author: DONALD L. Corbin, Judge.

text:
    Alvin Ray WILLIAMS v. STATE of Arkansas
    CR 95-194
    930 S.W.2d 297
    Supreme Court of Arkansas
    Opinion delivered September 9, 1996

      Ed Webb, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   DONALD L. Corbin, Judge.

Appellant, Alvin Ray Williams, appeals the judgment of the Pulaski County Circuit Court convicting him of first-degree murder and sentencing him to imprisonment for life. Jurisdiction of this appeal is properly in this court pursuant to Ark. Sup. Ct. R. l-2(a)(2). Appellant’s two points for reversal are a challenge to the sufficiency of the evidence and a constitutional challenge to our bifurcated proceedings in criminal cases. We find no merit to the arguments and affirm the judgment of conviction which was entered pursuant to a jury verdict.

I. MOTION FOR DIRECTED VERDICT

Appellant’s first point of error is the denial of his motions for directed verdict. At the close of the state’s case, appellant moved for a directed verdict on two grounds: that the evidence established appellant’s defense of justification and that the evidence was insufficient to establish his intent to purposely cause the victim’s death. After the trial court denied appellant’s motion, appellant called a single witness in his behalf. Appellant then renewed his earlier motion for directed verdict, which the trial court denied.

Appellant’s initial motion was sufficiently specific to apprise the trial court of the particular grounds for the motion as required by A.R.Cr.P. Rule 33.1. Appellant’s renewal motion was therefore likewise sufficient to preserve this point for appellate review. Key v. State, 325 Ark. 73, 923 S.W.2d 865 (1996). We observe that, although appellant’s abstract is flagrantly deficient because it does not include the motions for directed verdict and does not indicate in any manner that the motions were made, Moncrief v. State, 325 Ark. 173, 425 S.W.2d 776 (1996), the state cured this deficiency by including the motions in its supplemental abstract. See generally Ark. Sup. Ct. R. 4-2(b); see also Johnson v. State, 319 Ark. 3, 888 S.W.2d 661 (1994).

We recently stated oür standard of review for directed-verdict motions:

This court treats the denial of a motion for directed verdict as a challenge to the sufficiency of the evidence. The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict; substantial evidence must be forceful enough to compel a conclusion one way or the other beyond suspicion and conjecture. On appellate review, it is only necessary for this court to ascertain that evidence which is most favorable to appellee, and it is permissible to consider only that evidence which supports the guilty verdict.

Choate v. State, 325 Ark. 251, 254-55, 925 S.W.2d 409, 411 (1996) (quoting King v. State, 323 Ark. 671, 916 S.W.2d 732 (1996) (other citations omitted)).

Appellant admitted that he shot and killed the victim. He defended his actions on the basis that his actions were justified — that he used only such force as he reasonably believed necessary to prevent the victim from killing him. Consequently, the only issues we need determine in reviewing the evidence are whether there is substantial evidence to support a finding that appellant acted “[w]ith a purpose of causing the death of another person” as required by Ark. Code Ann. § 5-10-102(a)(2) (Repl. 1993), and whether there was substantial evidence to support a finding of justification.

A. PROOF OF PURPOSE

As applied to this case, the requisite mental state is purposely causing the death of another. Section 5-10-102(a)(2); see Walker v. State, 324 Ark. 106, 918 S.W.2d 172 (1996). “A person acts purposely with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result[.]” Ark. Code Ann. § 5-2-202(1) (Repl. 1993).

The law is well-settled that a criminal defendant’s intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances of the crime. Williams v. State, 321 Ark. 635, 906 S.W.2d 677 (1995). The intent necessary to sustain a conviction for first-degree murder may be inferred from the type of weapon used, from the manner of its use, and the nature, extent, and location of the wounds. Walker, 324 Ark. 106, 918 S.W.2d 172.

The law is also well-setded that circumstantial evidence of a culpable mental state may constitute substantial evidence to sustain a guilty verdict. Crawford v. State, 309 Ark. 54, 827 S.W.2d 134 (1992) (citing Farris v. State, 308 Ark. 561, 826 S.W.2d 241 (1992), and Davis v. State, 251 Ark. 771, 475 S.W.2d 155 (1972)). However, in order for circumstantial evidence alone to constitute substantial evidence, it must exclude every other reasonable hypothesis consistent with innocence. Key, 325 Ark. 73, 923 S.W.2d 865. Once the evidence is determined to be sufficient to go to the jury, the question of whether the circumstantial evidence excludes any other hypothesis consistent with innocence is for the jury to decide. Id.

That appellant caused the victim’s death with a single 9mm gunshot wound to the chest is not disputed. The following circumstances established by the evidence in this case were sufficient for the jury to infer that appellant acted with the purpose of causing the victim’s death. One witness had struggled with the victim prior to the victim’s death; this witness did not see a gun on the victim, but did see appellant with a gun just prior to the killing. Another witness argued with the victim prior to the murder. She testified that she did not see the victim with a gun during their argument but later saw appellant pull a gun from his pants and try to point it at the victim’s head; she also saw the gun up in the air “and it was just going ever which way.” This witness also testified that appellant initiated the altercation with the victim. Another witness, who was babysitting at the house next door to where the murder occurred, testified that she saw and heard people talking loudly in the yard; she later heard gunfire and saw one person chasing the other around a parked car; she saw the person who was doing the chasing holding a gun and heard the other person say “[pjlease don’t shoot me”; she also saw the man who had the gun leave the scene. A neighbor testified that he saw someone shooting at the victim while the victim tried to duck and dodge the bullets. The neighbor stated that the shooter would pause, look under the car to locate the victim’s feet, and then rise to fire another shot. The officer who arrested appellant found him hiding under some bushes a block from the murder scene; the officer could hear appellant breathing heavily and noticed where appellant had covered himself with leaves.

In short, after using a handgun to shoot the victim while the victim was pleading for his life and dodging and ducking bullets, appellant fled from the scene and was found to be hiding from police. From these circumstances, the jury could reasonably infer that appellant acted with the purpose of causing the victim’s death. See Williams, 321 Ark. 635, 906 S.W.2d 677; see also Crauford, 309 Ark. 54, 827 S.W.2d 134. Any conflicts and inconsistencies in the evidence were for the jury to resolve as factfinder, and not for the trial court to resolve on a directed-verdict motion. Williams, 321 Ark. 635, 906 S.W.2d 677.

B. PROOF OF JUSTIFICATION

Appellant contends that the statement he gave to the police established that his actions were justified. Appellant maintains that the evidence in this case proves that the victim was the one who initiated the confrontation; that appellant believed the victim was about to kill him; and that he and the victim began wrestling, after which appellant took the gun away from the victim and killed him in self-defense. One who asserts the defense of justification of a homicide must show not only that the person killed was using deadly physical force, but that he responded with only that force which was necessary and that he could not have avoided the killing. Ark. Code Ann. § 5-2-607 (Repl. 1993); Ricketts v. State, 292 Ark. 256, 729 S.W.2d 400 (1987). The jury was instructed accordingly by the trial court and rejected appellant’s defense. This rejection is supported by the same evidence we discussed in affirming the jury’s finding that appellant acted purposefully in this case — appellant was the only one seen with the gun, the victim pleaded for his life, appellant continued to shoot at the victim as the victim dodged bullets, and appellant fled the scene.

Because, when we review the denial of a motion for directed verdict, we need only consider the evidence that supports the jury’s verdict without weighing it against any evidence favorable to the accused, we conclude there is substantial evidence to support the jury’s finding of appellant’s guilt. See Williams, 321 Ark. 635, 906 S.W.2d 677. Accordingly, the trial court did not err in denying the motion for directed verdict.

II. CONSTITUTIONAL CHALLENGE TO ACT 535 OF 1993

Appellant filed a pretrial motion challenging as unconstitutional on both state and federal grounds Act 535 of 1993, codified at Arkansas Code Annotated §§ 16-97-101 to -104 (Supp. 1995), which provides for bifurcated proceedings of the determinations of guilt and punishment in felony cases. The trial court denied this motion in an omnibus hearing. Appellant’s motion included nine arguments, all of which are argued on appeal and none of which has merit. Accordingly, we conclude the trial court did not err in denying appellant’s motion.

We do not reach the merits of many of these arguments because they are all essentially one-sentence assertions with no citation to supporting authority and without explanation as to how the cited portions of the constitutions have been violated. We do not consider an argument, even a constitutional one, when the appellant presents no citation to authority or convincing argument in its support, and it is not apparent without further research that the argument is well-taken. Roberts v. State, 324 Ark. 68, 919 S.W.2d 192 (1996). This rule is consistent with the well-established principle that statutes are presumed to be constitutional and the burden of proving otherwise rests with the party challenging the statute. Id. When an appellant does not explain how a particular statute offends his constitutional rights, we do not consider his deficient contentions. Id.

A. ABSENCE OF APPELLATE REVIEW OF SENTENCING

Appellant contends that the Act violates the Eighth Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment, and Article 2, Section 9 of the Arkansas Constitution because it does not provide for appellate review of the sentence ultimately imposed. Appellant argues that the absence of appellate review of a sentence contravenes the ban on cruel and unusual punishment.

Appellant’s argument is entirely without merit as it is based upon a false premise. The Act does not prohibit or interfere with our practice of reviewing sentencing proceedings when sentencing issues are properly presented. Indeed, as the state points out, we have recently reversed a case for evidential errors that occurred in the sentencing phase. Rush v. State, 324 Ark. 147, 919 S.W.2d 933 (1996). As for review of the ultimately imposed sentence, we do not usually review the length of a sentence that is within legal limits except in limited circumstances not relevant here. Henderson v. State, 322 Ark. 402, 910 S.W.2d 656 (1995). Finally, we note that appellant makes no contention whatsoever that his sentence is erroneous or that error occurred in the sentencing phase of his trial.

B. SUNSET PROVISION

When enacted in 1993, Act 565 contained a “sunset” provision, whereby the Act would expire on June 30, 1997. Appellant argues that the sunset provision violates the due-process and equal-protection clauses of the United States and Arkansas Constitutions. This argument is rendered moot because the sunset provision was repealed by Act 892 of 1995. This court does not address moot arguments. Johnson, 319 Ark. 3, 888 S.W.2d 661.

