author: D ONALD L. CORBIN, Justice. T 'OM Glaze, Justice,

text:
    Cartrell Lewan McCOY v. STATE of Arkansas
    CR 01-762
    69 S.W.3d 430
    Supreme Court of Arkansas
    Opinion delivered March 14, 2002
    [Supplemental opinion on denial of rehearing delivered April 18, 2002.]

      William R. Simpson, Jr., Public Defender; Brett Qualls and Steve Abed, Deputy Public Defenders, by: Deborah R. Sailings, Deputy Public Defender, for appellant.

      Mark Pryor, Att’y Gen., by: Lauren Elizabeth Heil, Ass’t Att’y Gen., for appellee.

        Reporter’s note: See 348 Ark. 239, 74 S.W.3d 599 (2002).

   D ONALD L. CORBIN, Justice.

Appellant Cartrell Lewan McCoy was convicted of attempted first-degree murder and burglary in the Pulaski County Circuit Court. He was sentenced to thirty years’ and five years’ imprisonment, respectively, and ordered to pay a fine of $5,000. Additionally, the trial court revoked his probation for a prior conviction of possession of cocaine with intent to deliver and sentenced him to a concurrent term of fifteen years’ imprisonment. Appellant appealed to the Arkansas Court of Appeals, arguing that the trial court erred in denying his motion to instruct the jury on the crime of attempted second-degree murder. The court of appeals agreed with Appellant and reversed. See McCoy v. State, 74 Ark. App. 414, 49 S.W.3d 154 (2001). The State filed a petition for review of that decision, and we granted it, pursuant to Ark. Sup. Ct. R. l-2(e). When we grant review following a decision by the court of appeals, we review the case as though it had been originally filed with this court. See Kennedy v. State, 344 Ark. 433, 42 S.W.3d 407 (2001); Miller v. State, 342 Ark. 213, 27 S.W.3d 427 (2000). We reverse the trial court and affirm the court of appeals.

The facts of this case are not in dispute. On August 11, 1999, Appellant entered the apartment of Rodney Wilson and began firing a gun toward his ex-girlfriend, Sarah Battung. Battung was hit by two bullets, one in her chest and one in her back. As a result of the incident, Appellant was charged with attempted first-degree murder under Ark. Code Ann. §§ 5-3-201 and 5-10-102(a)(2) (Repl. 1997). In addition, Appellant was charged with residential burglary, in violation of Ark. Code Ann. § 5-39-201 (a)(1) (Repl. 1997), for having entered or remained unlawfully on Wilson’s premises.

At the conclusion of all the evidence, Appellant requested an instruction on attempted second-degree murder, under Ark. Code Ann. § 5-10-103(a)(l) (Repl. 1997). The State objected on the ground that the attempt statute, section 5-3-201, requires that a person act purposely, while second-degree murder under section 5-10-103(a)(l) requires that a person act knowingly. The State contended that it was not possible to purposely attempt a knowing offense. The trial court agreed and refused to instruct on second-degree murder. The jury convicted Appellant of attempted first-degree murder and burglary.

Appellant challenged the attempted-murder conviction in the court of appeals. He argued that the trial court had erred in refusing to instruct on attempted second-degree murder, because it is a lesser-included offense of attempted first-degree murder. In response, the State abandoned its trial argument and submitted three alternative reasons to affirm the trial court’s ruling. First, the State argued that attempted second-degree knowing murder is not a lesser-included offense of attempted first-degree purposeful murder, because second-degree murder requires the additional proof that the crime was committed “under circumstances manifesting extreme indifference to the value of human life.” See section 5-10-103(a)(l). Second, the State argued that the trial court’s refusal to give the instruction is correct because the instruction proffered by Appellant, a standard AMCI 2d instruction, did not accurately state the law. Third, the State argued that there was no rational basis for instructing the jury on attempted second-degree murder. The court of appeals was not persuaded by any of these arguments, and it reversed Appellant’s conviction and remanded for new trial. The State petitioned for review of this decision, and we granted it for the purpose of clarifying the law on this issue.

Before we reach the merits of this issue, we must address a preliminary issue concerning the appropriate test for determining when an offense is included in another offense. In Goodwin v. State, 342 Ark. 161, 27 S.W.3d 397 (2000), this court observed in a footnote that there were possible inconsistencies between our case law and Ark. Code Ann. § 5-1-110 (Repl. 1997), regarding the requirements for a lesser-included offense. See also Hill v. State, 344 Ark. 216, 40 S.W.3d 751 (2001). Our case law has generally required that three criteria be met before an offense will be considered a lesser-included offense. Section 5-l-110(b), on the other hand, provides three alternative ways in which an offense may be included in another offense. This inconsistency was not directly addressed in Goodwin because both parties had relied solely on this court’s case law and had not otherwise briefed the issue. This court made it clear, however, that it would be inclined to address this issue in the future, once it was properly before us.

In the present case, the State relies on this court’s case law, while Appellant relies on one of the alternative tests set out in section 5-1-110(b). Particularly, he relies on subsection (b)(3), which provides, in part, that an offense is a lesser-included offense if it differs from the offense charged only in the respect that a lesser kind of culpable mental state suffices to establish its commission. Thus, because Appellant relies on section 5-1-110, we will address the inconsistencies between our cases and that statute.

Section 5-1-110 was originally enacted in Act 280 of 1975 and became effective January 1, 1976. Prior to the passage of Act 280, the requirements for determining when an offense was included in another offense were established at common law, beginning with McBride v. State, 7 Ark. 374 (1847). There, this court held: “A party indicted of one offence may be convicted of a lesser, provided it be of the same class with that which he is charged.” Id. at 375. This holding was expanded on in Cameron v. State, 13 Ark. 712, 714 (1852), wherein this court held:

[U]pon an indictment for a felony, the accused may be convicted of a misdemeanor, where both offences belong to the same generic class, where the commission of the higher may involve the commission of the lower offence, and where the indictment for the higher offence contains all the substantive allegations necessary to let in proof of the misdemeanor.

This court adhered to this three-part test for over one hundred years. See, e.g., Sharpensteen v. State, 220 Ark. 839, 250 S.W.2d 334 (1952); Bailey v. State, 215 Ark. 53, 219 S.W.2d 424 (1949); Moreland v. State, 125 Ark. 24, 188 S.W. 1 (1916); Monk v. State, 105 Ark. 12, 150 S.W. 133 (1912); State v. Nichols, 38 Ark. 550 (1882); Guest v. State, 19 Ark. 405 (1858); Strawn v. State, 14 Ark. 549 (1854).

In Gaskin v. State, 244 Ark. 541, 426 S.W.2d 407 (1968), this court altered its prior decisions and opted for a more succinct test: “To be an included offense, all the elements of the lesser offense must be contained in the greater offense — the greater containing certain elements not contained in the lesser.” Id. at 543, 426 S.W.2d at 409 (quoting Beck v. State, 238 Ind. 210, 213, 149 N.E.2d 695, 697 (1958)). However, in Caton v. State, 252 Ark. 420, 479 S.W.2d 537 (1972), this court retreated from the one-dimensional test adopted in Gaskin and reaffirmed the prior three-prong test established in Cameron. This remained the test for lesser-included offenses until the General Assembly passed Act 280 of 1975.

Act 280 created our current comprehensive Criminal Code. The Act’s purpose is reflected in its tide: “AN ACT to Reform, Revise, and Codify the Substantive Criminal Law of the State of Arkansas[.]” Section 105 of the Act was originally codified as Ark. Stat. Ann. § 41-105 and is now found at section 5-1-110. That section provides in pertinent part:

(b) A defendant may be convicted of one offense included in another offense with which he is charged. An offense is so included if:
(1) It is established by proof of the same or less than all the elements required to establish the commission of the offense charged; or
(2) It consists of an attempt to commit the offense charged or to commit an offense otherwise included within it; or
(3) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpable mental state suffices to establish its commission.

This statute is clearly written in the disjunctive, connected with the term “or,” and provides three distinct ways in which an offense may qualify as a lesser-included offense. As if the statute itself was not clear enough, the Official Commentary to this provision plainly reflects the legislature’s intent in establishing multiple ways to determine whether an offense is included in another:

By defining an included offense, subsection (b) serves two functions. Its primary purpose is to authorize conviction of offenses not expressly named in the indictment or information, but it also delineates the exact scope of subsection (a)(l)’s prohibition on multiple convictions. Application in either context turns on the meaning of included offense, which the Code defines by establishing three alternative tests. [Citation omitted.] [Emphasis added.]

This court initially recognized that three separate tests were established by the foregoing statute. For example, in Lowe v. State, 264 Ark. 205, 570 S.W.2d 253 (1978), the appellant argued that the trial court erred in instructing the jury on negligent homicide at his trial for manslaughter. This court held that under the third test in section 41-105(2)(c), now section 5-1-110(b)(3), negligent homicide was a lesser-included offense of manslaughter because the only difference between the two offenses was that negligent homicide required a lesser kind of culpable mental state than manslaughter. See also King v. State, 262 Ark. 342, 557 S.W.2d 386 (1977); Harmon v. State, 260 Ark. 665, 543 S.W.2d 43 (1976).

Until 1985, but for a few exceptions, this court continued to view the statute as providing three separate and alternative ways of defining a lesser-included offense. See, e.g., Thomas v. State, 280 Ark. 593, 660 S.W.2d 169 (1983); Hill v. State, 278 Ark. 194, 644 S.W.2d 282 (1983) (per curiam); Akins v. State, 278 Ark. 180, 644 S.W.2d 273 (1983); Wilson v. State, 277 Ark. 219, 640 S.W.2d 440 (1982) (per curiam); Martin v. State, 277 Ark. 175, 639 S.W.2d 738 (1982) (per curiam); Brewer v. State, 277 Ark. 40, 639 S.W.2d 54 (1982); Barnum v. State, 276 Ark. 477, 637 S.W.2d 534 (1982) (per curiam); Rowe v. State, 275 Ark. 37, 627 S.W.2d 16 (1982) (per curiam); Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981); and Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981) (collectively holding that an offense is a lesser-included offense if it is established by proof of the same or fewer elements required to establish the greater offense). See also James v. State, 280 Ark. 359, 658 S.W.2d 382 (1983) (holding that, under the third statutory test, an offense is included in another if they are of the same generic class and differ only in the degree of seriousness of injury). But see Allen v. State, 281 Ark. 1, 660 S.W.2d 922 (1983), cert. denied, 472 U.S. 1019 (1985); and Foster v. State, 275 Ark. 427, 631 S.W.2d 7 (1982) (disregarding two of the three statutory tests and holding that an offense was not a lesser-included offense because it required proof beyond those elements required to commit the greater offense).

