author: Robert L. Brown, Justice.

text:
    David REAGAN v. STATE of Arkansas
    CR 94-237
    885 S.W.2d 849
    Supreme Court of Arkansas
    Opinion delivered October 24, 1994

      Paul H. Lee, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

This is a sufficiency of the evidence case. The appellant, David Reagan, appeals his judgment of conviction for first degree murder and his sentence of life imprisonment. Following his judgment of conviction, Reagan did not appeal to this court but rather filed a petition pro se for writ of habeas corpus in federal district court. Counsel for Reagan was appointed on that petition and because state remedies had not been exhausted in the form of an appeal, a motion for belated appeal was filed in this court on Reagan’s behalf. This court treated that motion as one for a rule on the clerk and granted it.

Reagan’s basis for lack of sufficient evidence is that the State failed to prove that under “circumstances manifesting cruel and malicious indifference to the value of human life,” he knowingly caused the death of the victim who was under age 14. See Ark. Code Ann. § 5-10-102 (1987). We decline to consider the argument, however, in light of the fact that Reagan failed to preserve the sufficiency argument for our review by appropriate motion. We, therefore, affirm the judgment of conviction.

The facts of the case are these. Sarah Binkard was the natural child of Renay Binkard. At the time of her death she was two years old. Reagan was Renay Binkard’s boyfriend and lived in her home with her other children. On November 27, 1989, Sarah suffered a blow to her abdomen. Later that day she stopped breathing and was taken to the Emergency Room at the Piggott Hospital where she was pronounced dead. She was examined by Dr. Jerry Muse, who observed other indications of trauma on her body in addition to the abdominal injury, including a bruise to her forehead, a bruise under her chin, and several bruises in the small of her back. There were also burns to each foot, later identified by Dr. Fahmy Malak, then State Medical Examiner, as cigarette burns. Her diaper was bloody as a result of the blow to her abdomen. Dr. Malak testified that the injury resulted in a ruptured intestine, which resulted in Sarah’s death. He opined that the injury was caused by a blunt instrument like a fist or elbow.

Officer Jerry Brogden of the Arkansas State Police Department investigated the death and took several statements from Reagan. Initially, Reagan attributed the blow to Sarah’s stomach to a fall from his front porch and later to an accidental fall where his knee hit her. In later statements, this changed, and he stated that the inflicted trauma had been caused by his pulling on a limb which broke and caused him to fall on Sarah. The State charged Reagan and Renay Binkard with first degree murder. Renay Binkard later pled guilty to permitting child abuse to occur. The charge against Reagan went to trial in June 1990.

The statements taken by Officer Brogden as well as the testimony of Dr. Muse and Dr. Malak formed the basis for the State’s case against Reagan. There was also testimony by Reagan’s son, David Chance Reagan, that he had seen his father put his knee on Sarah’s stomach and force feed her. A neighbor, Vanessa Huckaby, who saw Sarah on the day of her death, testified that she appeared dazed and sick and that Reagan was acting “differently.” A field services specialist for the State Department of Human Services, Wilma Rogers, testified that DHS had received a complaint of child abuse against Renay Binkard in December 1988. Two prisoners incarcerated with Reagan testified that he spoke disparagingly about Sarah.

At the conclusion of the State’s case this colloquy transpired:

THE COURT: Call your first witness. Did you want the record to reflect the motion made?
DEFENSE COUNSEL: Yes, sir.
THE COURT: Made and denied.

The defense then put on its case which included in part testimony by Renay Binkard and Reagan. At the close of all evidence, there was this exchange:

THE COURT: Mr. Knauts [Defense Counsel], I’m going to show your motion for a directed verdict made and denied at the end of the State’s case and again at the end of your case.
DEFENSE COUNSEL: Thank you, your Honor,

The jury then found Reagan guilty of first degree murder and assessed a penalty of life imprisonment. He was sentenced by the circuit court.

The State argues in its brief that defense counsel did not move for a directed verdict with enough specificity either at the close of the State’s case or at the end of all the evidence. We agree. Indeed, in this case defense counsel failed to make any motion. In 1988, this court adopted Ark. R. Crim. P. 36.21(b), to be effective March 1, 1988, requiring the defense to move for a directed verdict both at the close of the State’s case and at the close of all of the evidence in order to preserve an argument on sufficiency of the evidence on appeal. See also Houston v. State, 299 Ark. 7, 771 S.W.2d 16 (1989). The Reporter’s Notes to that amendment stressed that this procedural step would bring the criminal rule more in line with our civil rule, Ark. R. Civ. P. 50, which similarly requires that the motion be made following the plaintiff’s case and after all evidence has been presented. Mitchell v. Goodall, 297 Ark. 332, 761 S.W.2d 919 (1988). Rule 50 further requires that a motion for directed verdict state the specific grounds supporting it. See Hooper v. Ragar, 289 Ark. 152, 711 S.W.2d 148 (1986).

We conclude that what defense counsel did in this case did not qualify as a motion for directed verdict on behalf of his client. Accordingly, the issue of sufficiency of the evidence is not preserved for our review. This case is analogous to Middleton v. State, 311 Ark. 307, 842 S.W.2d 434 (1992), decided after the date of the alleged offense. In Middleton, defense counsel said he was making “the usual motions.” But no specific motion was made. We stated that this did not suffice and that a more precise motion was required to challenge the sufficiency of the evidence and to apprise the trial court of the particular points raised. We then refused to consider the merits of that appeal. A comparable situation confronted the Court of Appeals in Martin v. State, 46 Ark. App. 276, 879 S.W.2d 470 (1994), also decided after the date of the charged offense. Defense counsel answered in the affirmative when the trial court asked: “Show the motions renewed?” That answer by defense counsel, the court correctly observed, did not amount to a motion for directed verdict.

Most recently, we established a bright line rule for specificity relating to motions for directed verdict:

We draw a bright line and hold that a motion for a directed verdict in a criminal case must state the specific ground of the motion. Rule 36.21 of the Arkansas Rules of Criminal Procedure is to be read in alignment with Rule 50 of the Arkansas Rules of Civil Procedure. If a motion for directed verdict is general and does not specify a basis for the motion, it will be insufficient to preserve a specific argument for appellate review.

Walker v. State, 318 Ark. 107, 109, 883 S.W.2d 831, 832 (1994); see also, Daffron v. State, 318 Ark. 182, 885 S.W.2d 3 (1994).

It is obvious that defense counsel in the present case made no effort to move for a directed verdict himself or to cite the court to reasons which might support a motion. A directed verdict motion may not be used as a perfunctory device by counsel who are simply looking ahead to appeal. More is required than that and certainly more than was done in this case. We want to make it clear that this court is not deciding this case based on decisions handed down after the alleged offense, but cite this subsequent authority only to emphasize our continued and uniform position that, first, a motion for directed verdict be made and, secondly, that it be made with specificity.

Because Reagan’s motions for directed verdict were deficient and, in truth, nonexistent, the sufficiency argument is not preserved for our review. The record in this case has been read for other adverse rulings on motions and objections by Reagan which might form the basis for reversible error in accordance with Supreme Court Rule 4-3(h). No error was discovered.

Affirmed.

       Act 683 of 1991 amended this statute to delete the requirement that death be caused under circumstances manifesting cruel and malicious indifference to the value of human life.

       Reagan asserts that the injury actually occurred on Sunday, November 26, 1989.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Terrick Terrell NOONER v. STATE of Arkansas
    CR 94-358
    885 S.W.2d 24
    Supreme Court of Arkansas
    Opinion delivered October 24, 1994

      Herbert T. Wright, Jr., for appellant.
    No response.
   Per Curiam.

Appellant Terrick Terrell Nooner was found guilty by a jury of capital murder and sentenced to death. On March 29, 1994, the record was lodged in this court on appeal. Appellant is represented by attorney Herbert Wright who has been granted several extensions of time to file the appellant’s brief. When the most recent motion was granted, it was noted that the brief was due October 5, 1994, and that no further extensions of time would be granted. On October 4, 1994, Wright filed a “motion for continuance” which is pending. On September 8, 1994, appellant filed two pro se motions, one seeking a copy of the transcript from Wright and the other seeking to have Wright removed as counsel and attorney Willard Proctor substituted.

The pro se motions are denied. Appellant has stated no reason or authority to demonstrate that he is entitled to a copy of the trial transcript. Clearly, the attorney for an appellant has no obligation to provide a copy of the trial transcript to the appellant.

With respect to the motion to substitute counsel, appellant states that Mr. Proctor has agreed to be substituted as counsel, but we have no request from Mr. Proctor to do so. Until such time as another attorney files a motion asking to be substituted as attomey-of-record or this court relieves Mr. Wright, this court will not consider appointing other counsel.

Motions denied.


text:
    Donald E. ZUCCO v. STATE of Arkansas
    CR 94-46
    885 S.W.2d 675
    Supreme Court of Arkansas
    Opinion delivered October 24, 1994

      Michael Knollmeyer, for appellant.
    No response.
   Per Curiam.

On August 12, 1992, the petitioner Donald E. Zueco was found guilty by a jury of arson and sentenced to five years imprisonment. He was represented at trial by his retained attorney Ralph J. Blagg. Mr. Blagg filed a timely notice of appeal and designation of record which stated that the trial transcript had been ordered from the court reporter. The appeal was not perfected. In January 1994 petitioner Zueco tendered to this court a partial record of the lower court proceedings with a pro se motion for rule on the clerk seeking to lodge the record belatedly. He also filed a petition for writ of certiorari to bring up the entire record. (Petitioner contended in the motion that he was indigent and moved to be allowed to proceed informa pauperis on appeal, but he has since retained an attorney who is representing him with respect to the motion.) We remanded the matter for an evidentiary hearing. Zucco v. State, CR 94-46 (March 7, 1994). The matter was subsequently remanded for a second hearing. Zucco v. State, CR 94-46 (May 16, 1994). The record of that hearing is now before us.

