text:
    Samuel LANGFORD v. STATE of Arkansas
    CR 93-795
    877 S.W.2d 593
    Supreme Court of Arkansas
    Opinion delivered June 27, 1994

      Appellant, pro se.
    No response.
   Per Curiam.

Appellant Samuel Langford was found guilty of two counts of delivery of a controlled substance and sentenced to an aggregate term of imprisonment of 120 years. The judgment is on appeal to this court. Counsel for the appellant has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967) and our Rule 4-3(j)(1), contending that the appeal is wholly without merit.

Appellant was provided with a copy of the brief in accordance with Rule 4-3(j)(2) and advised by letter that pursuant to the rule, he was allowed to file within thirty days any points that he desired to raise on appeal. The return receipt on the letter advising appellant of his right to raise issues in the case indicates that the letter was received on May 10, 1994. On June 15, 1994, after the thirty-day period to file a pro se brief had elapsed, appellant tendered a pro se brief with a motion asking for an extension of time and permission to file the brief belatedly.

This court has consistently held that an extension of time to file a pro se brief in an Anders case, or permission to file to file the pro se brief belatedly, would not be granted absent a showing that the thirty days allowed by the rule was not sufficient See Reed v. State, 278 Ark. 404, 646 S.W.2d 6 (1983). As appellant gives no reason of any kind for his failure to tender the pro se brief in a timely manner, the motion is denied.

Motion denied.

       The Reed case refers to Supreme Court Rule 11(h) which was this court’s rule respecting cases filed pursuant to Anders until Rule 4-3(j) replaced il May 1, 1993. In all pertinent respects, Rule 4-3(j) is identical to Rule 11(h).


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Robert L. ROCKETT III, et al. v. STATE of Arkansas
    CR 94-578
    877 S.W.2d 593
    Supreme Court of Arkansas
    Opinion delivered June 27, 1994

      Joe Kelly Hardin, for appellant.
    No response.
   Per Curiam.

Appellants, Robert Rockett and Terrick Nooner, by their attorney Joe Kelly Hardin, have filed a motion for a Rule on the Clerk. The motion contends that the record in their trial was not timely filed, and the appellants should not be prejudiced, whether it was caused by clerical error or negligence of the appellants’ attorney. Their attorney does not admit fault or error in the delay of filing the record, and we deny the motion.

It is an attorney’s duty to file the record on time. In this case the record was late because an order of extension was not entered before the period for filing the record had expired. See Ark. R. App. P. 5. If the attorney will concede by affidavit that it was his fault that the record was not filed on time, or if other good cause is shown, then the motion will be granted. Harkness v. State, 264 Ark. 561, 572 S.W.2d 835 (1978).

Mr. Hardin is given 30 days from issuance of this order to respond. If no response is received within that time, the motion will be granted and a copy of an order granting the motion will be forwarded to the Professional Conduct Committee.


author: Jack Holt, Jr., Chief Justice.

text:
    Michael F. JOHNINSON v. STATE of Arkansas
    CR 93-1289
    878 S.W.2d 727
    Supreme Court of Arkansas
    Opinion delivered July 5, 1994

      William R. Simpson, Jr., Public Defender, by: Jerry J. Sailings, Deputy Public Defender, for appellant.

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

In this appeal from his conviction as a habitual offender on a second-degree murder charge, for which he received a forty-year sentence, the appellant, Michael F. Johninson, raises two points for reversal. He contends that the trial court erred in (1) prohibiting him from introducing expert testimony regarding the culture and dynamics of urban street gangs and (2) denying his motion for discovery of the State’s “gang files.” Neither point has merit, and we affirm the judgment.

Facts

Late in the afternoon of August 9, 1992, appellant Johninson and Frances Walton, a female companion, drove to the area near the intersection of Oak Street and 16th Street in Little Rock. Johninson intended to purchase some crack cocaine from either Michael Lairy or Michael Goins, two dealers in that vicinity from whom he had previously bought drugs. He spotted Lairy and motioned him to get into the car.

According to Johninson’s testimony, while he was waiting for Lairy, eighteen-year-old Sedrick Fowler and nineteen-year-old Marquis Bullock approached the vehicle on bicycles. Johninson stated that Fowler thrust his hand through the door window and displayed some drugs. The record indicates that, after Johninson told Fowler that “I want to see Michael Lairy,” some vulgar and heated words were exchanged. Meanwhile, Lairy got in the car, and Johninson drove him to the intersection of Oak Street and 15th Street.

Not satisfied with the offered drugs, Johninson turned to pull the front seat forward to let Lairy out of the back seat, when Fowler and Bullock again approached the car. After Lairy’s exit, Bullock struck Johninson on the side of the head. Testimony differed on whether the assailant hit Johninson with his fist or with a brick. Johninson testified that he was aware at the time that he was in a gang area controlled by the Oak Street Posse, a local organization reputedly affiliated with the Los Angeles-based Bloods, and that he had been informed that Fowler and Bullock were members of the gang. He also said that he was “thinking that these guys are fixing to take my life” and stated that Fowler was coming toward him with a shiny object in his hand.

As a result, Johninson reached for a gun and fired it from the open car window. The bullet struck Fowler in the chest and killed him. Bullock ran, several neighborhood youths began to come forward, and Johninson drove away. Some twenty-two days later, he was arrested by the police.

On September 14, 1992, the Prosecuting Attorney for the Sixth Judicial District filed an information charging Johninson with first-degree murder. In addition, the State sought sentencing enhancement on the basis that Johninson had been convicted of four or more felonies. The name “Johnson” had been used on the original information, and the prosecutor filed an amended information on November 20, 1992, correcting the spelling.

A jury trial was held on August 6 and 7, 1993. Johninson was convicted of second-degree murder, in violation of Ark. Code Ann. § 5-10-103 (Repl. 1993), and was sentenced as a habitual offender to forty years in the Arkansas Department of Correction. From that judgment, this appeal arises.

/. Expert testimony on street gangs

In his first point for reversal, Johninson argues that the trial court erred in refusing to allow Pulaski County Coroner Steve Nawojczyk to testify as an expert on urban street gangs. Both before and during the trial, the defense proffered Mr. Nawojczyk’s testimony regarding, in general, gang loyalty, gang territorial control, and gang violence for the purposes of casting doubt on the credibility of the testimony of certain witnesses associated with the Oak Street Posse and showing that Johninson reasonably believed that Fowler would have used physical force against him had he not shot the youth. The trial court found that the testimony was irrelevant and would have invaded the province of the jury.

The trial court has wide discretion in evidentiary matters. Jones v. State, 314 Ark. 289, 862 S.W.2d 242 (1993). The standard of review for a trial court’s ruling on the admissibility of expert testimony is abuse of discretion. Stewart v. State, 316 Ark. 153, 870 S.W.2d 752 (1994); Utley v. State, 308 Ark. 622, 826 S.W.2d 268 (1992). Expert testimony is admissible when it will aid the jury in understanding the evidence presented or in determining a fact in issue. Ark. R. Evid. 702 (1994); Harris v. State, 295 Ark. 456, 748 S.W.2d 666 (1988). An important consideration in deciding whether the testimony will aid the trier of fact is whether the subject is beyond the ability of a lay person to understand. Stewart v. State, supra.

During the past few years, the nationwide proliferation of street gangs has captured the attention of the popular media, academic observers, and the legal system. The structures of urban gang life have been and are continuing to be explored in a growing body of work that embraces various disciplines. Studies of juvenile gang subcultures have contributed to the creation of specialized fields of sociological and criminological inquiry, which, through expert witnesses, are gaining some recognition in the nation’s courts.

Indeed, other jurisdictions have been developing case law on the use of expert testimony on gangs. For instance, in United States v. Robinson, 978 F.2d 1554 (10th Cir. 1992), cited by Johninson, the Tenth Circuit Court of Appeals upheld the admissibility of the testimony of a police officer appearing as an expert witness that various blue items found in an apartment where a drug manufacturing operation was discovered, as well as the defendants’ blue outer clothing and underwear, led him to the conclusion that the defendants were members of the Crips gang. This evidence was used after the police investigation had been completed to explain the items found in the possession of the defendants, and the prosecution was subsequently able to connect gang membership to the uncontroverted evidence that the main purpose of the Crips was to traffic in crack cocaine. Significantly, the expert testimony focused on a single gang.

In another Tenth Circuit case, the testimony of a police detective who served as an expert witness was held admissible where he explained that the main purpose of the Black Mafia Crip Dawgs, a gang to which the defendant belonged, was to distribute cocaine and crack cocaine. United States v. Hartsfield, 976 F.2d 1349 (10th Cir. 1992). More generally, the Seventh Circuit Court of Appeals has recognized that evidence of gang membership has probative value under appropriate circumstances, such as the establishment of a joint criminal venture. United States v. Lewis, 910 F.2d 1367 (7th Cir. 1990).

This latter view echoes the holding in United States v. Abel, 469 U.S. 45, 49 (1984), the centerpiece of Johninson’s argument, where the United States Supreme Court declared that testimony by a fellow inmate showing that a defense witness and the defendant were both members of the same prison gang was “sufficiently probative” of the witness’s “possible bias” toward the defendant to warrant its admission into evidence. The Court observed that

The attributes of the Aryan Brotherhood — a secret prison sect sworn to perjury and self-protection — bore directly not only on the fact of bias but also on the source and strength of [the witness’s] bias. The tenets of this group showed that [the witness] had a powerful motive to slant his testimony towards [the defendant], or even commit perjury outright.

469 U.S. at 54. (Emphasis in original.) In upholding the District Court’s decision to admit the evidence of gang membership, the Supreme Court underscored the wide discretion accorded trial courts in determining the admissibility of evidence.

An Illinois appellate decision, In the Interest of C.L., 534 N.E.2d 1330 (Ill. App. 1 Dist. 1989), also cited by Johninson, has some bearing on the question of the reasonableness of his belief that he was in harm’s way. There, two youths were charged with aggravated assault against two other persons. One of the victims was allowed to testify that the colors yellow and black, worn by the two defendants, were the colors of the Vice Lords street gang. The issue on appeal turned on the construction of the statutory term “reasonable,” as employed in the Illinois Criminal Code of 1961, Ill. Rev. Stat. 1981, ch. 38, par. 12-1. The appellate court held that the victim’s knowledge of the gang colors was “relevant and admissible to show whether a reasonable person with that knowledge would have apprehended a battery from another who was wearing those colors, acting belligerently toward the person and a loved one and carrying a gun.” 534 N.E.2d at 1335.