In Thompson v. State, 284 Ark. 403, 682 S.W.2d 742 (1985), that all changed. There, the appellant contended that it was error for the trial court to refuse to instruct the jury that theft is a lesser-included offense of robbery. This court rejected her argument, but not on the basis of the statutory tests. Rather, without explanation, this court reverted to pre-code decisions, requiring three criteria to establish lesser-included offenses, holding:

[A]n offense is not a lesser included offense solely because a greater offense includes all of the elements of an underlying offense. The lesser included offense doctrine additionally requires that the two crimes be of the same generic class and that the differences between the offenses be based upon the degree of risk or risk of injury to person or property or else upon grades of intent or degrees of culpability.

Id. at 407-08, 682 S.W.2d at 745. Since Thompson, this court has repeatedly applied those three criteria with little or no mention of the statutory law. See, e.g., Hill, 344 Ark. 216, 40 S.W.3d 751; Goodwin, 342 Ark. 161, 27 S.W.3d 397; Byrd v. State, 337 Ark. 413, 992 S.W.2d 759 (1999); McElhanon v. State, 329 Ark. 261, 948 S.W.2d 89 (1997); Brown v. State, 325 Ark. 504, 929 S.W.2d 146 (1996); Tackett v. State, 298 Ark. 20, 766 S.W.2d 410 (1989); Henderson v. State, 286 Ark. 4, 688 S.W.2d 734 (1985). But see Sullivan v. State, 289 Ark. 323, 711 S.W.2d 469 (1986) (relying on the earlier test established in Gaskin, 244 Ark. 541, 426 S.W.2d 407, that to constitute an included offense, all the elements of the lesser offense must be contained in the greater offense which contains certain elements not in the lesser offense).

The holding in Thompson and its successors is in direct conflict with the plain language of section 5-1-110. Accordingly, we retreat from those holdings to the extent that they conflict with the statutory law. We wish to make clear from our decision today that the determination of when an offense is included in another offense depends on whether it meets one of the three tests set out in section 5-1-110(b) (3). With this holding in mind, we review the merits of the issue in this case.

I. Lesser-included Offense

Although Appellant was actually charged with attempted first-degree murder and sought an instruction on attempted second-degree murder, our resolution of this appeal requires us to initially determine whether second-degree murder is a lesser-included offense of first-degree murder. Appellant was charged with attempted first-degree murder under section 5-10-102(a)(2), which provides that a person commits first-degree murder if “[w]ith a purpose of causing the death of another person, he causes the death of another person.” He sought an instruction under section 5-10-103(a)(1), which provides that a person commits second-degree murder if “[h]e knowingly causes the death of another person under circumstances manifesting extreme indifference to the value of human life.” He asserts that the requirement of “extreme indifference” is part of the culpable mental state of the perpetrator. Thus, he asserts that this version of second-degree murder differs from purposeful first-degree murder only to the extent that it requires a lesser culpable mental state, as provided in section 5-1-110(b)(3).

The State, on the other hand, argues that the phrase “under circumstances manifesting extreme indifference to the value of human life” is an additional element of the crime of second-degree murder, not merely a part of the mental state. It contends that the holding in Byrd, 337 Ark. 413, 992 S.W.2d 759, is directly on point. We disagree.

The phrase “under circumstances manifesting extreme indifference to the value of human life” is found in numerous criminal offenses involving injury or death to persons. Regardless of the offense in which it appears, however, this court has consistently viewed that phrase as part of the proof of the actor’s mental state. See, e.g., Branstetter v. State, 346 Ark. 62, 57 S.W.3d 105 (2001); Flowers v. State, 342 Ark. 45, 25 S.W.3d 422 (2000); Isbell v. State, 326 Ark. 17, 931 S.W.2d 74 (1996); Hill v. State, 325 Ark. 419, 931 S.W.2d 64 (1996); Tigue v. State, 319 Ark. 147, 889 S.W.2d 760 (1994); Weger v. State, 315 Ark. 555, 869 S.W.2d 688 (1994); Burnett v. State, 295 Ark. 401, 749 S.W.2d 308 (1988); Nolen v. State, 278 Ark. 17, 643 S.W.2d 257 (1982); State v. Vowell, 276 Ark. 258, 634 S.W.2d 118 (1982); Martin v. State, 261 Ark. 80, 547 S.W.2d 81 (1977).

In the first of those cases, Martin, this court held that “the phrase ‘circumstances manifesting extreme indifference to the value of human life’ indicates that the attendant circumstances themselves must be such as to demonstrate the culpable mental state of the accused.” Id. at 84, 547 S.W.2d at 83. Extreme indifference is thus “in the nature of a culpable mental state . . . and therefore is akin to ‘intent.’ ” Vowell, 276 Ark. at 260, 634 S.W.2d at 119 (citing Martin, 261 Ark. 80, 547 S.W.2d 81). Offenses requiring extreme indifference involve actions that “evidence a mental state on the part of the accused to engage in some life-threatening activity against the victim.” Tigue, 319 Ark. at 152, 889 S.W.2d at 762. In the case of capital murder under Ark. Code Ann. § 5-10-101(a)(9) (Repl. 1997), which requires proof that the defendant knowingly caused the death of a person fourteen years old or younger under circumstances manifesting extreme indifference, this court has held that the requirement of extreme indifference goes to the perpetrator’s intent, such that he must act with deliberate conduct that culminates in the death of a person. See Branstetter, 346 Ark. 62, 57 S.W.3d 105. But for the required age of the victim, the capital-murder statute at issue in Branstetter mirrors the version of second-degree murder at issue here.

The State’s reliance on this court’s holding in Byrd, 337 Ark. 413, 992 S.W.2d 759, is misplaced. There, the defendant was charged with first-degree murder under section 5-10-102(a)(3), which requires proof that the defendant “knowingly caus[es] the death of a person fourteen (14) years of age or younger” at the time of the crime. Id. at 425-26, 992 S.W.2d at 766. At trial, Byrd sought an instruction for second-degree murder, that he knowingly caused the death of another person under circumstances manifesting extreme indifference to the value of human life. The trial court refused the instruction, and this court affirmed. This court held that second-degree murder was not a lesser-included offense of the type of first-degree murder charged in that case, because “the element of causing a death under circumstances manifesting extreme indifference to the value of human life is not an element of the charge for first-degree murder of a person aged fourteen years or younger.” Id. at 426, 992 S.W.2d at 766. By using the word “element,” the State contends that this court effectively concluded that the “extreme indifference” language was an attendant circumstance that must be proven separate and apart from the required mental state. We disagree.

The holding in Byrd is clearly limited to the situation where the perpetrator is charged with first-degree murder by knowingly causing the death of a person fourteen years old or younger. Second-degree murder is not a lesser-included offense of that type of first-degree murder, because it requires that the accused act knowingly with extreme indifference, as opposed to just knowingly. This is as far as the holding in Byrd extends. It does not extend to the type of first-degree murder at issue here, requiring that the accused purposely cause the death of another. Thus, Byrd does not control the issue in this case.

Here, Appellant was charged with attempted first-degree murder, in that, with the purpose of causing the death of another person, he attempted to cause the death of his ex-girlfriend. The requisite mental state to commit first-degree murder is “purposely.” Arkansas Code Annotated § 5-2-202(1) (Repl. 1997) provides: “A person acts purposely with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result.” The mental state of “purposely” includes that of “knowingly.” See Ark. Code Ann. § 5-2-203(c) (Repl. 1997). “Knowingly” is defined as follows:

A person acts knowingly with respect to his conduct or the attendant circumstances when he is aware that his conduct is of that nature or that such circumstances exist. A person acts knowingly with respect to a result of his conduct when he is aware that it is practically certain that his conduct will cause such a result.

Section 5-2-202(2). We agree with the court of appeals that the definition of “purposely” encompasses the culpable mental state of acting knowingly with extreme indifference, which requires deliberate conduct with a knowledge or awareness that one’s actions are practically certain to bring about the prohibited result. The combination of knowledge and extreme indifference requires proof that the defendant acted with more than mere knowledge, but less than purposeful intent. Thus, second-degree murder under section 5-10-103(a)(l) is a lesser-included offense of first-degree murder under section 5-10-102(a)(2), as it differs from the greater offense only to the extent that it requires a lesser kind of culpable mental state. See section 5-l-110(b)(3). Accordingly, it was error for the trial court to refuse to instruct the jury on attempted second-degree murder.

II. Proffered Jury Instruction

Alternatively, the State urges that we may affirm the conviction in this case on the ground that the instruction proffered by Appellant did not accurately state the law. The State admits that the proffered instruction was taken directly from AMCI 2d 501. The State also admits that it did not make any objection to the form of the instruction in the trial court. Notwithstanding, the State asks us to affirm because the trial court reached the right result, only for a different reason. We agree that this court may affirm the trial court’s ruling if it was the right result, even though the trial court announced the wrong reason. See, e.g., Williams v. State, 343 Ark. 591, 36 S.W.3d 324 (2001); Bell v. State, 334 Ark. 285, 973 S.W.2d 806 (1998); Hagen v. State, 315 Ark. 20, 864 S.W.2d 856 (1993). However, this affirmance rule presupposes that a ruling on the issue was made by the trial court.

Here, the record reflects that Appellant asked the trial court to instruct the jury on the lesser-included offense of attempted second-degree murder. The prosecution objected on the ground that criminal attempt is a purposeful act, while second-degree murder is a knowing act, and that one cannot purposely commit a knowing offense. The trial court agreed and refused to instruct the jury on the lesser-included offense. The issue of the sufficiency of the proffered instruction was not part of the trial court’s ruling. Indeed, there is nothing to indicate that the trial court was even remotely concerned with the language of the instruction itself. Thus, the affirmance rule is not applicable. This is not a case where the trial court found the instruction insufficient because it misstated the first required element and the State asked us to affirm the ruling on the ground that the instruction misstated the second element. The affirmance rule could be applied in that situation. Here, there was no ruling whatsoever on the language of the instruction. Without a ruling on this issue, there is nothing for us to review.

