text:
    Berchie Marion McCOLLUM and Charles Miles McCollum v. Calvin McCOLLUM, et al.
    96-1301
    946 S.W.2d 181
    Supreme Court of Arkansas
    Opinion delivered May 27, 1997
    [Petition for rehearing denied July 7, 1997.]

      Norman M. Smith, for appellants.

      J. W. Green, for appellees.
   Tom Glaze, Justice.

This case involves the interpretation of a testamentary trust. On January 29, 1985, Lester McCollum died testate with his wife, Gertie, a son, appellant Berchie McCollum, and a daughter, appellee Earnestine Owen, named as co-executors of his will. In addition to Gertie, Berchie, and Earnestine, Lester was survived by two other children, Charles McCollum and appellee Calvin McCollum.

In his will, Lester established the Lester Marion McCollum Marital Trust, and its main asset was a 400-acre farm located in Arkansas County. Lester’s widow, Gertie, was named both the trustee and the sole beneficiary of the Marital Trust. In addition to receiving all the statutory powers of a trustee under Act 153 of 1961, now Ark. Code Ann. §§ 28-69-301 — 304 (1987 and Supp. 1995), Gertie was given title to the farm with the right to distribute to herself all of the net income of the trust and the absolute right to determine whether the farm should be sold. Gertie was also given the authority to appoint by her own will the entire remaining principal, free of the Marital Trust or any other trust.

Lester’s will further provided that if Gertie failed to survive him or failed to appoint the balance of the trust property or if any of her appointments failed, the balance of the property from the Marital Trust would become property of the Lester Marion McCollum Family Trust with Earnestine and Berchie named as co-trustees. Under the Family Trust, Lester’s surviving children or their children or unmarried spouse became contingent remaindermen.

The dispute in this case arises from events beginning on July 3, 1989, when Gertie executed and delivered a trustee’s deed, conveying the farm to Calvin and Earnestine as tenants in common for $400,000. Calvin and Earnestine gave Gertie four $100,000 promissory notes, two of which were executed by Calvin and two by Earnestine. On the same date, Calvin and his wife together and Earnestine executed and delivered to Gertie mortgages to secure payment of their respective notes with installment payments to begin on July 3, 1990. Earnestine’s mortgage and the trustee’s deed were subsequently amended to replace Earnestine with the Allen Robert Owen, Jr. Family Trust.

On April 29, 1993, Gertie executed her will in which she memorialized the fact that she had previously forgiven Calvin and the Owen trust one $100,000 note each. Further, she executed on the same date an assignment of mortgage and note to transfer to herself, individually, the remaining notes from Calvin and the Owen trust with accompanying mortgages. Additionally, Gertie executed release deeds to each Calvin and the Owen trust by which Gertie forgave any and all remaining indebtedness created by their respective promissory notes and mortgages. These documents were filed of record on May 4, 1993.

Gertie died on August 18, 1994, and in her will, Gertie appointed any remaining notes and indebtedness owed to the Marital Trust to Calvin and the Owen trust, should the four notes be determined still in existence and enforceable. Berchie filed a petition to contest Gertie’s will in probate court, but he later dismissed it with prejudice on November 2, 1995.

On February 7, 1996, Berchie filed the present action in chancery court against appellees Calvin, Calvin’s wife, Earnestine and Karolyn Owen as trustees of the Owen trust, and the Owen trust. In his complaint, Berchie alleged Gertie breached her fiduciary duty as trustee when she sold the farm and forgave Calvin’s and the Owen trust’s notes. Berchie requested an accounting, and imposition of a constructive trust for an undivided interest in the farm and a share of its rents and profits since the sale. The complaint was subsequently amended to join Lester’s great-grandson, Charles Miles McCollum, as a plaintiff. Following a hearing on the matter and without comment, the trial court entered an order in favor of Calvin, his wife, Earnestine, and the Owen trust. From that order comes this appeal. Because great-grandson Charles Miles makes no claim or argument separate from that of Berchie, we refer to the appellants as Berchie only for easier reading.

On appeal, Berchie argues that Gertie’s action in divesting the Martial Trust of its primary asset was fraud per se, and constituted self-dealing and a repudiation of the trust. Berchie criticizes Gertie’s sale of the farm for $400,000, which he contends was an inadequate price. He asserts Gertie sold the farm to Earnestine because Gertie lived with Earnestine and Earnestine exercised undue influence over Gertie. Further, Berchie argues that because the appellees knew of Gertie’s breach, Earnestine, as executor of Gertie’s will, attempted to conceal the fact that their notes and mortgages had been forgiven by filing a delayed inventory of Ger-tie’s property. Berchie’s arguments are without merit.

As the appellees note, Berchie was aware of every transaction concerning the trust and farm as it occurred either by actual knowledge in his position as co-executor of Lester’s estate or by constructive knowledge because each deed and mortgage had been duly recorded. Of particular note, Berchie testified that he was present when Gertie sold the farm for $400,000 to Calvin and Earnestine on July 3, 1989, and he offered no objection. Berchie also was aware on July 3, 1989 that Gertie was forgiving his 1987 loan of $100,000 and that she intended to forgive two of the $100,000 notes signed by Calvin and Earnestine. Berchie now contends that the $400,000 is an inadequate price for the farm, but his contention is baseless. First, we mention the case of Gregory v. Moose, 266 Ark. 926, 590 S.W.2d 665 (Ark. App. 1979). In Gregory, a trustee was found by the trial court to be in breach of trust for agreeing to sell real estate belonging to the trust for an inadequate price. In reversing, the appellate court noted the broad powers invested in the trustee by the language in the testamentary trust and stated as follows:

We find the law to be that a trustee holding a power to sell under language used in this case has discretion not only as to whether or not to sell the trust property but as to the mode and terms of the sale as well. Before a sale will be cancelled for inadequate price, the price must be “grossly inadequate,” . . . evidenced by “bad faith,” or so low as to “shock the conscience of the court.”
[Generally speaking, a Trustee’s duty to his trust and to his beneficiaries in administering the trust is to exercise the care and skill a man of ordinary prudence would exercise in dealing with his own property in the light of the situation existing at the time. The conduct of the Trustee is not to be judged by hindsight knowledge of subsequently developed facts and circumstances.

Id. (citations omitted). Further, the Gregory court held that it is presumed that a trustee has acted in good faith, and the burden of proof rests upon those who question his actions and seek to establish a breach of trust.

In the present case, the only evidence presented regarding land values showed that between 1991 and 1996, property in the same area as the McCollum farm sold for $268.40 to $1504.80 per acre. Perhaps of more importance, Berchie was one of the co-executors of Lester’s estate, and in that capacity he signed an accounting, inventory, and tax form, all setting the value of the farm at $400,000. The IRS accepted that valuation. Clearly, Berchie failed to prove that $400,000 or $1000 per acre was grossly inadequate or so low as to shock the conscience of the court.

The most compelling reason for sustaining Gertie’s sale of the trust property is that Lester’s will provided her with the authority to dispose of the farm in the manner she did. Berchie made his arguments below and now on appeal under a claim that he was a beneficiary or contingent beneficiary of the Marital Trust. However, as discussed above, Gertie was the sole beneficiary of the Marital Trust. Had Gertie not made a valid appointment of the remainder of the Marital Trust property, then, and only then, would the Family Trust have come into existence, with Berchie as a contingent remainderman of that trust.

Where a testamentary trust provides in plain and ordinary language that only one beneficiary is named and the trust gives that beneficiary the right to dispose of the property free of the trust in her will, this court will construe the words and sentences in their ordinary sense in order to arrive at the true intention of the testator. See Fowler v. Hogue, 276 Ark. 416, 635 S.W.2d 274 (1982). Here, Lester’s intent was to provide Gertie with the authority to dispose of the Marital Trust property during her lifetime and upon her death, and she did so. By making the appointment through her will, Gertie prevented the contingent trust, the Family Trust, from being established.

As the appellees point out, unless an exception exists, a case becomes moot when any judgment rendered would have no practical legal effect upon a then existing legal controversy. Arkansas Intercollegiate Conf. v. Parnham, 309 Ark. 170, 828 S.W.2d 828 (1992). Further, one has no standing to raise an issue regarding property in which he has no interest. Boyle v. A.W.A., Inc., 319 Ark. 190, 892 S.W.2d 242 (1995). Neither Berchie nor Charles Miles ever had any legal or equitable interest in the Marital Trust or in its main asset, the farm.

For the reasons discussed, we affirm.

       Both Lester’s son, Charles, and Charles’s son died. Appellant Charles Miles McCollum is Lester’s great-grandson and Charles’s grandson.

       Berchie testified that in 1987, Gertie had loaned him $100,000 from the Marital Trust for which he paid only $10,000 in interest. Gertie later forgave Berchie’s loan, bought his house for $36,000, and then redeeded the house to him, reciting love and affection as consideration. Further, Berchie testified he also knew Gertie made a $100,000 gift to Charles from the Marital Trust.

       Without deciding this case on an argument not made by either party, we note that as both sole trustee and sole beneficiary, Gertie held both the legal and equitable interests of the trust property. Authority supports the merger of the two interests so that the trust terminates. See Rest. 2d Trusts § 99(5) and commentary (e); Rest. 2d Trusts § 341; Austin W. Scott et al., The Law of Trusts § 99, at 46-49 (4th ed. 1987).


source: Caselaw Access Project

author: Donald L. Corbin, Justice.

license: Public Domain

text:
    Rodney BRAGG v. STATE of Arkansas
    CR 96-820
    946 S.W.2d 654
    Supreme Court of Arkansas
    Opinion delivered May 27, 1997

      Honey & Honey, P.A., by: Charles L. Honey, for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant Rodney Bragg appeals the judgment of the Nevada County Circuit Court convicting him of delivery of a controlled substance (cocaine), a Class Y felony, in violation of Ark. Code Ann. § 5-64-401 (Repl. 1993), sentencing him to life imprisonment, and ordering him to pay a fine of $25,000. We have jurisdiction of this appeal pursuant to Ark. Sup. Ct. R. 1-2(a)(2) (as amended by per curiam July 15, 1996). Appellant raises five points for reversal. We find no error and affirm.

