author: Tom Glaze, Justice. Steele Hayes, Justice,

text:
    ARKANSAS COUNTY, Arkansas v. Travis BURRIS, On Behalf of Himself and Other Similarly Situated Citizens and Taxpayers of Arkansas County, Arkansas
    91-132
    825 S.W.2d 590
    Supreme Court of Arkansas
    Opinion delivered March 2, 1992

      Robert Dittrich, for appellant.

      Gibson & Deen, by: Thomas D. Deen, for appellees.
   Tom Glaze, Justice.

This case involves the validity of Ordinance 89-262 enacted on March 23, 1989, by the Arkansas County Quorum Court. The ordinance established a waste collection system for the unincorporated areas of the county. After the ordinance’s enactment, the appellee challenged the assessment and collection of the waste fee as an illegal exaction. Relying upon the case of Freeman v. Curry, 299 Ark. 263, 772 S.W.2d 586 (1989), the chancellor agreed the fees were illegal, enjoined collection of the fees and ordered their refund.

The legality of the county’s ordinance centers on Section IV of that enactment where the quorum court directed the county judge to present to the county’s collector and assessor a list of the names of all residents in the unincorporated areas who had failed to pay the assessed waste fee and penalty. The provision further mandated the assessor to include those fees and penalties on the residents’ personal property tax statements as a special charge to be paid upon the payment of their taxes. Under the ordinance, the collector then is mandated to require full payment of the unpaid waste charges and penalties prior to accepting the residents’ payment of personal property taxes. The issue in this appeal is whether the Arkansas County Quorum Court was authorized by law to collect a waste fee by imposing it as a surcharge on the personal property taxes the residents of the county must pay. We hold that, at the time the Arkansas County Quorum Court provided for such a collection method, by enacting Ordinance 89-262, it was not authorized to impose the fee and penalty in the manner it did.

First, we agree with the county’s argument that the Freeman case is not entirely dispositive of the issue we must resolve. There, the Cleveland County Quorum Court established a solid waste disposal authority under Act 699 of 1979, codified in Ark. Code Ann. §§ 14-233-101 to -121 (1987), and Act 742 of 1977, as amended, known as the Arkansas County Government Code and codified in Ark. Code Ann. §§ 14-14-101 to -1313 (1987). We held the county validly created its waste disposal authority under Act 699, but failed to meet the procedural requirements of Act 742, which provided the authority through which the county would impose mandatory fees and collect delinquent charges. See Section 106 of Act 742 [§ 14-14-708 to-711 (1987)]. Section 106 of Act 742, particularly § 14-14-708, provides for the establishment of a subordinate service district through which a county can provide a number of different services including solid waste services. Section 106, codified at § 14-14-711(d), specifically empowers a subordinate service district to enter service charges (waste fee charges) on real and personal property taxpayer notices and in turn requires the collector to accept payment of such property taxes only when the service charge has been paid. This same provision further provides that if a property owner fails to pay the service charge, the charge becomes a lien on the owner’s property.

We said in Freeman that Cleveland County failed to avail itself of the powers granted subordinate service districts under Act 742 because the county did not meet the notice or public hearing requirements or allow the taxpayers the opportunity to invoke the special referendum procedures provided under the act. Such requirements, we concluded, were predicate to the city’s imposing a lien on a taxpayer’s property. 299 Ark. at 265-266, 773 S.W.2d at 588; see also Section 106 of Act 742, as amended by Act 874 of 1981, codified in § 14-14-711(d) (1987).

Unlike in Freeman, the county here, in enacting Ordinance 89-262, made no mention of Act 742, but instead argues it proceeded under Act 237 of 1971 [Ark. Code Ann. §§ 8-6-201 to -217 (1987)], Act 238 of 1971 [Ark. Code Ann. §§ 14-232-101 to -114 (1987)] and Act 473 of 1977 [Ark. Code Ann. § 14-20-109 (1987)]. These acts preceded Act 742 and, in various ways, authorized counties to establish solid waste disposal facilities and assess fees for the collection of such refuse and waste. See in particular §§ 8-6-212, 14-20-109 and 14-232-103 and 232-110. In its enactment of Act 742, the General Assembly never specifically repealed any of these three acts. However, when Arkansas County enacted its ordinance, none of these acts it chose to proceed under expressly authorized a county to use a taxpayer’s personal property statement as a means to collect delinquent waste fees. Only Act 742 provided for such a collection measure, and Arkansas County concedes it specifically rejected the idea of proceeding under that act.

In further reading of the three acts the county says it followed, only one, Act 238 (§ 14-232-110), actually authorizes mandatory fees the county requires by Ordinance 89-262, and none of them (unlike Act 742) set out any specific method by which the fees are to be collected. At best, Act 238 (§ 14-232-103(b)) empowers a county to prescribe, by order or ordinance, reasonable rules and regulations necessary or appropriate, to collect and dispose of refuse. Otherwise, the three acts merely provide a county can fix reasonable (or appropriate) fees for the collection of such refuse.

Although Arkansas County contends the general or non-specific langauge contained in the acts it proceeded under is sufficient to support the use of the personal property tax laws to collect waste fee assessments, this court has held that a quorum court has no legislative powers other than those expressly directed or permitted. Walker v. Washington, 263 Ark. 317, 564 S.W.2d 513(1978). Clearly, Arkansas County points to no authority, and we know of none, that expressly directs or permits it to enforce payment of waste fees by preventing taxpayers from paying their personal property taxes without first showing a receipt that they had paid their waste fee charge.

The county cites the case of Geurin v. City of Little Rock, 203 Ark. 103, 155 S.W.2d 719 (1941), which illustrates the foregoing point well. There, the City of Little Rock passed an ordinance that provided for the collection of city waste, fixed a schedule for the service and set a penalty in the nature of a fine for violating the ordinance. This court upheld the penalty aspect of the Little Rock ordinance stating the General Assembly, in enacting Section 9589, Pope’s Digest [now codified in Ark. Code Ann. § 14-54-103 (1987)], granted to the cities the power to prevent anything dangerous within their corporate limits. In fact, § 14-55-601 (1989) (formerly Section 9544, Pope’s Digest), specifically authorizes cities to impose fines, forfeitures and penalties to enforce ordinances enacted for such purposes. Of course, if Arkansas County had provided in its ordinance for fines as a means to enforce its collection of waste, such a method of enforcement, having been authorized by the General Assembly, would have been valid. Instead, the county chose to enforce its waste service fees through use of tax liens and in depriving taxpayers of their motor vehicle licenses, which have been enforcement measures reserved for the state for other purposes. Again, the General Assembly simply has not provided counties with these measures or authority.

Recently, the General Assembly amended Act 237 (§ 8-6-211 and 212) by enacting Act 1007 of 1991, which expressly provides county government, particularly county collectors, with the authority to use tax records and real and personal property lien laws to enforce collection of unpaid waste fees. Act 1007’s enactment supports the appellee’s argument that, if Arkansas County and other such government entities had already had the powers expressly given them by this new act, then the General Assembly’s action would appear superfluous. Nonetheless, until Act 1007, the county had no express statutory authority to provide by ordinance for the collection procedures it did by enforcing waste fee payments by patching into existing statutory penalty provisions the state employs when collecting personal property taxes. For example, under Ordinance 89-262, taxpayers failing to pay their waste fee charges cannot pay their personal property tax, and as a consequence, their property is subject to seizure and sale plus penalties, Ark. Code Ann. § 26-36-206 (1987), they cannot obtain their motor vehicle licenses, Ark. Code Ann. § 27-14-1015 (Supp. 1991), and they are prevented from paying their general real estate taxes, Ark. Code Ann. § 26-35-601 (1987). If counties are to acquire the use and benefit of these coercive statutory provisions, the General Assembly is the body that must give them such authority. Because Arkansas County had no authority in 1989 to enact Section IV of Ordinance 89-262, we affirm the trial court’s order enjoining the county from collecting the fees and penalties under the ordinance.

Finally, Arkansas County argues that, even if the waste fees constituted illegal exactions, the trial court erred in ordering refunds to all the taxpayers. It contends that refunds should be given only those taxpayers who can establish their payment of the residential waste collection fee was made as a prerequisite to payment of personal property taxes. In sum, the county argues the ordinance contains a severability clause, and the fee assessment portion of the ordinance should survive, leaving the question which taxpayers are entitled to refunds. Appellee points out that the county never presented this argument below, and our search of the record confirms appellee’s assertion. If such an issue were involved, the county had the duty of pointing it out to the trial court, with appropriate proof, and that court should have been given an opportunity to rule on the issue. B & P, Inc. v. Norment, 241 Ark. 1092, 411 S.W.2d 506 (1967); Mid-South Ins. Co. v. First National Bank of Fort Smith, 241 Ark. 935, 410 S.W.2d 873 (1967).

For the above reasons, we affirm the trial court’s decision.

Hays, J., dissents.

Steele Hayes, Justice,

dissenting. Each county in Arkansas is required by law to provide a method of waste collection to handle solid waste within and near its boundaries. For many years Arkansas County complied with this mandate by placing dumpsters at various points throughout the county for its rural residents. This method of collection was funded entirely by federal revenue sharing funds and was provided at no expense to the citizens of Arkansas County. In 1988 federal funds were no longer available so the county contracted with a private individual to provide a voluntary waste collection systems for its rural residents. However, in February of 1989 the private contractor notified the county that because of operating losses he was discontinuing the collection service. Thus, Ordinance 89-262 was enacted at a time when Arkansas County was faced with the mandatory obligation to provide solid waste collection, had no funds available for that purpose and knew from recent experience that a voluntary service was not feasible.

The majority contends the ordinance is invalid because the Arkansas County Quorum Court has no power to impose the fee and penalty in the manner it did. Yet, the majority cites no authority for that holding, merely concluding that “if counties are to acquire the use and benefit of these coercive statutory provisions, the General Assembly is the body that must give them such authority.” To the contrary, it is clear that Arkansas County was entitled to enact Ordinance 89-262 under the police power of the municipality. Without the benefit of such power no municipality could adequately safeguard the health, safety, or general welfare of its citizens.