Under the circumstances of the present case, the cases relied upon by Johninson (Abel, Robinson, and Interest of C.L.) and the other authorities cited above are of no assistance to the appellant. To begin with, there was never any dispute concerning Mr. Nawojczyk’s credentials as an expert witness on street gangs. The State’s objections centered on relevance, and even under United States v. Robinson, supra, where expert testimony was admitted to aid the jury in understanding the primary purpose of a specific gang, it is difficult to discern the relevance of the proffered expert testimony here. Yet by no means do we intend to suggest that expert testimony on youth gangs is inappropriate. To the contrary, when its relevance has been demonstrated, expert testimony on the membership, organization, purposes, and conduct of particular street gangs may be admissible, though not, of course, in this instance.

In the present case, Mr. Nawojczyk commented on the “fluid” nature of gangs in general, remarking that “[t]hey change.” He admitted that he had no personal knowledge of the membership of either Sedrick Fowler or Marquis Bullock in the Oak Street Posse. Mr. Nawojczyk was unable to offer testimony on any specific tenets of the Oak Street Posse relating to perjury or self-protection. Further, he was unable to provide specific information on the penalties imposed by the Oak Street Posse for acts of disloyalty.

The broad overview of the urban gang subculture that the prospective expert witness provided, therefore, had no direct, particular reference to the victim and his associate. It is worth noting that an expert witness was not required in Johninson’s central case, United States v. Abel, supra, to establish the “possible bias” of prosecution witnesses — only a fellow gang member — and it seems unlikely that Mr. Nawojczyk’s generalized testimony would have been of any more significant relevance to the question of bias in that situation than in the present case.

Where, in fact, possible bias was at issue here, expert testimony was unnecessary. The defense had ample opportunity to cross-examine the victim’s alleged fellow gang members. On cross-examination, Michael Lairy acknowledged that the “kids that been brought up in the neighborhood . . . help each other” to the extent of doing “[w]hatever it takes,” including hurting those who “diss” (show disrespect toward) or “jump” (attack) them. He conceded that his group of friends was known to the police as the Oak Street Posse. Marquis Bullock stated that he struck Johninson on the head with his fist (Johninson claims it was a blow with a brick) just before the shooting because Fowler, who had been “having, like, words” with Johninson, was angry, and “he was like a brother to me, and we just took up for each other.” Moreover, Officer Kenny Baer of the Little Rock Police Department testified that both Fowler and Bullock had informed him that they were members of the Oak Street Posse.

In sum, the jury had before it a concentrated statement of the “code of the streets,” not from Steve Nawojczyk — an outsider who had attained a measure of expertise in the subject — but from two avowed affiliates of a local group known by the name “Oak Street Posse” and a police officer who, unlike the expert, had actually known the victim and his friend. Obviously, the expert could have shed no greater light on witness credibility than the witnesses themselves. If there was any relevant aspect of gang behavior that might have posed an impediment to the jurors’ understanding, the witnesses provided the necessary clarification. As this court has long held, the determination of the credibility of witnesses is a function of the jury. Scroggins v. State, 312 Ark. 106, 848 S.W.2d 400 (1993). What would have amounted to expert testimony by Mr. Nawojczyk on witness credibility would have constituted an invasion of the jury’s province. See Utley v. State, supra. The trial court did not abuse its discretion by refusing to admit expert testimony on gang loyalty and witness bias.

Neither did the trial court abuse its discretion in refusing to admit the proffered expert testimony regarding the propensity of street gangs toward violence in order to demonstrate that Johninson had a reasonable belief that Sedrick Fowler was about to employ unlawful deadly force against him. The defense proceeded at trial under the defense of justification, which is a matter of intent and a question of fact for the jury. See Taylor v. State, 28 Ark. App. 146, 771 S.W.2d 318 (1989), citing Ringer v. State, 74 Ark. 262, 85 S.W. 410 (1905).

Although the Illinois decision cited earlier, In the Interest of C.L., supra, appears at first glance to have some relevance to the present situation, the case is readily distinguishable. There, the testimony concerning gang colors in relation to the reasonable belief of imminent harm came from one of the victims rather than from one of the assailants. In the present case, Johninson was able to testify at length about his state of mind at the time of the shooting. As mentioned before, Johninson stated that after he had been struck in the head with a brick by Bullock, he saw Fowler approaching him with what appeared to be a shiny object in his hand. He testified that he believed that Fowler and Bullock intended to “take my life.” He also averred that he knew that he was in gang territory; that Fowler, Bullock, and Lairy were members of a gang; that gang members had no respect for life; and that he was aware of what gang members were capable of doing. The jury had before it sufficient evidence from which it could draw its own conclusions with respect to Johninson’s defense of justification. Under the circumstances, an expert witness could have added nothing to Johninson’s first-person account.

When justification is offered as a defense, evidence of a victim’s violent character is relevant to the issue of which party was the aggressor and whether the accused reasonably believed himself to be in danger of suffering unlawful deadly force. Thompson v. State, 306 Ark. 193, 813 S.W.2d 249 (1991). Johninson had the right to introduce specific instances illustrative of Fowler’s violent character that were directed at him or that were within his knowledge. Id. He did so in referring to the shiny object that he claimed he saw in the victim’s hand. It would appear, however, that Johninson wished to use expert testimony on gang conduct in general in order to establish, inferentially, the violent character of Fowler in particular. Such an expansion of the methods of proving character is not contemplated by the language of Ark. R. Evid. 405.

To reiterate, the trial court did not abuse its discretion in refusing to admit expert testimony on urban street gangs.

II. Disclosure of “gang files

For his second point on appeal, Johninson contends that the trial court erred in refusing to order the prosecution to disclose its files concerning particular individuals and their suspected affiliation with area gangs. At a pretrial hearing on November 2, 1992, the defense made an oral motion requesting discovery of files maintained by the prosecutor’s office containing information on the suspected gang membership of certain individuals in order to show that “the majority of the witnesses in this case” belonged to the same gang. The trial court denied the motion on the basis that any such files constituted work product of the prosecuting attorney unrelated to the present case; that they did not comprise exculpatory material to which the defense was entitled; and that they consisted of information which the defense could gather on its own.

The motion was later made again and was again denied. In response to a renewed motion at the outset of the trial, the deputy prosecutor stated that although the prosecutor’s office maintained files on street gangs, it had no information “on these particular witnesses in this case, or the victim in this case.” In other words, the material that Johninson sought by discovery apparently did not exist. Hence, he could not have been prejudiced by the trial court’s denial of his motion.

Further, the prosecutor’s gang files were exempt from discovery as work product under Ark. R. Crim. P. 17.5(a) (1994), which provides:

Except as provided in Rule 17.1 (a)(i) [names and addresses of persons whom the prosecutor intends to call as witnesses] and (iv) [reports or statements of experts made in connection with the particular case], disclosure shall not be required of research or of records, correspondence, reports or memoranda to the extent that they contain the opinions, theories or conclusions of the prosecuting attorney or members of his staff or other state agents.

The defense in the present case had available to it the names of all of the witnesses to the killing and could have taken upon itself the investigation of the matter of gang affiliation. See, analogously, Turner v. State, 258 Ark. 425, 527 S.W.2d 580 (1975) (prosecutor’s investigation of prospective jurors held work product and subject to independent investigation by defense). A defendant in a criminal case cannot rely upon discovery as a substitute for his own investigation. Morris v. State, 302 Ark. 532, 792 S.W.2d 288 (1990); David v. State, 295 Ark. 131, 748 S.W.2d 117 (1988); Dumond v. State, 290 Ark. 595, 721 S.W.2d 663 (1986).

Johninson acknowledges that part of the gang information sought through discovery was revealed in Officer Baer’s testimony at trial that Fowler and Bullock had told him they were members of the Oak Street Posse. Even so, he argues, the information came too late to be of use in the defense preparation for trial. But, as counsel conceded in a colloquy with the trial court, the defense had been furnished with Officer Baer’s name prior to trial. Moreover, Officer Baer stated that defense counsel had not interviewed him about his testimony before the trial began. Johninson cannot complain now of untimely revelations.

In any event, Johninson already had access to the information he requested through his discovery motion. He testified himself that he knew Fowler, Bullock, and Lairy were gang members. Defense counsel stated in a hearing held on May 13, 1993, that he had lists which, though inadmissible, showed that “a number of these people are gang members.” The defense conducted extensive cross-examinations of State witnesses at trial. It is incumbent upon the appellant to demonstrate actual prejudice resulting from an asserted discovery violation. Morris v. State, supra. No prejudice has been shown.

Under Ark. R. Crim. P. 17.1(d) (1994):

Subject to the provisions of Rule 19.4 [concerning protective orders], the prosecuting attorney shall, promptly upon discovering the matter, disclose to defense counsel any material or information within his knowledge, possession, or control, which tends to negate the guilt of the defendant as to the offense charged or would tend to reduce the punishment therefor.

While the State is obliged by the rule to disclose to the defendant any exculpatory evidence, the prosecution should not be required to disclose information already in the possession of the defendant or obtainable through the exercise of reasonable diligence. See Jarrell v. Balkcom, 735 F.2d 1242 (11th Cir. 1984), cert. denied, 471 U.S. 1103 (1985); United States v. Prior, 546 F.2d 1254 (5th Cir. 1977).

The trial court did not err in refusing to order the prosecution to disclose its gang files to the defense.

Affirmed.

         See, e.g., Elijah Anderson, “The Code of the Streets,” 273 Atlantic Monthly 80-94 (May 1994); Alan C. Brantley, Andrew DiRosa, “Gangs: A National Perspective,” 63 FBI Law Enforcement Bulletin 1-6 (May 1994); Catherine H. Conly, Street Gangs: Current Knowledge and Strategies (National Institute of Justice, August 1993); Herbert C. Covey, Scott Menard, Robert J. Franzcse, Juvenile Gangs (Springfield, III.: Charles C. Thomas, 1992); Jeffrey Fagan, “The Social Organization of Drug Use and Drug Dealing among Urban Gangs,” 27 Criminology 633-69 (November 1989); John M. Hagedorn, “Gangs, Neighborhoods, and Public Policy,” 38 Social Problems 529-42 (November 1991); C. Ronald Huff, cd., Gangs in America (Newbury Park, Calif.: Sage Publications, 1990); Martín Sánchez Jankowski, Islands in the Streets: Gangs and American Urban Society (Berkeley: University of California Press, 1991); Richard G. Zcvitz, Susan R. Takata, “Mclropolitan Gang Influence and (he Emergence of Group Delinquency in a Regional Community,” 20 Journal of Criminal Justice 93-106 (1992).