C. VOID FOR VAGUENESS

Citing the Fourteenth Amendment to the United States Constitution and Article 2, Sections 3 and 18 of the Arkansas Constitution, and without any explanation, appellant argues that the bifurcation process is void for vagueness, fails to give adequate notice of the proscribed conduct, and denies due process and equal protection of the laws. Appellant argues further that criminal laws are to be strictly construed.

This argument is likewise wholly without merit. First, the Act does not proscribe any conduct at all; rather, it provides for remedial criminal procedures. Generally, we construe procedural laws liberally to achieve their remedial objectives. Second, appellant fails to articulate any particular argument about how the Act is vague or violates his due-process and equal-protection rights. We do not address such deficient contentions, even though they are constitutional ones. Roberts, 324 Ark. 68, 919 S.W.2d 192.

D. EX POST FACTO

Appellant contends the Act violates the Ex Post Facto Clauses of the United States and Arkansas Constitutions because it applies to criminal acts that occurred before its effective date. We have previously considered this argument in the federal context and concluded it was entirely without merit. Williams v. State, 318 Ark. 846, 887 S.W.2d 530 (1994). Because our state constitution’s ex post facto clause is essentially identical to the federal clause, for the same reasoning expressed in Williams, 318 Ark. 846, 887 S.W.2d 530, we hold the Act does not violate the state ex post facto clause.

E. MODEL INSTRUCTIONS

Appellant argues his state and federal due-process and equal-protection rights were violated because the Act’s bifurcation process was made applicable before the Arkansas Model Jury Instructions for Criminal Cases was amended. Appellant does not cite any authority for this contention, nor does he make a convincing argument supporting it. Accordingly, we do not address this deficient contention. Roberts, 324 Ark. 68, 919 S.W.2d 192.

F. GUILTY PLEA

Appellant argues that the Act gives the prosecutor the ultimate decision as to whether a defendant can plead guilty and therefore violates the state and federal due-process and equal-protection clauses. This argument is based upon a false premise. It is the trial court that decides whether it will accept the defendant’s guilty plea in accordance with A.R.Cr.P. Rules 24.4 to 24.6. Moreover, a defendant does not have an absolute right to plead guilty. Numan v. State, 291 Ark. 22, 722 S.W.2d 276 (1987).

G. VICTIM-IMPACT EVIDENCE

Appellant argues that the Act is unconstitutional because it allows the admission of generic victim-impact evidence in violation of Payne v. Tennessee, 501 U.S. 808 (1991). We have recently discussed Payne and upheld our victim-impact statute applicable in capital cases, Ark. Code Ann. § 5-4-602(4) (Repl. 1993). Kemp v. State, 324 Ark. 178, 919 S.W.2d 943 (1996). However, appellant cites no authority, nor makes any argument that Payne applies to non-capital sentencing procedures. Accordingly, we do not address this argument. Roberts, 324 Ark. 68, 919 S.W.2d 192.

H. VOIR DIRE

Appellant argues that the Act does not allow for voir dire of potential jurors concerning whether they can consider the foil range of penalties upon conviction. Appellant contends this violates his state and federal right to a fair and impartial jury. Appellant’s argument is, however, based on an entirely false premise. The Act does not purport to restrict voir dire examination of prospective jurors.

I MISDEMEANOR CONVICTIONS

Appellant contends that the Act conflicts with the Habitual Offender Statute, Ark. Code Ann. § 5-4-501 (Supp. 1993), because the Act allows for the admission of misdemeanor convictions during the sentencing phase while the Habitual Offender Statute does not allow consideration of misdemeanors for enhanced sentencing purposes. Appellant argues that this alleged conflict renders the Act unconstitutional as violative of the state and federal due-process clauses. Appellant does not cite any authority for this contention, nor does he make a convincing argument supporting it. Accordingly, we do not address this deficient contention. Roberts, 324 Ark. 68, 919 S.W.2d 192.

In accordance with Ark. Sup. Ct. R. 4-3 (h), the record has been reviewed for adverse rulings objected to by appellant but not argued on appeal, and no such errors were found. For the aforementioned reasons, the judgment of conviction is affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Marilyn FLORENCE, Age 9; Vernice Price, Age 8; and Robert Matthews, Age 6, By Their Mother Elsie Matthews and Elsie Matthews, Individually v. Captoria TAYLOR
    95-1170
    926 S.W.2d 666
    Supreme Court of Arkansas
    Opinion delivered September 9, 1996

      Heather Patrice Hogrobrooks, for appellants.
    No response.
   Per Curiam.

The request of Fleather Patrice Hogrobrooks, attorney for appellants, for oral argument in this matter was received by the Clerk of the Supreme Court on February 8, 1996. Oral argument was scheduled for September 3, 1996, at 9:00 a.m. On July 26, 1996, Ms. Hogrobrooks moved for a continuance of the oral argument, and the motion was denied by this court on August 5, 1996. Prior to the scheduled oral argument, there is no record in the Clerk’s office that she had any additional communication with that office concerning her appearance. Ms. Hogrobrooks did not appear at oral argument on September 3, 1996.

Ms. Hogrobrooks is directed to appear before this court on September 23, 1996, at 9:00 a.m. and show cause why she should not be held in contempt of this court for failure to appear for oral argument in this matter at the scheduled time and date.

Order issued.


text:
    Rocky W. ARNOLD v. STATE of Arkansas
    CR 96-885
    926 S.W.2d 665
    Supreme Court of Arkansas
    Opinion delivered September 9, 1996

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

Appellant, Rocky W Arnold, by his attorney, Keith Watkins, has filed a motion for a rule on the clerk. Mr. Watkins admits by motion that the record was tendered late 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. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam). The motion is therefore granted.

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


author: ROBERT L. Brown, Justice.

text:
    Marilyn FLORENCE, Age 9; Vernice Price, Age 8; and Robert Matthews, Age 6, By Their Mother Elsie Matthews and Elsie Matthews, Individually v. Captoria TAYLOR
    95-1170
    928 S.W.2d 330
    Supreme Court of Arkansas
    Opinion delivered September 9, 1996

      Heather Patrice Hogrobrooks, for appellants.

      Barber, McCaskill, Amsler, Jones & Hale, PA., by: Scott M. Strauss, for appellee.
   ROBERT L. Brown, Justice.

This case arises from a dismissal of the complaint of appellants Elsie Matthews on behalf of Marilyn Florence, age 9; Vernice Price, age 8; and Robert Matthews, age 6; and Elsie Matthews, individually. The matter was dismissed with prejudice by the trial judge on motion of appellee Captoria Taylor for the “repeated failure” of appellants and their counsel to attend trial. Appellants now appeal and assert that the dismissal denied them their constitutional rights to an impartial tribunal as well as to notice, opportunity to be heard, and access to the courts. They further contend that the dismissal constituted an abuse of the trial judge’s power. We disagree and affirm the dismissal.

The pertinent facts are these. The matter was set to be tried before a jury in Lee County Circuit Court on August 30, 1995. At 9:10 a.m. on August 29, 1995, appellants filed a motion for a continuance, showing that a necessary witness was unavailable for trial, that a nephew and cousin of the appellants had drowned two days before, that appellants’ counsel had three “criminal cause numbers” that were set for trial in St. Francis County on August 30, 1995, and that appellants’ counsel had briefs due in this court on August 31, 1995. The motion further alleged that appellee’s counsel had been informed of the need for a continuance on August 28, 1995.

Neither appellant Elsie Matthews nor her attorney, Heather Patrice Hogrobrooks, appeared for jury trial at 9:00 a.m. on August 30, 1995. At 9:13 a.m. on that date, a hearing was held. The trial judge stated that he had been faxed a copy of the appellants’ motion for continuance mid-morning on August 29, 1995, and that he had communicated with counsel for appellee who objected to the motion. The judge stated that he told appellee’s counsel he would not entertain the motion without an opportunity for counsel to be heard. The judge stated he next telephoned counsel for appellants and informed her that counsel for appellee objected to the motion and that he would not consider the motion “without both parties either being before the court on a conference call on the telephone or in person.” The judge added that he heard nothing further from appellants’ counsel.

Counsel for appellee then advised the trial judge that the matter had been set for jury trial three times. The first time, appellants and their counsel failed to appear on the day of the trial, and the trial judge continued the matter on his own motion. The record reflects that this occurred on September 13, 1994. A few months later, appellants’ counsel moved for a continuance two days before the jury trial which had been set. That motion was granted. Now, appellee’s counsel maintained, appellants and their counsel had again failed to appear, while appellee had witnesses en route and family present and was prepared to go to trial. Appellee’s counsel further noted that the circuit clerk’s office had been erroneously advised by Ms. Hogrobrooks’s secretary on August 29, 1995, that a jury panel should not be called due to a continuance. Appellee’s counsel moved to dismiss the matter.

The trial judge refused to grant the motion for continuance on the basis that it had never been presented for consideration and granted the appellee’s motion to dismiss. The judge added that he had telephoned the trial judge in Forrest City and determined from him that Ms. Hogrobrooks did not have a case scheduled for trial in that city on August 30, 1995. Ms. Hogrobrooks disputes that fact and filed an Order Certifying Court Attendance, which verified that she had three of her cases set for trial in Forrest City on that date and that she appeared in order to answer those cause numbers.

The appellants argue as their first point on appeal that they were denied their constitutional rights to due process and equal protection because (1) the trial judge did not inform them that their trial was still scheduled for August 30, 1995; and (2) the trial judge had decided before the reported hearing that he would dismiss the matter with prejudice. Neither argument has merit.

The trial judge specifically stated for the record that he had advised appellants’ counsel that he would not consider the continuance motion without both counsel appearing in person or by conference call. This did not occur. Further, this court has made it very clear that it is incumbent upon the movant to obtain a ruling on a motion. Carpetland of Northwest Arkansas, Inc. v. Howard, 304 Ark. 420, 803 S.W.2d 512 (1991). That was not done in this case. In short, there was nothing to suggest to appellants or their counsel that the matter would not be tried on August 30, 1995. Secondly, the record reflects, as does the Order of Dismissal, that appellee’s counsel made the motion to dismiss the cause. Nothing in the record before this court indicates that the trial judge had predetermined the motion before the reported hearing. We, of course, are limited in our review to the record before this court. Edwards v. State, 321 Ark. 610, 906 S.W.2d 310 (1995).

