text:
    Alex WARE v. STATE of Arkansas
    CR 01-910
    75 S.W.3d 165
    Supreme Court of Arkansas
    Opinion delivered April 11, 2002

      Durrett & Coleman, by: Gerald A. Coleman; and Raymond Abramson, for appellant.

      Mark Pryor, Att’y Gen., by: Clayton K. Hodges, Ass’t Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant Alex Ware appeals the judgment of the St. Francis County Circuit Court convicting him of two counts of capital murder and sentencing him to a term of life imprisonment without the possibility of parole. On appeal, Ware argues that the trial court erred in: (1) denying his motion to quash the information and in failing to grant his motion for a directed verdict; (2) denying his motion for severance; (3) finding him competent to stand trial and denying his motion for a continuance; and (4) refusing to impose sanctions for a violation of the court’s order limiting pretrial publicity. Our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a)(2). We find no error and affirm.

On June 18, 1999, Chantilly Harrell took her two sons, four-year-old K-Von and one-year-old Alexander, to visit Ware, their father, for the Father’s Day weekend. Both Harrell and Ware lived in Memphis, Tennessee, at that time. Harrell had recently left Ware after a five-year relationship, because he had been abusive to her. On June 19, Ware phoned Harrell and stated, “I don’t know what I’ve done with the children. You’ll never see them again. You’ll never trust me again. I don’t know what I’ve done.” Thereafter, Harrell contacted Memphis police and reported her conversation with Ware to Officer Christopher Wages. After being paged by Wages, Ware contacted police and told them that he would bring the children to the police department within a couple of hours, but he never appeared with the children.

On June 28, 1999, Memphis Police Officer Troy Shields received another call from Harrell regarding the whereabouts of her sons. Shields went to Ware’s residence and discovered that it had been abandoned. Shields then contacted Ware expressing concern about the children’s safety. Ware was evasive during this conversation and told Shields that he had not seen the boys since he returned them to their mother. Shields contacted Ware again the next day requesting assurances that the children were safe, but Ware was uncooperative, stating that he would not bring the children in until he cleared his name.

Harrell spoke with Ware on several different occasions between the time the boys disappeared in June and late August 1999. During one conversation, Ware told Harrell that he had thrown K-Von into a pond and that he had abandoned Alexander in some weeds. By the end of August, however, Ware’s story changed, and he told Harrell that if she wanted to see her children alive again, she would have to go with him to pick them up. Harrell notified her mother that she was going with Ware and asked her to contact police if a day passed without hearing from her. According to Harrell, Ware picked her up in Memphis at Court Square and initially drove her to a park located near the Mall of Memphis. Ware then pulled a gun on Harrell and told her that the children were alive, but that he had been trying “to break her spirit.”

After leaving the park, Ware drove Harrell to Chicago, Illinois. During the drive, Ware repeatedly told Harrell that the children were fine and with nice people. Once in Chicago, Ware took Harrell to a cousin’s house where two of Ware’s children from a previous relationship, Shenna and Perez, were located. Harrell attempted to question Ware’s children about the whereabouts of her own sons, but Ware retrieved his gun and a struggle ensued between him and Harrell. Ware then told Harrell that their children were dead and that she was never going to see them again. Immediately thereafter, Ware recanted and told Harrell that he would take her to the children the following day.

The next day, Ware drove Harrell and his two children to Detroit, Michigan, to the home of a great-aunt, but the two missing boys were not there. Ware again drove back to Chicago and dropped off his children. He and Harrell then went back to Detroit, before returning to Memphis. Ware told Harrell that he had some business to take care of in Memphis before he took her to Florida to get the children. Once in Memphis, Ware and Harrell checked into a room at the Bellevue Inn. Harrell then called her mother who in turn contacted the police and informed them that her daughter was being held against her will at the motel.

Memphis Police Officers Max Howard and Billy Smallwood went to the Bellevue Inn and made contact with Ware at approximately 2:00 a.m. on September 2, 1999. Initially, Ware gave officers a false name. Harrell informed the officers that Ware had taken her children somewhere, and she was trying to get them back. Ware then claimed that he had custody of the children. According to Smallwood, he initially believed that he was a dealing with a situation involving parental kidnapping, but grew suspicious after Ware made repeated comments about death and parents who kill their children. After discovering that he was wanted for questioning regarding the whereabouts of two of his children, Howard and Smallwood took Ware into custody. While en route to the Shelby County Jail, the officers were discussing different situations involving murders and kidnappings when Ware interrupted them. According to Smallwood, Ware asked, “[I]f they can’t find the bodies, can they still charge me with murder?” Smallwood stated that he did not initiate any conversation with Ware. Howard also testified that neither he nor Smallwood attempted to initiate a conversation with Ware, and that Ware interrupted their conversation. The only other statement made by Ware while in the patrol car was, “I might as well just kill myself, ’cause I’m not gonna go to prison like that.”

Once at the police station, Ware was questioned by Sergeants Marcus Worthy and Donald Ray Dickerson. The officers advised Ware of his Miranda rights and asked if he would mind answering some questions. Worthy told Ware that the officers’ primary concern was the whereabouts of the children. Initially, Ware told the officers that the kids were safe and happy. After Worthy made comments that the children deserved a proper burial by an ordained minister, Ware changed his story to state that Harrell had killed the children and that he had witnessed it. Ware then signed a typed copy of his statement and told the officers that he would show them where the children’s bodies were located.

Thereafter, Ware took the officers to Arkansas, where they were met by officers from the St. Francis County Sheriffs Office. Ware first directed the officers to an area known as Blackfish Lake. Upon arriving at the scene, Ware attempted to remove his clothes and shoes and stated that he wanted to go into the lake to retrieve K-Von’s body. Ware then took police to a wooded area next to a levee north of Widner Junction where Alexander was abandoned. After searching the lake, investigators were unable to locate the remains of K-Von, but did discover several bone fragments at the wooded site. A later search of this area also uncovered a child’s sock and a t-shirt for a twelve- to eighteen-month-old child.

Initially, both Ware and Harrell were charged with two counts of capital murder and were transported from Memphis to St. Francis County on September 7, 1999. The pair were questioned separately by Officers Glenn Ramsey and Herbert Neighbors, beginning with Harrell. After giving an oral statement, Ware agreed to allow Ramsey to reduce the statement to writing. After reading it and verifying that it was accurate, Ware signed the statement. In that statement, Ware claimed that a couple of days after Harrell moved out with the children, she contacted him stating that she felt tied down at a young age by the two children and was stressed out. Ware then stated that Harrell came to his house on the morning of June 16 wanting to go for a ride over to Arkansas. During the drive, Harrell told Ware that she no longer wanted the children. Ware then described exiting Interstate 40 near Albert’s Junkyard and turning down a gravel road where he stopped the car. According to Ware, Harrell got out of the car with Alexander, took off the child’s shoes, kissed him on the head, and then threw him into some weeds. Ware stated that he and Harrell then returned to Memphis, first stopping to buy a sundae, and he dropped Harrell off at her mother’s house and took K-Von home with him.

According to Ware, three days later, on June 19, he and Harrell went back to Arkansas with K-Von. After traveling through West Memphis, Ware stated that they first turned onto a road with a big S-curve, and then turned down a second road near a generator. Ware then stated that Harrell got out of the car with K-Von and walked around a curve. After a minute or two, Ware followed Harrell and saw K-Von’s head bobbing up and down in the water. Four or five days after this initial statement, Ware asked to speak with Officer Ramsey. Ware asked if K-Von’s body had been discovered. When told that it had not been found, Ware stated, “Y’all have to keep looking, y’all have to find that child. He deserves a decent burial.”

As the investigation proceeded, the State dropped the charges against Harrell, but proceeded with its case against Ware. The State’s position during the .trial was that Ware committed the murders as an act of revenge against Harrell. Prior to trial, Ware underwent a mental evaluation and was found to be competent to stand trial. The record reflects that from the beginning of this case Ware refused to cooperate with his court-appointed counsel. The trial court granted a motion by Ware to hire his own investigator, as well as a motion to hire his own psychiatrist to make a determination regarding his competency. Although Ware’s expert, Dr. Rebecca Caperton, testified during a pretrial hearing that Ware seemed to be delusional and refused to cooperate in his own defense, the trial court determined that he was fit to proceed to trial.

At trial, the jury heard testimony from Harrell and various law enforcement personnel involved in the investigation. The State also introduced scientific evidence regarding the analysis of the remains discovered at the wooded site. Dr. Cheryl May, a forensic anthropologist with the Arkansas State Crime Lab, testified that the remains, consisting primarily of fragments from the cranium and spine, were human and came from the same individual. Dr. May further stated that some additional human remains, as well as some non-human remains, were discovered at a secondary site about 150 feet away from the initial discovery site. The human remains located at the second site consisted of part of the boney spine, the vertebral arch, and the right ischim, which is part of the pelvis. According to Dr. May, these remains were those of a young child. Dr. May further testified that additional skeletal elements were discovered on a subsequent search of the crime scene. Dr. May stated that these bones were consistent in size, coloration, and age as the previously recovered bones. May opined that the remains were those of a child ranging in age from twelve to sixteen months.

John Stewart, Program Manager of the National Missing Person DNA Database for the FBI, testified that he conducted a mitochondrial DNA test on the bones recovered in this case and compared them to a blood sample taken from Harrell. The test revealed that the bone fragments matched Harrell’s blood sample. According to Stewart, Alexander Harrell could not be excluded or eliminated as being the contributor, of the bone sample. Stewart further opined that 99.4% of the African-American population could, however, be excluded as a'contributor.

Ware also testified at trial and for the first time alleged that Alexander’s death was accidental and that K-Von was alive and with a friend. Ware stated that he came home to discover Alexander lying at the bottom of a staircase not moving or breathing. According to Ware, he did not seek medical help out of fear that his other children, Shenna and Perez, would be charged with a crime. Ware recounted how he decided to drive to West Memphis, passing a junkyard and a generator, arriving at a wooded spot where he left Alexander’s body in some tall weeds. Ware then stated that he did not tell Harrell what had happened, because she would have retaliated against his other children. Ware further claimed that he had given K-Von to a woman named Cherise DeBarg, whom he had previously met in a grocery store, because he did not want Harrell to take his son away from him. According to Ware, he gave DeBarg his pager number and waited for her to call him about his son. Finally, Ware stated that he had previously told the police and Harrell that the children were dead, because he was angry.

