text:
    Bob HARRIS v. STATE of Arkansas
    CR 94-1273
    899 S.W.2d 459
    Supreme Court of Arkansas
    Opinion delivered June 5, 1995

      Stockland & Trantham, P.M., by: Charles S. Trantham, and Batchelor & Batchelor, by: Fines F. Batchelor, Jr., for appellant.

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

On April 22, 1994, a jury found Bob Harris, thirty-six years old, guilty of having engaged in sexual intercourse or deviate sexual activity with a girl who was under fourteen years of age. He received a cumulative sentence of more than thirty years imprisonment. Harris appeals, setting out seven points for reversal. None has merit.

We first consider Harris’s argument that the trial court abused its discretion in denying his motions for continuance and new trial. He points out that the state’s original information filed on December 3, 1993, accused him of committing rape between the 15th of April and the 15th of August, 1993. On January 10, 1994, Harris filed a motion for specific facts, information and materials. In early and mid-March of 1994, Harris filed motions for discovery, sanctions, and a hearing and continuance, and on March 25, 1994, the state responded by furnishing Harris with answers and materials that Harris had requested. The state further informed Harris’s counsel of the prosecutor’s open file policy, inviting him to inspect the state’s entire file. Harris continued to request more time, information and sanctions and added a motion in limine, seeking to prevent Dr. James Green from testifying that the alleged victim had said that Harris had sexual contact with her.

On April 18, 1994, three days prior to trial, the trial court considered Harris’s continuing motions, information furnished by the state and argument of counsel, and it denied Harris further relief. At the same hearing on April 18, the trial court, prosecutor and defense counsel discussed that Harris had requested the specific dates on which the sexual contacts were alleged to have occurred, and the prosecutor responded that the acts occurred on the nights and weekends the victim and her siblings had stayed with Harris in 1993. The prosecutor indicated that the period probably began in February 1993. The court asked the state if it would amend its information to which the prosecutor said, “I may have to, I think it goes back further.” One day before trial, the prosecutor amended the information, reflecting that the dates of the offense occurred between February 19 through September 15, 1993, rather than between the April 15 through August 15 dates set out in the original information. Harris objected to the state’s amended information and again requested a continuance, but the trial court overruled Harris’s objection, stating that the defense previously had been notified that the information would need to be amended to reflect new dates. On appeal, Harris concedes the amended information did not change the nature or degree of the crime with which he was charged. Nevertheless, he argues that, if he had known of the new dates, he could have furnished witnesses to rebut the victim’s testimony that they had sex on February 19, 1993.

By statute and case law, it is established that generally the time a crime is alleged to have occurred is not of critical significance unless the date is material to the offense. Fry v. State, 309 Ark. 316, 829 S.W.2d 415 (1992). That is particularly true with sexual crimes against children and infants. Id. In Fry, the state charged Fry with having raped ten and nine-year-old victims “on or about June or July, 1989.” However, one of the victims testified she was living with her mother and stepfather, Fry, and attending school which was “about the end of May.” The victim further said that “along those days, Fry would put his hand inside my underpants, stick his finger inside of me, between my legs and move it up and down.” She said that it happened more than once, but not after school was out.

Fry contended he was entitled to a directed verdict since the state alleged the offenses occurred in June or July, but the victim testified the incidents did not occur after school was out at the end of May. In rejecting Fry’s argument that the trial court erred in denying his motion, this court related that the victim’s testimony that school was out “around the end of May” is not a categorical certainty and school may have extended over into June. The court added that, giving that proof a margin of error produces no prejudice to Fry, whose defense was that the alleged incidents with the victims never occurred and were entirely fabricated.

In the present case, the victim testified on direct that Harris first sexually abused her sometime in February and on cross-examination, she said, “It was approximately February 19.” Like the defense in Fry, Harris’s defense here is that the offenses never happened. And concerning the February date in issue, the victim merely related that one of the incidents occurred “around the nineteenth.”

We also find the case of Huffman v. State, 288 Ark. 321, 704 S.W.2d 627 (1986), helpful. There, Huffman was charged with deviate sexual activity with a girl under the age of eleven. Huffman argued that the trial court should have granted a continuance when, just before the trial began, the state amended its information to allege that the crime occurred between November 1, 1983 and January 15, 1984. Citing Ark. Stat. Ann. § 43-1015 (Repl. 1977) [now Ark. Code Ann. § 16-85-405(d)(1987)], this court rejected Huffman’s argument, stating that, in a case of this kind, the particular time is not an ingredient of the offense, so the amendment was permissible. The court pointed out that the prosecutrix testified that there was intercourse both before and after Christmas (1983).

Here, as noted above, the victim testified on direct that Harris sexually abused her in February 1993, and it occurred on the first occasion when she stayed overnight at Harris’s house. She could offer no exact date, but recalled the first incident occurred on the second day of her having first stayed at Harris’s. She thought she had spent three nights at the Harris house, and Harris had sex with her on the second and third nights. Although she testified Harris first had sex with her in February 1993, she then related other sexual encounters, ending in September 1993, when she spent weekends at the Harris abode. Other incriminating evidence was introduced including a card and numerous letters from Harris to the victim. The card began, “Know where I’d Like to Be Right Now? Between you and this card.” The letters were replete with terms of affection and love, in one was included a post script, “P.S. Hope you don’t wear your birthday suit to school on your birthday. That’s my suit! (he he) I Love You!”

Prior to trial, the state revealed all the evidence it had to Harris’s counsel concerning what the young prosecutrix had said as to when she claimed Harris first had sex with her. That was to have occurred in February 1993. While Harris, for defense purposes, would like to limit the girl’s claim to having first had sex with him on the February 19 date set out in the amended information, he knew quite well that the girl’s allegations covered her first weekend stay over at Harris’s house. In this case, the particular time is not an ingredient of the offense with which Harris was charged, nor can we conclude the circumstances here show Harris was prejudiced by the amended information.

In another argument, Harris refers to the Fifth, Sixth and Fourteenth Amendments and asserts the trial court should have quashed' the entire jury panel because the panel did not reflect the composition of the community at large. He says that of the 385 names drawn for the jury panel, only 112, or 29%, were ever assigned to jury duty and die remainder were never served, excused or they never appeared. He said that, for unexplained reasons, fifty-eight persons were listed on the jury panel for his case, but only forty-four appeared. Harris moved to quash the jury panel, but the trial court denied the motion, stating that the forty-four jurors present were plenty.

