text:
    Bruce Lee ROWBOTTOM v. STATE of Arkansas
    CR 96-956
    938 S.W.2d 224
    Supreme Court of Arkansas
    Opinion delivered January 21, 1997

      David B. Fuller, for appellant.

      Winston Bryant, Att’y Gen., by: Vada Berger, Asst. Att’y Gen., for appellee.
   Annabelle Clinton Imber, Justice.

A jury found the appellant, Bruce Lee Rowbottom, guilty of several crimes relating to possession of drugs and firearms. As a habitual offender, Rowbottom was sentenced to a concurrent term of forty-five years’ imprisonment. Rowbottom represented himself at trial with the assistance of a standby attorney appointed by the court. On appeal, Rowbottom claims that he was unconstitutionally deprived access to a law library, and that the court failed to subpoena a material witness in his favor. We affirm for the reasons stated below.

On July 23, 1995, a police officer in Gravette, Arkansas, spotted Rowbottom driving a white Dodge van without a license plate. Catherine Gregory, Rowbottom’s girlfriend, and the couple’s three-month-old child were riding inside the van. As the officer approached the vehicle, Rowbottom sped away, and the officer gave chase. During a high-speed pursuit, Rowbottom threw out of the passenger window a box containing marijuana, methamphetamine, and drug paraphernalia. In addition, the officer observed Rowbottom repeatedly striking Catherine Gregory as the van sped down Highway 59. The officer eventually lost sight of the vehicle.

Soon thereafter, Rowbottom crashed the van into a wooded area and escaped on foot. Gregory fled to a nearby residence and notified the police that Rowbottom had drugs and guns inside the van. The police apprehended Rowbottom and found two hand guns inside the van as reported by Gregory.

Rowbottom was charged with possession of marijuana and methamphetamine with the intent to deliver, simultaneous possession of drugs and firearms, possession of drug paraphernalia, and being a felon in possession of a firearm. Gregory was not charged with any crimes in exchange for her testimony against Rowbottom.

Rowbottom chose to represent himself at his trial which took place in the Benton County Circuit Court. The jury found Rowbottom guilty of all charges and sentenced him as a habitual offender to a concurrent term of forty-five years’ imprisonment.

Í. Access to a law library.

During his first appearance before the trial court on August 28, 1995, Rowbottom stated that he wished to represent himself at trial. After warning Rowbottom about the shortcomings of pro se representation, the trial court granted Rowbottom’s request and appointed standby counsel.

On numerous occasions, Rowbottom asked the court to grant him physical access to a law library. First, Rowbottom claimed that he was not getting necessary legal materials such as envelopes and a notary seal. The Benton County Sheriffs Department verified that it gave Rowbottom one envelope a week, and that it provided notary service as soon as possible. The standby attorney added that Rowbottom had not requested these materials from him. Accordingly, the trial court denied the motion.

During a suppression hearing, Rowbottom argued that he could not explain why he felt that a witness was hostile because the court’s failure to grant him access to a law library prevented him from researching the issue. Nevertheless, Rowbottom cited one legal authority in support of his proposition. The record is unclear as to whether Rowbottom asked his standby counsel to assist him in the matter.

Later in the suppression hearing, Rowbottom renewed his request for access to a law library on the basis of his constitutional right to access to the courts. Standby counsel explained that he had not yet researched the constitutional issue because he had been assisting Rowbottom with the specific suppression issues which were the subject of that day’s hearing. In addition, Rowbottom conceded that he needed library access to prepare for a paternity suit and a federal habeas petition, neither of which were related to his criminal case before the Benton County Circuit Court. The trial court delayed ruling on the issue until Rowbottom and standby counsel had a chance to research the matter.

Finally, during a pretrial conference, Rowbottom renewed his motion for access to a library and declared:

I believe that I am being denied timely legal assistance due to the fact that it’s almost impossible for a person to have an associate counsel, you run their legs off, and in a case like this or any case for that matter and also I have got several other cases that are pending in several other courts which Mr. Fuller, it would be ludicrous for me to ask him to provide me with that amount of material. . . .

The trial court found that standby counsel was adequately assisting Rowbottom and advised him to concentrate his efforts on this criminal case which was coming to trial shordy. Rowbottom now appeals the trial court’s pretrial order denying him physical access to a law library.

On appeal, Rowbottom asserts that he has an absolute, constitutional right to access to a law library under Bounds v. Smith, 430 U.S. 817 (1977). We disagree. In Bounds, the United States Supreme Court established that an inmate has a constitutional right to access to the court which can be protected by either

providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.

Id. (emphasis added). Justice Thurgood Marshall further emphasized in Bounds that while either alternative is acceptable, the standby counsel option was often preferable because it would

not only result in more efficient and skillful handling of prisoner cases, but also [would] avoid the disciplinary problems associated with writ writers.

Id. Thus, according to Bounds, the court is free to appoint standby counsel instead of granting an inmate access to a law library.

The Arkansas Supreme Court addressed the Bounds decision in Prince v. State, 304 Ark. 692, 805 S.W.2d 46 (1991), cert. denied, 114 S.Ct. 1857 (1994). Although this court found that the issue was procedurally barred, it stated in dicta that under Bounds an inmate’s constitutional right to access to the courts could be satisfied by providing standby counsel or access to a law library. Id.

The United States Supreme Court recently held in Lewis v. Casey, 116 S. Ct. 2174, 2180 (1996), that Bounds does not require courts to grant an inmate physical access to a law library so long as some other acceptable and effective method of access to the courts is provided. According to Lewis, an inmate must demonstrate how a state’s chosen method failed to provide him or her with access to the courts. Id. Moreover, the Supreme Court explained in Lewis that:

Bounds does not guarantee inmates the wherewithal to transform themselves into litigating engines capable of filing everything from shareholder derivative actions to slip-and-fall claims. The tools it requires to be provided are those that the inmates need in order to attack their sentences, directly or collaterally, and in order to challenge the conditions of their confinement. Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration.

Id., at 2182 (emphasis in the original).

Rowbottom has failed to demonstrate how the appointment of standby counsel deprived him of his right to access to the courts as required by Lewis. First, the sheriff s department verified that it provided Rowbottom with envelopes and a notary seal. Second, standby counsel explained that he was assisting Rowbottom with legal research on the few occasions when Rowbottom asked for assistance. Finally, and most importantly, Rowbottom admitted he was utilizing standby counsel to research issues in other cases. Therefore, any alleged shortcomings in the appointment of standby counsel were due to Rowbottom’s own failure to use or properly use the assistance provided to him.

Finally, Rowbottom attempts to distinguish his case from United States v. West, 557 F.2d 151 (8th Cir. 1977), in which the Eighth Circuit Court of Appeals found that appointment of standby counsel adequately assured a pro se criminal defendant his right to access to the courts. Specifically, Rowbottom argues that unlike West he was not a suicide or flight risk, and therefore should have been granted access to a law library. This argument presupposes that the court must choose access to a law library over appointment of standby counsel when the former is feasible. Clearly, neither Bounds nor Lewis supports such a proposition. Rather, both cases establish that the court can choose either method, or some other method, so long as it adequately protects the inmate’s right to access to the courts. Rowbottom’s assertion that access to a law library must be granted when feasible is simply without merit.

We therefore conclude that the trial court was free to appoint standby counsel instead of granting access to a law library. We further find that Rowbottom has failed to demonstrate how the appointment of standby counsel in this case deprived him of his right to access to the courts.

2. Attendance of material witness under Ark. Code Ann. § 16-43-403 (Repl. 1994).

According to Rowbottom, Catherine Gregory’s testimony was the most damaging evidence against him. Rowbottom tried to prevent Catherine from testifying by asserting that she was his common law wife under Oklahoma law where the couple resided. However, Catherine explained to the trial court that she was separated from, but still legally married to, Dan Gregory, who lived in Missouri. The trial court concluded that under these facts no common law marriage could exist between Catherine and Rowbottom, and thus allowed Catherine to testify despite Rowbottom’s claim of privileged communications.

Prior to trial, Rowbottom asked the State to subpoena Catherine’s husband, Dan Gregory. Rowbottom did not tell either the State or his standby counsel why Dan Gregory’s testimony was material. Because the subpoena did not assert facts demonstrating the materiality of Dan Gregory’s testimony, the Missouri court denied the subpoena.

At the beginning of the trial, Rowbottom again requested Dan Gregory’s attendance claiming that he would testify as to Catherine’s character and habits. The trial court found that the State had done all it could to obtain the witness, and thus he refused to delay the trial.

On the third day of trial, Catherine Gregory took the stand and again Rowbottom demanded the presence of Dan Gregory. For the first time, Rowbottom explained to the trial judge that Dan Gregory was a material fact witness because he could establish that he and Catherine had been separated for nine months. The trial court explained to Rowbottom that he might have obtained the subpoena if he had given this information to standby counsel or the State at an earlier date. Because Rowbottom failed to do so, the trial court held that it was too late to subpoena the witness three days into the trial.

