author: David Newbern, Justice. Robert L. Brown, Justice,

text:
    Kenneth Scott ANDREWS v. STATE of Arkansas
    CR 90-263
    807 S.W.2d 917
    Supreme Court of Arkansas
    Opinion delivered April 22, 1991

      Gibbons Law Firm, by: David L. Gibbons, for appellant.

      Winston Bryant, Att’y Gen., Jeffrey Vining, Asst. Att’y Gen. for appellee.
   David Newbern, Justice.

The appellant, Kenneth Scott Andrews, appeals from his conviction of first degree murder for which he received a sentence of 40 years imprisonment. His sole point of appeal is that there was insufficient evidence to convict him. More specifically, he contended in a motion for directed verdict at the conclusion of the State’s evidence that the testimony of an alleged accomplice was not corroborated by independent evidence showing that he was connected with the crime. We affirm the conviction because of Andrews’s failure to renew his directed verdict motion at the conclusion of all of the evidence in the case.

Danny Jordan testified in great detail about the crime and the participation of Kenneth Scott Andrews (Scott) and Scott’s father, Joe Kenneth Andrews (Joe). Jordan told of helping move a safe from a jewelry store to the home of the victim James Robinson. He told Joe about the safe, and Joe expressed interest in stealing it. At one meeting where Joe, Scott, and Jordan were present, Scott announced that he would get the safe even if the others would not do it. On February 19, 1990, the three went to Dardanelle State Park in Joe’s father’s green and white pickup truck to observe Robinson’s house. Jordan said they stayed there a whole afternoon and planned to steal the safe which they would then bury in the Andrews’ yard.

Jordan testified further that on the afternoon of February 20 he .was at home visiting with his mother when Joe and Scott arrived in the green and white truck. When Jordan’s mother left, at about 4:00 p.m., the three men drove to the park in the truck and watched Robinson’s home until a hired person working around the house left at about 5:30 p.m. Joe gave Jordan and Scott each a pair of white gloves to wear while taking the safe. They then drove to Robinson’s home. Jordan stayed in the driveway with the truck while Joe and Scott went into a carport. Jordan then heard choking sounds and Scott waved to him to come to the carport where Jordan saw Robinson lying atop an air conditioner.

Jordan said that when he and Scott attempted to enter a shop area to get the safe, they tripped a burglar alarm. As Jordan and Scott were running back to the truck, Jordan looked back and saw Joe with his hand on Robinson’s chest, but he did not see a knife. Joe, who had blood on his hands, got in the truck and told Jordan and Scott that he had choked Robinson with a rope and stabbed him two or three times. They then drove to Delaware'Park. Joe had Robinson’s wallet from which he gave Jordan $100 and Scott $95, keeping $95 for himself.

Danny Jordan’s mother, Wilma Jordan, testified that Danny Jordan and Joe Andrews were good friends. She was at Danny Jordan’s home on the afternoon of February 20 when Joe and Scott Andrews pulled up in a green pickup truck. She left them there together at around 3:45 or 4:00 that afternoon.

James Warren testified that, on February 20 at 5:30 p.m., he saw three men in the park where he was jogging. The three were looking south toward Robinson’s home. He also saw a green pickup truck near the men.

Sandra Rackley testified she saw her brother, Danny Jordan, and Joe Andrews together at 8:00 p.m. on February 20.

Carrie Payton testified that Scott Andrews came to the Gum Log area, on February 20 between 5:30 and 6:00 p.m., where her mother’s and her grandmother’s homes were. On cross-examination she stated it could have been 6:30 or 7:00 p.m. as she had said in an earlier statement to the police. She testified Scott told her he had almost $100. He offered to give her $5.00, and the following day he brought her a bottle of champagne, a dozen roses in separate vases, and a stuffed animal.

Carrie Payton’s mother testified that, in addition to the items Carrie mentioned, Scott brought her a small “promise ring” with a diamond in it.

Jean Andrews, wife of Joe, testified that Scott was unemployed and had been since November. Another witness testified that Scott had done odd jobs for her but that she had paid him no more than $50 the week prior to February 20.

Police officers testified they arrested Scott on suspicion of having killed Robinson. When arrested, Scott was at an outdoor “beer party” where people under age were drinking. When the officers began looking through the crowd for Scott, he attempted to move toward the edge of the group, and when they approached him, he began to run but was tackled after taking about six strides. He was given a rights warning and placed in the officers’ car. One officer asked the other if Carrie was at the party, and Scott volunteered a statement that she was not involved in “this mess” and there was no reason for her to be.

A felony conviction may not be based on the testimony of an accomplice unless it is “corroborated by other evidence tending to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof.” Ark. Code Ann. § 16-89-111(e)(1) (1987). “The test for determining the sufficiency of corroborating evidence is whether, if the testimony of the accomplice were totally eliminated from the case, the other evidence independently establishes the crime and tends to connect the accused with its commission.” Foster v. State, 290 Ark. 495 at 498, 720 S.W.2d 712 at 713-14 (1986).

The question presented to the trial court at the close of the State’s case by motion for directed verdict was whether the corroborating evidence met the statutory requirement, that is, whether it was sufficient to establish the commission of the offense and connect Scott Andrews with it. The trial court denied the motion.

No motion for a directed verdict was made by the defendant at the close of the case. Arkansas R. Crim. P. 36.21 (b) provides:

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

The sufficiency of the evidence issue was thus waived by failure to move for a directed verdict at the close of the case, and we decline to consider the issue on appeal. Thomas v. State, 303 Ark. 210, 795 S.W.2d 917 (1990); Houston v. State, 299 Ark. 7, 771 S.W.2d 16 (1981).

The State has not argued that Scott Andrews failed to make the motion. Counsel for Andrews quite properly called the problem to our attention in oral argument but contended that the rule should not apply in this case because none of the evidence presented by Andrews could have influenced the court’s decision to deny the motion for directed verdict for lack of corroboration which was made at the close of the State’s evidence. No authority was cited for this argument, and we are not convinced by it.

The Reporter’s Note to Rule 36.21(b) states that the Rule was amended in 198 8 to include the requirement that the directed verdict motion be made at the close of all the evidence to bring the practice in line with that in civil cases. The civil Rule is found at Ark. R. Civ. P. 50(e). In civil cases we hold that a defendant’s presentation of evidence after denial of his or her directed verdict motion constitutes a waiver of the question whether the evidence is sufficient to go to the jury. Higgins v. Hines, 289 Ark. 281, 711 S.W.2d 783 (1986); Granite Mountain Rest Home v. Schwartz, 236 Ark. 46, 364 S.W.2d 306 (1963).

In Sanson v. Pullum, 273 Ark. 325, 619 S.W.2d 641 (1981), we referred to the requirement of renewal of the motion as a “settled rule,” and we explained that:

If a defendant could introduce evidence without waiving his first motion for a directed verdict, he could supply the very defect complained of and still obtain a new trial after having speculated upon the possibility of a favorable verdict upon all the proof.

Rule 36.21 could not be clearer, and we are not inclined to make an exception to it which would require us to evaluate whether a defendant’s evidence, or perhaps evidence brought out by the State on cross-examination of the defendant’s witnesses, makes a difference in whether a verdict should be directed, especially when the trial court has been given no opportunity to make such a decision.

Affirmed.

Brown, J., concurs.

Robert L. Brown, Justice,

concurring. I concur in the majority’s opinion and regret that a procedural failing precludes us from considering whether the evidence in this case includes sufficient evidence to corroborate an accomplice’s testimony. The parties are at odds over the test for sufficient corroborative evidence. The appellant argues that such evidence must be independent evidence which can sustain a conviction separate and apart from the accomplice’s statement. The Attorney General submits that corroborative evidence may merely be evidence verifying those facts asserted by the accomplice. Our past cases confirm that neither party hits the mark. The importance of this issue mandates some discussion of it.

Arkansas law requires that the corroborative evidence tend to connect the defendant with the commission of the crime. Ark. Code Ann. § 16-89-111 (1987). Corroboration is not sufficient, if it merely shows that the crime was committed and the circumstances of the crime. Id. We have held that the “corroboration must be sufficient standing alone to establish the commission of the offense and to connect the defendant with it.” Johnson v. State, 303 Ark. 12, 17, 792 S.W.2d 863, 865 (1990); David v. State, 295 Ark. 131, 140, 748 S.W.2d 117, 122 (1988). The corroborative evidence must be substantial evidence which is stronger evidence than that which merely raises a suspicion of guilt. Henderson v. State, 279 Ark. 435, 652 S.W.2d 16 (1983). Circumstantial evidence qualifies as corroborating evidence but it, too, must be substantial. See David v. State, supra. However, corroboration need not be so substantial in and of itself to sustain a conviction. See Rhodes v. State, 280 Ark. 156, 655 S.W.2d 421 (1983); Walker v. State, 277 Ark. 137, 639 S.W.2d 742 (1982).


source: Caselaw Access Project

author: Tom Glaze, Justice.

license: Public Domain

text:
    Kenneth W. LANDERS v. ENERGY SYSTEMS MANAGEMENT COMPANY
    91-64
    807 S.W.2d 33
    Supreme Court of Arkansas
    Opinion delivered April 22, 1991

      Spencer, Spencer, Depper & Guthrie, by: Robert L. Depper, Jr., for appellant.

      Davidson Law Firm, Ltd., by: Charles Darwin "Skip” Davidson, for appellee.
   Tom Glaze, Justice.

This appeal is from the trial court’s decision barring appellant’s suit for negligence against appellee Energy Systems Management Co. (Ensco), stating appellant’s remedy was limited to Worker’s Compensation benefits. At the time appellant sustained his injuries, his employer, PSC Laboratory Management Services, was participating in a joint venture with Ensco which involved marketing the services of packaging, collecting, transporting and disposal of lab pacs — chemicals or waste materials packaged in fifty-five gallon drums. Appellant argued below, and now on appeal, that Ensco should not. be immune from tort liability because, in addition to Ensco’s role as a joint venturer and employer, it occupied a second or “dual capacity” that conferred upon it obligations independent of those imposed on it as an employer.