Harris cites Lockhart v. McCree, 476 U.S. 162 (1986), for the proposition that, when large sectors of the public are excluded from the jury panel, that alone contravenes the fair-cross-section requirement and dictates reversal. First, we need mention that Lockhart dealt with death-qualified juries, and the Supreme Court there merely held that such juries do not violate the fair-cross-section requirement of the Sixth Amendment. Lock-hart has little application to the situation now before us. The Lockhart court did, however, announce that the essence of a “fair-cross-section” claim is the systematic exclusion of a “distinctive group” in the community, but such a group is not defined in terms of shared attitudes that would prevent or substantially impair members of the group from performing one of their duties as jurors. Id. at 174. Here, at the time the jury was selected, Harris’s objection to the jury panel focused only on the limited number of jurors assigned to the panels, not to the exclusion of any distinctive group. He waited until after trial in his motion for new trial to raise his contention that the limited number of assigned jurors somehow deprived him of peers of his own age group “who would be expected to better understand his position in this case.” Harris’s objection was untimely. See Smith v. State, 318 Ark. 142, 883 S.W.2d 837 (1994). However, timeliness aside, he offers no criteria used to determine the boundary limits when defining the “age group” excluded or that such an age group was systematically excluded. Nor does Harris cite legal authority or present convincing argument that such an age group falls within a “distinctive group” in the community as is required under the fair-cross-section component of the Sixth Amendment.

In reviewing the record, we recognize an apparent problem existed in the jury selection process since only a limited number of jurors were assigned and appeared for jury duty. The trial courts are obliged to correct any such problems when the selection process is properly challenged and timely brought to their attention. Nonetheless, in the situation at hand, we hold no deliberate or systematic exclusion of any distinctive class was timely shown, nor did Harris show he was prejudiced by the selection process. See Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984); see also Ruiz v. State, 299 Ark. 144, 772 S.W.2d 297 (1989), (where 403 venirepersons were subject to call as potential jurors, but 198 were excused by the trial judge for various reasons and some could not be contacted or were thought to be dead or unavailable, leaving only 90 to show up for the jury selection, the trial judge was held not to have abused his discretion in granting excuses or in depriving the defendants of a jury representing a fair-cross-section of the community).

Harris also claims error because, on voir dire, one of the jurors failed to reveal he was a candidate for sheriff. He urges that the fact the juror was seeking the office of sheriff created or evidenced a bias towards Harris. We cannot agree.

A potential juror may be challeged for cause if he or she is actually biased. This court has held that a venireperson is actually biased if he or she cannot try the case impartially and without prejudice to the substantial rights of the party challenging. Henry v. State, 309 Ark. 1, 828 S.W.2d 346 (1992). This determination lies within the sound discretion of the trial court. Id.

Here, on voir dire, the questioned juror was never asked if he was a candidate, but he did disclose he was the chaplain for the sheriff’s department. When asked if there was anything known to him that would present any problem in rendering a fair and impartial jury verdict, the juror said no. On this point, Harris presents no legal citation or authority that a juror may be presumed biased merely because he chose to run for sheriff or any other office. Authority does exist which holds that bias will not be presumed merely because a juror works in law enforcement. Tinsley v. Borg, 895 F.2d 520 (9th Cir. 1990). In sum, Harris fails to show that the trial court abused its discretion in refusing to exclude the juror challenged by Harris.

Harris’s next argument challenges the trial court’s admission of a medical report into evidence. That report contained the victim’s statements to Dr. James Greene that she had had sexual intercourse with Harris. Below, Harris contended that the report contained inadmissible hearsay that deprived him of his rights under the Fifth, Sixth and Fourteenth Amendments. On appeal, however, he asserts the state failed to lay a proper foundation for admission of the medical report as a Business Record exception under Rule 803(6) of the Uniform Rules of Evidence. It is well settled that arguments not raised at trial will not be addressed for the first time on appeal and that parties cannot change the grounds for an objection on appeal, but are bound on appeal by the scope and nature of their objections as presented at trial. Stricklin v. State, 318 Ark. 36, 883 S.W.2d 465 (1994).

In his fifth argument, Harris complains that he was not allowed to testify that the victim’s father, Frank Brock, physically abused her and her siblings and that Harris’s actions were consistent with helping the family escape from that abuse. The record, however, reflects considerable testimony was elicited concerning the father and how he physically abused his children. Harris testified how Brock had jerked and thrown his daughter around, one time causing her to sustain a cut arm. Brock’s son also related that his father had whipped him with a belt and left stripes on his back. A state police officer also testified that Brock had beaten and roughed up his children. This and other evidence was introduced at trial, and we fail to see how, in any significant way, Harris failed to get what he wanted on this issue before the jury. Harris suffered no prejudice.

Harris’s final argument involves his claims that the statutory bifurcation process is unconstitutional because (1) no appellate review of his sentence is provided, (2) the process contains a “sunset provision,” (3) the process denies him the right to confront and cross examine witnesses, (4) the process does not allow for voir dire regarding possible sentences and (5) the bifurcation law violates the ex post facto clause. Below, Harris made a general objection to a bifurcated trial by stating the following:

And, if the Court please, it is further respectfully submitted that such statute is unconstitutional and in violation of the Arkansas and Federal Constitutions, particularly, Amendments Five, Six, and Fourteen to the United States Constitution, and similar provisions of the Arkansas Constitution, in that they do not permit the defendant’s jury trial as contemplated by the constitutional provisions.

As is readily discerned from his objection, Harris failed to preserve at trial the specific constitutional questions he now seeks to advance in this appeal. This court does not consider arguments which are not supported by compelling argument or citations of law. Keifer v. State, 297 Ark. 464, 762 S.W.2d 800 (1989). We do point out, however, that this court recently fully addressed and rejected the ex post facto argument in Williams v. State, 318 Ark. 846, 887 S.W.2d 530 (1994).

For the reasons above, we affirm.

       Harris claims he had no time to procure a doctor to explain Harris had sustained an injury that rendered him unable to have performed the sexual acts on the February date alleged. In addition, he contended that, with more time, he could have checked records to show the victim, her mother and siblings and friends were wrong with respect to the February date.

      Harris never questioned whether the statutory procedures for empaneling petit jurors were followed.

      Harris sets out a seventh point, but it concerns the trial court’s denial of his motion for new trial and merely covers issues already addressed.


source: Caselaw Access Project

author: Tom Glaze, Justice.

license: Public Domain

text:
    Casey MEADOWS v. STATE of Arkansas
    CR 94-1393
    899 S.W.2d 72
    Supreme Court of Arkansas
    Opinion delivered June 5, 1995

      Robert E. Irwin, for appellant.

      Winston Bryant, Att’y Gen., by: Vada Berger, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant Casey Meadows entered a plea of nolo contendere to the charge of Battery First Degree on February 22, 1993. After a sentence hearing on March 15, 1993, the judge orally pronounced a sentence of twenty years imprisonment, but suspended the execution of the sentence conditioned upon Meadows (1) living a law-abiding life, (2) paying $200 per month towards the victim’s medical bills, (3) paying a $15 per month supervision fee and (4) paying court costs in the sum of $78.25. The conviction judgment reflecting Meadows’ sentence was not filed until August 13, 1993, or five months later, and the judgment, when entered, contained a blank where the restitution amount was to appear. The judgment also read, “Restitution and court costs shall be paid as follows:”, but left blank lines obviously meant to contain directives of how the restitution was to be paid. Meadows acknowledged receipt of this March 15, 1993 (filed August 13, 1993) judgment by signing the judgment following the judge’s signature.

