source: Caselaw Access Project

author: Ray Thornton, Justice. Donald L. Corbin, Justice,

license: Public Domain

text:
    Jim MAGNUS v. Valerie CARR
    02-604
    86 S.W.3d 867
    Supreme Court of Arkansas
    Opinion delivered October 24, 2002

      Pender, McCastlain & Ptak, P.A., by: James R. Pender; Mark Pryor, Att’y Gen., by: Wendy L. Kelly, Ass’t Att’y Gen.; and Quattlebaum, Grooms, Tull & Burrow, PLLC, by: Leon Holmes, for appellant.

      Robin J. Carroll; and Robert L. Hertzfeld, Jr., for appellee.
   Ray Thornton, Justice.

Appellant Jim Magnus appeals from the circuit court’s decision to enjoin him from exercising the powers of a member of the Arkansas House of Representatives, namely, voting in legislative matters. He argues that the circuit court has effectively ousted him from office and had no authority to do so. Appellee Valerie Carr responds that the circuit court did not expel Mr. Magnus from his position, and that Mr. Magnus abandoned his office. We hold that under the particular facts of this case, the circuit court had no authority to enjoin Mr. Magnus’s vote and, thus, we reverse and dismiss.

Mr. Magnus was first elected to the Arkansas House of Representatives from House district 55 in 1996 and was re-elected in 1998 and in 2000. In October of 2001, he moved his residence from House district 55 to a location in district 53, also in Little Rock.

On December 6, 2001, Valerie Carr, a resident of House district 55, filed a complaint with the State Claims Commission asking the Commission to recommend that Mr. Magnus be expelled from the House of Representatives. On March 1, 2002, there was a hearing, and the Claims Commission subsequently filed a recommendation that Mr. Magnus be allowed to keep his seat, stating that the Commission did not have jurisdiction to hear the complaint.

On June 7, 2002, Governor Huckabee called for an extraordinary session of the 83rd General Assembly to begin on June 10, 2002. On June 11, 2002, Carr filed a petition for writ of quo warranto and for temporary restraining order against Mr. Magnus in the Pulaski County Circuit Court. The same day, the trial court entered an order granting a temporary restraining order, which was later made permanent, prohibiting Mr. Magnus from exercising the powers of his office, including casting votes on measures considered in the extraordinary session. The petition was filed that day, and no evidence was received. It was not controverted that Mr. Magnus no longer lived in House district 55. On that basis, the trial court ruled that Mr. Magnus had abandoned his office and was not a member of the Legislature eligible for a stay under Arkansas Rule of Civil Procedure 40.

On June 12, 2002, Mr. Magnus filed a notice of appeal and petitioned this court for a writ of certiorari, in the alternative a writ of prohibition, or in the alternative for temporary relief staying the circuit court order and for expedited consideration. This court denied the motion for stay and granted the motion for expedited consideration of the instant appeal.

Appellant presents for his first point on appeal that the circuit court has no jurisdiction to determine the qualifications of a member of the House of Representatives and to expel that member from office. In response, appellee asserts that the trial court did not expel Mr. Magnus from the House of Representatives. Appellee argues that the trial court found that he had abandoned his office and should be restrained from voting on measures under consideration during the special legislative session because, as a non-member of the House, his vote, if it should be determinative of the passage or failure of legislation, could not be counted as a valid vote.

Before turning to the first point raised by appellant, we must first review the constitutional framework separating and defining the branches of government.

Article 4, sections 1 and 2, of the Arkansas Constitution states the principle of separation of powers between the three branches of government:

The powers of the government of the State of Arkansas shall be divided into three distinct departments, each of them to be confided to a separate body of magistracy, to wit: Those which are legislative to one, those which are executive to another, and those which are judicial to another.
* * *
No person, or collection of persons, being one of these departments, shall exercise any power belonging to either of the others, except in the instances hereinafter expressly directed or permitted.

Id. This court has addressed the importance of the doctrine of separation of powers in the past:

The kind of government the people adopted contains three coordinate branches. In assigning the government to three different departments, the people intended to secure to each its independency of action . . .

Smith v. Page, 192 Ark. 342, 91 S.W. 2d 281 (1936).

Article 5, section 11, of the Arkansas Constitution elaborates on the application of the separation of powers doctrine and plainly states that “[e]ach House shall appoint its own officers, and shall be sole judge of the qualifications, returns and elections of its own members.” Id.

Our case law has clearly stated how the Arkansas Constitution shall be construed:

When construing a provision of the Arkansas Constitution, we have said that when the language of the provision is plain and unambiguous, each word must be given its obvious and common meaning, and neither rules of construction nor rules of interpretation may be used to defeat the clear and certain meaning of a constitutional provision.

Chapman v. Bevilacqua, 344 Ark. 262, 42 S.W.3d 378 (2001); Hoyle v. Faucher, 334 Ark. 529, 975 S.W.2d 843 (1998).

We have held that the House of Representatives determines the qualifications of its members, and that the courts have no authority to decide such matters except in the limited circumstances where the validity of legislation is challenged as in Matthews v. Bailey, 198 Ark. 830, 131 S.W.2d (1939). This court has repeatedly held that the judiciary has no jurisdiction over the expulsion of members of the General Assembly. Reaves v. Jones, 257 Ark. 210, 515 S.W.2d 201 (1974); Irby v. Barrett, 204 Ark. 682, 163 S.W.2d 512 (1942); Evans v. Wheatley, 197 Ark. 997, 125 S.W.2d 101 (1939). In Reaves v. Jones, supra, this court held that the judiciary lacks jurisdiction to determine the qualifications of the members of the Senate. Id.

In Matthews, supra, this court exercised its power and authority to determine the validity of legislation that was challenged on the basis that an insufficient number of senators had voted to pass it. We invalidated legislation affecting the substantive rights of a bond-holder, Roy Matthews, who brought the action contesting the validity of an emergency clause that had been passed only if the vote of Paul Gutenson, were counted. Gutenson had been appointed by the governor to fill a Senate vacancy notwithstanding that there was no authority for the governor to make such an appointment. We held that when an officer of the General Assembly is not a true officer of the Senate, the court can determine that the vote of said officer should not be counted if the court is forced to make a choice between two constitutional provisions. Id.

We denied appellant’s motion for stay because the issue required briefing and argument on whether this case was controlled by our decision in Matthews, supra and whether a writ of quo ivarranto was cognizable. We first conclude that Matthews does not control the disposition of this case. We limited our opinion in Matthews to a consideration of the effect upon the passage of legislation when the deciding vote was cast by a stranger to the legislative body.

Writing for a unanimous court in Pendergrass v. Shied, 241 Ark. 908, 411 S.W.2d 5 (1967), Justice George Rose Smith carefully explained this limitation:

We have repeatedly held, directly or by implication, that the judicial branch of the State government is without jurisdiction of election contests involving seats in the General Assembly. There is nothing contrary to those decisions in Matthews v. Bailey cited by appellant. That case merely held that the vote of a person appointed to the State Senate by the governor, contrary to the express language of Amendment 29, could not be counted. There the court was compelled to make a choice between two constitutional provisions, either of which might have been controlling. That is not the situation here.

Id. (Citations omitted.)

The circumstances of this case do not relate to a challenge to the validity of any legislation adopted by the General Assembly, as all such legislation adopted during the extraordinary session was passed by a comfortable margin, and no piece of legislation depended upon Mr. Magnus’s vote to be adopted. In Matthews, the challenge to the validity of the legislation was made following the legislative session, after legislation had been passed by one disputed vote. We now conclude that our limited review under Matthews, supra concerns only a challenge to the validity of legislation adopted by counting the vote of a stranger to the legislative body. Based upon our holding in Matthews, supra, we should sustain a challenge to the validity of legislation only when it is shown that such legislation was passed by counting the vote of a stranger to the legislative body. We hold that the circuit court lacked jurisdiction to enjoin the casting of a vote by Mr. Magnus, notwithstanding that, under Matthews, such a vote, if both decisive and defective, might affect the validity of a contested enactment.

Next, we address appellant’s second point which is whether Ms. Carr has standing to bring a petition for writ of quo warranto. Arkansas Code Annotated § 16-118-105 states in pertinent part:

(b)(1) Whenever a person usurps an office or franchise to which he is not entitled by law, an action by proceedings at law may be instituted against him, either by the state or the party entitled to the office or franchise, to prevent the usurper from exercising the office or franchise.
(2) A person who continues to exercise an office after having committed an act, or omitted to do an act, of which the commission or omission by law, created a forfeiture of his office, shall be subject to be proceeded against for a usurpation thereof.
(3) (B) For usurpation of other than county offices or franchises, the action by the state shall be instituted and prosecuted by the Attorney General.

Id.

Appellee cites State of Nevada, ex rel. v. McMillan, 58 P. 284 (Nev. 1899), wherein that state’s court held that a proceeding in quo warranto may be in the name of the state, without the attorney general, and upon the relation of a private citizen, or upon the relation of one claiming the office in question, upon the leave of the court. That is not the law of Arkansas. Instead, we rely on the plain language of Ark. Code Ann. § 16-118-105 (b)(3)(B), which states: “For usurpation of other than county offices or franchises, the action by the state shall be instituted and prosecuted by the Attorney General.” Id.

In Moody v. Lowrimore, 74 Ark. 421, 86 S.W. 400 (1905) we held that in the instance of a writ of quo warranto, “this remedy must be prosecuted by the state, or some public officer representing the sovereignty. In this state, the officer authorized by law to act for the state when the assertion of this prerogative of the sovereignty of the state is the Attorney General.” More recently, we held, “it is the State who initiates quo warranto.” Cummings v. Washington County Election Comm’n, 291 Ark. 354, 724 S.W.2d 486 (1987).

We hold that Ms. Carr was not the proper party to bring a writ of quo warranto. For that reason we do not address appellant’s point on appeal concerning the residency requirements imposed on members of the House by the Arkansas Constitution. Nor do we reach the issue of whether Mr. Magnus had abandoned his office as a member of the Legislature. Accordingly, we do not reach the question of the applicability of Rule 40 to this proceeding.

We reverse and dismiss.

Glaze, Corbin, and Imber, JJ., concur.

