author: Annabelle Clinton Imber, Justice.

text:
    CITY of BENTON and Saline County, Arkansas v. ARKANSAS SOIL and WATER CONSERVATION COMMISSION
    01-60
    45 S.W.3d 805
    Supreme Court of Arkansas
    Opinion delivered June 14, 2001

      Zachary David Wilson P.A., by: Zachary David Wilson and Brian C. Donahue, for appellants.

      Quattlebaum, Grooms, Tull & Burrow PLLC, by: J. Leon Holmes, for appellee Arkansas Soil and Water Conservation Commission.

      Wright, Lindsey & Jennings LLP, by: Gregory T. Jones, for appellees Salem Water Users Association, Southwest Water Users Association, and Town of Tull, Arkansas.

      Glover Law Firm, by: David M. Glover, for appellee City of Malvern, Arkansas.
   Annabelle Clinton Imber, Justice.

In January 1999, the City of Malvern submitted an application to the Arkansas Soil and Water Conservation Commission (“Commission”) seeking a determination of compliance with the Arkansas Water Plan. The water development project for which the City sought approval (hereinafter “Malvern Project”) was developed through the joint efforts of the City of Malvern, the Salem Water Users Association, the Southwest Water Users Association, and the Town of Tull. Through the Malvern Project, these entities proposed to construct water treatment facilities and pipelines carrying water from the Ouachita River to the City of Malvern and to rural areas of Saline, Grant, and Garland Counties. The City of Benton and Saline County officials objected to the inclusion of rural Saline County in the areas to be serviced by the Malvern Project.

Before approving the Malvern Project, the Commission conducted three public hearings. First, on March 25, 1999, the Commission conducted a hearing at its headquarters in Little Rock. Following this hearing, the Commission’s staff issued its report to the Commission’s Executive Director, J. Randy Young, on July 12, 1999, recommending approval of the Malvern Project. Executive Director Young did not approve the project immediately, but opted instead to call two additional public meetings. On July 28, 1999, the Commission held a public hearing in Benton at which the Mayor of Benton and other representatives of Saline County and the City of Benton were present. The following day, a hearing was conducted in Malvern. Notice of these hearings was published in the Benton Courier and the Malvern Daily Record on July 16, 1999.

On August 6, 1999, the Commission’s Executive Director entered a Final Determination of Arkansas Water Plan Compliance, finding that the Malvern Project complied with the Arkansas Water Plan. The City of Benton and Saline County appealed that determination by the Executive Director to the full Commission. After a hearing before the full Commission on October 28, 1999, the Commission upheld and adopted the Executive Director’s Final Determination. The City of Benton and Saline County then appealed that decision to the Pulaski County Circuit Court. The Commission’s Final Determination was affirmed by the circuit court on October 3, 2000. The City of Benton and Saline County, appellants herein, now seek review of the Commission’s Final Determination in this court. They contend that the Final Determination is flawed as a result of several procedural irregularities that violated the Administrative Procedure Act and deprived them of constitutionally afforded due process. They further allege that the performance of administrative, regulatory, and adjudicative duties by the Executive Director and his staff created “bias and or at least an appearance of bias,” and that the Executive Director accepted and relied upon improper ex parte communications in making his final determination. Other points of error raised by the appellants include assertions that (1) the Commission failed to determine the status of the Salem Water Users Association, the Southwest Water Users Association, and the Quad County Facilities Board for the Town of Tull; (2) the Commission failed to refer environmental questions to the Arkansas Department of Environmental Quality and the Arkansas Pollution Control and Ecology Commission; and, (3) the Executive Director has an inherent conflict of interest due to his position on the Arkansas Pollution Control and Ecology Commission. Finally, appellants argue that the Pulaski County Circuit Court erred by denying their motion to enforce an agreed stay order entered by the court on April 3, 2000.

I. Standard of Review

It is not the role of the circuit courts or the appellate courts to conduct a de novo review of the record when reviewing an agency’s decision pursuant to the Administrative Procedure Act. Arkansas Dep’t of Human Servs. v. Thompson, 331 Ark. 181, 187, 959 S.W.2d 46 (1998). We review the case only to ascertain whether there is substantial evidence to support the agency’s decision or whether the decision runs afoul of one of the other criteria set out in Ark. Code Ann. § 25-15-212(h) (Repl. 1999). Id.

Where the agency’s failure to follow its own procedural rules is urged on appeal, the applicable question on review is “whether the Commission’s decision is based upon unlawful procedure.” Stueart v. Arkansas State Police Comm’n, 329 Ark. 46, 50-51, 945 S.W.2d 377 (1997) (citing Regional Health Care Facilities, Inc. v. Rose Care, Inc., 322 Ark. 767, 912 S.W.2d 409 (1995)). “It has become axiomatic that an agency is bound by its own regulations.” Id. (quoting Panhandle Eastern Pipeline Co. v. F.E.R.C., 613 F.2d 1120 (D.C. Cir. 1979)). Thus, the decision of an administrative agency may be reversed if the substantial rights of the petitioner have been prejudiced because the administrative findings from which appeal is taken were made upon unlawful procedure. Id.

II. Violations of Due Process and the Administrative Procedure Act

Appellants assert several procedural violations that allegedly occurred during the hearings below and caused the loss of their substantial rights. First, appellants argue that the Commission failed to conduct a full and fair hearing regarding the Malvern Project. According to appellants, the hearings conducted were inadequate in four aspects: (1) the hearings were conducted in a quasi-legislative manner rather than a quasi-judicial manner; (2) notice was inadequate; (3) the Executive Director had already made his decision before the July hearings; and (4) the Executive Director inappropriately received and relied upon ex parte communications.

A. Quasi-Judicial Review

The proceedings below arose out of an application by the City of Malvern for a determination that its water development project complied with the Arkansas Water Plan.

No political subdivision or agency of the state shall spend any state funds on or engage in any water development project . . . until a preliminary survey and report therefor which sets forth the purpose of the project, the benefits to be expected, the general nature of the works of improvement, the necessity, feasibility, and the estimated cost thereof is filed with the commission and is approved by the commission to be in compliance with the plan.

Ark. Code Ann. § 15-22-504(e) (Repl. 2000). “The approval or disapproval of the application shall constitute an adjudication under the Arkansas Administrative Procedures Act. All action taken and all hearings conducted on the question of approval of the application shall be in compliance with the Arkansas Administrative Procedures Act.” S.W.C.C. Rule 604.1.

In every case of adjudication under the Administrative Procedure Act, parties must be afforded an opportunity for a hearing after reasonable notice and must be given the opportunity to respond and present evidence on all issues involved in the adjudication. Ark. Code Ann. § 25-15-208 (Repl. 1996). Parties have the right to conduct cross-examination, or file an affidavit of personal bias or disqualification of an allegedly biased presiding officer. Ark. Code Ann. § 25-15-213 (Repl. 1996). Finally, the notice of hearing published by the Executive Director must include notice to all interested persons of the right to present evidence and argument at an adjudicatory hearing. S.WC.C. Rule 604.4.H.