Sometime after August 13,1993, a question arose concerning Meadows’ payment of restitution, and on December 13, 1993, a hearing was held on that issue. No testimony was taken but the victim’s medical bills, totaling $196,014.47, were introduced without objection. During this hearing, the trial judge remarked that, to correct matters, an amended judgment was probably necessary so as to reflect a suspension of imposition of sentence conditioned upon Meadows’ performing the original conditions the judge had ordered on March 15, 1993. The judge further found that, when he previously pronounced Meadows was to pay $200 per month restitution payments, the total amount of the victim’s medical bills was unknown, and that was probably the reason the restitution amount and its manner of payment was omitted in the earlier March 15th judgment. Following the December 13, 1993 hearing, the trial court signed a “Restitution Order,” supplying the information missing in the earlier March 15th order by setting out the victim’s medical bills in the total amount of $196,014.47. This order also set out the manner of payment by providing what amounts to a partial restitution at the rate of $200 per month payable over Meadows’ twenty-year probation period. The judge’s new “Restitution Order” did not include the correction, as the judge suggested at the December 13 hearing, that his order should suspend the imposition of Meadows’ sentence.

In this appeal, Meadows first argues that, assuming the trial court’s original judgment was valid, the court had no power to amend Meadow’s sentence in any fashion because 90 days had expired after entry of judgment. Meadows cites no legal authority in support of his contention, and he offers no real argument or rationale to aid us in understanding his assigned error. Therefore, we do not address this point further.

In another but related argument, however, Meadows urges that the sentence set out in the original judgment is illegal because the trial court had no authority to suspend the execution of his sentence. The state concedes this point, and we agree.

This court has held that sentencing in Arkansas is entirely a matter of statute, State v. Freeman, 312 Ark. 34, 846 S.W.2d 660 (1993), and the sentencing procedures pertinent here are found in Title 5. Criminal Offenses, Ark. Code Ann. §§ 5-14-101-618 (Repl. 1993). This court has consistently held that sentencing shall not be other than in accordance with the statute in effect at the time of the commission of the crime. State v. Townsend, 314 Ark. 427, 863 S.W.2d 288 (1993).

Here, Meadows committed his offense on May 17, 1992, and at that time, Title 5, Chapter 4 of the Code did not authorize trial courts to suspend execution of sentences. Thus, because Meadows’ sentence was unauthorized and is illegal, we must reverse and remand this case for resentencing. It is also noteworthy to mention that, effective March 16, 1993, (after Meadows committed his offense), the General Assembly, by specific terms, prohibited trial courts from suspending execution of sentences by enacting Sections 5 of Acts 532 and 550 of 1993 [compiled now as Ark. Code Ann. § 5-4-104(e)(l)(B)(ii) (1993)]. Such enactment is consistent with holding the General Assembly never provided or intended suspended execution of sentences should be sanctioned in these circumstances. In conclusion, we mention, too, the considerable delay by Meadows to question the legality of his sentence since he raises no issue concerning it until the December 13, 1993 hearing. This court has adhered to the general rule that, if the original sentence is illegal, even though partially executed, the sentencing court may correct it. See Hodge v. State, 320 Ark. 31, 894 S.W.2d 927 (1995); Lambert v. State, 286 Ark. 408, 692 S.W.2d 238 (1985). In view of the rule and the circumstances in this case, we are obliged to reach Meadows’ challenge of his sentence.

For the foregoing reasons, we reverse and remand for resentencing.

      Although Meadows also argues the trial court’s restitution order was invalid because the court failed to conduct a hearing following the requirements in Ark. Code Ann. § 5-4-205 (Repl. 1993), we need not reach this issue since the trial court, on remand, will have every opportunity to comply with this restitution provision, if required to do so.

      Compare, however, Rule 37 post-conviction relief procedures; there a petitioner in custody, who claims a sentence is illegal or illegally imposed, has certain time limitations within which he or she must file for relief. See A.R.Cr.P. Rules 37.2(b) and 37.2(c).


author: Andree Layton Roaf, Justice.

text:
    James Randall DURHAM v. STATE of Arkansas
    CR 94-1051
    899 S.W.2d 470
    Supreme Court of Arkansas
    Opinion delivered June 5, 1995

      Christopher O ’Hara Carter, Baxter County Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   Andree Layton Roaf, Justice.

This is an appeal from a conviction for kidnapping, attempted murder and aggravated robbery. Three points are raised on appeal; none have merit, and we affirm.

On October 29, 1993, the Mountain Home police department received a call concerning an abduction of Sandi Schultz, the proprietor of a store called, “New to You.” The victim told police that shortly after she opened her store, a man entered, approached her from behind, and sprayed her face with mace. The man said to her, “Shutup, Sandi, I’ve got a gun. I can kill you.” The victim struggled with her attacker but was unable to get away as he remained behind her with his arm around her neck and was significantly larger and stronger. She finally went limp, realizing the struggle was futile. She then tried to talk to him in an attempt to persuade him not to harm her.

He did not respond verbally, but instead began to choke her as she was lying on the floor. She said that she must have lost consciousness as the next thing she remembered she was waking up in a different room in the store. Her hands were bound behind her back with duct tape. She could hear her attacker in the next room', apparently trying to open the register because it was making a beeping sound, which it would do when it was not being opened properly.

Her assailant then returned and got the key to the front door from her pocket. She heard him lock the front door, and saw him go to the fuse boxes and turn off all the lights. He next found a cardboard box and placed her in it with her legs curled up against her chest. He also gagged her.

The victim reported that he taped the box shut, picked it up and carried it outside the store where she was able to kick through the box and break out. She spit out her gag and ran to a nearby store and screamed, “Lock the door, lock the door. He’s got a gun and he tried to kill me.” The assailant ran away after her escape.

The police were contacted and the victim told them she recognized her assailant as someone who had come into her store within the last two weeks. Leads were developed and a photo lineup was put together with pictures of James Durham, the appellant, and five other men. The victim looked at the photo spread and identified appellant as her attacker.

Appellant was arrested and gave the police a statement. He told police he had been to the victim’s store in the past week with his wife, inquiring about a child’s safety seat. He admitted going into the victim’s store on the 29th, spraying the victim’s face with mace, struggling with her and binding her with duct tape. He said it was his intention to steal baby clothes and strollers for his pregnant wife. Appellant stated that when he put the victim into the box, he intended to take her out along the road and leave her there. He also stated that when he put her in the box, she was mumbling and “carrying on.”

Appellant was charged with kidnapping, aggravated robbery and attempted first degree murder. A jury trial was held and appellant testified in his own behalf. He indicated to the jury that he did not remember providing the taped confession and that he was not guilty of the charges. On cross-examination, he stated that he was not saying that he did not commit the crimes, but that he did not remember committing them and had only a vague memory of the interview with the police.

