author: Per Curiam. Robert H. Dudley, Justice,

text:
    IN RE: PETITION OF THE ARKANSAS BAR ASSOCIATION TO AUTHORIZE PAYMENT OF A REFERRAL FEE TO ITS LAWYER REFERRAL SERVICE
    95-1323
    913 S.W.2d 768
    Supreme Court of Arkansas
    Opinion delivered January 22, 1996

      William A. Martin, Exec. Dir. of the Arkansas Bar Ass’n, by: Ann West.

   Per Curiam.

The Arkansas Bar Association, by and through its Lawyer Referral Service Committee, has petitioned this court pursuant to Ark. Code Ann. § 16-22-101 (a) (Repl. 1994) for approval of the operation of its Lawyer Referral Service. The Arkansas Bar Association seeks approval of a referral fee of ten percent of any fee over $500.00 collected by an attorney who receives the fee as a result of a referral given by the Arkansas Bar Association’s Lawyer Referral Service.

It has been a longstanding custom and practice for the court to refer requests of this nature to our respective committees for study, comment, and recommendations to the court. Accordingly, the Arkansas Bar Association’s petition is referred to the Committee on Professional Conduct. The committee is to furnish the court within a reasonable period of time its recommendations as to the ethics of the proposal.

Dudley, J., concurs.

Robert H. Dudley, Justice,

concurring. The Arkansas Bar Association operates a Lawyer Referral Service that collects an enrollment fee from participating attorneys, but, at this time, does not collect compensation for referrals. It seeks approval by this court of a referral fee of ten percent of any lawyer’s fee over $500.00. The court has today referred the petition to the Committee on Professional Conduct for a recommendation on the ethics of the proposal. I concur, and write this separate opinion because this petition presents part of a dilemma that faces this court from time to time.

The Arkansas Bar Association is a voluntary non-profit association of attorneys supported primarily by annual dues paid by its members. It was conceived by attorneys with a grand professional vision who, as leaders of the bar, felt that by voluntarily coming together and holding annual conventions they could discuss various issues and give leadership in matters relating to the improvement of justice. Through the years the Arkansas Bar Association has well served the bench, bar, and the State. However, because the Arkansas Bar Association is a voluntary association, the responsibilities of the association fall only on those lawyers who are willing to devote their time, money, and efforts to the association’s various projects.

All attorneys are required to pay annual license fees to this court in order to maintain their attorneys’ licenses, and in so doing, automatically become members of the Bar of Arkansas. The Bar of Arkansas funds many of this court’s operations that are performed for the improvement of the Bar. Two examples are the Committee on Professional Conduct and the Client Security Fund. The costs of the operations of the Bar of Arkansas are shared by all licensed lawyers.

On a number of occasions the Arkansas Bar Association has petitioned this court to create and fund, from the Bar of Arkansas, many of our important programs. As an example, the Client Security Fund was created and funded after a petition from members of the Arkansas Bar Association. When this court first created the Client Security Fund, we deposited $2.00 of every lawyer’s annual license fee into the fund. See In re The Client Security Fund, 254 Ark. Appendix 1075, 493 S.W.2d 422 (1973) (per curiam). Over the next twenty-two years, we raised the amount of the annual fee that was deposited into the fund to $4.00 and then to $5.00; now it is $10.00. See In re The Client Security Fund, 291 Ark. 647, 722 S.W.2d LVIII (1987); 300 Ark. 643, 782 S.W.2d 357 (1989); 306 Ark. 656 (1991); and 310 Ark. 812, 832 S.W.2d 815 (1992) (per curiam). The cost of this court’s operations through the Bar of Arkansas has continually risen as new programs are added. This court’s budget from license fees from the Bar of Arkansas is now in excess of one-half-million dollars each year. See In re Bar of Arkansas License Fee, 317 Ark. Appendix 686, 878 S.W.2d 409 (1994) (per curiam). It has been necessary for us to raise annual license fees from $2.00 in 1955, to $17.00 in 1972, see In re Supreme Court License Fees, 251 Ark. Appendix 800, 483 S.W.2d 174 (1972) (per curiam); to $20.00 in 1981, see In re Supreme Court License Fees, 270 Ark. Appendix 1020 (1980) (per curiam); to $25.00 in 1985, see In re Attorney’s Annual License Fees, 284 Ark. Appendix 580, 679 S.W.2d XCI (1984) (per curiam); to $50.00 in 1988, see In re Penalty for Late Payment of Bar of Arkansas Membership Dues, 294 Ark. Appendix 663, 740 S.W.2d LXII (1987) (per curiam); and finally, to $100.00 today. See In re Bar of Arkansas License Fees, 317 Ark. Appendix 686, 878 S.W.2d 409 (1994) (per curiam).

From time to time, the Arkansas Bar Association asks that we create and fund new programs. Most of the new programs increase the cost of operating the Bar of Arkansas. Today’s petition would not directly increase the cost of operating the Bar of Arkansas, but it does give the opportunity to discuss the dilemma we face.

It seems that if we continue to raise license fees for the Bar of Arkansas at the rate required in the past few years, it will ultimately cause a loss of membership in the Arkansas Bar Association. Perhaps it is time to again re-evaluate the merits of an all-inclusive, or unified or integrated, bar.

The concept of a unified or integrated bar originated in the American Judicature Society in 1914. This form of bar organization has won widespread public approval and now exists in the majority of states. Its distinguishing characteristic is the requirement that every attorney be a member of the organization and contribute to the support of all bar activities.

No state having an integrated bar has ever returned permanently to the alternative of a voluntary association that is supported only by those lawyers who are willing to devote their time and money to projects that are really the responsibility of the bar as a whole.

This court has the authority to order creation of such a bar. In re Integrating the Bar, 222 Ark. 35, 259 S.W.2d 144 (1953). In fact, in 1953, this court took the first step in creating a unified bar, id. at 39, 259 S.W.2d at 146, but, after taking a poll of the members of the Bar of Arkansas granted rehearing and denied the creation of a unified bar. Id. at 47, 259 S.W.2d at 151.

It has been forty-two years since we rejected the petition for a unified bar, and there has been no petition for an all-inclusive bar in recent years. A unified bar is of more direct concern to the bar than to the bench, and the members of this court are likely to give effect to the wishes to a majority of the members of the bar. It would seem that leaders of the Bar should again examine the concept of a unified bar, and, if there is a consensus, consider filing a petition asking this court to take the first steps to create such a bar. It would most likely help solve the financial difficulties faced by two bars, be more economical, and provide better services to all members of the Bar.


source: Caselaw Access Project

author: Tom Glaze, Justice.

license: Public Domain

text:
    Michael BURNS v. STATE of Arkansas
    CR 95-546
    913 S.W.2d 789
    Supreme Court of Arkansas
    Opinion delivered January 29, 1996

      Janet L. Thornton, for appellant.

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

On February 3, 1993, appellant Michael Burns entered his workplace possessing firearms, and commenced firing them. As a result, he killed one and wounded eight co-workers. After the state charged Burns with capital murder, seven counts of attempted murder and three counts of aggravated assault, Burns raised the defense of mental disease or defect, and requested a psychiatric examination. Upon receipt of the Arkansas State Hospital’s report, reflecting Burns lacked the capacity to conform his behavior to the law at the time of the shootings, he filed a pretrial motion for acquittal. After a hearing, the trial court denied Burns’s motion. At trial, the only issue in dispute was whether Burns was legally responsible at the time of the shooting spree. The jury found Burns guilty of all charges, and sentenced him to life imprisonment without parole.

Burns’s arguments basically are two. First, Burns contends that, because the state hospital found him insane at the time he committed the crimes, the trial court should have granted his motion for acquittal prior to trial. He urges that, since the state failed to put forth any medical evidence to rebut the state hospital’s findings, the trial court erred in allowing his case to go to trial on the merits. We disagree.

In Davasher v. State, 308 Ark. 154, 823 S.W.2d 863 (1992), Davasher filed a motion for acquittal on the basis of mental disease or defect. Davasher had introduced uncontroverted medical evidence that he was a paranoid schizophrenic. This court held that, although the testimony regarding Davasher’s mental illness was not rebutted by other medical testimony, there was no requirement that the trial court enter a judgment of acquittal. Id. at 169.

Under Ark. Code Ann. § 5-2-313 (1987), a trial court may, if it is satisfied that the defendant is suffering from mental disease or defect, enter a judgment of acquittal. In Westbrook v. State, 274 Ark. 309, 624 S.W.2d 433 (1981), this court stated that § 5-2-313 permits the trial judge to acquit the defendant “in cases of extreme mental disease or defect where the lack of responsibility on the part of the defendant is clear.” (Emphasis added.)

In the present case, the state hospital’s expert witnesses offered opinions concerning Burns’s mental status that were far from being clear. For example, Dr. John R. Anderson testified that, while a person, like Burns, who suffers from delusional paranoid disorders is very difficult to treat, he may have periods of remission. Anderson discussed various factors that weighed in favor of Burns’s sanity and reflected his understanding of the ultimate wrongfulness in killing someone. He opined that Burns’s sanity was a jury question. In addition, Dr. O. Wendall Hall testified, stating that, although his opinion was that Burns lacked capacity to conform his conduct to requirements of law at the time of the crimes, “it was a fairly close call — a little over 50% that he probably was not responsible.” Hall added Burns’s case is not “black and white.” In hearing the testimony of these experts, the trial court concluded Burns’s case is neither one of extreme mental disease or defect, nor one where the lack of responsibility on the part of Burns is clear. We hold that the trial court’s ruling denying Burns’s motion to acquit was clearly within its authority and discretion. Davasher, 308 Ark. at 169, 823 S.W.2d at 872.

At this point, we mention that, at trial, Burns duly moved for directed verdict, contending the state failed to show Burns possessed the requisite intent and motive to commit the crimes with which he was charged. The question on appeal is whether there is substantial evidence to support the verdict. Id.