Donald L. Corbin, Justice,

concurring. I agree with stmajority ice, trial court and this court are without jurisdiction under the facts of this case to review Appellant Jim Magnus’s qualifications as a legislator. Pursuant to Article 5, § 11, of the Arkansas Constitution, the issue whether Magnus is required to reside in the district from where he was elected is a matter to be determined exclusively by the House of Representatives. Therefore, I agree with the majority that the trial court erred in restraining Magnus from voting or otherwise participating in any legislative session that may be called during the remainder of his term. I write separately, however, because I believe that the majority has exceeded the scope of its authority in this case by ruling on the issue of Appellee Valerie Carr’s standing to bring a petition for writ of quo warranto.

Throughout its long and storied history, this court has steadfastly refused to issue advisory opinions or answer purely academic questions. See, e.g., Harris v. City of Little Rock, 344 Ark. 95, 40 S.W.3d 214 (2001); Benton v. Bradley, 344 Ark. 24, 37 S.W.3d 640 (2001); Villines v. Harris, 340 Ark. 319, 11 S.W.3d 516 (2000); Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998); Wilson v. Pulaski Ass’n of Classroom Teachers, 330 Ark. 298, 954 S.W.2d 221 (1997); Almond v. Cigna Prop. & Cas. Ins. Co., 322 Ark. 268, 908 S.W.2d 93 (1995); Smedley v. Smedley, 319 Ark. 421, 892 S.W.2d. 273 (1995); Dougan v. Gray, 318 Ark. 6, 884 S.W.2d 239 (1994); McCuen v. McGee, 315 Ark. 561, 868 S.W.2d 503 (1994); Johnson v. State, 314 Ark. 471, 863 S.W.2d 305 (1993); Jenkins v. Goldsby, 307 Ark. 558, 822 S.W.2d 842 (1992); City of Springdale v. Jones, 295 Ark. 129, 747 S.W.2d 98 (1988); Long v. Henderson, 249 Ark. 367, 459 S.W.2d 542 (1970); Catlett v. Republican Party of Arkansas, 242 Ark. 283, 413 S.W.2d 651 (1967); Countz v. Roe, 231 Ark. 108, 328 S.W.2d 353 (1959); Hogan v. Bright, 214 Ark. 691, 218 S.W.2d 80 (1949); Barbee v. Kolb, 207 Ark. 227, 179 S.W.2d 701 (1944). It escapes me why the majority has chosen to disregard the foregoing precedents in this case.

Clearly, if this court is without jurisdiction over the subject matter of this case, any opinion that it renders on the appropriateness of the method used to institute this case is an advisory opinion and amounts to nothing more than obiter dictum. This court has recently observed that it is not bound by any conclusion stated as obiter dictum. See Green v. State, 343 Ark. 244, 33 S.W.3d 485 (2000); Burnette v. Perkins & Assocs., 343 Ark. 237, 33 S.W.3d 145 (2000). Thus, any conclusion regarding Appellee’s standing to seek a writ of quo warranto will have no precedential value whatsoever and will be a vain and futile act.

Furthermore, I disagree with the majority’s view that the issue of Magnus’s alleged abandonment of his office, i.e., by moving into a nearby district, is separate and distinct from the issue of his qualifications to serve as a legislator. In my view, the trial court relied on the theory of abandonment to affect an end-run around the constitution’s plain mandate that the judicial branch has no power to judge the qualifications of a member of the General Assembly. Flowever, the facts of this case do not support such a theory. This is not a situation where, for example, a legislator has fled the state or the country, such that he or she might be said to have affirmatively abandoned his or her office.

Rather, the facts here merely show that Magnus initially resided in House District 55, which is situated in Little Rock, and was elected as that district’s representative in November 2000. In October 2001, about midway through his term, he moved into a nearby district, House District 53, which is also situated in Little Rock. The only issue that arises from these facts is whether Magnus’s move resulted in his disqualification to hold the position of House Representative of District 55. Abandonment simply does not enter into it.

In sum, the only issue at stake in this case is whether Magnus is qualified to serve in his current legislative position. The constitution has placed exclusive jurisdiction of this issue in the legislative branch of our state government. Accordingly, I concur in the judgment reached by the majority, but I must depart from that part of the opinion purporting to decide that Appellee lacks standing to bring a petition for a writ of quo warranto. In the words of Justice McFaddin: “With the question of jurisdiction settled — and that is always a primary question — all other questions in this appeal become mere obiter dicta, and because such matters are dicta, I am concurring in the result and foregoing the dicta.” Albright v. Karston, 206 Ark. 307, 318, 176 S.W.2d 421, 426 (1943) (McFaddin, J., concurring).

Glaze and Imber, JJ., join in this concurrence.


author:
Jim Hannah, Justice.
      Annabelle Clinton Imber, Justice,

text:
    Denaro Shatour COOK v. STATE of Arkansas
    CR 02-329
    86 S.W.3d 916
    Supreme Court of Arkansas
    Opinion delivered October 24, 2002

      Arkansas Public Defender Commission, by: Janice W. Vaughn and Llewellyn J. Marczuk, for appellant.

      Mark Pryor, Att’y Gen., by: Kent Holt, Ass’t Att’y Gen., for appellee.
   Jim Hannah, Justice.

Denaro Shatour Cook appeals his convictions for first-degree murder, aggravated robbery, and theft. Criminal liability in this case is based upon accomplice liability. Appellant asserts four issues on appeal. He alleges that there was insufficient evidence to convict him on first-degree murder, aggravated robbery, and theft of property. He also alleges that the trial court erred in refusing to instruct the jury on the lesser-included offense of robbery on the aggravated robbery charge, and that the trial court erred in refusing to instruct the jury on the lesser-included offense of felony manslaughter on the capital murder charge. Finally, he argues that the trial court erred in admitting hearsay testimony of Tim Dillard, who testified to what Appellant said to his brother before the robbery and murder. We affirm.

This case was appealed to the court of appeals, affirmed, and we granted the petition for review. When we grant a petition for review pursuant to Ark. Sup. Ct. R. 2-4, we treat the appeal as if it were filed in this court originally. Tucker v. Roberts-McNutt, Inc., 342 Ark. 511, 29 S.W.3d 706 (2000); Fowler v. State, 339 Ark. 207, 5 S.W.3d 10 (1999). Thus, we review the trial court’s judgment, not that of the court of appeals. Davenport v. Lee, 348 Ark. 148, 72 S.W.2d 85 (2002).

Facts

On April 13, 1999, the Western Sizzlin restaurant on Rodney Parham Road in Little Rock was robbed shortly after closing. While the facts provided by the various witnesses are not entirely consistent on details, it appears that Appellant’s brother Keyono, who will be referred to in the opinion by his nickname Buck for purposes of clarity, and others, came to the restaurant in two cars about closing time pursuant to a plan to rob Western Sizzlin. During the course of that robbery, manager David Nichols was murdered. Between $1800 and $2100 was taken.

Kyona Nicole Hyder was working at the Western Sizzlin that night and noticed that the doors were not locked at closing, and that other things that were normally done at closing were not being done. She testified that not only were the front doors left unlocked, but the back door was also unlocked. According to Kyona, the practice was that the back door was to be immediately relocked when it was used. Kyona-went on to testify that she saw former employee Frank Barnes running along the outside of the building toward the back of the building as the restaurant was being closed. Kyona testified that she told Appellant she had seen Frank, and Appellant told her Frank had to use the bathroom. Kyona then testified that sometime later she saw Frank and Buck by the utility closet in the kitchen area of the restaurant. Buck was also a former employee of the restaurant.

According to Kyona, Buck had a ski mask on the top of his head. She spoke to Buck and Frank, but they did not answer. Rather, Buck motioned to her to be quiet. Kyona further testified that Appellant came to her later and said, “I think my brother killed the manager,” and that when she questioned him, he said, “I’m for real, you know.” According to Kyona, Appellant’s demeanor was “weird and joking.” She also testified that Appellant told her, “you can’t say nothing,” which she understood to mean that she should be quiet. Later she testified that it might have been Appellant’s brother Torian who told her that. Torian also worked at the restaurant and was present that night. Kyona testified that she looked around for Nichols after she saw Buck and Frank, but did not find him, and that she waited around for Nichols to sign her time card, but he did not come out to sign it. She then testified that she eventually went home. According to Kyona, she later called back to the restaurant to see if they had found Nichols, and Appellant answered the telephone.

Sharronda Arnold also worked at Western Sizzlin and was present the night of the robbery and murder. She testified that the back door was unlocked all night that night, which she said was contrary to policy, and that normally the door was not unlocked. She also testified that she saw Buck and Frank drive up in the lot outside. According to her testimony, Appellant went outside and spoke to Buck and Frank for about ten minutes. Sharronda testified that upon his return, Appellant went to the back but did not take dishes or anything with him. Sharronda further testified that Appellant came back out front, and then went outside again and made hand motions to Buck and Frank to come inside. Sharronda then testified that when Appellant came back inside he said “they were fixing to rob the place.” She testified that Appellant was laughing. She also testified that after Appellant told her they were going to rob the place, she saw Buck and Frank go up the side of the building to where the back door was located. She further testified that she heard loud banging and went to the back where she saw Buck and Frank. Buck was wearing a black ski mask. According to Sharronda, Buck had a green money bag and what appeared to be a gun. Sharronda also testified that Appellant told her “they killed him,” and “David is dead.” She testified that Appellant’s hands were trembling as he told her. According to Sharronda, while they were waiting for police to arrive, Appellant told her “we do not know nothing. Tell the police that we do not know anything.” Sharronda further testified that Torian, Appellant's brother, went out to talk to Buck that night before the robbery, and that when Torian returned, he, too, said Buck was “going to rob the place,” and that Buck was wondering if anyone would snitch on him.

Tim Dillard testified that he arrived at the restaurant in a car with Frank. He then testified that after they arrived, Appellant came out of the restaurant to talk to Buck on at least two occasions. Tim could not hear their conversation because they were speaking outside and he was inside the car. Tim testified that when Buck got in the car after speaking with Appellant, Buck told him, “it was clear to go through the back door.” Tim also testified that Buck told him Appellant was the one who told him it was clear. Tim testified that Buck then went in the back door, followed a couple of minutes later by Frank. Tim further testified that when Frank returned to the car, he was hostile and said that “Buck shot that man.” Tim testified that they were about to leave when Buck came out with the bank bag and got in the car. Tim also testified that he was with Buck and Frank later when they divided the money between them.