Appellant was found guilty on all three charges and was sentenced to fifty years each for the kidnapping and aggravated robbery and ten years for the attempted murder. The trial court ordered the kidnapping and robbery charges to run consecutively and the attempted murder to run concurrently with the other two. Appellant appeals from that judgment.

SUFFICIENCY OF THE EVIDENCE

Appellant first argues that the trial court erred in denying his motion for a directed verdict on all three charges. As to the kidnapping, he argues that, under the facts of the case, the state had only a charge of an attempt to dispose of a dead body and not kidnapping because the victim testified that at one point during the episode she “played dead;” on the aggravated robbery charge appellant argues there was no proof anything was taken; and on the attempted murder charge he argues there was no evidence to show there was attempted murder.

At trial, appellant made a directed verdict motion at the close of the state’s case specifying the same grounds he now argues on appeal. He then made a second motion for directed verdict at the conclusion of his case, incorporating the arguments made in connection with his initial motion. After rebuttal, at the close of all the evidence, appellant simply stated “I would renew all previous motions I have made.”

A motion for a directed verdict is a challenge to the sufficiency of the evidence. To preserve that objection, the motion must be made at the close of the state’s evidence and at the close of the case. A.R.Cr.P. 36.21(b). The motion must also be sufficiently specific to apprise the trial court of the ground asserted for the motion. Jones v. State, 318 Ark. 703, 889 S.W.2d 706 (1994); Daffron v. State, 318 Ark. 182, 885 S.W.2d 3 (1994); Walker v. State, 318 Ark. 107, 883 S.W.2d 831 (1994).

The state argues we should not reach the merits of the directed verdict motion because appellant’s renewal of the motion at the close of all the evidence was general in nature only. The state acknowledges that appellant made a proper motion at the close of the state’s case but argues under our cases and rules, specificity is required at the close of all the evidence as well as at the close of the State’s case. We do not agree that the defendant should be required to restate his grounds for directed verdict in cases such as the one before us, where the defendant has made a specific motion at the close of the State’s case, and incorporates the same arguments by the later renewal.

In Walker v. State, supra, we announced a “bright line” rule requiring specificity in directed verdict motions, and that general motions would no longer suffice. See also, Monk v. State, 320 Ark. 189, 895 S.W.2d 904 (1995); Davis v. State, 319 Ark. 739, 894 S.W.2d 597 (1995); Jones v. State, supra,; Davis v, State, 319 Ark. 460, 892 S.W.2d 472 (1995); Daffron v. State, supra; Goins v. State, 318 Ark. 688, 886 S.W.2d 633 (1995); Houston v. State, 319 Ark. 498, 892S.W.2d 274 (1995).

It is also true that we have held that a defendant waives the first motion made when he presents a case. Rudd v. State, 308 Ark 401, 825 S.W.2d 565 (1992). It is further true that we have taken pains in this area to assure that the trial court is apprised of the same arguments that are raised to us on appeal. Stricklin v. State, 318 Ark. 36, 883 S.W.2d 465 (1994). But neither series of cases militates against the renewal of the same earlier, specific directed verdict motion at the end of all the proof. Durham effectively raised the same grounds by his renewal at the end of all the evidence, as he had earlier presented to the trial court at the close of the State’s case. He now argues the same grounds on appeal. His initial motion was specific as required by Walker, supra, was renewed at the close of all the evidence and we will thus reach the merits of his arguments.

MERITS

Appellant first argues that the offense of kidnapping is inconsistent with the facts of the case, including the victim’s testimony that she “played dead,” and the additional charge of criminal attempt to commit first degree murder; in other words, he could not have intended to both kidnap and kill her. He suggests that the State has only established an attempt to dispose of a dead body under the facts, and that one cannot kidnap a dead body. In support of this novel argument appellant states that he did not provide a motive to the victim during the incident or to the police officers during his subsequent interrogation. He further states the facts at trial show that the victim was “grabbed, bound, gagged, placed in a box, choked until she passed out and then played dead.”

As to the charge of aggravated robbery, appellant argues that he took nothing from the store and made no statement or demand of the victim to indicate he contemplated a theft. He states that he did not respond when the victim offered to show him where the money was, but concedes that, at trial, she testified she heard him trying to open the cash register.

For the final charge of criminal attempt to commit first degree murder, appellant argues that the facts as alleged by the State and the evidence presented would only give rise to a charge of battery. In support of this argument he suggests that, other than the can of mace, he had no weapon and none was found at the scene, the victim was not severely injured and he denied any intent to kill the victim in his confession.

The following exchanges from appellant’s confession, which was admitted into evidence, provide substantial evidence in support of the kidnapping and robbery charges:

Officer: . . . What was on your mind to do?
Durham: Go down there and spray mace in her face and take all the baby clothes that I could and strollers. Anything for the new baby, that Jennifer’s carrying of mine.
Durham: That was my original intent was to get some clothes cause we didn’t have no baby clothes. That’s the truth. I wasn’t there for money cause I had money in my wallet. I wasn’t there to rape her cause I had a wife at home.
Officer: Why would you have bound her and put her in a box and tried to take her away from there? What were you gonna do? What was in your mind, Randall?
Durham: I was gonna take her off and drop her off somewhere. Just leave her there.
Officer: Well, hoping that she was lifeless, fairly appeared to be lifeless at that point, right?
Durham: She was talking and mumbling. I don’t know what she was saying.
Officer: Were you afraid that you had killed her?
Durham: Pardon?
Officer: Were you afraid that you had killed her?
Durham: No.
Officer: Were you afraid that she was hurt bad enough that she was gonna die?
Durham: No.

His confession flatly contradicts the allegation that he believed the victim to be dead and it was therefore impossible for him to kidnap her. He stated that she was talking and mumbling when placed in the box and he denied being afraid that he had killed her.

He clearly confessed to the intent to commit theft which, along with the victim’s testimony about sounds she heard coming from the cash register provided substantial evidence to support the aggravated robbery verdict. The aggravated robbery offense, Ark. Code Ann. § 5-12-103 includes the definition of robbery, A.C.A. § 5-12-102:

(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. [Emphasis added.]

An actual theft or taking of property is not an element of the offense.

Finally, appellant’s argument that the trial court erred in denying a directed verdict on the attempted first degree murder charge is also without merit. His argument is that no weapon was seen and that there was no attack or injuries to the victim that would support a charge of attempted murder. However, there is no requirement that attempted murder be pursued with a deadly weapon. What is required is “conduct that constitutes a substantial step in a cause of conduct intended to culminate in the commission of an offense.” Ark. Code. Ann. § 5-3-201.

Here, the victim testified that appellant choked her until she passed out; this testimony surely is substantial evidence to support the finding of attempted murder. The intent to commit the offense may be inferred from the defendant’s conduct and the surrounding circumstances. Easter v. State, 306 Ark. 615, 816 S.W.2d 602 (1991).

The appellant’s arguments on the' issue of the trial court’s failure to direct a verdict on all three charges are meritless.