Doctors Anderson and Hall essentially repeated their testimony given at the pretrial hearing. In addition, the state offered other evidence showing Burns did not exhibit any conduct which indicated to his co-workers that he was not able to control his behavior on the day of the shootings. For example, David Washam testified he had seen Burns earlier in the morning when Burns was running a press “just like normal,” and Washam noticed nothing unusual about Burns. Don Jensen testified he was working next to Burns on the morning of the shooting, and Burns was running a machine. James French, who worked at a press machine next to Burns from 6:00 a.m. to 11:30 a.m., failed to notice any difference in Burns that day. Luther McDuffie saw Burns that morning, and testified Burns was the “same old Mike.” Aaron Hicks testified Burns was no different on the morning of the shooting from any other day. Finally, James Herndon, Burns’s supervisor for approximately twenty years, testified he had daily contact with Burns, and there was nothing unusual about Burns on the day of the shooting. Herndon described Burns as a top-notch, cooperative employee for the last sixteen years.

While medical evidence on the issue of insanity is highly persuasive, a jury is not bound to accept opinion testimony of experts as conclusive, and it is not compelled to believe their testimony any more than the testimony of other witnesses. Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1995). Further, it is for the jury to decide whether a defendant has sustained the burden of proving insanity by a preponderance of the evidence. Phillips v. State, 314 Ark. 531, 863 S.W.2d 309 (1993). The jury is the sole judge of the credibility of the witnesses, including experts, and has the duty to resolve conflicting testimony regarding mental competence. Id. Based on the testimony above, we conclude sufficient evidence existed for the jury to find that Burns was sane and legally responsible when he committed the crimes.

Burns’s second primary argument arises from the trial court’s denial of his pretrial motion to voir dire the jurors regarding their knowledge of what would happen to Burns if a verdict of not guilty by reason of mental disease or defect was rendered. He asked the trial court to allow him to introduce evidence concerning what would happen and proffered an instruction Burns asked be given to the jury at the end of the trial.

This court has repeatedly held that the jury is not to be told options available to the trial court when a defendant is found not guilty by reason of mental disease or defect because such an instruction raises questions foreign to the jury’s primary duty of determining guilt or innocence. Williams v. State, 320 Ark. 67, 894 S.W.2d 923 (1995); Hubbard v. State, 306 Ark. 153, 812 S.W.2d 114 (1991); Robertson v. State, 304 Ark. 332, 802 S.W.2d 920 (1991); Love v. State, 281 Ark. 379, 664 S.W.2d 457 (1981); Curry v. State, 271 Ark. 913, 611 S.W.2d 745 (1981); Campbell v. State. 216 Ark. 878, 228 S.W.2d 470 (1950). In Williams we were asked for the same, relief Burns requests here, and stated that, to grant such a request would permit or encourage the jury to base its verdict on speculation regarding the defendant’s subsequent disposition rather than on the law and evidence as to his mental responsibility at the time of the crimes. The Williams court concluded that, for twenty-five years, this court has adhered to this sound reasoning, and declined Williams’s suggestion to repudiate it. We find nothing in Burns’s argument here to compel us to depart from our decision in Williams.

Because we find no error, we affirm.

Pursuant to Ark. Sup. Ct. R. 4-3(h), the state has reviewed the record in its entirety and has found no other rulings adverse to Burns that involve prejudicial error.

       Ark. Stat. Ann. § 41-609 (Repl. 1977) mentioned in Westbrook is the predecessor statute of § 5-2-313.


author: Donald L. Corbin, Justice. Robert H. Dudley, Justice, Robert L. Brown, Justice,

text:
    Richard CLARK v. STATE of Arkansas
    CR 95-408
    913 S.W.2d 297
    Supreme Court of Arkansas
    Opinion delivered January 29, 1996

      Charles E. Halbert, Jr., for appellant.

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

Appellant, Richard Clark, appeals the order of judgment and commitment, entered October 7, 1994, in the Phillips County Circuit Court convicting him, by jury trial, of one count of rape and sentencing him to imprisonment for forty years. Jurisdiction is properly in this court pursuant to Ark. Sup. Ct. R. 1-2(a)(2). Appellant asserts five points for reversal. We affirm the trial court’s order.

Appellant does not challenge the sufficiency of the evidence, so there is no need to recite it in detail. The charge against appellant was the result of a single incident occurring on the evening of April 8, 1993, when appellant picked up his daughter, the victim, then aged ten years, to drive her to his house. The victim testified that on their way to appellant’s house, appellant stopped the car, told her to get in the back seat, put her “short pants” on the floor, put his own clothes on the front seat, got in the back seat with her, lay on top of her while she lay on her back, and stuck “his private” in “her private.” The victim testified that it felt like a bottle, that she told appellant to stop, that appellant did this for about an hour, and that she had to go to the hospital later because appellant had hurt her and she was bleeding. On April 9, 1993, the victim was treated for a bleeding vaginal laceration at the emergency room of Arkansas Children’s Hospital in Little Rock and was admitted to its medical surgical unit. The hospital recommended that the victim receive mental health counseling, and, subsequently, she did.

Evidence of prior bad acts

Appellant’s first assignment of error is the admission of certain portions of the testimonies of the victim and Donna McKuen, an Arkansas Department of Human Services family service worker, as follows. The victim testified that appellant had never “done this” to her before. When asked whether appellant had “done it” to any of the other children who lived in his house, the victim replied affirmatively, and testified that she had seen appellant do the same thing he had done to her to eight-year-old Kenisha Harris in his house. Ms. McKuen testified that she had interviewed the victim on May 3, 1993, and had asked the victim if anyone had done anything bad to her, and that the victim had answered “yes, my daddy” and described the circumstances of the April 8, 1993 rape. Ms. McKuen also testified that, during the same interview, the victim told her that appellant had “done this to her” four times before.

Appellant contends these testimonies should have been excluded pursuant to Ark. R. Evid. 404(b) and 403, respectively, as character evidence that had no relevance except to show appellant’s propensity to commit the crime charged, and that was unfairly prejudicial. This argument is meritless.

In Greenlee v. State, 318 Ark. 191, 197, 884 S.W.2d 947, 950 (1994), we reversed Greenlee’s conviction for the rape of a five-year-old girl on other grounds, but stated that the trial court did not err by admitting evidence of Greenlee’s four prior convictions for sex-related offenses against other minor victims, as follows:

If this case did not pertain to child abuse or incest, the evidence of other crimes would be inadmissible character evidence under Rule 404(b) of the Arkansas Rules of Evidence. However, we allow such evidence under a pedophile exception to show “similar acts with the same child or other children in the same household when it is helpful in showing a ‘proclivity toward a specific act with a person or class of persons with whom the accused has an intimate relationship.’ ” Free v. State, 293 Ark. 65, 71, 732 S.W.2d 452, 455 (1987) (quoting White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986)). Appellant committed the prior offenses against young children, just as he was accused of doing in this case .... We have long held that such evidence helps to prove the depraved sexual instinct of the accused. Williams v. State, 103 Ark. 70, 146 S.W. 471 (1912).

This rationale is equally applicable to evidence of other sexual acts by the accused with the victim or another child in the same household. See Thompson v. State, 322 Ark. 586, 910 S.W.2d 694 (1995); Jarrett v. State, 310 Ark. 358, 833 S.W.2d 779 (1992); Free v. State, 293 Ark. 65, 732 S.W.2d 452 (1987). Appellant cites no authority contradicting this rule of law in the context of a sex-related offense involving a minor victim. Thus, appellant fails to demonstrate that the trial court’s ruling violated Rule 404(b).

Further, the challenged testimony was relevant to prove the charge of rape, and its probative value substantially outweighed its prejudicial effect. Jarrett, 310 Ark. 358, 833 S.W.2d 779; Free, 293 Ark. 65, 732 S.W.2d 452. Thus, appellant fails to demonstrate that the trial court’s ruling violated Rule 403.

Ark. R. Evid. 615

The victim was permitted, without objection, to testify while seated at a table placed before the witness stand so that she faced the jury. As the examining attorney asked the victim each question, she wrote her response on a piece of paper and the attorney read the response aloud before proceeding to the next question. Appellant’s second assignment of error is the trial court’s ruling, over appellant’s objection pursuant to Ark. R. Evid. 615, that Ms. McKuen would be permitted to sit with the victim while the victim testified. The state requested this seating arrangement to “enable [the victim] to testify betterf.]” The trial court granted the state’s request on the conditions that: (1) if Ms. McKuen was called as a witness by the state, she would testify prior to the victim, (2) Ms. McKuen would not make suggestions to the victim during the victim’s testimony, and (3) Ms. McKuen would not be subject to recall by the state.

Rule 615 governs the exclusion of witnesses from the courtroom so that they may not hear the testimony of other witnesses. The provisions of Rule 615 are mandatory. King v. State, 322 Ark. 51, 907 S.W.2d 127 (1995). Nonetheless, pursuant to exceptions set forth in Rule 615 and in Ark. R. Evid. 616, certain persons, including the victim of the crime, have the right to remain in the courtroom. Appellant does not argue and the record does not reflect that Ms. McKuen was qualified to remain in the courtroom under any exception. Therefore, Ms. McKuen should have been excluded from the courtroom, id., and the trial court erred in ruling otherwise.

We do not find, however, that the trial court’s error requires us to reverse its judgment because appellant fails to show that any prejudice resulted. Prejudice is not presumed and we do not reverse absent a showing of prejudice. Id.; Wallace v. State, 314 Ark. 247, 862 S.W.2d 235 (1993). Appellant argues, without authority, that he was prejudiced because Ms. McKuen’s presence made it appear he was trying to intimidate the victim and that the victim had to have someone with her. The abstract does not support appellant’s assertion, and, in fact, even fails to reflect whether Ms. McKuen was present in the courtroom during the victim’s testimony. The abstract does show that Ms. McKuen testified prior to the victim and was not recalled to the stand.