As the above statutory and regulatory provisions suggest, appellants correctly assert that the proceedings below were an adjudication process and not a rule-making process. Yet, appellants have failed to demonstrate that any lack of judicial formality in the proceedings below prejudiced their substantial rights. The notice of hearing published by the Executive Director in the Benton Courier on July 16, 1999, contained the requisite notification of the right to attend with counsel and to present evidence and argument. Yet, the record reflects no attempt by appellants to assert those rights. The Commission’s rules require that all evidentiary issues be raised before the Executive Director at the hearing stage, as the Commission’s review is limited to the record before the Executive Director. S.WC.C. Rule 105.4. At no time during the hearings in this matter did appellants seek to present sworn testimony or formally proffer evidence. To the contrary, the record reflects that appellants’ representatives participated in the July 28 hearing without objection. Mayor Moore commented extensively about the City of Benton’s position toward the Malvern Project and submitted an alternate proposal to the Executive Director “for [his] information.” While the appellants’ participation in the hearings is amply documented, nowhere does the record reflect that appellants objected to the manner in which the proceedings were being conducted.

Because appellants did not ask to introduce evidence or sworn testimony, they cannot demonstrate that they were deprived of a fair hearing by not being allowed to introduce evidence or sworn testimony. See Jones v. Reed, 267 Ark. 237, 242, 590 S.W.2d 6 (1979) (holding that, where substance of evidence appellants sought to introduce was submitted into record by stipulation, there was no prejudice resulting from administrators refusal to permit sworn testimony). Thus, appellants cannot demonstrate prejudice in the conduct of the hearings. Id.

Appellants argue on appeal, however, that they preserved the request for a more formal quasi-judicial hearing during review before the full Commission. The record as abstracted does not support appellants’ argument. Even if we were to assume that Ark. Code Ann. § 25-15-213 (Repl. 1996) grants an aggrieved person the right to introduce additional evidence and sworn testimony before the full Commission when seeking review of a referee’s decision, we are unable to determine from the abstract whether the appellants sought to assert that right. We are presented with a record much like that at issue in City of Hector v. Arkansas Soil & Water Conserv. Comm’n, 47 Ark. App. 177, 179-80, 888 S.W.2d 312 (1994). In that case, the court of appeals stated, with reference to appellant’s claim that the Commission improperly limited the evidence presented, that “the record before us indicates that two public hearings were had regarding the . . . application prior to the proceeding before the Commission’s appeals committee. Furthermore, we are unable to determine from the record before us what evidence the appellant sought to disclose by introduction or cross-examination . . . .” Id. The same can be said here.

Two public hearings were had prior to appellants’ request for review by the full Commission. Appellants sought to introduce no evidence at those hearings, but assert that they were prevented from doing so not only during those hearings, but also upon review before the full Commission. Counsel for appellants did make reference during argument before the Commission to a motion to supplement the record on review. However, there is no such motion before this court; nor can we determine from the abstract whether the Commission ever ruled upon the motion. Likewise, we are unable to discern from the abstract what evidence, if any, was proffered to the Commission pursuant to said motion. Our review of a case on appeal is limited to the record as abstracted in the briefs. Hashagen v. Lord, 341 Ark. 83, 14 S.W.3d 498 (2000); Luttrell v. City Of Conway, 339 Ark. 408, 409, 5 S.W.3d 464 (1999); Morse v. Sentry Life Ins. Co., 332 Ark. 605, 967 S.W.2d 557 (1998). Thus, as in City of Hector v. Arkansas Soil & Water Conserv. Comm’n, supra, we cannot reach the issue.

We note that appellants did not ask the Commission to conduct a formal quasi-judicial hearing on review of the Executive Director’s Final Determination. Rather, the appellants asked the Commission to reverse the agency’s adjudicatory process and allow the taking of additional evidence at a new set of hearings before a new referee. Appellant has, therefore, failed to demonstrate that the informal nature of the hearings that were conducted violated their substantial rights.

B. Notice

The second procedural irregularity asserted by appellants is the lack of adequate notice of the hearings before the Executive Director. Appellants fail to demonstrate any inadequacy in the notice of the proceedings in this matter. The Administrative Procedure Act requires that all parties must be given reasonable notice of hearings in cases of administrative adjudication. Ark. Code Ann. § 25-15-208(a)(1)-(2) (Repl. 1996). In the case of a water-plan compliance hearing, the Commission has determined that the Executive Director must give ten days’ notice to the applicant and any other party who has requested notice and must publish notice of the hearing in a newspaper as required by Ark. Code Ann. § 15-22-206. S.WC.C. Rule 604.3. Arkansas Code Annotated section 15-22-206(a)(1)(D) (Repl. 2000) sets out the following guidelines for newspaper publication of notice:

If the purpose of the meeting is with respect to waters in more than one (1) county, the meeting shall be held in one (1) of those counties and notice shall be published in one (1) or more newspapers which together have general circulation in all of the counties involved.

Appellants argue that they were given inadequate notice of the March 25, 1999 hearing that took place in Little Rock, because it was not published in a newspaper with general circulation in Saline County and the notice that was published in Hot Spring County failed to mention all of the counties that would be affected by the water proposal to be discussed. We hold that appellants were not prejudiced by the inadequate notice of the March 25, 1999 hearing because they were not deprived of their opportunity for a hearing. The commission conducted two additional hearings, and appellants received notice of both hearings. Most notably, notice of the hearing conducted on July 28, 1999, was published in the Benton Courier on July 16, 1999, twelve days prior to the hearing. The statutes cited above require only that tbe Commission provide reasonable notice of hearings. The Commission’s own rules require that notice be published at least ten days prior to the hearing. The Executive Director complied with this rule, and notice was published twelve days prior to the hearing. Consequendy, we conclude that their lack-of-adequate-notice argument is without merit.

C. Timing of Director’s Decision

Appellants next argue that the proceedings were flawed because the Executive Director had already reached a decision long before the July 28 hearing or the publication of notice on July 16. We do not reach this argument as it was not raised below. It is well settled that an appellant may not change the grounds for objection on appeal but is limited by the scope and nature of his objections and arguments presented at trial. Ayers v. State, 334 Ark. 258, 264, 975 S.W.2d 88, 91 (1998). “It is essential to judicial review under the Arkansas Administrative Procedure Act that issues must be raised before the administrative agency appealed from or they will not be addressed by this court.” Wright v. Arkansas State Plant Bd., 311 Ark. 125, 132, 842 S.W.2d 42 (1992).

Although appellants argued before the Commission that the staff had already issued its recommendation of approval before notice of the July 28 hearing issued, at no point did appellants assert that the Executive Director had already reached a final determination prior to the hearing. According to Commission Rule 604.7, it is the Executive Director who approves or disapproves an application for a water-plan compliance determination, not the staff. Because this argument was not presented to the Commission, we will not address it on appeal. Wright v. Arkansas State Plant Bd., supra.

D. Ex Parte Communications

Lastly, appellants assert that the proceedings below were procedurally flawed because the Executive Director accepted and relied upon ex parte communications in rendering his decision. Arkansas Code Annotated section 25-15-209(a) (Repl. 1996) states:

Unless required for the disposition of ex parte matters authorized by law, members or employees of an agency assigned to render a decision or to make final or proposed findings of fact or conclusions of law in any case of adjudication shall not communicate, directly or indirectly, in connection with any issue of fact with any person or party, nor in connection with any issue of law, with any party or his representative, except upon notice and opportunity for all parties to participate.

(Emphasis added.) Appellants argue that the Executive Director improperly accepted and relied upon unsworn statements made by engineers and witnesses at the hearings and upon letters and calls received by the Executive Director outside of the hearings.