I. Facts

The testimony presented at trial reveals the following facts. On March 26, 1993, Agent Keith Ray, an undercover officer for the South Central Drug Task Force, and Mark Smith, a confidential informant, went to the residence of John Noland in Prescott for the purpose of purchasing cocaine. Agent Ray told Noland that he wanted to buy $50 worth of crack cocaine and Noland indicated that he had someone there who could help him. Noland then led Agent Ray to the kitchen door, where he instructed Ray to wait. Agent Ray observed three men sitting at the kitchen table with a large amount of what appeared to be crack cocaine. After Noland had spoken to one of them, that man got up from the table and came to where Agent Ray was standing and asked Ray what he wanted. Again, Agent Ray indicated that he wanted to buy $50 worth of crack cocaine. The man then handed Agent Ray one piece of the rock-like substance and Ray paid him $50.

After they had left the residence, Agent Ray described for Smith, who was not present during the drug transaction, the man from whom Ray had purchased the drugs. Smith told Agent Ray that the man may have been Noland’s cousin, Rodney Mitchell. When Agent Ray later viewed photographs of Mitchell, however, he indicated that Mitchell was not the person who sold him the cocaine. Agent Ray was unable to identify the suspect for approximately one year.

On March 1, 1994, in Clark County Agent Ray conducted another undercover drug transaction, this time with another informant, Steve Krite. Agent Ray gave Krite $125 and Krite purchased several rocks of crack cocaine from a man he knew as “Rodney.” During the transaction, Agent Ray positioned his vehicle where he could view the delivery, and he was able to see the man selling the cocaine. Recognizing the man as the suspect in the 1993 drug transaction, Agent Ray ran a check on the vehicle license number, and it came back to Appellant, Rodney Bragg. Agent Ray later contacted the Nevada County Sheriffs Office and obtained a photograph of Appellant, who Agent Ray positively identified as the individual who sold him the crack cocaine on March 26, 1993.

II. Composition of the Jury and Venire

For his first two points for reversal, Appellant challenges the composition of both the petit jury that heard his case and the venire from which the jury was chosen. Appellant argues that the jury venire was not representative of the overall population of Nevada County, and that the State had systematically excluded black persons from the jury in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

A. Jury Venire

At trial, after the petit jurors had been selected but before they had been sworn, Appellant moved to quash the jury venire because it was not representative of a fair cross-section of the community in that the number of black persons on the venire was not proportionate to the percentage of black persons residing in Nevada County.

The Equal Protection Clause is not violated unless the State has engaged in the purposeful or deliberate denial to blacks, on the basis of their race, of participation in the administration of justice by selection for jury service. Danzie v. State, 326 Ark. 34, 930 S.W.2d 310 (1996). The appellant carries the burden of proving the systematic exclusion of black jurors from the venire. Id. In order to establish a prima facie violation of the fair-cross-section requirement of the Sixth Amendment, an appellant must show the following: (1) The group alleged to be excluded is a “distinctive” group in the community; (2) the representation of this group in venires from which the juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) this underrepresentation is due to systematic exclusion of the group in the jury-selection process. Id. at 42-43, 930 S.W.2d at 314-15 (citing Duren v. Missouri, 439 U.S. 357 (1979)). This test requires a fair and reasonable representation of the distinctive group in every venire from which juries are selected, not just the particular venire summoned at a defendant’s trial. Id. Once the appellant makes a prima facie showing of racial discrimination, the burden shifts to the State to justify its procedure. Id.

Although blacks clearly represent a distinctive group in the community, Appellant has failed to offer any proof concerning the composition of the population and the number of registered voters in Nevada County. Furthermore, Appellant has not provided us with any proof as to the composition of the jury venire called in his case, let alone the entire jury pool or master list from which each venire is chosen. Without such proof, Appellant has failed to make a prima facie showing of racial discrimination in the jury-selection process. We therefore conclude that the trial court did not err in denying Appellant’s motion to quash the jury venire.

B. Petit Jury

Appellant next argues that the State systematically excluded three black persons from the jury in violation of Batson v. Kentucky, 476 U.S. 79 (1986). The record reflects that there were eleven white persons and one black person seated on Appellant’s jury.

The Equal Protection Clause forbids prosecutors from challenging potential jurors solely on the basis of race. Batson, 476 U.S. 79; Bell v. State, 324 Ark. 258, 920 S.W.2d 821 (1996). In order to prevail on a Batson argument, a defendant must first make a prima facie case that racial discrimination is the basis of a juror challenge. Bell, 324 Ark. 258, 920 S.W.2d 821. A prima facie case may be established by: (1) Showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose, (2) demonstrating total or seriously disproportionate exclusion of blacks from the jury, or (3) showing a pattern of strikes, questions, or statements by a prosecutor during voir dire. Id. One of the best answers to a challenge of racial discrimination is to point to a jury that is comprised of any members of the race in question. Cleveland v. State, 326 Ark. 46, 930 S.W.2d 316 (1996). Here, the State made no challenge to Appellant’s prima facie case of discrimination and proceeded to give its race-neutral explanations. The relevant inquiry is, thus, whether the trial court was correct in denying the motion based on the reasons given by the State. Id.

At trial, the prosecutor explained that he had chosen to strike Charles Toliver because he had prosecuted Toliver several times in the past for driving while intoxicated, in which Toliver was represented by Appellant’s counsel, Mr. Honey, and because Toliver stated that he had served twelve years in the National Guard with John Noland, a potential accomplice to the charges against Appellant. Additionally, the prosecutor stated that he had also prosecuted Toliver’s son in the past.

Similarly, the prosecutor stated that he had chosen to strike Queen Esther Hayden because he had prosecuted her son, who was ultimately convicted of the charges and imprisoned, as well as two of her grandsons, one who was still serving time in prison and the other who was in the custody of the State’s juvenile facilities. The prosecutor indicated that he had also chosen to strike Hayden due to her admitted close personal relationship with Fanae Noland, wife of John Noland.

Finally, the prosecutor stated that he had chosen to strike James Edward Cole because he had prosecuted Cole’s stepson a few years before on charges of rape and carnal abuse, and the stepson was convicted and sentenced to prison for the charges. The prosecutor stated further that while Cole’s stepson was serving his prison sentence, working as a trustee in the Nevada County jail, he left the jail and went to the home of a convicted drug dealer and purchased some crack cocaine.

Additionally, the prosecutor informed the trial court that had another potential juror, Clara Taylor, a white person, not been excused for cause, he would have used a peremptory challenge to strike her due to the fact that he had recently prosecuted her daughter.

After hearing argument from both sides, the trial court found that there was a reasonable and rational basis for the State’s decisions to strike all three jurors and denied Appellant’s motion. Our standard of review is whether the trial court’s findings were clearly against the preponderance of the evidence. Cleveland, 326 Ark. 46, 930 S.W.2d 316; Bell, 324 Ark. 258, 920 S.W.2d 821. We conclude that the State provided sufficient racially neutral explanations as to its use of the three peremptory challenges and, as such, the trial court was correct in denying Appellant’s motion to quash the jury.

III. Hearsay

For his third point for reversal, Appellant argues that the trial court erred in allowing into evidence three hearsay statements made by Agent Ray. The State contends that the statements were not hearsay because they were not offered as evidence of the truth of the matter asserted. Hearsay is any statement made by an out-of-court declarant that is repeated in court by a witness and is offered into evidence for the truth of the matter asserted. Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1995), cert. denied, 116 S. Ct. 1861 (1996). Hearsay evidence is generally inadmissible except as provided by law or by the rules of evidence. Id. We will not reverse a trial court’s determination as to the admissibility of hearsay unless the appellant can demonstrate an abuse of discretion. Id.

The first challenged statement concerns Agent Ray’s testimony about information supplied to him by another police agent. In response to the prosecutor’s question as to what led the agent to Noland’s residence, Agent Ray stated:

Another agent that works for us, Mr. Wiggins, had purchased fifty dollars ($50.00) worth of crack cocaine from Mr. Noland’s —

Appellant’s counsel objected, but the trial court ruled that the information was admissible for the purpose of explaining what led Agent Ray to the residence in the first place.

The second challenged statement concerns Agent Ray’s testimony about information supplied to him from Noland once the agent and the informant arrived at Noland’s house. In response to the prosecutor’s question about what had happened upon arrival at Noland’s house, Agent Ray stated in pertinent part:

I went inside the door, Mr. Noland and Mr. Smith were standing there talking, Mr. Noland asked me what I was looking for referring to the drags, and I told him I was looking for fifty dollars ($50.00) worth of crack cocaine. He told me that he had a guy —

Appellant’s counsel objected as to the statement of Noland. The prosecutor argued that because Noland would have been an accomplice to the drug transaction, it was a statement against Noland’s penal interest and was admissible as an exception to the hearsay rule. On appeal, the State asserts that the statement by Noland was admissible, not for the truth of what Noland said, but for the purpose of showing the basis for Agent Ray’s actions, particularly as to why Ray went with Noland to the kitchen where he ultimately conducted the drug transaction with Appellant. The trial court ruled that the evidence was admissible “under the hearsay exception.” Agent Ray then proceeded to state that Noland had advised him that, “he had a subject there that could serve myself.”

The third and final challenged statement concerns Agent Ray’s testimony concerning the 1994 Clark County drug purchase from the person that the informant, Steve Krite, knew as “Rodney.” Appellant’s counsel objected to the testimony on the ground that Krite’s identification of Appellant as the person he referred to as “Rodney” was hearsay. The prosecutor responded that the testimony was not offered for the truth of the matter asserted, only to show why the agent took the actions he did on that date. The trial court overruled the objection.

This court has repeatedly recognized that similar out-off court statements are not prohibited by the hearsay rule if they are not offered for the truth of the matter asserted in the statement. In Martin v. State, 316 Ark. 715, 875 S.W.2d 81 (1994), this court held that an out-off court statement is not hearsay if it is offered to show the basis of an officer’s action. In that case, the officer testified to information he had received from an informant, who had wished to remain anonymous, concerning the identity of a robbery suspect’s truck, upon which he had relied in broadcasting a description to other police units. The officer testified further that his broadcast alerted another officer to the suspect truck, which, in turn, caused that second officer to inform a third officer to be on the lookout for the truck. This court held that because the first officer’s testimony was provided in order to show the basis for his actions, the trial court did not err in admitting the testimony.

Similarly, in Hamm v. State, 304 Ark. 214, 800 S.W.2d 711 (1990), the alleged hearsay testimony involved an officer’s receipt of information from other officers regarding the description of an automobile. This court upheld the admission of the officer’s testimony, as it was merely offered to show that the officer acted on the description of the car given to him by the other officers.