The purpose of Rule 615 is to expose inconsistencies in the testimonies of different witnesses and “ ‘to prevent the possibility of one witness’s shaping his or her testimony to match that given by other witnesses at trial.’ ” King, 322 Ark. 51, 55, 907 S.W.2d 127, 129 (quoting Fite v. Friends of Mayflower, Inc., 13 Ark. App. 213, 682 S.W.2d 457 (1985)). There is no abstracted evidence of such conduct as a result of the trial court’s erroneous ruling. On this record, we cannot say that appellant has demonstrated reversible error.

Failure to include Ms. McKuen on witness list

Appellant’s third assignment of error is that Ms. McKuen should not have been permitted to testify because the state failed to include her name on its witness list, in violation of its discovery obligation under Ark. R. Crim. P. 17.1 and 19.2. This argument is meritless.

First, an appellant is required to make an objection at the first opportunity in order to preserve the argument for appeal. Edwards v. State, 321 Ark. 610, 906 S.W.2d 310 (1995). Appellant did not object to Ms. McKuen’s testimony until she had taken the stand and answered twenty-four questions. At that point, Ms. McKuen was testifying as to her May 3, 1993 interview with the victim. Appellant objected that he had no statements taken by Ms. McKuen, and, after a brief exchange between the trial court and the parties’ trial counsel regarding this objection, a bench conference ensued wherein appellant’s counsel stated that the state “has got to let me know [Ms. McKuen] is going to testify.” On this record, we do not find that appellant objected at the earliest opportunity. Id.

Second, Rule 17.1 provides that, upon timely request, the state shall disclose to defense counsel the names and addresses of persons whom the state intends to call as witnesses; Rule 19.2 provides that the state’s obligation is a continuing one. The abstract, however, does not show appellant’s discovery request to the state, as required by Rule 17.1, or any witness list appellant received from the state. It is the duty of the appellant in a criminal case to abstract such parts of the record that are material to the point he argues, and his failure to do so precludes the appellate court from considering issues concerning it. Manning v. State, 318 Ark. 1, 883 S.W.2d 455 (1994).

Third, the record demonstrates that appellant was aware that Ms. McKuen was a prospective state’s witness, as follows. An in-camera conference was conducted immediately prior to Ms. McKuen’s testimony, wherein the trial court considered appellant’s Rule 615 objection that we discussed above. During that conference, appellant’s counsel argued that he anticipated Ms. McKuen was going to be a witness, and, therefore, she could not stay in the courtroom during the victim’s testimony.

Fourth, even assuming the state violated its discovery obligation by failing to disclose Ms. McKuen as a prospective witness prior to trial, appellant could have requested time to interview Ms. McKuen before she was called to testify. Mills v. State, 322 Ark. 647, 910 S.W.2d. 682 (1995). We have held that such a course of action by the trial court so ameliorated the state’s failure to comply with Rule 17.1 that the accused was not prejudiced. Id. Alternatively, appellant could have requested a continuance. Ark. R. Crim. P. 19.7. Appellant, however, failed to request either of these remedies.

Hearsay

Appellant’s fourth assignment of error is the admission of those portions of the testimonies of Ms. McKuen and Ms. Carol Crider reporting the victim’s out-of-court statements to them describing her rape. Ms. Crider was a social worker with the Arkansas Children’s Hospital who interviewed the victim at the hospital on April 9, 1993.

The trial court ruled these testimonies were admissible after the state characterized them as medical history, an apparent allusion to the hearsay exception for statements made for purposes of medical diagnosis or treatment under Ark. R. Evid. 803(4). Appellant argues that these testimonies regarding the victim’s out-of-court statements were inadmissible hearsay offered to bolster the victim’s testimony as prior consistent statements.

Citing Gatlin v. State, 320 Ark. 120, 895 S.W.2d 526 (1995), the state correctly points out that, on the facts of this case, it is unnecessary to consider whether the trial court’s ruling was erroneous. In Gatlin, we held that the trial court’s erroneous admission of the hearsay testimonies of two family members, which reported an out-of-court statement of the rape victim, a minor, was rendered harmless where the rape victim’s own trial testimony independently evidenced her rape and the rape victim was available at trial for cross-examination by the appellant. In light of the victim’s trial testimony and availability for cross-examination by appellant, this point of the appeal is governed by Gatlin.

Jury instruction

The trial court instructed the jury that in order to convict appellant, the state must prove that he engaged in sexual intercourse or deviate sexual activity with the victim. Appellant’s fifth assignment of error is the inclusion of the language “or deviate sexual activity” in the instruction because, he argues, there was no evidence to support that part of the instruction. This argument is meritless.

“Sexual intercourse” is defined as “penetration, however, slight, of a vagina by a penis.” Ark. Code Ann. § 5-14-101(9) (Repl. 1993). “Deviate sexual activity” is defined as:

[A]ny act of sexual gratification involving:
(A) The penetration, however slight, of the anus or mouth of one person by the penis of another person; or
(B) The penetration, however slight, of the vagina or anus of one person by any body member or foreign instrument manipulated by another person[.]

Ark. Code Ann. § 5-14-101(1) (Repl. 1993). State’s witness, Dr. Ava Komoroski, a physician in the emergency department of Arkansas Children’s Hospital who examined the victim on April 9, 1993, testified that, in her opinion, a “a large object” penetrated and entered the victim’s vagina. Dr. Komoroski testified that nothing in her examination could tell the court what it was that actually caused the victim’s injury. The victim testified that, when appellant raped her, it felt like a bottle. On this record, we cannot find that the abstract supports the premise for appellant’s argument, that is, that no evidence was introduced to support the “deviate sexual activity” portion of the instruction.

Affirmed.

Dudley and Brown, JJ., dissent.

Robert H. Dudley, Justice,

dissenting. The majority opinion holds that the trial court erred in admitting the hearsay testimony of Donna McKuen and Carol Crider and in refusing to exclude Ms. McKuen from the courtroom after defendant requested the exclusion of all witnesses under Ark. R. Evid. 615. However, the majority opinion then holds the errors were harmless. I agree that the trial court erred in both rulings, but I cannot agree that the errors were harmless. Accordingly, I dissent.

The victim, a ten-year-old girl, was understandably affected by the surroundings in the courtroom, the people confronting her, and the unpleasant responsibility of testifying that her father had committed the crime of rape against her. Even so, the record does not disclose that the State made any attempt to videotape the young victim’s testimony, see Ark. Code Ann. § 16-44-203 (Repl. 1994), or that the State attempted to introduce the hearsay testimony through Ark. R. Evid. 803(25). The young victim was so recalcitrant that she would not answer questions aloud. Instead, she could only write her responses to questions, and the examining attorney then read the answers to the jury. Under the circumstances, her direct testimony in the State’s case-in-chief was very limited. It is, in material part, abstracted as follows:

He picked me up to go to his house on April 8. Nobody else was with us. We went in his car. When he stopped the car he told me to get in the backseat. He put my short pants on the floor. He put his clothes in the front seat. After I got in the backseat my father got in the backseat with me. He was on top of me. It was dark outside. I was laying in the backseat on my back. My dad stuck his private in my private. It felt like a bottle. I told him to stop. My father did this to me about an hour. I had to go to the hospital later because my dad hurt me. I was bleeding. My dad has never done this to me before.

Ms. McKuen gave hearsay testimony to many more details. Her direct testimony in the State’s case, in material part, was as follows:

I asked her if something bad had happened to her and she said yes ma’am. I asked her if anyone had done anything bad to her and she said “Yes, my daddy.” I asked her if she ever wanted to see him again and she said “No.” I said I know it is difficult for you to talk about, but can you tell me what happened and she said “Yes, my daddy got on top of me.” She told me that he took off, and she said “My short pants,” and I asked her if that was all he took off and she said “My panties.” She told me that he took off his clothes, his pants, and his underwear, and her exact words were, “He stuck his penis in me.” She did say the word “penis.” I asked where did he put his penis and she said “inside me.” I asked her what his penis looked like and she wouldn’t tell me at this point. She told me later. I asked her where this happened and she said Postelle. She said Postelle was close to Marvell. I asked her were they in a house or what and she said “a car.” I asked where did you go after he did this and she said to his house. I asked who all was there and she said his wife and his kids and that she said that she did tell his wife and his wife made no comment about it. I asked her why she went to the hospital. She was taken to the hospital in Helena. I asked her why and she said “Because I was bleeding.” I asked her who transported her to the —
MR. HALBERT: Your Honor, note my continuing objection to all this.
THE COURT: The Court notes it as continuing.
WITNESS: I asked her who had transported her to the doctor and she said his wife and my dad and that’s all. When I asked her if he had ever done this to her before, she stated he did it before. No. She said on the sand row. I asked her where the sand rows were located and she said Holly Grove. I asked her if she could remember how many times this had occurred and she said four. She said that she had never told anyone. She said it happened two times in Postelle and in Marvell and on the sand road. She said his penis was brown and hard. She said that while he was doing this to her she told him to quit and he kept on. I then changed the subject and started talking. I provided all these things to her counselor.

The hearsay testimony of Ms. McKuen contains critical testimony that was not given by the victim at trial. Ms. McKuen additionally testified about her training and that she was interested in the case because she did not want this crime to reoccur. Ms. McKuen told the jury that the victim told her that “he stuck his penis in me” and that his penis was brown and hard. The victim told the jury that defendant put “his private in my private,” but did not attempt to describe the color or rigidity of the defendant’s penis or other details of the crime. Ms. McKuen testified that the victim told her “she told him to quit and he kept on.” The victim testified that she “told him to stop.” Ms. McKuen testified that the victim told her the defendant committed the crime of rape against her on four occasions and gave a location for each of the four crimes. The victim testified, “My dad has never done this to me before.”

Carol Crider, another social worker, gave the hearsay testimony that a “physician said that there looked like there may have been a sexual assault and asked me to go in and talk to the child and see if I could get any history from her about how she had been hurt.” She testified that the victim told her that the defendant “put his private in the place where she pees.” Ms. Crider testified that she then showed the victim an anatomically detailed doll and after she asked additional questions, the victim pointed to the doll’s penis and said it was the doll’s “private.”