Moreover, we cannot review this particular issue because the trial court did not make any findings regarding the sufficiency of the proffered instruction. The instruction proffered in this case is a model instruction, taken directly from AMCI 2d 501. When this court promulgated the second edition of the model jury instructions for criminal cases, it entered an order on their proper usage. See In Re: Arkansas Model Criminal Instructions, 264 Ark. Appx. 967 (1979) {per curiam). This order directed that “the AMCI instruction shall be used unless the trial judge finds that it does not accurately state the law. In that event he will state his reasons for refusing the AMCI instruction.” Id. See also Jones v. State, 336 Ark. 191, 984 S.W02d 432 (1999); Smith v. State, 334 Ark. 190, 974 S.W.2d 427 (1998); Calloway v. State, 330 Ark. 143, 953 S.W.2d 571 (1997); Webb v. State, 326 Ark. 878, 935 S.W.2d 250 (1996); Kemp v. State, 324 Ark. 178, 919 S.W.2d 943, cert. denied, 519 U.S. 982 (1996); Hill v. State, 318 Ark. 408, 887 S.W.2d 275 (1994); Moore v. State, 317 Ark. 630, 882 S.W.2d 667 (1994); Campbell v. State, 294 Ark. 639, 746 S.W.2d 37 (1988) (collectively holding that the trial court should not give a non-modei instruction unless it finds or concludes that the model instruction does not accurately state the law). Thus, our cases require a ruling by the trial court regarding the correctness of the model instruction before this court will find error. This was not done here.

Additionally, were we to entertain the State’s argument in this case, we would be placing Appellant in a particularly unfair position. Had this argument been raised below, defense counsel undoubtedly would have been given the opportunity to alter the language of the instruction to satisfy the State’s disagreement. It would be unduly harsh to affirm the conviction, knowing that Appellant was not given an opportunity to revise any alleged inaccuracies in the instruction. Accordingly, we will not reach the merits of the State’s argument on this point.

III. Rational Basis

Lastly, the State argues that we may affirm the trial court’s refusal to instruct on the lesser-included offense of attempted second-degree murder because there was no rational basis for giving the instruction. We recently set out the standard for instructing the jury on lesser-included offenses:

No right has been more zealously protected by this court than the right of an accused to have the jury instructed on lesser-included offenses. Rainey v. State, 310 Ark. 419, 837 S.W.2d 453 (1992); Robinson v. State, 269 Ark. 90, 598 S.W.2d 421 (1980). It is reversible error to refuse to give an instruction on a lesser-included offense when the instruction is supported by even the slightest evidence. See Ellis v. State, 345 Ark. 415, 47 S.W.3d 259 (2001); Harshaw v. State, 344 Ark. 129, 39 S.W.3d 753 (2001). Thus, we will affirm the trial court’s decision to exclude an instruction on a lesser-included offense only if there is no rational basis for giving the instruction. Id. See abo Ark. Code Ann. § 5-l-110(c) (Repl. 1997).

Brown v. State, 347 Ark. 44, 47, 60 S.W.3d 422, 424 (2001). Accordingly, if there was at least the slightest evidence to warrant the instruction, we must reverse and remand for a new trial.

The evidence at trial revealed that Appellant had been dating Sarah Battung for two and one-half years before she broke off the relationship on June 30, 1999. After the break-up, Appellant tried repeatedly to get back together with her and continued to call her. Battung resisted his efforts. At some point, Battung obtained a no-contact order against Appellant. On the evening of August 11, 1999, Battung was staying at Rodney Wilson’s apartment. Appellant had made repeated telephone calls to Wilson’s apartment that evening trying to apologize to Battung. Battung refused to talk to Appellant and hung up on him several times. Around midnight, Appellant called again. This time, Battung yelled and cursed at him. While she was on the telephone, one of the men present in Wilson’s apartment walked over to Battung and gave her a kiss. Appellant could tell what had happened, and he became angry. He then told Battung that he was going to kill her. Battung did not' believe Appellant’s threats, but she told him that she was going to call the police in the morning. She then hung up the phone. Appellant called right back and told Battung that he was sorry and that he had said what he said because he was mad.

Thereafter, Appellant’s sister, Trineka McCoy, who was one of five or six persons present in Wilson’s apartment, went out onto the balcony and discovered Appellant sitting there in a chair. Trineka described Appellant as looking pretty upset. She warned him not to go inside the apartment. Disregarding his sister’s instruction, Appellant entered the apartment and began arguing and fighting with two men. He also accused Battung of sleeping with one of the men. Battung was walking from the kitchen to the couch when she saw Appellant enter the apartment. She then sat down on the couch and began to dial 911. Appellant asked her if she was calling the police, and she stated that she was. Appellant then began shooting at her.

We view this proof as providing at least the slightest evidence that Appellant acted knowingly with extreme indifference to the value of human life. We disagree with the dissent that the proof unquestionably shows that Appellant acted with the purpose to kill Battung. Although Appellant did threaten to kill Battung just before the shooting, he also apologized to her immediately thereafter and told her that he had made the threat because he was mad. Moreover, there was evidence showing that Appellant shot at Battung in an attempt to stop her from calling the police, not for the purpose of killing her. The testimony demonstrates that Appellant only fired his gun after Battung told him that she was calling the police. Based on this evidence, the jury could have found that Appellant fired at Battung knowing that his conduct was practically certain to cause her death, but being extremely indifferent to the value of human life. Accordingly, it was error for the trial court to refuse to instruct the jury on the lesser-included offense of attempted second-degree murder. We thus reverse the judgment of conviction and remand for a new trial.

Circuit Court reversed and remanded; Court of Appeals affirmed.

Arnold, C.J., and Glaze, J., dissent.

T 'OM Glaze, Justice,

dissenting. I respectfully dissent on the basis that no rational basis existed on which to instruct the jury as to second-degree murder. To explain, I turn to the statutory history leading to our law defining first-degree and second-degree murder.

In 1975, the General Assembly enacted Act 280, which reformed, revised, and codified Arkansas’s substantive criminal law. Section 1502 of Act 280, pp. 549-560, defined murder in the first degree as follows:

(1) A person commits murder in the first degree if:
(a) acting alone or with one or more other persons, he commits or attempts to commit a felony, and in the course of and in the furtherance of the felony, or in the immediate flight therefrom, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life, or
(b) with the premeditated and deliberated purpose of causing the death of another person, he causes the death of any person.

Section 1503 of Act 280, pp. 600-601, defined second-degree murder as follows:

(1) A person commits murder in the second degree if:
(a) with the purpose of causing the death of another person, he causes the death of any person; or
(b) he knowingly causes the death of another person under circumstances manifesting extreme indifference to the value of human life; or
(c) with the purpose of causing serious physical injury to another person, he causes the death of any person.

In the First Extraordinary Session of 1987, the General Assembly enacted Act 52, which revised the above definitions of first-degree murder by adding a new subsection (c) to read as follows:

(c) under circumstances manifesting cruel or malicious indifference to the value of human life, he knowingly causes the death of a person fourteen years of age or younger.

This new subsection was the General Assembly’s response, reflecting dissatisfaction with this court’s split decision in Midgett v. State, 292 Ark. 278, 729 S.W.2d 410 (1987), where the court found no evidence of premeditation and deliberation to prove first-degree murder where a child’s death was caused from a beating at the hands of his drunken father; in Midgett this court reduced the father’s conviction to second-degree murder.

And finally, the General Assembly in 1989 enacted Act 856, which basically revised the homicide statutes as follows:

(1) It moved the first-degree murder provision, “with the premeditated and deliberated purpose of causing the death of another person, he causes the death of any person,” to be included as an element of the offense of capital murder. See Ark. Code Ann. § 5-10-101(a)(4).
(2) It revised the second-degree murder offense, removing the provision, “with a purpose of causing the death of another person, he causes the death of another person,” and placing that provision in the statute defining first-degree murder. See Ark. Code Ann. § 5-10-102(a)(2).
(3) And as pointed out in (2), Act 856 reduced the second-degree statute to two elements only: One, a person commits murder in the second degree if he knowingly causes the death of another person under circumstances manifesting extreme indifference to the value of human life; or, two, with the purpose of causing serious physical injury to another person, he causes the death of any person.

After noting the changes made as a result of Acts 52 and 856 set out above, the two following changes are especially pertinent to the case before us: (1) the first-degree murder statute, section 5-10-102(a), now embodies the offense element, “with a purpose of causing the death of another person, he causes the death of another person,” and (2) the second-degree murder statute, section 5-10-103(a), no longer includes that offense element.

These foregoing changes in elements are particularly significant in light of the evidence offered at Mr. McCoy’s trial. Here, his victim, Sarah Battung, testified that, by telephone, McCoy told her that he was going to kill her. McCoy subsequently went to Sarah’s apartment, where some of her friends were present. McCoy looked like he was trying to fight Sarah’s friends, and Sarah started to dial 911 on the phone. McCoy asked, “What are you doing? Are you calling the police?” Sarah said, “Yes.” McCoy then pointed a gun directly at Sarah and started shooting in rapid succession, hitting her once in her side and another time in her back. She testified that there was no one between her and him.

In the foregoing evidence, McCoy unquestionably attempted to purposely cause Sarah’s death as provided in section 5-10-102(c)(2), as amended by Act 856 of 1989. Prior to 1989, section 5-10-103, the second-degree murder statute and its “purposely” element, would have applied to the offense before us; however, since 1989, that is no longer true. McCoy argues the second-degree murder statute still applies, because under section 5-10-103(a)(l), he knowingly attempted to cause Sarah’s death under circumstances manifesting extreme indifference to the value of human life. However, to read section 5-10-103(a)(l) in this way suggests there is no difference between the language used in the first-degree murder provisions 5-10-102(a)(2) and -103(a). In other words, the General Assembly did a meaningless act when it revised those two statutes so the “purposely” provision was removed from section 5-10-103(a) to 5-10-102(a)(2). I cannot agree.

This court has distinguished the phrase “circumstances manifesting extreme indifference to the value of human life” to mean that the attendant circumstances themselves must be such as to demonstrate the culpable mental state of the accused. Martin v. State, 262 Ark. 80, 547 S.W.2d 81 (1977); see also Tigue v. State, 319 Ark. 147, 889 S.W.2d 760 (1994). To act “purposely,” on the other hand, is when a person acts with the conscious object to engage in conduct to cause such a result — in this case, when McCoy acted with the purpose to cause Sarah’s death. McCoy told Sarah he was going to kill her, and he acted on that by going to her apartment, pointing his gun directly at her, and firing and unloading it at her, hitting her two times in vital parts of her body.