For their second issue, appellants argue lack of notice of the possibility of dismissal as well as an impingement of their opportunity to be heard on that issue and their access to the courts. This argument also is meritless. To be sure, a cornerstone of our legal system is that a person not lose his or her life, liberty, or property without notice and an opportunity to be heard. Greene v. Lindsey, 456 U.S. 444 (1982). But it is basic that the mere filing of a motion does not continue a jury trial, and the trial judge expressly conveyed this point to counsel for the appellants the day before the trial. Counsel simply failed to appear at trial or to obtain the necessary continuance order and, thus, should have known that dismissal might well be a natural consequence of her actions.

The United States Supreme Court has held that failure to appear is a ground for dismissal even though notice of dismissal as a possible sanction was not given to counsel. Link v. Wabash R.R. Co., 370 U.S. 626 (1962). In Link, the district court entered an order of dismissal when the petitioner failed to attend a pretrial conference which he knew about but which, he contended, he was too busy to attend. The Court, in upholding the district court’s dismissal, held that specific notice of possible dismissal and a hearing regarding the same were not required by due process:

Nor does the absence of notice as to the possibility of dismissal or the failure to hold an adversary hearing necessarily render such a dismissal void. It is true, of course, that “the fundamental requirement of due process is an opportunity to be heard upon such notice and proceedings as are adequate to safeguard the right for which the constitutional protection is invoked.” Anderson National Bank v. Luckett, 321 U.S. 233, 246. But this does not mean that every order entered without notice and a preliminary adversary hearing offends due process. The adequacy of notice and hearing respecting proceedings that may affect a party’s rights turns, to a considerable extent, on the knowledge which the circumstances show such party may be taken to have of the consequences of his own conduct. The circumstances here were such as to dispense with the necessity for advance notice and hearing.

370 U.S. at 632. This court has also recognized the inherent power of the trial courts to dismiss a case for failure to pursue it with diligence. See, e.g., Gordon v. Wellman, 265 Ark. 914, 582 S.W.2d 22 (1979); Chandler v. Furlow, 209 Ark. 852, 192 S.W.2d 764 (1946). The appellants, nevertheless, rely on Southwestern Water Co. v. Merritt, 224 Ark. 499, 275 S.W.2d 18 (1955), where this court reversed a chancellor’s dismissal of a case due to delay in prosecution. That case, though, did not involve two unexcused failures by counsel and a party to attend a jury trial, and, accordingly, it is simply inapposite to the case at hand.

The appellants also point us to Cagle v. Fennel, 297 Ark. 353, 761 S.W.2d 926 (1988), where we affirmed a dismissal of a matter for counsel’s failure to appear at deposition twice and to pay the attendant costs. Appellants maintain that in Cagle the trial judge pointedly warned counsel of the potential for dismissal, which did not occur in the instant case. We do not read Cagle as requiring such a warning prefatory to dismissal in all cases, though that circumstance did exist under the Cagle facts. Rather, we are persuaded by the Link rationale quoted above that under certain circumstances, notice, or indeed a warning of dismissal, is not required.

For their final point, the appellants urge that the trial judge abused his inherent power by dismissing the case. We disagree. A trial judge clearly has the inherent power to dismiss a case for failure to prosecute. Gordon v. Wellman, supra; Chandler v. Furlow, supra; Thompson v. Foote, 199 Ark. 474, 134 S.W.2d 11 (1939). This was the third time that this cause had been set for jury trial and the second time that the appellants and their counsel had failed to show up on the day of trial. The expense and work involved in trial preparation by defense counsel and the Lee County Circuit Clerk’s office on those two occasions, no doubt, played a part in the trial judge’s decision to dismiss, as it should have. But in addition to that, the trial judges of this state have an obligation to assure that their courts are conducted in an orderly and correct manner and that their courts are treated with respect and dignity. There is no question that two unexcused failures to appear for trial flies in the face of the respect due our judicial system.

The appellants posit that the dismissal penalizes them for their attorney’s actions and that perhaps sanctions against their counsel is a more appropriate course of action as an alternative to dismissal. We are aware of cases that hold that appropriate action against a neglectful attorney was the better course to follow for an appearance failure as opposed to the drastic step of dismissal. See, e.g., Jackson v. Washington Monthly Co., 569 F.2d 119 (D.C. Cir. 1977); Moore v. St. Louis Music Supply Co., 539 F.2d 1191 (8th Cir. 1976). However, where two unexcused failures to attend a jury trial have occurred, this evidences either a course of extended neglect by counsel or willful disregard of court procedures.

Bearing the two failures in mind, we are drawn to the language of the Supreme Court in Link v. Wabash R.R. Co., supra:

There is certainly no merit to the contention that dismissal of petitioner’s claim because of his counsel’s unexcused conduct imposes an unjust penalty on the client. Petitioner voluntarily chose this attorney as his representative in the action, and he cannot now avoid the consequences of the acts or omissions of this freely selected agent.

370 U.S. at 633-634. See also Chalkley v. Henley, 178 Ark. 635, 12 S.W.2d 18 (1928). We hold that no abuse of discretion occurred.

Affirmed.


author: Per CURIAM.

text:
    George JONES, Jr. v. STATE of Arkansas
    CR 96-922
    926 S.W.2d 665
    Supreme Court of Arkansas
    Opinion delivered September 9, 1996

      Davis H. Loftin, for appellant.
    No response.
   Per CURIAM.

Appellant George Jones, Jr., by his attorney, Davis H. Loftin, has filed a motion for rule on the clerk. We treat this as a motion for a belated appeal. Mr. Loftin states by motion that he miscalculated the number of days in which to file a notice of appeal and, as a result, filed the notice one day late.

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.

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


author: PER CURIAM.

text:
    Michael LEE v. STATE of Arkansas
    CR 96-869
    926 S.W.2d 665
    Supreme Court of Arkansas
    Opinion delivered September 9, 1996

      James Dunham, for appellant.
    No response.
   PER CURIAM.

Petitioner, Michael Lee, by his attorney, James Dunham, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to a mistake on his part.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981); In Re: Belated Appeals in Criminal Cases, 295 Ark. 964 (1979) (per curiam).

A copy of this per curiam will be forwarded to the Committee on Professional Conduct. In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.


text:
    Lindell TANNER v. STATE of Arkansas
    CR 96-965
    926 S.W.2d 666
    Supreme Court of Arkansas
    Opinion delivered September 9, 1996

      Richard R. West, for appellant.
    No response.
   Per CURIAM.

Appellant, Lindell Tanner, by his attorney, has filed for a rule on the clerk. His attorney, Richard R. West, admits that the failure to file the record in time was 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. See our Per Curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Edward M. OWENS v. Robert D. MAY, Jr., Janice Kimberly May, Louis G. Peralta, and Janice A. Peralta
    96-720
    926 S.W.2d 850
    Supreme Court of Arkansas
    Opinion delivered September 9, 1996

      Jeff Rosenzweig, for appellant.

      Joe Perry, for appellee Robert D. May, Jr.

      Charles Allen and Frank J. Wills, III, for appellee Janice Kimberly May.

      Charles Banks, for appellees Louis G. Peralta and Janice A. Peralta.
   PER CURIAM.

On June 21, 1996, Edward M. Owens filed a petition for writ of certiorari, requesting this court to order the court reporter to complete the appeal record herein by lodging the sealed records and transcripts so as to provide (i) a clerical basis to receive the part of the record sealed below and (ii) a schedule for the court reporters to complete their transcripts. Those sealed transcripts were received by the supreme court clerk on June 24, 1996. This court denied Owens’s petition on July 8, 1996, without comment.

On July 9, 1996, Owens moved for reconsideration and clarification of this court’s denial of his petition for writ of certiorari, which we now deny; at the same time, we add that the court’s denial on July . 8 was entered because Owens never alleged any omissions or errors in the record, nor did he allege the sealed transcripts would not be timely filed. In fact, those transcripts were timely filed prior to this court’s decision on July 8, 1996, denying Owens’s petition for writ of certiorari.

This court points out that its ruling is limited to the issue ruled upon by the chancellor, which appears to be the chancellor’s denial of Owens’s request to intervene. No ruling appears in the record denying Owens’s right to open evidence sealed during the custody proceeding. In sum, this court, by denying Owens’s petition for writ of certiorari, does not decide whether the sealed transcripts lodged by the chancellor and court reporter should be opened. See Cupples Farms Partnership v. Forrest City Prod. Credit Ass’n, 310 Ark. 597, 839 S.W.2d 187 (1992); Cf. Stephens v. Stephens, 306 Ark. 59, 810 S.W.2d 946 (1991).


author: BRADLEY D. Jesson, Chief Justice.

text:
    David FERRELL v. STATE of Arkansas
    CR 95-1243
    929 S.W.2d 697
    Supreme Court of Arkansas
    Opinion delivered September 16, 1996

      Daniel D. Becker, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   BRADLEY D. Jesson, Chief Justice.

David Ferrell was convicted of capital murder and sentenced to life without parole. He raises seven issues on appeal, none of which have merit. We therefore affirm his conviction.

The issue that must be addressed prior to all others is Ferrell’s claim that the evidence was not sufficient to support his conviction. See Passley v. State, 323 Ark. 301, 915 S.W.2d 248 (1996). This requires a detailed recitation of the facts presented at trial. On January 14, 1994, Paul Loyd, a resident of Hot Springs, was reported missing. He was last seen on his way to meet with Ferrell (his roommate), and a man named Wayne Hortman. According to Loyd’s brother, who filed the missing person report, Loyd was meeting with Ferrell and Hortman for the purpose of trading his motorcycle to them in exchange for drugs.

