author: John I. Purtle, Justice.

text:
    Steve Anthony WIYOTT v. STATE of Arkansas
    CR 84-178
    683 S.W.2d 220
    Supreme Court of Arkansas
    Opinion delivered January 21, 1985

      Henry ir Mooney, by: Wayne Mooney, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   John I. Purtle, Justice.

Appellant appeals from his second offense conviction of driving while intoxicated by a jury in Crittenden County, Arkansas. He urges us to reverse his conviction because the trial court erred in allowing into evidence the appellant’s and his male companion’s state of dress (or undress) and because the evidence was insufficient to support the finding that he was in control of the vehicle. We find the state of dress was properly admitted and the evidence to be sufficient to sustain the conviction.

The police were called to the scene about 3:30 a.m. on October 13, 1983, where they discovered the appellant and his male companion asleep or passed out in a vehicle which was parked in the parking area of a grocery store in .West Memphis, Arkansas. The officers attempted to awaken them by slapping the roof of the vehicle, banging on the windows and hollering at them. Finally appellant was awakened and looked at the officers, then reached for the key, which was in the ignition, and attempted to start the vehicle. He was at that moment physically prevented from attempting to drive the automobile when the officers opened the door and grabbed him and took the keys from the ignition switch. The appellant was undressed from the waist down and his companion was undressed from the waist up. The officers later testified that there was a strong odor of alcohol in the car and on the appellant’s breath, that his eyes were bloodshot and that he was unable to walk. He refused to take the intoxalyzer test or to sign any papers

We first consider whether it was error to allow the jury to consider the state of dress of the occupants of the parked vehicle. The charge here is pursuant to Ark. Stat. Ann. § 75-2503(a) which prohibits being in control of a vehicle while “intoxicated.” The state was allowed to introduce the disputed evidence in support of the charge of intoxication. Even though the evidence presented may have indicated guilt of a separate misdemeanor, it was nevertheless relevant to show a course of conduct during the commission of the offense charged. Perry v. State, Til Ark. 59, 639 S.W.2d 344 (1982). When acts are so intermingled and contemporaneous with one another the evidence of all of them is admissible to show the circumstances surrounding the episode. Perry v. State, supra; Harshaw v. State, 275 Ark. 481, 631 S.W.2d 300 (1982); Russell & Davis v. State, 262 Ark. 447, 559 S.W.2d 7 (1977).

Having decided the evidence was relevant we must now decide whether it should have been excluded pursuant to Uniform Rule of Evidence 403. This rule provides that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979), cert. denied, 449 U.S. 852 (1980) and 459 U.S. 1020 (1982). Appellant relies on the case of Pitts v. State, 273 Ark. 220, 617 S.W.2d 849 (1981) to support his argument that evidence of homosexuality should have been excluded. Pitts is distinguishable. In the first place, the evidence in Pitts indicated the decedent was not homosexual. Additionally, the trial court ruled that references to homosexuality were not relevant and their admission would likely produce unfair prejudice outweighing any possible probative value. Whether to allow evidence establishing other crimes under certain circumstances is a matter that is within the discretion of the trial court. We will not reverse on appeal unless the trial court has abused his discretion. Price v. State, 268 Ark. 535, 597 S.W.2d 598 (1980).

We must consider Unif. R. Evid. 404 in conjunction with the argument relating to Rule 403. Rule 404 prevents evidence of other crimes, wrongs or acts from being admitted for certain purposes. The rule specifically allows evidence of other crimes for the purpose of showing motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. There seem to be more exceptions to this rule than there are adherences. This evidence, like evidence pursuant to Rule 403, is a matter within the discretion of the trial court. Price v. State, supra. The appellant’s mode of dress on this occasion was certainly not compatible with that of a normal person who was not intoxicated. Under the circumstances of this case we hold that the trial judge did not abuse his discretion in allowing this evidence to be introduced.

We must now decide the issue of whether appellant was in control of a vehicle within the meaning of Ark. Stat. Ann. § 75-2503 (a)(Supp. 1983). The appellant was found behind the steering wheel. The keys were in the ignition and when appellant awoke he attempted to start the vehicle. It does not matter that he failed to drive the vehicle away because he was prevented from doing so by the officers. There is no evidence that any one else had control over the automobile. We think the evidence in this case indicates that appellant was as much in control of his vehicle as an intoxicated person could be. No doubt any person who is intoxicated would be unable to control his vehicle in a safe and prudent manner. The Oklahoma Court of Criminal Appeals has considered a situation very similar to this one and pursuant to the same type of statute. We find the case of Hughes v. State, 535 P.2d 1023 (1975) to be persuasive. Hughes was seated beneath the steering wheel, slumped at an angle toward the passenger’s side, in a parked vehicle with the key in the ignition. The engine was not running and the driver was asleep. He was aroused by the investigating officers. Under those circumstances the Oklahoma Court of Criminal Appeals held that Hughes was in actual physical control of his vehicle within the meaning of the statute. The Oklahoma Court, in Hughes, in speaking about control stated: "the control contemplated meant more than the ‘ability to stop an automobile,’ but meant the ‘ability to keep from starting,’ ‘to hold in subjection,’ ‘to exercise directing influence over, ’ and ‘the authority to manage.’ ” (P. 1024) In the present case the evidence would support the finding that the appellant was exercising direct influence over his vehicle and had the authority to manage it. At any moment he could have awakened and started his vehicle. Although he probably would have been unable to safely guide and direct his vehicle, he nevertheless had control of it and could have attempted to drive it.

Affirmed.


source: Caselaw Access Project

author: Robert H. Dudley, Justice.

license: Public Domain

text:
    Brenda L. THOMPSON v. STATE of Arkansas
    CR 84-67
    682 S.W.2d 742
    Supreme Court of Arkansas
    Opinion delivered January 21, 1985
    [Rehearing denied February 25, 1985.]

      Charles L. Carpenter, Jr., for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appllee.
   Robert H. Dudley, Justice.

Appellant, Brenda Thompson, was found guilty of robbery and sentenced to twenty years in prison. Jurisdiction is in this Court, pursuant to Rule 29(1) (c), because appellant questions the construction of an act of the General Assembly. We reverse and remand.

Appellant was in the linen department of the J.C. Penney store on University Avenue in Little Rock. According to the State’s evidence, a security employee of the store, Debra English, was hidden in an observation booth and saw the appellant place four towels inside a large zippered purse. By phone, Miss English told another security emplbyee, Larry Newkirk, of her observation, left the booth, walked up to the appellant, identified herself, and asked appellant to go with her to a downstairs security office. At that time, the appellant unzipped the purse, started throwing out the towels, and began yelling, cursing, and hitting Miss English. Larry Newkirk arrived, and he and Miss English began escorting appellant to the security office where she again attacked Miss English. The police subsequently arrested appellant and gave her a Miranda warning. She did not make a statement.

At trial, the appellant denied that she had concealed any towels in her purse, and stated that Miss English grabbed her from behind, beat her, and did not identify herself. After giving her exculpatory version of the event, the prosecutor asked appellant if earlier she had given the police her version.

Q: Did you tell the police officer? Did you tell anyone else about being beaten?
MR. CARPENTER: Objection, Your Honor. She was taken into custody and is not required to make any statement after that.
THE COURT: The objection is overruled, sir.
Q: Did you tell the police officers that you had been beaten and kicked and stomped by Ms. English?
A: I don’t believe I did.
Q: So this is the first time you’ve told anybody outside your counsel who is here today. Is that correct?
A: I didn’t know I had to tell the policeman that.
Q: No, I just asked you if you did.
A: I said I didn’t.

During the closing argument the prosecutor highlighted the questions, over the. objection of appellant, by arguing that the discrepancy between the exculpatory story at trial and the silence at the time of arrest gives rise to an inference that the story was recently fabricated. "Is that reasonable? Is that true? And also remember, now, she didn’t bother to tell anybody this until today. She made it up when she came here to make herself look good.” Appellant assigns the rulings as error.

In an analogous case, the Supreme Court of the United States held that it is fundamentally unfair and a violation of the Due Process Clause of the Fourteenth Amendment to allow an arrested person’s silence at the time of arrest and after Miranda warnings to be used to impeach an explanation subsequently offered at trial. Doyle v. Ohio, 426 U.S. 610 (1976). Accordingly, we reverse.

Appellant argues that the case should be dismissed, rather than remanded, because there was insufficient evidence to support a charge of robbery. The argument is without merit. Robbery has been re-defined in the criminal code so that the focus of the event is shifted from the taking of property to the threat of physical harm to the victim. A person commits robbery if he employs physical force in attempting to commit a theft or if he employes physical force in resisting apprehension immediately after committing a theft. Ark. Stat. Ann. § 41-2103 (Repl. 1977). On review, we do not weigh evidence or judge the credibility of witnesses, instead, we consider the evidence most favorably to the appellee. McCree v. State, 266 Ark. 465, 585 S.W.2d 938 (1979). Viewing thé evidence in that light, there was substantial evidence from which a jury could find that appellant committed a theft and resisted apprehension immediately thereafter. One commits theft if he knowlingly exercises unauthorized control over the property of another person with the purpose of depriving the owner thereof. Ai=k. Stat. Ann. § 41-2203 (Repl. 1977). In addition, the State’s evidence was sufficient to invoke a statutory presumption of theft. Ark. Stat. Ann. § 41-2202(2) (Repl. 1977), in pertinent part, provides:

(2) Shoplifting Presumption. The knowing concealment, upon his person or the person of another, of unpurchased goods or merchandise offered for sale by any store or other business establishment shall give rise to a presumption that the actor took goods with the purpose of depriving the owner, or another person having an interest therein.

The state’s evidence that appellant resisted apprehension immediately after the theft need not be restated. There was sufficient evidence to support a charge of robbery. Thus, we do not dismiss.

Since there will be another trial, we answer the points which are likely to again arise.