First, appellants suggest that the unsworn statements given by engineers and officials at the public hearings were improper ex parte communications. However, as noted, Ark. Code Ann. § 25-15-209(a) prohibits ex parte communications except upon notice and opportunity for all parties to participate. The statements of which appellants complain were made at public hearings for which they received notice and in which they actually participated. Similarly, the multiple letters addressed to the Executive Director expressing support for the Malvern Project were read into the record at the public hearings, ensuring that all interested parties were aware of the letters and had opportunity to respond.

Next, appellants claim that the Executive Director improperly received ex parte communications regarding the Malvern Project in the form of third-party letters and telephone calls that were received by him outside of the hearings. We are unable to determine whether the alleged third-party communications warrant reversal of the Commission’s decision because the content of these communications was never proffered or abstracted for our review.

“[I]n cases of alleged irregularities in procedure before the agency not shown in the record, testimony may be taken before the [circuit] court) The court shall, upon request, hear oral argument and receive written briefs.” Ark. Code Ann. § 25-15-212(g) (Repl. 1999). Appellants had the opportunity before the circuit court to develop a record with evidence of the content of any alleged third-party communications received by Executive Director Young. See Arkansas Alcohol Bev. Control Div. v. Cox, 306 Ark. 82, 811 S.W.2d 305 (1991). They failed to do so. It is the appellant’s burden to bring up a record sufficient to demonstrate error. Hankins v. Department of Fin. & Admin., 330 Ark. 492, 954 S.W.2d 259 (1997). Failure to do so precludes our review. Id.; Blunt v. Cartwright, 342 Ark. 662, 30 S.W.3d 737 (2000). Similarly, if a record of the communications at issue was made, it was not abstracted — a deficiency that likewise prevents review. See Woolsey v. Arkansas Real Estate Comm’n, 263 Ark. 348, 565 S.W.2d 22 (1978). For these reasons, we hold that appellants have failed to demonstrate that their substantial rights have been denied as a result of procedural error below.

We are unable to address appellants’ arguments to the extent they assert that the procedural irregularities discussed previously resulted in a deprivation of due process or that the Commission failed to adopt appropriate and reasonable procedures for adjudication. Appellants did not present these arguments to the Commission; thus, we are precluded from addressing them on appeal. See Wright v. Arkansas State Plant Bd., supra.

III. Appearance of Bias

For their second point on appeal, appellants contend that the performance of administrative, regulatory, and adjudicative duties by the Commission’s Executive Director and staff creates “bias and or at least the appearance of bias.” Appellants point to the statements of Mr. Young that he instructed his staff to get the City of Malvern, the Salem and Southwest Water Users Associations, and the Town of Tull to work cooperatively together and come forward with one project “that essentially doubled the capacity of what each one of them had proposed separately.” According to appellants, these duties and responsibilities of the director and staff are inconsistent with the director’s duty to be a fair adjudicator when issuing a final determination of water plan compliance, thereby creating at least an appearance of bias.

Any party who believes a presiding officer is biased or partial “may file an affidavit of personal bias or disqualification” before the Commission and the Commission is required to rule upon the affidavit if it is “timely, sufficient, and filed in good faith.” Ark. Code Ann. § 25-15-213(2)(C) (Repl. 1996). Appellants filed no such affidavit of personal bias or disqualification in this matter. In the absence of a filed affidavit or a ruling thereon, we cannot reach the issue of whether the Commission was biased against the appellants to such an extent as to effectively deny them a fair opportunity to be heard. See City of Hector v. Arkansas Soil & Water Conserv. Comm’n, 47 Ark. App. at 180, 888 S.W.2d at 313.

IV Other Grounds

We do not address appellants’ remaining grounds for reversal of the Commission’s Final Determination because they have not been properly developed or preserved. First, appellants argue that the Commission was required to determine the status of the Southwest and Salem Water Users Associations and whether those entities are entitled to receive funding from the State of Arkansas as participants in the Malvern Project. Specifically, appellants contend that Article 16, section 13, of the Arkansas Constitution and Ark. Code Ann. §§ 15-22-505(5), -506(a) (Repl. 2000), prohibit the disbursement of public funds to private entities, such as the Southwest and Salem Water Users Associations. Appellants also suggest that the Quad County Facilities Board for the Town of Tull “may be a sham entity intended to facilitate the transfer of public funds” to the Salem and Southwest Water Users Associations. We do not reach the merits of this argument as the abstract does not reflect that the argument was ever made before the Commission. Issues not raised to the Commission will not be addressed on appeal. Wright v. Arkansas State Plant Bd., supra. Furthermore, those issues that were raised before the Commission but were not properly abstracted will likewise not be addressed on appeal. Woolsey v. Arkansas Real Estate Comm’n, supra.

Another point of appeal raised by the appellants is their claim that the Commission exceeded its authority by fading to refer questions pertaining to the environmental impact of the Malvern Project to the Arkansas Department of Environmental Quality and the Arkansas Pollution Control and Ecology Commission. We decline to address the merits of this claim because appellants made only a bare reference to this issue in their brief before the Commission. No attempt was made to flesh out the argument or properly develop it for review. We will not address an issue that has not been properly developed before the Commission. AT&T Communications of the S. W. v. Arkansas Public Serv. Comm’n, 344 Ark. 188, 40 S.W.3d 273 (2001).

Furthermore, appellants’ brief on appeal alleges in a conclusory manner that the Commission should have referred environmental issues to the other two agencies for determination, without citation to any authority or development of the argument. This court does not consider arguments that are unsupported by convincing argument or sufficient citation to legal authority. Arkansas Public Defender Comm’n v. Greene County Cir. Court, 343 Ark. 49, 32 S.W.3d 470 (2000); Judicial Discipline & Disab. Comm’n v. Thompson, 341 Ark. 253, 16 S.W.3d 212 (2000). For these same reasons, we are precluded from addressing appellants’ argument that the Commission’s Executive Director was laboring under a conflict of interest due to his membership on the Arkansas Pollution Control and Ecology Commission.

Finally, we cannot address appellants’ argument that the Pulaski County Circuit Court erred in denying their September 13, 2000 motion and September 18, 2000 amended motion to enforce an agreed stay order entered by the circuit court on April 3, 2000. The abstract on appeal must contain, at a minimum, the pleadings and documents that are necessary to an understanding of the issues raised. Sup. Ct. R. 4-2(a)(6). Appellants’ abstract does not contain either of the motions that they filed to enforce April 3, 2000 order. We are therefore precluded from addressing this point on appeal. See Woolsey v. Arkansas Real Estate Comm’n, supra.

Affirmed.

       The Malvern Project originated as two separate projects — one being developed by Malvern, and the other by Salem, Southwest, and Tull. When the Commission’s Executive Director, J. Randy Young, learned of the two projects that were being developed separately and would be largely duplicative, he directed his staff to work with the parties involved to consolidate the two plans. This was done, resulting in the Malvern Project that is before this court.

       Appellants do not challenge the sufficiency of the evidence to support the Commission’s Final Determination.

       We note that the rules of the Commission contemplate that the staff will always recommend approval or disapproval of an application before notice of the hearing is issued. According to Rule 604.4, the notice of hearing must contain “[t]he Commission staffs recommendation and reasons therefor.” The argument that the staff has already reached a decision as to the merits of the application is, therefore, not synonymous with the argument that the Executive Director has already decided whether to approve the application.

       Executive Director Young stated at the July 28, 1999 hearing that the phone at his office “started ringing, starting with your [Saline County’s] State Representative Kidd,” following a newspaper account of a July 2, 1999 meeting of the Quad County Facilities Board of the Town of Tull.

