text:
    Jeffery MOSIER v. STATE of Arkansas
    CR 84-148
    684 S.W.2d 810
    Supreme Court of Arkansas
    Opinion delivered February 25, 1985

      James H. Phillips, for appellant.

      Steve Clark, Att’y Gen., by: Clint E. Miller, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant, Jeffery Mosier, was found guilty of an aggravated robbery, rape, and theft of property. We need not state the proof in detail because the sufficiency of the evidence to support the convictions is not questioned. Mosier contends the trial court erroneously refused to give his requested instructions on the defense of voluntary intoxication and erroneously refused to grant a mistrial when a recording of appellant’s confession contained references to other criminal activity. We find no reversible error and affirm the convictions. Jurisdiction is in this Court under Rule 29(l)(b) because a cumulative sentence of more than 30 years imprisonment has been imposed.

The trial court correctly refused to give the requested instruction on voluntary intoxication as a defense because the proposed instruction gave contradictory burdens of proof and would have misled the jury. On the one hand, it provided “In asserting the defense, he is required only to raise a reasonable doubt in your minds,” but on the other hand, it would have told the jury “[appellant] has the burden of proving an affirmative defense by a preponderance of the evidence.” There was no error in refusing to give an instruction which would have misled the jury.

We are aware that some confusion surrounds the defense of voluntary intoxication. See Liebman, Voluntary Intoxication as a Defense to Crime, Ark. L. Notes 29 (1983). We may choose to re-examine our position when we have adversary briefs on the subject.

Appellant next argues that the trial court erred in refusing his motion for a mistrial. One of the state’s witnesses, a police officer, played appellant’s recorded inculpatory statement, in which appellant admitted to the unrelated wrong of “hanging around and dealing with some fellows that’s selling and buying stolen property” and to attempting to avoid trial on unrelated burglary and theft charges. At the time of playing of the statement, the appellant did not object to this evidence of other wrongs or crimes. See Rule 404(b) Ark. Unif. Rules of Evid. Then, toward the end of the tape, the appellant finally objected to the evidence of other wrongs which had long been before the jury.

The trial judge ruled that the objection was well taken, although too late, and ordered the objectionable part of the tape deleted before he admitted the tape into evidence, and ordered the police officer to read the balance of the statement from a transcript. After that, the appellant moved for a mistrial. His counsel admitted he had earlier read the transcript of the statement, and that he knew it contained the evidence of other wrongs. Yet, he did not make a timely objection. The trial judge ruled that the motion for a mistrial was not timely. We agree. The trial judge may well have thought that the failure to object to the evidence in the statement and then later moving for a mistrial on the basis of that same unobjected-to evidence, was a deliberate trial tactic, for two reasons. First, most of the evidence was already before the jury, without objection, by another witness. Second, appellant’s counsel indicated that his strategy was to let the jury know that his client had associated with criminals and, because of his fears of them and not for the purpose of committing a robbery, he was carrying a pistol. The trial court is granted a wide latitude of discretion in granting or denying a motion for mistrial,, and this court will not reverse except for an abuse of that discretion or manifest prejudice to the complaining party. Berry v. State, 278 Ark. 578, 647 S.W.2d 453 (1983). A trial judge does not abuse his great discretion in granting or refusing a motion for mistrial where counsel appears, as a matter of trial strategy, to have allowed testimony into evidence without objection, and then later moves for a mistrial on the basis of that same evidence.

Affirmed.


source: Caselaw Access Project

author: Robert H. Dudley, Justice.

license: Public Domain

text:
    Calvin Gene GIRDNER v. STATE of Arkansas CITY OF KENSETT
    CR 84-169
    684 S.W.2d 808
    Supreme Court of Arkansas
    Opinion delivered February 25, 1985

      F.W. Jeff coat for appellant.

      Steve Clark, Att’y Gen., by: Marci L. Talbot, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

In a non-jury trial Girdner was convicted of DWI, second offense, and was sentenced to one year imprisonment, a $1,000 fine, and revocation of his drivers license for one year. His appeal comes before us under Rule 29(1 )(c) as one of the series of cases in which we construe and interpret the Omnibus DWI Act of 1983, Ark. Stat.'Ann. § 75-2501 — § 75-2514 (Supp. 1983) We affirm the judgment.

In his first argument for reversal Girdner contends that the breathalyzer test results should not have been admitted into evidence because the breath test administrator failed to observe him for twenty minutes. There was testimony that the arresting officer, together with the breath test administrator, observed the appellant for 20 minutes and that he did not ingest anything during the period. The result of the test was properly received in evidence. Williford v. State, 284 Ark. 449, 683 S.W.2d 228 (1985).

Girdner argues that the test result should be inadmissible because he asked for another blood test but was refused one. See Ark. Stat. Ann. §75-1045(c)(3) (Supp. 1983); Williford v. State, supra. The two police officers disputed Girdner’s testimony and denied that he asked for an additional test. Their testimony constituted substantial evidence from which the trial judge could have concluded that Girdner did not ask for a different test. It is for the trial court, not the appellate court, to weigh the evidence and resolve the credibility of the witnesses. Abdullah v. State, 281 Ark. 239, 663 S.W.2d 166 (1984).

Girdner next contends that the act is unconstitutional because it allows the police officer, rather than the prosecuting attorney or grand jury, to file the misdemeanor charge. There is no merit in the argument in this misdemeanor case. Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984); reh’g. den. 283 Ark. 434, 681 S.W.2d 395 (1984); Sparrow v. State, 284 Ark. 396, 683 S.W.2d 218 (1985); Southern v. State, 284 Ark. 572, 683 S.W.2d 933 (1985).

Girdner next argues that the act is unconstitutional because a machine, rather than a trier of fact, convicted him. Thus, he argues, without citation of authority, that he has lost his constitutional right to trial by a jury of his peers. The argument is without merit because appellant’s basic premise that the machine convicted him is fallacious. Although Ark. Stat. Ann. § 75-2503(b) (Supp. 1983) provides that it is unlawful to operate a motor vehicle if there is a blood alcohol level of .10% as determined by a chemical test, the statute only defines the level of blood alcohol content at which a person is prohibited from driving. It is still up to the jury to determine whether the person was operating a motor vehicle and whether his blood alcohol content was in fact .10% or more. Lovell v. State, supra.

Affirmed.


author: Steele Hays, Justice.

text:
    Geneva MAYER v. STATE of Arkansas
    CR 84-104
    685 S.W.2d 143
    Supreme Court of Arkansas
    Opinion delivered February 25, 1985

      Maddox & Miller, by: David Maddox, for appellant.

      Steve Clark, Att’y Gen., by: Michael F. Wheeler, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Geneva Mayer brings this appeal from a life sentence imposed upon a conviction of first degree murder of her eight month old daughter, Amy Gail Mayer. The child’s frozen body was discovered in a remote, wooded area on December 14, 1982. Three assignments of error are raised. We affirm the judgment.

After the jury was seated, but before any witness was called to testify, the defense prospectively objected to the production of any evidence tending to prove the death of Amy Gail Mayer, on the ground that the information fails to allege her death. Appellant submits the information fails to mention murder or that death had been caused by the accused and, thus, the information charged only child abuse or abandonment.

Admittedly, the wording of the information fails to state that appellant caused the death of Amy Gail Mayer.A part of the information reads:

The said accused on the 13th day of December, 1982, did unlawfully: with the premeditated and deliberated purpose of causing the death of her eight month old child, Amy Gail Mayer, abandon the said child with the purpose of causing the death of said child. Same being a class Y felony.

Even so, there was never any doubt that murder, and not child abuse or neglect, was the charge and that being so, the accused was not misled nor her defense impaired. It is enough if the information sufficiently informs the defen-, dant of the charge or charges so that a defense can be prepared. Beard v. State, 269 Ark. 16, 598 S.W.2d 72 (1980). Here, it was the appellant who led officers to the lifeless body of her daughter soon after her disappearance. The information filed against her on December 17,1982 refers to murder in the first degree at one point and to the death of Amy Gail Mayer at another. Moreover, at plea and arraignment on December 20, 1982, the appellant and defense counsel were told the charge was first degree murder. Several days later appellant filed a motion for discovery which mentioned the charge against her as being first degree murder. Clearly, there was no misconception by the defense as to the specific charge being brought. We find no error in the ruling of the trial court on this point.

Appellant next contends the trial court was biased against her and she was thereby denied a fair trial. The argument mingles references to procedural and evidentiary rulings by the trial court. One instruction cited is the denial of a motion to recuse based upon the fact that during a bail hearing, the trial judge asked whether other charges might be filed against the defendant. While we have examined each point, we see no reason to deal with this argument item by item. In some instances there was not even an objection, in others, the ruling addressed the sound discretion of the trial judge. Suffice it to say we find no basis to conclude that the trial judge showed prejudice against the appellant. His inquiry about other charges was in connection with a hearing to determine whether a $25,000 bail was adequate, and was prompted no doubt because of news reports alluding to an investigation of an earlier fire in which two children of appellant died. We regard the inquiry by the trial court as to the possibility of other charges as entirely appropriate to the purpose of the hearing and it follows that no bias may be inferred from such a question.

The final point challenges the sufficiency of the evidence. The proof, while circumstantial, meets the test of substantiality. Evidence is said to be substantial if the jury could have reached its conclusion without having to resort to speculation or conjecture. Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982); Cassell v. State, 273 Ark. 59, 616 S.W.2d 485 (1981).

Geneva Mayer maintained throughout the case that her daughter was kidnapped. She said she and the child were at home alone on the afternoon of December 12, 1982. In the late afternoon, she went to the back yard for firewood. Returning to the house with an arm load of wood, she was grabbed from behind, her arm pinned behind her back. Two men wrestled her into a bedroom, tied her hands and feet with telephone wire and left her on the bed. As they were leaving, she heard one of the men say, “Get the baby.” Geneva Mayer managed to free her feet and reach a neighbor’s house, her hands still tied behind her.

There was testimony pro and con concerning one’s ability to tie his own hands behind his back, whether Mrs. Mayer demonstrated the degree of anguish expected in such cases, whether the arm load of wood showed evidence of being dropped or simply laid on the ground, and whether the amount of wood already in the house necessitated getting more wood.

