author: Robert L. Brown, Justice. Lavenski R.Smith, Justice,

text:
    Charles A. “Jack” WALLS v. STATE of Arkansas
    CR 98-521
    986 SW.2d 397
    Supreme Court of Arkansas
    Opinion delivered March 4, 1999
    [Petition for rehearing denied April 15, 1999.]

      Hubert W. Alexander and Jon Johnson, for appellant.

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

       Glaze, Corbin, and Smith, JJ., would grant.

   Robert L. Brown, Justice.

Appellant Charles A. "Jack" Walls appeals from a sentence given by the circuit judge following his guilty plea to five counts of rape and a plea of nolo contendere to one count of rape. The circuit judge sentenced Walls to two forty-year terms and four life terms in prison, to be served consecutively. Walls states several grounds for appeal, including a claim that the circuit judge erred in allowing and then considering for sentencing purposes irrelevant evidence relating to Walls’s culpability for the murder of the Stocks family. We agree with Walls that this was an abuse of discretion, and we reverse and remand for resentencing.

Jack Walls was a boy scout troop leader who sexually molested boys under his care. After he pled guilty to four counts of raping the boys and one count of no contest, two counts of solicitation to commit murder involving the Hogan family were nol prossed. On January 22, 1998, the circuit judge conducted a sentencing hearing. At the hearing, the prosecutor called the boys who were Walls’s victims as witnesses and in some instances their parents and grandparents. It evolved at the hearing that Walls introduced his victims to weapons, alcohol, pornography, and sexual acts with him. The focal point of the hearing was testimony relating to the impact of Walls’s actions, and the rapes in particular, on the lives of the boys.

Our sentencing law provides that in the sentencing phase of the trial, evidence relevant to sentencing may include victim-impact evidence and statements. See Ark. Code Ann. § 16— 97-103(4) (Supp. 1997). The sentencing statute further provides that relevant character evidence and evidence of aggravating and mitigating circumstances may be allowed. See Ark. Code Ann. § 16-97-103(5) & (6). Our caselaw has primarily dealt with the relevancy of victim-impact evidence in the context of a murder victim. See, e.g., Noel v. State, 331 Ark. 79, 960 S.W.2d 439 (1998); Hicks v. State, 327 Ark. 727, 940 S.W.2d 855 (1997); Kemp v. State, 324 Ark. 178, 919 S.W.2d 943 (1996); Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995). In Noel v. State, for example, we stated that relevant victim-impact evidence is evidence that informs the jury of the toll of the murder on the victim’s family. Citing Payne v. Tennessee, 501 U.S. 808 (1992), we said in Noel that when victim-impact evidence is unduly prejudicial, it may render the trial fundamentally unfair and violate the Due Process Clause.

We begin our analysis by noting that the circuit judge was in error when he twice overruled objections by defense counsel and stated that the rules of evidence do not apply to sentencing hearings or to victim-impact evidence in particular. In 1994, we held that the evidence listed in § 16-97-103, including victim-impact evidence, “must be governed by our rules of admissibility and exclusion; otherwise, these proceedings would not pass constitutional muster.” Hill v. State, 318 Ark. 408, 413, 887 S.W.2d 275, 278 (1994).

We turn then to whether testimony was received and weighed by the circuit judge in sentencing that was irrelevant and whether prejudice resulted. Prior to Walls’s sentencing hearing, one of his victims, Heath Stocks, had been convicted of murdering his mother, father, and sister. Heath pled guilty and was sentenced to life in prison without parole. At Walls’s sentencing hearing, his defense counsel first objected on grounds of relevancy to the testimony of Dorothy Stocks, Heath’s grandmother, about the Stocks family murders. Delving into the background of the murdered family members, the prosecutor had asked about the occupation of Joe and Barbara Stocks and what Heather, Heath’s sister, was like. After defense counsel objected, the prosecutor answered that there was no jury involved at the hearing, and she added that she would “relate” the Stocks deaths as far as their effect on Heath. The circuit judge allowed her to proceed. Defense counsel objected a second time on relevancy grounds to Dorothy Stocks’s testimony about the last time she saw Heath before the murders. But the circuit judge again overruled the objection on the basis that these were victim-impact statements and not evidentiary matters.

Heath’s other grandmother, Annie May Harris, was called as the next witness. She testified that her daughter, Barbara Stocks, had told her that she had found Heath and Walls in bed together in her house. Mrs. Harris told the judge that the “horrible secret” grew inside Heath until he exploded, and his family was gone. She said that Walls told Heath he was training him to be a “hit man.” At that point, defense counsel objected for the same purpose as his previous objection and said that this was “hearsay on hearsay on hearsay” and that there was no way to cross-examine the witness on these assertions. The circuit judge reminded defense counsel that he was “not a jury.” The following colloquy ensued where the circuit judge assured defense counsel that he could separate the relevant from the irrelevant:

The Court: You’re going to have to understand that I am trained in the law, and that I will take what information and the facts that they give me and disseminate that and use —
Defense Counsel: I just wanted to —
The Court: — what’s appropriate and discard that. Part of the reason for a victim impact statement is for healing and therapy, and so I’m going to allow them to do this.
Defense Counsel: I just didn’t want to look like an idiot sitting here, Judge, and not say anything.
The Court: You’ve done your client an excellent job, Mr. Alexander.

The next witness called was Heath Stocks. He described how Walls introduced him to alcohol and told the judge that he was eleven or twelve when Walls first raped him. He also testified that Walls introduced him to pornography and taught him how to shoot at human targets. The prosecutor then asked Heath whether Walls talked to him about killing people. At that point, defense counsel objected again on the basis that this victim-impact evidence had nothing to do with solicitation to commit murder. The prosecutor responded that Walls manipulated and controlled Heath. Defense counsel answered that he would like to move in limine to prohibit the prosecutor from going into solicitation to murder because those charges related to the Hogan family and had been dismissed. The circuit judge interrupted and said Heath was a victim and that he would listen to whatever Walls did to Heath that “impacted his life.” The circuit judge pointed out that the prosecutor had not yet asked about solicitation to murder or the Hogans.

The prosecutor injected that there were “two different circumstances” she would be talking about, which was an obvious reference to Walls’s involvement regarding the potential murder of the Hogans and the actual murder of the Stockses. The prosecutor added that she was allowed to go into other “bad acts” as part of victim-impact evidence. The discussion ended with the judge saying he would not include dismissed charges in Walls’s sentence:

Defense Counsel: Well, if you’re going to consider those things, then we should have ■ — ■ we could have pled guilty to everything. Because, if you’re going to consider solicitation of murder that we were — that we didn’t plead guilty to, then —
The Court: Mr. Allen, you are assuming that this Court would then, in sentencing, include charges that have been dismissed, and that’s not going to happen.
But I am entitled to know the mind-set of these people. I am entitled — I mean, I — if you choose, I’m entitled to know the mind-set of your client. But the fact that he doesn’t want to say anything has absolutely no bearing on me.
But if these people are going to testify to things she can relate up to how it has impacted them, I’m going to allow it.

With the assurance that uncharged acts would not be included for sentencing purposes but that the circuit judge would listen to whatever impacted Heath’s life, the sentencing hearing continued.

After defense counsel’s objection was overruled, the prosecutor elicited from Heath a vivid description of Walls’s solicitation to murder the Hogans and an even more graphic recounting of Walls’s involvement in the Stocks murders. The essence of the testimony was that Walls had trained Heath to be an assassin. After Heath told his mother and sister about his homosexual relationship with Walls, he told Walls what he had done. According to Heath, Walls told him to “take care of the problem,” which he interpreted to mean “kill it.” Defense' counsel, on cross-examination, explored whether Heath blamed Walls for the murders in an effort to establish that Heath committed the murders, not Walls.

The prosecutor next called Robert Marble, minister of the United Methodist Church in Concord, as a witness. Reverend Marble testified that Heath told him on two occasions that Walls had told him to kill his family. Defense counsel did not object to this testimony.

On February 4, 1998, the circuit judge sentenced Walls. Before pronouncing sentence, the judge made a lengthy statement about the case. Towards the end of his statement, the judge said:

I do not have to believe Heath Stocks’s testimony that you told him to kill his testimony (sic) to know that he was your finest creation, and perhaps most vulnerable victim, and to know that he became what you taught him to be. I only know that, in the very least, you are indirecdy responsible for the deaths of Joe, Barbara and Heather Stocks.

The circuit judge followed this with a finding that “many of these young men stalked the Hogans for you [Walls].” Shortly thereafter the circuit judge pronounced sentence.

I. Proper Objection

Before addressing the merits of whether Walls’s culpability for the Stocks murders was irrelevant and unduly prejudicial victim-impact evidence, we must determine whether the issue was properly preserved for our review. The State contends that this evidence, at times, was allowed into evidence without objection, and, as a consequence, we cannot review it. We disagree.

