author: Donald L. Corbin, Justice. Glaze, J., Steele Hays, Justice,

text:
    JACUZZI BROTHERS, INC. v. Floyd L. TODD
    93-1288
    875 S.W.2d 67
    Supreme Court of Arkansas
    Opinion delivered May 2, 1994

      Friday, Eldredge & Clark, by: James C. Baker, Jr., for appellant.

      Gary Eubanks & Associates, by: James Gerard Schulze, for appellee.
   Donald L. Corbin, Justice.

Appellant, Jacuzzi Brothers, Incorporated, appeals a judgment of the Saline Circuit Court awarding appellee, Floyd L. Todd, damages of $612,500.00 in a slip and fall case. Appellant asserts three points of error in the jury trial. We find merit in the last point, and we modify on condition of remittitur.

Appellee was employed by Little Rock Sheet Metal when he slipped and fell as he exited appellant’s plant on February 20, 1990. Appellee entered appellant’s plant to measure for a new sheet metal job. He returned to the same door he had entered and found it closed, so he exited a red door with an “exit” sign above it. He tripped near the bottom of the concrete stairs that were approximately three feet from the door he exited. A chunk of concrete was missing from one of the steps, and appellee caught his foot in the hole created by the missing concrete. As a result of the fall, appellee suffered a back injury requiring two surgeries and the possibility of a third surgery in the future. Pursuant to the jury verdicts, appellee was awarded $600,000.00 in damages and a separate verdict of $12,500.00 for future surgical expenses. Appellant unsuccessfully moved for a new trial, and this appeal followed.

Appellant first contends the trial court erroneously allowed the interjection of evidence concerning a subsequent remedial measure. At the time of appellee’s fall, there was an “exit” sign on the door he exited, and subsequent to his fall, the sign was removed. Appellant argues the removal of the “exit” sign constitutes a subsequent remedial measure which is inadmissible as proof of negligence under A.R.E. Rule 407. Appellant contends this prejudicial error occurred during cross-examination of Mr. Gale Graham, appellant’s facilities and environmental engineer:

Q Just to be sure. You’re not saying there was' a sign that said emergency exit only, you’re saying you just don’t know?
A Right.
Q You do know that there was a sign at one point in time that said exit?
A Probably was, yeah. There’s evidence there was a sign on the door, okay.
Q Since February 20, 1990, there has been a sign that said exit?
A I didn’t see an exit the other day. I didn’t see a sign on the door that said exit.

Appellant moved for a mistrial after the last question and answer quoted above. Appellee contends this last question was justified impeachment based upon misleading statements Mr. Graham made characterizing the door as an emergency exit door painted red with panic hardware. Apparently, appellee relies on the impeachment exception to Rule 407. However, reliance on the impeachment exception is misplaced. Appellee could have established what he desired — that the door did have an “exit” sign on it as opposed to an- “emergency exit only” sign on the day of appellee’s accident, February 20, 1990, and that Mr. Graham stated in his deposition that the door did in fact have an “exit” sign on it —■ without ever making reference to the status of the door after February 20, 1990.

We agree with appellant that the question relating to the status of the sign on the door after the date of the accident was an improper question for the purpose of proving appellant’s negligence at the time of the accident. A.R.E. Rule 407. The trial court correctly instructed appellee not to proceed with any questions regarding the status of the door after February 20, 1990. However, the trial court, who was in a superior position to judge the effect of the erroneous question on the jury, did not see the error as prejudicial and grounds for a mistrial. We cannot say the trial court abused its discretion in this regard.

The trial court had twice previously sustained objections appellant made regarding subsequent remedial measures, and the judge offered to give the jury a cautionary instruction. Appellant did not accept the trial court’s offer nor did it request the question and answer be stricken. Appellant contends a mistrial is the only remedy appropriate in this instance and that this is the reason it did not accept the trial court’s offer to give the jury a cautionary instruction. We cannot agree that a mistrial was the only appropriate remedy here, given that the trial court had previously sustained appellant’s objections on Rule 407 grounds and was very careful to maintain strict control of the evidence in this regard.

We also cannot agree that Rule 407 is something akin to a privilege, requiring automatic reversal if violated. While we recognize there is a two-pronged rationale for excluding evidence of subsequent remedial measures — the lack of relevance and the public policy of encouraging such measures — the policy consideration merely strengthens the argument for exclusion, but does not require exclusion. Rule 407 remains part of the article on relevance, not part of the article on privileges. See Arkansas Rules of Evidence, Articles IV and V.

A trial court is vested with considerable latitude and discretion when considering a motion for mistrial. Bull Shoals Community Hosp. v. Partee, 310 Ark. 98, 832 S.W.2d 829 (1992). A mistrial is an extreme remedy to be granted only when it is apparent that justice cannot be served by continuing the trial. Morton v. Wiley, 271 Ark. 319, 609 S.W.2d 322 (1980); Rickett v. Hayes, 256 Ark. 893, 511 S.W.2d 187 (1974). Deferring to the trial court’s superior position to judge these matters, we cannot say the error committed here was so egregious to prevent a just and fair trial. A mistrial was therefore not warranted, and we cannot say that reversible error occurred.

Appellant also contends the trial court erred in denying its motion for new trial made on the same grounds as the motion for mistrial. When the primary issue on a motion for new trial is not a question of liability, we sustain the trial court’s denial unless there is a clear and manifest abuse of discretion. See Fisher Trucking, Inc. v. Fleet Lease, Inc., 304 Ark. 451, 803 S.W.2d 888 (1991). We have already determined the trial court did not abuse its discretion in this regard.

As its second argument, appellant contends the trial court erred in refusing its proffered jury instructions on the duties owed to a licensee and trespasser. Appellant objected to the giving of AMI 1104, which instructed the jury that appellee was a business invitee to whom appellant owed the duty of ordinary care to maintain its premises in a reasonably safe condition. Appellant argues there was substantial evidence to support the conclusion that appellee was a business invitee who had crossed the boundary of his invitation and become either a licensee or trespasser. See Daniel Constr. Co. v. Holden, 266 Ark. 43, 585 S.W.2d 6 (1979). Therefore, appellant proffered eight interrogatories along with AMI 1106, which both defined the three classifications of. injured persons along with the corresponding duties owed them by the landowner and instructed the jury to determine appellee’s classification. Appellant argues the trial court erred in limiting the jury to the instruction on business invitee and should have given the proffered instruction on licensee and trespasser as well.

In its brief, appellant has carefully summarized all the evidence lending support to its argument that appellee went beyond the scope of his invitation. Although the trial court was aware of such evidence, the trial court was not aware of the particular argument appellant makes on appeal. As abstracted, the only basis for appellant’s objection to the AMI 1104 business invitee instruction was that the proffered AMI 1106 should be given instead. Appellant did not give a reason why AMI 1104 should not be given, nor did it give a reason why AMI 1106 should be given. Such an objection accomplished nothing as far as informing the trial court of the particular error appellant saw in AMI 1104. We have recently held that a proffered instruction without an accompanying reason for the objection to the instruction given is insufficient to preserve the issue for our review. Gilliam v. Thompson, 313 Ark. 698, 856 S.W.2d 877 (1993).

We do not intimate that appellant should have summarized, all the evidence for the trial court as it did in its brief to this court. However, an objection simply stating that there was evidence indicating Mr. Todd had exceeded the scope of his invitation into the plant and therefore the jury should be allowed to make the determination of fact as to whether Mr. Todd was a business invitee, licensee, or trespasser was required as a bare minimum to apprise the trial court of the particular error of which appellant complains on appeal. Accordingly, appellant has waived this argument on appeal. Gilliam, 313 Ark. 698, 856 S.W.2d 877.

As its last point of error, appellant contends the trial court erred in denying its motion in limine requesting the exclusion of Dr. Zachary Mason’s testimony regarding the possibility that appellee would require future surgery. Dr. Mason, a neurosurgeon, testified there was a thirty percent chance that appellee would require a future orthopedic surgery. He estimated the cost of such surgery to be $10,000.00 to $15,000.00. Dr. Mason also stated that because of appellee’s size, appellee had an increased risk of needing surgery. Dr. Mason testified that while appellee’s increased risk was not speculative, whether appellee would require the surgery at all was speculative.

Appellant maintains that to be admissible an expert’s testimony must be that his opinion represents his professional judgment as to the most likely or probable result and that Dr. Mason’s testimony that appellee may require future surgery is speculative and therefore inadmissible. Appellant relies on Water-field v. Quimby, 211 Ark. 472, 644 S.W.2d 241 (1982). We agree that a thirty percent chance of requiring a future surgery is not the most likely result and therefore constitutes speculative evidence. The trial court therefore erred in allowing Dr. Mason’s testimony in this regard.

Appellant argues this error tainted the entire verdict, and thus a remittitur of the $12,500.00 awarded for future surgical expenses is not warranted. We disagree. Ordinarily, a general verdict is a complete entity which cannot be divided, requiring a new trial upon reversible error; however, when a trial error relates to a separable item of damages, a new trial can sometimes be avoided by the entry of a remittitur. Wheeler v. Bennett, 312 Ark. 411, 849 S.W.2d 952 (1993); White River Rural Water Dist. v. Moon, 310 Ark. 624, 839 S.W.2d 211 (1992); Martin v. Rieger, 289 Ark. 292, 711 S.W.2d 776 (1986). In this case, the $12,500.00 for future surgical expenses was awarded as a separate verdict, not part of the $600,000.00 general verdict. We have no hesitation in holding the $12,500.00 is a separable item of damages justifying a remittitur. If appellee remits the $12,500.00 within seventeen days, we will affirm as modified. Otherwise, as a general verdict cannot be divided, we must remand for a new trial. Moon, 310 Ark. 624, 839 S.W.2d 211; Martin, 289 Ark. 292, 711 S.W.2d 776. We misspoke in Wheeler when we stated a new trial only on damages would result if the conditional remittitur was not accepted. See Wheeler, 312 Ark. at 422, 849 S.W.2d at 958.