Refuting Mrs. Mayer’s assertions that she had not left home prior to the attack, the state produced testimony that a car closely resembling the Mayer vehicle was seen in the early afternoon on that day on a road leading to the area where the infant was found. There was testimony from a hunter who saw a car of similar markings on a deadend road near where the child was found. The time was around 5:00 p.m. The driver was a woman.

The most telling evidence came from the appellant herself. Under her account of the kidnapping, she had no basis for knowing where her baby might be, yet she was able to lead officers to the exact, distant location, attributing this extraordinary perception to a dream or vision. We think it was for the jury to determine whether her knowledge was due to a divination of some kind, or to a more plausible explanation. We think the proof was sufficient. Chaviers v. State, 267 Ark. 7, 588 S.W.2d 434 (1979).

Finally, under A.R.Cr.P. Rule 36.24, and our Rule 11(f), we find the treatment of other objections of appellant’s which were overruled, as well as rulings adverse to appellant, do not constitute reversible error.

The judgment is affirmed.


author: Steele Hays, Judge.

text:
    Johnny Lee HILL v. STATE of Arkansas
    CR 84-149
    685 S.W.2d 495
    Supreme Court of Arkansas
    Opinion delivered February 25, 1985

      Gregory E. Bryant, for appellant.

      Steve Clark, Att’y Gen., by: Alice Ann Burns, Deputy Att’y Gen., for appellee.
   Steele Hays, Judge.

The appellant was charged and convicted on two counts of rape, two counts of aggravated robbery and two counts of kidnapping. He was convicted by a jury and received a total of 135 years. The appellant raises three issues on appeal, none of which have merit.

The charges stemmed from a criminal episode that occurred sometime shortly after midnight on August 15 1981. The three female victims were accosted at gunpoint by two men as they were getting out of their car in a parking lot near a Little Rock nightclub. The two men, one holding a gun, the other a knife, robbed them of their purses and jewelry. The victims were then abducted and forced to drive to an isolated field where the assailant who had been holding the gun, forced them to engage in sex with them.

The robbery was reported immediately, but the victims said nothing about the rapes, attributing their reluctance to the fact that one of them was getting married the next day. When the appellant was picked up approximately a year later, they decided to pursue prosecution of the sexual assault.

Appellant first argues the trial court erred by not declaring a mistrial after the defendant was seen by members of the jury while wearing handcuffs. On returning from a lunch break, the bailiff and the appellant, who was handcuffed, were allegedly seen by some of the jurors as they passed through the corridor. Appellant requested a mistrial which was denied.

We have held it is not prejudicial per se when the defendant is brought into a courtroom handcuffed. Johnson v. State, 261 Ark. 183, 546 S.W.2d 719 (1977). In Johnson, we found the appellant was charged with being an escapee from the penitentiary, was an inmate at the time of trial and all of this would become known to the jury during the trial. Citing Gregory v. United States, 365 F.2d 203 (8th Cir. 1966), we said we would not presume prejudice when there was nothing in the record to indicate what impression may have been made on the jurors and where the appellant did not offer any proof of prejudice. In a more recent 8th Circuit decision, United States v. Carr, 647 F.2d 867 (1981), the 8th Circuit defendant was allegedly seen by several members of the jury panel while in handcuffs and a waist chain before trial. The court said, “a brief and inadvertent exposure of defendants to jurors is not inherently prejudicial. The defendant must bear the burden of affirmatively demonstrating prejudice.” The court said the defendant’s allegation that several prospective jurors “likely” saw him was an unsubstantiated allegation and did not satisfy his burden of affirmatively showing he was prejudiced. The court said he did not ask for a hearing or offer to prove the prejudicial effect of the encounter. Under these circumstances the court was not willing to presume any prejudice.

In this case, from the record of the in-chambers conference on the mistrial motion, it is not evident there was anything but a brief, inadvertent sighting by some of the jurors. The appellant offered no proof of any jurors having actually seen the appellant, nor was any voir dire requested to substantiate any allegation of prejudice. There was no affirmative showing of prejudice by the appellant. There was no alternative route to the courtroom from the lock-up area that was not visible to the public; the defense attorney had already told the jury that the defendant had been and was currently incarcerated; the bailiff testified he continued on with the appellant because, he thought it would distract more if he pulled back after he once walked in and saw the jurors; the bailiff was instructed to avoid the error in the future; and most significantly, the bailiff testified the appellant had attempted earlier to get out of the holding cell and for security reasons the bailiff felt it was necessary to handcuff him.

Appellant next submits prejudicial error occurred when the prosecutor commented on his failure to deny his guilt. Appellant took the stand in his behalf and on direct was questioned about how he happened to be brought up on the charges for this trial. He said he had been picked up by the police in Oklahoma, was told he was wanted for these charges in Arkansas, did not know anything about the rapes or robberies at that time, was extradited back to Arkansas and came back willingly. On cross, the prosecutor asked a series of questions about that testimony. Appellant admitted he knew he was wanted in Arkansas for these charges before he was picked up in Oklahoma. The following exchange took place:

Q. And when you got down to the [Little Rock] Police Department that’s the first time you found out what all this was about, why they wanted you?
A. No, that wasn’t the first time I found out.
Q. When did you first find out?
A. I found out when I was up in Lawton, Oklahoma but I didn’t have no money to come back and I said I wasn’t going to hide, wasn’t going to give no false ID or nothing. Whenever they stopped me that’s when I’m coming back to face this.
Q. So you knew about it before you got picked up, right?
A. Yes, I did.
Q. And the reason you didn’t try to clear it up was because you didn’t have any money?
A. ’Cause I didn’t have no money to come back on. ’Cause I knew I hadn’t done these charges.
Q. Did you ever go to any local authorities up there and tell them about it?
A. No, I did not.
Q. Did you call back down here and tell the police where you were?
A. No, I did not.
Q. You didn’t think they would have come and gotten you and helped you get back down here?
A. I didn’t have no idea.
Q. Okay, But you knew about it and didn’t say anything?
DEFENSE: Your honor, I’m going to object to that question I believe Mr. Hill has the right to remain silent.

We need not decide whether this line of questioning is proper under the “tacit admission” rule [see McCormick Evidence § 161 (2nd ed. 1972)] as the appellant is precluded from raising the argument. The question appellant objected to had already been asked in various forms without an objection. Failure to object at the first opportunity to do so waives any right to raise the point on appeal. Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981). Additionally, once the appellant takes the stand he has waived his right not to be a witness against himself and is subject to cross-examination, as any other witness. Horne v. State, 253 Ark. 1096, 490 5. W.2d 806 (1973) (cross-examination about appellant’s refusal to make statements or admissions to the sheriff); Spillers v. State, 268 Ark. 217, 595 S.W.2d 650 (1980). Here, the appellant had raised the subject on direct, hence, this was a proper line of questioning by the state. Ark. Unif. R. Evid. 611(b).

As a final point, appellant argues the testimony was insufficient to sustain a verdict of guilt. By the victim’s account three individuals were involved in the episode. The argument goes only to the identity of the appellant as being the one of the three who committed the rapes, or in any case to sufficient proof of his involvment in the incidents at all.

The strongest evidence adduced at trial was from Anthony Pike, an accomplice, and two of the victims. It is the rule that a felony conviction cannot be had on an accomplice’s testimony alone, it must be corroborated by other evidence tending to connect the defendant with the commission of the offense. Ark. Stat. Ann. § 43-2116; Bennett v. State, 284 Ark. 87, 679 S.W.2d 202 (1984). We said in Bennett, “The corroborating evidence need not be sufficient in and of itself to sustain a conviction, but it need only, independently of the testimony of the accomplice, tend in some degree to connect the defendant with the commission of the crime.” On appeal the evidence will be viewed in the light most favorable to the appellee and the verdict will be affirmed if there is substantial evidence to support it. The evidence is substantial if the jury could have reached its conclusion without having to resort to speculation or conjecture. Heard v. State, 284 Ark. 457, 683 S.W.2d 232 (1985); Boone v. State, 282 Ark. 274, 668 S.W.2d 217 (1984). We need only consider testimony lending support to the jury verdict and disregard any testimony that could have been rejected by the jury on the basis of credibility. Chaviers v. State, 267 Ark. 6, 588 S.W.2d 434 (1979). As to any individual witness, the jury may accept or reject any or all of a witness’ testimony. Bennett, supra, Hamilton v. State, 262 Ark. 366, 556 S.W.2d 884(1974).

There was substantial evidence in this case to corroborate the accomplice’s testimony. Two of the victims testified and stated they had positively identified the appellant. Four days after the rape, one of the victims identified Dale Hayes, another accomplice, in a picture lineup, as the man with the gun, and at the same time tentatively identified the appellant. A few days later the same victim identified Hayes and Pike from an actual lineup. A year later she identified appellant in a physical lineup as one of the three, the one with the gun. She testified that after the lineup, she reconsidered her earlier identification by picture only. She said, “After seeing all three of them physically there was no doubt in my mind. . . There’s no doubt in my mind. He is the one.”

The other victim who had made no earlier identification viewed a physical lineup a year later and positively identified appellant. She said she remembered the gunman because his eyes “kind of bug out.” The appellant said he was known as “Popeye” because of his eyes.

These two victims testified the parking lot was well lighted, the light was on in the car during the robbery, and there was a full moon.

The appellant’s defense was that he knew nothing of the crimes and had spent the evening and night with his girlfriend. However, in addition to the victims’ testimony, a mutual friend of the appellant and Pike testified that on the night of the episode he had loaned his car to Pike around midnight and sometime after two in the morning Pike returned the car in the company of appellant and Hayes.

There was also testimony of one of the police officers working on the case that one of the victim’s purse was recovered from a drainage ditch beside appellant’s residence.

Affirmed.


author: David Newbern, Justice.

text:
    Lowell Wayne GEORGE v. STATE of Arkansas
    CR 84-182
    685 S.W.2d 141
    Supreme Court of Arkansas
    Opinion delivered February 25, 1985

      Larry D. Vaught, for appellant.