We first consider it significant that the sentencing hearing was conducted before a judge, not a jury. We have emphasized many times in both civil and criminal cases that the circumstances of a bench trial are different with respect to relevant evidence because a judge is better equipped to sort out what is pertinent to the issue at hand. See, e.g., Stewart v. State, 332 Ark. 138, 964 S.W.2d 793 (1998); In Re Adoption of K.F.H., 311 Ark. 416, 844 S.W.2d 343 (1993); Rich Mountain Elec. Coop. v. Revels, 311 Ark. 1, 841 S.W.2d 151 (1992). In Stewart, we addressed the situation where evidence in a bench trial had been contested by defense counsel by a motion in limine and the motion had been overruled. Unlike a jury trial, we held that subsequent objections to the testimony were not necessary:

In reaching this conclusion, we are not unmindful of two recent cases where we held that a contemporaneous objection is required in order to preserve for appeal issues that were raised in a motion in hmine. Slocum v. State, 325 Ark. 38, 924 S.W.2d 237 (1996); Massengale v. State, 319 Ark. 743, 894 S.W.2d 594 (1995). We, however, find these cases distinguishable because they involved jury trials, instead of a bench trial as in this case. If a contemporaneous objection is not made at the time the evidence is offered during a jury trial, the proverbial bell will have been rung and the jury prejudiced. However, when the contested evidence is mentioned during a bench trial, there is no risk of prejudice because a trial judge is able to consider evidence only for its proper purpose.

Stewart, 322 Ark. at 143, 964 S.W.2d at 796. (Emphasis added.)

In the case before us, defense counsel objected to the testimony of Heath Stocks’s two grandmothers. Counsel contested the testimony of Dorothy Stocks, who was asked to give background information about the murdered Stocks family members. Defense counsel objected to the testimony of Annie Mae Harris when she testified that Heath told her that Walls was training him to be a “hit man.” Finally, defense counsel objected when the prosecutor asked Heath whether Walls talked to him about killing people. Defense counsel argued victim impact had nothing to do with the dismissed solicitation-to-murder charges and moved in limine to that effect, but the circuit judge responded that he would listen to whatever Walls did to Heath that had an impact on Heath’s fife. The scope of the circuit judge’s ruling was clear that he would allow as victim-impact testimony whatever Walls said or did to Heath, regardless of whether it embraced the solicited murders of the Hogans or the actual murders of the Stocks family. Under these circumstances where a bench trial is involved and where the ruling has been made, continuous objections to the same testimony on relevancy grounds are not required. We hold that the issue is preserved for our review even though defense counsel did not object to the later testimony of Reverend Marble.

There is one final point concerning preservation of this issue. After the ruling by the circuit judge that he would allow all testimony showing any impact on Heath caused by the rapes, defense counsel cross-examined Heath about Walls’s role in the Stocks murders. The question is whether by doing so, defense counsel waived any objection to this evidence. We think not. In an analogous case, we held that plaintiffs counsel did not waive an objection made in a motion in limine regarding marijuana use by the plaintiff in a medical malpractice case. See Burnett v. Fowler, 315 Ark. 646, 869 S.W.2d 694 (1994). In Fowler, the motion was overruled. After the ruling, plaintiffs counsel was first to present to the jury evidence of marijuana use by the plaintiff. The jury returned a defendant’s verdict, and the plaintiff moved for a new trial, which the trial court granted on the basis that the evidence of marijuana use had been too prejudicial. In holding that plaintiff s first introduction of the marijuana usage did not constitute a waiver of the issue on appeal, we said: “We see no reason why, once the matter of admissibility has been settled, either party may not use the evidence in question.” Fowler, 315 Ark. at 650, 869 S.W.2d at 696.

Similarly, in the instant case the circuit judge’s ruling allowed the prosecutor to develop Walls’s role in the Stocks murders. After the ruling, the door was open, and defense counsel were obliged to protect their client on the issue as best they could. We see no waiver by defense counsel in this regard.

II. Victim Impact

We turn then to whether evidence of Walls’s involvement in the Stocks murders was relevant victim-impact evidence. We conclude that it was not. As already stated, the policy reasons for distinguishing jury trials from bench trials is clear. A judge in a bench trial is better able to separate the evidentiary wheat from the chaff in deciding what is relevant in making his or her decision. In this case, the prosecutor argued to the circuit judge at one point that because a jury was not involved, he should allow the grandmother to testify to the Stocks murders. The circuit judge picked up on the same theme and said on two occasions that he could separate the relevant evidence from what was irrelevant and added at one point that he would not include dismissed offenses in his sentence.

What lies at the heart of our decision today is that the circuit judge, by his own words, held Walls responsible for the Stocks murders. The judge said: “I only know that, in the very least, you are indirectly responsible for the deaths of Joe, Barbara and Heather Stocks.” This, of course, was the very victim-impact evidence that Walls’s counsel attempted to exclude but was thwarted in doing so. Thus, if it was improper and unduly prejudicial for this evidence to be allowed and considered by the circuit judge, Walls’s sentence must be reversed.

We focus again on what is proper victim-impact testimony. This, of course, was a sentencing hearing for multiple rapes of young boys to which Walls pled guilty. The offenses described by the boys and their parents were vile and sickening. But multiple murders of the Stocks family were not part of Walls’s guilty plea. Walls had been charged with solicitation to commit murder with respect to the Hogan family, but those charges had been nol pressed, apparently in association with Walls’s guilty pleas. Walls had never been charged in connection with the Stocks family murders. Despite these facts, the circuit judge heard evidence, as victim-impact evidence, that Walls controlled Heath as a hit man and ordered him to murder his family. The judge ultimately concluded that this was true.

We cannot sanction evidence of another crime as legitimate victim-impact evidence. Clearly, it is not relevant. On the issue of whether it was unduly prejudicial, that goes without saying. The State argues that Walls’s counsel made no objection under Ark. R. Evid. 403 that the unfair prejudice of the testimony of the Stocks murders outweighed its probative value as victim-impact evidence. We agree that an objection couched in Rule 403 terms was not made, though an objection to the judge’s consideration of dismissed offenses was clearly offered. There is, of course, the point that the circuit judge had previously stated that the rules of evidence would not apply to victim-impact evidence. Furthermore, we have previously considered prejudice in murder cases to be part of the analysis of what is relevant victim-impact evidence under the sentencing statute, § 16-97-103(4). See, e.g., Noel v. State, supra; Hicks v. State, supra. See also Payne v. Tennessee, supra.

The State continues that the Stocks murders were relevant to show the character of Walls under § 16-97-104(5). As authority, the State cites us to Nichols v. United States, 511 U.S. 738 (1994). The Nichols case involved whether a sentence for drug charges could be enhanced based on an uncounseled DUI misdemeanor conviction. In its discussion, the Court acknowledged that past criminal behavior could be considered by a sentencing court even when no conviction resulted. However, the Court in Nichols stated that such prior criminal behavior must be proved by a preponderance of the evidence.

In the case before us, the record does not reveal any notice to defense counsel that the issue of Walls’s responsibility for the Stocks murders was to be tried to the circuit judge for sentencing purposes. The record only discloses a motion in limine by the prosecutor to disclose other sexual acts of a pedophile under Ark. R. Evid. 404(b). There is also the fact that the circuit judge stated he would not consider dismissed sohcitation-to-murder charges in connection with the Hogans. The Stocks murders came in solely under the cloak of victim-impact evidence. The Nichols case simply does not control this issue.

The State further contends that the solicitation-to-murder evidence was admissible as an aggravating circumstance under our sentencing law, § 16-97-103(6). The State cites Hill v. State, supra, as authority. We held in Hill that evidence of a prior, uncharged robbery attempt was admissible in the sentencing phase, following a guilty plea for robbery against the same victim. But we made it clear in Hill that such relevant evidence should only come in “in the absence of prejudice.” Hill, 318 Ark. at 415, 887 S.W.2d at 278 (citing Pickens v. State, 292 Ark. 362, 730 S.W.2d 230 (1987)). We concluded in Hill that the evidence was not prejudicial to the defendant. In the instant case, however, we cannot reach that same conclusion. Walls, without question, was prejudiced by the evidence of the Stocks murders, for the reasons already stated.

We hold that the circuit judge abused his discretion (1) when he allowed this testimony about the Stocks murders in as victim-impact evidence, and (2) when he held Walls responsible for those murders in fixing his sentence.

This issue really brings into sharp focus the protections afforded defendants in the criminal justice system. No matter how reprehensible the crimes committed, it is an article of faith in criminal law that we do not sentence for crimes that have not been proven. Nor should victim-impact evidence be used as a vehicle for testimony that Walls was an accessory to the murder of the Stocks family. We recognize how difficult a second sentencing hearing will be for the victims and their families. Nevertheless, if the criminal justice system is to have any credence at all, it must adhere to certain basic principles. It is unfair in the extreme for the sentencing judge to consider testimony of an uncharged, unproven crime for sentencing purposes under the aegis of victim-impact testimony.

Because the other issues raised for reversal are not likely to reoccur on resentencing, we do not address them.

Reversed and remanded.

Glaze, Corbin, and Smith, JJ., dissent.

Lavenski R.Smith, Justice,

dissenting. I disagree with the majority the majority that reversal is warranted in this case. The majority considers the court’s statement, “I only know that, in the very least, you are indirectly responsible for the deaths of Joe, Barbara and Heather Stocks” an indication that the court intended to sentence Walls for uncharged crimes.

The sentence actually imposed indicates the court sentenced appellant in accordance with the law for the crimes he admittedly did commit. Appellant pleaded guilty to five counts of rape and no contest to a sixth rape count. All these offenses were committed repetitively against minor boys for nearly a decade. Appellant misused a position of trust to gain access to young boys and then sexually exploited them in base and despicable ways. Under our criminal code rape is a Class Y felony punishable by not less than ten (10) years and not more than forty (40) years or life. The trial court sentenced appellant to four consecutive life terms and two terms of forty (40) years. Given the heinous nature of the defendant’s confessed acts I cannot say this sentence was indicative of prejudice.