Ware moved for a directed verdict both at the close of the State’s case and again at the close of all the evidence. The motions were denied, and the case was submitted to the jury. After returning a verdict of guilty on both counts of capital murder, Ware was sentenced to life imprisonment. This appeal followed.

I. Corpus Delicti

For his first argument on appeal, Ware contends that the trial court erred in failing to quash the information and later in failing to direct a verdict in his favor, because the State failed to prove the corpus delicti. According to Ware, there was insufficient evidence to support either the information or his conviction, because the State failed to produce any proof, other than his own statements, that the children were murdered. Specifically, Ware argues that there was no evidence that the death of Alexander was the result of a criminal act, as the State did not prove the cause of death. As for K-Von, Ware argues that the State failed to prove that a death even occurred or that a criminal act occurred. We disagree.

First, Ware is incorrect in asserting that the trial court erred in failing to quash the information. As the State correctly points out, there was no authority for the trial court to grant the motion to quash based on an allegation of insufficient proof. Lack of probable cause is not a statutory ground for a motion to set aside an indictment or, by implication, to quash an information. Ark. Code Ann. § 16-85-706 (1987); Nance v. State, 323 Ark. 583, 918 S.W.2d 114, cert. denied, 519 U.S. 847 (1996). In State v. Garrison, 272 Ark. 470, 615 S.W.2d 371 (1981), this court reversed a trial court’s dismissal of an information for insufficient proof, stating that there was no constitutional or statutory authority for a hearing when charges had already been filed by the prosecutor. Here, as in Garrison, the charges against Ware had already been filed in the circuit court and the issue of his pretrial detention had been judicially determined. Accordingly, the trial court did not err in denying Ware’s motion to quash the information.

Likewise, the trial court did not err in denying Ware’s motions for directed verdict on the grounds that the State failed to prove the corpus delicti, as required to corroborate his statements about the crimes. A motion for directed verdict is treated as a challenge to the sufficiency of the evidence. Branscum v. State, 345 Ark. 21, 43 S.W.3d 148 (2001). The test on appeal is whether there is substantial evidence to support the verdict. Carmichael v. State, 340 Ark. 598, 12 S.W.3d 225 (2000). Where, however, the challenge is limited to the sufficiency of the evidence corroborating a defendant’s confession, our review is governed by Ark. Code Ann. § 16-89-111(d) (1987). See Tinsley v. State, 338 Ark. 342, 993 S.W.2d 898 (1999). Section 16-89-lll(d) provides: “A confession of a defendant, unless made in open court, will not warrant a conviction, unless accompanied with other proof that the offense was committed.” The requirement for other proof is sometimes referred to as the corpus delicti rule and requires only proof that the offense occurred and nothing more. Id. Thus, the State must prove (1) the existence of an injury or harm constituting a crime and (2) that the injury or harm was caused by someone’s criminal activity. Id. (citing Ferrell v. State, 325 Ark. 455, 929 S.W.2d 697 (1996)). This court has held that it is not necessary to establish any further connection between the crime and the particular defendant. Hart v. State, 301 Ark. 200, 783 S.W.2d 40 (1990).

In a murder case, this rule requires the State to prove that the deceased came to his death at the hands of another person. Ferrell, 325 Ark. 455, 929 S.W.2d 697. This court has recognized, however, that there is no requirement that medical testimony be provided regarding the cause of death. Sims v. State, 258 Ark. 940, 530 S.W.2d 182 (1975); Glover v. State, 211 Ark. 1002, 204 S.W.2d 373 (1947). Both elements, the fact of death and the cause of death, may be shown by strong and unequivocal circumstantial evidence such as to leave no ground for reasonable doubt; thus, where there is some proof of the corpus delicti, its weight and sufficiency is properly left to the jury. Sims, 258 Ark. 940, 530 S.W.2d 182 (citing Edmonds v. State, 34 Ark. 720 (1879)). See also Derring v. State, 273 Ark. 347, 619 S.W.2d 644 (1981).

Here, Appellant led police officers to a remote wooded area near a murky pond in St. Francis County. There, the decomposed remains of the body of Alexander were found. While the body of K-Von was never found, Ware inquired of police if it had been found and pleaded with them to continue looking for it, so that his son could have a proper burial. In addition, when Ware was initially taken into custody, he asked Officers Smallwood and Howard if he could be charged with murder “if they can’t find any bodies.” Ware also had made veiled comments regarding death and parents who kill their children. These statements combined certainly create circumstantial evidence that both boys had died as the result of a criminal act of another. Moreover, this is not a situation involving victims old enough to disappear, in a secluded area far from their home, of their own accord. The fact that K-Von has never been seen alive after being left in the care of his father is circumstantial evidence of both the fact of his death and Ware’s responsibility for that death.

Ware’s actions leading up to and following his arrest are also corroborative of his guilt. When contacted by the police regarding the children’s whereabouts Ware was evasive and uncooperative. He also abandoned his home and took his other two children out of state. When police finally caught up with him, Ware attempted to evade detection by giving police a false name and then claiming to have custody of K-Von and Alexander. All of these actions combined could be considered by the jury as corroborative of guilt. Ross v. State, 346 Ark. 225, 57 S.W.3d 152 (2001); Flowers v. State, 342 Ark. 45, 25 S.W.3d 422 (2000). Finally, Ware’s trial testimony that he gave K-Von to DeBarg conflicted with his prior statements to police that Harrell had killed the boys and that he had witnessed it. This trial testimony is also not credible in light of the fact that when Ware led the police to Blackfish Lake where K-Von was allegedly thrown in by Harrell, he immediately tried to remove his clothes and go into the lake to retrieve his son’s body. It is well settled that a defendant’s improbable explanations of suspicious circumstances may be admissible as proof of guilt. Ross, 346 Ark. 225, 57 S.W.3d 152; Goff v. State, 329 Ark. 513, 953 S.W.2d 38 (1997).

In sum, the State did establish that Alexander and KVon were dead as a result of the criminal acts of Ware, thereby proving the corpus delicti. Accordingly, the trial court did not err in refusing to grant the motions for directed verdict.

II. Severance

For his second point on appeal, Ware argues that the trial court erred in refusing to sever the two charges of capital murder. According to Appellant, the charges constituted two separate incidents, and there was no evidence that they were part of a single scheme or plan. The State correctly avers that Ware failed to preserve this argument for review.

Pursuant to Ark. R. Crim. P. 22.1(b), “If a defendant’s pretrial motion for severance is overruled, he may renew the motion on the same grounds before or at the close of all of the evidence. Severance is waived by the failure to renew the motion.” See also Gray v. State, 327 Ark. 113, 937 S.W.2d 639 (1997). Here, a review of the record reveals that Ware failed to renew his motion for a severance at any time during the trial. Accordingly, his argument on this point was waived, and we will not consider it on appeal.

III. Competency

Next, Ware argues that the trial court erred in finding him competent to stand trial where he was unable to assist in his defense. In the same vein, Ware argues that the trial court also erred in refusing to grant him a last-minute continuance when he decided to provide his court-appointed counsel with information related to his defense. This court will affirm a finding of fitness to stand trial if there is substantial evidence to support the trial court’s finding. Key v. State, 325 Ark. 73, 923 S.W.2d 865 (1996).

A person lacking the capacity to understand the proceedings against him or to assist in his defense shall not proceed to trial as long as the incapacity endures. Ark. Code Ann. § 5-2-302 (Repl. 1997). A criminal defendant is presumed to be competent, however, and the burden of proving incompetence is on the accused. Haynes v. State, 346 Ark. 388, 58 S.W.3d 336 (2001); Baumgarner v. State, 316 Ark. 373, 872 S.W.2d 380 (1994). The test for determining an accused’s competency to stand trial is whether he is aware of the nature of the proceedings against him and is capable of cooperating effectively with his attorney in the preparation of his defense. Id.; Key, 325 Ark. 73, 923 S.W.2d 865.

Prior to trial, counsel filed a motion requesting the trial court to find Ware not competent to stand trial. This motion was based on the opinion of Dr. Rebecca Caperton that Ware suffered from a delusional disorder and was unable to assist his attorneys. The State countered Caperton’s opinion with that of Dr. Charles Mallory of the Arkansas State Hospital who opined that the only disorder Ware suffered from was antisocial personality disorder. Mallory also testified that Ware scored an eighty-six out of a possible 100 on the Georgia Court Competency Test. According to Mallory, Ware understood the charges against him, as well as the role of the trial judge, prosecutor, and defense counsel. Mallory opined that Ware was competent to participate in the trial process.

Moreover, while Ware did consistently refuse to talk with his counsel until the eve of his trial, there was insufficient proof that this lack of cooperation stemmed from any type of mental incapacity. In fact, the record reveals that Ware was knowledgeable of the legal system. At one point, Ware stated in open court that he had instructed his attorneys to file a motion to dismiss. In another instance, Ware wrote a letter to the trial judge seeking new counsel and discussing the nature of judicial proceedings. In light of this evidence, we cannot say that the trial court erred in finding Ware competent to stand trial.

Ware further asserts that the trial court should have granted him a continuance to allow him time to prepare a defense consistent with his last-minute admission that Alexander died accidentally and that K-Von was alive. When reviewing the grant or denial of a motion for continuance, this court employs an abuse-of-discretion standard. Anthony v. State, 339 Ark. 20, 2 S.W.3d 780 (1999). An appellant must not only demonstrate that the trial court abused its discretion by denying the motion for a continuance, but also show prejudice that amounts to a denial of justice. Id. When a motion for continuance is based on a lack of time to prepare, we will consider the totality of the circumstances. Davis v. State, 345 Ark. 161, 44 S.W.3d 726 (2001). This court has held that a lack of diligence alone is a sufficient basis to deny a motion for a continuance. Id; Anthony, 339 Ark. 20, 2 S.W.3d 780.