We noted when remanding the matter for the first evidentiary hearing that Criminal Procedure Rule 36.26 provides that trial counsel, whether retained or court appointed, shall continue to represent a convicted defendant throughout appeal, unless permitted by the trial court or this court to withdraw. Once the notice of appeal is filed with the circuit clerk, only the appellate court can relieve counsel of the obligation to proceed with the appeal. Sup. Ct. Rule 4-3(j)(l). A convicted defendant can waive his right to appeal by not informing counsel that he desires to appeal, but the timely filing of a notice of appeal in the instant case clearly demonstrated that petitioner did not waive his appeal right. See Miller v. State, 299 Ark. 548, 775 S.W.2d 79 (1989). Attorney Blagg did not receive permission from the appellate court to be relieved of his obligation to proceed with the appeal.

Mr. Blagg testified at both hearings that he did not pursue the appeal because petitioner did not actually desire an appeal but only desired to be released on appeal bond which necessitated the filing of a notice of appeal. He stated at the second hearing that he failed to file a motion to be relieved as counsel in the appellate court because he did not believe that petitioner ever intended the appeal to be perfected. He did, however, pay the court reporter $930.00 to begin preparing the transcript. Petitioner, who did not appear at the original hearing, testified at the second hearing that he truly desired to appeal and never indicated to Blagg that he wished to forego an appeal.

It is clear that attorney Blagg abandoned the appeal rather than follow proper procedure which dictates that an attorney who files a notice of appeal is required either to perfect the appeal by lodging the record in the appellate court or file a motion to withdraw in the appellate court within the time allowed for the timely lodging of the record. As Mr. Blagg remains the retained attorney-of-record in this case, he is directed to proceed with the appeal by filing a petition for writ of certiorari within thirty days to bring up that portion of the record necessary for the appeal. A copy of this opinion shall be forwarded to the Committee on Professional Conduct.

Motion for rule on clerk granted.

       When petitioner was convicted in 1992, Supreme Court Rule 11 (h) was in effect. Rule 11 (h) in all pertinent respects was identical to Rule 4-3(j)(l) in its requirement that counsel be relieved by the appellant court once notice of appeal had been given.


text:
    Sherry WALKER, Individually and as Chair of the Committee to Preserve the Medicaid Trust Fund, and on Behalf of all Others Similarly Situated v. W.J. “Bill” McCUEN, In his Official Capacity as Secretary of State of Arkansas
    94-1149
    886 S.W.2d 577
    Supreme Court of Arkansas
    Opinion delivered October 25, 1994

      Wilson, Engstrom, Corum & Coulter, by: Stephen Engstrom\ and John Pagan, for petitioners.

      Winston Bryant, Att’y Gen., for respondent.
   Per Curiam.

Sherry Walker, individually and as chair of the Committee to Preserve the Medicaid Trust Fund, moves for expedited consideration of her original action petition seeking an injunction restraining the Secretary of State from counting the votes cast with respect to Proposed Referred Act Number 1 (the Soft Drink Tax Act) in the November 8, 1994 general election.

The motion is granted. Petitioner Walker filed her brief in support of her original action petition in conjunction with her motion to expedite on October 24, 1994. Respondent W.J. “Bill” McCuen shall have until October 27, 1994, to file a responsive brief. Petitioner Walker may then file a reply brief on October 28, 1994.

In addition to the issues raised in the original action petition, it is suggested that the parties brief the issue of whether relief from this court is available at this time.

We order oral argument of the matter on Monday, October 31, 1994, at 9:00 a.m., or as soon thereafter as is convenient to the court.


author: Jack Holt, Jr., Chief Justice. Tom Glaze, Justice, Robert H. Dudley, Justice,

text:
    Alice MERTZ v. Michael STATES, et al.
    94-1082
    885 S.W.2d 853
    Supreme Court of Arkansas
    Opinion delivered October 28, 1994

      Mackey & Wills, P.A., by: Frank J. Wills, for appellant.

      Robert D. Ridgeway, Jr., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, Alice Mertz, requests that we reverse the Garland County Circuit Court’s order striking from the November 1994 general election ballot in Hot Springs, Garland County, Arkansas, a proposed ordinance reducing the percentage rate of the tax collected on prepared food sold in the City of Hot Springs. We decline to do so and hold that the initiative petition fails to comply with Amendment 7 of the Arkansas Constitution and is therefore fatally defective.

The ordinance in question was initiated pursuant to Amendment 7 to the Arkansas Constitution and submitted by Ms. Mertz to the Hot Springs City Clerk on August 31,1994. The city clerk certified the petition on September 20, 1994, for placement on the November 1994 general election ballot. Immediately after the petition was certified by the Hot Springs City Clerk, a complaint was filed by appellees Michael States and Clay Farrar, Jr., challenging the sufficiency of the petition. They sought an order of mandamus from the Garland County Circuit Court to prevent the Clerk from certifying the initiative petition to the Garland County Election Commissioners for inclusion on the ballot.

The challenge to the sufficiency of the proposed ordinance was based on five grounds:

(1) the initiative petition did not contain an enacting clause;
(2) the initiative petition did not contain a text of the proposed ordinance as required by Amendment 7;
(3) the exact title to be placed on the ballot was not submitted to the Garland County Board of Election Commissioners at the same time the petition was submitted to the City Clerk for verification;
(4) the initiative petition was in substance a referendum petition, the time for filing of which had passed; and
(5) if approved, the ordinance would impair certain municipal bonds, contrary to the general laws of Arkansas.

The trial court, in granting the mandamus, made various findings and' ultimately granted relief to the complaining parties because the petition that established the proposed ordinance failed to contain an “Enacting Clause” as required by Amendment 7.

On appeal, Ms. Mertz raises two points for reversal:

(1) given the trial court’s specific finding that the language of the petition was sufficient to inform potential voters that the petition was initiated by the people, the trial court erroneously concluded that the petition failed to satisfy Amendment 7’s enacting clause requirement;
(2) the circuit court lacked subject-matter jurisdiction to determine the sufficiency of the petition in question.

On cross-appeal, the appellees, Messrs. States and Farrar, take issue with the trial court’s ruling that the initiative petition did not conflict with general law and that it complied with the terms of Amendment 7 to the Arkansas Constitution pertaining to the filing of an exact title at the same time as the filing of the petition.

We hold that the Garland County Circuit Court had subject-matter jurisdiction and that its finding that the petition failed to satisfy Amendment 7’s Enacting Clause requirement was correct; for these reasons, the ordinance was properly ordered by the trial court to be removed from the ballot. This being the case, the issues raised by the appellees on cross-appeal are rendered moot.

Ms. Mertz claims that the Garland County Circuit Court lacks subject-matter jurisdiction, and that, by constitutional authority, only chancery courts have jurisdiction to determine the sufficiency of an initiated local ordinance. Although the court’s jurisdiction to decide an Enacting Clause issue was not raised below, subject-matter jurisdiction is a question this court may address at any time. Skelton v. City of Atkins, 317 Ark. 28, 875 S.W.2d 504 (1994). Indeed, it is not only our right but our duty to determine whether there is jurisdiction of the subject matter. Id.; Hilburn v. First State Bank, 259 Ark. 569, 535 S.W.2d 810 (1976).

Regarding the jurisdictional question, Amendment 7 provides, in relevant part, that “[t]he sufficiency of all local petitions shall be decided in the first instance by the county clerk or the city clerk, as the case may be, subject to review by the Chancery Court.” In the present case, however, the circuit court is not being called upon to determine the sufficiency of the local petition, but, rather, to decide as a matter of law whether or not Amendment 7 requires an Enacting Clause in a specific instance.

In Moorman v. Lynch, 310 Ark. 525, 528, 837 S.W.2d 886, 888 (1992), we discussed the language from Amendment 7 quoted in the immediately preceding paragraph and concluded that:

This provision gives the chancery court “jurisdiction only to review the action of the county or city clerk in determining the sufficiency of the petitions.” Rick v. Walker, 237 Ark. 586, 587, 374 S.W.2d 476, 478 (1964). The city clerk reviews the sufficiency of the petitions, but does not have the authority to determine the legal validity of a proposal. The jurisdiction of a suit to question the validity of a proposed measure is in circuit court. Catlett v. Republican Party, 242 Ark. 283, 413 S.W.2d 651 (1967).

(Emphasis added.) Here, quite clearly, the legal validity of the initiative petition is at issue rather than a formal element of sufficiency, such as, for example, the signatures on the petition. See Hargis v. Hall, 196 Ark. 878, 120 S.W.2d 335 (1938).

Although Ms. Mertz cites Hailey v. Carter, 221 Ark. 20, 251 S.W.2d 826 (1952), in support of her position that the existence of an Enacting Clause is a sufficiency-of-the-petition issue, we do not agree that its holding carries such an implication. It is true that the Hailey case originated in chancery court and that this court affirmed the chancellor’s finding of insufficiency on the basis of the absence of an Enacting Clause from a petition and proposed measure.

Nevertheless, when Hailey is read in the light of our more recent decisions in U.S. Term Limits, Inc. v. Hill, 316 Ark. 251, 872 S.W.2d 349 (1994), where we held that a circuit court had jurisdiction to entertain a declaratory judgment action raising the Enacting Clause issue, and Moorman v. Lynch, supra, it is obvious that our holding in the older opinion must be regarded as modified to the extent that it treats the omission of an Enacting Clause as a sufficiency issue.

Regardless of the terms in which either the complaint or this appeal is couched, the question before us is not whether the sufficiency of the petition is to be resolved in chancery court, but whether, as a matter of law, a petition must contain an Enacting Clause as prescribed by Amendment 7. The answer can be found in the express language of the Amendment itself:

Enacting Clause — The style of all the bills initiated and submitted under the provisions of this section shall be, “Be it Enacted by the People of the State of Arkansas” (municipality, or county as the case may be). . . .