On appeal, Rowbottom first contends that the trial court’s failure to compel Dan Gregory’s attendance at trial resulted in an unconstitutional deprivation of his right to a fair trial. This court has repeatedly held that even constitutional arguments must be raised before the trial court in order to properly preserve the issue. Mayo v. State, 324 Ark. 328, 920 S.W.2d 843 (1996). Rowbottom failed to do so, and thus he is precluded from raising the issue for the first time on appeal.

Rowbottom also claims that the court should have compelled Dan Gregory’s attendance pursuant to Ark. Code Ann. § 16-43-403 (Repl. 1994), which allows a trial judge to certify to another state court the facts which cause the witness to be material and the number of days the witness will be required to testify. There is no absolute right to the certification process created by Ark. Code Ann. § 16-43-403, but rather the matter is within the discretion of the trial judge. Logan v. State, 300 Ark. 35, 776 S.W.2d 341 (1989); Wright v. State, 267 Ark. 264, 590 S.W.2d 15 (1979).

Rowbottom initially refused to explain why Dan Gregory was a material witness. In fact, Rowbottom told the court on the first day of trial that Gregory was a character witness instead of a fact witness. Rowbottom simply failed to support his claim that Gregory was a material witness, and thus the judge did not abuse his discretion when he refused to compel his attendance. See, Henry v. State, 278 Ark. 478, 647 S.W.2d 419 (1983), cert. denied, 464 U.S. 835 (1983).

On the third day of trial, Rowbottom finally explained to the judge that Dan Gregory was a material witness because he could supply facts to support his common law marriage argument. In Logan, supra, this court affirmed a trial judge’s decision that a request to compel a witness made two days prior to trial was untimely. If two days prior to trial is untimely, then three days into trial is certainly untimely. In any event, Dan Gregory would not have been a material witness because Dan and Catherine Gregory, although separated, were legally married and Catherine would not have the capacity to enter into a common law marriage.

"We therefore conclude that the trial judge did not abuse his discretion when he denied Rowbottom’s request to compel Dan Gregory’s attendance at trial.

Affirmed.

Corbin, J., not participating.

       One envelope per week is sufficient to protect an indigent inmate’s constitutional right to access to the courts. Hershberger v. Wheeler, 33 F.3d 955 (8th Cir. 1994).

       Rowbottom’s argument appears to be that if he could prove the parties were separated, then he could prove the existence of a common law marriage between him and Catherine Gregory. This argument is erroneous because Catherine Gregory would not have the capacity to enter into a common law marriage unless she was legally divorced, not separated, from Dan Gregory.


source: Caselaw Access Project

author: Ray Thornton, Justice.

license: Public Domain

text:
    Bobby Joe JONES v. STATE of Arkansas
    CR 96-976
    937 S.W.2d 633
    Supreme Court of Arkansas
    Opinion delivered January 21, 1997

      Honey & Honey, P.A., for appellant.

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

Appellant Bobby Joe Jones was convicted of delivering a counterfeit substance purported to be cocaine, and sentenced to a term of forty years in the Arkansas Department of Correction. On appeal, he claims that the trial court erred in denying his motion for a directed verdict and challenges the State’s chain of custody of paraffin wax, the counterfeit substance. In addition, Mr. Jones claims the State failed to produce evidence that he represented the paraffin wax as cocaine during the drug sell for which he was arrested. Neither of these arguments is preserved for our review, and we affirm the trial court.

On September 9, 1995, Willie Robinson, a State Police investigator, paid Kevin Washington $125.00 to be a confidential informant on a drug buy. The two traveled in Washington’s maroon Cadillac from Texarkana to Lewisville, where they met Mr. Jones walking from his mother’s home. They asked him for an “O-Z,” and he told them to meet him at his brother Donnie’s house. When they arrived, Mr. Jones was entering the house. When he emerged from the house, he proceeded to the driver’s window and exchanged a plastic envelope containing three rock-like substances that looked like crack cocaine for $1000.00 in unmarked hundred-dollar bills. Officer Robinson stated on direct examination:

The informant stopped him and told him we needed to buy an ounce of cocaine. He told us to meet him at Donnie’s house .... We waited outside while Jones went in. I gave the informant $1000.00 buy money. Jones came out, walked to the driver’s side, and handed the informant the substance and the informant gave Jones the money .... When I first saw Jones on the street, Kevin did the talking. He said he wanted to purchase an “O-Z”, which means an ounce of cocaine on the street ....

At the jury trial, the State presented the substance bought from Mr. Jones. The State Crime Lab chemist who analyzed the substance testified that it was 12.48 grams of paraffin wax.

Mr. Jones argues that this case should be reversed because the trial court failed to grant his motion for a directed verdict. We do not reach this issue regarding substantial evidence because Mr. Jones’s motion for a directed verdict did not apprise the trial court of the specific basis upon which the motion was made. Walker v. State, 318 Ark. 107, 883 S.W.2d 831 (1994); Brown v. State, 316 Ark. 724, 726, 875 S.W.2d 828, 830 (1994); see also Rockett v. State, 319 Ark. 335, 891 S.W.2d 366 (1995).

At the close of the State’s case, Mr. Jones made the following motion:

For the record the defendant moves for a directed verdict based on the fact that there has been insufficient evidence and not enough evidence to sustain a verdict against him.

While this language fails to a apprise the trial court of the specific basis upon which the motion is made, the abstract’s reference to this matter is truncated as follows:

THE STATE RESTS.
DEFENDANT MOVES FOR A DIRECTED VERDICT. THE COURT DENIES THE MOTION.

The record on appeal is confined to that which is abstracted and cannot be contradicted or supplemented by statements made in the argument portions of the briefs. Wynn v. State, 316 Ark. 414, 417, 871 S.W.2d 593, 594 (1994). Transcript or record references in an appellant’s argument are not a substitute for a proper abstract. Id. at 417, 871 S.W.2d at 595.

The motion for a directed verdict does not apprise the, trial court of the specific basis for the motion as required by Brown v. State, and this issue is not properly abstracted for review.

Mr. Jones’s second argument seems to be the State failed to establish a proper chain of custody showing that the material in the State’s exhibit was the actual substance Mr. Jones sold. We do not reach this issue because no objection was made at trial and the issue is not preserved for appeal. Echols v. State, 326 Ark. 917, 948, 936 S.W.2d 509 (1996). We have repeatedly held that we will not consider arguments made for the first time on appeal. Id. For the foregoing reasons, the trial court is summarily affirmed.

Affirmed.


author: Per Curiam.

text:
    Charles Allen McGEHEE v. STATE of Arkansas
    CR 95-368
    937 S.W.2d 632
    Supreme Court of Arkansas
    Opinion delivered January 21, 1997

      William M. Howard, Jr., for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   Per Curiam.

This is the second time the State has moved to direct Appellant Charles Allen McGehee to comply with Ark. Sup. Ct. R. 4-3(h). The State first filed a motion to direct compliance with Rule 4-3(h) on October 16, 1995, and we granted the motion on November 6, 1995. The State alleges by this motion that the brief Appellant has filed, approximately one year after being ordered to do so, still does not comply with Rule 4-3(h). The State contends that Appellant has provided a list of adverse rulings, but has not abstracted the parts of the record needed for an understanding of each adverse riding.

Appellant’s response to the State’s motion alleges that his brief does indeed comply with Rule 4-3 (h). Given this response, and given the extensive delays that have already occurred in this case due to numerous extensions and problems with reconstructing and completing the record, see, e.g., McGehee v. State, 323 Ark. 704, 916 S.W.2d 756 (1996) (per curiam), McGehee v. State, 321 Ark. 658, 906 S.W.2d 677 (1995) (per curiam), and McGehee v. State, 320 Ark. 344, 896 S.W.2d 593 (1995) (per curiam), we deny the State’s motion and direct the State to file a supplemental abstract in compliance with Rule 4-3 (h). Our directive is consistent with the State’s burden under Rule 4-3 (h) to “make certain and certify that all of those objections have been abstracted[.]”

We deny the State’s motion and direct the State to file a supplemental abstract in compliance with Rule 4-3 (h). However, upon receipt and review of the supplemental abstract, we will review the abstract and determine whether to refer the matter to the Committee on Professional Conduct.


text:
    Rogelio and Basilio REYES v. STATE of Arkansas
    CR 96-1385
    935 S.W.2d 570
    Supreme Court of Arkansas
    Opinion delivered January 21, 1997

      Thomas L. Travis, for appellant.
    No response.
   Per Curiam.

Rogelio and Basilio Reyes, by their attorney, have filed a motion for a rule on the clerk.

Their attorney, Thomas L. Travis, admits in his motion that the record was tendered more than seven months beyond date of judgment due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion, which we will treat as a motion for belated appeal. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

The motion for belated appeal is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


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

text:
    Justin SPRINGSTON v. STATE of Arkansas
    95-1366
    936 S.W.2d 550
    Supreme Court of Arkansas
    Opinion delivered January 27, 1997

      Zurborg & Spaulding, P.A., by: Brian L. Spaulding, for appellant.