The State claimed that the hearsay testimony was a medical record, and the trial court apparently allowed it into evidence on that basis. The majority opinion adequately deals with the error in the ruling. The only question is whether it was harmless error. It appears that the errors in admitting the foregoing hearsay evidence were most likely prejudicial to the defendant. However, any question about prejudice is answered by the compounding error in the ruling on Ark. R. Evid. 615.

Defendant moved for the rule when the trial commenced. The State responded that Ms. KcKuen was not subject to the rule on the ground that the victim trusted her. The majority opinion holds that the trial court erred in excluding Ms. McKuen from Rule 615. I agree. However, the trial court exacerbated the error by allowing Ms. McKuen to sit at the counsel table after she had completed her testimony. Ms. McKuen was never required to join the other witnesses in the witness room. The effect surely was for the trial court to convey to the jurors an imprimatur of approval of Ms. McKuen. The ultimate result most likely was that the jurors gave most favorable consideration to Ms. McKuen’s hearsay testimony. That hearsay testimony was neither inconsequential nor cumulative: it was significant. Consequently, I cannot agree that the trial court’s errors were harmless.

Robert L. Brown, Justice,

dissenting. I join Justice Dudley’s dissent on the issue of error in permitting Donna McKuen to give hearsay testimony of what the ten-year-old victim told her. The reason I join is that the testimony of Ms. McKuen went beyond the testimony of the young victim. Accordingly, it could not be deemed merely cumulative and, therefore, harmless error. See, e.g., Caldwell v. State, 319 Ark. 243, 891 S.W.2d 42 (1995). Moreover, this is not a case comparable to Gatlin v. State, 320 Ark. 120, 895 S.W.2d 526 (1995), where we concluded that the hearsay testimony of two family members was harmless error because the victim took the stand and was subject to cross-examination by the defendant. In the instant case, the Gatlin doctrine would require defense counsel to cross-examine the victims on matters to which only Ms. McKuen testified. To require the defendant to cross-examine a 10-year-old victim on Ms. McKuen’s testimony places the defense in an untenable situation. This was reversible error.

I do not agree with Justice Dudley’s dissent, however, that allowing Ms. McKuen to sit at the counsel table with the young victim while the victim testified was reversible error. After the victim testified, the trial was adjourned until the following day. Nothing in the record suggests that either the victim or Ms. McKuen was present in the courtroom after the victim’s testimony.

Allowing Ms. McKuen to sit with the 10-year-old girl during her testimony was a matter- of discretion for the trial court. I cannot say that the trial court abused its discretion by allowing this to occur when the victim was of tender years and obviously intimidated and frightened by the criminal process.


author: Donald L. Corbin, Justice.

text:
    Harry G. ROBINSON, Jr., and Miriam Robinson v. Heather Renee ROBINSON
    95-763
    914 S.W.2d 292
    Supreme Court of Arkansas
    Opinion delivered January 29, 1996
    [Petition for Rehearing denied February 26, 1996.]

      Eddie N. Christian and Matthew Horan, for appellants.

      Sam Sexton, Jr., for appellee.
   Donald L. Corbin, Justice.

After a jury trial in the Sebastian County Circuit Court, appellants, Harry G. Robinson, Jr., and his spouse, Miriam Robinson, appeal the judgment in favor of their adult daughter, appellee, Heather Renee Robinson, in her suit against Mr. Robinson for willful, intentional and malicious acts of sexual abuse committed against appellee during her minority, and against Mrs. Robinson for negligence in failing to prevent the abuse. Jurisdiction is properly in this court pursuant to Ark. Sup. Ct. R. l-2(a)(16). For the reasons stated below, we reverse the judgment against Mr. Robinson and remand for retrial, and we reverse and dismiss the action against Mrs. Robinson.

Reversal of judgment against Mrs. Robinson

Relying upon Attwood v. Estate of Attwood, 276 Ark. 230, 633 S.W.2d 366 (1982), appellants timely objected at trial to several instructions guiding the jury in its consideration of appellee’s negligence claim against Mrs. Robinson. The basis for appellants’ objection to the instructions was that, in the absence of willful and wanton conduct by Mrs. Robinson, appellee had no cause of action against her mother. The trial court stated that Mrs. Robinson’s conduct testified to would be willful and wanton and overruled the objection, which appellants now renew on appeal.

In Attwood, this court held that a willful tort committed by a parent against his child was beyond the scope of the parental immunity doctrine, thus the doctrine did not preclude a child from suing his parent for willful and wanton conduct. However, the parental immunity doctrine, as announced in Rambo v. Rambo, 195 Ark. 832, 114 S.W.2d 468 (1938), does bar an unemancipated minor from maintaining an action for an involuntary tort against her parent. The parental immunity doctrine is based upon the rationale that to permit such a suit would interfere with the parent’s authority over the child, thereby encouraging disobedience and interfering with family harmony. Attwood, 276 Ark. 230, 633 S.W.2d 366. The parental immunity doctrine is the law in this jurisdiction. Carpenter v. Bishop, 290 Ark. 424, 720 S.W.2d 299 (1986); Thomas v. Inmon, 268 Ark. 221, 594 S.W.2d 853 (1980). We hold that the doctrine is applicable on the facts of this case where, although appellee had attained her legal age when this action was commenced, she was an unemancipated minor at the time of the alleged tort. Attwood, 276 Ark. 230, 633 S.W.2d 366, n.3 & accompanying text.

Negligence was the sole theory for the liability of Mrs. Robinson that was alleged in the complaint and upon which the jury was instructed. Appellee neither amended her complaint nor proffered any jury instruction as to willful and wanton conduct or any theory of intentional tort as an alternative theory of liability for Mrs. Robinson. Because the jury was not instructed on any theory of intentional tort as a basis for Mrs. Robinson’s liability, we conclude that the jury’s finding of liability was based on a theory of negligence, and, therefore, appellants have demonstrated prejudicial error. Carpenter, 290 Ark. 424, 720 S.W.2d 299; Thomas, 268 Ark. 221, 594 S.W.2d 853. On this point, we reverse the judgment against Mrs. Robinson and dismiss the action against her.

In light of our dismissal of the case against Mrs. Robinson, we address the remaining points of appeal only as regards the judgment against Mr. Robinson.

Reversal of judgment against Mr. Robinson

Mr. Robinson asserts several points of error as regards the form of the judgment, among them that the trial court erred in altering the damages award against him, from the verdict’s award of a sum certain in a ten-year trust, subject to reversion in Mr. Robinson, to the final judgment’s award of the sum certain outright. We agree and reverse the judgment against Mr. Robinson on this point.

The operative facts are as follows. The jury returned a separate verdict against Mr. Robinson that provided, in pertinent part:

We, the Jury, find in favor of Heather Renee Robinson Lineberry against defendant Harry Robinson, Jr., and fix damages at one-half of the $4,335.00 already owed, plus half court costs and attorney’s fees, and Twelve Thousand Five Hundred ($12,500.00) in a trust fund for psychological and psychiatric therapy, which must be used in ten (10) years or the money goes back to Harry Robinson court-appointed trust.

In addition, the jury awarded punitive damages against Mr. Robinson in the amount of $20,000.00. After the verdict was read, the record reflects that the trial court inquired of the jury if it intended that a trust fund be set up for appellee for her psychiatric-type bills, and that the jurors nodded affirmatively.

The trial court’s judgment provided, in pertinent part:

Based upon such Verdicts, the Court finds that it was the manifest intention of the Jury to compensate the Plaintiff for past and future medical expenses, for costs and attorneys fees, and to award punitive damages. The Court further finds, however, that the Jury had no authority to impose a trust upon the future medical expenses and lacked authority to award attorneys fees.
The Court further finds that Plaintiff, Heather Renee Robinson, should have and recover of and from the separate Defendant, Harry G. Robinson, Jr., the sum and amount of $34,667.50.

In addition, the judgment added the amount of $1,000.00 in previously-imposed and unpaid sanctions to the judgment against Mr. Robinson, individually, and awarded costs against both appellants, jointly and severally, in the amount of $977.25.

It is well-established that the jury is the judge of the question of the amount of damages as well as of the question of liability. Womack v. Brickell, 232 Ark. 385, 337 S.W.2d 655 (1960); Arkansas-Louisiana Gas Co. v. Campbell, 203 Ark. 307, 156 S.W.2d 255 (1941). Nonetheless, in fashioning the judgment, “ ‘the court has the power to put a manifestly irregular or defective verdict in such form as to make it conform to the intention of the jury, and carry their findings into effect, where the intention can be ascertained with certainty.’ ” Trailmobile v. Robinson, 227 Ark. 915, 925, 302 S.W.2d 786, 792 (1957) (quoting, with approval, Vol. 89, Corpus Juris Secundum, 198); accord Traylor v. Huntsman, 253 Ark. 704, 488 S.W.2d 30 (1972). The trial court is not authorized, however, to invade the province of the jury by substituting its conclusion as to a material matter. Trailmobile, 227 Ark. 915, 302 S.W.2d 786.

In this case, the jury effectively awarded as little as $0.00 and as much as $25,000.00 for appellee’s future medical expenses by imposing a ten-year trust upon the sum of $25,000.00, subject to Mr. Robinson’s reversionary interest in any trust amount remaining upon trust termination. The jury confirmed its intention in response to the trial court’s inquiry after the verdict was read. The judgment, however, altered the verdict by awarding damages against Mr. Robinson, on an outright basis, in an amount that included the entire $25,000.00 sum. The judgment, therefore, did not conform to the jury’s intention, with any certainty, as regards the amount of the damages award for future medical expenses, and, to that extent, the trial court impermissibly invaded the province of the jury to determine the amount of damages.

On this point, we reverse the judgment against Mr. Robinson and remand for a new trial that will include both damages and liability issues. Smith v. Walt Bennett Ford, Inc., 314 Ark. 591, 864 S.W.2d 817 (1993).

We find Mr. Robinson’s other arguments are meritless, but discuss them for the benefit of the trial court to the extent they are likely to arise upon his retrial.