Considering the totality of the circumstances, it is clear that the trial court properly denied Ware’s motion for a continuance. He did not request the continuance until after the eleventh juror had been selected for his trial. Ware was given sufficient time to prepare his defense. In fact, he was granted a court-appointed psychiatrist and investigator to assist him in his defense. Ware knew all along what happened to the children, but chose to wait until the last second to provide his counsel with information necessary to defend him. This is a prime example of lack of diligence and, as such, was a sufficient basis for denying the motion for a continuance.

IV.. Pretrial Publicity

Fpr his final point on appeal, Ware argues that the trial court erred in refusing to exclude all evidence related to the remains of Alexander for violation of a pretrial order limiting publicity. At issue here was a statement made by Officer Ramsey prior to trial that DNA tests confirmed that the previously discovered remains were those of Alexander. As a result of this statement, Ware requested that Ramsey be barred from testifying at trial and that the DNA results be suppressed. According to Ware, the trial court had the authority to fashion a remedy for this violation, but failed to do so. The State asserts that' this court should not consider this argument on appeal, as Ware has failed to provide any convincing legal argument or authority in support of this contention. We agree with the State.

This court has said on numerous occasions that it will not consider the merits of an argument if the appellant fails to cite any convincing legal authority in support of that argument. Bunch v. State, 344 Ark. 730, 43 S.W.3d 132 (2001); Ayers v. State, 334 Ark. 258, 975 S.W.2d 88 (1998). Accordingly, we decline to address the merits of Ware’s argument on this point.

V. 4-3 (h) Review

The record has been reviewed in this case for other reversible error pursuant to Ark. Sup. Ct. R. 4-3(h), and none has been found.

Affirmed.


source: Caselaw Access Project

author: Jim Hannah, Justice. Annabelle Clinton Imber, Justice,

license: Public Domain

text:
    ST. PAUL MERCURY INSURANCE COMPANY v. CIRCUIT COURT of CRAIGHEAD COUNTY, Western Division
    01-1311
    73 S.W.3d 584
    Supreme Court of Arkansas
    Opinion delivered April 11, 2002

      Barrett & Deacon, by: Paul D. Waddell, D.P. Marshall, Jr., and Leigh M. Chiles, for appellant.

      On, Scholtens, Willhite & Averitt, PLC, by: M. Scott Willhite, for appellee.
   Jim Hannah, Justice.

St. Paul Mercury Insurance CornDany seeks a writ of prohibition to stop the Craighead County Circuit Court from hearing a medical-malpractice action. Because a writ of prohibition is sought, jurisdiction lies in this court pursuant to Ark. R. Sup. Ct. 1-2(a)(3). The petition asserts that the trial court is wholly without jurisdiction.

St. Paul brought a motion to dismiss that included exhibits and reference to matters outside the pleadings. This converted the motion to a motion for summary judgment as provided for under Ark. R. Civ. P. 12(b). The motion was denied by the trial court. Therefore, absent a writ from this court, the case will proceed below.

The petition for a writ of prohibition is granted. The trial court erred in concluding that the amended complaint filed in May 2001 related back to the original pro se complaint. Because the amended complaint does not relate back to the original pro se complaint, the action is barred by the statute of limitations on medical-malpractice claims.

At the time that the pro se complaint was filed by the deceased’s parents and some of the other heirs at law, the probate , court had already appointed an administrator. Under Ark. Code Ann. § 16-62-101 (Supp. 2001), only the administrator could file a survival action. She did not do so. The pro se plaintiffs were without standing, and their complaint was a nullity. Additionally, even if the complaint were not a nullity, the filing of the amended complaint in May 2001 substituted entirely new plaintiffs and, therefore, constituted a new suit subject to the two-year statute of limitations. The action is barred by the statute of limitations.

Facts

On February 26, 1999, Timothy Thomas was taken to St. Bernard’s Hospital where he was treated for stab wounds and died that same day. On July 19, 1999, Timothy’s daughter, Stephanie Thomas Hart, was appointed special administrator of his estate. On February 23, 2001, a pro se complaint alleging medical malpractice was filed by Timothy’s parents and his other heirs-at-law with the exception of Ms. Hart. On February 26, 2001, the limitations period on any malpractice action expired. On March 13, 2001, St. Bernard’s filed a motion to dismiss based in part on a lack of standing. On April 24, 2001, Timothy’s parents were substituted for Stephanie as special administrators. On May 9, 2001, Timothy’s parents filed an “amended complaint” as plaintiff special administrators. On June 5, 2001, St. Bernard’s filed a motion to dismiss based upon the statute of limitations. The motion was denied, and this petition followed.

Writ of Prohibition

St. Paul’s filed a motion to dismiss. Matters outside the pleadings were considered. Exhibits were attached to the motion. As such, it is considered a motion for summary judgment as provided for under Ark. R. Civ. P. 12(b). However, as with a motion to dismiss, the denial of a motion for summary judgment is not appealable. Brinker v. Forrest City School District, 344 Ark. 171, 40 S.W.3d 265 (2001). See also, Nucor Holding Corp. v. Rinkines, 326 Ark. 217, 931 S.W.2d 426 (1996).

Therefore, St. Paul seeks a writ of prohibition to stop the trial court from proceeding. In State v. Circuit Court of Lincoln County, 336 Ark. 122, 125, 984 S.W.2d 412, 414 (1999), this court stated:

A writ of prohibition is extraordinary relief which is appropriate only when the trial court is wholly without jurisdiction. Henderson Specialties, Inc. v. Boone County Circuit Court, 334 Ark. 111, 971 S.W.2d 234 (1998); Nucor Holding Co. v. Rinkines, 326 Ark. 217, 931 S.W.2d 426 (1996). The writ is appropriate only when there is no other remedy, such as an appeal, available. Henderson Specialties, Inc. v. Boone County Circuit Court, supra; West Memphis Sch. Dist. No. 4 v. Circuit Court, 316 Ark. 290, 871 S.W.2d 368 (1994) (quoting National Sec. Fire & Cas. Co. v. Poskey, 309 Ark. 206, 828 S.W.2d 836 (1992)). When deciding whether prohibition will lie, we confine our review to the pleadings in the case. The Wise Company, Inc. v. Clay Circuit, 315 Ark. 333, 869 S.W.2d 6(1993).

See also, Willis v. Circuit Court of Phillips County, 342 Ark. 128, 27 S.W.3d 372 (2000); Pike v. Benton Circuit Court, 340 Ark. 311, 10 S.W.3d 447, 448 (2000). Jurisdiction is the power of the court to hear and determine the subject matter in controversy between the parties. Circuit Court of Lincoln County, 336 Ark. at 125.

Prohibition is a proper remedy when the jurisdiction of the trial court depends upon a legal rather than a factual question. Western Waste Indus. v. Purifoy, 326 Ark. 256, 930 S.W.2d 348 (1996); Fausett and Co. v. Bogard, 285 Ark. 124, 685 S.W.2d 153 (1985); Titsworth v. Mayfield, Judge, 241 Ark. 641, 409 S.W.2d 500 (1966). When jurisdiction depends on the establishment of facts or turns on facts which are in dispute, the issue is one correctly determined by the trial court. Steve Standridge Ins., Inc. v. Langston, 321 Ark. 331, 900 S.W.2d 955 (1995).

The issue before the trial court was the interpretation of Ark. Code Ann. § 16-62-101, and the applicability of Ark. R. Civ. P. 15 and 17. Therefore, this was a legal question. So, if there is no jurisdiction, the only way petitioners can obtain review by this court is by way of a petition for a writ of prohibition. Therefore, a petition for a writ of prohibition is a proper method to obtain review of jurisdiction by this court. Ramirez v. White County, 343 Ark. 372, 38 S.W.3d 298 (2001).

The Amended Complaint

In Arkansas, a medical-malpractice action must be brought within two years of “the date of the wrongful act complained of and no other time.” Ark. Code Ann. § 16-114-203 (Supp. 2001). The medical malpractice act applies to all causes of action for medical injury arising after April 2, 1979, including wrongful-death and survival actions arising from the death of a patient. See Pastchol v. St. Paul Fire & Marine Ins. 326 Ark. 140, 929 S.W.2d 713 (1996).

In this case, all treatment was provided on February 26, 1999. On February 23, 2001, a pro se complaint was filed, which was filed within the two-year limitations period. On May 9, 2001, an “amended complaint” was filed by new plaintiffs. This second complaint was not filed within the two-year limitations period. Thus, the “amended complaint” can not be valid if it does not relate back to the pro se complaint.

The pro se complaint was filed by Timothy’s two sisters and his parents, who constituted part, but not all, of Timothy’s heirs at law. On February 23, 2001, when the pro se complaint was filed, an estate had already been opened for Timothy. As noted, Stephanie Hart had been previously appointed administrator on July 19, 1999.

The pro se complaint asserted damages based upon injuries suffered by Timothy prior to his death. Thus, a survival action is asserted. A survival action is a statutory action, which may be brought after the person’s death by his or her executor or administrator. Ark. Code Ann. § 16-62-101. See also, First Commercial Bank v. United States of America, 727 F. Supp. 1300 (E.D. Ark. 1990). Because the survival action, just as a wrongful-death action, is a creation of statute, it only exists in the manner and form prescribed by the statute. Ramirez, supra. It is in derogation of the common law and must be strictly construed, and nothing may be taken as intended that is not clearly expressed. Id. The right to amend a complaint in circumstances such as we are dealing with is substantive, and not procedural, and the right to recover under the statute is dependent upon the complaining party bringing himself within the terms of the statute, as construed by this court. Ark. Code Ann. § 16-62-101; Ramirez, supra. Thus, the survival action could only be brought by .Ms. Hart.