Ark. Const. Amend. 7. (Emphasis added.)

Amendment 7 further specifically provides, under the heading “Self-executing,” that:

This section shall be self-executing, and all its provisions shall be treated as mandatory. . . .

We have recognized time after time that the provisions of election laws are mandatory if enforcement is sought before an election, as here. See, for example, Ashcraft v. Cox, 310 Ark. 703, 833 S.W.2d 219 (1992); Don v. McCuen, 303 Ark. 415, 797 S.W.2d 455 (1990); Stilinger v. Rector, 253 Ark. 982, 490 S.W.2d 109 (1973).

Ms. Mertz admits that the petition did not contain the constitutionally mandated language but takes the position that the language of the petition, proposed by petition of the people, is in substantial compliance with Amendment 7 and, moreover, that because a circuit judge specifically found that the language of the petition was sufficient to inform potential voters of the source of the legislative authority being exercised, the court was in error in ruling the petition off the ballot.

Our constitution in its present form does not afford leeway for innovative case interpretations of substantial compliance. Its language is clear that the provision shall be treated as mandatory. Simply put, that all bills initiated must be submitted in the following language set forth in Amendment 7: ‘“Be it enacted by the people of the State of Arkansas’ (municipality, or county as the case may be).”

Thus our constitution speaks, and thus our law requires.

Affirmed on appeal; cross-appeal moot.

Glaze, J., concurs.

Dudley, J., dissents.

Tom Glaze, Justice,

concurring. I concur. The circuit court unquestionably has jurisdiction to determine the legal validity of the initiative ordinance at issue in this case. See Catlett v. Republican Party, 242 Ark. 283, 413 S.W.2d 651 (1967). The initiative ordinance here clearly conflicts with statutory law and should be declared invalid and stricken from the ballot for that reason alone.

Under Ark. Code Ann. § 26-75-613(a)(2) (Repl. 1993), any municipality by ordinance can levy a hotel and restaurant tax and pledge all or any part of the revenues to the payment on bonds authorized under that provision. The bond-authorizing ordinance must specify the nature, extent of the pledge, terms, conditions and covenants, including a covenant that the hotel and restaurant tax will be collected so long as the bonds are outstanding. § 26-75-613(a)(2) and (b)(2).

On September 8, 1987, the City of Hot Springs passed Ordinance 3914, calling for an election for the purpose of refunding certain outstanding bonds to be secured by a portion of the City’s hotel and restaurant tax. On January 4, 1988, the City’s board of directors adopted Ordinance 3942 authorizing the refunding of bonds provided for under Ordinance 3914. Ordinance 3942 further provided, “The bonds shall mature over the period from 1989 through 1997.”

On May 1, 1989, the City adopted Ordinance 4002 to reaffirm the City’s hotel and restaurant tax (3% “hamburger tax”) which was being used to pay off existing bonds. It is this ordinance that the proposed initiative ordinance is intended to amend, reducing the tax by one-half (3% to 1-1/2%).

From the record before us, we know certain bonds were duly authorized by City Ordinance 3942 and those bonds will not mature until 1997. In addition, Ordinance 3942 (and subsequent amending ordinances) pledged two-thirds of the tax (2% of the 3% tax) for the payment of bonds. As provided in § 26-75-613(b)(3)(A), the authorizing ordinance (3942) is a contract between the municipality and bondholders and must be performed in strict compliance with the covenants. The initiative ordinance conflicts with and breaches that city-bondholder contract entered into on January 4, 1988, and cannot be upheld.

Because the proposed initiative ordinance is invalid, I would uphold the circuit court’s decision to omit the proposed ordinance question from the 1994 General Election ballot.

Robert H. Dudley, Justice,

dissenting. I dissent from both the procedural and the substantive holdings in this case.

I.

PROCEDURAL HOLDING

Appellant Alice Mertz circulated an initiated petition to halve the three percent (3%) “hamburger tax” that had been imposed under an earlier ordinance of the City of Hot Springs. The city clerk certified to the Garland County Board of Election Commissioners that the petitions were sufficient to place the issue on the November 8, 1994, general election ballot. Appellees, States and Farrar, filed suit in the Garland County Circuit Court and alleged the initiated petition was defective because: (1) it did not contain an enacting clause; (2) a ballot title was not submitted with the petitions; (3) the petitions did not contain the text of the proposal; (4) the petition was a referendum, not an initiated measure, and time had passed for referral; and (5) if passed, the ordinance would impair some of the City’s bonds.

On September 29, 1994, the circuit court entered its order finding that the petitions were for an initiated measure, but that they did not contain an enacting clause as required by Amendment 7. The court decreed that the initiated proposal should be prohibited from appearing on the ballot.

On October 4, appellant Mertz filed a notice of appeal, and appellees filed a notice of cross-appeal. On October 10, appellant Mertz filed a motion in this court asking for an expedited briefing schedule and expedited consideration of the appeal. On October 12, this court issued a per curiam order noting that there were only twenty-six days before the general election and that the election commissioners had to deliver absentee ballots to the county clerk “not less than twenty-five days before any election” and stating that we would hear oral argument on October 17 “to consider whether any appropriate action might be taken.” The per curiam further noted that if “no appropriate action can be taken on an expedited basis, we will consider the appeal in due course and will answer any questions that we think should be answered.”

At trial, the chairman of the Garland County Election Commission testified that “the last date upon which the printer can physically get the ballot printed with the proposed ordinance if it is to be included would have to be prior to October 14, 1994 at 4:30 p.m.”

There are two general classes of ballot title cases. One is where the petitioner seeks to remove a proposal from the ballot. Obviously, a decision could be handed down as late as election day ordering that the votes on an issue not be certified. A recent case of this class is Page v. McCuen, No. 94-922 (Ark. October 20, 1994). Further, this class of cases is specifically addressed in Amendment 7, as it provides:

If the sufficiency of any petition is challenged such cause shall be a preference cause and shall be tried at once, but the failure of the courts to decide prior to the election as to the sufficiency of any such petition shall not prevent the question from being placed upon the ballot at the election named in such petition, nor militate against the validity of such measure, if it shall have been approved by a vote of the people.

Ark. Const, amend. 7 (emphasis added).

The other general class of ballot title cases is where a proposal was not placed on the ballot, or ordered stricken from the ballot, for any of a number of reasons, and the petitioner seeks to add the proposal to the ballot. Obviously, this class must be decided in time to prepare the ballots with the proposal included.

Applications can be made for absentee ballots starting sixty days before the election, or September 8 for the 1994 general election. Ark. Code Ann. § 7-5-405 (Repl. 1993). The county clerk can begin mailing absentee ballots to qualified applicants twenty-five days before the election. Ark. Code Ann. § 7-5-407. Fifteen days before the general election, or Monday, October 24, 1994, voters could begin voting under the new “no-excuse early voting law.” Ark. Code Ann. §§ 7-5-402(3) & 411(a)(1) (Repl. 1993). Thus, balloting has already commenced for both absentee voters and the “early” voters for the November 1994 general election.

This opinion is being handed down on October 28, 1994. It is too late to place the proposal on the ballot for the November 1994 general election. Absentee voters and early voters have already voted, as they were entitled to do under the election laws. There has been no showing in this case that those who have already voted can be contacted and supplied with substituted ballots before the date of the general election. Common sense would dictate that they cannot be notified and supplied with a substituted ballot. There has been no showing that voting machines can be programmed at this late date to provide for the initiated proposal at the November 8 election. Thus, if this court’s decision should be to order the proposal added to the ballot, the order could not be followed, and if there were an attempt to comply with it, some, if not many, of those who have already voted would be unlawfully disenfranchised on this initiated proposal.

Since relief cannot be afforded in time for the general election, there is no reason to continue the expedited consideration of the case. It should be given full deliberative time. When a case comes to us under our regular schedule we have eleven days to read and study the briefs before the case is submitted. We then have adequate time to write our opinions. When there is an expedited schedule we have only a very short amount of time to read and consider the issue. In one recent case we had a period of only five days from the time the briefs were submitted until the opinion was handed down. We discussed these concerns in Page v. McCuen, No. 94-922 (Ark. October 20, 1994). Compounding the problem, expedited appeals are added to our regular number of cases. We currently take ten cases under submission each week. This week we took our regular number of cases and added two expedited appeals. Since we cannot timely afford relief to the petitioner even if she should prevail, we should take this case off the expedited list, place it on the regular docket, and give it full consideration in due course, the same as any other regular case. If there are questions that can then be answered, they would be answered long before the next election. That is all we can do.

The majority opinion in this case aptly demonstrates that we should not consider this case on an expedited basis, but rather should give it deliberate consideration.

II.

SUBSTANTIVE HOLDING

The majority opinion holds that a circuit court has subject matter jurisdiction of this case. Because of complex constitutional provisions regarding subject matter jurisdiction of state courts, this is an involved area of our law.

The complaint asked that the initiated proposal be prohibited from being on the ballot because the petitions were not sufficient as: (1) they did not contain an enacting clause; (2) a ballot title was not submitted with the petitions; (3) the initiative did not contain the text of the proposal; (4) the petitions were not timely submitted; and (5) if passed, the ordinance would impair some of the City’s bonds.

The Initiative and Referendum Amendment, Amendment 7, clearly provides:

The sufficiency of all local petitions shall be decided in the first instance by the county clerk or the city clerk, as the case may be, subject to review by the Chancery Court.

Ark. Const, amend. 7 (emphasis added).

We have interpreted the plain wording of the Amendment to mean just what it says: chancery court has jurisdiction to review the action of the city clerk in determining the sufficiency of petitions submitted under this amendment. Rich v. Walker, 237 Ark. 586, 374 S.W.2d 476 (1964).

