text:
    Larry Joe KIDD v. STATE of Arkansas
    CR 97-586
    955 S.W.2d 505
    Supreme Court of Arkansas
    Opinion delivered November 6, 1997

      Madison P. Aydelott, III, for appellant.

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

AppeEant Larry Joe Kidd was convicted of raping a fourteen-year-old girl and sentenced to forty years in prison. He appeals on two grounds: (1) trial court error in aEowing into evidence Kidd’s comments which were unduly prejudicial and concerned other bad acts; and (2) trial court error in permitting privEeged confidential communications between Kidd and his wife into evidence. The two points are meritless, and we affirm.

The facts in this case are assembled from trial testimony. The fourteen-year-old victim testified that the events occurred in her mobile home in Searcy. On April 28, 1996, she went to bed at about 11:00 p.m. During the night, she heard a person enter her room but assumed it was her mother. A man wearing a ski mask put a piEow over her face and told her to keep quiet. She fought and scratched at the man’s face underneath the mask. The man began to choke her and told her that if she fought any more, he would cut her ear off. He bound her wrists and covered her rnouth with duct tape. After doing that, he removed the bottoms of her pajamas and underwear and had sexual intercourse with her against her wiE. She testified that during the rape, the man raised the mask over his eyes, which aEowed her to see that he had a fairly close-cut beard. She also testified that the man wore surgical gloves and removed one of them so he could scrape underneath her fingernails with his fingernail. He said at the time: “I got to get this out from under you so they don’t know who I am.” The victim said that she struggled with the man throughout the rape.

Once the man left, the victim removed the duct tape from her mouth and called 911 for police assistance though her hands were still bound. The call was forwarded to Deputy Sheriff Randy Still at 3:43 a.m. on the morning of April 29, 1996. The victim waited in the living room of her mobile home until Deputy Still arrived. According to Deputy Still, the victim’s hands were bound in front, and she was bleeding from the vaginal area. He first checked on the condition of the victim’s mother, who had not been harmed. The victim later told the deputy sheriff that her attacker was a heavy-set man with a close-cropped beard who had bad body odor. She added that he was wearing work boots, a pair of dark pants, and a black ski mask.

The victim was taken to the White County Medical Center for a sexual-assault examination. Dr. Christopher Melton, who performed the examination, testified that there were signs of trauma to the victim’s neck and that the presence and location of blood were consistent with the victim’s hymen being torn. In his opinion, she had been subjected to a sexual assault.

After the victim returned from the hospital but on the same day, Kidd, who was a neighbor, came to the front door of the mobile home and told the mother of the victim that he was “all doped up” and that he needed medical attention because he had just fallen through a window. Although she could not see Kidd standing outside of her mobile home, the victim testified that she recognized his voice as that of the man who had raped her.

At the crime scene, Deputy Still found tool marks on the front door of the mobile home, indicating that it had been pried open. He further found a footprint outside of the victim’s window. Later that day, Detectives Curtis Goodrich and Bill Lindsey of the White County Sheriffs Department went to Kidd’s home, where they found him leaving his garage. He had scratches on his face. Kidd agreed to go to the sheriffs department to answer questions, and he did so, accompanied by his wife, Paula Kidd. Once there, he waived his right to counsel and gave a statement. He also gave the detectives permission to search his residence and allowed them to take samples of his hair, blood, and saliva.

In the first statement Kidd gave on April 29, 1996, he denied any culpability for the rape. He told the detectives that he was taking Prozac and Buzbar for an anxiety condition and was under the care of a physician. He stated: “About two years ago, I was having problems. I hated women, and I thought about rape.” Upon searching Kidd’s home, the detectives discovered a broken window, which Kidd said caused the scratches on his face because he slammed his head through it that morning. Detective Goodrich testified that he saw no evidence of blood on the broken glass. The detectives later were given dark work pants and work boots by Paula Kidd. A black ski mask was subsequently recovered from Kidd’s residence.

On June 19, 1996, Detective Goodrich and Detective Lindsey questioned Kidd a second time. Kidd again denied having raped the victim and stated that he hardly knew her. When told by Detective Goodrich that the victim had said her attacker had a bad problem with body odor, he admitted that he had such a problem. Detective Goodrich then related to the jury: “I asked him while he was standing by the victim’s bed, did he have an erection or did he have to have foreplay to get an erection, and he stated he couldn’t remember.” When asked by the detective whether he told anybody about raping the girl, Kidd said that he had told his preacher that he could have done it. He also stated that he thought about rape and killing in the past and that he had followed people home after work. He added that he had previously been accused of rape in the 1980s on a North Dakota Indian Reservation. He stated that he had had sexual relations with the girl on the reservation but later found out that she was a prostitute and wanted nothing further to do with her. According to Kidd, she accused him of rape as a result. He stated that he was arrested and questioned by police officers but later released.

Edward Valman, chief forensic serologist at the Arkansas State Crime Laboratory, testified that he received the victim’s rape kit and found semen, but not sperm, on the vaginal swab. Kermit Channell, section chief of the State’s DNA Laboratory, stated that he tested the vaginal swab but found only DNA consistent with the victim because there were no sperm cells. He testified that the finding of semen without the presence of sperm cells was consistent with the semen’s having been deposited by a person who had had a vasectomy.

Paula Kidd, Kidd’s former wife, testified that Kidd had had a vasectomy soon after they were married approximately seven years earlier. She further testified that during the early morning hours of April 29, 1996, she was awakened at about 1:30 a.m. by a storm. Kidd was in bed at that time. She said that she woke up again at 3:00 a.m. but noticed that he was not in bed and was nowhere in the house. At 5:00 a.m., Kidd had returned to bed, when she received a telephone call from her sister. Her sister, who was also a neighbor, told her about the rape. Hours later, she noticed that Kidd’s face had several scratches that were not there at 1:30 a.m. She also testified that Kidd took a shower that day at 6:00 a.m., which was very unusual because he typically did not get out of bed until 10:00 a.m. She stated that she found his blue work pants and work shirt and a wash cloth in the clothes washer, which was unusual, too, because she normally did the laundry and because he had plenty of clean clothes to wear to work.

I. Prejudicial Statements

Kidd first contends that the trial court erred in denying his motion for declaration of a mistrial because certain portions of his two statements to the detectives were highly prejudicial, irrelevant, and constituted proof of prior bad acts, all of which violated Rules 402, 403, and 404(b) of the Arkansas Rules of Evidence. Specifically, he refers to the assertion taken from his April 29, 1996 statement: “About two years ago, I was having problems. I hated women and I thought about rape.” In addition, he contests two references in his June 19, 1996 statement: (1) that he had thought about rape and killing in the past and followed people home from work; and (2) that he had been accused of rape on a North Dakota Indian Reservation during the 1980s.

The procedural history of Kidd’s objections and motions in the trial court in regard to these comments is necessary to decide this first point. Although the abstract of the mistrial motion makes only a cryptic reference to the fact that Kidd’s counsel had previously made an objection on this point, the record discloses that immediately prior to trial, Kidd objected to any statements he made about having thoughts of rape and killing and of following people home from work. The basis for defense counsel’s objection was that these comments were more prejudicial than relevant under Rule 403 of the Arkansas Rules of Evidence. The trial court overruled the objection.

At trial, the trial court took a recess at the end of the first day of testimony after the conclusion of Detective Goodrich’s direct examination, which included testimony about Kidd’s two statements given on April 29, 1996, and June 19, 1996. The following day before cross-examination began, defense counsel moved for a declaration of a mistrial because the comments by Kidd in the two statements which are contested in this appeal were admitted into evidence in violation of Rules 402 and 403 of the Arkansas Rules of Evidence. The trial court ruled that the comments were made by Kidd after a valid waiver of his rights and should not be deleted from his statements under Rule 402 or Rule 403.

We first conclude that Kidd made no argument to the trial court that his comments in his two statements in contention in this appeal constituted proof of prior bad acts under Rule 404(b). That argument, accordingly, is procedurally barred. Henderson v. State, 329 Ark. 526, 953 S.W.2d 26 (1997); Evans v. State, 326 Ark. 279, 931 S.W.2d 136 (1996); Campbell v. State, 319 Ark. 332, 891 S.W.2d 55 (1995).

Next, we address whether Kidd’s motion for declaration of a mistrial the following day after Detective Goodrich’s direct examination was timely. We do not think that it was because the motion was not made at the first opportunity to do so. See Smallwood v. State, 326 Ark. 813, 935 S.W.2d 350 (1996). See also Whitney v. State, 326 Ark. 206, 930 S.W.2d 343 (1996); Jones v. State, 326 Ark. 61, 931 S.W.2d 83 (1996). Had defense counsel objected or made the motion for declaration of a mistrial at the first opportunity during Detective Goodrich’s direct examination, steps might have been taken by the trial court to admonish the jury or strike the testimony. We hold that defense counsel simply failed to move in timely fashion for a remedy and, therefore, ran afoul of our rule requiring objections or motions to be made at the time the objectionable matter is brought to the jury’s attention. See, e.g., Smallwood v. State, supra. The failure to object at the first opportunity disposes of the allegedly prejudicial comments made in Kidd’s April 29, 1996 statement and the rape allegation on the Indian reservation contained in his June 19, 1996 statement.