In Johnson v. State, 313 Ark. 308, 854 S.W.2d 336 (1993), the defense made a hearsay objection when the police officer testified concerning information received from a citizen. This court found no error since the officer’s testimony was not offered for the truth of the citizen’s statement, but, instead, was offered to show what information the police acted upon.

Here, as to the first statement concerning another agent’s purchase of crack cocaine from Noland’s house, we are persuaded by the State’s reasoning that the information was not offered to demonstrate whether the other agent had made such a purchase; rather, it was elicited from the witness for the purpose of showing why Agent Ray and the informant went to Noland’s house in the first place. Moreover, Appellant cannot demonstrate that he was prejudiced by the admission of this statement due to the fact that he was not even implicated in the sale to the other agent. We will not reverse the trial court’s ruling as to such evidentiary matters absent a demonstration of prejudice. Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702, cert. denied, 117 S. Ct. 246 (1996).

As to the second statement concerning Noland’s remark to Agent Ray that he had someone there who could help Ray in his desire to purchase cocaine, we are similarly persuaded that the statement was admissible for the purpose of showing the basis for the agent’s actions. Furthermore, Appellant has failed to demonstrate how this evidence prejudiced his case, and we can see no such prejudice. This is particularly evident considering the fact that Agent Ray went on to testify that he purchased the drugs from Appellant at Noland’s house, after Noland had led him to the kitchen where Noland had a brief discussion with Appellant immediately before Appellant sold the drugs to the agent.

As to the final allegation of inadmissible hearsay, we conclude that the State is correct in its assertion that Krite’s identification of the suspected drug dealer as “Rodney” was merely offered for the effect it had on the listener, Agent Ray, as an explanation of why Ray took the actions he did with regard to the subsequent drug transaction. Again, as with the first two statements, Appellant has failed to make a showing of prejudice, due to the fact that regardless of whether the suspect’s name was “Rodney,” Agent Ray positively identified Appellant as the drug dealer during that transaction.

Based upon the foregoing reasons, we thus conclude that the trial court did not abuse its discretion in admitting all three of the statements.

IV. Prior Arrest and Bad Acts

For his fourth point for reversal, Appellant argues that the trial court erred in allowing Agent Ray to testify concerning the 1994 drug transaction in Clark County and in allowing the State to cross-examine him about a prior arrest in Nevada County. The State argues that such evidence was admissible pursuant to A.R.E. Rule 404(b) because it was relevant to the issue of Appellant’s identity.

Rule 404(b) provides:

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.

Evidence offered under Rule 404(b) must be independently relevant, thus having a “tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.” Larimore v. State, 317 Ark. 111, 123, 877 S.W.2d 570, 576 (1994) (quoting A.R.E. Rule 401). Evidence may be independently relevant if it shows the identity of the perpetrator. Carter v. State, 295 Ark. 218, 748 S.W.2d 127 (1988). Even if the evidence is relevant, however, it may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Id.; A.R.E. Rule 403. As to the requirement that the probative value not be substantially outweighed by the danger of unfair prejudice, we accord the trial judge wide discretion in balancing the conflicting interests. Carter, 295 Ark. 218, 748 S.W.2d 127. On appeal, we will not disturb the trial court’s decision to admit or reject evidence submitted under Rule 404(b) absent a showing of manifest abuse of discretion. Larimore, 317 Ark. 111, 877 S.W.2d 570.

A. Subsequent Drug Transaction

The record demonstrates that Appellant initially objected to the testimony concerning the 1994 drug transaction on the ground that it was irrelevant. The State responded that the testimony was relevant as to Agent Ray’s identification of Appellant as the person from whom he had purchased drugs in 1993. The State indicated that the testimony was especially relevant because the defense had put the jury on notice that it challenged the agent’s identification of Appellant. Appellant’s counsel then responded by arguing that the testimony concerning what Krite actually purchased from Appellant was not relevant to the issue of identification. The trial court overruled the objection, and Agent Ray continued his testimony:

Q: And what was given to you by Mr. Krite, Mr. Ray?
A: Several rocks of crack cocaine.
Q: Alright, now, after this transaction took —

Appellant counsel’s then moved for a mistrial on the ground that the testimony was so prejudicial to Appellant’s case that the jury could not possibly view the rest of the evidence against him fairly. The trial court denied the motion.

We are not persuaded by Appellant’s argument that the trial court abused its discretion in permitting the testimony of the 1994 drug transaction. An element that must be proved in every case is that the person who stands before the court in the position of the defendant is the one whom the information accuses and to whom the evidence relates. Green v. State, 310 Ark. 16, 832 S.W.2d 494 (1992). The identity of the person who sold the drugs to Agent Ray was a key issue, in light of Appellant’s challenge to the agent’s identification of him as the person who sold the drugs to the agent from Noland’s residence in 1993. The relevance of the evidence therefore went to the issue of identification, as well as to Agent Ray’s explanation as to why he did not arrest Appellant for over one year. Notwithstanding the fact that the testimony may have been prejudicial to Appellant, we cannot say that its probative value was substantially outweighed by the danger of unfair prejudice.

The testimony was additionally relevant under Rule 404(b) to show Appellant’s intent or lack or absence of mistake. In Scroggins v. State, 312 Ark. 106, 848 S.W.2d 400 (1993), the appellant wanted the trial court to delete a portion of a taped interview, which referred to an informant’s previous purchase of drugs from the appellant. This court held that because the appellant was charged with delivery of a controlled substance in exchange for money, the testimony was admissible to show his intent pursuant to Rule 404(b). Here, Appellant was likewise charged with delivery of a controlled substance and, as such, the testimony of the 1994 drug transaction was relevant to show Appellant’s intent or lack of mistake as to the hand-to-hand delivery to Agent Ray in 1993.

We are equally unpersuaded that the trial court erred in refusing to grant Appellant’s motion for mistrial. Trial courts are granted wide latitude of discretion in granting or denying a motion for mistrial, and we will not reverse the court’s decision absent an abuse of that discretion or manifest prejudice to the complaining party. Brown v. State, 320 Ark. 201, 895 S.W.2d 909 (1995). Among the factors we consider on appeal is whether the defendant requested a cautionary instruction or admonition to the jury. Id. The failure of the defense to request an admonition may negate the mistrial motion. Boyd v. State, 318 Ark. 799, 889 S.W.2d 20 (1994). It is also true that the failure to give an admonition or cautionary instruction is not error where none is requested. Id. “The bottom line on mistrials is that the incident must be so prejudicial that the trial cannot, in fairness, continue.” Id. at 804, 889 S.W.2d at 22. Based upon our conclusions above, as well as the fact that Appellant did not request a cautionary instruction to the jury, we cannot say that the admission of Agent Ray’s testimony deprived Appellant of a fair trial.

B. Prior Arrest

On cross-examination, the State asked Appellant whether he had been arrested in Nevada County prior to March 1994. Appellant’s counsel objected on the ground that the question was improper because Appellant had not been convicted as a result of the arrest. The trial court ruled that because Agent Ray had testified that he had viewed a photograph of Appellant, the testimony was admissible for that purpose. Appellant then confirmed that he had been arrested in Nevada County prior to March 1994, and that a photograph was taken of him at that time. The State did not inquire further into Appellant’s prior arrest.

We note at the outset that Appellant did not challenge the admission of this evidence pursuant to Rule 403. Hence, we do not attempt to balance the probative value of the evidence against the potential for unfair prejudice. Appellant argues on appeal that the testimony was inadmissible pursuant to A.R.E. Rule 609 and Rule 404(b).

Rule 609 provides for the use of prior convictions as a means for impeaching the credibility of a witness, who places his credibility in issue by the act of taking the witness stand and giving testimony. Here, the evidence of Appellant’s prior arrest was not used by the prosecution in an attempt to impeach Appellant’s credibility and, thus, Rule 609 is inapplicable to this issue.

Rule 404(b) is, however, applicable to this issue, albeit unfavorably to Appellant’s position. As previously stated, the identity of the perpetrator in this case was a key issue. This became particularly evident after Appellant testified on direct examination that he had never seen Agent Ray before the day he was arrested in July 1994. The testimony of Appellant’s prior arrest in Nevada County was relevant to the issue of Agent Ray’s ability to have identified Appellant from a photograph provided by the Nevada County Sheriffs Office. For the reasons outlined above pertaining to the testimony of the 1994 drug transaction, we cannot say that the trial court abused its discretion in allowing testimony of Appellant’s prior arrest for the purpose of establishing Agent Ray’s identification of Appellant as the person who sold drugs to him.

V. Directed Verdict Motion

For his final point for reversal, Appellant argues that the evidence was insufficient to convict him of the charge. At the conclusion of the State’s case, Appellant’s counsel stated: “Judge, show me on the records [sir] as having made the motion for directed verdict based on insufficient testimony.” Similarly, at the conclusion of all the evidence, Appellant’s counsel stated: “Show my motion for directed verdict renewed[.] ” We do not reach the merits of this issue as Appellant’s motions below were not sufficiently specific to apprise the trial judge of the alleged deficiencies in the evidence.

“We draw a bright line and hold that a motion for a directed verdict in a criminal case must state the specific ground of the motion.” Walker v. State, 318 Ark. 107, 109, 883 S.W.2d 831, 832 (1994). Thus, in order to preserve a sufficiency argument for appeal, proof of the element of the crime that is alleged to be missing must be specifically identified in a motion for directed verdict, or the issue is deemed not preserved for appeal. A.R.Cr.P. Rule 33.1; Webb v. State, 327 Ark. 51, 938 S.W.2d 806 (1997); Lovelady v. State, 326 Ark. 196, 931 S.W.2d 430 (1996). Additionally, while it is true that Ark. Sup. Ct. R. 4-3(h) requires us to review the record for error in life and death cases, this review presupposes that a proper objection was made at trial. Webb, 327 Ark. 51, 938 S.W.2d 806. Here, Appellant’s failure to make a specific motion for directed verdict precludes our review of the sufficiency of the evidence on appeal.

VI. Rule 4-3 (h) Certification

In accordance with Rule 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.

Affirmed.

Arnold, C.J., not participating.


author: Donald L. Corbin, Justice. Annabelle Clinton Imber, Justice,

text:
    MID-SOUTH ROAD BUILDERS, Inc. v. ARKANSAS CONTRACTORS LICENSING BOARD
    96-447
    946 S.W.2d 649
    Supreme Court of Arkansas
    Opinion delivered May 27, 1997

      Bowden Law Firm, by: David O. Bowden; and Walker, Campbell, Ivory, Dunklin & Davis, by: Larry G. Dunklin, for appellant.