The judgment is affirmed as modified on condition of remittitur.

Dudley, J., concurs.

Glaze, J.,

concurs as to point one expressing his opinion that Todd’s evidence reflecting subsequent remedial measures was admissible because it showed the extent Jacuzzi Brothers, Inc. intended to control exiting its building.

Hays and Newbern, JJ., dissent.

Steele Hays, Justice,

dissenting. This personal injury case was defended throughout on the theory that the plaintiff Todd became a licensee rather than an invitee when he left the Jacuzzi plant by a route he was not authorized to use. Beginning with its answer alleging that the plaintiff had “trespassed into an area of the premises in which he was not authorized to be present,” to its answers to interrogatories asserting that Todd had left the area he was áuthorized to use, to its request for a jury trial asserting the same grounds, to the testimony of witnesses that Todd disregarded yellow lines leading out and used an “emergency” exit he had never previously used, Jacuzzi’s position was clear. This is a familiar issue and the law is settled:

We have said that when one crosses the boundaries of the invitation, he ceases to be an invitee and becomes either a licensee or a trespasser. Husted v. Richards, 245 Ark. 987, 436 S.W.2d 103. This is in keeping with the general rule recognized by the authorities. It is said that one who enters a building as an invitee for a business purpose is an invitee only while he remains in a portion of. the building in which he had a legitimate errand, but if he leaves a place of safety and goes to a place where his business does not require him to be, deliberately placing himself in a position where he is injured by a defective appurtenance, he acquires a less favored status. 62 Am. Jur. 2d 286, Premises Liability, § 47. It is necessary that an employee of a subcontractor, in order to recover as a business invitee of the general contractor, show that, when he was injured, he was using a part of the premises reasonably within the contemplation of the employer’s contract or accepted by defendant as being so. Annot., 20 ALR 2d 868, 914.

Daniel Const. Co. v. Holden, 266 Ark. 43, 585 S.W.2d 6 (1979).

In this case most of the trial testimony and evidence centered on whether Todd was an invitee, express or implied, in the area where his injury occurred and clearly a question of fact on that issue was created by the proof. When the testimony was concluded and instructions were under discussion Jacuzzi objected to AMI 1104, which told the jury categorically that Floyd Todd was an invitee:

In this case Floyd Todd was a business invitee upon the premises of Jacuzzi Brothers, Inc. Jacuzzi Brothers, Inc. owed Floyd Todd a duty to use ordinary care to maintain the premises in a reasonably safe condition.

In lieu of AMI 1104, Jacuzzi asked that AMI 1106 be given, which instructed the jury to decide whether Todd was an invitee or a licensee and explained the duty owed to each.

On appeal, the majority rejects Jacuzzi’s contention, not for lack of merit, but because the argument was waived when counsel for Jacuzzi failed to give a reason why AMI 1104 should not be given, and failed to give a reason why AMI 1106 should be given. I submit the appellant preserved the point for review by objecting to AMI 1104, which told the jury that the plaintiff was an invitee as a matter of law, and proffering AMI 1106, which submitted that issue to the jury. The reason for the request could hardly have been clearer and I have no doubt but that the trial judge understood what he was being asked to do. It is, of course, error for an instruction of the trial court to assume a disputed fact which the jury should decide. Porter v. Lincoln, 282 Ark. 258, 668 S.W. 2d 11 (1989); Thiel v. Dove, 229 Ark. 601, 317 S.W.2d 121 (1958).

The majority relies on Gilliam v. Thompson, 313 Ark. 698, 856 S.W.2d 877 (1993). The last paragraph of that opinion ostensibly supports the majority. But if that is what this court meant to say in Gilliam then we were wrong and we should make haste to correct the error. This court has never held that when a correct jury instruction is proffered, consistent with the proof, it must also be accompanied by a statement as to why it should be given. Notably, Gilliam cites no authority for such a rule, because there is none. Gilliam refers to Viking Ins. Co. v. Jester, 310 Ark. 317, 836 S.W.2d 371 ( 1992), but not for that reason. The Viking case, in fact, directly refutes Gilliam. There we wrote:

In accordance with [Rule 51], we have said no party may assign as error the giving or the failure to give an instruction unless he objects thereto before or at the time the instruction is given, stating distinctly the matter to which he objects and the grounds of his objection, and no party may assign as error the failure to instruct on any issue unless such party has submitted a proposed instruction on that issue. [My emphasis.]

That language, of course, is taken verbatim from ARCP Rule 51, which says nothing about a supporting statement when an instruction is refused. A careful reading of Rule 51 leads to the conclusion that the rule has three elements: one) objections to instructions must be made before or at the time an instruction is given; two) an objection to the giving of an instruction must be specific; and three) no error may be assigned to the failure to instruct on any issue unless the party has submitted a proposed instruction. In this case the appellant objected to the trial court deciding the issue of Todd’s status as a matter of law and proffered an AMI instruction which submitted that factual issue to the jury. That is sufficient.

One may search our cases in vain for any decision in which we have held that for error to be preserved for the refusal to give a proper instruction, the proffer must be accompanied by supporting argument. Certainly when one objects to an instruction, a specific reason must be stated. Rule 51 makes that clear. But there is no requirement that when a correct instruction is requested and refused, a statement must be made as to why it should be given. If Gilliam is the law, Rule 51 is seriously misleading. Our cases, and there are many, hold uniformly that when one objects to an erroneous instruction and proffers a correct instruction, the point is preserved for purposes of appeal. In St. Louis Southwestern Ry Co. v. Ellis, 169 Ark. 682, 276 S.W. 996 (1925), we reversed because the appellant objected properly to the instruction given and “asked for an instruction in the precise language approved by this court.” That was sufficient for purposes of appellate review. Where the point is not preserved it is either because the appellant failed to submit a correct instruction or the proof was lacking, but not for want of supporting argument. See, e.g., Kelly v. Medlin, 309 Ark. 146, 827 S.W.2d 655 (1992); Burnette v. Morgan, 303 Ark. 150, 794 S.W.2d 145 (1990); City of Little Rock v. Weber, 298 Ark. 382, 767 S.W.2d 529 (1989); People’s Bank and Trust Co. v. Wallace, 290 Ark. 589, 721 S.W.2d 659 (1986), South Arkansas Oil Co. v. Livingston, 250 Ark. 374, 465 S.W.2d 119 (1971); Johnson v. Truck Insurance Exchange, 285 Ark. 470, 688 S.W.2d 728 (1955); Trisha v. Savage, 219 Ark. 80, 239 S.W.2d 1018 (1951); Ozark Packing Co. v. Stanley, 211 Ark. 749, 202 Ark. 352 (1947); Newman v. Peay, 117 Ark. 579, 176 S.W. 143 (1915): Boone v. Boone, 114 Ark. 69, 169 S.W. 779 (1914); Williams v. Clark, 105 Ark. 157, 150 S.W. 568 (1912); Allison v. State, 74 Ark. 444, 86 S.W. 409 (1905).

We have long held that a party is entitled to have his/her theory presented to the jury and it is error to refuse a proper instruction when there is any evidence tending to support it. Findley v. State, 307 Ark. 53, 818 S.W.2d 242 (1991) (“even the slightest evidence”); Dunlap v. State, 303 Ark. 222, 795 S.W.2d 920 (1990) (“slightest evidence”); Cain v. Songer, 176 Ark. 551, 3 S.W.2d 315 (1928) (“it was error to refuse an instruction presenting plaintiff’s theory that the contract was one of sale”); Life & Casualty Insurance of Tenn. v. Gilkey, 255 Ark. 1060, 505 S.W.2d 200 (1974) (“Since the trial court judge is under a duty to instruct as to the law applicable in the case, it was error not to give the instruction”).

The fact is Gilliam stands alone among our cases — a radical departure from decades of trial and appellate practice. If that is to be the law, it ought to come only after fair warning and a revision of Rule 51. I respectfully dissent.

Newbern, J., joins in this dissent.


source: Caselaw Access Project

author: Donald L. Corbin, Justice.

license: Public Domain

text:
    SECOND INJURY TRUST FUND v. POM, INC., Commercial Union Insurance Company, and Carl Ray Taylor
    93-1327
    875 S.W.2d 832
    Supreme Court of Arkansas
    Opinion delivered May 2, 1994

      David L. Pake, for appellant.

      Bailey, Trimble, Capps, Lowe, Sellars & Thomas, by: Chester C. Lowe, Jr., for appellees.
   Donald L. Corbin, Justice.

This case comes to this court on a petition for review from an unpublished decision of the court of appeals. POM, Inc. v. Taylor, CA 92-1250, (Ark. App. December 1, 1993). We granted petitioner’s request on the basis that this case, concerning statutory interpretation, is of significant public interest. Ark. Sup. Ct. R. 1-2(d)(2). The sole issue presented for review is the court of appeals’ interpretation of the term “impairment” as it appears in Ark. Code Ann. § ll-9-525(b)(5) (1987):

If the previous disability or impairment, whether from compensable injury or otherwise, and the last injury together result in permanent total disability, the employer at the time of the last injury shall be liable only for the actual anatomical impairment resulting from the last injury considered alone and of itself.

Carl Ray Taylor, the employee, first sustained a work related back injury necessitating surgery in February 1983. He was assessed a 10% disability rating to the body as a whole upon discharge from care but suffered no wage loss. This injury happened while in another company’s employ. In February 1989, the employee, then working for POM, reinjured his lower back requiring surgery in the same location, resulting in an increased impairment rating of 25% to the body as a whole. The administrative law judge determined that the employee was entitled to receive permanent total disability, that POM was required to pay for the entire rating and expenses, and that the fund had no liability. The judge reasoned that second injury fúnd liability did not attach because the first injury was not shown to produce a loss of earning capacity.