This leaves the question of Kidd’s comments about his having thoughts of rape and killing, and following people home from work, which were also contained in his June 19, 1996 statement and which formed the basis for his Rule 403 objection just prior to trial. Before trial, the trial court overruled his objection. Because the objection was in the nature of a motion in limine, we deem the issue to be preserved for our review. See Neal v. State, 320 Ark. 489, 898 S.W.2d 440 (1995); Massengale v. State, 319 Ark. 743, 894 S.W.2d 594 (1995).

Again, Kidd’s abstract only makes a glancing reference to the fact that this issue had been previously raised to the trial court. Nevertheless, we choose to address it. On the merits Kidd cannot prevail on this point. Even assuming that these comments were not relevant and were unduly prejudicial under Rule 403, the evidence presented of Kidd’s guilt at trial, albeit circumstantial, was overwhelming. This court has stated in the past that when the evidence of guilt is overwhelming, slight errors in the introduction of evidence do not constitute reversible error. Hicks v. State, 327 Ark. 652, 941 S.W.2d 387 (1997); Abernathy v. State, 325 Ark. 61, 925 S.W.2d 380 (1996); Rockett v. State, 318 Ark. 831, 890 S.W.2d 235 (1994); Greene v. State, 317 Ark. 350, 878 S.W.2d 384 (1994).

Here, the evidence of Kidd’s guilt is significant enough to render any error harmless. There was the victim’s physical description of her attacker as a large man with a close-cropped beard and with pronounced body odor. There was the victim’s identification of Kidd’s voice. There were the scratches on Kidd’s face that had not been there at 1:30 a.m., according to his former wife, but were there later that same day. There were the work boots, dark pants, and ski mask which the attacker wore and which belonged to Kidd. There was the footprint outside the victim’s window which matched Kidd’s work boot. There was the absence of sperm in the vaginal swab which corresponded with Kidd’s vasectomy. And there was Kidd’s unusual behavior during the early morning hours of April 29, 1996, when he showered and washed his clothes.

We conclude that there was no reversible error on this point.

II. Confidential Communications

During the investigation which led to Kidd’s arrest and subsequent prosecution, his then wife, Paula Kidd, cooperated extensively with the sheriffs detectives. All told, she gave five statements to the detectives that included communications between her husband and her, such as his revelation that he had been having dreams about doing “bad things” to women. Paula Kidd provided the detectives with a significant amount of evidence, including the black ski mask and his dark pants and work boots, that tended to prove her former husband’s guilt. In the words of Detective Goodrich, the assistance provided by Paula Kidd was “instrumental.”

Prior to trial, Kidd made several motions regarding marital privilege in connection with Paula Kidd’s statements to the detectives. The trial court denied the motions. On appeal, Kidd’s argument does not focus on Paula Kidd’s testimony at trial because she did not testify as to any confidential communications with him. Rather, his argument is premised on the fact that Detective Goodrich succeeded in having him admit to having had thoughts of rape and killing because Paula Kidd told Detective Goodrich that he had been having these disturbing dreams. Otherwise, the detective would not have known to broach this subject to him, according to Kidd’s theory. In sum, Kidd contends that Detective Goodrich testified that Kidd told him certain things due to information gleaned from Paula Kidd when she herself could not have testified at trial.

This issue is resolved by Rule 504(b) of the Arkansas Rules of Evidence, which provides that “[a]n accused in a criminal proceeding has a privilege to prevent his spouse from testifying as to any confidential communication between the accused and the spouse.” As this court stated in Halfacre v. State, 292 Ark. 331, 334, 731 S.W.2d 179, 180 (1987), “Rule 504 is a rule of evidence providing a testimonial privilege to an accused in a criminal proceeding.” Id. (emphasis in original). In Halfacre, which involved the appellant’s conviction for aggravated robbery, we held that the marital privilege did not render the appellant’s arrest illegal, when his wife contacted police officers and told them that the appellant had just stated to her that he robbed a local hotel. This court noted that the protections of Rule 504 did not attach because the criminal proceedings had not begun when the wife reported her husband’s statement to police officers and because she did not testify at trial regarding the confidential communication. Id.

In the instant case, as in Halfacre, Paula Kidd did not testify at trial about any confidential communications made by Kidd. Thus, Rule 504(b), on its face, does not apply.

Affirmed.

       She admitted that she previously told detectives that Kidd was in bed at 3:00 a.m. in order to protect her husband, who she assumed was innocent at the time. They divorced on October 3, 1996, and she recanted her previous statement.


source: Caselaw Access Project

author: Annabelle Clinton Imbek, Justice.

license: Public Domain

text:
    Lynn TOLIVER v. STATE of Arkansas
    97-693
    953 S.W.2d 887
    Supreme Court of Arkansas
    Opinion delivered November 6, 1997

      Jerry Larkowski, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   Annabelle Clinton Imbek, Justice.

This is a juvenile-transfer case. We affirm the trial court’s denial of the appellant’s motion to transfer to juvenile court.

On February 6, 1997, Lynn Toliver was charged in Pulaski County Circuit Court with aggravated robbery, kidnapping, and theft of property. Toliver was sixteen years of age at the time of the alleged offenses, and moved to transfer the charges to juvenile court. At the transfer hearing, Toliver testified that his mother had contacted his high school, which would allow him back in if his case was transferred to juvenile court. Toliver added that if his case was transferred, he was willing to work with the people in juvenile court to rehabilitate himself and turn his life around. When asked why he wanted his case transferred, Toliver answered, “Because I don’t think I could handle it. . . I don’t think I can handle the adults going down there to the big place.” On cross-examination, Toliver explained that he had been “involved in juvenile court” in 1992 and 1993 on a theft of property charge, which resulted in his placement on probation.

The State’s only witness was Jim Potter, a homicide detective with the Pulaski County Sheriffs office who investigated an aggravated robbery perpetrated against a cab driver named Elton White on November 27, 1996. Potter stated that on that date, White was called to pick up a fare when three males entered his cab with firearms, told him to drive to a dead-end street, and robbed him of his money at gunpoint. At the time White had a friend in the front-passenger seat, Amanda Beasley. According to Potter, Beasley said that one of the persons in the back seat held a gun on White, while another held a gun on her. When they arrived at the dead-end street, around $40 and other items were removed from the cab, including its radio. White and Beasley were then forced out of the cab and to the ground at gunpoint, and Beasley was kicked several times.

Potter developed Toliver, Djuane Thompson, and Ytun Butler as suspects, and determined that Toliver and Butler had held guns on the victims. Toliver eventually gave a statement to Potter where he admitted to his presence in the cab with a handgun, but denied that he produced the gun. Instead, Toliver stated that he rolled his jacket sleeve over his hand and made gestures toward Beasley as if he had a handgun. Toliver added that the victims were taken to a dead-end street, money was taken, and he witnessed another person kick Beasley.

Following the presentation of this evidence, without objection, and argument from counsel, the trial court denied the motion to transfer. Toliver brings this interlocutory appeal from the denial of his transfer motion. For his only point on appeal, Toliver argues that no clear and convincing evidence existed warranting that he be tried as an adult in circuit court. Toliver primarily relies on cases such as Green v. State, 323 Ark. 635, 916 S.W.2d 756 (1996), Blevins v. State, 308 Ark. 613, 826 S.W.2d 265 (1992), and Pennington v. State, 305 Ark. 312, 807 S.W.2d 660 (1991), which generally hold that seriousness alone is not a sufficient basis for the denial of a transfer motion. Toliver in turn reasons that the State failed to come forward with “countervailing evidence” to reflect negatively on the second and third statutory factors found in Ark. Code Ann. § 9-27-318(e) (Supp. 1995) concerning his history and prospects for rehabilitation. Toliver’s reliance on these cases is misplaced, and his argument reflects a misunderstanding of this court’s interpretation of the juvenile code and our applicable standard of review.

We have repeatedly stated that the trial court does not have to give equal weight to the statutory factors found in Ark. Code Ann. § 9-27-318(e) in ruling on a transfer motion. McClure v. State, 328 Ark. 35, 942 S.W.2d 243 (1997); Maddox v. State, 326 Ark. 515, 931 S.W.2d 438 (1996). Moreover, the State is not required to present proof as to each statutory factor. McClure, supra; Lammers v. State, 324 Ark. 222, 920 S.W.2d 7 (1996). On appellate review, we will not overturn the trial court’s determination unless it was clearly erroneous. Brooks v. State, 326 Ark. 201, 929 S.W.2d 160 (1996); Carroll v. State, 326 Ark. 602, 932 S.W.2d 339 (1996).