The appellant contends that she was entitled to an instruction that theft is a lesser offense included within the crime of robbery. The argument confuses the distinction between element included offenses and lesser included offenses. Element included offenses are defined in Ark. Stat. Ann. § 41-105(l)(a) (Repl. 1977). They arise when one criminal offense, by statutory definition, cannot be committed without the commission of another underlying offense, and, by the language of the statute, although a defendant can be prosecuted for both offenses, a conviction cannot be had for both. Wilson v. State, 277 Ark. 219, 640 S.W.2d 440 (1982). The statute, § 41-105, in the pertinent part, provides:

(1) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if:
(a) one offense is included in the other, as defined in subsection (2); . . .
(2) . . . An offense is so included if:
(a) it is established by proof of the same or less than all the elements required to establish the commission of the offense charged.

However, an offense is not a lesser included offense solely because a greater offense includes all of the elements of an underlying offense. The lesser included offense doctrine additionally requires that the two crimes be of the same generic class and that the differences between the offenses be based upon the degree of risk or risk of injury to person or property or else upon grades of intent or degrees of culpability. An example of grading the offense based upon the degree or risk or risk of inj ury to person or property is battery in the first degree and battery in the second degree. An example of grades of intent or degrees of culpability is murder in the first degree and manslaughter.

Theft is the wrongful appropriation of the victim’s property while robbery is the threat of physical harm to the victim. The offenses are of a different nature. They are not of the same generic class and, consequently, theft is not a lesser offense included within robbery. Higgins v. State, 270 Ark. 19, 603 S.W.2d 401 (1980); Hill v. State, 276 Ark. 300, 634 S.W.2d 120 (1982). Appellant was not entitled to an instruction that theft is a lesser offense included within robbery.

The appellant contends that she was entitled to a standard instruction on justification, or self-defense. See AMCI4104. It is true that common law permitted reasonable resistance to an unlawful arrest. Patterson v. State, 141 Ark. 422, 217 S.W. 480 (1920). However, under Ark. Stat. Ann. § 41-512 (Repl. 1977) the defense of justification will fail if interposed in a case involving resistance to a lawful or unlawful arrest, whether or not under warrant, so long as the person resisting knew or should have known the arrest was by a law enforcement officer or a person acting under his direction. We have no decisional law determining whether a person may resist an unlawful arrest by one who is not a law enforcement officer which, appellant contends, is the situation in this case. However, we do not decide the issue because the instruction offered does not address the subjects of arrest, robbery, or theft. The Offered instruction was not applicable.

The appellant’s final argument is that the trial court erred in submitting the case for sentencing under the habitual offender statute. The argument is without merit since the appellant testified that she had been convicted of at least two prior felonies.

Reversed and remanded.

Holt, C.J., and Purtle, J., concur.


author: Steele Hays, Justice.

text:
    Chris IKANI v. Maggie BENNETT and Michael B. RUSSELL
    84-193
    682 S.W.2d 747
    Supreme Court of Arkansas
    Opinion delivered January 21, 1985

      Marion A. Humphrey, for appellant.

      Steve Clark, Att’y Gen., by: Curtis L. Nebben, Asst. Att’y Gen., for appellees.
   Steele Hays, Justice.

Christian Ikani, a counselor at the Department of Correction, filed this defamation suit against two other Department of Correction employees, Maggie Bennett and Mike Russell. In November, 1978, Ikani had been detained by the FBI for questioning in connection with an illegal sale of guns to Nigeria. He alleges that in 1983 Maggie Bennett slandered him by making a false statement to Mike Russell that he had been arrested for smuggling guns to Nigeria and Russell libeled him by recording the remárk in a file.

At the close of Ikani’s case Bennett and Russell moved for a directed verdict which the trial court granted. The case is appealed here oh the single issue that it was error to grant a directed verdict on the proof presented. We affirm the trial court.

Reviewing a motion for a directed verdict requires that the evidence be examined most favorably to the party against whom the verdict is directed, including all reasonable inferences that could be drawn from the evidence. If any substantial evidence exists tending to establish an issue of fact in favor of that party, it is error for the court to take the case from the jury. Dildine v. Clark Equipment Co., 282 Ark. 130, 666 S.W.2d 692 (1984); Farm Bureau Mutual Insurance Co. v. Parks, 266 Ark. 454, 585 S.W.2d 936 (1979).

We do not consider whether the fault requirement accorded media defendants in Gertz v. Robert Welch, 418 U.S. 323 (1974) and KARK-TV v. Simon and Smith, 280 Ark. 228, 656 S.W.2d 702 (1983), should be applied to nonmedia defendants, as our holding is not dependent on that point. It is still unsettled whether the fault principle announced in Gertz should be extended beyond the media (see Gertz and the Common Law of Defamation: Of Fault, Nonmedia Defendants, and Conditional Privileges, Vol. XV, Tex. Tech L. Rev., No. 4, p. 823), and the United States Supreme Court has expressly left that question open. See Hutchinson v. Proxmire, 443 U.S. 111 (1979). That issue need not be answered because the appellees pleaded and established the common law defense of privilege, which we believe is controlling here.

In Dillard Department Stores Inc. v. Felton, 276 Ark. 304, 634 S.W.2d 135 (1982), we recognized the interests of employers are subject to a qualified privilege, citing Restatement of Torts (Second), § 595 (1981) and Prosser, the Law of Torts, (3rd Edition), § 110. The privilege is defined in Merkel v. Carter Carburetor Corp., 175 F.2 323 (8th Cir. 1949), as:

A privileged communication is an exception to the rule that every defamatory publication implies malice. A qualified privilege is extended to a communication made in good faith upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, either legal, moral, or social, if made to a person having a corresponding interest or duty and the burden of proving the existence of malice is cast upon the person claiming to have been defamed.

There is no substantial evidence in this case the appellees acted from improper motives, or that the privilege was abused or exceeded reasonable bounds. The basis for the privilege is plain, both Bennett and Russell had supervisory responsibilities over appellant. That Maggie Bennett was Ikani’s superior is not questioned, but as to Mike Russell, Ikani’s testimony is inconclusive — at one point he wasn’t sure whether Russell had supervisory status, at another point he seemed to make that concession. If any doubt remains, the testimony of Dr. R. F. Musolino, head of the unit to which these parties were assigned, a witness for Ikani, settles the matter. Russell, he said, was in charge of Ikani.

Thus, we have an exchange of information between two supervisory employees concerning an employee under their charge and for whose performance they are responsible. The information, touching as it did on possible illegal activity, was not merely relevant to job performance, but in the charged atmosphere of this particular employment, to the security of the prison itself. There was uncontradicted proof that information of this kind was systematically used by inmates to extort favors or bribes from personnel about whom damaging information was known. We think it would not be in the public interest to impede the free exchange of relevant information between individuals having the responsibilities of these appellees by removing the privilege given their utterances, so long as those communications do not exceed the limits of the privilege and are not primarily inspired by ill will or spite.

We find no substantial evidence that Russell divulged the notation in his file to others. Ikani mentioned Lt. Jimmy Taggart as one possibility, but Taggart, who was Ikani’s witness, said he had never seen Russell’s file, that Ikani himself told him about the incident. Besides, Taggart was Chief of Security of the Unit, and we are not prepared to say the privilege would not apply to him in the absence of any argument from the appellant to that effect.

We noted in Dillard v. Felton, supra, that the privilege is not absolute, but is subject to the condition that the communication must be exercised in a reasonable manner and for a proper purpose. The immunity does not protect a defendant from publication to persons other than those whose hearing is reasonably believed to be necessary and useful for the furtherance of that interest. Here, appellant’s brief does not discuss the pivotal issue of privilege, it simply argues that the statements were false, were injurious to Ikani’s reputation, and hence a prima facie case of defamation was established. But when the defense of privilege is pleaded and established in the first instance, as in this case, the burden shifts to the plaintiff to prove the privilege has been abused by excessive publication, by use of the occasion for an improper purpose, or by lack of belief or grounds for belief in the truth of what is said. Prosser and Keeton on Torts, (5th Edition), § 115, p. 835. McClain v. Anderson, 246 Ark. 638, 439 S.W.2d 296 (1969).

Affirmed.


text:
    Robert OLIVER v. STATE of Arkansas
    CR 84-174
    682 S.W.2d 745
    Supreme Court of Arkansas
    Opinion delivered January 21, 1985

      R. W. Laster, for appellant.

      Steve Clark, Att’y Gen., by: Velda P. West, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Appellant, Robert Oliver, was convicted of violating the Omnibus DWI Act of 1983. On appeal he challenges the sufficiency of the evidence and the interpretation and construction of a section of the act, Ark. Stat. Ann. § 75-2502(a). The pertinent section reads;

“Intoxicated” means influenced or affected by the ingestion of alcohol, a controlled substance, or a combination thereof, to such a degree that the driver’s reactions, motor skills and judgment are substantially impaired and the driver, therefore, constitutes a clear and substantial danger to himself and other motorists or pedestrians.

The gist of the argument is that because the state failed to present any evidence as to appellant’s reactions, motor skills and judgment under normal conditions, it necessarily failed to prove these responses had been substantially impaired. The appellant argues that in any case the state failed to show he was intoxicated as that term is defined under § 75-2502(a).

Appellant’s argument is without merit. The statute is clearly intended to describe and measure behavior that is so substantially altered that it presents a danger to the driver and others. The driver’s skills under normal conditions are immaterial. It is driving with those skills impaired to the extent that it causes the danger outlined in the statute that brings the driver within the proscribed activity.