I believe the decision in Geurin v. City of Little Rock, 203 Ark. 103, 155, S.W.2d 719 (1941) is controlling. In Geurin the City of Little Rock passed an ordinance for the collection of waste within the city which fixed a schedule of fees for the service and provided a penalty for violating the ordinance. Geurin was convicted in municipal court for violation of the ordinance. On appeal he challenged the city’s power to enact such an ordinance and contended the ordinance was void because it levied an illegal tax and made failure to pay the tax a criminal offense. This court held that the city’s police power to protect the health of its citizens authorized the procedure chosen. Arkansas Code Ann. § 14-54-103 (1987); see also Ark. Code Ann. § 14-55-102 (1987). The court explained the derivation and importance of a municipality’s police power:

It is said in 11 Amer. Juris., § 245: “The police power is an attribute of sovereignty and a necessary attribute to every civilized government. It is a general term used to express the particular right of a government which is inherent in every sovereignty. Consequently, it is inherent in the states of the American union, possessed by every one of them as sovereign, and is not a grant derived from or under any written Constitution. In connection with this latter principle, the point of view has been expressed that the police power is a grant from the people to their governmental agents. It has also been affirmed, however, in discussing the source of the power, that the right of the Legislature to exercise the police power is not only not referable to any single provision of the Constitution, but inheres in, and springs. from, the nature of our institutions; and so the limitations upon it are those which spring from the same source, as well as those expressly set out in the Constitution. It is very generally regarded not as a delegated, but a reserved, power.
“The police power is as old as the civilized governments which exercise it. The states existed before the Constitution of the United States, and they possessed the police power before the adoption of that organic document. Moreover, it has been held many times that the Constitution supposes the pre-existence of the police power, and must be construed with reference to that fact. . . . Moreover, it has been said that the very existence of government depends on it as well as the security of the social order, the life and health of the citizen, the enjoyment of private and social life, and the beneficial use of property.”
One of the most important fields of legislation that may be enacted under the police power is that of regulations in the interest of public health. If a city could not enact laws of this sort to protect the health of its citizens, any kind of disease might be permitted to spread among the inhabitants, resulting in great damage. It would be useless to undertake to review, or even collect, the many authorities on this subject; but it is generally held that measures of this nature may be enacted.

Id. at 108, 155 S.W.2d at 721.

Courts have held that the power to protect the health of the citizens of a municipality is broader than other powers. Charles S. Rhyne, The Law of Local Government Operations § 19.68 (1980). Furthermore a municipality’s exercise of police power is free from any liability for compensation for private losses resulting from it. 6A Eugene McQuillan, The Law of Municipal Corporations § 24.06 (3rd ed. 1988). This is so because their injury or damage is treated “as damnum absque injuria or, in other words, as being compensated by their sharing in the general benefits therefrom.” Rhyne, supra, § 19.19. Arkansas has embraced this tenet. Springfield v. City of Little Rock, 226 Ark. 462, 290 S.W.2d 620 (1956) (stating that violation of police power duties subjects municipalities only to political consequences and not civil liability).

The duty to exercise police power where there is a public need for it is within the sound discretion of municipal authorities and the courts will not interfere except for abuse of discretion. Id. The Arkansas County Quorum Court properly exercised its police power in addressing a condition which plainly jeopardized the health of its citizens. Therefore, I am of the opinion the ordinance is valid and the chancellor erred in enjoining the collection of fees for the waste collection system and in ordering their refund.

       The Arkansas General Assembly has since enacted Act 1007 of 1991, which authorizes making the waste fee a lien on the taxpayer’s real and personal property.

       Section 106 was repealed by Act 919 of 1979, but reenacted by Act 874 of 1981 with some change in its purposes subsection (3).

       “We have many times announced the rule that: counties, cities and towns,. . .are municipal corporations [.]” City of Hot Springs v. Gray, 215 Ark. 243, 219 S.W.2d 930 (1949).


source: Caselaw Access Project

author: Tom Glaze, Justice.

license: Public Domain

text:
    Clyde Elvis WALKER v. STATE of Arkansas
    CR 91-86
    825 S.W.2d 822
    Supreme Court of Arkansas
    Opinion delivered March 2, 1992

      Hartenstein Law Firm, by: J. Blake Hendrix, for appellant.

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

Appellant appeals from his convictions of two counts of capital murder for which he received two consecutive life sentences. Appellant’s convictions resulted from charges filed pursuant to Ark. Code Ann. § 5-10-101 (a)(1) (Supp. 1991) alleging that, while armed with a gun, he and four others robbed Art’s Liquor Store, and during the course of the robbery, appellant or one of his accomplices caused the deaths of the store owner, Thomas Findley, and an employee, Charlotte Fowler. Appellant argues five points for reversal, but none of them have merit. Thus, we affirm.

We first consider appellant’s argument that the trial court erred in failing to grant his motion for directed verdict. This court treats a motion for a directed verdict as a challenge to the sufficiency of the evidence. Owens v. State, 300 Ark. 73, 777 S.W.2d 205 (1989). In review of a denial of a motion for directed verdict, the appellate court considers the evidence in the light most favorable to the appellee and considers only testimony in support of the verdict. Id.

The state clearly met its burden of proving the elements of capital murder-robbery under § 5-10-101 (a)(1). In a statément, appellant admitted that he and one of his accomplices, Prince Johnson, each had a gun when they entered Art’s Liquor Store. Three others stayed in a car parked outside with one or two of its doors open. While appellant’s statement reflected he had no knowledge that Johnson intended to rob or kill anyone, appellant acknowledged that, at some point, perhaps even before the robbery, he had understood or thought Johnson and one of the other men in the car had planned to rob the store. Nevertheless, after appellant and Johnson entered the store, appellant apparently asked Findley or Fowler for potato chips and then heard shots. Johnson then asked appellant to get the money out of one of the cash registers, which he die. It was at this stage, or immediately afterwards, that the appellant claims he first learned Johnson had killed Findley and Fowler. They left the store, entered their car and sped away. Later, the stolen money was split between the five men.

We have repeatedly held that a person need not take an active part in a murder to be convicted if he accompanies another who actually, commits the murder, and he assists in the commission of the crime — in this case, the crime of robbery. White v. State, 298 Ark. 55, 764 S.W.2d 613 (1989). The state’s evidence clearly supports the verdict finding the appellant guilty of capital murder.

As an affirmative defense to the capital murder charge, appellant contends the evidence showed he did not commit the homicidal act or in any way solicit, command, induce, procure, counsel or aid in its commission. Ark. Code Ann. § 5-10-101 (b) (Supp. 1991). Once the state has met its burden of proof as to the elements of the offense, the burden is on the defendant to prove an affirmative defense. Moss v. State, 280 Ark. 27, 655 S.W.2d 375 (1983). We have held that a defendant is required to prove an affirmative defense by a preponderance of the evidence, and the question as to which way the evidence preponderates is primarily a jury question. Owens, 300 Ark. 73, 81, 777 S.W.2d 205, 209.

Here, appellant claims he was unaware Johnson planned to rob or kill anyone, and although he and Johnson bore guns upon entering the liquor store, he denied having displayed or used his gun in the homicides. The jury, or course, did not have to believe appellant’s story, especially when he acknowledged thinking Johnson and another accomplice had planned to rob the store. However, it was Johnson and appellant, not another accomplice, who left the car with its doors standing open as though stationed for a fast getaway. Further, it was appellant who entered the store with Johnson. Appellant then preoccupied the man (Findley) at one cash register by offering to pay for chips, and at this time, Johnson apparently killed both Fowler and Findley. Again, while appellant denied knowing what Johnson was doing when the homicides occurred, the state’s evidence showed both victims had been shot within close range (within two or three feet), thus, if believed, placed appellant near Johnson at the time Johnson began shooting. Based upon these facts, the jury could have reasonably concluded the appellant aided Johnson in killing the two victims.

Appellant next argues error resulted from the deputy prosecutor misstating the law to the jury regarding appellant’s affirmative defense. As mentioned above, a defendant, under § 5-10-101(b), is provided an affirmative defense in a robbery-capital murder case when the defendant was not the only participant and if the defendant did not commit the homicidal act or in any way solicit, command, induce, procure, counsel, or aid in its commission. See Owens, 300 Ark. 73, 80, 777 S.W.2d 205, 209.

In closing argument, the deputy prosecutor misspoke, indicating the appellant had not met his burden regarding his affirmative defense because the evidence showed he aided in the robbery. Appellant objected, correctly explaining to the trial judge that all appellant had to show was that he did not aid in the commission of the homicides. The judge agreed, and asked how appellant wanted to cure the deputy prosecutor’s misrepresentation. Appellant responded, requesting the judge to “read the instruction and say the homicide offense.” The judge said, “The instructions there. You [deputy prosecutor] drop your argument.” Appellant concluded by thanking the judge.

Later, the trial judge told appellant that he believed rereading the affirmative defense instruction would be unavailing since the jury would be given the instruction when it deliberated. The judge added the he would reread AMCI 101 or, within reason, do anything else the appellant might suggest. Although appellant preferred the affirmative defense instruction be reread, he told the judge to reread AMCI 101, which the judge did. Appellant never moved for a mistrial until after the verdict. By then, appellant’s motion was untimely. Dumond v. State, 290 Ark. 595, 721 S.W.2d 663 (1986). In addition, the appellant cannot agree with a ruling of the trial court and then attack that ruling on appeal. Gilbert v. State, 277 Ark. 61, 639 S.W.2d 346 (1982).

Appellant next argues his statement should have been suppressed by the trial court because the statement was the product of an illegal stop and detention. Several days after an arrest warrant was issued for appellant for his role in the Findley and Fowler homicides, appellant was eventually found with a friend who was stopped by a police officer for a traffic violation. Actually, appellant’s friend, Keisha Mitchell, was driving and appellant and another male were passengers when Mitchell was stopped for a moving violation. The officer asked Mitchell for identification and why she was not in school, and when he asked appellant for the same information, appellant gave an alias and added that he went to Central High. After the officer attempted to call the school authorities at Central High, appellant changed his story, stating he had been expelled from J. A. Fair High School. Because appellant (and his male friend) had lied, the officer decided to take them to the precinct. On the way, appellant informed the officer that the police were looking for him. The officer promptly instructed him to remain quiet. After arriving at the precinct, the appellant was read his Miranda rights, and he then gave his statement.