The Hot Springs Police Department opened a file on Loyd’s disappearance but there was no significant activity on the case for a number of weeks. However, in March of 1994, Wayne Hortman was being questioned by the police on a matter unrelated to the Loyd case. Hortman was often in trouble with the law and routinely provided information in exchange for lenient treatment. On this occasion, he told the officers that he was visiting Ferrell about two weeks after Loyd’s disappearance when Ferrell handed him an SKS semi-automatic rifle and told him to “do something with it.” Hortman took the gun home and put it in his garage. Some weeks later, Ferrell noticed the gun in Hortman’s garage and became angry that Hortman had not gotten rid of it. Ferrell tried to destroy the gun by slamming it against a tree. When that proved unsuccessful, he went with Hortman to the Highway 270 bridge over Lake Hamilton and threw the gun into the water. During that same time period, the Bureau of Alcohol, Tobacco and Firearms was investigating Ferrell on a matter unconnected with Loyd’s disappearance. In the course of the investigation, Agent Glen Cook discovered that, in March of 1993, Ferrell had purchased an SKS rifle bearing the serial number 2401610.

Based upon the foregoing information, divers searched Lake Hamilton in hopes of finding the gun. In April of 1994, an SKS rifle with serial number 2401610 was recovered from the lake. A few weeks later, on June 1, 1994, a couple walking in a wooded area of Hot Spring County came across a piece of tape attached to a tree. Written on the tape were the words, “pack all rats together.” A short time thereafter, they saw what appeared to be a skeleton with bits of shredded clothing around it. In fact, it was a partially decomposed human body. Investigators were called to the scene and recovered several items of clothing, including a belt with the name “Paul” on the back. They also recovered two bullet fragments and four shell casings. The medical examiner, through the use of dental records, identified the remains as those of Paul Loyd.

Loyd’s death was treated as a homicide and Ferrell and Hortman were charged with capital murder. At trial, the State presented, in addition to the above mentioned evidence, the testimony of five witnesses who said that Ferrell had confessed to shooting Loyd. Other witnesses testified that Ferrell strongly suspected Loyd of being an undercover narcotics officer. Medical examiner Dr. Charles Kokes testified that, due to the decomposition of the body, he could not conclusively determine the cause of death. However, he observed that nothing about Loyd’s wounds was inconsistent with death by gunshot. He further stated that three small holes in the back of the jacket and shirt Loyd had been wearing were consistent with bullet entry. An expert from the State Crime Lab found traces of lead around the holes in the jacket and shirt which indicated bullet entry. Firearms expert Joseph Mason testified that he could conclusively match three of the shell casings found at the scene to Ferrell’s SKS rifle. He was unable to make a conclusive match of the bullet fragments, but he said that the bullets came from the same type of weapon as the SKS.

At the close of the State’s case, and again at the close of all evidence, Ferrell moved for a directed verdict on the grounds that the proof was insufficient to establish that a homicide occurred and insufficient to connect him to the crime. A directed verdict is a challenge to the sufficiency of the evidence. Jacobs v. State, 317 Ark. 454, 878 S.W.2d 734 (1994). On appeal, our task is to determine whether the verdict is supported by substantial evidence. Substantial evidence is that which is forceful enough to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. Drummond v. State, 320 Ark. 385, 897 S.W.2d 553 (1995). We review the evidence in a light most favorable to the appellee and consider only that evidence which supports the verdict. Williams v. State, 321 Ark. 635, 906 S.W.2d 677 (1995).

Ferrell argues that the case against him was based largely on his confessions to third persons and that these confessions were not corroborated by evidence that a homicide occurred. Ferrell is referring to the corpus delicti rule which requires the State to prove, independent of a confession, the following two elements: 1) an injury or harm constituting the crime, and 2) that the injury or harm was caused by someone’s criminal activity. Hart v. State, 301 Ark. 200, 783 S.W.2d 40 (1990). See also Ark. Code Ann. § 16-89-111(d) (1987). In a murder case, this means that the State must prove the deceased came to his death at the hands of another person. Weaver v. State, 324 Ark. 290, 920 S.W.2d 491 (1996). There is substantial evidence in this case, independent of Ferrell’s confessions, that Loyd met his death through an act of homicide. The three holes in Loyd’s shirt and jacket consistent with bullet entry; the lead traces around the holes; the bullet fragments and shell casings found at the scene; the discovery of Ferrell’s gun in Lake Hamilton; the matching of the shell casings with Ferrell’s gun; and the opinion of the medical examiner, all point to death by gunshot. We hold that the State has sustained its burden of proof.

We turn now to Ferrell’s allegations of error during the voir dire process. First, he argues that the trial judge should have granted his motion to conduct individual sequestered voir dire. The extent and scope of voir dire is left to the sound discretion of the trial judge and the trial judge’s ruling will not be disturbed on appeal, absent an abuse of discretion. Henry v. State, 309 Ark. 1, 828 S.W.2d 346 (1992). At trial, Ferrell based his motion on a fear that the panel would be tainted by hearing his questions to other venirepersons regarding their attitudes toward the death penalty. However, he does not make this argument on appeal, and for good reason. He did not receive the death penalty, so the basis for that argument is moot. Instead, he claims prejudice because a potential juror became emotionally upset during the voir dire process. We decline to address this argument because Ferrell did not present it to the trial court as a basis for his motion. A party cannot change his argument on appeal. Even in a case in which a sentence of life without parole has been imposed, the appellant is bound by the scope of the argument he made at the trial level. Pike v. State, 323 Ark. 56, 912 S.W.2d 431 (1996).

Ferrell’s second claim that error occurred during voir dire concerns the trial judge’s failure to excuse four jurors for cause. We will not address his argument as it pertains to venirepersons Bultena, Effid, and Passette. Those potential jurors were excused by Ferrell through the use of peremptory challenges. The loss of peremptory challenges cannot be reviewed on appeal. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). The only claim available to Ferrell concerns venirewoman Puckett, who actually sat on the jury after she was challenged for cause. See Kemp v. State, 324 Ark. 178, 919 S.W.2d 943 (1996). During voir dire, Ms. Puckett was questioned by the defense regarding her views on the death penalty. Her answers were somewhat inconsistent and, in an attempt to pin her down, counsel’s questions became rather pointed. Ms. Puckett became upset and began to cry. Ferrell moved to strike her for cause. The trial judge questioned Ms. Puckett regarding the matter and she explained that she was not angry but “didn’t want to be talked to like that.” The motion to strike was denied, with the judge finding that the voir dire questions were confusing to Ms. Puckett and that she was an intelligent juror who had served well in the past.

A trial court’s refusal to strike a juror for cause will not be reversed absent an abuse of discretion. Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995). A juror is presumed unbiased and qualified and it is the appellant’s burden to prove otherwise. Kemp v. State, supra. The sole basis upon which Ferrell challenged Ms. Puckett was the fact that she became emotionally upset during voir dire. A reading of the record shows that Ms. Puckett was not hysterical or angry. The trial judge, who was in the best position to observe her demeanor, found that she was simply confused by the questioning. Under these circumstances we find no abuse of discretion in allowing Ms. Puckett to sit on the jury.

The next argument we address concerns the manner in which Ferrell was charged in the information. The State alleged that Ferrell had committed capital murder by either of two alternative means: 1) in the course of and in furtherance of a robbery, and 2) with premeditation and deliberation. Prior to trial, Ferrell asked the court to require the State to elect between the two methods. His argument was that he would be forced to develop a “two-pronged” defense. On appeal, his argument has changed. He now claims that there was insufficient evidence to support the theory that the murder occurred during the course of a robbery. Once again, we decline to address an argument which was not made to the trial court. See Pike v. State, supra. The record does not reveal that Ferrell presented this argument to the court as a basis for his motion, nor did he move to direct a verdict on that aspect of capital murder, nor did he object to the jury instruction which allowed the jury to consider that theory.

The remaining issues involve evidentiary rulings by the court. Ferrell objected on the ground of hearsay to the medical examiner’s use of dental records to identify Loyd’s body. The medical examiner explained that use of such records was a common and medically accepted way of identifying human remains. The trial judge allowed the evidence. We do not reverse a trial judge’s ruling on a hearsay question absent an abuse of discretion, Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1995), and we find no abuse of discretion here. Facts or data relied upon by an expert need not be admissible in evidence if they are of a type reasonably relied on by experts in the particular field. See A.R.E. Rule 703. In Scott v. State, 318 Ark. 747, 888 S.W.2d 628 (1994), a medical examiner relied on a neurosurgeon’s report in forming his opinion. The appellant made a hearsay objection. We held that, while a jury may choose to give less weight to an expert’s opinion formed in reliance on outside data, the expert’s opinion is not rendered inadmissible by reliance on such data.

Next, Ferrell argues that the trial court should have granted a continuarlce when, on the fifth day of trial, Wayne Hortman unexpectedly took the stand as a State’s witness. The day before, the State had said that Hortman would assert his rights under the Fifth Amendment if he was called to testify. However, the State subsequently entered into a plea bargain with Hortman, reducing the charges against him to hindering apprehension. In exchange, Hortman offered his testimony against Ferrell.

It is the movant’s burden to show good cause for a continuance. Verdict v. State, 315 Ark. 436, 868 S.W.2d 443 (1993). A trial court’s denial of a continuance will not be overturned absent an abuse of discretion. Oliver v. State, 312 Ark. 466, 851 S.W.2d 415 (1993). We find no abuse of discretion here. Hortman was on the State’s witness fist and Ferrell had been provided with a copy of Hortman’s previous statements. Ferrell should have been prepared for the possibility that Hortman would testify. In any event, Ferrell was able to conduct an effective cross-examination of Hortman, impugning his credibility with the fact that he had plea bargained in exchange for his testimony, that he had numerous prior convictions, that he had a history as a drug addict, and that there were inconsistencies in his previous statements. During the cross-examination, the court allowed a fifteen-minute recess for additional preparation. Under the circumstances, Ferrell simply cannot show that he was prejudiced by the court’s ruling. He does not say, with any degree of specificity, what he would have done differently had a continuance been granted. See Goins v. State, 318 Ark. 689, 890 S.W.2d 602 (1995).

Finally, Ferrell claims that there were two instances during trial in which the prosecutor made an improper comment on his right to remain silent. During voir dire, the State was posing general questions to the panel in an attempt to explain trial procedure. The following statement was made:

After opening statements, the State, because it has the burden of proof, is required to proceed with its case first. The state will call its witnesses, put on its evidence, and at the close of all evidence on behalf of the state, the defense may or may not call witnesses.