This case is not a situation in which the State had to demonstrate McCoy’s mental state by an additional showing of extreme indifference to human life by attendant circumstances. Here, his conscious object was evident by his telling Sarah he intended to kill her, and he immediately proceeded to act on that objective. McCoy’s mental state was made obvious by his sole actions. For McCoy’s acts to fall within the second-degree murder statute, the evidence must have shown that the attendant circumstances manifested extreme indifference to the value of human fife. For example, this court has found such attendant circumstances when a defendant fires his gun into a crowd, see Johnson v. State, 270 Ark. 992; 606 S.W.2d 752 (1980); when a father repeatedly beat his frail son who died as a result, see Branstetter v. State, 346 Ark. 62, 57 S.W.3d 105 (2001); or when, although denying any knowledge of his accomplices’ plans to kill the victim, the defendant joined accomplices in a robbery which resulted in the victim’s death, see Hutts v. State, 342 Ark. 278, 28 S.W.3d 265 (2000).

In the present case, the facts simply do not support a finding of such attendant circumstances. Had the facts been different — for example, had McCoy fired randomly into the room where the party was taking place — then perhaps I could agree with the majority that there was the slightest evidence to support the giving of the lesser instruction. However, McCoy aimed and fired directly at Sarah, shortly after he said he was going to kill her. This is evidence of a purposeful mental state, not evidence of an awareness of attendant circumstances.

In conclusion, the majority opinion correctly states that it is reversible error to refuse to give an instruction on a lesser-included offense when the instruction is supported by the slightest evidence. Atkinson v. State, 347 Ark. 336, 64 S.W.3d 259 (2002). However, the trial court may refuse to offer a jury instruction on an included offense when there is no rational basis for a verdict acquitting the defendant of the charged offense and convicting him of the included offense. Id. As already alluded to above, because McCoy acted purposely in his attempt to kill Sarah, but failed to present evidence showing there were attendant circumstances that resulted in causing her to be shot, I would affirm McCoy’s conviction.

Arnold, C.J., joins this dissent.

       Appellant’s attorney filed a no-merit brief on the revocation. The court of appeals initially declined to reach the issue because counsel had not provided the entire record for review. On rehearing, however, the court of appeals reversed itself and affirmed the trial court’s ruling revoking Appellant’s probation. See McCoy v. State, 74 Ark. App. 423-A, 52 S.W.3d 510 (2001) (supplemental opinion on grant of reh’g). Neither party seeks review of that part of the decision; hence, we do not review it.

       Purposely is defined by the criminal code as when a person acts purposely with respect to his conduct as a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result. Ark. Code Ann. § 5-2-202(1) (Repl. 1997).


source: Caselaw Access Project

author: D ONALD L. CORBIN, Justice.

license: Public Domain

text:
    Robert SPEARS and Barbara Spears v. John MILLS and Carol Mills
    01-887
    69 S.W.3d 407
    Supreme Court of Arkansas
    Opinion delivered March 14, 2002

      Benson, Robinson & Wood, by: Joe Benson and Brian D. Wood, for appellants.

      Greenhaw & Greenhaw, by: John Greenhaw, for appellees.
   D ONALD L. CORBIN, Justice.

This appeal presents an issue of first impression: Whether a trial court has authority to reconvene a jury to be polled and to deliberate further on its verdict once the jury has been discharged and has left the courtroom. Appellants Robert and Barbara Spears argue that the Washington County Circuit Court exceeded its authority in this case by allowing the jury to reconvene and produce a verdict that contradicted its initial verdict. They argue further that the trial court erred in granting a mistrial on the issue of damages and ordering a new trial on that issue. Our jurisdiction of this appeal is pursuant to Ark. Sup. Ct. R. l-2(b)(l). We agree with Appellants, and we reverse the trial court’s judgment and remand for entry of the first jury verdict.

The record reflects that Appellees John and Carol Mills filed a complaint in the circuit court against Appellants, alleging that Appellants violated a warranty of habitability in the initial construction and subsequent repairs to the house that Appellees purchased from Appellants. Appellants responded by asserting that the suit was barred by the five-year statute of limitation, as they contended that the house was substantially completed on September 13, 1995, but the complaint was not filed until September 20, 2000. Appellants also asserted that the repairs completed in May 1996, remedied the situation.

The case was tried to a jury in February 2001. At the conclusion of the evidence, the jury was initially instructed to complete four interrogatories on liability. The first two asked the jury whether Appellants had breached a warranty of habitability in the sale of the house and in the roof repairs done in 1996. Both interrogatories were answered affirmatively. The third interrogatory asked whether Appellees were at fault in causing the damage to their house. The jury answered “No.” The fourth interrogatory asked the jury to determine the date that the house was substantially completed. The jury answered “9/13/95.” Based on the jury’s answer to the fourth interrogatory, the trial court concluded that any claim regarding the initial construction was barred by the statute of limitations. Accordingly, the jury was only submitted one damage interrogatory, asking the amount of damages sustained as a result of the repairs done in 1996. The jury answered “0.”

Once the jury’s verdict had been read, the trial court asked the parties if they had any questions and if they wished to have the jury polled. Both parties indicated that they had no questions and that they had no desire to have the jurors polled. Thereafter, the jury was discharged, and the individual jurors left the courtroom. Minutes later, while the trial court was discussing the issue of attorney’s fees, the bailiff notified the court that the jury was back in the jury room. The jury foreman had informed the bailiff that the jurors felt that they may have misunderstood the interrogatory pertaining to damages. Based on this information, the trial court had the jurors brought back into the jury box. Appellants’ attorney objected to any reconvening of the jury because a final verdict had been rendered and the jury had been discharged. Over Appellants’ objection, the following discussion occurred between the court and the jury foreman:

The COURT: Welcome back. Mr. Foreman?
Mr. Tripp: Yes, Your Honor.
THE COURT: I’m going to ask a couple of questions and I’m going to do what I think that the lawyers have agreed and I want to talk to them about this in a minute. This is kind of unusual to say goodbye to a jury and have them start down the stairs and then have you get about half way down and then decide that you want to come back. So, we’re on water that I’m not sure is easily charted for me, but we’re going to try to, in the end, do what’s fair to everybody. In order to start that I think I need to ask you, Mr. Foreman, why don’t you stand up please? I have been given notification by my bailiff that you, on behalf of the jury, and for the jury informed him that there may have been some question about the last interrogatory that you answered.
Mr. Tripp: Yes, Your Honor.
The Court: Okay. And so I’ve held you in the courthouse. Have any of you left the courthouse?
Mr. Tripp: No, Your Honor.
The Court: Okay. Have any of you talked to anybody else in the world, other than the members of the jury?
Mte.. Tripp: Just among ourselves.
The Court: Okay. The law allows me to ask each one of you if this verdict, which we just signed, is your verdict and I can’t, at this time, explain all the reasons why there are rules why we do certain things certain ways in the law but the only verdict that seems to be in question is this last one, Interrogatory Number Seven, “State the amount of damages you find Plaintiff sustained as a result of repairs done in 1996” and the answer on this one is “Zero,” signed by Charles Tripp, foreman. At this time, I’m going to do what’s called poll the jury and this is a procedure that’s prescribed by law. And I’m going to have each one of you, starting at the back left-hand corner stand, state your name and then tell me if this is your verdict.

Thereafter, each juror was polled. Ten of the twelve jurors stated that the verdict that was read earlier in open court was not their verdict.

At that point, the trial court sent the jury out of the room and sought guidance from the attorneys as to how to proceed. Again, Appellants’ attorney objected to any further action by the jury. He contended that once the verdict had been read and the jury had been discharged, the case was over and the verdict was final. He asserted that Appellees had waived their right to poll the individual jurors by failing to request a poll before the jury was discharged.

Appellees’ attorney argued that although the jury had technically been discharged, the jurors had almost immediately reconvened themselves into the jury room and had not discussed the matter with anyone else. He argued that it was a matter of fundamental fairness to permit the jury to deliberate further, given that ten of the twelve jurors had just indicated that the verdict read in court was not theirs.

The trial court initially took a recess to allow both counsel the opportunity to research the issue. Thereafter, the trial court went back on the record and announced its intention to allow the jury to deliberate on a new verdict. The trial court reassured the parties that they would have an opportunity to argue the law at a later time. The jury returned a new verdict, awarding Appellees damages in the amount of $5,900. The trial court accepted the verdict, but instructed counsel for both sides to submit briefs on the issue.

The trial court entered a final order on March 26, 2001. In that order, the trial court concluded that it had the authority to recall the jury for the purpose of polling the jurors and, if appropriate, to allow them to deliberate further. The trial court acknowledged the general rule that once a jury has been discharged, the verdict is final and the case has ended. However, the court concluded that Arkansas law would recognize an exception in this case, where the error was made known within minutes after discharge and the jurors had not mingled with bystanders or discussed the case with anyone else. Notwithstanding these conclusions, the trial court refused to enter the second verdict on the ground that it was different in substance, not just form, and, in fact, impeached the first verdict. The trial court reasoned that it would be inappropriate to impose the second verdict under the circumstances. Accordingly, the court declared a mistrial and granted a new trial on the issue of damages sustained from the 1996 repairs.

Appellants raise two points for reversal. For their first point, they argue that it was error to allow the jury to reconvene and deliberate after it had rendered a verdict and had been discharged from the case and dispersed from the courtroom. They rely on Ark. Code Ann. § 16-64-119 (1987), which provides in pertinent part:

(b) When the verdict is announced either party may require the jury to be polled, which is done by the clerk or court asking each juror if it is his verdict. If any one answers in the negative, the jury must again be sent out for further deliberation.
(c) The verdict shall be written, signed by the foreman, and read by the court or clerk to the jury, and the inquiry made whether it is their verdict.
(d) (1) If any juror disagrees, the jury must be sent out again.
(2) If no disagreement is expressed, and neither party requires the jury to be polled, the verdict is complete and the jury discharged from the case. [Emphasis added.]

Appellants also rely on this court’s cases holding that the time to object to an irregularity or inconsistency in a verdict is prior to the discharge of the jury. See, e.g., P.A.M. Transp., Inc. v. Ark. Blue Cross & Blue Shield, 315 Ark. 234, 868 S.W.2d 33 (1993); Wal-Mart Stores, Inc. v. Kelton, 305 Ark. 173, 806 S.W.2d 373 (1991). Similarly, the time to correct or clarify a verdict based on the jury’s misunderstanding of the instructions is before the jury is discharged. Center v. Johnson, 295 Ark. 522, 750 S.W.2d 396 (1988). The failure to object to a verdict irregularity prior to the discharge of the jury constitutes a waiver of that irregularity. Id.; Coran v. Keller, 295 Ark. 308, 748 S.W.2d 349 (1988).