Professor Larson recently criticized the so-called “dual capacity” doctrine, stating the doctrine has proved to be subject to misapplication and abuse and the only effective remedy is to jettison it altogether and substitute the terms “dual persona doctrine.” 2A Larson, Workmen’s Compensation Law § 72.81 (1987). Under this theory, an employer may become a third person, vulnerable to tort suit by an employee, if and only if, he or she possesses a second persona so completely independent from and unrelated to the status as employer that by established standards the law recognizes it as a separate legal person. Id. In an attempt to explain this dual persona doctrine, Larson states the following:

Perhaps the best way to approach a correct analysis of the dual-persona concept is to provide illustrations of exceptional situations in which the concept can legitimately be employed. These will ordinarily be situations in which the law has already clearly recognized duality of legal persons, so that it may be realistically assumed that a legislature would have intended that duality to be respected. The duality may be one firmly entrenched in common law or equity. The status of a trustee or of a guardian is a familiar example of this. No such case has appeared in the reports, but one can readily hypothesize the case of a trustee who, as trustee, is legal owner of a small business. If the question should arise whether this confers immunity on him as an individual for torts he commits upon employees of the trust business, no one would hesitate to answer in the negative.
The duality may also be created by modern statute, the obvious example being the one-man corporation. Here again, apart from exceptional circumstances justifying the “piercing the corporate veil,” it is assumed without question that the corporation is a separate legal persona — because the statute makes it so.

In addition to the foregoing, Larson gives further examples of when the dual persona concept applies, but none is helpful to the appellant. Here, appellant was injured while coming to the aid of a co-worker who attempted to pour acid from a fifty-five gallon drum into smaller containers without a “barrel tilter” — an implement required by federal safety regulations. The drum fell, pulling the appellant over and into the acid that spilled. Appellant argues Ensco’s tort liability lies in the fact that, (1) in addition to being a joint venturer and employer, Ensco owned the property on which the joint venture did business, (2) it was required but failed to provide a barrel tilter and (3) its employee (not an employee of the joint venture) was responsible for safety in the entire Ensco premises, including the area where the joint venture was located. However, these factors fail to fall within the concept of dual persona even if that concept was recognized by this court.

Larson, in citing a host of cases and discussing various situations in which he believed the dual persona concept can legitimately be employed, stated that it is held with virtual unanimity that an employer cannot be sued as the owner or occupier of land, whether the cause of action is based on common-law obligations of landowners or on statutes such as safe place statutes or structural works acts. Larson submitted the following reasons for such holdings:

Apart from the basic argument that mere ownership of land does not endow a person with a second legal persona or entity, there is an obvious practical reason requiring this result. An employer, as part of his business, will almost always own or occupy premises, and maintain them as an integral part of conducting his business. If every action and function connected with maintaining the premises could ground a tort suit, the concept of exclusiveness of remedy would be reduced to a shambles.

2A Larson, Workmen’s Compensation Law § 72.82 (1987).

In the present case, Ensco, indeed, provided the premises and equipment used by the joint venture to perform the joint venture’s business — part of which business the appellant and his coworker were performing when the incident in question occurred. Nevertheless, as pointed out by Larson above, Ensco’s ownership and maintenance of its premises or its responsibility to provide for safety devices for its employees does not cause it to be subject to a suit in tort. Each venturer, Ensco and PSC Lab, had agreed to maintain worker’s compensation insurance for its employees assigned to the joint venture, and Ensco paid such benefits to appellant after he sustained his work-related injuries. We believe the trial court was correct in limiting appellant to these compensation benefits. In sum, the appellant failed to allege and the record otherwise fails to show the Ensco possessed a second persona so completely independent from and unrelated to its status as an employer.

Finally, while appellant seems to acknowledge and does not argue otherwise, we mention also that the fact Ensco is a joint venturer does not satisfy the dual persona concept. In Lewis v. Gardner Engineering Corp., 254 Ark. 17, 491 S.W.2d 778 (1973), we adhered to the general rule that a joint venturer who is also an employer is immune from tort liability under the Worker’s Compensation Law. The court stated further as follows:

It has been held that unlike a partnership, a joint adventure is not a distinct legal entity separate and apart from the parties composing it, and consequently an employee of a joint adventure is an employee of each of the joint adventurers under ordinary principles of agency, and the liability of the joint adventurers and their insurance companies for workmen’s compensation to such employee is joint and several, (citation omitted)

Id. at 18, 491 S.W.2d at 779.

For the reasons set out above, we conclude the dual persona concept is inapplicable to the circumstances described in this case. Therefore, we affirm.

Brown, J., not participating.

       Apparently the majority court in Lewis v. Gardner Engineering Corp., 254 Ark. 17, 491 S.W.2d 778 (1973), had the opportunity to recognize the “dual capacity” doctrine, but failed to discuss or apply it. See Fogleman, J. dissenting, Lewis, 234 Ark. at 20, 491 S.W.2d at 780.


text:
    John Joseph TLAPEK v. STATE of Arkansas
    CR 91-31
    807 S.W.2d 467
    Supreme Court of Arkansas
    Opinion delivered April 22, 1991

      Norwood & Smith, by: Doug Norwood, for appellee.

      Winston Bryant, Att’y Gen., Jeff Vining, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant is seeking a writ of prohibition to dismiss on speedy trial grounds a felony charge of illegal delivery of a controlled substance filed against him in Washington County on July 14,1988. Appellant’s charge was based upon the sale of marijuana to an undercover police officer. The sale allegedly took place on July 31,1987. Appellant was not arrested until March 17, 1990. Because of the delay between the filing of the charge and his arrest, appellant requested the trial court to dismiss the charge. After a hearing, at which the state presented no evidence, the trial court denied the motion. The trial court was wrong; therefore we grant appellant’s request for a writ of prohibition.

Under the speedy trial rule, a defendant charged after October 1,1987, is entitled to have the charge dismissed with an absolute bar to prosecution if not brought to trial within twelve months from the time provided in Rule 28.2, excluding such periods of necessary delay in Rule 28.3. A.R.Cr.P. Rule 28.1(c). In this case, the time for trial commences running, without demand by the defendant, from the date the charge is filed. A.R.Cr.P. Rule 28.2(a). Thus, the appellant should have been brought to trial by July 14, 1989, unless the state could prove excludable periods of necessary delay.

Below, the state argued that there were excludable periods under Rule 28.3(e) resulting from the absence or unavailability of the defendant. The burden is on the state to show good cause for the untimely delay. See, e.g., Chandler v. State, 284 Ark. 560, 683 S.W.2d 928 (1985). However, here on appeal, the state concedes that it failed below to prove that there were any excludable periods of time that would lengthen the twelve month period, and we agree.

Between the charge date of July 14,1988, and the arrest date of March 17,1990, the appellant lived in Fayetteville. While the appellant testified that he has lived at four other addresses in Fayetteville, he stated that he has lived at his present address since April of 1988. In addition, the appellant has worked at the same business for a year and a half. Furthermore, during the twenty months between the issuance of the arrest warrant and his arrest, appellant was stopped on four different occasions by the Fayetteville police for various traffic violations. During one of these stops, on September 30,1989, the appellant was told he had an outstanding arrest warrant for illegal delivery of a controlled substance, but he still was not arrested.

There is no evidence that the appellant was unavailable or absent. In fact, not only was the appellant in Fayetteville the entire time in question, but also he was in the Fayetteville police department’s presence on four separate occasions before he was finally arrested. Because the appellant’s right to a speedy trial has been violated, we are compelled to grant the appellant’s request for writ of prohibition, thus dismissing the felony charge against him.


author: Donald L. Corbin, Justice.

text:
    UNION NATIONAL BANK of Arkansas, Little Rock, Arkansas v. Roy D. NICHOLS and Linda S. Nichols
    91-47
    807 S.W.2d 36
    Supreme Court of Arkansas
    Opinion delivered April 22, 1991

      J. Benton Dyke, Jr., for appellant.

      Ford & Blair, by: John M. Blair, for appellees.
   Donald L. Corbin, Justice.

The sole issue raised by appellant in this appeal is whether the ten-day notice requirement of Ark. Code Ann. § 18-50-104(b) (Supp. 1989) is to be computed as ten consecutive calendar days or as ten days excluding intermediate Saturdays, Sundays or legal holidays, in accordance with the Arkansas Rules of Civil Procedure. Appellees claim there should be no appeal from the trial court’s decision because of the automatic stay of 11 U.S.C.A § 362(a)(1) (West Supp. 1990) and an order of the bankruptcy court. We find that an appeal can be taken, and we affirm the trial court’s decision.

On August 28, 1987, appellees, Roy D. and Linda S. Nichols, executed and delivered a promissory note to appellant, Union National Bank of Arkansas. On the same date, appellees executed and delivered to Union Modern Mortgage Corporation a Deed of Trust covering the real property around which this law suit is centered. In September of 1987, both the note and the Deed of Trust were assigned to Union National Bank of Little Rock. Monthly installments apparently were made and applied to the amount due on the promissory note through December 1,1988, at which time the payments stopped.

On June 29, 1989, in the Office of the Circuit Clerk of Benton County, appellant, as required by Ark. Code Ann. § 18-50-103 (Supp. 1989), filed a Trustee’s Notice of Default and Intention to Sell to foreclose all of appellees’ interests in the subject property. As required by section 18-50-104, on July 11, 1989, appellant mailed to appellees by U.S. mail the notice of its intention to sell the property. On August 31, 1989, appellant purchased the property at the trustee’s sale and, on September 13, 1989, served appellees with a Notice to Vacate. Appellees, however, did not vacate, and, on October 5,1989, appellant filed the Complaint for Unlawful Detainer. A hearing was set for November 21, 1989.

On October 23, 1989, appellees mailed to appellant notice that they had filed bankruptcy under Chapter 13 of Title 11 of the United States Code. By order of the bankruptcy court filed February 1, 1990, the stay was lifted as to the subject property. The bankruptcy judge found that appellees raised issues concerning the non-judicial foreclosure sale which were not within its jurisdiction and held that “if it is determined by a court of competent jurisdiction that the sale of August 31, 1989 was invalid then the bankruptcy court retains jurisdiction and the property would be in the estate.’-’

On January 24, 1990, appellees filed an answer to the unlawful detainer complaint. In this answer appellees admitted that they were in possession of the subject property and that they were served with written notice to quit and demand for possession. They denied all other allegations and averred that the sale of the property did not occur in a manner specified by statute and should, therefore, be void.