In this case it is quite evident appellant’s driving skills were sufficiently impaired to create a substantial danger to himself and others. The arresting officer testified he clocked the appellant’s car going 62 miles per hour in a 45 miles per hour zone. He said the appellant’s oncoming vehicle was making a curve and traveling left of the center line causing the officer to have to dodge the car. The officer turned around, followed appellant and at one point observed him traveling completely over the center line. He stopped the car and gave the appellant a field sobriety test. Appellant was able to touch the tip of his nose with his left finger but missed entirely with his right. The officer gave appellant a dexterity test by starting with the small finger and counting up to four and reversing: one, two, three, four, four, three, two, one. The officer asked him to do it twice. Appellant responded with “four, one, three, two, four, four,” and then made no further attempt to finish the test. Appellant, he said, became so abusive and threatening that he handcuffed him. The chief photographer for a television station who was accompanying the arresting officer corroborated the officer’s testimony and testified that the odor of alcohol was present after the appellant got in the patrol car with them. The supervising officer who met the appellant at the detention center testified the appellant appeared to be very intoxicated, that his face was flushed, his eyes bloodshot, his speech slurred and that he was unsteady on his feet. Appellant admitted to drinking up to five beers between 12:00 a.m. and 2:00 a.m.

Under our prior DWI laws we have found similar evidence sufficient to sustain a conviction of driving while under the influence of intoxicants. See Walker v. State, 241 Ark. 396, 408 S.W.2d 474 (1966); Atha v. State, 217 Ark. 599, 232 S.W.2d 452 (1950). While the language of our previous statutes, Acts 1949, No. 255, differs from the act nowin force, we have no reason to find the superseding statute greater in its requirement of proof for conviction. To the contrary, the emergency clause of the Omnibus Act makes it clear the legislative intent was to create a strict statutory scheme to deter potential intoxicated drivers.

It is hereby found and determined by the Seventy-Fourth General Assembly that the act of driving a motor vehicle while under the influence of intoxicating alcoholic beverages or drugs constitutes a serious and immediate threat to the safety of all citizens of this State, and that increasing the penalty for this dangerous conduct may serve as a deterrent to such behavior.

There was substantial evidence presented in this case to sustain a conviction of driving while intoxicated under Ark. Stat. Ann. § 75-2503(a) and the judgment is affirmed.


author: David Newbern, Judge.

text:
    POPE COUNTY v. Alex STREETT and James K. YOUNG
    84-192
    682 S.W.2d 749
    Supreme Court of Arkansas
    Opinion delivered January 21, 1985

      Steve Clark, Att’y Gen., by: RandelK. Miller, Asst. Att’y Gen., for appellant.
    No response by appellees.
   David Newbern, Judge.

The appellant county asserts the unconstitutionality of Ark. Stat. Ann. § 43-2419 (Repl. 1979). Our jurisdiction thus is based on Supreme Court and Court of Appeals Rule 29(1) (c).

The judgment required the county to pay pursuant to § 43-2419 attorney fees to the appellees for representing indigent defendants. The case was submitted to the circuit court on a stipulation of facts. The stipulation notes the contention of the county that the “statute is unconstitutional.”

Nothing in the abstract or the record shows that the appellant gave the trial court any reason for holding the statute unconstitutional. In this court, however, the appellant argues that in a case in which a fine upon conviction goes to the city the statute requiring the county to pay fees to court appointed defenders of indigents violates Ark. Const, amend. 14 which prohibits local legislation, violates the state and federal constitutional requirements for equal protection and violates the constitutional requirement of separation of powers.

We will not consider constitutional arguments raised for the first time on appeal, Taylor v. Patterson, 283 Ark. 11, 670 S.W.2d 444 (1984), even though the trial court may have been made generally aware of the contention of unconstitutionality of legislation or may have received other arguments of unconstitutionality. Sweeney v. Sweeney, 267 Ark. 595, 593 S.W.2d 21 (1980).

Affirmed.


author: David Newbern, Justice.

text:
    JOEY BROWN INTEREST, INC. and John F. BROWN v. THE MERCHANTS NATIONAL BANK OF FORT SMITH
    84-200
    683 S.W.2d 601
    Supreme Court of Arkansas
    Opinion delivered January 21, 1985

      Warner & Smith, by: G. Alan Wooten, for appellants.

      Thompson, Paddock & Llewellyn, P.A., by: William P. Thompson, for appellee.
   David Newbern, Justice.

This case presents questions of the propriety of granting summary judgment. The case was certified to this court because defamation is involved. Our jurisdiction arises from Supreme Court and Court of Appeals Rule 29(1 )(o).

The Merchants National Bank of Fort Smith sued Joey Brown Interest, Inc., and John F. Brown, individually and as president of the corporation, for failure to pay a promissory note which the bank had taken from the corporation and which was guaranteed by John F. Brown. Brown drafted an answer and counterclaim without the assistance of counsel. The bank prevailed with respect to the note and was awarded a judgment on its claim. No aspect of that claim or judgment is at issue here.

The bank was also awarded a summary judgment with respect to the counterclaim. It is from this summary judgment that this appeal is taken.

In their counterclaim, Brown and the corporation made four allegations. First, they alleged the bank had improperly sent a certificate of deposit it had issued to Brown’s mother to the Yell County Chancery Court in response to a writ of garnishment against Brown. Secondly, they alleged the bank had improperly frozen Brown’s Keogh retirement account in response to the same writ of garnishment. Thirdly, they alleged the bank had failed to honor Brown’s request that the bank, in credit reports issued by the bank on Brown, make note of the effect of the garnishment writ on his financial situation. The fourth allegation was simply that the bank had “defamed and damaged” Brown and the corporation.

In support of its motion for summary judgment on these claims the bank submitted affidavits of bank officers who recited the facts surrounding the bank’s receipt of the writ of garnishment from the Yell County Chancery Court. One affidavit made it clear that when the writ was received by the bank Brown’s name appeared, with that of his mother, as a joint owner with right of survivorship on a certificate of deposit held by the bank. The writ of garnishment, which appears in the record as an exhibit to each of the bank officers’ affidavits, required the bank to report any “goods, chattels, moneys, credits and effects” belonging to John F. Brown.

In response to the bank’s motion for summary judgment Brown submitted his own affidavit. The facts recited with respect to the first allegation were that Brown’s name was on the certificate of deposit as ”a matter of convenience,” and that upon being told of the writ by an officer at one bank branch Brown went to a different branch where he cashed the certificate of deposit and used the cash to purchase another certificate solely in his mother’s name. This later certificate was the one sent to Yell County.

With respect to the second allegation, the facts recited were that Brown’s Keogh account was withheld from him when he asked that it be transferred from the bank to another depository. Brown’s affidavit recites he was not informed that the Keogh account was to be held pursuant to the writ at the same time he was informed the certificate of deposit was to be held. His affidavit recites further that no subsequent writ of garnishment was issued.

As to the third allegation, the affidavit of Brown states the bank did not furnish him with copies of notice given to the credit bureau advising the credit bureau of the “disputed status of my Keogh account and my mother’s C.D.” It is not clear whether Brown is complaining that the bank did not honor his request to issue reports to unnamed persons or that the bank did not include the information on reports it made. He also stated the bank had refused to turn over his mother’s certificate and the Keogh account “upon being notified that [he] had posted a supersedeas bond to insure collection” of the judgment which was the basis of the garnishment writ.

Brown does not state by whom the notice was given to the bank. It should be noted here that the record shows that when the Yell County Chancery Court ultimately released the bank from the writ of garnishment the bank promptly paid off the certificate of deposit and transferred the Keogh account.

Finally, presumably in support of the defamation allegation, Brown’s affidavit made in support of the response to the summary judgment motion states:

Numerous employees of Merchants National Bank have told others of my financial status, the Writs of Garnishment, etc. and subjected me to ridicule in the community by others. These actions have caused me to be unable to carry on my business in a normal manner which requires a good credit standing in the community and as a result thereof I have been damaged.

In awarding summary judgment to the bank, the judge pointed out that Brown had no standing to complain about the bank holding a certificate which Brown alleged belonged to another. Nor had he presented any facts or, for that matter, law showing the bank should have or could have ignored the writ of garnishment with respect to the Keogh account. As to the credit reports, nothing presented by Brown showed the bank had made any such reports or had a duty to make any. The judge was entirely correct in stating there was no genuine issue of material fact in dispute as to these allegations. As to these allegations there was a proper motion for summary judgment which was supported by factual affidavits in accordance with Ark. R. Civ. P. 56(b) and (c), and we find it was properly granted.

The defamation claim gives us a little more pause. Nothing was said in the affidavits, submitted with the bank’s summary judgment motion, about the defamation claim. It is clear that the counterclaim stated no facts showing Brown and the corporation were entitled to relief for defamation. Ark. R. Civ. P. 8(a). The claim thus could have been dismissed for failure to state facts upon which relief could be granted. Ark. R. Civ. P. 12(b)(6). Harvey v. Eastman Kodak Co., 271 Ark. 783, 610 S.W.2d 582 (1981). See, H. Brill, Faculty Note, 34 Ark. L. Rev. 722 (1981). A motion to dismiss for failure to state facts upon which relief could be granted was made as to the entire counterclaim. The motion was, in effect, granted by the court in a default judgment which dismissed the counterclaim with prejudice. However, that judgment was set aside, and the motion to dismiss was not thereafter pursued by the bank which pursued instead its summary judgment motion. Some, perhaps all, of the allegations of the counterclaim, in addition to the defamation claim, could have been dismissed for failure to state facts upon which relief could be granted, but they were not, and, as stated, we have no difficulty with the summary judgment as to them.

The question as to the defamation allegation becomes whether we should affirm the summary judgment in spite of the failure of the moving party to address it in the supporting affidavits. This, in turn, raises questions as to the relationship between the motion to dismiss for failure to state facts upon which relief may be granted and the summary judgment motion, questions which have not been addressed by this court.

We begin by looking to the language of Ark. R. Civ. P. 12(b) which provides that if, on a Rule 12(b)(6) motion,

.... matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary j udgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

Thus, under some circumstances the summary judgment motion is an extension of the motion to dismiss for failure to state a claim. While the motion to dismiss alleges the failure to state a claim, the motion for summary judgment in these circumstances, alleges the failure to have a claim.