The majority agrees with appellant that certain procedural improprieties during the hearing necessitate reversal. However, our cases are clear that only prejudicial error justifies reversal of the trial court. Phillips v. State, 321 Ark. 160, 900 S.W.2d 526 (1995). The sentence imposed does not indicate prejudice but was within applicable statutory parameters and commensurate with the nature of the offenses committed. I cannot say that upon remand the sentence imposed could be appreciably different. The abstract contains no record of appellant having objected to the sentence at the time of its imposition.

The court’s statements regarding the rules of evidence were at best not artful and at worst misstatements of law. There is no question as to the applicability of the rules of evidence to the sen-tending phase of bifurcated criminal trials. They do apply. Hill v. State, 318 Ark. 408, 413, 887 S.W.2d 275 (1994). As we stated in Hill, “The introduction of evidence during this stage must be governed by our rules of admissibility and exclusion; otherwise, these proceedings would not pass constitutional muster, which is all the more reason to permit appeal.” While the applicability of the evidence rules is clear, the meaning of the trial court’s statements is not.

Neither of the court’s statements are precise enough for us to know with certainty what meaning the court ascribed to them but to the extent they indicate that the rules of evidence would not apply in this defendant’s sentencing hearing they were in error. However, it is apparent from the record that the court did apply the rules of evidence during the hearing. On all occasions appearing in the record, the court entertained and, when requested, ruled on evidentiary issues where raised. Rather than an abandonment of the rules it is much more plausible that the court intended to apply the rules and yet permit victims and their families to express themselves freely regarding the negative consequences of appellant’s actions. The statute authorizing victim-impact statements permits testimony regarding the effects of the crime on the victim, the circumstances surrounding the crime, and the manner in which the crime was perpetrated. Ark. Code Ann. § 16-90-1112 (1987). This is constitutionally permissible. According to the U.S. Supreme Court, “ ‘as a general proposition, a sentencing judge may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come.’” Nichols v. United States, 511 U.S. 738, 747 (1994) (quoting United States v. Tucker, 404 U.S. 443, 446 (1972).

Furthermore, it is not at all certain that the court made a definitive ruling that the rules were not going to be applied. If appellant had any doubt about the rules’ applicability an objection would have been in order. Objections are intended to apprise the court of error in order to obtain an appropriate ruling or to preserve an argument for appeal. Brown v. State, 326 Ark. 56, 931 S.W. 2d. 80 (1996). Apparently, appellant assumed that the rules would be applied as he continued to make objections on these same and on other grounds for evidentiary issues subsequent to these remarks by the court.

I disagree that the testimony of Dorothy Stocks regarding Joe, Barbara, and Heather Stocks was irrelevant. The Stockses were the immediate family of appellant’s victim, Heath Stocks. Appellant contends testimony concerning these persons was irrelevant because they are deceased and were not victims of the appellant. The portion of testimony appellant refers to went as follows:

Prosecutor: Let me ask you particularly about the Joe Stocks family.
Witness: Yes.
Prosecutor: Your son, Joe, was a college graduate.
Witness: Yes.
Prosecutor: As was Barbara.
Witness: No, Barbara — Bonnie Gail is. Our daughter.
Prosecutor: Your daughter is a college graduate?
Witness: Yes.
Prosecutor: How were Joe and Barbara employed?
Witness: Joe had a — his own trucking business, and Barbara held down two jobs. She worked at the school, and she also worked, at the Lonoke County Extension Office. And to do this, Joe worked awful hard, and Barbara did, too, to provide their children with the best that they could furnish them.
Prosecutor: If you will, tell me a little bit about Heather.
Witness: Heather was an exceptionally bright girl. She —
Mr. Alexander: Your Honor, could we approach?
The Court: Yes.

This testimony was background information related to one of the victim’s family life. The witness made no mention of the Stockses’ family deaths. She made no effort to disparage appellant but merely recounted family history to help make meaningful a victim’s experience. That particular victim had been raped and abused by appellant repeatedly over at least nine years. He also testified on his own behalf and was subject to cross-examination. Based upon this family background, Dorothy Stocks and witness Annie Mae Harris testified about how the victim suffered for reasons they could not discern, of how he changed and how the family suffered as the victim tried to carry the burden of the severe abuse he dared not and could not bring himself to mention. Their testimony was relevant to appellant’s sentencing to the extent it related directly to familial consequences flowing from Walls’s sexual violation of their grandson. Given this context, I cannot say the trial judge abused his discretion in allowing the background testimony.

It is apparent from the record in this case that appellant’s sentencing hearing was handled less than optimally by both bench and bar. Appellant’s counsel did not object, as the majority notes, to testimony from Reverend Marble regarding the Stockses’ deaths. Additionally, appellant’s own counsel’s cross-examination of victim Heath Stocks deals directly with the issue of responsibility for the Stockses’ murders. Numerous other times potentially inadmissible evidence was entered without objection. In order to gain reversal of the trial court, appellant carries the burden of demonstrating that the trial court committed prejudicial error. I do not believe he has done so. I therefore, respectfully dissent.

Glaze and Corbin, JJ., join.

       Tr. 235, Tr. 239, Tr. 242-245, Tr. 255, Tr. 260, Tr. 265-266, Tr. 267-269, Tr. 271, Tr. 275-276, Tr. 283, Tr. 299-300, Tr. 304-305, Tr. 314-315, Tr. 321-322, Tr. 323-327, Tr. 341, Tr. 358-359, Tr. 397, Tr. 408-409, Tr. 423-424, and Tr. 442-443.


source: Caselaw Access Project

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

license: Public Domain

text:
    J. Stephen WARNOCK v. Ann WARNOCK (Laser)
    98-698
    988 S.W.2d 7
    Supreme Court of Arkansas
    Opinion delivered March 4, 1999
    [Petition for rehearing denied April 15, 1999.]

      T. David Carruth, for appellant.

      Gilbert Law Firm, by: Melinda R. Gilbert, for appellee.

       Glaze, J., not participating.

   Ray Thornton, Justice.

This is an appeal from the Pulaski Court’s order from a contempt hearing finding that appellant was in arrears to appellee in the payment of child support. On appeal, appellant argues that the chancellor erred in failing to grant appellant’s motion for her recusal from the case, in modifying previous orders without finding that a significant change of circumstances existed, in retroactively modifying a 1994 order of the court; in finding that appellant would make $23,300.00 in 1997; and in failing to make written findings as required to impute income or heightened earning capacity to appellant. Appellant further argues that he is denied equal protection under the Arkansas and United States Constitutions by application of the Arkansas Family Support Chart.

Unfortunately, we are unable to reach the merits of this case, and must affirm based on the insufficiency of appellant’s abstract under Ark. Sup. Ct. R. 4-2(b)(3), and the failure of appellant to raise his constitutional argument to the court below. In reviewing the abstract, it is apparent that all of the documents that are necessary for an understanding of the questions presented in this appeal are not abstracted. Specifically, the abstract fails to reflect any of the following documents: the first order of the trial court for the October 14, 1997, hearing, in which the chancellor denied appellant’s motion for her recusal; the lower court’s second order from the October 14, 1997 hearing, filed January 9, 1998, which is the order appealed from; and appellant’s Notice of Appeal. The abstract of appellee’s Motion for Contempt, which gave rise to the hearing appealed from, is so incomplete as to convey no information to this court other than to show that it exists. The parties’ exhibits introduced at trial have also not been abstracted, although they were alluded to and relied upon by witnesses at trial and by counsel in their arguments on appeal. Appellant also failed to designate a complete record on appeal, rendering the record bereft of many documents necessary to an understanding of the proceedings below. Among these are: the divorce decree; the 1992 order that we are told established appellant’s original child-support obligation; and the July 1994 order establishing appellant’s child support at one-half of his original obligation or twenty-five percent of his unemployment benefits, which may also have required that upon gaining employment, appellant’s support obligation would again be determined by the Family Support Chart.

This court has repeatedly held that a summary of the pleadings and the judgment appealed from are the bare essentials of an abstract. Oliver v. Washington County, 328 Ark. 61, 63, 940 S.W. 2d 884, 885 (1997)(citing McPeek v. White River Lodge Enters., 325 Ark. 68, 924 S.W. 2d 456 (1996); King v. State, 325 Ark. 313, 925 S.W. 2d 159 (1996)). We will not examine the transcript of a trial to reverse a trial court. However, we will do so to affirm. Id., (citing Haynes v. State, 314 Ark. 354, 862 S.W. 2d 275 (1993).

Rule 4-2 of the Rules of the Supreme Court and Court of Appeals sets out the requirements for the abstract and brief, and the reason underlying our abstract rule has been stated as follows: There is only one transcript, there are seven judges on the court, and it is impossible for each of the seven judges to examine the one transcript. Id. (citing King v. State, 325 Ark. 313, 925 S.W. 2d 159 (1996)). Furthermore, in the case at hand, even if it were possible for each of us examine the transcript provided, it did not contain all the orders necessary for appellate review of this case.

We have often written that any issue outside the record will not be considered on appeal. Stewart v. Winfrey, 308 Ark. 277, 282, 824 S.W. 2d 373, 376 (1992). The burden is on the appellant to bring up a record sufficient to demonstrate that the trial court was in error, and where the appellant fails to meet its burden, this court has no choice but to affirm the trial court. SD Leasing Inc. v. RNF Corp., 278 Ark. 530, 532, 647 S.W. 2d 447, 449 (1983). Our review on appeal is limited to the record as abstracted, and we will not reach the merits of a case when documents in the transcript that are necessary for an understanding of the case are not abstracted. Burns v. Carroll, 318 Ark. 302, 885 S.W. 2d 16 (1994).

