author: Steele Hays, Justice.

text:
    Lillie R. EDWARDS v. SZABO FOOD SERVICE, INC.
    93-381
    877 S.W.2d 932
    Supreme Court of Arkansas
    Opinion delivered June 20, 1994

      Frederick S. “Rick” Spencer, for appellant.

      Lewis D. Jones, for appellee.
   Steele Hays, Justice.

This case involves the construction and interpretation of the Arkansas Rules of Civil Procedure. The principal point on appeal is whether under ARCP Rule 4(i) a circuit court loses jurisdiction if the order granting a motion to extend the time to obtain service of process is not signed and filed prior to the expiration of 120 days from the filing of the complaint. We hold that where the motion to extend time is filed prior to the expiration of the 120 day period the trial court may grant the extension after the expiration of 120 days. Accordingly, we reverse and remand.

Appellant Lillie Edwards filed a complaint against the appellee, Szabo Food Service, Inc., on September 23, 1987. The appellant alleged she sustained a permanent- injury due to the negligence of Szabo Food Service, Inc. On November 8, 1990 the appellant voluntarily dismissed the complaint without prejudice pursuant to ARCP Rule 41.

On September 20, 1991 the appellant filed a new complaint based on the same cause of action. Under ARCP Rule 4(i), service of the summons must be made within one-hundred twenty (120) days after the filing of the complaint. Since the complaint was filed on September 20, 1991, the 120th day would have been January 18, 1992. However, January 18, 1992 was a Saturday. Consequently, the appellant had until Monday, January 20, 1992, to complete service of process. ARCP Rule 6(a).

On January 9, 1992 the circuit judge filed an order which stated the case would be dismissed unless service was accomplished by January 20, 1992. Subsequently, the appellant attempted to complete service of process by serving the appellee at the address of the registered agent on whom service had originally been had. On January 15, 1992 a copy of a letter from “CT System” to the counsel for the appellant was filed with the trial court. The letter informed the counsel for the appellant that Szabo Food Service, Inc. had formally withdrawn from the state on July 17, 1989, and “CT System” was no longer authorized to accept service for the company.

Consequently, the appellant filed a motion to extend the time for service pursuant to ARCP Rule 4(i) on January 16, 1992. However, the order granting the extension of time for service was not signed by the circuit judge until January 21, 1992, and it was not filed until January 23, 1992. On December 11, 1992 the trial court granted the appellee’s motion to dismiss. The trial court found the plaintiff failed to accomplish service of process within the 120 days required by ARCP Rule 4. In addition, the trial court concluded it had lost jurisdiction after the expiration of the 120 day period because an order extending the time had not been entered.

It is undisputed that the appellant filed the motion to extend time to perfect service prior to the expiration of the 120 day period allowed by ARCP Rule 4(i). Arkansas Rule of Civil Procedure 4(i) provides in part:

Time Limit for Service: If service of the summons is not made upon a defendant within 120 days after the filing of the complaint, the action shall be dismissed as to that defendant without prejudice upon motion or upon the court’s initiative. If a motion to extend is made within 120 days of the filing of the suit, the time for service may be extended by the court upon a showing of good cause. [Emphasis supplied.]

The trial judge, however, did not sign or file the order granting the extension of time until after the expiration of the 120 day period. Thus, the issue is whether simply filing the motion within the time allowed is sufficient, or must the order granting the motion be signed and filed prior to the expiration of the time. We construe the language of the rule to require that only the motion to extend the time for service must be filed within 120 days of the filing of the suit.

The appellee contends the trial court loses jurisdiction after 120 days because Rule 4(i) states that if service is not made within 120 days “the action shall be dismissed.” Accordingly, the appellee submits there is no suit to be acted upon because the statute of limitations bars the appellant’s claim. This argument, however, ignores the fact that the trial court has the authority to extend the time for service. Under the appellee’s analysis, the trial court would never have the authority to extend the time for service because the action “shall be dismissed” if service is not made within 120 days.

As to the statute of limitations, we have recognized an action is commenced when the complaint is filed with the proper court. Green v. Wiggins, 304 Ark. 484, 803 S.W.2d 536 (1991). That commencement date, however, is subject to the plaintiff completing service within 120 days from the date of filing of the complaint, unless the time for service has been extended by the court under ARCP Rule 4(i). (Emphasis supplied.) Id. We noted that “[r]ule 4(i) requires the plaintiff to file his or her motion to extend within the 120 day period following the filing of the suit. Id. In the instant case, the motion to extend was filed within the 120 day period.

In addition, ARCP Rule 6(b) recognizes that a trial court does not necessarily lose jurisdiction for failure to enter an order granting an extension of time under the Rules of Civil Procedure. ARCP Rule 6(b) provides in part:

Enlargement: When by these rules or by a notice given thereunder or by order of the court an act is required or allowed to be done at or within a specified time, the Court for cause shown may at any time in its discretion (1) with or without motion or notice, order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of mistake, inadvertence, surprise, excusable neglect, or other just cause, but it may not extend the time for taking an action under Rules 50(b), 52(b), 59(b), (d) and (e), and 60(b), except to the extent and under the conditions stated in them.

(Emphasis supplied.) This rule clearly recognizes that the trial court may act after the expiration of a specified period of time under the Rules of Civil Procedure. Further, Rule 6(b) provides that the court may even order a period enlarged if the request therefor is made before the expiration of a period “as extended by a previous order.” Thus, Rule 6(b) grants the trial court discretion, for cause shown, to extend a period which has previously been extended beyond the period originally prescribed.

Finally, the instant case is simply not a case where the trial court loses jurisdiction by failing to rule upon a motion prior to the expiration of a specified time period. For example, we have concluded that under ARCP Rule 60(b) a trial court loses jurisdiction to modify or set aside an order 90 days after the judgment is filed with the clerk, unless the exceptions in subsection (c) are applicable. Scott v. Kidd, 293 Ark. 451, 738 S.W.2d 421 (1987). Rule 60(b) provides that “a decree or order . . . may be modified or set aside .. . within ninety days of its having been filed with the clerk.” The instant case, however, is not analogous to a loss of jurisdiction pursuant to ARCP Rule 60(b). First, Rule 60(b) specifically states the order may only be modified within ninety days. Second, Rule 6(b) is not applicable to actions under Rule 60(b).

In sum, we find the trial court did not lose jurisdiction at the expiration of the 120 day period simply because the order to extend time for service of process was not entered prior to the expiration of that period. In order to comply with Rule 4(i), a party need only file the motion to extend time prior to the expiration of the deadline. The appellant complied with Rule 4(i).

Reversed and remanded.

       Allhough ARCP Rule 4(i) provides the aclion shall be dismissed without prejudice, the dismissal without prejudice language does not apply if the plaintiff’s action is otherwise barred by the running of a statute of limitations. Green v. Wiggins, 304 Ark. 484, 803 S.W.2d 536 (1991).


source: Caselaw Access Project

author: Tom Glaze, Justice.

license: Public Domain

text:
    Joetta THORNTON, Individually and as mother and Natural Guardian of Amanda Lampkin, a Minor v. Aaron SQUYRES, C. Thomas Pearson, Jr. and Marshall Dale Evans
    94-199
    877 S.W.2d 921
    Supreme Court of Arkansas
    Opinion delivered June 20, 1994

      Bailey Law Firm, by: Frank H. Bailey, for appellant.

      Davis, Cox & Wright, by: Kelly Carithers and John G. Trice, for appellees.
   Tom Glaze, Justice.

On May 22, 1992, appellant Joetta Thornton was served with a complaint for divorce filed by her first husband and the father of her oldest child, Amanda. In that complaint, the husband requested custody of Amanda. On June 3, Thornton retained the legal services of appellee Aaron Squyres with the payment of $200 and the understanding that she would pay an additional $100 as soon as possible. At the time, Squyres' was a staff attorney with the Legal Clinic with offices in Fayetteville and Harrison. Thornton saw Squyres at the Harrison office which she understood was only opened on Wednesdays.

During her visit, Thornton contended Squyres assured her that an answer to the complaint would be drafted that evening, that he would contact the other attorney that same evening with a view toward settlement, that he would file the written answer the next morning, and that he would send her a copy of the answer. Squyres deposited Thornton’s check for $200 into the account for the Legal Clinic. After failing to receive a copy of the answer and failing to hear from Squyres, Thornton made numerous calls to Squyres’s office in Harrison, which went unanswered or were automatically switched to another number which also went unanswered. Finally on July 1, Thornton made contact with k person in the office who indicated that he would take care of the matter.

On July 2, Amanda’s father and a city policeman showed up at Thornton’s home with a court order granting custody of Amanda to her father. The order had been entered that morning as a default judgment. In reaction to the court order, the presence of the policeman, and the loss of her child, Thornton experienced periods of crying, loss of sleep and appetite, and vomiting when she did eat. Pursuant to the default order, Amanda remained in the custody of her father for seven days until the order was set aside. Thereafter, Thornton was awarded custody of Amanda.

Thornton filed a complaint in circuit court against Squyres and his employer, the Legal Clinic, for the tort of outrage. Following presentation of Thornton’s case-in-chief to the jury, the court.granted Squyres’s motion for a directed verdict from which Thornton appeals.

In determining the correctness of the trial court’s action concerning a motion for a.directed verdict on appeal, this court views the evidence that is most favorable to the party against whom the. verdict is sought and gives it the highest probative value, taking into account all reasonable inferences deducible from it. The motion must be granted if the evidence is so lacking in substance that it would require a jury verdict to be set aside. Wingate Taylor-Maid Transportation, Inc. v. Baker, 310 Ark. 731, 840 S.W.2d 179 (1992).

By definition, the tort’ of outrage, also known as the intentional infliction of emotional distress, is an intentional tort. Deitsch v. Tillery, 309 Ark. 401, 833 S.W.2d 760 (1992). In order to establish liability, the plaintiff is required to satisfy four elements by showing: (1) the actor intended to inflict emotional distress or willfully and wantonly knew or should have known that emotional distress was the likely result of his conduct; (2) the conduct was extreme and outrageous, was beyond all possible bounds of decency, and was utterly intolerable in a civilized community; (3)the actions of the defendant were the cause of the plaintiff’s distress; and (4) the emotional distress sustained by the plaintiff was so severe that no reasonable person could be expected to endure it. Id. at 406; AMI Civil 3rd, 404 (1989).