Ferrell objected to the statement that the defense may or may not call witnesses on the ground that it was “improper.” He asked for a mistrial, which the trial judge denied. A mistrial is a drastic remedy that should be resorted to only when there has been an error so prejudicial that justice cannot be served by continuing the trial or where any possible prejudice cannot be removed by admonishing the jury or some other curative relief. Wilkins v. State, 324 Ark. 60, 918 S.W.2d 702 (1996). The prosecutor’s comment in this instance does not merit a mistrial. It is not an attempt to impeach Ferrell by reference to his post-arrest silence, as prohibited by Doyle v. Ohio, 426 U.S. 610 (1976). The same can be said for the prosecutor’s remark during opening statement that Ferrell “talked from time to time with various law enforcement officers and always had a different story. . . .”

Ferrell also contends that a State’s witness made a comment which warranted a mistrial. During ATF Agent Glen Cook’s testimony, he was discussing a statement Ferrell had given him. The following took place:

Q. During your interview with Mr. Ferrell, did his expressions change or did he make any expressions to you during any portion of the statement?
A. At the conclusion of the interview, which is this last paragraph, when he stated that when he returned home, Loyd was gone, he started smiling.
Q. Had he been smiling at any time prior to that during the interview?
A. One other incident when — where he refused to make a statement —

At that point, Ferrell asked for a mistrial, which the trial judge denied. Even if Cook’s comment is construed as a reference to Ferrell’s post-arrest silence, the reference was inadvertently elicited while Cook was attempting to explain Ferrell’s demeanor, and the prosecution did not dwell on the reference. Under such circumstances, we will not reverse a trial court’s decision to deny a mistrial. Dansby v. State, 319 Ark. 506, 893 S.W.2d 331 (1995); Tarkington v. State, 313 Ark. 399, 855 S.W.2d 306 (1993).

In accordance with Arkansas Supreme Court Rule 4-3 (h), the record of the trial has been examined for rulings adverse to the defendant on objections, motions, and requests by either party, and we find no reversible error.

Affirmed.


author: BRADLEY D. JESSON, Chief Justice.

text:
    Reginald REECE v. STATE of Arkansas
    CR 96-81
    928 S.W.2d 334
    Supreme Court of Arkansas
    Opinion delivered September 16, 1996

      Keil & Goodson, by: John C. Goodson, for appellant.

      Winston Bryant, Att’y Gen., by; Kent G. Holt, Asst. Att’y Gen., for appellee.
   BRADLEY D. JESSON, Chief Justice.

The appellant, Reginald Reece, was convicted of robbery and sentenced as an habitual offender to forty years’ imprisonment. He raises two points on appeal, neither of which has merit. We affirm the trial court.

The State adduced the following proof at trial. Ramona Johnson, a security guard at the Wal-Mart store on State Line Road in Texarkana, followed the appellant into the store when it opened on December 10, 1994. She recognized the appellant because she had caught him shoplifting cigarettes earlier in July and had banned him from the premises.

Once inside, Johnson followed appellant and observed him stuff two cartons of Marlboro cigarettes down his pants. When appellant passed the checkout counter and attempted to walk out the door, Johnson stopped and confronted him. Initially, appellant denied having any cigarettes on his person, but later admitted to having them, explaining that he had brought the cartons from home. Johnson then took appellant’s arm and escorted him to the service desk. After appellant pushed Johnson in the chest, other Wal-Mart employees gathered and ushered him to a back room pursuant to the store’s customary practice. Appellant cursed and fought with them along the way, grabbing one employee’s necktie. Once in the back room, the appellant challenged one to a fight. The employees held appellant until officers arrived. In his statement to police, appellant admitted that he went into the store with the intention of stealing the cigarettes, but denied using any force during the incident.

Appellant first argues that his sentence of forty years’ imprisonment under the facts in his case constitutes cruel and unusual punishment under the Eighth Amendment to the United States Constitution. We cannot reach this issue because appellant made no objection at the time his sentence was imposed. See Fellows v. State, 309 Ark. 545, 832 S.W.2d 847 (1992). We have repeatedly held that, where the record reflects a total absence of any objections after the jury’s findings and sentencing are read by the court, we will not consider issues of such nature raised for the first time on appeal. Id.; Williams v. State, 303 Ark. 193, 794 S.W.2d 618 (1990); Edwards v. State, 300 Ark. 4, 775 S.W.2d 900 (1989); Neal v. State, 298 Ark. 565, 769 S.W.2d 414 (1989); Withers v. State, 308 Ark. 507, 825 S.W.2d 819 (1992). While appellant did file a motion for new trial, he did not raise this constitutional argument in his motion. Even constitutional arguments not raised before the trial court will not be considered by this court on appeal. Moore v. State, 323 Ark. 529, 915 S.W.2d 284 (1996). Appellant’s second allegation of error is that the trial court erred in proceeding with his trial when he was absent from the courtroom. On the first day of appellant’s jury trial, both sides announced they were ready to proceed, and a jury was selected and impaneled. On the second day of trial, appellant, who was on bail, did not appear. His attorney stated for the record that appellant was aware that he was to reappear at 9:00 a.m. When the attorney requested a continuance, the trial judge inquired whether he could demonstrate that appellant would likely appear within some reasonable time. After appellant’s attorney stated that he could not give this reassurance, the trial court refused to grant a continuance. Appellant appeared at the trial some two hours late and after several of the State’s witnesses had testified. He apologized and stated that he had overslept. Appellant acknowledged that he understood that it was his responsibility to timely attend his trial.

It is true that a criminal defendant possesses the privilege of being present in person and by counsel whenever any substantial step is taken in his case. Bell v. State, 296 Ark. 458, 757 S.W.2d 937 (1988); Whittaker v. State, 173 Ark. 1172, 293 S.W. 397 (1927). Arkansas Code Annotated § 16-89-103 (a)(1) (1987) further provides that, “If the indictment is for a felony, the defendant must be present during the trial.” However, section 16-89-103(a)(2) provides:

If [the defendant] escapes from custody after the trial has commenced or, if on bail, shall absent himself during the trial, the trial may either be stopped or progress to a verdict, at the discretion of the prosecuting attorney. However, judgment shall not be rendered until the presence of the defendant is obtained.

(Emphasis added.) Pursuant to this provision, we have held that where the defendant is on bail and absents himself, the trial may proceed. Lee v. State, 56 Ark. 4, 19 S.W. 16 (1892); Cox v. City of Jonesboro, 112 Ark. 96, 164 S.W. 767 (1914). This rule applies once trial has commenced, and does not apply to flight before trial. This distinction between flight before and after trial is indeed a rational one. Commencement of trial marks the point at which the costs of delaying the proceedings are likely to increase and helps to assure that any waiver of presence after that is knowing and voluntary. See Crosby v. United States, 506 U.S. 255 (1993) (discussing Fed. R. Crim. P. 43). This provision also deprives a defendant of the option of terminating his trial if it appears that he will receive a guilty verdict. Id.

In Johnson v. State, 270 Ark. 247, 604 S.W.2d 927 (1980), cert. denied 450 U.S. 981 (1981), on the day of trial, the trial court held a suppression hearing in Johnson’s case. Johnson was present for the hearing. After the hearing, the trial court announced a ten-minute recess. When court reconvened, Johnson was absent. Following a one-hour recess, the court reconvened again, and Johnson was still absent. Efforts to contact him at his residence were unsuccessful. The trial court ruled that Johnson’s trial had commenced and that the trial could proceed in his absence. We affirmed the trial court on the basis that Johnson had voluntarily absented himself from trial and had waived his right to be present.

As in Johnson, the appellant’s trial had indeed commenced when he became voluntarily absent. A jury had been selected and sworn, and both sides had announced that they were ready for trial. Under these circumstances, we cannot say that the trial court erred in allowing appellant’s trial to proceed.

Affirmed.


author: ROBERT H. Dudley, Justice.

text:
    Cedric Gerald MOORE v. STATE of Arkansas
    CR 96-95
    929 S.W.2d 149
    Supreme Court of Arkansas
    Opinion delivered September 16, 1996

      Mark Ferguson, for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   ROBERT H. Dudley, Justice.

Cedric Gerald Moore was convicted of kidnapping, attempted rape, and theft of property. We summarily affirm the judgment of conviction because the abstract is flagrantly deficient. See Ark. Sup. Ct. R. 4-2 (b)(2).

The abstract contains only the information, immaterial motions and orders involving the appointment and substitution of counsel, and an order reflecting an earlier mistrial. It contains no references to the testimony, arguments, riflings, instructions, jury’s findings, or the judgment of conviction. When an appellant’s abstract is flagrantly deficient we summarily affirm the judgment of conviction pursuant to Rule 4-2. Edwards v. State, 321 Ark. 610, 906 S.W.2d 310 (1995). Enigmatically, the transcript does not contain any of the testimony, argument, instructions, or rulings, and the points for reversal, which involve alleged ineffective assistance of counsel, do not assert trial court error. Affirmed.


text:
    John Henry MOSLEY v. STATE of Arkansas
    CR 95-1345
    929 S.W.2d 693
    Supreme Court of Arkansas
    Opinion delivered September 16, 1996

      Mark S. Cambiano, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   ROBERT H. Dudley, Justice.

John Henry Mosley was charged with having committed the crimes of rape and incest against his nineteen-year-old daughter. The jurors heard evidence on both charges. They were instructed on the crime of incest, but were additionally instructed that they were to consider the charge of incest only if they had a reasonable doubt about Mosley being guilty of the crime of rape. The jury found Mosley guilty of rape. The trial court sentenced Mosley, a six-time offender, to forty years in prison. He raises eight points for reversal, none of which have merit.