Was it proper to grant a summary judgment as to the defamation allegation which stated no facts sufficient for relief, given the failure of the bank to support its motion by affidavit or otherwise? May a motion for summary j udgment be made on the basis of the pleadings? The federal courts, interpreting FRCP 56 upon which our rule was modeled, say it may. See, e.g., Schwartz v. Compagnie General Transatlantique, 405 F.2d 270 (2d Cir. 1968); Chambers v. U.S., 357 F.2d 224 (8th Cir. 1966). See also J. Moore, Federal Practice, § 56.02[3], pp. 56-28 and 56-29 (Supp. 1976); C. Wright, A. Miller and M. Kane, Federal Practice and Procedure, § 2713, at p. 594 (1983).

In U.S. v. Zibilich, 542 F.2d 259, n.3 at pp. 260-261 (5th Cir. 1976), the court noted that where it was not clear whether the trial court’s decision was in response to a motion to dismiss under FRCP 12(b)(6) or FRCP 56, the distinction was immaterial because in that case the question was the same, i.e., whether the moving party was entitled to relief in view of the failure of federal law to recognize the claim asserted.

In Chambers v. U.S., supra, Judge Mehaffy dealt with a similar case and resolved the problem as follows:

The purpose of our summary judgment rule is to expeditiously determine cases without necessity for formal trial where there is no substantial issue of fact and is in the nature of an inquiry to determine whether genuine issues of fact exist. If no factual dispute exists and the complaint does not state a cause of action, it should be disposed of by summary judgment rather than exposing the litigants to unnecessary delay, work and expense in going to trial when the trial judge would be bound to direct a verdict in movant’s favor after all evidence is adduced. [357 F.2d at 227]

A summary judgment motion may be made on the pleadings alone. That is particularly so in a case like this where the allegation is defective. The response to the motion, by affidavit or otherwise, must set forth specific facts, Ark. R. Civ. P. 56(e), and may not consist of conclusions. Turner v. Baptist Medical Center, 275 Ark. 424, 631 S.W.2d 275 (1982).

In Ratliff v. Moss, 284 Ark. 16, 678 S.W.2d 369 (1984), this court held that where it was apparent the trial court was granting a motion to dismiss for failure to state facts upon which relief could be granted rather than granting a summary judgment the losing party should be given a chance to plead over, and the judgment was modified to permit the plaintiff to plead over. Here, however, we hold it was appropriate for the court to grant a summary judgment in view of the failure of Brown to show there was any factual issue remaining on his defamation claim. In other words, our decision is based not on the counterclaim’s inadequacy but on the inadequacy of the response to the summary judgment motion.

Brown and the company did not amend their countercláim even after the motion to dismiss was made and the default judgment, which was later set aside, dismissed it with prejudice because of its lack of merit. They were fortunate to get beyond the pleading stage. When given an opportunity to recite specific details of the defamation allegation in response to the summary judgment motion, Brown only said numerous unnamed bank employees had told unnamed others about the writ of garnishment and his financial status. There are no facts to indicate these alleged communications were untrue or that they were made in the course of employment with the bank. The motion was therefore not opposed by specific factual statements required by Rule 56(e).

Affirmed.


author: Per Curiam.

text:
    FORD MOTOR CREDIT COMPANY v. Ross NESHEIM
    84-818
    682 S.W.2d 750
    Supreme Court of Arkansas
    Opinion delivered January 21, 1985
    No response.

      Joe Tresp, Meredith Wineland, and Boswell, Smith & Clardy, by: David E. Smith, for appellee.
   Per Curiam.

This litigation is pending in the Pulaski Chancery Court, Third Division. On October 26, 1984, the chancellor entered an order granting the plaintiff’s motion to certify the case as a class action. On November 26, Ford Motor Credit Company filed a petition in this court, No. 84-290, Ford Motor Credit Company v. Judith Rogers, Chancellor, seeking a writ of prohibition to prohibit the chancellor from proceeding with the case as a class action. The petition for prohibition was accompanied by a record of the pleadings and order in the chancery court, including Ford Motor Credit Company’s notice of appeal from the October 26 certification order, but not including the testimony at a hearing upon which the order was based. The petition for prohibition is still pending, only the petitioner’s brief having been filed.

On December 21 Ross Nesheim and others, self-styled appellees, filed a motion which was numbered by the clerk as 84-318 and captioned Ford Motor Credit Company, Appellant, v. Ross Nesheim et al., Appellees. The motion asked (I) that the record in the prohibition case be treated as the record in this appeal, and (2) that the appeal be dismissed for want of a final order in this court.

As Ford Motor Credit Company’s response points out, no appeal has been perfected from the October 26 certification order. The mere filing of a notice of appeal in the trial court does not transfer the case to this court. There being no appeal subject to dismissal, and no record in the case, the motion to dismiss the appeal is denied and this case, Number 84-318, is stricken from the docket.

(By inadvertence, the Court handed down a per curiam order on January 14, denying the motion to dismiss the appeal, but no opinion accompanied the order. The present opinion states the Court’s position in denying the motion to dismiss the appeal.)


text:
    Tad Anthony ISOM v. STATE of Arkansas
    CR 83-84
    682 S.W.2d 755
    Supreme Court of Arkansas
    Opinion delivered January 21, 1985

      Appellant, Pro Se.

      Steve Clark, Att’y Gen., by: Matthew Wood Fleming, Asst. Att’y Gen., for appellee.
   Per Curiam.

Petitioner Tad Anthony Isom was found guilty by a jury of rape and sentenced to a term of 20 years imprisonment and a $5,000 fine. We affirmed. Isom v. State, 280 Ark. 131, 655 S.W.2d 405 (1983). Petitioner now seeks permission to proceed in circuit court for postconviction relief pursuant to A.R.Cr.P. Rule 37 on the ground that he was not afforded effective assistance of counsel at trial.

During voir dire venireman Hill said that if he were on trial he would want to testify. He also said that he worked with the victim’s boyfriend. Petitioner contends that counsel was ineffective in failing to exercise a peremptory challenge to exclude Mr. Hill from the jury.

To prevail on an allegation of ineffective assistance of counsel, the petitioner must establish that the conduct of counsel prejudiced him so as to undermine the proper functioning of the adversarial process. Strickland v. Washington, _U.S__, 104 S. Ct. 2052 (1984). The object of a review of a claim of ineffectiveness of assistance of counsel is not to grade counsel’s performance but to find actual prejudice. Strickland v. Washington. Petitioner has not shown that he was prejudiced by counsel’s representation.

Hill said that he had not discussed the case with the victim’s boyfriend and that he could make a decision in the case without any “feeling oneway or the other.” He was not asked to elaborate about wishing to testify if it were his trial, but he did answer “yes” when asked if he understood that petitioner was not required to testify and that the failure to testify should not be held against him. Hill also said he could give petitioner a fair and impartial trial and would hold the state to its burden of proving guilt beyond a reasonable doubt.

Petitioner also contends that three other jurors, Newman, Branch and Dunlop, were either employed with relatives of the prosecutrix or acquainted with her family. He does not, however, demonstrate any actual bias on the part of any juror.

Jurors are presumed unbiased and qualified to serve. Linell v. State, 283 Ark. 162, 671 S.W.2d 741 (1984). The petitioner has the burden of proving that a juror was biased. Urquhart v. State, 275 Ark. 486, 631 S.W.2d 304 (1982). The mere fact that a juror may have been acquainted with the victim’s friends or family does not give rise to a presumption of bias. Petitioner here has not established that any juror was biased or that any actual prejudice arose from counsel’s decision not to challenge a particular juror.

Counsel did not object to the testimony of Officer Charles Cater concerning the chain of custody of the “rape kit” until after his testimony was fully completed. We held on appeal that the objection, which was made on the ground that Cater’s name had not been supplied in response to a motion for discovery, was not timely. Petitioner alleges that counsel was incompetent for not lodging the objection soon enough to prevent the testimony.

Cater was not the only witness to testify about the rape kit and petitioner has not shown that it could not have been admitted into evidence even without Cater’s testimony. As we noted on appeal, there was no real possibility of substitution since only one kit came from the hospital in Jefferson County and there was no evidence of tampering. Moreover, even if Cater’s testimony would have been stricken on timely objection and the rape kit not admitted as a result, there is nothing to indicate that the conduct of counsel in not making the objection undermined the proper functioning of the adversarial process. See Strickland v. Washington. There was ample evidence of petitioner’s guilt even without the evidence related to the rape kit.

Petitioner next alleges that the trial judge, the prosecutor and his attorney all entered the jury room during the jury’s deliberations because the jury requested additional instructions. He argues that counsel should have objected since he was not also taken into the jury room. The record does not reflect a request by the jury for further instructions, but petitioner has attached to his petition the affidavits of several persons who state that counsel and the judge entered the jury room.

Although petitioner argues that he was materially prejudiced by the fact that counsel and the court may have met with the jury without him, an evidentiary hearing is not required where a petitioner cannot say that counsel’s conduct created any prejudice. To grant postconviction relief on a conclusory allegation with no showing that counsel in any way impeded the fair adjudication of the accused’s guilt or innocence would undermine the purpose of our postconviction rule, which is to provide a remedy where counsel’s incompetence demonstrably affected the petitioner’s right to a fair trial.

Petitioner did not testify in his own behalf. He avers in this petition that he was willing to testify and counsel would not permit him to do so. The accused has the right to choose whether to testify at his trial. Moore v. State, 244 Ark. 1197, 429 S.W.2d 122 (1968). Counsel may only advise the accused in making the decision. Watson v. State, 282 Ark. 246, 667 S.W.2d 953 (1984). Nevertheless, a petitioner must do more than simply state that he was not allowed to testify. He must state specifically what the content of his testimony would have been and demonstrate that his failure to testify resulted in actual prejudice to his defense. To reiterate, there can be no finding of ineffective assistance of counsel without a showing of prejudice sufficient to undermine the proper functioning of the judicial process. Strickland v. Washington.