      Steve Clark, Att’y Gen., by: Marci Talbot, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

This appeal is from a decision denying a writ of habeas corpus. It involves interpretation of statutes pertaining to the writ, thus our jurisdiction arises from Arkansas Supreme Court and Court of Appeals Rule 29 1. c.

In his habeas corpus petition to the circuit court, George alleged he was being held pursuant to an illegal sentence. In an “appendix” to his petition these facts were stated. While on probation after conviction for burglary in Texas, George received permission to visit his brother in Desha County, Arkansas. While in Arkansas he was convicted of second degree murder. He was given a fifteen-year sentence in 1981. While free on an appeal bond he was advised by the sheriff to go to the Desha County courthouse for a hearing on a violation of his Texas probation requirements. The Desha County circuit judge said he was releasing George and turning him over to the sheriff of Anderson County, Texas. He was then sentenced in Texas to five years confinement for his probation violation. He was subsequently paroled in Texas. He returned to Desha County to visit his brother and was arrested and committed to the Arkansas Department of Corrections based on the commitment order issued upon his Arkansas conviction which had since been affirmed.

The circuit judge denied the petition because it failed “to state a ground for relief under the Arkansas habeas corpus law.” The order denying the petition was entered before the state responded, and no hearing was held.

In his appeal to this court, George raises questions whether the Desha County circuit court had lost its jurisdiction to commit him because of his having been released to Texas authorities.

1. Denial of Hearing

From the order he entered, it appears the circuit judge denied the petition because he found nothing in it alleging a basis for habeas corpus. The appellant contends he should nonetheless have been given a hearing. The appellant has cited no authority for this position, and we do not find his unsupported argument convincing. While our statutory habeas corpus scheme contemplates a hearing in the event a writ is issued, we find nothing requiring a hearing be given any petitioner regardless of the content of the petition. See Ark. Stat. Ann. §§ 34-1701, et seq. (Repl. 1962).

2. Illegal Sentence

The central question is whether the petition stated any facts showing that the sentence and the commitment became illegal, assuming the circuit court of Desha County had “released” the petitioner to Texas authorities.. In terms of Ark. Stat. Ann. § 54-1705 (Repl. 1962), the question is whether there is a showing of probable cause that the petitioner is being detained unlawfully. One is held without lawful authority when it is shown the commitment is invalid on its face or the court lacked jurisdiction. Stover v. Hamilton, 270 Ark. 510, 604 S.W.2d 954 (1980); Mitchell v. State, 233 Ark. 578, 546 S.W.2d 201 (1961); Rowland v. Rogers, 199 Ark. 1041, 157 S.W.2d 246 (1940). The same fundamental question would be reached if we applied the second sub-part of Ark. Stat. Ann. § 54-1733 (Repl. 1962) which says a prisoner can be discharged “[wjhere, though the original imprisonment was lawful, yet, by some act, omission or event which has taken place afterward, the party has become entitled to his discharge.”

For his contention that the Desha County circuit court lost its jurisdiction and thus committed him illegally, the appellant cites Shields v. Beto, 570 F. 2d 1005 (5th Cir. 1967). There the petitioner was released on a furlough from a Texas prison, having served one year of a cumulative forty-year sentence. Instead of taking the furlough, the petitioner waived extradition and was sent to Louisiana where he served a sentence and was ultimately paroled and then released from parole. Some twenty years later the petitioner was convicted on a bad check charge in Texas. He was sentenced to two years imprisonment to which were added the thirty-nine years left unserved on his previous Texas sentence. The federal Court of Appeals held,

. . .that the extraditing of Shields to Louisiana authorities and the release by Texas of the prisoner before expiration of his sentence constituted a waiver of jurisdiction over Shields, especially where the surrendering sovereign (Texas) showed no interest in the return of the prisoner, either by agreement between the sovereigns, by detainer, or any other affirmative action taken by it following his release in Louisiana. [370 F.2d at 1006]

In the Shields Case the court distinguished Thompson v. Bannan, 298 F. 2d 611 (6th Cir. 1962), where it was held that release or surrender of a convict who had not yet begun his sentence did not incapacitate the surrendering state from committing the petitioner thereafter. While the statement that “a prisoner may not be required to serve his sentence in installments,” White v. Pearlman, 42 F. 2d 788 (10th Cir. 1930), has a nice ring to it, the distinction between surrender to another jurisdiction of a person awaiting incarceration and surrender of one who has begun serving a sentence is troublesome if it is to be the basis for saying whether jurisdiction is waived. While the court in Shields v. Beto did not discuss or even intimate an estoppel theory, it would have been appropriate to have done so. The passage of a long period of time with no evidence of an attempt at extradition or other effort to reassert itself makes it seem patently unfair to tack thirty-nine years of a very stale forty-year sentence on a new two-year sentence.

George might have been successful in resisting extradition to Arkansas. But that is not the question here, as he voluntarily reentered Arkansas knowing he had not served his Arkansas sentence. See also Grieco v. Langtois, 181 A. 2d 230 (R.I.1962). Cf. State v. Knapp, 599 P. 2d 855 (Ariz. App. 1979).

While one effect of the Arkansas commitment may be to place George in violation of his Texas parole obligations, that is not a consideration in determining whether the Desha County circuit court had the power to commit him. U.S. v. Marrin, 227 F. 314 (E.D. Pa. 1915).

While this opinion makes much ado over the issues raised and yet holds the petitioner was not entitled to a hearing, we are convinced, and our further holding is, that had every allegation in the petition been proven the petitioner would not have been entitled to the writ.

Affirmed.


author: Per Curiam.

text:
    William NATZKE v. CITY OF FAYETTEVILLE (STATE of Arkansas)
    CR 84-183
    684 S.W.2d 264
    Supreme Court of Arkansas
    Opinion delivered February 25, 1985

      Linzay & Froelich, by: LeeH. Linsay, Jr., for appellant.

      Steve Clark, Att’y Gen., by: Patricia G. Cherry, Asst. Att’y Gen., for appellee.
   Per Curiam.

Appellant was convicted of DWI under Act 549 of 1983. On appeal his single assignment of error is that the act violates the separation of powers doctrine under the Arkansas Constitution. That argument has been considered and rejected. Sparrow v. State, 284 Ark. 396, 683 S.W.2d 218 (1985) and Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984).

The judgment is affirmed.


text:
    Thomas PRIDE v. STATE of Arkansas
    CR 85-18
    684 S.W.2d 819
    Supreme Court of Arkansas
    Opinion delivered February 25, 1985

      Darrell F. Brown, for appellant.
    No response.
   Per Curiam.

Petitioner was found guilty by a jury of aggravated robbery and sentenced to a term of ten years imprisonment in the Arkansas Department of Correction. The Court of Appeals affirmed. Pride v. State, CACR 83-190 (June 6, 1984). Petitioner now seeks to proceed in circuit court pursuant to Criminal Procedure Rule 37.

After the State had rested its case, the trial judge told the jury:

Ladies and gentlemen of the jury, we are going to follow a little different procedure than we normally do because it is getting fairly close to the noon hour and I’ve been pressed into last minute service to make a speech before the Kiwanis Club today at noon and I know they can’t wait to hear all of these words of wisdom flowing from me and you can imagine about how long I have had to get prepared for that, so what we’re going to do is, I’m going to give you the instructions and tell you the law in the case and the attorneys will then make their closing arguments and I will put you then in noon recess and then when you get back from recess, you can go right on into the jury room and begin your deliberations.

Petitioner alleges that these remarks conveyed the impression that the trial was of small consequence and that the judge had made up his mind on the guilt or innocence of the accused. He contends that counsel should have objected and requested a cautionary instruction to negate the prejudicial effect.

We cannot agree with petitioner’s assessment of the effect of the court’s words. The court simply informed the j ury that there would be a slight departure from the usual procedure. The judge’s comments indicated only that he was concerned with being late for his speech; there is nothing to show that the comments were, or could reasonably have been, construed as a comment on the significance of petitioner’s trial or his guilt or innocence.

Petitioner next contends that counsel should have objected to the court’s failure to include an instruction on the lesser included offenses of robbery and theft. The court found on appeal that the facts warranted a conviction for aggravated robbery. As there was sufficient evidence to find petitioner guilty of aggravated robbery, counsel was not remiss in failing to request other instructions. See Smith v. State, 277 Ark. 403, 642 S.W.2d 299 (1982).

Petitioner also argues that there was insufficient evidence that he was armed with a deadly weapon and that the trial court abused its discretion in failing to reduce the finding of the jury and impose a lesser sentence. Attacks on the sufficiency of the evidence are direct attacks on judgment which must be made at trial and on the record on appeal. McCroskey v. State, 278 Ark. 156, 644 S.W.2d 271 (1983). Rule 37 was not designed as another opportunity to challenge the weight of the evidence. Rule 37.1.

Petitioner also makes the conclusory allegation that the ten year sentence was cruel and unusual punishment, but the claim is one which should have been made at trial. Issues not raised in accordance with the controlling rules of procedure are waived. Neal v. State, 270 Ark. 442, 605 S. W.2d 421 (1980).

Petitioner alludes to “extrajudical communications” between and among jurors and nonjurors which denied him a fair trial and faults counsel for not bringing the communications to the court’s attention. He does not, however, describe the nature of the communications or state their extent. Counsel is presumed effective. Travis v. State, 283 Ark. 478, 678 S.W.2d 341 (1984). The burden of overcoming that presumption rests on the petitioner who must establish with factual support for his allegations that counsel’s conduct undermined the adversarial process and resulted in prejudice sufficient to deny him a fair trial. Strickland v. Washington, _U.S__, 104 S. Ct. 2052 (1984). Petitioner asks for permission to inquire of the jury in an apparent attempt to find grounds for the allegation so that he can amend this petition. In the light of petitioner’s failure to provide factual support for the allegation that there were extrajudicial communications, we find no grounds pursuant to Unif. Rules of Evid. 606, Ark. Stat. Ann. § 28-1001 (Repl. 1977), for questioning the jury.

Petition denied.


text:
    Henry GUNN v. STATE of Arkansas
    684 S.W.2d 265
    Supreme Court of Arkansas
    Opinion delivered February 25, 1985

      John L. Kearney, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Per Curiam.