      Williams & Anderson, by: Leon Holmes; and Winston Bryant, Att’y Gen., by: M. Wade Hodge, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant Mid-South Road Builders, Inc., appeals the judgment of the Pulaski County Circuit Court affirming the denial of its license renewal by Appellee Arkansas Contractors Licensing Board. This is an administrative review pursuant to Ark. Code Ann. § 17-25-312 (Repl. 1996), which provides that all appeals shall follow the provisions of the Administrative Procedures Act, Ark. Code Ann. §§ 25-15-201— 214 (Repl. 1996). Our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(a)(17)(vi) (as amended by per curiam July 15, 1996). On appeal, Mid-South argues that it was denied procedural and substantive due process in a license-renewal hearing before the Board and that there is insufficient evidence to support the revocation of its contracting license. We find no error and affirm.

I. Facts and Procedural History

Mid-South first applied for a license with the Arkansas Contractors Licensing Board on June 10, 1994. On July 22, 1994, the application was reviewed, but due to numerous questions, it was given further consideration at the August 12, 1994 board meeting, during which Mid-South was allowed to present any evidence in support of the application. The license was denied due to the Board’s inability to verify information on the application. Mid-South filed an action in circuit court for review of the Board’s denial, which was later dismissed when a second application was filed on August 16, 1994. The Board then granted a license to Mid-South on August 26, 1994.

In August of 1995, Mid-South applied for license renewal. Notice was sent by the Board to Mid-South on or about October 11, 1995, apprising Mid-South that a hearing would be conducted on their license-renewal application based on the allegation that Mid-South provided false information in obtaining its license. On October 27, 1995, a hearing was scheduled on the allegations of false information, but Mid-South objected to the notice on the ground that it did not sufficiently apprise Mid-South of the particular allegations against it. In response to the objection, the Board reset the hearing to December 1, 1995, and issued an amended notice of hearing.

On December 1, 1995, a hearing was conducted, during which the Board voted against granting Mid-South’s renewal on the bases of several false statements contained in the license-renewal application. The Board presented one witness and Mid-South presented six witnesses. During the hearing, the Board presented evidence of a variety of false statements on Mid-South’s license-renewal application. Mid-South appealed to Pulaski County Circuit Court, which affirmed the decision of the Board to deny the license renewal. This appeal followed.

II. Standard of Review

Administrative decisions should be upheld if they are supported by substantial evidence and are not arbitrary, capricious, or characterized by an abuse of discretion. Arkansas State Highway & Transp. Dep’t v. Kidder, 326 Ark. 595, 933 S.W.2d 794 (1996); Wacaser v. Insurance Comm’r, 321 Ark. 143, 900 S.W.2d 191 (1995). To set an agency decision aside as arbitrary and capricious, an appellant must demonstrate that the decision was made without consideration and with a disregard of the facts. ABC Home Health of Ark., Inc. v. Arkansas Health Servs. Comm’n, 326 Ark. 573, 932 S.W.2d 331 (1996). We review the entire record to establish whether the decision is supported by relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Wacaser, 321 Ark. 143, 900 S.W.2d 191; Arkansas Appraiser Licensing & Cert. Bd. v. Biles, 320 Ark. 110, 895 S.W.2d 901 (1995). An administrative agency, like a jury, is free to believe or disbelieve any witness and, on review, the evidence is given its strongest probative force to support the administrative ruling. Arkansas Contractors Licensing Bd. v. Butler Constr. Co., Inc., 295 Ark. 223, 748 S.W.2d 129 (1988); Arkansas Health Planning & Dev. Agency v. Hot Spring County Mem’l Hosp., 291 Ark. 186, 723 S.W.2d 363 (1987). A court may not reverse a decision of an agency if there is substantial evidence to support that decision. Butler Constr. Co., 295 Ark. 223, 748 S.W.2d 129. The appellant has the burden of proving an absence of substantial evidence. Brimer v. Arkansas Contractors Licensing Bd., 312 Ark. 401, 849 S.W.2d 948 (1993); Arkansas Health Planning & Dev. Agency, 291 Ark. 186, 723 S.W.2d 363.

Pursuant to section 17-25-312 of the contractors regulations, any party aggrieved by a decision of the Arkansas Contractors Licensing Board has the right to seek review pursuant to the provisions of the Administrative Procedure Act (“A.P.A.”). Section 25-15-212(a) — (b) provide that a person who considers himself injured by a final act of an agency is entitled to a review of the action in circuit court. Additionally, section 25 — 15—212(f) provides in pertinent part:

If, before the date set for hearing, application is made to the court for leave to present additional evidence and the court finds that the evidence is material and that there were good reasons for failure to present it in the proceeding before the agency, the court may order that the additional evidence be taken before the agency upon any conditions which may be just.

III. Denial of Procedural and Substantive Due Process

For its first point for reversal, Mid-South presents numerous allegations in support of its contention that it was denied both procedural and substantive due process in the various board meetings and hearings below. We find no merit to any of the allegations.

Mid-South argues that it was denied due process because the alleged false statements made on the June 1994 application were mentioned in the December 1, 1995 hearing. Mid-South asserts that the doctrine of res judicata precluded the Board from using any falsifications on the 1994 application against Mid-South during the application-renewal process in 1995. Mid-South argues that it was improper for the Board to consider its June 1994 license application in consideration of its license renewal at the December 1, 1995 hearing. The abstract reflects that Mid-South objected to the 1994 application’s admission as an exhibit on the basis that it was irrelevant because it had already been considered and denied. On appeal, however, Mid-South argues that the admission of the 1994 application was barred by the doctrine of res judicata. Hence, we do not reach the merits of this point, as an appellant may not change the grounds for his objection on appeal. Hinson v. Eaton, 322 Ark. 331, 908 S.W.2d 646 (1995).

Even if this argument had been properly preserved for appeal, we would nonetheless affirm the actions of the Board, as it may reconsider its own decisions, especially where there is evidence of fraud or misrepresentations, in order to correct any previous error in granting a license. See, e.g., North Hills Mem’l Gardens v. Simpson, 238 Ark. 184, 381 S.W.2d 462 (1964); Earp v. Benton Fire Dep’t, 52 Ark. App. 66, 914 S.W.2d 781 (1996); McCarty v. Board of Trustees, 45 Ark. App. 102, 872 S.W.2d 74 (1994). The ability of the Board to reconsider its previous decisions is particularly necessary in a case such as this, where it was through the Board’s investigation of the 1995 renewal application that it was discovered that there were false statements contained in the 1994 application.

Mid-South next contends that the circuit court’s failure to call for an evidentiary hearing was clearly erroneous as there were several procedural irregularities at the Board level concerning off-the-record proceedings and Mid-South’s lack of ability to cross-examine a witness at the July 1994 hearing. Mid-South’s argument as to this issue must fail because Mid-South never requested an evidentiary hearing nor made application to the circuit court for such pursuant to section 25-15-212(f) for leave to present additional evidence. Hence, Mid-South may not raise this issue for the first time on appeal. Butler Constr. Co., 295 Ark. 223, 748 S.W.2d 129.

Mid-South next argues that the Board faded to provide proper notice of the allegations so that Mid-South could properly have prepared its defense. As previously noted, Mid-South objected to the inadequacy of the first notice, and, in response, the Board reset the hearing and sent a detailed amended notice. At the December 1, 1995 hearing, Mid-South again objected to the inadequacy of the amended notice, asserting that it had not properly been informed of the allegations and that it had not been provided with discovery of all the documents relied upon by the Board. In response to Mid-South’s objection at the December 1995 hearing, the hearing officer asked if Mid-South desired an additional continuance in the matter, to which Mid-South responded that it did not want a continuance. On appeal, Mid-South contends that had the notice been adequate and had it obtained the documents not provided in discovery prior to the hearing, it would have been better prepared to defend the allegations.

We are not persuaded by Mid-South’s argument on this point because it was given the opportunity to correct any alleged discovery or notice violations by moving for a continuance in order to better prepare its defense. Given that Mid-South did not find the alleged discovery violations egregious enough to warrant its request for a continuance, we cannot see where it has demonstrated any prejudice on appeal. This court had repeatedly stated that we will not reverse absent a demonstration of prejudice. National Bank of Commerce v. Quirk, 323 Ark. 769, 918 S.W.2d 138 (1996); Caplener v. Bluebonnet Milling Co., 322 Ark. 751, 911 S.W.2d 586 (1995).

Lastly, Mid-South argues that the Board’s members were biased against it and, as such, it was error for the circuit court not to conduct an evidentiary hearing. Again, Mid-South’s argument must fail because there is no evidence that it ever requested the circuit court for leave to present additional evidence on this allegation. We further note Mid-South’s counsel was allowed to voir dire the Board members as to any bias they may have had against Mid-South. With one Board member having previously recused, Mid-South’s counsel then announced that he was comfortable with the remainder of the Board and was ready to proceed. Thus, Mid-South has effectively waived any challenge to the Board based upon its pronounced satisfaction with the composition of the Board during the December 1995 hearing.

IV. Sufficient Evidence

For its second point for reversal, Mid-South argues that the Board’s findings were not supported by substantial evidence and were not based upon matters officially noticed. The circuit court’s findings are clearly supported by the record.

Mid-South listed Jerry Malone on the application as the architect or engineer. When contacted by an investigator, however, he identified himself as Jerry Jackson and stated that he was not an engineer. The Board found that the accounts-receivable statement submitted with the renewal application did not match the audit papers from Mid-South’s accountants and Mark Gregory Jackson, Mid-South’s CEO, later admitted to altering those statements. The company’s president’s social security number provided on a bond application by Mid-South was found to be that of Mark Gregory Jackson’s nine-year-old son, Vincent Jackson. Meanwhile, the “Vincent Jackson” represented to be the president of Mid-South, admitted that he had little to do with the company and did not know whether he had an ownership interest. Mark Gregory Jackson represented to the Board that the same Vincent Jackson owned all the equipment used by Mid-South on August 12, 1994. Again, the elder Vincent Jackson stated that he had nothing to do with the company and knew nothing about Mid-South. At the same hearing, Mark Gregory Jackson contradicted himself by stating that Mid-South owned the equipment. Additionally, the evidence revealed that 50,000 shares of Mid-South stock had been transferred from Vera Williams to Mark Jackson Jr. on October 7, 1994, but the renewal application submitted in August of 1995 did not provide any information about such change in ownership. Finally, there was evidence introduced during the December 1995 hearing showing liens against Mid-South with an agreed order dated June 7, 1995, granting the U.S. Government a security interest on all equipment of Mid-South. This, too, was not revealed on the license-renewal application.