       The Saline County Quorum Court passed ordinances in 1998 to establish public facilities boards to assist in providing water to customers formerly served by the Southwest and Salem Water Users Associations. The Saline County Quorum Court subsequently abolished those boards on August 17, 1999.


source: Caselaw Access Project

license: Public Domain

text:
    Keyono COOK v. STATE of Arkansas
    CR 01-0224
    45 S.W.3d 820
    Supreme Court of Arkansas
    Opinion delivered June 14, 2001

      Julia B. Jackson, for appellant.

      Mark Pryor, Att’y Gen., by: Clayton K. Hodges, Ass’t Att’y Gen., for appellee.
   Annabelle Clinton Imber, Justice.

Appellant, Keyono Cook, was convicted of capital felony murder, aggravated robbery, and theft of property. The jury sentenced him to life imprisonment without parole plus twenty-seven years in the Arkansas Department of Correction. Mr. Cook’s only point on appeal has to do with the admissibility of two documents. He contends that the documents were not relevant, that their probative value was substantially outweighed by their prejudicial effect, and that they were introduced solely to prove that Mr. Cook was a bad person. We disagree and affirm.

On April 13, 1999, Mr. Cook entered a Western Sizzlin with the purpose of robbing the restaurant. During the robbery, he shot and killed the manager, David Nichols. Three days later, a detective with the Little Rock Police Department stopped Mr. Cook’s brother and co-defendant, Denaro Cook, who was driving a vehicle identified as the one used in the robbery. With Denaro’s permission, the detective searched the vehicle and found a black notebook on the front seat. On top of the notebook he found a document entitled “Plan A and Plan B.” Inside the notebook, on top of other papers, he found a rap song entitled “Give Up the Strilla.” Mr. Cook admitted both to his involvement in the robbery and to being the author the two documents. Over his objections, both documents were admitted into evidence at trial.

The document entided “Plan A and Plan B,” was handwritten as follows:

Plan A Plan B

look around first and make sure don’t nobody see

1) Wait by pay phone Wait across the street

2) See Target/walk toward him See Target/run across the street

3) Put strap to his back-Go back in Put strap to his back-Go back in

4) Take him to the office Take him to the office

5) Let him open the door Let him open the door

6) Make him give all the money including change

7) Tie him up and make him go to the freezer

8) get the keys and go out through the back door

9) lock the door back and throw the keys in the next 3 dump

10) walk down to the end and make sure you of the alley and take off clothes don’t drop s**t

Plan A + Plan B = Done Deal

Mr. Cook authored the following handwritten rap song:

Give Up (The Strilla) By: Buck - shot
Look out 4 this muthaf**n killa on the for realla n**a, you bets to give up the strilla or getta, muthaf**n slugg assigned to yo a**
or you can do the s**t the easy way, give up the cash as bad as my muthaf**n a** is doin,
you refuse, you loose, you snooze, you made the news d**n, dude you cruel, that’s what my peoples say
I ain’t cruel, I choose, to be on a paper chase gone of that hay, all about my feddy.
If I ain’t got no strapp, my second choices my michete I’m ready to do yo a** up n**a
And give up, give up, the f**n strilla, 4 realla Chorus: Give up, Give up, Give up the Strilla.
If you don’t, you don’t. I’ma have to kill ya. I creepin, keepin thing on the low.
Betta gett ready n**a, Im fits to pull a kickdoe. Maintain to explain the game main, ain’t a d**n thang
change, Buck-shots my muthaf**n name all about my strilla and my feddy pimp
playin the biggest n**as, for some muthaf**n wimps attempt to get rich on these streets
for n**az wit beef, I brings the Heast Step back Hoe, if you didn’t already know
I comes to yo hood, and crank up the show and slowly but slowly unleash the beast
f**n hoes, killin n**as, and anybody with cheese I love money like my muthaf**n fam-il-y
I want the money from you, and everybody around me I’ma make yo funky a** die slow
but befo you die give up the strilla Hoe.

I. Standard of Review

In matters relating to the admission of evidence under Arkansas Rules of Evidence 401, 403, and 404(b), a trial court’s ruHng is entitled to great weight and will not be reversed absent an abuse of discretion. Arthur v. Zearley, 337 Ark. 125, 138, 992 S.W.2d 67, 74 (1999) (Rule 401); Greene v. State, 317 Ark. 350, 355, 878 S.W.2d 384, 387 (1994) (Rule 403); and Abernathy v. State, 325 Ark. 61, 64, 925 S.W.2d 380, 38 (1996) (Rule 404(b)).

II. Rule 401 Relevancy

“ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Ark. R. Evid. 401. Mr. Cook argues that the two documents were not relevant because they were remote in time and the events described in the documents were not similar to the actual crime. We disagree.

The two documents were found three days after the crime on the front seat of the vehicle used in the crime. Both documents were written by Mr. Cook and both describe aggravated robbery scenarios. Whether Mr. Cook intended to commit aggravated robbery is a material issue in the case; so, the documents make the existence of his intent to commit aggravated robbery more probable than it would be without the evidence. Under these facts, we cannot say the trial court abused its discretion in finding the two documents relevant under Rule 401.

III. Rule 403 Balancing Probative Value and Prejudicial Effect

“Although 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, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Ark. R. Evid. 403. Mr. Cook contends that the two documents were prejudicial because each describes criminal activity, but they were not probative because the State offered the documents to prove intent, and intent to kill is not an element of capital felony murder.

In this case, the criminal activity that Mr. Cook claims makes the documents prejudicial also makes them probative of his intent to commit aggravated robbery, the underlying felony for his capital felony murder charge. Here, we are dealing with capital felony murder where the murder is perpetrated “in the course and furtherance of’ aggravated robbery. The culpable intent or mens rea relates to the crime of the underlying felony — aggravated robbery — and not the murder itself. Jones v. State, 336 Ark. 191, 984 S.W.2d 432 (1999); Dixon v. State, 319 Ark. 347, 891 S.W.2d 59 (1995). “Plan A and Plan B” was a ten-step plan to commit an aggravated robbery. The rap song, “Give Up the Strilla,” discussed using a “strap” (or gun) to force a victim to “give up the cash” — again, an aggravated robbery. Because both documents were probative of Mr. Cook’s intent to commit aggravated robbery, the trial court did not abuse its discretion in holding that the prejudicial effect did not substantially outweigh the probative value of the evidence.

IV Rule 404(b) Prior Bad Acts

Arkansas Rule of Evidence 404(b) states:

(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Evidence offered under Rule 404(b) must be independently relevant, thus having a tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. McGehee v. State, 338 Ark. 152, 952 S.W.2d 110 (1999). The list of exceptions to inadmissibility in Rule 404(b) is not an exclusive list, but instead, it is representative of the types of circumstances under which evidence of other crimes or wrongs or acts would be relevant and admissible. Williams v. State, 343 Ark. 591, 602, 36 S.W.2d 324, 331 (2001).

In Williams, we reiterated the difference between the requirements for the admission of evidence to prove modus operandi and the test for admissibility under one of the exceptions to Rule 404(b). Id. at 599, 36 S.W.3d at 329. The two evidentiary concepts are different. The test for admission of prior bad acts under Rule 404(b) is whether the evidence offered has independent relevance to a fact of consequence in the case. Id. at 602, 36 S.W.3d at 331. Whereas, the test for the admission of evidence to prove identity using modus operandi has two requirements: “(1) both acts must be committed with the same or strikingly similar methodology; and (2) the methodology must be so unique that both acts can be attributed to one individual.” Id. at 599, 36 S.W.3d at 329. See Haire v. State, 340 Ark. 11, 8 S.W.3d 468 (2000).