Clearly, there is nothing to indicate a pretextual stop of Mitchell’s car, and once stopped, the officer had the right to detain any unsupervised school-age student located off school premises. Ark. Code Ann. § 6-18-221(c) (Supp. 1991). Under § 6-18-221(d), an officer has the authority, among other things, to take a student to the police department when the student fails to produce sufficient documentation. In view of the appellant’s various misrepresentations, the police officer acted properly in all respects.

Appellant also contends the trial court erred in prohibiting him from presenting evidence in support of his motion to dismiss for double jeopardy. His first trial on these capital murder charges resulted in a mistrial, but appellant claims jurors at that trial told him that, while jurors were unable to reach a verdict on lesser charges, the jury members all decided appellant was not guilty of the capital murders. Appellant concedes those jurors were never polled.

The trial judge in this case ruled it was improper to continue the trial to permit appellant to obtain the presence of the jurors who sat on the first trial, so they could testify on what appellant characterizes as a “partial verdict.” Although appellant refers to a “partial verdict” when discussing the murder charges, the short answer to his argument is that the first trial resulted in a hung jury which produced no verdict at all. No double jeopardy issue exists, and the trial court did not abuse its discretion in denying appellant’s motion for continuance. Stone v. State, 290 Ark. 204, 718 S.W.2d 102 (1986).

For his last argument, appellant attempts to raise a Batson issue, and argues the state violated his equal protection rights by peremptorily challenging jurors solely on account of their race. Appellant is black.

In Batson v. Kentucky, 476 U.S. 79 (1986), the court held that a defendant who could make a prima facie case of purposeful discrimination shifts the burden to the state to prove the exclusion of jurors is not based on race. Our court has explained that a prima facie case may be made (1) by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose, (2) by demonstrating total or seriously disproportionate exclusion of blacks from any jury venires, or (3) by showing a pattern of strikes, or questions and statements by a prosecuting attorney during voir dire, White v. State, 298 Ark. 55, 764 S.W.2d 613 (1989). Appellant failed in proving a prima facie case of purposeful racial discrimination.

Here, four black jurors were seated. Thus, black members represented one-third of the members on the jury, yet the county had only a twenty to twenty-two percent black racial mix. In addition, the prosecutor still had peremptory challenges remaining at the end of voir dire.

Appellant also fails to point to any questions or statements by the deputy prosecutor in appellant’s attempt to show purposeful discrimination. He does contend that the deputy prosecuting attorney used more of his peremptory challenges to exclude black veniremen who equivocated on whether they would impose the death penalty than on white jurors voicing the same reluctance. Appellant fails to set out any colloquy hearing on his claim, and our reading of juror responses concerning the death penalty issue does not necessarily support appellant’s charge that the rion-black jurors were reticent to return a death sentence. Finally, even though appellant failed to make a prima facie case, the state offered the racially neutral reason that the black jurors peremptorily struck expressed difficulty with applying the death penalty. The record is wholly inadequate to support a Batson claim.

In accordance with Ark. Sup. Ct. R. 11 (f), the record of the proceedings has been examined, and the court has determined that there are no rulings adverse to appellant which resulted in prejudicial error. For the reasons set out above, we affirm the trial court’s rulings and judgment.


author: Donald L. Corbin, Justice.

text:
    Michael GILMER v. STATE of Arkansas
    CR 91-111
    824 S.W.2d 343
    Supreme Court of Arkansas
    Opinion delivered March 2, 1992

      Roger McMillan, for appellant.

      Winston Bryant, Att’y Gen., by: Clementine Infante, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant Michael Gilmer was convicted by a Crittenden County jury of being a felon in possession of a firearm. The jury sentenced appellant to twelve years imprisonment, and the court sentenced appellant to an additional twenty years upon revocation of a previously imposed ten year suspended sentence for appellant’s prior burglary conviction. Appellant argues two points for reversal: 1) that the trial court erred in allowing the state to introduce appellant’s prior felony convictions; and, 2) that the trial court erred in sentencing appellant to twenty years upon revocation of a previously suspended ten year sentence on appellant’s prior burglary conviction.

We do not reach the merits of appellant’s arguments because of his complete failure to abstract the record. Grisso v. State, 297 Ark. 546, 763 S.W.2d 661 (1989); Bryant v. Lockhart, 288 Ark. 302, 705 S. W.2d 9 (1986). In the absence of an abstract, we cannot review the circumstances surrounding the introduction of appellant’s prior conviction, nor can we ascertain what evidence was before the trial court at appellant’s revocation hearing. In Bryant, we held that we will not entertain an appeal which completely ignores the abstract requirement. We reiterate that this court cannot continue to operate efficiently if each justice must look at the record to ascertain the facts. Id.

Affirmed.


author: Robert L. Brown, Justice.

text:
    Dewayne WITHERS v. STATE of Arkansas
    CR 91-226
    825 S.W.2d 819
    Supreme Court of Arkansas
    Opinion delivered March 2, 1992

      James P. Clouette, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

On June 20, 1991, the appellant, Dewayne Withers, was convicted at a bench trial of possession of cocaine with intent to deliver and sentenced to life imprisonment as a habitual offender. The appellant had also been charged with possession of marijuana, but the circuit court merged that charge into the felony conviction at time of sentencing. The appellant now appeals his sentence on the basis that it was improperly enhanced due to lack of evidence of prior convictions and, further, that any conviction for possession of marijuana should be void. The points raised are without merit, and we affirm.

We turn first to the appellant’s argument that he was improperly sentenced as a habitual offender. Withers was charged as a multiple offender with four or more felony convictions. Following the finding of guilt on the cocaine charge, this colloquy among the court, defense counsel, and the appellant ensued:

THE COURT: The Court finds the defendant guilty. Priors?
DEFENSE COUNSEL: More than four, your Honor.
THE COURT: Mr. Withers, have you got four or more prior felony convictions?
THE DEFENDANT: Yes, sir.
THE COURT: Did you have an attorney in each of these?
THE DEFENDANT: Yes, sir.
THE COURT: The Court finds he’s a habitual offender with four or more.
DEFENSE COUNSEL: Judge, I know the Court’s somewhat limited in its sentencing. That’s one of the reasons — I knew what the testimony was going to be — I tried so strongly to advise Dewayne and his mother to take what I considered to be a very good offer, especially a Class Y. He is currently doing a twenty-five year sentence on a Y felony which he will have to do three-quarters of and flatten out. There will be no parole, as is whatever he gets on this one.
THE COURT: What’s the range here?
DEFENSE COUNSEL: Forty to life.
PROSECUTOR: Forty to life, your Honor.
THE COURT: You want another forty or you want life consecutive?
PROSECUTOR: The State picks life, Judge. This is his third cocaine prior.
DEFENSE COUNSEL: Your Honor, on the twenty-five that he’s doing, he’s going to do somewhere around fourteen or so years. And he is a young — I mean he’s only twenty-three. I know he’s made a lot of mistakes. And I’ve represented him before a lot of times. And I have tried very hard to get him to plead guilty this time. I’ve never really had a problem with him before if he did it as far as being straight. But he has contended this one, whatever he gets he gets, but it wasn’t his and he’s just not going to take it.
I’d ask the Court to consider just giving him forty. That surely is going to take care of him long enough, Judge.
THE COURT: It’s tempting. Forty would probably be less time than — I mean life would probably [be] less time than forty because if I gave him forty I’d stack it and it’s another Class Y. If [I] give him life, it’s life. He’s going to be there until they commute it. So, they’ll just run it concurrently with this. So, whenever they commute the life, that’s what he’s going to have to do. And he chose the lesser of two evils in my judgment but life is life.

This colloquy makes it patently clear that not only did the appellant fail to object to the circuit court’s finding that he had four or more felony convictions, but he and his defense counsel also both admitted to the prior record, and his defense counsel then argued for leniency. Based on an earlier statement by the deputy prosecutor at trial, she was prepared to offer a pen pack as evidence of the appellant’s record but understandably believed it to be unnecessary in light of these admissions. Moreover, during the appellant’s case-in-chief, the appellant admitted on direct examination that he had a record and then testified to felony convictions for burglary, theft of property, possession of cocaine, felon in possession of a firearm, and a second possession of cocaine. We further note that, after the trial, the appellant filed a petition to reconsider his life sentence, but in that petition he did not contest the validity of the previous convictions.

We have long been resolute in holding that a contemporaneous objection is a prerequisite to our review except in very limited instances that do not apply to the case at bar. See e.g., Smart v. State, 297 Ark. 324, 761 S.W.2d 915 (1988); Hughes v. State, 295 Ark. 121, 746 S.W.2d 557 (1988); Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986); Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). Otherwise, this would give rise toa basic unfairness in that the trial court would be foreclosed from considering the point of error raised on appeal. We are not willing to reverse our oft-stated position on this issue, and we reiterate our endorsement of the contemporaneous objection rule yet again.

The appellant cites us to three rules for the proposition that contemporaneous objections are not required to preserve the issue for review where there is prejudice to the appellant:

The Supreme Court need only review those matters briefed and argued by the appellant provided that where either a sentence for life imprisonment or death was imposed, the Supreme Court shall review the entire record for errors prejudicial to the right of the appellant.

Ark. R. Crim. P. 36.24.

When the sentence is death or life imprisonment, the Court must review all errors prejudicial to the appellant. Act 333 of 1971; Ark. Stat. Ann. § 43-2725 (Supp. 1973). To make that review possible the appellant must abstract all objections that were decided adversely to him in the trial court, together with such parts of the record as are needed for an understanding of the objection. The Attorney General will make certain that all objections have been so abstracted and will brief all points argued by the appellant and any other points that appear to him to involve prejudicial error.

Ark. Sup. Ct. R. 11(f) (in part).