Mr. Robinson argues that the $20,000.00 punitive damages award against him individually was erroneous in the absence of a lawful verdict for compensatory damages. In light of the $4,335.00 award for past medical expenses, based on the testimony of Kathleen Kralik, a psychologist, that appellee had an outstanding unpaid bill in that amount for her services, we find the record does not support Mr. Robinson’s premise for his argument.

Mr. Robinson argues that it was error to admit certain testimony from Eva Rush, director of the Western Arkansas Counselling and Guidance Center, and Ms. Kralik, both of whom were consulted by appellee regarding her alleged sexual abuse. Mr. Robinson filed a motion in limine seeking to exclude opinion testimony from Ms. Kralik and Ms. Rush as to whether appellee was sexually abused, whether appellee was telling the truth, and whether appellee’s statements or conduct were consistent with sexual abuse. The trial court declined to rule on the motion as to Ms. Kralik, but granted the motion as to Ms. Rush.

Because the trial court declined to rule on the motion with respect to Ms. Kralik, it was necessary for Mr. Robinson to make a specific objection during the trial to preserve this argument for appeal. Massengale v. State, 319 Ark. 743, 894 S.W.2d 594 (1995). The record, however, fails to show that any such objection was made.

With respect to Ms. Rush’s testimony, Mr. Robinson contends that three statements were erroneously admitted. First, on cross-examination, Ms. Rush testified that appellee stated that she felt “she had to get out of there and things were not getting better.” Second, on redirect examination, Ms. Rush testified that her impression of appellee’s aforementioned statement was that appellee wanted to get away from her father, not her home. We find no error. Neither of these challenged statements was within the scope of the trial court’s exclusionary ruling. Further, we observe that the challenged cross-examination testimony was drawn out by Mr. Robinson’s question to the witness, and, that the challenged redirect examination testimony was properly offered to clarify or rebut other cross-examination testimony elicited by Mr. Robinson from the witness that appellee’s “main goal seemed to be getting away from the home.”

The third challenged statement was given in direct examination when Ms. Rush testified that it was not an unusual occurrence in rape crisis for a person to want to withhold her name. Prior to that statement, Ms. Rush had testified that appellee had refused to give her last name when appellee had contacted the Center’s rape crisis service. Admission of the challenged statement may have violated the trial court’s ruling on the motion in limine, but no prejudicial error is demonstrated. Mr. Robinson relies upon our holdings in Johnson v. State, 292 Ark. 632, 732 S.W.2d 817 (1987), and Russell v. State, 289 Ark. 533, 712 S.W.2d 916 (1986), to illustrate that prejudicial error occurred. We find this authority unpersuasive on the facts of this case. In Johnson, admission of expert testimony on the issue of whether a child’s statements were consistent with sexual abuse was held error, pursuant to Ark. R. Evid. 702, because the jury was able to understand and draw its own conclusions without the aid of an expert; no prejudice was demonstrated due to the child’s explicit testimony of abuse. Here, it is not contended that Rule 702 was violated or that the jury was fully competent to determine whether appellee’s refusal to give her last name to the Center’s rape-crisis service was consistent with sexual abuse; in addition, appellee provided explicit testimony of the alleged abuse. In Russell, admission of expert testimony on the issue of whether child sexual abuse had occurred was held to be prejudicial error where the testimony was based on nothing but the medical history given to the witness by the child. Here, Ms. Rush’s testimony was based on her own personal knowledge of behavior in a rape-crisis center.

For the reasons stated hereinabove, we reverse the trial court’s judgment against both appellees. The case against Miriam Robinson is dismissed. The case against Harry Robinson, Jr. is remanded for a new trial that will include both damages and liability issues.

       After she commenced this lawsuit, appellee married Jed Lineberry.


author: Per Curiam.

text:
    IN RE: Pamela Danice BAXTER
    96-23
    913 S.W.2d 791
    Supreme Court of Arkansas
    Opinion delivered January 29, 1996
    Petitioner, pro se.

    No response.
   Per Curiam.

Petitioner Pamela Danice Baxter moves the Arkansas Supreme Court to affirm or adopt the authorization for recertification of her license to practice law made by the Chairman of the State Board of Law Examiners. Baxter surrendered her law license on March 3, 1986, but now has submitted an application for reinstatement of her law license. The Chairman of the State Board of Law Examiners has apparently concluded that she is eligible for readmission under Rule XIII of the Rules Governing Admission to the Bar but that reinstatement is contingent on her taking and passing the required bar examinations.

It is premature for this court to take any action concerning Baxter’s application for reinstatement of her law license until all of the conditions for reinstatement have been satisfied. That is not yet the case, as is evidenced by the fact that the bar examinations remain to be taken. The motion is denied. When the application for reinstatement is complete, a motion to the court will be appropriate.


text:
    William Francis BOWEN v. STATE of Arkansas
    CR 93-1003
    913 S.W.2d 304
    Supreme Court of Arkansas
    Opinion delivered January 29, 1996

      Simes & Simes, by: L. T. Simes II and Charlotta Norby, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Deputy Att’y Gen., Senior Appellate Advocate, for appellee.
   Per Curiam.

William Francis Bowen was convicted of capital murder and sentenced to death. In Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1995), we affirmed the conviction but reversed the sentence and remanded the case to the Circuit Court for resentencing. Mr. Bowen has filed a motion for clarification with respect to a conflict that arises within A.R.Cr.P. 37 in cases where only the sentence is reversed by the appellate court. The present form of the rule does not provide guidance as to proper timing for filing a petition for post-conviction relief after remand to a circuit court for resentencing.

Rule 37.1 limits the scope of post-conviction relief to those petitioners who are “under sentence of a circuit court,” while Rule 37.2(c) provides that, if an appeal is taken, the limitation on filing post-conviction petitions is 60 days from the date the mandate was issued by the appellate court. The conflict arises in cases such as Mr. Bowen’s, where, after an appeal that results in a reversal of only the sentence, the petitioner is no longer “under sentence of a circuit court,” but must act within 60 days of the mandate or lose his right to post-conviction relief.

We amend Rule 37.2(c) this date to provide appropriate limitations for seeking post-conviction relief after action by the circuit court upon remand. The revised rule applies to Mr. Bowen’s case.

Mr. Bowen has asked that our mandate affirming his conviction be stayed pending action by the United States Supreme Court on a petition for certiorari he proposes to file in the event his petition for rehearing in this Court is denied. Mr. Bowen’s petition for rehearing was denied on January 8, 1996. Although there is no showing that Mr. Bowen has ordered the record from the Office of the Clerk for the purpose of pursuing relief from the United States Supreme Court, see Arkansas Supreme Court Rule 5-3(c), the State has declared in its response that it has no objection to the granting of the motion to stay the mandate, so it is granted.


text:
    Michael Wayne BYRD v. STATE of Arkansas
    CR 96-48
    913 S.W.2d 305
    Supreme Court of Arkansas
    Opinion delivered January 29, 1996

      Scott E. Smith, for appellant.
    No response.
   Per Curiam.

Petitioner, Michael Wayne Byrd, by his attorney, Scott E. Smith, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to a mistake on his part.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981); In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam); Harkness v. State, 264 Ark. 561, 572 S.W.2d 835 (1978).

A copy of this per curiam will be forwarded to the Committee on Professional Conduct. In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.


text:
    IN RE: David William MALABY, Jr., Arkansas Bar I.D. # 81204
    96-47
    913 S.W.2d 305
    Supreme Court of Arkansas
    Opinion delivered January 29, 1996
   Per Curiam.

Based upon the order and findings of the Miller County Circuit Court and the supreme court’s present petition, we hereby order that David William Malaby, Jr., be barred from the practice of law in the State of Arkansas and direct that his name be removed from the list of attorneys authorized to practice law in this state.


text:
    Richard Dalton RICHMOND v. STATE of Arkansas
    CR 96-34
    913 S.W.2d 305
    Supreme Court of Arkansas
    Opinion delivered January 29, 1996

      Charles E. Tilmon, Jr., for appellant.
    No response.
   Per Curiam.

Appellant, Richard Dalton Richmond, by his attorney, Charles E. Tilmon, Jr., has filed a motion for rule on the clerk. His attorney admits that the record was tendered late.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See per curiam order dated February 5, 1979. In re: Belated Appeals in Criminal Cases, 265 Ark. 964; Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981).

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


author: Bradley D. Jesson, Chief Justice. Robert L. Brown, Justice,

text:
    Jane DOE v. UNION PACIFIC RAILROAD CO. et al.
    95-682
    914 S.W.2d 312
    Supreme Court of Arkansas
    Opinion delivered February 5, 1996

      Duncan & Rainwater, by: Philip J. Duncan and Neil Chamberlin, for appellant.

      Friday, Eldredge & Clark, by: William H. Sutton and John Dewey Watson, for appellee Union Pac. R.R. Co.

      Friday, Eldredge & Clark, by: Tonia P. Jones and Will Bond, for appellee Michael Ramone, D.O.

      Wright, Lindsey & Jennings, by: Sammye L. Taylor and Troy A. Price, for appellees MoPac Employees Health Ass’n and MoPac Employees Health Ass’n Trust.
   Bradley D. Jesson, Chief Justice.

This appeal is taken from the trial court’s denial of the appellant’s motion to prosecute her lawsuit under the pseudonym “Jane Doe.” We hold that the court’s ruling is not a final, appealable order. Therefore, the appeal is dismissed.

The appellant visited the Oakwood Family Medical Center on March 9, 1992, where she was examined by Michael Ramone, D.O. The Center purportedly was operated by Union Pacific Railroad Company, the Missouri Pacific Employees Health Association and the Association Trust. According to her complaint, the appellant was touched in an improper and sexually suggestive manner during the course of the examination.

On March 4, 1994, the appellant filed suit against the appellees seeking damages for negligence, medical malpractice, outrage and invasion of privacy. The caption to her complaint contained the name “Jane Doe” as plaintiff, but listed all defendants by name. The appellant’s true identity was furnished to the appellees under separate cover.