In the present case, Toliver’s argument fails because it ignores the serious nature of the crimes charged, and the evidence of the use of violence in the commission of these serious offenses. Given the presence of these two factors, this court has often declined to find that a trial court was clearly erroneous in denying transfer. See, e.g., Kindle v. State, 326 Ark. 282, 931 S.W.2d 117 (1996) (affirming denial of transfer where the victim testified that the appellant held a loaded pistol to his head and attempted to pull the trigger); Guy v. State, 323 Ark. 649, 916 S.W.2d 760 (1996) (“It is of no consequence that appellant may or may not have personally used a weapon, as his association with the use of a weapon in the course of the crimes is sufficient to satisfy the violence criterion.”); Cole v. State, 323 Ark. 8, 913 S.W.2d 255 (1996) (affirming denial of transfer of aggravated assault and possession of handgun on school property charges where appellant threatened the victim with a gun). In the present case, Detective Potter presented evidence that at least two of the perpetrators produced firearms. While at gunpoint, the victims were forced to drive to a dead-end street, money was taken from White, and both victims were forced to the ground where Beasley was kicked. Potter determined that Toliver and Butler were the “gun-holding suspects.” According to Potter, Toliver admitted to his presence in the vehicle, with a handgun, while the offenses occurred. Given the serious nature of the crimes charged, and the evidence supporting the employment of violence during the commission of these offenses, the trial court was not clearly erroneous in denying the transfer motion.

Affirmed.

       Count two of the information filed against Toliver shows that he was charged with misdemeanor theft of property under Arkansas Code Annotated § 5-36-103 (Supp. 1995). Neither party addresses the jurisdictional issue implicated when a sixteen-year-old juvenile is charged with a misdemeanor in circuit court. See Ark. Code Ann. § 9-27-318(b)(l) (Supp. 1995). However, an April 25, 1997, docket-sheet entry shows that “Misdemeanor Count 2” was dismissed. Thus, we treat this case as an appeal from the denial of transfer on the aggravated robbery and kidnapping charges.

       Toliver appears to take the position that the trial court’s failure to make a specific finding that the offenses were “serious and violence was employed” precludes reliance on the first statutory factor, Arkansas Code Annotated § 9-27-318(e)(l). However, specific findings of fact from the trial court in juvenile-transfer cases, while helpful for our review, are not required. Lammers v. State, 324 Ark. 222, 920 S.W.2d 7 (1996); Booker v. State, 324 Ark. 468, 922 S.W.2d 337 (1996).

       While Toliver makes reference to this court’s caveat in Sanders v. State, 326 Ark. 415, 932 S.W.2d 315 (1996), against mere reliance on the criminal information in juvenile-transfer cases, the present case is notably different because the State presented evidence supporting the charges.


author: Ray Thornton, Justice.

text:
    George HANKINS v. DEPARTMENT of FINANCE and ADMINISTRATION; and Lawyers Surety Corporation
    96-1465
    954 S.W.2d 259
    Supreme Court of Arkansas
    Opinion delivered November 6, 1997
    [Petition for rehearing denied December 11, 1997.]

      Diana M. Maulding, for appellant.

      Brandon Lee Clark and Daniel Scott Smith, for appellee DF&A.

      Joel Taylor, for appellee Lawyers Surety Corp.
   Ray Thornton, Justice.

This is a second review of this controversy. In 1991, George Hankins, appellant, obtained a default judgment against Larry McElroy for $25,869, on the basis of losses' sustained from unpaid promissory notes together with losses of $1,000 relating to-the sale of a Camaro and $1150 relating to the sale of a GMC truck. In an attempt to recover the McElroy judgment, Hankins sought a declaratory judgment against Lawyers Security Company, the surety, for a $25,000 bond required for McElroy as a motor-vehicle dealer. Lawyers offered to settle the claim by paying Hankins $2115 pursuant to Ark. R. Civ. P. 68. Hankins did not accept the offer. The trial court in its declaratory judgment ruled against Hankins, finding that the bond could not be used to satisfy appellant’s judgment.

On appeal, we reversed and dismissed without prejudice because Hankins had not exhausted available administrative remedies. We held that the appropriate remedy was to seek payment under the bond by presenting the default judgment to the Department of Finance & Administration (DF&A) pursuant to Ark. Code Ann. § 23-112-603 (Supp. 1995). Hankins v. McElroy, 313 Ark. 394, 855 S.W.2d 310 (1993) (Hankins I).

Hankins renewed his efforts to collect his default judgment by seeking administrative relief from DF&A and a hearing was held on September 7, 1994, before an administrative law judge. Hankins argued that Lawyers was liable on the bond because McElroy’s actions in incurring the debts were sufficient to warrant the suspension or revocation of his car dealer’s license under the provisions of Ark. Code Ann. § 23-112-302, which provides for recovery of such bonds. The ALJ found that the transactions between McElroy and Hankins were personal debts between businessmen and not sufficient reason to cause suspension or revocation of the license.

Hankins appealed the adverse decision to the circuit court, which sustained the agency decision. The court granted DF&A’s motion to be reimbursed for costs of producing the transcript pursuant to Ark. Code Ann. § 25-15-212(d)(2) (Repl. 1996). On August 13, 1996, Lawyers’ attorney moved to recover costs pursuant to Ark. R. Civ. P. 68, which allows recovery of costs by an offeror of judgment “[i]f the judgment exclusive of interest from the date of offer finally obtained by the offeree is not more favorable than the offer . . . . ” The court denied the motion.

While Hankins’s attorney was abstracting the record for review by this court, it was discovered that portions of it were missing. On March 3, 1997, the circuit judge issued an order settling the record and the ALJ’s order was added. The circuit judge noted in a cover letter that the transcript of the administrative hearing did not contain all of the testimony and that the missing portions of the record of the administrative hearing were not in the material considered by the circuit court; therefore, the record could not be completed from the circuit court. Hankins did not seek to settle the record at the agency level.

Hankins argues on appeal that the circuit court erred: (1) in failing to consider the entire record of the administrative proceeding; (2) in upholding the ALJ’s order; and (3) in granting DF&A judgment against him for costs in producing the transcript. Lawyers cross-appeals the denial of costs. None of the arguments has merit, and we affirm.

We now proceed to review the issues before us in this appeal. Hankins argues that the circuit court erred in fading to consider the entire record of the administrative proceeding, and in upholding the ALJ’s order. These arguments appear to be based upon the premise that we review the circuit court’s decision in an appeal from a proceeding by an administrative agency. This premise is incorrect. In an appeal from an administrative order, our review is directed to the agency’s decision, not the circuit court’s. Brimer v. Arkansas Contractors Lic. Bd., 312 Ark. 401, 849 S.W.2d 948 (1993). However, we cannot review the agency’s decision in this case because we do not have the complete record before us. It is incumbent upon an appellant to bring up a record sufficient to show error. Winters v. Elders, 324 Ark. 246, 920 S.W.2d 833 (1996). Our rules of appellate procedure provide a remedy for settling an incomplete or inaccurate record. Rule 6 of the Arkansas Rules of Appellate Procedure provides in pertinent part as follows, “If any difference arises as to whether the record truly discloses what occurred in the trial court, the difference shall be submitted to and settled by that court and the record made to conform to the truth.” Hankins did not avail himself of this remedy.

The portion of the record that we have before us indicates that there were exhibits and testimony that are missing. Hankins bases much of his argument for reversal of the agency’s decision upon these missing exhibits and testimony. It was his obligation to ensure that the record be made complete so that we could reach his arguments. Because he did not do so, he has not met his burden of producing a record sufficient for our review, Grinning v. City of Pine Bluff, 322 Ark. 43, 907 S.W.2d 690 (1995); therefore, we summarily affirm the agency’s decision.

We next address Hankins’s contention that the trial court erred in ordering him to pay the costs of the record. He argues that, although DF&A was the prevailing party, it did not transmit the entire record to circuit court. Arkansas Code Annotated § 25-15-212 provides in pertinent part:

(d)(1) Within thirty (30) days after service of the petition or within such further time as the court may allow, but not exceeding an aggregate of ninety (90) days, the agency shall transmit to the reviewing court the original or a certified copy of the entire record of the proceeding under review.
(2) The cost of the preparation of the record shall be borne by the agency. However, the cost of the record shall be recovered from the appealing party if the agency is the prevailing party.

Id. § 25-12-212(d)(l)-(2) (Repl. 1996). The record shows that DF&A ordered and paid for a transcript of the entire record. Again, it was incumbent upon Hankins to ensure that a complete record was available for our review. The deficiency in the record was not called to DF&A’s attention before the circuit court had assessed costs, and DF&A’s offer to supplement the record, made after the decision of the circuit court, was not accepted. Because DF&A paid for a transcript and was the prevailing party, the circuit court did not err in ordering Hankins to reimburse the agency.

Lawyers argues on cross-appeal that the circuit court erred when it denied its motion for costs on an offer of judgment that it made during the first trial on this matter. The trial court stated tliat it was without jurisdiction to hear the motion because it was made during the first trial. Lawyers points out that our holding in Transit Homes, Inc. v. Bellamy, 287 Ark. 487, 701 S.W.2d 126 (1985), provides that such a motion could survive a previously dismissed action under Ark. R. Civ. P. 41(d). However, we affirm the trial court because we conclude that Lawyers reversed its position during the second trial and that the offer of judgment was effectively withdrawn.

On January 30, 1992, during the first trial, Lawyers made an offer of judgment in the sum of $2,115.00 to Hankins in full settlement of the claim. This sum represented the sale of the Camaro and the GMC truck. Hankins did not reply or accept the offer. The portion of the record that is before us reveals that at the administrative hearing on September 7, 1994, Hankins testified that he allowed Mr. McElroy to draft upon a line of Hankins’s credit to purchase these vehicles. During oral argument before this court, Lawyers’ attorney stated that after this testimony came out in the hearing before DF&A it reversed its position and took the stance that the sale of the vehicles was not covered by the bond, but was also merely a debtor-creditor issue.