Nothing in this rule precludes taking notice of errors affecting substantial rights although they were not brought to the attention of the court.

Ark. R. Evid. 103(d).

The appellant misreads these rules. None of them absolves the party at trial from making the appropriate objection as a prerequisite to our review, and we have so held. See, e.g., Fretwell v. State, supra; Wicks v. State, supra. Rule 11 (f) of the Arkansas Supreme Court Rules and Rule 36.24 of the Arkansas Rules of Criminal Procedure both require review of the record for error in life and death cases, but this review presupposes that an objection was made at trial. And, as was noted by this court in Wicks, Ark. R. Evid. 103(d) at best is limited to evidentiary matters and in any case does not impose an affirmative duty on the appellate courts to review such matters for the first time on appeal. Again, there was no objection made by the appellant regarding his criminal record at trial.

For his second point, the appellant advances the argument that the circuit court’s pronouncement concerning the misdemeanor charge for marijuana possession was error. The circuit court stated at sentencing that the marijuana charge “merges into the felony.” Though it is somewhat unclear what the circuit court meant by this, the appellant did not object to the circuit court’s ruling, and he is now foreclosed from raising the issue on appeal under the considerable authority adduced above. We further observe that since the conviction is not a matter of record and no sentence was meted out in connection with the charge, there is no prejudice shown by the appellant resulting from the circuit court’s ruling.

An examination of the record has been made in accordance with Ark. Sup. Ct. R. 11 (f), and it has been determined that there were no rulings adverse to the appellant which constituted prejudicial error.

Affirmed.


author: Lonnie R. Beard, Special Justice.

text:
    Jim C. PLEDGER, Commissioner of Revenues, et al. v. BRUNNER AND LAY, INC., et al.
    90-293
    825 S.W.2d 599
    Supreme Court of Arkansas
    Opinion delivered March 2, 1992

      Beth B. Carson, Revenue Counsel, for appellant.

      Hilburn, Calhoun, Harper, Pruniski & Calhoun, Ltd., by: Carrold E. Ray & Dorcy Kyle Corbin, for appellee.
   Lonnie R. Beard, Special Justice.

This case involves what has been styled as an illegal exaction action brought by the named appellees in their own behalf and as representatives of classes of taxpayers similarly situated. The specific transactions involved in this case were purchases, by the named appellees, of a used airplane, a used motor vehicle, and a used mobile home. All three items were purchased outside of Arkansas for use in this state, and the Arkansas Department of Finance and Administration has imposed or has sought to impose a use tax on these transactions.

Linder the Arkansas sales and use tax exemption scheme in effect at the time of the transactions involved in this case, the purchases at issue herein would have been exempted from the Arkansas use tax if an Arkansas sales or use tax had been imposed with respect to any prior sale or purchase of the airplane, motor vehicle, or mobile home. Moreover, the purchase of the motor vehicle and mobile home would have been exempted if they had previously been registered with the Arkansas Department of Motor Vehicles, regardless of whether an Arkansas sales or use tax had been imposed with respect to a prior sale or purchase of the item.

This is an appeal from the decision of the Pulaski County Chancery Court, First Division, Chancellor Lee A. Munson. The Chancellor ruled that the Arkansas sales and use tax exemption scheme discriminated against the named appellees and class members in violation of the equal protection provisions of the Fourteenth Amendment and discriminated against interstate commerce in a manner prohibited by the commerce clause of the Constitution of the United States. The Chancellor enjoined collection of the use tax from the taxpayers represented in the certified classes who had not yet paid the tax, and ordered that class members who had already paid the tax be permitted to seek refunds if such claims were not barred by the applicable statute of limitations.

Appellants, a class of defendants representing State, county, and municipal taxing authorities, challenge these rulings and in addition raise several procedural issues, principally involving the propriety of the class certifications. We find it unnecessary to address the procedural issues in detail, because we disagree with the Chancellor’s rulings on both the equal protection and commerce clause issues. Reversed and remanded.

I

Appellee Brunner & Lay, Inc.

Appellee Brunner & Lay, Inc. is a Delaware Corporation which has a manufacturing and sales facility located in Springdale (Washington County), Arkansas. On April 4, 1984, Brunner & Lay, Inc. purchased a used airplane in Massachusetts for $825,000 from another corporation. The corporate seller had originally purchased the airplane new, and had paid a Massachusetts use tax on that original purchase. However, no Massachusetts sales tax was paid with respect to the sale to Brunner & Lay, Inc.

After audit, the Arkansas Department of Finance and administration proposed an assessment of a four percent State and a one percent (subject to a $25 limit) Washington County use tax with respect to the storage and use of the airplane in Arkansas. The proposed assessment of the State use tax was made under a general use tax provision levying an excise tax on the “privilege of storing, using, or consuming within this State any article of tangible personal property purchased for storage, use, or consumption in this state. . . ,” A credit against the Arkansas use tax would be allowable for any sales or use tax paid by Brunner & Lay, Inc. to another State with respect to the purchase of the airplane, but since no such tax was paid, no credit against the Arkansas use tax is available.

If the airplane had been purchased in Arkansas it would generally have been subject to comparable State and county sales taxes. Exemptions from both the Arkansas sales and use taxes would have been available, however, if an Arkansas sales or use tax had been imposed with respect to a previous sale of the airplane, but no exemption or credit was allowable for sales or use taxes paid to other States with respect to prior sales of the airplane.

Brunner & Lay, Inc. objected to the proposed assessment, and the Arkansas use tax has not been assessed or paid.

Appellee Robert Wilkinson

On December 12, 1985, Robert N. Wilkinson, a resident of Lee County, Arkansas, purchased a used automobile in Tennessee. A Tennessee sales tax had been imposed when the automobile had originally been purchased new in Tennessee, but no Tennessee sales tax was imposed with respect to the sale to Mr. Wilkinson.

On bringing the automobile to Arkansas, Mr. Wilkinson paid a four percent State and a one percent county (subject to a $25 limit) use tax at the time he registered the automobile in Arkansas. A credit would have been allowed to Mr. Wilkinson if he had paid a sales or use tax to another State with respect to his purchase of the automobile.

If the automobile had been purchased in Arkansas, it would generally have been subject to comparable State and county sales taxes. However, the purchase of the automobile in Arkansas would have been exempted from the sales tax if an Arkansas sales or use tax had been imposed on a prior sale of the automobile.

Wilkinson subsequently filed a claim for refund of the tax, but such claim was denied.

Bobby and Georgia McLaughlin

On August 3, 1984, Bobby and Georgia McLaughlin, residents of Nashville, Arkansas, purchased a used mobile home in Oklahoma. The McLaughlins paid a four percent Arkansas use tax at the time the mobile home was registered in Arkansas. A credit would have been allowable against the Arkansas tax for any sales tax paid to Oklahoma with respect to the purchase, but since no such sales tax was paid, no credit was allowable.

The mobile home would generally have been subject to a comparable sales tax if the purchase had been made in Arkansas, but an exemption would have been allowable with respect to both the Arkansas sales and use tax if an Arkansas sales or use tax had been imposed on a previous sale of the mobile home.

No administrative claim for refund was filed by the McLaughlins.

II

Procedure

Appellants raise several procedural issues concerning the propriety of the class certifications below and the nature of the actions. Appellants conclude that “only Appellee Brunner & Lay, Inc. and its class of post-suit airplane purchasers, and Appellee Wilkinson have standing to prove this case.” Even if this court were to agree with this conclusion, a matter we need not decide, the issue of the constitutional validity of the general sales and use tax exemption scheme in question would still be properly before this court. Because we believe our disposition of the constitutional issues would have a similar impact whether the class of appellees is as broad as certified by the Chancellor or as narrow as claimed by the appellants, we decline to rule on the propriety of the class certifications.

Ill

Equal Protection

The Chancellor concluded that the Arkansas sales and use tax exemptions scheme impermissibly discriminated against out-of-state purchases, for use or storage in Arkansas, of used airplanes, motor vehicles, and mobile homes. In the Chancellor’s view, there were two fatal distinctions made in the exemption scheme between sales of used airplanes, motor vehicles, and mobile homes in Arkansas and purchases of such used items outside of Arkansas for use or storage in this State.

First, the essential thrust of the Arkansas sales and use tax exemption scheme was to exempt sales and purchases of used airplanes, motor vehicles, and mobile homes with respect to which an Arkansas sales or use tax had been imposed on a previous sale or purchase. If, for example, a new motor vehicle (or airplane or mobile home) were sold in Arkansas and an Arkansas sales tax paid with respect to that sale, a subsequent sale of that motor vehicle (or airplane or motor home) was exempt from both the Arkansas sales and use tax. Under this scheme most sales of used motor vehicles in Arkansas were exempted from an Arkansas sales or use tax because, as a practical matter, an Arkansas sales or use tax would usually have been previously paid when the motor vehicle had originally been sold new in Arkansas.

On the other hand, if, for example, a used motor vehicle (or airplane or mobile home) were purchased in another State for use or storage in Arkansas, it would generally not be exempted from the Arkansas use tax, even if a sales or use tax of another State had previously been imposed with respect to the original sale of the motor vehicle when it was new, since the Arkansas exemption was generally available only where an Arkansas sales or use tax, not that of some other State, had been imposed with respect to a prior sale or purchase of the motor vehicle.

The second fatal distinction, in the view of the Chancellor, made by the Arkansas sales and use tax exemption scheme was relevant only to sales and purchases of used motor vehicles and mobile homes. Sales or purchases of these items, but not airplanes, was exempted from an Arkansas sales or use tax if the motor vehicle or mobile home had previously been registered with the Arkansas Department of Motor vehicles, regardless of whether a prior sale of such items had been subjected to an Arkansas sales or use tax. For example, if a motor vehicle were purchased new in another State by a resident of that State for use there, that sale would not be subject to an Arkansas sales or use tax. If the purchaser subsequently moved to Arkansas and registered the motor vehicle (or motor home) with the Arkansas Department of Motor Vehicles, no sale or use tax would be imposed at the time of registration because the registration itself would not be a taxable event under the Arkansas sales and use tax provisions. A subsequent sale of the motor vehicle after registration in Arkansas would then be exempted from an Arkansas sales or use tax even though no such Arkansas tax had ever been imposed on a prior sale or purchase of the vehicle.