Mr. Cook again asserts that the two documents should not have been admitted into evidence because (a) the criminal activity described in each document is not substantially similar to the crime here, and (b) the State failed to prove that the documents were not remote in time. First, the degree of similarity between the prior bad acts and the present crime required for admission under Rule 404(b) may vary with the purpose for which the evidence is admitted. Sasser v. State, 321 Ark. 438, 447, 902 S.W.2d 773, 778-79 (1995) (citing 1 Christopher B. Mueller 8c Laird C. Kirkpatrick, Federal Evidence § 112, n. 4 and accompanying text (2d ed.1994) (“To be probative, prior criminal acts must require an intent similar to that required by the charged crime, although it is usually said that the prior crime need not closely resemble the charged crime.”); 1 John W Strong, McCormick on Evidence § 190, n. 31 and accompanying text (4th ed. 1992) (“The similarities between the act charged and the extrinsic acts [admitted to show the act charged was not performed inadvertently, accidentally, involuntarily, or without guilty knowledge] need not be as extensive and striking as is required ... [to show modus operandi ]”)). Moreover, the trial judge is afforded considerable leeway when determining whether the circumstances of prior bad acts are sufficiently similar to the present crime of capital felony murder to justify proof of the former as probative of the defendant’s intent to commit the predicate offense of the latter. Sasser v. State, supra. Thus, the trial court did not abuse its discretion in determining that because the two documents described the commission of an aggravated robbery and were authored by Mr. Cook, they were similar enough to the crime charged to meet Rule 404(b) requirements.

In support of his timeliness argument, Mr. Cook states that there was no proof as to when “Plan A and Plan B” was authored. He also notes that one of the witnesses who testified on his behalf dated the song, “Give Up the Strilla,” as being three to four years old. We have often recognized the superior position of the trial judge to determine the credibility of a witness in a suppression hearing. Wright v. State, 335 Ark. 395, 404, 983 S.W.2d 397, 401 (1999). The trial judge was not required to accept the credibility of Mr. Cook’s witness; rather, evaluation of the credibility of that witness for admissibility purposes lay within the trial judge’s sound discretion. Further, the witness testified during trial, thereby allowing the jury to consider the testimony when weighing the credibility of the evidence. Regardless of when the song or the two-step plan was written, other factors may be considered when evaluating timeliness. Both documents were found in the getaway vehicle three days after the crime. The song was found on top of other papers inside a notebook that was directly underneath the “Plan A and Plan B” document. Given the circumstances of the case at bar, we cannot say the trial court abused its discretion in admitting the rap song written by Mr. Cook and the “Plan A and Plan B” document, also authored by him. Both documents were independently relevant proof of Mr. Cook’s intent to commit the underlying felony — aggravated robbery. We therefore conclude that both documents were admissible under the intent exception to Rule 404(b).

V. Rule 4-3 (h)

The transcript of the record in this case has been reviewed in accordance with our Rule 4-3 (h) which-requires, in cases in which there is a sentence to life imprisonment or death, that we review all prejudicial errors in accordance with Ark. Code Ann.- § 16-91-113(a). None have been found.

Affirmed.

       Mr. Cook goes by the nickname “Buck”. In street slang, “strilla”, “feddy”, “beef*, and “cheese” mean money. A “strap” is a gun, and a “slug” is a bullet.

       This court has previously admitted a rap song as probative of intent. Britt v. State, 334 Ark. 142, 974 S.W.2d 436 (1998). Other jurisdictions have also admitted songs and song lyrics as proof of intent. See State v. Koskovich, 776 A.2d 144 (N.J. 2001) available in 2001 WL 618579 (N. J. 2001) (admitting violent song lyrics as proof of intent); State v. Nance, 533 N.W.2d 557, 561 (Iowa 1995) (admitting evidence that defendant said words, “one to the cranium,” from a rap song minutes before shooting the victim.); State v. Green, 738 N.E.2d 1208, 1217 (Ohio 2000) (admitting evidence that defendant made up a rap song describing the crime with the words “I shot him five times, and he dropped, he tried to run, so I shot him”); Appellate Court of Ill. v. Spraggins, 723 N.E.2d 359, 360 (Ill. App. 1999) (allowing the introduction of a rap song defendant sang in jail in which he substituted words from the original song with his own wording indicating his intent to kill a witness against him.); Green v. State, 934 S.W.2d 92, 104 (Tex. App. 1996) (allowing testimony of letter written while defendant was in prison including an inculpating phrase from a rap song.); State v. Deases, 476 N.W.2d 91, 93 (Iowa App. 1991) (allowing evidence that defendant wrote a rap song about killing the victim).


author: Ray Thornton, Justice.

text:
    SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY v. Terry EASTER, Rhonda Johnson, Roy Johnson, and Ronald Taylor
    01-68
    45 S.W.3d 380
    Supreme Court of Arkansas
    Opinion delivered June 14, 2001

      Davis, Wright, Clark, Butt & Carithers, PLC, by: Constance G. Clark and Laura J. Andress, for appellant.

      Osborne & Baker, by: Barry D. Baker, for appellees Roy and Rhonda Johnson.

      Roy, Lambert & Lovelace, by: James H. Bingham, for appellee Ronald Andrew Taylor.
   Ray Thornton, Justice.

Appellant, Southern Farm Bureau Casualty Insurance Company (“Farm Bureau”), brought this declaratory judgment action, seeking a declaration that it owed neither a duty to pay, nor a duty to defend, an action brought by third parties injured in an automobile accident with a vehicle driven by appellee, Terry Easter (“Easter”), its insured, because of certain exclusions from coverage contained in the policy. Farm Bureau moved for summary judgment, asking the court to find the policy exclusions valid as a matter of law, but the trial court did not grant this motion. Appellees, Roy and Rhonda Johnson (“the Johnsons”), were passengers in Easter’s vehicle, and appellee, Ronald Taylor (“Taylor”), was the driver of the car involved in the collision with Easter’s truck. Appellees contended that they were injured in the collision and filed a motion for summary judgment on the basis that the exclusionary clauses were void because of public policy. The trial court granted this motion. We conclude that the trial court was correct in denying appellant’s motion for summary judgment, but erred in granting summary judgment to appellees.

Easter, the owner of a pickup truck, was insured by a liability policy issued by Farm Bureau. On November 12, 1998, Easter squealed his tires as he passed through a parking lot in Rogers and attracted the attention of two police officers as he exited the lot, running a number of stop signs with the officers in pursuit, before colliding with a car driven by Taylor. Taylor and Roy and Rhonda Johnson, who were passengers in Easter’s truck, were injured in the collision. The police apprehended and arrested Easter at the scene of the accident, charging him with numerous offenses.

On December 15, 1998, the Johnsons filed a tort claim against Easter in Benton County Circuit Court, claiming that Easter’s negligence was the proximate cause of the collision and seeking damages for personal injuries they allegedly sustained in the accident. Taylor filed a similar claim against Easter.