POM appealed to the Full Commission which adopted the administrative law judge’s findings and added that in order to invoke fund liability, it was necessary to show that the employee suffered a loss in wage earning capacity where the initial injury was work related, because an “impairment” is necessarily non-work related. Thus, the first injury had to be considered a “disability” and not an “impairment” since it occurred at work.

POM appealed the Full Commission’s affirmance to the court of appeals, arguing that it should only be liable for the actual anatomical impairment resulting from the last injury alone and that the fund should be liable for the remainder from the first injury. The court of appeals reversed and remanded, finding that a preexisting impairment under the statute can be either work related or non-work related. We uphold the decision of the court of appeals.

On review, the fund argues that the court of appeals impermissibly expanded the definition of “impairment” to include prior work related conditions, which opens theoretical flood gates to Second Injury Fund liability. The fund argues that this allows the fact finder to manipulate the standard of proof required to prove the fund’s liability, arbitrarily allowing a finding of wage loss or not since an injury can be work or non-work related to initiate fund liability. We disagree with this “slippery slope” argument.

This court clearly set out in Mid-State Constr. Co. v. Second Injury Fund, 295 Ark. 1, 746 S.W.2d 539 (1988), that defining “impairment” to necessarily include wage loss was wrong since it would undermine the purpose of the Second Injury Trust Fund to encourage the hiring of handicapped persons. In that case, the definition of “impairment” included only non-work related conditions. Along that line of reasoning, the court of appeals has removed the restriction that impairment be limited to work related conditions in order to achieve the purpose of the Second Injury Fund.

The purpose of the fund is set out clearly in section 11-9-525:

(a)(1) The Second Injury Trust Fund established in this chapter is a special fund designed to insure that an employer employing a handicapped worker will not, in the event the worker suffers an injury on the job, be held liable for a greater disability or impairment than actually occurred while the worker was in his employment.

To remove the non-work versus work distinction in defining “impairment” is indeed an extension of previous law but is warranted. This is only an extension that logically follows the extension we made in Mid-State. Mid-State held that it is not necessary to demonstrate wage loss when impairment is involved. This holding is explained well in the majority opinion:

To hold otherwise would result in the unfounded and unintended situation that Second Injury Fund liability is denied in a case where a potential employee suffers from an impairment such as loss of one eye which would clearly be capable of supporting an award if the other elements of compensability were present, and the individual is subsequently hired and suffers a compensable injury, such as loss of the other eye, which combines with the former condition to produce the current disability status — complete blindness. Under the definition of impairment as set out in Osage, there is no Fund liability simply because the claimant was unable to demonstrate that the former condition had involved a loss of earning capacity.
. . . That result impermissibly distinguishes between two types of handicapped persons, contravenes the statutory scheme which makes employers liable only for the “degree or percentage of disability or impairment which would have resulted from the [recent compensable] injury had there been no preexisting disability or impairment,” and defeats the purpose of the Fund to encourage the hiring of the handicapped.

Id., 295 Ark. at 7-8, 746 S.W.2d at 542-43. The same logic must apply to impairment so that an injured group is not left without fund coverage. If the fund’s argument that “impairment” means only non-work related impairment were accepted, then a claimant could never reach fund liability. To follow the fund’s argument would discourage the very end the fund was designed to meet. Furthermore, the word “impairment” is used in section 11-9-525 in several differing contexts which cannot be read to define it in such a restricted manner. An impairment should be able to be considered work related, and we hold so.

The opinion of the court of appeals is affirmed.

Glaze, J., concurs.


author: Robert L. Brown, Justice.

text:
    Allen Eugene DRYMON v. STATE of Arkansas
    CR 93-1265
    875 S.W.2d 73
    Supreme Court of Arkansas
    Opinion delivered May 2, 1994
    [Rehearing denied May 31, 1994.]

      Penix & Taylor, by: Stephen L. Taylor, for appellant.

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

Appellant Allen Eugene Drymon appeals his judgment of conviction on four counts of rape involving his two minor stepdaughters, A.J. and H.J. He was sentenced to a total term of 50 years. He now raises four points for reversal: (1) whether the trial court erred by holding a Rape Shield hearing less than three days before trial; (2) whether the trial court abused its discretion by refusing to admit instances of alleged prior sexual conduct of the victims; (3) whether the trial court abused its discretion by refusing to grant a mistrial when defense counsel referred to prior sexual conduct in his opening statement; and (4) whether the trial court abused its discretion by refusing to suppress Drymon’s incriminating statement on grounds of intoxication. We affirm "the judgment.

Drymon, his wife (Elaine Drymon), her two daughters (H.J. and A.J.), and three other children moved from Missouri to a home near Prairie Grove in 1987. Elaine Drymon was employed at Braum’s restaurant and went to work at 3:00 p.m. in the afternoon and worked until midnight. Drymon was employed at Chicken Pullman and went to work at approximately 5:30 p.m., according to several witnesses, although Drymon himself testified that he went to work earlier. In September of 1992, Elaine Drymon was told by her young son that Drymon was abusing her two daughters. She promptly advised the Washington County Sheriff’s Office of this. As part of the Department’s investigation, Deputy Sheriff Joanne Frieheit took a statement from Drymon in which he incriminated himself. Drymon was then charged with four (4) counts of rape, consisting of sexual intercourse and deviate sexual activity with his stepdaughters, H.J., who was age 11 at the time Drymon was charged, and A.J., who was age 13 at that time.

On February 10, 1993, Drymon moved to suppress the custodial statement which he gave to Deputy Frieheit and asserted that when the statement was made, he was so intoxicated that he was not capable of knowingly and intelligently waiving his rights against self-incrimination. On March 8, 1993, he filed a motion to determine the admissibility of the victims’ prior sexual conduct pursuant to Ark. Code Ann. § 16-42-101 (.1987), commonly known as the Rape Shield Statute. The motion alleged that the victims’ past conduct was relevant to Drymon’s defense and requested that the court schedule a hearing to determine the relevancy of the evidence.

The day before the trial, on May 3, 1993, Drymon asked for a hearing on his two pre-trial motions, and the hearing was commenced late that afternoon and continued on the next day. Deputy Frieheit testified, that she observed Drymon in her car during the twenty minute drive from Springdale to the Sheriff’s office in Fayetteville on the day he made his statement. She stated that she smelled no alcohol on his breath, that he did not behave as though he were intoxicated, and that his speech was clear and not slurred. She added that upon arriving at the Sheriff’s Department, Drymon was advised of his rights and waived them. She produced the waiver-of-rights form signed by him. She then conducted an interview with Drymon which took ten minutes and resulted in the incriminating statement. The interview was taped.

Other testimony at the pre-trial hearing was taken from Deputy Sheriff Charles Rexford, who testified that Drymon showed no signs of intoxication, and from Drymon himself who related that he had been drinking for two days prior to his arrest and had also smoked marijuana. He further stated that his supervisor, Harvey Ward, refused to let him work the day of his statement because he was too intoxicated.

The court next proceeded to hear testimony on Drymon’s motion to permit evidence of the victims’ prior sexual conduct. Drymon objected to the timing of the hearing on the basis that the hearing was not conducted three days before trial as the Rape Shield Statute required. The trial court overruled the objection and stated that it did not know about the motion until advised by defense counsel on May 3, 1993. Once it learned of the motion, a hearing was scheduled immediately.

Drymon testified that he had witnessed the victims involved in “sex play” on several occasions. He stated that he saw H.J. masturbate with her fingers and found her in bed one time with her younger brother. He also stated that he witnessed A.J. masturbating with a doll leg and on another occasion with her fingers.

Drymon further imparted that he planned to testify at trial that A.J. had attempted to have sex with him. He stated that this occurred when he was drunk, and when he realized it was A.J. and not his wife, he terminated the activity. He testified that H.J. also initiated sexual contact with him but that it never was consummated. He stated that there was no further sexual contact with the two girls.

Drymon’s third example of past sexual conduct was that A.J. had walked in front of him and Robert Williams, a friend, wearing a pair of pants with a hole in the seat which exposed her backside. Finally, he advised the trial court that he planned to have a psychologist, Dr. Bruce Allen, testify at trial that the victims had been “sexualized” by the dysfunctional nature of the family and by exposure to pornography.

The trial court ruled on May 4, 1993, that the motion to suppress Drymon’s statement was denied and that the masturbation testimony, the torn-pants testimony, and the evidence by the psychologist of a “sexualized” environment were inadmissible. The trial court made no mention in its ruling of the two incidents where Drymon claimed that the two girls had tried to seduce him when he was intoxicated.

Following a brief recess, the trial court proceeded with jury selection and opening statements. During opening statement, defense counsel stated:

What I’m about to tell you goes against my nature as a defense attorney. And I want to come in here and tell you everything is bright and rosy and we’re here because of a mistake, but I don’t believe that’s true. There were potentially two acts of sexual conduct or sexual —well, conduct may be the best word — between Allen Drymon and these two girls. Now, keep in mind —

At this point, the State objected, and a conference was held at the bench. Drymon’s counsel explained that he intended to refer to the two times when Drymon found the girls trying to have sex with him when he was drunk and that this evidence had not been excluded by the court under the Rape Shield Statute. The trial court sustained the State’s objection, and defense counsel moved for a mistrial. The motion was denied, and though Drymon’s counsel did not request it, the trial court admonished the jury:

Ladies and gentlemen of the jury, I’m going to admonish you to disregard the last statement of Mr. Taylor in his opening statement.

Following the trial, the jury found Drymon guilty of all four counts of rape, and he was sentenced to a total term of fifty years.