Dillard further testified that Appellant threatened him at school, “Saying he was going to handle me because I snitched along with some other couple of people that we snitched, and we told on his brother.”

Rodney Barnes, Frank’s brother, testified that he was at the Western Sizzlin when it was robbed. According to his testimony, he arrived with Buck, Nakia, and Tim in Appellant’s car. Rodney testified that after they arrived, Torian came out first and spoke with Buck and that Appellant came out soon thereafter. Rodney further testified that Torian tried to convince Buck not to rob the restaurant and that Buck calmed down, but after Appellant came out and spoke to Buck, Buck was “all hyped then.” According to Rodney, Appellant talked to Buck about a back door. Rodney also testified that Buck said that he was going to rob this Western Sizzlin because he knew the manager was not armed. Again, according to Rodney’s testimony, Appellant was saying to Buck, “He was like, the manager in the office counting the money. . .And all the door was open. . .And after [Denaro] told him to go in and do it, I mean. . .he didn’t hesitate, he just got out of the car and did what he had to do, I guess.” Rodney also testified that Appellant told him after the robbery, “Don’t say nothing.” Rodney further testified that Appellant got money from Buck that came from Western Sizzlin.

Nakia testified that she was Frank’s girlfriend. She further testified that she was present in Frank’s car on the night of the robbery. At one point she testified that she was in the car with Tim Dillard, too. Nakia testified that she saw Appellant come out of the restaurant on two occasions that night to speak with Buck and Frank. She also testified that she never saw Appellant motioning to Buck.

Appellant also testified. He denied any involvement in the robbery and murder. Rather, he testified that he saw his brother Buck drive up, and that he went out to tell him he would be finished soon, assuming his brother Buck had come to pick him up. He further testified that his brother Torian went out to speak with Buck, and that when Torian returned, it was apparent he was upset. Appellant then testified that Torian told him Buck was thinking about robbing the restaurant. According to Appellant, he then went back out to Buck and tried to talk him out of robbing the restaurant, telling him to go home. Appellant testified he told Sharronda that Buck had threatened to rob the place.

Appellant denied seeing Buck or Frank inside the restaurant. He testified that he was cleaning up when he heard two loud noises. Appellant then testified that he helped look for the victim and was there when the victim’s body was discovered and the police were called. Appellant further testified that after they were all released by the police that night, he saw his brother who asked if the victim were dead. Appellant admitted lying to the police but attributed it to protecting his brother.

Dr. Stephen Erickson, an associate medical examiner at the Arkansas State Crime Lab, testified that he performed an autopsy on Nichols’s body and expressed an opinion that Nichols died of multiple gunshot wounds.

Sufficiency of the Evidence

Preservation of Appellant’s right against double jeopardy requires that we consider the challenge to the sufficiency of the evidence before we consider alleged trial error even though the issue was not presented as the first issue on appeal. Price v. State, 347 Ark. 708, 66 S.W.3d 653 (2002); King v. State, 323 Ark. 671, 916 S.W.2d 732 (1996).

It is well settled that a motion for a directed verdict is a challenge to the sufficiency of the evidence. Atkinson v. State, 347 Ark. 336, 64 S.W.3d 259 (2002). See also Smith v. State, 346 Ark. 48, 55 S.W.3d 251 (2001). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Smith, supra. Substantial evidence is evidence force&l enough to compel a conclusion one way or the other beyond suspicion or conjecture. Atkinson, supra. When a defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in the light most favorable to the State. Atkinson, supra. Only evidence supporting the verdict will be considered. Atkinson, supra.

Appellant’s criminal liability is based upon his status as an accomplice. In cases such as the instant one, where the theory of accomplice liability is implicated, we affirm a sufficiency of the evidence challenge if substantial evidence exists that the defendant acted as an accomplice in the commission of the alleged offense. Purifoy v. State, 307 Ark. 482, 822 S.W.2d 374 (1991); Ark. Code Ann. § 5-2-402(2) (Repl. 1997). A person is criminally liable for the conduct of another person when he is the accomplice of another person in the commission of an offense. Ark. Code Ann. § 5-2-402 (Repl. 1997). Under Ark. Code Ann. § 5-2-403 (Repl. 1997), an accomplice is defined as follows:

(a) A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense, he:
(1) Solicits, advises, encourages, or coerces the other person to commit it; or
(2) Aids, agrees to aid, or attempts to aid the other person in planning or committing it; or
(3) having a legal duty to prevent the commission of the offense, fails to make proper effort to do so.
(b) When causing a particular result is an element of an offense, a person is an accomplice in the commission of that offense if, acting with respect to that result with the kind of culpability sufficient for the commission of the offense he:
(1) Solicits, advises, encourages, or coerces the other person to engage in the conduct causing the result; or
(2) Aids, agrees to aid, or attempts to aid the other person in planning or engaging in the conduct causing the result; or
(3) Having a legal duty to prevent the conduct causing the result, fails to make proper effort to do so.

Ark. Code Ann. § 5-2-403 (Repl. 1997).

The determination of the status as an accomplice is ordinarily a mixed question of law and fact. Atkinson, supra. In this case, the issue was submitted to the jury. The facts do not place Appellant at the murder scene. However, that is not necessary. A criminal defendant is an accomplice where the defendant renders the requisite aid or encouragement to the principal with regard to the offense at issue, irrespective of the fact that the defendant was not present at the murder scene and did not directly commit the murder. Atkinson, supra. See also Sumlin v. State, 273 Ark. 185, 617 S.W.2d 372 (1981). Although Appellant was not present at the murder, he may be liable as an accomplice if he assisted and actively participated in the crime. Crutchfield v. State, 306 Ark. 97, 812 S.W.2d 459 (1991). When two persons assist one another in the commission of a crime, each is an accomplice and criminally liable for the conduct of both. A participant cannot disclaim responsibility because he did not personally take part in every act that went to make up the crime as a whole. Crutch-field, supra; Parker v. State, 265 Ark. 315, 325, 578 S.W.2d 206 (1979).

As to the sufficiency of the evidence, Buck admitted shooting the victim. The victim died. Dr. Erickson testified that the victim died of multiple gunshot wounds. The testimony of Nakia, Tim, and Appellant showed that Buck came to the restaurant to commit a robbery. Sharronda testified that she saw Buck with a ski mask, a money bag, and a gun. Tim testified about the plans to rob the restaurant. He also testified that he saw the money bag and watched the money being divided. Rodney testified that Appellant received a cut of the money from Buck. There is substantial evidence of the commission of the crimes by Buck and Frank.

There is also evidence that Appellant facilitated, encouraged, and participated in the above noted crimes. Rodney testified that Appellant told Buck the back door was unlocked and to go ahead and do it. Kyona and Sharronda testified about Appellant’s behavior, going outside to speak with Buck, making gestures, appearing to go to the back of the restaurant to open the back door, telling them what was happening, and telling them to be quiet about what happened. Witnesses testified that Appellant was still telling witnesses to be quiet several days after the crimes. Dillard and Rodney also gave testimony about Appellant’s actions that incriminated him and inferred he was an active participant in the crimes. Viewing the evidence in a light most favorable to the State, and giving deference to the jury’s findings on credibility, there . was overwhelming evidence that Appellant was an accomplice.

Appellant, however, argues that the trial court erred in refusing to declare Dillard and Rodney accomplices as a matter of law. For an individual to be an accomplice, he must engage in one of the activities articulated in Ark. Code Ann. § 5-2-403 (Repl. 1997). The appellant bears the burden of proving that a witness is an accomplice whose testimony must be corroborated. McGehee v. State, 338 Ark. 152, 992 S.W.2d 110 (1999). Mere presence at the crime scene or failure to inform law enforcement officers of a crime does not make one an accomplice as a matter of law. Britt v. State, 334 Ark. 142, 974 S.W.2d 436 (1998). The trial court determined that the question of accomplice liability presented a question of fact which was appropriate for determination by the jury. Raynor v. State, 343 Ark. 575, 36 S.W.3d 315 (2001). Our review supports this finding. There is no merit to the claim of insufficient evidence.

Jury Instructions

Appellant alleges the trial court erred when it refused to instruct the jury on robbery and felony manslaughter. In essence, Appellant argues that although his brother Buck shot and killed Mr. Nichols, he should have gotten an instruction on robbery because there was evidence from which the jury could find he was unaware Buck had and used a gun in the robbery. Likewise, Appellant argues that there was evidence from which the jury could have found he acted only negligently with respect to the death of Mr. Nichols, and on that basis, a felony manslaughter instruction should have been given. Appellant misperceives the nature of accomplice liability. Appellant was not convicted of any robbery or homicide which he committed. Rather he was convicted as an accomplice in the robbery and murder committed by Buck. Accomplice liability makes Appellant liable for the criminal conduct of Buck. Ark. Code Ann. § 5-2-402 (Repl. 1997). It is settled law that a person is criminally responsible for the conduct of another person when he is an accomplice in the commission of an offense. State v. Babbs, 334 Ark. 105, 971 S.W.2d 774 (1998); Smith v. State, 271 Ark. 671, 609 S.W.2d 922 (1981); See also AMCI2d 40 i. There is no distinction between the criminal liability of an accomplice and the criminal liability of the person who actually commits the offense. Riggins v. State, 317 Ark. 636, 882 S.W.2d 664 (1994). In Riggins, the appellant argued that the trial court erred in instructing on first-degree murder where he was not the principal perpetrator of the crime. Riggins, supra. This court held there was no error where the charge was premised on accomplice liability. Under accomplice liability, a criminal defendant may be found guilty of the conduct of his accomplice. Purifoy, supra.

The State did not argue that Appellant robbed or killed Nichols. The State did accuse the Appellant of theft and of being an accomplice to capital murder and aggravated robbery. Whether Appellant saw the gun or whether he knew that Buck was going to use a gun is not relevant to this case. Whether Appellant might have been charged as negligently causing Nichols’s death is not at issue. At trial, the State argued that Appellant promoted, facilitated, encouraged, aided, and otherwise assisted in the robbery at Western Sizzlin. There was no error in refusing to give the jury instructions on lesser-included offenses.