We recognize that Ark. R. Civ. P. 68 requires the trial judge to order an offeree to pay the authorized costs after the making of a bona fide offer, if the judgment, exclusive of interest, is not more favorable than the offer. See Darraugh Poultry & Livestock Equip. Co. v. Piney Creek Sales, Inc., 294 Ark. 427, 743 S.W.2d 804 (1988). However, the trial court is not required to award costs to a prevailing party when no offer of judgment is made. Id. It appears that Lawyers did not continue the offer of judgment made during the first trial, and no specific offer of judgment was made in the case on retrial. We uphold the trial court’s denial of costs.

We summarily affirm the agency’s order in favor of Lawyers because the record was not complete enough to allow us to evaluate it. We affirm the circuit court’s order requiring Hankins to pay DF&A for the costs of producing the transcript and affirm on cross-appeal its denial of costs to Lawyers.


author: W.H.“Dub” Arnold, Chiefjustice. Robert L. Brown, Justice,

text:
    Norma and Larry BROWN v. ARKANSAS DEPARTMENT OF HUMAN SERVICES
    96-1367
    954 S.W.2d 270
    Supreme Court of Arkansas
    Opinion delivered November 13, 1997

      David B. Fuller, for appellant.
    No response.
   W.H.“Dub” Arnold, Chiefjustice.

This is a termination-of-parental-rights case. Appellants Norma and Larry Brown are the parents of a daughter who was born in 1992. They appeal an order of the Benton County Chancery Court terminating their parental rights with respect to their daughter. Their attorney, David B. Fuller, filed a no-merit brief in the Arkansas Court of Appeals, which certified the case to this court to answer the question of whether the provisions of Anders v. California, 386 U.S. 738 (1967), which protect a criminal appellant’s right to counsel on appeal, apply to cases involving the termination of parental rights.

The issue of whether Anders applies to these cases is not addressed in appellants’ brief. Nor has the Department addressed this issue, and it has not submitted a brief in this case. The certificate of service contained at the close of the brief filed by appellants’ attorney indicates that he mailed a copy of the brief by first class mail, with restricted delivery to appellants. Though appellants received notice that their attorney had filed a no-merit brief, they have not filed a response. Under these circumstances, we treat this no-merit appeal as a motion to dismiss and grant the motion.

Appeal dismissed.

Newbern, Brown, and Imber, JJ., dissent.

Robert L. Brown, Justice,

dissenting. Termination of a parent’s rights in a child is a drastic remedy that requires that a parent be afforded full protection under the law. The United States Supreme Court has afforded due-process protection to parents in certain involuntary termination proceedings and described a parent’s interest in the accuracy and justice of the decision to terminate his or her interest in a child as a commanding one. See Lassiter v. Dep’t of Social Servs., 452 U.S. 18, 27 (1981). I must respectfully dissent from the majority opinion because I do not believe that the procedure affirmed by the majority in this case adequately protects parents when (1) their rights in a child have been involuntarily terminated, and (2) their attorney abandons the appeal before this court.

In 1989, the Arkansas General Assembly adopted the view that counsel shall be provided for indigent parents in termination cases “at all stages of the proceedings.” 1989 Ark. Acts 273 § 15, now codified at Ark. Code Ann. § 9-27-316(h)(l) (Supp. 1997). See Briscoe v. State, 323 Ark. 4, 912 S.W.2d 425 (1996). With the public policy of this state now carved in stone, this court is faced for the first time with deciding what procedure to follow when the parents’ counsel overtly abandons his clients’ appeal. Should this court assure that the parents whose rights to an appeal are forfeited are fully cognizant of what has occurred? Or should this court adopt a procedure comparable to that afforded indigent criminal defendants when their counsel advises this court that the appeal has no merit? See Anders v. California, 386 U.S. 738 (1967). See also Ark. Sup. Ct. R. 4-30. In the criminal context under Rule 4-30 when an attorney files a no-merit brief, that attorney is required to list all rulings adverse to the client and all objections and motions as well with an explanation as to why the adverse ruhng is not a meritorious ground for reversal. The criminal defendant is then notified of the attorney’s actions and given 30 days to raise any points he chooses to raise in support of the appeal.

Other jurisdictions, while not extending the full panoply of Anders protections, have sanctioned dismissal of an appeal only after parents were instructed explicitly that their appeal had been abandoned and they had thirty days to file a supplemental brief. See, e.g., In Re Sade C., 920 P.2d 716 (Cal. 1996); In Re J.A., 693 So.2d 723 (Fla. App. 5 Dist. 1997); Jimenez v. Dept. of Health & Rehab., 669 So.2d 340 (Fla. App. 3 Dist. 1996); Ostrum v. Dept. of Health & Rehab, of Fla., 663 So.2d 1359 (Fla. App. 4 Dist. 1995). Still other courts faced with this exact question have required that the attorney file an advocate’s brief establishing why the parent’s case has no merit, as is done in Anders appeals. See, e.g., In Re V.E., 611 A.2d 1267, 1275 (Pa. Super. 1992)(“An indigent parent faced with the permanent loss of his or her child, like the indigent defendant described in Anders, is entitled to ... an attorney who will support the appeal to the best of his or her ability.”), citing Meyer v. Nebraska, 262 U.S. 390 (1923).

In the instant case, the certificate of service on counsel’s brief states that the parents were mailed a copy of the brief, but there was no instruction that the parents had the right to file a brief on their own within thirty days. As the United States Supreme Court has recognized:

The parents [involved in these cases] are likely to be people with little education, who have had uncommon difficulty in dealing with life, and who are . . . thrust into a distressing and disorienting situation. That these factors may combine to overwhelm an uncounseled parent is evident from the findings some courts have made.

Lassiter v. Dep’t of Social Servs., 452 U.S. at 30 (citations omitted).

I would not require full Anders protection to be afforded in this case. But I would certainly give the parents an opportunity to file a supplemental brief within thirty days, should they so desire. It may well be that the parents are fully aware of what their counsel has done. But what if they are not? In my opinion, it is the responsibility of the judicial system to assure that the parents know their appeal has been dismissed and that they are given a separate opportunity to advance their cause.

Finally, the majority points to the fact that the Anders issue has not been briefed by the parties and cites that as a reason not to address it. But who has an interest in raising the Anders question? Not the attorney for the parents who wants to withdraw from the case. Not the State which wants the appeal dismissed. The parents, of course, have not been given an independent voice. Under such circumstances, the Anders issue in termination cases will never be brought before this court unless we decide to address the issue.

For these reasons, I respectfully dissent.

Newbern and Imber, JJ., join.


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

text:
    Jeffrey DAVIS v. STATE of Arkansas
    CR 97-251
    956 S.W.2d 163
    Supreme Court of Arkansas
    Opinion delivered November 13, 1997

      Robert E. Irwin and John R. Irwin, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   W.H.“Dub” Arnold, Chief Justice.

The appellant, Jeffrey Davis, was sentenced to concurrent life sentences' for three counts of rape and ten years’ imprisonment for firstTdegree sexual abuse, for which he was also fined $10,000.00. He raises seven issues on appeal, none of which has merit. We affirm.

The State alleged that the 'appellant thrice raped his' seven-year-old daughter by engaging in oral sex with her, by penetrating her vagina with his penis, and by penetrating her vagina with a foreign object. It was also alleged that appellant engaged in sexual contact with his daughter. A fifth charge, endangering the welfare of a minor, was dismissed at trial.

During the appellant’s jury trial, the victim testified that, on several occasions, her father “took his private part and stuck it in my private part,” but “it wouldn’t fit in all the way.” When the appellant was “through,” “white stuff would come out” on the victim’s leg that she described as “gooey.” According to the victim, the appellant also “made me put his private part in my mouth and suck on it.” He touched her “private” with his tongue and stuck the tip of a lotion bottle and a vibrator into her “private part.” The victim further described how she would rub on the appellant’s “private.” It was the victim’s testimony that the appellant kept ladies’ slips and “all kinds of stuff” under his bed. He would tie the slips in a knot to keep them from falling down because they were too big for the victim. The appellant would also make the victim look at dirty magazines and watch pornographic movies. According to the victim, these acts occurred in her parents’ bedroom while her mother was gone. On cross-examination, the victim admitted to recanting the allegations to her foster parent, Ms. Ward, because, according to her, “it wasn’t her business,” and she “wouldn’t leave me alone.”

In addition to the victim’s testimony, the State also offered the testimony of Tammy Coney, a family service worker for the Arkansas Department of Human Services, who testified that it was not unusual for child sexual-abuse victims to recant their allegations. The victim’s elementary school counselor, Melissa Cox, related that the victim had emotional problems at school. Nurse Paula McAlister and Dr. George Richison saw the victim at St. Mary’s Hospital on January 5, 1996. While Dr. Richison testified that the victim’s exam was normal, he also stated that the victim’s account would be consistent with her hymenal ring being intact. Officer Bryce Davenport testified that suggestive pictures and pornographic magazines and movies were found at the appellant’s residence. According to the officer, a bag containing white lace material and a small night shirt was located under the appellant’s bed.