We address these distinctions separately, since only the first is potentially applicable to sales and purchases of all three types of properties (airplanes, motor vehicles, and mobile homes) involved in this case.

The Supreme Court of the United States has often said that “States have large leeway in making classifications and drawing lines which in their judgment produce reasonable systems of taxation.” See Williams v. Vermont, 472 U.S. 14, 22; 105 S.Ct. 2465, 2471; 86 L.Ed.2d 11, 19 (1985). The Arkansas sales and use tax scheme which exempts sales of used airplanes, motor vehicles, and mobile homes with respect to which an Arkansas sales or use tax was imposed on a prior sale or purchase will be upheld against an equal protection challenge “if the legislature could have reasonably concluded that the challenged classification would promote a legitimate state purpose.” Wil liams v. Vermont, supra, 472 U.S. at 22-23; 105 S.Ct. at 2471; 86 L.Ed.2d at 19. The parties in this case did not argue nor did the Chancellor conclude that a higher standard of scrutiny was required to evaluate the Arkansas sales and use tax scheme.

As this court recently reiterated, the “power to tax necessarily implies the power to discriminate in taxation.” Bosworth v. Pledger, 305 Ark. 598, 608; 810 S.W.2d 918, 922 (1991). This court will presume that the challenged classification will promote a legitimate State purpose, and thus pass equal protection muster, if there is “any conceivable set of facts to uphold the law’s rational basis. . . .” Bosworth v. Pledger, 305 Ark. at 608; 810 S.W.2d at 922-923. We can presume a legitimate State purpose from either the actual reasons for the legislative classification or from reasons we can hypothesize. Bosworth v. Pledger, 305 Ark. at 608; 810 S.W.2d at 923.

Appellants advanced the theory that the exemption for used motor vehicles and motor homes with respect to which an Arkansas sales or use tax had been imposed on a prior sale or purchase was intended to lessen the burden on lower income residents of Arkansas who are more likely to seek transportation or shelter through purchase of a used motor vehicle or mobile home. Appellants suggested that the exemption for airplanes with respect to which an Arkansas sales or use tax had previously been imposed was simply another of the many credits and incentives the Arkansas legislature has granted to businesses, that lessening the tax burden with respect to sales and purchases of used aircraft would make such aircraft more affordable to Arkansas businesses, and make businesses which could utilize aircraft more competitive.

’he Chancellor rejected these arguments and concluded that no legitimate State purpose was served by basing an exemption on whether a prior sale of the airplane, motor vehicle, or mobile home had been subject to an Arkansas sales or use tax. If helping the poor and helping Arkansas businesses by making used motor vehicles, mobile homes, and airplanes more affordable was to be the purpose of the sales and use tax exemptions, concluded the Chancellor, “[t]hese state purposes would have been better served by exempting all sales and purchases of used airplanes, motor vehicles and mobile homes.” (Emphasis added.)

The Chancellor’s conclusion reflects an overly restrictive view of the scope of the legislative discretion in exercising its taxing powers, and ignores the competing interests the legislature must balance in determining whether and to what extent to exercise those taxing powers.

Taxing all sales and purchases of airplanes, motor vehicles, and mobile homes, including those that may have been subjected to one or more prior Arkansas sales or use taxes would obviously maximize the revenue raising potential of sales of such items. On the other hand, exempting all such sales and purchases from the Arkansas sales and use tax would maximize the objective of making motor vehicles and mobile homes more affordable to the lower income residents of this State, and airplanes more affordable to Arkansas businesses which could utilize them.

However, this court will not force the legislature to choose between these competing considerations as if they were all-or-nothing, mutually inconsistent, objectives. We believe the legislature could engage in a rational balancing of objectives.

Although the sales and use tax is a transactional tax rather than a property tax, the tax nevertheless becomes part of the tax history of a particular item. The legislature could have rationally concluded that a particular motor vehicle’s use of the State’s roadways, a mobile home’s benefit from police and fire protection, and an airplane’s use of the State’s airport facilities throughout their respective useful lives in Arkansas justify taxing at least one sale or purchase of such items as a means of raising revenues.

That the legislature also determines that considerations of equity to lower income residents and a wish to encourage the growth of Arkansas businesses mitigate against taxing additional, sequential sales and purchases of airplanes, motor vehicles, and mobile homes is a choice within its rational discretion.

The second fatal distinction made in the sales and use tax scheme, in the view of the Chancellor, existed only with respect to motor vehicles and mobile homes. Sales of such were exempted from the Arkansas sales and use tax if they had been previously registered with the Arkansas Department of Motor Vehicles whether or not an Arkansas sales or use tax had been paid on a prior sale or purchase of the item. The reason for this distinction, we hypothesize, was one of administrative convenience, coupled, again, with considerations of equity. The language of the exemption with respect to motor vehicles, we believe, supports this hypothesis, in providing that it is the intent of the legislature to exempt motor vehicles which have already been subjected to a sales or use tax “as evidenced by previous registration in the State of Arkansas.” Ark. Code. Ann. § 26-52-510(b)(2) (1987). (Emphasis added.)

The initial registration of a motor vehicle or mobile home in Arkansas was the point at which Arkansas taxing authorities insured the enforcement and collection of any applicable, yet unpaid, Arkansas sales or use tax. On the other hand, that initial registration would be an appropriate point for insuring the collection of the sales or use tax only if the registration accompanied a sale or purchase of a motor vehicle or mobile home which would properly be subject to an Arkansas sales or use tax. If a motor vehicle or mobile home were purchased out of this State in a transaction not properly subject to an Arkansas sales or use tax, and the purchaser subsequently moved to Arkansas and registered the motor vehicle or motor home, no Arkansas sales or use tax would have been due at the time of registration. The registration itself is not the taxable event under the sales and use tax scheme, only the point at which any properly imposed but unpaid Arkansas sales or use taxes would be collected.

It appears that the Arkansas legislature might have taken one of three possible approaches to the potential “loophole” of exempting previously registered motor vehicles and mobile homes regardless of whether an Arkansas sales or use tax had been imposed with respect to a prior sale or purchase. First, it could have imposed a tax on the initial act of registration itself where no Arkansas sales or use tax had been properly payable on a prior sale or purchase of that particular motor vehicle or mobile home. A tax on the act of registration itself was upheld by the highest court of West Virginia with respect to the registration of a motor vehicle in that State even though the motor vehicle had been purchased out of state by a nonresident who subsequently moved to West Virginia, and even though no credit was given against the registration tax for the sales tax paid on the purchase in the other State. See J.C. Penney Co., Inc. v. Hardesty, 264 S.E.2d 604 (W.Va. 1979).

Second, the legislature could have eliminated the focus on the initial registration as the point at which any properly imposed but unpaid Arkansas sales and use taxes would be collected. Thus, a sale or purchase of a motor vehicle or mobile home could be subjected to an Arkansas sales or use tax if ho such tax had been imposed on a prior sale or purchase of the item even if the particular motor vehicle or mobile home had previously been registered in Arkansas.

The third approach, and the one chosen, was to tie the collection of a properly imposed Arkansas sales or use tax to the initial registration only. Potential justifications for this choice are not difficult to discern. If the first registration were not the point at which unpaid sales or use taxes were collected, those who purchased a used motor vehicle or mobile home would not be able to simply rely on a prior registration in Arkansas as evidence of an exemption from the sales or use tax. The legislature could have rationally concluded that the administrative burden of having to ascertain the actual prior sales and use tax history of a particular motor vehicle or mobile home each time a new owner sought to register it outweighed any potential revenue loss resulting from simply relying on a prior registration in Arkansas for proof that the exemption were applicable.

Commerce Clause

The Chancellor determined that the same two distinctions inherent in the Arkansas sales and use tax exemption scheme that denied appellees as a class equal protection under the laws also discriminated against interstate commerce in violation of the commerce clause of the Constitution of the United States. Because sales and purchases of used airplanes, motor vehicles, and mobile homes were generally exempted from the Arkansas sales and use tax only where an Arkansas sales or use tax had been imposed with respect to a prior sale or purchase or, in the case of motor vehicles and mobile homes, if the item had previously been registered with the Arkansas Department of Motor Vehicles, the Chancellor concluded that “The effect of Arkansas’ sales and use tax scheme is to favor Arkansans who wish to dispose of their used property over similarly situated residents of other states who wish to dispose of the same types of used property.”

The commerce clause “has served as the battleground for the majority of use tax litigation.” The Supreme Court over forty years ago noted that “The history of this problem is spread over hundreds of volumes of our Reports.” Freeman v. Hewitt, 329 U.S. 249, 252; 67 S.Ct. 274, 276; 91 L.Ed. 265, 271 (1946). More recently the court has referred to its commerce clause cases “as a ‘quagmire’ of judicial responses to specific state tax measures. . . .” American Trucking Associations, Inc. v. Scheiner, 483 U.S. 266, 280; 107 S.Ct. 2829, 2838; 97 L.Ed.2d 226, 241 (1987).

The court first upheld a general use tax scheme as a counterpart to a State’s general sales tax scheme in Henneford v. Silas Mason Co., Inc., 300 U.S. 577; 57 S.Ct. 524; 81 L.Ed. 814 (1937). Ironically, the premise of that decision seemed to be that the typical use tax is not a tax on interstate commerce at all. “The tax is not upon operations of interstate commerce, but upon the privilege of use after commerce is at an end.” 300 U.S. at 582; 57 S.Ct. at 526; 81 L.Ed. at 818.