On March 30, 1990, a hearing was held in Benton Circuit Court specifically to consider the validity of the sale. The trial court found that the ten-day requirement of section 18-50-104(b) should be strictly construed to require appellant to mail notice within ten (10) days; appellant failed to comply with the statute; and the sale of the property was invalid. It is from this ruling that this appeal comes.

Appellees contend that section 362(a)(1) and the bankruptcy court order of February 1, 1990, prohibit appellant from taking this appeal. Appellees argue that upon the trial court’s finding the sale to be invalid, by the order of the bankruptcy court, the property became part of the bankruptcy estate; that appellant has not sought or obtained relief from the stay since the state court decision; and that the automatic stay of section 362(a)(1) prohibits the appeal.

The bankruptcy code in section 362(a)(1) provides, with certain exceptions, that a petition filed under this title “operates as a stay, applicable to all entities, of. . . the commencement or continuation, ... of a judicial, . . ., proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, . . . [.]” However, section 362(d) provides for the court to “grant relief from the stay provided under subsection (a) of this section, such as by terminating, annulling, modifying, or conditioning such stay[.]”

In its February 1, 1990 Order, the bankruptcy court found that appellant obtained a Trustee’s Deed before appellees’ Petition for Bankruptcy was filed and that the subject property was not property of the estate; it also lifted the stay as to the property in issue until a determination of the validity of the sale could be made in a “court of competent jurisdiction.”

It has been recognized in bankruptcy court that relief from the stay restores the prepetition legal relationship governed by nonbankruptcy law, unless the court provides otherwise. Fidelity Nat’l Bank v. Winslow, 39 Bankr. 869 (Bankr. N.D. Ga. 1984). We agree with the Arkansas Court of Appeals regarding this issue. In McIlroy Bank & Trust v. Seven Day Builders of Arkansas, 1 Ark. App. 121, 613 S.W.2d 837 (1981), the court of appeals held that the lift of a stay extends to final appeals. In that case, the trial court refused to consider a claim by the appellant bank against the appellee because the appellee had filed for bankruptcy prior to the entry of judgment. The trial court held the claim could only be asserted in the bankruptcy court. The court of appeals held:

We cannot agree that appellee’s bankruptcy in any way affected this cause of action. The record shows that although the bankruptcy court did enter a stay order against all proceedings against this appellee in the state courts by proper order, it subsequently relaxed the stay order in its entirety as to this specific case. When such a stay order is relaxed, full jurisdiction to proceed to a final conclusion is restored to the state courts.

Id. at 133-34, 613 S.W.2d at 843.

Because our constitution provides a right to appeal from all final orders of the circuit court, Ark. Const. art. 7, § 1, an appeal to this court is permitted to finally determine the validity of the sale of the property in issue.

Having determined that neither the order of the bankruptcy court nor section 362(a) prohibits this appeal, we address appellant’s claim concerning the ten-day notice requirement of section 18-50-104. This statute sets out the required contents of a mortgagee’s or trustee’s notice of default and intention to sell and the persons who are entitled to receive such notice. Subsection (b) of that section provides:

The mortgagee’s or trustee’s notice of default and intention to sell shall be mailed within ten (10) days of the recording of the notice by certified mail, return receipt requested, postage prepaid, and by first class mail, postage prepaid, to the address last known to the mortgagee or the trustee or beneficiary of the following persons[.]

Appellant claims that, although the foreclosure statute gives a time within which notice must be given, it does not provide the method for computing that time, and, therefore, the Arkansas Rules of Civil Procedure should be applied in making the computation. More specifically, appellant argues that Ark. R. Civ. P. (6) (a) should be applied in determining what constitutes “ten days” for purposes of the non-judicial foreclosure procedure. Rule (6) (a) states that where “the period of time prescribed or allowed is less than eleven (11) days, intermediate Saturdays, Sundays, or legal holidays shall be excluded in the computation.”

The following is the portion of Ark. R. Civ. P. 81 which addresses to what proceedings the Arkansas Rules of Civil Procedure are applicable:

(a) Applicability in General. These rules shall apply to all civil proceedings cognizable in the circuit, chancery, and probate courts of this State except in those instances where a statute which creates a right, remedy or proceeding specifically provides a different procedure in which event the procedure so specified shall apply.

Act 53 of 1987 established a non-judicial procedure to “provide an efficient and fair procedure for the liquidation of defaulted mortgage loans to the benefit of both the homeowner and the mortgage lender.” This procedure is codified at Ark. Code Ann. § 18-50-101 to -116 (Supp. 1989), which is entitled “Statutory Foreclosures.” The procedure is designed to be effectuated without resorting to the state’s court system, and therefore, is not a procedure “cognizable in the circuit, chancery, and probate courts of this State[.]” Thus, the Arkansas Rules of Civil Procedure do not apply.

Having determined the rules of civil procedure are not applicable, we turn to the statute. The first thing this court does in construing a statute is to look at the language of the statute and give it its ordinary meaning. Woodcock v. First Commercial Bank, 284 Ark. 490, 683 S.W.2d 605 (1985). The ordinary meaning of “ten days” is ten consecútive calendar days. Reading section 18-50-104 with this ordinary meaning of “ten days,” there is no need to refer to the rules of civil procedure to determine the date the notice was to have been mailed.

Calculating the period of time within which the notice is required to be mailed simply involves counting ten days from the day the Trustee’s Notice of Default and Intention to Sell is filed with the “recorder of the county.” This court has long followed the rule that, in calculating such a period, the day of the act or event from which the designated period of time begins to run is not to be included. In Hodge v. Wal-Mart Stores, 297 Ark. 1, 759 S.W.2d 203 (1988), we addressed this particular issue and stated the following:

The general rule in calculating a limitations period is to exclude the first day from the computation. Peay v. Pulaski County, 103 Ark. 601, 148 S.W. 491 (1912). We have applied that rule with considerable consistency. State ex rel. Hebert v. Hall, 228 Ark. 500, 308 S.W.2d 828 (1958) (where governor must veto bill within five days of receiving it, day of receipt is excluded); Chavis v. Pridgeon, 207 Ark. 281, 180 S.W.2d 320 (1944) (where notice of appeal to circuit court must be given within 30 days, exclude day on which lower court judgment was rendered); Matthews v. Warfield, 201 Ark. 296, 144 S.W.2d 22 (1940) (where election must be contested within ten days exclude day on which results are certified); Shanks v. Clark, 175 Ark. 883, 300 S.W. 453 (1927) (five-year limitation period for recovery on a note begins to run the day after the note is due).
This rule is referred to in our statutes and rules of civil procedure. Ark. Code Ann. § 16-55-119 (1987) provides:
Where a certain number of days are required to intervene between two (2) acts, the day of one (1) only of the acts may be counted.

Id., at 2, 759 S.W.2d at 203.

Applying the general rule to the case at bar, appellant filed a Trustee’s Notice of Default and Intention to Sell on June 29, 1989. Its notice, to have been in compliance with section 18-50-104(b), could have been mailed on any day starting and including June 30, 1989, through and including July 9, 1989. The notice was not mailed until July 11,1989, thus, the sale of the property was not valid. We find no error in the trial court’s ruling and affirm.

Brown, J., not participating.


author: Robert L. Brown, Justice.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. Lavina BING
    91-52
    808 S.W.2d 304
    Supreme Court of Arkansas
    Opinion delivered April 22, 1991
    [Rehearing denied June 10, 1991.]

      Prior, Barry, Smith, Karber, and Alford, by: Thomas B. Prior, for appellant.

      Frank N. Booth, for appellee.
   Robert L. Brown, Justice.

Appellant State Farm Mutual Automobile Insurance Company (“State Farm”) appeals from an order of the trial court granting counsel for appellee Lavina Bing (“Bing”) an attorney’s fee in the amount of $1,101.86, which represents one-third of State Farm’s recovery.

We affirm the trial court’s order.

The facts are essentially undisputed, although we note that strong feelings on the part of counsel permeate the arguments on both sides. On September 22, 1987, Bing, who was driving her car, was struck from behind by a third party’s vehicle. She subsequently underwent medical treatment and sued the third party to collect medical expenses as well as actual and punitive damages. Her total incurred medical expenses were $3,305.59.

State Farm was Bing’s insurance carrier, and it paid all her medical expenses. State Farm claims, though, that after payment Bing’s attorney refused to cooperate in protecting State Farm’s subrogation rights. State Farm was then forced to file a complaint in intervention to protect its interest in any recovery, and Bing opposed this intervention. Before the trial a stipulation was agreed to by State Farm and Bing evidencing the fact that State Farm had paid the medical expenses and had a subrogation claim against any award for that amount paid. An order affirming the stipulation was entered by the trial court. State Farm also gave notice to Bing and the third party that it was claiming a statutory lien against any recovery for the medical expenses paid. In the process State Farm incurred attorney’s fees relating to the intervention, stipulation, and notice of lien.

State Farm’s attorney did not attend or participate in the jury trial. Following the trial, the jury awarded Bing a verdict of $59 for property damage. Her attorney filed a motion for a new trial, which resulted in the court’s awarding a judgment for damages in the amount of $3,305.59 (the undisputed medical expenses, all of which is owed to State Farm), plus the $59 and costs. State Farm’s attorney did not take part in the post-trial proceedings. The third party paid the total amount into the court in satisfaction of the judgment, whereupon Bing’s attorney filed a motion for assessment of the cost of collection under Ark. Code Ann. § 23-89-207 (1987). The trial court decided the motion in favor of Bing’s attorney and awarded him one-third of $3,305.59, or $1,101.86, as the cost of collection.

Both State Farm and Bing agree that § 23-89-207 is the controlling statute. It reads:

(a) Whenever a recipient of § 23-89-202(1) and (2) benefits recovers in tort for injury, either by settlement or judgment, the insurer paying the benefits has a right of reimbursement and credit out of the tort recovery or settlement, less the cost of collection, as defined.
(b) All cost of collection thereof shall be assessed against insurer and insured in the proportion each benefits from the recovery.
(c) The insurer shall have a lien upon the recovery to the extent of its benefit payments.