The conclusion we are compelled to reach is that the pro se complaint was a nullity. Had the motion to dismiss been heard before the amended complaint was filed, the complaint should have been dismissed based upon a lack of standing. Ramirez, supra. The pro se complaint was not permitted under the statute. Ark. Code Ann. § 16-62-101. Thus, there was no complaint to amend in May 2001.

The trial court relied on the relation back doctrine, which is a reference to Ark. R. Civ. P. 15(c). Rule 15 provides that “a party may amend his pleadings. . . .” However, Rule 15 is a procedural rule that controls how a party may amend existing pleadings. Before the rule can apply, there must be pleadings to amend.

Rule 15 applies, for example, when an amendment permissibly changes the party against whom the claim is asserted or adds a party after the statute of limitations has run, and it may relate back to the time of filing of the original complaint. Southwestern Bell Tel. Co. v. Blastech, 313 Ark. 202, 852 S.W.2d 813 (1993). Rule 15 makes liberal provision for amendments to pleadings and even allows a plaintiff to amend to add new claims arising out of the conduct alleged in the initial valid complaint. Jim Halsey Co. v. Bonar, 284 Ark. 461, 683 S.W.2d 898 (1985). These cases, and the cited case law, all deal with a plaintiff amending an existing valid pleading to state a new cause of action against a defendant or to add a new defendant where proper. Rule 15 simply would not help the appellees in this case because there was no pleading to amend when the Thomases filed their “amended complaint” as administrators.

The pro se plaintiffs were without standing. This court has stated that where the plaintiff has no standing, but prevails anyway, the prejudice to the defendant is obvious. Daughhetee v. Shipley, 282 Ark. 596, 669 S.W.2d 886 (1984). A survival action is a statutory action, and pursuant to the statute, only an administrator or executor could bring suit. Ark. Code Ann. § 16-62-101. The pro se plaintiffs were, therefore, without standing.

The trial court found that the two sets of plaintiffs were substantially the same parties. They were the same persons, but they were not the same parties. They had no standing when they filed the pro se complaint, and they did when they filed the amended complaint as appointed administrators. Unfortunately, the statute of limitations had expired in the meantime. The Thomases as individual heirs at law are entirely distinct legal persons from the Thomases in their later capacity as appointed administrators, and thus different parties. An action for wrongful death brought by a plaintiff in his capacity as an administrator pursuant to Ark. Code Ann. § 16-62-102 involves neither the same action, nor the same plaintiff as in a survival action brought by the same person in his individual capacity pursuant to Ark. Code Ann. § 16-62-101. Murrell v. Springdale Me. Hosp., 330 Ark. 121, 952 S.W.2d 153 (1997).

Arkansas Rules of Civil Procedure 15(c) cannot be used to somehow relate the administrators’ suit back to the pro se suit. This rule permits the amendment of a pleading to “relate back” to the date of the original pleading. Its purpose is not to permit the relation back of an entirely separate lawsuit as appellants attempt in this case. Elzea v. Perry, 340 Ark. 588, 12 S.W.3d 213 (2000). The amended complaint substituted out the plaintiffs, and substituted in entirely new plaintiffs. Where the amended complaint substituted out all the plaintiffs, and put in their place entirely new plaintiffs, it was not an amendment, but rather was a new suit. Floyd Plant Food Co. v. Moore, 197 Ark. 259, 122 S.W.2d 463 (1938).

In concluding the trial court erred, we are not unaware that the amended complaint asserted a cause of action for wrongful death and that this is a remedial statute that should be interpreted liberally with a view toward accomplishing its purposes. Chatelain v. Kelly, 322 Ark. 517, 910 S.W.2d 215 (1995). However, with respect to whether such a cause of action is stated, the action is one that is of statutory creation, and is in derogation or at variance with the common law, and therefore, we construe the statute strictly. Nothing is to be taken as intended that is not clearly expressed. Lawhorn Farm Serv. v. Brown, 335 Ark. 272, 984 S.W.2d 1 (1998).

The pro se plaintiffs could not bring the action. In Arkansas, only a real party in interest may bring a cause of action. Ark. R. Civ. P. 17. See also, TB of Blytheville v. Little Rock Sign & Emblem, 328 Ark. 688, 946 S.W.2d 930 (1997). The real party in interest is considered to be the person or corporation who can discharge the claim on which the allegation is based, not necessarily the person ultimately entitled to the benefit of any recovery. Forrest Const. v. Milam, 345 Ark. 1, 43 S.W.3d 140 (2001). However, Rule 17 specifically notes that an administrator, however, may bring suit for the benefit of another without joining a party for whose benefit the action is being brought. The real parties in interest were the heirs at law; however, under the statute, the administrator had to file.suit and did not do so.

Because the pro se complaint was not permitted under the survival statute, there was no complaint to amend in May. Also, as already discussed, the amended complaint was the filing of a new lawsuit. The attempted substitution of the only parties that could maintain the action in place of parties that could not, was in the nature of the filing of a new action. Floyd Plant Food Co., supra. The new action in May 2001 was barred by the statute of limitations. Ark. Code Ann. § 16-114-203.

The writ of prohibition is granted.

Imber, J., concurring.

Glaze, J., not participating.

Annabelle Clinton Imber, Justice,

concurring. I concur with the majority’s decision in this case; however, I write separately because the majority understates the effect of Arkansas Rules of Civil Procedure 15(c) and 17(a) with respect to permitting the substitution of a new plaintiff to relate back under circumstances not implicated in this case.

Rule 15(c) of the Arkansas Rules of Civil Procedure, with the exception of minor wording changes, is identical to Rule 15(c) of the Federal Rules of Civil Procedure. The Reporter’s Notes to Rule 15(c) states the following with respect to the rule’s adoption and effect:

The question of relation back of pleadings normally does not arise unless the statute of limitations is involved. Under this and the Federal Rule, an amendment always relates back when it arises out of the conduct, transaction or occurrence set forth in the original pleading. Under prior Arkansas law, the question of whether a pleading related back was determined by whether the amendment asserted a new cause of action against the defendant. If it did, the amended pleading could not stand or relate back.

Ark. Rule Civ. P. 15, Reporter’s Notes to Rule 15 (2001). Thus, the adoption of Rule 15(c) represented a substantial departure from prior Arkansas procedural law in its shift away from the “new cause of action” analysis of amended pleadings.

The majority cites a pre-rule case, Floyd Plant Food Co. v. Moore, 197 Ark. 259, 122 S.W.2d 463 (1938), for the proposition that where the amended complaint substituted out all the plaintiffs and put in their place entirely new plaintiffs, the amendment constituted a new suit that could not relate back to the original complaint. In Floyd Plant Food, the question answered by this court was whether an amendment could relate back when a new plaintiff was substituted in a case that was filed prior to the running of the statute of limitations. Floyd Plant Food Co. v. Moore, 197 Ark. 259, 122 S.W.2d 463 (1938). We held, relying on the “new cause of action” reasoning, that Federal Chemical Company could not, after the statute of limitations had run, substitute itself for Floyd Plant Food Company, which Federal Chemical had subsumed in a merger. Id. The suit had been filed in the name of Floyd Plant Food Company before the running of the statute of limitations. Id. This court reasoned that, “if the attempted substitution of the new plaintiff, the only one who could maintain the suit, has any effect it was in the nature of a new action begun at the time of the filing of the amendment which was after the statute bar had attached.” Id. at 267, 122 S.W.2d 466-467 (emphasis added). We elaborated by answering the following hypothetical proposition:

It is a matter of extreme doubt that the St. Louis S. W. R. Co. could maintain a suit in the name of the Cotton Belt Railroad Company, though the two names designate only one person. It would not be a matter of mistake if it filed a suit under such name or style, because it must recognize its own corporate existence and corporate name. There is a difference in being made a defendant under one or two or more names by which a person or corporation might be known and in suing and attempting to maintain litigation under such an appellation which it, itself, knew was not correct.

Id. at 265, 122 S.W.2d 465-466 (emphasis added).

As the Reporter’s Notes to the Arkansas Rules of Civil Procedure plainly state, with the adoption of these rules we abandoned the analytical framework of “new cause of action” with respect to the relation back of certain types of amendments. The new rule permits relation back much more liberally so long as there is a transactional nexus with the original pleading. Rule 15 states in relevant part:

(c) Relation Back of Amendments. An amendment of a pleading relates back to the date of the original pleading when:
(1) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or
(2) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (1) is satisfied and, within the period provided by Rule 4(i) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.

Ark. Rule Civ. P. 15(c)(emphasis added). Clearly, the rule not only permits the addition of claims and defenses arising out of the same transaction, but also permits the substitution of parties so long as the amendment is related to the same transaction, service is perfected, and there is no prejudice to the other party. Although this court has not addressed this precise issue, the federal courts have construed the effect of Rule 15(c) where new plaintiffs are concerned. Our rules of civil procedure are modeled on the federal rules of civil procedure, and we have consistently held that where our rules are nearly identical or substantially the same, federal precedent and commentary should be accorded “significant precedential value.” See Smith v. Washington, 340 Ark. 460, 10 S.W.3d 877 (2000) (reasoning that “based upon the similarities of our rules with the Federal Rules of Civil Procedure, we consider the interpretation of these rules by federal courts to be of significant precedential value.”).

The commentary to the 1966 amendments to Fed. R. Civ. P. 15(c), which have been adopted by this court, states that the rule applies by analogy to plaintiffs in order to effectuate the policy of liberalized requirements of pleading.

The relation back of amendments changing plaintiffs is not expressly treated in revised Rule 15(c) since the problem is generally easier. Again the chief consideration of policy is that of the statute of limitations, and the attitude taken in revised Rule 15(c) toward change of defendants extends by analogy to amendments changing plaintiffs. Also relevant is the amendment of Rule 17(a) (real party in interest). To avoid forfeitures of just claims, revised Rule 17(a) would provide that no action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed for correction of the defect in the manner there stated.