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

Justin Springston was charged in a delinquency petition with possession of marijuana. He moved to dismiss the charge, arguing that the State had failed to prove that the substance he possessed contained Tetrahydrocannabinol, otherwise known as THC. The judge denied the motion to dismiss and found the allegations in the juvenile petition to be true. Springston was sentenced to six months’ probation, five days in juvenile detention (suspended), community service, and he had his driver’s license suspended for one year. We affirm.

On October 27, 1994, the State filed its petition in Washington County Chancery Court. The proof at trial consisted of the testimony of Fayetteville High School Assistant Principal Lee Haight and the testimony of Vice-Principal David Hunt. Mr. Haight testified that on October 12, 1994, the Fayetteville Police Department brought drug-sniffing dogs into the school for a routine check of student lockers. One of the dogs stopped at Justin Springston’s locker. The locker was opened and a bag containing a “green, leafy substance” was found. A pipe was also found. Vice-Principal Hunt testified that when Springston was called to the office and confronted, he admitted that the substance was his.

At the close of the testimonial evidence, the State and the defense presented a stipulated exhibit that had been prepared by a chemist, Dr. Howick. The stipulation contained Dr. Howick’s findings regarding his testing of the substance found in Springston’s locker. It read, in pertinent part, as follows:

1. Visual inspection of test indicated the substance characterists [sic] were consistent with marihauna [sic];
2. Chemical test yeilded [sic] results consistent with the presence of marihauna [sic];
3. Test results, when taken together, confirmed to the examiner the presence of marihauna [sic];
4. The presence or absence of THC could not be confirmed by the tests or by the examiner.

It is not clear from the record whether a test was actually administered for the purpose of determining the presence of THC; as best we can tell, no such test was performed.

Upon introduction of the stipulated exhibit, the State rested its case. Springston moved to dismiss on the basis that the State had not proven the presence of THC. The trial court ruled that no such proof was necessary. Springston was adjudicated a delinquent and sentenced. This appeal followed.

The controversy on appeal arises from the definition of marijuana contained in Ark. Code Ann. § 5-64-101 (n) (Repl. 1993):

“Marijuana” means all parts and any variety and/or species of the plant Cannabis that contains THC (Tetrahydrocannabinol) whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin. It does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination.

The appellant contends that this statutory definition requires the State to prove the presence of THC in order to obtain a conviction for possession of marijuana. Notwithstanding that contention, we have held that lay testimony may provide substantial evidence of the identity of a controlled substance, even in the absence of expert chemical analysis. Moser v. State, 262 Ark. 329, 557 S.W.2d 385 (1977). See also Blair v. State, 16 Ark. App. 1, 696 S.W.2d 755 (1985); Armstrong v. State, 5 Ark. App. 96, 633 S.W.2d 51 (1982). In this case, we not only have the fact that the drug-sniffing dog stopped at Springston’s locker and the fact that Springston admitted that the contraband substance was his, but we have an expert chemical analysis identifying the substance as marijuana, both by visual examination and chemical testing. It would be incongruous for us to say, as we did in Moser, that chemical analysis is not a necessity and then to say in this case that the chemical analysis was not thorough enough.

Given the findings of the chemist, along with the lay testimony, we hold that there was substantial evidence to support the juvenile adjudication for possession of marijuana.

Affirmed.


author: Tom Glaze, Justice.

text:
    Jerry DONALDSON, Anthony Graham, Eddie Lunsford, Ruben Camp, Maurice Green, & the Fraternal Order of Firemen v. Jerry TAYLOR, Mayor of the City of Pine Bluff, Arkansas, & Ray Jacks, Fire Chief
    96-72
    936 S.W.2d 551
    Supreme Court of Arkansas
    Opinion delivered January 27, 1997

      Robert A. Newcomb, for appellants.

      Carol Billings, City Attorney, for appellees.
   Tom Glaze, Justice.

In this case, appellant-firemen, who work twenty-four-hour shifts, argue that, commencing January 1, 1993, the City of Pine Bluff erroneously changed its policy in calculating their sick leave. Their dispute with the City centers on the interpretation of Ark. Code Ann. § 14-53-108 (Supp. 1995), which in relevant part provides as follows:

(a) (1) From and after April 11, 1969, all fire fighters employed by cities of the first and second class shall accumulate sick leave at the rate of twenty (20) working days per year beginning one (1) year after the date of employment.
■ (2) If unused, sick leave shall accumulate to a maximum of sixty (60) days unless the city, by ordinance, authorizes the accumulation of a greater amount, in no event to exceed a maximum accumulation of ninety (90) days, except for the purpose of computing years of service for retirement purposes.
(b) (1) In cities having sick leave provisions through ordinance, the total sick leave accumulated by the individual fire fighter shall be credited to him and new days accumulated under the provisions of this section until the maximum prescribed in subsection (a) of this section is reached.
(2) Time off may be charged against accumulated sick leave only for the days that a fire fighter is scheduled to work. No sick leave as provided in this section shall be charged against any fire fighter during any period of sickness, illness, or injury for any days which the fire fighter is not scheduled to work.

In calculating sick leave under § 14-53-108(a)(l) and (2), the City prior to January 1, 1993, determined that a fireman working a twenty-four-hour shift who missed his or her entire shift due to illness was charged only one eight-hour day of sick leave. After January 1-, 1993, the City redefined a sick day as eight hours, so that a fireman missing an entire twenty-four-hour shift would be charged three days (3x8 = 24) of his or her accumulated sick leave.

The firemen working twenty-four-hour shifts brought this suit requesting declaratory relief urging the trial court to hold that the City’s interpretation of § 14-53-108 was wrong, and violated the Pine Bluff Civil Service Commission’s rules and regulations dealing with the firemen’s sick-leave policy. The trial court denied the appellant-firemen’s request for relief, and among other things, held that the term “working day” as employed in § 14-53-108 must be construed to refer to an eight-hour day rather than a twenty-four hour shift. In so holding, the trial court further determined that the City’s new sick-leave policy conformed with the statute’s language. We agree, and therefore, affirm.

The crux of the firemen’s argument is that the trial court misinterpreted the term “working day” to mean the hours worked within a twenty-four-hour period, and that the City is clearly wrong when it charged three days of sick leave when a fireman misses one twenty-four-hour period. In further support of this argument, the firemen also submit that the City’s civil service regulations define “working day” as meaning “tour of duty.” They suggest that, when using that definition, “working day” as utilized in § 14-53-108 is intended to mean hours worked within a twenty-four-hour period or a tour of duty. We disagree.

First, we point out that the terms “working day” and “tour of duty” found in Pine Bluff’s civil service regulation were previously found in § 14-53-108, but were later omitted when the statute was amended by Act 842 of 1983. The General Assembly enacted Act 842 after this court’s decision in City of Fort Smith v. Brewer, 255 Ark. 813, 502 S.W.2d 643 (1973), where in calculating firemen’s holidays, the statutory term “working days” was construed by this court to mean an eight-hour day rather than a twenty-four-hour shift. See also Kalb v. Village of Oak Lawn, 470 N.E.2d 1268, (Ill. App. 1 Dist. 1984) (where the court held “days” in a municipal sick-leave ordinance referred to eight-hour days as applied to fire fighter, where that fire fighter worked a twenty-four-hour day with forty-eight hours off).

Second, we also note that the Pine Bluff Civil Service Commission’s regulations as they refer to firemen’s sick leave have little meaning here, since Arkansas law prohibits such commissions from exercising any control over the normal routine day-to-day operations of a fire department. See Ark. Code Ann. § 14-51-212 Supp. 1995). Clearly the City of Pine Bluff has the authority to operate and manage its fire department, including its fire fighter’s hours of duty, holiday compensation, annual vacation, and sick leave. See Ark. Code Ann. §§ 14-53-101 -108 (1987 and Supp. 1995). Commensurate with that authority, the City, by ordinance pursuant to § 14-53-108, chose to change its policy so as to limit sick leave to ninety days for those firemen employed on twenty-four-hour shifts.

We should also mention that the City of Pine Bluff’s actions were well within the time restrictions of § 14-53-108, but the same cannot be said of the argument offered by appellants. Appellants concede that, if our court should adopt their interpretation of § 14-53-108 and proposed calculation of sick-leave benefits, a fireman could actually use up to nine months of sick leave. Obviously, such a result clearly runs contrary to § 14-53-108(a)(2) which limits sick leave to sixty days unless, by ordinance, the city authorizes an amount not to exceed ninety days .

For the reasons above, we affirm.

       Appellants cite Webster’s Encyclopedia Unabridged Dictionary of the English Language which defines “workday” as meaning the hours worked within a twenty-four hour period.

       Firemen who work eight-hour days, five days per week are admittedly limited to ninety days of accumulated sick leave.

       We note that § 14-53-108(c)(l) and (2) provides for paid benefits upon retirement or death, but payment for unused sick leave shall not exceed three months’ salary unless, by ordinance, the city authorizes four and one-half months’ salary.


author: Robert L. Brown, Justice.

text:
    Jeffery Lee WILLIAMS v. STATE of Arkansas, City of Fayetteville
    CR 96-146
    938 S.W.2d 547
    Supreme Court of Arkansas
    Opinion delivered January 27, 1997
    [Petition for rehearing denied March 3, 1997.]