       A good working definition of “gangs” appears in John E. Theuman, Annotation, Admissibility of Evidence of Accused’s Membership in Gang, 39 A.L.R.4th 775, 776 n. 1 (1985): “[G]roups of persons which are reputed to engage in unlawful or antisocial activity, and which have no conventionally recognizable political or social purpose.” The annotation also contains a useful collection of cases regarding testimony about membership in particular gangs. Throughout the article, relevance is emphasized as the critical factor with respect to admissibility.

       We note that, in its brief, the State made no effort to address the issues raised in — or even to acknowledge with citations — the Abel, Robinson, and Interest of C.L. decisions, which we have analyzed above, along with other relevant cases. The State chose to rely, instead, on general language in Arkansas cases dealing with expert testimony, e.g., Utley v. State, supra.

       The same point has been made by Catherine H. Conly in her report for the National Institute of Justice, where she wrote that “Considerable variation exists in gang membership, organization, involvement in crime, and the social contexts in which gangs thrive. . . . [G]angs cannot be stereotyped.” Street Gangs: Current Knowledge and Strategies, supra, at 5. Similarly, Covey, Menard, and Franzese stress “the wide variation in the nature of gangs and gang behavior.” Juvenile Gangs, supra, at ix.


author: Robert H. Dudley, Justice.

text:
    Billy PUTMAN, Appellant Georgia Putman, Garnishee v. Douglas SANDERS, Appellee
    94-301
    878 S.W.2d 407
    Supreme Court of Arkansas
    Opinion delivered July 5, 1994

      Robert E. Irwin, for appellant.

      Walters Law Firm, by: Michael Hamby, for appellee.
   Robert H. Dudley, Justice.

Douglas Sanders filed suit in municipal court and alleged that Billy Putman had damaged his rental house trailer. The municipal court awarded Sanders a judgment. Putman did not satisfy the judgment, and Sanders learned that a bank held a certificate of deposit in the name of Georgia Putman as trustee for Billy Putman. Sanders filed a garnishment action against the bank and sought a lien on the certificate of deposit. Testimony in the municipal court showed that the certificate was purchased with proceeds payable to Billy under his deceased father’s life insurance policy, but there was no testimony or instrument showing there was a restraint on alienation of the proceeds of the policy. The municipal court held the certificate of deposit was subject to garnishment.

Putman appealed to circuit court, and the circuit court reversed the ruling of the municipal court. The circuit court ruled that the life insurance proceeds had been placed in trust and were subject to spendthrift provisions which protected the certificate of deposit from garnishment. Sanders appealed to this court and argued that the circuit court erred in ruling the certificate of deposit was part of a spendthrift trust. We held that “a spendthrift trust can only be created by an express restraint on alienation,” and, since there was no showing of a restraint on alienation, the circuit court erred in holding the proceeds were protected in the garnishment action. Sanders v. Putman, 315 Ark. 251, 254, 866 S.W.2d 827, 829 (1993). Accordingly, we reversed.

We also remanded the case. It was necessary for us to remand the case to the circuit court in order to reinvest the circuit court with jurisdiction to hear the garnishment proceeding. When the circuit court again had jurisdiction, Putman attempted to put on evidence, for a second time, to establish a spendthrift trust. Sanders objected and argued that the issue of the existence of a spendthrift trust had been decided and had become law of the case. The circuit court ruled the spendthrift trust issue had been determined and entered an order affirming the initial judgment of the municipal court that the certificate of deposit was subject to garnishment. Putman appeals and argues that the trial court erred in refusing him a second chance to put on evidence of a spendthrift trust. We affirm the ruling of the circuit court.

It was necessary for us to remand the case, whether it was a general remand for retrial or a limited remand to pursue the garnishment. See Overton Constr. Co. v. First State Bank, 285 Ark. 361, 688 S.W.2d 268 (1985), for discussion of limited remand and general remand. This court’s earlier remand of this case was, in fact, a limited remand for the purpose of reinvesting the circuit court with jurisdiction to continue with the garnishment action. Thus, the trial court’s ruling in excluding additional evidence on the merits of the case was correct. See Earney v. Sharp, 312 Ark. 9, 846 S.W.2d 649 (1993).

Even if the remand had been a general remand we would still affirm the trial court. Appellant contends that our ordinary procedure in reversing judgments in law cases is to remand for another trial, rather than dismiss the cause of action. That is our general rule in damage actions, subject to certain exceptions. See, e.g., Little Rock Newspapers, Inc. v. Dodrill, 281 Ark. 25, 660 S.W.2d 933 (1983). However, even if this had been a damage action, rather than a garnishment action, which is a special statutory proceeding, see Travelodge Int’l, Inc. v. Handleman Nat’l Book Co., 288 Ark. 368, 705 S.W.2d 440 (1986), and even if it had been on general remand for a new trial, appellant’s abstract does not reflect any new pleadings, and his offer of proof does not show a restraint on alienation. In the first appeal we wrote: “The record fails to reflect the introduction into evidence of any will with a trust provision or any trust agreement whatever. Nor was the insurance policy in issue offered as evidence by either party.” Sanders, 315 Ark. at 254, 866 S.W.2d at 829. The proffer of evidence upon remand, an alleged unprobated will which was outside the time limit for probate, see Ark. Code Ann. § 28-40-103 (1987), would not show a restraint on alienation. Thus, even if this had been a damage suit and even if there had been a general remand, in which case the circuit court would have erred in refusing the evidence, it reached the right result because no valid restraint on alienation would have been shown.

Affirmed.


text:
    Ripple Wayne SUTTON v. STATE of Arkansas
    CR 94-17
    878 S.W.2d 748
    Supreme Court of Arkansas
    Opinion delivered July 5, 1994

      Val P. Price, for appellant.

      Winston Bryant, Att’y Gen., by: Joseph V. Svohoda, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant, Ripple Wayne Sutton, was convicted of the first degree murder of Lyle Boliou and of being a felon in possession of a weapon. He appealed, and we reversed because of the improper joinder of charges. Sutton v. State, 311 Ark. 435, 844 S.W.2d 350 (1993). Upon remand, the charges were severed, and he was tried on the first degree murder charge. He was again convicted, again appeals, and this time argues that the trial court erred in refusing to grant a directed verdict. The trial court correctly denied the motion for a directed verdict.

Appellant’s point is a challenge to the sufficiency of the evidence. See Friar v. State, 313 Ark. 253, 854 S.W.2d 318 (1993). When reviewing a challenge to the sufficiency of the evidence, we consider only the evidence that supports the verdict, in the light most favorable to the appellee, and affirm if the evidence is substantial. Crawford v. State, 309 Ark. 54, 827 S.W.2d 134 (1992). Under that standard, the facts are as follows.

Kathy Rigsbee testified that on the day of the murder she and appellant spent most of the day driving around in appellant’s car and drinking. In the afternoon they stopped at a liquor store to purchase something more to drink. Appellant went to the back of the store, and she saw him speak to some men. He returned to the car and said they were going to meet a man named Boliou. They met Boliou on a highway and followed him to a sandy road in an isolated area next to the St. Francis River in Greene County. The three of them sat in the bed of Boliou’s truck and drank tequila. Appellant told Boliou that Rigsbee gave “a real good back rub,” and Boliou took off his shirt and lay face down in the bed of the truck, apparently waiting for her to rub his back. Rigs-bee became apprehensive and started to get out of the back of the truck. As she was climbing out she heard one pistol shot soon followed by two more. As they were driving away, she noticed blood on appellant, asked if he had killed Boliou, and he responded affirmatively.

Rigsbee did not report the murder, and she denied knowledge of it when she was initially questioned by the police. She testified that she so acted out of fear of appellant.

There was other evidence to corroborate Rigsbee’s testimony. Freddie Siebert testified that he was at the liquor store when appellant and Boliou agreed to meet later that afternoon. Bernie Markum testified that he traded a .22 caliber pistol to appellant earlier in the year. The same pistol was found at the crime scene, and appellant’s fingerprint was found on the trigger guard. Four spent .22 caliber shell casings were found near Boliou’s corpse. A forensic pathologist testified that Boliou had been shot three times at close range in the back of the head, and a firearms examiner testified that the fragments removed from the body were .22 caliber bullets.

In contending that the evidence is insufficient, appellant points out inconsistencies in Rigsbee’s testimony, along with contradictory testimony from other witnesses. We have repeatedly written that it is the jury’s duty to weigh the evidence and to resolve contradictions and conflicts in the testimony. See Abdullah v. State, 301 Ark. 235, 785 S.W.2d 58 (1990). It is not the province of this court to reweigh the evidence. Rather, this court will determine only whether the evidence supporting the verdict is substantial. McClure v. State, 314 Ark. 35, 858 S.W.2d 103 (1993). Appellant also argues that motive for the murder was not proved, but it is settled that the State is not required to prove motive for first degree murder. Parker v. State, 290 Ark. 158, 717 S.W.2d 800 (1986).

The testimony of the witnesses, coupled with the physical evidence, when viewed in the light most favorable to the State, was substantial and was sufficient to support the conclusion that appellant purposely caused the death of Lyle Boliou. See Ark. Code Ann. § 5-10-102(b) (Repl. 1993).

Affirmed.


author: David Newbern, Justice.

text:
    Darlene EVANS v. STATE of Arkansas
    CR 93-1392
    879 S.W.2d 409
    Supreme Court of Arkansas
    Opinion delivered July 5, 1994

      Robert E. Irwin, for appellant.

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

The appellant, Darlene Evans, was charged with capital felony murder. She was tried by jury and convicted of the lesser included offense of murder in the first degree. She was sentenced to life imprisonment. Her sole point of appeal is that the Trial Court erred by overruling her motion for a directed verdict. We hold the evidence was sufficient to go to the jury on the question whether Ms. Evans, along with others, committed rape by deviate sexual activity and in the furtherance of rape caused the death of Pamela Smith.