Fed. R. Civ. P. 15, Advisory Committee Notes to the 1966 Amendments (2002). Thus, the commentary indicates that Rule 15(c) may operate to permit amendments changing plaintiffs to relate back and illustrates that intent by pointing to related provisions in revised Rule 17(a). See Fed. R. Civ. P. 17. Rule 17 of the Arkansas Rules of Civil Procedure is a slightly modified version of Fed. R. Civ. P. 17. See Ark. R. Civ. P. 17, Reporter’s Notes to Rule 17 (2001).

The interaction between Rule 15(c) and Rule 17(a) in the context of new plaintiffs has been addressed by the federal appellate courts. In that regard, these rules have been construed as being designed for a twofold purpose: 1) to further a lenient and permissive purpose with respect to a real party in interest; and 2) to protect the defendant against a subsequent action by another party, and to insure generally that the judgment will have its proper effect as res judicata. See Scheufler v. General Host Corp., 126 F.3d 1261 (10th Cir. 1997); Crowder v. Gordons Transports, Inc., 387 F.2d 413 (8th Cir. 1967); see also Fed. R. Civ. P. 17, Advisory Committee Notes to the 1966 Amendments (2002).

In the Crowder case, the Eighth Circuit Court of Appeals allowed an administratrix to amend her timely-filed wrongful-death complaint after the statute of limitations had run and to substitute herself as the mother and next friend of the decedent’s two minor children. Crowder v. Gordons Transports, Inc., 387 F.2d 413 (8th Cir. 1967). The appellate court stated that Rules 15(c) and 17(a) were designed for relation back “to prevent forfeiture when determination of the proper party to sue is difficult or when an understandable mistake has been made.” Id. at 418 (citing 28 U.S.C.A. Rule 17, Cum. P.P. Notes p. 5). The Crowder court determined that the plaintiffs mistake in bringing the action initially in the name of the administratrix was “understandable and excusable.” Id. at 419. That case included a conflicts-of-law question with respect to whether Arkansas or Missouri law governed, and each state’s wrongful-death statute placed the cause of action in a different party.

Likewise, in the Schuefler decision, the Tenth Circuit Court of Appeals permitted an amended pleading to relate back when a group of landlord plaintiffs substituted tenant plaintiffs as the real party in interest in a water-rights action. Schuefler v. General Host Corp., 126 F.3d 1261 (10th Cir. 1997). The appellate court noted that the failure to name the real party in interest was not “some tactic designed to prejudice defendants, but instead was the result of a mistake as to the legal effectiveness of the documents allegedly assigning the tenants’ claims to their respective landlords.” Id. at 1270. See also Advanced Magnetics, Inc. v. Bayfront Partners, Inc., 106 F.3d 11 (2d Cir. 1997) (holding that district court erred in failing to permit the substitution of plaintiffs to relate back where AMI had been mistaken about the legal effect of a shareholder assignment, observing that the “history of the Rules makes clear not only that Rule 15 was meant to be generally applicable to a proposed change of plaintiffs, but that in this regard Rule 17(a) is implicated as well.” Id. at 19.)

Furthermore, the federal appellate courts have looked to Rule 17(a)’s express provision for the substitution of the real party in interest and analogized that Rule 15(c) permits this kind of amendment to relate back. Advanced Magnetics, supra; Schuefler, supra; Crowder, supra. Rule 17 of the Arkansas Rule of Civil Procedure provides in relevant part that:

Every action shall be prosecuted in the name of the real party in interest. An executor, administrator, guardian (conservator), bailee, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or the State or any officer thereof or any person authorized by statute to do so may sue in his own name without joining with him the party for whose benefit the action is being brought. No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.

Ark. R. Civ. P. 17(a)(2001) (emphasis added). As already noted, Arkansas’s Rule 17 is virtually identical to the federal rule. Thus, Rule 17(a) may operate to permit a plaintiff to be substituted for another plaintiff and the substitution would have the “same effect as if the action had been commenced by the real party in interest.” Id. The Advisory Committee Notes to Rule 17 of the Federal Rules of Civil Procedure delineate the governing principles: “Modern decisions are inclined to be lenient when an honest mistake has been made in choosing the party in whose name the action is to be filed. . . and the rule is “intended to prevent forfeiture when determination of the proper party to sue is difficult or when an understandable mistake has been made.” Fed. R. Civ. P. 17(a), Advisory Committee Notes to the 1966 Amendments (2002).

This case does not involve the substitution of the real party in interest following an “understandable mistake” made in the initial pleading. Both the survival statute, Ark. Code Ann. § 16-62-101 (Supp. 2001), and the wrongful-death statute, Ark. Code Ann. § 16-62-102 (Supp. 2001), are very clear with respect to which party has the right to bring the cause of action. A survival action under Section 16-62-101 may only be brought by an administrator or executor of the decedent’s estate. A wrongful-death action under Section 16-62-102 must be brought by and in the name of the personal representative of the decedent unless there is no personal representative, in which event the action must be brought by all of the heirs at law. Ramirez v. White. County, 343 Ark. 372, 38 S.W.3d 298 (2001). Here, Timothy’s daughter, Stephanie Thomas Hart, was appointed special administrator of her father’s estate on July 19, 1999. When the pro se complaint was filed on February 23, 2001, by less than all of the heirs at law, there had been no change in Stephanie Hart’s status. She was still the appointed special administrator for her father’s estate. The mistake in bringing the action initially in the name of less than all of the heirs was neither “understandable” nor “excusable.” For this reason, I concur with the result reached in this case.

       The majority concludes that the pro se complaint filed by some of the heirs merely stated a survival action claim and did not also sufficiently plead a wrongful death action. I disagree. The Arkansas Rules of Civil Procedure state that “[a] 11 pleadings are to be liberally construed so as to do substantial justice.” Ark. Rule of Civ. P. 8(f) “Construction of Pleadings” (2001). Similarly, the rules state that “[e]ach averment of a pleading shall be direct and stated in ordinary and concise language. No technical forms of pleadings or motions are required.” Ark. R. Civ. P. 8(e)(1)(2001).
      The pro se complaint in this case states in Paragraph No. 2 that “the cause of action involves medical negligence and wrongful death.” The complaint then seeks, as a result of the alleged negligence of the defendant, compensation for pain, suffering, and anguish sustained by Timothy Thomas prior to his death; funeral expenses; and “all other damages entitled under Arkansas law. ” The final portion of the prayer for relief, when viewed in conjunction with Paragraph No. 2 of the complaint, should be liberally construed to state a claim under Ark. Code Ann. 16-62-102 for wrongful death.


author: Tom Glaze, Justice.

text:
    Danny RIDLING v. STATE of Arkansas
    CR 01-934
    72 S.W.3d 466
    Supreme Court of Arkansas
    Opinion delivered April 18, 2002

      John Wesley Hall, Jr., for appellant.

      Mark Pryor, Att’y Gen., by; Brad Newman, Ass’t Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant Danny J. Ridling was charged under Ark. Code Ann. § 5-14-103(a) (Repl. 1997) with the rape of a girl (Kimberly) who was less than fourteen years old. He was originally charged with carnal abuse, but the State upgraded the offense when the girl informed the prosecutor that the incidents of sexual intercourse commenced earlier than she had originally revealed. It is undisputed that before Ridling was charged, Kimberly was pregnant and had given birth on March 19, 1997, to a child that Ridling later acknowledged to be his. The child was born approximately nine months after Kimberly’s fourteenth birthday. Kimberly stopped seeing Ridling just after her fourteenth birthday. At a jury trial, Ridling was convicted of the rape charge and sentenced to 420 months in prison.

Ridling raises three points for reversal, the first of which is his argument that the trial court erred in excluding allegedly false statements, made by Kimberly, under the rape-shield statute, Ark. Code Ann. § 16-42-101 (Repl. 1999). Subsection (b) of 16-42-101 provides in pertinent part as follows:

In any criminal prosecution under § 5-14-103 through § 5-14-110, or for criminal attempt to commit, criminal solicitation to commit, or criminal conspiracy to commit an offense defined in any of those sections, opinion evidence, reputation evidence, or evidence of specific instances of the victim’s prior sexual conduct with the defendant or any other person, evidence of a victim’s prior allegations of sexual conduct with the defendant or any other person which allegations the victim asserts to be true, or evidence offered by the defendant concerning prior allegations of sexual conduct by the victim with the defendant or any other person if the victim denies making the allegations is not admissible by the defendant, either through direct examination of any defense witness or through cross-examination of the victim or other prosecution witness, to attack the credibility of the victim, to prove consent or any other defense, or for any other purpose. (Emphasis added.)

Notwithstanding the prohibition in subsection (b) above, subsection (c) of § 16-42-101 provides that evidence directly pertaining to the act upon which the prosecution is based or evidence of the victim’s sexual conduct with the defendant or any other person may be admitted at the trial if the relevancy of the evidence is determined in the following manner:

(1) A written motion shall be filed by the defendant with the court at any time prior to the time the defense rests stating that the defendant has an offer of relevant evidence prohibited by subsection (b) of this section and the purpose for which the evidence is believed relevant;
(2) (A) A hearing on the motion shall be held in camera no later than three (3) days before the trial is scheduled to begin, or at such later time as the court may for good cause permit.
(B) A written record shall be made of the in camera hearing and shall be furnished to the Arkansas Supreme Court on appeal.
(C) If, following the hearing, the court determines that the offered proof is relevant to a fact in issue, and that its probative value outweighs its inflammatory or prejudicial nature, the court shall make a written order stating what evidence, if any, may be introduced by the defendant and the nature of the questions to be permitted in accordance with the applicable rules of evidence[.] (Emphasis added.)
* * *

In the instant case, Ridling requested an in camera hearing where he proffered nine statements attributed to Kimberly. The trial judge found three of these statements to be relevant, and at trial, he allowed Ridling to cross examine Kimberly regarding them. These statements, or “areas of inquiry” as characterized by Ridling, were:

(1) She told the police that she was fourteen years old when she started having sex with the defendant.
(2) She told [deputy prosecuting attorney] John Hout that she was twelve years old when she first had sex with the defendant.
(3) She testified in Sixth Division Chancery that she was eleven years old when she first had sex with the defendant.