      Hood & Conner, by: Jeff R. Conner, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellees.
   Robert L. Brown, Justice.

This appeal concerns events that transpired after this court’s initial opinions in this case, following the appeal in Williams I. See Williams v. State, 320 Ark. 211, 895 S.W.2d 913 (1995), reh’g granted, 320 Ark. 230-A, 901 S.W.2d 831 (1995). We repeat the essential facts that led to Williams I for purposes of convenience. On October 23, 1992, appellant Jeffery Lee Williams attended a presidential campaign rally for then Governor Bill Clinton on the University of Arkansas campus at Fayetteville. During the Clinton rally, Williams and a number of supporters of then President George Bush demonstrated in favor of their candidate for president. University of Arkansas Police Officer Michael Daub observed Williams jumping up and down and pushing people who stood near him. According to Officer Daub, a fight was about to ensue. Officer Daub asked Williams to stop being disruptive and leave, but Williams refused. Officer Daub called for backup officers, and other police officers arrived, including University of Arkansas Police Officers Gary Crane and John Reid. Officer Reid observed Williams screaming to Officer Daub about his rights. Both officers saw Williams push other people. The officers advised Williams that he was under arrest, and Williams immediately sat down. Williams was then placed in a headlock, and Officer Crane applied a pain-compliance technique to force Williams to accompany them to the patrol car. Williams stated that he did not know he was under arrest until he was placed in the headlock. He was arrested for the misdemeanor offenses of disorderly conduct (Ark. Code Ann. § 5-71-207 (Repl. 1993)), and refusal to submit to arrest (Ark. Code Ann. § 5-54-103(b) (Repl. 1993)). The municipal court found him guilty of refusal to submit to arrest. Williams appealed to circuit court, and that court also found him guilty of the offense.

In Williams I, Williams challenged the constitutionality of § 5-54-103(b), the refusal-to-submit-to-arrest statute under which he was convicted. That statute provides in subsection (b)(3) that it is not a defense that the law enforcement officer lacked legal authority to make the arrest. In a footnote in our initial opinion, this court observed that for purposes of the appeal in Williams I, the State had conceded that the arrest for disorderly conduct was illegal due to a lack of probable cause. This court also observed that even though Williams had a right to be at the rally, the police officers had a colorable basis to arrest him when the disorderly conduct was committed in their presence.

We later granted rehearing, however, and a supplemental opinion was handed down. See Williams v. State, 320 Ark. 230-A, 901 S.W.2d 831 (1995). In the supplemental opinion, we made reference to Williams’s argument that he was denied the opportunity to present evidence that no probable cause existed for his arrest, which was the first hurdle he had to jump in order to make his constitutional claims. We admitted that we had mistakenly failed to address this argument and continued as follows:

First, the trial court was wrong in not affording Williams the opportunity to present testimony on whether probable cause existed at the time of his initial arrest. Such testimony was relevant. If probable cause did, in fact, exist, Williams’ constitutional arguments are arguably preempted even if those arguments had been timely preserved. Second, the trial court compounded its error by denying Williams the opportunity to proffer testimony bearing on the probable cause issue.

Williams v. State, 320 Ark. at 230-B, 901 S.W.2d at 832. We concluded by granting Williams’s request for remand “for a full development of the facts” and added that if the constitutional issues argued by Williams are viable after development of the facts, the trial court may address them.

On July 3, 1995, the opinion granting rehearing was handed down by this court. Following the opinion, a letter from the case coordinator for the trial court dated July 26, 1995, informed the parties that Williams’s municipal court appeal had been set for “trial” on September 21, 1995, with a pretrial conference set for September 18, 1995. Williams filed a motion for discovery on August 15, 1995. On September 6, 1995, Williams formally requested a jury trial. A second letter from the case coordinator dated September 11, 1995, advised counsel for the parties that a “hearing” is scheduled for September 18, 1995, at which time the trial court would “take up the issues raised by the Supreme Court in its opinion delivered July 3, 1995.”

At the hearing on September 18, 1995, counsel for Williams first broached to the trial court whether it intended to conduct a probable-cause hearing. The trial court responded that it did. Williams complained that he had received no notice that this was to be an evidentiary hearing and that he wanted a jury to decide questions of fact. Fie added that he was unprepared to participate in an evidentiary hearing. The trial court responded that Williams had waived his right to a jury trial in the first trial, and, thus, a jury trial was barred by law of the case. Further, the trial court-stated that it disagreed that the case coordinator’s letters designated the proceeding as a pretrial conference. The trial court ruled that the notices to Williams were adequate and that this court had remanded the matter for a probable cause hearing relating to the arrest. The trial court then allowed the prosecutor to present his case on probable cause to arrest, over Williams’s objection.

University of Arkansas Police Officer Michael Daub testified about the circumstances surrounding Williams’s arrest. This testimony mirrored his testimony from the first trial, which is set out in this opinion. Counsel for Williams then informed the trial court that he was unprepared to cross-examine Officer Daub, and he requested permission to recall Officer Daub for cross-examination at a later time. The trial court ruled that this would be counsel’s only opportunity to cross-examine Officer Daub, and the trial court denied the request. The trial court did inform counsel that he could subpoena Officer Daub for later examination as part of Williams’s case-in-chief. University of Arkansas Police Officer John Reid next testified for the State. He confirmed that Williams was disorderly in his presence due to pushing, shoving, and general agitation. The State rested, and the trial court continued the probable-cause hearing until September 21, 1995 — the trial date under the case coordinator’s first notice. Williams again contended that he was entitled to a jury trial, but the trial court responded that it was for the trial court to decide whether probable cause existed, not a jury.

In a letter dated September 20, 1995, counsel for Williams reiterated to the trial court that he was not told that there would be a probable-cause hearing on September 18, 1995, and thought it was to be a pretrial conference. Williams objected to the trial court’s jurisdiction to hold a probable-cause hearing and repeated his request for a jury trial.

On September 21, 1995, Williams moved to strike the police officers’ testimony due to insufficient notice of the hearing three days earlier. The motion was denied. Counsel for Williams candidly admitted at oral argument before this court that he made a tactical decision not to call any witnesses at that time but decided to stand on his asserted due process violations for lack of notice. The trial court then concluded that the police officers had probable cause to arrest Williams for disorderly conduct. The substance of the court’s order is as follows:

Now on this 21 [st] day of September, 1995, comes on for hearing the Defendant, Jeffery Williams, . . . said case being an appeal from the Fayetteville Municipal Court, and said case having been appealed to the Arkansas Supreme Court, and remanded back to this court for a determination of probable cause.
The Court having been presented with testimony, statements of counsel and sufficiently advised as to all relevant matters of law and fact, finds that sufficient probable or reasonable cause existed for the arrest of the Defendant for violating the provisions of A.C.A. § 5-71-207 [disorderly conduct],
I. Jurisdiction to Conduct Probable-Cause Hearing

Williams first asserts that the trial court lacked authority to hold a probable-cause hearing because this court had remanded the matter for a full development of the facts, which meant a new trial. We disagree.

Contrary to Williams’s assertion, there is no confusion or ambiguity in the supplemental opinion granting rehearing. It is clear from our opinion that all that was necessary to resolve the issue on remand was a hearing to determine whether probable cause existed to arrest Williams initially. We stated that if probable cause did exist, “Williams’ constitutional arguments are arguably preempted even if those arguments had been timely preserved.” Williams v. State, 320 Ark. at 230-B, 901 S.W.2d at 832. We did state that the remand to the trial court was for a “full development of the facts,” but that statement was made in the context of a probable-cause hearing. Williams attempts to bolster his argument for a new trial by taking that statement out of context, but we decline to read the statement in isolation. We are also mindful of the fact that Williams never raised the issue of confusion or ambiguity regarding the remand, after we issued our supplemental opinion. He could easily have done so by a petition for rehearing.

Williams further contests this court’s authority to remand for the limited purpose of a hearing on probable cause. As the State points out, the limited-remand procedure has been used in Arkansas in other instances. See Bell v. State, 324 Ark. 258, 920 S.W.2d 821 (1996) (remand for a new suppression hearing on voluntariness of statement because material police witness not present at first hearing); Moore v. State, 303 Ark. 1, 791 S.W.2d 698 (1990) (remand for a Denno hearing); Harris v. State, 271 Ark. 568, 609 S.W.2d 48 (1980) (remand for an explicit determination by the trial court on voluntariness of confession); Hammers v. State, 261 Ark. 585, 550 S.W.2d 432 (1977) (remand for hearing to determine whether defendant struck a deal with the prosecutor to give a statement in return for immunity).

Williams counters that this court still had no authority to grant a limited remand for a probable-cause determination. His authority for this proposition, however, is distinguishable. He first cites State v. Garrison, 272 Ark. 470, 615 S.W.2d 371 (1981), but that case involved a State appeal where the trial court had conducted a probable-cause hearing on the legitimacy of a charge after the prosecutor had filed his felony information against the accused in circuit court. We reversed the trial court’s dismissal of the charge, noting that there was no authority for such a hearing when charges had already been filed by the prosecutor. Those circumstances are markedly different from the Williams facts, where the issue on remand was whether the arresting officers had reasonable cause to make a warrantless arrest for a misdemeanor offense committed in their presence. See Ark. R. Crim. P. 4-1(a) (in).