CONSECUTIVE RUNNING OF SENTENCES

Appellant was sentenced to two fifty-year terms which the court ordered to run consecutively. Appellant argues that contrary to the law, the trial court relied on the jury’s recommendation and not on its own discretion to make this decision. Although the state now argues this matter was not preserved for appeal because appellant did not object to the consecutive sentences at the time they were pronounced, the state allowed appellant’s post-trial motion on the matter to be heard without objection.

Arkansas Code Annotated § 5-4-403 (Repl. 1993) provides that the choice between concurrent and consecutive sentences rests with the discretion of the trial judge. Edwards v. State, 300 Ark. 4, 775 S.W.2d 900 (1989). We have remanded for resentencing when it was apparent that the trial court did not exercise its discretion. Brown v. State, 316 Ark. 724, 875 S.W.2d 828 (1994); Wing v. State, 286 Ark. 494, 696 S.W.2d 311 (1985).

In Wing, supra, we remanded based on the trial court’s comments on sentencing. Those comments indicated the trial court was relying completely on the jury’s determination. The trial court said:

If it had been left to me in the first instance, I feel I would have had a lot more leeway to act. I think it is somewhat presumptuous of me to go against a jury verdict. I have never done that except in a rare case where it’s clearly out of line. I’m going to set and fix punishment, 20 years on the Burglary, 10 years on the Theft of Property, and direct that they run consecutive. I think if the jury had wished otherwise, they would have noted otherwise.

We remanded the case for resentencing because the trial court “tried to implement what he perceived the jury wanted rather than exercising his own discretion.” In contrast, the trial court’s comments in this case indicate the opposite:

That was the court’s concern in this case, this is — the court regards Mr. Durham as an extremely dangerous individual. Not only does he have a substantial criminal history, but the court was aware of some similar circumstances in a Missouri case in which he was tried and acquitted; but there were several parallels to this case, including the strangulation of the woman that there may have been a murderous intent both in that case and in the case that was tried before this court. So this court regards Mr. Durham as an extremely dangerous individual, so that was the reason the court ran those sentences consecutively. I think that it was the court’s impression that was the way the jury viewed it as well, was that they wanted him to receive consecutive sentences. Because even with consecutive sentences, he will be eligible for parole in 25 years or something. (Emphasis added.)

Giving the above comments their most reasonable interpretation, the trial court based its decision entirely on its own discretion. The short reference to the jury’s desire was more in the nature of a comment and clearly not the motivation for the trial court’s decision.

VOLUNTARINESS OF CONFESSION

Appellant last argues his confession was not voluntary because it was the result of a promise of reward. He argues the police offered him a deal of 20-40 years if he cooperated and he did so by giving his statement. However, he contends that in return he was only made a minimum offer of 60 years, which he refused to accept.

All custodial confessions are presumed to be involuntary and the burden is upon the state to show the statement was voluntarily made. Jackson v. State, 284 Ark. 478, 683 S.W.2d 606 (1985). When reviewing the question of voluntariness of a confession, this court makes an independent review of the totality of the circumstances and reverses only if the trial court’s finding is clearly against the preponderance of the evidence. Hurst v. State, 296 Ark. 448, 757 S.W.2d 558 (1988).

When a statement has been induced by a false promise of reward, the confession is not voluntary. Hamm v. State, 296 Ark. 385, 757 S.W.2d 932 (1988). We explained there that some statements are clearly a promise of reward, and when so, the confession is found involuntary. In other cases, the promise is more ambiguous. In those instances, we also look to the vulnerability of the defendant to aid in the determination.

In this case, appellant has misstated what the police said to him. There was no offer to appellant for a 20-40 year bargain as he suggests. Instead, while interviewing appellant, the officers indicated that it could be important to him for them to get his side of the story, and one officer stated as an example: “So, instead of going to the joint for 40 years, a guy goes for 20.” Further, after making this remark, the officers made it abundantly clear by repeating several times that it was the prosecutor, not the police, who could make the deals and that, at most, they could only make recommendations to the prosecutor.

Because of the limited example the officers gave appellant, and their clear and express statements that they had no power to strike a bargain with him, we do not find the officer’s statement ambiguous in the first instance so there is no need to examine the appellant’s vulnerability.

Affirmed.


text:
    IN the MATTER of the ESTATE OF Venita J. GOSTON, Deceased, et al. v. FORD MOTOR COMPANY, et al.
    94-1229
    898 S.W.2d 471
    Supreme Court of Arkansas
    Opinion delivered June 5, 1995
    [Rehearing denied July 10, 1995.]

      C. Marshall Friedman, P.L., by: C. Marshall Friedman and Kenneth E. Rudd and Law Offices of William T. Finnegan, by: William T Finnegan, for appellant.

      Matthews, Sanders, Liles & Sayes, by: Gail O. Matthews, for appellees.
   Andree Layton Roaf, Justice.

This tort case presents the question of whether the Circuit Judge was correct in dismissing a claim on the basis of res judicata. We affirm the result reached by the trial court, but for the reason that the appellant’s claim was precluded by Ark. R. Civ. P. 13(a), which requires that a compulsory counterclaim be pled.

This case arises from an accident between two vehicles that occurred on February 12, 1988. Leo Goston, appellant, was heading north on John Barrow Road in Little Rock and was attempting to make a left turn onto a side street. Freddie Craig, appellee, was heading south on Barrow road and collided with Goston’s car as it was in the process of making the turn.

The Goston car burst into flames and Leo Goston’s wife Venita, a passenger, was severely burned and subsequently died. Leo Goston also claimed injuries as did Freddie Craig. There were two lawsuits between Goston and Craig based on this accident and this appeal is only from the latter of the two, in which Goston sued Craig.

On December 19, 1988, Freddie Craig filed a personal injury action against Leo Goston. Craig alleged that the accident occurred as the result of negligence on the part of Goston. Goston did not file an answer within the required time, but filed an untimely motion to dismiss. On the basis of that untimely response Craig moved for a default judgment. A default judgment was granted in favor of Craig on February 15, 1989.

Goston made unsuccessful attempts to get the judgment set aside and appealed the judgment. This case was affirmed in Goston v. Craig, 34 Ark.App. 23, 805 S.W.2d 92 (1991), on March 6, 1991.

In February 1991, Goston filed suit against Craig, Ford Motor Company, and Walt Bennett Ford based on the same accident. Goston asserted his individual cause of action, a wrongful death for Venita Goston, and derivative claims of the statutory beneficiaries of Venita Goston. Both Ford and Walt Bennett filed cross claims against Craig; Walt Bennett filed a cross claim against Ford.

Craig answered and moved for summary judgment on the basis of res judicata by reason of the default judgment Craig had obtained against Goston in the first suit. The trial court granted Craig’s motion on that basis in an amended order entered December 19, 1991. Goston filed a notice of appeal from that order.

Goston’s initial appeal of the order of December 19, 1991 was dismissed by this court on the basis of Ark. R. Civ. P. 54(b).