Based upon the foregoing evidence, we conclude that the Board’s decision was supported by substantial evidence and was not arbitrary nor capricious and could not be characterized as an abuse of discretion.

Affirmed.

Glaze and Imber, JJ., concur.

Annabelle Clinton Imber, Justice,

concurring. I concur with the majority but write to further expand on the majority’s analysis of Mid-South’s claims that it was denied due process because the alleged false statements made on the June 1994 application were mentioned in the December 1, 1995 hearing.

The June 1994 application was initially reviewed on July 22, 1994. It was again considered on August 12, 1994, at which time Mid-South was allowed to present evidence in support of the application. The Board then voted to deny the June 1994 application. A second application was filed on August 16, 1994. The Board granted a license to Mid-South on August 26, 1994.

Certain representations were made by Mid-South in both the June 1994 application and the August 1994 application. Specifically, Mid-South represented in both applications that Vincent Jackson was the president of the corporation and that “a principfal]” of Mid-South owned the equipment and leased it to .the corporation. Mid-South also submitted the same financial statement for the year ending May 31, 1994, with both applications.

The Board may reconsider its own decisions, especially where there is evidence of fraud or misrepresentations, in order to correct any previous error in granting a license. See e.g., North Hills Mem’l Gardens v. Simpson, 238 Ark. 184, 381 S.W.2d 462 (1964); Earp v. Benton Fire Dep’t, 52 Ark. App. 66, 914 S.W.2d 781 (1996); McCarty v. Board of Trustees, 45 Ark. App. 102, 872 S.W.2d 74 (1994). Similarly, Ark. Code Ann. § 17-25-308 (Repl. 1995) provides:

The Board shall have the power to revoke the certificate of license of any contractor licensed under this chapter who is found guilty of any fraud or deceit in obtaining a license or for aiding or abetting any contractor or person to violate the provisions of this chapter or for gross negligence, incompetence, or misconduct in the conduct of the contractor’s business.

(Emphasis added.)

The Board was entitled to reconsider its August 1994 decision to grant a license to Mid-South by reviewing Mid-South’s August 1994 application. The August 1994 application repeated many of the same representations previously made in the June 1994 application. Thus, the Board’s review of the June 1994 application was merely cumulative and not an abuse of discretion.

In conclusion, I join in the majority opinion, but also concur for the above reasons.

Glaze, J., joins in the concurrence.


text:
    Robert S. MOORE, as Director of the Alcoholic Beverage Control Division; Dr. Carl Hyman, James N. Walters, Robert J. Jones, Tony Ellis, and Michael Butler, as Members of the Alcoholic Beverage Control Division Board; and Billy G. Taylor v. Leo KING
    97-202
    945 S.W.2d 358
    Supreme Court of Arkansas
    Opinion delivered May 27, 1997

      Donald R. Bennett, for appellant Alcoholic Beverage Control Board.

      Charles R. Singleton, for appellant Billy G. Taylor.

      Lyons & Emerson, by: Jim Lyons, for appellee.
   Donald L. Corbin, Justice.

Appellant Robert S. Moore, Director of the Alcoholic Beverage Control (“ABC”) Division, individually and on behalf of the ABC Board, appeals the judgment of the Randolph County Circuit Court, which reversed the ABC Board’s decision to grant an application for a private-club permit to the Pocahontas Moose Lodge. The Arkansas Court of Appeals affirmed the trial court’s judgment. Moore v. King, 56 Ark. App. 21, 937 S.W.2d 677 (1997). We granted Appellant’s petition for review of that decision pursuant to Ark. Sup. Ct. R. 1-2(e) (as amended by per curiam July 15, 1996). When we grant review following a decision by the court of appeals, we review the case as though the appeal was originally filed with this court. Stucco Plus, Inc. v. Rose, 327 Ark. 314, 938 S.W.2d 556 (1997). We reverse the judgment of the trial court and affirm the decision of the ABC Board to grant the permit.

Facts and Procedural History

Pocahontas Moose Lodge #2405 filed an application for a private-club permit with the ABC Division on May 20, 1994. The ABC Division received written objections to the application from the Randolph County Sheriff, the Pocahontas Assistant Chief of Police, and Appellee Leo King, a nearby property owner. Specifically, the Sheriff disapproved of the lodge receiving a permit due to the lack of deputies to enforce the regulations at the lodge. The Pocahontas Assistant Chief of Police opposed the permit as promoting a traffic hazard on the roads near the lodge. Leo King and other private citizens alleged that the lodge would lower the value of nearby property and disturb the peace of the area. As a result of the foregoing objections, along with the concerns of building code requirements, the ABC Division Director initially denied the application on June 23, 1994, and the Moose Lodge appealed.

A hearing was held before the ABC Board on September 21, 1994, where supporters and opponents to the permit were heard. After the hearing, the lodge’s application was granted. Appellee appealed to the Randolph County Circuit Court on October 18, 1994. The circuit court reversed the decision of the ABC Board, determining that the issuance of the permit was arbitrary and capricious and characterized by an abuse of discretion. Apparently, the circuit court, on its own initiative, determined that Steve Rice, secretary of the Moose Lodge, had knowingly given false statements regarding the issue of whether the lodge had previously sold alcoholic beverages on its premises. The circuit court also found that the previous practices of obtaining alcohol at the lodge violated specific ABC regulations, which were not argued by Appellee in the hearing and which would, in any event, only provide for a revocation of a permit.

Appellant appealed to the court of appeals, which held that the circuit court had properly exercised its authority and that its ruling to reverse the decision of the ABC Division was correct in light of the fact that ABC regulations prohibited the issuance of a private-club permit in this instance. The court of appeals concluded that Steve Rice gave false testimony regarding the sale of liquor at the lodge and that Tommy Starr had been convicted of selling beer on the premises and was an officer of the Moose Lodge. At the hearing before the Board, however, there was no testimony revealing that Tommy Starr was an officer of the lodge, nor was there any request from Appellee for the Board to make a finding of fact with regard to ABC regulation 1.32(6), which prohibits the issuance of a permit if an officer of the corporation has been convicted of alcohol-related crimes.

Standard of Review

On appeal, our review is directed, not toward the circuit court, but rather toward the decision of the agency. Arkansas State Highway & Transp. Dep’t v. Kidder, 326 Ark. 595, 933 S.W.2d 794 (1996). In review of an agency decision, the circuit court’s review is limited to a determination of whether there was substantial evidence to support the agency’s decision and, on appeal, the supreme court’s review is similarly limited. Id. Administrative agencies, as opposed to courts, are better equipped by specialization, insight through experience, and more flexible procedures to determine and analyze legal issues affecting their agencies. Id. Questions concerning the credibility of witnesses and the weight to be accorded to the evidence presented lies within the prerogative of the agency, rather than the reviewing court. Williams v. Scott, 278 Ark. 453, 647 S.W.2d 115 (1983); Carder v. Hemstock, 5 Ark. App. 115, 633 S.W.2d 384 (1982).

Substantial evidence is defined as valid, legal, and persuasive evidence or such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Files v. Arkansas State Highway & Transp. Dep’t, 325 Ark. 291, 925 S.W.2d 404 (1996). To establish an absence of substantial evidence, it must be demonstrated that the proof before the administrative tribunal was so nearly undisputed that fair-minded persons could not reach its conclusions. Kidder, 326 Ark. 595, 933 S.W.2d 794.

ABC Board’s Decision

Appellant argues that the trial court erred in finding that the ABC Board’s decision to grant the permit to the Moose Lodge was not supported by substantial evidence. Appellant argues further that the trial court erred in usurping the authority and discretion of the ABC Division, thereby substituting its judgment for that of the administrative agency.

Administrative decisions should be upheld if they are supported by substantial evidence and are not arbitrary, capricious, or characterized by an abuse of discretion. Wacaser v. Insurance Comm’r, 321 Ark. 143, 900 S.W.2d 191 (1995). The courts determine whether there has been an arbitrary or unwarranted abuse of discretion, even though considerable judicial restraint should be observed in finding such an abuse. Bryant v. Arkansas Pub. Serv. Comm’n, 54 Ark. App. 157, 924 S.W.2d 472 (1996). An administrative decision should be reversed as arbitrary and capricious only when it is not supportable on any rational basis, not simply because the reviewing court would have acted differently. McKinley v. Arkansas Dep’t of Human Servs., 311 Ark. 382, 844 S.W.2d 366 (1993). The party challenging the agency’s action must prove that such action was willful and unreasonable, without consideration and with a disregard of the facts or circumstances of the case. Beverly Enter.-Ark., Inc. v. Arkansas Health Servs. Comm’n, 308 Ark. 221, 824 S.W.2d 363 (1992); Bryant, 54 Ark. App. 157, 924 S.W.2d 472.

The ABC Board has the power to determine whether “public convenience and advantage will be promoted” by granting liquor permits. Arkansas Alcoholic Beverage Control Bd. v. Muncrief 308 Ark. 373, 376, 825 S.W.2d 816, 817 (1992). In order to carry out the legislative intent and the requirements of the Alcoholic Beverage Control Act, the ABC Board must look at factors which directly weigh on the public convenience and advantage. Fouch v. State, Alcoholic Bev. Cont. Div., 10 Ark. App. 139, 662 S.W.2d 181 (1983).

Here, the findings of fact and conclusions of law made by the ABC Board reflect that the Moose Lodge was qualified to make application and that it was in the overall interest of the public to grant the application. The ABC Board found the Moose Lodge to be properly organized as a nonprofit corporation with more than 100 members, which had a building to accommodate its members and guests. While the ABC Board conceded that there had been problems with the lodge’s alcohol use in the past, such as the previous conviction of a member selling alcohol and the law enforcement-tolerated “brown-bag” practices, the Board nonetheless found that granting the license and placing the lodge under regulatory authority would cure the problems previously experienced by the Moose Lodge. When considering the suitability of the location, the ABC Board found that there were no particular problems or traffic dangers with the use of the neighboring roads and highway and further found that the public’s interest would be served by the charitable donations made by the Moose Lodge. The Board also conditioned the granting of the permit upon full compliance within six months with the building requirements and the posting of a surety bond. The Board set out findings which related directly to the public convenience and advantage in granting the permit.