We are similarly unable to reach the merits of appellant’s final point on appeal, that he was denied equal protection under the Arkansas and United States Constitutions. Appellant argues that because the Arkansas Family Support Chart treats appellant, as the noncustodial parent of two children by different mothers, different from a noncustodial parent with two children by the same mother, by requiring him to pay more for support of his two children, it violates constitutional standards. Appellant conceded at oral arguments that this argument was not raised below. A constitutional issue will not be addressed if it was not brought to the trial court’s attention for a ruling during trial or at some point prior to the entry of final judgment. Additionally, any issue outside the record will not be considered on appeal. Stewart v. Winfrey, 308 Ark. 277, 282, 824 SW. 2d 373, 376 (1992).

For the above reasons, we affirm.

Arnold, J., dissenting.

Glaze, J., not participating.

W.H. “Dub” Arnold, Chief Justice.

dissenting. I agree with the majority agree with the majority that the abstract in this case is so flagrantly deficient, as it was submitted, that this Court would never have been able to reach the merits of the case due to the fact that material parts of the pleadings, proceedings, facts, documents, and other matters in the record necessary to an understanding of all questions presented to the Court for decision were not abstracted. However, I believe that because appellant made some very compelling arguments on appeal, an affirmance of the trial court based upon a deficient abstract is unduly harsh, as the appellant will lose his right to an appeal on the merits of the case because of mistakes made in the preparation of the abstract.

Therefore, pursuant to Rule 4-2(b)(3) of the Rules of the Supreme Court, I believe the Court should allow appellant’s attorney time to revise his brief, at his own expense, to conform to Rule 4-2(a)(6). Upon the filing of such a substituted brief by the appellant, I believe the Court should then afford the appellee an opportunity to revise or supplement the brief, at the expense of appellant’s counsel.


author: Ray Thornton, Justice.

text:
    Michelle WILLIAMS v. PROSTAFF TEMPORARIES
    98-1443
    988 S.W.2d 1
    Supreme Court of Arkansas
    Opinion delivered March 4, 1999

      Lane, Muse, Arman & Pullen, by: Shannon Muse Carroll, for appellant.

      Matthews, Sanders & Sayes, by: Margaret M. Newton and Gail O. Matthews, for appellee.
   Ray Thornton, Justice.

On October 14, 1995, while working at Amoco Foam, a temporary job obtained through appellee, Prostaff Temporaries, appellant, Michelle Williams, injured her back while moving a stack of foam plates. After receiving treatment for this injury, appellant was released to return to work without limitations and after returning to work appellant sought additional treatment and temporary total disability benefits. The Arkansas Workers’ Compensation Commission denied these requests and we affirm. Our jurisdiction is authorized pursuant to Ark. Sup. Ct. Rule 2-4 (1998). Specifically, we accepted this case on a petition for review of a decision issued by the court of appeals on November 18, 1998.

Following appellant’s injury at Amoco, her supervisor took her to the emergency room, where she received treatment from Dr. William Highsmith. Dr. Highsmith referred appellant to Dr. Vivian Highsmith. After treating appellant with medication and bed rest, Dr. Vivian Highsmith referred appellant to Dr. Bruce Safinan, an orthopaedic surgeon, in Little Rock. Dr. Safinan gave appellant a shot for what he called inflammation of the back. Appellant was notified by appellee’s workers’ compensation insurance provider that treatment by Dr. Safinan would not be covered. However, the provider referred appellant to Dr. Kevin McLeod, a physician at the Bone and Joint Clinic in Arkadelphia. Dr. McLeod took x-rays, performed a CAT scan, and prescribed two weeks of physical therapy for appellant. On January 22, 1996, appellant was released from Dr. McLeod’s treatment with no limitations and returned to work. Following additional complaints by appellant, Dr. McLeod referred her again to Dr. Vivian High-smith. Dr. Vivian Highsmith referred appellant to Dr. Edward Saer, an orthopaedic surgeon specializing in spinal disorders in Little Rock. Appellee’s workers’ compensation insurance provider denied this referral and instead suggested that appellant see Dr. Anthony Russell, a board-certified neurosurgeon. On April 15, 1996, Dr. Russell had an MRI performed on appellant. Upon reviewing the findings of the medical test, Dr. Russell determined that appellant’s results were normal and once again returned her to work with no restrictions.

Appellant attempted to receive additional medical treatment from Dr. Saer, as well as temporary total disability benefits from appellee from March 30, 1996, to a date yet to be determined. Appellee denied these requests arguing that they were unreasonable and unnecessary. Appellant filed suit and her case was heard by an Administrative Law Judge (ALJ). The ALJ found for appellee on both issues. Appellant appealed these findings to the Arkansas Workers’ Compensation Commission (the Commission). The Commission conducted a de novo review of the evidence and addressed the threshold question whether there was a causal connection between the work-related injury and the medical difficulties complained of by appellant. Based upon its findings that such a causal connection did not exist, the Commission affirmed the ALJ’s decision. Thereafter, appellant appealed the Commission’s decision to the Arkansas Court of Appeals. The court of appeals upheld the Commission’s affirmance of the ALJ’s decision. Finally, appellant filed a petition for review with this court, which we granted.

Appellant claims that she should have been allowed to receive additional medical treatment and temporary total disability benefits as a result of the injury she suffered at work. In rendering its conclusion denying benefits, the Commission found that appellant had failed to prove by a preponderance of the evidence that any abnormalities she may have experienced since March 30, 1996, were causally related to the injury sustained on October 14, 1995. The Commission found that Drs. Safinan, McLeod, Vivian High-smith, and Russell did not document any “objective evidence of an injury” suffered by appellant. It further stated that “reports from those doctors set out the claimant’s complaints of pain and stiffness and note tenderness over portions of her lower back. However, they do not document any muscle spasms, swelling, bruising, or other objective indications of an injury.”

We review a workers’ compensation case as though it had originally been filed here. Gansky v. High Tech Eng’g, 325 Ark. 163, 168, 924 S.W.2d 790, 794 (1996). We view the evidence in the light most favorable to the Commission’s decision and affirm that decision when it is supported by substantial evidence. Id. 325 Ark. at 169, 924 S.W.2d at 794. Substantial evidence is defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. City of Ft. Smith v. Brooks, 40 Ark. App. 120, 124, 842 S.W.2d 463, 465 (1992). The Commission is also given the task of determining the causal connection between a primary injury and additional injuries. Jeter v. B.R. McGinty Mechical, 62 Ark. App. 53, 59, 968 S.W.2d 645, 650 (1998). The Commission has the duty of weighing the medical evidence as it does any other evidence, and its resolution of the medical evidence has the force and effect of a jury verdict. Chamber Door Indus., Inc. v. Graham, 59 Ark. App. 224, 226, 956 S.W.2d 196, 197 (1997). The Commission has the duty of weighing medical evidence and, if the evidence is conflicting, its resolution is a question of fact for the Commission. Whaley v. Hardee’s, 51 Ark. App. 166, 168, 912 S.W.2d 14, 15 (1995). The Commission is not required to believe the testimony of the claimant or any other witnesses, but may accept and translate into findings of fact only those portions of testimony it deems worthy of belief. Id.

We note that in this case the Commission has fulfilled its obligation to make sufficient factual findings to allow us to conduct a meaningful review. See, Willmon v. Allen Canning Co., 38 Ark. App. 105, 106, 828 S.W.2d 868, 869 (1992). Additionally, we agree with the court of appeals’ holding that “this does not require the Commission to render findings on every conceivable point of contention between the parties.” Williams v. Prostaff Temporaries, 64 Ark. App. 128, 130, 979 S.W.2d 911, 912 (1998).

A review of the Commission’s findings support its decision. First, the Commission found that a CT scan performed on appellant on November 3, 1995, showed no evidence of disc herniation or significant degenerative spurring. Next, the Commission found that, according to notes from appellant’s physical therapy treatments in October and November of 1996, appellant had no noticeable muscle spasms. Finally, the Commission found that Dr. Russell had reported that appellant’s MRI performed on April 15, 1996, was normal, only showing “some mild degenerative changes but no evidence of herniated disc, stenosis, or nerve root compression.” Additionally, the Commission noted that Dr. Russell opined that, “Ms. Williams has had ample time for medical improvement based upon the proposed diagnosis of the lumber strain. I see no other lesions that could contribute to her perceived pain. Certainly, nothing on the MRI scan would relate to a work type accident.”

Therefore, we hold that the Commission’s finding that any abnormalities experienced by appellant after March 30, 1996, were not causally related to the workplace injury suffered on October 14, 1995, is supported by substantial evidence.

Because we have determined that sufficient evidence is present in this case to support the Commission’s finding of no causal connection, we also hold that the disposition of this threshold question by the Commission also resolves the issues raised by appellant in this appeal.

Affirmed.

        Reporter’s note: See Williams v. Prostaff Temporaries, 64 Ark. App. 128, 979 S.W.2d 911 (1998).


author: Lavenski R. Smith, Justice.

text:
    BURLINGTON INDUSTRIES v. Alice PICKETT
    98-1398
    988 S.W.2d 3
    Supreme Court of Arkansas
    Opinion delivered March 4, 1999

      Friday, Eldredge & Clark, by: Guy Alton Wade, for appellant.

      Baim, Gunti, Mouser, De Simone & Robinson, by: Judith De Simone, for appellee.

      David Pake, for Second Injury Fund.
   Lavenski R. Smith, Justice.

This is an appeal from a decision of the Workers’ Compensation Commission. It involves a single issue. That issue is whether the Commission’s award of interest on incurred medical expenses paid by a claimant’s health insurance carriers is supported by substantial evidence. The case is before this Court on a grant of petition for review pursuant to Ark. Sup. Ct. R. 1-2(e)(i).