Thornton argues that viewed within the totality of the circumstances and in light of the fiduciary relationship of attorney-client that existed between the parties, Squyres’s conduct may be reasonably regarded as extreme and outrageous. She argues Squyres knew or should have known the extreme emotional harm that could result from the loss of her child. Further, the circumstances demonstrated Squyres’s total lack of any docket control system in disregard of his clients’ interests, his failure to answer phone calls for three weeks, and the failure of Squyres’s office to take any action on July 1 when Thornton was eventually able to contact the office. Finally, when confronted with the result of his omission, Thornton avers Squyres implied that he deliberately did not file an answer because he was not paid in full.

To counter, Squyres argues that Thornton’s cause of action lies in a legal malpractice claim because the acts she complains of do not rise to the level of extreme and outrageous behavior sufficient to be considered utterly intolerable in a civilized society. Further, Squyres argues the emotional distress which Thornton experienced was not so severe that a reasonable person could not be expected to endure it, and, nevertheless, he had no way of knowing that Thornton was especially sensitive or vulnerable to injury through mental distress that would be triggered by loss of her child. Finally, Squyres argues his conduct was not intentional.

Although we in no way countenance the manner in which Squyres handled Thornton’s case against her husband, Squyres’s conduct was not a basis for filing a tort of outrage action. This court first recognized such an action in M.B.M. Co. v. Counce, 268 Ark. 269, 569 S.W.2d 681 (1980), by stating that one who by extreme and outrageous conduct willfully or wantonly causes severe emotional distress to another is subject to liability for such emotional distress and for bodily harm resulting from the distress. The Counce court further defined extreme and outrageous conduct as being so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.

In directing a verdict in Squyres’s favor, the trial judge offered the following insightful remarks:

I think I even announced it to the jury panel today, [that] I thought what we were trying is a legal malpractice action. [Counsel] has chosen not to pursue a legal malpractice action, but, father, a tort of outrage, a cause of action which has not really been very well developed in the Arkansas court system. This Court is just rather dubious that this is a tort of outrage. To me, this is just a matter of negligence on the part of an attorney. And ... an attorney malpractice action would be the appropriate remedy here.
4= 4= *
[I]f this is a tort of outrage, then virtually any act of legal malpractice touching and affecting peoples’ lives is also a tort of outrage. ... I had an attorney here three months ago who failed to file an answer in time, which resulted in a judgment being entered against his client. There was emotional trauma that would attach under those circumstances. The language that’s used in connection with the tort of outrage asks for something more. It’s punitive in nature. That’s the whole reason the tort of outrage arises, is that any time a person does this we’ve got to punish them for violating, in almost a penal way, the customs of society.

The trial judge was correct. The tort of outrage action is not one that can merely be substituted for a legal malpractice claim which involves inattentive, unprofessional or negligent action of an attorney. Obviously, Thornton suffered emotional distress over the temporary loss of custody of her daughter, and we are sensitive to the mental trauma she experienced in these circumstances. However, Thornton’s and her husband’s divorce suit involved a contested fight over the custody of their daughter, and in such litigation, the possible loss of custody, temporary or permanent, is always an issue to be confronted by both parents. As to Squyres’s own conduct which led to what temporarily occurred to Thornton in her custody battle with her husband, we cannot view it as being so extreme in degree as to go beyond all bounds of decency and to be regarded as atrocious, and utterly intolerable in a civilized society. Merely describing such conduct as outrageous does not make it so. Ross v. Patterson, 307 Ark. 68, 817 S.W.2d 418 (1991).

In conclusion, Squyres filed a motion seeking award of costs for a supplemental abstract. Because the supplemental abstract was not necessary for an impartial understanding of this appeal, we deny his motion.

For the reasons above, we affirm.

Newbern, J., not participating.


author: Donald L. Corbin, Justice. David Newbern, Justice,

text:
    Nancy BRASEL v. ESTATE OF Othar HARP and Newton County Bank
    94-10
    877 S.W.2d 923
    Supreme Court of Arkansas
    Opinion delivered June 20, 1994
    [Rehearing denied July 18, 1994.]

      Martin Law Firm, P.A.. by: Thomas A. Martin, for appellant.

      Peter De Stefano. for appellee Newton County Bank.

      Adams, Nichols & Evans, by: Donald J. Adams, for appellee Estate of Harp.
   Donald L. Corbin, Justice.

Appellant, Nancy Brasel, appeals an order entered by Newton Chancery Court denying her claims against appellees, the Estate of Othar Harp and Newton County Bank. Appellant, Othar Harp’s neighbor, had been added to Harp’s checking account to assist him in paying his bills. Appellant was a joint tenant on this account with Mr. Harp until his guardian withdrew all the funds in the account and set up a guardianship account. Appellant questions whether the guardian can rightfully close a bank account held by the ward and another party as joint tenants with the right of survivorship. Appellant also questions whether the bank can rightfully release funds to the guardian. We have jurisdiction of this case as it requires statutory interpretation. Ark. Sup. Ct. R. l-2(a)(3).

In 1989, Othar Harp, an elderly widower, changed his Newton County Bank account from sole ownership to joint tenancy with a right of survivorship when he added appellant to write checks for him. In January 1992, Mr. Harp was found incompetent, and his son, Sam Harp, was appointed guardian. The day guardianship letters were issued, the son closed that account and placed the funds in a guardianship account. Very soon thereafter, Othar Harp died, his son was appointed executor, and the funds were moved into an estate account.

Notice to creditors regarding Mr. Harp’s estate was placed in the local newspaper, though appellant did not receive personal notice by mail. However, appellant and Mr. Harp’s son communicated about Mr. Harp’s death because the son contacted appellant about bank account documents. Approximately one year and one month after Mr. Harp’s death, appellant filed a claim against the estate alleging wrongful withdrawal of the joint account funds and asserting her claim was timely because she had not received proper notice as a creditor of the estate. Appellant concurrently filed suit in circuit court against the bank alleging breach of contract and damages in the amount of the withdrawal for allowing the son, as guardian, to withdraw the funds and close the account. The cases were consolidated in chancery court.

It was stipulated that appellant did not realize she had any claim against the estate of Mr. Harp until after she consulted an attorney, long after her ninety days to file a claim had expired. It was further stipulated that the money in the account was solely Mr. Harp’s, and the money therefrom was used only to pay his bills. The sole claim appellant made to the funds were those rights conferred by the signature card. Appellant had never attempted to withdraw funds from the account and never claimed to have deposited any funds in the account. In fact, appellant testified that Mr. Harp’s son came to her house not long after Mr. Harp had been put in a nursing home and told her he was taking care of his father’s affairs. She gave the son the papers she had with regard to the checking account. Appellant admitted that she paid bills for Mr. Harp with no expectation of payment for those services. She never told the son that she claimed title to the funds in the account. Her claim was based on the argument that had Mr. Harp died with her as joint owner, she would have been entitled to the entire account funds, which was not raised until long after any time to file a claim against the estate had passed.

After all parties moved for summary judgment, the chancellor determined that no breach of contract occurred because the lawful guardian could rightfully withdraw the funds and close the account; that appellant’s claim against the estate was untimely because she was not a reasonably ascertainable creditor of the estate nor even a creditor entitled to notice under Arkansas law; and that the estate’s negligence claim against the bank was moot. This appeal followed.

Appellant first argues that the bank wrongfully allowed the guardian to withdraw the account funds and place them in a guardianship account. On the facts of this case, we disagree. It is clear that the right to withdraw funds in a joint account is equal to both depositors, and a bank may rightfully pay all the funds in the account to either owner. Ark. Code Ann. § 23-32-1005 (Repl. 1994); Hogan v. Hogan, 313 Ark. 374, 855 S.W.2d 905 (1993); O’Flarity v. O’Flarity, 42 Ark. App. 5, 852 S.W.2d 150 (1993). However, each owner’s right to the funds may depend upon an agreement between them as to their ownership rights, Hogan, 313 Ark. 374, 855 S.W.2d 905, and here no question of ownership ever arose.

In the instant case, appellant did not believe a gift had been made to her, appellant never attempted to withdraw funds for herself, and appellant knew the entire fund originated with Mr. Harp. No question as to ownership has been raised other than the rights conferred to survive to ownership. A guardian has certain duties under Arkansas law, one of which is to exercise due care to protect and preserve the ward’s property. Ark. Code Ann. § 28-65-301 (1987). Pursuant to the letters of guardianship as presented to the bank, the son exercised his powers to protect and preserve the ward’s personal property. Under these facts, the bank could rightfully allow withdrawal under the letters of guardianship and under the contract with the parties.

Appellant next argues that her claim against the estate, filed long after the ninety days after publication had expired, was timely. We disagree pursuant to the clear reasoning of Estate of Spears, 314 Ark. 54, 858 S.W.2d 93 (1993). Appellant argues that she was a “known or reasonably ascertainable creditor,” Ark. Code Ann.- § 28-40-111(a)(1), (a)(4) (Supp. 1991), and as such should have had two years from publication of notice to creditors in which to file a claim since she did not receive actual notice. Ark. Code Ann. § 28-50-101(h) (Supp.-1991).

This is incorrect since we said in Spears that a creditor of an estate must be subject to identification during the three month statute of nonclaim, Ark. Code Ann. § 28-50-101(a) (Supp. 1991). If this were not the case, then all matters of estate would be left open for two years. Certainly this was not the intent of the legislature, and we explained this in Spears. Appellant was not a creditor of the estate, reasonably ascertainable or otherwise, and she admitted she did not know she had a potential claim against the estate until well after the ninety days in which to make a claim had expired. Furthermore, appellant was admittedly aware of the son’s actions as she and Mr. Harp’s son communicated about the account after Mr. Harp’s death. Appellant’s claim against the estate was rightfully deemed untimely.

For the foregoing reasons, the chancellor’s decision is affirmed.

Holt, C.J., Dudley and Newbern, JJ., concur.

David Newbern, Justice,

concurring. The Court’s opinion reaches the correct result because the claim against the estate was untimely and the Bank was not shown to have been at fault.

The problem with the opinion is that it does not address a principal contention in this appeal, i.e., that Othar Harp’s guardian had no authority to remove the funds from the joint account so as to frustrate Ms. Brasel’s right of survivorship. The opinion simply says the guardian was gathering in the assets of Othar Harp’s estate, as if there were no issue whether he had the authority to, in effect, revoke the survivorship rights which Othar Harp had created in Ms. Brasel. The question is whether a guardian may, with no showing of a need on the part of the ward, effectively revoke decisions made by the ward before the ward became incompetent.