Nor is the second case cited by Williams — Holt v. State, 300 Ark. 300, 778 S.W.2d 928 (1989) — supportive of his position. In Holt, the appellant appealed his conviction for DWI Fourth Offense to this court, after receiving the minimum sentence. He sought to limit our review so that he could receive no more than the minimum sentence in the event of a reversal. We concluded that to limit our review would be improper, and we affirmed. That holding, however, clearly would not preclude a limited remand in the instant case.

In short, Williams cites us to no authority that militates against a remand by this court for a probable-cause determination.

II. Due Process

Williams next complains that he was not informed until the day of the probable-cause hearing (September 18, 1995) that evidence was to be presented. Williams may well be right that the notices to him did not sufficiently inform him that evidence was to be taken on that date. Be that as it may, this court will not reverse a trial court’s ruling in such circumstances absent a showing of prejudice. Gordon v. State, 326 Ark. 90, 931 S.W.2d 91 (1996); Scott v. State, 325 Ark. 267, 924 S.W.2d 248 (1996); Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), cert. denied, 470 U.S. 1085 (1985). Hence, the issue becomes whether any prejudice was shown, or, stated differently, whether the three-day continuance to September 21, 1995 — the date originally set for trial — cured any prejudice to Williams.

Williams claims that he was deprived of an opportunity to cross-examine the State’s witnesses and to rebut what they testified to with his own witnesses. We do not believe this to be so. He did have the opportunity to submit proof, including a recall of State witnesses, on September 21, 1995. He decided not to do this for tactical reasons, according to his counsel at oral argument. We will not reverse a case when the appellant could have cured an alleged defect at the trial court level and made a conscious decision not to do so. In addition, Williams does not apprise us of what his evidence might have been. In this same vein, no proffer of that evidence was made to the trial court. See Bennett v. State, 307 Ark. 400, 821 S.W.2d 13 (1991).

We fail to see how Williams was prejudiced by any confusion in the notices, particularly when he was notified by letter dated July 26, 1995, that a trial would take place on September 21, 1995. We find no error in this regard.

III. Jury Trial

For his final point, Williams contends that he was entitled to a jury trial on the issue of probable cause. Again, we find his contention to be without merit.

Williams appears to tie his argument to his point that this court’s supplemental opinion remanded the case for a new trial. As is discussed under point I, we did not do so but remanded solely for a determination of probable cause. Furthermore, our criminal rules are clear that reasonable cause to arrest and detain is a matter to be determined by a judicial officer. See Ark. R. Crim. P. 4.1(e). This point has no merit.

Affirmed.

       Ark. R. Crim. P. 4.1(e) speaks in terms of “reasonable cause” to arrest without a ■warrant in lieu of “probable cause.” The two concepts will be used interchangeably for purposes of this opinion.


author: Annabelle Clinton Imber, Justice.

text:
    Bobby DIXON v. STATE of Arkansas
    CR 96-1141
    937 S.W.2d 642
    Supreme Court of Arkansas
    Opinion delivered January 27, 1997
    [Petition for rehearing denied March 10, 1997.]

      Bill Murphy, for appellant.

      Winston Bryant, Att’y Gen., by; C. Joseph Cordi, Jr., Asst. Att’y Gen., for appellee.
   Annabelle Clinton Imber, Justice.

The appellant, Bobby Dixon, was convicted of possession of methamphetamine with intent to deliver, simultaneous possession of drugs and firearms, possession of drug paraphernalia, and possession of marijuana with intent to deliver. He received imprisonment sentences of forty years, ten years, three years, and a $1,000 fine, respectively.

On appeal, Dixon challenges the sufficiency of the evidence, the trial court’s ruling on his motion to suppress, and the jury instruction given on the simultaneous possession of drugs and firearms charge. We affirm.

On March 2, 1995, Trooper Ron Casey of the Arkansas State Highway Patrol noticed a pickup truck driving without a license plate near Sheridan, Arkansas. Casey pulled the truck over, and the driver of the truck, John Wright, exited the truck and explained to Casey that he had recently purchased the truck.

Wright gave Casey the purchase order for the truck, and Casey walked to the front of the vehicle to examine its vehicle identification number. While at the front of the truck, Casey noticed the man sitting in the passenger seat, Bobby Dixon. While Casey did not know Wright, he did know Dixon from previous traffic stops and had even arrested him on a prior warrant.

Casey approached Dixon and asked him for his driver’s license. He wanted to get his identification in order to ascertain whether Dixon had any outstanding warrants. Casey opened the truck’s passenger door and asked Dixon if had been drinking. Dixon said yes and showed Casey a can of beer that he had been drinking.

Casey had Dixon step out of the truck, and he saw the can of beer sitting on the floorboard next to a glass of whiskey. While bent down looking at the floorboard, he also noticed a .380 automatic pistol lying under the front seat. Casey took the pistol and asked Dixon and Wright whose gun it was. Dixon responded that the pistol was his. Casey asked the two men if any other guns were in the truck, and Wright explained that he had two pistols located in the driver’s side-door compartment. Casey found these additional guns and his examination revealed that all three guns were loaded.

At this time Casey went back to his patrol car to run a check on the guns and to radio for backup. Deputy Brett Turner of the Grant County SherifFs office arrived at the scene, and Casey went back to the truck to search for more weapons and/or alcohol. He opened the driver’s side door and looked in the backseat. He found a flask in the pouch located in the back of the driver’s seat. He opened the flask and smelled what he thought was whiskey. He also discovered a liter bottle of whiskey on the backseat floorboard behind the driver’s seat.

Casey then saw a green canvas bag on the backseat that resembled a shaving kit. The bag was zippered shut and located off-center on the backseat, toward the passenger side. Casey retrieved the bag and opened it. He smelled what he thought was methamphetamine. Inside the bag he discovered three plastic bags that contained a substance which appearance he associated with methamphetamine.

At this time he set the bag back down where it was lying and he placed Wright and Dixon under arrest. A subsequent search of the bag additionally revealed a small amount of marijuana, a foil bag containing some methamphetamine, and a set of computerized scales. The total amount of methamphetamine found was approximately 1300 grams. When Dixon was booked at the police station, a “small orange paper bundle” was found folded in Dixon’s hand that contained a small amount of a green leafy substance.

1. Sufficiency of the evidence.

On appeal, Dixon challenges whether the evidence was sufficient to support his convictions. Double jeopardy considerations require this court to consider a challenge to the sufficiency of the evidence prior to other assignments of trial error. Yocum v. State, 325 Ark. 180, 925 S.W.2d 385 (1996). However, Dixon has failed to preserve this issue for appellate review.

Arkansas Rule of Criminal Procedure 33.1 provides in part as follows:

A motion for directed verdict 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 for conviction does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense.

(Emphasis added.) Moreover, this court has often explained and emphasized the bright-line rule drawn in Walker v. State, 308 Ark. 109, 883 S.W.2d 831 (1994), that a directed verdict motion in a criminal case must state the specific ground of the motion. See, e.g., Lovelady v. State, 326 Ark. 196, 931 S.W.2d 430 (1996); McCoy v. State, 326 Ark. 104, 929 S.W.2d 712 (1996); Haltiwanger v. State, 322 Ark. 764, 912 S.W.2d 418 (1995); Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995).

In the present case, Dixon essentially argues that the State failed to adequately prove the element of possession. However, a review of Dixon’s motion for directed verdict reveals that it did not apprise the trial court of this ground. Dixon’s directed verdict motion following the close of the State’s case was as follows:

DEFENSE COUNSEL: Your honor, the State has rested and the Defense would move for a directed verdict on all counts on the grounds of insufficient evidence.

The trial court then denied this motion as to all counts. Dixon later renewed his motion at the close of his case:

DEFENSE COUNSEL: Your honor, the defense renews its motions for a directed verdict on all counts on the grounds of insufficient evidence.

Again, this motion was denied.

These motions are clearly insufficient to preserve Dixon’s argument that the statutory elements of his crimes were not proved. Therefore, this court is barred from addressing the merits of the sufficiency question.

2. Motion to suppress standing.

At trial, Dixon moved to suppress the evidence seized from the truck, claiming it was the result of an illegal search and seizure. On appeal, the State argues that Dixon lacks standing to challenge the search of the truck. We agree.

An appellant must have standing to challenge a search on Fourth Amendment grounds because the rights secured by the Fourth Amendment are personal in nature. Rakas v. Illinois, 439 U.S. 128 (1978); Littlepage v. State, 314 Ark. 361, 863 S.W.2d 276 (1993). Whether an appellant has standing depends on whether he manifested a subjective expectation of privacy in the area searched and whether society is prepared to recognize that expectation as reasonable. Littlepage v. State, supra (citing United States v. Erwin, 875 F.2d 268 (10th Cir. 1989)). In the present case, Dixon bore the burden of proving that he had a legitimate expectation of privacy in the truck. Littlepage v. State, supra (citing Fernandez v. State, 303 Ark. 230, 795 S.W.2d 52 (1990)).