I. RAPE SHIELD HEARING

For his first point, Drymon urges that the trial court violated the Rape Shield Statute by not holding a hearing three days before trial. Instead, the hearing was held the day before the trial (May 3, 1993) and the morning of the trial. The relevant subsection of the Rape Shield Statute reads:

(2)(A) A hearing on the motion shall be held in camera no later than three (3) days before the trial is scheduled to begin, or at such later time as the court may for good cause permit.

Ark. Code Ann. § 16-42-101(c)(2)(A) (1987).

Drymon filed his motion to admit evidence of the victims’ alleged prior sexual conduct on March 8, 1993. At that time trial was set in April, 1993. A continuance was ordered, and trial was reset for May 4, 1993.

The Rape Shield Statute clearly provides that a hearing shall be held on a motion. However, the timing of the hearing is not mandatory and may occur closer to the trial as the court permits “for good cause.” In this instance, the trial court stated that it was unaware of the motion or that Drymon wanted a hearing on it until May 3, 1993. Furthermore, despite Drymon’s protest that the ruling was needed in order to adequately prepare for trial, it was his responsibility to pursue the motion and to bring the matter of a hearing to the court’s attention. He did not do this until the day before the trial.

We hold that good cause for conducting the hearing within three days of trial clearly existed. In addition, Drymon’s claim of prejudice resulting from the timing of the hearing is not convincing for several reasons. For one thing, he received a full hearing on his motion. For another, he was granted the opportunity to present witnesses in support of his motion, and at the close of the hearing, he stated that he had no other witnesses to present. He also failed to request a continuance of the trial to prepare his defense in light of the trial court’s adverse rulings on his pre-trial motions. Under these circumstances, we discern no prejudice to Drymon’s case.

II. EXCLUSION OF PROPOSED EVIDENCE UNDER THE RAPE SHIELD STATUTE

Drymon next asserts that the trial court abused its discretion by ruling that certain proposed incidents of prior sexual conduct by the victims were inadmissible.

The admissibility of a victim’s prior sexual conduct is determined pursuant to the Rape Shield Statute and is discretionary with the trial court. Laughlin v. State, 316 Ark. 489, 872 S.W.2d 848 (1994). In evaluating the admissibility of such evidence under the statute, the court must determine whether the probative value of the evidence outweighs its inflammatory nature. Id.; Logan v. State, 300 Ark. 35, 776 S.W.2d 341 (1989). We will not disturb the trial court’s decision absent a manifest abuse of discretion. Id.

We begin by addressing Drymon’s claim that each of the victims initiated sexual contact with him on two separate occasions when he was intoxicated. It is settled law that acts of prior consensual conduct between the victim and the accused are admissible only when consent is at issue. State v. Sheard, 315 Ark. 710, 870 S.W.2d 212 (1994); State v. Small, 276 Ark. 26, 631 S.W.2d 616 (1982). Here, the two victims were younger than the age of consent at the time of the alleged conduct; thus, consent patently cannot be a defense in this case. Drymon maintains, however, that he was intoxicated and had no cognizant participation in the two sexual encounters with A.J. and H.J. But this assertion does not resolve the matter in his favor. Voluntary intoxication is not a defense to criminal prosecutions. Spohn v. State, 310 Ark. 500, 837 S.W.2d 873 (1992); Mauppin v. State, 309 Ark. 235, 831 S.W.2d 704 (1992); Cox v. State, 305 Ark. 244, 808 S.W.2d 306 (1991). Likewise, it is not a defense to having sexual relations with minor children. The trial court ruled correctly that this proffered evidence was irrelevant and of no significance in this case.

With regard to individual masturbation by the victims, this is not included within the definition of “sexual conduct” under the Rape Shield Statute. See Ark. Code Ann. §§ 16-42-101(a), 5-14-101 (1987). This court, however, has previously reasoned that irrespective of the Rape Shield Statute incidents of individual masturbation by a victim have no relevance when the question at hand is whether a defendant raped that victim. Logan v. State, supra.

Drymon argues that this evidence was intended to demonstrate that the victims had a propensity to initiate sex and to refute the testimony of Dr. Robert Irwin, who testified that the victims’ vaginal injuries were caused by some kind of penetration. We view the probative value of this testimony as tenuous at best. Dr. Irwin testified that masturbation with a foreign object would have been painful because of vaginal infection. Moreover, as in the case of prior sexual conduct excluded under the Rape Shield Statute, there is a definite humiliation and embarrassment to the victims associated with such a line of inquiry which is not warranted when the evidentiary value of the evidence is so weak. In light of this, we cannot say that the trial court abused its discretion in denying the masturbation testimony.

Lastly, we turn to the incident of the torn pants worn by A.J., and the testimony of the psychologist relating to the girls’ exposure to pornography and the effects of a dysfunctional family. We also note that these acts do not constitute sexual conduct under the Rape Shield Statute. Ark. Code Ann. §§ 5-14-101 and 16-42-101 (a) (1987). Furthermore, such evidence falls far short in probative value and, again, would serve only to humiliate the victims. It was not error to exclude this evidence on grounds of relevance. Slater v. State, 310 Ark. 73, 832 S.W.2d 846 (1992).

Ill MISTRIAL

For his third argument, Drymon insists that the trial court erred by refusing to declare a mistrial. His argument centers on the comment made by defense counsel in his opening statement that there had potentially been two acts of sexual conduct between Drymon and the two girls. These comments prompted an objection from the prosecution which the trial court sustained. The defense moved for a declaration of a mistrial which the trial court refused. The court, on its own volition, then admonished the jury to disregard defense counsel’s statement.

Declaring a mistrial is certainly a drastic remedy, and proper only where the error is beyond repair and cannot be corrected by any curative relief. Meny v. State, 314 Ark. 158, 861 S.W.2d 303 (1993); Sullinger v. State, 310 Ark. 690, 840 S.W.2d 797 (1992). The trial court has wide discretion in this area, and we will not reverse absent an abuse of discretion or manifest prejudice to the complaining party. Hall v. State, 314 Ark. 402, 862 S.W.2d 268 (1993).

Drymon makes much of the fact that the trial court did not expressly exclude testimony of sexual conduct initiated by the two victims at the pre-trial hearing. But this argument turns the Rape Shield Statute on its head. It is incumbent upon the defendant under the statute to obtain a written order from the trial court detailing what evidence of prior sexual conduct by the victim may be introduced. Such an order relating to this incident was not obtained. The fact that the trial court was silent on this point following the pretrial hearing offers Drymon no relief. He, accordingly, proceeded to mention the incident in his opening statement at his own risk. We have held that an appellant may not claim reversible error based on his or her error at trial. Morgan v. State, 308 Ark. 631, 826 S.W.2d 271 (1992); Terry v. State, 303 Ark. 270, 796 S.W.2d 332 (1990).

But we also do not consider the remark by counsel to have been so irreversible and irredeemable as to warrant stopping the trial. The comment, though significant, was not an admission of guilt and was somewhat vague. An admonishment by the court quickly followed, and at the close of the evidence, the jury was instructed that opening statements were not evidence and that statements which had no basis in evidence should be disregarded. Drymon, of course, took the stand and denied any culpability.

We cannot conclude under these circumstances that the jurors were irrevocably prejudiced by the comment. See Hall v. State, supra.; Miller v. State, 309 Ark. 117, 827 S.W.2d 149 (1992); Neff v. State, 287 Ark. 88, 696 S.W.2d 736 (1985). The trial court was best positioned to determine the effect of the remark on the jury and concluded that a new trial was not warranted. We find no error in this ruling.

IV CUSTODIAL STATEMENT

For his last point, Drymon contends that the trial court erred in refusing to suppress his custodial statement on the basis that he was too intoxicated at the time due to drug and alcohol usage to knowingly and intelligently waive his rights.

When the validity of a custodial statement is challenged, the State has the burden of proving that it was knowingly and intelligently made by a preponderance of the evidence. McDougald v. State, 295 Ark. 276, 748 S.W.2d 340 (1988). This court makes an independent determination based on the totality of the circumstances and does not reverse unless the trial court’s determination is against the preponderance of the evidence. Id.; Midgett v. State, 316 Ark. 553, 873 S.W.2d 165 (1994); Coleman v. State, 315 Ark. 610, 869 S.W.2d 713 (1994). Intoxication alone will not invalidate a waiver, but simply goes to the weight accorded it. Midgett v. State, supra; McDougald v. State, supra. Whether a defendant made a valid waiver under the conditions is a question of fact for the trial court to resolve. Id.

In the instant case, Drymon acknowledged in a duly signed waiver that he understood his rights and had waived those rights. Additionally, Deputy Sheriff Frieheit, who conducted the interview, testified that he showed no signs of intoxication, his answers were clear and responsive, he did not slump or stagger, and he did not smell of alcohol. Deputy Sheriff Rexford confirmed this based on his observations when he escorted Drymon from the Sheriff’s Department to the jail.

There was contradictory testimony from defense witnesses, including Drymon, his supervisor (Harvey Ward), and his grandfather (Columbus McGarrah) that he was severely intoxicated. Drymon in particular testified that he had suffered a blackout at the time of his statement due to intoxication. We note, however, that such conflicts in testimony are for the trial court to resolve by evaluating the credibility of each witness. Coleman v. State, supra. In this instance, the trial court gave more credence to the testimony of the two deputy sheriffs, both of whom testified to considerable personal and professional experience in recognizing when a person is intoxicated. The testimony of the deputy sheriffs, the fact that Drymon signed a waiver-of-rights form, and the clarity of his statement combine to convince us that the trial court’s ruling to admit Drymon’s statement was supported by a preponderance of the evidence.

Affirmed.


author: Per Curiam.

text:
    Louis IVORY v. STATE of Arkansas
    CR 94-285
    874 S.W.2d 375
    Supreme Court of Arkansas
    Opinion delivered May 2, 1994

      Bill R. Holloway, for appellant.
    No response.
   Per Curiam.