On April 9, 1999, Farm Bureau filed this action for a declaratory judgment, seeking a determination that it had neither a duty to defend Easter, nor a duty to pay any judgment against him, on the grounds that the policy it issued to Easter contained exclusions for bodily injury caused by intentional acts of the insured and for bodily injury while the insured is involved in the commission of a felony or while seeking to elude lawful apprehension or arrest by any law enforcement official. These exclusions provide, as follows:

COVERAGE EXCLUSIONS

We will not pay for:

1. bodily injury or property damage caused by intentional acts or at the direction of you or any covered person. The expected or unexpected results of these acts are not covered.
* * *
13. bodily injury or property damage while you or anyone using your auto with your permission is involved in the commission of a felony; or while seeking to elude lawful apprehension or arrest by any law enforcement official.

Notwithstanding these exclusions, appellees contend that the following language contained in the policy limits the applicability of these exclusionary clauses:

When certified under any law as proof of future financial responsibility, and while required during the policy period, this policy shall comply with such law to the extent required but not more than our limit of liability.

.The Johnsons and Taylor filed separate motions for summary judgment, asserting that the exclusionary clauses relied upon by Farm Bureau are void as against the public policy of our state and do not apply as a matter of law to the facts of this case. At the conclusion of the May 11, 2000, hearing on motion for summary judgment, the trial court granted the appellees’ motions for summary judgment, determining that, as a matter of law, the exclusionary clauses are in direct violation of the public policy of requiring insurance coverage of motor vehicles before such vehicles may be licensed.

The issue on appeal is whether the trial court erred in granting summary judgment to appellees on the basis that the two exclusions contained in the policy were void because they violate principles of public policy.

At the outset, we recognize that Ark. Code Ann. § 27-22-104 (Supp. 1999) requires minimum liability insurance coverage for a vehicle operated within our state, and a violation of that requirement is a Class A misdemeanor under Ark. Code Ann. § 27-22-105 (Supp. 1999).

We summarized our standard of review for summary-judgment appeals in Norris v. State Farm Fire & Casualty Company, 341 Ark. 360, 16 S.W.3d 242 (2000), where we stated:

In reviewing summary judgment cases, we determine whether the trial court’s grant of summary judgment was appropriate based on whether the evidence presented by the moving party left a material question of fact unanswered. The moving party is entitled to summary judgment if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is not a genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Id. (citing Ark. R. Civ. P. 56; McCutchen v. Huckahee, 328 Ark. 202, 943 S.W.2d 225 (1997)).

In light of our standard of review, we must first determine whether there are unresolved questions of fact that must be addressed before the applicability and validity of the exclusionary clauses can be resolved.

We consider each of the exclusionary clauses separately, beginning with the exclusion for bodily injury that occurs during the commission of a felony or while seeking to elude arrest or apprehension. Unfortunately, the facts are not resolved as to the issue whether either of these triggering circumstances actually occurred. Upon the arrival of the police at the scene of the accident, Easter was charged with multiple offenses, including reckless driving, fictitious vehicle tags, no proof of insurance, felony fleeing, driving while intoxicated, and disobeying a stop sign. These charges, if established, would appear to meet the criteria expressed for exclusion from coverage by the exclusionary clause under consideration, unless that clause is unenforceable on public policy grounds. However, the record reflects that all of these charges were nol-prossed, except the charge of felony fleeing, which, through a plea agreement with the State that was entered into by Easter, was amended and reduced to a misdemeanor charge of reckless driving. Easter was sentenced to six months unsupervised probation, conditioned upon his committing no new offenses, as well as seven days in the Benton County Jail, with credit for one day time served, and was assessed court costs of $150.00 and fines of $150.00.

Under these circumstances, a disputed issue of fact remains concerning the applicability of the exclusionary clause for bodily injury that occurs during the commission of a felony or seeking to elude lawful apprehension or arrest. However, the trial court did not resolve this material question of fact. Only if the trial court finds that the facts presented in this case trigger the applicability of the exclusionary provision does it become necessary for the trial court to decide the subsequent question whether the policy provision excluding coverage for bodily injury or property damage based on those facts is invalid because of public policy considerations relating to our mandatory liability insurance laws. These questions should be resolved by the trial court.

We next address the issue posed by the other cited exclusionary clause relating to bodily injury or property damage caused by intentional acts. That clause further provides that both expected or unexpected results of such acts are excluded from coverage. We note that we have consistently limited the exclusion of accidental or unexpected results from coverage of liability policies. See Norris, supra; Talley v. MFA Mut. Ins. Co., 273 Ark. 269, 620 S.W.2d 260 (1981). However, in the case before us, it is clear that factual determinations must be made by the trial court before the validity of the exclusionary clause for an intentional act can be addressed. The trial court noted that genuine issues of material fact remained for decision at the end of the May 11, 2000, hearing on motion for summary judgment:

The COURT: Well, first of all, I do not think you can decide based on what we have this issue about the intentional act exclusion. I think it is an issue of fact as to whether or not he intentionally caused a collision with the automobile here. Whether or not he intentionally ran a stop sign is one issue, but the other issue is whether or not he intentionally caused a collision. I do not think you can imply that he intentionally caused a collision from the fact that he may have intentionally ran the stop sign, that he may have intentionally fled from the police as far as that’s concerned.

It is clear from these comments that the trial court recognized that there were unresolved issues of material fact pertaining to the question whether there was an intentional act that would trigger the intentional act exclusion at issue in this case. The trial court recognized that there remained unresolved questions as to whether Easter intentionally caused a collision. If, upon further development of the case, it is determined that Easter intentionally caused the collision, thereby triggering this exclusionary clause, the remaining issue is whether the public policy of the state invalidates that exclusion. However, notwithstanding the trial court’s recognition of this unresolved factual issue, it granted summary judgment to appellees. Because there were unresolved genuine issues of material fact concerning whether the collision was an intentional act, we conclude that summary judgment was erroneously granted.

The order granting summary judgment must be reversed because there remain genuine issues of material fact relating to each of the exclusionary clauses, and, consequently, until such issues are resolved, we cannot decide the validity of the two exclusionary clauses under the public policy consideration of requiring liability insurance for the benefit of the public, as well as for the benefit of the named insured.

Reversed and remanded.

       Section. 1(a) of Act 988 of 1991 addresses the mandatory liability insurance requirements and provides that the General Assembly has determined that there is a large number of motor vehicles within this state that are not licensed and are in violation of Arkansas’ motor vehicle licensing law and that the owners of these vehicles “have not complied with the mandatory insurance requirements, thereby increasing the potential financial catastrophe to others involved in the accident with them.” Id.

         Ark. Code Ann. § 27-22-104 provides, in relevant part:
      (a) (1) It shall be unlawful for any person to operate a motor vehicle within this state unless the vehicle is covered by a certificate of self-insurance under the provisions of § 27-19-107, or by an insurance policy issued by an insurance company authorized to do business in this state.
      (2) Failure to present proof of insurance coverage at the time of arrest and a failure of the vehicle insurance database to show current insurance coverage at the time of the traffic stop creates a rebuttable presumption that the motor vehicle is uninsured.
      (b) The policy shall provide as a minimum the following coverage:
      (1) Not less than twenty-five thousand dollars ($25,000) for bodily injury or death of one (1) person in any one (1) accident;
      (2) Not less than fifty thousand dollars ($50,000) for bodily injury or death of two (2) or more persons in any one (1) accident; and
      (3) If the accident has resulted in injury to or destruction of property, not less than twenty-five thousand dollars ($25,000) for the injury to or destruction of property of others in any one (1) accident.