The appellant testified in his own defense and denied the charges. His wife and the victim’s mother, Tracy Davis, testified on her husband’s behalf that the victim “always acted like a grown up” and had emotional problems with adjusting to a new school that caused her to make the allegations. At the close of all the evidence, the jury found the appellant guilty as charged.

1. Sufficiency of the evidence

At the close of the State’s case in chief, the appellant moved for a directed verdict as follows:

Your Honor, at the end of the State’s testimony the defendant, Jeff Davis, moves for a directed verdict on all the remaining counts of the information.

After the trial court denied this motion, appellant presented his case to the jury. At the close of all the evidence, the appellant made the following motion:

At the conclusion of all the evidence, the defense evidence and the State’s evidence, the defendant renews his motion for directed verdict on the ground that there is insufficient evidence to make a prima facie case.

The trial court again denied the motion. On appeal, the appellant complains that the only evidence to support the State’s charges of rape against him was the testimony of the child-victim, who had earlier recanted her allegations.

A directed-verdict motion is a challenge to the sufficiency of the evidence and requires the movant to apprise the trial court of the specific basis on which the motion is made. Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995). Arguments not raised at trial will not be addressed for the first time on appeal, and parties are bound on appeal by the scope and nature of the objections and arguments they presented at trial. Id. In the present case, the appellant’s directed-verdict motion was not specific. Under these circumstances, we will not address the merits of appellant’s argument. In any event, even if we were to address the merits of his argument, it would fail. We have held many times that the uncorroborated testimony of a rape victim is sufficient to support a conviction. Rains v. State, 329 Ark. 607, 953 S.W.2d 48 (1997).

2. Prosecutorial misconduct

In his opening statement to the jury, the prosecutor remarked that the case involved “a man who delights and takes pleasure in the sexual perversion of children.” When appellant objected to this statement and requested that the trial court admonish the jury, the trial court agreed and issued the admonishment. Later, during the appellant’s case-in-chief, he testified as follows:

I can’t stop being her father, not for her — not only for her but for me; and if everything goes, I’m not quitting. I feel like I’ve got a problem that needs to be solved; and if permitted, I want to fix it. Whatever it is; and I’ll say it again, the first I . . .

During his initial cross-examination of the appellant, the prosecutor stated, then asked, “You’ve got a problem that needs to be fixed. How long have you been a pervert?” Before the appellant could respond, his attorney objected to the question. The trial court sustained the objection and agreed to the appellant’s request to admonish the jury. The appellant made a motion for mistrial, which the trial court denied. After the jury returned a guilty verdict, the appellant renewed his motion for mistrial and asked the trial court to set aside the verdict on the ground that the prosecutor’s comment during opening statement, when taken together with his improper question asked during cross-examination, amounted to prosecutorial misconduct. The trial court again denied the motion.

A mistrial is a drastic remedy that is granted only where the error is so prejudicial that justice cannot be served by continuing the trial or where the fundamental fairness of the trial itself has been manifestly affected. Williams v. State, 329 Ark. 8, 946 S.W.2d 678 (1997). The trial court is afforded broad discretion in making its ruling, and a mistrial will not be declared when the prejudice can be removed by an admonition to the jury. Id.

It is obvious to us that the prosecutor’s object in the present case was to label the appellant as a “pervert.” While we may not approve of this trial tactic, we cannot say that the prosecutor’s conduct was so drastic as to warrant a mistrial. See Sullinger v. State, 310 Ark. 690, 840 S.W.2d 797 (1992); Burkhart v. State, 301 Ark. 543, 785 S.W.2d 460 (1990). When viewing the strong admonitions the trial court issued at the time the prosecutor’s remarks were made, we hold that any potential prejudice was cured and that the trial court did not abuse its wide discretion in denying the motion for mistrial.

3. Testimony of Tammy Coney

Next, the appellant contends that the trial court erred in allowing Tammy Coney, a family service worker for the Arkansas Department of Human Services, to offer expert testimony that it was not unusual for child sexual abuse victims to recant their allegations.

We recently summarized the law regarding the qualifications of an expert witness in Smith v. State, 330 Ark. 50, 55-56, 953 S.W.2d 870 (1997):

Whether a witness qualifies as an expert in a particular field is a matter within the trial court’s discretion, and we will not reverse such a decision absent an abuse of that discretion. Mace v. State, 328 Ark. 536, 944 S.W.2d 830 (1997). If some reasonable basis exists demonstrating that the witness has knowledge of the subject beyond that of ordinary knowledge, the evidence is admissible as expert testimony. Id. The general test of admissibility of expert testimony is whether it will assist the trier of fact in understanding the evidence presented or determining a fact in issue. A.R.E. Rule 702; Matthews v. State, 327 Ark. 70, 938 S.W.2d 545 (1997); Stout v. State, 320 Ark. 552, 898 S.W.2d 457 (1995). In addition, expert testimony must be relevant and not misleading or confusing to the jury. Stewart v. State, 316 Ark. 153, 870 S.W.2d 752 (1994). In determining the relevance of the testimony, the proponent must show that the evidence is reliable and sufficiently related to the facts of the case to aid the trier of fact in resolving the dispute. Prater v. State, 307 Ark. 180, 820 S.W.2d 429 (1991).

In the case at bar, Ms. Coney testified that she had been involved in investigating child-abuse cases for six and one-half years and had received eight weeks of new-worker training that covered different aspects of abuse, neglect, and family dynamics. Three years prior to trial, Ms. Coney had received one hundred-fifty hours of additional training. In view of Ms. Coney’s training and experience, we cannot say that the trial court abused its discretion in qualifying Ms. Coney as an expert and allowing her testimony, as it is apparent that she had knowledge of child-abuse cases beyond that of an ordinary person. See Poyner v. State, 288 Ark. 402, 705 S.W.2d 882 (1986).

The appellant also complains that the trial court should not have permitted Ms. Coney’s testimony because “there was no strong record before the court which indicated that a child abuse case was before the court and that there was no need for the testimony of Tammy Coney to be made at that time.” This specific objection was not made at trial and is thus not preserved for our review. See Stewart v. State, supra.

4. Juror Lindsey ■— Motion for mistrial

After the jury returned a guilty verdict on three counts of rape and one count of sexual abuse, it recessed for the evening. The next morning, the bailiff approached the trial court with information that juror Jonathan Lindsey was having a “problem” with the guilty verdict.

When questioned outside the presence of the other jurors, juror Lindsey advised the trial court that he had never been a juror before and that he felt that he should have “stood up and stayed strong . . . instead of giving in to everybody else (on the jury).” He related that he became troubled during his drive home from the courthouse and “had just this real bad feeling in me that I had made a bad decision.” The colloquy between the trial court and juror Lindsey continued as follows:

TRIAL COURT: Now, yesterday when the jury returned to the courtroom and I asked you if you had reached your verdict and then I read off your verdicts, then I asked if this was the jury’s verdicts.
JUROR: And, I agreed with everybody, yes, sir.
TRIAL COURT: And, at that time did you have some reservations that you needed to advise the court of?
JUROR: Not really because we had just walked out of the jury room and I’m not saying that they intimidated me. I’m not saying that I felt intimidated by the other jurors or anything; and I’m not saying that the decision I made was because of their decision, really; but I mean it’s just that I didn’t feel like I should lay down a guilty verdict; but after sitting there talking to them and, you know, they were all telling me all the reasons why I should say he was guilty and all the reasons why they felt he was guilty, and it was just more than —■
TRIAL COURT: At the time you heard all that how did you feel?
JUROR: At the time they were telling all that I thought, “Well, okay, then he’s guilty of all this stuff”; and, you know, “If ya’ll feel this way and this is why y’all feel this way, then I should feel this way, too”; but then after I left the courtroom, it was a totally different feeling so far as I was concerned and I didn’t feel that way at all.

The attorneys were permitted to question juror Lindsey as follows:

ATTORNEY FOR APPELLANT: Your Honor, I think before we go any further that we ought to ask him this question. Did you have an abiding conviction — were you satisfied beyond a reasonable doubt that Jeff Davis was guilty?
JUROR: No.
ATTORNEY FOR APPELLANT: You did not have an abiding conviction of his guilt?
JUROR: No.
PROSECUTOR: Did you tell the court you did when he asked you?
JUROR: Yes, I did.
PROSECUTOR: I believe earlier you made the statement that at first you had doubts and then the other eleven jurors said to you to look at this and look at this and look at this, and then you
JUROR: And, after looking at that I was in agreement; but later when I left I was thinking, “I don’t like what I just did,” and doubt started to creep in.
PROSECUTOR: On your way home?
JUROR: That’s correct.
PROSECUTOR: But, after deliberating with the other eleven jurors and after the other eleven suggested to you that you look at “A,” “B,” “C,” and “D,” you began thinking that based upon their life’s experiences and what they’ve been through and what they are saying, “I can see that”?
JUROR: Right.
ATTORNEY FOR APPELLANT: At that point were you convinced beyond a reasonable doubt of the guilt of Jeff Davis?
JUROR: Beyond a reasonable doubt?
PROSECUTOR: At that point.
ATTORNEY FOR APPELLANT: At that point did you have an abiding conviction in the truth of the charge?
JUROR: Yes, I did at that point.
ATTORNEY FOR APPELLANT: All right.