Two of Mosley’s arguments involve evidentiary rulings during the State’s case-in-chief. In the first of these arguments Mosley contends that the trial court erred in allowing the prosecutrix to testify that, beginning when she was fifteen, Mosley on a number of occasions committed the crime of rape against her and that he threatened to kill her if she told of the assaults. He predicates his argument on Ark. R. Evid. 404(b), which provides:

(b) Other Crimes, Wrongs, or Acts. 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 setded that the list of exceptions set out above is exemplary and not exhaustive. White v. State, 290 Ark. 130, 140, 717 S.W.2d 784, 789 (1986). It is also settled that the rule permits introduction of testimony of other criminal activity if it is “independently relevant to the main issue • — • relevant in the sense of tending to prove some material point rather than merely to prove that the defendant is a criminal — then evidence of that conduct may be admissible with a proper cautionary instruction by the court.” Id. at 140, 717 S.W.2d at 789 (quoting Price v. State, 268 Ark. 535, 597 S.W.2d 598 (1980)). In Free v. State, 293 Ark. 65, 732 S.W.2d 452 (1987), in affirming a ruling allowing evidence of prior sexual abuse of the victim by the defendant, we wrote:

[W]e will allow such testimony to show similar acts with the same child or other children in the same household when it is helpful in showing a “proclivity toward a specific act with a person or class of persons with whom the accused has an intimate relationship.” . . . Such evidence helps in proving the depraved sexual instinct of the accused.

Id. at 71, 732 S.W.2d at 455 (citations omitted). See also Young v. State, 296 Ark. 394, 396-97, 757 S.W.2d 544, 546 (1988) (stating “in trials for incest or carnal abuse the State may show other acts of intercourse between the same parties”) (emphasis in the original).

During the State’s case-in-chief, the trial court additionally admitted proof that, eleven years earlier, Mosley pleaded guilty to the crime of carnal abuse of his six-year-old stepdaughter. Mosley initially contends that the trial court erred in allowing the evidence because it was not disclosed in a timely manner. See Ark. R. Crim. P. 17. The facts simply do not support Mosley’s argument. The facts show that the information alleged Mosley was a habitual offender, and he was advised of this specific conviction early enough for him to file a motion in limine asking the trial court to exclude proof of it. In addition, at a pretrial hearing on the motion, his counsel admitted that the State had provided notice of this conviction “in a very timely manner.” Under these facts, we have no hesitancy in holding that the trial court correctly ruled that notice of the conviction was given in a timely manner.

Mosley alternatively argues that the prior conviction was not relevant even though it involved his stepdaughter. See Young v. State, 296 Ark. 394, 757 S.W.2d 544 (1988). The trial court considered both the similarity of the prior conviction to the current charges of rape and incest and the parental relationship of Mosley with both of the victims and correctly applied Rule 404(b). In Alford v. State, 223 Ark. 330, 335, 266 S.W.2d 804, 807 (1954), we wrote 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. And in Free v. State, 293 Ark. 65, 732 S.W.2d 452 (1987), we approved allowing evidence of similar acts with the same or other children in the same household when it is helpful in showing a proclivity for a specific act with a person or class of persons with whom the defendant has an intimate relationship.

Mosley next contends that the trial court erred in refusing to declare a mistrial. The facts leading to the argument are as follows. In addition to the case now on appeal, Mosley was a suspect in the murder of Pamela Felkins. At a pretrial hearing on this case, the State agreed that evidence related to the murder and its investigation was not relevant. At trial, Max Young, one of the officers who investigated this case, testified that a superior officer briefed him on the alleged rape in this case, and he, in turn, responded to the superior that he had a photograph of Mosley. Mosley moved for a mistrial on the ground that Young had testified about the murder investigation.

A mistrial is an exceptional remedy to be used only where any possible prejudice cannot be removed by an admonition to the jury. Free v. State, 293 Ark. 73, 732 S.W.2d 452 (1987). The decision to grant a mistrial rests within the discretion of the trial judge, and it should be granted only when the prejudice is so manifest that the trial cannot injustice continue. Novak v. State, 287 Ark. 271, 277, 698 S.W.2d 499, 503, reh’g denied (1985). The standard of review on appeal is whether the trial court abused its discretion. Free v. State, supra. Here, the officer did not testify about the murder or the investigation of the murder, nor did he mention that Mosley was a suspect in the murder. Further, there is no overt nexus between the fact that the officer had somehow obtained a photograph of Mosley and the fact that Mosley was a suspect in a murder. In sum, Mosley has not shown that the trial court abused its discretion in the ruling.

We do not reach Mosley’s remaining points for reversal because of various procedural bars. In one of those points he contends that he did not receive effective assistance of counsel. This issue was not raised in the trial court, and it may not be raised in a direct appeal until it has been considered below. Sumlin v. State, 319 Ark. 312, 891 S.W.2d 375 (1995).

Two of his remaining points for reversal involve the trial court’s refusal to allow him to introduce three photographs of the prosecutrix and the trial court’s refusal to allow him to question the prosecutrix about the photographs. Before trial, the State objected to introduction of the pictures. The trial court ruled that the photographs were not relevant and, further, that any value they might have would be outweighed by their prejudicial effect. Mosley has not supplied reproductions of the photographs with his abstract. It might be possible to review the question of relevancy without copies of the pictures. See Qualls v. State, 306 Ark. 283, 812 S.W.2d 681 (1991). However, even if the pictures were relevant, an issue we do not decide, we are in no position to review the trial court’s weighing of probative value against prejudice without viewing the pictures. See Coney v. State, 319 Ark. 709, 894 S.W.2d 583 (1995). Thus, we affirm this point under Ark. Sup. Ct. R. 4-2(a)(6) and (c).

Mosley argues that the trial court erred in ruling that he could not question the victim about the pictures. However, he made no offer of proof about who took the pictures, when they were taken, why they were taken, where they had been kept, or how he obtained them, and the substance of the evidence the victim might have given about the pictures is not obvious. See Ark. R. Evid. 103(a)(2). Thus, we affirm on this point for failure to make an offer of proof. See Boykin v. State, 270 Ark. 284, 603 S.W.2d 911 (1980).

Mosley also argues that the trial court erred in excluding the testimony of Paul Wafford. It is argued that Wafford would have testified that at one time the prosecutrix had falsely accused him of rape. However, Mosley did not file a motion stating that he wished to offer this evidence at trial, and he did not make a timely offer of such evidence, even though it was governed by the Rape Shield Statute. See Ark. Code Ann. § 16-42-101 (c)(2)(C) (Repl. 1994); Lindsey v. State, 319 Ark. 132, 890 S.W.2d 132 (1994); Laughlin v. State, 316 Ark. 489, 872 S.W.2d 848 (1994). Since Mosley did not file the motion, the State moved in limine, just before trial commenced, to bar Mosley from putting on Wafford’s testimony about false sexual allegations. The State expressly asserted that the testimony was prohibited by the Rape Shield Statute, that Mosley had failed to file a written motion as required by the statute, and that no in camera hearing had been held. The trial court excluded the testimony. Mosley responded that he wished to make a proffer of Wafford’s testimony, but the trial court stated that the jury was waiting and it wished to proceed with oral arguments. Mosley made a proffer after he rested his case.

The argument is procedurally barred because Mosley did not file a motion as required by the Rape Shield Statute. He contends that his arguments made at the time the State presented its motion in limine were sufficient to comply with the Rape Shield Statute. We cannot agree. The crux of the State’s argument was that the testimony was barred because Mosley failed to file the required motion, and Mosley’s principal response was that the testimony was not governed by the Rape Shield Statute. Consequently, the trial court did not timely hear a specific offer of the proposed evidence, did not make a relevancy determination of that proposed evidence, and did not weigh its probative value against prejudice. In Sterling v. State, 267 Ark. 208, 590 S.W.2d 254 (1979), we stated, “The purpose of such hearing is to review the evidence to determine whether it is relevant for trial purposes. Unless the court hears such evidence, it cannot properly determine its relevancy.” Id. at 210, 590 S.W.2d at 255. Since he failed to timely make an offer of proof and since the trial court made no determination of relevancy, the matter is procedurally barred on appeal.

Mosley next contends that the trial court should have granted a new trial because of juror irregularity or, at the least, should have conducted “further inquiry” into juror irregularity. We do not reach the merits of either argument. First, Mosley did not move for a new trial. That issue was not raised in the trial court, and we do not consider it for the first time on appeal. Bowen v. State, 322 Ark. 483, 911 S.W.2d 555, reh’g denied (1996). The trial court did conduct an inquiry into alleged juror irregularity and found Mosley’s witness was not credible. Mosley does not take issue with the questions asked by the trial court and does not take issue with the finding that his witness was not credible, but contends that the trial court should have made “further inquiry” into the matter. However, he did not ask the trial court to inquire further. An appellant cannot raise an issue for the first time on appeal. Woods v. State, 323 Ark. 605, 916 S.W.2d 728 (1996).

Affirmed.


author: Tom Glaze, Justice.

text:
    Walter Glenn CARTER v. STATE of Arkansas
    CR 95-933
    929 S.W.2d 690
    Supreme Court of Arkansas
    Opinion delivered September 16, 1996

      Wayne Emmons and Chandler Law Firm, by: Edward Witt Chandler, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant Walter Carter was charged with the capital murder of Charles Metder, the burglary of Metder’s residence, and the battery of Carter’s wife, Denise, who was present at Mettler’s house at the time of the killing. Carter raised the insanity defense, but the jury convicted him of the capital murder and burglary charges, and Carter was sentenced respectively to life imprisonment without parole and twenty years.

In this appeal, Carter first claims the trial court erred in denying his motion for continuance on the date of trial. In his motion, Carter requested more time to obtain a mental evaluation to show he was incompetent to stand trial. To understand Carter’s argument and the trial court’s ruling, we review the pretrial events that took place from the time Carter first requested a mental evaluation. That request was granted by the trial court on April 18, 1994, and an evaluation was conducted. Upon Carter’s request, a second evaluation was ordered on May 3, 1994. On June 8, 1994, the State Hospital submitted its report, stating that Carter was not mentally ill at the time of the crime, and that he was competent to stand trial. Nevertheless, Carter requested further continuances on July 5, 1994 and August 22, 1994, which were also granted. The July and August 1994 court orders reflect that new counsel, Mr. Wayne Emmons, had entered an appearance on Carter’s behalf. Those orders extended pretrial dates from August 22, 1994 to October 4, 1994. Meanwhile, State Hospital doctors, John Anderson and O. Wendell Hall, filed another report with the court, on September 29, 1994, finding Carter was malingering and suffered only from a personality disorder. Again, the doctors concluded Carter was competent to stand trial and did not lack the capacity to appreciate the criminality of his conduct at the time he beat Metder to death.