Appellees, on the other hand, urge this court to uphold the trial court’s determination that the decisions in Levells v. State, 32 Ark. 585 (1877), and Barnum v. State, 268 Ark. 141, 594 S.W.2d 229 (1980), would allow the trial court some leeway to reconvene the jury following discharge when an issue arises concerning the validity of the verdict. We disagree. While there is language in those holdings that conceivably could be construed to grant the trial court some discretion in correcting a verdict after the jury has been discharged, the reality is that in both of those cases, the irregularities in the verdict were noticed before the jury had even stepped out of the jury box.

In Levells, 32 Ark. 585, the jury had returned a verdict of guilty for only one of two criminal charges. The trial court read the verdict and then discharged the jury. As the jurors were exiting the jury box, the trial court called them back and told them that the verdict was defective. Thereafter, the trial court sent the jurors out to deliberate further. This court affirmed the trial court’s action, concluding that the jury had not been truly discharged. This court pointed to the fact that the jurors remained in the presence of the court and had not “mingled with the by-standers.” Id. at 591. This court reasoned:

The authorities say, that after the verdict has been received and the jury discharged, their control over the verdict is at an end, and they cannot be recalled to alter or amend it.
But what is a discharge? Clearly, it would seem to us that, if they have not separated, and as a body, are still in the presence of the court, the order discharging is in fieri, and yet in the breast of the court, and may be recalled. To correct a mistake when no prejudice can result from it, is not only proper, but the duty of the court.

Id. (citations omitted) (emphasis added).

In Barnum, 268 Ark. 141, 594 S.W.2d 229, the jury had not been discharged at all. There, the trial court was handed the jury’s verdict and promptly stated that the verdict seemed ambiguous and unclear. The court then sent the jury to deliberate further. This court upheld the trial court’s action, on the ground that “the jury have full power over their verdict, and may amend it, or recede from it, at any time before it has been received and recorded, and themselves have been discharged from the case.” Id. at 144, 594 S.W.2d at 231 (quoting Gilchrist v. State, 100 Ark. 330, 340, 140 S.W 260, 264 (1911)). This court explained further:

Over 75 years ago, we said that it was no longer questioned that a jury may amend its verdict to conform to its finding and to put it in proper form at any time before they have separated and before the verdict has been entered of record and the jury discharged. Hamer v. State, 104 Ark. 606, 150 S.W. 142 [(1912)]. Even after a jury had been discharged, but before the jurors had dispersed, or mingled with bystanders at the trial, a recall of the jurors and a direction to them to retire and amend a defective verdict, over the objection of the accused, was held to be proper performance of the duty of the trial judge. Levells v. State, 32 Ark. 585 [(1877)].

Id. at 144-45, 594 S.W.2d at 231. This holding does not support the trial court’s conclusion that a trial court has discretion to reconvene the jury for further deliberation once the jury has been discharged and dispersed from the courtroom. Barnum merely holds that the jury may amend its verdict to reflect its true intention so long as the jury has not been discharged and the verdict has not been received and recorded.

Contrary to Appellees’ argument, a review of this court’s cases on the subject demonstrates that it has only permitted the jury to correct or amend its verdict prior to the time it is discharged. Levells is the sole exception. Even there, however, the jurors were still in the presence of the court as a body. The Levells court emphasized the fact that at the time the error was discovered, the jury, as a body, had not left the presence of the trial court and mingled with bystanders. We do not read Levells so literally to hold that mingling with bystanders only occurs if the jurors have actually discussed the case with other persons. Rather, mingling occurs once the individual jurors have been discharged from their oath and duties as jurors and have left the presence, control, and supervision of the court. Thus, the only exception carved out by this court is where the jury has not yet split up as a body and is still in the presence and control of the court.

The holding in Clift v. Jordan, 207 Ark. 66, 178 S.W.2d 1009 (1944), upon which Appellants rely, is instructive. There, the jury rendered a verdict that appeared to be inconsistent with the damages sought by the plaintiffs. While the jury was still impaneled, the trial court asked if the jury had misunderstood the instructions. One juror answered “Yes.” Id. at 69, 178 S.W.2d at 1010. The trial court then sent the jury out to deliberate further. This court affirmed the trial court’s actions, holding:

The verdicts of a jury should in any and all cases reflect the true and correct and final conclusions of the jury, and if before discharging the jury it was made known to the court that the jury had misunderstood the instructions, no error is committed in permitting the jury to further consider their verdict, after the instructions have been explained.

Id. at 69-70, 178 S.W.2d at 1011 (citation omitted) (emphasis added). This holding demonstrates this court’s awareness of the conflicting interests at stake when a verdict does not reflect the true intention of the jury. On the one hand, there is the interest of the parties, as well as society in general, in having a verdict that is a true reflection of the jury’s intention. On the other hand, there is the need for finality and for measures that ensure the sanctity of the jury and its deliberations. By requiring that any corrections or amendments be completed prior to the jury’s discharge, this court made it clear that the paramount consideration is that the jury be free from even the appearance of taint or outside influences.

Similarly, in Center, 295 Ark. 522, 750 S.W.2d 396, this court held that “[t]he time to correct or clarify a verdict is before the jury is discharged.” Id. at 525, 750 S.W.2d at 398 (citing Barham v. Rupert Crafton Comm’n Co., 290 Ark. 211, 718 S.W.2d 432 (1986)). Citing to the prior decision in Clift, this court reinforced the notion that while a jury verdict should in all cases reflect the actual final conclusion of the jury on the matter being tried before them, any error resulting from the verdict because the jury misunderstood the instructions may only be corrected if done before the jury is discharged. “However, if before the jury is discharged it is made known to the court that the jury misunderstood the instructions, it is not error for the court to permit the jury to further consider their verdict, after the instructions are again read to them.” Id. (emphasis added).

Here, the jurors were presented with an interrogatory asking them to state the amount of damages sustained by Appellees as a result of the repairs done in 1996. After deliberating, the jury returned with a verdict of zero damages. Both parties indicated that they had no questions about the verdict and that they did not wish to have the jury polled. The jury was then discharged, and the jurors left the courtroom. Thereafter, the jury foreman informed the court that the jury may have misunderstood the instruction on damages. Based on this information, the trial court recalled the jury, polled each juror, and then sent them to deliberate further based on the result of the poll. This was error.

The foregoing cases demonstrate that the time to correct a verdict based upon a claim that the jury misunderstood the instructions is prior to the jury’s discharge. The jury has full power over its verdict and may amend it or recede from it at any time before the verdict has been received and recorded and before the jury has been discharged. Once the jury has been discharged and has left the presence of the court, it is without power to correct or amend its verdict. Here, the verdict was received and recorded, and the jury was discharged from the case before the claim was made that the jurors may have misunderstood the instruction. Accordingly, it was error for the trial court to reconvene the jury for the purpose of correcting any mistake in the verdict.

To date, this court has not strayed from its earlier holdings, which only permit a verdict to be corrected prior to the jury’s discharge. The reason for this strict or absolute rule is to avoid even the appearance of any possible taint to the jury’s verdict. Thus, even though the trial court here found that the individual jurors had not discussed the matter with anyone other than fellow jurors, the fact that the jurors had been discharged and had left the presence and control of the court gives at least the appearance that they may have been influenced by outside pressures. Indeed, the trial court acknowledged this appearance of impropriety when it refused to impose the jury’s second verdict.

In sum, neither section 16-64-119 nor this court’s longstanding precedent permit the trial court to recall the jury after discharge and poll the individual jurors based on a claim that the jury misunderstood the instructions. Nor does Arkansas law allow the jury to correct or amend its verdict once it has been discharged from the case and left the presence and control of the court. Accordingly, we reverse the trial court’s judgment, and we remand with instruction to reinstate the jury’s first verdict, which awarded zero damages to Appellees. Because we reverse and remand on this issue, it is not necessary to address the second point on appeal.


author: R OBERT L. BROWN, Justice.

text:
    Sherry C. FAULKNER v. ARKANSAS CHILDREN’S HOSPITAL; Bonnie Taylor, M.D.; Michelle Moss, M.D.; Lorrie Baker, R.N.; and Carl Chipman, R.N., C.C.P.
    01-860
    69 S.W.3d 393
    Supreme Court of Arkansas
    Opinion delivered March 14, 2002
    [Petition for rehearing denied April 11, 2002.]

      Mark Alan Peoples, PLC, for appellant.

      Friday, Eldredge & Clark, by: Elizabeth R. Murray, Michael S. Moore, and Daniel L. Herrington, for appellees.
   R OBERT L. BROWN, Justice.

Appellant Sherry C. Faulkner appeals from an order granting the motion to dismiss filed by appellees Arkansas Children’s Hospital (ACH) and four medical professionals who worked at ACH: Dr. Bonnie Taylor, Dr. Michelle Moss, registered nurse Lorrie Baker, and registered nurse Carl Chipman. We hold that the circuit court did not err in granting the Rule 12(b)(6) motion, and we affirm.

The facts are taken from the allegations in Faulkner’s complaint. Because we are reviewing an order granting a motion to dismiss under Ark. R. Civ. P. 12(b)(6), we accept the facts alleged as true. King v. Whitfield, 339 Ark. 176, 5 S.W.3d 21 (1999). Faulkner was employed at ACH as the Extra Corporeal Membrane Oxygenation (ECMO) Technical and Educational Coordinator in 1989. ECMO is a medical process which provides support to patients with respiratory or cardiopulmonary failure. ECMO is used when patients are not benefitted by other supportive therapies such as conventional ventilation.

Faulkner held the position of ECMO Coordinator from June 1, 1989, to February 10, 1999. When she was first hired to open ACH’s ECMO facilities in 1989, she purchased the necessary equipment and otherwise prepared ACH for the beginning of its ECMO program. Faulkner selected the program’s original staff, including nurse Lorrie Baker, whom she selected to fill the position of ECMO nurse Coordinator. Faulkner also established a mobile ECMO unit. While in the position of ECMO Coordinator, Faulkner was a member of and an active participant in several national ECMO organizations. In her capacity as a cardiovascular perfusionist, she won the 1999 Perfusionist of the Year award from the American Society of Cardiovascular Perfusion. Faulkner is also the author of scientific articles concerning ECMO.

In the summer of 1990, after the ECMO program had been in operation for roughly a year, ACH hired Dr. Mark Heulitt to be the pediatric ECMO physician. Heulitt represented that his experience with ECMO was extensive. Faulkner, however, reported to her superiors that when Heulitt worked on his first ECMO patient in October 1990, he “did not know what he was doing” and was “totally lost.” Additionally, Heulitt’s former employer provided information that contrary to Heulitt’s representations, his experience with neonatal ECMO was limited. Faulkner’s superiors took no action following her report.