Appellant, Louis Ivory, by his attorney, has filed for a rule on the clerk.

His attorney, Bill R. Holloway, admits that the failure to file the record in time was due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


author: Per Curiam. Robert L. Brown, Justice,

text:
    Edward Charles PICKENS v. Jim Guy TUCKER, Individually and in His Official Capacity as Governor of Arkansas
    94-435
    875 S.W.2d 835
    Supreme Court of Arkansas
    Opinion delivered May 2, 1994

      Jeff Rosenzweig, for appellant.
    No response.
   Per Curiam.

Petition for stay of execution or, in the alternative, for expedited consideration is denied.

Brown, J., concurs.

Robert L. Brown, Justice,

concurring. The movant, Edward Charles Pickens, mounts a Due Process claim, alleging that Governor Jim Guy Tucker is a biased determiner of his clemency application by virtue of his representation of the State in Pick-ens’s appeal in 1977. See Pickens v. State, 261 Ark. 756, 551 S.W.2d 212 (1977). According to that opinion, two deputy attorneys general also acted as special prosecutors at the Pickens trial.

The power to exercise clemency is vested in the chief executive and not the courts. Ark. Const, art. 6, § 18; Woods v. State, 302 Ark. 512, 790 S.W.2d 892 (1990); Coones v. State, 280 Ark. 321, 657 S.W.2d 553 (1983); Smith v. State, 262 Ark. 239, 555 S.W.2d 569 (1977); Patterson v. State, 253 Ark. 393, 486 S.W.2d 19 (1972). Moreover, a convicted felon has no inherent constitutional right to a commutation of sentence. Connecticut Board of Pardons & Dumschat, 452 U.S. 458 (1981).

Nevertheless, a right to a fair and impartial tribunal, and equally as important the perception of such, is engrained in the Due Process clauses of our state and federal constitutions. A case with some similarities to the case before us was recently decided by the Eight Circuit Court of Appeals. Otey v. Hopkins, 5 F.3d 1125 (8th Cir. 1993). In Otey, a death case, the state attorney general sat on the Nebraska Board of Pardons, and this was contested by the clemency applicant on Due Process grounds. A majority of the three-judge panel dismissed the petition for procedural reasons. The third judge dissented on the basis that the presence of the “state’s chief prosecuting officer” on the board violated substantive Due Process. Now, according to Pickens, a petition for a writ of certiorari in the Otey case is pending before the U.S. Supreme Court.

Though the Otey facts are not precisely the same as those in the Pickens case, they are analogous, and I agree with the reasoning of the dissent. Accordingly, I believe that Governor Tucker should be declared ineligible to determine the clemency issue, and Lieutenant Governor Mike Huckabee should be the determiner. Ark. Const, amend. 6, § 5.

In my judgment, Lt. Gov. Huckabee should be able to make a clemency determination before May 11, 1994. For that reason I concur in denying the stay of execution.


author: Jack Holt, Jr., Chief Justice.

text:
    Joseph SMITH and Barbara Smith v. Brenda BABIN
    93-952
    875 S.W.2d 500
    Supreme Court of Arkansas
    Opinion delivered May 9, 1994

      Sloan, Rubens & Peeples, by: Kent J. Rubens and Daggett, Van Dover & Donovan, by: J. Shane Baker and Joe R. Perry, for appellants.

      Rieves & Mayton, by: Elton A. Rieves, IV, for appellee.
   Jack Holt, Jr., Chief Justice.

Appellants Barbara and Joseph Smith contend, in the main, that the trial court erred in denying their motion for new trial after the jury found in favor of appellee Brenda Babin in the Smiths’ lawsuit arising from an automobile collision that occurred on a highway in West Memphis, Arkansas. We disagree and affirm.

The Smiths assert that the trial court erred in failing to grant their motion for new trial because there was insufficient evidence to support the general jury verdict in favor of Mrs. Babin. Arkansas Rule of Civil Procedure 59(a) provides that a new trial may be granted when the verdict or decision is clearly contrary to the preponderance of the evidence. Where such a motion is denied, the test on appeal is whether there is substantial evidence to support the jury verdict. Rathbun v. Ward, 315 Ark. 264, 866 S.W.2d 403 (1993); Gipson v. Garrison, 308 Ark. 344, 824 S.W.2d 829 (1992). In determining the existence of substantial evidence, we view the evidence in the light most favorable to the party on whose behalf the judgment was entered and give it its highest probative value, taking into account all reasonable inferences deducted from it. Rathbun, supra. In reviewing the evidence, the weight and value to be given the testimony of the witness is a matter within the exclusive province of the jury. Pineview Farms, Inc. v. A. O. Smith Harvestore, Inc., 298 Ark. 78, 765 S.W.2d 924 (1989).

I. Denial of motion for new trial

The evidence reveals that the car accident at issue occurred on Broadway Road at a site between the Super D pharmacy and the Big Star grocery store in West Memphis, Arkansas. Mrs. Smith was leaving the Super D pharmacy lot, which is located on the south side of Broadway Street (also known as Highway 70), a five-lane highway that runs east and west. According to her testimony, Mrs. Smith pulled out of the lot in a northerly direction with the intention to make a left turn on Broadway. She first looked to her left, which was west, to see if anyone was travelling eastward toward Memphis. Seeing that the path was clear, she proceeded north across two lanes of traffic until she made it to the center lane. Then she looked eastward, and, finding the way clear, she continued northward until she arrived at the northernmost lane of Broadway and attempted to turn left or westbound. In doing so, she caught a glimpse of Mrs. Babin’s car which was proceeding due south onto Broadway. Mrs. Smith attempted to avoid Mrs. Babin by turning left, but without success. Mrs. Babin’s truck struck Mrs. Smith’s car in the passenger side door, and according to Mrs. Smith, the roof buckled.

Mrs. Babin testified that she exited the Big Star grocery store parking lot, located on the north side of Broadway, intending to exit the lot in a southerly direction in order to drive east on Broadway. As she left the lot in a small standard transmission truck, she drove southward to a slope and stopped. Mrs. Babin looked to her left and waited while a car passed. She looked to her right and then back to the left and pulled out, continuing to drive south across Broadway, when she hit Mrs. Smith. She admits that she did not see Mrs. Smith until she hit her. However, she explained to the jury that she was still in first gear when the accident occurred, meaning that she could not have been going any more than ten to fifteen miles per hour. She was in the northernmost, westbound lane when the accident occurred.

On the conclusion of testimony, the trial court instructed the jury on the law. The jury returned the following verdict: “We, the jury, find for the Defendant, Brenda Babin.”

When, as here, the jury returns a general verdict, we are unable to determine the basis for the verdict. Harding v. Smith, 312 Ark. 537, 851 S.W.2d 427 (1993). Although the parties did not abstract the jury instructions except for one dealing with violations of an Arkansas statute and one on maintaining a proper lookout, we know from an examination of the record that the trial court instructed the jury on comparative negligence, AMI Civil 3rd 2102, which furnished the jurors various options in arriving at their verdict. Based on the giving of this instruction, the jury’s verdict was, in effect, a declaration that it concluded that the Smiths had not met their burden of proof that Mrs. Babin was negligent or that Mrs. Smith’s own negligence was greater than or equal to any negligence assessed against Mrs. Babin. See Druckenmiller v. Cluff, 316 Ark. 517, 873 S.W.2d 526 (1994).

It is not this court’s province to retry issues of fact. Instead, we examine the record to determine if there is substantial evidence to support the jury verdict. We have done so in this appeal, and based on the record before us, we cannot say as a matter of law that the jury erred. John Cheeseman Trucking, Inc. v. Dougan, 313 Ark. 229, 853 S.W.2d 278 (1993).

In reviewing the evidence in the light most favorable to Mrs. Babin and giving it its highest probative value, we hold that there was substantial evidence to support the jury’s verdict because the Smiths failed to meet their burden in proving that Mrs. Babin was, at a minimum, more negligent than Mrs. Smith. A review of the record reveals that both sides put on evidence at trial, the jury was properly instructed on the issue of negligence, and the jury chose to side with Mrs. Babin. Mrs. Smith and Mrs. Babin were entering a highway from private property, and although both parties looked to the left and right as they proceeded across Broadway, they simply failed to look straight ahead and see each other as they were merging on a collision course, one vehicle moving north and the other south. Mrs. Babin admitted that she could not with any degree of certainty estimate her speed at the time of the collision, but she explained that she knew she was in first gear when the accident occurred, and, therefore, her truck would not go over ten to fifteen miles per hour when in first gear. Mrs. Smith explained that she “caught a glimpse” of Mrs. Babin prior to the collision and tried unsuccessfully to avoid her. Under the circumstances, we hold that the trial judge did not err in denying the Smiths’s motion for new trial.

II. Collateral source violation

The Smiths next contend that the trial court erred in denying their motion for mistrial after Mrs. Babin’s attorney allegedly violated the collateral source rule by making statements with reference to Mrs. Smith’s income, sick leave, and vacation pay during his opening statement. Because his statement was not recorded nor reconstructed for the benefit of the record, we have nothing before us to review. Although the Smiths’ attorney made his objection onto the record and there was discussion between counsel and the court concerning Mrs. Babin’s attorney’s alleged statements, it was the appellant’s burden to produce a record exhibiting the remarks made which constituted prejudicial error. Adams v. Owen, 316 Ark. 99, 870 S.W.2d 741 (1994); Gidron v. State, 316 Ark. 352, 872 S.W.2d 64 (1994).

We affirm.

Newbern, J., not participating.


author: Robert H. Dudley, Justice.

text:
    Kim L. LIVELY v. LIBBEY MEMORIAL PHYSICAL MEDICAL CENTER, Inc.
    93-1243
    875 S.W.2d 507
    Supreme Court of Arkansas
    Opinion delivered May 9, 1994

      Wright, Chaney, Berry & Daniel, P.A., by: Don P. Chaney, for appellant.