In Littlepage v. State, supra, the appellant attempted to challenge the search of a vehicle that he was driving. This court held that he had no such standing, because the evidence revealed that the car he was driving had been rented to a third person. This third person was the only person authorized to drive the car in the rental agreement. While the appellant asserted that the car had been rented for his own use because his had broken down, there was no showing that this assertion had any validity. Because the appellant failed to prove his expectation of privacy in the vehicle, the Littlepage court did not reach the merits of his Fourth Amendment claims.

Likewise, in Koonce v. State, 269 Ark. 96, 598 S.W.2d 741 (1980), this court found that the appellant had no standing to challenge the legality of the search of a vehicle. In Koonce a police officer approached a vehicle in which the appellant was sleeping. The officer observed an open beer and the smell of marijuana emanating from the vehicle, and he placed the appellant under arrest for possession of open beer. A subsequent search of the vehicle revealed a loaded revolver under the front seat on the passenger side. At the suppression hearing, the appellant testified that he did not own the car or the gun, and the trial court denied the appellant’s motion to suppress the revolver. This court affirmed on appeal, finding that the appellant lacked standing to challenge the search. The court explained that “[sjince Koonce had neither a property interest nor a possessory one, either in the vehicle or in the weapon seized, he had no legitimate expectation of privacy under the front seat of the vehicle, which would entitle him to invoke the exclusionary rule.” Id. (citing Rakas v. Illinois, supra).

This is not to say that a passenger can never have an expectation of privacy in the search of a vehicle. For example, in State v. Villines, 304 Ark. 128, 801 S.W.2d 29 (1990), the defendants were passengers in a vehicle involved in a wreck in Arkansas during a planned trip from Dallas to Milwaukee. The investigating officer smelled marijuana in the car and observed suspicious behavior on the part of the defendants. Fie then pried open the trunk of the car and found a cardboard box containing marijuana among some other personal items. The trial court held that the defendants had standing to contest the search of the car, and granted their motion to suppress. This court rejected the State’s appeal, noting that the defendants were more than “passengers qua passengers.” Id. They had placed their personal belongings in the trunk of the car and established a joint agreement with the owner of the car to share driving responsibilities over the course of the trip. This amounted to joint possession of the car over the course of the interstate trip. Thus, both defendants “had a sufficient possessory interest to exclude anyone who tried to interfere with the car or their luggage.” Id.

Likewise, a passenger in a vehicle may not have standing to object to the search of the vehicle, but may be able to contest the search of their own personal belongings inside the vehicle. See, e.g., United States v. Infante-Ruiz, 13 F.3d 498 (1st Cir. 1994) (passenger had standing to challenge search of his own briefcase stored in the locked trunk of car); People v. Armendarez, 468 N.W.2d 893 (Mich. Ct. App. 1991) (passenger who had no standing to challenge search of automobile did have standing to challenge search of his own personal effects in automobile). Similarly, the occupants of a vehicle have standing to assert their own Fourth Amendment rights, independent of the owner’s, such as in a challenge to the initial stop, or the seizure of their person. John Wesly Hall, Jr., Search and Seizure § 6:10 (2d ed. 1991).

In the present case, Dixon has failed to assert a possessory interest in the truck or the canvas bag. In fact, the purchase order for the truck revealed that Wright was the owner. Furthermore, Dixon has made no showing of any legitimate expectation of privacy in the interior of the truck or the canvas bag. Neither does Dixon challenge the validity of the initial stop.

The evidence does suggest that Dixon owned the gun that was found underneath the passenger seat. Thus, Dixon would have personal Fourth Amendment Rights as to the gun itself. However, these rights do not grant him standing to challenge the intrusion into the truck itself, or the search of the canvas bag.

Therefore, we must conclude that Dixon has no standing to challenge the search of Wright’s truck and that this court is barred from addressing the merits of Dixon’s Fourth Amendment claims. Accordingly, we affirm the trial court’s denial of Dixon’s motion to suppress.

3. AMCI 6414 Jury Instructions.

Dixon asserts that the trial court erred in instructing the jury with regard the simultaneous possession of drugs and firearms charge. Dixon has failed to preserve this issue for appellate review.

The instruction at issue provided as follows:

Bobby Dixon is charged with the offense of Simultaneous Possession of Drugs and Firearms. To sustain this charge, the State must prove beyond a reasonable doubt that:
First: Bobby Dixon possessed a controlled substance (methamphetamine);
Second: He committed this offense while in the possession of a firearm.
As used in this instruction there are two kinds of possession, actual and constructive. Actual possession of a thing is direct physical control over it. Constructive possession exists when a person, although not in actual possession of a thing, has the right to control it and intends to do so, either directly or through another person.

Dixon objected to this instruction because it omitted an element of the offense, namely “continuing criminal activity and/or gang related activity.” However, even though he objected to the instruction, he failed to proffer an instruction containing what he saw as the correct elements of the offense. This failure to proffer or abstract the proposed instruction precludes this court from considering the issue on appeal. Plotts v. State, 297 Ark. 66, 759 S.W.2d 793 (1988); Shockley v. State, 282 Ark. 281, 668 S.W.2d 22 (1984); Orsini v. State, 281 Ark. 348, 665 S.W.2d 245 (1984), cert. denied, 469 U.S. 847 (1984). Accordingly, we must affirm.

Affirmed.


text:
    Daniel John GRAY v. STATE of Arkansas
    CR 96-341
    937 S.W.2d 639
    Supreme Court of Arkansas
    Opinion delivered January 27, 1997

      Phillip A. Moon, for appellant.

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

Appellant Daniel John Gray was convicted and sentenced to the Arkansas Department of Correction for two life terms, one for each rape count, and ten years for one count of possessing visual or print medium depicting sexually explicit conduct involving a child, terms to run consecutively, in addition to a $10,000 fine. On appeal, Mr. Gray claims that the trial court erred in denying his pretrial severance motion and two motions for mistrial. He also challenges the sufficiency of the evidence to convict him of the rape of his biological daughter, C.H. . We affirm the trial court on each of these issues.

Mr. Gray was convicted of raping both C.H., his biological daughter, and S.S., with whom Gray began his sexual activity while he was living with S.S.’s mother. These activities commenced when S.S. was seven years old and continued until she was eleven. When Gray and S.S.’s mother ended their relationship, he moved in with C.H.’s mother. C.H. was nine at the time Gray began his sexual advances toward her, which culminated in rape by deviate sexual activity. Both girls testified that his sexual advances with them began as fondling and then progressed to rape. In both cases, Gray lived with the victims’ mothers, in the same houses with the child victims, and had parental control over them. Gray claims it was error for the trial court to deny his motion to sever the two rape charges because there was a break of three months between them. We find this claim is procedurally barred.

Although Gray filed a pretrial motion on the issue, it was denied by the trial court, and Gray did not renew the motion or raise the issue again until this appeal. In Rockett v. State, 319 Ark. 335, 891 S.W.2d 366 (1995), this court determined that the defendant’s failure to renew a severance motion before or at the close of all the evidence constitutes a waiver of the issue, even though the defendant has been denied a pretrial severance motion. Id. at 342-43, 891 S.W.2d at 370 (citing Ark. R. Crim. P. 22.1(b)).

Gray does not claim he renewed his motion, and a review of the record reflects that he failed to renew his severance motion at any point during the trial. Gray’s failure to renew the severance motion resulted in the waiver of this issue; therefore, we do not consider this issue on appeal.

Gray next argues that the State’s repeated questions regarding photographs and video tape involving persons other than the victims amounted cumulatively to prejudice requiring reversal in light of the fact that the trial court granted pretrial exclusion of this evidence through a motion in limine.

A mistrial is an exceptional remedy to be used only when possible prejudice cannot be removed by an admonition to the jury. Holbird v. State, 299 Ark. 551, 552, 775 S.W.2d 893, 893 (1989). This court has stated that failure to give an admonition to the jury does not constitute prejudicial error where the instruction or admonition was not requested below. Brown v. State, 316 Ark. 724, 728, 875 S.W.2d 828, 831 (1994). Even if the State’s questioning regarding this evidence was inappropriate, not every such act warrants the declaration of a mistrial. Porter v. State, 308 Ark. 137, 147, 823 S.W.2d 846, 851 (1992). On appeal, this court will not disturb the denial of a mistrial absent evidence of abuse of discretion by the trial court. Davis v. State, 325 Ark. 96, 108, 925 S.W.2d 768, 775 (1996).

On appeal, Gray complains that the trial court failed to grant a mistrial or even to give an admonition to the jury. From our review of the record, Gray neither requested the trial court’s admonition nor sought any sort of curative instruction to the jury in any instance. Since a mistrial is an “exceptional remedy” used only when the prejudice cannot be removed by a jury admonition, this court declines to find that the trial court abused its discretion in refusing to grant a mistrial.