Furthermore, although petitioner first advances the bare allegation that counsel “failed to permit the petitioner to testify in his own behalf against his own wishes,” he goes qn to say as factual support for the allegation that he “expressed his willingness” to testify. It appears that counsel made a professional judgment that as a matter of trial strategy it would be improvident for petitioner to take the stand even though he was willing to do so. Another attorney when faced with the overwhelming evidence against petitioner might have assessed the exculpatory or mitigating value of petitioner’s testimony differently and advised him to testify, but this fact merely points out the diversity among attorneys when confronted with a difficult tactical decision. It is evident from counsel’s questioning in voir dire that she adopted at the outset of the trial the strategy whereby petitioner would remain silent. Even if it were unwise of counsel to have mentioned in voir dire the fact that petitioner would not testify, the decision to advise a client not to take the stand is a tactical one within the realm of counsel’s professional judgment, and matters of trial tactics and strategy are not grounds for postconviction relief. Watson v. State; Leasure v. State, 254 Ark. 961, 497 S.W.2d 1 (1973). Neither mere error on the part of counsel nor bad advice is tantamount to a denial of a fair trial. Hayes v. State, 280 Ark. 509, 660 S.W.2d 648 (1983).

Finally, petitioner asserts that the errors and omissions of counsel were "cumulatively prejudicial.” This Court does not recognize cumulative error in allegations of ineffective assistance df counsel. Guy v. State, 282 Ark. 424, 668 S.W.2d 952 (1984); Henderson v. State, 281 Ark. 306, 663 S.W.2d 734(1984).

Petition denied.


author: Per Curiam. Purtle J.,

text:
    Ray WADE v. Bob TOMLINSON, Sheriff of Lawrence County and ALL Others Similarly Situated.
    CR 84-187
    682 S.W.2d 751
    Supreme Court of Arkansas
    Opinion delivered January 21, 1985
    Petitioner, Pro Se.

      Steve Clark, Att’y Gen. by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Per Curiam.

Ray Wade has petitioned for habeas corpus and certiorari which we granted in part to bring up the record. The record reflects that petitioner is in custody of the sheriff of Lawrence County under a charge of terroristic threatening in violation of Ark. S tat. Ann. § 41 -1608, having allegedly threatened to kill Helen Wade.

The State moved to commit the petitioner to the State Hospital for observation pursuant to Ark. Stat. Ann. § 43-1304, and when the petitioner refused to waive insanity as a defense, the circuit judge granted the motion. While that commitment was awaiting execution petitioner filed the habeas corpus petition. By amendment filed December 19, 1984, we are told petitioner has been transfered to the Arkansas State Hospital for nervous diseases pursuant to the order. Whether petitioner has been returned to the custody of the sheriff of Lawrence County is not diclosed.

Several lengthy petitions for habeas corpus and certiorari have been filed in this court subsequent to the issuance of the writ of certiorari to bring up the record, none of the state grounds for habeas corpus relief pursuant to Ark. Stat. Ann. § 34-1701 etseq. (Repl. 1962). The petitioner is in custody pursuant to a process which appears regular and valid on its face and the Circuit Court of Lawrence County has jurisdiction to try the petitioner on the charge pending against him. Mitchell v. State, 233 Ark. 578, 346 S.W.2d 201 (1961).

Assuming petitioner has been returned to Lawrence County he will doubtless be tried expeditiously or given another opportunity for a release on his own recognizance in accordance with A.R.Cr.P. Rule 5.1. We note that on November 1, 1984, the circuit judge pointedly gave petitioner that opportunity, but declined to release him because he refused to make a single, direct response to the court that he would appear for trial or hearing as directed. Rule 5.1(d) “Release on own recognizance” defines a release without bail as requiring the defendant to promise to appear at all appropriate times before the court. Unless petitioner is willing to give that assurance to the court, he is not entitles to release prior to trial other than by bail.

Petition denied.

Purtle J.,

dissenting. I disagree with the majority because I think the petitioner is entitled to relief either by way of Habeas Corpus or release on his own recognizance. It is necessary to state enough of the facts to enable the reader to understand what has transpired in this case up until the present time.

On June 5, 1984, the prosecuting attorney filed an information in which Ray Wade was charged with terroristic threatening pursuant to Ark. Stat. Ann. § 41-1608. An attached affidavit executed by Jim Stallcup reads as follows: ‘‘I have investigated this matter and the facts justify the filing of the charge. ” No other affidavit or statement is in the record. A bench warrant was served on June 8, 1984, at which time petitioner was taken into custody and detained in the Lawrence County Jail.

On June 11, 1984, the appellant was advised of his constitutional rights. The first advice given to the petitioner was, “YOU HAVE THE RIGHT TO REMAIN SILENT.” On June 12, 1984, the petitioner filed for a writ of Habeas Corpus in the Lawrence County Circuit Court. The following day he filed a petition to be released on his own recognizance. The same day about 36 friends and relatives of the petitioner presented a statement in support of the petitioner’s request for release on his recognizance. He was taken before Municipal Judge Harry Ponder on June 14, 1984, and was released on his own recognizance on condition that he not disturb his wife.

So far as the record revealed, nothing officially transpired in this case until October 8th, 1984, at which time the petitioner voluntarily appeared before the Lawrence County Circuit Court, Judge Andrew Ponder presiding, for arraignment on the charge of terroristic threatening. The court informed petitioner that he would have to give spoken answers. The court stated, “Can you hear me? But you don’t want to answer me? Is that what it is? Alright. Mr. Sheriff, if you will, the defendant is in your custody, until he decides that he can conduct himself like other people and answer civil questions from the court.” On the same date the state filed a petition and the court entered an order the next day (October 9, 1984) committing the petitioner to the State Hospital for observation for a period of not less than 30 days. He was transported to the state hospital on December 13, 1984. An answer to petitioner’s request for Habeas Corpus was filed,on behalf of the respondents, by attorney Harry L. Ponder, on October 19, 1984.

On or about October 29,1984, petitioner, and his friend, commenced filing pleadings in this court. The original pleading was a petition for Habeas Corpus. Various and numerous pleadings were subsequently filed in the Lawrence County Circuit Court and in this court. A trial or hearing of some sort was commenced in the Lawrence County Circuit Court on the first day of November, 1984. On this date or some unspecified previous date an attorney had been appointed by the court to represent the petitioner. The first question presented to the court by the attorney was “Your Honor, for the purpose of the . . . for my benefit, could the court state the grounds for Mr. Wade being in jail at present.” Response by the court was as follows; “Mr. Westerfield, you don’t have to inquire. The reason I had him brought around was not at your request, but — I will make myself clear.” The court then explained that it had attempted to inquire of Mr. Wade about setting bond and explaining the charges on October 8, 1984. The court stated that since Mr. Wade would not respond he was asked whether he could hear the questions by the court ánd he nodded in the affirmative. The court then stated, refering back to the hearing of October 8, 1984: “And I said, ‘Well then, am I correct in assuming that you can hear me liut you just don’t want to answer?’ and he nodded with his head in such a way that I thought he meant yes. So he was placed in jail because it appeared to the court that he was not competent at that time to appear without an attorney. And the court could get no response from him.” The court went on the explain why petitioner was being held in jail by stating, “He’s not being held for punishment of any sort. He’s being held because they can’t take him at the State Hospital and his behavior has been bizarre enough that the state felt that a defense of insanity might well be sought.” The court then went on to explain that he would be inclined to let petitioner out on some sort of bond if there was assurance that he would report to the sheriff’s office when it came time to take him to the State Hospital. Mr. Westerfield then informed the court that the petitioner did not desire Westerfield’s assistance. Mr. Westerfield then told the court that petitioner had informed him "[that he] would report back to the court at whatever time the court appointed. He was, I believe, on some type of bond. Perhaps an O.R. Bond. . . . from June until October. And Mr. Wade, from talking with him, has advised me that if the court tells him to be back here on December 3, or November 20, or January 1, or whenever, he will be here . . . whether its for the court or whether its for transportation to the State Hospital for observation.” The court then inquired whether Mr. Wade (petitioner) wanted to tell the court that he would be back when the court told him too. The appointed attorney then asked petitioner if he would be back. The court replied, “No, Mr. Westerfield, I am not talking about from Wade to Westerfield to Stallcup to Ponder. And you know I am not. Mr. Wade knows that I am not. Do you want to assure this court that you will be back here whenever we want you back? Alright. That concludes this hearing.” Petitioner was then returned to jail.

This court entered Certiorari on November 27,1984, but ordered the expense of the record to be paid by the petitioner. A statement of indigency was filed in this court but it was not acted upon and petitioner’s friend paid our filing fee of $100.00. The clerk charged $295.55 and the court reporter $30.00 for the 150 page record, including the 11 pages of testimony and court proceedings. The record was lodged in this court on December 6,1984. Petitioner was committed to the State Hospital for observation on December 13,1984. He was found without mental disease or defect and released to the Lawrence County Sheriff on December 24, 1984. An amended petition was tendered to this court on December 31, 1984. In addition to the numerous allegations previously filed the latest amended petition alleges that petitioner is suffering from diabetes for which treatment is required but refused by the Lawrence County Sheriff’s Department. This amended petition also points out that petitioner was denied access to the law library and books as well as writing materials.

The facts of this case are indeed unusual. Petitioner was picked up on a charge of terroristic threatening. There is no supporting factual affidavit by anyone which even attempts to describe any act of terroristic threatening. In fact the wife, who may have been complianing party, has filed an affidavit wherein she declares she is not afraid of petitioner and joins in a request for his release. It has been more than seven months since petitioner was arrested and placed in jail. He was sent to the State Hospital on the motion of the state even though there had been absolutely no hint that he would plead mental disease as a defense. To this date the record does not show that he has entered a plea or even been read the charges against him. Apparently he is in limbo at this time.