Ark. Code Ann. § 23-89-207 (1987). This court has previously held that attorney’s fees represent part of the cost of collection. See, e.g., Northwestern National Insur. Co. v. American States Insur. Co., 266 Ark. 432, 585 S.W.2d 925 (1979).

State Farm advances several theories for why it should not be accountable for Bing’s attorney’s fees: a) collecting the medical expenses did not warrant litigation and could have been accomplished without the efforts of Bing’s attorney; b) Bing’s attorney was hostile to State Farm which forced State Farm to retain its own counsel, and fees paid to its own counsel should be considered part of the cost of collection; and c) paying Bing’s attorney as well as its own counsel will require State Farm to pay a double fee which runs contrary to the intent of § 23-89-207(b). State Farm cites as authority for its position a 1972 decision from this court where we held that an insured was not entitled to deduct her attorney’s fees from a recovery that went to her insurance carrier under a subrogation claim. See Burt v. Hartford Acc. & Indem. Co., 252 Ark. 1236, 483 S.W.2d 218 (1972).

The Burt case, however, is distinguishable on its facts. In that case the plaintiff opposed the carrier’s subrogation rights, and the carrier was forced to participate at trial through its own counsel to preserve its interest. In Burt we specifically noted that the carrier did not depend on the efforts of the plaintiffs attorney at trial in collecting its benefit payments. Indeed, the plaintiffs attorney opposed the carrier’s right to subrogation and a lien on the amount of recovery throughout the trial. The clear implication from our statement in Burt was that if the carrier had relied on the plaintiffs attorney to recover its benefit payments, payment of fees to that attorney would have been required.

Here, the situation is different. Bing stipulated to State Farm’s right to subrogation before trial. Following the stipulation, State Farm did not participate in the trial, and State Farm’s attorney did not even attend the trial or post-trial proceedings. The money recovered was due to the efforts of Bing’s attorney. Nor are we convinced that the fees paid to State Farm’s attorney for filing the complaint in intervention, obtaining a stipulation on subrogation rights, and serving the notice of lien qualify as costs of collection. These actions were efforts by State Farm to preserve its rights to subrogation, not efforts to recover benefit payments.

More importantly, State Farm was the sole beneficiary of the $3,305.59 collected. None of that money will go to Bing. Under § 23-89-207, which apportions payment of the cost of collection on the basis of who benefits from the recovery, total assessment for the cost of recovering State Farm’s benefit payments must be against State Farm, because it is the recipient of that money.

In a recent case we affirmed the assessment of costs against an insurance carrier for the insured’s legal fees proportionate to the carrier’s participation in the recovery, even though the carrier was forced to hire an attorney to file a separate action to enforce its subrogation claim. See Daves v. Hartford Acc. & Indem. Co., 302 Ark. 242, 788 S.W.2d 733 (1990). In Daves we held that the attorney’s fees which the carrier paid to enforce its right to subrogation in the separate action did not qualify as part of the cost of recovering benefit payments. The same holds true in the case before use. State Farm’s legal fees were incurred for a different purpose than that contemplated under § 23-89-207.

Though this result may well result in State Farm’s paying fees to two lawyers, we observe that State Farm could not have paid its attorney legal fees that pertained to the actual trial of the case itself or post-trial proceedings, because it did not participate in those events. It is the cost of that work that represents the cost of collection.

The trial court was correct in assessing one-third of the amount of medical expenses recovered as a fee for Bing’s attorney.

Affirmed.


author: A. Glenn Vasser, Special Justice. Jack Holt, Jr., Chief Justice,

text:
    Roger NELMS v. MORGAN PORTABLE BUILDING CORPORATION
    90-61
    808 S.W.2d 314
    Supreme Court of Arkansas
    Opinion delivered April 22, 1991

      Ponder & Jarboe, by: Dick Jarboe, for appellant.

      Mitchell, Williams, Selig and Tucker, by: W. Kirby Lock-hart, for appellee.
   A. Glenn Vasser, Special Justice.

This is a choice of forum case in which the appellant, Roger Nelms (Nelms), sought to have his employment contract with the appellee, Morgan Portable Building Corporation (Morgan), declared void and unenforceable under the Wingo Act, Ark. Code Ann. §§ 4-27-104 and -105 (1987), and as being contrary to the public policy of the State of Arkansas. Morgan filed a motion to dismiss on the basis of ARCP Rules 12(b)(1), (b)(2), (b)(3), and (b)(6), contending that Nelms had consented to the jurisdiction of a Texas Court on all issues involving the employment contract and that an Arkansas court lacked jurisdiction to entertain such a proceeding.

Nelms was a resident of Lawrence County, Arkansas, where he served as plant manager of Morgan, a Texas corporation which manufactures and sells portable buildings in Arkansas and in other states. Nelms had been manager of the Walnut Ridge plant for two years and had formerly served as manager of Morgan’s Mississippi plant. On June 13,1986, Morgan prepared and presented to Nelms a contract entitled “Standard Employment/Non-competition Agreement”. The contract was signed by Nelms and Morgan’s President at Morgan’s plant in College City, Arkansas. Then, the contract was delivered to Morgan’s corporate office in Dallas and approved. At the time the contract was signed by Nelms and Morgan, Morgan was not authorized to do business in Arkansas, due to the revocation of its charter for non-payment of franchise taxes. The contract, which is attached to Nelm’s Petition for Declaratory Judgment, recited on Page 2 as follows: “WHEREAS, Morgan would not offer the employment relationship to employ without the specifically negotiated protective covenants herein stated.. . .” The contract contained various protective covenants in Paragraph 9, which precluded Nelms from competing with Morgan by use of confidential information, trade secrets, and soliciting Morgan’s customers and employees. These protective covenants would continue for five years after termination of employment, and the area covered by these covenants was within 200 miles of any of Morgan’s plants. Of particular significance to this case are Paragraphs 16 and 20 of the contract, which read as follows:

16. Choice of Law. It is expressly agreed and stipulated that this contract shall be deemed to have been made and to be performable in Dallas, Dallas County, the State of Texas; and all questions concerning the validity, interpretation, or performance of any of its terms or provisions or of any rights or obligations of the parties hereto, shall be governed by and resolved in accordance with the laws of the State of Texas.
20. Attorneys’ Fees, Venue, and Jurisdiction. In the event the Employee in any manner defaults or breaches the terms and conditions of this Agreement, or threatens to do same, or in the event it becomes necessary for Morgan to employ an attorney to enforce any provision of this Agreement, obtain injunctive relief, or collect damages on account of a breach or a threatened breach of this Agreement, Employee shall pay to Morgan such disbursements as Morgan may expend in such proceedings. Employee agrees that this Agreement is a contract performable wholly or partly within the State of Texas, and consents to the jurisdiction of the courts within the State of Texas in connection with any dispute or controversy arising out of this Agreement. In addition, Employee expressly waives any right he may have to be sued in the county of his residence and consents to venue in Dallas County, Texas in any proceeding arising out of this Agreement.

After reviewing these facts, the Chancellor granted Morgan’s Motion to Dismiss Nelms’ Petition without prejudice, and Nelms was allowed to refile “in an appropriate forum.” From this adverse ruling Nelms appeals. We concur with the Chancellor’s decision.

For reversal, Appellant asserts two theories for the proposition that the Lawrence County Chancery Court should exercise judicial jurisdiction over this case. Initially, he maintains that Appellee was a non-resident corporation, and unauthorized to do business at the time the contract was executed; and, therefore, the contract with its forum selection clause is unenforceable. Second, Appellant postulates that Appellee’s Standard Employment/ Non-competition Agreement violates public policy, thereby making the contract with its forum selection clause invalid.

A consideration of both of these points must be addressed in light of the well-established rule applicable to Motions to Dismiss Under Rule 12(b) of the Arkansas Rules of Civil Procedure (ARCP). Such Motions require opposing pleadings to be read in conjunction with ARCP Rule 8(a)(2), and under this Rule the facts and allegations set forth in the Complaint are treated as true. However, conclusions of law and statements of generalities are not admitted. Rabalaias v. Barnett, 284 Ark. 527, 683 S.W. 2d 919 (1985). An application of this principle yields an admission of the terms of the Standard Employment/ Non-competition Agreement executed by Appellant, an Arkansas resident, on June 13,1986, with appellee, a Texas corporation, which was not qualified to do business in Arkansas. Under the clear admitted terms of Paragraph 16 of the Agreement, the contract is deemed to have been made and performable in Dallas County, Texas. Furthermore, it is admitted Appellant agreed that the contract was to be performed wholly or partly within the State of Texas and the Appellant consented to the jurisdiction of the Texas Court in connection with any dispute or controversy arising out of the agreement. Under this rule, Appellant admittedly waived any right to be sued in the county of his residence, and consented to Dallas County, Texas, as the proper venue for any proceeding arising out of this agreement.

Before this Court can resolve the Appellant’s contentions that his employment contract is unenforceable under the Wingo Act, we must first determine whether an Arkansas Court should exercise jurisdiction over this case. This Court’s consideration of the issue of whether an Arkansas Court should exercise judicial jurisdiction must commence with a review of the pertinent portion of Paragraph 20 of the Standard Employment/Non-competition Contract executed by Appellant and Appellee:

20. Attorneys Fees, Venue, and Jurisdiction. . . . Employee agrees that this Agreement is a contract performable wholly or partly within the State of Texas, and consents to the jurisdiction of the Courts within the State of Texas in connection with any dispute or controversy arising out of this agreement. In addition, employee expressly waives any right he may have to be sued in the County of his residence and consents to venue in Dallas County, Texas, in any proceeding arising out of this agreement.

Such choice of forum clauses in contracts have generally been held binding, unless it can be shown that the enforcement of the forum selection clause would be unreasonable and unfair. M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972). The modern trend among Courts is to respect the enforceability of contracts containing clauses limiting judicial jurisdiction, if there is nothing unfair or unreasonable about them. See Leflar, American Conflicts Law, 100 (1977); Central Contracting Co. v. C.E. Youngdahl & Co., 418 Pa. 122, 209 A. 2d 810 (1965); and see Annot., “Validity of Contractual Provision Limiting Place or Court in Which Action May Be Brought”, 56 ALR 2d 300 (1957).