Hearsay

Appellant alleges that the trial court erred in admitting testimony of Tim Dillard. At trial, Tim testified not to what he had heard Appellant say, but rather to what Buck told Tim Appellant had said. This testimony recounted a statement by Appellant and was offered to show Appellant’s involvement in the robbery. It was offered for the truth of the matter asserted.

The pertinent testimony was as follows:

A Denaro told Buck it was clear.
Q And so Denaro told Buck it was clear, go through the back door?
A Yes.

The trial court found the above testimony was a statement of Buck that came in under Ark. R. Evid. 801(d) (2) (v), which permits introduction into evidence of admissions, and in particular, a statement by a coconspirator of a party made during the course and in furtherance of the conspiracy.

The trial court erred. What was at issue was a statement of a party. Ark. R. Evid. 801 (d) (2) (v) admits statements of coconspirators of a party. Appellant is the party. Buck is the coconspirator of the party. The statement of Appellant is not excepted from hearsay by Rule 801(d)(2)(v), but by Rule 801(d)(2)(i) as a party’s own statement. Had Buck testified, the statement would have been excepted from hearsay by Rule 801 (d)(2) (i). He did not testify. Appellant’s statement was not excepted from hearsay by Rule 801 (d) (2) (v) as discussed hereafter.

We must first note that the testimony constitutes hearsay within hearsay, or double hearsay. First, we have a statement of Appellant that was made to Buck. Second, we have that statement related to Tim who then testified to it at trial. Double hearsay is not admissible under Ark. R. Evid. 805. Morrow v. State, 264 Ark. 227, 570 S.W.2d 607 (1978). To be admissible, each level of hearsay must conform to an exception of the hearsay rule. Morrow, supra. See also, United States v. Ortiz, 125 F.3d 630 (8th Cir. 1997), wherein the Eighth Circuit Court of Appeals held that Fed. R. Evid. 805 requires that each level of hearsay fall within a hearsay exception.

It is argued, however, that as a statement of a coconspirator, Ark. R. Evid. 801(d) (2) (v) excludes the statement from hearsay entirely. This argument ignores the fact that we have double or two levels of hearsay. Both levels of hearsay must be analyzed. If the first level when Appellant told Buck, is determined to not be hearsay, that still leaves an analysis of whether it was hearsay when it was passed from Buck to Tim. Rule 801 (d) (2) (v) does not provide a blanket exclusion from hearsay to simply admit anything a coconspirator said. Nor does Rule 801(d) (2) (v) provide a blanket exclusion from hearsay to admit a statement by a coconspirator, regardless of the number of persons it may have passed through before it reaches testimony at trial.

Arkansas Rule of Evidence 801 (d) (2) (v) provides a showing of trustworthiness for statements of coconspirators as those statements are defined under the rule and under case law. In Idaho v. Wright, 497 U.S. 805, 815 (1990), the United States Supreme Court stated, “Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized trustworthiness.” Arkansas Rule of Evidence 801 deals with such other case and provides the particularized reliability and trustworthiness for admissions.

Tim’s testimony of what Buck told him Appellant said fails to meet the requirements of Rule 801. Tim’s testimony of what Buck told him Appellant said is not a statement under Rule 801(d)(2)(v). Rule 801(a) defines a statement under the rule as an oral or written assertion. It may also be nonverbal conduct if the conduct was intended as an assertion.

Rule 801(d)(2)(v) is intended to permit introduction of admissions of coconspirators. In other words, it is intended to admit assertions of coconspirators of their own involvement in the conspiracy. Even in this regard, it is limited to properly admissible statements made during the course and in furtherance of the conspiracy.

Statements of coconspirators regarding their own conduct are admissible for sound and long-standing reasons. In discussing why unavailability need not be shown to introduce statements of coconspirators regarding their own involvement, the United States Supreme Court explained that because the statements are made in the course and in furtherance of the conspiracy:

such statements provide evidence of the conspiracy’s context that cannot be replicated, even if the declarant testifies to the same matters in court. When the Government — as here — offers the statement of one drug dealer to another in the furtherance of an illegal conspiracy, the statement often will derive its significance from the circumstances in which it was made. Conspirators are likely to speak differently when talking to each other in furtherance of their illegal aims than when testifying on the stand.

United States v. Inadi, 475 U.S. 387, 395 (1986). The United States Supreme Court went on to note that there is, in this regard, a lack of strong similarity between coconspirator statements and live testimony at trial. The court stated, “To the contrary, coconspirator statements derive much of their value from the fact that they are made in a context very different from trial, and therefore are usually irreplaceable as substantive evidence.” Id.

Evidence, which was admitted properly through Tim, that Buck made statements about his own conduct to Tim shortly before the robbery indicating that the robbery was moving forward, is strong evidence of the conspiracy between Appellant, Frank and Buck, because these statements of Buck’s own involvement were made at the time of the conspiracy. Tim testified that after making several statements to him, Buck went inside. Further evidence was offered to show that very soon after Buck made these statements to Tim, both he and Frank were seen running down the side of the building and were then seen in the building.

The same indicia of reliability simply cannot be found for Buck’s statement to Tim that Appellant told him something that amounted to an admission of Appellant’s involvement. There is nothing about the moment Buck told Tim what Appellant said, which is an element required under 801 (d) (2) (v), that made it more reliable because it was stated in that moment. Had Buck testified at trial to Appellant’s statement, it would have had just as much of an indicia of reliability. Rule 801 (d) (2) (v) is inapplicable to the report by Buck to Tim that Appellant made an admission.

The aims of Rule 801 (d) (2) (v) would be frustrated by admission of what Buck said Appellant said because it would result in less reliable evidence being admitted rather than in more reliable and trustworthy evidence being admitted.

Twice this court has stated that testimony regarding what a coconspirator said, in other words, testimony regarding an assertion by a coconspirator, must be a vicarious admission to be admissible. Pyle v. State, 314 Ark. 165, 862 S.W.2d 823 (1993); Patterson v. State, 267 Ark. 436, 591 S.W.2d 356 (1979). The evidence of a coconspirator’s admission or assertion of his involvement has greater value because it is his own conduct that he is implicating. The exclusion of such evidence from the law on hearsay long predates the present federal rules, as well as our own rules. Judge Learned Hand stated on this issue:

Such declarations are admitted upon no doctrine of the law of evidence, but of the substantive law of crime. When men enter into an agreement for an unlawful end, they become ad hoc agents one for another, and have made “a partnership in crime.” What one does pursuant to their common purpose, all do, and, as declarations may be such acts, they are competent against all.

Van Riper v. United States, 13 F.2d 961 (2nd Cir. 1926).

In Dean v. State, 293 Ark. 75, 732 S.W.2d 855 (1987), this court held that a statement by a coconspirator that the appellant was in the car, thereby implicating the appellant in the drug transaction, “was not her (the coconspirator’s) own admission of involvement, but rather was a statement implicating Dean in the delivery.” Dean, 293 Ark. at 81. This court held that the above statement did not fit within the definition of statements which are not hearsay. Dean, supra. It was offered to prove the truth of the matter asserted and was held inadmissible. Id. The same situation exists in this case where an alleged statement of Buck implicating Appellant, and not Buck, is inadmissible under Ark. R. Evid. 801 (d) (2) (v) because it is not an admission by Buck of his involvement. What Buck said Appellant admitted to him is not a statement under Rule 801(d) (2) (v) and is therefore not admissible under (d)(2)(v).

Finally, we must consider the fact that Tim testified that Buck told him of the admission. That is the second leg of the double hearsay. In Jones v. Abraham, 341 Ark. 66, 15 S.W.3d 310 (2000), this court stated:

Hearsay is inadmissible except as provided by law or by the rules of evidence. Ark. R. Evid. 802. Statements by an out-of-court declarant, both of which are repeated in court by a witness, are inadmissible unless each part of the combined out-of-court statements conforms with an exception to the rule excluding testimony in the form of hearsay. Ark. R. Evid. 805.

Rule 801 is not applicable, and the exceptions of Rule 803 do not appear to apply. There was no argument that Buck could not be produced at trial, or that he refused to testify. It appears the testimony on the second level was inadmissible hearsay.

However, Appellant fails to show how he was prejudiced by this inadmissible testimony. In fact, when Tim’s testimony is considered in the absence of the inadmissible hearsay, the inescapable conclusion is that Appellant was doing precisely what the hearsay evidence was offered to prove. We also note that there is abundant evidence of Appellant’s involvement in making sure the coast was clear, motioning the robber in, setting up the plan, and using the back door. Where evidence of guilt is overwhelming and the error slight, we can declare the error harmless and affirm. Bledsoe v. State, 344 Ark. 86, 39 S.W.3d 760 (2001) See also, Kidd v. State, 330 Ark. 479, 955 S.W.2d 505 (1997); Abernathy v. State, 325 Ark. 61, 925 S.W.2d 380 (1996).

Affirmed.

Brown and Imber, JJ., concur.

Annabelle Clinton Imber, Justice,

concurring. I agree ustice, affirmed in all respects. However, I write in order to address the majority opinion’s analysis of the admissibility of Tim Dillard’s testimony about a co-conspirator’s (Buck) statement to him in which the co-conspirator related what he had been told by another co-conspirator (Denaro). The testimony at issue includes two out-of-court statements. Thus, each statement must be analyzed under Rule 801 of the Arkansas Rules of Evidence that sets forth the applicable definitions for hearsay. While it is true that the statements at issue are out-of-court-statements under Ark. R. Evid. 801(c), those statements are specifically excluded from the definition of hearsay under Ark. R. Evid. 801(d). As such, they are not hearsay and, thus, are admissible under the Arkansas Rules of Evidence.

Specifically, an analysis of each statement reveals that neither statement was hearsay. At trial Dillard was allowed to testify to Buck telling him “Denaro said it’s clear to come in through the back.” The court initially overruled defense counsel’s objection under Ark. R. Evid. 801 (d) (2) (v) (not hearsay) and Ark. R. Evid. 804(b)(3) (hearsay exceptions). Subsequently, following a hearing outside the jury’s presence, the trial court granted the State’s motion to allow Dillard to testify about the conversation he had with Denaro’s co-conspirator under Rule 801(d)(2)(v).