A guardian of the estate of an incompetent person does not become the alter ego of the ward and has no authority to change an act by which the ward exercised personal discretion before becoming incompetent. Howard v. Imes, 90 So. 2d 818 (Ala. 1956); Drozinski v. Straub, 383 So. 2d 301 (Fla. 2nd App. 1980); Rozycke v. Sroka, 279 N.E.2d 155 (Ill. App. 1972).

The foregoing rule, which this Court has not had an occasion to address, appears to be a general rule of guardianship law which operates in the absence of a statute to the contrary or fraud. Cf. Estate of Thompson v. Stroud, 539 S.W.2d 650 (Mo. App. 1976)(statute specifically permitted withdrawal of joint account funds by guardian); Cape Coral Bank v. Kinney, 321 So. 2d 597 (Fla. 2nd App. 1975)(allegation of fraud perpetrated by joint tenant against incompetent person).

The opinion in the case we decide today could be, but should not be, interpreted as allowing a guardian to change decisions made by the ward before the ward became incompetent under the guise of gathering in the assets of the ward’s estate. That could produce a patently unfair result, especially in a situation where the guardian is an heir or beneficiary of the ward’s estate. It could produce a result which is directly contrary to the legitimate intention of the ward reached at a time when the ward had undoubted capacity to act.

Had there been a timely claim against the estate, perhaps joined with a claim against the guardian, the result might well have been different. In this case we should do no more than point out that no claim is made against the guardian, the claim against the estate was untimely, and the claim against the Bank lacked merit.

Holt, C.J., and Dudley, J. join in this concurrence.


author: Donald L. Corbin, Justice.

text:
    Kendall DILLON v. STATE of Arkansas
    CR 93-1068
    877 S.W.2d 915
    Supreme Court of Arkansas
    Opinion delivered June 20, 1994
    [Rehearing denied September 12, 1994.]

      Tom F. Donovan, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant, Kendall Dillon, is a Pulaski County Deputy Sheriff who appeals a judgment of the Pulaski Circuit Court convicting him of the rape of a woman in his patrol car and sentencing him to twenty-one years in the Arkansas Department of Correction. Appellant was previously convicted of the same rape charge and sentenced to thirty-three years. We reversed the first judgment of conviction due to the prosecutor’s misconduct'. Dillon v. State, 311 Ark. 529, 844 S.W.2d 944 (1993). We have jurisdiction of this appeal since it follows a previous decision of this court. Ark. Sup. Ct. R. 1-2(a)(ll). Appellant asserts eight points of error. We find merit to none of them and affirm.

DIRECTED VERDICT/SUFFICIENCY OF THE EVIDENCE

We first discuss appellant’s assertion that the trial court erred in failing to direct a verdict in his favor because this is, in essence, a question of the sufficiency of .the evidence. Mitchell v. State, 314 Ark. 343, 862 S.W.2d 254 (1993). Preservation of an appellant’s right to freedom from double jeopardy requires a review of the sufficiency of the evidence prior to a review of trial errors. Davis v. State, 314 Ark. 257, 863 S.W.2d 259 (1993); Lukach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992); Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). On appeal, this court determines if there is substantial evidence to support the verdict, viewing the evidence in the light most favorable to the appellee. Mitchell, 314 Ark. 343, 862 S.W.2d 254. Substantial evidence is evidence of sufficient force to compel a conclusion one way or the other, forcing the mind to pass beyond suspicion or conjecture; Id.

Appellant argues the state failed to prove an element of rape, namely forcible compulsion. Rape is defined in Ark. Code-Ann. § 5-14-103 (Repl. 1993):

(a) A person commits rape if he engages in sexual intercourse or deviate sexual activity with another person:
(1) By forcible compulsion^]

“Forcible compulsion” is defined in Ark. Code Ann. § 5-14-101(2) (Repl. 1993) as “physical force or a threat, express or implied, of death or physical injury to or kidnapping of any person.” We further refined the definition of “physical force” in Strawhacker v. State, 304 Ark. 726, 731, 804 S.W.2d 720, 723 (1991) as “any bodily impact, restraint or confinement, or the threat thereof.”

The victim’s testimony was presented as substantial evidence of forcible compulsion and of rape. She testified that while in the passenger seat of the patrol car on a deserted road appellant kissed her, played with and squeezed her breasts, and put his fingers in her vagina after putting his hands down her pants and rubbing in the vaginal area. She offered appellant the tip money she had earned that night to leave her alone, but she testified appellant said he wanted her and not her money. She stated she was crying in the patrol car and felt like she would not make it home; she knew he was a police officer with a weapon and feared he would kill her. She also stated she told appellant repeatedly that she had to pick up her kids from the sitter and that when she tried to get away from appellant, he would pull her back to him.

This testimony clearly satisfies the requirements of forcible compulsion that the victim experience “bodily impact, restraint or confinement, or the threat thereof.” This is sufficient evidence for the jury to have determined that appellant was guilty of rape. We have consistently held that the testimony of the prosecuting witness in a sexual offense case, including the testimony of a rape victim, need not be corroborated to constitute substantial evidence. Davis v. State, 308 Ark. 481, 825 S.W.2d 584 (1992); Smith v. State, 277 Ark. 64, 639 S.W.2d 348 (1982); Rogers v. State, 237 Ark. 437, 373 S.W.2d 705 (1963); Palmer v. State, 213 Ark. 956, 214 S.W.2d 372 (1948), cert. denied, 336 U.S. 921 (1949); Cabe v. State, 182 Ark. 49, 30 S.W.2d 855 (1930).

MOTIONS FOR MISTRIAL

Appellant next argues that the trial court erred in denying his three motions for mistrial. As we have said many times, mistrial is a drastic remedy and should be ordered only when the fundamental fairness of a trial has been manifestly affected; Furlough v. State, 314 Ark. 146, 861 S.W.2d 297 (1993); and only where any possible prejudice cannot be removed by an admonition to the jury. Id. Furthermore, the trial court is granted considerable discretion in determining whether to grant a motion for mistrial, and only when this court determines that the trial court abused its discretion will a decision to deny a motion for mistrial be reversed. Haynes v. State, 311 Ark. 651, 846 S.W.2d 179 (1993).

The first motion came after the state began redirect examination of the victim. During cross-examination, appellant’s counsel identified a woman by name and asked if the victim knew the woman. The victim stated she had spoken to the woman on the telephone and continued to answer additional questions about the circumstances of that conversation, though the substance of the conversation was never mentioned. On redirect, the prosecutor asked the victim why she had called the woman. Over appellant’s sustained objection, the prosecutor cautioned the victim not to repeat any hearsay. Despite the objection being sustained and the caution from the prosecutor, the victim then stated that she had telephoned the woman because the same thing had happened to the woman two nights after the rape happened to the victim. Appellant moved for a mistrial, arguing the impression was given that appellant had done the same act to two different women without the benefit of the other woman’s testifying on the stand. The trial judge excused the jury and heard arguments in chambers. The trial court noted that though the testimony nearly called for a mistrial, defense counsel had clearly opened the door to the allegedly prejudicial statements. The trial judge then denied the motion. No curative instruction was requested nor did appellant ask to strike the victim’s testimony.

On the record before us, we cannot say the trial court abused its discretion in denying the mistrial. As a matter of trial tactics, appellant’s counsel anticipated the other woman’s testimony and thus chose to inquire about the victim’s version of the interchange between the two women. Thus, given that appellant did indeed open the door to the subject of the other woman, coupled with the noticeable absence of bad faith on the part of the prosecutor, we simply cannot say the trial court abused its discretion in this regard.

For his second argument that a mistrial should have been granted, appellant asserts the trial court erred in making comments about appellant’s counsel which were possibly heard by two jurors, though at recess. The trial judge supposedly said to other persons in the courtroom, within hearing distance of the jurors, that defense counsel was trying his patience. Counsel asked for a mistrial and asked to question the two jurors. Both requests were denied.

This court has stated that because of the great influence a trial judge has on a jury, the judge should refrain from making unnecessary comments which could prejudice one of the litigants or influence the jury. Oglesby v. State, 299 Ark. 403, 773 S.W.2d 443 (1989); Divanovich v. State, 271 Ark. 104, 607 S.W.2d 383 (1980). When considering whether a trial judge’s remarks to a defense counsel deprived a defendant of a fair trial, we look to the totality of the circumstances. Peals v. State, 266 Ark. 410, 584 S.W.2d 1 (1979). Where the record reveals the trial judge was merely irritated by defense counsel’s tactics, reversible error has not occurred. Smith v. State, 308 Ark. 603, 826 S.W.2d 256 (1992); see Peals, 266 Ark. 410, 584 S.W.2d 1. Even assuming that the jurors heard the judge’s remarks, the remarks made were mild statements expressing the trial judge’s irritation with counsel’s trial tactics. They were not the kind of comments that cause prejudice and deny a party a fair trial. Therefore, we do not find an abuse of discretion in denying the mistrial.

Appellant argues that his third motion for mistrial was denied in error. In this instance, the prosecutor attempted to impeach appellant’s prior testimony by asking on cross-examination whether he had told the arresting officers that he weighed 275 pounds. Appellant had just testified on direct examination that he weighed about 300 pounds. Appellant responded in the negative, stating the arresting officers took the 275 figure off his old driver’s license. Defense counsel moved for a mistrial which was denied. Given appellant’s negative response to the question, we cannot say he suffered any prejudice. Therefore, the trial court did not abuse its discretion in denying the mistrial.

EVIDENTIARY RULING

Appellant next contends the trial court erred in not allowing appellant to refer to a transcript of radio calls made to and from appellant’s patrol car around the time of the alleged rape. The trial court had previously allowed appellant to hand out copies of the transcript to the jury. As appellant began to testify, his counsel asked him to describe the events of the early morning, though asking him not to read from the transcript. The state objected to his using the transcript as an improper means of eliciting testimony, though appellant could use it to properly refresh his recollection. The trial court ruled that appellant could use the exhibit “for any proper purpose.”

Appellant contends the trial court erred in its application of A.R.E. Rule 612. It is impossible to see error in such a ruling when we have said that a witness may occasionally consult a writing to refresh his memory, but it is his testimony and not the writing which is to be the evidence. Sweat v. State, 307 Ark. 406, 820 S.W.2d 459 (1991). We do not read this to imply one may read from a transcript which is beyond the bounds of refreshing recollection. The trial court did not abuse its discretion in this ruling.