Appellant, Henry Gunn, Jr., by his attorney, John L. Kearney, has filed a motion for rule on the clerk.

The motion admits that the record was not timely filed, without fault on the part of the appellant. His attorney admits that the record was tendered late due to an error on his part. We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Per Curiam opinion, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.

A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Edward L. WING v. STATE of Arkansas
    684 S.W.2d 265
    Supreme Court of Arkansas
    Opinion delivered February 25, 1985

      Darrell E. Baker, Jr., for appellant.
    No response.
   Per Curiam.

Appellant, Edward L. Wing, by his attorney, Darrell E. Baker, Jr., Deputy Public Defender for Washington County, has filed a motion for rule on the clerk.

The motion admits that the record was not timely filed and it was no fault of the appellant. His attorney admits that the record was tendered late due to an error on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979).

A copy of this opinion will be forwarded to the Committee on Professional Conduct.


author: Jack Holt, Jr., Chief Justice.

text:
    Wanda GUTHRIE v. TYSON FOODS, INC.
    84-219
    685 S.W.2d 164
    Supreme Court of Arkansas
    Opinion delivered March 4, 1985

      William A. Storey, for appellant.

      Bassett Law Firm, by: William Robert Still, Jr., for appellee.
   Jack Holt, Jr., Chief Justice.

This is a tort case in which a motion to dismiss for failure to state facts upon which relief could be granted was sustained. Our jurisdiction is based on Sup. Ct. R. 29 (1) (o).

The complaint alleged that the appellee had excavated a hole on its premises and had negligently and carelessly left it unguarded. It was further alleged that the appellant had been injured by stepping into the hole while she was walking across the appellee’s premises “after working hours. ’ ’ The complaint did not allege that the appellant was employed by Tyson, nor did it otherwise allege by what right the appellant was on the appellee’s premises.

After reviewing briefs supporting and opposing the motion to dismiss, the trial court sustained the motion on the basis that statements by both sides and exhibits to the briefs showed the appellant to be a Tyson employee and thus her exclusive remedy would be a worker’s compensation claim. It was improper for the trial court to look beyond the complaint to decide a motion to dismiss pursuant to Ark. R. Civ. P. 12(b)(6), unless he was treating the motion as one for summary judgment according to the last sentence of Rule 12 (b). Even had he treated the motion as one for summary judgment it would have been incorrect to base the decision on allegations in briefs and attached exhibits. Ark. R. Civ. P. 56 (c) provides the court may consider “pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any.”

The result reached by the court was, however, correct. No fact stated in the complaint showed the appellant to have been other than a trespasser. The duty owed by a landowner to a trespasser or licensee is to refrain from wantonly or wilfully causing injury. Husted v. Richards, 245 Ark. 987, 436 S.W.2d 103 (1969). See, Note, 33 Ark. L. Rev. 194 (1979). The complaint in this case alleged simple negligence at best. Although the language of Ark. R. Civ. P. 8 (a) is similar to Fed. R. Civ. P. 8 (a), we require a statement of “facts” showing the pleader is entitled to relief. Harvey v. Eastman Kodak Co., 271 Ark. 783, 610 S.W.2d 582 (1981); H. Brill, Faculty Note, 34 Ark. L. Rev. 722 (1982). See also, Chiles v. Fort Smith Comm’n Co., 139 Ark. 489, 216 S.W. 11 (1919),. for an example of a complaint showing injury on defendant’s premises and the right of plaintiff’s decedent to be there.

Although the reason given by the court for sustaining the motion to dismiss was incorrect, the result was correct, as the appellant’s complaint failed to state facts upon which relief could be granted, and thus we need not reverse. Moose v. Gregory, 267 Ark. 86, 590 S.W.2d 662 (1979); Greeson v. Cannon, 141 Ark. 540, 217 S.W. 786 (1920).

Affirmed.


author: Jack Holt, Jr. Chief Justice.

text:
    O.D. AZBILL v. STATE of Arkansas
    CR 85-27
    685 S.W.2d 162
    Supreme Court of Arkansas
    Opinion delivered March 4, 1985
    [Rehearing denied April 15, 1985.]

      Guy Jones, Jr., P.A., for appellant.

      Steve Clark, Att’y Gen., by: Joyce Rayburn Greene, Asst. Att’y Gen., for appellee.

      Purtle, J., would grant rehearing.

   Jack Holt, Jr. Chief Justice.

The appellant was convicted under the Omnibus DWI Act. The sole question raised in this appeal is whether the appellant was in actual physical control of his vehicle as required by Ark. Stat. Ann. § 75-2503 (Supp. 1983). We find that he was.

The case was presented to the trial court on stipulated facts. The appellant did not testify. The stipulations were that Officer Leroy Davis was summoned by citizens band radio to U.S. Highway 67 at 6:22 p.m. on March 5, 1984, to investigate a truck which was stuck in the median of the highway. The truck belongs to the appellant. At the scene the officer found the appellant alone outside the truck. The appellant informed the officer that he was coming from Jonesboro and that he was the only person around the vehicle.

When the officer arrived, another car had stopped and its occupants were in the process of getting out and approaching the truck. Officer Davis was not able to testify as to the length of time the truck was stuck. He also did not know where the keys to the truck were when he arrived. The keys were available however because they were used to lock the truck, which was later towed and impounded. The truck was not locked when the officer arrived. Officer Davis never saw the appellant driving or exercising physical control of the truck. A breathalizer test was administered and the appellant registered .22%. The test results were properly certified and authenticated.

The parties further agreed that the only question before the trial court and on this appeal is whether or not the appellant was driving, or was in possession or in control, of the vehicle.

Act 549 of 1983, codified at Ark. Stat. Ann. § 75-2503 (Supp. 1983) provides:

(a) It is unlawful and punishable as provided in this Act. . .for any person who is intoxicated to operate or be in actual physical control of a motor vehicle.
(b) It is unlawful and punishable as provided in this Act for any person to operate or be in actual physical control of a motor vehicle if at that time there was 0.10% or more by weight of alcohol in the person’s blood. [emphasis added].

Although the evidence that the appellant operated or was in actual physical control of the truck while intoxicated is circumstantial, the question of whether that evidence “excludes every other reasonable hypothesis is for the fact finder to determine.” Boone v. State, 282 Ark. 274, 668 S.W.2d 17 (1984). This court’s responsibility is to determine whether the verdict is supported by substantial evidence. Id.

We find that it was. We have recently discussed the issue of actual physical control of a vehicle in two cases. In Dowell v. State, 283 Ark. 161, 671 S.W.2d 740 (1984) we found the appellant was not in control where he was found asleep in his car with the motor off, in the driveway of a business and with the car keys in the vehicle seat. We said, “He may not have been the person who drove the vehicle to where it was parked. If he drove it to the place where it was found he may have become intoxicated later.”

This case is distinguishable in that here, the appellant in his statement to the officer admitted that he was coming from Jonesboro and he was the only person around the vehicle. Therefore the court was justified in believing that he had operated and was in actual physical control of the truck until he became stuck on the median.

In Wiyott v. State, 284 Ark. 399, 683 S.W.2d 220 (1985), the appellant and a companion were found asleep in a parked vehicle. When the officer awoke them, the appellant reached for the key which was in the ignition and attempted to start the vehicle.

This court affirmed the finding of guilt stating, “There is no evidence that any one else had control over the automobile. We think the evidence in this case indicates that appellant was as much in control of his vehicle as an intoxicated person could be.”

The evidence in this case necessitates a similar conelusion. The appellant was the only person at the scene who was likely to have been in control of the truck.

Actual control of a vehicle may be proved by circumstantial evidence. The officer need not see the driver operating the car in order to have reasonable cause to believe he was doing so. 7A Am Jur 2d Automobiles & Highway Traffic § 300 p. 483-84 (1980).

This court has not previously been presented with a situation similar to the present one, where the appellant is outside of his vehicle with the motor turned off and the location of the keys to the automobile is uncertain. The New Jersey court in State v. Prociuk, 145 N.J. Super 570, 368 A.2d 436 (1976) stated that there are three ways to prove operation of a motor vehicle. They are (1) observation by the officer; (2) evidence of intent to drive after the moment of arrest; or (3) a confession by the defendant that he was driving.

In Prociuk an officer was called to a turnpike exit where he saw the appellant near a toll booth with his van parked on the other side of the booth. The appellant, who was intoxicated, told the officer he had just run out of gas. The New Jersey court found that the appellant’s statement amounted to a confession because of the word “just” which implied that he had recently been driving. Applying the same test here, the appellant’s statement to the officer that he had come from Jonesboro and that he was the only person around the vehicle is considered a confession of use and control of the vehicle.

The appellant’s admissions coupled with other circumstantial evidence lead to only one logical conclusion: the appellant was in actual physical control of his vehicle while intoxicated.

Affirmed.


author: George Rose Smith, Justice.

text:
    W. R. TAYLOR et al v. Kenneth SCOTT et al
    84-237
    685 S.W.2d 160
    Supreme Court of Arkansas
    Opinion delivered March 4, 1985

      Peel if Eddy, by: David L. Eddy, for appellants.

      Bullock ér McCormick, by: David H. McCormick, for appellees.
   George Rose Smith, Justice.

The key question in this case, on undisputed facts, is this: When the owner of the record title to a tract of land conveys an undivided half-interest in the minerals to another person, but the mineral deed is not recorded for 18 years, and a stranger to the title takes adverse possession of the land a year after the execution of the unrecorded mineral deed and continues his adverse possession for more than seven years, does the adverse possessor acquire title to the constructively severed half-interest in the minerals? The chancellor correctly decided that the adverse possessor does not acquire title to the severed mineral interest. We therefore affirm his decree.

In 1937, Ben H. Qualls and his wife, holding record title to a 120-acre tract of land, conveyed an undivided half-interest in the minerals to G. W. Nowlin and his wife. The Nowlins did not record the deed until 1956. In 1938, A. W. Austin and his wife, who appear to have been in adverse possession of the 120 acres, conveyed the land to Joe Chenowith. That deed was promptly recorded. Chenowith and his successors in title, the appellants, have been in possession of the land ever since, using it primarily as pasture.