Statements offered against a party and made by a co-conspirator of a party during the course and in furtherance of a conspiracy are not hearsay. Ark. R. Evid. 801(d) (2) (v) (2002); Henderson v. State, 329 Ark. 526, 953 S.W.2d 26 (1997); Spears v. State, 321 Ark. 504, 905 S.W.2d 828 (1995). Furthermore, this court has held that where an actual criminal act is performed by an alleged accomplice, the accomplice’s statements made during the transaction are admissible as statements of a co-conspirator. Pyle v. State, 314 Ark. 165, 862 S.W.2d 823 (1993).

As previously indicated, there are two out-of-court-statements at issue. First, we look to the out-of-court statement made by Denaro to Buck. The majority correctly holds that this statement is not hearsay under Ark. Rule Evid. 801 (d) (2) (i). It was offered against Denaro and was his own statement.

Having concluded that Denaro’s out-of-court-statement is not hearsay, we must determine whether Buck’s statement to Dillard is admissible under Ark. R. Evid. 801(d)(2) (v). First, Buck’s statement was being offered against a party, Denaro, thereby satisfying the first prong of Rule 801(d)(2). The second prong requires that the statement be made by a co-conspirator of a party during the course and in furtherance of the conspiracy. Buck and Denaro were co-conspirators, thereby qualifying Buck’s statement under the first part of the Rule’s second prong. The remaining issue then becomes whether Buck’s statement was made during the course and in furtherance of the conspiracy.

This court has held that statements by an alleged co-conspirator during the course and in furtherance of the conspiracy are admissible if the State makes a prima facie showing that a conspiracy existed between the declarant, in this case Buck, and the defendant, in this case Denaro. Dyer v. State, 343 Ark. 422, 36 S.W.3d 724 (2001). In Dyer, we stated:

Although this court has had few opportunities to discuss the ‘in furtherance of element of Rule 801 (d) (2) (v), it has held that statements designed to further the specific objective of the conspiracy are made in furtherance of the conspiracy. Dixon, 310 Ark. 460, 839 S.W.2d 173. Federal cases interpreting the corresponding federal rule of evidence hold that this requirement should be interpreted broadly. See Cordova, 157 F.3d 587; United States v. Edwards, 994 F.2d 417 (8th Cir.1993). Thus, statements that have an overall effect of facilitating the conspiracy or that somehow advance the objectives of the conspiracy are said to be in furtherance of the conspiracy. Id.; United States v. Garcia, 893 F.2d 188 (8th Cir.1990). Statements that identify a fellow conspirator are also considered to be in furtherance of the conspiracy. Id. (citing United States v. Handy, 668 F.2d 407 (8th Cir.1982)).

Id. at 429, 33 S.W.3d at 728. We further concluded that statements that may be viewed as being designed to enlist one’s assistance or to induce one’s aid in achieving one of the objectives of the conspiracy are admissible under Rule 801(d) (2) (v). Dyer v. State, supra. Like the statements in Dyer, Buck’s statement to Dillard as to what Denaro said may be viewed as an attempt to enlist the assistance of Dillard and, thus, is not hearsay under Rule 801 (d) (2) (v).

The majority overlooks the “during the course and in furtherance of the conspiracy” language in essentially holding that Rule 801(d) (2) (v) is never applicable when a co-conspirator’s statement contains an out-of-court statement made by a party. I disagree. The majority appropriately holds that each out-of-court statement must be independently analyzed. Moreover, it is undisputed that a statement made by a defendant co-conspirator (Buck) is admissible under Rule 801(d)(2)(i). Yet, the majority goes on to conclude that Rule 801(d) (2) (v) does not apply when the co-conspirator’s statement contains an admission by the defendant. The plain language of the rule makes no such exception.

The majority’s reliance on Dean v. State, 293 Ark. 75, 732 S.W.2d 855 (1987), is misplaced. In that case, the statement at issue was not the declarant’s own admission of involvement, but rather a statement implicating only the defendant. Here, the statement is an admission that Buck had received the information necessary to commit the aggravated robbery. By telling Dillard the information he was told by Denaro, that is, that it was clear to go in the back door, Buck implicated both himself and Denaro in the commission of the aggravated robbery.

Rule 801(d) (2) (v) of the Arkansas Rules of Evidence declares that any statement made by a co-conspirator during the course and in furtherance of the conspiracy is simply not hearsay. While the majority opinion expresses concern about a co-conspirator’s statement being admissible “regardless of the number of persons it may have passed through before it reaches testimony at trial,” such a conclusion ignores the “during the course and in furtherance of the conspiracy” language in the Rule. Rule 801(d)(2)(v) does not apply to: (a) statements made by someone other than a co-conspirator; or (b) statements not made during the course and in furtherance of the conspiracy.

For the above mentioned reasons, I conclude that the trial court did not abuse its discretion in admitting the challenged testimony. Accordingly, I concur with result reached by the majority.

Brown, J., joins this opinion.

       The concurrence misperceives the statement being offered. What is at issue is Appellant’s statement, or in other words an oral assertion of the Appellant. See Ark. R. Evid. 801(a)(1). A party’s statement is admitted under Rule 801(d)(2)(i). Contrary to the assertion in the concurrence, the court does not hold that the testimony is not hearsay under Rule 801(d)(i), but that under Rule 801(d)(2)(i) it would have been exempted from hearsay under the rule had Buck testified to it. Buck was the person who heard the statement. He did not testify, and the statement was thus not admissible under Rule 801(d)(2)®.

       A party’s statement is not admissible under Rule 801(d) (2) (v). Only statements of a coconspirator of a party are admissible under Rule 801 (d) (2) (v). What Buck communicated to Dillard was not his own statement, but Appellant’s statement. Ark. R. Evid. 801 (a)(1). Thus, Appellant’s statement to Buck cannot be analyzed as the concurrence attempts. Rule 801(d) does not provide a blanket exclusion of a statement from hearsay simply because it is a statement amounting to an admission. Rather, as the cases make clear, Rule 801(d) is a codification of longstanding evidentiary and substantive law whereby the certain specified statements amounting to admissions are admitted because the necessary indicia of reliability for admission under long established common law and constitutional requirements are met. The concurrence’s analysis ignores constitutional requirements such as the right to confront witnesses.


author: Jim Hannah, Justice.

text:
    HRR ARKANSAS, INC., and Paul Davis Systems of Central Ark. v. RIVER CITY CONTRACTORS, INC., Tom Megee, and Donna Wright
    01-598
    87 S.W.3d 232
    Supreme Court of Arkansas
    Opinion delivered October 24, 2002

      Brown, Schwander, Greene & Sloan, P.L.C., by: L. Howard Sch-wander, III, for appellant HRR Arkansas, Inc.

      Ross & Ross, P.A., by: Mark L. Ross, for appellees.
   Jim Hannah, Justice.

HRR Arkansas, Inc., d/b/a Paul Davis Systems of Arkansas (“HRR”), appeals the final order and judgment of the Pulaski County Chancery Court, Fourth Division. HRR alleges that the trial court erred: (1) by failing to dismiss the claim of Appellee River City Contractors, Inc. (“River City”), when River City lacked the capacity to sue as a corporation; (2) by failing to remit to HRR $4,000 paid to Appellee Donna Wright; (3) by refusing to grant a permanent injunction to enforce the covenants not to compete provisions of Appellee Tom Megee’s “Sale of Assets Agreement” and “Associate Employment Agreement”; and (4) by awarding commissions to Megee that were contrary to the express language of the Sale of Assets Agreement and Associate Employment Agreement. We reverse and dismiss the trial court’s judgment in favor of River City. We affirm the trial court on the remaining points on appeal.

The Arkansas Court of Appeals certified the instant appeal to this court as an issue of significant public interest or a legal principle of major importance. Thus, our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(d)(2).

Facts

HRR is an Arkansas corporation solely owned by Eric Tucker. In 1996, HRR entered into a Sale of Assets Agreement with Megee, on behalf of River City. Megee was the sole shareholder of River City. Both HRR and River City were in the business of restoration and home repair to damaged property caused by casualty and peril, as defined in the casualty insurance business. River City was a long-established business in the central Arkansas area, and HRR had no Arkansas presence at the time of its purchase of River City’s assets. HRR purchased River City to acquire an existing restoration business which had established good working relationships with insurance companies, their agents and adjusters.

The Sale of Assets Agreement was conditioned upon a commercial lease with River City, as well as the execution of an Associate Employment Agreement with Megee. Both the Sale of Assets Agreement and the Associate Employment Agreement contained covenants not to compete, which provided that “for a period of five (5) years from the date of this agreement, or two (2) years after the termination of this agreement, which ever occurs later, directly or indirectly, within a radius of ten (10) miles of 2824 Barrow Road, Little Rock, Arkansas, or such others established by [HRR],” Megee was not to “engage in the business of insurance restoration or other business substantially the same . . .”.

The terms relating to the sales price in the Sale of Assets Agreement indicated that HRR would pay over a period of time. In addition, the sales price could change by downward adjustments if there were shortfalls in Megee’s revenue production while employed by HRR. Under the terms of the agreement, HRR would receive 20% of all customer contract prices before any commissions were owed to Megee.

After twenty-five months, the working relationship between HRR and Megee broke down. Megee was dissatisfied with the way HRR was running River City. HRR alleged that Megee made derogatory remarks, accusing Tucker of being racist and being prejudiced. HRR also alleged that Megee made “innuendos” about HRR’s financial status. Megee and River City complained of unpaid commissions and past due rent. Megee’s attorney sent a letter to HRR which outlined his disagreements with HRR. Immediately thereafter, HRR changed the locks on the place of business.

Appellee Wright executed a Sale of Assets Agreement with HRR, in which HRR purchased Wright’s “book of business” for $4,000. The book of business included the contacts listed in Exhibit A, which was to be attached to the Sale of Assets Agreement. Wright also entered into an Associate Employment Agreement with HRR. The Sale of Assets Agreement and the Associate Employment Agreement contained covenants not to compete. The covenant not to compete in Wright’s employment contract provided that, for two (2) years after termination of employment, Wright was not to “solicit or do business with any adjuster or insurance company for which [HRR] had completed estimates within the past two (2) years . . .”.