Traditionally, we have adhered to the view that an individual, such as Appellant, who subjects himself to the personal jurisdiction of a Court by express agreement shall be bound by that contract,’if the agreement can be determined to be fair and reasonable. SD Leasing, Inc. v. Al Spain & Assoc., Inc., 277 Ark. 178, 640 S.W. 2d 451 (1982). An inspection of the pleadings provides only a conclusory allegation that this is an unfair adhesion contract; however, Appellant’s Petition is barren of any factual support for such a conclusion. A perusal of the undisputed terms of the agreement reveals that Appellant’s employment rights, compensation and employment rules are equally balanced with Appellee’s protective covenant rights and remedies; and in addition, the following language is most significant:

.... WHEREAS, Employee acknowledges that he has read and is fully familiar with the terms of this Agreement, that the same was specifically negotiated, and that the productive (sic) covenants agreed upon herein are reasonable as to duration and area and consideration of the nature of Morgan’s business. . . .
.... I HAVE READ AND UNDERSTAND THIS AGREEMENT AND IN PARTICULAR THE NON-COMPETITION ASPECTS HEREOF, AND DO HEREBY EXECUTE THE SAME BEFORE THE WITNESSES WHO HAVE SIGNED HEREUNDER.

Without further evidence or factual support in the record, this Court is compelled to conclude that this contract with its choice of forum provision is fair and reasonable under the circumstances.

When confronted with a similar issue in the past, we have sustained a contract which contained a forum selection clause for Arkansas. In SC Leasing, Inc., v. Al Spain & Assoc., Inc., 277 Ark. 178, 640 S.W. 2d 451 (1982), we concluded that a lease agreement containing a clause in which the parties expressly agreed to be subject to the jurisdiction of the Courts of the State of Arkansas should be enforced. In SC Leasing, supra, the lease agreement was executed by a Florida corporation and an Arkansas corporation, negotiations for the lease took place in Florida, and the equipment was located in Florida. Thus, since the choice of forum clause in the lease was fair and reasonable, this Court concluded judicial jurisdiction should be exercised by Arkansas as provided by express agreement of the parties. SD Leasing, Inc., supra, at 181.

Any decision whether or not to exercise judicial jurisdiction over a transaction must also address the due process requirements embodied in International Shoe Co. v. Washington, 326 U.S. 310 (1945). Under International Shoe, supra, and its progeny the well recognized test is whether such “minimum contacts” exist between the parties, the contract and the State of Texas so that maintenance of a suit in Texas will not offend “traditional notions of fair play and substantial justice.” It has been firmly established that a single contract, such as that involved in this case, can provide the basis for the exercise of jurisdiction over a nonresident defendant, such as Appellant, by the Texas Court, if there is a substantial connection between the contract and the forum state. See McGee v. International Life Insurance Co., 355 U.S. 220 (1957). This contract with a Texas corporation, was finally approved in Texas. The contract contains clauses reciting that the agreement is deemed to have been made and performable in Texas and governed by the laws of the State of Texas. The parties consented to and selected the jurisdiction of the Texas Court. Such factual circumstances afford sufficient “minimum contacts” to meet the standard evinced in International Shoe, supra, and McGee, supra.

This case presents a reverse of the situation in SD Leasing, supra. We are confronted with a choice of forum clause in a contract between Appellant and Appellee, which confers jurisdiction on the courts of Texas rather than the courts of Arkansas. We cannot refuse to enforce such a clause, which we have concluded is fair and reasonable and which we believe meets the due process test for the exercise of judicial jurisdiction. To do otherwise would constitute a mere pretext founded solely on the forum state’s preference for its own judicial system and its own substantive law. Accordingly, we conclude that the express agreement and intent of the parties in a choice of forum clause should be sustained even when the judicial jurisdiction over the agreement is conferred upon a foreign state’s forum.

A final discussion of this first issue raised by the Appellant would be incomplete without addressing Appellant’s contentions pertaining to the Wingo Act. There is no dispute that Appellee’s charter was revoked for failure to pay franchise taxes at the time of execution of the Standard Employment/Non-competition Agreement. Appellee even concedes that the subsequent reinstatement of its charter did not operate retroactively to reinstate its authority to conduct business as of the date of the agreement. Moore v. Rommel, 233 Ark. 989, 350 S.W. 2d 190 (1961).

However, in this case, the undisputed express terms of the agreement contain non-competition clauses regulating Appellant’s conduct in interstate commerce. Such a clause falls within the purview of an established interstate commerce exception to the requirement that a corporation must be qualified to do business in Arkansas before it can enforce a contract. Goode v. Universal Plastics, Inc., 247 Ark. 442, 445 S.W. 2d 893 (1969).

An additional exception to the unenforceability of a contract with a corporation which is not qualified to do business in Arkansas was recognized in Brown Broadcast, Inc. v. Pepper Sound Studio, Inc., 242 Ark. 701, 416 S.W. 2d 284 (1967). In Brown Broadcast, the parties admitted that Pepper, a Tennessee corporation, had not qualified to do business in Arkansas. The contract was accepted and executed in Tennessee by a Tennessee corporation, and based on those facts, this Court determined the contract was made in Tennessee. Furthermore, this Court recognized that compliance with the Wingo Act was unnecessary when the contract was made in Tennessee. Thus, the Wingo Act will not be applied to prevent actions on contracts made outside of Arkansas, even though interstate commerce is not involved. UPI v. Hernreich, d/b/a Station KZNG, 241 Ark. 36, 406 S.W. 2d 317 (1966) and Hough v. Continental Leasing Corp., 275 Ark. 340, 630 S.W. 2d 19 (1982). In this case, we have Appellee, a Texas corporation, which required final approval of the contract to be made in Texas, and the parties stated in Paragraph 16 of their contract: “ . . . . It is expressly agreed and stipulated that this contract shall be deemed to have been made and to be performable in Dallas, Dallas County, the State of Texas. . . .” Hence, this Texas contract would not be subject to the Wingo Act, even if interstate commerce is not involved.

For his second point Appellant contends that the contract in question violates public policy, and, consequently, the forum selection clause is invalid. We cannot agree with this argument. A consideration of this issue presumes that this Court has deemed it appropriate for an Arkansas Court to exercise judicial jurisdiction, and, therefore the Arkansas substantive law applicable to covenants not to compete may be considered. In view of the fact that this Court has concluded that the Chancellor appropriately refused to exercise judicial jurisdiction, this contention would appear to be moot. Accordingly, Appellant should be relegated to the Texas Courts to determine whether the non-competition provisions of his employment contract constitute an unreasonable restraint of trade.

Affirmed.

Holt, C. J. and Special Justice Eddie H. Walker, concur.

Hays, Glaze, Corbin, and Brown, JJ., not participating.

Jack Holt, Jr., Chief Justice,

concurring. I concur with the results reached in the plurality opinion; however, it is inscribed with such broad, sweeping statements, that I feel compelled to write in a narrow vein. In doing so, I adopt the plurality’s version of the facts, reorganize the issues as written, and restrict my views as follows:

WINGO ACT

Nelms initially asserts that his employment agreement with Morgan is void and unenforceable because it violates the Wingo Act. There is no dispute that Morgan’s charter was revoked for failure to pay franchise taxes at the time of execution of the employment agreement. However, the undisputed, express terms of the agreement contain a non-competition clause regulating Nelms’s conduct in interstate commerce. Such a clause falls within the purview of an established interstate commerce exception to the requirement that a corporation must be qualified to do business in Arkansas before it can enforce a contract. Goode v. Universal Plastics, Inc., 247 Ark. 442, 445 S.W.2d 893 (1969). We have also noted that the Wingo Act will not be applied to prevent actions on contracts made outside of Arkansas, even thoughrinterstate commerce is not involved. UPI v. Hernreich, d/b/a Station KZNG, 241 Ark. 36, 406 S.W.2d 317 (1966); Hough v. Continental Leasing Corp., 275 Ark. 340, 630 S.W.2d 19 (1982).

PUBLIC POLICY

Nelms also argues that the employment agreement is void and unenforceable because it violates the public policy of the State of Arkansas.

We have adhered to the view that an individual who subjects himself to the personal jurisdiction of a court by express agreement shall be bound by that contract if the agreement can be determined to be fair and reasonable. SD Leasing, Inc. v. Al Spain & Assoc., Inc., 277 Ark. 178, 640 S.W.2d 451 (1982); see Ark. Code Ann. § 4-1-105 (1987); and see also R.A. Leflar, American Conflicts Law 100 (1977).

In this case, the pleadings provide only a conclusory allegation that this is an unfair adhesion contract, as Nelms’s petition is barren of any factual support for such a conclusion. An examination of the undisputed terms of the agreement reveals that Nelms’s employment rights, compensation, and employment rules are equally balanced with Morgan’s protective covenant rights and remedies. Without further evidence or factual support in the record to show otherwise, we are compelled to conclude that this contract is fair and reasonable under the circumstances.

SUBSTANTIAL RELATIONSHIP

The enforceability of a choice of forum clause also hinges on whether the state that the parties have chosen to govern the contract has a “substantial relationship” with the contract. Cooper v. Cherokee Village Dev. Co., Inc., 236 Ark. 37, 364 S.W.2d 158 (1963); Arkansas Appliance Distrib. Co. v. Tandy Electronics, Inc., 292 Ark. 482, 730 S.W.2d 899 (1987). Here, Morgan is a Texas corporation that accepted an employment contract in Texas for one of its employees to manage a plant dealing in interstate commerce. The contract itself indicates that it was made and was performable in Texas and that Texas was selected as the proper forum in the event of a dispute. These factors establish a substantial relationship between the State of Texas and the employment agreement.

Special Justice Eddie H. Walker, Jr. joins in this concurring opinion.


author: Per Curiam.

text:
    Jay SAMPLES v. Genell SAMPLES, D. L. Sitton Motor Lines, Inc., A Missouri Corporation; and Mark A. Summers
    91-68
    806 S.W.2d 626
    Supreme Court of Arkansas
    Opinion delivered April 22, 1991

      R. Theodor Strieker and Michael T. Rooney, for appellant.

      Richard N. Watts and Robert Dawson, for appellees.
   Per Curiam.