The six remaining statements attributed to Kimberly that the trial judge ruled inadmissible are the following:

(4) She told Michael Loftin, Sr., she was eighteen years old.
(5) She told Billy Owens (Ridling’s roommate) that she was eighteen years old.
(6) She told Daniel Ridling (Ridling’s son) that she was playing college basketball.
(7) She told Ridling that she was eighteen years old.
(8) She told Chris Ridling (Ridling’s other son) that she was eighteen years old and getting ready to play college basketball.
(9) She told the hospital that the father of her child was Michael Lofton, Jr.

At the pretrial hearing, the prosecuting attorney objected to statements 4 through 8 because what age Ridling believed Kimberly to be was completely irrelevant to the offense. The prosecutor cited Ark. Code Ann. § 5-14-102(b) (Repl. 1997), which specifically provides that “[wjhen the criminality of conduct depends on a child being below the age of fourteen (14) years, it is no defense that the actor did not know the age of the child, or reasonably believed the child to be fourteen (14) years of age or older.” Defense counsel conceded that Ridling’s belief as to Kimberly’s age was not relevant to the rape charge, but argued the six excluded statements went “towards this young woman’s credibility and her propensity for (lack of) truthfulness.” In support of these arguments, counsel, in part, relies on the case of West v. State, 290 Ark. 329, 719 S.W.2d 684 (1986), reh’g denied 290 Ark. 340-A, 722 S.W.2d 284 (1987). We believe the trial court ruled correctly in excluding the six statements proffered by Ridling.

On appeal, Ridling first relies on the case of Fowler v. State, 339 Ark. 207, 5 S.W.3d 10 (1999), where this court, citing Ark. R. Evid. 402, stated the general rule that all relevant evidence is admissible. The court further set out the definition of relevant evidence as “any evidence having a tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.” Ark. R. Evid. 401. The court also stated a witness’s credibility is always an issue, subject to attack by any party, and the scope of cross-examination extends to matters of credibility. Ark. R. Evid. 611. The Fowler court cited Davis v. Alaska, 415 U.S. 308 (1974), for the following proposition:

Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested .... The cross-examiner is not only permitted to delve into the [witness’s] story to test the [witness’s] perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e., discredit, the witness.

In Bowden v. State, 301 Ark. 303, 783 S.W.2d 842 (1990), this court relied on Delaware v. Fensterer, 474 U.S. 15 (1985), sin stating the following:

The sixth amendment to the United States Constitution and Art. 2, § 10 of the Arkansas Constitution guarantee the right of an accused in a criminal prosecution to be confronted with the witnesses against him. The right of confrontation provides two types of protection for a criminal defendant: the right physically to face those who testify against him and the opportunity to conduct effective cross-examination.

However, the Bowden court went on to say that the right to cross-examine the prosecution’s witnesses is not unlimited, and that trial judges have wide latitude insofar as the Confrontation Clause is concerned “to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of issues, the witness’s safety, or interrogation that is repetitive or only marginally relevant.” The court added that the Confrontation Clause “guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish. Id.

Keeping the above-established principles in mind, we first note that we agree with the trial court, and the State on appeal, that the core issue to be decided in this part of Ridling’s argument is whether Ridling had sexual intercourse with Kimberly when she was under fourteen years of age. It is also clear that it was no defense that Ridling did not know Kimberly’s age, or that he reasonably believed Kimberly to be fourteen years of age or older. See § 5-14-102(b). Turning to the six statements Ridling asked to pursue on cross-examination of Kimberly, statements 4 through 8 had no relevance as to whether Ridling had sex with Kimberly when she was under fourteen years of age. Certainly, even if he had been apprised that she told the other men that she was over the age of fourteen, such knowledge would be of no benefit to his defense in light of § 5-14-102(b). We now turn to the State’s case against Ridling before the trial court, so we can evaluate the probative and prejudicial value of that evidence and Ridling’s proffered statements when considering the trial court’s ruling in this case.

Kimberly was the only witness to testify at trial. Kimberly testified that she first met Ridling at Baring Cross Park in North Little Rock, as she was watching her brother and some friends playing basketball. Ridling approached Kimberly and her friend and asked if they would like to come to his house to see some paintings and drawings; the girls declined to go. A few weeks later, Kimberly was roller skating to the store to buy candy when Ridling again approached her and asked if she wanted to see some of his new paintings; this time, because she was by herself, Kimberly agreed. When they arrived at his home, they sat on his bed, and he showed her some paintings; he then told her she was pretty and started touching her face and kissing her. They then had sex that day. Kimberly did not tell anyone what had happened. She testified that she was eleven and in sixth grade at the time. Kimberly next saw Ridling about a year later, in the summer of 1996. She saw him on the street a few times, and he did not say anything to her, but a few weeks later, he spoke and asked if she wanted to see some new paintings and a t-shirt he had designed. She went to his house, but “nothing happened that time.” Ridling asked her to come back, and the next time she went back to his house, they had sex. She continued going to his house for about a year or a year and a half. Kimberly stated that she was fourteen when she stopped seeing Ridling, and that he had given her a gift for her fourteenth birthday. She found out that she was pregnant during the summer between the eighth and ninth grade, and she gave birth in March of 1997.

Kimberly stated that she did not tell anyone about her relationship with Ridling for a long time, and when she did finally speak to the police, she told them that she was fourteen when she started her relationship with Ridling because she was scared and ashamed. During her first interview with the prosecutor, John Hout, she also told Hout that she was fourteen. The next time she saw Hout, she .spoke with him alone, and she told him that she was eleven when she first had sex with Ridling. She also testified in a chancery court proceeding that she was eleven when the relationship began.

On cross-examination, Kimberly conceded that she had initially lied to the police, to her mother, and to the prosecutor, but said that, at the time, she was still talking with Ridling and that they had plans to get married and move to Memphis; she was protecting him, she claimed. She claimed that the only people she ever told about being under fourteen were the prosecutor and her parents. She acknowledged that she did not tell anyone that she was under fourteen until John Hout came to her and started pushing her for more information. She also noted that she knew before she came into court the day of trial that the issue of how old she was at the time was going to be an issue; she admitted that she said she was fourteen initially and had changed her story, but asserted that she had been protecting Ridling at first.

When questioned about when she became pregnant, Kimberly agreed that she told her doctor that her last menstrual period had started on June 21, 1996, which was two days before her fourteenth birthday. She stated that she had the baby when she was fourteen, in March of 1997, and that the child was not conceived when she was fourteen.

On redirect, Kimberly asserted again that she was eleven when she began her relationship with Ridling, and that the day the baby was conceived was not the first time she had had sex with him. She acknowledged that she had lied at first, but said it was because she was young, ashamed, and scared to say that she had been with a fifty-year-old man. She claimed she and Ridling had discussed what they would do “if anything ever came up to where ... I got pregnant or anything, to say I was fourteen so he wouldn’t get in trouble [and] I wouldn’t get in trouble.” At the end of her testimony, she agreed that she had lied to her mother, to the police, and to the prosecutor, but said that she was telling the truth that day because she was under oath. Kimberly concluded, “I can lie any time I get ready to.”

Again, with regard to the statements 4 through 8, those statements do not pertain to Kimberly’s prior sexual conduct under the rape-shield statute, and were irrelevant to the issue of whether Ridling had sexual intercourse with Kimberly before her fourteenth birthday, which was the only issue for the jury to decide. The trial judge allowed Ridling to elicit testimony from Kimberly showing that she admitted lying any time she got ready, and that she specifically lied to her mother, the police, and the prosecutor. As already discussed, the Confrontation Clause guarantees an opportunity for effective cross-examination, and here the trial court permitted Ridling to vigorously cross-examine Kimberly to show she was a liar. However, in balancing the evidence under Ark. R. Evid. 403, the trial court did not allow Ridling to confuse the jury by going into matters that were collateral to the issue of Kimberly’s age at the time Ridling began having sex with her. See Evans v. State, 317 Ark. 532, 878 S.W.2d 750 (1994) (when consent is not an issue, the trial court did not abuse its discretion by disallowing evidence of matters that were “entirely collateral” to the issue of sexual relations between this victim and the accused under Ark. R. Evid. 403).

Ridling further argues that the trial court should have permitted him to question Kimberly about her allegations of sex involving Michael Lofton, Jr. When she went to the hospital to give birth, Kimberly named Lofton, Jr., as the father of her baby. However, she later admitted that she had never had sex with Lofton, Jr., but instead had engaged in sexual intercourse with Michael Lofton, Sr. Ridling cites West, 290 Ark. 329, 719 S.W.2d 684, in support of his argument that evidence of similar allegations that are later admitted or proven to be false are not “sexual contact” as defined by the rape-shield statute, and such evidence is therefore not excluded under the statute.

After this court’s decision in West, however, the General Assembly amended the rape-shield statute so that it prevented admission of “evidence of a victim’s prior allegations of sexual conduct with the defendant or any other person which allegations the victim asserts to be true, or evidence offered by the defendant concerning prior allegations of sexual conduct by the victim with the defendant or any other person if the victim denies making the allegations [.]” Ark. Code Ann. § 16-42-101(b) (as amended by Act 943 of 1993). In Booker v. State, 334 Ark. 434, 976 S.W.2d 918 (1998), this court noted that the General Assembly had expressed its intent to broaden the rape-shield law to exclude both of these kinds of evidence. The Booker court further pointed out that, at a pretrial hearing, no evidence was presented to show that the victim’s prior allegation of rape was true, nor was there evidence provided that she denied having made the prior allegation. Consequently, the rape-shield statute as amended did not apply to defendant Booker’s situation. Booker, 334 Ark. at 438. Thus, this court held that the trial court did not abuse its discretion in its Ark. R. Evid. 403 analysis or in its ruling that, if Booker’s proffer was admitted, it would be unfairly prejudicial and misleading. Id.