The record next reflects yet another of Carter’s continuance motions filed on October 7, 1994. In that motion, Mr. Emmons and co-counsel, Edward Chandler, asserted that they had had their first “lengthy” meeting with Carter on October 3, 1994, at the Marion County Jail, and appeared at the scheduled October 4, 1994 pretrial hearing to request a further extension in setting a trial date. Carter’s October 7 motion set out a host of reasons, both personal and business, but the most relevant appeared to be that counsel had just been hired, Carter had been unavailable to them, and counsel had just received the State Hospital’s report. At the October 4 hearing, the trial court proceeded to set a trial date for November 7, 1994, but, after doing so, it promptly granted another of Carter’s continuance motions on November 1, 1994. That November 1 order extended trial to the court’s next term in 1995. In the meantime, another State Hospital forensic evaluation report was filed with the court on November 7, 1994, reflecting that Carter was malingering and diagnosed with a personality disorder.

. Given the foregoing continuances, Carter then petitioned for expenses to hire Jonathan J. Lipman, a neuropharmacologist, and Marsha H. Little, a clinical neuropsychologist. On January 12, 1995, the trial court granted an award of $2,500 to hire Dr. Lip-man, but denied any monies for Dr. Little. On January 20, 1995, Carter again moved for a continuance, complaining he had not had the time and money to adequately prepare for trial. Once again, Carter’s motion was granted, and this time, the trial court set a new trial date for May 1, 1995.

Carter filed yet another motion for continuance on April 26, 1995, wherein he claimed further evaluation was needed. The record reflects this motion was not presented to or acted on by the trial court, but Carter filed the same request again on May 1, 1995, the day of trial. Attached to Carter’s May 1 motion was the handwritten affidavit dated April 30, 1995, of Marsha H. Little, wherein she stated Carter’s competency to stand trial is questionable because he is unable to process information in an accurate way. Little’s affidavit further related that Carter’s ability to confer with his attorneys was impaired and he was unable to effectively assist in his own defense.

In denying Carter’s motion, the trial court stated Carter had waited until the last minute to ask for another continuance and the affidavit he submitted was vague and failed to provide sufficient-information for the court to formulate a judgment as to Carter’s competency. The trial court further indicated Carter could have obtained the information he was now seeking months before, but failed to do so. Nonetheless, the trial court invited Carter to put on testimony in opposition to the State’s proof, which showed Carter was competent to stand trial. Carter declined to do so.

We have repeatedly held that a continuance is addressed to the sound discretion of the trial court, and a decision will not be reversed absent an abuse of discretion amounting to a denial of justice. Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1995); Dansby v. State, 319 Ark. 506, 893 S.W.2d 331 (1995). We would also point out, as did the trial court below, that an accused is presumed competent to stand trial, and the burden of proving incompetence is on the accused. Bowen, 322 Ark. at 505. The trial court here gave Carter numerous continuances, months, and opportunities to obtain proof bearing on his competency to stand trial, but he waited until the last scheduled day of trial to submit a brief handwritten statement by his clinical neuropsychologist, stating in conclusory fashion that Carter’s competency to stand trial was “questionable,” and that Carter was unable to effectively assist in his own defense. The trial court clearly gave Carter every opportunity to prepare his defense for trial and did not abuse its discretion in denying the last of Carter’s many continuance motions. Having said that, we point out that the trial court also enunciated that because insanity remained an issue in the case, it would enter an appropriate order during trial if it became convinced trial should not proceed. These remarks of the trial court bring us to Carter’s second argument that the trial court erred in refusing a mistrial motion after Carter attempted suicide during trial.

The following events took place, leading to Carter’s request for mistrial. After all evidence had been presented and before the court had reconvened on the fourth day of trial, the trial court was informed that Carter, while in custody, had overdosed on medication. The trial court, giving no reason, informed the jury the trial would be continued until May 10, 1995. It also admonished the jury not to read media accounts of the trial or talk to people concerning the trial. By May 10, Carter had been released by the hospital, and he returned to trial. However, before trial reconvened, Carter’s counsel moved to be allowed to reopen Carter’s case to offer his suicide attempt as further proof of his insanity. The trial court stated it would grant counsels’ request, but it would then be required to allow the state to reopen its case to show how Carter had attempted suicide on other occasions when accused of crimes. Counsel then withdrew the motion to reopen their case.

Defense counsel then moved for mistrial, stating they had had difficulty in conversing with Carter during trial. Counsels’ examples were that when they asked Carter, “How do you feel? Are we doing better?” he responded, in a blank kind of way, “Mr. Chandler, how are we doing?” Also when asked what are you doing or what are you thinking about, he replied, “I’m praying.”

In denying Carter’s mistrial motion, the trial court stated as follows:

The Court has had the opportunity to view you in consultation with your client through the substantive portions of the trial. We are down to closing arguments at this point. [Carter] seemed very capable of helping, aiding and assisting you in discussing strategy and I have noted that and observed that throughout the trial.
Further, I have had the benefit of the testimony of four so-called experts. I have listened to the expert testimony and am persuaded that Mr. Carter is competent to stand trial, and that’s a decision for the court.

A mistrial is an extreme remedy that should only be granted when justice cannot be served by continuing the trial Morgan v. State, 308 Ark. 627, 826 S.W.2d 271 (1992); Taylor v. State, 303 Ark. 586, 799 S.W.2d 519 (1990). Further, a defendant cannot be allowed to abort a trial and frustrate the process of justice by his own acts. Morgan, 308 Ark. 627, 826 S.W.2d 271.

In the present case, the trial court based its denial both on expert testimony, and its own observations of Carter during trial and Carter’s interaction with his attorneys. While Carter’s counsel contended his client did not respond to questions posed to Carter as counsel thought Carter should have, the record actually shows Carter made appropriate responses. The trial court later denied a motion to reevaluate Carter which was made before sentencing based on its previous findings.

Carter cites Drope v. Missouri, 420 U.S. 162 (1974), and argues due process is violated when a trial court fails to make further inquiry into the defendant’s competency and fails to give adequate weight to defendant’s suicide attempt and pretrial showing of irrational behavior. However, Drope is distinguishable in significant ways. There, the trial court had not determined Drope’s competency to stand trial, but instead, uncontradicted evidence showed that Drope had manifested irrational behavior before trial. Here, Carter had been thoroughly evaluated and found to be a malingerer, without psychosis, and competent to proceed to trial. Also, in Drope, the defendant was absent from his trial after his suicide attempt; here Carter was present. Again, unlike Drope, the trial court here had previously determined Carter’s competency prior to trial and was able to observe Carter’s ability to consult with counsel both before and after his attempted suicide.

We also note Carter’s reliance on Pate v. Robinson, 383 U.S. 375 (1966), where the Court held the uncontradicted evidence of Robinson’s disturbed behavior over a long period raised sufficient doubt of his competence to stand trial, and it remanded the case for a new trial. However, Pate, too, is distinguishable from the situation presented here. In Pate, four witnesses expressed the opinion that Robinson was insane. The only contrary evidence presented by the state was a stipulation by a doctor who offered the opinion that Robinson knew the nature of the charges against him and was able to cooperate with counsel, but made no finding of sanity. Again, here Carter had been evaluated on several occasions and found competent. Carter also was found to be a malingerer. While Carter had been afforded adequate time to obtain further evidence bearing on his competency in advance of trial, he failed to do so. In sum, the trial court had ample evidence and reasons to deny Carter’s motion for mistrial.

Finally, Carter argues that the trial court should have granted his motion for directed verdict with respect to burglary, and premeditation and deliberation for capital murder. We do not, however, reach this issue because Carter is procedurally barred since he failed to renew his motion at the close of this case. Heard v. State, 322 Ark. 553, 910 S.W.2d 633 (1995).

For the reasons above, we find no error and, after noting the record of the trial has been reviewed pursuant to Ark. Sup. Ct. R. 4-3 (h), we affirm.

       The battery charge was not tried.

       The record reflects that Mr. Emmons was contacted by Carter’s family sometime in May 1994, and while Emmons’s name appears in the July 5 and August 22 orders, he asserted in an October 7, 1994 motion that he was not hired until September 9, 1994, when counsel received $15,000.00.

       Other reasons given for continuance were that counsels had other case commitments taking their time and they had personal trips scheduled for Alaska, Texas, and Marion County, Arkansas.

       In checking the transcript, we do not find where Carter was declared indigent for expense purposes, but nonetheless, the trial court awarded funds anyway. We note that Carter does not challenge the amount awarded in this appeal. Carter was declared indigent for appeal purposes on August 18, 1995.


text:
    Larry C. DONIHOO v. STATE of Arkansas
    CR 95-1194
    931 S.W.2d 69
    Supreme Court of Arkansas
    Opinion delivered September 16, 1996

      Garnet E. Norwood, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   ROBERT L. Brown, Justice.

Appellant Larry C. Donihoo was convicted of multiple counts of statutory rape and violation of a minor in the first degree and sentenced to 90 years in prison. He appeals, urging that the trial court erred in refusing to sever the counts, in allowing photographs and a videotape of sex acts into evidence, in allowing a state witness to testify about matters which surprised him, and in permitting references to parole eligibility by the State in closing argument. The points on appeal are without merit, and we affirm.

The State presented the following evidence at trial. Christina Ward, the victim, testified that she was born on July 6, 1977, and that Donihoo moved in with her and her mother, Jacque Ward, when Christina was three. She testified that Donihoo acted like a father towards her, but that he made her perform oral sex and have sexual intercourse with him after the family moved to East 48th Street in Texarkana in 1989, when she was about 13. She estimated that this happened sometimes two to three times a week while her mother and brother were at work. She testified that she did not tell her mother at the time because Donihoo told her that he would kill her if she told anyone. Christina testified that before the family moved to East 48th Street, Donihoo would fondle her and that these early occurrences began when she was three.

Christina also identified herself and Donihoo in certain Polaroid photographs admitted into evidence. She stated that Donihoo began to take photographs of them on East 48th Street, and she added that four photographs entered into evidence, two of which depicted sexual acts and two of which show Christina posing naked, were taken before her 14th birthday on July 6, 1991. The State introduced other photographs of Donihoo and Christina engaged in sexual intercourse, and Christina testified that these pictures were also taken before her 14th birthday.