On January 23, 1989, Preston Smith returned home from work. His wife, Pamela Smith, was not there, but lights were on as was the television, and their dog was locked in a bathroom, a measure they took to keep the dog from jumping on persons invited into their home. Mr. Smith went to the home of Virginia Wilson where he thought Ms. Smith might be baby sitting. When he discovered she was not there, he returned to his home and arrived at the same time as David Malick and a local police officer. David Malick was Ms. Wilson’s boyfriend and later her husband. Mr. Malick had informed the officer that Pamela Smith was missing.

Over the next four days police and volunteers searched woods, fields, and wetlands known as the “Atkins bottoms.” On January 27, 1989, Pamela’s body, nude except for two articles of clothing tied around her ankles, was found in a slough. The coroner estimated the body had been in the water less than twenty-four hours, but he was unable to gauge the exact time of death.

The cause of death was multiple stab wounds to the chest, buttocks, and neck. The jugular vein was severed. The Coroner also noted that Ms. Smith’s rectum had been penetrated by a foreign object.

Darlene Evans was arrested on June 5, 1992. She was charged with capital murder committed in furtherance of the rape of Pamela Smith. Also charged were Alfred Palmer, who is Ms. Evans’ grandfather, David Malick, her stepbrother, and Steven Holloway, her boyfriend.

A separate trial of Mr. Palmer resulted in a conviction which was reversed by this Court. Palmer v. State, 315 Ark. 696, 870 S.W.2d 385 (1994). Mr. Malick confessed to the murder of Pamela Smith and the subsequent murder of Virginia Wilson Malick as well as to a separate kidnapping offense. He was sentenced to life imprisonment without parole. He stated he was solely responsible for the murder of Pamela Smith.

Ms. Evans was tried on May 25, 1993. Witnesses testified to seeing Ms. Evans with Pamela Smith on the night Ms. Smith disappeared. Others told of Ms. Evans boasting of her participation in the rape and murder of Pamela Smith. The State also presented evidence that fibers from Ms. Smith’s clothes and strands of her hair were found in Mr. Palmer’s truck, which Ms. Evans frequently drove.

Ms. Evans moved for a directed verdict at the close of the State’s case-in-chief and at the close of all the evidence. The Trial Court denied the motions and allowed the evidence to go to the jury.

1. Sufficiency of the evidence

Ms. Evans submits that the evidence was insufficient. Her argument is based on assertions that the witnesses against her were not credible and the State did not produce testimony that she was seen with David Malick or Alfred Palmer when she was seen with Pamela Smith at the time Ms. Smith disappeared.

Arkansas Code Ann. § 5-10-101(a) (Repl. 1993) states in part that a person commits capital murder if:

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

Arkansas Code Ann. § 5-10-102(a) (Repl. 1993) states in part that a person commits murder in the first degree if:

(1) Acting alone or with one (1) or more other persons, he commits ... a felony, and in the furtherance of the felony ... he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life; or
(2) With the purpose of causing the death of another person, he causes the death of another person ....

Arkansas Code Ann. § 5-14-103 (Repl. 1993) provides, in part:

(a) A person commits rape if he engages in sexual intercourse or deviate sexual activity with another person:
(1) By forcible compulsion;
* * *
(b) Rape is a Class Y felony.

The jury heard testimony from which it could have determined that Ms. Evans admitted to her participation in the rape and murder of Pamela Smith. One witness testified that Ms. Evans admitted that she stabbed Pamela Smith. Another witness stated that Ms. Evans told him, “Well I’m not sorry I killed her. The bitch got what she deserved.” Finally, Nancy Pickens, who knew Ms. Evans on a social basis, testified that Ms. Evans told her that they stabbed Ms. Smith 23 times, raped her, and did worse things to her and then dumped her in the river.

Photographs introduced into evidence showed clearly that Ms. Smith’s anus had been penetrated violently by a foreign object. We have no hesitancy in concluding the evidence was sufficient to show that Ms. Smith had been raped by forcible deviate sexual activity as contemplated by § 5-14-103.

A motion for directed verdict is a challenge to the sufficiency of the evidence. Glick v. State, 275 Ark. 34, 627 S.W.2d 14 (1982); Moore v. State, 315 Ark. 131, 864 S.W.2d 863 (1993). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993). Substantial evidence is evidence that is of sufficient certainty and precision to compel a conclusion one way or another. Coleman v. State, 314 Ark. 143, 860 S.W.2d 747, (1993). In determining whether substantial evidence exists, we review the evidence in the light most favorable to the appellee. Id.

It is within the province of the jury to determine the credibility of the witnesses. See Henry v. State, 278 Ark. 478, 647 S.W.2d 419 (1983). Darlene Evans’ admission of active participation in the rape and murder of Pamela Smith, along with the evidence that Ms. Evans was seen with Ms. Smith on the night Ms. Smith disappeared, is sufficient to sustain the conviction.

2. Rule 4-3(h)

Pursuant to Ark. Sup. Ct. R. 4-3(h) the record has been examined for other objections and rulings adverse and prejudicial to the appellant, and none have been found.

Affirmed.


text:
    Bryson JACOBS v. STATE of Arkansas
    CR 93-1137
    878 S.W.2d 734
    Supreme Court of Arkansas
    Opinion delivered July 5, 1994

      Larry W. Horton, for appellant.

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

Bryson Jacobs appeals from convictions of two counts of delivery of a controlled substance, two counts of possession of a controlled substance with intent to deliver, possession of drug paraphernalia, and being a felon in possession of a firearm. He was sentenced to 116 years imprisonment and a $120,000 fine. Mr. Jacobs contends the Trial Court erred by (1) denying his motion for a directed verdict, (2) refusing to admit into evidence the deposition of co-defendant, Sharlene Wilson, which contained exculpatory statements, (3) refusing to suppress evidence obtained pursuant to a search warrant, (4) admitting the testimony of a witness not listed by the prosecution to testify, (5) instructing the jury on accomplice liability, and (6) denying motions for severance of the charges for trial and for a continuance. There was no reversible error, and the judgment is affirmed.

From the evidence presented, the jury could have concluded that Sharlene Wilson, who was Bryson Jacobs’ girlfriend, sold drugs from her home in Malvern. In November 1992 the Seventh Judicial District Drug Task force began investigating Ms. Wilson and, through a confidential informant, purchased drugs from her on three occasions.

The first purchase took place November 22, 1993, when Joann Potts, the confidential informant, went to Ms. Wilson’s .home to purchase marijuana. Ms. Wilson and Mr. Jacobs were present during the transaction. Ms. Wilson weighed the marijuana and sold it to Ms. Potts for $70. Mr. Jacobs made change for Ms. Potts’ $100 bill.

The next transaction occurred the following evening when Ms. Potts returned to Ms. Wilson’s home to purchase methamphetamine. Mr. Jacobs again was present during the transaction and told Ms. Potts the drugs were really potent “good stuff’ and not to use too much.

The final transaction took place December 30, 1992, when Ms. Potts phoned Ms. Wilson’s home to arrange another buy. Ms. Wilson was not at home, but Mr. Jacobs talked to Ms. Potts and told her there were drugs for sale. Ms. Potts called back and arranged a sale of marijuana with Ms. Wilson at a local convenience store parking lot.

Based on these transactions, the Drug Task Force obtained a warrant and searched Ms. Wilson’s home on December 31, 1992. During the search they arrested her and Mr. Jacobs and seized various quantities of marijuana and methamphetamine as well as syringes, a smoking pipe, and scales. Firearms also were found, including a pistol which was within Mr. Jacobs’ reach when the officers entered. Also several articles of men’s clothing and toiletries were found in a bedroom.

Ms. Wilson and Mr. Jacobs were charged with two counts of delivery of a controlled substance for the November 22 and 23 transactions. In a separate information, based on the evidence obtained in the search, they were charged with two counts of possession of a controlled substance with intent to deliver and possession of drug paraphernalia. Mr. Jacobs was additionally charged with being a felon in possession of a firearm. These charges formed the bases of Mr. Jacobs’ convictions for which he was tried separately from Ms. Wilson and from which he now appeals.

1. Directed verdict motion

A motion for a directed verdict is a challenge to the sufficiency of the evidence. Coleman v. State, 314 Ark. 143, 860 S.W.2d 747 (1993). The question on review is whether there was substantial evidence to support the verdict. Friar v. State, 313 Ark. 253, 854 S.W.2d 318 (1993). Substantial evidence is “evidence that is of sufficient certainty and precision to compel a conclusion one way or another, forcing or inducing the mind to pass beyond suspicion or conjecture.” Cigainero v. State, 310 Ark. 504, 838 S.W.2d 361 (1992). In determining whether substantial evidence exists, we review the evidence in a light most favorable to the appellee. Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990). Mr. Jacobs contends there was insufficient evidence for the jury to return a conviction on any of the charges against him.

a. Delivery of drugs

The evidence recited above showed he played a role in the two illegal drug transactions with which he was charged. According to Ark. Code Ann. § 5-2-403(a),

A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense, he:
(1) Solicits, advises, encourages, or coerces the other person to commit it; or
(2) Aids, agrees to aid, or attempts to aid the other person in planning or committing it;
*■ 4= *

Given Mr. Jacobs presence and his willingness to make change and comment on the quality of the drugs being purchased it is apparent he was aiding or attempting to aid in the consummation of the sales. The evidence thus was sufficient to show he was an accomplice of Ms. Wilson.

b. Possession of drugs, paraphernalia

With respect to the charges of possession of a controlled substance with intent to deliver and drug paraphernalia, Mr. Jacobs contends there was no evidence presented at trial linking him to any of the items seized at Ms. Wilson’s home.

Actual or physical possession is not required to prove guilt of possession of a controlled substance. Constructive possession is sufficient and can be implied when the controlled substance is in joint possession of the accused and another. Hendrickson v. State, 316 Ark. 182, 871 S.W.2d 362 (1994). Joint occupancy of a residence, though, is not sufficient by itself to establish joint possession. The State must show additional facts or circumstances indicating the accused had knowledge and control of the controlled substance. Bailey v. State, 307 Ark. 448, 821 S.W.2d 28 (1991).