On appeal to both the trial court and court of appeals, the decision to reverse the ABC Board’s decision, thereby denying the permit to the Moose Lodge, was based on ABC regulations dealing with false information at hearings and alcohol-related convictions. These regulations were not, however, argued by Appellee at the hearing before the ABC Board. We are persuaded by the dissent to the court of appeals’ decision that the courts should not consider grounds not presented to the agency because to do so would deny the agency the opportunity to consider the matter, make its ruling and express the reasons for its action. Franklin v. Arkansas Dep’t of Human Servs., 319 Ark. 468, 892 S.W.2d 262 (1995). It is not the function of the courts to make findings of fact with respect to issues raised for the first time on appeal. The trial court overturned the ABC Board’s decision on grounds not raised in the hearing below, thereby improperly substituting its judgment for that of the agency. Because we conclude that there was substantial evidence to support the ABC Board’s decision to grant the private-club permit to the lodge we reverse the judgment of the trial court and affirm the Board’s decision.

Imber, J., not participating.


author: Robert L. Brown, Justice.

text:
    John W. FINK v. James A. NEAL, as Executive Director of the Supreme Court Committee on Professional Conduct
    96-450
    945 S.W.2d 916
    Supreme Court of Arkansas
    Opinion delivered May 27, 1997

      Jack, Lyon & Jones, P.A., by: Philip K. Lyon; and Kaplan, Brewer & Maxey, P.A., by: Philip E. Kaplan, for appellant.

      Boyett, Morgan & Killough, P.A., by: Comer Boyett, Jr., for appellee.
   Robert L. Brown, Justice.

Appellant John W. Fink appeals the decision of the Arkansas Supreme Court Committee on Professional Conduct (Committee), which found that he had violated Rule 8.4(d) of the Model Rules of Professional Conduct and issued a letter of caution as the sanction. This matter is appealed to this court under Section 5 of the Procedures of the Court Regulating Professional Conduct of Attorneys at Law. On de novo review, we affirm the decision of the Committee.

On September 8, 1991, Ruth James accompanied her brother, John Shelman, to St. Vincent Infirmary (St. Vincent) because he was thought to be having a heart attack. Due to Shelman’s physical condition, he was unable to complete the required admission forms at the time of his arrival. His sister, James, filled out certain forms on his behalf, one of which purported to personally guarantee Shelman’s payment for services rendered by the hospital. Shelman was released, and he returned on two later occasions for additional observation and tests. It is uncontroverted that James incurred no liability as a result of Shelman’s latter two hospital stays.

Shelman subsequendy became delinquent in his payments to St. Vincent, and his account was assigned for collection to Independent Service Finance, Inc. (ISF), a corporation which was owned at the time by the hospital. As counsel for ISF, appellant Fink caused a complaint to be filed against James and Shelman on October 7, 1992, for the collection of $13,831.44, which represented the sum due for all three of Shelman’s hospital visits. Service was had on Shelman on October 14, 1992. James, however, was not served until November 18, 1992. James filed an answer pro se with the Prairie County Circuit Court on November 19, 1992, but did not serve the answer upon either ISF or Fink.

On November 20, 1992, Fink filed a motion for default judgment with the Prairie County Circuit Court. The default judgment, which was signed by the court on November 23, 1992, but filed for record on January 11, 1993, provided in part:

The Defendants have been duly served with Summons for more than twenty days before this date, as required by law, the Defendants have failed to appear and defend; the Defendant John Shelman, Sr. is indebted to the Plaintiff, by virtue of an account with the Plaintiff, in the total sum of thirteen thousand eight hundred thirty one and 44/100 dollars ($13,831.44).

The judgment was then taken against Shelman in the amount of $13,831.44, but not against James.

Shelman remained delinquent on the account. As a result, on August 26, 1994, Fink caused a writ of garnishment to be issued against James’s employer, Capitol Movers. James later contended that she was not sent a copy of the motion for default judgment or served with the writ of garnishment. The Committee found that James was not served with a copy of the motion for default judgment.

On September 8, 1994, Fink sent a letter to the Prairie County Circuit Court in which he moved to amend the default judgment because of a “mistake” in order to clarify that James was joindy liable with Shelman for the sum of $4,729.91, resulting from the first hospital stay. On September 21, 1994, the trial court denied the motion and ruled that it could not amend a judgment against a party due to a clerical mistake without notice to that affected party. In the interim, James filed a pro se motion to quash the writ of garnishment or, in the alternative, to set aside the default judgment. On October 4, 1994, Fink again sent a letter to the court moving to amend the default judgment and completed a certificate of service stating that copies of the motion were served on both Shelman and James by U.S. Mail.

On October 26, 1994, Fink sent a letter to James advising her that she had filed a timely answer to ISF’s complaint and admitting that a default judgment should not have been entered against her. Fink wrote that he would send an order to the Prairie County Circuit Court that would set aside both the default judgment and the writ of garnishment. That same day, Fink forwarded an order to the circuit court which also provided that the matter would be set for trial at the request of ISF. Fink assured James that any funds that had been garnished would be returned to her.

As a result of these events, James filed a complaint against Fink with the Supreme Court Committee on Professional Conduct and alleged violations of Rules 1.1, 3.3(a)(1), 3.3(d), and 8.4(d) of the Model Rules of Professional Conduct. After this complaint was filed, Fink dismissed the ISF complaint in circuit court without prejudice. In defense of the complaint made by James, Fink testified that he did not receive notice of the fact she had filed an answer to the October 7, 1992 complaint until October 6, 1994. He stated that he employed a “tickler” system in his law office under which a paralegal would count 20 days from service of process, at which time the paralegal was to contact the circuit clerk’s office to determine whether an answer had been filed. Fink stated that he required the paralegal to contact the circuit clerk’s office in recognition of the fact that many people indebted to ISF would proceed pro se and file an answer without complying with the service requirements of the Arkansas Rules of Civil Procedure. Depending upon whether an answer had been filed, Fink would either move for a default judgment or initiate discovery. In this case, Fink stated that he did not know whether his paralegal either failed to contact the circuit clerk’s office or received false information from that clerk.

Fink further stated that his file on the case against Shelman and James reflected only that service had been perfected on October 14, 1992. According to the usual practice, separate file notations should have been made that detailed when service was made on each of the named defendants. In this case, only one notation of service completion was made without reference to either defendant. Fink explained that this error, in conjunction with James’s failure to serve him with her answer, set in motion the course of events that led to the entry of the default judgment which incorrectly provided both defendants had been summoned 20 days prior and no answer had been forthcoming.

Fink averred that after the default judgment was entered, Shelman made intermittent payments to ISF for a period of time but eventually ceased making payments altogether. As a result, a writ of garnishment was issued to James’s employer on August 26, 1994. Fink explained that the writ would not have issued had Shelman continued making payments, and he took issue with James’s assertion that she did not receive notice of the writ. Fink acknowledged that had he looked beyond the notations on his ISF file pertaining to Shelman and James, he might have discovered that he did not perfect service on James on October 14, 1992. He recognized that mistakes were made but asserted a lack of intentional misconduct. He further emphasized that he took corrective measures once the facts came to his attention.

Based on the evidence presented at the hearing, the Committee issued a letter of caution to Fink after finding that he had violated Rule 8.4(d) of the Model Rules, which provides that it is professional misconduct for a lawyer to “engage in conduct that is prejudicial to the administration of justice[.]”

Fink’s salient point on appeal to this court is that the Committee erred in finding a violation of Rule 8.4(d) and further erred in sanctioning him with a letter of caution. He further contends that his actions did not constitute a violation of Model Rules 1.1, 3.3(a)(1), or 3.3(d). On review of a decision of the Supreme Court Committee on Professional Conduct, this court reviews the matter de novo on the record and pronounces judgment as if its opinion had been rendered by the Committee. Mays v. Neal, 327 Ark. 302, 938 S.W.2d 830 (1997); Finch v. Neal, 316 Ark. 530, 873 S.W.2d 519 (1994). This court further affirms the Committee’s action unless it is clearly against the preponderance of the evidence and will not reverse the Committee’s findings unless they are clearly erroneous.

Two recent cases are probative regarding this court’s jurisprudence on Model Rule 8.4(d). See Clark v. Supreme Court Comm. on Prof'l Conduct, 320 Ark. 597, 898 S.W.2d 446 (1995); Finch v. Neal, supra. In Clark v. Supreme Court Comm. on Prof'l Conduct, supra, we affirmed the Committee’s suspension of an attorney’s law license for a period of six months based on its finding that counsel had violated Model Rules 1.1, 1.3, and 8.4(d). In Clark, the plaintiff allegedly sustained a personal injury while she and her husband were visiting the site where their new home was being constructed. Her attorney filed a personal-injury claim on her behalf and on behalf of her husband against the general contractor. The contractor filed a motion to dismiss for improper venue, and an order of dismissal was entered shordy thereafter. Even though her attorney acknowledged receipt of the motion, he averred that he did not learn of the dismissal order until long after the applicable three-year statute of limitation had expired.

From the record, it was clear that counsel knew the motion to dismiss was well-founded because he informed the plaintiffs that, although they still had a claim, the lawsuit would have to be filed in a different county.

But he did not refile the lawsuit. He explained that he told his clients that they should hire another attorney and that he “didn’t tell them that [he] would, but [he] didn’t tell them that [he] wouldn’t” refile the lawsuit. Clark v. Supreme Court Comm. on Prof’l Conduct, 320 Ark. at 599, 898 S.W.2d at 447. However, counsel never terminated the legal relationship, and during 1991, 1992, and 1993, the plaintiffs remained in contact with him about the personal-injury action and his representation of them in other matters. This court affirmed the sanction levied against the attorney because he was the attorney of record and “essentially ignored his clients’ case for nearly two years” after the defendant filed a motion to dismiss that counsel knew was meritorious. Clark v. Supreme Court Comm. on Prof’l Conduct, 320 Ark. at 601, 898 S.W.2d at 449.

In Finch v. Neal, supra, we affirmed the Committee’s reprimand of counsel for a violation of Model Rule 8.4(d) in connection with conduct against a party who was not the counsel’s client. In Finch, counsel filed a motion to abate child support on behalf of the father against his ex-wife. Accompanying the motion was a letter to the ex-wife stating that the Pulaski County Child Support Enforcement Unit (CSEU) no longer represented her and that CSEU would not be included in the notice. She spoke with a CSEU representative who told her that counsel for the father was correct; however, she completed an application to reopen her file and obtain representation from CSEU. Realizing the length of the application process, she also hired a private attorney, who responded to the motion and propounded requests for production and a counter-petition, both of which were served on counsel for the father.