In March, 1993, Goston filed an amended complaint, including along with the originally named defendants, three additional defendants. He later obtained dismissal by non-suit of all claims and cross-claims except his individual claim against Craig, non-suiting the last defendant on August 12, 1994. He again filed his notice of appeal of the December 19, 1991 order granting summary judgment to Craig.

The appeal before us now is from the December 19, 1991 order which granted summary judgment to Craig on the basis of res judicata. While we do not agree with the basis on which the trial court granted the motion for summary judgment, this court will affirm the trial court where it has reached the right conclusion for the wrong reasons. Summers Chevrolet, Inc. v. Yell County, 310 Ark 1, 832 S.W.2d 486 (1992). We therefore affirm on the basis that Rule 13(a) precludes the appellant from pursuing his claim against Craig.

Goston raises three points on appeal: (1) that the trial court erred in granting the motion for summary judgment based on the doctrine of res judicata, (2) that the compulsory counterclaim provisions of Ark. R. Civ. P. 13(a) do not bar his claim against Craig for his personal injuries and (3) that summary judgment was entered in error because Craig waived or should be estopped from asserting that Goston was required to have litigated the issues of Craig’s negligence in the previous action filed by Craig.

Goston first argues that the doctrine of res judicata or “claim preclusion” does not operate to permit the default judgment obtained by Craig to bar Goston from asserting his separate cause of action against Craig, even though both claims arose from the same accident. Craig responds to the argument by asserting that it is collateral estoppel or “issue preclusion,” that actually bars Goston’s claim.

This court has addressed the distinction between claim and issue preclusion on a number of occasions. The difference between the two concepts is stated in John Cheeseman Trucking Inc. v. Pinson, 313 Ark. 632, 855 S.W.2d 941 (1993):

The concept of res judicata has two facets. One being issue preclusion and the other being claim preclusion. Issues in connection with this appeal are governed by the issue preclusion facet of the concept of res judicata. Claim preclusion forecloses further litigation on a cause of action. Bailey v. Harris Brake Fire Protection Dist., 287 Ark. 268, 697 S.W.2d 916 (1985). Issue preclusion precludes further litigation in connection with a certain issue. Issue preclusion is limited to those matters previously at issue, which were directly and necessarily adjudicated. Smith v. Roane, 284 Ark. 568, 683 S.W.2d 935 (1985).

This court has elaborated on that distinction in Bailey v. Harris, supra:

[C]laim preclusion bars not only the relitigation of issues which were actually litigated in the first suit, but also those which could have been litigated but were not. Wells v. Ark.Pub.Serv.Comm’n, supra; and Lovell v. Mixon, 719 F.2d 1373 (8th Cir. 1983). In contrast, issue preclusion, or the collateral estoppel aspect of res judicata, is limited to those matters previously at issue which were directly and necessarily adjudicated. Smith v. Roane, 284 Ark. 568, 683 S.W.2d 935 (1983).

The Restatement (Second) of Judgments’ (1982) definition of claim preclusion is found at §18 and it provides:

When a valid and final personal judgment is rendered in favor of the plaintiff:
(1) The plaintiff cannot thereafter maintain an action on the original claim or any part thereof, although he may be able to maintain an action upon the judgment; and
(2) In an action upon the judgment, the defendant cannot avail himself of defenses he might have interposed, or did interpose, in the first action.

The definition of issue preclusion is found at § 27 of the Restatement:

When an issue of fact or law is actually litigated and determined by a valid and final judgment and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.

This case clearly does not present a situation for the application of claim preclusion. We do not have a case of the plaintiff, in this case Craig, attempting to relitigate the same claim or any other claim which he could have raised in his cause of action arising from this accident.

However, the question of whether the matter is one of issue preclusion must also be resolved. Issue preclusion, or collateral estoppel, is usually applied to all issues other than a plaintiff’s claim in determining the effect of a judgment in precluding relitigation of an issue. The question of whether an issue was previously litigated is interpreted very narrowly for purposes of collateral estoppel. See Smith v. Roane, 284 Ark. 568, 683 S.W.2d 935 (1983).

Although the issue of Goston’s negligence as the cause of Craig’s injuries was decided by the entry of the default judgment, this is not the same issue as whether Craig’s negligence was the proximate cause of Goston’s injuries. The finding that Gos-ton was negligent does not equate to a finding that Craig was free of negligence in the same accident. The issue of Craig’s negligence was not actually litigated, nor was determination of his negligence essential to the default judgment rendered in favor of Craig. Craig’s default judgment is thus not conclusive in this subsequent action by Goston, and the trial court’s order on the basis of res judicata was incorrect.

We therefore conclude that neither the doctrine of res judicata nor collateral estoppel would preclude Goston from bringing his claim against Craig.

However, Ark. R. Civ. P. 13(a) does clearly present a bar to Goston’s claim. This rule provides:

(a) Compulsory Counterclaims. A pleading shall state as a counterclaim any claim which, at the time of filing the pleading, the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction, (emphasis added).

We stated in Bankston v. McKensie, 288 Ark. 65, 702 S.W.2d 14 (1986) that the reason for this rule is to require parties to present all existing claims simultaneously to the court or be forever barred, thus preventing a multiplicity of suits arising from one set of circumstances. There is no question but that Goston’s present claim arose out of the same “transaction or occurrence” as did Craig’s, and that Goston would be required to plead his counterclaim in Craig’s case or waive it, under Rule 13(a). See e.g. Wasp Oil v. Arkansas Oil & Gas, 280 Ark. 420, 658 S.W.2d 397 (1983).

Goston argues that we should not apply Rule 13(a) to default judgments. Although this court has not previously addressed this issue, Rule 13(a) is virtually identical to its federal counterpart and we can look to federal sources for guidance on this question.

Wright, Federal Practice and Procedure, § 1417 (1990), discusses Rule 13(a):

However, if notions of estoppel or waiver are used to preclude defendant from asserting his claim in a later suit, should they apply when the first action has resulted in a consent or a default judgment? The Advisory Committee Note to Rule 13(a) only states that an independent suit is barred if the earlier action has “proceeded to a judgment,” without indicating what kind of judgment is contemplated, which has the effect of leaving the question unanswered. Typically, courts have given default judgments full effect and have held that a counterclaim omitted from an action that terminates in a default judgment will be barred from any subsequent suits. However, if the parties resolve their dispute by means of a consent judgment, defendant may reserve the right to bring a later action on his counterclaim and no bar will result, (emphasis added).

Here, Goston’s failure to present his counterclaim in the original action filed by Craig is the proper basis for the trial court’s ruling that Goston is barred from now raising this claim.

Appellant Goston also argues that Craig should be estopped from asserting that Goston was required to have litigated his claim in the prior action filed by Craig, and cites to Clark v. Yosemite Community College Dist., 785 F.2d 781 (9th Cir. 1986), for the proposition that “a party who successfully blocks litigation of a cause of action in one proceeding may not hide behind the defense of res judicata in the second proceeding.”