Fleulitt later wrote a letter to one of Faulkner’s superiors, ECMO Medical Director Dr. Jim Fasules, describing Faulkner as “emotionally unstable.” The letter was written in response to a meeting between Faulkner and Heulitt that was called to discuss an incident in which a patient became endangered during a mobile ECMO procedure. While discussing the issue, “Faulkner was not allowed to carry out the orders of. . . Dr. Fasules.” Faulkner wrote a memo to Fasules describing the meeting, and Fasules wrote a letter in response in which he too described Faulkner as emotionally unstable.

In December of 1991-, Dr. Taylor and nurse Baker began conspiring together to usurp Faulkner’s authority and responsibilities as ECMO coordinator. They circumvented communications with her and changed her call schedule and the standard of care for patients without consulting her. They also made personnel decisions without her consent.

In December of 1997, a patient was flown from Louisiana to ACH and was placed on the mobile ECMO. The patient was administered a larger quantity of drugs than should have been administered. The cause of the mistake was nurse Chipman’s and nurse Baker’s use of untested equipment and lack of attention to detail in the loading and securing of the ECMO equipment. Dr. Moss was the responsible physician, but she blamed Faulkner for the incident. Since that time she has been short and abrupt with Faulkner and has wrongly accused her of improper conduct.

In the fall of 1998, Dr. Moss made a decision to place a patient on ECMO. Faulkner was not consulted even though she was the ECMO coordinator on call that day. Nurse Baker did not report the patient’s status to Faulkner. When Faulkner arrived on the scene, she noticed that the drug delivery apparatus was not properly arranged and that as a result, the patient was not being administered the necessary drugs. The patient had low blood pressure because of this mistake. Faulkner corrected the mistake and remained with the patient. The next day, Dr. Moss blamed Faulkner for changes in the patient’s EKG in front of other ACH employees. She accused Faulkner of being “sloppy and/or incompetent,” even though she knew that the accusation was not true.

At about this time, Faulkner requested an internal audit of the ECMO unit to identify areas needing improvement in patient care. She identified other ECMO staff members’ mistakes to her superiors and reported that Dr. Taylor was not communicating properly with her. Faulkner also maintained that nurse Baker deliberately concealed staff meetings from her to keep her from attending. Nurse Baker further deliberately gave false information to other ECMO centers regarding Faulkner and her duties. Additionally, Faulkner advised her superiors that nurse Baker did not follow protocols regarding ECMO patients during this time period. Despite Faulkner’s revelation of specific patients and documented breaches in their care and paperwork, ACH took no disciplinary action towards nurse Baker.

In February 1999, ACH alleged that Faulkner mishandled three patients. The incidents occurred on February 5, 9, and 10 of that year. Two of the incidents resulted in blood or fluid spillage. Faulkner specifically disputed the mishandling allegations and maintained that she did the best job she could under the circumstances. She reviewed her actions with the attending physician in each incident. Her actions did not place patients in jeopardy. Also in February of that year, nurse Chipman told Dr. Taylor that Faulkner had made many mistakes when performing ECMO. He said that Faulkner “had been good for about 2 years but then had dropped off in her productivity.” Nurse Chipman knew that his statement was untrue.

On February 12, 1999, Faulkner was called to a meeting with Dr. Taylor and registered nurse Mary McDaniel, a vice-president of ACH. At that time, Faulkner was asked to give a statement regarding one of the three patients whom Faulkner allegedly mishandled earlier that month. At the meeting, Dr. Taylor and nurse McDaniel had a copy of Faulkner’s medical insurance program and ACH benefits plan. They had marked sections covering psychiatric conditions. Nurse McDaniel asked Faulkner to leave the hospital and not return until she was contacted to do so. Nurse McDaniel further cautioned Faulkner not to do any work from home that concerned ECMO. ACH placed Faulkner on an emergency administrative leave of absence, vaguely citing Faulkner’s state of mind as the reason for the leave.

ACH and Dr. Taylor later insisted that Faulkner obtain a psychological evaluation for “extreme paranoia, stress, and possible psychomotor disorder.” Dr. Taylor stated that she thought Faulkner was “stressed out” and cited the February 10, 1999 incident in which Dr. Taylor asserted that Faulkner dumped pressurized blood on the floor. No formal documentation of the reasons for the administrative leave was presented to Faulkner. Faulkner was not given notice of the cause for her suspension or reassignment, and she was not given a hearing or other similar opportunity to respond to the alleged deficiencies.

On February 18, 1999, Faulkner received a psychological examination from Dr. Cheralyn Powers. Dr. Powers’s conclusions were that Faulkner suffered a paranoid reaction to being placed on leave. Dr. Powers could not conclude that any paranoia was present before the administrative action was taken by ACH, and she recommended that Faulkner return to her job. Dr. Powers’s report was not issued until March 1, 1999.

In a letter dated March 17, 1999, ACH accused Faulkner of several improper acts and errors in her handling of ECMO patients during the month of February 1999. Faulkner was not given a chance to respond, despite the fact that “[t]he events described in the ACH letter [were] incorrect or grossly misinterpreted and mischaracterized. ”

ACH told Faulkner that the circumstances surrounding her leave would not be made public and would be disseminated only on a need-to-know basis. However, while on leave, Faulkner received a telephone call from a person who did not work at ACH and did not live in Little Rock. The person knew the circumstances surrounding her administrative leave. Faulkner believes that it was nurse Baker and Dr. Taylor who were responsible for any unauthorized disclosure of Faulkner’s situation. Additionally, nurse Chip-man and others knew of Faulkner’s being placed on leave before she did and openly discussed it with staff members.

ACH did not follow its own internal procedures in placing Faulkner on administrative leave. ACH may place an individual on leave for three days to investigate alleged incidents, but Faulkner was placed on leave for approximately five weeks. Additionally, when Faulkner initiated a grievance procedure, as allowed by ACH procedures, ACH again did not follow its own procedures because it omitted steps in the grievance process. Specifically, ACH did not issue a written report on the grievance following investigation, as mandated by its procedures. ACH also prematurely terminated Faulkner’s complaint process.

Faulkner was not allowed to return to work until April 1, 1999. She was returned to the position of cardiovascular perfusionist and was not allowed to return to her previous position of ECMO coordinator. ACH’s position was that Faulkner could not handle the stress of the coordinator position. Faulkner contends that the position of perfusionist subjects her to much greater stress than did the coordinator position.

In the fall of 1999, nurse Chipman unilaterally contacted the ECMO coordinator at the University of Michigan. Nurse Chipman falsely told the ECMO coordinator there that Faulkner could have nothing to do with ECMO at ACH and was no longer allowed to write or present on the subject.

On August 22, 2000, Faulkner filed her complaint in Pulaski County Circuit Court against the appellees. Faulkner stated in her complaint that she filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission in 1999 and a subsequent complaint in federal district court in 2000, but on her motion, the federal complaint was dismissed without prejudice. She asserted in her state complaint six causes of action: violation of the Arkansas Civil Rights Act, defamation, outrage, interference with contractual relations, breach of contract, and civil conspiracy. She prayed for compensatory and punitive damages as well as for reinstatement to her former position as ECMO coordinator. On September 6, 2000, the appellees filed a motion to dismiss under Ark. R. Civ. P. 12(b)(6). Following a hearing for arguments of counsel, the circuit court granted the motion.

I. Standard of Review

Faulkner initially raises the issue of the standard this court should employ in its review of the trial court’s order of dismissal. As already noted, this court reviews a trial court’s decision on a motion to dismiss by treating the facts alleged in the complaint as true and by viewing them in the light most favorable to the plaintiff. King v. Whitfield, supra; Neal v. Wilson, 316 Ark. 588, 873 S.W.2d 552 (1994). In viewing the facts in the fight most favorable to the plaintiff, the facts should be liberally construed in plaintiffs favor. Rothbaum v. Arkansas Local Police & Fire Retirement Sys., 346 Ark. 171, 55 S.W.3d 760 (2001); Martin v. Equitable Life Assurance Soc. of the U.S., 344 Ark. 177, 40 S.W.3d 733 (2001). Our rules require fact pleading, and a complaint must state facts, not mere conclusions, in order to entitle the pleader to relief. Ark. R. Civ P. 8(a)(1); Grine v. Board of Trustees, 338 Ark. 791, 2 S.W.3d 54 (1999); Brown v. Tucker, 330 Ark. 435, 954 S.W.2d 262 (1997).

Faulkner asserts that the trial court failed to accept the facts alleged in her complaint as true. We will address this point with respect to each point of appeal.

II. The Arkansas Civil Rights Act

Faulkner’s first point relating to a dismissed cause of action is that the trial court erred in dismissing her Arkansas Civil Rights Act claim. She asserts that though she is not disabled, she was regarded by her superiors at ACH as being disabled. The appellees respond that the Arkansas Civil Rights Act, unlike the federal Americans with Disabilities Act, does not contemplate a cause of action for those merely “regarded as” being disabled. The trial court, nevertheless, concluded that the Arkansas Civil Rights Act does contemplate a cause of action for a person regarded as having a disability. The trial court found, however, that Faulkner had not pled facts sufficient to show that she was regarded as having a disability within the meaning of the Act.

This issue presents the court with a matter of statutory interpretation. We review issues of statutory interpretation de novo, as it is for this court to decide what a statute means. Fewell v. Pickens, 346 Ark. 246, 57 S.W.3d 144 (2001); Hodges v. Huckabee, 338 Ark. 454, 995 S.W.2d 341 (1999). In this respect, we are not bound by the trial court’s decision; however, in the absence of a showing that the trial court erred, its interpretation will be accepted as correct on appeal. Harris v. City of Little Rock, 344 Ark. 95, 40 S.W.3d 214 (2001); Norman v. Norman, 342 Ark. 493, 30 S.W.3d 83 (2000). The first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Raley v. Wagner, 346 Ark. 234, 57 S.W.3d 683 (2001); Dunklin v. Ramsay, 328 Ark. 263, 944 S.W.2d 76 (1997). When the language of a statute is plain and unambiguous, there is no need to resort to rules of statutory construction. Stephens v. Arkansas Sch. for the Blind, 341 Ark. 939, 20 S.W.3d 397 (2000); Burcham v. City of Van Buren, 330 Ark. 451, 954 S.W.2d 266 (1997). Where the meaning is not clear, we look to the language of the statute, the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, the legislative history, and other appropriate means that shed light on the subject. Stephens v. Arkansas Sch. for the Blind, supra (citing State v. McLeod, 318 Ark. 781, 888 S.W.2d 639 (1994)). Finally, the ultimate rule of statutory construction is to give effect to the intent of the General Assembly. Ford v. Keith, 338 Ark. 487, 996 S.W.2d 20 (1999); Kildow v. Baldwin Piano & Organ, 333 Ark. 335, 969 S.W.2d 190 (1998).