After the questioning of juror Lindsey concluded, the appellant moved for a mistrial on the ground that the verdict was not the result of an impartial consideration and that the reason given by the juror as to how he reached his verdict was unfair in nature.

Before addressing the precise issue before us, we must emphasize that A.R.E. Rule 606(b) only permits inquiry into whether any external influence or information could have played a part in the jury’s verdict. The purpose of this rule is to balance the freedom of secret jury deliberations with the ability to correct an irregularity in those deliberations. Borden v. St. Louis Southwestern Ry. Co., 287 Ark. 316, 698 S.W.2d 795 (1985). While the appellant did not object to the testimony regarding juror Lindsey’s mind and emotions, it is apparent when reviewing the excerpted colloquy above that the inquiry at times delved into the improper area of juror Lindsey’s mind and emotions. However, for purposes of our reviewing the appellant’s argument on appeal, it is clear from juror Lindsey’s testimony that no other juror “intimidated” him and that no extraneous prejudicial information influenced his decision.

Arkansas Code Annotated section 16-89-130(3) (1987) provides that the trial court may grant a new trial when a verdict rendered against the defendant has been decided by “lot” or chance. We have held that a verdict reached by the jury through a compromise of their views is not a verdict by lot but is a fair expression of their views. Blaylack v. State, 236 Ark. 924, 370 S.W.2d 615 (1963). The reasoning of the Eighth Circuit Court of Appeals is particularly helpful on this point:

Persuasion and compromise are the processes by which juries are intended to reach their decisions. Otherwise, jurors would be polled directly after the close of trial — not allowed to discuss the case among themselves to arrive at a verdict acceptable to them all.

Smith v. Lockhart, 946 F.2d 1392, 1395 (8th Cir. 1991).

When making its ruling on this issue, the trial court observed that juror Lindsey had stated that, at the time the verdict was returned, he had an abiding conviction of the truth of the charge. When considering all the circumstances, the trial court did not abuse its discretion in denying the motion for mistrial.

5. Juror Lindsey ■— new jury

The appellant also argues, with respect to juror Lindsey, that the trial court should have dismissed the jury and impaneled a new jury for sentencing. He did not obtain a ruling on this request and thus has not preserved this argument for appeal. Foreman v. State, 328 Ark. 583, 945 S.W.2d 926 (1997).

6. Witness Steve Brown

Next, the appellant asserts that the trial court erred in permitting Steve Brown, Coordinator of the Fifth Judicial District Drug Task Force, to offer opinion testimony during the sentencing phase that a substance he identified as Super Manitol, a Vitamin B supplement commonly used to increase the yield of methamphetamine and cocaine, along with what he believed to be methamphetamine, were found in appellant’s home. Particularly, appellant disputes Brown’s qualifications to offer this testimony.

We initially observe that appellant has offered no case law to support his argument. We do not consider arguments that are unsupported by authority or convincing argument. Hicks v. State, 327 S.W.2d 652, 941 S.W.2d 387 (1997). In any event, Officer Brown had five years with the task force and as coordinator, was responsible for initiating major crime and narcotics investigations, and coordinated these investigations with state, local, and federal agencies. In view of his experience, the trial court did not abuse its discretion in permitting the officer to testify as to what he believed to be methamphetamine, for it is apparent that he had knowledge in this area beyond that of an ordinary person. See Poyner v. State, supra.

7. Other crimes evidence

Finally, the appellant maintains that the trial court erred in allowing Officer Brown’s testimony during the sentencing phase about the appellant’s pending drug charges. At trial, the appellant argued that, if the State were permitted to offer this evidence, he would be “required to offer some response or evidence ... or even testify in order to refute those allegations.” He further claimed that this evidence would be “highly prejudicial.” While the trial court overruled the appellant’s objection and permitted the State to present this evidence, the appellant did not testify during the penalty phase. On appeal, he asserts in a conclusory manner that this evidence was not independently relevant and that its probative value was substantially outweighed by the danger of unfair prejudice. He does not state, however, how he was prejudiced by the admission of this evidence. We will not reverse the trial court’s ruling on evidentiary matters absent a demonstration of prejudice. Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702, cert. denied, 117 S.Ct. 246 (1996). In view of the graphic testimony offered by the appellant’s seven-year-old daughter describing how he repeatedly raped her, we cannot say that the appellant was prejudiced by the admission of the testimony at issue.

8. Ark. Sup. Ct. R. 4-3(h)

We have reviewed the record in accordance with Ark. Sup. Ct. R. 4-3(h) for adverse rulings objected to by the appellant but not argued on appeal. We have found no such errors that would mandate reversal.

Affirmed.


author: David Newbern, Justice.

text:
    Vonnie L. MOORE v. STATE of Arkansas
    CR 97-598
    954 S.W.2d 932
    Supreme Court of Arkansas
    Opinion delivered November 13, 1997

      Chris Tarver, for appellant.

      Winston Bryant, Att’y Gen., by: Mac Golden, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

Vonnie L. Moore was alleged to have robbed cashiers at two grocery stores — one on February 26, 1996, and the other on February 27, 1996. Fie was charged with two counts of aggravated robbery and two counts of misdemeanor theft. The judgment and commitment order of record inaccurately shows that Mr. Moore was convicted of two aggravated robberies, both occurring on February 27, 1996. The trial transcript shows that the jury found Mr. Moore guilty of aggravated robbery and theft with respect to the robbery that occurred on February 27, 1996 (Count 2). As to the February 26, 1996, event (Count 1), however, Mr. Moore was found guilty of the lesser-included offense of robbery and of misdemeanor theft.

Mr. Moore was sentenced as an habitual offender to serve consecutive terms of life imprisonment for aggravated robbery, forty years’ imprisonment for robbery, and one year in the county jail for each of the misdemeanor thefts. He appeals only the forty-year sentence received for the robbery on Count 1 and asserts that the evidence was insufficient and should not have been allowed to go to the jury. We affirm the conviction because Mr. Moore’s motion for directed verdict challenging the sufficiency of the evidence concerned only the charge of aggravated robbery of which he was not convicted. The sentence is modified, however, to limit the total sentence for the misdemeanor thefts to one year, which is to be served concurrently with the felony sentences.

At the trial, Jamal Williams, the grocery-store clerk victimized in the February 26 robbery, was unable to identify Mr. Moore as the culprit; however, he had done so earlier upon viewing a photographic lineup. Mr. Williams testified that he was a cashier at the store robbed on February 26. The robber approached him at the register and asked for a pack of cigarettes. When Mr. Williams told the robber what he owed, the robber reached in his pocket and handed Mr. Williams a note that said, “This is a robbery. Give me all your money.” Mr. Williams testified that the robber said only that he did not want food stamps. The robber placed his hand in his coat pocket, and Mr. Williams said that he saw something “bulging out” toward him from the pocket where the robber’s hand was and that he felt threatened and scared. He gave the robber all the cash from the register. Mr. Williams testified that he did not know what was in the robber’s pocket, but he believed the “bulge” was a gun based on the way the robber had his hand in his pocket.

1. Sufficiency of the evidence

Robbery is defined in Ark. Code Ann. § 5~12~102(a) (Repl. 1993), in significant part, as follows: “A person commits robbery if, with the purpose of committing a felony or misdemeanor theft ... he employs or threatens to immediately employ physical force upon another.” One who commits robbery is guilty of aggravated robbery if one “is armed with a deadly weapon or represents by word or conduct that [one] is so armed;. ...” Ark. Code Ann. § 5-12-103(a)(l) (Supp. 1995).

The motion for a directed verdict at the trial was as follows:

[Defense Counsel]: ... I would move for a directed verdict as to Count One of the information. The State has not met its burden, insufficient evidence. I believe Mr. Williams is charged [sic] as a victim in that count, aggravated robbery. I believe his testimony was that the defendant came into the store, presented a note written on a paper towel or a napkin or something to that effect, placed it upon the counter, he looked at the note. Once he realized that he was serious, then he handed the money to him. He then changed his testimony a little bit in terms of he said that the defendant had his hand in his pocket, he saw a bulge, and it was just his personal feelings.
The Court: Thought he had a gun.
[Defense Counsel]: — that he had a gun. There was no indication that there was any conduct on the part of the defendant by words or, as I said, conduct that he had a weapon.

The motion questioned only the sufficiency of the evidence to show that Mr. Moore was armed with a deadly weapon or represented himself to be armed with a deadly weapon. It thus questioned only the element that allegedly made the act aggravated robbery rather than robbery.

To preserve for appeal the issue of sufficiency of the evidence to support a conviction of a lesser-included offense, a defendant’s motion for directed verdict must address the elements of the lesser-included offense. Webb v. State, 328 Ark. 12, 941 S.W.2d 417 (1997); Jordan v. State, 323 Ark. 628, 917 S.W.2d 164 (1996). Mr. Moore’s motion addressed only whether Mr. Williams was threatened by, or perceived the threat of, a deadly weapon. As the motion did not address any of the elements of robbery, the offense of which Mr. Moore was convicted, we affirm the conviction.