The city clerk determined the petitions at issue were sufficient. Appellees’ petition challenged that determination in circuit court. Appellees alleged in the first four counts that the petitions were insufficient in that they: (1) did not contain an enacting clause; (2) did not contain a ballot title; (3) did not contain the text of the proposal; and (4) were untimely. It seems beyond question that subject matter jurisdiction of these four counts was in chancery court and not in circuit court where the case was tried. Subject matter jurisdiction of these counts is expressly set out in the constitution.

In addition, however, the complaint alleged that the initiated proposal, if passed, would impair some of the City’s bonds in contravention of state law. This fifth count was one stating that the initiated proposal was illegal regardless of whether the petition was sufficient or insufficient.

Circuit court has subject matter jurisdiction to determine whether an initiated proposal is in conformity with statutory or constitutional law or is illegal, when that decision is made without regard to the sufficiency of the petitions. See Catlett v. Republican Party, 242 Ark. 283, 413 S.W.2d 651 (1967). “The sufficiency of all local petitions shall be decided in the first instance by . . . the city clerk, . . . subject to review by the Chancery Court.” Moorman v. Lynch, 310 Ark. 525, 528, 837 S.W.2d 886, 888 (1992) (quoting Ark. Const, amend. 7). However, “[t]he jurisdiction of a suit to question the validity of a proposed measure is in circuit court.” Id., 887 S.W.2d at 888. Similarly, a circuit court has jurisdiction to determine an election contest involving an initiated proposal, Rich, 237 Ark. 586, 374 S.W.2d 476, and a circuit court has jurisdiction to determine whether an initiated proposal, after adoption, is valid. U.S. Term Limits, Inc. v. Hill, 316 Ark. 251, 872 S.W.2d 349 (1994).

Here, the fifth count of the complaint was that, even if the petitions were sufficient and even if the proposal were passed, the initiated ordinance would be invalid because it would impair some of the City’s bonds in violation of state law. If there were nothing more than this one allegation, subject matter jurisdiction would be in circuit court.

In summary, subject matter jurisdiction of the first four counts is in chancery court under the express language of Amendment 7, and subject matter jurisdiction of the fifth count is in circuit court under Article 7, section 11. The clean-up doctrine applies to chancery court. Bierbaum v. City of Hamburg, 262 Ark. 532, 559 S.W.2d 20 (1977); Liles v. Liles, 289 Ark. 159, 711 S.W.2d 447 (1986). Therefore, subject matter jurisdiction of this case was in chancery court, not in circuit court, and, as a result, this appeal should be dismissed.

III.

CONCLUSION

This case involves a complex area of the law. It involves the constitution of 1874 and Amendment 7 to that constitution, which was adopted in 1920, but declared by the Speaker of the House to have been defeated, and then in Brickhouse v. Hill, 167 Ark. 513, 268 S.W.2d 865 (1925), declared to have been adopted. It involves subject matter jurisdiction of circuit court and chancery court. Both the bench and the bar would appreciate a clear and carefully thought out precedent for future cases involving this area of the law. We should take this case off the expedited tract and take sufficient time to give it full and careful consideration.

I truly appreciate the diligence and efforts my colleagues have given in reaching an accelerated holding for the litigants, but I do not agree that it is appropriate or wise to rush to judgment in this case. No matter what the holding, the proposal cannot be put on the ballot in time for the general election. As a result, I would change the status of this case to the regular docket and give it full consideration. However, because the majority chooses to reach the merits of the case on an accelerated basis, I must also do so. A rushed review of the law leads me to the conclusion that the circuit court did not have subject matter jurisdiction, and, consequently, the appeal should be dismissed. As a result, I dissent.

       The city board also passed Ordinance 3943 to refund other bonds previously issued under Ordinance 3914.


author: Robert L. Brown, Justice. Steele Hays, Justice,

text:
    Ron OLIVER, in His Official Capacity as Chairman of the Pulaski County Election Commission; Lisa Binns, in Her Official Capacity as a Member of the Pulaski County Election Commission; and Richard Grasby, in His Official Capacity as a Member of the Pulaski County Election Commission v. Logan SIMONS
    94-1067
    885 S.W.2d 859
    Supreme Court of Arkansas
    Opinion delivered October 28, 1994

      Nelwyn Davis, Pulaski County Civil Attorney; and Karla Burnett, for appellants.

      Robert A. Newcomb, for appellee.
   Robert L. Brown, Justice.

Ron Oliver and other members of the Pulaski County Election Commission appeal the decision of the circuit court granting the writ of mandamus and ordering that Appellee Logan Simons’s name be placed on the ballot for the November 8, 1994 general election as an independent candidate for Pulaski County Municipal Court. The Election Commission primarily contends that because this office is filled by county wide election it was subject to a May 1, 1994 filing deadline, and Simons’s attempt to file as an independent candidate on September 2, 1994, was, therefore, untimely. We disagree with the Election Commission’s conclusion, and we affirm the decision of the circuit court.

On September 2, 1994, Simons approached the Election Commission to file as an independent candidate for Pulaski County Municipal Court. She presented a sufficient number of signatures for this purpose but was not permitted to file due to untimeliness. It was the Election Commission’s position that candidates for this office had already been chosen in the primary elections held in May, and that Simons should have filed as an independent candidate by May 1, 1994. On September 9, 1994, Simons filed as a write-in candidate for this same position, and on September 20, 1994, she filed a petition for writ of mandamus and for a temporary restraining order to have her name placed on the ballot as an independent candidate. A hearing was held before the circuit court, and on September 26, 1994, the circuit court granted Simons’s petition. In doing so, the circuit court relied on the case of Johnson County Election Commissioners v. Holman, 280 Ark. 128, 655 S.W.2d 408 (1983). The circuit court further found that Simons was qualified and observed that the Election Commission had previously filled a vacancy for the Pulaski County Municipal Court after accepting an opinion from the State Attorney General to the effect that this was a municipal office. The circuit court concluded that the Attorney General was correct in his opinion.

The pertinent statute governing filing procedures for independent candidates follows:

(b) Any person desiring to have his name placed upon the ballot as an independent candidate without political party affiliation for any state, county, township, or district office in any general election in this state shall file as an independent candidate in the manner provided in this section no later than the date fixed by law as the deadline for filing political practice pledges and party pledges if any are required by the rules of the party to qualify as a candidate of a political party in a primary election or the first day of May, whichever is later.
(c)(1) He shall furnish, at the time he files as an independent candidate, petitions signed by not less than three percent (3%) of the qualified electors in the county, township, or district in which the person is seeking office, but in no event shall more than two thousand (2,000) signatures be required for a district office.
(d)(1) Independent candidates for municipal office may qualify by petition of not less than ten (10) nor more than fifty (50) electors of the ward or city in which the election is to be held.
(2) Independent candidates for municipal office shall file their petitions of nomination with the county board of election commissioners not less than sixty (60) days before the general election.

Ark. Code Ann. § 7-7-103(b), (c)(1), and (d) (Repl. 1993).

The kernel of the Election Commission’s argument is that because this is a position requiring a countywide election, subsections 7-7-103(b) and (c)(1) concerning election of county officeholders should govern rather than subsection 7-7-103(d) which deals with municipal offices. In particular, the Election Commission notes that subsection 7-7-103(d)(l) refers to qualifying petitions signed by “electors of the ward or city in which the election is to be held.” That limitation, according to the Election Commission, should foreclose reliance on subsection 7-7-103(d).

The issue of whether a municipal corporation court filled by a countywide election is a county or municipal office was decided by this court in 1983. See Johnson County Election Commissioners v. Holman, supra. In Holman, the precise issue was whether a vacancy occurring in a municipal corporation court elected on a countywide basis should be filled by appointment of the Governor as a county office under Amendment 29 of the Arkansas Constitution, or by special election as a municipal office under Article 7, Section 50 of the Arkansas Constitution. We concluded that a special election was required for municipal corporation courts under Article 7, Section 50. The Holman decision resolves the issue of whether the municipal court in question elected countywide was a municipal office or county office. We clearly determined that it was a municipal office.

When the State Attorney General advised the Election Commission in 1993 by opinion #93-314 that a vacancy in the Pulaski County Municipal Court must be filled by special election under Article 7, Section 50, he relied on Johnson County Election Commissioners v. Holman, supra, and opined that the office was not an elective county office. The Election Commission, on the basis of this opinion, called a special election to fill a municipal office. As already indicated, the circuit court in the case before us concluded that the Attorney General’s opinion was correct. The court further alluded to the fact that if the position at issue is not a county office, the current incumbent may have been invalidly elected at the special election because Amendment 55 requires vacancies in county offices to be filled by the quorum court of the county. It appears clear to us, as it was to the circuit court, that the Election Commission has previously proceeded on the basis that the Pulaski County Municipal Court was a municipal office.

The Election Commission also urges that this is a “partisan” position and that candidates ran for this office in the May party primary elections. Because of this, it contends that subsection 7-7-103(b) with the May 1 deadline applies. The fact that certain candidates for the office may have run in the political primaries does not decide this issue, however. Though primary elections to select candidates for county municipal courts are not foreclosed by statute, neither are they required. By Act 42 of 1972, the General Assembly established procedures for qualifying as an independent candidate for municipal office. In the Emergency Clause of the Act, the General Assembly remarked that “the great majority of municipalities elect their municipal officials as independents and do not have political primaries for municipal office.”

Moreover, in Act 710 of 1981, now codified in part at Ark. Code Ann. § 16-17-108 (Repl. 1994), which establishes the Pulaski County Municipal Court as a “municipal corporation court,” specific reference is made to the election of this municipal judge at the general election every four years. Party primaries are not specifically required by the Act. Again, this is not to say that party primaries may not be held to nominate candidates for these municipal offices. It is to say that historically many, if not most, municipal offices have been filled by independent candidates. We do not view the fact that candidates ran for nomination in political primaries as being dispositive of the issue.