      Friday, Eldredge & Clark, by: William M. Griffin, III and John C. Fendley, Jr., for appellee.
   Robert H. Dudley, Justice.

Libbey Memorial Physical Medical Center, Inc., defendant below and appellee on appeal, provides physical medicine and fitness services to the public. It allows its employees and their families to use its exercise and fitness center as a fringe benefit of employment. Kim Lively, plaintiff and appellant, an employee of Libbey Memorial, was injured on March 26, 1987, an off-work day, while using one of the whirlpools at Libbey Memorial’s exercise and fitness center.

On March 23, 1989, just before the worker’s compensation statute of limitations expired, Lively filed a claim with the Worker’s Compensation Commission. She alleged that her injury arose out of and in the course of her employment.

The Worker’s Compensation claim had not been decided when, one year later on March 23, 1990, and just before the tort statute of limitations would have run out, she filed a tort claim in circuit court. She alleged that she was an invitee of Libbey Memorial, that it negligently caused her accident, and that it should be liable for compensatory as well as punitive damages.

On April 16, 1990, her worker’s compensation claim was dismissed for failure to request a hearing within six months. On April 3, 1991, she refiled her worker’s compensation claim, but on April 24, 1992, an administrative law judge ruled that the second filing was barred by the statute of limitations. In the ruling, the administrative law judge made a specific finding that “at all times, the relationship of employee-employer-carrier existed” between Lively, Libbey Memorial, and its worker’s compensation carrier.

Meanwhile, in circuit court on December 2, 1991, the circuit judge had granted Libbey Memorial’s motion for summary judgment. The trial court found that there, was no evidence that Libbey Memorial derived any economic benefit by allowing employees to use the whirlpool facilities during nonwork hours and that the use of the facilities was merely gratuitous. As a result, the trial court ruled that Lively was a licensee; thus, Libbey Memorial owed no duty to her except to refrain from injuring her through willful or wanton negligence, and since willful or wanton negligence was not pleaded, there was no genuine issue of material fact for a jury. Lively appealed. We reversed the summary judgment because we found that Lively had presented evidence which raised genuine issues of material fact as to whether Lively was a licensee or an invitee and as to whether Libbey Memorial had acted willfully and wantonly. See Lively v. Libbey Memorial Physical Medical Ctr., Inc., 311 Ark. 41, 841 S.W.2d 609 (1992).

On June 10, 1993, after the remand, Libbey Memorial filed a second motion for summary judgment, alleging that Lively’s exclusive remedy was under the Worker’s Compensation Act and that she should be estopped from pursuing the tort claim since she had already made a claim for worker’s compensation. The circuit court granted the motion for summary judgment based upon the Commission’s findings that the employer-employee-carrier relationship existed at the time of the accident. Lively again appeals, and we must again reverse and remand.

The rights and remedies of an employee who is subject to the provisions of the Worker’s Compensation Act are exclusive of all other rights and remedies. Ark. Code Ann. §11-9-105 (Supp. 1993). However, a finding that an employee is subject to the provisions of the Act requires more than just the proof of the employer-employee-carrier relationship. There must also be proof that the injuries arose “out of and in the course of employment.” Ark. Code Ann. § ll-9-102(5)(A) (Supp. 1993). Neither the administrative law judge nor the circuit court made a finding of fact that Lively’s injuries arose out of and in the course of the employment. Thus, it is impossible to say as a matter of law that Lively’s injuries were compensable and that the Worker’s Compensation Act constituted an exclusive remedy. For that reason, we reverse the summary judgment.

Libbey Memorial asks us to sustain the summary judgment on the basis of estoppel or election of remedies. In its estoppel argument, Libbey Memorial contends that since Lively claimed in the worker’s compensation proceedings that her accident arose out of and in the course of her employment, she should be estopped from claiming in circuit court that the injury did not arise in the same manner. This argument is without merit. As the movant for summary judgment, Libbey Memorial had the burden of proof. Actually, if estoppel were applicable, Libbey Memorial might just as well be estopped, because in the worker’s compensation proceeding it claimed that Lively’s injury did not arise out of and in the course of her employment, and in that proceeding it contended she was not covered by worker’s compensation. Now, in circuit court it contends she was covered. However, the doctrine of estoppel is not applicable.

Libbey Memorial cites Atkins v. Pilot Life Ins. Co., 4 Ark. App. 257, 630 S.W.2d 50 (1982), as authority to apply the doctrine of estoppel, but that case is readily distinguished. In Atkins the employee accepted a lump sum worker’s compensation settlement for an illness, and then filed suit in circuit court alleging that the illness was not work related. The court of appeals affirmed a ruling by the trial court that there had been an election of remedies. The court of appeals cited Aetna Life Ins. Co. v. Bocanegra, 572 S.W.2d 355 (Tex. Civ. Ct. App. 1978), and held that when a party elects to pursue one of several inconsistent remedies and either receives a settlement or prosecutes the case to a final judgment, then he has made a binding election of remedies and is thus estopped from pursuing another inconsistent remedy. This holding is clearly distinguished because in the case at bar there has not been a determination by settlement or judgment that Lively was acting in the scope of her employment when she was injured.

Libbey Memorial next contends that when Lively filed her worker’s compensation claim she made an election of remedies and cannot now pursue this tort case. The election of remedies bar applies only when it is shown that a complainant either did or could have recovered worker’s compensation. Riverside Furniture Co. v. Rodgers, 295 Ark. 452, 749 S.W.2d 664 (1988). The point of emphasis in this type of election of remedies case is whether it can be determined that a party actually had a remedy under the worker’s compensation laws. In Gentry v. Jett, 235 Ark. 20, 356 S.W.2d 736 (1962), we explained that a party does not elect between inconsistent remedies when he actually only has one available. Id. at 25-26, 356 S.W.2d at 740. We said that the general rule as to election of remedies is that, where a party has a right to choose one of two or more appropriate but inconsistent remedies, and with full knowledge of all the facts and of his rights makes a deliberate choice of one, then he is bound by his election and cannot resort to the other remedy. We further explained:

Election is to be distinguished from mistake in remedy. The pursuit of a remedy which one supposes he possesses, but which in fact has no existence, is not an election between remedies but a mistake as to the available remedy, and will not prevent a subsequent recourse as to whatever remedial right was originally available.

Id. at 26, 356 S.W.2d at 740 (quoting Sharpp v. Stodghill, 191 Ark. 500, 86 S.W.2d 934 (1935)). We also quoted with approval Professor Larson’s discussion of the application of the doctrine to worker’s compensation cases, in which he emphasizes that “an election of remedy which proves to be nonexistent is no election at all.” Id. at 27, 356 S.W.2d at 740; see also 2A Arthur Larson, The Law of Workmen’s Compensation § 67.31, at 12-156 (1987).

In this case, it has not yet been established that Lively had a remedy under the worker’s compensation law; therefore, she is not barred by the election of remedies doctrine from pursuing the tort suit.

We need not address the other point of appeal since it will not arise on remand. Reversed and remanded.


author: Steele Hays, Justice.

text:
    PULASKI COUNTY, Arkansas v. JACUZZI BROTHERS DIVISION of Jacuzzi, Inc., Merico, Inc., Smith Fiberglass Products, Inc., and City of Little Rock, Arkansas
    93-963
    875 S.W.2d 496
    Supreme Court of Arkansas
    Opinion delivered May 9, 1994

      Pulaski County Attorney’s Office, by: Nelwyn Davis, Ass’t County Att’y, for appellant.

      Friday, Eldredge & Clark, by: John Roy White, for appellees Jacuzzi Brothers and Smith Fiberglass Products, Inc.

      Thomas M. Carpenter, City Att’y, for appellees City of Little Rock and Merico, Inc.
   Steele Hays, Justice.

This case involves a request by the appellees for an exemption from taxation filed in the Pulaski County Court pursuant to art. 7, § 28 of the Arkansas Constitution. The county court granted the exemption and the county appealed to the circuit court pursuant to Ark. Const, art. 7, § 33 and Ark. Code Ann. § 16-67-201 (1987). The appellees moved to dismiss the county’s appeal on the premise that a county may not appeal from an adverse decision of its own court. The circuit court granted the motion and Pulaski County has appealed to this court, asking us to decide whether a county may appeal to the circuit court from an order of the county court pursuant to Ark. Const, art. 7, § 33. We hold that a'county may appeal from a decision of the county court but that the assessor should join in the appeal.

Appellees are the City of Little Rock (City) and Jacuzzi Brothers Division of Jacuzzi, Inc., Merico, Inc., and Smith Fiberglass Products, Inc., (Industries). Some years ago the City developed several properties for industrial purposes through Act 9 of 1960 revenue bonds and leased them to the Industries. Since the inception of the leases the properties have been exempt from ad valorem taxes because of their public purpose under Ark. Const, art. 16, § 5. After the bonds were paid the Pulaski County Assessor notified the City that the county intended to place the properties on the tax rolls for ad valorem taxation.

The Industries and the City petitioned the Pulaski County Board of Equalization for relief from the assessor’s decision. The board refused to address the matter on the ground that it had no jurisdiction over tax exemptions. The Industries and the City then petitioned the Pulaski County Court to allow the exemptions, naming Pulaski County as the Respondent. After a hearing the county court held the properties were exempt.

The county appealed to the circuit court and the City and Industries moved to dismiss, contending that the. county had no authority to appeal contrary to the decision of the county court. Briefs were submitted and the circuit court entered an order of dismissal reading in part:

The Court has found no authority whereby it is able to conclude that a county may appeal a decision made by its County Judge when sitting as the county Court. . . .this Court gave Appellant until April 30, 1993, to amend its pleadings to name B.A. McIntosh, Pulaski County Assessor, or some other alleged aggrieved party, as the Appellant. However, such amendment was not filed.
Appellees’ Motion to Dismiss the appeal of the County Judge’s order should be and is hereby granted.