However, appellant makes this argument for the first time on appeal. Failure to make an objection below and get a ruling on it will waive the argument on appeal. Thomas v. Cornell, 316 Ark. 366, 872 S.W.2d 370 (1994); Shelter Mut. Ins. Co. v. Page, 316 Ark. 623, 873 S.W.2d 534 (1994). We therefore do not consider the merits of the argument.

The judgment of the trial court is affirmed.

Brown, J., concurs.


text:
    Tony Franklin WILSON v. STATE of Arkansas
    CR 95-112
    898 S.W.2d 469
    Supreme Court of Arkansas
    Opinion delivered June 5, 1995

      Robert A. Newcomb, for appellant.

      Winston Bryant, Att’y Gen., by: Vada Berger, Asst. Att’y Gen., for appellee.
   Andree Layton Roaf, Justice.

Tony Wilson was convicted of raping his twelve year old daughter and sentenced to 60 years in prison. His sole contention on appeal is that there was insufficient evidence to prove his guilt beyond a reasonable doubt. We find no merit to his argument and affirm the judgment.

At trial, the victim testified that her father raped her in his trailer when she was visiting with him over the weekend of November 6, 1993. However, she did not tell her mother, with whom she lived, until some months later, and was not examined for evidence of sexual assault until March, 1994. The exam revealed a healed injury consistent with traumatic vaginal penetration.

At trial, appellant, his mother, sister and two of his children who lived with him all testified that the victim had not spent the weekend of November 6, 1993 at the appellant’s trailer, and that she had not spent the night with appellant since some time in July, 1993.

Appellant’s motion for directed verdict based on insufficiency of the evidence was denied by the trial court, and he appeals from this denial.

Appellant argues that because all his witnesses refuted the victim’s testimony that she spent the weekend of November 6, 1993 with appellant and because she gave differing versions of some details of the rape, the evidence was insufficient to support the verdict. There is no merit to the argument.

A motion for a directed verdict is a challenge to the sufficiency of the evidence, and when such a challenge is made 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. Robinson v. State, 317 Ark. 17, 875 S.W.2d 837 (1994). If there is any substantial evidence to support the verdict we will affirm.

On matters of credibility of the witnesses and conflicting testimony, we have repeatedly held that the determination of those issues is left to the trier of fact. Byrum v. State, 318 Ark. 87, 884 S.W.2d 248 (1994); Miller v. State, 318 Ark. 673, 887 S.W.2d 280 (1994); Lukach v. State, 310 Ark. 119, 835 S.W.2d 852 (1991); Cope v. State, 294 Ark. 391, 730 S.W.2d 242 (1987); Mann v. State, 291 Ark. 4, 722 S.W.2d 266 (1987). The jury in this case judged the credibility of the victim’s testimony and returned a guilty verdict.

We have also long and repeatedly held that the uncorroborated testimony of a rape victim, adult and children alike, is substantial evidence and sufficient to support the verdict. Caldwell v. State, 319 Ark. 243, 891 S.W.2d 42 (1995); Byrum v. State, supra; Lukach v. State, supra; Dillon v. State, 317 Ark. 384, 877 S.W.2d 915 (1994); Laughlin v. State, 316 Ark. 489, 872 S.W.2d 898 (1994); Fox v. State, 314 Ark. 523, 863 S.W.2d 568 (1993); Bishop v. State, 310 Ark. 479, 839 S.W.2d 6 (1992); Davis v. State, 308 Ark. 481, 825 S.W.2d 584 (1992).

Appellant argues that the evidence was insufficient to establish that the victim spent the weekend with him on the date charged by the State. However, lack of certainty as to the date does not defeat a charge of this nature.

In Fry v. State, 309 Ark. 316, 829 S.W.2d 415 (1992), involving rape of two minors by their stepfather, we said:

By statute and case law it is established that generally the time a crime is alleged to have occurred is not of critical significance unless the date is material to the offense. Arkansas Code Ann. § 16-85-405(d) (1987); Bonds v. State, 296 Ark. 1, 751 S.W.2d 339 (1988); Kirkham v. City of North Little Rock, 227 Ark. 789, 301 S.W.2d 559 (1957). That is particularly true with sexual crimes against children and infants.

In Yates v. State, 301 Ark. 424, 785 S.W.2d 119 (1990), another case involving rape of a minor, we said “Any discrepancies in the testimony concerning the date of the offense were for the jury to resolve.” See also Ark. Code Ann. § 16-85-405(a)(2)(d) (1987); Burris v. State, 291 Ark. 157, 722 S.W.2d 858 (1987).

The victim in this case gave a full and detailed accounting of the appellant’s actions which is sufficient to support the verdict.

Finding no error, we affirm the judgment.


author: Robert H. Dudley, Justice.

text:
    Michael CATLETT v. STATE of Arkansas
    CR 95-10
    900 S.W.2d 523
    Supreme Court of Arkansas
    Opinion delivered June 12, 1995
    [Rehearing denied July 17, 1995.]

      Joseph M. Nursey and Timothy O. Dudley, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Deputy Att’y Gen., Senior App. Advoc., for appellee.
   Robert H. Dudley, Justice.

On October 1, 1993, appellant Michael Catlett trailed Stephanie Jungkind’s car from the Pizza D’Action cafe in the Hillcrest section of Little Rock to the Rodney Parham exit on Interstate 630, pulled up beside her, reached out his car window, fired a semi-automatic pistol into her car, freed the jammed pistol, and fired again. The shots struck and killed Ms. Jungkind. At trial, appellant did not deny the foregoing facts. Rather, he argued that his mental illness rendered him incapable of forming the intent required for murder and, in addition, asserted the affirmative defense of not guilty by reason of mental disease or defect.

Appellant has a long history of mental illness that culminated in months of obsessive behavior toward Ms. Jungkind. Appellant and the victim had dated, lived together, and were engaged to be married before Ms. Jungkind terminated their relationship. After their breakup, appellant stalked Ms. Jungkind at her home, at friends’ and relatives’ homes, at her place of employment, and at public places. The content of his numerous phone calls to her ranged from pleading with her to come back, insulting and threatening her, making peculiar animal-like noises, and hanging up the moment she answered. Just before he killed Ms. Jungkind, appellant spray-painted bizarre graffiti on the parking lots of Riverfront Park and of the law firm where she was employed.

Appellant’s first suicide attempt occurred at age eighteen. He was subsequently placed in a series of psychiatric hospitals and was involuntarily committed to the Arkansas State Hospital in 1992 and again in 1993. He was diagnosed as having bipolar affective (manic-depressive) disorder and suffered from various paranoid delusions.

The only seriously contested issues at trial involved appellant’s mental condition at the time of the murder. The State’s evidence of premeditation showed that appellant had (1) attempted to purchase a gun from a pawn shop by falsifying a federal firearms form; (2) purchased a semi-automatic pistol three days before the murder; (3) visited a travel agency and possibly purchased an airline ticket two weeks before the murder; (4) stated that he hated Ms. Jungkind and that a manic-depressive person could murder someone and get away with it; (5) stated that he was going to kill Ms. Jungkind; and (6) was served with an order of protection two days before the murder and was scheduled to appear at a hearing three days after the murder. The jury found that the State proved beyond a reasonable doubt that appellant acted with a premeditated and deliberated purpose and that appellant did not prove his affirmative defense of mental disease or defect by a preponderance of the evidence. Appellant was convicted of capital murder and was sentenced to life imprisonment without parole. We affirm the judgment of conviction.