2. Misdemeanor sentences

According to Ark. Code Ann. § 5-4-403 (c) (Repl. 1993),

The power of the court to order that sentences run consecutively shall be subject to the following limitations:

(1) A sentence of imprisonment for a misdemeanor and a sentence of imprisonment for a felony shall run concurrently, and both sentences shall be satisfied by service of sentence for a felony; and

(2) The aggregate of consecutive terms for misdemeanors shall not exceed one (1) year.

The Trial Court thus lacked the authority to impose an aggregate sentence of more than one year for the two misdemeanor offenses. The sentence was also illegal in that it purported to run the misdemeanor sentences consecutively with the felony sentences. Howard v. State, 289 Ark. 587, 715 S.W.2d 440 (1986).

Mr. Moore’s sentence is modified to reduce the total sentence for the two misdemeanor theft convictions to one year to be served concurrently with the life and forty-year sentences.

3. Ark. Sup. Ct. R. 4-3 (h)

In accordance with Ark. Sup. Ct. R. 4-3(h), the record has been reviewed for erroneous rulings prejudicial to Mr. Moore, and none has been found.

Affirmed as modified.


author: Tom Glaze, Justice.

text:
    Damien BROWN v. STATE of Arkansas
    97-723
    954 S.W.2d 276
    Supreme Court of Arkansas
    Opinion delivered November 13, 1997

      William R. Simpson, Jr., Public Defender, by: Deborah R. Sailings, for appellant.

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

This is a companion case to Damien Brown v. State, 97-722., which is also being handed down today. Both cases involve Brown’s appeal from an interlocutory order where the circuit court denied a motion to transfer his case to juvenile court. Here, Brown was charged in circuit court with aggravated robbery and theft of property. He was nine days short of being eighteen years old when he allegedly committed the crimes, and had turned eighteen when his transfer motion was denied.

At Brown’s transfer hearing, Detective Jeff Norman testified that Brown had been identified as one of three subjects who entered a grocery store to steal money. One of the subjects had a gun and threatened to shoot the store employee if he did not open the cash register. Brown was identified as standing at the front door and telling the other two men to hurry. When the men were unable to open the cash register, they grabbed candy and cigarettes and fled. Norman further identified three prior juvenile orders, introduced into evidence, showing Brown had committed two thefts, battery in the third degree, and an aggravated robbery.

Brown also testified, confirming his age to be eighteen and admitting he had committed the prior crimes of theft, battery, and aggravated robbery. He also admitted to having violated probation. Detective Norman’s and Brown’s own testimony showed Brown had participated in serious offenses where violence was employed, and his prior history of criminal acts was sufficient for the circuit court to conclude a repetitive pattern of adjudicated offenses showing he was beyond rehabilitation. In sum, this evidence bore on all three of the factors that a circuit court must consider under Ark. Code Ann. § 9-27-318(e) (Supp. 1995), and it is more than sufficient to sustain the court’s ruling to deny Brown’s motion to transfer his charges to juvenile court. A factor not to be forgotten, too, is that Brown is now close to nineteen years old, and we have repeatedly held that young people over the age of eighteen can no longer be committed to the Division of Youth Services (DYS) for rehabilitation unless they are already committed at the time they turn eighteen. Brown had not been committed to DYS. See Ark. Code Ann. § 9-28-208(d) (Supp. 1995); Maddox v. State, 326 Ark. 515, 931 S.W.2d 438 (1996).

In conclusion, Brown contends the State’s evidence was “incompetent” because Detective Norman’s testimony was hearsay. His contention is meritless for several reasons. One, Brown never raised the issue below, so this court will not consider it on appeal. Lammers v. State, 324 Ark. 222, 920 S.W.2d 7 (1996). Two, Brown offered no objection to any part of Norman’s testimony, and this court has held that hearsay admitted without objection can constitute sufficient evidence to support the denial of a transfer motion. Sanders v. State, 326 Ark. 415, 932 S.W.2d 315 (1996). And three, Brown’s testimony alone sustains the trial court’s ruling because it validated that he is over eighteen years old, had a prior history of criminal acts, and had previously violated probation in juvenile court.

For the reasons above, we affirm.

       The full text of § 9-27-318(e) reads as follows:
      (e) In making the decision to retain jurisdiction or to transfer the case, the court shall consider the following factors:
      (1) The seriousness of the offense, and whether violence was employed by the juvenile in the commission of the offense;
      (2) Whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that a juvenile is beyond rehabilitation under existing rehabilitation programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts; and
      (3) The prior history, character traits, mental maturity, and any other factor which reflects upon the juvenile’s prospects for rehabilitation.


text:
    Larry JONES v. James D. PARRISH and Hope Parrish
    97-350
    954 S.W.2d 934
    Supreme Court of Arkansas
    Opinion delivered November 13, 1997

      Benson & Robinson, P.L.C., by: Jon Robinson, for appellant.

      Ray Hodnett and Jones Law Firm, by: Robert L. Jones III, for appellees.
   Tom Glaze, Justice.

Appellee James D. Parrish initiated this litigation, by suing Larry Jones, Jones’s Warehouse Sales grocery-store, and Eric Donald for negligence that caused injury to Parrish. The events leading to Parrish’s injuries began at Jones’s store where Donald and a friend, Timothy Branson, tried to purchase some groceries. When Donald presented a check with someone else’s name printed on it, Jones asked for identification, and while Jones was attempting to verify the check, Donald and Branson departed the store, got in Donald’s vehicle and drove away. Jones, who was an auxiliary police officer and auxiliary fireman for the City of Clarksville, saw the two men leave, so he got in his truck and followed them. From his truck, Jones called the police dispatcher, and told her that he was following two men in their vehicle because the men had just attempted to cash a forged check at Jones’s store. Sometime during Jones’s pursuit, Donald accelerated his car, and Jones responded in kind. While trying to keep Donald’s car in sight, Jones turned on his four-way flashers and a red bubble light which he kept in his truck, pursuant to his duties as an auxiliary fireman. Both vehicles were speeding. Jones was about one-quarter of a mile behind Donald’s car when it skidded out of control and collided with a Missouri Pacific Railroad vehicle. The Railroad vehicle in turn struck Parrish, who was standing nearby. Parrish was thrown twenty-five feet into the air before falling to the ground. Parrish brought this suit for injuries allegedly sustained and caused by Jones’s and Donald’s negligence.

This case was tried to a jury, which returned a verdict for Parrish in the amount of $150,000.00 and $5,000.00 for Parrish’s wife. The jury assigned Donald to be eighty percent at fault and Jones twenty percent at fault. Because a pretrial settlement had been entered between Jones’s business, Warehouse Sales, its insurance carrier (Argonaut Great Central Insurance Company), Timothy Branson, and Mr. and Mrs. Parrish, the trial court reduced the jury award, but not in accordance with Jones’s request. Since the Warehouse Sales’s insurance company paid $15,000.00 in settlement of the store’s possible liability, Jones claimed he should have received full credit in that amount against the amount he owed under the jury award. Instead, the trial court determined the $15,000.00 was to be divided equally between the Parrishes and Branson. Jones assigns this and two other errors he claims warrant reversal on appeal.

In his first argument, Jones urges the trial court erred in rejecting an interrogatory which he requested be given to the jury. That interrogatory was proffered during the trial court’s conferencing of jury instructions. While that conference is abstracted, the abstract skips parts of the record, making it difficult to determine what exactly took place. Thus, since we are affirming this case, the record has been definitively read to be sure the parties’ relevant objections and proffered documents are set forth.

In conferencing with counsel, the trial court first considered AMI Civ. 3d 306 which was based on Ark. Code Ann. § 12-9-303 (Repl. 1993), and reads as follows:

AMI CIVIL 3d, 306
When I use the word “fault” in these instructions, I mean negligence.
12-9-303 AUTHORITY OF OFFICERS
(a) An auxiliary law enforcement officer shall have the authority of a police officer as set forth by statutes of this state when the auxiliary law enforcement officer is performing an assigned duty and is under the direct supervision of a full-time certified law enforcement officer.
(b) When not performing an assigned duty and when not working under the direct supervision of a full-time certified law enforcement officer, an auxiliary law enforcement officer shall have no authority other than that of a private citizen.

Parrish objected to the court’s giving AMI Civ. 3d 306, stating the instruction was untimely. He also complained that AMI Civ. 3d 306 was misleading because Jones offered no instructions on the statutes generally referenced in AMI Civ. 3d 306. The trial court disagreed and overruled Parrish’s objection.

The next relevant matter raised was Jones’s proffer of a modified AMI Civ. 3d 911 instruction which provides as follows:

One issue you must decide is whether Larry Jones was acting as an auxiliary policeman at the time and place of the occurrence. If you find that Larry Jones was in the immediate pursuit of an actual and suspected law violator and was operating a red rotating emergency light on his vehicle which he was driving, then his vehicle may be considered an authorized emergency vehicle, and he was entitled to operate the vehicle in accordance with the following traffic laws applicable only to emergency vehicles:
(a) Relieved of the obligation to obey speed limits, and
(d) Emergency vehicles have the right of way over other vehicles.
It does not relieve Larry Jones of the duty to exercise ordinary care for the safety of others. It is for you to decide if Larry Jones was an auxiliary police officer and whether he was operating an authorized emergency vehicle.