Appellant Jay Samples filed a motor vehicle accident case in the Circuit Court of Conway County against appellees Genell Samples, D.L. Sitton Motor Lines, Inc., and Mark A. Summers. A jury trial resulted in a verdict for the appellees. Appellant appealed to the Court of Appeals and filed his brief on January 21, 1991. Appellees filed their briefs on February 20 and February 27,1991. In their briefs, the appellees argue that the appellant’s brief is deficient. See Rule 9(d) of the Rules of the Supreme Court and Court of Appeals. Appellant filed a motion to stay the time for filing his reply brief and asked leave to supplement his original brief. The Court of Appeals certified the case to this Court.

Appellant is granted leave to revise or supplement his brief. Upon the filing of a substituted abstract and brief by the appellant, the appellees will be given time to revise or supplement and reprint their briefs at the expense of the appellant. See Rule 9(e)(2) of the Rules of the Supreme Court and Court of Appeals.

The appellant’s motion to file a substitution abstract and brief is granted.


text:
    Vickie SCARBROUGH v. CHEROKEE ENTERPRISES and Royal Insurance Company
    91-54
    807 S.W.2d 468
    Supreme Court of Arkansas
    Opinion delivered April 22, 1991

      Anthony Bartels, for petitioner.

      Paul Waddell, for respondent.
   Per Curiam.

The Arkansas Court of Appeals affirmed a decision of the Workers’ Compensation Commission denying benefits to the petitioner, Vickie Scarbrough. In her petition seeking review of the Court of Appeals decision, Scarbrough v. Cherokee Enter., 33 Ark. App. 139, 803 S.W.2d 561 (1991), Ms. Scarbrough has raised an issue concerning the standard of review to be applied on appeal of workers’ compensation cases. The Court of Appeals addressed the issue, pointing out that the standard of appellate court review of workers’ compensation cases had been discussed, Webb v. Workers’ Compensation Comm’n, 292 Ark. 349, 352, 730 S.W.2d 222, 726 (1987) (Newbern, J., Concurring), see also Hamby v. Everett, 4 Ark. App. 52, 627 S.W.2d 266 (1982) (Glaze, J., Dissenting), but that the law making the commission the fact finding body and limiting the review to a substantial evidence standard remains the law. Arkansas Power & Light Co. v. Hooks, 295 Ark. 296, 749 S.W.2d 291 (1988).

The petition for review is granted, and the parties are directed to file supplemental briefs limited to discussion of the standard of review issue and the question whether an appellate court should be bound by a factual determination by a commission or board which has not had the evidence directly presented before it. The Briefs will be filed pursuant to Arkansas Supreme Court and Court of Appeals Rule 29.6., except that the Petitioner shall have 30 days from the date of this order to file her brief, and the Respondent shall have 20 days from the date the Petitioner’s brief is filed to file the Respondent’s brief.

Briefs from interested amici curiae are invited.


author: Jack Holt, Jr., Chief Justice. Robert L. Brown, Justice,

text:
    Clarence GILLIE v. STATE of Arkansas
    CR 90-259
    808 S.W.2d 320
    Supreme Court of Arkansas
    Opinion delivered April 29, 1991

      Thomas G. Montgomery, Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

On March 28, 1990, the appellant, Clarence Gillie, was convicted of capital murder and aggravated robbery and sentenced as an habitual offender, respectively, to life without parole and 50 years in the Arkansas Department of Correction, the terms to be served consecutively.

Gillie asserts ten points of error on appeal, none of which have merit, and we affirm.

INSUFFICIENT EVIDENCE

We will initially address Gillie’s point of error alleging that the evidence was insufficient to sustain a conviction for capital murder.

The underlying felony for Gillie’s conviction of capital murder was robbery. Arkansas Code Ann. § 5-10-101 (a)(1) (Supp. 1989) addressed the offense and provides in pertinent part as follows:

(a) A person commits capital murder if:
(1) Acting alone or with one (1) or more other persons, he commits or attempts to commit. . .robbery. . .and in the course of and in furtherance of the felony, or in immediate flight therefrom, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life; . . .

Gillie contends that there is no independent proof to indicate the underlying offense of robbery without resulting to speculation and conjecture.

To the contrary, the facts in this case show that on October 29, 1987, Wayne and Clovis Rogers, brothers, returned from Southland Greyhound Park to their room at the Twentieth Century Motel in West Memphis, Arkansas. Wayne testified that, while he was undressing and watching the evening news at approximately 10:05 p.m., there was a rapping at the door. Clovis went to the door and asked, “Who was it?” Wayne heard some mumbling, and Clovis unlatched the door. At that time, the person at the door said, “Open the door,” at about the same time that he kicked in the door. Wayne saw a man at the door, and he jumped up and said, “Get out of here,” as he realized that the man was breaking in on them. Wayne headed for the door, and the man fired two shots through the door opening and hit Clovis in the abdomen. Clovis subsequently died after 30 days in the hospital. Wayne made an in-court identification of Gillie as the man who had shot his brother.

Additionally, Thomas Gallagher testified that, at approximately 11:00 p.m. on the same evening of October 29, 1987, he was robbed at gunpoint in his room at the Holiday Inn Motel in West Memphis, Arkansas, of a scuba watch and college ring by a man, who he later identified in court as Gillie, and a woman. During the course of the robbery, the motel manager and security guard were brought into Mr. Gallagher’s room, and they also identified Gillie as the robber in in-court identifications.

Further, Mr. Gallagher testified that the watch discovered upon Gillie upon his arrest was identical to the watch taken from him in the robbery. Most importantly, slugs and shell casings recovered from the first crime scene and a live round of ammunition found at the second crime scene were traced by means of expert testimony to a .45 caliber pistol that was also taken from Gillie upon his arrest in the State of Mississippi.

The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict. Substantial evidence must be forceful enough to compel a conclusion one way or another beyond suspicion and conjecture. On review, it is only necessary to ascertain that evidence which is most favorable to the appellee and, if there is substantial evidence to support the verdict, the finding must be affirmed. Trotter v. State, 290 Ark. 269, 719 S.W.2d 268 (1986) (citing Williams v. State, 281 Ark. 387, 663 S.W.2d 928 (1984)). Circumstantial evidence can provide the basis to support a conviction, but it must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Trotter v. State, supra (citing Smith v. State, 282 Ark. 535, 669 S.W.2d 201 (1984).

The intent or purpose to commit a crime is a state of mind which is not ordinarily capable of proof by direct evidence, so it must be inferred from the circumstances. Trotter v. State, supra. Additionally, A.R.E. 404(b) provides that “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of . . . intent, . . . plan, . . . identity. . . .”

Proof of the aggravated burglary was clearly admissible as being relevant to prove both Gillie’s intent and plan, as well as his identity, in the commission of the first incident, although we have already shown that the circumstantial evidence was amply sufficient to connect Gillie with the first incident. See Cassell v. State, 273 Ark. 59, 616 S.W.2d 485 (1981). Reference to the aggravated burglary was also allowable because it was so intertwined factually with the case before us that exclusion of any reference to it would have been confusing to the jury or would have unnecessarily hampered the State’s proof of the charged crime. Evans v. State, 287 Ark. 136, 697 S.W. 879 (1985).

Given the nature and sequence of events in this case, it is logical to infer Gillie’s intent to rob the Rogers brothers at gunpoint in their hotel room from his actual commission of aggravated robbery of Mr. Gallagher in his hotel room within an hour of the first crime. Wayne Rogers identified Gillie as the man who attempted to force his way into the hotel room in which he and his brother, Clovis, were staying and testified that Gillie was armed with a .45 caliber pistol and fatally wounded Clovis when the latter resisted Gillie’s entry; Gillie was also identified as the man who robbed Mr. Gallagher at another hotel at gunpoint within an hour of the first occurrence involving the Rogerses; and ballistics evidence connected the .45 caliber pistol found on Gillie at the time of arrest to both of the crime scenes. Entwining the facts of the two incidents, we find that there is substantial evidence to support the verdict.

SPEEDY TRIAL

Gillie also argues that he was denied a speedy trial on the basis that he was not brought to trial within the twelve-month period provided by Ark. R. Crim. P. 28.1(c), as follows:

Any defendant charged after October 1, 1987, in circuit court and held to bail, or otherwise lawfully set at liberty, . . . shall be entitled to have the charge dismissed with an absolute bar to prosecution if not brought to trial within twelve (12) months from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3.

Arkansas R. Crim. P. 28.2 addresses when time commences to run and provides in pertinent part as follows:

The time for trial shall commence running, without demand by the defendant, from the following dates:
(a) from the date the charge is filed, except that if prior to that time the defendant has been continuously held in custody or on bail or lawfully at liberty to answer for the same offense or an offense based on the same conduct or arising from the same criminal episode, then the time for trial shall commence running from the date of arrest;
* * * *

Arkansas R. Crim. P. 28.3 addresses excluded periods and provides in pertinent part as follows:

The following periods shall be excluded in computing the time for trial:
* * * *
(e) The period of delay resulting from the absence or unavailability of the defendant. A defendant shall be considered absent whenever his whereabouts are unknown. A defendant shall also be considered unavailable whenever his whereabouts are known but his presence for the trial cannot be obtained or he resists being returned to the state for trial.

In this case, Gillie was arrested in the State of Mississippi for an unrelated charge on November 23, 1987. The Governor of Mississippi signed Gillie’s extradition order on January 16,1989, and Gillie was returned to the State of Arkansas in January 1990. Gillie was subsequently tried in the Crittendon County Circuit Court on March 26,1990. As a result, Gillie submits that he was available for trial in this state upon the signing of his extradition order, the delay in his being brought to trial is not excluded by the rules, and he is entitled to a complete prosecutorial bar.

However, we have stated in Dukes v. State, 271 Ark. 674, 609 S.W.2d 924 (1981) (citing State v. Davidson, 254 Ark. 172, 492 S.W.2d 246 (1973)), that an accused in prison in another state, for a different crime, must affirmatively request trial in order to activate the speedy trial rule. Gillie did not do so here, and his right to a speedy trial did not begin to run until his actual return to this state. Gillie’s trial within three months of his return to Arkansas complies with his right to a speedy trial.

STATE'S FILING OF CHARGE ON DAY OF TRIAL

Gillie contends that the trial court erred by permitting the state to file the charge of aggravated robbery against him on the day of trial. However, his reliance on Harmon v. State, 277 Ark. 265, 641 S.W.2d 21 (1982), is misplaced.