Appellant’s initial point of appeal is that the trial court erred in refusing to sustain an objection to a part of the deputy prosecutor’s closing argument. The deputy prosecutor, in arguing against appellant’s affirmative defense, said:

If you have found that the State has proven that Michael Catlett has committed an offense, then and only then after you’ve decided what he has committed, do you pick up that affirmative defense [of mental disease or defect]. Because if you don’t find him guilty, you don’t even need to consider it. He’s just plain not guilty. But if you have found him guilty, you pick up that affirmative defense.

Appellant objected to the argument on the ground that the applicable instruction, AMI Crim. 2d 609, provides that the jury must find that appellant “engaged in the conduct alleged to constitute the offense charged” and not that it must find appellant guilty before determining whether he proved the affirmative defense. The trial court overruled the objection.

Before taking up the issue of the deputy prosecutor’s statement, we examine the full text of the State’s argument. It addresses both of appellant’s contentions. Appellant asserted two defenses, a “failure of proof’ defense and an “excuse” defense. He contended that because of his mental illness he was incapable of forming the requisite intent to commit capital murder and the State was required to prove that intent beyond a reasonable doubt. Section 5-2-303 of the Arkansas Code Annotated provides: “Evidence that the defendant suffered from a mental disease or defect is admissible to prove whether he had the kind of culpable mental state required for commission of the offense charged.” Ark. Code Ann. § 5-2-303 (Repl. 1993). Appellant argued at trial that he should be acquitted because he could not form a “premeditated and deliberated purpose,” the required element for a capital murder conviction. See Ark. Code Ann. § 5-10-101(a)(4). Appellant’s contention that the State failed to prove intent to commit murder beyond a reasonable doubt was a “failure of proof defense.”

Appellant also contended that he should be acquitted because of his affirmative defense. An affirmative defense is a general defense which bars conviction even if all the elements of the offense are proven beyond a reasonable doubt. Lack of capacity is an “excuse” defense in which the defendant does not deny that his conduct was wrong, but argues that he is excused from that wrongful conduct because he lacked the capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. Ark. Code Ann. § 5-2-312(a). In asserting the affirmative defense, appellant contended that he lacked the ability to control his conduct to the extent that he should not be held accountable for it.

With the context set out, we now address the point of appeal. In the first sentence of the statement, the deputy prosecutor argued that if the jury found that appellant “has committed an offense, then and only then after you’ve decided what he has committed, do you pick up that affirmative defense.” Under the applicable model instruction, AMLCrim. 2d 609, the jury must find that appellant “engaged in conduct alleged to constitute the offense charged,” as distinguished from the deputy prosecutor’s statement that it must find “appellant committed an offense.” However, when viewed in context of the State’s argument, it is obvious that the statement was a reference to the sequence in which the jurors consider the “failure of proof’ defense and the “excuse,” or affirmative, defense, and in this regard the difference is metaphysical.

The second and third sentences in the deputy prosecutor’s statement were entirely correct. They were: “Because if you don’t find him guilty, you don’t even need to consider it. He’s just plain not guilty.” Again, the framework of the sentences is to show the sequence in which the jurors are to consider the affirmative defense.

The third sentence in the statement was: “But if you have found him guilty, you pick up that affirmative defense.” Appellant argues that this part of the statement was misleading and prejudicial because it required the jury to first find appellant was “guilty,” and then, if they found he had proved his affirmative defense, find him “unguilty.” Again, the statement concerned the two related defenses by appellant, and the sequence in which they were to be considered.

Certainly, if the prosecutor had argued that none of the insanity evidence could be considered for any purpose unless the jury found that all of the elements of the offense had been proved, or that appellant had been found guilty, it would have been an incorrect and misleading statement of the law. However, that was not the argument. The deputy prosecutor was referring solely to the jury’s consideration of the evidence as an affirmative defense and was referring to the sequence in which they should consider the affirmative defense. It was with this predicate that the deputy prosecutor said, “but if you have found him guilty, you pick up that affirmative defense.” The statement, taken in full context with the other statements, meant that, even though the jurors might find the State proved beyond a reasonable doubt that appellant had the requisite mental culpability to commit a crime, they were then to determine whether he could conform his conduct to the requirements of the law. Appellant was not prejudiced by the deputy prosecutor’s statement.

Appellant next argues that the trial court erred in allowing the State to prove that appellant made preparations to flee. The facts underlying the argument are as follows. Prior to trial, appellant moved to exclude the testimony of Amy Thompson, who would supposedly testify that appellant had visited a travel agency the day before the murder and had possibly purchased an airline ticket, and to exclude the testimony of Rita Hawkins, who would supposedly testify that she rode with appellant to the travel agency “several days before the murder.” Appellant argued at trial that neither witness could say whether appellant purchased a plane ticket and therefore, their testimony should be excluded. The State proffered Ms. Thompson’s testimony, and the court deemed it inadmissible because Ms. Thompson’s recollection of the event was so poor. The deputy prosecutor then told the court that the State would rely solely on the testimony of Rita Hawkins, the witness who went with appellant to the travel agency “the day before the murder.” Appellant argued that her testimony should be excluded because she did not go into the travel agency with him and that she did not know what was in the envelope he brought out of the travel agency. The trial court refused to exclude the evidence, ruling that there was a reasonable inference that appellant could have purchased a ticket and that the event was “close enough in time to the offense” to be relevant.

At trial, Ms. Hawkins testified that she did not know exactly when she and appellant went to the travel agency, that it was “maybe two weeks relative to Michelle’s shooting.” She testified that she did not go into the travel agency with appellant, but when appellant returned to the car, he had an envelope in his hand.

On appeal, appellant argues that the time factor made the evidence more prejudicial than probative. However, that argument was not made below. Appellant argued below that the evidence should be excluded because Ms. Hawkins could not say that appellant purchased a travel ticket. It is well settled that a party cannot change his grounds for objection on appeal. Walker v. State, 301 Ark. 218, 783 S.W.2d 44 (1990).

Appellant next argues that the trial court erred in charging the jury, but this argument is procedurally barred because trial counsel neither objected to the instructions given nor did he offer his own instructions. Watson v. State, 313 Ark. 304, 854 S.W.2d 332 (1993); Nichols v. State, 306 Ark. 417, 815 S.W.2d 382 (1991). In fact, the record reveals that trial counsel offered one of the instructions about which appellate counsel now complains.

An examination of the record has been made in accordance with Ark. Sup. Ct. R. 4-3(h), and we have determined that there were no rulings adverse to appellant that constituted prejudicial error.

Affirmed.