After the trial court refused the foregoing modified instruction, Jones then proffered the following interrogatory:

Do you find by a preponderance of the evidence that Larry Jones was acting within the course and scope of his authority as an auxiliary police officer for the City of Clarksville at the time of the occurrence? Answer yes or no.

Parrish again objected, stating the interrogatory is an entirely new issue to be submitted to the jury upon which there has been no previous instruction offered. He continued that, even if the jury were to find that he was an auxiliary police officer, that did not give Jones the authority to exceed the speed limits because he was not in an authorized vehicle. The trial court sustained Parrish’s objection, saying, “I think that interrogatories number one through [five] that already have been agreed upon cover the situation.”

Although Jones offered no argument or explanation to the trial court below concerning why he believed he was entitled to the interrogatory above, he argues on appeal that, at the time of Donald’s accident, Jones, as an auxiliary police officer, was obeying a direct order from his supervisor, the city chief of police, to keep Donald’s car in sight. Based on giving an instruction and interrogatory, concerning whether Jones was acting as an auxiliary officer at the time of the accident, he submits the jury could have found he was not negligent.

We find the record confusing when comparing the argument at trial with the one Jones now puts forth. Adding to that confusion is the manner by which Jones frames his legal issue on appeal. In this respect, Jones solely attacks the trial court’s refusal to give his proffered interrogatory, but asks no reversal for the trial court’s failure to give his proffered instruction. While Jones acknowledges the trial court gave AMI Civ. 3d 306, which sets out the authority of auxiliary officers under § 12-9-303, he offers no argument why 306 was not sufficient to cover the theory of his case.

Moreover, assuming Jones is also challenging in this point for reversal the trial court’s refusal to give his modified 911 instruction, that proffered instruction raises other questions. One, Jones modified AMI Civ. 3d 911 by adding language such as “You must decide . . . whether Larry Jones was acting as an auxiliary policeman” and “if you find Larry Jones was in pursuit of [a] violator and was operating a red rotating emergency light on his vehicle . . . then his vehicle may be considered an authorized emergency vehicle The initial added language underscored in Jones’s 911 instruction is already covered in 306 which defines when an auxiliary officer shall and shall not have the authority of a police officer. Also, the other underscored, added language in Jones’s 911 instruction suggests Jones’s truck, when equipped with a red rotating light, could be an authorized vehicle; however, Jones cites no legal authority for this proposition. Rather, we point out that the existing AMI Civ. 3d 911 defines an emergency vehicle as being an ambulance, fire truck, or police car, and makes no mention of a police officer’s private vehicle.

While AMI Civ. 3d 911 ’s note on use and comment refer to Ark. Code Ann. §§ 27-37-202 (Repl. 1994) and 27-49-219(d) (Repl. 1994), which cover flashing lights on emergency vehicles and define “authorized emergency vehicle,” Jones made no mention of these statutes at trial when offering his modified 911 instruction. In defining “authorized emergency vehicle,” § 27-49-219(d) includes (1) motor vehicles equipped with blue rotating or flashing emergency lights used by governmental police agencies; (2) vehicles equipped with red rotating or flashing emergency fights owned and used by volunteer firefighters while engaged in official duties, and (3) vehicles equipped with amber flashing or rotating emergency or warning fights and owned by private individuals whose use is determined by the Commissioner of Motor Vehicles, in accordance with regulations to prevent abuses thereof, to be for extra hazardous service. (Emphasis added.) Although these statutory provisions do not appear to help Jones, Jones presents no other argument regarding how his truck could even be considered an authorized emergency vehicle as he asserts in his 911 instruction.

In sum, we reiterate that Jones failed to articulate his reason or cite any law to the trial court in support of the giving of AMI Civ. 3d 911, as modified. For these reasons alone we need not consider his argument on appeal.

We add, somewhat in the same vein, that a trial court need not give an instruction which needs explanation, modification, or qualification, but to the contrary, the instruction offered must be simple, impartial, and free from argument. Pineview Farms, Inc. v. Smith Harvestore, Inc., 298 Ark. 78, 765 S.W.2d 924 (1989). Here, as we have discussed, Jones’s proffered 911 instruction is confusing and is clearly not free from argument. "We conclude the trial court correctly rejected Jones’s modified 911 instruction.

Because Jones’s proffered interrogatory argument is dependent upon his 911 instruction, we hold the trial court was correct in refusing his interrogatory, as weE. Under Rule 49 of the Rules of CivE Procedure, the trial court has the discretion to submit to the jury written interrogatories upon one or more issues of fact. In this respect, we find no abuse of discretion in the trial court’s refusal here, especiaEy since Jones has never fuEy explained the trial court’s error in its finding that the five interrogatories that had been agreed upon were sufficient to cover the parties’ respective cases. Although there may have been another appropriate or possible instruction to warrant an interrogatory such as the one proffered by Jones, we hold no such clear and simple instruction was proffered in this case. Therefore, we affirm on this point.

Jones’s second point concerns whether the trial court violated Ark. Code Ann. § 16-64-115 (Repl. 1993) when, after the jury retired for deliberation, it answered the juror’s question, “Does Mr. Parrish have any future recourse in a court of law for the future wages if he loses his job after this ruling?” Over Jones’s objection, the trial court answered, “Not as far as this claim is concerned.”

Jones argued below, and now on appeal, that no testimony was presented as to what recourse Parrish might have in a court of law if he lost his job after this ruling, and the trial court’s answer was based on speculation and conjecture. He further argues that Parrish’s employer was not a party to the lawsuit, and if Parrish was terminated after this lawsuit, nothing prevented him from seeking recourse in court against his employer. Jones urges that because the trial court’s answer did not relate to evidence in the case, nor did the answer pertain to a question of law, the trial court abused its discretion in answering the jury’s question. We disagree.

Here, the trial court carefully worded its answer to correlate to the jury’s question, and, in doing so, limited its response so the jury would understand that Parrish had no future recourse as far as this claim is concerned. The law is well settled that the trial court has broad discretion to decide what information should be given to the jury. National Bank of Commerce v. HCA Health Services of Midwest, Inc., 304 Ark. 55, 800 S.W.2d 694 (1990); Dickerson Constr. Co., Inc. v. Dozier, 266 Ark. 345, 584 S.W.2d 36 (1979); Rose v. King, 170 Ark. 209, 279 S.W.2d 373 (1926). Here, Jones fails to show the trial court abused its discretion in giving the narrow and carefully worded response it made to the jury.

Jones’s last argument suggests the trial court erred when it failed to give him full credit for the $15,000.00 pretrial settlement amount his company, Warehouse Sales, paid for being dismissed from the lawsuit. Prior to trial, counsel for the Parrishes, Branson, Jones, and Warehouse Sales orally agreed that Warehouse Sales would pay $15,000.00 for the company’s release, but the Parrishes reserved their rights to continue against Jones, individually. Some confusion arose over exactly how the settlement amount would be credited.

After the jury verdict, but before judgment was entered, the Parrishes notified the trial court that the Warehouse Sales settlement amount was divided equally with $7,500.00 going to the Parrishes and $7,500.00 to Branson. Counsel for the Parrishes and Jones voiced opinions that they thought all $15,000.00 would be paid the Parrishes, but instead, the release signed by the Parrishes, their counsel, and Branson reflected the amount divided between Branson and the Parrishes. To confuse matters further, one counsel for the Parrishes later said, sometime during trial, that Branson was to receive compensation in the amount of $7,500.00. Consistent with that understanding, the text of the release read that the $15,000.00 amount was paid in compromise of the claims of the Parrishes and Branson against Warehouse Sales and its insurance carrier, Argonaut Great Central Insurance Company.

Of course, Jones asserts his belief that, at pretrial conference, all parties’ interests were represented by counsel and no specific mention was made that Branson should receive $7,500.00. Consequently, Jones lays claim to the full amount. However, because of the considerable confusion surrounding who was to be credited the settlement monies, we believe the trial court resolved this matter soundly. Since the liability exposure of Warehouse Sales and its insurance company was separate from Jones’s, those entities had a right to agree to limit and allocate their liability against the claims of the Parrishes and Branson in any manner they chose.

For the reasons hereinabove, we affirm the trial court’s rulings on all points.

       Parrish and his wife were plaintiffs in the lawsuit. For convenience, we in most instances refer to Parrish in the singular.

       Branson, Eric Donald’s passenger, was also injured in the accident and had a claim against Jones.

       In the text of his argument, Jones does recite his proffered modified AMI 911, and later generally cites authority for the proposition that it is error to refuse an instruction which is supported by the evidence.

       Jones argues on appeal that, as an auxiliary police officer, he was immune from suit, and if the trial court had received his interrogatory and the jury found him to be an auxiliary officer, he would have been shielded from liability. This argument was not ruled on below, so this court will not consider it on appeal. Lively v. Libbey Memorial Physical Medicine Ctr., Inc., 311 Ark. 41, 841 S.W.2d 609 (1992).