In his last point of appeal, Gray maintains that the State’s evidence was insufficient to convict him of raping his nine-year-old biological daughter, C.H., because her mother testified that C.H. showed no fear of Gray nor did she complain of any wrongful conduct or advances by him. Gray also claims that the medical testimony was inadequate to show that C.H. had been raped.

Although Gray made a motion for a directed verdict both at the close of the State’s case and at the close of all evidence, his motion was that the State failed to make a prima facie case. We require that a motion for a directed verdict apprise the trial court of the specific basis challenging the sufficiency of the evidence. Campbell v. State, 319 Ark. 332, 333, 891 S.W.2d 55, 56 (1995). Also, if an appellant is arguing that the statutory elements of his crime were not proved, he must provide the trial court with more than a general motion for a directed verdict. Stewart v. State, 320 Ark. 75, 77, 894 S.W.2d 930, 932 (1995); Webb v. State, 327 Ark. 51, 938 S.W.2d 806 (1997), slip op. at 9-10. Because Gray failed to provide more than a general motion for a directed verdict, this issue has not been adequately preserved for our review.

We find no merit in Gray’s assignments of error and the trial court is affirmed. We have also reviewed the record for prejudicial error pursuant to Ark. Sup. Ct. R. 4-3(h), which requires that we examine the transcript in cases involving a sentence to death, life imprisonment, or life without parole and find no such error.

Affirmed.

Corbin, J., not participating.


text:
    Timothy Bryan JORDAN v. STATE of Arkansas
    CR 96-871
    939 S.W.2d 255
    Supreme Court of Arkansas
    Opinion delivered January 27, 1997

      Maxie G. Kizer, for appellant.

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

The primary issue in this case is whether the trial court’s order revoking probation and sentencing appellant to serve thirty-five years in prison meets the test of fundamental fairness required under the Due Process Clause when there have been no findings of fact upon which to base a judicial determination that the failure to pay court-ordered restitution was a willful refusal to comply with the court order, and not the result of appellant’s inability to pay. We have concluded that the due process requirement of fundamental fairness has not been met, and the case is reversed and remanded.

The appellant, Timothy Bryan Jordan, was charged with crimes of residential burglary, theft of property, and two counts of theft by receiving. Based upon a plea bargain with the State, Jordan entered a guilty plea to the four counts on March 21, 1995. The trial court deferred further proceedings and placed Jordan on probation for five years conditioned in part on the payment of $7,312.50 in restitution to Mr. Alfred Helvey. In agreeing to the plea bargain, the State recognized that its interest in punishment and deterrence did not require imprisonment, but would be satisfied by probation and restitution. The probation order states, “If the defendant successfully completes his period of probation this record will be expunged on application therefor.”

Jordan did not report to his probation officer and faded to make any payments, and the State petitioned to revoke probation. A hearing on the State’s motion to revoke was held on August 9. At this hearing, Jordan asserted that he could catch up with the required restitution by paying $500 a month, based upon earnings of $200 to $300 per week from a lawn service company. He testified that his living expenses were only $30 to $35 a week. The hearing was adjourned and reconvened on August 25.

By the August 25 hearing, Jordan was no longer working for the lawn service company, but his father testified that he would help him find a job. The trial court advised Jordan that, notwithstanding the urging by the State and the probation officer that the probation be revoked, “This court is far more interested in seeing that Mr. Helvey gets his money back than he is in sentencing you in the Department of Correction.” The trial court then informed Jordan’s father that the young man would need a lot of support from his father, his grandmother, and other friends to meet the restitution schedule of $500.00 per month for seven consecutive months, commencing in September, followed by payments of $100 per month until the restitution amount was paid.

The court next convened on December 11 to review progress made toward restitution. Only one payment of $500 had been made, with the help of Jordan’s grandmother. Jordan claimed that he had hurt his leg, had lost his job, and had been out of work for three months. He said that he had just gotten some equipment to begin painting cars. The court said, “I don’t think you’re going to make it, Mr. Jordan ... I think you’ve got more than you can say grace over . . . Aou need to go on down.” Jordan’s probation officer testified that he had been reporting as required by the order, that he had not tested positive for drugs, that he had no outstanding charges against him, and that his only violation was nonpayment of restitution, which was then in arrears by $1,000.

Jordan was returned to jail and on January 9, 1996, the final hearing was held. The trial court opened the hearing by advising him, “Mr. Jordan, apparently, you’re not going to receive any kind of assistance from your family or friends. The Court was in hope that somebody would come forward to give you some assistance, but apparently that’s not going to be.” Mr. Helvey, the victim, was then called as a witness and urged the court to impose the maximum sentence. Jordan then pleaded with the court for another chance, stating that he might be able to get a loan of $1500 to $2000 to apply to restitution, and the court replied that if he gets the loan, “we might reconsider what we’re going to do right now, Mr. Jordan.” The trial judge then revoked probation and sentenced Jordan to three ten-year terms and one five-year term in the Arkansas Department of Correction, with the terms to run consecutively.

In Bearden v. Georgia, 461 U.S. 660 (1983), the Supreme Court dealt with the issue whether the Fourteenth Amendment prohibits a State from revoking an indigent defendant’s probation for failure to pay a fine and restitution. In opening its discussion of this issue, the Court states:

Its resolution involves a delicate balance between the acceptability, and indeed wisdom, of considering all relevant factors when determining an appropriate sentence for an individual and the impermissibility of imprisoning a defendant solely because of his lack of financial resources. We conclude that the trial court erred in automatically revoking probation because petitioner could not pay his fine, without determining that petitioner had not made sufficient bona fide efforts to pay or that adequate alternative forms of punishment did not exist.

Id. at 661.

Reviewing testimony from the probation revocation hearing in Bearden, the Supreme Court observed:

While the sentencing court commented on the availability of odd jobs such as lawn mowing, it made no finding that the petitioner had not made sufficient bona fide efforts to find work, and the record as it presently stands would not justify such a finding. . . . The State argues that the sentencing court determined that the petitioner was no longer a good probation risk. In the absence of a determination that the petitioner did not make sufficient bona fide efforts to pay or to obtain employment in order to pay, we cannot read the opinion of the sentencing court as reflecting such a finding.

Id. at 673-74.

Arkansas has adopted statutory guidelines as to what matters shall be considered by a court reviewing revocation of a probationary sentence for failure to pay restitution. Arkansas Code Annotated § 5-4-205 (Repl. 1993) provides as follows:

(2) In determining whether to revoke probation or conditional release, the court or releasing authority shall consider the defendant’s employment status, earning ability, financial resources, the willfulness of the defendant’s failure to pay, and any other special circumstances that may have a bearing on the defendant’s ability to pay.

Id. § 5-4-205 (c)(2). The record in the case before us contains no finding of fact that Jordan’s delinquency in making restitution payments resulted from a willful refusal to pay, rather than from an inability to pay, and the record as it stands would not justify such a finding. There is a finding that his friends and family have failed to help him make restitution, but it is not reasonable to conclude that this lack of assistance from others establishes Jordan’s willful refusal to pay.

There are no findings as to Jordan’s total earnings, what employment he was able to secure for what period of time, whether he owned an automobile or other property, or whether he had access to resources of his own that he willfully refused to apply to the payment of restitution. We note that the indigent status of Jordan is not addressed in the record of this case, although it is clear that this appeal is in forma pauperis.

This contrasts with the record in Hoffman v. State, 289 Ark. 184, 711 S.W.2d 151 (1986), where we found that the trial court’s decision to revoke probation was not clearly against a preponderance of the evidence when a full disclosure of defendant’s earnings of $8,211.75 and application of those funds to payments including restitution was part of the evidence considered by the trial court. In Hoffman, we affirmed the decision of the trial court, stating:

Appellant’s failure to make the ordered payments, in light of his standard of living, his purchase of a $17,000 car, and the fact that he did not search for a job outside the field of auto sales, can be construed as an inexcusable failure to comply with the conditions of his suspension.

Id. at 189, 711 S.W.2d at 153.

Where there is no determination that the failure to pay restitution is willful, it is clear that a probationer cannot be punished by imprisonment solely because of a failure to pay. The Supreme Court in Bearden stated: “ [I] f the State determines a fine or restitution to be the appropriate and adequate penalty for the crime, it may not thereafter imprison a person solely because he lacked the resources to pay it.” Bearden, 461 U.S. at 667-68 (quoting Tate v. Short, 401 U.S. 395 (1971)); see also Williams v. Illinois, 399 U.S. 235 (1970).

A defendant’s failure to make bona fide efforts to seek employment or to borrow money to pay restitution may justify imprisonment. Under Arkansas law, probation may be revoked if the trial court finds by a preponderance of the evidence that the defendant inexcusably failed to comply with a condition of probation. Ark. Code Ann. § 5-4-309 (d) (Repl. 1993); see also Ark. Code Ann. § 5-4-310 (Repl. 1993). See, e.g., Hoffman, 289 Ark. at 189, 711 S.W.2d at 153. Considerations such as those enumerated in Ark. Code Ann. § 5-4-205 (c)(2), as quoted above, are required before probation is revoked.