Pulaski County has appealed from the order and we reverse. The City and Industries defend the order of the circuit court on the dicta of two early cases: Chicot County v. Tilghman, 26 Ark. 461 (1871) and Ouachita County v. Rolland 60 Ark. 516, 31 S.W. 144 (1895). In Tilghman, the county attorney sought to appeal “on behalf of himself and other citizens” from an allowance by the Chicot County Court of á claim against the county. Relying on an existing statute, this court held an appeal will lie from judgments of the county court in settling claims against the county but only by such persons as may be aggrieved by the allowance or rejection of the claim. We wrote: “[I]t [the statute] has no reference to citizens of a county who are not interested in the allowance of the claim. The idea of a county appealing from the allowance of a claim by its county court, is simply ridiculous. The county court represents the county.” The gist of the holding, in other words, is that one who is not aggrieved by the judgment of the county court, had no right of appeal under the statute. The county points out that in contrast to the appellants in Tilghman, it is the party aggrieved by the ruling of the county judge.

In the other case, Blanche Rolland’s application to the county court for a license to sell malt liquors was refused. She appealed to the circuit court, which reversed and the county judge appealed to this court. We questioned, sua sponte, whether the county judge could appeal, citing § 1270 of Sand & H. Dig [“when appeals are prosecuted in the Circuit or Supreme Court, the judge of the county court shall defend the same”] as the only authority for such appeal. Citing a lack of clarity in the words, “.shall defend the same,” the court stated:

As a general rule, all parties aggrieved are allowed to take appeals from all judgments of the circuit and inferior courts. There can be no good reason why counties should be denied the same right, except ás to judgments of the county courts. As to these judgments, it would serve no useful purpose to give the county judge the right to appeal, as it is presumed that, having rendered the judgments, he would never see the occasion for exercising it. But it is different as to judgments of the circuit courts which affect the interest of a county. The statute recognizes this difference when it says: “When, appeals are prosecuted in the circuit or supreme court, the judge of the county court shall defend the same.” But how is he to “defend the same”? Necessarily by taking such action as will secure or protect the interest of his county as he shall see it. By imposing this duty upon him the statute incidentally and necessarily invested him with the right to use those remedies provided for that purpose. Among these one of the most valuable is the right to appeal to the highest court.

We note at the outset that Rolland and Tilghrrian are not tax cases. Those cases were decided over a century ago when the structure, operation and financing of county and municipal governments were vastly different than they are today. The rationale of those cases was rooted in the supposition that the county judge and the county were synonymous, a concept eroded by time and changing law. We need look no further than the “County Government Code,” Act 1977, No. 742 (§§ 14-14-101 et seq), enacted after the passage in 1977 of Amendment 55 to the Arkansas Constitution. As the emergency clause to the act notes, Amendment 55 “caused major changes in the structure of county government and because of said changes a need exists to modernize laws affecting county government.” Among those changes is a clear division and separation of powers among the branches of county government. See Ark. Code Ann. § 14-14-502(a) and (b) (1987) making it apparent that the government is no longer controlled and operated by only a single entity.

As to suits between a government and its divisions, there can be little doubt of their propriety. See United States v. ICC, 337 U.S. 426 (1949); United States v. Nixon, 418 U.S. 683 (1974); United States v. Shell, 605 F. Supp. 1064 (D. Colo. 1985); Civil Service Commission v. Pekrul, 41 Conn. Supp. 302, 571 A.2d 715 (1989). Under the County Code the county court and the county assessor represent distinct and separate instrumentalities of the county government and while admittedly it seems incongruous for a county to be appealing from its own decision, we regard it as merely ostensible.

The county relies on art. 7, § 33 of our Constitution.
Appeals from all judgments of county courts . . . may be taken to the circuit court under such restrictions and regulations as may be prescribed by law. [Our emphasis.]

Furthermore, there is statutory support for the county’s right of appeal:

Appeals shall be granted as a matter of right to the circuit court from all. .. final orders and judgments of the county court ....

Ark.'Code Ann. § 16-67-201 (1987).

(a)(1) The assessor or any property owner who may feel aggrieved at the action of the county equalization board may appeal from the action of the board to the county court.. .
(g) It shall be the duty of the prosecuting attorney or his deputy, when called upon by the county assessor, a member of the board, or the county court, to represent the county and state in the prosecution of all appeals before the county and circuit courts. [Our emphasis.]

Ark. Code Ann. § 26-27-318 (Repl. 1992).

Nor can we find any prohibition against an appeal to circuit court by a county from an adverse ruling of the county court in a tax assessment case. Moreover, the only avenue of appeal to the supreme court from the county court is by way of the circuit court. Scott County v. Frost, 305 Ark. 358, 807 S.W.2d 469 (1991); Ex Parte Dame, 162 Ark. 382, 259 S.W.2d 754 (1923).

The obvious implication of the trial court’s order is that this appeal would be permissible if brought by the division or agency involved in the dispute, i.e., the assessor’s office. Having held that the county may appeal a decision of its county court, the question now raised is who are the proper parties to bring this suit.

The county itself is a proper party to this suit. See generally, 17 Elkins, O’Gradney & Perkowitz-Solwitz, McQuillan Mun. Corp. § 49.16; 7 Wright Miller & Kane, Federal Practice and Procedure: Civil, § 1617 (1986). However, the assessor should be joined as a necessary party, as it is that office which is charged with the authority to decide questions of exemptions on real property, Ark. Code Ann. § 26-26-1001 (1987), and it is that office which is authorized to appeal from the decisions of the county equalization board. Ark. Code Ann. § 26-27-318(a)(1) (1987). Officials who are charged with enforcing a statute, or rule or order that is being challenged, or if their presence is needed to afford complete relief to the parties, are necessary parties. See 7 Wright, Miller & Kane, Federal Practice and Procedure: Civil, § 1617 (1986); 26 Fed. Proc., L.Ed., § § 59:116, 117. See our recent decision in IBM Credit Corp. v. Pulaski County, 316 Ark. 580, 873 S.W.2d 161 (1994).

One question remains that was not directly addressed below. The appellees argue the appeal to circuit court had not been authorized by either the quorum court or the county judge. But § 26-26-318(a) (1987), quoted earlier, specifically provides for appeals on tax questions by either the property owner or the assessor. No further authorization for appeal is needed, for under Ark. Code Ann. § 16-67-201 (1987), all appeals from county court judgments are granted as a matter of right.

Reversed and remanded for further proceedings consistent with this opinion.

Newbern, J., did not participate in the final vote.


text:
    Deshawn ROBINSON v. STATE of Arkansas
    CR 93-1355
    875 S.W.2d 837
    Supreme Court of Arkansas
    Opinion delivered May 9, 1994

      William R. Simpson, Jr., Public Defender, by; Tammy Harris, for appellant.

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

This is an appeal from two aggravated robbery and two theft convictions which challenges the fairness of a photographic lineup and the sufficiency of the evidence from the trial of those offenses. There is no merit to appellant’s four contentions.

On February 16, 1993, a man identified as Deshawn Robinson, appellant, entered an Exxon gas station and, brandishing a gun, threatened the lone employee and customer. Money was taken and both the employee, Gantt Kelley and the customer, Paula Baker, fled the store. The next day Kelley saw appellant walking across the gas station parking lot and recognized him as the man who had committed the robbery. The police were called and they picked up appellant in a bank parking lot across the street.

Robinson was charged with two counts of aggravated robbery against Kelley and Baker and two counts of theft — one against Exxon and one against Baker. A trial by jury was held on August 26, 1993, and appellant was found guilty of all charges. The state also alleged that Robinson was a habitual offender and that his sentence should be increased. Robinson was sentenced to a total of seventy years on the aggravated robbery charges and two years on the misdemeanor theft charges. Appellant appeals from that judgment.

I

Both victims, Kelley and Baker, identified appellant from a photographic lineup at the police station the day after the robbery. Robinson filed a motion to suppress the results of the photo lineup and any subsequent identification as being tainted by the unconstitutional nature of the lineup. The denial of that motion is appellant’s first point of error.

Robinson argues the lineup was impermissively suggestive because, 1) Robinson had his eyes closed in his picture in the photo lineup; 2) both eyewitnesses to the robberies had previously seen appellant in the neighborhood; 3) Kelley had seen Robinson arrested and knew he had been charged with the robberies when the photo identification was made; and 4) Baker testified she was instructed she would have only thirty seconds to make her identification from the photo lineup.

In determining whether the in-court identification is admissible, we look first to whether the pretrial identification procedure was unnecessarily suggestive or otherwise constitutionally suspect. Hayes v. State, 311 Ark. 645, 846 S.W.2d 182 (1993). It is the appellant’s burden to show the pretrial identification procedure was flawed. Id. If there are suggestive elements in the pretrial identification procedure that make it all but inevitable that the victim will identify one person as the criminal, the procedure is so undermined that it violates due process. Bishop v. State, 310 Ark. 479, 839 S.W.2d 6 (1992). We find no such factors in this case.

As to the point that his eyes were closed in his lineup picture, appellant offers no explanation as to why that was suggestive. Moreover, we do not address the argument as there is no reproduction of the photo lineup in the abstract. Ark. R. Sup. Ct. 4-2 (a)(6) provides:

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

Without seeing appellant’s picture and those of the others in the photo lineup, we have no way of evaluating and reviewing this point and the argument is therefore waived.

Robinson argues that because both Kelley and Baker testified to having previously seen Robinson in the neighborhood and to remembering him, that fact makes the pretrial identification unreliable. Appellant offers no argument or authority for this conclusory assertion, for evident reasons. It was precisely because both victims had previously seen appellant they were able to recognize him when he came into the station. If anything, the victims’ independent recognition of appellant would strengthen their identification rather than weaken it. See e.g. Chism v. State, 312 Ark. 559, 570, 853 S.W.2d 255 (1993).