Admittedly, a court termed Pulaski County Municipal Court appears something of a hybrid. Nevertheless, this court has determined that municipal corporation courts elected countywide are municipal offices. See Johnson County Election Commissioners v. Holman, supra. As a result, the appropriate deadline for filing as an independent candidate for this office is not less than 60 days before the general election, pursuant to subsection 7-7-103(d)(2).

The Election Commission further advances the argument that a violation of the Equal Protection Clause occurred due to preferential treatment of independent candidates as opposed to political party candidates who were required to participate in the primary process. While the standing of the Election Commission to raise this argument appears to be nonexistent, we will not address the point in any event since it was not argued to the circuit court. Even constitutional arguments must be argued to the trial court in order to be preserved for our review. Chapin v. Stuckey, 286 Ark. 359, 692 S.W.2d 609 (1985).

The decision of the circuit court is affirmed. The mandate shall issue on November 3, 1994. Any petition for rehearing shall be filed by November 1, 1994. Any response shall be filed by November 2, 1994.

Affirmed.

Hays, J., dissents.

Steele Hays, Justice,

dissenting. As the majority opinion aptly notes, a county municipal court is, as its name implies, a hybrid — neither fish nor fowl, but rather, both. Finding its place in our election laws is an exercise involving square pegs and round holes. See, e.g., Johnson County Election Commission v. Holman, 280 Ark. 128, 655 S.W.2d 408 (1983), and Pulaski County Municipal Court v. Scott, 272 Ark. 115, 612 S.W.2d 297 (1981). But the key to the conundrum in this case, I believe, lies in the fact that candidates for municipal corporation courts, unlike candidates for Pulaski County Municipal Court, campaign only within their respective municipalities. Whereas, candidates for Pulaski County Municipal Court campaign on a county-wide basis. Thus, the filing deadline for an independent candidate under Ark. Code Ann. § 7-7-103(b) (Repl. 1993) is “the date fixed by law as the deadline for filing ... in a primary election or the first of May, whichever is later.”

The fact that in Johnson County Election Commissions v. Holman, supra, we held that the Clarksville Municipal Court was a municipal office for purposes of filling vacancies under art. 7, § 50, does not dictate that these hybrid offices must be treated as a municipal office for purposes of the filing requirements of § 7-7-103. In Johnson we were concerned only with the language of two constitutional provisions: art. 7, § 50 and Amendment 29 § 1, dealing with the filling of vacancies in certain elective offices. Our opinion stated that the Clarksville Municipal Court was a municipal office. But that aspect of our decision was clearly perfunctory, we note that the trial court had so found and “the appellee does not question that conclusion, which we need not examine in further detail.” Nowhere in that opinion did the court even refer to the statute which governs this case. Had we been engaged in Johnson with the issue now presented, I submit we would have analyzed the dispute from an entirely different perspective, with, quite conceivably, a different result. At any rate, the holding in that case does not dictate a predetermined result in this case.

Our task here should be one of following the plain meaning of § 7-7-103 or discerning the underlying intent of the legislature in enacting the provisions embodied in that statute, a cardinal rule the majority fails to even mention. The basic rule of construction to which all other interpretive guides defer is to give effect to the legislative intent. McCoy v. Walker, 317 Ark. 86, 876 S.W.2d 252 (1994); Puch v. St. Paul Fire & Marine Ins. Co. 317 Ark. 384, 877 S.W.2d 915 (1994). When a statute is clear, it is given its plain meaning and we do not search for legislative intent. That intent must be gathered from the plain meaning of the language used. Hinchey v. Thomasson, 292 Ark. 1, 727 S.W.2d 836 (1987). By either formula, the purpose is plain — independent candidates for municipal offices file in accordance with § 7-7-103(d)(l), whereas independent candidates for county offices file in accordance with § 7-7-103(b) and (c)(1). It is axiomatic that candidates filing in a party primary are entitled to compete on equal terms with candidates filing independently, including the length or brevity of the campaign. That should govern this dispute.

       Section 4 of Amendment 55 of the Arkansas Constitution, effective January 1, 1977, changed the appointive authority and provides that the quorum court shall have the power to fill vacancies in elective county offices. Hawkins v. Stover, 274 Ark. 125, 622 S.W.2d 667 (1981).


author: Jack Holt, Jr., Chief Justice.

text:
    Jeffery HILL v. STATE of Arkansas
    CR 94-503
    887 S.W.2d 275
    Supreme Court of Arkansas
    Opinion delivered October 31, 1994

      Daniel D. Becker and Terri L. Harris, for appellant.

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

Appellant Jeffery Hill brings this appeal, claiming that the trial court committed error under the bifurcated sentencing procedures established by Acts 535 and 551 of 1993, as codified in Ark. Code Ann. §§ 16-97-101 — 16-97-104 (Supp. 1993).

Hill pleaded guilty to robbery and was sentenced to fifteen years’ imprisonment by a jury impaneled for purposes of sentencing. He raises three points for reversal: (1) the trial court erred in allowing the State to elicit testimony that he had made a prior attempt to commit a robbery against the same victim; (2) the trial court erred in instructing the jury with regard to his parole eligibility; and (3) the trial court erred in refusing to instruct the jury with his proffered instruction regarding sentencing policy. Finding no merit in his arguments, we affirm.

Facts

On April 5, 1993, Ruth Ardman reported that while attempting to enter her vehicle, a male knocked her down and grabbed her purse and totebag, which contained approximately $6500 in cash and checks. After witnesses provided a description of his vehicle which had been seen several times in the area in the weeks preceding the incident, and following Ms. Ardman’s identification of him in a photographic lineup, the appellant, Jeffery Hill, was arrested and charged with robbery, to which he entered a plea of guilty.

Prior to the impaneling of the jury for purpose of sentencing, Hill objected to the State’s anticipated use of evidence that he had previously attempted to rob the same victim, arguing that, although relevant in determining guilt, the evidence was not relevant in fixing sentence. The trial court overruled his objection, and Ms. Ardman testified at trial that approximately three weeks prior to the robbery, Hill had approached her while, in her car at one of her employee’s residences and demanded money, but that she was able to drive away. Hill admitted that he had been to Ms. Ardman’s residence on three occasions in as many weeks and that “he already knew where he was going.”

At the close of all the evidence, the trial court instructed the jury on parole eligibility yet refused to give Hill’s proffered instruction regarding sentencing policy. The jury sentenced Hill to fifteen years’ imprisonment.

Appeals from bifurcated proceedings

In general, there is no right to an appeal from a plea of guilty. Matthews v. State, 305 Ark. 207, 807 S.W.2d 29 (1991); State v. Sherman, 303 Ark. 284, 796 S.W.2d 339 (1990). Arkansas Code Annotated § 16-91-101(c) provides that there shall be no appeal from a plea of guilty, and our corresponding rule, Ark. R. Crim. P. 36.1, provides identical language. One exception is found in Ark. R. Crim. P. 24.3(b), which states:

with the approval of the court and the consent of the prosecuting attorney, a defendant may enter a conditional plea of guilty or nolo contendré [contendere], reserving in writing the right, on appeal from the judgment, to review of an adverse determination of a pretrial motion to suppress evidence. If a defendant prevails on appeal, he shall be allowed to withdraw his plea.

The Arkansas General Assembly in Act 535 of 1993 codified as Arkansas Code Ann. § 16-97-101, made changes in procedures governing jury trials by providing for separate consideration of guilt and sentencing, commonly referred to as “bifurcated proceedings.” Under the bifurcation structure, a criminal trial is split into separate and distinct stages, the first of which involves the finding of guilt or innocence. In the event of a finding of guilt, further proceedings are held in which evidence may be presented prior to the setting of sentence. In establishing these bifurcated procedures, Section 2 of Act 535, codified as Ark. Code Ann. § 16-97-101(6), specifically provides that in the event of a plea of guilty, the defendant, with the agreement of the prosecution and the consent of the court, may be sentenced by a jury impaneled for the purpose of sentencing only. Thus, it is obvious that this new procedure differs considerably from the prior conduct of trials where the jury assessed both guilt and sentence during one proceeding.

Section 10 of Act 535 provides that all laws in conflict with the Act are repealed, thus repealing Section 16-91-101(c) which, as previously stated, provided that there shall be no appeals from a plea of guilty. However, a question remains as to whether this new code provision, which provides for sentencing by a jury after a plea of guilty under certain conditions, is repugnant to Ark. R. Crim. P. 36.1, which provides in part that “[ejxcept as provided by Rule 24.3(b) there shall be no appeal from a plea of guilty or nolo contendré [contendere].” We think not.

Granted, we hold steadfast to our previous holdings that, where there is a conflict between our procedural rules and a statute, statutes are given deference only to the extent to which they are compatible with our rules, and that conflicts which compromise those rules are resolved with our rules remaining supreme. State v. Sypult, 304 Ark. 5, 800 S.W.2d 402 (1990); Hickson v. State, 316 Ark. 783, 875 S.W.2d 492 (1994). However, the acceptance of this appeal from a plea of guilty does not compromise our rule, for it does not constitute a review of the plea itself. Rather, it provides for a review of nonjurisdictional issues, such as the admission of testimony and evidence authorized by this new statute, which arose during the penalty phase of the trial subsequent to the entry of Hill’s guilty plea. Because of this marked distinction, we allow this statute to stand as compatible with our rule, recognizing that the legislature has provided not only for separate and distinct procedures governing jury trials and sentencing by jury but for evidentiary matters as well.

More specifically, this departure from our previous holdings is premised in part on the fact that sentencing is now, in essence, a trial in and of itself, in which new evidence may be submitted. Under Ark. Code Ann. § 16-97-103, such evidence may include, but is not limited to, laws on parole, prior convictions, prior determinations of juvenile delinquency, victim impact statements or testimony, character evidence, evidence of aggravating and mitigating circumstances, evidence relevant to guilt, evidence admissible for sentencing only, and rebuttal evidence.