• The evidence presented, when considered altogether, was sufficient for the jury to conclude Mr. Jacobs was in joint possession of the drugs and drug paraphernalia seized at Ms. Wilson’s home. The evidence indicated that Mr. Jacobs was a regular fixture at Wilson’s home. He was at the house each time Ms. Potts purchased drugs, as well as when the house was raided by the Drug Task Force. Drug Task Force officers further testified the truck Mr. Jacobs drove was consistently seen parked at Ms. Wilson’s home during their investigation. Further, the testimony of Drug Task Force officials and Joann Potts concerning Mr. Jacobs’ involvement with Ms. Wilson’s drug trade sufficiently proved that Mr. Jacobs had knowledge of the items found in Ms. Wilson’s home. The testimony that Mr. Jacobs had commented on the quality of the methamphetamine being sold and that he had, on one occasion, offered a marijuana cigarette to Ms. Potts sufficiently proved that he and Ms. Wilson had joint access and joint control of the contraband seized.

c. Possession of firearm

Mr. Jacobs’ argument that there was insufficient evidence to prove that he was a felon in possession of a firearm is not preserved for appeal. The trial was bifurcated, so the evidence introduced with respect to this charge was presented after the jury returned guilty verdicts on the other charges.

Mr. Jacobs did not renew his motion for a directed verdict on the firearm charge at the close of the evidence. We have consistently stated a defendant must renew his motion for directed verdict at the close of the evidence presented against him. See Coleman v. State, supra.

2. Admissibility of deposition

Mr. Jacobs attempted to introduce into evidence a deposition given by Sharlene Wilson. This deposition was a sworn statement recorded by a court reporter at Mr. Jacobs’ attorney’s office. At the time the statement was taken, Ms. Wilson was not represented by an attorney, and no one from the prosecutor’s office was present. Ms. Wilson stated that Mr. Jacobs was out of town when the first two drug transactions with Ms. Potts took place and that all the drugs seized belonged to her and not to Mr. Jacobs.

Ms. Wilson refused to testify at Mr. Jacobs’ trial, invoking her Fifth Amendment rights. Despite Ms. Wilson’s consequent “unavailability,” the Trial Court refused to admit the deposition, thus rejecting Mr. Jacobs’ argument that the deposition was admissible hearsay under either Ark. R. Evid. 804(b)(1) or 804(b)(3).

In reviewing a Trial Court’s ruling on the admissibility of evidence, we will not reverse absent an abuse of discretion. Sanders v. State, 305 Ark. 112, 805 S.W.2d 953 (1991).

Arkansas Rule of Evidence 804(b) provides that certain items of evidence are not excluded by the hearsay rule. One such item is former testimony described as follows in subsection (1):

Former testimony. Testimony given as a witness at another hearing of the same or different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

Rule 804(b)(3) makes a similar exception for a statement against interest. That subsection provides this definition:

Statement against interest. A statement which at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability or to render invalid a claim by him against another or to make him an object of hatred, ridicule, or disgrace, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offering to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

Based on these rules, it does not appear t.he Trial Court erred in its decision not to admit Ms. Wilson’s deposition. Considering Rule 804(h)(1), we note that Ms. Wilson’s statement was not made in compliance with the law. Arkansas R. Crim. P. 19 makes no provision for the taking of depositions in a criminal proceeding. Depositions in civil proceedings are taken pursuant to Ark. R. Civ. P. 27, which requires notice to adverse parties in a manner provided by Ark. R. Civ. P. 4. Even if there were some authority to permit this kind of discovery in a criminal proceeding by analogy to Ark. R. Civ. P. 27, we would have to reject this particular deposition in view of the lack of record notice to the prosecution.

With respect to Rule 804(b)(3), Mr. Jacobs offered the Trial Court no corroborating circumstances to. indicate the trustworthiness of Ms. Wilson’s statement. If the Trial Court had admitted the deposition, it would have given Mr. Jacobs the benefit of Ms. Wilson’s testimony while allowing her to invoke the Fifth Amendment to prevent any cross-examination by the State. That would be an unacceptable use of the Fifth Amendment because it would permit defendants to introduce unchallengeable exculpatory statements, and that would not be fair. See Harris v. State, 303 Ark. 233, 795 S.W.2d 55 (1990).

3. Suppression of items seized

Mr. Jacobs next argues the Trial Court erred by not suppressing the evidence against him obtained through the search warrant. Mr. Jacobs contends the warrant was obtained in violation of Ark. R. Crim. P. 13.1, that no return for the warrant was placed in the prosecutor’s file, and that there was no evidence presented linking him with any items seized at Ms. Wilson’s home. We have addressed in part Lb. of this opinion the evidence linking Mr. Jacobs to the items found and need not do so again.

a. Rule 13.1

Mr. Jacobs’ brief cites the part of Ark. R. Crim. P. 13.1(c), which states a judicial officer acting on an application for a search warrant may examine witnesses on oath and “shall make and keep a fair written summary of the proceedings and the testimony taken before him. . . .” Mr. Jacobs contends this provision was not complied with as the record does not indicate any sworn testimony was presented with the application for the search warrant.

Rule 13.1(b) makes it clear that a search warrant need not be based upon testimony taken before a judicial officer but may be based upon an affidavit presented to him or her as was done in this case. There was thus no testimony to be recorded, nor was there any need for such testimony to comply with the Rule.

b. Warrant return

Mr. Jacobs also argues no return of the search warrant was placed in the prosecutor’s file. The record does contain a return of the search warrant, signed and dated by the Trial Court within the time required on the face of the warrant. If the return was not in the prosecutor’s file, it should have been there. We note, however, that there was nothing to prevent Mr. Jacobs from inquiring, as a part of his preparation for the trial, as to the whereabouts of the return if it had been a matter of concern to him, and he has demonstrated no prejudice resulting from his inability to peruse the return prior to the trial. See Heard v. State, 316 Ark. 731, 876 S.W.2d 231 (1994).

4. Testimony of Roger Walls

Mr. Jacobs next argues the Trial Court erred in admitting the testimony of Roger Walls. Apparently in response to Mr. Jacobs’ attempt to prove he did not reside at Ms. Wilson’s home, and thus could not be shown to be in constructive possession of the contraband found there, Mr. Walls testified that when he searched Ms. Wilson’s home he found men’s toiletries and clothing in the bedroom. The toiletry items were so situated on night stands on either side of a bed as to lead him to conclude that a male person occupied the bedroom with Ms. Wilson.

Mr. Jacobs argues the testimony was inadmissible because Mr. Walls was present in the courtroom the first day of trial, in violation of Ark. R. Evid. 615, and that he was not listed as a witness by the State in accordance with Ark. R. Crim. P. 17.1.

a. Rule 615

Arkansas R. Evid. 615 allows a party to request the Trial Court to exclude witnesses from the courtroom so they cannot hear the testimony of other witnesses. Although Mr. Jacobs argues Mr. Walls’ testimony violates the Rule, the record does not indicate the Trial Court was requested to invoke the Rule on the first day of trial when Mr. Walls was present in the courtroom. The Rule thus provides no basis for exclusion of the testimony.

b. Rule 17.1

Arkansas R. Crim. R 17.1(a)(1) requires the State to notify a defendant of the names and addresses of its witnesses. Mr. Walls, who was a member of the drug task force which conducted the search of Ms. Wilson’s home, was not listed but was called by the State to testify in the rebuttal portion of its case. Unless the witness whose name is omitted from the State’s list is a true rebuttal witness, which Mr. Walls probably was not, such an omission is reversible error if it results in unfair prejudice to the accused. Birchett v. State, 289 Ark. 16, 708 S.W.2d 625 (1986).

Mr. Walls was present during the search of Ms. Wilson’s home, and his name appeared frequently in the prosecutor’s file to which Mr. Jacobs had access. Further, when the State informed the Trial Court of the substance of Mr. Walls’ testimony, Mr. Jacobs’ attorney responded, “This is just redundant testimony, Judge. They’ve already got that in.”

Lewis v. State, 309 Ark. 392, 831 S.W.2d 145 (1992), presented a similar situation. There, the names of the two witnesses who testified on behalf of the State were in the prosecutor’s file along with some 20 others. We said:

Lewis, though, has failed to show how he was prejudiced by any discovery lapses on the prosecutor’s part. From the reports delivered to Lewis in advance of trial, it was obvious that the crux of the state’s case would be the testimony of the investigating officer and the state chemist [the two who testified]. Failure to list these two witnesses on a separate prospective witness list did not prejudice the defense when the defense had access to their names and the reports, and the witnesses testified to matters in those reports. See Brooks v. State, 308 Ark. 660, 827 S.W.2d 119 (1992). This argument has no merit.

Not only was Mr. Walls’ participation in the search known to Mr. Jacobs through the prosecutor’s file, Mr. Jacobs’ counsel had examined Mr. Walls concerning the arrest of Mr. Jacobs during testimony presented in a pre-trial hearing. We thus cannot say any surprise or other unfair prejudice resulted from the State’s failure to list Mr. Walls as a witness, especially if Mr. Walls’ testimony was, as characterized by Mr. Jacobs’ counsel, merely redundant.

5.Jury instruction on accomplice liability

Mr. Jacobs next contends it was error for the Trial Court to instruct the jury on accomplice liability. He argues he was not charged as an accomplice and it violates his due process rights to convict him of a crime with which he was not charged. We rejected that argument in Parker v. State, 265 Ark. 315, 578 S.W.2d 206 (1979).

6.Motion to quash information

Mr. Jacobs next argues the Trial Court erred by not granting his motion to quash the information against him for two counts of delivery of a controlled substance. He contends the information was improperly based on the affidavit of John Garner, the supervisor of the Drug Task Force. Arkansas Code Ann. § 16-85-302 does not require that an information be accompanied by an affidavit. Mr. Jacobs cites no authority to support his argument, thus we see no reason to address it further. See Franklin v. State, 314 Ark. 329, 863 S.W.2d 268 (1993).

7.Motion to sever

Mr. Jacobs next argues the Trial Court erred by not granting his motion to sever the offenses against him. This issue is not preserved for appeal. Arkansas R. Crim. P. 22.1(b) requires a defendant to renew his motion for severance at the close of all evidence. The record indicates that at the close of trial Mr. Jacobs’ attorney stated, “I renew all motions, including motion for directed verdict.” This attempted renewal of motions, couched in such general terms, was insufficient. See Wynn v. State, 316 Ark. 414, 871 S.W.2d 593 (1994).

8. Motion for continuance

Mr. Jacobs argues the Trial Court erred by not granting his motion for a continuance sought upon learning the State failed to supply him with the list of items submitted to the State Crime Laboratory until just prior to trial. The State responded that the list was sent to Mr. Jacobs’ attorney the same day it was received by the prosecutor. The Trial Court concluded the delay did not unfairly prejudice Mr. Jacobs.

