statute of limitation on appeal, despite the fact that a claim may be meritorious. Miller v. Everett, 252 Ark. 824, 481 S.W.2d 335 (1972).

We thus conclude that although substantial evidence existed to support the Commission’s finding that appellee proved his hearing loss was caused by his employment, appellee’s claim is barred by the applicable statute of limitation.

Reversed.