MOTION TO STRIKE VENIREWOMAN FOR CAUSE

Appellant next argues the trial court erred in refusing to strike venirewoman Anna Panek for cause because she had difficulty understanding the English language. Ms. Panek stated that she was a native of Holland, that she was a naturalized United States citizen, and that she had lived here for eight years. The trial court told Ms. Panek that if she had trouble understanding the witnesses or attorneys, she could raise her hand and the court would have them slow down or speak up.

The question of a juror’s qualification based on imperfect knowledge of English is one within the trial court’s discretion, and we do not reverse absent flagrant abuse of that discretion. Scifres v. State, 228 Ark. 486, 308 S.W.2d 815 (1958). We cannot determine whether the trial court abused its discretion on this point because it is not preserved for our review.

In order to preserve this point for appellate review, appellant must demonstrate that he was forced to accept Ms. Panek as a juror over his objections. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988); Watson v. State, 289 Ark. 138, 709 S.W.2d 817 (1986). This means appellant must demonstrate both that he had exhausted all his peremptory challenges and that the trial court refused to strike Ms. Panek for cause. Scherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1988); Watson, 289 Ark. 138, 709 S.W.2d 817; Conley v. State, 270 Ark. 886, 607 S.W.2d 328 (1980). The record before .us does not demonstrate that appellant had exhausted his peremptory challenges when Ms. Panek was seated as a juror. Thus, even assuming without deciding that the trial court erred in refusing to strike her for cause, appellant has not demonstrated that Ms. Panek was forced on the jury — he could have used a peremptory strike against her.

QUALIFICATION OF EXPERT WITNESS

Appellant contends the trial court erred in refusing to recognize Michael E. Vowell as an expert witness with regard to the use of police radios and fingerprints. Although the trial court did not qualify Mr. Vowell as an expert in these areas, it did allow him to answer specific questions in these areas. Appellant acknowledges that the trial court did not exclude Mr. Vowell from testifying, but simply denied the jury the opportunity of attaching more weight to Mr. Vowell’s testimony had he been qualified as an expert.

Whether a witness qualifies as an expert is a matter within the trial court’s discretion, and we will not reverse the trial court’s decision absent an abuse of that discretion. Parker v. State, 268 Ark. 441, 597 S.W.2d 586 (1980). This court has said that if some reasonable basis exists from which it can be said the witness has knowledge of the subject beyond that of ordinary knowledge, the evidence is admissible as expert testimony. Poyner v. State, 288 Ark. 402, 705 S.W.2d 882 (1986).

Appellant has failed to demonstrate the trial court abused its discretion in refusing to qualify Mr. Vowell as an expert. Granted, Mr. Vowell did testify that he received a bachelor of arts degree in 1969; that he was a narcotics agent with Drug Enforcement Agency from 1970 until 1980; that he had attended a professional photography school and worked as the State Crime Laboratory’s chief photographer from 1982 until his discharge in 1989; and that he had been a licensed private investigator since 1989. However, this testimony does not establish that he possessed knowledge considered beyond that which is ordinary knowledge in the areas of police radios and fingerprinting. Moreover, on voir dire, Mr. Vowell stated that the radios he used as a DEA agent were not the same kind of radios used in patrol cars such as appellant’s; that the only training he received in the area of fingerprinting was the usual training given to DEA agents, and that was thirteen years ago; that he had used four methods for finding latent fingerprints and taught those methods at a junior college, but had not attended any schools that taught how to classify fingerprints; and that most fingerprint experts had attended such schools.

While Mr. Vowell’s education, experience, training, skill, and knowledge may be beyond that of persons who are not law enforcement officers, we cannot say they necessarily qualify him as an expert in the areas of police radios and fingerprints. Accordingly, we cannot say the trial court abused its discretion in refusing to qualify Mr. Vowell as an expert in these two areas.

CUMULATIVE ERROR

Finally, appellant contends all of the alleged errors discussed above, when considered together, were so prejudicial as to warrant a new trial. He relies on our discussion of cumulative error in his first appeal. See Dillon, 311 Ark. at 538-40, 844 S.W.2d at 948-49.

The record does not reveal that appellant raised the cumulative error argument to the trial court nor that he moved for a new trial on the same grounds. As even constitutional arguments are waived on appeal when not argued below, we do not address this point. Robinson v. State, 314 Ark. 243, 861 S.W.2d 548 (1993). Moreover, we have considered each assertion of error and concluded no reversible error occurred in appellant’s second trial. This court does not recognize the doctrine of cumulative error when there is no error to accumulate. Vick v. State, 314 Ark. 618, 863 S.W.2d 820 (1993); Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988).

This appeal is without merit and the judgment of conviction is affirmed.


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    Sarah Sue JARBOE v. SHELTER INSURANCE COMPANY
    94-145
    877 S.W.2d 930
    Supreme Court of Arkansas
    Opinion delivered June 20, 1994
    [Rehearing denied July 11, 1994.]

      Law Office of Christopher O’Hara Carter, P.A., by: Christopher O ’Hara Carter, for appellant.

      Adams, Nichols & Evans, by: Deanna S. Evans, for appellee.
   Donald L. Corbin, Justice.

Appellant, Sarah Sue Jarboe, appeals a judgment of the Baxter Circuit Court dismissing her complaint against appellee, Shelter Insurance Company. This is the second time she has appealed the dismissal of her complaint to this court. Our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a)(ll).

As was the case in the first appeal, the facts are not in dispute. We repeat them here for convenience:

Shelter was the liability carrier for Lake County Pest Control, which sprayed Jarboe’s house on September 5, 1986. [Pest control sued Jarboe for nonpayment.] Jarboe [then filed a counterclaim] alleging] faulty spraying and sued the company and its owner in 1987 for $100,000 for personal injury and damage to her property. Pest Control and its owner then took bankruptcy in 1989, and Jarboe filed this action against Shelter as the liability carrier for Pest Control, though the coverage on Pest Control had lapsed due to nonpayment. Shelter moved to dismiss the complaint, and the circuit judge granted the motion and stated that Shelter “was not required to notify the State Plant Board of nonrenewal.”

Jarboe v. Shelter Ins. Co., 307 Ark. 287, 288, 819 S.W.2d 9, 10 (1991).

In the first appeal, we reversed the trial court’s dismissal finding that Ark. Code Ann. § 17-30-210 (1987) required Shelter to report to the State Plant Board its insured’s non-payment of premium. Jarboe, 307 Ark. 287, 819 S.W.2d 9. On remand, Shelter pursued a motion to dismiss the complaint based on our direct action statute, Ark. Code Ann. § 23-79-210 (Repl. 1992). The trial court granted the dismissal finding Jarboe’s complaint was not allowed under section 23-79-210 because it was a direct action against a liability insurer based on the negligence of its insured. The trial court also stated that Jarboe would not be allowed to substitute Lee V. Morris d/b/a Lake County Pest Control (Pest Control) as the defendant because Jarboe had previously filed a counterclaim against Pest Control which resulted in an involuntary dismissal for failure to prosecute. The one-year period to refile the claim against Pest Control had expired. Thus, Jarboe was not allowed to substitute defendants and the trial court dismissed the complaint against Shelter.

Jarboe now appeals that dismissal, arguing five reasons the dismissal was erroneous. We have considered all five arguments and conclude they are either without merit or procedurally barred.

First, Jarboe contends Shelter waived its right to a dismissal under section 23-79-210 because the original motion to dismiss was filed prior to the first appeal. This point was not presented to the trial court and we do not address arguments raised for the first time on appeal. Harvison v. Charles E. Davis & Assoc., 310 Ark. 104, 835 S.W.2d 284 (1992).

Second, Jarboe contends Pest Control is immune from suit under section 23-79-210 because its owner had filed bankruptcy when the suit against Shelter was filed. This point is wholly without merit. Ark. Code Ann. § 23-89-102 (Repl. 1992) provides that an insurer’s liability is not affected by the insured’s insolvency. The fact that Pest Control filed a petition in bankruptcy is not the type of immunity contemplated by section 23-79-210.

Third, Jarboe contends Shelter is estopped from asserting its right to dismissal because it was not until suit was filed directly against Shelter that Shelter denied coverage. This argument was not presented to the trial court and is not preserved for our review. Harvison, 310 Ark. 104, 835 S.W.2d 284.

Fourth, Jarboe argues she is entitled to file a direct action against Shelter under Ark. Code Ann. § 23-89-101 (Repl. 1992) because she is subrogated to the rights of the insured, Pest Control. This argument was not presented to the trial court and we will not address it. Harvison, 310 Ark. 104, 835 S.W.2d 284. However, we take this opportunity to point out that before section 23-89-101 becomes applicable, the injured person must have recovered a judgment against the insured tortfeasor which remains unsatisfied for thirty days. Swan v. Estate of Monette, 265 F. Supp. 362 (W.D. Ark. 1967), aff'd 400 F.2d 274 (8th Cir. 1968).

Fifth, Jarboe contends she is entitled to have her complaint against Shelter relate back to her original complaint against Pest Control under ARCP Rule 15(c). Again, the record does not indicate this point was raised below and we will not address it. Harvison, 310 Ark. 104, 835 S.W.2d 284.

All five points are without merit and are furthermore rendered moot by Jarboe’s admission in her brief that only one cause of action exists — the negligence of Lee V. Morris d/b/a Lake County Pest Control. Thus, the trial court was correct in dismissing the complaint. Our direct action statute only allows suits against insurers for the negligence of their insureds when the insurer is a charitable organization or governmental entity. Ark. Code Ann. § 23-79-210. There is no evidence that Shelter is either a charitable organization or a governmental entity. Jarboe could not substitute Pest Control as a defendant because her previous counterclaim against Pest Control had been involuntarily dismissed and the time within which she could refile the counterclaim had expired.

The appeal is wholly without merit and we affirm.


text:
    Marvella SANDERS v. Nancy MINCEY
    93-1399
    879 S.W.2d 398
    Supreme Court of Arkansas
    Opinion delivered June 27, 1994

      Paul N. Ford, for appellant.

      Joe Benson, for appellee.
   Steele Hays, Justice.