In 1983, the appellees, successors in title to the half-interest in the minerals that had been conveyed to the Nowlins, brought this suit to quiet their title to that half-interest. The appellants defended on the ground that the constructive severance created by the 1937 mineral deed was not effective against them until that deed was placed of record in 1956, at which time they had held the surface adversely for some 18 years.

The appellants recognize our settled rule that when a mineral ownership has been severed by deed from the surface ownership, adverse possession of the surface is ineffective against the owner of the minerals unless the possessor actually invades the minerals by opening mines or drilling wells and continues that action for the necessary period. Claybrooke v. Barnes, 180 Ark. 678, 22 S.W.2d 390, 67 ALR 1436 (1929); Bodcaw Lbr. Co. v. Goode, 160 Ark. 48, 254 S.W. 345, 29 ALR 578 (1923). The appellants insist, however, that under our law the severance is not effective until the deed is recorded.

The cases relied upon do not support that view. In Thompson v. Graves, 281 Ark. 492, 665 S.W.2d 268 (1984), we did refuse to give effect to an asserted mineral reservation in an unrecorded lost deed, but the reason was that the contents of the lost deed were not proved clearly and convincingly. In Skelly Oil Co. v. Johnson, 209 Ark. 1107, 194 S.W.2d 425 (1946), we did say that the placing of three mineral deeds of record constituted a constructive severance of the minerals. The opinion shows, however, that all three deeds were promptly recorded, with no third-party rights arising between the execution of the deeds and their recordation. We think the severance actually occurred when the deeds became effective, not when they were recorded, but that distinction was of no importance in the case. Hence the language relied upon by these appellants was dicta.

As a matter both of settled law and of simple justice, there is no reason why an adverse possessor should benefit from the record owner’s failure to record a deed. A trespasser does not examine the records at the courthouse before deciding to appropriate another’s property. He does not rely upon the record, nor is he misled by its absence. Our recording statute gives priority to the first recordation only as between purchasers deriving their interests from a common grantor. Richardson v. Fisher, 236 Ark. 612, 367 S.W.2d 440(1963).

The same principle applies to deeds that bring about a constructive severance of the minerals from the surface. In the language of Professor Kuntz:

A failure to record the instrument by which the severance was accomplished may or may not be significant. If the subsequent possessor took from the same chain of title and claimed as a bona fide purchaser, obviously the failure to record a deed by which a mineral interest was severed would be very significant and would control his rights under local statutory law. If, however, the subsequent possessor was an adverse possessor not under the same chain of title, recording would have no significance. An adverse possessor does not occupy the status of a purchaser, and an unrecorded severance should be effective as to him.

Kuntz, Oil and Gas, § 10.4 (1962). The same reasoning was followed in United Fuel Gas Co. v. Dyer, 185 F. 2d 99 (4th Cir. 1950). There Judge Parker first noted that an adverse possessor is charged with notice of a mineral severance appearing in his own chain of title, but the rule does not apply to an adverse possessor not claiming under the same chain. From the opinion:

Such adverse possessor is manifestly not entitled to any notice with respect to the estate of the true owner which he is invading. On the contrary, it is he who must give notice by exercising possession of such character as will apprise the true owner that the right of the latter is challenged.

We have no similar case in Arkansas relating to mineral deeds, but in an analogous situation we held that the purchaser at a tax sale took subject to an unrecorded timber deed, because the recording statute benefits a subsequent purchaser from the common grantor, not a purchaser at a tax sale. Brewer v. Fletcher, 210 Ark. 110, 194 S.W.2d 668 (1946).

The preceding discussion also answers the appellants’ argument that when Chenowith, an adverse possessor, sold the tract to Carrel Luningham in 1945, Luningham acquired the mineral half-interest as a bona fide purchaser. Luningham, however, was necessarily charged with notice that his grantor did not have the record title to the land. Luningham must therefore be charged with knowledge that he was not acquiring a perfect record title; so he cannot claim to be a purchaser without notice of possible outstanding flaws in his grantor’s title.

Counsel for the appellants insist that the position we are taking will “create uncertainty in the oil and gas industry and lack of confidence in the real estate records.” We do not think so. When a lawyer examines an abstract of title and finds that the apparent owner’s title rests only on adverse possession, a rare situation, he is at once on notice that there may be flaws in the title, such as the interest of a minor or insane heir of a deceased holder of the record title. There is no reason to confer a windfall on the adverse possessor by giving him the benefit of a possible record that he would not have seen or relied on even if it had existed. On the other hand, our law has long protected the owner of a mineral interest against the loss of his title to an adverse possessor of the surface only. Our present holding is in harmony with our existing case law.

Affirmed.


author: George Rose Smith, Justice. John I. Purtle, Justice,

text:
    Robert LINCOLN v. STATE of Arkansas
    CR 84-142
    685 S.W.2d 166
    Supreme Court of Arkansas
    Opinion delivered March 4, 1985
    [Rehearing denied April 15, 1985.]

      Joel W. Price, for appellant.

      Steve Clark, Att’y Gen., by: Michael E. Wheeler, Asst. Att’y Gen., for appellee.

       Purtle, J., would grant rehearing.

   George Rose Smith, Justice.

Upon the jury’s verdicts of guilty the appellant was sentenced to (1) a $5,000 fine and five years’ imprisonment with three years suspended, for possession of cocaine with intent to deliver, and (2) four years’ imprisonment with two years suspended, for possession of marihuana with intent to deliver, the sentences to be concurrent. The Court of Appeals certified the case to us as presenting a significant and important issue concerning the effect upon our law of recent Supreme Court decisions modifying the exclusionary rule in search-and-seizure cases. United States v. Leon,_U.S__, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984); Massachusetts v. Sheppard,-U.S--- 104 S. Ct. 3424, 82 L. Ed. 2d 737 (1984). By now we have expressed our intention of following the modified rule, a position to which we shall adhere. McFarland and Soest v. State, 284 Ark. 533, 684 S.W.2d 233 (1985). There is no merit in the appellant’s six arguments for reversal.

First, the search-and-seizure issue. On the evening of February 15, 1983, police officers obtained a warrant to search Lincoln’s Fort Smith apartment for cocaine. The seárch was conducted immediately and yielded the drugs upon which the present charges were filed. Counsel for the appellant, in challenging the sufficiency of the affidavit for the search warrant, relies upon the law that was applicable before the Leon and Sheppard cases, although they were decided three months before the appellant’s brief was filed. The earlier law is no longer applicable. There is no vested right in a rule of evidence. Reid v. Hart, 45 Ark. 41 (1885). Indeed, the Supreme Court applied its new rule retroactively in Leon, reversing a federal Court of Appeals decision which had invalidated a search-warrant affidavit in reliance on the pre-existing law.

The appellant’s only argument falling within the possible purview of Leon is the contention that statements in the affidavit were false. In Leon, the court said that deference to the magistrate’s finding of probable cause does not preclude inquiry into the knowing or reckless falsity of the supporting affidavit. Here the affidavit stated that recently an informant had obtained a sample of cocaine that was purchased from Lincoln. The affiant admitted at the suppression hearing that he should have said that the informant obtained the sample from somebody else who reported to the informant that it had come from Lincoln. There is no reason to think the circuit judge who issued the warrant would have acted differently had the affidavit been exact. To the contrary, the really vital statement in the affidavit was that another informant who had been in Lincoln’s residence that very evening said she had purchased cocaine from Lincoln at that time and that Lincoln had stated he had more cocaine available, but it was selling fast. Evidently the judge relied on that statement, for the warrant contains a finding that the objects to be seized were in danger of imminent removal, and the search was carried out at once. We attach no importance to the fact that the affidavit said that the informant had knowledge of “the penal implications” of her statement, for even though she was released without being charged, her release was conditioned on her promise to cooperate in the prosecution of Lincoln. We hold that under Leon the affidavit was sufficient to support the issuance of the search warrant.

Second, the court allowed the State to prove, for the purpose of showing Lincoln’s possession of the drugs with intent to deliver, that various witnesses had bought drugs from Lincoln in the past. One witness, for example, testified that for about a year he had bought drugs from Lincoln once or twice a month. The court cautioned the jury that proof of prior sales was admitted only to be considered with regard to the intent with which Lincoln had possessed the drugs on the evening in question. Such prior sales are admissible if not too remote in time, which is not the case here. Rowland v. State, 262 Ark. 783, 792, 561 S.W.2d 304 (1978); Cary v. State, 259 Ark. 510, 514, 534 S.W.2d 230 (1976). Our holding in Moser v. State, 266 Ark. 200, 583 S. W.2d 15 (1979), is not in point, for there the prosecutor charged possession with intent to deliver, instead of the actual sale that was proved, as a subterfuge to get before the jury prior sales, as bearing on intent.

Third, the court did not improperly limit the appellant’s cross examination of five codefendants who were also present when the police searched Lincoln’s apartment and arrested all six persons. The court simply confined cross examination to the drugs in question. We find no abuse of its discretionary authority to confine cross examination to matters relevant to the charges on trial.

The remaining arguments do not need extended discussion. A requested instruction about the weight to be given to proof of prior sales was properly refused, for it was heavily slanted in favor of the defense, even to the point of being a comment on the weight of the evidence. See per curiam order, AMI Criminal, viii (1982). The court’s refusal to grant Lincoln a separate trial is not shown to have been error for either of the reasons argued: that a codefendant’s statement that a certain substance was “cutter” instead of cocaine was admitted in evidence or that there was proof of a single sale by another resident of the apartment, in addition to the many sales by Lincoln that were shown. Neither ruling can be said to have been substantially prejudicial to the defendant, for there was abundant proof of drug activity in the apartment. Finally, we do not perceive that the proffered proof that two codefendants had pleaded guilty to possession of a different drug, LSD, was relevant to the charges on trial.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I dissent from the majority opinion on principle as well as law. I am saddened because I see this opinion as a repudiation of more than 100 years of precedent and the destruction of parts of the Arkansas and United States Constitutions. Additionally the opinion repeals a portion of our rules of criminal procedure and possibly some statutory law as well. I have never felt that this court is bound by the opinions of the United States Supreme Court in matters where our Constitution and laws are more protective of individual rights than are those of the United States. I have been under the impression that the other members of this court did not always feel bound by decisions of the federal courts. Rector v. State, 280 Ark. 385, 659 S.W.2d 168(1983).