Following these events, the father’s attorney propounded requests for admission of facts to the ex-wife and noted that service of the requests was made on “both attorneys for plaintiff.” Finch v. Neal, 316 Ark. at 534, 873 S.W.2d at 520. Private counsel for the ex-wife filed pleadings and discovery, but the father’s counsel did not respond to the pleadings or discovery. During this period of time, the father’s counsel contacted the attorney for CSEU and both agreed to an order for abated child support that was filed for record by CSEU’s attorney. Neither the ex-wife nor her private counsel was informed of the agreed order, nor were they aware of the underlying actions taken by the father’s counsel and counsel for CSEU. Before the Committee, CSEU’s counsel and the father’s counsel both testified that there was confusion about who was the ex-wife’s attorney of record. Counsel for the father admitted that he knew her private counsel had filed pleadings on her behalf but pointed to the fact that CSEU was also providing her with legal representation. He took the position that notice to the private counsel was not required because that counsel had yet to make an appearance in the chancery court.

On appeal, this court affirmed the finding of a Model Rule 8.4(d) violation and stated:

Whether it was intentional or unintentional, the facts remain that Mr. Finch [father’s counsel] drafted the proposed order, circumvented Ms. McIntyre [ex-wife] and her counsel, Mr. Kizer, and negotiated a settlement of these proceedings without the benefit of input from either party. Mr. Finch’s conduct under these circumstances was prejudicial to the administration of justice, and for these reasons we affirm the Committee’s action.

Finch v. Neal, 316 Ark. at 540, 873 S.W.2d at 523 (emphasis added).

In support of a reversal in the case at hand, Fink attempts to distinguish the immediate case from Finch v. Neal, supra. He contends that, unlike the situation in Finch, the conduct for which he has been sanctioned was undertaken without actual knowledge of the underlying facts. He espouses three reasons for his failure to know about James’s answer, as he did before the Committee: (1) James failed to comply with the Arkansas Rules of Civil Procedure in not serving him with a copy; (2) his paralegal either failed to comply with his “tickler” system or was misinformed by the circuit clerk; and (3) his paralegal failed to mark the file clearly on the times when both James and Shelman were served with the complaint and summons. Fink admits responsibility for what has occurred, but he urges that his misconduct was not intentional but merely negligent. This, he maintains, is further proven by his voluntary implementation of the “tickler” system, which in most cases provides protection to pro se litigants.

Fink also distinguishes Finch v. Neal, supra, on grounds that Finch never admitted his mistake and did not take corrective measures to minimize the prejudice suffered by the ex-wife. However, Fink asserts that he took corrective measures once the relevant facts came to light. He contends that such action is consistent with the purpose of Model Rule 8.4(d), which is to promote the administration of justice by proscribing unnecessary and inappropriate impediments to the resolution of legal disputes. He opines that punishing his conduct does not further that rule but would only have a chilling effect on attorneys who might otherwise attempt to rectify a previous error.

In stark contrast, the Committee contends that Fink committed a number of mistakes that illustrate his indifference to his obligation as a practicing attorney. The Committee notes: (1) the complaint filed by Fink did not clearly identify the sum of money purportedly guaranteed by James; (2) even assuming that Fink did not know when James’s answer was filed, the motion for default judgment was untimely in that it was signed by the court only five days after James was actually served; (3) had Fink looked to the contents of his file, he would have discovered that James was not served until November 18, 1992; (4) the default judgment erroneously provided that James had been served for 20 days and had not answered the complaint; (5) a writ of garnishment was issued based on a default judgment that failed to state that a judgment had been entered against James; and (6) the motion for amended judgment again provided that James had not filed an answer to the complaint. The Committee argues that Fink cannot place the blame on either James, a paralegal, or the Prairie County Circuit Clerk.

It is clear that the Committee did not make a finding of intentional misconduct on Fink’s part. Thus, a primary issue in this appeal is whether an attorney can be sanctioned under Model Rule 8.4(d) for what is essentially negligent conduct, and if so, under what standard. This court has already answered the first question. In Finch, we stated unequivocally that intentional misconduct is not a prerequisite for a finding of a Model Rule 8.4(d) violation. Moreover, the case of Clark v. Supreme Court Comm. on Prof’l Conduct, supra, indicates that gross negligence in handling a client’s affairs is sufficient for disciplinary action under the rule.

In holding that proof of intentional misconduct is not required for a finding that rules of professional conduct have been violated, this court is certainly not alone. For example, the Supreme Court of Oregon provided a persuasive discussion of its equivalent to Model Rule 8.4(d) in In re Claussen, 909 P.2d 862 (Or. 1996). The court in Claussen concluded: “The focus of the rule is on the effect of a lawyer’s conduct on the administration of justice, rather than on the lawyer’s state of mind when the conduct is undertaken.” In re Claussen, 909 P.2d at 870 (emphasis in original). See also In re Simpson, 645 P.2d 1223 (Alaska 1982)(mis-representation arising from gross negligence is sufficient for a finding of conduct prejudicial to the administration of justice); People v. Mills, 861 P.2d 708 (Colo. 1993)(finding conduct prejudicial to the administration of justice when respondent, whether intentionally or negligently, improperly asserted a lien on his client’s estate proceeds); Florida Bar v. McClure, 575 So.2d 176 (Fla. 1991)(find-ing conduct prejudicial to the administration of justice when respondent, whether intentionally or negligently, mismanaged funds to the detriment of estate beneficiaries). In re Witt, 583 N.E.2d 526 (Ill. 1991)(an attorney may be disciplined for engaging in conduct prejudicial to the administration of justice though his conduct is based merely upon an honest mistake). Cf. In the Matter of Anonymous, 637 N.E.2d 131 (Ind. 1994)(an attorney’s transgressions due to simple neglect and inattention to ethical guidelines will not be excused); State v. Martin, 646 P.2d 459, 463 (Kan. 1982)(“[G]ross carelessness and negligence constitute a violation of the oath of an attorney to ‘discharge your duties as an attorney ... to the best of your knowledge and ability.’”); Attorney Q v. Mississippi State Bar, 587 So.2d 228 (Miss. 1991)(sanctions may be imposed based on incompetence, neglect, and other violations short of deliberate or intentional misconduct), cert. denied, 502 U.S. 1098 (1992).

The guiding principle in this litany of cases appears to be that the level of improper conduct, whether negligent, reckless, or intentional, is relevant to the sanction levied as opposed to the classification of whether the conduct is unethical. See, e.g., In re Simpson, supra; In re Witt, supra; In re Corboy, 528 N.E.2d 694, 698 (Ill. 1988) (“Evidence showing lack of dishonest intent is usually only appropriate to determine the nature and severity of the sanction imposed.”); State v. Martin, supra; Attorney Griev. Comm’n v. Ficker, 572 A.2d 501 (Md. 1990).

A recent case in Oklahoma that also concerned an asserted Rule 8.4(d) violation in connection with the representation of a collection agency is State v. Bourne, 880 P.2d 360 (Okl. 1994). In Bourne, the Supreme Court of Oklahoma determined that the Oklahoma State Bar faded to prove a violation of Model Rule 8.4(d) because counsel was forced to rely on information furnished by the collection agency. However, in its analysis, the court looked to Rule 11 of the Federal Rules of Civil Procedure, which is comparable to Ark. R. Civ. P. 11, for guidance. The Bourne case is readily distinguishable from the instant case in that ISF was not responsible for Fink’s mistakes. However, the Oklahoma Supreme Court emphasized a standard in Bourne that we believe is instructive for the case at hand, and that standard is whether Fink’s conduct equates to a violation of our Rule 11 of the Rules of Civil Procedure.

In analyzing a potential Rule 11 violation, we have stated:

By the terms employed in the Federal and Arkansas Rules 11, an attorney signing a pleading, motion, or other paper on behalf of a party constitutes a certificate that (1) the attorney made a reasonable inquiry into the facts supporting the document or pleading, (2) he or she made a reasonable inquiry into the law supporting that document to ensure that it is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and (3) the attorney did not interpose the document for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

Ward v. Dapper Dan Cleaners & Laundry, Inc., 309 Ark. 192, 194-195, 828 S.W.2d 833, 835 (1992).

Our assessment of the chain of events in the instant case is that Fink indeed failed to make reasonable inquiry into the facts at critical stages of the Shelman/James litigation, and these failures ultimately led to a writ of garnishment being issued to James’s employer for her wages. Had Fink read the file he would have known that James was not responsible for the full amount claimed in the complaint. Had he read the file, he also would have known when James was served. Had he checked with the circuit clerk, he would have known that James answered the complaint. And had he carefully reviewed the default judgment prior to having the writ of garnishment issued, he would have known that judgment was not taken against James and that the writ was clearly in error.

The Preamble to our Model Rules of Professional Conduct states that a “lawyer should use the law’s procedures only for legitimate purposes and not to harass and intimidate others.” At some point, a series of errors such as we have in the instant case moves beyond mere negligence and enters the realm of harassment and intimidation, whether intentional or not. We do not mean to suggest that every Rule 11 violation equates to a violation of the Model Rules of Professional Conduct. And yet we have no doubt that James was harassed by counsel’s actions, and that this conduct qualifies as conduct prejudicial to the administration of justice.

While James as a pro se defendant did not serve Fink with her answer and while Fink’s paralegal made mistakes, the responsibility for these actions must be laid directly at his feet, as Fink recognizes. We conclude that Fink’s actions are sufficient to warrant a finding that they were prejudicial to the administration of justice and sufficient to support the sanction of a letter of caution.

Affirmed.

Corbin, J., not participating.


text:
    Marcus HUBBARD v. STATE of Arkansas
    CR 96-1534
    926 S.W.2d 663
    Supreme Court of Arkansas
    Opinion delivered May 27, 1997

      William R. Simpson, Jr., Public Defender, by: Deborah R. Sailings, Deputy Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: Kelly Terry, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

Appellant Marcus Hubbard was convicted of first-degree murder for the shooting death of Bumble Carroll and sentenced to hfe imprisonment. He raises three points for reversal, none of which has merit. We affirm.