Megee and Wright were fired at approximately the same time. Thereafter, Megee began operating a home repair and restoration business, under the banner of River City Contractors, Inc., in North Little Rock. Wright went to work for Megee.

HRR filed a petition for injunctive relief and damages for breach of the Sale of Assets Agreement against Megee and Wright, arguing that Megee and Wright were in direct competition with HRR, in violation of the no-compete clauses contained in the Associate Employment Agreements and Sale of Assets Agreements. River City counterclaimed and asserted damages for unpaid rent. Megee counterclaimed and asserted damages for unpaid commissions under the Sale of Assets Agreement and Associate Employment Agreement. Wright counterclaimed and asserted damages for unpaid salary and benefits under the Associate Employment Agreement.

HRR, River City, Megee, and Wright submitted a joint exhibit reflecting customer contract prices and amounts actually collected. The trial court appointed a special master to perform an accounting of HRR’s books and bank accounts.

At the close of trial, HRR moved to dismiss all claims by River City, asserting that River City lacked capacity to bring suit. HRR offered into evidence a certified copy of a proclamation from the Secretary of State, which stated that River City’s charter had been revoked in 1996 due to River City’s failure to pay franchise taxes. River City offered no evidence regarding reinstatement of its corporate charter. The trial court did not rule on the motion at that time, but stated that it would issue a letter opinion.

The trial court issued a letter opinion with the following findings. The court determined that the Sale of Assets Agreement with Wright was not a sale, but a non-compete agreement. The court declined to enforce the agreement, finding that $4000 was insufficient consideration for a non-compete agreement. The trial court did not order Wright to return the $4000 she received under the Sale of Assets Agreement. In addition, the court declined to enforce the non-compete clause of Wright’s Associate Employment Agreement because Wright had not learned any trade secrets, because the non-compete clause contained no geographical location, and because Wright was terminated for reasons other than poor job performance.

The trial court declined to enforce the non-compete clause in the Sale of Assets Agreement with Megee, finding that the agreement was predicated on future job performance and was not a sale of assets. Further, the trial court found that the consideration of $26,000 paid to Megee was insufficient and unreasonable for a five-year promise not to compete. The trial court ordered Megee to return the $26,000 paid to him by HRR. The court did not enforce the non-compete clause in Megee’s Associate Employment Agreement because HRR terminated Megee without just cause. In addition, the court determined that the non-compete clause was unenforceable because the geographical area was uncertain.

In an order filed October 26, 2000, the trial court awarded Megee commissions in the amount of $9,523.65. The trial court awarded River City $25,920 for unpaid rent, less roof repairs, that HRR owed to River City. The court ordered Megee to return the $26,000 paid to him by HRR. Wright was awarded $1,224.87 for three weeks’ pay and two days’ car allowance.

Standard of Review

Our standard of review in chancery cases is de novo. ConAgra, Inc. v. Tyson Foods, Inc., 342 Ark. 672, 30 S.W.3d 725 (2000) (Tyson I); Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979),. In Tyson I, we stated:

All of the issues raised in the court below are before the appellate court for decision and trial de novo on appeal in equity cases involves determination of fact questions as well as legal issues. The appellate court reviews both law and fact and, acting as judges of both law and fact as if no decision had been made in the trial court, sifts the evidence to determine what the finding of the chancellor should have been and renders a decree upon the record made in the trial court. The appellate court may always enter such judgment as the chancery court should have entered upon the undisputed facts in the record.

Tyson I, supra (quoting Ferguson, supra (citations omitted)). We have further noted that we do not reverse a finding of fact of the chancery court unless we conclude that the chancery court has clearly erred. Weigh Systems South, Inc. v. Mark’s Scales & Equipment, Inc., 347 Ark. 868, 68 S.W.3d 299 (2002); Saforo & Assoc., Inc. v. Parocel Corp., 337 Ark. 553, 991 S.W.2d 117 (1999). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Bendinger v. Marshalltown Trowel Co., 338 Ark. 410, 994 S.W.2d 468 (1999); Saforo, supra.

Lack of Capacity to Sue

There is a near universal rule that a corporation and its stockholders are separate and distinct entities, even though a shareholder may own the majority of the stock. First Commercial Bank, N.A., v. Walker, 333 Ark. 100, 969 S.W.2d 146, cert. denied, 525 U.S. 965 (1998); Banks v. Jones, 239 Ark. 396, 390 S.W.2d 108 (1965). A corporation has the power to sue and be sued in its corporate name. Ark. Code Ann. § 4-26-204(a)(2) (Repl. 200J.). Generally, a corporate officer has no individual right of action against a third party for alleged wrongs inflicted on the corporation, even if the officer is the sole shareholder. Walker, supra.

In considering whether a corporation that had ceased to exist could initiate a lawsuit, we have stated:

[T]he trial judge ruled, quite properly, that a corporation not in existence could not initiate a lawsuit. That is the law. In Sulphur Springs Recreational Park, Inc. v. City of Camden, 247 Ark. 713, 447 S.W.2d 844 (1969), we affirmed a trial court’s dismissal of a complaint, because the plaintiffs corporate charter was not in existence when the suit was filed .... A suit must be initiated by a person, natural or artificial. Fausett & Co. v. Bogard, 285 Ark. 124, 685 S.W.2d 153 (1985).

Committee for Utility Trimming, Inc. v. Hamilton, 290 Ark. 283, 718 S.W.2d 933 (1986). Our law provides that a corporation cannot file a complaint in court after it ceases to exist legally. Id.

River City’s corporate charter was revoked by the Secretary of State in 1996, pursuant to Ark. Code Ann. § 26-54-111 (Repl. 1997), after River City failed to pay franchise taxes. There is nothing in the record to indicate that River City has ever attempted to reinstate its corporate charter. River City ceased to exist legally; therefore, it cannot initiate a lawsuit. River City lacked the capacity to sue, and it follows that River City lacked the capacity to obtain a judgment. The trial court erred when it awarded River City $25,920 for unpaid rent.

Sums Paid to Wright

HRR argues that the trial court erred when it faded to order Wright to remit the $4,000 paid to Wright under the Sale of Assets Agreement after the trial court rescinded the Sale of Assets Agreement, holding it unenforceable. It must be noted that the trial court did not rescind the Sale of Assets Agreement, nor did it hold that the agreement was unenforceable. Rather, the trial court held that the covenant not to compete contained in the Sale of Assets Agreement was unenforceable. In its letter opinion, the court noted that HRR had never been able to furnish the court with a complete copy of the contract that it wished to enforce, and that Wright denied that she had a book of business to sell. The trial court also found that Wright did not have anything to sell. Further, Wright testified that she was to be paid a salary of $25,000 by HRR, but that Tucker told her he would pay her $21,000 as a salary and $4,000 as a “buyout.” Wright testified that Tucker told her he was paying her in this manner for tax purposes. Tucker, who testified that he had a masters in taxation, disputed this claim, stating that he would not reduce tax costs by treating the $4,000 as a buyout.

Wright argues that the trial court considered the $4,000 to be compensation for her employment. Indeed, in the letter opinion, the trial court found that Wright had nothing to sell and noted that Wright’s employment agreement contained no provision for compensation. The Sale of Assets Agreement provided that Wright was to be paid $4,000 in twelve equal installments of $333.33 “beginning on 5 September 1997 and continuing on each first Friday of every calendar month until twelve such payments have been made or until [Wright] is no longer employed with [HRR], whichever comes first.” This language supports a finding that the $4,000 payment to Wright was compensation for employment, and not for the sale of assets. HRR testified that Wright was being paid $4,000 for her book of business, something that she allegedly possessed before she began working for HRR. If Wright had quit or been fired before she received her twelve payments, then she would have received less than $4,000; therefore, the value of the book of business was dependent upon Wright’s future employment. Though the trial court did not specifically find that the $4,000 payment to Wright was compensation for employment, we find that the payment of $4,000, which was contingent upon Wright’s employment, was compensation for employment, and not compensation for a sale of assets. We will affirm the trial court when it has reached the right result, even though it has announced the wrong reason. Norman v. Norman, 347 Ark. 682, 66 S.W.3d 635 (2002); Madden v. Aldrich, 346 Ark. 405, 58 S.W.3d 342 (2001). The trial court heard testimony from both Wright and Tucker regarding the disputed $4,000, and it was the trial court’s decision not to remit the $4,000 to HRR. The chancellor is recognized as being in a superior position to assess the credibility of witnesses. Mobley v. Harmon, 313 Ark. 361, 854 S.W.2d 348 (1993). We do not find that the trial court was clearly erroneous when it declined to have Wright return $4,000 to HRR, and accordingly, we affirm.

Covenants Not to Compete

The trial court declined to enforce the covenant not to compete in Megee’s Sale of Assets Agreement because it found that the consideration for a sale of a book of business which is predicated upon future job performance indicated that the contract was not actually a sale of assets. In addition, the trial court declined to enforce the covenant not to compete because it found $26,000 to be insufficient consideration for a covenant not to compete, and because it found the covenant unreasonable in relationship to the contract. Further, the trial court found that since it was holding the contract unenforceable by its terms and its unreasonableness, the contract was in effect, rescinded, and it ordered Megee to reimburse Tucker for the consideration paid for the alleged sale of the book of business, or $26,000. The trial court also found that Tucker failed to establish that Megee learned or possessed any trade secrets which Megee physically or mentally removed from the office after being terminated.

The trial court declined to enforce the covenant not to compete in Megee’s Associate Employment Agreement because it found that the geographic location in the covenant was not only unclear, but unreasonable. The covenant, which is the same as the covenant that appears in the Sale of Assets Agreement, states that Megee cannot compete “within . . . ten (10) miles of 2824 Barrow Road, Little Rock, Arkansas, or such others established by [HRR] . . . .” The trial court determined that the “such others” language “apparently leaves the corporation in control of designating a prohibited geographic location at some time without any assent of the employee,” and that the “ambiguous term fails to establish an enforceable geographic location.” In its brief, HRR contends that the language used in the covenant not to compete was necessary given the total circumstances. HRR argues that “[w]ithout such opened [sic] ended language, [HRR] could not protect [itself] in the event that Megee decided to breach by cancelling the lease, or losing it in foreclosure, bankruptcy or some other form of divestiture which would force [HRR] to relocate [its] business.”