The affidavit for the search warrant in this case was obtained upon the application of an officer who stated that his information was obtained from a reliable informant who had recently purchased cocaine from the appellant. At the suppression hearing testimony revealed that the so-called reliable informant had not purchased from the appellant at all but had been told by some third party that he had purchased from the appellant. The officer applying for the warrant knew that the informant had not made the purchase. I believe the affidavit was false in that respect. There was absolutely no reason for the affiant to rely on information from an unknown and unproven informant. It may well have been a complete fabrication. Neither the officers nor the court had any known reason to rely on this hearsay upon hearsay information. This is a step toward the return of Star Chamber proceedings which I had previously thought to have been renounced by this nation. Perhaps I am in error. The majority clearly holds that the judge evidently relied upon the unidentified third party. I am saddened by this departure by the majority of this court. It is my opinion that had the issuing judge been told the truth he would have refused to issue the warrant. The majority seems to me to go far beyond the Leon holding.

Another glaring falsity in the statement was that the informant (who was not the informant at all) disclosed the information with knowledge of “the penal implications” of her statement. There was no culpatory or penal information at all because the informant had been granted immunity (she was never even charged for her drug violations) and what she said implicated other people, not herself. When it is considered that this affidavit was prepared by the prosecuting attorney’s staff with cooperation of supervising police officers, I conclude that it was not even in “good faith.” No doubt it was a good faith effort to search appellant’s house as are all such efforts of law enforcement officials. Even if some activities were not in good faith, it is unlikely that officers would admit it. The “general search” which the Fourth Amendment sought to destroy seems to me to have now been reinstated. Henceforth officers will no doubt rely in “good faith” upon the most rank hearsay, suspicion or even complete lies and expect the approval of this court.

I cannot end this dissent without referring to A.R.Cr.P. Rule 13.1(b) which states in part: “If an affidavit or testimony is based in whole or in part on hearsay, the affiant or witness shall set forth particular facts bearing on the informant’s reliability and shall disclose, as far as practicable, the means by which the information was obtained.” This rule was clearly violated. For these reasons and many more, I would reverse and remand.


author: Darrell Hickman, Justice. Steele Hays, Justice,

text:
    Franklin Delano TOWERY v. Diana J. TOWERY
    84-190
    685 S.W.2d 155
    Supreme Court of Arkansas
    Opinion delivered March 4, 1985

      Daily, West, Core, Coffman ir Canfield, by: Stanley A. Leasure; and Tucker ir Thrailkill, by: Patricia A. Tucker, for appellant.

      Maddox & Miller, by: G. D. “Steve” Stephenson, for appellee.
   Darrell Hickman, Justice.

The general rule is that once a child reaches majority and is physically and mentally normal, the legal duty of the parents to support that child ceases. The question in this case is whether that duty can be reimposed later if the adult child becomes disabled and needs support. The answer is that the law imposes no such duty regardless of what the moral obligation may be. The facts in this case are largely undisputed.

Timothy Dewitt Towery was 17 when his parents divorced in August, 1980. The Towerys had two other grown children and no provision for their care and support was ordered. Franklin Towery, the father and appellant, pursuant to court order, provided support for Timothy until he reached his majority. Timothy graduated from high school in May, 1981, and legally became an adult on his 18th birthday, June 16,1981. Timothy attended Henderson State College on a football scholarship and completed three semesters. During summer vacation of 1982, he worked full time in the Texas oil fields. On a visit to Arkansas in June, 1982, he was injured in an automobile accident which left him a quadriplegic. It was stipulated that Timothy was emancipated before the accident. In January, 1984, Timothy’s mother petitioned the Polk County Chancery Court to require Franklin to resume contributions toward Timothy’s support. She testified Timothy’s monthly needs totaled $625, of which $229 is paid by social security. Timothy had dropped out of college but intended to return. Timothy did not join in this suit although it is undisputed that he is mentally competent.

After hearing testimony, the chancellor ordered the father to pay the mother $215 a month support. No time lilmit was placed on the order. The appellant’s main argument on appeal is that the law cannot require a parent to support an adult child who has become emancipated. Under these circumstances, we agree.

All family members have some legal obligations to each other. Often what are generally recognized as moral obligations among family members are also recognized by the common law or by statutes to be legal obligations. For instance, children must generally obey their parents and have their consent in legal matters. 59 Am. Jur. 2d, Parent and Child, §§ 8-24. Also, it is elementary that parents must support their minor children. Johnson v. Mitchell, 164 Ark. 1, 260 S.W. 710(1924). This duty of support was thecommon law and has become codified; in Arkansas the law is Ark. Stat. Ann. § 57-633 (Repl. 1977). The legal obligation ceases at some point, just as the duties of the child to the parent cease. While the statutory law in Arkansas does not expressly state when the duty ceases, we have easily found it to be at the age of majority. Hogue v. Hogue, 262 Ark. 767, 561 S.W.2d 299 (1978); Worthington v. Worthington, 207 Ark. 185, 179 S.W.2d 648 (1944); Missouri Pacific Railroad Co. v. Foreman, 196 Ark. 636, 119 S.W.2d 747 (1938). The rule which we and most, if not all, states follow is that “[o]rdinarily the legal obligation of a parent to support a normal child ceases upon majority of the child.” Worthington v. Worthington, supra. In Arkansas a child reaches majority at age 18. Ark. Stat. Ann. § 57-103 (Supp. 1983).

We have recognized some exceptions to the general rule. We have held the duty to support a child does not cease at majority if the child is mentally or physically disabled in any way at majority and needs support. Eskridge v. Eskridge, 216 Ark. 592,226 S. W.2d 811 (1950) (physically injured at birth); Petty v. Petty, 252 Ark. 1032, 482 S.W.2d 119 (1972) (epilepsy); Elkins v. Elkins, 262 Ark. 63, 553 S.W.2d 34 (1977) (dyslexia). A great number of states also recognize that exception. Note, Duty of Continued Child Support Past The Age of Majority 1 UALRL.J. 397 (1978); 1 A.L.R.2d 910, 921 (1948). Some states have founded this duty on common law, as we have. Brown v. Brown, 474 A.2d 1168 (Pa. Super. 1984); Grapin v. Grapin, 450 So.2d 853 (Fla. 1984). The Missouri Supreme Court pointed out the need to stray from the common law rule and to support disabled children when they reach majority stating that “our courts should depart from the common law rule of nonliability to support an adult child if that rule is not suited to the conditions and needs of the people of the state.” State v. Carroll, 309 S.W.2d 654 (Mo. 1958). The court further recognized that the majority of the states were negating the common law rule and “following the ‘dictates of humanity’ by enforcing the exception.” Other states have based this duty on statute. Stern v. Stern, 58 Md. App. 280, 473 A.2d 56 (1984); Miller v. Miller, 62 Or. App. 371,660 P.2d 205 (1983); State v. Panzeri, 76 Ida. 211, 280 P.2d 1064 (1955); Hight v. Hight, 5 Ill. App. 3d 991, 284 N.E.2d 679 (1972).

In only one case have we extended the duty of a parent to support a child beyond majority who did not have a handicap or disability. In Matthews v. Matthews, 245 Ark. 1, 430 S. W.2d 864 (1968), we required a father to continue child support for six months after his daughter reached majority so she could finish high school. We considered this exception as only a “slight extension” of the father’s duty and noted that a high school diploma is extremely important to a person seeking to support herself. Beyond these deviations we have not extended the parental duty beyond majority.

All of these cases which found a legal parental duty deal with unemancipated children who reached their majority unable to care for themselves. The question before us is unique because the legal duty has been severed. Should a court, absent statutory guidelines, reimpose that duty?

In examining the decisions of other courts which have been faced with that question, we find the attempts to reimpose a duty to support, absent a statutory provision, have been rejected. Florida found no such legal duty for the parent to provide support for an adult child even though the court believed parents should provide their children with as much formal education as possible. In Keenan v. Keenan, 440 So. 2d 642 (Fla. App. 5 Dist. 1983) the court said:

While we firmly believe that parents, divorced or undivorced should provide their children with as much formal education as each child can absorb and the parents can afford, this court cannot create a legal duty to do so where none exists. That power rests in the legislature.

In a similar case involving college education costs, the Florida court said:

While most parents willingly assist their adult children in obtainig a higher education that is increasingly necessary in today’s fast-changing world, any duty to do so is a moral rather than a legal one. Parents who remain married while their children attend college may continue supporting their children even beyond age twenty-one, but such support may be conditional or may be withdrawn at anytime, and no one may bring an action to enforce continued payments. It would be fundamentally unfair for courts to enforce these moral obligations of support only against divorced parents while other parents may do as they choose.

Grapin v. Grapin, supra.

In Breuer v. Dowden, 207 Ky. 12, 268 S.W. 541 (1925), the Kentucky court held that the parent was not liable for his disabled adult child’s debts in the absence of a statute to the contrary. The court stated:

That if at the time the child becomes of age he is reasonably physically and mentally sound and able, if willing, to make and earn his own support, the parent is not liable for his debts or obligations thereafter contracted, even though he should later become sick or mentally unbalanced and therefore incapacitated to earn a livelihood.

The Indiana appellate court held in Pocialik v. Federal Cement Tile Co., 121 Ind. A. 10, 97 N.E.2d 360 (1951), that once the parent’s liability of support terminated, the liability will not be restored due to a subsequent change in the condition of the child. In this case, the appellant was seeking compensation for her father’s death. The court held that she was not able to recover under the Compensation Act because she was not a presumptive dependent within the Act’s definition. The court did not find any statute which imposed a duty on the deceased father to support his adult daughter under the facts of this case.

In State v. Panzeri, supra, the Idaho court held there was no duty on a parent to support an adult child who was mentally competent when he attained majority but later became disabled. There was no such duty at common law, and for one to exist, it must be created by statute. This case was an action against the estate of a mother of an adult insane person for the cost of care and treatment of an adult in the state hospital. There was a statute providing for the recovery of costs for the care of insane persons. The suit was brought pursuant to that statute.