The criminal charge of terroristic threatening was filed against petitioner many weeks after the information alleges the threat occurred. If the wife was the source of the information upon which the charge was founded, it seems the likelihood of conviction is slim because she has recanted, if in fact she ever told anyone she was afraid of her husband. Judge Andrew Ponder released the man on his own recognizance at the probable cause hearing. Judge Andrew Ponder apparently revoked this bond even though the accused appeared at the time and place scheduled for a plea and arraignment. The reason appears that petitioner stood upon his right to remain silent as he had been informed he had the right to do. He is now held in prison because he elected to stand upon his constitutional right to remain silent. He had been a resident of the same county for over 35 years and a host of friends and neighbors attempted to point out to the court that petitioner was entitled to be released upon his own recognizance. His parents have agreed to cooperate in seeing that he would report as directed by the court. He is suffering from a life threatening disease for which he is allegedly denied treatment while being held in a county jail.

It seems to me the courts are being used to coerce the petitioner into talking to the judge. No reason is shown which would have prevented this prisoner from already having been tried. From the appearance of the record the trial should be a short one. A person may be denied a speedy trial within the meaning of the Constitutionin a period of time less than those enumerated in our Rules of Criminal Procedure. Our Rules set the outside limits within which a person must be tried or released.

I will admit that some of the material filed on behalf of petitioner does nothing to assist in moving this case along. Such material should be ignored. The defendant, however, should be granted his freedom pending a fair and impartial trial at the earliest possible convenience of this court. He is entitled to be convicted or found not guilty promptly. At the very least he is entitled to be released pending trial.

The order sending petitioner for observation requires that he be kept for not less than 30 days. Arkansas Stat. Ann. § 43-1306 requires that the period of observation not be more than 30 days. Obviously it took the hospital far less than 30 days to determine the accused was not suffering from mental disease or disability. Petitioner did not request nor did he desire to be committed for observation. He gave no indication that he would make a defense based upon his mental condition. The effect of the committment was to prolong his incarceration rather than protect him. Such committments are expensive and wasteful of the human resources of the state and should be used only where there is some clear indication that the defense of mental disease will be employed.

I would grant the petition.


text:
    Laura Imogene BLEDSOE v. GEORGIA-PACIFIC CORPORATION
    683 S.W.2d 222
    Supreme Court of Arkansas
    Opinion delivered January 21, 1985

      McMillan, Turner ir McCorkle, by: Ed McCorkle, for appellant.

      Arnold, Hamilton ir Streetman, for appellee.
   Per Curiam.

The Court of Appeals rendered a decision in this case on October 3, 1984, and denied the appellee’s petition for rehearing on October 31, 1984. It was not until after the petition for rehearing was denied that a petition for writ of certiorari to review the decision was filed with us on November 9, 1984. The clerk refused to docket the petition because it was not timely, according to a per curiam order dated February 25, 1980. In that per curiam we wanted to make it unquestionably clear that a petition for review must be filed within seventeen days from the date of the decision made by the Court of Appeals. To that end, we amended Rule 29(6) to read: “Petitions for review must be in writing and must be filed within 17 calendar days from the date of the decision, regardless of whether or not a petition is filed with the court of appeals.” This emphasized language was not included in two subsequent per curiams, one issued on December 22, 1980, and another on March 2, 1981.

The petitioner contends that he relied upon our latest per curiam, that our rule was unclear, and therefore, he should not have been denied review. Furthermore, he points out that the compiler of the Arkansas Statutes Annotated omitted the emphasized language.

It was an oversight on our part to omit the emphasized language. It was added, not because the rule was unclear, but simply to make certain there could be no misunderstanding of when a petition of review must be filed.

In fairness to the petitioner, we have considered his original petition on its merits but decline to grant review. By this opinion we amend our rules to include the language which was omitted so that the first sentence of the second paragraph of Rule 29(6) of the Rules of the Supreme Court and Court of Appeals reads:

Petitions for review must be in writing and must be filed within 17 calendar days from the date of the .-decision, regardless of whether or not a petition for rehearing is filed with the Court of Appeals.

Inadvertently our records showed this petition was denied on January 14, 1985, without comment.

Petition denied.


author: Jack Holt, Jr., Chief Justice.

text:
    Edgar A. STACY, III v. ST. CHARLES CUSTOM KITCHENS OF MEMPHIS, INC.
    84-195
    683 S.W.2d 225
    Supreme Court of Arkansas
    Opinion delivered January 28, 1985

      Reid, Burge ir Prevallet, for appellant.

      Bill E. Ross, for appellee.
   Jack Holt, Jr., Chief Justice.

The central issue in this case is whether the contract in question is governed by the laws of Tennessee or those of Arkansas.

The parties entered into a contract which called for the appellee, St. Charles Custom Kitchens of Memphis, Inc., (hereinafter, “St. Charles”) to install a custom kitchen in the appellant’s home in Blytheville, Arkansas. St. Charles is a Tennessee corporation. A disagreement arose between the parties as to the final contract price, the contract terms and the performance required. The appellant paid roughly two-thirds of the contract price to St. Charles but refused to pay the remaining amount, claiming that the materials and workmanship were not satisfactory. St. Charles began sending statements to the appellant which included late charges, in an effort to collect the balance remaining. When the appellant continued to refuse to pay, St. Charles filed this lawsuit.

In its complaint for money damages St. Charles alleged that the contract was governed by Tennessee law. The appellant answered, alleging breach of contract; usury, triggered by the late charges; and failure to comply with the Wingo Act which requires foreign corporations who do business in Arkansas to register with the Secretary of State. The trial court held that the agreement was a Tennessee contract and denied the appellant’s motion for a directed verdict, which was based on the defenses of usury and violation of the Wingo Act.

The jury awarded St. Charles $6,117.72. This appeal from the denial of the motion for directed verdict is before us under Sup. Ct. R. 29(l)(c) and (/).

The appellant raises two questions on appeal. He argues that the trial court erred in failing to grant his motion for directed verdict on the basis of usury and on the basis of the Wingo Act. Since both questions initially require a determination as to which state’s law governs the contract, that issue will be discussed first.

In Grogg v. Colley Home Center, Inc., 283 Ark. 120, 671 S.W.2d 733 (1984), this court most recently addressed the question of what law governs the validity of a multistate contract. Citing an earlier decision, Cooper v. Cherokee Village Development Co., 236 Ark. 37, 364 S.W.2d 158 (1963), we discussed the three theories used in making this determination:

1) The law where the contract was made; 2) the law where the contract was to be performed in its most essential features; and 3) the law of the state which the parties intended to govern the contract. We noted, too, in Cooper a consistent preference for the law of the state that would make the contract valid rather than void. An exception to the application arises, however, when the issue of usury is involved and the laws of another state become a sham for charging a higher rate and avoiding the harsh penalty applied by our law.

Applying the Grogg analysis to the facts of this case, we find that under the first theory, the law where the contract was made, the sales contract was signed in Tennessee at St. Charles’ Memphis office. The appellant argues that a novation of the sales contract occurred in Arkansas when changes were made on the original blueprints. This argument is not persuasive however since the contract itself provided that it “cannot be altered or modified except in writing executed by the ‘Seller.’ ” The novation alleged by the appellant was based on an oral modification of the sales contract. In addition, the novation argument fails because it was not specifically pled by the appellant in the proceedings below. Novation is an affirmative defense which must be pleaded. Camfield Tires, Inc. v. Moseley, 253 Ark. 585, 487 S.W.2d 268 (1972), AR Civ. P Rule 8(c).

Under the second theory, the law where the contract was to be performed in its most essential features, both states are connected to the contract. Since the cabinets were installed at appellant’s Blytheville home, the majority of the contract was performed in Arkansas. However, the ordering of the materials and some of the work on the blueprints was apparently done out of St. Charles’ Memphis office. Payments on the contract were also split, with the initial payment made in Tennessee and the second payment in Arkansas.

The final test is the law of the state which the parties ihtended to govern the contract. The appellant came to Memphis to hire St. Charles and the contract states that it is not binding on the seller unless accepted at the home office in Memphis. On the other hand, Arkansas sales tax is used on the schedule of materials; St. Charles filed a lis pendens in Arkansas to secure the debt; and St. Charles charged a 10% late charge, the maximum allowable in Arkansas, even though the form statement provided for a Vá% per month late charge.

The situation in Grogg was similar in that two states, Oklahoma and Arkansas, had connections to the contract. That case involved an installment loan contract for the purchase of a mobile home. The mobile home was purchased in Oklahoma and delivered to Grogg in Arkansas. The majority of the negotiations, the signing of the documents and the down payment occurred in Oklahoma. However, Arkansas sales taxes were paid; there was a U.C.C. filing in Arkansas; the home was licensed and titled in Arkansas; the license fee charged was based on Arkansas licensing fees; and the insurance on the home was written in Arkansas. Nevertheless, this court held that Oklahoma law governed the contract inasmuch as “we will choose the law of the state that will make the contract valid rather than void”. In so doing, we stated:

In this case ... we find there are substantial connections to either Arkansas or Oklahoma to allow the laws of either state to govern the transaction and absent a showing of the usurious cloak we will choose the law which will uphold the contract’s validity. Such choice is based on a presumption that the parties intended to contract with reference to the law that would uphold, rather than invalidate, their contract, (citations omitted). In addition to this presumption we have the fact that Grogg without solicitation or any underhandedness on the part of the appellee sought out the Oklahoma place of business, all the negotiations for the purchase occurred in Oklahoma... all of the many documents were executed in Oklahoma, the primary contracts stated clearly the place of execution as Oklahoma, and on the face of the contracts the interest rate of twelve percent was obviously stated in clear, unambiguous terms. . . .
This is not a case of a wholly Arkansas contract where there has been an attempt to avoid the usury law by substituting the law of a state with no substantial connection with the contract. We have already noted the legitimate connections of Oklahoma to this contract and the parties intent. The appellant has made no showing nor does the evidence suggest a cloak of usury surrounding the transaction and neither was there any evidence of enticement, solicitation, overreaching or any unconscionable act by the appellees.