Appellant Marvella Sanders brought this action against Ms. Nancy Mincey for damages arising out of an automobile accident. After a jury verdict for the plaintiff the trial court granted a motion by Ms. Mincey for judgment n.o.v. On appeal we find the trial court erred in setting aside the jury verdict.

At approximately 6:00 a.m. on March 25, 1992 Ms. Marvella Sanders was travelling north on State Highway 5 in Baxter County, Arkansas. It had been misting that morning, and there was a heavy fog. As she entered a curve in front of the residence of Ms. Mincey, Ms. Sanders observed three white guinea hens on the highway. Ms. Sanders applied her brakes at approximately the same time as the first guinea hen struck the grill of her Blazer. As her vehicle began skidding, Ms. Sanders felt the impact of the second guinea hen and lost control of her vehicle. Ms. Sanders’ vehicle crossed the center line and collided with an on-coming vehicle.

Ms. Sanders brought suit alleging that Ms. Mincey was negligent in failing to keep her guinea hens off the highway. The jury returned a ten-person majority verdict in favor of Ms. Sanders in the amount of $35,000. In granting the judgment n.o.v. the trial court found: (1) there was no proof showing Ms. Mincey knew her guineas were ever on the highway in front of her house; (2) there was no proof that Ms. Mincey should have known the guineas would get on the highway; and, (3) there was no proof that Ms. Mincey knew or should have known guineas posed a likely danger of injury or damage to others. In addition, the trial court concluded the verdict was clearly contrary to the evidence and conditionally granted Ms. Mincey’s motion for new trial should judgment for Ms. Mincey be reversed on appeal. Ms. Sanders appeals from that order.

In reviewing the granting of a judgment n.o.v., as with a directed verdict, we will affirm only if there is no substantial evidence to support the jury verdict. Yielding v. Chrysler Motor Co., 301 Ark. 271, 783 S.W.2d 353 (1990). We review the evidence and any reasonable inferences deducible therefrom in the light most favorable to the party against whom the judgment n.o.v. was entered. Id. Substantial evidence must be of sufficient force and character to compel a conclusion one way or another; it must force or induce the mind to pass beyond suspicion or conjecture. Id.

Pursuant to AMI Civil 3rd. 1601 (1989), the jury was instructed as follows: “A person having custody of guineas has a duty to use ordinary care to keep her animals from running at large, when she knows or reasonably should know that such animals are likely to cause injury or damage to others.” The trial court found there was no proof that Ms. Mincey knew or should have known her guineas were ever on the highway in front of her house and there was no proof that Ms. Mincey knew or should have known guineas posed a likely danger of injury or damage to others. ''

The evidence, viewed in the light most favorable to Ms. Sanders, is as follows: Ms. Mincey testified she owned ten guineas on March 25, 1992. She stated the guineas had not been kept in a pen or enclosure since November or December of 1991. Ms. Mincey’s horse had damaged the chicken roost in which the guineas were kept. Ms. Mincey testified she attempted to catch the guineas; however, the chicken roost was never repaired. She stated the guineas left the premises and she considered them wild.

Although Ms. Mincey considered the guineas wild, she testified “I saw them from time to time on our property, but for three to four days at a time not on our property.” In addition, she testified “[t]hey would just maybe walk across the property through the horse pasture and then I would always see them head toward the back, the rear of the property.” Mr. Don Callentine, a neighbor of Ms. Mincey’s, testified he had observed guineas roosting in the trees on and off Ms. Mincey’s property. Further, Mr. Jim Shaw testified he had seen guineas in the highway in front of Ms. Mincey’s house prior to the accident.

There was no proof that Ms. Mincey knew the guineas had been in the road; however, we find that allowing the guineas to run at large raised a reasonable likelihood of injury under common law. In Bolstad v. Pergeson, 305 Ark. 163, 806 S.W.2d 377 (1991), the Bolstads’ dog crashed into the plaintiff’s vehicle while the dog was chasing a squirrel. In affirming the judgment in favor of the plaintiff, we noted that it is not necessary to foresee a particular injury, but only to foresee that the general act or omission is likely to cause injury. We emphasized that, although the dog had not exhibited a penchant for crashing into cars, the dog had run at large before and chased squirrels. Further, we stated: “we cannot say that a dog running at large and chasing squirrels, with all the disruption that entails, either in a parking lot or on a city street did not raise a reasonable likelihood of injury under common law.”

It is well established that the owner of livestock is liable when damage results from his intentionally or negligently permitting animals to run at large. Smith v. R.A. Brooks Trucking Co., 280 Ark. 510, 660 S.W.2d 1 (1983). In Van Houten v. Pritchard, 315 Ark. 688, 870 S.W.2d 377 (1993), we noted that “owners of cattle, horses, and other large farm animals that could cause substantial damage if allowed to run at large have a duty to control their animals.” (Emphasis supplied.) Indeed, our cases which have addressed the liability of a livestock owner have involved the owners of large farm animals such as cattle and horses. Smith v. R.A. Brooks Trucking Co., 280 Ark. 510, 660 S.W.2d 1 (1983); Cosby v. Oliver, 265 Ark. 156, 577 S.W.2d 399 (1979); Prickett v. Farrell, Adm’r, 248 Ark. 996, 455 S.W.2d 74 (1970). However, Ark. Code Ann. § 5-62-122 (Repl. 1993) provides in part:

(a) A person commits the offense of permitting livestock to run at large if, being the owner or person charged with the custody and care of livestock, he knowingly permits such livestock to run at large.
(b) For purposes of this section, livestock includes horses, mules, cattle, goats, sheep, swine, chickens, ducks, and similar animals and fowl commonly raised or used for farm purposes.

(Emphasis supplied.) Based upon this statute, chickens and similar fowl commonly raised or used for farm purposes are considered livestock. The violation of a statute prohibiting livestock from running at large is evidence of ordinary negligence. Rogers v. Stillman, 223 Ark. 779, 268 S.W.2d 614 (1954).

In Oliver v. Jones, 239 Ark. 572, 393 S.W.2d 248 (1965), we concluded there was sufficient testimony of a cattle owner’s negligence to take the case to the jury. As Jones was driving his car on a state highway, he struck a yearling which resulted in damage to the car. With regard to Oliver’s negligence, we noted the Sheriff had testified regarding a continuous complaint of cattle running at large on the highway at the point where the accident occurred. Further, one witness testified he had seen the defendant’s cattle on the highway and another witness testified the cattle had been on the highway, at or near this place, for about five hours before the mishap.

There are circumstances under which an owner may be liable for failure to exercise ordinary care to control or restrain a domestic animal. See AMI Civil 3rd. 1601 (1989); Van Houten, supra. In the instant case, Ms. Mincey permitted ten guinea hens to run at large for nearly four months. Ark. Code Ann. § 5-62-122 prohibits an owner of livestock, including fowl, from knowingly permitting such livestock to run at large. Ms. Mincey was aware that the guineas were on her property which is immediately adjacent to State Highway 5. Because the guineas were allowed to run at large in such close proximity to the highway, we find there was a reasonable likelihood that the guineas would get on the highway and cause injury. Even with a small animal such as a guinea hen, the possibility of ten animals in the highway raises a reasonable likelihood of injury to motorists travelling on the roadway. Thus, we find there is substantial evidence to support the jury verdict.

The appellee contends the appellant was negligent in failing to keep a proper lookout, failing to maintain control of her vehicle, and failing to drive at a reasonable speed. The testimony indicated it was misty and foggy at the time of the accident. Roger Vickers, Arkansas State Police Officer, testified there were eighty feet of skid marks from the appellant’s vehicle. In the officer’s opinion, the appellant was driving too fast and took the wrong evasive action. Officer Vickers testified the guinea hen was not big enough that Ms. Sanders should have even attempted to avoid hitting the hen. Further, Ms. Sanders testified she had observed some guineas in the area on prior occasions. However, Ms. Sanders testified she was driving the road safely at the time of the accident. The question of credibility of a witness is one for the jury and not for the trial court. Mays v. State, 303 Ark. 505, 798 S.W.2d 75 (1990).

. As to the conditional granting of a new trial, the test an appellate court applies on review of the granting of the motion is whether the trial court abused its discretion. Razorback Cab of Ft. Smith, Inc. v. Martin, 313 Ark. 445, 856 S.W.2d 2 (1993). A trial court may not substitute its view of the evidence for that of the jury and grant a new trial unless the verdict is clearly against the preponderance of the evidence. Id.-, Ark. R. Civ. P. 50(a). A showing of abuse is more difficult when a new trial has been granted because the party opposing the motion will have another opportunity to prevail. Razorback, supra.

Because there was testimony of a substantial nature which supported the jury’s conclusion that Ms. Mincey should have known the guinea hens posed a likely danger of injury or damage to others, we cannot agree that the verdict was clearly contrary to the evidence. We find the trial court substituted its view of the evidence in lieu of the jury and the conditional grant of a new trial was a manifest abuse of discretion.

Accordingly, we reverse the judgment n.o.v. and remand with instructions to reinstate the jury’s verdict.


text:
    Timothy D. SUMMERS v. Michael GRIFFITH
    93-1282
    878 S.W.2d 401
    Supreme Court of Arkansas
    Opinion delivered June 27, 1994
    [Rehearing denied September 12, 1994.]

      Tona M. DeMers, for appellant.

      J. Larry Allen, for appellee.
   Steele Hays, Justice.

This appeal challenges a decree of adoption granted four years earlier. Timothy Summers, appellant, married Kristy Griffith in December, 1982, and a daughter was born in April, 1985. Timothy and Kristy were divorced in June, 1986. Kristy was awarded custody with reasonable visitation rights granted to Timothy. In September, 1986, Timothy was convicted of robbery and sentenced to five years imprisonment. Kristy married Michael Griffith, appellee, in October, 1986.

While Timothy was still incarcerated Michael Griffith filed for adoption of the minor child and Timothy objected. A hearing was held in July, 1988. Timothy testified at the hearing in opposition to the adoption. On August 17, 1988, a decree was entered granting Michael’s request for adoption. No appeal was taken.

After his release from prison in October, 1992, Timothy filed a motion to set aside the 1988 adoption. A hearing on the motion was held on March 17, 1993. The trial court denied the motion and appellant brings this appeal, asserting that the court granting the adoption did not have jurisdiction, the decree was obtained by fraud, and the appellant was in prison and under a legal disability during the time for appeal.