A Trial Court’s decision to deny a motion for a continuance will not be overturned absent an abuse of discretion. See Ark. R. Crim. P. 27.3; Golden v. State, 265 Ark. 99, 576 S.W.2d 955 (1979). An appellant must show prejudice before this Court will overturn the Trial Court’s decision. Burton v. State, 314 Ark. 317, 862 S.W.2d 252 (1993).

Mr. Jacobs argues, as he did to the Trial Court, there-were “items missing” on the crime laboratory report which might have been exculpatory. The Trial Court responded that he did not understand the objection and thus it was denied.

Mr. Jacobs does not suggest what the missing items might have been or how he was prejudiced by the introduction into evidence of items listed as having been analyzed by the State Crime Laboratory. We cannot say there was an abuse of discretion in the Trial Court’s decision not to grant the motion for a continuance.

Affirmed.


author: Tom Glaze, Justice.

text:
    FARM BUREAU INSURANCE COMPANY v. CASE CORPORATION, d/b/a J. I. Case Company, and Southwest Implement Company, Inc.
    93-1371
    878 S.W.2d 741
    Supreme Court of Arkansas
    Opinion delivered July 5, 1994
    [Rehearing denied September 12, 1994.]

      Ball, Barton & Hoffman, by: David Hoffman, for appellant.

      Gibson & Hashem, by: Hani W. Hashem, for appellee.
   Tom Glaze, Justice.

The facts giving rise to this litigation began with the accidental burning of a tractor which was manufactured by the appellee, Case Corporation, d/b/a J. I. Case Company. Marshall Ricky Sammons, a farmer residing in Desha County, purchased the tractor from appellee Southern Farm Implement Company, Inc. (Southern Farm) in July of 1991. The tractor was destroyed by fire four months later, having only been operated for 100 hours. Sammons filed a claim with his insurance carrier, Farm Bureau Insurance Company (Farm Bureau), which reimbursed Sammons the purchase price of the tractor, less his $50 deductible interest provided under his policy. A subrogation action was filed in Sammons’s name against Case, alleging causes of action for breach of warranty, strict liability, product liability and breach of contract. Case answered by general denial and filed a motion to substitute Farm Bureau as the real party in interest. Case’s motion was granted over Farm Bureau’s objection, and Farm Bureau was substituted for Sammons as the plaintiff. At trial, Case moved for a directed verdict as to Farm Bureau’s strict liability claim, which the trial court granted, but Farm Bureau’s other claims were submitted to the jury. The jury returned a verdict in Case’s favor, and Farm Bureau now brings this appeal, raising two main points for reversal. Farm Bureau argues that the court erred first when it substituted Farm Bureau as the real party in interest, and again when it granted a directed verdict in Case’s favor on the issue of strict liability.

Concerning the first point, Farm Bureau argues that it should have been allowed to continue to pursue its subrogation claims against Case in Sammons’s name. We agree with Farm Bureau that the court’s reliance on ARCP Rule 17 and Ark-Homa Foods, Inc. v. Ward, 251 Ark. 662, 473 S.W.2d 910 (1971), was erroneous. While it is true that Ark-Homa Foods supports the proposition that, under ARCP Rule 17, an insured who has been fully reimbursed for a loss by his insurer cannot maintain an action against the tort-feasor in his own name, the holding in that case is inapplicable to the facts here.

The general rule is that where an insurance company has only partially reimbursed an insured for his loss, the insured is the real party in interest and can maintain the action in his own name for the complete amount of his loss. McGeorge Contracting Co. v. Mizell, 216 Ark. 509, 226 S.W.2d 566 (1950). It is undisputed in the present case that Sammons was never reimbursed by Farm Bureau for the amount of his deductible. This court has held that where the insured has a deductible interest, he is the real party in interest and the action must be brought in his name for his own benefit. Page v. Scott, 263 Ark. 684, 686, 567 S.W.2d 101 (1978); Washington Fire & Marine Ins. Co. v. Hammett, 237 Ark. 954, 377 S.W.2d 811 (1964); see also Thompson v. Brown, 5 Ark. App. 111, 633 S.W.2d 382 (1982). The insured stands as trustee to the insurer as to any amount recovered; the insurer is not a necessary party. Id. Accordingly, the trial court committed reversible error in granting Case’s motion to substitute Farm Bureau as the real party in interest.

As its second point for reversal, Farm Bureau argues that the court erred in granting Case’s directed verdict on the issue of strict liability. Citing Berkeley Pump Co. v. Reed-Joseph Land Co., 279 Ark. 384, 653 S.W.2d 128 (1983), the trial court ruled strict liability was inapplicable because Sammons sustained damage only to the defective product (tractor), and no personal injury was involved.

Arkansas law regarding strict liability for supplying a defective product is found in Ark. Code Ann. § 4-86-102(a)(Repl. 1991), which provides as follows:

(a) A supplier of a product is subject to liability in damages for harm to a person or to property if:
(1) The supplier is engaged in the business of manufacturing, assembling, selling, leasing, or otherwise distributing the product;
(2) The product was supplied by him in a defective condition which rendered it unreasonably dangerous; and
(3) The defective condition was a proximate cause of the harm to person or property.

We considered this statute when deciding Blagg v. Fred Hunt Co., Inc., 272 Ark. 179, 612 S.W.2d 321 (1981). Blagg involved a strict liability claim against a house builder who sold the Blaggs a home in which the builder had installed a defective carpet and pad that contained formaldehyde which emitted fumes and a strong odor. Although the Blaggs only alleged a purely economic injury, the trial court ruled that the evidence of an unreasonably dangerous defect was sufficient to submit the strict liability claim to the jury. On appeal, this court affirmed the lower court’s ruling that a strict liability claim should go before the jury. The Blagg court reviewed tort law from other jurisdictions, and adopted the view expressed in Santor v. A & M Karagheusian, Inc, 44 N.J. 52, 207 A.2d 305 (1965), that the responsibility of the maker of an article should be no different where damage to the article sold or to other property of the consumer is involved. Id. The court concluded by stating the following:

We find no valid reason for holding that strict liability should not apply to property damage in a house sold by a builder-vendor.

Id. at 190.

In Berkeley Pump Co. (which the trial court here relied upon for its decision), this court acknowledged the rule and holding in Blagg that strict liability applies in a situation where the loss or damage alleged is purely economic and relates only to the defective product.

Recently the Eighth Circuit Court of Appeals rendered an opinion in which it discussed the applicability of thej strict liability doctrine in cases involving only an economic loss. In Alaskan Oil, Inc. v. Central Flying Service, 975 F.2d 553 (8th Cir. 1992), Alaskan Oil initiated an action in the United States District Court for the Eastern District of Arkansas in which it alleged that an aircraft it had purchased from Central Flying Service and G. W. Davis Construction Company had deteriorated so badly in one year that it was “economically unfeasible” to repair it. Alaskan Oil stated claims based on breach of warranty, fraud and strict liability. Although the jury returned a verdict for Central Flying Service and Davis on the breach of warranty and fraud claims, it found for Alaskan Oil on its strict liability claim. The Eighth Circuit upheld Alaskan Oil’s strict liability award on appeal.

In upholding Alaskan Oil’s award, the Eighth Circuit Court of appeals recognized that the majority of courts in the United States hold that a strict liability action cannot be successful if the only damages that occur are to the product itself. However, in applying our decisions in Blagg and Berkeley Pump Co., the Eighth Circuit correctly held that Arkansas permits recovery under strict liability when the only damages sustained are to the defective product. In this appeal, Case fails to offer convincing reason why we should reject the views this court fully discussed and adopted in the Blagg and Berkeley Pump cases.

Farm Bureau also argues that the trial court erred in directing a verdict because the evidence was insufficient to support Farm Bureau’s strict-liability claim. Again, we hold the trial court erred.

Farm Bureau had the burden of offering proof that the tractor sold by Case was not only in a “defective condition,” but was also “unreasonably dangerous.” Purina Mills, Inc. v. Askins, 317 Ark. 58, 875 S.W.2d 843 (1994). We have noted the difficult problems that arise when proof is presented by circumstantial evidence. Williams v. Smart Chevrolet Co., 292 Ark. 376, 730 S.W.2d 479 (1987). The Williams court stated that neither the mere fact of an accident, standing alone, nor the-fact that a product was found in a defective condition after an accident makes out a case that a product was defective. Id. However, the addition of other facts tending to show that the defect existed before the accident may make out a sufficient case. Id. In the absence of direct proof of a specific defect, it is sufficient if a plaintiff negates other possible causes of failure of the product not attributable to the defendant. Id.

In the instant case, Sammons testified that the tractor he bought had not. malfunctioned at any time prior to burning and that none of the lines or hoses leaked prior to the fire. Chris Anderson, who was driving the tractor when it caught fire, had told Sammons that the fire had started behind the electronic dash panel in an area through which the hydraulic lines ran.

Allen Pearlman, a mechanical engineer, stated that he could tell the fire originated at-the front of the tractor because the front was burned worse in that area. Pearlman found a separation in a brazed connection that was part of the power steering hydraulic piping, and, according to Pearlman, was designed to be a permanent connection. Pearlman testified that the brazing process is similar to welding and that the quality of the seal depended on, among other things, the manner in which the two pieces to be connected fit together before brazing. Pearlman said that he did not have any metallurgical testing of the parts performed because the area had been contaminated by the fire and the parts had been warped by the heat. Pearlman stated that in his opinion, the fitting could not have come loose absent a defect in the manufacturing or fabrication process. Pearlman thought that the separation of the fitting had progressed from a small hole from which a fine mist of fluid escaped to a total separation which emitted a stream of hydraulic fluid directly onto the heated turbo charger or exhaust manifold. Pearlman based his opinion that the coupling had separated before the fire on the fact that an identical fitting located about two inches away had not separated. According to Pearlman, either the turbo or manifold would have been hot enough to cause the escaping fluid to ignite. Pearlman stated that the turbo charger and exhaust manifold located in the tractor’s engine compartment can reach temperatures exceeding 700 degrees and that the flash point of the hydraulic fluid was 285 degrees. Pearlman indicated that the flash point of the mist would have been lower than a pure liquid form of the fluid. Pearlman also stated that the auto-ignition temperature of general purpose transmission fluid is about 1050 degrees. Pearlman also stated that the burn patterns on the separated coupling reflected a more direct exposure to fire fuel than would have been present had the coupling separated after the fire had already started. Pearlman finally related that he found no other condition or circumstance which could possibly have caused the fire.