The same is true in the present case. At the in camera hearing, Ridling offered only the piece of paper in which he listed Kimberly’s statements to prove that she told the hospital that Michael Lofton, Jr. was the father of her baby; no other evidence was introduced at trial to prove or disprove this statement. In fact, the only exhibit in the record dealing with the baby’s paternity was the joint stipulation that Ridling was the father. In addition to the fact that there was no proof as to whether or not Kimberly actually made this claim, there was also no proof or proffer of whether or not Kimberly would have confirmed or denied the allegations. Thus, as in Booker, the proposed evidence did not fall under the rape-shield statute; the trial court properly engaged in a 403 balancing test, and concluded that the statement would have been more prejudicial than probative of anything, especially since the paternity of the baby was not at issue. This ruling was not an abuse of the trial court’s discretion.

In a sub-point, Ridling argues that the trial court should have permitted him to introduce Kimberly’s testimony in the carnal abuse case against Michael Lofton, Sr., and he asserts that he was denied the opportunity to cross-examine her on this issue. Such cross-examination, Ridling claims, could have permitted him to challenge Kimberly’s credibility and point out that she may have been mistaken about the time frame in which she was having sex with Ridling. “Essentially, she would have had to have agreed that she was having sex with both grown men in the same time frame,” he asserts.

Ridling cites Hubbard v. State, 271 Ark. 937, 611 S.W.2d 526 (1981), for the proposition that evidence of sexual contact between the victim and a third party can be admissible where it occurs in close proximity of time and location, in that it bears on material elements of the offense; he claims that evidence of Kimberly’s relationship with Lofton, Sr., “bears on the issue of whether it was Lofton, Sr. or [Ridling] that had sexual contact with the victim before she turned fourteen years old.”

It is difficult to understand what relevance Kimberly’s other sexual encounters have to do with whether Ridling was having sex with her before her fourteenth birthday. Unfortunately, the fact that she was having sex with one older man does not prevent her from having sex with a second older man at the same time. Evidence that she was having sex with Lofton, Sr., therefore, could not have been relevant to the jury’s determination of whether or not she was having sex with Ridling before reaching the age of fourteen. The judge ruled that such evidence could be admissible if Kimberly claimed she was a virgin when she began her relationship with Ridling, but the State never pursued this theory, and such evidence was never presented. Because Kimberly’s relationship with Lofton, Sr. was irrelevant to the question of Kimberly’s age when she began having sexual intercourse with Ridling, the trial court did not abuse its discretion in excluding it.

Finally, Ridling argues that he should have been permitted to introduce the above evidence during sentencing. The trial court denied his request to question Kimberly about her statements on the grounds that the rape-shield statute also applies during sentencing. Ridling asserts in his brief that he should have been allowed to introduce his proffered testimony “to show lack of any substantial harm to [Kimberly]. She may have been [age twelve to fourteen] when this was going on with Ridling, but she was sexually active with others of her own choosing and holding herself out to everyone to be an adult, and Lofton, Sr., was also convicted of having sex with her. A jury could easily have found that [Ridling] should have been sentenced to something less than the thirty-five years and that is his substantial prejudice.” He concludes that the trial judge’s failure to make a separate determination of the admissibility of this evidence at sentencing amounted to a failure to exercise discretion.

Ark. Code Ann. § 16-97-103 (Supp. 2001), dealing with evidence admissible during sentencing, provides as follows:

Evidence relevant to sentencing by either the court or a jury may include, but is not limited to, the following, provided no evidence shall be construed under this section as overriding the rape-shield statute, § 16-42-101[.]

Thus, it is clear that the rape-shield law applies to sentencing as well as to the guilt phase, and because the trial court had already conducted an in camera hearing on the admissibility of the evidence, there was no need to conduct a second, identical hearing. The trial court did not fail to exercise its discretion, and further did not err in refusing to permit Ridling to introduce this evidence at the sentencing phase of his trial.

In his second major point for reversal, Ridling contends that the trial court erred in proceeding without Ridling’s presence at the rape-shield hearing. He cites the case of Bell v. State, 296 Ark. 458, 757 S.W.2d 937 (1988), which quoted from Kentucky v. Stincer, 479 U.S. 1303 (1986), the rule that a defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to the outcome if his presence would contribute to the fairness of the procedure. Ridling argues that, while he absented himself from the rape-shield hearing by failing to attend after receiving notice, it was error to proceed without him because it was a “critical stage” in the proceeding against him.

When a significant step in the case is taken in an accused’s absence, the case must be reversed, if it appears that he has lost an advantage or has been prejudiced by reason of a step taken in his absence. Bell, 296 Ark. at 465. The reason for the rule is to secure to the accused a full and adequate defense at his trial. Where there is no possibility of prejudice, however, there is no reason for requiring the presence of the defendant. Id. at 465-66. The Bell court applied this harmless-error rule when the defendant “had an absolute right to demand to be present at the hearings on his [pretrial] motions, but did not do so.” Id. at 467. This court has also held that a defendant had waived his presence at trial when he admitted that he overslept. See Reece v. State, 325 Ark. 465, 928 S.W.2d 334 (1996).

Before leaving this point, we merely note that the Federal Rules of Criminal Procedure provide that, although a defendant “shall be present” at every stage of the trial, he may waive his absolute right to be present if he voluntarily absents himself. Fed. R. Crim. P. 43. The Supreme Court, in Taylor v. United States, 414 U.S. 17 (1973), pointed out that this rule “reflects the long-standing rule recognized by this Court in Diaz v. United States, 223 U.S. 442 (1912),” which states as follows:

[W]here the offense is not capital and the accused is not in custody, the prevailing rule has been, that if, after the trial has begun in his presence, he voluntarily absents himself, this does not nullify what has been done or prevent the completion of the trial, but, on the contrary, operates as a waiver of his right to be present and leaves the court free to proceed with the trial in like manner and with like effect as if he were present.

The Taylor Court further stated that a defendant has “no right to interrupt the trial by his voluntary absence. . . . The right at issue is the right to be present, and the question becomes whether that right was effectively waived by his voluntary absence.” Id. at 20. The Court concluded that the right was waived, pointing out the “governmental prerogative to proceed with a trial may not be defeated by conduct of the accused that prevents the trial from going forward.” Id. (quoting Illinois v. Allen, 397 U.S. 337 (1970) (Brennan, J., concurring)).

Thus, if a defendant may waive his right to be present at the trial itself, then surely he can be said to have waived his right to be present at a pretrial hearing, especially in the instant case, when Ridling acknowledged to his attorney that Ridling knew he was supposed to be there and signed a notice that he would be present. Further supporting this conclusion is the fact that there were no witnesses called, and his attorney did not protest that Ridling had any testimony to offer; Ridling’s Sixth Amendment right to confront his accuser and his right to be heard were thus not violated. Ridling’s counsel, in fact, even offered to formally waive Ridling’s presence, and it was counsel who plunged ahead with the merits of the hearing even before the trial judge ruled on whether or not Ridling had to be there. Ridling knew he was supposed to be present at the hearing, and he voluntarily chose not to be there. It seems clear that Ridling was not prejudiced by his decision to be absent from the hearing, and he should not be heard to complain on appeal that his own choice not to show up should result in the reversal of his conviction. See, e.g., Lee v. State, 343 Ark. 702, 38 S.W.3d 334 (2001).

In his final point, Ridling argues that the trial court erred in sustaining the prosecutor’s objection to a portion of defense counsel’s closing argument, as follows:

Defense Counsel: I’m just telling you she hasn’t proven it. She’s lying. I tell you what. I’m wondering what she’s going to do when she has to tell her son ten years from now when he gets older that he put her [sic] daddy in prison cause she was lying.
Prosecutor: Objection, your Honor. . . . This is the second time Mr. James has mentioned prison in his closing argument, your Honor, and the jury is. . .
The Court: Mentioned what?
Prosecutor: Prison in his closing argument. And they are not to consider punishment at this stage.
The Court: Sustained.

Citing Lee v. State, 297 Ark. 421, 762 S.W.2d 790 (1989), Ridling submits that an objection not made until the second reference is not timely, and, therefore, waived by the State. Ridling says that he was entitled to get prison before the jury in the guilt-innocence phase, which he did, and it was too late to object. He further posits that defense counsel was free to argue his case as he saw fit, and this was denied him.

Even if the trial court erred in sustaining the State’s belated objection, it was Ridling’s burden, as appellant, to produce a record sufficient to demonstrate prejudicial error. See Coulter v. State, 343 Ark. 22, 31 S.W.2d 826 (2000). He simply fails to do so.

We first note that the transcript does not contain the remainder of Ridling’s closing argument, so it is not possible to determine whether the trial court admonished the jury to disregard anything that defense counsel said, and from argument made by Ridling and the State, defense counsel referenced the prison remarks twice before any objection was made. In addition, without the remaining portion of Ridling’s closing argument, we cannot determine whether defense counsel was able to otherwise continue as he saw fit. He certainly fails in this appeal to point to the record and demonstrate how he was prejudiced, and this court will not reverse in the absence of prejudice. See Ramaker v. State, 345 Ark. 225, 46b S.W.3d 519 (2001); Bledsoe v. State, 344 Ark. 86, 39 S.W.2d 760 (2001). In sum, we hold that Ridling fails to show the trial court committed reversible error.

For the reasons above, we affirm.

       The prosecuting attorney conceded these three statements of Kimberly were admissible.


text:
    Darrell G. SPENCER v. STATE of Arkansas
    CR 01-619
    72 S.W.3d 461
    Supreme Court of Arkansas
    Opinion delivered April 18, 2002

      Philip C. Wilson, for appellant.

      Mark Pryor, Att’y Gen., by. Katherine Adams, Ass’t Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant Darrell G. Spencer was charged under Ark. Code Ann. § 5-14--103(a)(4) (Repl. 1997) with the rape of his five-year-old stepson, C.S. The State alleged Spencer engaged in sexual intercourse with C.S., who was less than fourteen years of age at the time. Spencer was specifically charged with having inserted his penis into C.S.’s mouth and anus. The State averred that, upon learning of this occurrence, C.S.’s mother called the Child Abuse Hotline and reported that Spencer had molested her son. Spencer was convicted of the charge and sentenced to life imprisonment. Our court has appellate jurisdiction of criminal appeals where life sentences are imposed. See Ark. Sup. Ct. R. 1-2(a)(2). Spencer raises three points for reversal, but none has merit.