However, the notion that a typical use tax need not be evaluated in terms of commerce clause limitations was at least impliedly rejected by Halliburton Oil Well Cementing Company v. Reily, 373 U.S. 64, 83 S.Ct. 1201; 10 L.Ed.2d 202 (1963). This case, on which the Chancellor principally relied, struck down a Louisiana use tax as applied to an out-of-state purchase of a used airplane for use in Louisiana. The purchase would have qualified for an “isolated sales” exemption if the sale had taken place in Louisiana, but there was no equivalent exemption under the use tax for similar out-of-state purchases. The court said that “The conclusion is inescapable; equal treatment for in-state and out-of-state taxpayers similarly situated is the condition precedent for a valid use tax on goods imported from out-of-state.” 373 U.S. at 70; 83 S.Ct. at 1204; 10 L.Ed.2d at 207. The court indicated that the effect of limiting the isolated sales exemption to in-state sales only “is to favor local users who wish to dispose of equipment over out-of-state users similarly situated.” 373 U.S. at 73-74; 83 S.Ct. at 1206; 10 L.Ed.2d at 209.

Halliburton, however, is not the last word on what is required for a use tax to satisfy commerce clause limitations. The Supreme Court in Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 97 S.Ct. 1076, 51 L.Ed.2d 326 (1977) set out a four-part test to be applied in determining the constitutionality under the commerce clause of a Mississippi gross receipts tax imposed on the privilege of doing business in Mississippi. Under this test a tax affecting interstate commerce would be valid if it (1) “is applied to an activity with a substantial nexus with the taxing State”, (2) “is fairly apportioned”, (3) “does not discriminate against interstate commerce”, and (4) “is fairly related to the services provided by the State.”

This court has accepted that the Complete Auto Transit tests will be applicable “whenever there is a challenge to any state tax on interstate commerce”, but application of these tests to this case seems to provide little assistance in our analysis. The first and fourth prongs of the test seem easily satisfied. The named individual appellees were residents of Arkansas at the time of the purchases of the motor vehicle and mobile home involved herein, and both out-of-state purchases were for use and storage in Arkansas. The Delaware corporation which purchased the used airplane had a permanent residence in this State through location of a manufacturing and sales facility in Springdale. If these contacts are insufficient to satisfy the first and fourth prongs, it would be difficult to imagine a use tax that could be properly imposed, and in fact the appellees do not argue nor did the Chancellor find that there were insufficient contacts with this State to justify imposition of the use tax.

The second prong, that the tax be fairly apportioned, is also satisfied. The Supreme Court has indicated that that requirement is clearly met with respect to a use tax where a credit is allowable for any sales tax paid to another State with respect to the same purchase. D.H. Holmes Co. Ltd. v. McNamara, 486 U.S. 24, 31; 108 S.Ct. 1619, 1623-1624; 100 L.Ed.2d 21, 28 (1988).

.The primary thrust of the appellees’ argument and the Chancellor’s findings go to the third prong, that the tax not discriminate against interstate commerce, and that brings us back to Halliburton, supra, and we believe that case to be distinguishable. The exemption at issue therein (for isolated sales taking place within the State of Louisiana only) was one which expressly depended on where the transaction took place.

The principal object of the Arkansas sales and use tax exemption scheme, on the other hand, was to tax only one sale or purchase of a particular airplane, motor vehicle, or mobile home, and no more. It should be emphasized that the exemption did not depend on the residency of either the seller or the buyer, or on the location, in or out of this State, of the sale or purchase transaction. As noted previously, the individual appellees were residents of Arkansas at the time of the purchases at issue, and the Delaware corporation had a permanent presence in this State. A purchase out of state of an airplane, motor vehicle, or mobile home for use in Arkansas would qualify for the exemption if the particular item had been subjected to an Arkansas sales or use tax with respect to a prior sale or, in the case of a motor vehicle or mobile home, the item had been previously registered with the Arkansas Department of Motor Vehicles. In this sense, the Arkansas exemption scheme did insure “equal treatment for in-state and out-of-state taxpayers similarly situated. . . .” Halliburton, supra, 373 U.S. at 70, 83 S.Ct. at 1204, 10 L.Ed.2d at 207. It should be noted that the Supreme Court “has expressly reserved the question whether a State must credit a sales tax paid to another State against its own use tax.” Williams v. Vermont, All U.S. 14, 21-22; 105 S.Ct. 2465, 2471; 86 L.Ed.2d 11, 18 (1985). This leaves open the possibility that a State could impose a use tax on an out-of-state purchase for use, storage, or consumption within the taxing State, even though the very same purchase with respect to which the use tax is imposed was also subjected to a sales tax by the State in which the sale took place. The policy reason for such a possibility seems clear enough. In the use tax situations of the sort involved in this case, the use State may have far greater contacts and provide far more services with respect to the purchased property than the sales State, yet a full credit by the use State of the tax imposed by the sales State would mean that in those cases where the sales tax equals or exceeds the use tax, no use tax would be collected. The Supreme Court has said that “A state, for many purposes, is to be reckoned as a self-contained unit, which may frame its own system of burdens and exemptions without heeding systems elsewhere.” Henneford v. Silas Mason Co., supra, 300 U.S. at 587, 57 S.Ct. at 529, 81 L.Ed. at 821. In the purchases involved herein, in the absence of the Arkansas use tax, no tax would have been paid to Arkansas or any other State with respect to the named appellees’ purchases of the airplane, motor vehicle, and mobile home.

Surely, the Arkansas sales and use tax exemption scheme, that essentially required that an Arkansas sales or use tax be imposed with respect to one sale or purchase transaction only, and allowed a credit against the use tax for any out-of-state sales tax imposed on the same purchase, imposed much less of a burden than would a perhaps permissible use tax with no credit available for an out-of-state sales tax.

We disagree with the Chancellor’s conclusions on this issue, also. Accordingly, we reverse and remand for action consistent with this opinion.

Special Justices Steven W. Elledge, David C. Shelton and Berl S. Smith, Sr., join in this opinion.

Dudley, Newbern, Corbin and Brown, JJ., not participating.

       As to the State use tax imposed, see specifically Ark. Code Ann. §§ 26-53-106 and 26-53-107 (1987), and see, generally, Ark. Code Ann. §§26-53-101 etc. seq. One percent countywide use taxes, subject to a limit of $25 with respect to a single transaction, are authorized by Ark. Code Ann. §§ 26-74-201 et. seq.

       Ark. Code Ann. § 26-5-101 (V) (1987).

       See Ark. Code Ann. §§ 26-52-301(1) and 26-52-302 (1987) as to the State sales tax and Ark. Code Ann. § 26-74-201 et seq. as to county sales taxes.

       These exemptions were partially eliminated by 1991 Act No. 3, § 5. However, before the amendment, the sales and use tax exemptions were located at Ark. Code Ann. §§ 26-52-505(b) and Ark. Code Ann. § 26-53-112(2) (1987), respectively.

       The State sales tax was imposed by Ark. Code Ann. §§ 26-53-106(a) and 26-53-107 (1987).

       The county use tax was authorized by Ark. Code Ann. § 26-74-201 et seq. The $25 limit is imposed by Ark. Code Ann. 26-74-220(a) (1987).

       Ark Code Ann. § 26-5-101 (V) (1987).

       See Ark. Code Ann. §§ 26-52-301(1) and 26-52-302(a) (1987) as to State sales taxes and Ark. Code Ann. §§ 26-74-201 et. seq. for the legislative authorization of countywide sales taxes.

       The exemption from the State sales tax was found at Ark. Code Ann. § 26-52-510(b) before its amendment by 1991 Act No. 3, § 6, which repealed the exemption with respect to sales of automobiles for a total consideration of more than $2,000. The exemption from the State use tax was provided by Ark. Code Ann. § 26-53-126(b) (1987). This exemption was similarly curtailed by 1991 Act No. 3, § 7.

       This exemption was also partially repealed by 1991 Act No. 3, § 4.

       See, before amendment by 1991 Act No. 3, §§ 3,4, and 7, Ark. Code Ann. §§ 26-52-510(b)(2), 26-52-504(b), 26-52-504(c), 26-53-126(3), and 26-53-112(2) (1987).

       Motor vehicles and mobile homes are required to be registered with the Arkansas Department of motor vehicles. Airplanes, on the other hand, are not. See Ark. Code Ann. § 27-14-701 et. seq.

       The legislature has In fact now moved further in the direction of maximizing revenues by partially repealing the exemptions at issue in this case. See 1991 Act No. 3.

       The commerce clause, Article 1, § 8, cl. 3, gives Congress the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

       Comment, “Compensating Use Taxes: Past and Present Constitutional Problems in Imposition and Collection,” 18 Ark L.Rev. 321, 326 (Winter 1965).

       See Burlington Northern R. Co. v. Ragland, 280 Ark. 182, 186; 655 S.W.2d 437, 439 (1983).


author: W. Jackson Williams, Special Justice.

text:
    Connie WAIRE, Individually and as Mother and Next Friend of Jerry Meyers, a Minor v. William JOSEPH, Reid Simmons, Arkansas School Boards Insurance Cooperative, the Searcy School District, the Arkansas Board of Education, and the Self-Insurance Fund of the Arkansas Department of Education
    91-36
    825 S.W.2d 594
    Supreme Court of Arkansas
    Opinion delivered March 2, 1992

      Gary Eubanks & Associates, by: James Gerard Schulze and Darryl E. Baker, for appellants.

      Laser, Sharp, Mayes, Wilson, Bufford & Watts, P.A., by: Dan Bufford and Tim Humphries, for appellee Arkansas Department of Education.

      W. Paul Blume and Mike Beebe, for appellee.
   W. Jackson Williams, Special Justice.

On April 18,1989, Jerry Myers, a student, was injured during track practice at Searcy Junior High School. His mother, Connie Waire, as next friend, appellant herein, filed a negligence suit against the Searcy School District (the District), William Joseph and Reid Simmons, employees of the District, and asserted liability against Arkansas School Boards Insurance Cooperative (ASBIC), the Arkansas Department of Education (ADE), and the Self-Insurance Fund of the Arkansas Department of Education (SIFADE). Appellant alleged that Joseph and Simmons, track coaches at Searcy Junior High School, had breached their duty of reasonable supervision of Waire’s son. She also alleged that although the District and ADE are entities immune from tort liability under Ark. Code Ann. §21-9-301(1987), pursuant to the Direct Action Statute, Ark. Code Ann. § 23-79-210 (1987), she had a direct cause of action against the entities’ liability insurers. According to appellant, ASBIC provided liability insurance to the Searcy School District. Appellant further alleged that pursuant to legislative mandate, Ark. Code Ann. § 6-17-1113 (Supp. 1991), ADE established SIFADE to insure employees of public school districts against civil liability.