The appellees objected to the appellant’s use of the pseudonym and moved to dismiss the case. The appellant asked the court for leave to conceal her identity, citing the sensitive, private nature of the allegations in the complaint. The court denied the motion and gave the appellant ten days to file an amended complaint in her own name. The appellant filed a subsequent motion which incorporated a letter opinion from her psychologist. The letter stated that the appellant had been traumatized by the incident and suffered various emotional problems as a result. The trial court reviewed the letter and considered the appellant’s motion in light of a number of federal court cases on the subject. See, e.g., Doe v. Frank, 951 F.2d 320 (11th Cir. 1992). The court then denied the motion, and entered an order finding that the appellant had not shown that the information to be disclosed was of the utmost privacy. The following language, attempting to certify the case for appeal, was also contained in the order:

The Plaintiff’s Motion for Certification for Appeal is granted. This court’s order with respect to the issue of the Plaintiff’s Motion for Leave to File Under Seal is final because the disclosure of the PlaintifFs identity would divest her of a substantial right and it would be beyond the power of this court to place her in her former condition. There is no just reason to delay appeal of this issue and a potential injustice would be alleviated by an immediate appeal.

The appellant argues first that the trial court’s order is appealable because it complies with ARCP Rule 54(b). That rule allows interlocutory appeals under certain circumstances, but those circumstances are not present here. By its express language, Rule 54(b) pertains to orders in which fewer that all claims or fewer than all parties are disposed of. The order in this case involves a ruling on a preliminary legal issue. It does not dispose of one of several claims or one of several parties.

Rather than analyze the appealability of the trial court’s order under Rule 54(b), we refer to Rule 2 of the Arkansas Rules of Appellate Procedure. That rule contains a list of the types of orders from which an appeal may be taken. We note at the outset that Rule 2 does not expressly allow an appeal from a ruling which denies a party the right to prosecute her case in anonymity. What might be termed the general rule regarding appealability is stated in ARAP Rule 2(a)(2):

(a) An appeal may be taken from a circuit, chancery or probate court to the Arkansas Supreme Court from:
2. An order which in effect determines the action and prevents a judgment from which an appeal might be taken, or discontinues the action.

We have interpreted this portion of Rule 2 to mean that, for an order to be appealable, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. The order must be of such a nature as to not only decide the rights of the parties, but to put the court’s directive into execution, ending the litigation or a separable part of it. Kelly v. Kelly, 310 Ark. 244, 835 S.W.2d 869 (1992). Certainly the court’s order in this case did not dismiss the parties from the court or conclude their rights to the subject matter in controversy. The court’s ruling was on a preliminary matter, unconnected with the merits of the litigation. The order cannot be considered as ending a separable branch of the litigation.

The appellant urges us to employ an exception to Rule 2 as we have done in the cases of Omni Farms, Inc. v. Arkansas Power & Light Co., 271 Ark. 61, 607 S.W.2d 363 (1980) and Gipson v. Brown, 288 Ark. 422, 706 S.W.2d 369 (1986). In Omni Farms, the trial court entered an order approving condemnation of the appellant’s land. The order would have allowed AP&L to begin immediate construction on the land, even though the issue of the amount of compensation remained to be decided. In Gipson, church members brought suit to obtain financial data from the church management. The trial court entered a discovery order which had the effect of requiring the church to turn over much of the requested information. We allowed appeals in both instances, stating in Omni Farms:

At the oral argument counsel for A.P.&L. conceded that if construction is allowed to proceed, it will be impossible in the event of a reversal for Omni’s land to be restored to its previous condition. We conclude that this is one of the comparatively rare instances, foreseen by some of our earlier opinions, in which an order must be regarded as appealable because otherwise the order would divest a substantial right in such a way as to put it beyond the power of the court to place the party in its former condition.

In both of the above-cited cases, the trial court’s ruling, while technically interlocutory in nature, had the practical effect of a final ruling on the merits of the case. That is not the situation here. This case is more analogous to Scheland v. Chilldres, 313 Ark. 165, 852 S.W.2d 791 (1993), in which the trial court rendered a decision on an important issue but did not, from a practical standpoint, conclude the merits of the case. Scheland involved an order requiring the appellant in a paternity action to undergo a blood test. We held that, while the issue might be an important one, an appeal was premature.

Finally, the appellant urges us to adopt an amendment of Rule 2 to allow this type of interlocutory appeal. We took this approach in the cases of Herron v. Jones, 276 Ark. 493, 637 S.W.2d 569 (1982) and Ford Motor Credit Co. v. Nesheim, 285 Ark. 253, 686 S.W.2d 777 (1985). In Herron, we declared that an order disqualifying counsel would be made appealable by amendment to Rule 2. In Nesheim, we did the same for an order certifying a case as a class action. However, the considerations which were present in those cases do not exist here. If a party’s counsel is disqualified, the litigant is deprived of the counsel of his choice, must pursue his lawsuit with other counsel, and, if the trial court’s order is later reversed, is entitled to start again with his original counsel. Similarly, if a class action, ordinarily a complicated and lengthy process, is allowed to proceed to its conclusion before being reviewed on appeal, the parties have again gone through a useless process in the event of reversal. In this case, there is nothing to indicate that the appellant would not or could not prosecute her action in the absence of anonymity. We should also point out that she had the option to allow the issue to be decided on the appellees’ motion to dismiss. Had the motion to dismiss been granted, a final order would have been in existence. The only showing before this court at this time is that it would be emotionally difficult for the appellant to pursue her lawsuit in her own name and that she would prefer not to do so. There is no showing, as there was in Herron and Nesheim, that burdensome and meaningless litigation would result in the absence of an appeal.

We hold that the appeal is premature and dismiss without prejudice to raise this issue upon the entry of a final order.

Appeal dismissed.

Corbin, Brown, and Roaf, JJ., dissent.

Robert L. Brown, Justice,

dissenting. I would accept this appeal and decide the issue under the test employed in Omni Farms, Inc. v. Arkansas Power & Light Co., 271 Ark. 61, 607 S.W.2d 363 (1980) and Gipson v. Brown, 288 Ark. 422, 706 S.W.2d 369 (1986).

What Jane Doe requested in her briefs and at oral argument is that the style of this case, as contained in the permanent record, not reflect her real name. She has made her actual name available to counsel for Dr. Ramone. She is available for discovery and will appear at trial to testify in public. Any enterprising news reporter could ferret out her real name. Her true name may actually be used at trial; that is unclear. Her concern is history and whether the style of this case will permanently reflect her correct name.

The majority states the Omni Farms analysis that I would use in this case:

At the oral argument counsel for A.P.& L. conceded that if the construction is allowed to proceed, it will be impossible in the event of a reversal for Omni’s land to be restored to its previous condition. We conclude that this is one of the comparatively rare instances, foreseen by some of our earlier opinions, in which an order must be regarded as appealable because otherwise the order would divest a substantial right in such a way as to put it beyond the power of the court to place the party in its former condition.

271 Ark. at 63, 607 S.W.2d at 364. Using the Omni standard, we should decide (1) whether a substantial right is involved, and (2) whether it will be lost if we fail to correct the matter before trial.

What I take issue with in the majority opinion is that it closes the door to appeals in all instances where going to trial would violate a party’s utmost privacy rights. We should leave the door cracked for such rare appeals, even when a final order has not been rendered in the matter. This case differs from Scheland v. Chilldres, 313 Ark. 165, 852 S.W.2d 791 (1993). The Scheland case involved taking a blood test to establish paternity. Here, we are concerned with allegations of sexual invasion which are categorically different in terms of privacy considerations.

Other jurisdictions have accepted appeals of anonymity issues where utmost privacy was the question to be resolved. See, e.g., James v. Jacobson, 6 F.3d 233 (4th Cir. 1993) (artificial insemination by physician’s sperm — anonymity allowed); Doe v. Frank, 951 F.2d 320 (11th Cir. 1992) (alcoholism — anonymity not allowed); Doe v. Bodwin, 119 Mich. App. 264, 326 N.W.2d 473 (1982). The Fourth Circuit Court of Appeals stated in James v. Jacobson:

The decision whether to permit parties to proceed anonymously at trial is one of many involving management of the trial process that for obvious reasons are committed in the first instance to trial court discretion. This implies, among other things, that though the general presumption of openness of judicial proceedings applies to party anonymity as a limited form of closure, see Stegall, 653 F.2d at 185, it operates only as a presumption and not as an absolute, unreviewable license to deny. The rule rather is that under appropriate circumstances anonymity may, as a matter of discretion, be permitted. This simply recognizes that privacy or confidentiality concerns are sometimes sufficiently critical that parties or witnesses should be allowed this rare dispensation. A necessary corollary is that there is a judicial duty to inquire into the circumstances of particular cases to determine whether the dispensation is warranted.

6 F.3d at 238.

In Doe v. Bodwin, the complaint was made that a psychologist had had sexual intercourse with the plaintiff, his patient, during therapy. A complaint was filed and a fictitious name invoked. The trial court ordered the plaintiff to identify herself publicly, but on appeal, the Michigan Court of Appeals reversed and remanded for reconsideration of whether utmost privacy rights were violated.

We should do the same analysis and determine whether a right of utmost privacy would be lost by going to trial rather than merely dismissing the matter for lack of a final order.

I respectfully dissent.

Corbin and Roaf, JJ., join.


author: Bradley D. Jesson, Chief Justice.

text:
    Tommy Ray MOSLEY v. STATE of Arkansas
    CR 95-872
    914 S.W.2d 731
    Supreme Court of Arkansas
    Opinion delivered February 5, 1996

      Daniel D. Becker and Michael E. Harmon, for appellant.

      Winston Bryant, Att’y Gen., by: Vada Berger, Asst. Att’y Gen., for appellee.
   Bradley D. Jesson, Chief Justice.

The appellant, Tommy Ray Mosley, was convicted of rape and sentenced as a habitual offender to life imprisonment. On appeal, he argues that the State’s evidence was insufficient to satisfy the forcible compulsion element of rape, and that the trial court erred in allowing a State’s witness to testify at trial when the State had not complied with the rules of discovery. We affirm.