Here, as in Grogg, there are substantial connections to both states. The appellant, without solicitation or any underhandedness by the appellee sought out St. Charles at their Memphis office; the contract was signed in Tennessee; performance took place in both states; the contract stated that it was not binding unless accepted in Tennessee; and the 10% interest rate was clearly stated on the statements sent to the appellant by St. Charles. The appellant has also failed to demonstrate that “a cloak of usury” surrounded the transaction. Therefore, we choose the law of Tennessee, the law of the state that will make the contract valid rather than void.

We need not address the other issues raised by appellant in light of our holding. Arkansas usury law does not apply to a Tennessee contract. The Wingo Act, Ark. Stat. Ann. § 64-1201 (Supp. 1980), does not apply to out of state contracts. Brown Broadcast, Inc. v. Pepper Sound Studio, Inc., et al, 242 Ark. 701, 416 S.W.2d 284 (1967).

Affirmed.


text:
    Norman RAWLINGS v. STATE of Arkansas
    CR 84-152
    683 S.W.2d 223
    Supreme Court of Arkansas
    Opinion delivered January 28, 1985

      Highsmith, Gregg, Hart, Farris ir Rutledge, by: Keith Rutledge, for appellant.

      Steve Clark, Att’y Gen., by: A lice Ann Burns, Dep. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

This is another in a series of DWI appeals testing provisions of Act 549 of 1983.

The appellant was convicted in municipal court of his third offense of driving while intoxicated. He appealed the conviction to circuit court where a jury found him guilty of DWI, third offense. The appellant was sentenced to five months in the county jail; ordered to pay a $1,000.00 fine; and his driver’s license was suspended indefinitely. This appeal from that order is before us under Sup. Ct. R. 29( 1 )(c).

The appellant raises two points on appeal. His first contention is that Act 549 is void for vagueness and therefore unconstitutional. The appellant maintains that the act does not furnish a sufficiently ascertainable standard of guilt and is therefore violative of due process, and that a constitutionally forbidden irrebuttable presumption is created.

These same constitutional questions have been raised in other cases challenging Act 549 and we have upheld the constitutionality of the act. See Sparrow v. State, 284 Ark. 396, 683 S.W.2d 218 (1985); Steele v. State, 284 Ark. 340, 681 S.W.2d 354 (1984); Spicer v. City of Fayetteville, 284 Ark. 315, 681 S.W.2d 369 (1984); Long v. State, 284 Ark. 21, 680 S. W.2d 686 (1984); and Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984) (supplemental opinion on denial of rehearing, December 21, 1984).

For his second assignment of error, the appellant states the judgment entered by the circuit court was erroneous in two respects.

First, he contends it was contrary to Ark. Stat. Ann. § 75-2506 (Supp. 1983) which provides:

Upon finding of guilt or a plea of guilty or nolo contendere for violating Section 3 [§ 75-2503] of the Act, the Court shall immediately request and the Highway Safety Program or its designee shall provide a presentence screening and assessment report of the defendant. The presentence report shall be provided within thirty (30) days of the request, and the court shall not pronounce sentence until receipt of the presentence report. The report shall include but not be limited to the offender’s driving record, alcohol related criminal record, an alcohol problem assessment, and a victim impact statement where applicable.

The jury was instructed to ascertain punishment at the same time they determined guilt and there is no indication in the record that a presentence report was furnished to the court prior to pronouncement of sentence. Although the statute is cast in mandatory terms, the record reflects that no objection was made at the time of sentencing to the lack of a presentence report. We do not consider questions raised for the first time on appeal. State v. Brown, 283 Ark. 304, 675 S.W.2d 822(1984).

Second, the appellant contends the judgment was erroneous as to the court’s indefinite suspension of his driver’s license.

Arkansas Stat. Ann. § 75-2511 (Supp. 1983) provides that upon conviction of DWI, the court shall transmit the operator’s license to the Office of Driver Services and instruct them to suspend the license:

for at least two [2] years for the third offense within three [3] years of the first offense; and revocation for the fourth or subsequent offense occurring within a three [3] year period of the first offense. Revocation shall continue until and unless a three [3] year period has transpired during which the person has not been cited for any moving traffic offense or violation.

The appellant maintains that the statute does not provide for an “indefinite suspension” as ordered by the judge. We agree, and since the statute orders a two year suspension for a third offense of DWI we modify the trial court’s judgment to a two year suspension rather than an indefinite suspension of appellant’s driver’s license. See Ark. Stat. Ann. § 27-2144 (Repl. 1979); Ellis v. State, 270 Ark. 243, 603 S.W.2d 891 (1980).

The argument is also made by the appellant that § 75-2511 is vague in that it does not provide for a maximum penalty. We do not consider this issue on appeal however, because of the appellant’s failure to make convincing argument or cite any authority for the proposition. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).

Affirmed as Modified.


author: George Rose Smith, Justice.

text:
    Dennis Eugene WILLIFORD v. STATE of Arkansas
    CR 84-204
    683 S.W.2d 228
    Supreme Court of Arkansas
    Opinion delivered January 28, 1985
    [Rehearing denied February 25, 1985.]

      Charles E. Hanks and Kenford O. Carter, for appellant.

      Steve Clark, Att’y Gen., by: Jack Gillean, Asst. Att’y Gen., for appellee.
   George Rose Smith, Justice.

In a non-jury trial Williford was convicted of DWI, fourth offense, and sentenced to a year’s imprisonment, a $1,000 fine, and revocation of his driver’s license for three years. His appeal, presenting six arguments for reversal, comes to this court under Rule 29 (1) (c). We affirm the judgment.

Two of the arguments, that the Omnibus DWI Act relieves the State of its burden of proof and is void for vagueness, were answered in Lovell v. State, 285 Ark. 425, 678 S.W.2d 318 (1984). A third, that the statute violates the separation of governmental powers, was answered in Sparrow v. State, 284 Ark. 396, 683 S.W.2d 218 (1985).

Fourth, the arresting officer took Williford to the police station and administered a breathalyzer test, which showed a blood alcohol content of .20%. The statute provides that the person tested may request an additional test at his own cost. Ark. Stat. Ann. § 75-1045(a)(3) (Supp. 1983). It further provides that a law enforcement officer’s refusal to assist the person in obtaining an additional test precludes proof of the test taken at the direction of a law enforcement officer. § 1045(c)(3).

It is argued that the officer must assist the person to the fullest possible extent in tapping his financial resources, including transportation necessary for him to raise cash and transportation to the test site. We do not read the statute as penalizing anything other than an officer’s refusal to provide assistance that is reasonable at the time and place. This incident occurred at about 2:00 a.m. Williford signed a form informing him with regard to the officer’s test: “If you disagree with the results of this test, you can request a test of a different type. I will assist you in obtaining another test of your choice given by a doctor or other qualified person. You must be willing to pay for the cost of any such additional test. ” At the bottom of the form Williford signed a statement requesting an additional test and agreeing to pay for it.

The arresting officer testified he told Williford that he would take Williford to the hospital for a test, for which the hospital required $50.31; but Williford had only $2.15. The officer also offered to allow Williford to use the telephone. There is no indication that Williford requested anything else. He did not testify at the trial. In view of the officer’s testimony the trial judge was right in denying the defense motion to exclude proof of the test result.

Fifth, it is argued that the State failed to show that the breathalyzer test met the statutory condition for being considered valid if performed according to methods approved by the State Board of Health. The defect complained of is the officer’s failure to observe Williford for 20 minutes before the test. Reliance is placed upon a Department of Health check list containing this instruction: “Observe subject for minimum of 20 minutes — no oral intake of anything.”

The arresting officer testified that for a period of 26 minutes he observed Williford at the scene of the arrest, in the patrol car’s rear view mirror as Williford sat on the passenger side of the back seat while he was being taken to the police station, and at the station itself. He said that he would have been aware of Williford’s having put anything in his mouth. The officer himself operated the testing device. We do not read the Health Department instruction as requiring that the officer stare fixedly at the arrested person for 20 minutes. The offficer’s testimony made a prima facie showing of compliance with the regulation. There is no contradicting testimony. The result of the test was properly received in evidence.

Sixth, it is argued that the proof of one of Williford’s three prior convictions for DWI does not show that he waived the right to counsel. The record consists of a photocopy of a municipal court docket sheet, which recites that Williford “waived right to atty.” It is insisted that the judge’s purported signature is not legible. Many persons’ signatures are not legible, but that alone does not invalidate them. Here the clerk of the court certified that the photocopy of the docket sheet was an accurate record of the proceedings. No effort was made to show that the judge did not actually sign the docket sheet. The contention is without merit.

Affirmed.


text:
    OFF-STREET PARKING DEVELOPMENT DISTRICT NO. 1 OF THE CITY OF FAYETTEVILLE et al v. CITY OF FAYETTEVILLE
    84-207
    683 S.W.2d 229
    Supreme Court of Arkansas
    Opinion delivered January 28, 1985

      Law Office of Walter R. Niblock, by: Walter R. Niblock, for appellants.

      James W. McCord, City Att’y, for appellee.
   George Rose Smith, Justice.

In 1977 the principal appellant, an improvement district, was organized to construct facilities for off-street parking in Fayetteville. Within the next two years the City of Fayetteville constructed near the downtown square a 40,000-square-foot building containing an auditorium, meeting rooms, and office space. In October, 1979, the City executed a 2S-year lease of the building to the University of Arkansas, the building to be used as a Continuing Education Center. A month later the District, having constructed parking facilities in the area, revised its assessment of benefits to include an assessment of $122,180 in total benefits to city-owned Tract I, on which the Center had been built.

In 1982 the City brought this suit in chancery court, asking that the assessment of benefits against Tract 1 be declared void because the Center is public property being used exclusively for public purposes and is therefore exempt from any assessment of benefits by an improvement district. Alternatively the City asserted that the assessment is excessive and should be reduced. The District’s answer denied that the Center is being used for an exclusively public purpose, raising the main issue in the case. The chancellor granted the City’s motion for summary judgment, finding that the Center’s use is exclusively public. We disagree with that view of the case and set aside the award of a summary judgment.