Appellants, Burlington Industries, and its workers’ compensation insurance carrier, Liberty Mutual Insurance Company, contend that the Commission erroneously included interest on medical payments in its award to appellee, Alice Pickett. The gravamen of their argument is that such an award is contrary to the company’s express duties under Workers’ Comp. Comm. R. 30 and the public policy of cost containment it created. We agree and reverse.

The relevant facts of this matter are undisputed. Pickett, a long time employee of Burlington Industries, sustained an injury to her back in May of 1990. Appellee subsequently underwent two back surgeries. Pickett sought workers’ compensation benefits for the injury but her employer, Burlington Industries, controverted the claim. An order issued by the Administrative Law Judge (ALJ) in February 1994 resolved the matter in Pickett’s favor, and the full Commission approved it in June 1994. In the meantime, Pickett’s medical expenses were paid for by private health insurance carriers rather than by her employer’s workers’ compensation carrier, Liberty Mutual. The ALJ’s order awarded temporary total disability benefits commencing May 25, 1990, and required her employer and its carrier, appellant’s herein, to pay past and future medical expenses attributable to the injury. It also included an award for attorney’s fees and interest pursuant to Ark. Code Ann. § 11-9-809 (Repl. 1996).

The matter returned to the attention of the Workers’ Compensation Commission in a March 1996 hearing. Pickett, at that time, provided appellants and the Commission with claims for approximately $100,000 in Pickett’s accrued medical expenses, paid by her or her husband’s private group health insurance carriers during the pendency of the compensation case. This sum also included paid deductibles, miscellaneous out of pocket expenses and travel expenses. Pickett provided the expenses in summary form based on the logs of the group health insurers with little or no detail as to the relation of the service to Pickett’s injury or information to ascertain the reasonableness of the charges. Appellants’ witness testified at the hearing, and it is apparent that their handling of the case in response to the 1994 Commission order left much to be desired. Appellants had failed to pay temporary total disability as ordered by the Commission and had only paid $150.00 in medical expenses. However, they had only been presented with the one bill for $150.00.

The ALJ’s decision, filed October 31, 1996, found that Pickett’s healing period ended September 22, 1994; that she was entitled to temporary total disability payments from the date of the injury to the end of her healing period; that she suffered permanent impairment and was permanently and totally disabled; that Burlington and Liberty Mutual were responsible for payment of permanent total disability benefits, reasonable related medical, hospital, and nursing expenses, and that they had failed to pay. The ALJ also assessed penalties and interest pursuant to Ark. Code Ann. §§ 11-9-802(b) and 11-9-809 respectively.

Appellants acceded to the ALJ’s order in all points except payment of interest on incurred medical expenses paid by Pickett’s or her husband’s private medical carriers. The single issue regarding interest was appealed to the full Commission on July 31, 1997. Appellants contended that they should not be required to pay interest on medical bills that were not submitted to them in any form until the March 1996 hearing. The Commission, after a de novo review, affirmed the ALJ’s decision to award interest on incurred medical expenses. The Arkansas Court of Appeals reviewed the case pursuant to appeal from the Workers’ Compensation Commission. The Court of Appeals deadlocked with three votes to affirm and three votes to reverse resulting in affirmance of the Commission’s order. We granted a petition for review.

Upon a petition for review, we consider a case as though it were originally filed in this court. Frette v. City of Springdale, 331 Ark. 103, 959 S.W.2d 32 (1998). On appeal in a workers’ compensation case from the Court of Appeals to this Court, the evidence must be viewed in the light most favorable to the Commission’s decision, and its decision must be upheld if supported by substantial evidence. Deffenbaugh Indus. v. Angus, 313 Ark. 100, 852 S.W.2d 804 (1993). We will not reverse the Commission’s decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusion arrived at by the Commission. ERC Contractor Yard & Sales v. Robertson, 335 Ark. 63, 977 S.W.2d 212 (1998).

Appellants contend here, as they did below, that it was improper for the Commission to require them to pay interest back to the initial ALJ determination of entitlement because Pickett did not provide her medical bills to them until the day of the second ALJ hearing on March 1, 1996, and then only provided totals. Appellants assert that the Commission’s ruling is contrary to the provisions of Workers’ Comp. Comm. R. 30. Rule 30, promulgated pursuant to Ark. Code Ann. § 11-9-517 (1987), established a medical-cost-containment program. The Rule contains six parts and is a comprehensive measure with extensive provisions regarding proper procedures for payment of medical costs. These include the following pertinent subsections:

Part I (A), entitled “Scope”:

This rule does all the following:
(a) Establishes procedures by which the employer shall furnish, or cause to be furnished, to an employee who receives a personal injury arising out of and in the course of employment, reasonable and necessary medical, surgical, and hospital services and medicines, or other attendance or treatment recognized by the laws of the state as legal, when needed. The employer shall also supply to the injured employee dental services, crutches, artificial limbs, eyes, teeth, eyeglasses, hearing apparatus, and other appliances necessary to cure, so far as reasonably and necessarily possible, and relieve from the effects of the injury.
(e) Establishes a system for the evaluation by a carrier of the appropriateness in terms of both the level of and the quality of health care and health services provided to injured employees, based upon medically accepted standards.
(f) Authorizes carriers to withhold payment from, or recover payment from, health facilities or health care providers which have made excessive charges or which have required unjustified and/or unnecessary treatment, hospitalization, or visits.
(m) Provides for uniformity of billing for provider services.

Part I (F), entitled “Definitions”:

(4) “Bill” means a request by a provider submitted to a carrier for payment for health care services provided in connection with a covered injury or illness.
(55) “properly submitted bill” means a request by a provider for payment of health care services submitted to a carrier on the appropriate forms which are completed pursuant to this rule.

Part I (I), entitled “Payment”:

(1) A carrier shall not make a payment for a service unless all required review activities pertaining to that service are completed.

The policy behind these provisions is evident, i.e., avoidance of unjustified medical costs. Rule 30 contemplates carriers having medical bills submitted to them according to certain guidelines which would enable them to verify the merit and accuracy of claims. It is obvious that the design of the Rule is to control medical costs for the benefit of all affected by workers’ compensation laws. In the instant case the full Commission rejected appellant’s argument that Rule 30’s procedures for submission of medical bills are prerequisite to a carrier’s payment obligation. However, there is nothing in Rule 30 which implies its requirements are discretionary. When reviewing the Commission’s interpretation and application of its rules, we give the Commission’s interpretation great weight. Mohawk Rubber Co. v. Buford, 259 Ark. 614, 535 S.W.2d 819 (1976). However, if an administrative agency’s interpretation of its own rule is irreconcilably contrary to the plain meaning of the regulation itself it may be rejected by the courts. Id. at 619. Harness v. Arkansas Public Serv. Comm’n, 60 Ark. App. 265, 962 S.W.2d 374 (1998).

The plain meaning of Rule 30 does not establish a duty on the part of a carrier to pay until claims meeting its requirements are properly submitted. It is undisputed that no medical bills were submitted to appellants prior to March 1, 1996, the date of the second hearing. While appellants apparently did not do all they could have done to expedite the case, we do not read the Commission’s rules as requiring carriers to seek out claimant’s medical providers. Pickett also carried some responsibility in making sure that expense claims were properly submitted for payment. We, therefore, hold that the Commission’s award of interest on incurred medical expenses was erroneous and not supported by substantial evidence where the facts indicate the expenses were not identified or submitted for payment in accordance with Rule 30. Accordingly, we reverse.

Reversed and remanded.


author: Per Curiam.

text:
    Rickey Lee DILLARD v. The Honorable Tom KEITH, Judge
    CR 98-1424
    986 S.W.2d 100
    Supreme Court of Arkansas
    Opinion delivered March 4, 1999

      Appellant, pro se.
    No response.
   Per Curiam.

Petitioner Rickey Lee Dillard tendered to this this court a petition for writ of mandamus, or in the alternative, for writ of prohibition contending that the Honorable Tom Keith, Circuit Judge, had failed to act within a reasonable time on a motion for speedy trial filed in the Circuit Court of Benton County. He subsequently filed the instant motion seeking to file the mandamus action without the certified record required by our clerk to file such a petition.

The motion is denied. Our Rule 6-1 (a) provides that in cases in which the jurisdiction of the court is in fact appellate although in form original, such as petitions for writs of prohibition, certiorari, or mandamus, the pleadings with certified exhibits from the trial court are treated as the record. Jackson v. Tucker, 325 Ark. 318, 927 S.W.2d 336 (1996). Without this certified record, there is no basis on which this court can assume jurisdiction of the matter. As a result, the motion for rule on clerk to file the mandamus petition without a record is dismissed.

Motion for rule on clerk dismissed.


text:
    HOME MUTUAL FIRE INSURANCE COMPANY v. Clinton HAMPTON
    99-138
    986 S.W.2d 93
    Supreme Court of Arkansas
    Opinion delivered March 4, 1999

      Smith Law Firm, by: Truman H. Smith, for appellant.

      Thomas D. Deen, for appellee.
   Per Curiam.

Appellee Clinton Hampton filed a motion to dismiss this appeal on the ground that Appellant failed to timely file the notice of appeal. The record reflects that judgment was entered below on September 3, 1998. On September 21, 1998, Appellant filed a motion for judgment notwithstanding the verdict or, alternatively, for new trial pursuant to Rules 50(b) and 59(b) of the Arkansas Rules of Civil Procedure. The trial court denied the motion on October 9, 1998. Appellant filed the notice of appeal on October 19, 1998. The issue is whether Appellant’s posttrial motion was timely filed and thus extended the time for filing the notice of appeal. We conclude that the posttrial motion was untimely.