As a further indication of the unreliability of the lineup, appellant argues that Kelley had seen him being arrested and knew he had been charged with the robberies when the photo identification was made. But that hardly undermines the identification. Kelley testified that he recognized Robinson during the robbery from having seen him at other times in the store. He also testified that the day after the robbery he noticed appellant in the parking lot and told his supervisor that was the man who robbed them. After satisfying himself that Kelley was certain of his identification, the supervisor called the police on 911. Robinson went across the street to a bank parking lot and was there when the police picked him up.

Robinson appears to argue that a “show-up” occurred when Kelley saw Robinson being arrested, making it inevitable that Kelley would then identify Robinson in a lineup. See Van Pelt v. State, 306 Ark. 624, 816 S.W.2d 607 (1991). Under these circumstances, however, where it is the victim who spotted and identified Robinson as the perpetrator and then called the police for the very purpose of having Robinson arrested, it is clear the identification occurs independently and not as a result of police activity.

Appellant contends the pretrial identification was not reliable because one of the officers told Baker she had only thirty seconds to make an identification from the photo. Appellant offers no authority or convincing argument to support his contention. However, the policeman who showed Baker the photo lineup denied that he so limited her and by both the officer’s and Baker’s account she identified appellant within a second or two. It is for the trial court to determine if there are sufficient aspects of reliability surrounding the identification to permit its use and we will not reverse the ruling unless it is clearly erroneous. McConaughy v. State, 301 Ark. 446, 784 S.W.2d 768 (1990). We do not find the trial court’s decision on this point to be clearly erroneous.

II

Appellant argues that a directed verdict should have been granted in his favor on the aggravated robbery against Gantt Kelley. He submits the evidence showed the assailant never pulled the pistol out in front of Kelley, nor aimed it in his direction, never said anything to Kelley, nor took any of his personal property. Therefore, he insists no robbery against Kelley was committed.

The state first argues that while appellant made a directed verdict motion at the close of the state’s case the motion was not renewed at the close of the whole case. The state notes that appellant did not present any evidence, but argues appellant must nevertheless renew his directed verdict motion. We disagree. We stated recently in Thomas v. State, 315 Ark. 504, 868 S.W.2d 483 (1994):

[The appellant’s] sufficiency argument was not preserved for appeal. He made a motion for a directed verdict at the close of the state’s case and then called his own witnesses. A defendant who goes forward with the production of additional evidence after a directed verdict motion is overruled waives any further reliance upon the former motion. [Cites omitted.]

It follows that when a defendant presents no evidence after a directed verdict motion is made, further reliance on that motion is not waived.

As to merit of the argument, we look to the definitions of robbery and aggravated robbery:

§ 5-12-102 Robbery.
(a) A person commits robbery if, with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another.
§ 5-12-103 Aggravated robbery.
(a) A person commits aggravated robbery if he commits robbery as defined in § 5-12-102, and he:
(1) Is armed with a deadly weapon or represents by word or conduct that he is so armed; or
(2) Inflicts or attempts to inflict death or serious physical injury upon another person.

We have pointed out that the offense of robbery is complete when physical force is threatened and no transfer of property need take place. Mitchell v. State, 281 Ark. 112, 661 S.W.2d 390 (1983); Birchett v. State, 294 Ark. 176, 741 S.W.2d 267 (1987); Robinson v. State, 303 Ark. 351, 797 S.W.2d 425 (1990); Rolark v. State, 299 Ark. 299, 772 S.W.2d 588 (1989); Harris v. State, 308 Ark. 150 (1992).

When the sufficiency of the evidence is being challenged on appeal we review the evidence in the light most favorable to the appellee, considering only that evidence which tends to support the verdict. Tisdale v. State, 311 Ark. 220, 843 S.W.2d 803 (1992). Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion or conjecture. Edwards v. State, 300 Ark. 4, 775 S.W.2d 900 (1989). The fact that evidence is circumstantial does not render it insubstantial. Walker v. State, 313 Ark. 478, 855 S.W.2d 932 (1993); Cigainero v. State, 310 Ark. 504, 838 S.W.2d 361 (1992). Intent is seldom capable of direct proof and must usually be inferred from the circumstances. Akbar v. State, 315 Ark. 627, 869 S.W.2d 706 (1994); Green v. State, 313 Ark. 87, 852 S.W.2d 110 (1993). The jury may draw any reasonable inferences from the evidence presented. Boren v. State, 297 Ark. 220, 761 S.W.2d 885 (1988).

Kelley’s account of the robbery was as follows: At about 6:15 in the evening he was waiting on a customer, Ms. Baker, who was purchasing some candy. The assailant walked in and stood behind her and Kelley could see he had a gun in his hand. The assailant pointed the gun at Baker and then snatched money out of her hand. Kelley yelled, “He’s got a gun, he’s got a gun,” and both he and Baker ran out.. Kelley testified he considered the assailant’s presence with the gun threatening and said he didn’t know whether the assailant was going to shoot the customer or himself.

Ms. Baker’s testimony was similar. She explained she had gone into the station to get change for a twenty dollar bill by purchasing some mints. She had noticed the assailant because he “didn’t look right” and as she was accepting her change from the clerk, the assailant said something like, “Forget this stuff,” that he jerked her arm and snatched her money but it fell on the floor and he bent down to pick it up. She also testified she saw his hand up under his shirt and when “he came up he had something black in his hand. I don’t know what it was. And the fellow that worked in the Exxon station, he said, ‘Run. He’s got a gun.’”

The gist of appellant’s argument is that because the assailant never threatened Kelley directly and manifested no intent to take anything from him, there was no aggravated robbery against Kelley. There is no requirement in the robbery statute that the threat of physical harm to an individual be made directly or individually, only that physical force be immediately threatened, however that threat may be communicated. The jury is allowed to draw upon their common knowledge and experience in reaching a verdict from the facts directly proved. Fletcher v. State, 306 Ark. 541, 816 S.W.2d 592 (1991). Under the circumstances of this case, it was reasonable for the jury to conclude that when the assailant pointed the gun at Baker, Kelley was included in the threat communicated by the gunman. As the Supreme Court stated in McLaughlin v. United States, 476 U.S. 16 (1986), “the display of a gun instills fear in the average citizen.” Under the circumstances, there was sufficient threat to Kelley to sustain a conviction for aggravated robbery.

As to intent, the statute requires that the purpose of employing force must be to commit a theft or to resist apprehension immediately thereafter. Here, appellant’s pointing the gun at Baker, coupled with his grabbing money from her hand is sufficient evidence to support a conclusion that theft was his general objective. That theft of the gas station was included is confirmed by the fact that appellant took money from the station as well as from Baker. See, discussion in part III.

We find there was sufficient evidence that appellant intended his threats for Kelley as well as for .the customer, and that his threat in both cases was for the purposes of theft.

Ill

Appellant argued below that a directed verdict should have been granted on the theft count against Exxon as there was no proof anything was taken from the station. Appellant’s contention is that the only theft was from Baker of her change from the twenty dollar bill. However, we construe the testimony as reflecting that appellant also took the twenty dollar bill Baker had just handed to Kelley. Kelley testified that when he and Baker left the station he’d left some money on the counter and the cash register was open; that as he was leaving the station he saw appellant starting to take money from the cash register or off the counter; that when he returned the money on the counter was gone. This evidence is sufficient to establish theft from Exxon.

IV

Appellant argues the evidence was insufficient for the aggravated robbery count against Baker because she was not threatened with a gun nor physically injured, and a directed verdict should have been granted. There is no merit to this argument. The state notes correctly that no motion for a directed verdict on Baker’s aggravated robbery was ever made. The only motion made below on this count was for a reduction from aggravated robbery to robbery. We have recently held that a request for a reduction from aggravated robbery to simple robbery does not imply a request for a directed verdict for aggravated robbery. Jackson v. State, 316 Ark. 405, 871 S.W.2d 591 (1994). Nor does it in this case.

Affirmed.


author: David Newbern, Justice.

text:
    SECOND INJURY TRUST FUND and Alonzo Rooney v. WHITE CONSOLIDATED and Continental Loss Adjusting
    93-1311
    875 S.W.2d 834
    Supreme Court of Arkansas
    Opinion delivered May 9, 1994

      David L. Pake, for appellants.

      Laser, Sharp, Mayes, Wilson, Bujford & Watts, P.A., by: Ralph R. Wilson, for appellees.
   David Newbern, Justice.

The Arkansas Second Injury Trust Fund petitions for review of a Court of Appeals decision which reversed a ruling of the Arkansas Workers’ Compensation Commission. The facts of the case are discussed at length in the Court of Appeals opinion and need not be repeated. See White Consolidated v. Rooney, 44 Ark. App. 78, 866 S.W.2d 838 (1993). The sole issue for review is whether the Second Injury Fund becomes liable for a portion of a worker’s total disability if the previous injury was one which did not result in lost earning capacity when it occurred.

The controlling statute is Ark. Code Ann. § 1 l-9-525(b)(5) (1987) which states, in part: “If the previous disability or impairment, whether from compensable injury or otherwise, and the last injury together result in permanent total disability, the employer at the time of the last injury shall be liable only for the actual anatomical impairment resulting from the last injury considered alone and of itself.”

The Second Injury Fund contends the term “impairment” means a condition which did not result in wage loss. In Second Injury Trust Fund v. POM, Inc., et al., No. 93-1327 (May 2, 1994), we held that “impairment” is not limited to a condition resulting from a previous injury which caused wage loss, and thus the Second Injury Fund may be liable when permanent total disability results from a second injury to one who suffered “impairment” from a previous injury which did not result in wage loss. Having already decided the issue presented for review, we affirm the Court of Appeals decision.

Affirmed.