Pearlman’s testimony that an identical connection two inches away had not separated tends to support his theory that the fitting that failed was defective before the accident. Farm Bureau was not required to offer direct proof of a specific defect. See Williams, 292 Ark. 376, 730 S.W.2d 479. There is no reasonable argument to be made that a tractor which suddenly catches fire during normal operation is not “unreasonably dangerous.” Pearlman’s testimony taken as a whole at least raised a reasonable inference that the fitting that separated was defective and that it caused the fire. In addition, other possible causes of the fire were eliminated by Chris Anderson, who said that he looked in the tractor’s engine compartment and saw no collected debris or cotton stalks and Allen Pearlman’s testimony that Pearlman’s examination of the tractor revealed no evidence of any electronic failure. In sum, we hold the issue of strict liability should have been submitted to the jury.

For the above reasons, we reverse and remand this cause for retrial.

       The decision in Berkeley was ultimately decided on the basis that the defective product was not unreasonably dangerous.

       Flash point is the temperature at which a liquid will ignite if exposed to an open fire source.

       Auto ignition temperature is the temperature at which a liquid will ignite without the introduction of an open flame source.

       Unreasonably dangerous is defined in the Restatement (Second) of Torts § 402A as requiring something heyond that contemplated by the ordinary and reasonable buyer, taking into account any special knowledge of the buyer concerning characteristics, propensities, risks, dangers, and proper and improper use of the product.


author: Donald L. Corbin, Justice. Robert H. Dudley,

text:
    Danny ROACH v. CONCORD BOAT CORP.
    94-40
    880 S.W.2d 305
    Supreme Court of Arkansas
    Opinion delivered July 5, 1994

      B. Dale West, for appellant.

      Rogers Cockrill, for appellee.
   Donald L. Corbin, Justice.

Appellant, Danny Roach, appeals a judgment of the Pulaski Chancery Court awarding him $560.00 damages associated with a boat he purchased from appellee, Concord Boat Corporation. The judgment also awarded appellee $86.60 on a counterclaim for repair services and ordered the serial number and model year changed on the boat. Appellee filed a cross-appeal, arguing the proof of damages was insufficient. We reverse and remand on direct appeal and on cross-appeal.

Appellant purchased what he thought was a 1991 model boat, motor and trailer from appellee on July 24, 1991. Appellant claims that during price negotiations, appellee’s vice-president, Fritz Hawkins, represented the boat to be a 1991 model boat. In June and July of 1992, appellant had the motor repaired and learned that 1991 parts would not fit the motor, although 1990 parts would fit. Appellant also learned the actual serial numbers on his boat indicated it was a 1990 model, not a 1991 model. Appellant alleged the discrepancy in serial numbers would prevent him from renewing the boat’s annual registration with the Department of Finance and Administration. Appellant tendered the boat back to appellee, but appellee refused to accept it.

Appellant then filed suit in Pulaski Chancery Court alleging fraud and claiming compensatory and punitive damages; appellant also alleged mistake and requested rescission of the contract and restitution of the purchase price. The chancellor did not make separate findings of fact and conclusions of law as contemplated in ARCP Rule 52(a). However, she did enter an order finding appellant had not proven fraud, but awarding him $560.00 in damages based on the difference in the list prices of a 1990 model and 1991 model. The order further directed that the model and serial numbers and registration be changed to reflect that the boat was a 1990 model. As his sole point for reversal, appellant contends the trial court erred in finding insufficient evidence of fraud. We agree with appellant’s argument and reverse and remand.

The tort of fraud, misrepresentation, or deceit consists of five elements which must be proven by a preponderance of the evidence: (1) a false representation of material fact; (2) knowledge that the representation is false or that there is insufficient evidence upon which to make the representation; (3) intent to induce action or inaction in reliance upon the representation; (4) justifiable reliance on the representation; and (5) damage suffered as a result of the reliance. Wheeler Motor Co. v. Roth, 315 Ark. 318, 867 S.W.2d 446 (1993). This court has held many times that there may be constructive fraud, or fraud in the law, even when there is a complete absence of any moral wrong or evil intention. See e.g., Cardiac Thoracic & Vascular Surgery, P.A. Profit Sharing Trust v. Bond, 310 Ark. 798, 840 S.W.2d 188 (1992). It is also well settled that representations are construed as fraudulent when they are made by someone who, unaware of their falsity, asserts them to be true. South County, Inc. v. First Western Loan Co., 315 Ark. 722, 871 S.W.2d 325 (1994); Bond, 310 Ark. 798, 840 S.W.2d 188. Thus, to rescind a contract based on fraud, it is not necessary that actual fraud exist, it is sufficient if constructive fraud exists. Id.

Although we review chancery cases de novo, we do not reverse a chancellor’s findings unless clearly erroneous. ARCP Rule 52(a); Milligan v. General Oil Co., 293 Ark. 401, 738 S.W.2d 404 (1987). In the present case, we must conclude the trial court was clearly erroneous in finding no fraud occurred. Appellant testified he did not bargain for a 1990 model boat and that because Mr. Hawkins told him it was a 1991 model, he thought he was buying a 1991 model. Appellant received a manufacturer’s certificate of origin from appellee stating a 1991 serial number and that the boat was a 1991 year model. After learning that 1991 parts would not fit his boat, appellant discovered the actual serial number on his boat was a 1990 serial number. Once notified of that fact, Mr. Hawkins testified that he retrieved the boat from the repair shop and updated the serial number.

Mr. Hawkins admitted that he represented the boat to be a 1991 model boat. He testified that the production order for appellant’s boat initially reflected the serial number to be CKL90636F990, but also reflected his handwritten note that the CKL90636F990 number was wrong and should be changed to CKL91636F991. Mr. Hawkins’s note on the production order explained that the need for the change was the result of the changeover in the model years from 1990 to 1991. Mr. Hawkins testified that one of their employees either simply made a mistake in imprinting the serial number on appellant’s boat or did not follow his handwritten note on the production order. Mr. Hawkins also testified that after learning of the discrepancy in serial numbers on the statement of origin and the boat, he wrote the Coast Guard requesting permission to change the serial number on appellant’s boat to CKL91636F991.

The foregoing proves constructive fraud by a preponderance of the evidence, and the chancellor’s finding to the contrary is clearly erroneous. In deferring to the chancellor’s superior position to judge the credibility of the witnesses and the evidence, we can only assume the chancellor did not find any intentional wrongdoing on appellee’s part and therefore did not find fraud existed. However, we cannot overlook the undisputed evidence that Mr. Hawkins represented the boat to be a 1991 model. Appellant’s boat simply could not have been a 1991 model as 1991 parts would not fit it. Moreover, the serial numbers on the boat did not indicate it was a 1991 model until appellee

retrieved the boat from the repair shop and changed them. The year model of the boat was misrepresented to appellant which amounts to a material misrepresentation upon which appellant justifiably relied to his detriment. See Wheeler Motor Co., 315 Ark. 318, 867 S.W.2d 446. In the absence of intentional wrongdoing, this amounts to constructive fraud, which was proved by a preponderance of the evidence. Accordingly, the chancellor’s finding that fraud had not been proven is reversed and remanded.

On cross-appeal, appellee contends appellant did not offer sufficient proof of damages. Appellant offered evidence that the manufacturer’s list price of a 1990 model boat was $13,200.00, and the manufacturer’s list price of a 1991 model boat was $13,760.00. Based on that evidence, the chancellor awarded appellant $560.00 in damages. Appellee cites Ark. Code Ann. § 4-2-714 (Repl. 1991) and contends the proper measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the boat accepted and the value of the boat if it had been as warranted. Appellee admits there was evidence of the value of the boat as it was warranted at the time and place of acceptance. However, appellee argues there was no evidence of the value of the boat that appellee actually accepted at the time and place of acceptance. In other words, appellee contends there was no evidence of the value of a 1990 model boat on the date of purchase, July 24, 1991; the only evidence concerning a 1990 model boat was the manufacturer’s list price for a new 1990 boat in 1990, not a new 1990 boat in 1991. Because appellant did not present specific proof of his damages, appellee contends the damages must be reversed.

We agree that the party claiming damages has the burden of proving those damages beyond speculation. Minerva Enterprises, Inc. v. Howlett, 308 Ark. 291, 824 S.W.2d 377 (1992). However, we do not agree that the Code’s remedy for breach of warranty as stated in section 4-2-714 is the only appropriate measure of damages for appellant as a buyer of goods. When both fraud and breach of contract are pled, the Code provides and this court has held, that a buyer may pursue but not recover both revocation of acceptance under the Code, sometimes referred to as common law equitable rescission with restitution, and damages for breach of warranty. Smith v. Walt Bennett Ford, Inc., 314 Ark. 591, 864 S.W.2d 817 (1993); Ark. Code Ann. §§ 4-2-711, -714 (Repl. 1991). Appellant was entitled to present evidence to support a recovery under both remedies and then elect between them. Id. In Walt Bennett Ford, 314 Ark. at 601-03, 864 S.W.2d at 826-28, we established guidelines for determining the appropriate affirmance or disaffirmance remedy, depending upon the fa6ts of each particular case. Because appellant offered evidence of both disaffirmance and affirmance remedies, we cannot conclude his proof of damages was insufficient. Therefore, we reverse and remand on cross-appeal.

Because appellant included a request for rescission in his complaint and presented evidence to support that claim, the equity court had jurisdiction of the fraud claim pursuant to the clean-up doctrine. Liles v. Liles, 289 Ark. 159, 711 S.W.2d 447 (1986). That does not mean, however, that the equity court must completely disregard equitable remedies in favor of legal remedies when acting pursuant to the clean-up doctrine. Smith v. Eastgate Properties, Inc., 312 Ark. 355, 849 S.W.2d 504 (1993). Although the usual practice is to conclude a case with only one trial, this court has remanded cases to equity courts for further proceedings, including the hearing of additional evidence, when justice demands. Wasp Oil, Inc. v. Arkansas Oil & Gas, Inc., 280 Ark. 420, 658 S.W.2d 397 (1983). Justice demands that we remand a case to equity for further proceedings when a party has suffered some damage, but the trial court’s award of damages was not supported by findings of fact or other explanation apparent to us on appeal. See id. Here, appellant proved constructive fraud by a preponderance of the evidence and is therefore entitled to a remedy. Due to the lack of explanation by the chancellor, we are unable to determine why she disregarded the available equitable remedies and awarded damages. Justice therefore demands that appellant’s case be reversed and remanded for the chancellor to make the requisite findings, and to receive additional evidence if necessary, to award appellant a proper remedy. Finally, we observe that because equity courts generally do not enforce penalties, when one proceeds in equity where he or she had an adequate remedy at law, he or she is held to have waived any right to punitive damages. Stolz v. Franklin, 258 Ark. 999, 531 S.W.2d 1 (1975). Thus, the chancellor did not err in refusing to award punitive damages.