        Id.


author: Jim Hannah, Justice. Tom Glaze, Justice,

text:
    ARKANSAS GAME and FISH COMMISSION et al. v. The Honorable John Norman HARKEY
    00-1348
    45 S.W.3d 829
    Supreme Court of Arkansas
    Opinion delivered June 14, 2001

      James F. Goodhart and James B. Watson; and Hill, Gilstrap, Perkins & Trotter, PC, by: G. Alan Perkins, for petitioners.

      Hurst Law Offices, by: Q. Byrum Hurst, Jr., for respondent.
   Jim Hannah, Justice.

Based upon an asserted lack of venue, the Arkansas Game and Fish Commission and certain commissioners (collectively referred to as “the Commission”) seek a writ of prohibition to stop the Stone County Chancery Court from hearing a complaint for declaratory judgment and for injunctive relief filed against the Commission and certain commissioners. The Commission argues that such an action must be brought in Pulaski County pursuant to Ark. Code Ann. § 16-60-103(3) (1987), which provides that all actions against state boards, state commissioners, or state officers on account of official acts must be brought in Pulaski County, and Ark. Code Ann. § 16-60-101 (d) (1987), which provides that “all actions against the board, commissioner, or state officer for or on account of any official act done or omitted to be done shall be brought and presented in the county where the defendant resides.” The original plaintiffs, as respondents forjudge John N. Harkey, rely on Ark. Code Ann. § 25-15-207 (Repl. 1996) under the Arkansas Administrative Procedure Act, which provides that the validity or applicability of a rule of an administrative agency may be the subject of a declaratory-judgment action in circuit court in the county in which the plaintiff resides, or does business, or in Pulaski County. The issue of whether Ark. Code Ann. § 25-15-207 applies was rendered moot by respondents when they transferred the case from circuit court to chancery court because this statute requires the action be in circuit court. The equitable relief sought could only be obtained in chancery court in Pulaski County under venue set out in Ark. Code Ann. § 16-60-103 and Ark. Code Ann. § 16-106-101(d). The writ of prohibition is granted.

Facts

This case arises from adoption of hunting regulations by the Commission that prohibited the hunting of deer with dogs during the modern-gun season in certain deer-management zones during the 2000-2001 deer season.' Plaintiffs below brought an action for declaratory judgment and injunctive relief in Stone County Circuit Court alleging that the regulations prohibiting the use of dogs were constitutionally deficient. The Commission filed a motion to dismiss asserting a lack of venue because, pursuant to statute, such suits must be brought in Pulaski County. Meanwhile, plaintiffs filed a petition for stay of enforcement in the Stone County action, which sought to enjoin or stay enforcement of the new regulations during the hunting season. A hearing was held on November 20, 2000, to consider a number of matters including the motion to dismiss and the petition for a stay of enforcement. At the hearing, counsel for the Commission raised the issue that the circuit court did not have jurisdiction to grant an injunction. The trial court asked whether plaintiffs desired to transfer to chancery. An oral motion to transfer was made by plaintiffs and granted by the trial court. From that point on the proceedings were in chancery. After hearing argument, the trial court took the motion to dismiss based on venue under advisement and granted the injunction or stay of enforcement of the rules at issue. The Commission then filed a petition for a writ of prohibition in this court alleging that the trial court was proceeding wholly without authority.

Mootness

We note that the deer-hunting season at issue ended in December of last year. The case would thus appear to be moot. However, as discussed in Arkansas State Game and Fish Commission v. Sledge, 344 Ark. 505, 42 S.W.3d 427 (2001), this is a case that fits under the exception for “cases that are capable of repetition yet evading review, being cases in which the justiciable controversy will necessarily expire or terminate prior to adjudication.” Id. (citing Cook v. State, 333 Ark. 22, 968 S.W.2d 589 (1998)). See also, Wright v. Keffer, 319 Ark. 201, 890 S.W.2d 271 (1995). Because it is likely this situation will arise again, we will address the petition.

Writ of Prohibition

Petitioners seek a writ of prohibition to stop the chancery court from proceeding in this case based upon a lack of venue. The purpose of the writ of prohibition is to prevent a court from exercising a power not authorized by law when there is no adequate remedy by appeal or otherwise. Patterson v. Isom, 338 Ark. 234, 992 S.W.2d 792 (1999); Young v. Smith, 331 Ark. 525, 964 S.W.2d 784 (1998). See also, State v. Nelson, Berry Pet Co., 246 Ark. 210, 438 S.W.2d 33 (1969). As has long been the law, a writ of prohibition is extraordinary relief which is appropriate only when the trial court is wholly without jurisdiction. Arnold v. Spears, 343 Ark. 517, 36 S.W.3d 346 (2001); Bassett v. Bourland, 175 Ark. 271, 299 S.W. 13 (1927). While jurisdiction is the power and authority of the court to act, venue is the place where the power to adjudicate is to be exercised. Venue has thus often been characterized as procedural rather than jurisdictional. Mark Twain Life Ins. Corp. v. Cory, 283 Ark. 55, 670 S.W.2d 809 (1984). However, even though procedural, this court has a long history of granting the writ when venue is improper as to a party. This is so because this court characterizes the venue issue as one of jurisdiction over the person, the improper assertion of which, in that instance, justifies issuance of the writ. Steve Standridge Ins., Inc. v. Langston, 321 Ark. 331, 900 S.W.2d 955 (1995); Prairie Implement Co. v. Circuit Court, 311 Ark. 200, 844 S.W.2d 299 (1992); International Harvester Co. v. Brown, 241 Ark. 452, 408 S.W.2d 504 (1966).

Venue

Respondents argue venue was proper under the Administrative Procedure Act. Arkansas Code Annotated § 25-15-207 “Actions for declaratory judgments” provides:

(a) The validity or applicability of a rule may be determined in an action for declaratory judgment if it is alleged that the rule, or its threatened application, injures or threatens to injure the plaintiff in his person, business, or property.
(b) The action may be brought in the circuit court of any county in which the plaintiff resides or does business or in the Circuit Court of Pulaski County.
(c) The agency shall be made defendant in that action.
(d) A declaratory judgment may be rendered whether or not the plaintiff has requested the agency to pass upon the validity or applicability of the rule in question.

However, appellants assert they may not be sued in Stone County because Ark. Code Ann. § 16-60-103(3) and Ark. Code Ann. § 16-106-101 (d) require suit in Pulaski County. Section 16-60-103(3) provides in pertinent part:

The following actions must be brought in the county in which the seat of government is situated:
(3) All actions against the State and all actions against State boards. State Commissioners, or State Officers on account of their official acts....

Section 16-106-101(d) provides in pertinent part:

...all actions against the board, commissioner, or state officer for or on account of any official act done or omitted to be done shall be brought and prosecuted in the county where the defendant resides.