Rule 4(a) of the Arkansas Rules of Appellate Procedure— Civil provides that a notice of appeal shall be filed within thirty days from the entry of judgment. Rule 4(b) provides for an extension of the thirty-day period in certain circumstances:

Upon timely filing in the trial court of a motion for judgment notwithstanding the verdict under Rule 50(b), of a motion to amend the court’s findings of fact or to make additional findings under Rule 52(b), or of a motion for a new trial under Rule 59(b), the time for filing notice of appeal shall be extended as provided in this rule.

Thus, to extend that time for fifing a notice of appeal, under Rule 4(b), one or more of the enumerated posttrial motions must be timely filed in the trial court. Rules 50(b) and 59(b) provide that motions for judgment notwithstanding the verdict and for new trial must be filed not later than ten days after judgment is entered. Because the time period prescribed is less than eleven days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. See ARCP Rule 6(a).

Here, the judgment was entered on September 3, 1998. According to the foregoing rules, the last day on which to file a motion for judgment notwithstanding the verdict or for new trial was September 18, 1998. Appellant’s motion was thus not timely because it was not filed until September 21, 1998. This court has held that where the appellant failed to file the motion for new trial within the ten-day period provided in Rule 59(b), it was ineffective and thus did not extend the thirty-day time period for filing a notice of appeal. Benedict v. National Bank of Commerce, 329 Ark. 590, 951 S.W.2d 562 (1997).

Appellant contends that it timely filed the posttrial motion by facsimile transmitted to the Chicot County Circuit Clerk’s office on September 16, 1998. In support of this contention, Appellant offers the affidavits of its attorney, Truman H. Smith, and Mr. Smith’s legal secretary, Norma Stocker. Neither affidavit contains any confirmation that the transmitted documents were actually received by the circuit clerk on September 16. Nor does the record contain a copy of the transmitted documents; apparently, it was the practice of the circuit clerk’s office to destroy facsimile documents upon receipt of the originals.

Rule 5 of the Arkansas Rules of Civil Procedure provides for the filing of “every pleading and every other paper” filed after the complaint. At the time this motion was transmitted, Rule 5(c)(2) provided:

The clerk may accept facsimile transmissions of any paper filed under this rule, provided that it is transmitted on to bond-type paper that can be preserved for a period of at least ten years or on to nonbond paper if an original is substituted for the facsimile copy within ten days of transmission. Any signature appearing on a facsimile copy shall be presumed authentic until proven otherwise. A facsimile copy shall be deemed received when it is transmitted and received on the clerk’s facsimile machine without regard to the hours of operation of the clerk’s office. The date and time printed by the clerk’s facsimile machine on the trans mitted copy shall be prima facie evidence of the date and time of the fling. [Emphasis added.]

In the present case, there is no indication in the record as to when, if at all, the circuit clerk’s office received the facsimile transmission from Mr. Smith’s office. Rule 5(c)(2) clearly requires evidence that the transmission was received; hence, evidence merely showing the date and time the papers were transmitted is insufficient under the rule. In Bhatti v. McCabe, 326 Ark. 176, 928 S.W.2d 340 (1996) (per curiam), this court held that the date and time on a motion for reconsideration shown by the chancery clerk’s facsimile machine could be used in determining whether the record was tendered in a timely manner. There, unlike here, the facsimile copy received by the chancery clerk had the date and time received printed upon it by the clerk’s facsimile machine, not merely the date and time when the transmission was sent. See also Tracor/MBA v. Artissue Flowers, 41 Ark. App. 186, 190, 850 S.W.2d 30, 33 (1993) (holding that “[transmitting legal documents by facsimile machine does not reheve the attorney of his duty to ensure that documents which must be timely filed have been timely received.”)

As there is no evidence that the facsimile transmission was timely received by the circuit clerk’s office, the posttrial motion was untimely. Consequently, the notice of appeal, filed more than thirty days after entry of judgment, was also untimely. A timely notice of appeal is essential to this court’s jurisdiction. See Craig v. Traylor, 323 Ark. 363, 915 S.W.2d 257 (1996); Binns v. Heck, 322 Ark. 277, 908 S.W.2d 328 (1995). Accordingly, we must grant Appellee’s motion to dismiss the case.

Motion granted.

       Effective January 28, 1999, Rule 5(c)(2) provides in pertinent part that “[t]he clerk shall stamp or otherwise mark a facsimile copy as filed on the date and time that it is received on the clerk’s facsimile machine during the regular hours of the clerk’s office or, if received outside those hours, at the time the office opens on the next business day.”


author: Tom Glaze, Justice.

text:
    Albert JARRETT v. STATE of Arkansas
    CR 98-839
    986 S.W.2d 101
    Supreme Court of Arkansas
    Opinion delivered March 11, 1999

      John H. Bradley, for appellant.

      Mark Pryor, Att’y Gen., by: David R. Raupp, Sr. Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant Albert Jarrett was a Michigan parolee when he returned to Arkansas and committed a robbery at gun point on March 14, 1997. On March 16, 1997, three police officers went to Jarrett’s girlfriend’s house to locate and arrest Jarrett, and after the officers were permitted inside the house to conduct a search, shots were fired resulting in one officer’s death and another being struck by a bullet. During the shooting, the two surviving officers made it to the outside of the house, but shortly afterwards, Jarrett also came out and surrendered himself to the authorities. Jarrett was charged with five felonies, but three were severed from this case in which the State charged him with capital murder and attempted capital murder. After a five-day jury trial, Jarrett was convicted of both crimes and sentenced to fife without parole and thirty years’ imprisonment, respectively.

On appeal, Jarrett raises one point for reversal. At trial, Jarrett’s defense was that, when the officers entered the house on March 16, he was unaware they were police officers. He claims that one of the three men shot at him, and he only returned the fire. In short, his contention at trial (and on appeal) was that he did not deliberately and intentionally shoot at police officers. He also argued that he only shot in self-defense. The State offered the testimony of witness Chandra Harris to counter Jarrett’s claims, and Jarrett objected. After the trial court overruled Jarrett’s objection, Harris testified that, about two weeks prior to the March 16 shooting, she had spoken with Jarrett. At that time, Harris informed Jarrett that her uncle was on the police force. Jarrett responded by saying, “If police officers try to take me back to jail, I won’t go down without a fight. I am not going back to jail.” Jarrett also said, “If [Harris’s] uncle gets in the way, he’ll die, too.” Harris related that, during their conversation, Jarrett showed her two guns, and one of them resembled the weapon that killed the police officer.

In support of his argument that the trial court erred in allowing Chandra Harris’s testimony, he cites A.R.E. Rule 404, which in relevant part provides that evidence of other crimes, wrongs, or acts is inadmissible to prove the character of a person in order to show that he acted in conformity therewith. He asserts that the State offered Harris’s testimony only to show he was a bad person, and the trial court abused its discretion in permitting such testimony. We disagree.

To prove capital murder in this case, the State was required to show that Jarrett, with premeditated and deliberated purpose, caused a law enforcement officer’s death when the officer was acting in the line of duty. See Ark. Code Ann. § 5-10-101(a)(3) (Repl. 1997). The State also had to prove attempted capital murder by showing Jarrett, with premeditated and deliberated purpose, attempted to cause an officer’s death. Id.; Ark. Code Ann. § 5-3-201 (Repl. 1997). Our court has recognized that proving intent is seldom capable of direct proof and must usually be inferred from the circumstances. See Robinson v. State, 317 Ark. 17, 875 S.W.2d 837 (1994).

Although A.R.E. Rule 404 generally precludes evidence of other crimes, or acts, to prove the character of the accused, there are exceptions, under subsection (b) of the rule, where the evidence goes to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. A.R.E. rule 404(b). In other terms, we have said that evidence offered under Rule 404(b) must be independently relevant, thus having a tendency to make the evidence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Johnson v. State, 333 Ark. 673, 972 S.W.2d 935(1998).

In the present case, the State submits that, under Rule 404(b), it was permitted to introduce Harris’s testimony to prove that Jarrett knew that the three men who entered his girlfriend’s house were law enforcement officers and that he was not mistaken regarding the officers’ identity when he shot them. The State further asserts that Harris’s testimony showed that Jarrett’s statements to her clearly indicated that he did not intend to be arrested and taken to jail by police officers without a gun fight. In view of this independent relevance of Harris’s testimony bearing on Jarrett’s announced intentions only two weeks before he shot two officers on March 16th, the trial court did not abuse its discretion in allowing such testimony into evidence.

Jarrett further claims that, even if Harris’s testimony is admissible under Rule 404(b), the testimony was more prejudicial than probative and should have been excluded under A.R.E. Rule 403. On this issue, again, the trial court’s decision will not be reversed absent a manifest abuse of discretion. Regalado v. State, 331 Ark. 326, 961 S.W.2d 739 (1998).

Jarrett rests this argument largely on the premise that the State had overwhelming evidence (albeit circumstantial) to convict him, and that the State did not need the testimony of Harris. While the State did have other evidence connecting Jarrett to having shot the two officers who were in the process of arresting him, Jarrett’s primary defense was that he never knew the men were police officers and therefore had no premeditated and deliberated purpose to shoot them. Harris’s testimony bearing on Jarrett’s state of mind before the shooting encounter was most probative on these factual issues, as well as Jarrett’s self-defense contention. The State was entided to prove its case on these issues as conclusively as it could. Id. at 333, 961 S.W.2d at 743.