The judgment is reversed and remanded on both direct appeal and cross-appeal for findings and conclusions consistent with this opinion.

Holt, C.J., and Dudley and Newbern, JJ., dissent.

Robert H. Dudley,

dissenting. Plaintiff, Danny Roach, filed suit in chancery court against defendant, Concord Boat Corporation. Plaintiff’s complaint contained counts alleging deceit and mistake. Defendant did not file a motion asking that plaintiff be required to elect between the inconsistent remedies for these causes of action, rather it filed a counterclaim for an account stated, an action cognizable at law. The chancellor did not rule on the mistake count asking for rescission, but ruled on plaintiff’s deceit count asking for damages and the defendant’s counterclaim. The majority opinion reverses on both direct appeal and cross-appeal on matters cognizable at law and remands to chancery court for a new trial on those law matters. I dissent.

I.

Plaintiff’s complaint contained counts for inconsistent, or repugnant, remedies. In the first count, the deceit count, he sought to treat the contract as binding and fully in force and asked for both compensatory and punitive damages for the deceit that caused him to enter into the binding contract for the purchase of the boat. However, in the second count, the rescission count, he contended that due to a “mistake of material fact” he was “entitled to rescission of the contract for sale of the boat, and return of the purchase price plus interest.” In the first count, he sought damages as a result being tortiously induced to enter a binding contract, and in the second count he sought to rescind the contract and the return of his consideration. He sought a double redress for a single wrong. It is well settled that a purchaser must elect between inconsistent, or repugnant, remedies. A case in point is Eastburn v. Galyen, 229 Ark. 70, 313 S.W.2d 794 (1958). In that case, Eastburn purchased a cheese plant from Galyen. In discussing Eastburn’s options, we wrote that he had a choice of one of two inconsistent remedies:

One was to accept title to the cheese plant and sue Galyen for the damage he had been caused by the alleged misrepresentations. The other remedy called for a rejection of title to the property, and a petition for recision of the sale and a refund of the purchase money which had been paid. When Eastburn elected to pursue the latter remedy, he was thereby precluded from later resorting to former remedy. All the essential conditions or elements applicable to the rule relating to election of remedies are present in this particular case: (a) Both remedies were available to appellants, (b) they are inconsistent, (c) they are based on the same state of facts, (d) the same parties were involved in both suits, and (e) appellants were not mistaken as to the existence of any material facts.
In the case of Bigger v. Glass, 226 Ark. 466, 290 S.W.2d 641, the Court approved, and commented on, three essential elements: (1) The existence of two or more remedies, (2) the inconsistency between such remedies, and (3) a choice of one of them.

Eastburn, 229 Ark. at 71, 313 S.W.2d at 795.

The requirement of election of inconsistent remedies is a prohibition against more than one recovery on inconsistent remedies. Westark Specialties, Inc. v. Stouffer Family Ltd. Partnership, 310 Ark. 225, 232, 836 S.W.2d 354, 357 (1992). It is not a requirement that a plaintiff plead only one cause of action, and it is not applicable to counts involving consistent remedies. A plaintiff may pursue as many consistent, or concurrent, or cumulative remedies as exist, but he may have only one satisfaction of the debt. See Davis v. Lawhon, 186 Ark. 51, 52 S.W.2d 887 (1932), for a list of cases to that time so holding. As an example of consistent or concurrent remedies, in the case at bar, the plaintiff in count one, the deceit count, sought damages for the tort of deceit and breach of contract, and such was entirely proper as they are consistent with a remedy for a binding contract.

II.

Circuit court has subject matter jurisdiction of all actions for redress of civil wrongs except when exclusive jurisdiction is given to some other court. Ark. Const, art. 7, § 11 & Ark. Code Ann. § 16-13-201 (Repl. 1994). Jurisdiction of tort actions has never been given to chancery court by the General Assembly. Count one of the complaint is labeled in the majority opinion as being for the “tort of fraud, misrepresentation, or deceit.” Historically, the action has,-been labeled the tort of deceit. See MFA Mutual Ins. Co. v. Keller, 274 Ark. 281, 623 S.W.2d 841 (1981), for discussion of the history of the tort. The cquse of action has always been cognizable in a court of law. See Bagley v. Shoppach, 43 Ark. 375 (1884); Wheeler Motor Co. v. Roth, 315 Ark. 318, 867 S.W.2d 446 (1993), but see Nicholson v. Century 21, 307 Ark. 161, 818 S.W.2d 254 (1991), which was most likely based on the equitable remedy of indemnity. Thus, circuit court has subject matter jurisdiction of the cause of action for deceit.

The counterclaim of the defendant is for recovery on an uncomplicated account stated. Equity has no jurisdiction of an account action when the account is not complicated and difficult. Arkadelphia Milling Co. v. Barker, 109 Ark. 171, 159 S.W. 208 (1913). Thus, the circuit court had subject matter jurisdiction of the cause of action for the tort of deceit and the account stated.

On the other hand, chancery court has subject matter jurisdiction of actions for equitable rescission. Smith v. Walt Bennett Ford, Inc., 314 Ark. 591, 864 S.W.2d 817 (1993). Thus, subject matter jurisdiction of plaintiff’s second count was in chancery court.

III.

The majority opinion provides that because plaintiff “included a request for rescission in his complaint and presented evidence to support that claim, the equity court had jurisdiction of the fraud claim pursuant to the clean-up doctrine. Liles v. Liles, 289 Ark. 159, 711 S.W.2d 447 (1986).”

Liles does not support the statement in majority opinion. Rather, it provides that chancery court has jurisdiction over tort claims only when they are “incidental for the purpose of exercising the clean-up doctrine.” Id. at 174. In the case at bar, the deceit action is not incidental to the rescission action. Instead, it is inconsistent with the rescission action. The equitable remedy of rescission cannot logically give rise to the inconsistent remedy of deceit. There is no nexus whatsoever. An inconsistent remedy cannot logically give rise to the clean-up doctrine.

IV.

Chancery court had subject matter jurisdiction of the count for rescission that alleged mistake. Circuit court had subject matter jurisdiction of the count for deceit that asked for damages. The issue is whether the plaintiff made an election of remedies when he filed the counts for inconsistent remedies in chancery court. There are no cases in point, but one is close, and its reasoning gives guidance. In Belding v. Whittington, 154 Ark. 561, 243 S.W. 808 (1922), Belding agreed to sell the Plateau Hotel in Hot Springs to Whittington and Wootton. Belding sued Whittington, Wootton, and Wootton’s wife in circuit court and alleged that Whittington and Wootton had refused to pay the remainder of the purchase price and that they and Wootton’s wife had sold the hotel to a third party. Belding alleged a breach of the contract and asked the circuit court to award damages for the breach of contract. Belding subsequently dismissed the circuit court suit without prejudice. He then filed a suit in chancery court and asked for specific performance of the contract. With regard to inconsistent remedies, we said:

An action at law for damages growing out of an alleged breach of contract for failure to execute a deed is inconsistent with an action in equity seeking to have the contract specifically performed by having the deed executed. One cannot maintain an action at law for damages growing out of an alleged breach of contract in failing to execute a deed and at the same time maintain an independent action in equity to require the same party to perform the contract by executing the deed.

Belding, 154 Ark at 565-66, 243 S.W. at 809.

We affirmed the chancery court’s dismissal of the action because Belding had first filed the suit in circuit court and it had subject matter jurisdiction of the case. We said it did not matter that he had dismissed the circuit court suit. In so holding we wrote:

We are aware that many very able courts hold that the mere bringing of an action which has been dismissed before judgment, and where no advantage has been gained by the party bringing the same, or no detriment has been occasioned to the party against whom the same is brought, is no election. See cases cited in Connihan v. Thompson, 111 Mass. 370; Otto v. Young, 227 Mo. 193; and other cases cited in brief of learned counsel for appellant. But there is-also excellent authority to the contrary. See cases cited in 9 R.C.L. 260, notes 1 and 5.
The doctrine of our own court is in accord with the view that where there has once been an election between alternative and inconsistent remedies not occasioned by a mistake or ignorance or material facts, but as the result of a deliberate choice of election between the two, the party making such choice cannot afterwards recant, dismiss his pending action and invoke another remedy in the same or a different forum, even though no positive disadvantage or injury has resulted to the other party. We believe the better reason is to hold one to a deliberate choice once made between inconsistent remedies, where that choice involves nothing more than the determination by the party as to which of two remedies will best subserve his purpose. Certainly this doctrine has the merit of preventing one who is about to hale another into court from making a capricious choice between inconsistent remedies which he may pursue. Because he knows that whatever course he elects to pursue he will not thereafter be allowed to shift his ground, unless he can show that his election was based upon a mistake of material facts. No such showing is presented by the facts of this record.

Belding, 154 Ark. at 568, 243 S.W. at 810.

In the case at bar, the plaintiff, Roach, filed the two counts asking for inconsistent remedies in chancery court. Chancery court had subject matter jurisdiction only of the mistake count requesting rescission. Under the reasoning of Belding, the plaintiff, in filing the action in a court with subject matter jurisdiction of the first count, the rescission count, made an election to pursue the rescission action in chancery court. The defendant answered in that court and “should not be haled into another court” to try a deceit case. Equity will have jurisdiction of the counterclaim for the account stated under the clean-up doctrine.

V.

The majority opinion reverses this case on both direct and cross-appeal on the merits and remands for another trial on the inconsistent counts in chancery court. Such reasoning defies logic. Under our cases, the plaintiff-appellant has elected to pursue the rescission count, but the chancellor did not rule on that count. The case should be remanded for a hearing on the rescission count, and, under the clean-up doctrine, the chancery court has jurisdiction of defendant’s counterclaim. The chancellor should also be made aware that the remedy of rescission can include indemnity.

For the reasons set out, I dissent.

Holt, C.J., and Newbern, J., join in this dissent.