Hubbard was tried once before for this same offense, but the trial court declared a mistrial because the jury could not reach a verdict. In the second trial, Brenda Bell was the first witness for the State. She testified that she was Kimble Carroll’s girlfriend and that on January 12, 1994, she was five months pregnant with his child. On that date at about 11:00 p.m., she and Carroll were in her apartment in North Little Rock and verbally fighting about his consumption of alcohol. Bell decided to leave her apartment and was not wearing a coat. Because it was a cool evening, Carroll followed with a coat in hand and tried to convince her to put the coat on and return to the apartment. She testified that by the time the two had walked down the block and crossed the street, Carroll had talked her into returning to the apartment. As they were in the process of returning to the apartment, they saw Hubbard and Marcus Talley on the other side of the street.

Hubbard crossed the street to where Bell and Carroll were standing. He asked the pair what was wrong, and he told Carroll to give Bell the coat he was carrying. Bell then asked Hubbard if he had seen her brother, and Hubbard answered that if he saw her brother, he would tell him that Bell was looking for him. Bell began to cross the street, but Carroll waited because a car was approaching. Marcus Talley in turn began to walk across the street toward Carroll and Hubbard, when Bell heard shots and turned to see Hubbard, standing at arms’ length from Carroll and shooting him in the back. She testified that Carroll turned to his assailant and asked: “[W]hat did I do[?]” Hubbard then shot Carroll several more times, after responding: “[Y]ou ain’t worth it . . . .” Bell testified that she heard a total of five or six shots and was certain that Hubbard was the trigger man. Hubbard and Talley then ran away.

Marcus Talley also testified for the State. He related that on the evening of January 12, 1994, Hubbard arrived at a mutual friend’s house with a .38 caliber revolver. Hubbard and Talley left the house, and as they walked down the street, they approached Bell and Carroll during their altercation. Talley stated that he heard Hubbard tell Carroll to give her the jacket back and heard Bell ask Hubbard to go get her brother. Talley stated that he began walking away from the group when he heard shots. He testified that he heard Carroll exclaim: “[Wjhat the hell [is] going on.” When he turned to look, he saw shooting and ran. He specifically denied shooting Carroll.

Dr. William Sturner, Chief Medical Examiner at the Arkansas State Crime Laboratory, testified that he performed the autopsy on the victim and stated that five bullets were removed from Carroll’s body. He further stated that although Carroll had a blood-alcohol content of .25 percent, he concluded that the cause of his death was multiple gunshot wounds, which resulted in massive internal bleeding.

Ann Hoff, a criminalist in the Trace Evidence Section of the Arkansas State Crime Laboratory, performed a gunshot residue test on Carroll’s coat and determined that Carroll had been shot at least once and possibly twice in the back at close range. She opined that the distance was close enough to be contact shots.

The defense offered testimony from Kimberly Hyams, a licensed psychological examiner. She testified that Bell had been under her care prior to the murder in connection with a suicide attempt that followed a previous miscarriage and that Bell had been prescribed antipsychotic medication. She explained that Bell had been suffering occasional auditory hallucinations, usually in the form of hearing an imaginary baby cry.

Two witnesses testified for the defense that Marcus Talley was carrying a pistol on the night of the murder. Hubbard also testified on his own behalf. He explained that on the night of the shooting, he was 18 years old. He testified that he met Talley that evening, and the two men were walking to a nearby grocery store when they encountered Bell and Carroll, who were having a loud argument. Hubbard explained that he and Talley had decided to leave until Carroll began using profanity. Hubbard stated that Talley was already upset, and he saw Talley turn around and begin shooting Carroll. Hubbard admitted that he fled the scene. He also admitted that he gave a false name to police detectives when he was arrested. He stated that he did this because at that time, he was awaiting sentencing on a guilty plea for possession of cocaine with intent to deliver.

The jury returned a guilty verdict for first-degree murder, and after the sentencing phase, Hubbard was sentenced to life imprisonment.

I. Hearsay Statement

For his first point, Hubbard claims that the trial court erred in disallowing his testimony that the victim owed Marcus Talley money. The theory of the case for the defense was that Talley was the person who shot Carroll. To prove that theory, Hubbard attempted to show a motive based on a debt owed by Carroll to Talley which led to the killing. The following colloquy ensued during Hubbard’s direct examination:

DEFENSE COUNSEL: Why was Mr. Talley upset?
HUBBARD: Because Mr. Carroll owed him some.
PROSECUTOR: Your Honor, I’m going to object at this time. Calls for speculation of the witness.
THE COURT: Approach.
DEFENSE COUNSEL: Mr. Talley has told him.
THE COURT: That’s hearsay. Sustain the objection.

At this point, the direct examination of Hubbard by defense counsel continued without objection or further comment. Hubbard went on to testify that because Talley was upset, he started shooting Carroll.

Hubbard contends on appeal that the trial court erred in excluding his testimony about what Talley told him concerning Carroll’s debt because it was for the purpose of proving motive and ill will on the part of Talley and not to establish the truth of the matter asserted. Hubbard cites us to the case of Hill v. State, 314 Ark. 275, 862 S.W.2d 836 (1993), in support of his contention.

We do not reach the merits of this argument. It is a fundamental rule that an issue not raised before the trial court may not be raised for the first time on appeal. Burton v. State, 327 Ark. 65, 937 S.W.2d 634 (1997); Wallace v. State, 326 Ark. 376, 931 S.W.2d 113 (1996). In this case, the prosecutor objected to Hubbard’s testimony about what Carroll owed Talley on the basis that it called for speculation. Defense counsel responded to the speculation argument at the bench conference by asserting that Talley told him about the debt, but the trial court sua sponte sustained the prosecutor’s objection on hearsay grounds. There was no response by defense counsel to the trial court’s reasoning and certainly no arguments concerning motive and whether the questioning constituted hearsay.

These facts bear some of the hallmarks of Bayless v. State, 326 Ark. 869, 935 S.W.2d 534 (1996). In Bayless, the appellant objected to the testimony of a State witness offered in rebuttal whose identity was not disclosed under Ark. R. Crim. P. 17.1. In response, the State argued that the witness was a genuine rebuttal witness whose name was not required to be disclosed in discovery. Defense counsel offered no response, and the trial court allowed the witness’s testimony. On appeal, appellant sought to argue that the witness was not a genuine rebuttal witness. We determined that our consideration of the matter was barred because the appellant had not offered any response to the State’s argument at trial.

As was the case in Bayless, Hubbard now attempts to make an argument to this court that was not made to the trial court, and it was imperative that he do so. Because he never questioned the trial court’s ruling, his point is barred from our review.

II. Impeachment by Prior Conviction

Hubbard next challenges his impeachment with the prior offense of possession of cocaine with intent to deliver on the basis that undue prejudice resulted from use of that conviction. Prior to trial, Hubbard moved in limine to prevent the State from introducing the 1994 felony conviction to impeach his credibility. At that time, the following colloquy took place:

DEFENSE COUNSEL: I would argue that the prejudicial effect vastly outweighs the probative value.
THE COURT: All right.
DEFENSE COUNSEL: You can look at this transcript [from the previous trial] to see how [appellant] testified and make a ruling as to the importance of his testimony and credibility to the jury. Not only do they have Brenda Bell but this time they have Mr. Talley. So, I’m in the position, as I’ve told my client, of calling two eyewitnesses liars as opposed to just challenging Miss Bell.
THE COURT: Well, Mr. Talley’s going to be impeached with his prior record anyway, with his felony conviction. So, the ruling is consistent. Each can be impeached with felony convictions.

At trial, defense counsel renewed the motion during direct examination of Hubbard, and the motion was again denied.

It is clear that under Ark. R. Evid. 609(a), the State may ask a criminal defendant about prior felony convictions regardless of whether the crime involved an element of untruthfulness. Smallwood v. State, 326 Ark. 813, 935 S.W.2d 530 (1996). But for these convictions to be available to impeach credibility, “the probative value of admitting this evidence [must outweigh] its prejudicial effect to a party or a witnessf.]” Turner v. State, 325 Ark. 237, 242, 926 S.W.2d 843, 846 (1996), quoting Ark. R. Evid. 609(a).

The sole question to be answered on this point is whether the impeachment value of the felony conviction was outweighed by its prejudicial impact. This court has explained its standard for review on this question:

[T]he trial court has considerable discretion in determining whether the probative value of prior convictions outweighs their prejudicial effect, and that decision will not be reversed absent an abuse of discretion. The admissibility of the prior convictions must be decided on a case-by-case basis. When the defendant chooses to testify, this court has consistently permitted prior convictions to be used for impeachment even where those convictions are similar to the charge or charges before the trial court.

Turner v. State, 325 Ark. at 242, 926 S.W.2d at 846 (citations omitted). We have further stated that the trial court should consider the following in making its decision: the impeachment value of the prior crime; the date of the conviction and the defendant’s subsequent history; the similarity between the prior conviction and the crime charged; the importance of the defendant’s testimony; and the centrality of the credibility issue. Schalski v. State, 322 Ark. 63, 907 S.W.2d 693 (1995).

Hubbard’s argument essentially is that the trial court took a “mechanistic” approach and did not give due consideration to the prejudicial effect of the felony conviction. We disagree. As can be gleaned from the colloquy quoted above, the trial court did consider the prejudicial impact of the cocaine conviction. It is true that Hubbard’s conviction for possession of cocaine with intent to deliver is dissimilar to the charge of first-degree murder, but by the same token the cocaine conviction gives no hint that Hubbard had a propensity to commit murder. We also note that the cocaine conviction was recent in time which rendered it more relevant to the issue of Hubbard’s credibility, as we recognized in Schalski v. State, supra. Finally, Hubbard did not request a limiting instruction that his prior conviction be considered only for impeachment purposes and not as evidence that he committed the murder. See AMI Crim. 2d 203. This could well have clarified the matter further for the jury. Considering all of these factors, we conclude that there was no abuse of discretion.

III. Instructing the Jury on Parole Eligibility

Hubbard’s final point relates to the use of AMI Crim. 2d 9402, which instructs the jury on parole eligibility. Hubbard admits, however, that he did not raise this argument to the trial court. As a result, it is barred from our review. See Burton v. State, supra; Wallace v. State, supra.

The record in this case has been examined pursuant to Ark. Sup. Ct. R. 4-3(h), and no rulings adverse to Hubbard that constitute prejudicial error have been found.

Affirmed.

       In addition to impeachment for a felony conviction for second-degree battery, defense counsel attempted to impeach Marcus Talley with a misdemeanor conviction for possession of marijuana. The trial court disallowed use of the misdemeanor conviction for impeachment purposes.