The introduction of evidence during this stage must be governed by our rules of admissibility and exclusion; otherwise, these proceedings would not pass constitutional muster, which is all the more reason to permit appeal. However, our review on appeal shall be confined to nonjurisdictional issues which arise during the penalty phase of the trial. This position by no means indicates a willingness on our part to review the imposition of sentence simply where the defendant maintains his sentence is excessive, when in fact his sentence is within the range proscribed by statute for the offense in question.

Recently, a Texas appellate court made a similar holding while ruling on the issue of whether a defendant’s plea of guilty without an agreed recommendation as to punishment is a waiver of appellate court review. Jack v. State, 871 S.W.2d 741 (Tex. Cr. App. 1994). In holding that appellate review of nonjurisdictional issues arising subsequent to the entry of the guilty plea is not waived, the Jack court reasoned that an accused cannot waive a defect in proceedings that have not yet occurred. Jack, supra; quoting King v. State, 687 S.W.2d 762, 767 (Tex. Cr. App. 1985). This approach makes sense, and since Hill’s assignments of error involve nonjurisdictional matters that occurred subsequent to his guilty plea, we will likewise accept jurisdiction of his appeal.

I. Testimony of prior attempt

Ark. Code Ann. § 16-97-103(6) provides that evidence relevant to sentencing by either the court or the jury may ■include “[ejvidence of aggravating and mitigating circumstances.” The term “aggravation” has been well-defined in Black’s Law Dictionary 712 (6th ed. 1990):

any circumstance attending the commission of a crime . . . which increases its guilt or enormity or adds to its injurious consequences, but which is above and beyond the essential constituents of the crime . . . itself.

The State maintains in its brief that the testimony regarding the prior attempt demonstrated that Hill knew Ms. Ardman, that he knew at times she carried significant amounts of cash, that he had previously seen her car, and that he had planned and intended to rob her at an opportune time. Clearly, this evidence meets the definition of aggravation.

Taking a common sense approach, we agree with the State’s assertion that, in the absence of such evidence, the jury would be at a significant disadvantage in fulfilling its function if it were deprived of vital information concerning the circumstances of the crime and thus could not possibly determine an appropriate sentence. This rationale closely resembles the United States Supreme Court’s discussion in Payne v. Tennessee, 501 U.S. 808 (1991); quoting Gregg v. Georgia, 428 U.S. 153 (1976), which included the following observations:

So long as the evidence introduced and the arguments made at the presentence hearing do not prejudice a defendant, it is preferable not to impose restrictions. We think it desirable for the jury to have as much information as possible when it makes the sentencing decision.

501 U.S. at 821.

We, too, have suggested that the State should not be precluded from introducing relevant evidence at a sentencing proceeding in the absence of prejudice. In Pickens v. State, 292 Ark. 362, 730 S.W.2d 230 (1987), we stated that:

We are unaware of any reason why the State should be precluded from introducing additional relevant evidence on remand at a resentencing trial, especially when appellant’s guilt already has been established and when appellant has in no manner shown or demonstrated prejudice from the admission of such evidence.

During sentencing, Hill testified that he had been to Ms. Ardman’s house approximately three times in as many weeks and that “he already knew where he was going.” Thus, it is difficult to agree that he was prejudiced by Ms. Ardman’s testimony.

The trial court has wide discretion in admitting evidence of other crimes or wrongs, and its decision will not be reversed absent an abuse of discretion. See Haynes v. State, 309 Ark. 583, 832 S.W.2d 479 (1992); Price v. State, 268 Ark. 535, 597 S.W.2d 598 (1980). In sum, we find no such abuse and conclude that the testimony regarding the prior robbery attempt was properly admitted as an aggravating circumstance under Ark. Code Ann. § 16-97-103(6).

II. Instruction regarding parole eligibility

Omitting the section pertaining to deadly weapons, the trial court, using the Arkansas Model Jury Instructions: Criminal (2d ed.), instructed the jury on parole eligibility as follows:

In your deliberations on the sentence to be imposed, you may consider the possibility that Jeffery Hill will be paroled. Eligibility for parole is as follows:
If you sentence Jeffery Hill to imprisonment for a term of years, he will be eligible for parole after he serves one-third of the term you impose. This term of imprisonment may be reduced further to one-sixth of the period you impose if the defendant earns the maximum amount of meritorious good time during his imprisonment.
Meritorious good time is time credit awarded for good behavior or for certain achievements while an inmate is confined to the Department of Correction or in a jail while awaiting transfer to one of those facilities. It is awarded an inmate on a monthly basis so that he receives up to one day for every day served, not to exceed thirty days per month.

The first two paragraphs tracked the preamble and Section I AMCI 2d 9403. The third paragraph largely followed the mandatory definition of meritorious good time in Section VIII of AMCI 2d 9403.

Ark. Code Ann. § 16-97-103(1) specifically states that evidence relevant to sentencing may include “[t]he law applicable to parole, meritorious good time, or transfer.” The “Notes on Use” to AMI Crim. 2d 9403 state that “[i]f the defendant has been convicted of an offense for which he can receive life imprisonment or a term of years, give both parts I and II of this instruction.” This is exactly what the trial court did in this case. The “Notes” further state that “[t]he definition of meritorious good time should be given in every case.” Again, the trial court gave this definition.

This model instruction on parole eligibility was drafted in line with Ark. Code Ann. § 16-93-607 (1987) and is intended to be employed by the trial court in order to provide clarity and truth in sentencing; accordingly, we find no error in the trial court’s use of this model instruction.

III. Refusal to give non-model instruction on sentencing policy

Hill initially proffered an instruction setting out Ark. Code Ann. § 16-90-801 (Supp. 1993) verbatim and in its entirety. After the trial court refused to accept his proposed instruction, Hill submitted an abbreviated version to the court which was also rejected. It reads as follows:

Sentencing policy.
Commitment to the Arkansas Department of Correction is the most severe sanction and due to the finite capacity of the department’s facilities, it should be reserved for those convicted of the most serious offenses, those who have longer criminal histories, and those who have repeatedly failed to comply with conditions imposed under less restrictive sanctions.

Hill claims that the trial court erred in refusing this abbreviated instruction. The proffered instruction at issue is not a full statement of law and is subject to misinterpretation. Moreover, we have stated that non-model instructions are to be given only when the trial court finds that the model instructions do not accurately state the law or do not contain a necessary instruction on the subject. Ross v. State, 300 Ark. 369, 779 S.W.2d 161 (1989); Campbell v. State, 294 Ark. 639, 746 S.W.2d 37 (1988). Here, the trial court also gave the following closing instruction, using AMI Crim. 2d 9111:

Jeffery Hill may also contend that he should receive probation or a suspended sentence. You may recommend that he receive this alternative sentence, but you are advised that your recommendation will not be binding on the Court.
If you recommend an alternative sentence, you shall so indicate on the form reading as follows:
We the Jury recommend the alternative sentence of probation; or,
We the Jury recommend the alternative sentence of a suspended sentence.
Even if you do recommend this alternative sentence; however, you must still complete the other verdict form.

This instruction adequately apprises the jury of alternative sentencing. Simply put, because the model instructions cover the subject of alternative sentencing, the trial court did not err in refusing Hill’s proffered non-model instruction on sentencing policy.

It is significant that, in reviewing the State’s abstract of the defense’s closing argument to the jury, Hill extensively discusses alternative sentencing and the restrictions which would accompany probation or a suspended sentence. Clearly, the jury was fully apprised of the options to imprisonment prior to setting Hill’s sentence.

We also agree with the State’s observations that because Hill made no showing that prejudice occurred as a result of the trial court’s refusal to give his proffered instruction, his argument cannot stand. We have repeatedly held that we will not reverse for trial error in the absence of prejudice. Hooper v. State, 311 Ark. 154, 842 S.W.2d 850 (1992). In sum, we find no such prejudice.

Affirmed.

Glaze, J., concurs.


text:
    James SANDERS, as Personal Representative of the Estate of Dora E. Ford v. John RYLES, et al.
    93-964
    885 S.W.2d 888
    Supreme Court of Arkansas
    Opinion delivered October 31, 1994

      Price & Basham, by; Carey E. Basham, for appellant.

      Dodds, Kidd, Ryan & Moore, for appellee.
   Jack Holt, Jr., Chief Justice.

Appellant, James Sanders, as personal representative of the estate of Dora E. Ford, appeals from an order of the Pulaski County Chancery Court quieting title to property in the appellee, John Ryles, claiming that Ryles’s deed from the Commissioner of State Lands (“Commissioner”) was not valid because the Commissioner did not provide notice to the true owners of the property (the estate), as required by statute and that the deed of sale should be declared null and void. We accept jurisdiction of this appeal on transfer from the Arkansas Court of Appeals as it involves the interpretation of Ark. Code Ann. § 26-37-201(c) (1987), relating to notice requirements for the sale of tax delinquent property.

At the time of her death in 1987, Dora Ford owned her residence located at 1412 Battery Street in Little Rock. On April 4, 1988, the Pulaski County Probate Court admitted Ms. Ford’s will to probate and appointed Clarence Cash executor of her estate, who was later succeeded by the appellant, James Sanders. On December 8, 1989, her residence was certified to the Commissioner for forfeiture and sale because of delinquent taxes for 1986. Thereafter, the land was sold by the Commissioner to the appellee, John Ryles.