The State elicited the following testimony at trial. The victim, Sherry Christian, testified that she went to the Horse Shoe Bar in Hot Springs around 7:00 p.m. She was upset over a fight with her boyfriend. The appellant, Tommy Ray Mosley, arrived at the bar around 8:30 p.m. Sherry and Mosley had met the previous weekend at a country dance hall, where Mosley had given her his phone number. Mosley approached Sherry and asked her why she had not called him. The two talked for about fifteen minutes before Sherry asked Mosley to give a friend, Bill Branch, and her a ride home. Mosley agreed, and the three left the bar around 9:00 p.m. They drove to the home of Branch’s brother, Greg Branch, who was Sherry’s former boyfriend. Mosley and Sherry stayed at the residence for approximately fifteen minutes before Sherry stated that she needed to go meet her babysitter. After Sherry and Mosley got in his car, Mosley stated that he needed to go by his sister’s house and get money for gas. Sherry asked to be let out, but Mosley told her it would only take a minute and then he would take her home.

Mosley then drove to a remote area. Sherry again stated she wanted to go home, but Mosley told her that he would not take her home “until I get what I’m here for.” She became frightened and attempted to leave the car. Mosley grabbed her arm and told her that he was going to get what he wanted and he was there “to play games.” Sherry told Mosley that her uncle and others would be looking for her, but Mosley started trying to grab and kiss her. When she scratched Mosley and began pulling his hair, Mosley called her names and began to choke her until she vomited. The two struck each other and pulled each other’s hair, and Mosley bit her on the neck. When Sherry began vomiting a second time, she told Mosley she would do whatever he wanted if he would let her out of the car. When he did, she began to run. He grabbed her, and the two struggled in the dirt. He dragged her onto the hood of the car and began choking her. When Sherry tried to yell for help, Mosley threatened to kill her. She then obeyed Mosley’s directions to pull down her shorts and underwear. While Sherry continued to fight, Mosley fondled her before putting his penis in her, telling her that “he was going to do it so hard that he was going to tear [her] open.” According to Sherry, Mosley “pounded [her] and pounded [her] as hard as he could” and told her, “Oh, you’re going to like it. You like it. You know you like it.”

Mosley eventually ordered Sherry to get dressed and to get back in the car. As he drove her to her babysitter’s house, he apologized and asked her not to tell anyone what had happened. From the babysitter’s, Sherry went to the hospital for treatment.

Marnie Keck, a nurse at the hospital, described Sherry as being very emotional. According to Keck, she was dirty and scraped up, and had a very disheveled appearance. Keck observed fresh bruises on her throat and under her left and right eyes, and a very large bruise over her left eye. Keck further observed a bite mark on Sherry’s neck, dried blood on both her inner thighs, and dirt on her legs and abdomen.

Dr. Gene Shelby treated Sherry at the hospital. He testified that she was very tearful and anxious. He noticed some bruising to her face evidencing recent trauma. In completing a pelvic exam, Dr. Shelby noted some superficial tears to the opening of her vagina. These wounds appeared to be fresh wounds, and were “completely unrelated” to Sherry’s recent delivery of her child. In examining the vaginal vault, Dr. Shelby observed a small amount of clear fluid that was consistent with ejaculation. Dr. Shelby concluded that there were “a lot of signs of forced sexual intercourse.”

Officer Cory DeArman of the Garland County Sheriff’s Office interviewed Sherry at the hospital. According to DeArman, Sherry looked distraught and had been crying. She had twigs and dirt in her hair. DeArman further observed a red mark on Sherry’s right eye and marks on her neck.

When Sherry went to the sheriff’s office a day later, Officer Sarah Love photographed the bruises on her face and bite mark on her neck. Deputy Sheriff Mike Brown testified that, when Mosley was arrested and brought to jail on September 2, he observed scratch marks on Mosley’s neck, back, and stomach.

At the close of the State’s case-in-chief, Mosley moved for a directed verdict, arguing that the State had failed to prove the forcible compulsion element of the rape charge. The trial court denied the motion, and Mosley testified on his own behalf. He admitted to having hit, bitten, and choked Sherry on the date in question; however, he claimed that he and Sherry “kiss[ed] and ma[de] up” and engaged in consensual sexual intercourse. On cross-examination, Mosley stated that there were several reasons for the altercation. First, he was “a little bit” jealous that Sherry talked to Greg Branch when they were at Branch’s house. He also stated that he was hurt over problems he was having with his own girlfriend.

At the close of all the evidence, Mosley renewed his motion for directed verdict on the ground that there was insufficient evidence of forcible compulsion. The jury returned a verdict finding Mosley guilty as charged. After hearing evidence of Mosley’s six prior felony convictions, the jury recommended that he be sentenced to life imprisonment. The trial court entered judgment accordingly, and Mosley appeals.

I. Sufficiency of the evidence

We have recently repeated our guidelines for reviewing challenges to the sufficiency of the evidence in Pike v. State, 323 Ark. 56, 912 S.W.2d 431 (1995):

In a challenge to the sufficiency of the evidence, this court reviews the evidence in the light most favorable to the State and sustains the judgment of conviction if there is substantial evidence to support it. Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990). Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion conjecture. Williams v. State, 298 Ark. 484, 768 S.W.2d 539 (1989). In reviewing the sufficiency of the evidence, we need only consider evidence in support of the conviction. Id.

323 Ark. at 60, 912 S.W.2d at 433-4, citing Mills v. State, 322 Ark. 647, 654, 910 S.W.2d 682, 686 (1995). Specifically, Mosley contends that the State failed to prove an element of the rape charge, namely forcible compulsion. Rape is defined in Ark. Code Ann. § 5-14-103 (Repl. 1993), in pertinent part, as follows:

(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 as “physical force, express or implied, of death or physical injury to or kidnapping of any person.” Ark. Code Ann. § 5-14-101(2) (Repl. 1993). We have defined “physical force” as “any bodily impact, restraint or confinement, or the threat thereof.” Dillon v. State, 317 Ark. 384, 877 S.W.2d 915 (1994); citing Strawhacker v. State, 304 Ark. 726, 804 S.W.2d 720 (1991). The test for determining whether there was force is whether the act was against the will of the party upon whom the act was committed. Caldwell v. State, 319 Ark. 243, 889 S.W.2d 771 (1995); Spencer v. State, 255 Ark. 258, 499 S.W.2d 856 (1973).

In this case, there was substantial evidence of forcible compulsion. Sherry’s graphic description of the incident need not be repeated. Indeed, the victim’s testimony alone is sufficient to sustain a conviction for rape. See Laughlin v. State, 316 Ark. 489, 872 S.W.2d 848 (1994). Her account clearly met the test of showing that the act was committed against her will. In addition to the victim’s testimony, the State offered the testimony of Nurse Keck, Dr. Shelby, and Officer DeArman, all of whom described the victim’s injuries and emotional state on the date in question. Such evidence corroborates Sherry’s version of the incident.

Mosley claims that the State’s evidence was insufficient to prove forcible compulsion because the victim’s injuries could have been caused either by a “physical fight” she had earlier that night with her boyfriend, or by the recent delivery of her child. However, the victim denied that either she or her boyfriend had hit the other. Moreover, Dr. Shelby testified that superficial tears to the victim’s vagina were unrelated to the delivery of her child, and, that, in his opinion, there were “a lot of signs of forced sexual intercourse.” The jury is free to believe all or part of a witness’s testimony. Pike v. State, supra; State v. Long, 311 Ark. 248, 844 S.W.2d 302 (1992). The jury obviously believed the medical testimony and that of the victim over Mosley’s version of the events. In sum, the State presented sufficient evidence of forcible compulsion.

II. Discovery violation

For his second point, Mosley claims that the trial court erred in permitting David Worley, a witness for the State, to testify. On the morning of trial, counsel for Mosley learned that the State had issued subpoenas for Worley and Ralph McMillan. The State maintained that these witnesses had taken blood and saliva samples from Mosley, sealed them, and sent them to the sheriff’s office, which in turn forwarded the samples to the state crime lab. Thus, the State contended that their testimony would be limited to establishing a chain of custody. The trial court, over Mosley’s objection, ruled that the witnesses could testify, but their testimony would be limited to establishing a chain of custody.

McMillan did not testify at trial. Worley testified that, while employed as a respiratory therapist and nurse at St. Joseph’s Regional Health Center, he used an Arkansas Sexual Assault Kit to collect evidence from Mosley. He further testified that he was present when Mosley’s blood was drawn, put into a test tube, and placed in a sealed envelope. Worley also testified that he collected a saliva sample for Mosley, sealed it in an envelope, placed the envelope in the evidence kit, and gave it to a deputy sheriff. Edward Vollman, a forensic serologist with the state crime lab, later testified that semen found on Sherry’s shorts and secretions preserved from a vaginal swab were consistent with secretions by someone with Mosley’s blood type. Thus, Vollman stated that Mosley could not be excluded as a person who may have had sexual intercourse with Sherry.

We have recently reviewed the pertinent rules of discovery in Mills v. State, supra:

Under Ark. R. Crim. P. 17.1(d), the State is required to disclose to the defense any material or information within its knowledge, possession, or control which tends to negate the guilt of the defendant. Ark. R. Crim. P. 19.2 further imposes a continuing duty to disclose this information. Lewis v. State, 286 Ark. 372, 691 S.W.2d 864 (1985). Under Rule 19.7, if there has been a failure to comply, the trial court may order the undisclosed evidence excluded, grant a continuance, or enter such order as it deems proper under the circumstances. Id. In some situations, a recess granted to interview the witness is sufficient to cure the failure to comply with the Rules of Criminal Procedure. Id.; see Dupree v. State, 271 Ark. 50, 607 S.W.2d 356 (1980); Hughes v. State, 264 Ark. 723, 574 S.W.2d 888 (1978).

322 Ark. at 656-657. It is the prosecutor’s responsibility to provide reports of scientific tests and any information or materials concerning witnesses he or she intends to call. Ark. R. Crim. P. 17.1(a)(i), (iv); see also Burton v. State, 314 Ark. 317, 862 S.W.2d 252 (1993).