The record has been reviewed pursuant to Ark. S. Ct. R. 4-3(h), and it has been determined that there are no errors with respect to rulings on objections or motions prejudicial to Jarrett not discussed above. Because we hold the trial court did not abuse its discretion in its Rule 404 and Rule 403 rulings, we affirm.


author: Donald L. Corbin, Justice.

text:
    Andre Lamont JACKSON v. STATE of Arkansas
    CR 98-386
    986 S.W.2d 405
    Supreme Court of Arkansas
    Opinion delivered March 11, 1999

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

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant Andre Lamont Jackson appeals the judgment of the Pulaski County Circuit Court convicting him of first-degree murder and terroristic act and sentencing him to a total of thirty years’ imprisonment. Appellant raises one point for reversal concerning the sufficiency of the evidence on the count of terroristic act. This case was certified to us from the Arkansas Court of Appeals, pursuant to Ark. Sup. Ct. R. l-2(d), as it presents an issue of first impression requiring our interpretation of Ark. Code Ann. § 5-13-310 (Repl. 1997). We find no merit to Appellant’s argument and affirm the judgment of conviction.

The record reflects that on June 5, 1996, Orion Harris and his cousin Ian Houston were sitting in Harris’s car at the intersection of 12th and University Streets in Little Rock. Harris was driving and Houston was in the front passenger’s seat. Next to them, in the left turning lane, was a black Toyota 4-Runner. Three of the four occupants in the Toyota, including Appellant, had been smoking “sherm,” a term used to describe cigarettes dipped in PCP. When the turning lane’s fight turned green, the Toyota proceeded to turn, but then stopped. A man, later identified as Appellant, stepped out of the Toyota, walked to the rear of Harris’s vehicle, and started shooting. Harris hit the gas and tried to get away from him. Before they were able to get through the intersection, however, Houston was shot in the chest, and he later died.

During the trial, the State presented undisputed evidence that Houston was unarmed and that neither he nor Harris made any moves inside the car that would indicate that they were armed. At the close of the evidence, Appellant argued that there was insufficient evidence to convict him of the crime of terroristic act because the State had failed to prove that he was not engaged in the commission of a lawful act at the time of the shooting. The trial court denied the motion, and this appeal followed.

Section 5-13-310, “Terroristic act,” provides in pertinent part:

(a) For the purposes of this section, a person commits a terroristic act when, while not in the commission of a lawful act:
(1) He shoots at or in any manner projects an object with the purpose to cause injury to persons or property at a conveyance which is being operated or which is occupied by passengers [.] [Emphasis added.]

Appellant asserts that there are two elements under this section that the State was required to prove against him: (1) that he shot at a car occupied by passengers and (2) that he was not in the commission of a lawful act at the time. The State contends that the phrase “while not in the commission of a lawful act” amounts to a defense to the offense, excluding those persons, such as police officers, who act with some legal justification. We agree with the State.

In Fendley v. State, 314 Ark. 435, 863 S.W.2d 284 (1993), this court reviewed a similar criminal provision in Ark. Code Ann. § 5-73-103 (Supp. 1991), which provided in pertinent part:

(a) Unless so authorized by and subject to such conditions as prescribed by the Governor, or his designee, or the Bureau of Alcohol, Tobacco and Firearms of the United States Treasury Department, or other bureau or office designated by the Treasury Department, no person shall possess or own any firearm who has been:
(1) Convicted of a felony [.]

Fendley argued that under that section, the State had to prove not only that he was a convicted felon and that he had possession of a firearm, but also that he was not authorized to possess such firearm. This court disagreed, holding:

The “authorization” clause in subsection (a) of 5-73-103 creates a defense as defined by 5-1-111 (c)(3). Were that not so, we would have to hold that the General Assembly intended to require the State to prove a negative, that is, to prove a defendant has not been authorized, by one of the several official officers or office mentioned, to possess a firearm. That he had been authorized officially to possess a firearm would be “peculiarly within the knowledge of the defendant.”

Id. at 437, 863 S.W.2d at 285. This court held further that under the circumstances, it was fair to require the defendant to introduce evidence that he had authorization to possess a firearm, as “a request for and the granting of authority to possess a firearm are matters which should clearly be within Fendley’s knowledge but not necessarily within the State’s knowledge.” Id. at 438, 863 S.W.2d at 285.

More recently, in Renfro v. State, 331 Ark. 253, 962 S.W.2d 745 (1998), the appellant argued that under Ark. Code Ann. § 8-6-205(a)(4) (Supp. 1995) the State was required to show that he did not have permissioxl to dump waste, in addition to having to show that he had dumped the waste. Section 8-6-205 (a) (4) provides in pertinent part that it is illegal to dump any solid wastes or trash “upon property owned by another person without the written permission of the owner or occupant of the property[.]” (Emphasis added.) This court disagreed with Renfro’s argument and held that the issue of whether he had received permission to dump the waste is a defense that he was required to prove. Relying on Fendley, 314 Ark. 435, 863 S.W.2d 284, this court explained:

In this respect, a defense is defined as any matter involving an excuse or justification peculiarly within the knowledge of the defendant on which he can fairly be required to introduce supporting evidence. Ark. Code Ann. § 5-1-111 (c)(3) (Repl. 1993). The “written permission” required in § 8-6-205(a)(4) creates a defense under § 5-l-111(c)(3), because such a matter was peculiarly within Renfro’s knowledge.

Id. at 259, 962 S.W.2d at 749 (citation omitted). We think the analysis employed in both Fendley and Renfro is dispositive of the issue here.

The phrase “while not in the commission of a lawful act” in section 5-13-310 (a) was clearly intended to provide a defense to those persons who may have been legally justified in committing the proscribed acts. The most obvious examples include a person acting in self-defense and a police officer returning the gunfire of a criminal suspect. The issue of whether a person shooting into a car with passengers was acting in a lawful manner is information that is peculiarly within the knowledge of the actor, as provided in Ark. Code Ann. § 5-1-111(c) (Repl. 1997). Because such information is peculiarly within the defendant’s knowledge, and not necessarily the State’s, he may be fairly required to produce such evidence in defense of the crime of terroristic act. To require the State to prove a negative, namely that Appellant was not otherwise engaged in a lawful act while he was shooting into a car occupied by passengers, would be absurd. This court will not interpret a statute, even a criminal one, so strictly as to reach an absurd conclusion that is contrary to legislative intent. Mings v. State, 316 Ark. 650, 873 S.W.2d 559 (1994); Cox v. State, 313 Ark. 184, 853 S.W.2d 266 (1993). We thus affirm, the trial court’s judgment.


author: Donald L. Corbin Justice.

text:
    Cathy McQUAY, Sam McQuay, Sue Beebe, Sharion Cantrell, Rachel Keech, Charman Rowe, Dennis Rowe, and Randy Thatch v. Randall GUNTHARP, M.D., and Northeast Arkansas Internal Medicine Clinic, d/b/a Pocahontas Family Clinic
    98-1428
    986 S.W.2d 850
    Supreme Court of Arkansas
    Opinion delivered March 11, 1999

      Hicks Law Firm, by: George R. Wise, Jr., for appellants.

      Womack, Landis, Phelps, McNeill & McDaniel, by: Lucinda McDaniel, for appellees.
   Donald L. Corbin Justice.

This is an outrage case involving allegations against a physician for sexually fondling six female patients. Appellants Cathy and Sam McQuay, Sue Beebe, Sharion Cantrell, Rachel Keech, Charman and Dennis Rowe, and Randy Thatch appeal the judgment of the Randolph County Circuit Court dismissing with prejudice their complaint against Appellees Dr. Randall Guntharp and Northeast Arkansas Internal Medicine Clinic. This is the second appeal of this matter; hence, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a)(7). See McQuay v. Guntharp, 331 Ark. 466, 963 S.W.2d 583 (1998) (McQuay I). For reversal, Appellants argue that the trial court erred in dismissing their complaint on the ground that their claims were based upon medical injuries and were barred by the two-year limitations period for medical malpractice, found in Ark. Code Ann. § 16-114-203 (Supp. 1997). We find merit to Appellants’ argument and reverse.

It is undisputed that on separate occasions from November 1993 to January 1995, the six female Appellants were examined by Appellee Dr. Guntharp in his office in Pocahontas. On February 28, 1996, Appellants filed a complaint for the tort of outrage, alleging that Dr. Guntharp had “improperly touched, examined, and otherwise fondled” their breasts during their physical examinations. Additionally, Appellants Sam McQuay and Dennis Rowe alleged a loss of consortium of their wives based upon Dr. Guntharp’s outrageous conduct. The trial court initially dismissed the suit with prejudice, finding that Appellants’ complaint stated a cause of action for battery, not outrage, and was therefore barred by the one-year statute of limitations for battery. On appeal, this court concluded that Appellants’ complaint contained sufficient facts to support a claim for outrage separate and apart from a claim for battery and was thus timely filed within the three-year limitations period found in Ark. Code Ann. § 16-56-105 (1987). This court held:

Appellants were patients of Dr. Guntharp. During their physical examinations, he informed them that he needed to check their heart rate or lungs. While using a stethoscope, Dr. Guntharp improperly touched, examined, and fondled Appellants’ breasts. Appellants stated that as a result of the trauma of the incident, they have suffered and continue to suffer from extreme mental anguish. Appellants specifically pleaded that the trauma of having a doctor, whom each Appellant had trusted, fondle their breasts in a sexually suggestive manner has caused all of them to be less trusting of physicians in general. Appellants claimed that as a result of these acts, they missed work and should be compensated for lost wages. Appellants claimed further to have sustained medical expenses in the past, and that they may sustain future medical expenses. Appellants Sam McQuay and Dennis Rowe asserted that they have suffered a loss of consortium of their wives as a result of Dr. Guntharp’s actions. . . .
The nature of the physician-patient relationship and the nature of the allegations presented by Appellants create the appropriateness of a suit for tort of outrage. A patient entrusts his or her body and sense of dignity to a physician. The patient subjects himself or herself to a loss of this dignity and a loss of privacy by even divulging his or her personal thoughts as to what ails him or her. Looking to the facts alleged in the complaint, it is apparent that these patients were most vulnerable by presenting their bodies to a physician whom they trusted to exercise professionalism in his treatment, only to be taken advantage of by a doctor seeking his own personal gratification.