The facts, as far as they have been developed, are not in dispute. The City’s lease to the University provides that the Center will be used for continuing education and will also be available for use by the general public when not needed for continuing education. The fees charged by the University for use of facilities at the Center are not sufficient to cover the cost of operation. The University has two categories of charges: An educational rate for educational meetings sponsored by the University and a substantially higher rate for commercial groups. The Center is in competition with hotel-type conference facilities, such as the nearby Hilton Hotel. Within a six-month period groups using the Center included apparently private organizations: Baldwin Piano & Organ Company, Universal Life Meeting, Micro-Processor Conference, Cosmetology Institute, Century 21 Sales Rally, Daisy Manufacturing Planning Session, Pro-Life Rally, and others.

The Constitution of 1874, Article 16, § 5, provides property tax exemptions for public property used “exclusively” for public purposes and for grounds used “exclusively” for school purposes. Although the constitutional exemption is stated to be from ad valorem taxation, the same public purpose exemption extends to improvement district assessments unless a statute provides otherwise. Waterworks Improvement Dist. No. 2 v. Logan County, 155 Ark. 257, 244 S.W. 4 (1922); Board of Improvement v. School District, 56 Ark. 554, 19 S.W. 969, 16 LRA 418, 35 Am. St. Re. 108 (1892). No such statute is involved here.

Many of our cases discussing “exclusive” uses for a given purpose were reviewed in Hilger v. Harding College, 231 Ark. 686, 331 S.W.2d 851 (1960). There Harding College, a non-profit educational institution, sought an exemption from taxation for its on-campus printing shop and laundry, as being grounds used exclusively for school purposes. Both the shop and the laundry provided jobs for students and services for the college; Both, however, accepted outside work in competition with local concerns, the shop’s outside work being 10% of its total volume and the laundry’s being 37%. Although all the revenue was used for school purposes, the court held that neither property was being used exclusively for school purposes. Excerpts from the opinion explain the court’s reasons for its ruling:

Taxation is an act of sovereignty to be performed . . . with j ustice and equality to all, and exemptions, no matter how meritorious, are acts of grace and must be strictly construed. . . . The fact that the rents and revenues of a property owned by a charitable corporation are devoted to the purpose for which the corporation was organized, will not exempt such property from taxation. It is only when the property itself is actually and directly used for charitable purposes that the law exempts it from taxation.
JL JL W w W W
There is a material difference between the use of property exclusively for public purposes and renting it out and then applying the proceeds arising therefrom to the public use. The property under our Constitution must be actually occupied or made use of for a public purpose and our court has recognized the difference between the actual use of the property and the use of the income. [Italics in the original.]

The chancellor addressed the argument that the facilities of the Center are being occasionally used for non-public purposes, but he reasoned that “the University’s use is not the City’s use.” In a sense that is true, but the basic rule of our law is that tax exemptions must be construed strictly. In view of the commercial groups’ use of the Center for nonpublic purposes, Tract 1 would not be exempt from the assessment if it were owned solely by the City or solely by the University. Strict construction does not permit the City and the University, by joining forces, to do indirectly what neither could do directly.

The District argues secondarily that we should abandon the rule allowing public property to be assessed for benefits conferred by an improvement district, but we perceive no reason for such a change.

The summary judgment is reversed and the cause remanded for further proceedings on the merits and on the City’s assertion that the assessment of benefits is excessive.


text:
    Frank Alan HEARD v. STATE of Arkansas
    CR 84-158
    683 S.W.2d 232
    Supreme Court of Arkansas
    Opinion delivered January 28, 1985

      William, R. Simpson, Jr., Public Defender, Jacquelyn C. Gregan, Deputy Public Defender, by: Jerry R. Sailings, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: Alice Ann Burns, Deputy Att’y Gen., for appellee.
   Steele Hays, Justice.

Appellant, Frank Heard, was convicted of second degree murder for the fatal shooting of William Stanfield, and challenges the sufficiency of the evidence by this appeal.

Appellant and Stanfield shared the same house and had argued a number of times in the past. On the night of the shooting they had argued and fought just outside appellant’s room. Appellant grabbed his pistol from the dresser and as they struggled the gun discharged, fatally wounding Stanfield. The bullet struck Stanfield on the right side of his nose and entered his brain at an upward angle of twenty-five degrees. Appellant was found guilty and sentenced as an habitual offender to forty years imprisonment and given a $500 fine.

On appeal appellant argues only that the evidence was insufficient to support the conviction of second degree murder, specifically that there was no substantial evidence to show that appellant acted with the requisite mental state to sustain a conviction of murder in the second degree.

To constitute murder in the second degree under Ark. Stat. Ann. § 41-1503(l)(b), a person commits murder if “he knowingly causes the death of another person under circumstances manifesting extreme indifference to the value of human life.” The culpable mental state required for second degree murder as defined by § 41-1503(l)(b), is to “knowingly” cause such result. Ark. Stat. Ann. § 41-203(2) defines “knowingly.”

A person acts knowingly with respect to his conduct or the attendant circumstances when he is aware that his conduct is of that nature or that such circumstances exist. A person acts knowingly with respect to a result of his conduct when he is aware that it is practically certain that his conduct will cause such a result.

Under this statute, the state had to prove that appellant acted with an awareness of his conduct, the relevant attendant circumstances and that his conduct was practically certain to cause the death of the victim.

On appeal the evidence will be viewed in the light most favorable to the appellee and the verdict will be affirmed if there is substantial evidence to support it. The evidence is substantial if the jury could have reached its conclusion without having to resort to speculation or conjecture. Boone v. State, 282 Ark. 274, 668 S.W.2d 17 (1984). As we have observed in other cases, intent or purpose behind an act, being a state of mind, can seldom be positively known to others, so it ordinarily cannot be shown by direct evidence, but may be inferred from the facts and circumstances surrounding the act. Chaviers v. State, 267 Ark. 6, 588 S.W.2d 434 (1979). We need only consider that testimony that lends support to the jury verdict and disregard any testimony that could have been rejected by the jury on the basis of credibility. Chaviers, supra.

The appellant testified that he had been drinking earlier but at the time of the quarrel he was in control of his faculties and was aware of what he was doing. Appellant said when he reached for his pistol Stanfield was unarmed. Appellant testified that he had loaded the gun himself and when he grabbed the gun he was sure that he had his finger on the trigger. He said Stanfield grabbed his hand and the pistol, and as the two struggled with the gun, the gun was pushed into Stanfield’s chest and “just went off.” There was testimony that the two had argued on a number of occasions prior to the night of the shooting and that appellant had recently threatened to kill Stanfield and his son.

The expert testimony was damaging to appellant’s explanation of the shooting. The ballistics expert testified that the type of gun used by appellant could be discharged by just pulling the trigger without cocking the gun. He stated the gun was of low quality and when discharged would cau.se gunpowder residue to come out between the cylinder- and the-barrel, “just about everywhere there was an opening in the gurb”.(The medical examiner testified thatjbásed on the amount of'gunpowder residue on the body the pistol was fired from a distance of eighteen inched to two to three feet from the victim. Stanfield’s hynds and the examiner testified that if the hands were pear the muzzle there would be a residue on the hands.--"The victim’s hands were also examined for any trace metal deposits arid any pattern they might have. Deposits were found on the victim’s hands, but none that tyer€ consistent with the pattern of any pact of a gun. It.was the examiner’s opinion that the victim hadbriot handled a gun recently before his death. __

It is evident the appellant employed deadly physical force without justification, see Ark. Stat. Ann. § 41-507, and there was substantial evidence from appellant’s own testimony as well as the expert witnesses for the jury to conclude that appellant “knowingly” caused Stanfield’s death. The jury was not bound to conclude that the shooting was accidental and was not required to accept appellant’s version as uncontradicted. It was for the jury to resolve the conflicting theories based on the evidence presented. See Thomas v. State, 266 Ark. 162, 583 S.W.2d 32 (1979); Harris v. State, 262 Ark. 680, 561 S.W.2d 69 (1978).

The judgment is affirmed.

ERRATA 284 ARKANSAS REPORTS at page 460 Detach at perforation, moisten the back, and past over the first partial paragraph on page 460 of Heard v. State: cause gunpowder residue to come out between the cylinder and the barrel, “just about everywhere there was an opening in the gun. ” The medical examiner testified that based on the amount of gunpowder residue on the body, the pistol was fired from a distance of eighteen inches to two to three feet from the victim. Stanfield’s hands were examined for offensive and defensive wounds of any kind and none were found. There was no gunpowder residue on the hands and the examiner testified that if the hands were near the muzzel there would be residue on the hands. The victim’s hands were also examined for any trace metal deposits and any pattern they might have. Deposits were found on the victim’s hands, but none that were consistent with the pattern of any part of a gun. It was the examiner’s opinion that the victim had not handled a gun recently before his death.

       § 41-507. Justification — Use of deadly physical force in defense of a person. — (1) A person is justified in using deadly physical force upon another person if he reasonably believes that the other persons is:
      (a) committing or about to commit a felony involving force or violence; or
      (b) using or about to use unlawful deadly physical force.

      ERRATA 284 ARKANSAS REPORTS at page 460 Detach at perforation, moisten the back, and past over the first partial paragraph on page 460 of Heard v. State: cause gunpowder residue to come out between the cylinder and the barrel, “just about everywhere there was an opening in the gun. ” The medical examiner testified that based on the amount of gunpowder residue on the body, the pistol was fired from a distance of eighteen inches to two to three feet from the victim. Stanfield’s hands were examined for offensive and defensive wounds of any kind and none were found. There was no gunpowder residue on the hands and the examiner testified that if the hands were near the muzzel there would be residue on the hands. The victim’s hands were also examined for any trace metal deposits and any pattern they might have. Deposits were found on the victim’s hands, but none that were consistent with the pattern of any part of a gun. It was the examiner’s opinion that the victim had not handled a gun recently before his death.