In denying appellant’s motion, the trial court relied on Ark. Code Ann. § 9-9-216 (1987):

(a) An appeal from any final order or decree rendered under this subchapter may be taken in the manner and time provided for appeal from a judgment in a civil action.
(b) Subject to the disposition of an appeal, upon the expiration of one (1) year after an adoption decree is issued, the decree cannot be questioned by any person including the petitioner, in any manner upon any ground, including fraud, misrepresentation, failure to give any required notice, or lack of jurisdiction of the parties or of the subject matter unless, in the case of the adoption of a minor, the petitioner has not taken custody of the minor or, in the case of the adoption of an adult, the adult had no knowledge of the decree within the one-year period.

Appellant argues the trial court failed to make the required findings in the original order for adoption and therefore had no subject matter jurisdiction to grant a decree of adoption.

We need not address the arguments raised on appeal. Timothy D. Summers has no standing to set aside the adoption decree and is procedurally barred to proceed in this matter under both Ark. Code Ann. § 9-9-216 (Repl. 1993) and ARCP Rule 60(c)(4). Michael Griffith filed a petition for the adoption of Tiffany Summers on March 30, 1988, and Mr. Summers received notice of Griffith’s petition. Summers then filed a formal objection, attended a hearing on the adoption petition, but failed to appeal from the adoption decree which was entered on August 17, 1988. In fact, he waited until October 8, 1992, or more than four years, to file his motion to set aside the decree.

Indisputably, the probate court in this matter had subject matter jurisdiction to enter the adoption decree. In addition, Summers did not allege that extrinsic fraud occurred which is required in these circumstances in order to vacate or modify a decree which had been entered for more than ninety days. Rule 60(c)(4). Applying § 9-9-216, Summers was also barred since that statute provides an adoption decree cannot be questioned by any person in any manner upon any ground after the decree has been issued for more than one year.

Affirmed.


author: David Newbern, Justice.

text:
    Leon Ray ROBINSON v. STATE of Arkansas
    CR 93-1273
    878 S.W.2d 405
    Supreme Court of Arkansas
    Opinion delivered June 27, 1994

      Janet L. Thornton, for appellant.

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

Leon Ray Robinson was convicted of two counts of delivery of a controlled substance. He contends the Trial Court erred by failing to grant a continuance he requested before trial in order to interview a previously unavailable witness. He also contends the Trial Court erred by imposing a life sentence not shown as an option on the form given to the jury for the purpose of stating the sentence to be imposed. We hold Mr. Robinson was not prejudiced by denial of his continuance motion as his lawyer was allowed to interview the witness before the trial. Nor do we find any prejudice in the defective form given to the jury, as the sentence imposed had been the subject of a jury instruction and was within the range of sentences provided by law for the offense charged.

There was evidence from which the jury could have found the following. Two undercover officers were introduced to Mr. Robinson by a confidential informant. They purchased two twenty-dollar rocks of crack from Mr. Robinson. On a later occasion, the confidential informant arranged another drug sale by Mr. Robinson at a convenience store.

Mr. Robinson was charged with two counts of delivery of a controlled substance. He was tried and convicted on each count and sentenced to fifteen years for the first count and life imprisonment for the second.

1. Continuance

The standard of review for alleged error resulting from denial of a continuance is abuse of discretion. Golden v. State, 265 Ark. 99, 576 S.W.2d 955 (1979). Absent a showing of prejudice by the defendant, we will not reverse the decision of a trial court. Burton v. State, 314 Ark. 317, 862 S.W.2d 252 (1993).

The State listed Jana Shyrock Chambers, the confidential informant, as a witness on July 2, 1993. No address or telephone number was provided. Mr. Robinson’s attorney sought the continuance to have time to interview Ms. Chambers. The State responded that Ms. Chambers was incarcerated at the time she was listed as a witness, and thus was available.

Mr. Robinson’s attorney first met and questioned Ms. Chambers on the morning of trial, July 8, 1993, in the presence of police officers. Mr. Robinson’s attorney objected to having to interview Ms. Chambers under those circumstances and requested a continuance. The prosecutor responded that Ms. Chambers was on the subpoena list and had stated that she had no desire to speak to Mr. Robinson’s attorney.

The Trial Court asked what could be gained if the case were continued, and the attorney stated she wished to delve into Ms. Chambers’ relationship with Mr. Robinson’s family and her motive for informing against Robinson. The Trial Court offered Mr. Robinson’s attorney some time before the trial to question Ms. Chambers privately. The attorney responded, “Okay, if I could have like just two or three minutes with her.” She then questioned Ms. Chambers further. She returned and informed the Trial Court that Ms. Chambers had said everything she was going to say to her. The Trial Court asked what benefit any additional time would provide, and Mr. Robinson’s attorney responded, “Nothing further than just, I guess, a wearing-down process you might say for her to tell me something. But at this point she can’t tell me anything that I can use at trial.” The continuance was denied.

The State is required to notify a defendant of the names and addresses of witnesses it will use in its case-in-chief, upon a timely request, in sufficient time to permit beneficial use by the defense. See Ark. R. Crim. P. 17.1 (a)(i); Birchett v. State, 289 Ark. 16, 708 S.W.2d 625 (1986). Mr. Robinson contends the time allowed to interview Ms. Chambers was insufficient.

This appeal is factually similar to Burton v. State, supra. There, the prosecutor failed to list two police officers and a chemist with the State Crime Laboratory as witnesses. Mr. Burton’s attorney objected to their testimony, which the Trial Court ruled admissible. While not condoning the prosecutor’s actions, we affirmed the Trial Court’s decision. We held the testimony of the witnesses did not prejudice Mr. Burton. We said, with respect to one of the witnesses, the Trial Court had remedied the prosecutor’s failure to disclose by allowing the defense counsel the opportunity to interview the undisclosed witness before trial.

Here, the Trial Court allowed Mr. Robinson’s attorney the time she requested to interview Ms. Chambers before trial. When she informed the Trial Court that further questioning of Ms. Chambers would probably produce no more information, the continuance was denied. There was no abuse of discretion, and in any event, Mr. Robinson suffered no prejudice.

2. Sentencing

Mr. Robinson was charged with two counts of delivery of a controlled substance. Each is a Class Y felony, which pursuant to Ark. Code Ann. § 5-64-401 (a)(l)(i) is punishable by 10 to 40 years imprisonment, or life; and a fine not exceeding $25,000. As Mr. Robinson had a previous drug conviction, Ark. Code Ann. § 5-64-408(a) allowed him to be subjected to twice the term and fine authorized.

The jury was instructed that Mr. Robinson could be sentenced to life imprisonment. The verdict form given to the jury merely provided, “not less than 10 years nor more than 80 years.” The jury returned a verdict of fifteen years on the first count and wrote in “life” on the second count, ignoring the limit apparent on the form.

Mr. Robinson made no objection to the sentence. We have repeatedly stated we will not address issues presented for the first time on appeal. Robinson v. State, 314 Ark. 243, 861 S.W.2d 548 (1993). No authority is cited in support of the argument that the sentence was imposed erroneously. This Court will not address arguments not supported by authority or convincing argument. Franklin v. State, 314 Ark. 329, 863 S.W.2d 268 (1993). Finally, the jury was correctly informed that Mr. Robinson was eligible for a life sentence. Absent a showing of prejudice, we will not reverse. See Hall v. State, 315 Ark. 385, 868 S.W.2d 453 (1993).

Pursuant to Ark. R. Sup. Ct. 4-3(h) the record in this case has been examined, and no rulings adverse to Mr. Robinson constituting prejudicial error were found.

Affirmed.


text:
    James D. MEEKS v. STATE of Arkansas
    CR 94-13
    878 S.W.2d 403
    Supreme Court of Arkansas
    Opinion delivered June 27, 1994

      Jan Thornton, for appellant.

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

The appellant, James D. Meeks, was charged along with two accomplices, his brother Curtis Meeks and a Howard Malone, with the offense of aggravated robbery of a store in Junction City. He was also charged as a habitual offender having seven prior felony convictions. At trial, the state’s evidence included Malone’s testimony which named Meeks as having participated in the commission of the crime. By jury verdict, James Meeks was found guilty of the charge and sentenced as a habitual offender to forty years imprisonment. His sole point for reversal is that the state’s corroborating evidence was legally insufficient to tend to connect James Meeks with the commission of the aggravated robbery. We disagree.

The statute controlling the corroborating evidence issue raised by James Meeks in this appeal is Ark. Code Ann. § 16-89-111(e)(1) (1987), which provides as follows:

A conviction cannot be had in any case of felony upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof.

In construing § 16-89-111(e)(1), this court has said that the test for determining the sufficiency of corroborating evidence is whether, if the testimony of the accomplice were totally eliminated from the case, the other evidence independently establishes the crime and tends to connect the accused with its commission. Daniels v. State, 308 Ark. 53, 821 S.W.2d 778 (1992); Henderson v. State, 279 Ark. 435, 652 S.W.2d 16 (1983). Corroboration must be evidence of a substantive nature since it must be directed toward proving the connection of the accused with the crime and not directed toward corroborating the accomplice’s testimony. Id. In addition to being substantive, the corroborating evidence must be substantial which means stronger evidence than that which merely raises a suspicion of guilt. Id. In other words, it is evidence which tends to connect the accused with the commission of the crime, but it is something less than that evidence necessary in and of itself, to sustain a conviction. Id. And finally, corroborating evidence may be circumstantial, but it must be of a material nature and legitimately tend to connect the accused with the crime.

On appeal, this court views the evidence in the light most favorable to the appellee, Orsini v. State, 281 Ark. 348, 665 S.W.2d 245 (1984), and in doing so, we conclude that the state’s testimony and evidence establish the crime and tend to connect James Meeks with the commission of the aggravated robbery with which he was charged. The state’s first witness, Richard McDonald, testified that, on January 14, 1993, he closed his store at 8:00 p.m. and upon leaving, he was confronted by two men wearing ski masks. According to McDonald’s and Police Chief Sentiff’s testimony, McDonald gave a description of the robbers as one being about six foot and of slender build and the other being short and middle-to-heavy in stature. Both men bore weapons but the taller man demanded McDonald’s money and McDonald responded by turning over approximately $3,700. One of the bills was a 1934 series and had been marked with the figure 600 in red ink. The two robbers then fled on foot from the crime scene, after which McDonald called the police and described the men’s physical characteristics and their clothing.