The Arkansas Civil Rights Act of 1993 is codified at Ark. Code Ann. §§ 16-123-101 to -108 (Supp. 2001). Disability is defined as follows under that Act:

(3) “Disability” means a physical or mental impairment that substantially limits a major life function, but “disability” does not include:
(A) Compulsive gambling, kleptomania, or pyromania;
(B) Current use of illegal drugs or psychoactive substance use disorders resulting from illegal use of drugs; or
(C) Alcoholism;

Ark. Code Ann. § 16-123-102(3) (Supp. 2001) (emphasis added). A second relevant portion of the Act provides:

(a) The right of an otherwise qualified person to be free from discrimination because of race, religion, national origin, gender, or the presence of any sensory, mental, or physical disability is recognized as and declared to be a civil right. This right shall include, but not be limited to:
(1) The right to obtain and hold employment without discrimination^]

Ark. Code Ann. § 16-123-107(a)(l) (Supp. 2001) (emphasis added).

As the emphasized portions of these statutes illustrate, there is no express provision for a cause of action for one who is simply “regarded as” having a disability by others. In this respect, the Arkansas Civil Rights Act differs materially from the federal Americans with Disabilities Act. The federal legislation provides this definition of “disability:”

The term “disability” means, with respect to an individual:

(A) a physical or mental impairment that substantially limits one or more of the major fife activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.

42 U.S.C. § 12102(2) (1998) (emphasis added).

The plain language of these two legislative enactments differs significantly. It is true, as Faulkner points out, that the Arkansas Civil Rights Act specifically provides that our state courts may look to state and federal decisions which interpret the federal civil rights laws as persuasive authority for interpretive guidance. The relevant section provides:

When construing this section, a court may look for guidance to state and federal decisions interpreting the federal Civil Rights Act of 1871, as amended and codified in 42 U.S.C. § 1983, as in effect on January 1, 1993, which decisions and act shall have persuasive authority only.

Ark. Code Ann. § 16-123-105(c) (Supp. 2001). The Arkansas statute, however, does not similarly point to decisions reached interpreting the Americans with Disabilities Act.

The Eighth Circuit Court of Appeals recently offered its view that our court would interpret the Arkansas Civil Rights Act’s definition of “disability” in identical fashion to its federal corollary. See Land v. Baptist Med. Center, 164 F.3d 423 (8th Cir. 1999). In Land, the court stated:

Additionally, Land contends the district court committed error in deciding Megan was not disabled within the meaning of the ACRA. The Arkansas Supreme Court has not yet decided whether a food allergy is a disability under the ACRA, and so we “must decide ‘what the [Arkansas Supreme Court] would probably hold were it called upon to decide the issue.’ ” Lenhardt v. Basic Inst. of Tech., Inc., 55 F.3d 377, 379 (8th Cir. 1995) (quoting Hazen v. Pasley, 768 F.2d 226, 228 (8th Cir. 1985)). The definition of disability in both the ACRA and the ADA are in all relevant respects the same, compare Ark. Code Ann. § 16-123-102(3) with 42 U.S.C. § 12102(2)(A), and we believe the Arkansas Supreme Court would consider analogous federal ADA decisions in deciding the issue confronting us in this case, Lenhardt, 55 F.3d at 380.

Land, 164 F.3d at 425-26. The Eighth Circuit Court’s decision, of course, is not binding authority for this court. But, in addition, the definition of a presently occurring disability, which was at issue in Land, is virtually the same in both acts: substantial limitation in a major life activity. Hence, the situation in Land is dramatically different from what confronts us in the case at hand. Here, we are called upon to read a section of the federal act into the Arkansas act. Specifically, Faulkner asks this court to extend the plain language of the Arkansas Civil Rights Act’s definition of disability to include coverage for persons regarded as having a disability.

We decline to expand the statutory definition of disability in this manner as it would be akin to legislating. See, e.g., Shoemaker v. State, 343 Ark. 727, 38 S.W.3d 350 (2001) (refusing to judicially legislate a fighting-words exception into an otherwise constitutionally infirm statute); Four County (NW) Regional Sold Waste Mgmt. Dist. Bd. v. Sunray Serv., Inc., 334 Ark. 118, 971 S.W.2d 255 (1998) (rejecting de novo review of legislative action as judicial legislation violative of the separation-of-powers doctrine). The plain language of the Arkansas Civil Rights Act makes clear that our state act only contemplates coverage for persons presently suffering a disability. In this case, Faulkner does not allege that she has a present disability. Quite to the contrary, she adamantly denies in her complaint that she has any sort of mental impairment. As such, she has not stated facts sufficient to allege a cause of action for discrimination under the Arkansas Civil Rights Act. The trial court’s decision to dismiss the claim should be affirmed as the right result, though that result was reached for the wrong reason. Madden v. Aldrich, 346 Ark. 405, 58 S.W.3d 342 (2001); Ouachita Trek & Dev. Co. v. Rowe, 341 Ark. 456, 17 S.W.3d 491 (2000); Malone v. Malone, 338 Ark. 20, 991 S.W.2d 546 (1999).

III. Defamation

Faulkner next contends that the trial court erred in dismissing her cause of action for defamation. The trial court correctly disposed of most of the instances of alleged defamation by noting that they were time-barred under the one-year statute of limitations set out in Ark. Code Ann. § 16-56-104(4) (1987). Faulkner concedes this point. However, she maintains that one incident, namely nurse Chipman’s statement to the University of Michigan ECMO coordinator in the fall of 1999, was actionable as slander and should not have been dismissed.

A viable action for defamation turns on whether the communication or publication tends or is reasonably calculated to cause harm to another’s reputation. Dodson v. Allstate Ins. Co., 345 Ark. 430, 47 S.W.3d 866 (2001); Southall v. Little Rock Newspapers, Inc., 332 Ark. 123, 964 S.W.2d 187 (1998); Thomson Newspaper Publishing Inc. v. Coody, 320 Ark. 455, 896 S.W.2d 897 (1995). The following elements must be proved to support a claim of defamation, whether it be by the spoken word (slander) or the written word (libel): (1) the defamatory nature of the statement of fact; (2) that statement’s identification of or reference to the plaintiff; (3) publication of the statement by the defendant; (4) the defendant’s fault in the publication; (5) the statement’s falsity; and (6) damages. Dodson v. Allstate Ins. Co., supra; Brown v. Tucker, 330 Ark. 435, 954 S.W.2d 262 (1997); Minor v. Failla, 329 Ark. 274, 946 S.W.2d 954 (1997) (citing Mitchell v. Globe Int’l Pub., Inc., 773 F. Supp. 1235 (W.D. Ark. 1991)).

The allegedly defamatory statement must also imply an assertion of an objective verifiable fact. Dodson v. Allstate Ins. Co., supra; Dodson v. Dicker, 306 Ark. 108, 812 S.W.2d 97 (1991) (citing Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990)). In order to determine whether a statement may be viewed as implying an assertion of fact, the following factors must be weighed: (1) whether the author used figurative or hyperbolic language that would negate the impression that he or she was seriously asserting or implying a fact; (2) whether the general tenor of the publication negates this impression; and (3) whether the published assertion is susceptible of being proved true or false. Dodson v. Allstate Ins. Co., supra; Dodson v. Dicker, supra.

We turn then to the pertinent allegations in Faulkner’s complaint:

Sometime in the fall of 1999, Defendant Chipman telephoned Ms. Robin Chapman, ECMO coordinator at the University of Michigan. Without legitimate purpose or reason, Chipman told Chapman that Faulkner was no longer ECMO coordinator at ACH. Chipman falsely told Chapman that Faulkner would be forced to leave the ECLS steering committee and that Faulkner could have nothing to do with ECMO and would no longer be allowed to present or write regarding ECMO. Chipman’s statements to Chapman regarding Faulkner were not true. Chipman knew, at the time he made such statements, that they were untrue. Chipman made such statements with the intent to harm Faulkner in her profession.

Faulkner made three allegations in this paragraph of her complaint. The first, that Faulkner was no longer ECMO coordinator at ACH, was a true statement and thus cannot be defamatory. The second and third statements, that Faulkner “would be forced to leave the ECLS steering committee,” and that she “could have nothing to do with the ECMO and would no longer be allowed to present or write regarding ECMO,” could be read, as the trial court pointed out, as a prediction of what Chipman thought might happen in the future. Yet, we are mindful of the fact that it could also be read as what nurse Chipman considered Faulkner’s current status to be with respect to the ECLS steering committee and her ability to publicly comment on her ECMO work.

Given our standard of liberal construction of a plaintiffs complaint in favor of the plaintiff when considering a Rule 12(b)(6) motion to dismiss, we are reluctant to dismiss this cause of action on the basis of one interpretation of what was said. Nevertheless, we again hold that the trial court reached the right result, albeit for the wrong reason, because Faulkner has not pled specific facts demonstrating that she has suffered actual damage to her reputation, but has only pled a conclusion to that effect. That is not enough to withstand a Rule 12(b)(6) motion. See Ark. R. Civ. P. 8(a)(1); Grine v. Board of Trustees, supra. Actual damage, of course, is an element of defamation, see Dodson v. Allstate Ins. Co., supra, and Arkansas no longer recognizes the doctrine of defamation per se which, under the common law, presumed damage to reputation. See United Ins. Co. of America v. Murphy, 331 Ark. 364, 961 S.W.2d 752 (1998); Dodson v. Allstate Ins. Co., supra. Because of her failure to plead facts supporting actual damage to her reputation, her defamation claim was properly dismissed.

IV Outrage

For her next point, Faulkner urges that the trial court erred in dismissing her cause of action for the tort of outrage. There are four elements that are necessary to establish liability for the tort of outrage: (1) the actor intended to inflict emotional distress or knew or should have known that emotional distress was the likely result of his conduct; (2) the conduct was “extreme and outrageous,” was “beyond all possible bounds of decency,” and was “utterly intolerable in a civilized community;” (3) the actions of the defendant were the cause of the plaintiffs distress; and (4) the emotional distress sustained by the plaintiff was so severe that no reasonable person could be expected to endure it. Crockett v. Essex, 341 Ark. 558, 19 S.W.3d 585 (2000); Deitsch v. Tillery, 309 Ark. 401, 833 S.W.2d 760 (1992). In sum, this court has taken a very narrow view of claims of outrage. See, e.g., Croom v. Younts, 323 Ark. 95, 913 S.W.2d 283 (1996); Ross v. Patterson, 307 Ark. 68, 817 S."W!2d 418 (1991). This court has recognized a cause of action for the tort of outrage in an employment setting. See, e.g., Palmer v. Arkansas Council on Econ. Educ., 344 Ark. 461, 40 S.W.3d 784 (2001); M.B.M. Co., Inc. v. Counce, 268 Ark. 269, 596 S.W.2d 681 (1980).