Without statutory authorization or some dominant policy justification, a contract in restraint of trade is unreasonable if it is based on a promise to refrain from competition that is not ancillary to a contract for the transfer of goodwill or other property. Bendinger, supra; Dawson, supra. However, the law will not protect parties against ordinary competition. Bendinger, supra; Orkin v. Weaver, 257 Ark. 926, 521 S.W.2d 69 (1975). We have recognized that covenants not to compete in employment contracts are subject to stricter scrutiny than those connected with a sale of business. Bendinger, supra. We have held, in cases involving covenants not to compete in both employment contracts and sales of businesses, that whether a restraint provision is reasonable or unreasonable (and thus valid or invalid) is a matter to be determined under the particular circumstances involved. McCleod v. Meyer, 237 Ark. 173, 372 S.W.2d 220 (1963).

In Bendinger, we stated that the failure of the covenant to contain a geographic restriction rendered it overbroad. Bendinger, supra. However, we noted that not every restrictive covenant that failed to contain a geographic restriction would be considered unreasonable. Id.; see, e.g., Girard v. Rebsamen Ins. Co., 14 Ark. App. 154, 685 S.W.2d 526 (1985). In Girard, the court of appeals held that a restrictive covenant, under which an insurance salesman was prohibited from soliciting or accepting insurance business from customers whose accounts he serviced at the time of his termination, was reasonable under the circumstances, even though the covenant contained no geographic restriction. Girard, supra. The court of appeals noted that the appellant was free to solicit and accept business from 95% of the overall insurance market, and, in fact, was free to solicit and accept business from 80% of the customers of his former employer’s office. Id.

This case is factually distinguishable from Girard. In the present case, the covenant not to compete in Megee’s Associate Employment Agreement prohibited Megee, for two years after termination, from engaging in the business of insurance restoration, home repair, or any other substantially similar business. While the employee in Girard was free to solicit 95% of the insurance market, in the present case, the covenant not to compete would prohibit Megee from working in any insurance restoration or home repair business. HRR’s failure to include an enforceable geographic restriction, combined with the two-year restriction which prohibited Megee from working in insurance restoration, home repair, or other substantially similar businesses renders it overbroad. We agree with the trial court’s finding that the covenants not to compete in both the Sale of Assets Agreement and the Associate Employment Agreement are unreasonable.

Megee’s Commissions

HRR argues that the trial court’s findings regarding four accounts were clearly against the evidence. HRR contends that the trial court erred in finding that $2,291 remains to be collected on the Neubauer account. HRR contends that pursuant to section 19(b) of Megee’s Associate Employment Agreement, there is a 5% charge for all collections, so the commission should have been reduced by $291. The trial court found that Megee was terminated before he was given the opportunity to collect the account, and on those accounts where Megee was terminated before collection, the amount to be collected was reduced by 65%. This was based on Megee’s testimony that each account had a 35% profit built in. We do not find the trial court’s determination clearly erroneous.

HRR argues that the trial court erred when it awarded HRR $540 for the Jernigan account. HRR states that, per the terms of the Associate Employment Agreement, Megee guarantees 20% of the customer contract price to HRR. The court found that the contract price was $4,782. HRR contends that it should have been awarded $932.49. Megee stated that he was advised to stop work on the Jernigan job after the customer had a stroke, so the contract was not completed. The trial court resolved the dispute by determining the contract price to be the amount collected. The trial court further found that the legal expenses necessary to collect the account should be considered as part of the expenses incurred, regardless of how it was characterized on the ledger. We do not find the trial court’s determination clearly erroneous.

The trial court found that there was litigation over the quality of work performed on the Hinson account. HRR argues that the contract price was $79,224 on the Hinson account, and that the trial court arbitrarily established the contract price of $45,926. HRR argues that pursuant to their agreement, Megee owed HRR 20% of the contract price, or $15,448.68. In addition, HRR argues that Megee also owed HRR the difference from the expenditures on the job and the amount actually collected. Actual expenses were $37,577, and the actual amount collected was $32,875, for a difference of $4,732. We note that the difference between the actual expenses and the actual amount collected is $4,702, not $4,732. HRR argues that it is owed a total amount of $20,180 on the Hinson account. HRR is mistaken in its assertion that the Hinson contract price was $79,224. The record indicates that the Hinson contract price was $45,926, and the National Resort contract price was $79,224. There was a loss of $4,702 on the Hinson account. The trial court found that both Megee and Tucker were responsible for the problems with the performance of the contract, and it allocated the actual loss between the parties. We do not find that the trial court was clearly erroneous in its allocation.

The contract price on the Gray account was $2,158. The court found the total expenses to be $2,160. The court awarded HRR one dollar. HRR argues that it was guaranteed 20% of the contract price, so the trial court should have awarded HRR $420.81. In its letter opinion, the trial court found that there was a dispute about the performance of the contract, which was not resolved until litigation was instituted, and the court was unable to determine fault regarding the Gray account. Therefore, the court resolved the dispute by allocating the loss between the parties. The trial court’s findings were not clearly erroneous.

Finally, HRR argues that the trial court’s reduction for expenses by 65% of the contract price is arbitrary and capricious. HRR argues that the agreement between Megee and HRR guarantees 20% of the customer contract price to HRR. HRR argues that the court’s findings regarding Megee’s commissions for the Byrd, Tatum, Stacklager, National Resort, Papineau, Alderson, Neubauer, and A. Williams accounts is “totally contrary to the express language of the employment agreement of [Megee].”

Megee was terminated before he was given the opportunity to collect the accounts. Since the accounts needed to be finally settled for the parties, the trial court resolved the dispute by determining the contract price to be the amount collected and by reducing the contract price by 65% of the amount to be collected for expenses. This was based on Megee’s testimony that each contract had a 35% profit margin. The court determined the commission by taking 97.5% of the determined contract price and multiplying by the applicable commission percentage of 16% on the Byrd, Tatum, and Stacklager accounts, and 11% on the National Resort, Papineau, Alderson, Neubauer, and Williams, A. accounts. The trial court’s resolution of the dispute was not clearly erroneous.

In sum, we reverse the trial court’s judgment of $25,920 to River City; we affirm the remainder of the trial court’s judgment.

Arnold, C.J., not participating.


author: Per Curiam.

text:
    Ross Lamar BURNETT, Sr. v. STATE of Arkansas
    CR 02-336
    86 S.W.3d 930
    Supreme Court of Arkansas
    Opinion delivered October 24, 2002

      G.B. "Bing” Colvin, for appellant.
    No response.
   Per Curiam.

Appellant, through his attorney, G.B. “Bing” Colvin, has filed a motion for an additional extension of time to file the brief in this capital murder case. Pursuant to a granted motion for extension of time, Burnett’s brief was due on or before July 14, 2002. Mr. Colvin failed to meet that deadline. He filed another motion for extension of time to file the brief on August 21, 2002, after the State, on August 7, 2002, filed its motion to dismiss due to Mr. Colvin’s failure to file the brief. Mr. Colvin accepted responsibility for the untimely tendering of the brief, and he asked the court for additional time to file the brief. On September 5, 2002, Mr. Colvin was granted a twenty-one day extension to September 26, 2002. The court forwarded a copy of the per curiam to the Committee on Professional Conduct. Burnett v. State, 350 Ark. 2, 83 S.W.3d 417 (2002) (per curiam). The motion under consideration was filed on September 25, 2002, one day before the extension of time expired. Mr. Colvin requests an additional forty-five days from September 26, 2002, to file his brief.

We grant Burnett’s motion and extend the time for filing the brief to November 12, 2002. Because appellant has been granted earlier extensions of time, no further extensions will be granted. A copy of this per curiam will be forwarded to the Committee on Professional Conduct.


text:
    Jerry L. EDMOND v. STATE of Arkansas
    CR 01-1050
    86 S.W.3d 930
    Supreme Court of Arkansas
    Opinion delivered October 24, 2002

      David Mark Gunter, for appellant.
    No response.
   Per Curiam.

We ordered David Mark Gunter, counsel for the appellant Jerry L. Edmond, to appear Thursday, October 10, 2002, to show cause why he should not be held in contempt for failing to file the appellant’s brief by August 10, 2002, as ordered by this court on July 11, 2002. Mr. Gunter appeared before this court on October 10, 2002, as ordered, and pled guilty to contempt. He offered no reason in mitigation other than he had taken steps to reduce his work load.

Mr. Gunter has tendered a brief to the clerk for filing.

The court hereby finds Mr. Gunter in willful contempt of this court and orders him to pay $250.00 to the clerk of this court. A copy of this contempt order will be forwarded to the Committee on Professional Conduct. The clerk of this court is ordered to file the brief Mr. Gunter tendered to the clerk.


text:
    Michael Jay VENIS v. STATE of Arkansas
    CR 02-920
    87 S.W.3d 241
    Supreme Court of Arkansas
    Opinion delivered October 24, 2002

      Jay Saxton, for appellant.
    No response.
   Per Curiam.

Appellant Michael Jay Venis, by and through his attorney, Jay Saxton, Chief Benton County Public Defender, has filed a motion for belated appeal from his convictions for manufacturing methamphetamine and possession of pseudoephedrine with intent to manufacture methamphetamine. Appellant was convicted following a jury trial on March 21, 2002. The judgment and commitment order was entered on June 7, 2002.

Appellant filed this motion on September 3, 2002. We initially denied the motion and remanded the matter to the Benton County Circuit Court to settle the record. See Venis v. State, 350 Ark. 110, 84 S.W.3d 867 (2002) (per curiam). Particularly, we instructed the trial court to determine whether Appellant’s trial counsel, John Gross, had been relieved of his responsibility to represent Appellant in this matter, whether Appellant had requested Mr. Gross to file a notice of appeal on his behalf, and whether the public defender’s office had been appointed to represent Appellant on appeal.