During Officer Sentiff’s interview of McDonald at the crime scene, Sentiff recalled having seen a low-riding gray pickup truck with a burgundy top and a Texas license plate. Because it did not “fit the area,” he notified the sheriff’s office to be on the lookout for the truck. A description of the truck and two robber suspects was broadcast, and about forty minutes after the robbery, the truck was located and stopped in Bernice, Louisiana, which is located about twenty miles from Junction City. A Bernice police officer, Clyde Andrews, had received a call concerning a pickup truck involved in an aggravated robbery, and he subsequently saw and stopped a vehicle matching the truck’s description. James Meeks was driving the pickup truck and his brother Curtis and Howard Malone were passengers. Upon a consent search of the truck, Andrews found nine millimeter bullets and a .380 handgun.

Sentiff and McDonald drove to Bernice where McDonald identified James Meeks and Howard Malone by their physical characteristics as being the ones who robbed him. McDonald also testified that he had known Malone and the Meeks brothers prior to the robbery. Sentiff said that McDonald had pointed out James Meeks as the one who had initially threatened McDonald with a nine millimeter, black-type weapon.

After the Meeks brothers and Malone were taken to the Bernice Police Station, the officers obtained a search warrant and found about $3,600 in the air filter of the Meeks truck. The marked $100 bill described by McDonald as being a part of the monies stolen was a part of the stash found in the vehicle.

In sum, the state’s evidence tended to identify James Meeks as one of the two robbers who threatened and took McDonald’s money. If that were not enough, the evidence also placed James Meeks in constructive possession of the stolen money found only forty minutes after the crime took place in the truck he was driving. Littlepage v. State, 314 Ark. 361, 863 S.W.2d 276 (1993). These factors, along with the other evidence set out above, are clearly sufficient to establish the crime and James Meeks’s connection with, including his participation in, the robbery of McDonald. Accordingly, we affirm.

       McDonald’s description did not include any details regarding the clothing worn by the robbers.


author: Marcella J. Taylor,

text:
    James Henry BIGGERS v. STATE of Arkansas
    CR 93-913
    878 S.W.2d 717
    Supreme Court of Arkansas
    Opinion delivered June 27, 1994
    [Rehearing denied September 12, 1994.]

      Jeff Rosenzweig, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   Marcella J. Taylor,

Special Justice. James Henry Biggers was convicted of two counts of delivery of a controlled substance for which he received a sentence of 40 years imprisonment and a fine of $25,000 on each count. Appellant raises six points of error on appeal. None has merit, and we affirm the trial court’s ruling.

Appellant’s arrest and subsequent conviction stemmed from his sale of cocaine to Robert Thomas, an undercover agent of the First Judicial District Drug Task Force, on the evenings of September 20 and 21, 1991. Appellant was arrested pursuant to an arrest warrant dated November 7, 1991, and charged by prosecutor’s information in January 1992. During the discovery phase of the trial, appellant found, inter alia, that Thomas was not a certified law enforcement officer, that Thomas had not been truthful with the First Judicial District Drug Task Force during the hiring process, that Thomas had previously been suspended by other law enforcement agencies for misconduct which included instances of lying and an investigation for theft of property, and that the First Judicial District Drug Task Force had failed in several respects to comply with the regulations of the Commission on Law Enforcement Standards and Training (“the Law Enforcement Commission”) in the hiring of Thomas.

At trial, Officer Thomas testified that he purchased cocaine from appellant for $100 on the evening of September 20, 1991, at Augusta and that he returned to Augusta the following evening and made a second $60 purchase of cocaine from appellant. Thomas also testified that an individual named Buster Driver had taken him to appellant’s residence for the purpose of. purchasing cocaine on both occasions. During cross-examination, Thomas was asked about and admitted to the prior instances of lying and the investigation of him for theft of property. Appellant was not allowed to present extrinsic evidence of Thomas’s prior misconduct.

Officer Timothy McMahon, another undercover officer, testified that he and Thomas were in separate vehicles on the evenings of the undercover operations, but that he witnessed the drug buy between appellant and Thomas on September 20. McMahon also testified that although he saw Thomas and appellant in close proximity to each other, he was not able to see the actual purchase on September 21, 1991.

The first two assignments of error raised by appellant are that the trial court erred in failing to dismiss the prosecution against him because: (a) the hiring of Thomas was in violation of the regulations of the Law Enforcement Commission; (b) the arrest was illegal because the magistrate who issued the arrest warrant was misled by the officer who swore out the affidavit of probable cause; and (c) there was prosecutorial misconduct during the discovery phase.

Appellant points to numerous errors in the hiring of Thomas. Thomas was not a certified law enforcement officer. Although there was testimony by the officer in charge of hiring Thomas that he spoke twice with Thomas’s former Chief of Police about Thomas, no written documentation of the background check was maintained in the file as required by the regulations of the Law Enforcement Commission. Thomas was not required to have a psychological examination prior to hiring as required by the regulations. The initial employment report was not filed with the Law Enforcement Commission within ten days of hiring as required by the regulations.

Appellant cites Ark. Code Ann. § 12-9-108(a) (Supp. 1989), which states: “Actions taken by law enforcement officers who do not meet all of the standards and qualifications set forth in this subchapter or made by the Arkansas Commission on Law Enforcement Standards and Training shall not be held invalid merely because of the failure to meet the standards and qualifications.” That section, according to appellant, does not save the lack of adherence to the regulations by the First Judicial District Drug Task Force because the regulations are requirements placed upon the hiring agency, not the individual officer. In this assertion, appellant is correct. But appellant also asserts that the prosecution against him was invalid because Thomas was not hired in compliance with the minimum standards set by the Law Enforcement Commission. In that assertion, appellant is not correct.

Ark. Code Ann. § 12-9-108(a) (Supp. 1989) is inapplicable to the facts of this case. Thomas was not the arresting officer. He was the person who made the purchases from appellant and who served as a witness against appellant. He is not disqualified from testifying because he was not a certified law enforcement officer. Cherry v. State, 302 Ark. 462, 791 S.W.2d 354 (1990). His role in this matter was not substantially different than that of a confidential informant and the trial court did not abuse its discretion in refusing to dismiss the prosecution against appellant because Thomas was not hired in compliance with the regulations of the Law Enforcement Commission.

Appellant also asserts that the prosecution against him should have been dismissed because the arrest was illegal. The alleged illegality stems from the fact that the officer who swore out the affidavit did not reveal to the magistrate who issued the arrest warrant that Thomas was not a certified law enforcement officer, that the First Judicial District Drug Task Force failed to adhere to the regulations of the Law Enforcement Commission in the hiring of Thomas, that Thomas had been suspended from another law enforcement agency for lying to his supervisors, and that Thomas’s written report of the cocaine purchases from appellant differed from his written report of his cocaine purchase from Buster Driver.

An illegal arrest, without more, has never been viewed as either a bar to subsequent prosecution or an absolute argument against a valid conviction. United States v. Crews, 445 U.S. 463 (1980); Pipes v. State, 22 Ark. App. 235, 238, 738 S.W.2d 423 (1987). An invalid arrest may call for the suppression of a confession or other evidence, but it does not entitle a defendant to be discharged from responsibility for the offense. O'Riordan v. State, 281 Ark. 424, 426, 665 S.W.2d 255 (1984); Singleton v. State, 256 Ark. 756, 510 S.W.2d 283 (1974).

Appellant raises a Franks v. Delaware argument in asserting that the officer who swore out the affidavit of probable cause willfully misled the magistrate. See Franks v. Delaware, 438 U.S. 154 (1978). In Franks, the Court addressed the issue of the validity of a search warrant issued pursuant to an affidavit which contained a false statement, knowingly and intentionally made, or made with reckless disregard for the truth. The issue of omissions, rather than false statements by the affiant, was recently addressed by this court in Pyle v. State, 314 Ark. 165, 862 S.W.2d 823 (1993), in which we noted that the standards articulated in Franks require a knowing intent to deceive, or a reckless disregard of truth. Pyle, 314 Ark. at 175, 862 S.W.2d at 828. Matters omitted must be material circumstances which contradict or dispel the incriminating factors in the affidavit and which render what is in the affidavit effectively false because of their nondisclosure. Id.

Appellant presented no evidence of a knowing intent to deceive the magistrate or reckless disregard for the truth. Officer Birchler, the affiant, testified that he was unaware of Thomas’s uncertified status, of any irregularities in the hiring of Thomas, or of any instances of prior misconduct on the part of Thomas. Additionally, we cannot say that this information is a material circumstance which contradicts the incriminating factors in the affidavit or renders what was in the affidavit effectively false because of its nondisclosure.

Appellant’s argument with regard to the differences in the reports made by Thomas following the cocaine purchases from appellant and from Buster Driver presupposes that Driver was charged with the same sale as was appellant. There is no evidence in the record to support that supposition; the proffered evidence (Thomas’s reports) tends to show that Thomas made two buys the night of September 20 — one from Driver and a later one from appellant. The arrest was not illegal and the trial court did not abuse its discretion in denying appellant’s motion to dismiss the prosecution.

Appellant also argues that the prosecution should have been dismissed because of prosecutorial misconduct in the discovery phase. Appellant’s discovery requests centered around gathering information about Thomas, who, by the time of appellant’s arrest, had left the employ of the First Judicial District Drug Task Force and was apparently residing in Louisiana. Appellant points to the slowness with which the prosecutor complied with discovery requests and misstatements by the prosecutor regarding Thomas’s status as a certified officer, the existence of a video tape of the purchases, and the representation that notes from a 1986 background check of Thomas made by the El Dorado Police Department were notes from the 1991 background check of Thomas made by the First Judicial District Drug Task Force.

The key in determining if a reversible discovery violation exists is whether the defendant was prejudiced by the prosecutor’s failure to disclose. Burton v. State, 314 Ark. 317, 862 S.W.2d 252 (1993). Appellant demonstrates no prejudice. Prior to the trial appellant was fully aware that Thomas was not a certified law enforcement officer, that no video tape existed, and that the notes of the background check on Thomas were generated in 1986 by the El Dorado Police Department. Appellant enlisted the assistance of the trial court which ordered the prosecutor to turn over all information about Thomas in his possession and in the possession of the First Judicial District Drug Task Force. The trial court also ordered several other law enforcement agencies in the state and the Arkansas Employment Security Division to turn over all information in their respective files about Thomas. While it appears the prosecutor did not turn over all information about Thomas in the State’s possession as quickly as it perhaps should have, it is clear from the record that long before the trial appellant received all information which he requested. Dismissal of the charges against him for prosecutorial misconduct in discovery was not warranted.