Jordan makes two additional arguments. The first is that imposition of consecutive sentences aggregating thirty-five years constitutes cruel and unusual punishment. We do not address this argument because it was not made to the trial court. Even constitutional arguments are waived when they are not argued below. Martin v. State, 316 Ark. 715, 875 S.W.2d 81 (1994).

The second argument is that the trial court abused its discretion in ordering the sentences to run consecutively. We do not reach this issue because the case is remanded on other grounds. We note that throughout the proceedings the trial court repeatedly stated that it did not wish to send Jordan to prison, but was primarily concerned about his making restitution to Mr. Helvey. As we remand this case for a determination whether Jordan’s failure to pay reflects a willful refusal to comply with the order of restitution or simply the inability to pay, the trial court will have the opportunity to engage in a careful balancing of all relevant factors when deciding whether probation should be revoked, and if revoked, what punishment should be imposed.

Because there was no determination that Jordan’s failure to pay restitution was the result of a will&l refusal to pay, rather than an inability to pay, we have concluded that the judgment revoking the probation must be reversed and the case remanded.


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    Rodney BRAGG v. STATE of Arkansas
    CR 96-820
    937 S.W.2d 646
    Supreme Court of Arkansas
    Opinion delivered January 27, 1997

      Charles L. Honey, for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   Per Curiam.

Appellant Rodney Bragg by his attorney, Charles L. Honey, moves the court for an additional 90 days in which to file appellant’s brief. According to the facts in Bragg’s motion, his original brief was filed on August 12, 1996. On August 29, 1996, the State moved that Bragg comply with Supreme Court Rule 4-3 (h), and that motion was granted by this court on September 16, 1996. Bragg was given until October 26, 1996, to comply with Rule 4-3(h).

Counsel for Bragg now shows the court that he did not receive the letter from the Supreme Court Clerk’s office advising him of the October 26, 1996 deadline until December 17, 1996. The reason for this, he states, is that another employee at his law firm handled the Bragg appeal, and that person has now left this firm. Current counsel for Bragg also informs this court that he is busy with other appeals. The Attorney General’s office does not object to the 90-day extension.

We grant a 30-day extension from date of this order. We do not view the fact that another person in counsel’s office was handling the Bragg appeal as a valid reason for noncompliance with the October 26, 1996 deadline of this court. Nor is a crowded work schedule adequate justification for extending the time for filing the corrected abstract by an additional 90 days. Bowen v. State, 320 Ark. 342, 895 S.W.2d 941 (1995).

Because we do not find justification for failure to comply with the October 26, 1996 order of this court, a copy of this opinion will be sent to the Committee on Professional Conduct.


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    Johnny COOK v. STATE of Arkansas
    CR 96-1507
    937 S.W.2d 641
    Supreme Court of Arkansas
    Opinion delivered January 27, 1997

      George Keith Watkins, for appellant.
    No response.
   Per Curiam.

Keith Watkins, attorney for Appellant Johnny Cook, has filed a motion on behalf of Cook for rule on clerk. For the reasons stated below, we deny the motion.

An order for judgment and commitment was entered in Independence County Circuit Court against Appellant on May 7, 1996. Notice of appeal was filed on May 30, 1996. An order extending the time to file the record until October 31, 1996, was entered on August 23, 1996. Another order extending the time to file the record until December 15, 1996, was entered October 22, 1996.

The record was received by the clerk of this court on December 11, 1996, and the clerk refused to docket the appeal because the record was not timely filed. Rule 5 of the Arkansas Rules of Appellate Procedure — Civil, made applicable to criminal cases pursuant to Rule 4 of the Arkansas Rules of Appellate Procedure — Criminal, provides that the record on appeal shall be filed with the clerk of this court within ninety days of the notice of appeal unless the trial court grants an extension. The order of extension must, however, be entered before the expiration of the ninety-day period, and, with exceptions not applicable here, in no event shall the time be extended more than seven months from the date of the entry of the judgment. As such, the record would have been due no later than December 7, 1996. Thus, the trial court was without authority to extend the time to file the record beyond December 7, 1996, seven months from the date the judgment was entered.

In support of Appellant’s motion for rule on clerk, Watkins alleges by motion, without admitting fault, that he tendered the record timely by mailing it priority mail through the United States Postal Service on December 4, 1996. Watkins attached to the motion a receipt from the United States Postal Service confirming this allegation. Watkins alleges further, by motion, that the record should have been delivered by priority mail to the clerk’s office on December 6, 1996.

We have repeatedly held that the attorney is responsible for filing the record and cannot shift that responsibility to the trial judge, to the court reporter, or to the clerk of the lower court. Lewis v. State, 295 Ark. 165, 747 S.W.2d 91 (1988) (per curiam) (citing Forrest v. State, 286 Ark. 165, 690 S.W.2d 1 (1985) (per curiam), and Christopher v. Jones, 271 Ark. 911, 611 S.W.2d 521 (1981)). Here, Watkins attempts to shift his responsibility to the United States Postal Service. Moreover, he offers no good cause to grant this motion since this transcript was not received in the clerk’s office until Thursday, December 11, 1996, four days past the Saturday deadline of December 7, 1996. See, e.g., Wallis v. State, 245 Ark. 29, 430 S.W.2d 860 (1968). Under the circumstances presented here, we will not permit the record to be filed unless Watkins assumes foil responsibility for presenting it late. Lewis, 295 Ark. 165, 747 S.W.2d 91. A statement that it was someone else’s fault or no one’s fault will not suffice. Id.

Watkins shall file within thirty days from the date of this per curiam a motion and affidavit in this case accepting foil responsibility for not timely filing the transcript. Upon such filing, the motion for rule on clerk will be treated as one for belated appeal and granted. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).


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    James Hollis GUSS v. STATE of Arkansas
    CR 96-905
    936 S.W.2d 76
    Supreme Court of Arkansas
    Opinion delivered January 27, 1997

      Jeffrey H. Kearney, for appellant.
    No response.
   Per Curiam.

Appellant James Guss, by his attorney, Jeffrey FI. Kearney, has filed a motion for reconsideration of dismissal, and for filing brief out of time.

Appellant filed a timely notice of appeal from the denial of his petition for postconviction relief pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure. On August 2, 1996, appellant’s attorney filed a motion for rule on the clerk in which he admitted that the record of the postconviction proceedings was tendered late due to a mistake on his part. On September 16, 1996, this court by Per Curiam order granted appellant’s motion for rule on the clerk and forwarded a copy of the Per Curiam order to the Committee on Professional Conduct.

Appellant’s brief was due on October 26, 1996. Appellant’s attorney obtained a seven-day extension from the Supreme Court Clerk, thereby extending the due date to November 2, 1996.

On December 23, 1996, this court dismissed Appellant’s appeal for failure to file brief. Ark. S. Ct. R. 4-5. On December 26, 1996, appellant’s attorney, Jeffrey H. Kearney, tendered appellant’s brief contemporaneously with the filing of the motion for reconsideration of dismissal, and for filing brief out of time.

Appellant’s attorney admits in his motion that the brief was tendered late due to an error on his part.

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

The motion is, therefore, granted.

Jeffrey H. Kearney is also ordered to appear before this court on the 10th day of February, 1997, at 9:00 a.m., to show cause why he should not be held in contempt of this court for his failure to file appellant’s brief in a timely manner.


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    IN THE MATTER OF Cliff M. McINTYRE, Esq., Regarding Admission to the Arkansas Bar
    96-1502
    936 S.W.2d 553
    Supreme Court of Arkansas
    Opinion delivered January 27, 1997

      Cliff M. McIntyre, pro se.
   Per Curiam.

Petitioner Cliff M. McIntyre seeks a waiver of the provisions in Rule IX(B) of the Rules Governing Admission to the Bar that requires each applicant to pass the Multistate Professional Responsibility Examination (Ethics Exam) by a score of 75% or more as a prerequisite to taking the Arkansas Bar Examination. McIntyre desires to take the February 1997 Arkansas Bar Exam and the next Ethics Exam is not given until March 1997. This means that under the existing rule, McIntyre cannot qualify to take the Arkansas Bar Exam until July 1997. McIntyre shows the court that he has been an attorney licensed to practice in the State of New Mexico since 1992. He passed the Ethics Exam and New Mexico Bar Exam in that year, but Rule IX(B) only permits transfer of a passing score for a period not exceeding three years from the date the person took the previous Ethics Exam.

Because Rule IX(B) is clear and has included passage of the Ethics Exam as a condition for eligibility to take the Arkansas Bar Exam since a per curiam order dated June 7, 1993, to be first applied to the July 1995 Arkansas Bar Exam, McIntyre’s petition is denied.

We request the Arkansas Board of Law Examiners to reexamine the reasons for requiring passage of the Ethics Exam before the Arkansas Bar Exam as opposed to passage either before or after the Arkansas Bar Exam and to advise the court accordingly. We note that Arkansas is in the minority of states that make passage of an Ethics Exam a prerequisite to taking the general bar exam.

Newbern, J., dissents and would grant the petition and amend Rule IX(B) forthwith to provide that it is immaterial whether the ethics examination precedes the bar examination of vice versa, as long as both prerequisites to membership in the Bar of Arkansas are satisfied.