Following remand, the trial court entered an order on October 1, 2002, finding that (1) Appellant had immediately, on the date of his trial, requested Mr. Gross to file a notice of appeal on his behalf; (2) the public defender’s office had been appointed to represent Appellant on May -3, 2002; and (3) Mr. Gross was relieved of his obligation to represent Appellant. Based on these findings, we now grant the motion for belated appeal.


author: Ray Thornton, Justice.

text:
    STATE of Arkansas v. James Eric FOUNTAIN
    CR 01-890
    88 S.W.3d 411
    Supreme Court of Arkansas
    Opinion delivered October 31, 2002

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

      Hatfield & Lassiter, by: Jack T. Lassiter, for appellee.
   Ray Thornton, Justice.

The State appeals an original and amended judgment and commitment order in which the Pulaski County Circuit Court suspended four years of the ten-year, statutory-minimum sentence for simultaneous possession of drugs and firearms of appellee, James Eric Fountain. On appeal, the State argues that by suspending four years of appellee’s ten-year sentence, the trial court imposed a void or illegal sentence. On cross-appeal, appellee argues that the trial court erred in denying his motion to suppress evidence seized at his home. We have jurisdiction pursuant to Ark. Sup. Ct. R. l-2(a)(7), as there was a previous appeal to our court. See Fountain v. State, 348 Ark. 359, 72 S.W.3d 511 (2002). We reverse the trial court’s imposition of a suspended sentence and conclude that the trial court did not commit error in denying appellee’s motion to suppress the evidence.

On February 12, 2001, the trial court found appellee guilty of simultaneous possession of drugs and firearms, a violation of Ark. Code Ann. § 5-74-106 (Repl. 1997), a class Y felony, and three other drug-related offenses. On April 23, 2001, the trial court imposed sentence on appellee based upon his conviction of simultaneous possession of drugs and firearms. At the sentencing hearing, the court stated, “So on count one in this case it’ll be the judgment and sentence of the Court that you serve a term of ten years in the Arkansas Department of Correction, however, I’m going to suspend four years of that.”

On April 27, 2001, the State filed a motion to reconsider the sentence, arguing that Ark. Code Ann. § 5-4-301 (a)(1)(C) (Repl. 1997) prohibited the suspension of four years of appellee’s sentence because appellee was convicted of a class Y felony. On May 8, 2001, appellee filed a response in which he argued that the court did not suspend imposition of his sentence or place him on probation. A hearing was held on the matter on May 14, 2002, and the trial court denied the State’s motion to reconsider appellee’s sentence.

On May 22, 2001, the judgment and commitment order was filed, and on June 21, 2001, an amended judgment and commitment order was filed. This amended' order reflected appellee’s sentence of ten years with four years suspended. From this order, the State appeals, and appellee cross-appeals on the issue of the suppression of the evidence.

For its sole allegation of error, the State argues that the trial court erred by suspending four years of appellee’s ten-year sentence. Specifically, the State contends that the trial court erred by sentencing appellee to ten years’ imprisonment with four years suspended, thereby effectively giving him a six-year sentence.

The State may appeal the imposition of a void or illegal sentence by the trial court. State v. Stephenson, 340 Ark. 229, 9 S.W.3d 495 (2000). A sentence is void or illegal when the trial court lacks the authority to impose it. Thomas v. State, 349 Ark. 447, 79 S.W.3d 347 (2002). Sentencing in Arkansas is entirely a matter of statute, and the sentencing procedures pertinent here are found in Ark. Code Ann. § 5-4-101-618 (Repl. 1997). We have consistently held that sentencing shall not be other than in accordance with the statute in effect at the time of the commission of the crime. Meadows v. State, 320 Ark. 686, 899 S.W.2d 72 (1995). Where the law does not authorize the particular sentence pronounced by the trial court, that sentence is unauthorized and illegal, and the case must be reversed and remanded. Id.

When reviewing the sentencing guidelines for a class Y felony, the courts are guided by Ark. Code Ann. § 5-4-401 (a)(1) (Repl. 1997) and Ark. Code Ann. § 5-4-301 (a)(1)(C) (Supp. 2001). Under Ark. Code Ann. § 5-4-401(a)(l), a defendant convicted of a class Y felony shall be sentenced to “not less than ten (10) years and not more than forty (40) years, or life. . . [.]” Id. Arkansas Code Annotated § 5-4-301 (a)(1)(C) provides:

(a)(1) A court shall not suspend imposition of sentence as to a term of imprisonment . . . for the following offenses:
(C) Class Y felonies, except to the extent suspension of an additional term of imprisonment is permitted in § 5-4-104(c) [.]

Id.

The State cites Stephenson, supra, as authority that the trial court erred by sentencing appellee to ten years’ imprisonment with four years suspended. In Stephenson, two appellees were convicted of possession of a controlled substance with intent to deliver, a class B felony, and simultaneous possession of drugs and firearms, a class Y felony. The trial court originally sentenced each appellee to probation on the class B felony and ten years’ imprisonment on the class Y felony. Appellees filed motions to set aside the verdict, and the trial court amended the order to include the imposition of the ten-year sentence with a suspension upon completion of other requirements. We held that the trial court had no authority to suspend the imposition of a sentence or to suspend the execution of a sentence. Id. (emphasis added).

Here, appellee was convicted of simultaneous possession of drugs and firearms, a class Y felony and a violation of Ark. Code Ann. § 5-74-106 (Repl. 1997). The trial court was mandated to sentence appellee to a term of imprisonment of “not less than ten (10) years and not more than forty (40) years, or life.” Ark. Code Ann. §§ 5-4-104(c), 5-4-401 (Repl. 1997). We conclude that the trial court exceeded its statutory authority in suspending the execution of four years of appellee’s ten-year, statutory-minimum sentence. See Stephenson, supra.

In Stephenson, supra, we reversed and remanded for a correction of the sentence. We have also determined that when a sentence is illegal, we may correct it without reversing and remanding. Thomas, supra (modifying Thomas’s sentence to reflect that his probation was not pursuant to Act 346 and that he was not entitled to expungement provisions therein). In the case before us, we correct appellee’s sentence to reflect the statutory minimum of ten years’ imprisonment.

In his cross-appeal, appellee argues that the trial court erred in denying his motion to suppress evidence seized by North Little Rock police officers at his residence in Little Rock. Specifically, he contends that the North Little Rock officers acted outside their jurisdiction. He further contends that the alleged illegal search violates the Fourth Amendment of the United States Constitution, Art. 2, section 15, of the Arkansas Constitution, and Rule 13.3 of the Arkansas Rules of Criminal Procedure.

At an omnibus hearing on October 2, 2000, Detective Rick Dunaway of the North Little Rock Police Department stated that he obtained a search warrant from a North Little Rock municipal judge for the search of appellee’s Litde Rock home. During the search, numerous items were seized, including controlled substances and firearms. These items were introduced as evidence against appellee at trial.

At trial, an agreement was introduced into evidence. The document is called an “interagency agreement” signed by Sheriff Randy Johnson of Pulaski County on October 11, 1999. North Little Rock police chief, William P. Nolan, and North Little Rock mayor, Patrick Hays, signed the document on November 16, 1999. The document states that “the Sheriff of Pulaski County, Arkansas, grants permission for the certified law enforcement officers in good standing of the North Little Rock Police Department to exercise arrest powers as provided for in Ark. Stat. § 16-81-106 within the legal boundaries of Pulaski County.” The agreement included conditions that are not at issue in the circumstances of this case.

Detective Dunaway testified that on the date of the search, he contacted the Pulaski County Sheriffs office and asked if they would send a couple of deputies to assist. He also contacted the Little Rock Police Department. Additionally, Detective Dunaway testified that he obtained the search warrant. Fie prepared the affidavit and signed it. He confirmed that he executed the search warrant and took evidence to the crime lab. He was also the officer in charge of the preraid briefing.

Appellee cites Colston v. State, 346 Ark. 503, 58 S.W.3d 375 (2001), for the proposition that the traditional concept of territorial jurisdiction for peace officers is that the local community is best served by the requirement that local officers, familiar with local neighborhoods, make arrests in the community. Id. While that observation is valid, we note that Colston, supra, was a plurality decision, and we resolve the issue presented in this case by relying upon other cases, applicable statutes, and rules of criminal procedure. See Logan v. State, 264 Ark. 920, 576 S.W.2d 203 (1979) (noting that a St. Francis County deputy working with a Crittenden County deputy legitimized appellant’s arrest in St. Francis County).

In the present case, the officer had a search warrant. We note that an officer may make an arrest when the officer has a warrant for arrest, as provided by Ark. Code Ann. § 16-81-105 (1987). See also Ark. R. Crim. P. 4.2 (2002). Under Ark. R. Crim. P. 13.3(a), “a search warrant may be executed by any officer.” Id. We noted in Brenk v. State, 311 Ark. 579, 847 S.W.2d 1 (1993) that Ark. Code Ann. § 16-82-201 (1987), which gives any judicial officer in the state the authority to issue a search warrant, does not limit the jurisdiction of the judicial officer to issue search warrants in his or her county. Id.

Here, the North Little Rock Police Department, the Pulaski County Police Department, and the Little Rock Police Department worked together on the case. Detective Dunaway testified to this fact when he said that he contacted the other law enforcement agencies to assist him in the case. Based upon Logan, supra, as well as the foregoing statutes and rules of criminal procedure, we conclude that the trial court’s decision to deny the motion to suppress the evidence was proper.

In reviewing a ruling denying a defendant’s motion to suppress, we make an independent determination based on the totality of the circumstances and view the evidence in the light most favorable to the State. We reverse only if the trial court’s ruling is clearly against the preponderance of the evidence. Burris v. State, 330 Ark. 66, 954 S.W.2d 209 (1997); Wofford v. State, 330 Ark. 8, 952 S.W.2d 646 (1997). Based upon our standard of review, we cannot say that the trial court’s ruling on appellee’s motion to suppress was clearly against the preponderance of the evidence.

Accordingly, we affirm the trial court’s denial of appellee’s motion to suppress, and we reverse the trial court’s imposition of a partially suspended sentence and impose the minimum ten-year sentence required by statute as a corrected sentence.

Brown, J., not participating.

       We note that in Buckley v. State, 341 Ark. 864, 20 S.W.3d 331 (2000), we remanded and instructed the trial court to give an instruction regarding probation as an alternative sentence. Buckley raised the argument in that case. Appellant does not do so in this case.