Donihoo, according to Christina, engaged in sexual activity with her on her 14th birthday, when her mother and brother left to go get her birthday present. She testified that after she turned 14 the family moved to Crosby, Texas, then to Georgia, and finally back to Texarkana in 1993. They rented a house from John Yarberry on Highway 71 South, and Donihoo had continual sexual relations with her at that location while her mother was at work.

Christina also described how Donihoo used a video camera to record his sexual activities with her, which included tying her to a bed and having sexual intercourse with her. Christina stated that she did not want to do any of the acts depicted on the tape and objected to them. She testified that she was at least 16 when the tape was made.

On cross-examination, counsel for Donihoo introduced 27 Polaroid photographs- depicting sexual conduct between the pair or nudity or various stages of undress and asked Christina specific questions about how old she was when the pictures were taken. She answered that all of the pictures taken on East 48th Street were taken before her 14th birthday. Defense counsel further cross-examined Christina on whether she consented and was a willing partner in the sexual conduct with her stepfather.

At trial, Jacque Ward, the victim’s mother, confirmed the moves of the family and the years that they took place. She testified that she returned home from work on or about February 8, 1994, and Christina told her about her sexual activity with Donihoo and that she was pregnant. Ward testified that when she heard that, she immediately called Donihoo who was working in Zachary, Louisiana. She told him that Christina was pregnant, and she asked if he was the father. Donihoo admitted that he was. Two days later, medical tests confirmed that Christina was eight-and-a-half weeks pregnant with twins. The pregnancy was aborted.

Ward testified that on the day after she learned about Donihoo’s relationship with her daughter, she went to the Miller County Sheriff’s Department with the polaroid photographs and the videotape depicting sexual activities between Christina and Donihoo. Ms. Ward also confirmed which photographs were taken at the East 48th Street address and that the videotape was made at the leased residence on Highway 71 South.

The State called Edward Dacey, a senior product engineer with Polaroid Corporation, to testify about when the polaroid film used in the photographs was manufactured. Based on the code on the back of the film, he was able to determine the approximate date. He testified that the film had a 12-month product life, which provided a time frame within which the photographs were taken. Thirty-five photographs were made in either September or October of 1990 when Christina was 13.

Donihoo took the stand in his own defense. He admitted sexual conduct with Christina but testified that it began only after she turned 14. He also admitted taking all the photographs but one and paying Christina for sexual favors.

The jury found Donihoo guilty on four counts of statutory rape (Ark. Code Ann. § 5-14-103(a)(3) (Repl. 1993)), and three counts of violation of a minor in the first degree (Ark. Code Ann. § 5-14-120 (Repl. 1993)). The jury deadlocked on three charges of forcible rape, and a mistrial was declared on those charges. The jury assessed 40 years imprisonment on each of the statutory rape counts and ten years on each charge of violating a minor. The trial court ran part of the statutory rape sentences consecutively which resulted in a total prison term of 90 years.

I. Severance

Donihoo primarily contends in his first point that the Rape Shield Statute was improperly applied in a trial for both statutory rape and violation of a minor because the statute is not applicable to a charge of violating a minor. See Ark. Code Ann. § 16-42-101 (b) (Repl. 1994). Thus, he asserts, severance should have been granted to enable him to introduce Christina’s prior sexual conduct for purposes of the violation-of-a-minor charges. He was prejudiced, he argues, by not being able to do so because that evidence would have confirmed that Christina consented to the sexual activity and that he in no way forced or compelled her to engage in sexual intercourse or deviate sexual activity. The. State counters that Donihoo is foreclosed from mounting the severance issue as it relates to the Rape Shield Statute because no motion to sever raising this precise argument was abstracted.

A general motion to sever, however, was abstracted, and that motion states that severance “is necessary and appropriate for a fair determination of the Defendant’s innocence of each offense.” Donihoo’s counsel later raised the Rape Shield argument during trial in connection with the violation-of-a-minor charges when he was foreclosed from presenting proof of other sexual conduct, and that argument is referred to in the abstract of trial testimony. The trial court noted that it had withheld ruling on the matter until it heard the evidence. The Rape Shield argument relating to the severance motion is also contained in the abstract of Donihoo’s motion for a new trial. We conclude that the abstract is not flagrandy deficient, and we will address the issue.

We agree with Donihoo that the Rape Shield Statute does not apply to charges for violation of a minor, but Donihoo’s argument must fail for two reasons. First, he failed to proffer evidence of Christina’s other sexual conduct. Without that proffer, this court has no way of deciding if the evidence was relevant. Lindsey v. State, 319 Ark. 132, 890 S.W.2d 584 (1994); Jackson v. State, 284 Ark. 478, 683 S.W.2d 606 (1985). In addition to that, Donihoo sought to show that Christina engaged in sexual conduct with another man in part to prove that she was a willing participant in her sexual relationship with Donihoo and did not do so out of fear or because of threats. Consent, however, is not a defense to violation of a minor in the first degree. See Ark. Code Ann. § 5-14-120 (Repl. 1993). Thus, any evidence of prior sexual conduct in connection with the violation-of-a-minor charges would have been irrelevant. The trial court did not abuse its discretion in refusing to sever these counts. See Evans v. State, 317 Ark. 532, 878 S.W.2d 750 (1994).

On a final note, Donihoo insists in this argument that there was no substantial evidence of physical force or threat and that the photographs clearly show a girl of 16 years rather than one under the age of 14. Any argument of insufficient evidence is not preserved for review because Donihoo only made a general motion for directed verdict at the close of the State’s case and did not renew the motion at the conclusion of all the evidence. Baxter v. State, 324 Ark. 440, 922 S.W.2d 682 (1996); Mitchell v. State, 323 Ark. 116, 913 S.W.2d 264 (1996); Heard v. State, 322 Ark. 553, 910 S.W.2d 663 (1995).

II. Photographs and Videotape

Donihoo next argues that he was prejudiced by the admission of the photographs and videotape into evidence. His abstract, however, does not contain either the photographs or the videotape. Supreme Court Rule 4-2 (a) (6) provides:

Whenever a map, plat, photograph, or other similar exhibit, which cannot be abstracted in words, must be examined for a clear understanding of the testimony, the appellant shall reproduce the exhibit by photography or other process and attach it to copies of the abstract filed in the court and served upon opposing counsel, unless the requirement is shown to be impracticable and is waived by the Court upon motion.

Ark. Sup. Ct. R. 4-2(a)(6).

Donihoo has failed to abstract those photographs that he contends were prejudicial. Nor has he shown that the abstract requirement was waived by this court. Those photographs were necessary to a clear understanding of the objection that forms a basis for this appeal. Coney v. State, 319 Ark. 709, 894 S.W.2d 583 (1995). With only one record on appeal and seven justices, it is essential that the material parts of the record be abstracted. Id. We conclude that the issue as it relates to the photographs is not preserved for our review.

The omission of the videotape from the abstract requires a somewhat different analysis. A bulky videotape does not readily lend itself to abstracting in a brief the way photographs do. But we have held that failure to abstract the prejudicial parts of a videotape precludes our consideration of the videotape on appeal. Edwards v. State, 321 Ark. 610, 906 S.W.2d 310 (1995). That is certainly a lapse in the instant case. In addition, the evidence in this case shows that the videotape was made when Christina was older than 14. Indeed, Christina testified that she was at least 16 at the time. Hence, Donihoo’s argument that the videotape shows Christina as 14 or older was not contested by the State or a bone of contention between the parties. There is no basis for reversal on this point.

III. Discovery Violation

Donihoo next contends that the State violated Rule 17.1 (a)(i) of the Arkansas Rules of Criminal Procedure when it failed to disclose to him before trial that John Yarberry had viewed the videotape of Donihoo having sexual relations with Christina. He argues that the error was compounded when the State presented testimony that Yarberry was disgusted by Donihoo’s actions.

Defense counsel did object to Yarberry’s testimony at trial on the basis that he was surprised by it, but made no additional request for a recess or continuance. The State responded that it had listed Yarberry as a witness prior to trial and provided that information to defense counsel. The trial court overruled defense counsel’s objection. During Donihoo’s cross-examination of Yarberry, Yarberry testified that he and Donihoo were friends and that he had not seen anything amiss in Donihoo’s family life. On re-direct, the State elicited testimony that Yarberry was disgusted by the videotape and would not have associated with Donihoo if he had known about his sexual activity with Christina. Donihoo’s counsel then objected to Yarberry’s opinion on relevancy grounds. The State responded that Donihoo’s counsel opened the door with his line of questioning because he left the impression that Yarberry and he were still good friends and that he believed nothing was wrong with Donihoo’s family life.

Arkansas Rule of Criminal Procedure 17.1(a)(i) requires the State to disclose the names and addresses of the witnesses it intends to call, but it does not require the State to disclose the substance of their expected testimony. Holloway v. State, 310 Ark. 473, 837 S.W.2d 464 (1992); Cox v. State, 36 Ark. App. 173, 820 S.W.2d 471 (1991). Furthermore, this court has stated that a defendant cannot rely on discovery as a total substitute for his or her own investigation. Heard v. State, 316 Ark. 731, 876 S.W.2d 231 (1994). The trial court did not abuse its discretion in overruling Donihoo’s objection to the discovery violation.

Nor did the trial court err in permitting Yarberry to testify about his reaction to the photographs and videotape. Donihoo’s counsel elicited from Yarberry that he was a friend and did not perceive anything was wrong with Donihoo’s family life. To blunt this testimony, the State was perfecdy within its rights to ask Yarberry’s opinion of Donihoo after viewing the videotape. Cf. Gooden v. State, 321 Ark. 340, 902 S.W.2d 226 (1995). There was no error in this regard.

IV Parole Argument

Donihoo finally contends that the prosecuting attorney violated due process when he argued the possibility of parole in the penalty phase of trial. During closing arguments, the prosecutor explained that Donihoo will serve only one fourth of his sentence if he is a model prisoner. Donihoo, however, failed to object to this argument at trial, which precludes this court from reviewing the issue. See Byrum v. State, 318 Ark. 87, 884 S.W.2d 248 (1994); Marshall v. State, 316 Ark. 753, 875 S.W.2d 814 (1994). Accordingly, we will not address it.

Affirmed.