Facts surrounding the sale of this property are somewhat fragmented; however, it is apparent from the parties’ abstract, exhibits and record of trial that the following occurred:

March 29, 1990 — The Commissioner sent a certified letter addressed to Mrs. Ford, notifying her that her property had been certified for delinquent taxes, explaining how the property could be redeemed, and informing her that if not redeemed, the property would be sold at public auction on March 31,1992. The letter was returned to the Commissioner with markings which indicated that it was unclaimed and that Mrs. Ford had moved without leaving a forwarding address.
March 3,1992 — A limited title search labeled “Commissioner of State Land’s Title Report” was prepared and furnished to the Commissioner by Standard Abstract. That search noted that the estate of Dora E. Ford was in Pulaski County Probate Court, but it did not show the name of the personal representative. The search report stated “Estate of Dora Ella Ford, Probate Order 92-3/9 1/7/92 File #87-767.”
March 20, 1992 — Notice of the sale by auction was certified as published in the Arkansas Democrat-Gazette, noting that the land would be placed for sale by auction on March 31, 1992. No bids were received to satisfy statutory requirements.
July 30, 1992 —- Ryles executed an offer-to-purchase contract with the Commissioner to purchase the Ford property. The contract provided, in part, that the buyer would pay the total taxes, penalties, interest, and costs due to date, plus a minimum bid, if applicable, totaling $7,364. The contract for sale was executed pursuant to the Commissioner’s policy of entertaining offers for private sale 90 days after notice is sent if no satisfactory bids were received.
July 31, 1992 — Notice of the proposed private sale was sent by the Commissioner to Ralph Washington, notifying him that the lands would be sold on September 1 if he did not exercise his right of redemption. (The Commissioner had received information that Mr. Washington had purchased the residence in question from Ms. Ford’s estate, and a second title search listed him as owner.) No other notices of this proposed sale were sent to any parties.
September 9,1992 — Sale was consummated and the Commissioner issued a limited warranty deed to appellee John Ryles.
December 18,1993 — Appellant James Sanders brings an action in Pulaski County Circuit Court claiming ownership of the Ford property in the estate and asserting that the deed issued by the Commissioner is invalid and constitutes a cloud upon the title to the property which should be declared null and void. Appellee John Ryles responds by filing an answer and counterclaim requesting that title be confirmed, quieted, and vested in him.

As mentioned, the parties entered into various stipulations of fact and to the content of certain exhibits which were presented to the trial court. In addition, Steve Hollowell, the executive assistant to the Commissioner, testified, shedding light on the procedures utilized by the Commissioner in processing the notices and ultimate sale of the Ford property. He related that in order to sell the Ford property, it was necessary that he send notice to her by certified mail to her last known address, advising her that her property would be sold if taxes were not paid, and that it was required that this notice be sent to her at least two years before the sale. To redeem the property, his office would accept payment from her or from an interested party, and for this purpose, he considered interested parties to be lienholders, mortgage holders and heirs.

Mr. Hollowell testified that a letter was sent to Ms. Ford on March 29, 1990, and that “the only notice to the actual record owner is the one certified notice of the two-year notice,” however, he further acknowledged that statutory provisions also require that notice be mailed to “interested parties,” “if we know about them.” In this instance, Mr. Hollowell specifically stated:

[W]e did a search to determine who “interested parties” are for the purpose of the notice. Sometimes we contract on various parcels and on this parcel, we have a limited title search done by Standard Abstract. That search noted that the estate of Dora Ella Ford was in Pulaski County Probate Court, but it did not show the name of the personal representative, and that “no follow up was done with regard to our notice of the existence of the estate.”

Mr. Hollowell related that on March 31, 1992, some two years after the notice was first mailed to Ms. Ford, the property was put up for public sale. Since no bids were received, the Commissioner entertained offers from individuals for private sale. As a result, Mr. Ryles made an offer in July 1992 which was accepted by the Commissioner and sent to the Attorney General for his approval. Subsequent to approval by the Attorney General of the sale, but prior to the issuance of a warranty deed, the Commissioner extended a thirty-day redemption period from the day that the Attorney General’s approval was obtained and made a final effort to notify all interested parties by obtaining a follow-up title search. This search reflected a change of ownership in the name of Ralph Washington, and notice was sent to Mr. Washington of the sale and his right of redemption. No other notices were sent. Not having received the petition from Mr. Washington or other interested people, the Commissioner concluded the sale to Mr. Ryles on September 6, 1992, and caused a warranty deed to be issued.

There was also testimony that James Sanders, acting in his individual capacity as an heir to the estate, had attempted to perfect a redemption of the property in March 1992 and had turned in a bid to the Commissioner in July of that same year; however, the Commissioner’s office denied any knowledge of Mr. Sanders’s application or of his attempt to redeem the property. This factual dispute between the parties is of no significance because the central issue before us involves statutory notice to the Ford estate.

The trial court found that Mr. Ryles was entitled to have the title to the property confirmed and quieted in him in order that all other claims, particularly those of James Sanders, personal representative of the estate of Dora Ella Ford, be extinguished and declared null and void. We reverse the trial court and remand for further proceedings consistent with this opinion.

This court reviews chancery cases de novo, reversing the chancellor only when the findings of fact are clearly erroneous or clearly against the preponderance of the evidence. Ward v. Davis, 298 Ark. 48, 765 S.W.2d 5 (1989). In cases involving redemption of tax-delinquent lands, we have stated that strict compliance with the requirement of notice of the tax sales themselves is required before an owner can be deprived of his property. Pyle v. Robertson, 313 Ark. 692, 858 S.W.2d 662 (1993); Trustees of First Baptist Church v. Ward, 286 Ark. 238, 691 S.W.2d 151 (1985).

Although there are various statutory requirements for notice relating to certification of lands to the Commissioner for forfeiture and sale for delinquent taxes, we need but focus upon Ark. Code Ann. § 26-37-201 (c), which provides in pertinent part that:

[t]he highest bidder shall pay all taxes, interest, penalties, and other costs. Thereafter, all interested parties known to the Commissioner and not previously notified shall receive notice by mail of the sale from the Commissioner. (Emphasis added.)

A close reading of this statute gives rise to the question whether, after the Commissioner’s sale to Mr. Ryles, all “interested parties” that were known to the Commissioner and not previously notified received notice of the sale by mail. If the answer is no, the chancellor erred as a matter of law and we must declare the deed of sale null and void.

The facts are clear. The existence of the Ford estate was made known to the Commissioner by Standard Abstract from its title search, and neither the administrator nor personal representative of the estate was provided any notice either before or after the sale of the property to Mr. Ryles. A later title search which identified another party, Mr. Washington, as the owner of the property prior to the issuance of the deed, did not relieve the Commissioner of his duty to properly notify the Ford estate under the statute.

While Act 626 of 1983, codified as § 26-37-201 (1987) does not define the term “interested parties,” it defies logic to proceed on the assumption that potential heirs to lands that are part of an estate would not be parties who are interested in preserving the lands. We recently referred to the term “interested person” in Pickens v. Black, 316 Ark. 499, 872 S.W.2d 405 (1994), and noted its definition in the Probate Code: “any heir, devisee, spouse, creditor, or any other having a property right, interest in, or claim against the estate being administered (Emphasis added.) Ark. Code Ann. § 28-1-102(a)(ii) (1987). We can find no logical reason to include heirs in the definition of “interested persons” in Ark. Code Ann. § 28-l-102(a)(ii), then treat them differently for the purposes of the notice requirement in Ark. Code Ann. § 26-37-201 (c).

It is also significant that the Commissioner, through the testimony of Mr. Hollowell, defined interested parties “for our purposes” as “lienholders, mortgage holders, heirs." (Emphasis added.) In sum, the Commissioner did not give notice to the Ford estate or its representatives after the sale as mandated by our code. The fact that the subsequent title search provided information to the Commissioner that a Ralph Washington had apparently purchased the property from the estate and was sent a notice of redemption is of no moment. The heirs of the Ford estate and its personal representative were, at all times, interested parties, and were known to the Commissioner, yet they did not receive the statutorily-required notice prior to or subsequent to the sale. For this reason, we hold that the chancellor’s findings were clearly erroneous.

Reversed and remanded for proceedings consistent with this opinion.


author: Robert H. Dudley, Justice.

text:
    Dennis Wayne JOHNSON v. STATE of Arkansas
    CR 94-257
    886 S.W.2d 584
    Supreme Court of Arkansas
    Opinion delivered October 31, 1994

      George J. Stone, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant was convicted of sexual abuse in the first degree for the molestation of his seven-year-old niece. At trial he sought to show that the victim’s stepfather had stated that he had friends who engaged in wife-swapping; that his wife, who is the mother of the victim, was sexually abused by her father, who is the grandfather of the victim; and that the victim gave his son a backrub while his son was wearing only underclothing. He contended below, and now on appeal, that he was entitled to make such proof under our holding in West v. State, 290 Ark. 329, 719 S.W.2d 684 (1986).

In West we held that a person on trial for rape or other sexual offense may show that the alleged victim made similar accusations that she later admitted to be false or that proved to be false. Id. at 334, 719 S.W.2d at 687. The reason is that the proof would tend to show a “morbid condition of mind or body and go a long way in explaining this charge.” Id. at 332, 719 S.W.2d at 687 (quoting People v. Evans, 40 N.W. 473 (Mich. 1888)). The trial court correctly refused to allow the evidence showing that the victim’s stepfather made accusations that others had committed sexual offenses.

Appellant’s proffer did not include any showing that the stepfather induced the victim to testify against appellant. The proffer of the stepfather’s alleged statements did not have any tendency to make the existence of any fact of consequence in this case more or less likely. See A.R.E. Rule 401. It was not relevant to the condition of mind of the victim and was not admissible under the holding of West.