In Harmon, we stated that it was reversible error for the trial court to permit the prosecutor, on the first day of trial, to amend the charge of capital murder committed during the course of kidnapping to also include capital murder committed during the course of robbery in the absence of any notice to the defendant that he was to be required to defend an essentially different charge of capital murder.

Here, the initial information that the State filed against Gillie was “Capital Murder . . . while attempting or attempting to commit the felony crime of Robbery. . . .” On the day of trial, the State also charged Gillie with aggravated robbery with a firearm involving the second incident.

Gillie can hardly claim lack of notice under these circumstances because his counsel stated, “. . . I have been aware from the outset that this capital felony involved some actual basis entwined with this aggravated robbery.”

To the contrary, Gillie did not claim that his opportunity to prepare a defense was inadequate, nor did he ask for a continuance on this basis. In fact, when asked by the trial court as to whether or not the defense was ready for trial, counsel stated “Defense is ready, your Honor.”

Gillie has not shown that he was prejudiced by the delayed filing of the aggravated robbery charge. We will not reverse a conviction in the absence of a showing of prejudicial error. See Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), cert. denied, 470 U.S. 1085 (1985).

TRIAL OF BOTH CHARGES IN SAME TRIAL

Gillie next argues that the trial court erred by requiring him to stand trial on both the capital murder and aggravated robbery charges in the same trial.

Arkansas R. Crim. P. 21.1 addresses the joinder of offenses and provides as follows:

Two (2) or more offenses may be joined in one (1) information or indictment with each offense stated in a separate count, when the offenses, whether felonies or misdemeanors or both:
(a) are of the same or similar character, even if not part of a single scheme or plan; or
(b) are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.

A trial court’s decision to deny a motion for severance is a matter within the discretion of the trial court, and two or more criminal offenses are based . . on a series of acts connected together . . .” when the offenses occurred close together in time and place. Brown v. State, 304 Ark. 98, 800 S.W.2d 424 (1990).

In this case, the capital felony murder occurred on October 29,1987, at 10:05 p.m. at the Twentieth Century Motel in West Memphis. The aggravated robbery occurred on October 29, 1987, at 11:00 p.m. at the Holiday Inn Motel in West Memphis.

Also, as stated in a previous point of error, the two offenses are factually intertwined in that slugs, shell casings, and a live round found at the crime scenes were traced by means of expert testimony to a .45 caliber pistol that was taken from Gillie upon his arrest in the State of Mississippi.

Asa result, the trial court did not abuse its discretion in denying Gillie’s motion to sever the offenses.

GILLIE’S APPEARANCE IN JAIL CLOTHES AND SHACKLES TO JURY

Gillie asserts that he was prejudiced by appearing in jail clothes and shackles in the presence of the jury.

In response to Gillie’s objection at trial, the trial court voir dired the jury members in order to determine if any of them had seen Gillie in shackles. Only one juror stated that she thought that she had seen Gillie wearing one handcuff. However, she further stated that there was nothing about the possibility that Gillie had on one handcuff that would prejudice her against him.

Again, Gillie has failed to show any prejudice from this alleged error. See Hill v. State, 285 Ark. 77, 685 S.W.2d 495 (1985).

ABSENCE OF BLACK MALES ON JURY PANEL

Gillie also contends that he was prejudiced by the absence of black males on his jury panel.

However, Gillie has failed to place before us any evidence that shows that black males were systematically excluded from the venire or that the method used to assemble the venire (random picks from a current list of registered voters pursuant to Ark. Code Ann. §§ 16-32-103 to -105 (1987)) produced a venire from which black males were systematically excluded. See Sanders v. State, 300 Ark. 25, 776 S.W.2d 334 (1989).

JURY INSTRUCTION ON MANSLAUGHTER

Next, Gillie argues that the trial court erred in refusing his requested jury instruction on manslaughter. He was charged with capital felony murder, and the trial court instructed the jury on that offense as well as first degree and second degree murder.

Since the jury had the opportunity to find Gillie guilty of murder charges that were less severe than capital felony murder but more severe than his requested instruction on manslaughter, the trial court’s refusal to instruct the jury on manslaughter was, at most, harmless error. Branscomb v. State, 299 Ark. 482, 774 S.W.2d 426 (1989).

CONVICTIONS USED IN HABITUAL OFFENDER STATUS

In his eighth point of error, Gillie claims that the trial court erred in allowing convictions subsequent to the offense for which he was tried to be used as enhancement of habitual offender status.

Gillie’s reliance on Washington v. State, 273 Ark. 482, 621 S.W.2d 216 (1981), is misplaced in that Arkansas’ habitual criminal statute was not designed to act as a deterrent but is a punitive statute that provides, in an appropriate case, that a prior conviction, regardless of the date of the crime, may be used to increase punishment.

CONTINUANCE

Gillie’s contention that the trial court erred by denying his request for a continuance acknowledges the trial court’s discretion in addressing the matter. Further, a trial court’s denial of a motion for a continuance will not be reversed absent a clear abuse of discretion, Butler v. State, 303 Ark. 380, 797 S.W.2d 435 (1990), and the defendant has the burden of proof in showing the abuse of discretion. David v. State, 295 Ark. 131, 748 S.W.2d 117 (1988).

Gillie has not met his burden of proof, nor shown that he was prejudiced as a result of the denial of his continuance. In fact, Gillie merely made amotion for “a continuance for two weeks” after announcing he was ready for trial, without stating any reason for his motion.

SUPPRESSION OF PISTOL OBTAINED WITHOUT A WARRANT

Finally, Gillie argues that the trial court erred by failing to suppress the pistol obtained without a warrant.

Although the grounds are unclear upon which the trial court based its denial of Gillie’s objection at trial to the admissibility of the .45 caliber pistol, motions to suppress on the basis of an illegal seizure must be made no later than ten days before trial. See Oglesby v. State, 299 Ark. 403, 773 S.W.2d 443 (1989); Ark. R. Crim. P. 16.2(b). Rule 16.2(b) allows the trial court to entertain a motion at a later time only for good cause, which Gillie has failed to show in this case.

We may affirm the result reached by the trial court, if correct, even though the reason given by the trial court may have been wrong. Grooms v. State, 293 Ark. 358, 737 S.W.2d 648 (1987).

Affirmed.

Newbern and Brown, JJ., concur in part and dissent in part.

Robert L. Brown, Justice,

concurring in part; dissenting in part. I agree with the majority on every aspect of its opinion save one. The defendant was charged on the day of the trial with aggravated robbery which occurred the same night but at a different location from that of the capital felony murder. He was convicted of aggravated robbery and sentenced to a consecutive term of fifty years in addition to life without parole on the murder charge.

When the defense counsel discovered that the aggravated robbery charge had been filed, the jury had already been sworn. This colloquy then took place before the trial court:

Defense Counsel: Your Honor, I am not going to say that I was unaware of the allegations of aggravated robbery. In fact, I have been aware from the outset that this capital felony involved some actual basis entwined with this aggravated robbery. I think Mr. Fogleman will also agree that I have always contended that they were separate offenses and were not entitled to be tried together.
Prosecutor: I agree with that.
Defense Counsel: I am just saying, your Honor, that it is one thing to talk about trying somebody on something. It is another to file it against him and proceed. I think the law holds us more accountable to what we file than what we say we are going to file. The fact is, the armed robbery information was not filed until today, the day of trial.
The Court: Let me ask you this: You were aware that the aggravated robbery charge was there, is that correct?
Defense Counsel: I was not aware. I obviously wasn’t aware it had been filed because it hadn’t been filed, but I was aware they intended to [at] some point to proceed on an aggravated robbery, either included with this — To be quite honest with you, your Honor, I really wasn’t aware until this morning that they intended to — Well, Mr. Fogleman and I discussed it on Friday, that he wanted to proceed on both offenses simultaneously, and I, you know, told him I didn’t agree. And I was not aware of any filing.
The Court: The thing that concerns me is, I feel that all the proof involved in the alleged aggravated robbery is going to be introduced in the murder case, and is relevant, so it just seems to me it would be better for the defendant to get the whole ball of wax over with, but, if the defendant doesn’t want to stand trial on the aggravated robbery, I am going to — It was filed this morning, and I think, technically, ...
Defense Counsel: (Interposing) Has the jury been sworn?
The Court: Yeah, the jury has been sworn.
Prosecutor: Your Honor, I would point out that before the jury was sworn, the objection that it was just filed today was not made.
Defense Counsel: Was not known.
Prosecutor: And, your Honor, the reason that it wasn’t know[n] is because everybody, and I am sure including Mr. Montgomery, assumed that it had already been filed because the warrants that were obtained — There was a capital murder warrant and an aggravated robbery warrant obtained, and that’s what he was extradited on.
The Court: Of course, I recall last week Mr. Montgomery at some point in the discussions whether or not the death penalty was going to be asked for by the State, that he was attempting to get the State to try just the aggravated robbery. I recall that.
I tell you what I am going to do, maybe it is grounds to give you something to go off on, I am not going to change my ruling. I am going to let it be tried on both things.

What is evident from this discussion, first, is the trial court was ambivalent about its ruling. Secondly, the defense counsel argued a pivotal point: “[T]he law holds us more accountable to what we file than what we say we are going to file.” I agree. Moreover, the defense counsel was arguing up to the end that the robbery charge, if and when it was filed, should not be tried with the murder charge. He could easily have believed, since the robbery charge had not been filed before the trial date, that the prosecutor was either 1) not going to file it or 2) going to file it at a later time and try the charge separately.

Essential due process requires sufficient notice of the precise criminal charges brought and an adequate opportunity to prepare. That is one reason the state constitution requires that a formal indictment or information be filed. Ark. Const. art. 2 § 8; Ark. Const. amend. 21, § 1.

By statute a prosecuting attorney cannot amend an indictment so as to change the nature of the crime charged. See Ark. Code Ann. § 16-85-407 (1987). We have held on this point that a change in the nature of a charge in the absence of notice to the defendant is impermissible. Harmon v. State, 277 Ark. 265, 641 S.W.2d 21 (1982). In Harmon the defendant was accused of capital felony murder with kidnapping as the underlying felony. On the day of the trial, the prosecutor amended the information to add robbery as an alternate felony. The defendant was found guilty and sentenced to death. After discussing the amended charge, the court held that the nature of the charge was undoubtedly changed by the addition of robbery and that the change was not permissible absent notice to the defendant. This court then concluded: “It is hardly even arguable that a person can fairly be sentenced to death upon a charge that was not made until the morning of trial, leaving no possibility for thorough preparation of a defense upon both the facts and the law.” 277 Ark. at 270, 641 S.W.2d at 24.