Appellant’s third assignment of error is that his right to present a defense was unconstitutionally restricted by the trial court. The main thrust of appellant’s defense was an attack upon the credibility of Thomas. Appellant of course wished to prove Thomas’s character in order to establish that he acted in conformance therewith in the reporting of and testifying about his purchase of cocaine from appellant.

Ark. R. Evid. 404 provides that evidence of a witness’s character or a trait of his character is not admissible to prove that he acted in conformance therewith except in accordance with Ark. R. Evid. 608. Ark. R. Evid. 608 provides that the character of a witness may be attacked in one of two ways: (a) by evidence in the form of opinion or reputation for truthfulness or untruthfulness; or (b) by specific instances of truthfulness or untruthfulness. Rule 608(b) states in pertinent part:

Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination .... (Emphasis supplied.)

Appellant was allowed to cross-examine Thomas not only about the specific instances of lying, but also about the investigation for theft of property. Thomas admitted to lying to his supervisors which resulted in suspension and that he had been the subject of an investigation for theft of property. Rule 608(b) expressly prohibits the introduction of extrinsic evidence to prove such misconduct, even if the witness denied the event. Rhodes v. State, 276 Ark. 203, 634 S.W.2d 107 (1982); Urquhart v. State, 30 Ark. App. 63, 783 S.W.2d 864 (1990). Appellant asserts that he should have been allowed to offer extrinsic evidence about Thomas’s prior misconduct under either Ark. R. Evid. 404(b) to show Thomas’s “habit” of lying, or under his constitutional rights to due process, fair trial, compulsory process and confrontation.

We first note that Ark. R. Evid. 404(b) is inapplicable to show a habit of lying. Habit may be proved under Ark. R. Evid. 406 by testimony in the form of an opinion or by specific instances of conduct sufficient in number to warrant a finding that the habit existed or that the practice was routine. Appellant proffered no evidence of Thomas’s habit of lying about drug purchases sufficient in number to warrant a finding that the habit existed or that Thomas routinely lied.

In addition, we recently observed in Larimore v. State, 317 Ark. 111, 877 S.W.2d 570 (1994), that a trial court has wide latitude to impose reasonable limits on cross-examination based upon concerns about confusion of issues or interrogation that is only marginally relevant. At issue in Larimore was evidence of the state medical examiner’s findings in other investigations which were totally unrelated to the theory put forth by him during the trial of Larimore. The purpose of the proffered evidence was to impeach the medical examiner’s credibility. Because the findings in other investigations were totally unrelated to the theory advanced against Larimore, we held that they were not consequential to a determination of whether the medical examiner’s theory was to be believed and that the trial court did not abuse its discretion in refusing to allow the proffered evidence. Id.

Here appellant’s proffered evidence was not that Thomas had previously lied about drug purchases. Appellant proffered documentary evidence regarding Thomas’s prior instances of untruthfulness and the reports of the investigation for theft of property. Appellant stipulated that the authors of the documents would testify in accordance with the contents of the documents, if allowed to testify. In short, the extrinsic evidence which appellant wished to offer was no more than that about which he was allowed to question Thomas and about which Thomas admitted.

We cannot say that appellant’s constitutional rights to due process, fair trial, compulsory process, and confrontation were violated by the exclusion of the proffered extrinsic evidence or that the trial court abused its discretion. We will not disturb the discretion of the trial court upon review in the absence of a showing of abuse. Larimore v. State, supra; Warren v. State, 314 Ark. 192, 862 S.W.2d 222 (1993); Bennett v. State, 308 Ark. 393, 825 S.W.2d 560 (1992).

The fourth and fifth assignments of error raised by appellant are that the trial court erred in not granting either of his two motions for a mistrial. One motion for mistrial was made when inadmissible evidence came before the jury. The second motion for mistrial was made during the prosecutor’s rebuttal closing argument. A mistrial is a drastic remedy which should be resorted to only when there has been an error so prejudicial that justice cannot be served by continuing the trial. See, e.g., Richmond v. State, 302 Ark. 498, 791 S.W.2d 691 (1990). The granting of a mistrial lies within the sound discretion of the trial court. King v. State, 312 Ark. 89, 94, 847 S.W.2d 37 (1993). We will not reverse the discretion of the trial judge in the absence of an abuse of that discretion. King v. State, 298 Ark. 476, 769 S.W.2d 407 (1989).

According to Thomas’s reports of the cocaine purchases on September 20, Buster Driver referred to appellant as the “big dope man”. Prior to trial appellant moved to exclude any testimony indicating that appellant was a major drug dealer. The State responded that it had no intention of asking for such testimony.

During the trial, the prosecutor asked the following open-ended question to which appellant did not object: “You said . . . Driver took you to him. Would you describe how that took place? Go through and tell us what happened at this time. I’m going to kind of turn it over to you to tell us the scenario [sic] was set up and what took place.” Thomas gave the following answer:

Well, I met with Driver there between the liquor store. .. . Driver offered to take me away from that area to where I could purchase some drugs. He led me on to Fourth Street to T.J. Biggers’ residence. In route there I told him I was interested in spending $100.00. Once we got there he said that he had contact with T.J., that he was the big man in town and —

Appellant objected and moved for a mistrial. The trial court denied the motion for a mistrial, but gave the following admonition to the jury: “Members of the jury, the last response by the witness, the Court has ruled that’s an inadmissible response. You are not to consider that in any way in your consideration of this case.”

We have held that admonitions to the jury may be sufficient to cure statements by a witness, not elicited in bad faith, relating to other criminal activity of the accused. See, e.g., Strawhacker v. State, 304 Ark. 726, 804 S.W.2d 720 (1991); Ronning v. State, 295 Ark. 228, 748 S.W.2d 633 (1988). The statement by Thomas was not solicited in bad faith. The admonition to the jury was that they were not to consider it in any way during their consideration of the case. The trial court did not abuse its discretion in refusing to grant a mistrial. We also note on this point that the record reveals that appellant failed to obtain a ruling from the trial court on his motion to exclude the evidence. It was appellant’s burden to obtain a ruling on his motion. Burnett v. State, 299 Ark. 553, 776 S.W.2d 327 (1989). However, even if appellant had obtained a ruling on his motion, the result would be no different.

Appellant also sought a mistrial following a remark made by the prosecutor during the rebuttal closing argument in which he stated: “Now, has anybody got any evidence or brought any evidence to you that Robert Thomas has ever lied about anything under oath in his entire life?” Appellant’s assertion is that the State was allowed to exclude extrinsic evidence (that Thomas had previously lied under oath) and then improperly used the excluded evidence as a sword against appellant. However, appellant’s proffered evidence, proffered exhibit 6, does not show that Thomas lied under oath; rather it shows that when under oath, Thomas admitted that he had previously lied to a deputy prosecutor in the Thirteenth Judicial District.

Further, appellant’s closing argument raised the matter of Thomas’s prior instances of lying and implied that Thomas had lied during his testimony. The State is allowed to comment on those matters raised by the defense within its closing argument. Robinson v. State, 275 Ark. 473, 467, 631 S.W.2d 294 (1982); Ruiz & Van Denton v. State, 265 Ark. 875, 900, 582 S.W.2d 915 (1979). The trial court did not abuse its discretion in denying appellant’s motion for a mistrial.

Appellant’s sixth and final assignment of error is that the trial court should have quashed the jury panel because of the sheriff’s assistance to the prosecutor, the wrongful removal of a seated juror, and the empaneling of an all-white jury.

Appellant has the burden of proving the systematic exclusion of members of his racial group from the venire. Walker v. State, 314 Ark. 628, 864 S.W.2d 230 (1993). When the jury panel is drawn by random selection, a showing that a particular jury panel is not representative of the racial composition of the population will not make a prima facie showing of racial discrimination. Cleveland v. State, 315 Ark. 91, 865 S.W.2d 285 (1993); Thomas v. State, 289 Ark. 72, 709 S.W.2d 83 (1986). Appellant concedes that the evidence shows that the selection of the jury was the result of random selection of the jury panel. The trial court did not abuse its discretion in failing to quash the jury panel.

Appellant’s other arguments for seeking to quash the jury panel are related. During voir dire, the court asked whether anyone had been arrested or charged with any crime. No one responded. During the seating of the jury, the sheriff pointed out to the prosecutor that a seated juror had been previously arrested. Appellant objected to the sheriff assisting the prosecutor, asserting that the sheriff, who has a statutory duty to summon the jurors, becomes an extension of the court or an officer of the court. The sheriff is not an extension of the court; he is the chief law enforcement officer of the county. His consultation with the prosecuting attorney about the seating of a juror whom he believed had not been candid with the trial court was not improper; nor did it create the impression of a partial tribunal.

Appellant asserts that the removal of the seated juror, Beverly Walker, should have caused the trial court to quash the jury panel. However, the record reflects that appellant did not ask the trial court to quash the jury panel because of the removal of Ms. Walker. Additionally, appellant failed to show how he was prejudiced by the seating of a juror in place of Walker. Sutherland v. State, 292 Ark. 103, 728 S.W.2d 496 (1987).

Walker was excused for cause following an in camera hearing during which she admitted that she had once been held overnight in the jail when her boyfriend was arrested on a drug charge and that she had not responded to the court’s question as to whether anyone had ever been arrested or charged with a crime. Her failure to affirmatively respond to the question was the basis for the State’s challenge for cause. The decision to excuse a juror for cause rests within the sound discretion of the trial court and will not be overturned absent an abuse of discretion. Cox v. State, 313 Ark. 184, 853 S.W.2d 266 (1993). We find no abuse of discretion.

Affirmed.

Corbin, J., not participating.


author: Per Curiam.

text:
    Albert Lewis HUGGINS v. STATE of Arkansas
    CR 94-564
    877 S.W.2d 935
    Supreme Court of Arkansas
    Opinion delivered June 27, 1994
    Motion for Rule on the Clerk; granted.

      Addie M. Burks, for appellant.
    No response.
   Per Curiam.

Appellant has filed a motion for a rule

on the clerk. His attorney, Addie M. Burks, has admitted that the notice of appeal was filed prematurely on February 15, 1994, while his motion for a new trial was still pending. Since his attorney has admitted his responsibility, that is good cause in a criminal case to grant the motion for a rule on the clerk.

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