The Maryland Court of Special Appeals decided that their statute requiring a parent to support dependent children could be construed to require support of an adult child who became disabled after emancipation. There was nothing in the wording of the statute which precluded its application to an emancipated child who later becomes a dependent adult child. Stern v. Stern, supra. In Oregon the court held a father could not be ordered to support a mentally handicapped child that had reached majority and was not attending school. This was despite an Oregon statute that provided: “Parents are bound to maintain their children who are poor and unable to work to maintain themselves; and children are bound to maintain their parents in like circumstances.” Haxton v. Haxton, 68 Or. App. 218,680 P.2d 1008(1984). In Koltay v. Koltay, 667 P.2d 1374 (Colo. 1983), a father was ordered to continue to support a handicapped child beyond majority because the child was not “emancipated” under Colorado law. But in dictum, the court observed that “the Uniform Dissolution of Marriage Act does not provide for the support of a child who is emancipated at the age of majority and later becomes disabled.”

The appellee is asking us to reimpose a legal duty that no longer exists. It was stipulated that the child in this case was emancipated before the accident. He was not living with his father. That means he had no legal duty to his father and the father had none to him. If any obligation exists it is moral, not legal. Arkansas has no statute that imposes a legal duty on this father. We take the same view that other states do; absent a statute, we cannot interfere for to do so would be to impose our personal moral judgment on the father as to what he ought to do, rather than what the law requires he do.

Timothy decided, as he well should have, where he wanted to live, where he wanted to go to college, and how he would live. Undoubtedly, his case is tragic, and he needs some financial assistance. Perhaps his father ought to help; perhaps he will. That is for him to decide, not this court.

Since there is no statutory or constitutional authority for the court’s order of support, it must be reversed. We need not address the other issues raised which are jurisdiction and standing of the mother to bring the suit.

Reversed and dismissed.

Hays, J., dissents.

Steele Hays, Justice,

dissenting. The Chancellor reached a fair and equitable result in this case by ordering the father to pay $215 for the support of Timothy. In that fashion the $625 needed each month for Timothy’s maintenance through college was divided equally between the mother (whose income was $850 per month), the father (whose income was $1,932 per month) and Timothy, Timothy’s part coming from a social security check of $229 per month.

I can see no reason to override the Chancellor on the circumstances of this case, unless this court is adopting a rigid rule that any duty of support ends when a child reaches age eighteen. While we have said that ordinarily when a child comes of age the duty of a parent ends, we have stressed the fact that it is not an inflexible rule, but one that is dependent on the circumstances of the case. Matthews v. Matthews, 245 Ark. 1, 430 S.W.2d 834 (1968).

In Matthews we upheld the Chancellor in ordering a father to continue supporting an adult daughter for some six months until she graduated from high school. We expressly recognized the importance of a high school diploma in obtaining work. If that was the right result on those facts, as clearly it was, of how much greater importance is a degree in accounting to Timothy Towery, a quadriplegic. Without a degree or some useful skill, his chances of ever providing for himself are virtually non-existent, whereas, the daughter in the Matthews case could certainly have found employment of some kind irrespective of a high school diploma. Thus, the circumstances of this case seem far more compelling than those in the Matthews case.

The majority opinion states that Timothy Towery had dropped out of college, but intended to return. If that statement implies that Timothy had dropped out of college before his accident, it is incorrect. After graduating from high school in May, 1981, Timothy attended Henderson State University in the fall of 1981 and the spring of 1982, prior to the accident in June, 1982. Emancipation is dependent on the circumstances of each case, (see 67A C. J.S., Parent and Child, § 5) and Timothy Towery had not become emanicipated in the sense that he had voluntarily ended his education and embarked on a chosen course in life, he was merely working during the summer to help pay for college, just as he had the previous summer. At the time of the accident he was barely nineteen years old, was living temporarily with his brother in Texas in order to work in an oil field. It is undisputed that he intended to return to college in the fall and was saving money for that purpose.

I believe the Chancellor’s order should be affirmed until Timothy finishes college or chooses some other course.

       That does not mean, however, that the legislature is blind to all cases of special need. Ark. Stat. Ann. § 59-115 (Repl. 1971) provides that the parents of an insane child shall maintain it if financially able, and the children of insane parents shall provide for them, if able.

       Actually, the testimony is not entirely unfavorable to the father. He said he bought an expensive van, had it equipped for a handicapped person, and arranged for driving instructions. Timothy said he had used the van about a dozen times but declined the lessons because his father would not let him drive alone. The father wanted Timothy to attend the local community college; Timothy wanted to enroll at Henderson State University. Timothy chose to live with his mother and his social security benefits were reduced because it was found he was a dependent of his mother’s. Timothy’s mother brought the suit; he didn’t. A majority of the court chooses not to rule on the standing issue to avoid a remand which would delay but not resolve the main issue. See Upchurch v. Upchurch, 196 Ark. 324 117 S.W.2d 339 (1938).


author: Darrell Hickman, Justice.

text:
    ONE 1982 DATSUN 280ZX, VIN NO. JN1CZ04S6CX625757, Arkansas License No. IXK 624 and John NABORS v. Wilbur C. BENTLEY, Prosecuting Attorney, Sixth Judicial District, ex rel., NORTH LITTLE ROCK POLICE DEPARTMENT
    84-240
    685 S.W.2d 498
    Supreme Court of Arkansas
    Opinion delivered March 4, 1985
    [Rehearing denied March 25, 1985.]

      John Wesley Hall, Jr., for appellants.

      Eddy Montgomery, Deputy Prosecuting Attorney, for appellee.
   Darrell Hickman, Justice.

The Pulaski County Circuit Court ordered John Nabors’ 1982 Datsun forfeited because it had been used to deliver controlled substances. On appeal Nabors makes three arguments: the Arkansas forfeiture statute is unconstitutional because it violates Ark. Const. Art. 2 § 22 (1884); the burden of proof in such cases should be beyond a reasonable doubt rather than by a preponderance of the evidence; and the trial court improperly limited the cross-examination of the state’s chief witness. Finding no merit to any of these arguments, we affirm.

The appellant concedes that under the United States Constitution and federal cases such statutes have been found to be legal. He argues, however, that the Arkansas Constitution has a unique provision protecting private property which is violated by this statute. That is Ark. Const. Art. 2 § 22, which reads:

Property rights — Taking without just compensation prohibited. — The right of property is before and higher than any constitutional sanction; and private property shall not be taken, appropriated or damaged for public use, without just compensation therefor.

We held in Albright v. Muncrief, 206 Ark. 319, 176 S.W.2d 426 (1943), that personal property, which is not contraband per se, could still be considered contraband, subject to forfeiture, if used for an unlawful purpose. There we stated that the moment property is used in an unlawful business, it is liable to forfeiture and that under those circumstances the owner has no greater right in the property than any other person. In discussing a forfeiture statute which allowed forfeiture of gambling devices, we said:

“For the promotion of the general welfare the state, under its police power, has the undoubted right to adopt the most expeditious, inexpensive, and effective mode of abolishing and abating the same.”

Therefore, private property enjoys no constitutional privilege when it is knowingly used to defy the state’s criminal laws and trafficking in drugs is an especially insidious evil in our society.

The argument that the state must prove beyond a reasonable doubt that the vehicle was used for unlawful purposes has been rejected. One 1961 Lincoln Continental Sedan v. United States, 360 F.2d 467 (8th Cir. 1966). The overwhelming authority relies on the preponderance of the evidence standard. Utley Wholesale Co. v. United States, 308 F.2d 157 (5th Cir. 1962); United States v. One 1955 Mercury Sedan, 242 F.2d 429 (4th Cir. 1957); D’Agostino v. United States, 261 F.2d 154 (9th Cir. 1958) cert. denied, 359 U.S. 953 (1958).

Nabors also argues that the trial court erred in limiting the cross-examination of the state’s chief witness. The argument is answered by quoting from the transcript which demonstrates the objection was waived:

Q. Have you been granted immunity?
A. Yes, I have.
Q. And since that time, you have been financially supported by the United States government.
[Prosecutor]: I object, your honor, that’s a misleading question.
The Court: I don’t think that is relevant and material.
Q. Since that time, let me ask it another way — well, that’s all right. Anyway, you have been granted immunity to testify against him, right?
A. Yes, sir.

The defense waived any objection it had by not pursuing the subject. We, therefore, do not consider the point on appeal. See Jones v. State, 224 Ark. 134, 273 S.W.2d 534 (1955).

Affirmed.


author: John I. Purtle, Justice.

text:
    FAUSETT AND COMPANY, INC.; FAUSETT MANAGEMENT COMPANY; ROUND RIVER DEVELOPMENT COMPANY; Edward K. WILLIS; Stephen C. HOCKERSMITH; and Moise B. SELIGMAN v. The Honorable David BOGARD, Circuit Judge
    84-226
    685 S.W.2d 153
    Supreme Court of Arkansas
    Opinion delivered March 4, 1985

      Dodds, Kidd, Ryan b Moore; Wright, Lindsey ir Jennings; and The Rose Law Firm, for appellants.

      Steve Clark, Att’y Gen., by: Kay J. Jackson Demailly, Asst. Att’y Gen., for appellee.
   John I. Purtle, Justice.

This matter is here on an original petition for a writ of prohibition to the Pulaski Circuit Court, Sixth Division, to prevent the trial court from conducting a trial on the matter in dispute between the parties. Petitioners argue the Circuit Court lacks jurisdiction because the plaintiff lacks standing and capacity to maintain an action in the courts. We agree that the plaintiff lacks both standing and capacity.

Round River Horizontal Property Regime (Regime) filed suit in the trial court below seeking damages for breach of contract and punitive damages. The Regime was and is an unincorporated association of property owners who own most of the condominiums in a project which was originated, developed, managed and sold by petitioners. The Regime is apparently in control of the common property used by the residents. Petitioners’ answer to the complaint was that the Regime lacked capacity and standing to maintain the action. The trial court denied petitioners’ motion for a summary judgment. This petition was then filed in this court.

The trial court found that the Regime was an unincorporated association with no designated agent for service of process. This fact is undisputed. Therefore, the question presented is whether such an association has capacity or standing to maintain an action in its own behalf.