In the present case, Mosley filed several motions for discovery. The trial court entered at least two discovery orders in which it directed the attorneys to file a list of witnesses. The State provided witness lists to Mosley on September 27, 1994, and on April 17, 1995. Neither list included Worley’s name. Clearly, the State violated the discovery rules and such violation should not be dismissed lightly. However, the key in determining if a reversible discovery violation exists is whether the ’appellant was prejudiced by the prosecutor’s failure to disclose. Burton v. State, supra; citing Scroggins v. State, 312 Ark. 106, 848 S.W.2d 400 (1993).

In this case, Mosley’s theory was that the act of sexual intercourse had occurred, but it was consensual. This position was conveyed to the jury in Mosley’s opening statement. Thus, the admission of Worley’s testimony, offered to establish the chain of custody of Mosley’s blood and saliva samples used to prove that he could have had sexual intercourse with Sherry, was harmless error. It was in fact consistent with Mosley’s version of what occurred. As Mosley has shown no prejudice, no reversible discovery violation exists.

The record has been examined in accordance with Ark. Sup. Ct. R. 4-3(h), and no prejudicial error has been found which would warrant reversal.

Affirmed.


author: David Newbern, Justice.

text:
    Kittye MASON v. Jody JACKSON
    94-1352
    914 S.W.2d 728
    Supreme Court of Arkansas
    Opinion delivered February 5, 1996

      Edward O. Moody, for appellant.

      Gill Law Firm, P.L.C., by: John P. Gill, for appellee.
   David Newbern, Justice.

Jody Jackson, the appellee, teaches horseback riding. Kittye Mason, the appellant, is the mother of Lydia Mason who, as a teenager, was a student of Ms. Jackson. Kittye Mason agreed to pay Ms. Jackson $500 to find a 10-year-old gelding, trained as a hunter-jumper, to be purchased for some $10,000 for Lydia Mason. Kittye Mason brought tort and contract claims against Ms. Jackson resulting from dissatisfaction with the horse Ms. Jackson helped her purchase. The Trial Court held in favor of Ms. Jackson and awarded attorney’s fees to her. We affirm the judgment and the fee award.

After entering the agreement, Ms. Jackson heard of an 11-year-old horse named “Norway” she thought might be suitable. Norway was owned by Phil Devita, owner of Coral Hill Farm in Florida. Norway was for sale for $11,500. Ms. Jackson spoke to Carolyn Tanner, who was apparently an employee of Mr. Devita with whom Ms. Jackson was acquainted, who told her Norway was 11 years old. She then spoke of Norway to Kittye Mason who expressed interest. The two of them flew to Florida, along with Lydia Mason, to have a look at Norway and other horses in March 1990.

While in Florida, the threesome observed Norway’s abilities and temperament at a horse show, and Lydia Mason rode him. They discussed Norway with the Savills, who were his former owners. Ms. Savill testified that, when she purchased Norway in December 1988, he was eight or nine years old and she had him examined by a veterinarian in connection with her purchase of him. Although they looked at other horses while in Florida, Mrs. Mason and Lydia decided to purchase Norway.

Kittye Mason testified it was Ms. Jackson’s responsibility to have Norway examined by an independent veterinarian before the purchase was to be completed. Ms. Jackson testified that Kittye Mason asked Ms. Tanner to arrange for the veterinary examination to expedite the matter, as she did not want to spend more than four days on the trip. The veterinarian who examined Norway was Dr. Delius, the “barn vet” at Coral Hill Farm. He certified the horse to be 11 years old. Ms. Jackson testified she told Kittye Mason that it was Dr. Delius who performed the examination.

Norway was ill when he arrived by van at Ms. Jackson’s farm where he was to be stabled. He suffered from colic from time to time over the following year. Several witnesses testified that Lydia Mason treated Norway badly, and his condition could have been the result of stress from mistreatment. Despite that, he won a number of contests for Lydia Mason.

In October 1991, Dr. Joseph Hanley examined Norway at Ms. Mason’s request and determined Norway’s age to be over twenty. Kittye Mason sued Dr. Delius, Mr. Devita, and Ms. Jackson for breach of contract, fraud, negligence, and strict liability. The claims against Dr. Delius and Mr. Devita were dismissed for lack of personal jurisdiction. The claims against Ms. Jackson were tried without a jury. In his letter opinion, Judge Bogard wrote:

The court finds that the Plaintiff did not prove by a preponderance of the evidence any negligence on the part of the Defendant as to the selection of the horse or the veterinarian. The Defendant did all a reasonable person would do in procuring a suitable horse for the Plaintiff’s daughter. Even assuming that the Plaintiff was responsible for arranging for the veterinarian examination, no one testified that only an independent veterinarian should perform this type of examination. In fact, one horse trainer testified that she would rather have the horse’s regular veterinarian perform the examination. Several trainers that testified stated that they rely on the out of state trainer/seller to secure a veterinarian, whether independent or the usual veterinarian, for a sale examination. All witnesses testified that only a veterinarian could properly and safely age a horse.
In addition, there is absolutely no evidence before this Court that Defendant was a party to any misrepresentation, fraud, or deceit. The only issue for consideration is whether the Defendant breached an oral agreement with the Plaintiff when it was discovered that although Norway horse met all of the other requirements, he was not 11 years old. The Court notes that the Defendant admits that for a fee of $500, she did agree to find a horse meeting the above mentioned criteria. To put it simply, the Defendant was to put the Plaintiff in touch with such a horse, which she did. The agreement did not include a guarantee of the horse’s age by the Defendant. Both parties knew that they would have to secure a veterinarian to certify the horse’s age; both parties knew that ageing a horse was out of their realm of abilities. When the Plaintiff agreed to take the veterinarian’s word, the Defendant ceased to be part of the contract, or in other words, Defendant’s contract with the Plaintiff was completed. The court finds the Defendant did not breach her contract with the Plaintiff. It is not reasonable to construe that the intent of the parties’ agreement was that the Defendant would guarantee that Norway was 11 years old.

2. Code remedies

Several of Kittye Mason’s points of appeal have to do with the Trial Court’s failure to rule in her favor with respect to remedies prescribed in Article 2 of the Uniform Commercial Code for a buyer against a seller of goods. Ark. Code Ann. §§ 4-2-314 through 4-2-316 (Repl. 1991). We need not deal with those points in detail because the positions of Kittye Mason and Ms. Jackson were not those of buyer and seller. The agreement was for personal services and not for a sale.

The product liability remedies found in Ark. Code Ann. §§ 16-116-101 through 16-116-107 (1987) are for buyers against manufacturers and suppliers and for suppliers against manufacturers of defective products. Again, these parties do not fit those categories.

2. Negligence

Kittye Mason contended Ms. Jackson was negligent when she failed to find a horse that met her criteria. She appears to argue the Trial Court erred in failing to hold that Ms. Jackson breached her duty of care by failing to arrange for an independent veterinarian to certify Norway’s age and health prior to their trip to Florida and subsequently in connection with the purchase. In response, Ms. Jackson cites the testimony of several other horse trainers who stated that an examination by an independent veterinarian was not required, and that it was often desirable to use a veterinarian familiar with the horse. In addition, we note the Trial Court could have based his decision in substantial measure upon Ms. Jackson’s testimony that it was Kittye Mason who arranged the sale examination by Dr. Delius through Ms. Tanner.

To establish a prima facie case of negligence, the plaintiff must show that she sustained damages, that the defendant was negligent, and that such negligence was a proximate cause of the damages.

Negligence is the failure to do something which a reasonably careful person would do. A negligent act arises from a situation where an ordinarily prudent person in the same situation would foresee such an appreciable risk of harm to others that he would not act or at least would act in a more careful manner. White River Rural Water Dist. v. Moon, 310 Ark. 624, 839 S.W.2d 211 (1992).

Sanford v. Ziegler, 312 Ark. 524, 851 S.W.2d 418 (1993).

None of the other horse trainers who testified stated that it was customary to verify a horse’s age prior to showing him to a potential buyer. Rather, it appears that this determination can be made any time prior to purchase. None of those witnesses said an independent veterinarian must examine the horse. Nancy Sobba, a horse trainer from Jacksonville, testified that on out-of-state purchases, she has relied on an examination by a “barn vet,” or a doctor familiar with the horse.

We cannot say that any of the Trial Court’s factual conclusions were clearly erroneous, Ark. R. Civ. P. 52(a), or that his overall conclusion that Kittye Mason failed to present a preponderance of the evidence on the issue of negligence was wrong.

3. Attorney’s fee

Kittye Mason presents no argument with respect to breach of contract other than points which fall within Article 2 of the Uniform Commercial Code discussed above. Breach of contract was, however, a substantial issue before the Trial Court upon which Ms. Jackson prevailed.

Kittye Mason contends Ms. Jackson’s attorney had said to her attorney that he did not intend to charge his client a fee because she was a relative. Her contention now is that the fee arrangement must have been based on the contingency of Ms. Jackson prevailing in the lawsuit and that the fee arrangement thus was required to be in writing according to Model Rules of Professional Conduct 1.5.

In his order, the Trial Court stated: “It is within the Court’s discretion to award attorney’s fees to the prevailing party in a contract case. . . . [Ark. Code Ann. § 16-22-308 (1987).] As noted in the judgment . . . the Court focused on the breach of contract issue. . . . Defendant has incurred and should be awarded attorney’s fees in the amount of $6,000.”

Kittye Mason seems to be suggesting that Ms. Jackson did not incur an attorney’s fee and thus none should be awarded. The Trial Court held specifically that Ms. Jackson did incur an attorney’s fee. In these circumstances, the order of an attorney’s fee after entry of the judgment is a collateral matter. Marsh & McLennan of Arkansas v. Herget, 321 Ark. 180, 900 S.W.2d 195 (1995). We cannot properly review this point because, as Ms. Jackson points out, Kittye Mason has not filed a notice of appeal from the fee order and has not provided us with a record of a hearing held on the attorney’s fee issue.

Affirmed.

Glaze and Brown, JJ., not participating.