We have emphasized in a subsequent case that the amendment of a capital murder charge to include first degree murder was improper because the two crimes were of a different nature, requiring proof of different elements. Bell v. State, 296 Ark. 458, 757 S.W.2d 937 (1988) (affirmed because the defendant failed to preserve the argument for appeal). We have further said that we will allow amendments to an information only where the nature of the crime alleged has not changed and the accused is unable to show prejudice. Allen v. State, 296 Ark. 33, 751 S.W.2d 347 (1988). And we have underscored the fact that when amendments to a charge are made, the defendant must be given notice and adequate time for preparation. See Abernathy v. State, 278 Ark. 250, 644 S.W.2d 590 (1983).

In the case before us the appellant’s information was not amended, but he was charged with an entirely new felony — aggravated robbery — on the day of the trial. Filing a new charge at such a late date is even more serious in my judgment than amending an existing charge. The second robbery charge was separate and apart from the underlying robbery which accompanied the murder and which occurred at a different location. The prejudice to the appellant was, therefore, real and palpable for two primary reasons: 1) aggravated robbery has different elements of proof than capital felony murder; and 2) a new robbery charge was cumulative to the murder charge and doubtless implanted in the jury’s mind that the appellant was on a criminal spree on the night in question.

Not knowing with certainty whether the client will be charged with a second felony until the date of the trial places the defense counsel under a horrendous burden. The majority wears blinders when it says no prejudice resulted. A fifty year sentence, standing alone, evidences prejudice enough.

The defense counsel announced he was ready for trial and then immediately moved for. a continuance. This was following objections made on the new aggravated robbery charge, the absence of sufficient black males on the jury panel, and the appearance of the appellant in front of the jury panel in shackles. The record reflects that the defense counsel did not know the new charge had been filed until after the jury had been sworn. He objected to the trial of the second charge and asked that his objection be considered a continuing one. Within minutes he asked for a two week continuance. The context of his motion supports the conclusion that the motion was tied to the new charge as well as to the composition of the jury panel and the shackles.

Under these circumstances the defense counsel stated valid grounds for a severance, and he preserved his record for appeal. The new aggravated robbery charge should not have been submitted to the jury. I would reverse that conviction.

Newbern, J., joins


author: Jack Holt, Jr., Chief Justice.

text:
    Chuck PENNINGTON and Stacey Sexton v. STATE of Arkansas
    91-14
    807 S.W.2d 660
    Supreme Court of Arkansas
    Opinion delivered April 29, 1991

      Willie E. Perkins, Jr., for appellant.

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

The appellants, Chuck Pennington and Stacey Sexton were charged with others, in the Hot Spring County Circuit Court, with criminal mischief in the first degree, a class C felony. The charges arose from the appellants’ alleged participation in the damage to some tombstones in a local cemetery. The police incident report indicated that approximately 30 tombstones had been knocked over, and several broken.

Two of the young men involved were nineteen and twenty years old; as appellants Pennington and Sexton were both seventeen years of age, they, together with another defendant who is not involved in this appeal, elected to file motions to transfer the case to juvenile court, pursuant to Ark. Code Ann. § 9-27-318 (Supp. 1989). The circuit court conducted the hearing required by statute on the appellants’ motions and denied the transfers.

From this decision, Pennington and Sexton appeal, contending that the trial court erred in relying solely on the prosecutor’s judgment in bringing the case before circuit court, despite its findings favorable to Pennington and Sexton with regard to the factors enumerated in section 9-27-318. We agree and reverse and remand to circuit court.

Section 9-27-318(e) provides that in deciding whether to transfer the case or to retain jurisdiction, the court in which the criminal charges have been filed shall consider the following factors:

(1) The seriousness of the offense, and whether violence was employed by the juvenile in the commission of the offense;
(2) Whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that the juvenile is beyond rehabilitation under existing rehabilitation programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts; and
(3) The prior history, character traits, mental maturity, and any other factor which reflects upon the juvenile’s prospects for rehabilitation.

Subsection (f) further provides that the trial court’s finding that a juvenile should be tried as an adult must be supported by clear and convincing evidence.

We recently held that the party seeking the transfer has the burden of going forward with the proof to show that a transfer is warranted under the statute. . . [H]e only fails if there is clear and convincing countervailing evidence to support a finding that the juvenile should remain in circuit court.” Walker v. State, 304 Ark. 393, 399, 803 S.W.2d 502 (1991). Our standard of review then becomes a question of whether the trial court abused its discretion; that is, whether the decision, based on the evidence presented, was arbitrary or groundless. Walker v. State, supra; Looper v. Madison Guar. Savings & Loan Ass’n, 292 Ark. 225, 729 S.W.2d 156 (1987).

In making its determination, the trial court had before it the prosecutor’s information, the testimony of both appellants, and the testimony of one witness for the State. The information recites that the appellants “did unlawfully, purposely and without legal justification, destroy or cause damage to thirty (30) tombstones. . .amount of actual damages to said property exceeding $500.00 . . . .” At the hearing, both appellants testified to completing high school through G.E.D. certification. Sexton stated that he had plans to join the navy, and Pennington testified he also had tentative plans to enlist in the military. Neither had any prior arrests or convictions, and both parties expressed a willingness to participate in rehabilitative programs.

In response, the State offered the testimony of Maurice Hendrix, a local resident who had relatives buried in the cemetery and who testified that the damage to the tombstones was emotionally upsetting to his family. Mr. Hendrix stated that the appellants should be tried in circuit court as it was his understanding that they would receive more lenient treatment in juvenile court. Mr. Hendrix conceded he had no knowledge of the workings of the court system.

Following the testimony and arguments of counsel, the trial court recited its findings of fact, acknowledging that the crime involved was not violent in nature; that the act did not appear to be part of a pattern of past or future criminal activity; that Pennington and Sexton showed no history of problems “other than problems that most kids go through”; and that there was no reason to believe they could not be rehabilitated.

The court then continued, however, with these remarks:

. . .[B]ut all these kids, these three kids are seventeen years old. There were two others involved, one nineteen and one twenty. They’re all hovering right around the age of adults, either as young adults or almost young adults.' The prosecutor chose to charge these individuals as adults and charged them with felonies rather than with misdemeanors and Fm not going to upset that charge. Fm not going to substitute my judgment in this case for that of the prosecutor. If he wants to proceed with felony charges against these three, well, he certainly may do so. Motion to transfer is denied.

The court correctly considered each of the three factors as required by section 9-27-318 and, in reaching its decision, the circuit court was not required to give equal weight to each factor, nor was the prosecutor required to introduce proof against the juvenile with regard to each factor. See Hallman v. State, 288 Ark. 448, 706 S.W.2d 381 (1986); Walker v. State, supra.

However, it is obvious, as Pennington and Sexton contend, that despite careful consideration of the statutory factors, the trial court ignored its own findings favorable to them and deferred solely to the prosecutor’s judgment in selecting a forum for trial. Such action on the part of the trial court defeats the purpose of the Arkansas Juvenile Code which recognizes the need for careful, case-by-case evaluation when juveniles are charged with criminal offenses. Section 9-27-318 clearly delegates the responsibility for determining which court is most appropriate to the court in which the charges were brought, and the abdication of this responsibility to the prosecutor, in this case, was an abuse of the court’s discretion.

Once the appellants went forward with their proof to warrant moving the case to juvenile court, the State was required to produce countervailing evidence warranting its retention in circuit court. This was not done. The State introduced no evidence of violence, negative past history or criminal records, or any character traits which would reflect poorly on the appellants’ prospects for rehabilitation.

This case does not resemble, in the least, Walker v. State, supra, where we held that the felony information, in and of itself, sufficiently highlighted the seriousness and violence involved in the juvenile’s first degree murder offense to justify the case’s retention in circuit court.

For the foreseeing reasons, we reverse and remand both cases to the trial court for appropriate disposition.

Hays, J., dissents.


author: Robert H. Dudley, Justice.

text:
    Billy Ray HARBOUR v. STATE of Arkansas
    CR 90-300
    807 S.W.2d 663
    Supreme Court of Arkansas
    Opinion delivered April 29, 1991

      Burbank, Dodson, & McDonald, by: Gary L. Burbank, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Sr. Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant was charged by a police citation with driving while intoxicated. At the time of the arrest, the arresting officer had not been given the required psychological evaluation. The statute applicable at that time provided that any action taken by such an officer “shall be held as invalid.” See Ark. Code Ann. § 12-9-108(a) (1987). Appellant filed a motion to dismiss in which he contended that the charging instrument, the police citation, was invalid, see Grable v. State, 298 Ark. 489, 769 S.W.2d 9 (1989), and, in addition, filed a similar motion to suppress the evidence gathered by the officer. Before trial, the statute was amended to provide that any action taken by non-qualified officers “shall not be held invalid.” Ark. Code Ann. § 12-9-108(a) (1990-91 Advance Code Service). The amendment is expressly made applicable to pending cases. The trial court applied the amended act, over appellant’s objections, and found appellant guilty. We affirm the trial court’s ruling.

Appellant contends the trial court’s ruling violated the prohibition against the enactment of ex post facto laws. In a case squarely on point, we recently held that the amendment does not violate the ex post facto clauses of either the federal or state constitutions. Ridenhour v. State, 305 Ark. 90, 805 S.W.2d 639 (1991).

Appellant next contends the trial court erred in refusing to grant his motion to suppress. The argument is without merit as the trial court properly applied the amended act to find that the evidence gathered by the arresting officer was not invalidly gathered.

Appellant’s third argument is that he was deprived of procedural due process because the charging instrument, the police citation, was invalid. As previously set out, he was not invalidly charged because of the operation of the statutory amendment.

His final argument is that the amendment is void because of vagueness. We do not reach a decision on this point as it was not argued below. We do not address issues raised for the first time on appeal. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).

Affirmed.