We briefly note that the purpose of a writ of prohibition is to prevent a court from exercising powers not authorized by law when there is no other adequate remedy available. Streett v. Roberts, 258 Ark. 839, 529 S.W.2d 343 (1975). If jurisdiction depends upon establishment of facts, then it is a matter for the trial court and properly presented on appeal to this court. Robinson v. Means, Judge, 192 Ark. 816, 95 S.W.2d 98 (1936). In the case before us all parties agree that the plaintiff is an unincorporated association with no agent for service and that the association is apparently operating pursuant to its own bylaws. Prohibition is a proper remedy when the jurisdiction of the trial court depends upon a legal rather than a factual question. Titsworth v. Mayfield, 241 Ark. 641, 409 S.W.2d 500 (1966).

We now consider whether the Regime has capacity to sue. The general rule in Arkansas is that an unincorporated association does not have the capacity to sue. Curators of Central College v. Bird, 148 Ark. 323, 229 S.W. 730 (1921). In Bird we stated: “It goes without saying that suits must be instituted or defended by persons, either natural or artificial. ‘Curators of Central College’ is not a designation or description of any person either natural or artificial.” In Baskins v. United Mine Workers of America, 150 Ark. 398, 234 S.W. 464 (1921), an unincorporated association (the union) was sued on allegations that members of the association had murdered the decedent. We held that an unincorporated association could not be sued in the absence of a statute, but that the proper parties were the individual members. We do not find that the legislature has enacted statutes allowing the Regime to sue or be sued! The same issue was considered in Smith v. Arkansas Motor Freight Lines, Inc., 214 Ark. 553, 217 S.W.2d 249 (1949). In Smith the union had entered into a contract with the employer. The president and secretary of the union brought suit, in a class action for all of its members, to compel the employer to comply with the terms of the agreement. We held that the action could be maintained. However, the authority to sue was pursuant to Ark. Stat. Ann. § 27-809 (1947). That statute was superseded by ARCP Rule 23 (class actions). In the present case there was no person, natural or artificial, purporting to act for the class. The Regime is simply a piece of property owned by the individual members of the association. Absent statutory authority or incorporation, the Regime has no capacity to sue or be sued.

We now consider the “standing” issue. An unincorporated association cannot acquire and hold property in its own name. NLR Hunting Club v. Toon, 259 Ark. 784, 556 S.W.2d 709 (1976). Suits brought by or against members of an unincorporated association may be maintained as class actions by naming certain members as representatives of the class if it appears that the representative parties will fairly and adequately protect the interests of the association and its members. ARCP Rule 23.2. Summons may be served upon an unincorporated association by serving an agent authorized by appointment or by law to receive such service. ARCP Rules 4(d) and (5). No such person exists in the present case. In this case there was no named individual who had been appointed or designated by law to receive process or act on behalf of the other class members. Therefore, the Regime had neither standing nor capacity to sue.

Writ granted.

Dudley, J. and Hays, J., not participating.


text:
    Joe MOUROT, Marlin FREEMAN and Joyce BAILEY v. ARKANSAS BOARD OF DISPENSING OPTICIANS
    84-241
    685 S.W.2d 502
    Supreme Court of Arkansas
    Opinion delivered March 4, 1985

      Larry D. Vaught, for appellant.

      Steve Clark, Att’y Gen., by: Thomas S. Gay, Asst. Att’y Gen., for appellee.
   John I. Purtle, Justice.

The Arkansas Board of Dispensing Opticians was created by Act 589 of 1981 (Ark. Stat. Ann. §§ 72-2102 — 72-2123 [Supp. 1983]). Among the Board’s duties are the registration and licensure of dispensing opticians. Applicants for registration or licensure are normally required to successfully complete an examination of their professional skills. However, section nine of the Act (Ark. Stat. Ann. § 72-2109) is a “grandfather clause” which allows the registration or licensure, without examination, of dispensing opticians who meet certain requirements. Under section nine, the requirements for obtaining a certificate of registry are somewhat different from the requirements for obtaining a certificate of licensure.

Appellants applied to the Board for certificates of licensure under section nine. The applications were denied. Appellants appealed to the full Board which, after interviews with appellants, again denied the applications. The Board stated that it was denying the applications because appellants had not “been providing direct retail ophthalmic dispensing services as [their] primary mode of employment or business.” Appellants appealed to the circuit court, which affirmed the decision of the Board. This appeal followed.

The Board’s decision must be reversed because there is no requirement that an applicant for licensure must have “been providing direct retail ophthalmic dispensing services as his primary mode of employment or business. . .” That language is taken from subsection (a) of section nine, which sets out the requirements to be met by applicants for certificates of registry. It has no application to applicants for certificates of licensure. The requirements for applicants for certificates of licensure are set out in subsection (b) of section nine. An applicant under subsection (b) need only show, in addition to requirements not in dispute here, that he has “been providing ophthalmic dispensing services to the public. . . for a minimum period of five (5) years immediately prior to the effective date of [the] Act.” Appellants met their burden of proof when they demonstrated that they have been providing such services for the requisite period of time.

Contrary to the Board’s argument, neither this court nor the Board has the authority to add a “full time,” “primary mode of employment,” or “retail” requirement to subsection (b). When a statute is plain and unambiguous, we must give it effect as it reads. In such cases, we are primarily concerned with what the document says, not with what its drafters may have intended. Bishop v. Linkway Stores, Inc., 280 Ark. 106, 655 S.W.2d 426 (1983); City of Little Rock v. Arkansas Corp. Commission, 209 Ark. 18, 189 S.W.2d 382 (1945). If the General Assembly did intend to say something different in subsection (b), it has the authority to amend the Act. Unless and until the General Assembly does amend the Act, our duty is to apply it as it reads.

Reversed.


text:
    John A. YACONO v. STATE of Arkansas
    CR 85-2
    685 S.W.2d 500
    Supreme Court of Arkansas
    Opinion delivered March 4, 1985

      Robert E. Irwin, for appellant.

      Steve Clark, Att’y Gen., by: Velda P. West, Asst. Att’y Gen., for appellee.
   John I. Purtle, Justice.

Appellant was convictedin the Yell County Circuit Court, to which he had appealed from a municipal court conviction, of DWI (Act 549 of 1983). On appeal to this court he argues: I) the Circuit Court erred in allowing the introduction of a breathalyzer test showing his blood alcohol content was .13%; II) the verdict was contrary to the facts and the law; and III) it was error to allow the test results because it was not taken immediately after he had been driving. We do not agree with these arguments and therefore affirm the judgment of the trial court.

The facts reveal that appellant had been drinking at a party before driving his girlfriend home. Near her house he struck an embankment or some stationary object. Thereafter he drove the car to her house where he stated he consumed additional alcohol. The accident occurred sometime between 11:30 p.m. and midnight on December 10, 1983, and the ticket charging him with DWI was written at 12:09 a.m. on December 11, 1983. The breathalyzer test was administered shortly thereafter. The appellant was charged with DWI in violation of Act 549 of 1983.

Officers Sheets and Hardin did the primary investigation. They testified that they found a partially empty brandy bottle in the car and stated about 15 minutes elapsed from the time of the accident until the arrest for DWI. One of the officers testified he observed the appellant as being unsteady, hardly able to stand, weaving back and forth, smelling like he had poured alcohol all over himself, and having slurred speech.

I

The trial court allowed the introduction of the breath test into evidence although appellant was charged with being intoxicated. Ark. Stat. Ann. § 75-2503 (a) (Supp. 1983) makes it illegal for a person to operate or be in control of a vehicle if he is intoxicated. Subsection (b) of the same statute makes it illegal for a person to operate or be in control of a vehicle if his blood alcohol content is 0.10% or more. Either of the above described conditions is a violation of Act 549 of 1983, commonly called the “Omnibus DWI Act.” The emergency clause stated the matter of vehicles being operated or controlled by persons under the influence of alcohol or drugs was so great a danger to the public that the Act should go into effect immediately. The thrust of the Act is to keep drinking drivers and those using drugs out of vehicles because the General Assembly has determined them to be a threat to the general public. When a person operates or controls a vehicle while intoxicated (as a result of the ingestion of alcohol or drugs or both) or with a blood alcohol content of 0.10% or more, he violates Act 549. The penalty is the same whether the act is violated by conduct described by (a) or (b). In other words, the two conditions are simply two different ways of proving a single violation. Intoxication may be proven in the manner described in Ark. Stat. Ann. § 75-2502 (a). Proof of blood alcohol content in excess of 0.10% is evidence which may tend to prove intoxication.

II

Little time need be spent on the argument of the sufficiency of the evidence. The test is whether there is substantial evidence to support the verdict. Lunon v. State, 264 Ark. 188, 569 S.W.2d 663 (1978). Substantial evidence is such evidence that forces the mind to a conclusion which is beyond suspicion or conjecture. Brown v. State, 278 Ark. 604, 648 S.W.2d 67 (1983). In deciding whether evidence is substantial, appellate courts take notice of the unquestioned laws of nature, of mathematics and of physics. Ocker v. Nix, 202 Ark. 1064, 155 S.W.2d58 (1941). In testing whether there is substantial evidence we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the party who is relying upon the evidence. If material and relevant evidence is not in dispute or there is a conflict in the evidence to the extent that fair minded persons might draw different conclusions therefrom, the evidence is substantial. Collett v. Loews, 203 Ark. 756, 158 S.W.2d 658 (1942). The evidence, both disputed and undisputed, recited in the facts of this case are such that reasonable minded persons could reach different conclusions. Therefore, there is substantial evidence to support the verdict.

Ill

Appellant cites no authority for the argument that the trial court erred in allowing the results of the breath test to be introduced into evidence. The test was given at least 30 minutes after the accident and after appellant had drunk additional alcohol. This argument is based entirely upon the fact that appellant ingested additional alcohol between the time of the accident and the time of the test. Of course there is no method by which the additional whiskey could be measured separately from the old whiskey which was already in his bloodstream. There was substantial other evidence to support the verdict without considering appellant’s blood alcohol content. In any event the test results were admissible along with any other relevant evidence.

Affirmed.