The District and ASBIC filed a motion for summary judgment asserting that the District is immune from tort liability pursuant to Ark. Code Ann. § 21-9-301 and that ASBIC was not an insurer for the District which could be sued pursuant to Ark. Code Ann. § 23-79-210. ADE and SIFADE also moved for summary judgment alleging immunity from suit pursuant to Article 5, § 20 of the Arkansas Constitution. The trial court granted both motions for summary judgment. The trial court also dismissed the complaint against Joseph and Simmons pursuant to the tort immunity conferred upon school districts and their employees by Ark. Code Ann. § 21-9-301. This decision is affirmed in part and reversed and remanded in part.

Appellant relies on three points for reversal: (1) summary judgment in favor of ASBIC was improper because ambiguity existed in the Restated Intergovernmental Cooperative Agreement (the Agreement) between ASBIC and the District whether the parties intended the Agreement to be a contract for insurance, (2) ADE has a statutory duty under Ark. Code Ann. §6-17-1113 (Supp. 1991) to either purchase insurance or act as a self-insurer and ADE established SIFADE pursuant to this statute to insure public school district employees against civil liability, and (3) summary judgment in favor of Joseph and Simmons was improper because the record was silent as to whether the track coaches were covered by a policy of insurance.

The first issue presented is whether ASBIC provided a policy of insurance to the District. Appellant argues that the Agreement between ASBIC and the District was ambiguous in that the Agreement’s Memorandum of Intent, on the one hand, stated that it is not a policy of insurance and that immunity is not waived, but on the other hand, provided coverage for personal injury and general liability. The Agreement also contained policy exclusions, a subrogation clause,and a provision regarding “other insurance.” However, notwithstanding some similarities between the Agreement and an insurance contract, it is this court’s opinion there are no ambiguities in the language of the Agreement. The Agreement’s Memorandum of Intent expressly states that it is not an insurance policy.

Memorandum Not an Insurance Policy. This document is not intended to be, nor is it, a policy of insurance, contract of indemnity, or other document of similar effect. ASBA-RMA and its Participants intend only to jointly retain losses associated with specified risks and perils and do not intend to conduct the business of insurance. ASBARMA, by this document or any other contract or agreement, does not obligate itself to indemnify the Participants for losses suffered by them.
Nonwaiver of Privileges and Immunities. Neither this document nor anything contained herein is intended to, and shall not be construed to, constitute a waiver of any privilege or immunity, including without limitation sovereign or tort immunity, which is or may be enjoyed by the Participants. The Board may, in its discretion, choose to pay claims notwithstanding a valid defense thereto based upon sovereign immunity, but such payment, if any, shall not be intended to, and shall not be construed to constitute waiver of any privilege or immunity.

Record at 52.

Based upon the above provisions, it is clear that the District and ASBIC did not intend to enter into an insurance contract. The Agreement provided coverage for liability imposed upon the Participants by law. Arkansas law does not impose liability upon school districts for the negligence of its employees. Ark. Code Ann. § 21-9-301 grants immunity to school districts for tort liability. However, Ark. Code Ann. § 21-9-302 (1987) provides that school districts and other immune entities may settle tort claims brought against them. The tort immunity granted by Ark. Code Ann. § 21-9-301 extends to school district employees for negligence in the performance of their official duties. Cousins v. Dennis, 298 Ark. 310, 767 S.W.2d 296 (1989). We hold that the trial court correctly ruled that the Agreement was not ambiguous and that it did not provide insurance coverage for injury resulting from negligence of school district employees.

The trial court granted summary judgment in favor of ASBIC also because it found that ASBIC was not an insurer. The court applied the criteria set out in City of Marianna v. Ark. Municipal League, 291 Ark. 74, 722 S.W.2d 578 (1987), where this court held that the Municipal League Defense Program was not a de facto insurance company. In that case we distinguished the Program from an insurance policy because the cities had the option of participating in the Program, the Program was nonprofit, the Program was not actuarially sound, and membership was not open to the public. We quoted with approval California-Western States Life Ins. Co. v. State Bd. of Equalization, et al., 312 P.2d 19, 20 (Cal. App. 1957), which stated:

Regardless of the noted similarities in so many of the provisions contained in the plan to those found in annuity policies regularly sold by insurers, the great dissimilarity which adheres in the total absence of profit motive - never ignored by successful insurers - compels a conclusion that the establishment and maintenance of respondent’s employees’ retirement plan cannot be classified as insurance business done by it in this state.

The trial court found that the District similarly was not required to enter into a contract with ASBIC, that ASBIC was not operated for profit, and that ASBIC was not actuarially sound. The facts of the instant case are somewhat different from those of City of Marianna in that Participants agreed to make supplementary payments to ASBIC in the event there were not sufficient funds to pay administration expenses. However, this factual difference is not enough to distinguish the present agreement from that involved in City of Marianna. Accordingly, we affirm the trial court’s ruling that ASBIC was not an insurer.

Ark. Code Ann. § 23-60-102(1) (1987) defines insurance as “a contract whereby one undertakes to indemnify another or pay a specified amount or provide a designated benefit upon determinable contingencies.” Applying this definition, the Agreement does not appear to be a contract of insurance because its language specifically excludes types of claims over which the District could assert its tort immunity. Furthermore, the Agreement states that “[t]he board may, in its discretion, choose to pay claims . . . notwithstanding a valid defense thereto based upon sovereign immunity. . . .’’Record at 62. Therefore, there was no absolute promise to indemnify. Applying the statutory definition and the language of the Agreement itself, this court finds that ASBIC did not provide coverage for the claim asserted by appellant.

The second issue that must be.decided is whether SIFADE has a statutory duty to insure certified school personnel under Ark. Code Ann. § 6-17-1113. The statute reads as follows:

(a) The Department of Education is authorized and directed to establish a self-insurance fund or negotiate for and procure a group or blanket policy or policies of insurance, or both, insuring school board members, school nurses, school secretaries, substitute teachers, authorized volunteers and each employee of a public school district and each employee of the Arkansas School for the Deaf and Arkansas School for the Blind who is required to hold a teaching certificate issued by the Department of Education, and each teacher’s aide and each student teacher in a public school district or in the Arkansas School for the Deaf or the Arkansas School for the Blind and each member of the dormitory staff of the Arkansas School for the Deaf or Arkansas School for the Blind against civil liability for acts or omissions of each employee in the performance of his or her official duties as a school employee, including civil liability for administering corporal punishment to students, in the amount of two hundred fifty thousand dollars ($250,000) for each incident.

Ark. Code Ann. § 6-17-1113(a) (Supp. 1991).

Appellant argues that the legislative intent of Ark. Code Ann. § 6-17-1113 is to mandate insurance coverage for the negligence of teachers. SIFADE argues that by enacting Ark. Code Ann. §6-17-1113, the legislature did not intend to abrogate governmental immunity for, school district employees.

Arkansas has a long-standing public policy of governmental immunity. The Arkansas Legislature has declared by statute that school districts are immune from suit in tort for injuries caused by the acts of their agents or employees. The statute provides:

It is declared to be the public policy of the State of Arkansas that all counties, municipal corporations, school districts, special improvement districts, and all other political subdivisions in the state shall be immune from liability for damages. No tort action shall lie against any such political subdivision because of the acts of their agents and employees

Ark. Code Ann. § 21-9-301 (1987). In Cousins v. Dennis, 298 Ark. 310, 767 S.W.2d 296 (1989), the court interpreted Ark. Code Ann. § 21-9-301 to also provide tort immunity to school employees for their liability for negligent acts arising out of the performance of their official duties. See also Matthews v. Martin, 280 Ark. 345, 658 S.W.2d 374 (1983).

Arkansas has long held that a court must construe all statutes relating to the same subject matter together. See Kansas City So. Ry. Co. v. Pledger, 301 Ark. 564, 785, S.W.2d 462 (1990); Cummins v. Washington County Election Comm’n, 291 Ark. 354, 724 S.W.2d 486 (1987). A statute is not repealed by implication, especially where there exists a harmonious construction of both statutes. See Henslee v. Madison Guar. Sav. & Loan Ass'n, 297 Ark. 183, 760 S.W.2d 842 (1989). If appellant’s interpretation of the statute is adopted, governmental immunity would be abrogated. Given Arkansas’ strong adherence to governmental immunity, we think that if the legislature had intended to require ADE to insure against the negligent acts of school district employees, claims from which school districts traditionally have been immune, they would have expressly stated this intent. In the absence of such express intent, we do not think this court should change longstanding public policy of the State of Arkansas.

This court interprets Ark. Code Ann. § 6-17-1113 to authorize and direct ADE to establish a self-insurance fund or procure insurance policies to insure school district employees against acts or omissions from which they have not traditionally been immune, i.e., civil rights claims under federal legislation and intentional or malicious acts or omissions. In Battle v. Harris, 298 Ark. 241, 766 S.W.2d 431 (1989), we stated that Ark. Code Ann. § 21-9-301 does not provide immunity from intentional torts. Similarly, in Beaulieu v. Gray, 288 Ark. 395, 705 S.W.2d 880 (1986), we stated that the statute does not protect immune employees from malicious acts. Therefore, we hold that ADE was not statutorily required to insure against the negligent acts of school district employees.

Lastly, appellant contends that the trial court erred in granting summary judgment in favor of Joseph and Simmons. Appellant argues that even if ASBIC and SIFADE did not provide insurance to Joseph and Simmons, summary judgment in their favor was improper because the record was devoid of proof that they were not otherwise insured. We agree. In Carter v. Bush, 283 Ark. 16, 677 S.W.2d 837 (1984), we held that state employees are not immune from suit to the extent they are covered by liability insurance. See also Carter v. Bush, 296 Ark. 261, 753 S.W.2d 534 (1988). The burden is on the party moving for summary judgment to demonstrate that there is no genuine issue of fact for trial. Prater v. St. Paul Ins. Co., 293 Ark. 547, 739 S.W.2d 676 (1987). It may very well be that no liability insurance insures either Joseph or Simmons. However, this is not demonstrated in the record of this appeal. The record shows only that they are not covered by ASBIC or SIFADE. Therefore, summary judgement is premature as to them, and the case should be remanded for the trial court to determine whether either of them is protected by any other liability insurance.