The question before us today is whether, as a matter of law, the conduct of the appellees can reasonably be regarded as so outrageous as to permit recovery. Palmer v. Arkansas Council on Econ. Educ., supra; Deitsch v. Tillery, supra. Merely describing conduct as outrageous does not make it so. Crockett v. Essex, supra; Fuqua v. Flowers, 341 Ark. 901, 20 S.W.3d 388 (2000). Faulkner argues to this court that “if allowed to proceed, she can establish that the conduct [of the appellees] meets [the] high standard” required for claims of outrage. Flowever, we must look only to the facts as alleged in her complaint. Under our standard of review, we will give those facts a liberal interpretation, but we cannot surmise what additional facts might be developed should this claim be allowed to proceed; Arkansas is a fact-pleading state. Ark. R. Civ. P. 8(a)(1). As such, a plaintiff must state facts in the complaint sufficient, if taken as true, to sustain her causes of action.

Two cases where the tort of outrage was alleged and which arose out of the workplace appear pertinent. In Smith v. American Greetings Corp., 304 Ark. 596, 804 S.W.2d 683 (1991), the plaintiff alleged that he had a dispute with his shift leader while at work, and after work, he tried to discuss the matter, but the shift leader hit him. He alleged that he was fired the next day because management asserted that he had provoked his shift leader into a fight. In that case, we affirmed dismissal of the outrage claim under Ark. R. Civ. P. 12(b)(6), even though the plaintiffs boss had actually been physically violent toward him. Likewise, in Sterling v. Upjohn Healthcare Serv., Inc., 299 Ark. 278, 772 S.W.2d 329 (1989), this court upheld the trial court’s grant of summary judgment to the defendant, despite the plaintiffs employer’s unfounded assertions that plaintiff was drunk at work, the employer’s attempts to undermine the plaintiff, and the employer’s eventual violent rhetoric regarding the plaintiff.

In the case before us, Faulkner presents facts indicating strained working relationships, a deliberate attempt to undermine her authority, false accusations of shoddy work, false accusations and rumors of mental illness, and, eventually, her being placed on leave. This conduct on the part of ACH and its representatives and employees, however, appears to be no more egregious than that involved in the two cases discussed above. Viewing the facts alleged in the complaint as true, and giving Faulkner all reasonable inferences therefrom, we hold that she has not alleged conduct that is beyond all possible bounds of human decency and utterly intolerable in a civilized society so as to rise to the ievel of outrage.

V. Tortious Interference

Faulkner’s fourth claim is that the trial court erred in dismissing her cause of action for tortious interference with a contractual relationship. The trial court did so on the basis of the lack of a third party who did not continue a contract with Faulkner because of the appellees’ unauthorized conduct.

The elements of tortious interference are: (1) the existence of a valid contractual relationship; (2) knowledge of the relationship on the part of the interfering party; (3) intentional interference inducing or causing a breach or termination of the relationship; and (4) resultant damage to the party whose relationship has been disrupted. Dodson v. Allstate Ins. Co., supra, (citing Brown v. Tucker, 330 Ark. 435, 954 S.W.2d 262 (1997); Cross v. Arkansas Livestock & Poultry Comm’n, 328 Ark. 255, 943 S.W.2d 230 (1997); United Bilt Homes, Inc. v. Sampson, 310 Ark. 47, 832 S.W.2d 502 (1992)). A fifth requirement has been added by this court: the conduct of the defendant must be “improper.” Mason v. Wal-Mart Stores, Inc., 333 Ark. 3, 969 S.W.2d 160 (1998).

In addition to the above, another essential element of a tortious-interference-with-contractual-relations claim is that there must be some third party involved. See Navorro-Monzo v. Hughes, 297 Ark. 444, 763 S.W.2d 635 (1989). A party to a contract and its employees and agents, acting within the scope of their authority, cannot be held liable for interfering with the party’s own contract. See St. Joseph’s Regional Health Center v. Munos, 326 Ark. 605, 934 S.W.2d 192 (1996); Fisher v. Jones, 311 Ark. 450, 844 S.W.2d 954 (1993). Indeed, in Navorro-Munzo v. Hughes, supra, we held that a claim for tortious interference was defeated by the fact that there was no third party involved with whom a contract could be disparaged. See also St. Joseph’s Regional Health Center v. Munos, supra (an agent of a doctor’s employer could not have interfered with the doctor’s contract because he stood in the shoes of one of the parties to the contract); Palmer v. Arkansas Council on Econ. Educ., supra (a party to a contract and its agents acting in the scope of their authority cannot be fiable for interfering with the party’s own contract).

In deciding this point, it is unnecessary to determine whether Faulkner, an at-will employee, indeed had any contract with ACH which was jeopardized by actions of the named appellees. This is because there was no third-party contract involved which was even alleged to have been interfered with by the named appellees. The named appellees were all employees and agents of ACH. A third-party contract is essential to the cause of action. Hence, the only remaining issue is whether the employees were acting outside of the scope of their employment with ACH when they engaged in the alleged interference.

From the facts set out in Faulkner’s complaint, even construing them in her favor and giving her all favorable inferences, it is clear that the appellees in this case were acting within the scope of their employment during the events described in the complaint. In every instance, the conduct described by ACFI employees is directly related to ACH’s reason for being, which is to provide care to its patients. Part of providing care to patients is the disciplining of employees who do not perform their jobs according to the standards prescribed by the employer hospital. Even if that discipline is administered unjustly, as alleged in Faulkner’s complaint, it cannot be said that that activity is outside of the scope of employment. Likewise, even if Faulkner’s co-workers and superiors severed all communication and attempted to “usurp her authority,” as alleged, those actions still are within the scope of employment. In short, disciplinary actions and power struggles within a workplace setting, such as alleged here, do not exceed the scope of employment for purposes of agency or employment analysis.

We hold that Faulkner cannot maintain a cause of action for tortious interference because the named appellees were acting within the scope of their employment and because there was no interference with a third-party contract alleged. The trial court should be affirmed on this point as well.

VI. Breach of Contract

Faulkner further claims that she had a contractual obligation from ACH to follow that hospital’s grievance procedure. She urges this court to reinstate her claim for breach of contract because she alleges that her status as an at-will employee was altered by the existence of the ACH employee-grievance procedures.

Generally, an employer may terminate the employment of an at-will employee without cause. See Crain Indus., Inc. v. Cass, 305 Ark. 566, 810 S.W.2d 910 (1991); Gladden v. Arkansas Children’s Hospital, 292 Ark. 130, 728 S.W.2d 501 (1987). An exception to the at-will doctrine is where an employee relies upon an express agreement, such as in an employment manual, which disallows termination except for cause. Gladden v. Arkansas Children’s Hospital, supra; Robinson v. Langdon, 333 Ark. 662, 970 S.W.2d 292 (1998).

Faulkner asserts that she is not an at-will employee because ACH adopted a grievance process through which employees could dispute adverse employment actions. As such, she appears to assert that she not only had protection against wrongful discharge but that she also had protection against reassignment, which is what happened in this case.

We conclude that Faulkner’s breach-of-contract claim is meritless. ACFl’s alleged grievance process is not the same as a for-cause provision in an employment manual. In fact, Faulkner has not pled that the grievance process had anything to do ACH’s decision to reassign her, which, Faulkner claims, was a breach of contract. Moreover, it is certainly not apparent from her complaint, even construing the facts in her favor, that the grievance process shields her from reassignment in the same way that a for-cause provision in an employee handbook shields an employee from wrongful discharge.

Faulkner was an at-will employee and, as such, was subject to reassignment by her employer. She has not pled any facts indicating otherwise. The trial court should be affirmed on this point.

VII. Civil Conspiracy

Faulkner’s final argument is that the trial court erred in dismissing her cause of action for civil conspiracy.

To prove a civil conspiracy, a plaintiff must show that two or more persons have combined to accomplish a purpose that is unlawful or oppressive or to accomplish some purpose, not in itself unlawful, oppressive or immoral, but by unlawful, oppressive or immoral means, to the injury of another. Chambers v. Stern, 347 Ark. 395, 64 S.W.3d 737, (2002); Dodson v. Allstate Ins. Co., 345 Ark. 430, 47 S.W.3d 866, (2001); Mason v. Funderburk, 247 Ark. 521, 446 S.W.2d 543 (1969). A civil conspiracy is not actionable in and of itself, but a recovery may be had for damages caused by acts committed pursuant to the conspiracy. Chambers v. Stern, supra; Dodson v. Allstate Ins. Co., supra. A civil conspiracy is an intentional tort which requires a specific intent to accomplish the contemplated wrong. Chambers v. Stern, supra; Dodson v. Allstate Ins. Co., supra.

In Dodson v. Allstate Ins., supra, we noted that a corporation cannot conspire with itself, since that defeats the requirement of a combination of two or more persons acting to accomplish some unlawful or oppressive purpose. Thus, in order to sustain a claim for a civil conspiracy where agents of a corporation are involved, it is necessary to show that one or more of the agents acted outside of the scope of their employment, to render them a separate “person” for purposes of the conspiracy. Dodson, 345 Ark. at 445, 47 S.W.3d at 876. In Dodson we said that corporate agents could “not be held liable for civil conspiracy in the absence of evidence showing that they were acting for their own personal benefit rather than for the benefit of the corporation.” Dodson, 345 Ark. at 445, 47 S.W.3d at 876 (citations omitted).

As was the case with tortious interference, this point turns on whether the individual appellees were acting within tbe scope of their employment when tbey conspired as alleged in Faulkner’s complaint. Again, we must look to the stated reasons for the actions taken by the individual appellees. No facts are alleged in the complaint to the effect that the named appellees were acting for their own personal benefit to the elimination of any benefit for ACFL Only the conclusory statement is made that the individual appellees were “acting in their own interests and not in the best interests of ACH.” That is not sufficient to withstand a Rule 12(b)(6) motion. See Ark. R. Civ. P. 8(a)(1); Grine v. Board of Trustees, supra. All of the actions alleged to be part of the conspiracy claimed by Faulkner involve patient care and relate to the effective practice of ECMO. Accordingly, we hold that the individual appellees were acting within the scope of their employment when they engaged in the conduct described in the complaint. Thus, there can be no civil conspiracy.

Affirmed.