Appellant next argues that the trial court erred in not admonishing the jury to disregard the answer to a leading question. This argument is also without merit. The abstract does not show an objection to the competency of the seven-year-old victim. Thus, she was competent to testify. See A.R.E. Rule 601. A prosecutor may use leading questions in cases involving young children who are competent to testify, subject to the trial court’s sound discretion. Clark v. State, 315 Ark. 602, 870 S.W.2d 372 (1994). Here, the prosecutor asked a series of leading questions, and appellant did not object. On the last of the series of questions appellant objected. The trial court sustained the objection. The appellant asked nothing more. The prosecutor then rephrased the question, and the victim answered it. Appellant now asks us to reverse the trial court for not admonishing the jury to disregard the answer to the question on which the objection was sustained. Appellant did not ask the trial court to so admonish the jury. An appellant is not allowed to raise an argument for the first time on appeal. Smith v. Leonard, 317 Ark. 182, 876 S.W.2d 266 (1994). Appellant is attempting to raise the issue of the need for an admonishment for the first time on appeal. Further, appellant has not cited any cases to us, and we know of none, that require a trial court on its own motion to admonish the jury to disregard the answer to a question after an objection is sustained. Where an appellant neither cites authority, nor makes a convincing argument, and where it is not apparent without further research that the point is well taken, we will affirm. Mikel v. Hubbard, 317 Ark. 125, 876 S.W.2d 558 (1994).

Affirmed.


author: Steele Hays, Justice.

text:
    Vicki BRUNT v. FOOD 4 LESS, INC.
    94-284
    885 S.W.2d 894
    Supreme Court of Arkansas
    Opinion delivered October 31, 1994

      Lesher & Cochran, by: Ernest L. Cochran, for appellant.

      Kenneth Breckenridge, P.A., by: Kenneth Breckenridge, for appellee.
   Steele Hays, Justice.

This appeal is from a summary judgment in a slip and fall case. On May 17, 1993, appellant Vicki Brunt slipped and fell at a Food 4 Less Store in Hot Springs. She brought this action against Food 4 Less, Inc. for injuries sustained in the fall. The trial court granted summary judgment upon a finding there were no genuine issues of material fact. Ms. Brunt appeals from that order. We agree with the trial court.

Ms. Brunt contends she had taken two or three steps down an aisle when she slipped in mop water which was placed on the floor by an agent of Food 4 Less. In her deposition, Ms. Brunt admitted she did not see anyone pour any substance on the floor and she did not know how long the substance had been there. She stated she did not have any knowledge that Food 4 Less knew any substance was on the floor. However, Ms. Brunt stated she had seen an employee mopping the aisles at the front of the store. She believed the water on the floor came from the mopping. She saw no warning signs. Although Ms. Brunt saw the employee mopping at the front of the store, she did not see any mopping in the area where she fell.

In support of its motion for summary judgment, Food 4 Less presented the affidavit of Mr. James Rosamond and the deposition of Mr. Shannon Donley. Mr. Donley, the assistant night manager at the time of the incident, stated a floor check had been conducted fifteen to forty minutes prior to the incident. He said it was the store’s policy to conduct a floor check “every hour or so.” Further, Mr. Donley stated a pink colored, “neutral cleaner” and water are used to mop the floor and the substance on the floor was not the cleaner.

Mr. Rosamond, an employee of Shine & Glo Janitorial Service working under contract at Food 4 Less, stated he dust mopped the entire store and did not notice any kind of spillage in the area where Ms. Brunt fell. About thirty minutes later, he began mopping the front of the store. Around that same time, Ms. Brunt fell in the Health and Beauty section which is several aisles away. Further, he stated the substance in the area where Ms. Brunt fell seemed to be a “hand lotion solution.”

Summary judgment should be granted only when it is clear that there is no genuine issue of material fact to be litigated. Hickson v. Saig, 309 Ark. 231, 828 S.W.2d 840 (1992). A summary judgment should not be granted where reasonable minds could differ as to the conclusions they could draw from the facts presented. Lee v. Doe et al., 274 Ark. 467, 626 S.W.2d 353 (1981). The burden of proving there is no genuine issue of material fact is upon the movant, and all proof submitted must be viewed favorably to the party resisting the motion. Wyatt v. St. Paul Fire & Marine Ins., 315 Ark. 547, 868 S.W.2d 505 (1994). Any doubts and inferences must be resolved against the moving party. Wyatt, supra; Pinkston v. Lovell, 296 Ark. 543, 759 S.W.2d 20 (1988); Cross v. Coffman, 304 Ark. 666, 805 S.W.2d 44 (1991). The burden in a summary judgment proceeding is on the moving party and cannot be shifted when there is no offer of proof on a controverted issue. Wyatt, supra; Collyard v. American Home Assurance Co., 271 Ark. 228, 607 S.W.2d 666 (1980). When the movant makes a prima facie showing of entitlement, the respondent must meet proof with proof by showing genuine issue as to a material fact. Wyatt, supra; Harrell v. International Paper Co., 305 Ark. 490, 808 S.W.2d 779 (1991).

On appeal, Ms. Brunt’s sole argument is that the presence of the substance on the premises was the result of Food 4 Less’s negligence. Ms. Brunt makes no contention that the substance had been on the floor for such a length of time that the defendant knew or reasonably should have known of its presence and failed to use ordinary care to remove it. She maintains there was mopping in front of the aisles and she fell in mop water and thus there is a reasonable inference that Food 4 Less was negligent. In response, Food 4 Less contends the substance was not the cleaning solution used for mopping the floor and no employee had mopped near the area where Ms. Brunt fell.

The law is well settled that the appellee owes the invitee the duty to use ordinary care to maintain the premises in a reasonably safe condition. Dye v. Wal-Mart Stores, Inc. 300 Ark. 197, 777 S.W.2d 861 (1989); Johnson v. Arkla, Inc., 299 Ark. 399, 771 S.W.2d 792 (1989). In order to prevail in a slip and fall case, the appellant must show either (1) the presence of a substance upon the premises was the result of the defendant’s negligence, or (2) the substance had been on the floor for such a length of time that the appellee knew or reasonably should have known of its presence and failed to use ordinary care to remove it. Dunklin, 307 Ark. 12, 817 S.W.2d 873; Safeway Stores, Inc. v. Willmon, 289 Ark. 14, 708 S.W.2d 623 (1986); see also AMI Civil 3rd, 1105. The mere fact that a person slips and falls does not give rise to an inference of negligence. J.M. Mulligan’s Grille, Inc. v. Aultman, 300 Ark. 544, 780 S.W.2d 554 (1990). Possible causes of a fall, as opposed to probable causes, do not constitute substantial evidence of negligence. Willmon, 289 Ark. 14, 708 S.W.2d 623.

Derrick v. Mexico Chiquito, 307 Ark. 217, 819 S.W.2d 4 (1991).

The problem here is we are unable to determine the exact location where Ms. Brunt fell or where Mr. Rosamond was mopping. For that matter, Mrs. Brunt’s assertion that the substance was mop water was equivocal:

Q: Was the substance you fell in mop water or whatever you want to call it?
A: I guess.
Q: Is that what it appeared to be to you?
A: It appeared to be water to me.
Q: Did it have any suds on it or soap?
A: Not that I seen.

Nor did Ms. Brunt see Mr. Rosamond mopping in the specific area where she fell. Her abstract makes reference to a diagram showing where she fell and where the mopping was occurring. However, the diagram is not abstracted and, thus, is of no assistance to us in establishing a correlation between the mopping and the fall. It is not enough to simply allege that there was mopping on the premises.

In a comparable case, Boykin v. Mr. Tidy Car Wash, Inc., 294 Ark. 182, 741 S.W.2d 270 (1987), we reversed the granting of a directed verdict. Appellant Boykin slipped and fell at the appellee’s place of business, a full service car wash. The appellant contended he slipped in soapy water which was present as a result of the appellee’s negligence. He stated “the water and soap was coming from cars exiting the wash rack and that he was fairly certain that ‘this [the water and soap from rinsed cars] is what caused [him] to fall.’” A frequent customer of the appellee stated that approximately six feet away from where Mr. Boykin fell, an employee of the car wash was rinsing off cars as they exited the car wash rack.

Similarly, in McKay v. St. Paul Ins. Co., 289 Ark. 467, 711 S.W.2d 834 (1986), we reversed the granting of a motion for summary judgment. Appellant McKay slipped and fell in a substance in the hallway of Crittenden Memorial Hospital. On the date of the incident, employees of the hospital were stripping and waxing the floor near where the appellant fell. The employees had been working in a roped-off area, but they were in the process of removing the equipment. The appellant stated the spot where he fell was about five feet from the roped-off area. According to the appellant, the spot was between the roped-off area and the place where the mops and buckets, which had been used to clean the floor, were resting. One employee, who had been working on the floor and mopped up the liquid after the appellant had fallen, stated the substance could have been placed there by the cleaning crew.

In those cases, however, a correlation between the defendant’s activity and the foreign substance creating the risk was demonstrated. Hence, it could not be said that reasonable minds could come to but one conclusion.

Appellant relies on the case of Collyard v American Home Assurance Co., 271 Ark. 228, 607 S.W.2d 666 (1980), where we reversed a summary judgment granted in a slip and fall case. The plaintiff had alleged the defendant was negligent in permitting water to remain on the floor causing her injury. The defendant countered with a general denial, pleading contributory negligence. The motion for summary judgment was not supported by an affidavit or any evidence that the defendant was not negligent, it relied entirely on the plaintiff’s admission that she did not know how the water got there or how long it had been on the floor.

Collyard bears similarities to the case at bar, but there are differences which are controlling: for one thing, the trial court implied that the plaintiff’s own negligence caused her injury since she saw the water before she fell. That was error, because her contributory negligence, if any, was clearly for the jury to decide. Second, the trial court mistakenly presumed the burden was on the plaintiff to produce additional proof of negligence in response to the summary judgment motion, whereas it remained the movant’s burden when there was no offer of proof on a controverted issue.

We conclude, after reviewing the abstracted record in the light most advantageous to appellant, that there were no material issues of fact and no evidence from which fair minded people could have concluded without speculation that appellee was liable for appellant’s injuries. No error having been demonstrated, the order is affirmed.