Affirmed in part and reversed and remanded in part.

Special Justice Perry Whitmore joins in this opinion.

Glaze and Corbin, JJ., not participating.


author: Per Curiam.

text:
    Dossie ROSE v. STATE of Arkansas
    CR 92-190
    822 S.W.2d 850
    Supreme Court of Arkansas
    Opinion delivered March 2, 1992

      Clarke Arnold, for appellant.
    No objection.
   Per Curiam.

Appellant, Dossie Rose, by his attorney, has filed for a rule on the clerk.

His attorney, Clarke Arnold, admits that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5, 1979, In Re: Related Appeals in Criminal Cases, 265 Ark. 964.

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


author: Jack Holt, Jr. Chief Justice.

text:
    Clarence COLLINS v. STATE of Arkansas
    CR 91-187
    826 S.W.2d 231
    Supreme Court of Arkansas
    Opinion delivered March 9, 1992

      Jeff Rosenzweig, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., J. Brent Standridge, Asst. Att’y Gen., and Clementine Infante, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr. Chief Justice.

The appellant, Clarence Collins, was convicted of burglary for an alleged break-in at Vic Brown Motors in Pine Bluff. He was sentenced to forty years imprisonment as an habitual offender.

On appeal, Collins argues the evidence was insufficient to support the conviction and also that, despite the fact his trial counsel failed to move for a directed verdict at trial, this court should consider the insufficiency argument on its merits. We disagree and affirm.

Ark. R. Crim. P. 36.21(b) provides:

Failure to Question the Sufficiency of the Evidence. When there has been a trial by jury, the failure of a defendant to move for a directed verdict at the conclusion of the evidence presented by the prosecution and at the close of the case because of insufficiency of the evidence will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the jury verdict.

We note that although Collins characterizes trial counsel’s omission as a failure to move for directed verdict “at the end of the State’s case,” both the State and the defense rested after presentation of the State’s case, and no motion was made. Thus, counsel failed to question sufficiency of the evidence at the close of all the evidence as well. The rule is firmly established in the law that we do not consider challenge to the sufficiency of the evidence when defendants do not comply with Rule 36.21. See Cole v. State, 307 Ark. 41, 818 S.W.2d 573 (1991); Crow v. State, 306 Ark. 411, 814 S.W.2d 909 (1991); Andrews v. State, 305 Ark. 262, 807 S. W.2d 917(1991). Collins urges us to ignore his failure to preserve the issue, and our previous decisions, for several reasons.

First, Collins claims “it is a violation of federal and state due process of law to deprive a person of his liberty when there is insufficient evidence to do so.” Collins cites cases in support of this general proposition but does not refer us to any cases in which it has been held that such due process rights are compromised by a state’s procedural requirements for preserving the issue for appellate review; nor are we aware of any. Furthermore, we have held that even constitutional objections and fundamental constitutional rights can be waived if not adequately preserved for appeal. See Barnes v. State, 294 Ark. 369, 742 S.W.2d 925 (1988); Johnson v. State, 303 Ark. 12, 792 S.W.2d 863 (1990). We note that federal appellate courts, under Fed. R. Crim. P. 29, have consistently refused to review sufficiency of the evidence if a motion for judgment of acquittal was not made in the trial court. See C. A. Wright, Federal Practice and Procedure, Criminal 2d § 469 (1982).

Second, Collins contends we have not consistently applied Rule 36.21. He cites only two cases where we have discussed the merits of the sufficiency argument despite the fact it was not properly preserved for review. In one case, Remeta v. State, 300 Ark. 92, 777 S.W.2d 833 (1989), although we cited the defendant’s failure to comply with the rule, the case was tried a year before the rule became effective and the sufficiency of the evidence was, therefore, properly considered. In Houston v. State, 299 Ark. 7, 771 S.W.2d 16 (1989), we deviated from Rule 36.21, noting the rule was indeed in effect; however, our discussion of sufficiency in that case simply reinforced our affirmance of Houston’s conviction. This isolated case was not a material deviation from our usual adherence to the rule. In no case have we allowed a meritorious argument as to sufficiency of the evidence prevail over the defendant’s failure to raise it in the trial court.

In his final three arguments, Collins asserts 1) the inapplicability of the rule to nonjury trials lacks a rational basis and violates federal and state constitutional rights of due process and equal protection; 2) the rule is penal in nature and must be strictly construed; and 3) if applied, the rule should not serve to bar this court from considering a reduction in the charges, as opposed to a dismissal. Collins presents no more than conclusory statements with regard to these arguments, without supporting authority, and we thus decline to consider them. See Cox v. State, 305 Ark. 244, 808 S.W.2d 306 (1991).

The jury’s verdict and sentence is affirmed.


author: Jack Holt, Jr., Chief Justice.

text:
    Frank Lee FRANKLIN v. STATE of Arkansas
    CR 91-245
    825 S.W.2d 263
    Supreme Court of Arkansas
    Opinion delivered March 9, 1992

      John L. Kearney, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, Frank Lee Franklin, was convicted of rape and sentenced, as an habitual offender, to 300 years in the Arkansas Department of Corrections. On appeal, he argues the evidence was insufficient to support the conviction and that the sentence imposed was excessive, given the evidence in the case. We disagree with both contentions and affirm.

Evidence at trial revealed that at approximately 1:30 a.m. on March 2, 1990, the victim was working alone at a Junior Food Mart in Pine Bluff. A black male entered the store, approached the victim as she was mopping the floor, and forced her into the back storage room at gunpoint. The victim testified the assailant forced her to remove her shirt and to pull down her pants and underwear. He repeatedly threatened to kill her. While on her hands and knees, the victim was raped and sodomized. As the man was pulling his pants on, he allowed her to get up from the floor at which point she turned and “got a good look at him then, just like I did when he came in that store.” She stated he looked her in the face with the gun pointed at her, closed the door to the storage room, and exited the store, grabbing some cigarettes on his way out. The victim saw the man leave on the video camera monitor located in the back of the store. The video camera swept the store and filmed various locations at brief intervals. Some of the events described by the victim were taped and verified her account of the attack.

In statements to the investigating police officers who responded to her call for help, the victim described her assailant as being approximately 5 feet, seven inches tall, about 140 pounds, and wearing a dark trench coat and a baseball cap. Clothing matching this description was later recovered from Franklin’s home pursuant to a search warrant.

In addition to the victim’s positive identification of Franklin at trial, she had previously identified Franklin both in a photographic lineup and in a personal lineup. Detective Phyllis Silas testified that on the day the rape occurred, March 2, the victim was shown six mug shot photo albums, each containing approximately 100 photographs. When she was unable to make an identification from these albums, an identity kit composite was done. From the composite, another man became a suspect in the case, whose photograph was included in a six-person photo spread and shown to the victim on March 6; however, this suspect was not identified as the assailant. The following day, the victim was shown a photo line-up which included Franklin’s photograph and, according to Detective Silas, she identified him as the attacker “without hesitation.” She also later identified Franklin at the police station in a physical line-up.

A medical examination of the victim shortly following the attack corroborated her story of intercourse, and serological tests conducted at the state crime laboratory showed that semen samples taken from the victim contained blood type “B”, the same blood type as Franklin’s.

Franklin points to various inconsistencies in the victim’s statements to the police and her testimony at trial to support his argument that the trial court should have sustained his motions for directed verdict. The complained-of discrepancies include her description of when the assailant actually pulled the gun on her, a change in her physical description of the man from “five feet eight and heavy set” to “five feet seven and about 140 pounds,” uncertainty about the color of the attacker’s cap, and certain details about the attack itself.

In determining whether there is sufficient evidence to support a jury verdict, this court views evidence in the light most favorable to the appellee and affirms the verdict if there is substantial evidence to support it. Substantial evidence is that which is of sufficient force to compel a conclusion one way or another and must be more than mere speculation or conjecture. Crutchfield v. State, 306 Ark. 97, 812 S.W.2d 459 (1991). It is the jury’s job to resolve any contradictions, conflicts and inconsistencies in a witness’s testimony and, in doing so, the jurors may believe the parts of her testimony they believe to be true and disregard those they believe to be false. Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990). Furthermore, we have held that, in rape cases, the requirement of substantial evidence is satisfied by the rape victim’s testimony. Wilson v. State, 307 Ark. 21, 817 S.W.2d 203 (1991).

The victim’s account of the rape was verified, in large part, by the video tape, medical evidence, and her statements to the police, and the jury was free to resolve any conflicts in the evidence as they wished. Most significantly, after reviewing hundreds of photographs, the victim immediately identified Franklin as her attacker and was unwavering in that identification, during both the photo spread and the physical lineup.

The trial court did not err in refusing to direct a verdict for Franklin, and the jury had sufficient evidence before it to sustain a verdict of guilty, without resort to speculation or conjecture.

We also reject Franklin’s contention that the 300 year sentence was excessive. The jury was advised, without objection, that Franklin had six prior felony convictions, three of which were sexual offenses. The trial court properly instructed the jury, under Ark. Code Ann. § 5-4-501 (b)(1) (1987), that a person convicted of rape, who has four or more previous felony convictions, may be sentenced to a term of “not less than forty years nor more than life.” We held in Malone v. State, 294 Ark. 127, 741 S.W.2d 246 (1987), that a sentence of 300 years did not exceed life imprisonment since the only sentences greater than life, under our statutes, would be life without parole and death. There is nothing in the United States Constitution or under Arkansas law that prohibits a sentence of years that exceeds the usual life span of human beings. Id. Thus, Franklin’s sentence was not excessive because it was within the statutory limits. Ricketts v. State, 292 Ark. 256, 729 S.W.2d 400 (1987).

Affirmed.