We first consider Spencer’s argument that the trial court erred in denying his motion for directed verdict, claiming the evidence was insufficient to prove rape. Interestingly, Spencer fails to discuss any of the evidence introduced at trial, much less suggest how the State’s evidence was deficient. This fact aside, Spencer has failed to preserve this issue.

At the end of the State’s case-in-chief, Spencer made a motion for a directed verdict, stating, “At this time I move for a directed verdict on the rape charge. The evidence is insufficient to where a reasonable jury could come back with a guilty finding on this. Therefore, it should be dismissed.” The trial court denied the motion. At the conclusion of all of the evidence, Spencer renewed his motion for directed verdict, stating only that “I do need to renew my motion for a directed verdict and also to renew all the objections that I have for the previously stated reasons.” The trial court again denied Spencer’s motion.

Ark. R. Crim. P. 33.1(a) states that, “[i]n a jury trial, if a motion for directed verdict is to be made, it shall be made at the close of the evidence offered by the prosecution and at the close of all of the evidence. A motion for directed verdict shall state the specific grounds therefor.” (Emphasis added.) Further, Rule 33.1 states, in pertinent part, the following:

The failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required in subsections (a) and (b) above will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the verdict or judgment. A motion for directed verdict or for dismissal based on insufficiency of the evidence must specify the respect in which the evidence is deficient. A motion merely stating that the evidence is insufficient does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense.

(Emphasis added.)

This court has repeatedly addressed this issue and held that a directed-verdict motion “requires [a] movant to apprise the court of the specific basis on which the motion is made.” Bowen v. State, 342 Ark. 581, 30 S.W.3d 86 (2000). Clearly, Spencer’s motion for directed verdict, stating only that the evidence was insufficient, but not specifying in what respect it was deficient, was not specific enough to preserve the issue for review.

Next, we consider Spencer’s assertion that the trial court abused its discretion in refusing to grant his motion in limine whereby he sought to exclude evidence of prior sexual acts with other children or of any pending charge of a similar nature. At pretrial hearings on Spencer’s motions, the State presented the testimony of two of his daughters, S.S. and D.S., and of his first cousin, Cynthia Brown. S.S., who was almost twelve at the time of the hearing, testified that Spencer lived with her family until she was about five years old and he “made her touch his private areas,” and on another occasion, “he stuck his private area in mine . . . and when he got through he squirted white stuff all on my stomach.” S.S. also said that the first of these acts occurred when she was three years old. D.S. testified that “Darrell Spencer touched me in a bad way by touching my pee-pee when I was three years old.” The trial court ruled that this was admissible testimony because it fell within the pedophile exception to Ark. R. Evid. 404(b) and “involved similar dynamics.” The trial court further ruled that the testimony had more probative value than prejudicial effect.

Just prior to trial, the State also offered the testimony of Cynthia Brown, Spencer’s first cousin. Brown was thirty-three years old at the time of the pretrial hearing. She testified that she first had sexual contact with Spencer when she was four or five years old, and he was ten or twelve. She said that she was seven or eight years old when she started sexual intercourse with Spencer; he was fourteen. She related that she continued intercourse with him through her teen years. Brown further averred it had been ten years or longer since she had any contact with Spencer and longer than that since they had sexual contact with one another. Spencer objected to Brown’s testimony as being so remote in time that the prejudicial effect would far outweigh any probative value. Spencer also complained that, unlike the present case, Spencer was a minor, not an adult, when some of Spencer’s sexual conduct with her occurred. The court ruled that Brown’s testimony would be admissible during the trial, because it showed a continuing episode on Spencer’s part, and fell within Rule 404(b). The court also found that Brown’s testimony was more relevant than prejudicial. At trial, S.S. and Brown testified, but D.S. did not. On appeal, Spencer argues that the trial court’s ruling to admit the testimony of S.S. and Brown was error because the evidence was more prejudicial than probative. He asserts that the remoteness in time of these other events should have kept them from being admitted into evidence.

Rule 404(b), dealing with evidence of other crimes, wrongs, or acts, provides as follows:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

It is settled that the list of exceptions set out in Rule 404(b) is exemplary and not exhaustive. Mosley v. State, 325 Ark. 469, 929 S.W.2d 693 (1996). It is also well established that the rule permits introduction of testimony of other criminal activity if it is independently relevant to the main issue, that is, relevant in the sense of tending to prove some material point rather than merely to prove that the defendant is a criminal. Id.

In Mosley, the defendant was charged with having committed rape and incest against his nineteen-year-old daughter. During the State’s case-in-chief, the trial court additionally admitted proof that, eleven years earlier, Mosely had pled guilty to carnal abuse of his six-year-old stepdaughter. The Mosley court concluded that evidence of a prior similar offense in cases where the charge involves unnatural sexual acts shows not that the accused is a criminal but that he has a depraved sexual instinct. In addition, in Thompson v. State, 322 Ark. 586, 910 S.W.2d 694 (1995), the court held that evidence of other sexual acts is admissible when it tends to show a proclivity towards a specific act with a person or class of persons with whom the accused has an intimate relationship. Stated another way, in Munson v. State, 331 Ark. 41, 959 S.W.2d 391 (1998), the court held that when the charge concerns the sexual abuse of a child, evidence of other crimes, wrongs, or acts, such as sexual abuse of that child or other children, is admissible to show motive, intent, or plan pursuant to Ark. R. Evid. 404(b). The admission or rejection of evidence under Ark. R. Evid. 404(b) is left to the sound discretion of the trial court and will not be disturbed absent a manifest abuse of discretion. Munson, 331 Ark. at 48.

From our review of the evidence before the trial court, it is clear that it did not abuse its discretion in admitting the testimony of S.S. because S.S.’s testimony showed Spencer’s proclivity toward incestuous sexual contact with children. Also, evidence shown by S. S.’s testimony demonstrates that Spencer’s depraved sexual instinct was not substantially outweighed by the danger of unfair prejudice to Spencer.

Regarding Brown’s testimony, Spencer places emphasis on dissimilar facts that, unlike the situations with C.S. and S.S., Spencer’s sexual contact with Brown commenced when Spencer was a minor, age fourteen, and it extended to when Brown was seventeen or eighteen years old. However, we conclude that, even if we were to hold that the trial court erred in admitting Brown’s testimony, the error was harmless, because the evidence was overwhelming as to Spencer’s guilt. See Abernathy v. State, 325 Ark. 61, 925 S.W.2d 380 (1996). In this respect, we set out the following evidence presented at trial.

C.S., the five-year-old victim, testified that Spencer “touched me on my body with his pee-pee. He put it in my mouth and peed in it. He put his pee-pee in my butt in the bedroom .... When Darrell put his pee-pee in my butt, he washed my butt with a washcloth after that. Darrell put his pee-pee in my butt more than once on different days.” This testimony alone constitutes substantial evidence to support Spencer’s conviction, since it is well settled that the testimony of a child rape victim alone constitutes substantial evidence to support a rape conviction. See Miller v. State, 318 Ark. 673, 887 S.W.2d 280 (1994). However, much more was shown by the State.

C.S.’s mother, for example, said that she had given C.S. a bath, dressed him in pull-ups, boxer shorts, and a t-shirt and put him to bed the night before the rape. The next morning, he was wearing only his pull-ups and they were inside out. She asked C.S. what happened, and he started telling her some things that “horrified her.” The mother called SCAN and took C.S. to the Arkansas Children’s Hospital where a rape kit was conducted. At the hospital, Dr. Henri-Ann Norman, a pediatric physician at the hospital, conducted a rape kit, and, in examining C.S., the doctor found semen on the child’s face, mouth, groin area, and rectum. Kermit Channel, the supervisor at the forensic department at the State Crime Lab, testified that the DNA from the rectal swab from C. S. was consistent with the DNA from Spencer’s blood sample. Clearly, the evidence of Spencer’s guilt was so overwhelming as to render harmless any error that may have been committed by allowing the introduction of Brown’s testimony.

Spencer’s last point for reversal is that the trial court abused its discretion by refusing to strike venire-person Sarah Whitworth for cause. During voir dire, Whitworth revealed she had a niece who had been sexually abused, and she added that she had also worked with several young women who had been sexually abused by family members. Whitworth stated she could “set aside these things and decide the case on the testimony and exhibits introduced.” When defense counsel inquired, Whitworth stated it would be “very difficult” to put aside her knowledge of the sexual abuse of her relative. Spencer then moved to strike Whitworth for cause. The State responded that Whitworth said she could set aside those experiences and decide the case on the evidence presented. The court then asked Whitworth if she could “tell the court absolutely that you can be fair and impartial and base a decision only on the evidence presented.” She said, “I will tell you that I will.”

This court has held that an appellant must demonstrate that he was prejudiced by the jury being seated. Camargo v. State, 346 Ark. 118, 55 S.W.3d 255 (2001). Further, the court has stated that the decision to excuse a juror for cause rests within the sound discretion of the trial court, and its decision will not be reversed absent an abuse of that discretion. Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999). Persons comprising the venire are presumed to be unbiased and qualified to serve, and the burden is on the party challenging a juror to prove actual bias. Taylor v. State, 334 Ark. 339, 974 S.W.2d 454 (1998). When a juror states that he or she can lay aside preconceived opinions and give the accused the benefit of all doubts to which he is entitled by law, a trial court may find the juror acceptable. Id. Here, the trial court denied Spencer’s motion, and we hold that having done so in these circumstances was not an abuse of its discretion. Because Spencer has shown no reversible error, we affirm.

Pursuant to Ark. Sup. Ct. R. 4-3(h), we have reviewed the record and have determined that there are no errors with respect to rulings on objections or motions prejudicial to the appellant not discussed above.

Imber, J., not participating.