McQuay I, 331 Ark. at 475-76, 963 S.W.2d at 587-88.

The issue now before us is whether a physician’s act of fondling a female patient’s breasts during a medical examination constitutes a medical injury, as defined in Ark. Code Ann. § 16 — 114— 201(3) (1987), and, therefore, whether the trial court erred in characterizing Appellants’ claims as medical injuries. To make such a determination, we must look to the complaint itself. McQuay I, 331 Ark. 466, 963 S.W.2d 583. For the reasons outlined below, we conclude that Appellants did not allege medical injuries.

Section 16-114-201(1) of our Medical Malpractice Act provides that an “[a]ction for medical injury” is any action for damages against a medical-care provider, “whether based in tort, contract, or otherwisef.]” Not all negligent acts that occur at a doctor’s office give rise to an action for medical malpractice. Howard v. Ozark Guidance Ctr., 326 Ark. 224, 930 S.W.2d 341 (1996). Rather, to sustain an action against a medical-care provider for medical malpractice, the plaintiff must have suffered a medical injury. Section 16-114-201(3) provides that “medical injury” or “injury” means:

[A]ny adverse consequences arising out of or sustained in the course of the professional services being rendered by a medical care provider, whether resulting from negligence, error, or omission in the performance of such services; or from rendition of such services without informed consent or in breach of warranty or in violation of contract; or from failure to diagnose; or from premature abandonment of a patient or of a course of treatment; or from failure to properly maintain equipment or appliances necessary to the rendition of such services; or otherwise arising out of or sustained in the course of such services. [Emphasis added.]

Although the particular issue presented in this case is one of first impression, this court has, on several occasions, discussed the meaning of “medical injury” under section 16-114— 201(3). In Bailey v. Rose Care Center, 307 Ark. 14, 817 S.W.2d 412 (1991), the evidence showed that John Dowdy, an eighty-one-year-old patient living at the Rose Care Center, left the nursing home unnoticed in his wheelchair and was subsequently struck by a pickup truck and killed. The trial court had instructed the jury under AMI 1501, which applies to cases involving medical injuries. This court held that such instruction was error:

In order to establish, under AMI 1501 and § 16-114-206, that the medical care provider failed to act in accordance with the degree of skill and learning possessed by other members of the profession in good standing, the plaintiff must have expert testimony. See Sexton v. St. Paul Fire & Marine Ins. Co., 275 Ark. 361, 631 S.W.2d 270 (1982). On the other hand, AMI 1505 requires only that the plaintiff show that the hospital, sanitarium, or nursing home did not use ordinary care to furnish a patient the care and attention reasonably required by his medical or physical condition. As noted under AMI 303, above, it is for the jury to decide how a reasonably careful person would act under these circumstances. Expert testimony is only required when the asserted negligence does not lie within the jury’s comprehension; when the applicable standard of care is not a matter of common knowledge; and when the jury must have the assistance of expert witnesses to decide the issue of negligence. Prater v. St. Paul Ins. Co., 293 Ark. 547, 739 S.W.2d 676 (1987).

307 Ark. at 18, 817 S.W.2d at 414. Concluding that expert testimony was not necessary, this court held:

In sum, Mr. Dowdy was under a doctor’s care while he was in the nursing home, but his death was not the result of a doctor’s treatment or order. Instead, the question is whether Mr. Dowdy was properly supervised by the one LPN and five nurse’s aides on duty that night. The answer to this question merely requires the jury to decide whether the nursing home used ordinary care in furnishing Mr. Dowdy the care and attention reasonably required by his mental and physical condition.

Id. at 19, 817 S.W.2d at 414 (emphasis added). In so holding, this court overruled its previous decision in Brown v. St. Paul Mercury Ins. Co., 292 Ark. 558, 732 S.W.2d 130 (1987).

In Brown, this court held that a patient at an alcohol-treatment center who walked out of an unlocked door onto the roof of the center and jumped or fell to his death had a cause of action for medical injury. In reversing its position in Brown, the Bailey court reasoned that “the circumstances in Brown did not involve a professional service but instead raised only the question of whether a patient was properly supervised by the health center’s staff.” 307 Ark. at 19, 817 S.W.2d at 414. The Bailey court also distinguished the earlier holding in Sexton v. St. Paul Fire & Marine Ins. Co., 275 Ark. 361, 631 S.W.2d 270 (1982), where an elderly patient died from injuries sustained after he fell out of his hospital bed. The question there was whether the hospital’s failure to place a safety-restraint vest on a patient fit within the definition of a medical injury. The facts demonstrated that the patient had fallen out of his bed before, and that a doctor had authorized a safety-restraint vest for him; however, use of the vest was left to the nurses’ discretion. This court determined that the use of the vest was a professional service, given that only a doctor could authorize it, and thus the action was one for medical injury.

In Wyatt v. St. Paul Fire & Marine Ins. Co., 315 Ark. 547, 868 S.W.2d 505 (1994), this court held that the act of a nurse revealing confidential information concerning the appellant’s test for AIDS was not a medical injury. Relying on the decision in Bailey, 307 Ark. 14, 817 S.W.2d 412, this court concluded that “it is clear that the actions of [the nurse] in revealing confidential information she acquired at work did not fall within our expressed view of what constitutes a medical injury.” Id. at 554, 868 S.W.2d at 509. This court also relied on the New York case of Tighe v. Ginsberg, 540 N.Y.S.2d 99 (N.Y. App. Div. 1989), for the idea that “[although in a general sense a doctor furnishes medical care to patients, clearly not every act of negligence toward a patient constitutes medical malpractice.” Wyatt, 315 Ark. at 554, 868 S.W.2d at 509 (quoting Tighe, 540 N.Y.S.2d at 100). This court also relied on the following language from another New York decision:

The distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve a matter of medical science or art requiring special skills not ordinarily possessed by lay persons or whether the conduct complained of can instead be assessed on the basis of [the] common everyday experience of the trier of facts. Where the matter requires the consideration of the professional skill and knowledge of the practitioner of the medical facility, the more specialized theory of medical malpractice applies.

Id. (emphasis added) (quoting Borrillo v. Beekman Downtown Hosp., 537 N.Y.S.2d 219, 220 (N.Y. App. Div. 1989) (quoting Miller v. Albany Med. Ctr. Hosp., 464 N.Y.S.2d 297, 298-99 (1983))). In Beekman, the New York court concluded that because the allegations contained in the complaint did not involve diagnosis, treatment, or the failure to follow a physician’s instructions, the action was one of ordinary negligence, not medical malpractice.

In Howard, 326 Ark. 224, 930 S.W.2d 341, the plaintiff, a patient at the Ozark Guidance Center, sued the facility for negligently allowing an affair to continue between its receptionist and the plaintiffs husband. The issue of whether the plaintiff had suffered a medical injury arose within the context of her assertion that the trial court erred in not applying the continuous-treatment doctrine to extend the applicable statute of limitations. After surveying the foregoing Arkansas decisions, this court concluded that the plaintiff had not suffered a medical injury, reasoning that “it is clear from our decisions that in order to be a ‘medical injury’ the injury must be the result of a ‘professional service,’ ‘a doctor’s treatment or order,’ or ‘a matter of medical science.’ ” Id. at 228, 930 S.W.2d at 343 (citing Wyatt, 315 Ark. 547, 868 S.W.2d 505; Bailey, 307 Ark. 14, 817 S.W.2d 412).

Here, Appellants alleged that they were patients of Dr. Guntharp’s and that they were physically examined by him. They alleged that during these physical examinations, Dr. Guntharp informed them that he needed to check their heart rate or lungs. They alleged further that it was “[ujnder the pretext of checking the patient’s heart rate or lungs with a stethoscope” that Dr. Guntharp improperly touched, examined, and otherwise fondled their breasts. When we review a trial court’s decision on a motion to dismiss, we treat the facts alleged in the complaint as true, viewing them in a light most favorable to the appellant. Efurd v. Hackler, 335 Ark. 267, 983 S.W.2d 386 (1998). Under the facts and circumstances alleged here, Dr. Guntharp’s actions of improperly touching or fondling Appellants’ breasts do not constitute the rendering of professional services, despite the fact that the touching occurred during a physical examination at the physician’s office.

Accordingly, we conclude that the complaint properly states a cause of action for outrage, as the act of a physician fondling a woman’s breasts during an examination, if proven, does not fall within the parameters of “professional services being rendered by a medical care provider” under section 16-114-201(3). As such, the complaint was timely filed within the three-year limitations period in section 16-56-105. We thus reverse the judgment of the trial court and remand this case for further proceedings consistent with this opinion.

Reversed and remanded.

Glaze, J., not participating.