When the plaintiffs below moved to transfer the case to chancery, the Commission did not object. One might question whether the issue was thereby waived. It was not. The chancellor clearly did not believe there had been a waiver. Immediately after granting the motion, the chancellor stated, “Now that brings us down to the issue of whether venue is in Stone County or is in Pulaski County....” This was correct. The issue of venue had not been resolved by the transfer and was still pending. Venue is the geographic area where an action may be brought, such as a county. Davis v. Reed, 316 Ark. 575, 873 S.W.2d 524 (1994). There is nothing about a transfer from circuit court to chancery court within a single venue that altered the petitioners’ claim that venue in that county was improper. It is true that venue may be waived. If a party objecting to venue invokes the jurisdiction of the court by an act such as filing a third-party complaint, the objection to venue is thereby waived. Arkansas Game & Fish Commission v. Lindsey, 292 Ark. 314, 730 S.W.2d 474 (1987). See also, Waterman v. Jim Walter Corp., 245 Ark. 218, 431 S.W.2d 748 (1968). In fact, absent an objection, a trial court has the power to render a binding judgment even though venue is not proper. Tortorich v. Tortorich, 333 Ark. 15, 968 S.W.2d 53 (1998); Prairie Implement Co. v. Circuit Court, 311 Ark. 200, 844 S.W.2d 299 (1992). Here, however, a motion to dismiss based on a lack of venue was filed as the responsive pleading to the complaint and has preserved the issue to this time.

Arkansas Code Annotated § 25-15-207 by its express terms requires the declaratory-judgment action be in circuit court. The respondents made an oral motion to transfer this action from circuit court to chancery court during the hearing on November 20, 2000, because respondents were seeking an injunction, and circuit court does not have jurisdiction to issue an injunction. This court recently discussed the issue of the type of stay requested by the respondents in the context of duck-hunting regulations and found it was an injunction. Sledge, supra. Upon making the motion, the court stated, “Granted and it’s now in chancery.”

Article I of the Arkansas Constitution provides in relevant part that “[t]he seat of government of the State of Arkansas shall be and remain in Litde Rock where it is now established.” This court takes judicial notice that the official residence of the Arkansas Game and Fish Commission and its director is in Pulaski County. See Liquefied Petroleum Gas Board v. Newton, 230 Ark. 267, 322 S.W.2d 67 (1959). Pursuant to Sections 16-60-103 and 16-106-101, venue for this action lies in Pulaski County. The chancellor is without authority to act in this case, and the writ of prohibition is proper.

Writ of prohibition granted.

Glaze, J., concurs.

Special Justices MARTHA HARRIMAN andJlM BURNETT join in this opinion.

Brown and Thornton, JJ., not participating.

Tom Glaze, Justice,

concurring. I concur, but write only to emphasize this court, in Arkansas Game & Fish Comm’n v. Lindsey, 292 Ark. 314, 730 S.W.2d 474 (1987), recognized the venue statute, Ark. Code Ann. § 16-60-103 (1987), applied in a suit against the Arkansas Game and Fish Commission. In doing so, the Lindsey court stated that all actions against the Commission must be filed in Pulaski County. As we also held recendy in Valley v. Bogard, 342 Ark. 336, 28 S.W.3d 269 (2000), all actions against state officers which bring into play their official acts must be brought in Pulaski County. The underlying reasoning for establishing venue in Pulaski County is that it would not be practical or good public policy to permit state officials to be drawn away from their official duties and their official residence by suits filed in distant counties arising in connection with their official acts. See Forrest City Machine Works v. Colvin, 257 Ark. 889, 521 S.W.2d 206 (1975).

In short, I join in the majority court’s granting the Commission’s petition for writ of prohibition because this court has held venue is in Pulaski County when suit is brought against the Arkansas Game and Fish Commission. The Commission steadfasdy objected to venue in Stone County and did nothing to waive venue.

       The Lindsey opinion mistakenly cited Ark. Stat. Ann. § 27-602 (Repl. 1979), instead of Ark. Stat. Ann. § 27-603 (Repl. 1979), which is now codified at Ark. Code Ann. § 16-60-103 (1987). Section 27-603 and § 16-60-103 read the same and provide actions against state boards, state commissioners, or state officers are to be brought in Pulaski County.

       The Lindsey court, however, held the Commission waived the issue of improper venue when it voluntarily asked affirmative relief by filing a third-party complaint.


author: Per Curiam.

text:
    Ronald J. DWORSHAK v. STATE of Arkansas
    CR 01-604
    45 S.W.3d 386
    Supreme Court of Arkansas
    Opinion delivered June 14, 2001

      Lynn F Plemmons, for appellant.
    No response.
   Per Curiam.

Appellant, Ronald J. Dworshak, by and through his attorney, has filed a motion for a rule on the clerk. His attorney, Lynn F. Plemmons, admits in his motion that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by an attorney for a criminal defendant, is good cause to grant the motion. See In re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

The motion is therefore granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Timothy HOUFF v. STATE of Arkansas
    CR 01-595
    45 S.W.3d 386
    Supreme Court of Arkansas
    Opinion delivered June 14, 2001

      Kelly J. Adkins, for appellant.
    No response.
   Per Curiam.

Appellant Timothy Houff, by and through his attorney, Kelly J. Adkins, has filed a motion for rule on the clerk. The record reflects that Appellant was convicted of two counts of residential burglary, one count of breaking and entering, and one count of theft of property after a bench trial that was held on September 11, 2000. On October 2, 2000, Appellant was orally sentenced to serve a total of forty-two months in the Arkansas Department of Correction. Appellant filed a notice of appeal on October 3, 2000. The judgment and commitment order, however, was not filed until October 18, 2000. Pursuant to Ark. R. App. RCrim. 2(b)(1), the notice of appeal is treated as timely filed on October 19, 2000.

On November 29, 2000, the trial court entered an order extending the time to file the record on appeal until May 17, 2001. The record was not tendered with this court’s clerk until May 21, 2001. Appellant’s counsel admits that the record was not timely filed; however, she does not accept responsibility for tendering the record late. Instead, she states only that the record was not ready until the afternoon of May 16, and that she was out of town on May 17.

This court will grant a motion for rule on the clerk in criminal cases when the attorney admits that the record was not timely filed due to an error on his or her part. Beavers v. State, 341 Ark. 649, 19 S.W.3d 23 (2000) (per curiam) (citing Tarry v. State, 288 Ark. 172, 702 S.W.2d 804 (1986) (per curiam)). A statement that it was someone else’s fault or no one’s fault will not suffice. Id. The attorney is responsible for filing the record and cannot shift that responsibility to the trial judge, the court reporter, the clerk of the lower court, or anyone else. Id. Because Ms. Adkins fails to accept responsibility for not filing the record within the required time, Appellant’s motion must be denied.

Appellant’s attorney shall file within thirty days from the date of this per curiam order a motion and affidavit in this case accepting full responsibility for not timely filing the notice of appeal. Upon filing same, the motion for rule on the clerk will be granted, and a copy of the opinion will be forwarded to the Committee on Professional Conduct. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).


text:
    Ramona MOIX-McNUTT v. Robert J. BROWN
    01-283
    45 S.W.3d 384
    Supreme Court of Arkansas
    Opinion delivered June 14, 2001

      McNutt Law Firm, by: Mona J. McNutt, for appellant.

      Cross, Gunter, Witherspoon & Galchus, P.C., by: M. Stephen Bingham, for appellee.
   Per Curiam.

Appellant Ramona Moix-McNutt moves to supplement the record in this matter with the following items:

(a) A subpoena filed September 19, 2000, summoning the Honorable James G. Mixon to deposition.
(b) Appellee Brown’s motion to stay discovery pending a decision on his motion to dismiss. The motion for stay was filed September 25, 2000.
(c) Appellant Moix-McNutt’s response to the motion for stay. The response was filed on September 26, 2000.

Though Moix-McNutt designated the entire record in her notice of appeal, she claims that these items were not included. She further claims that discovery was stayed by order of the trial court.

Appellee Brown responds and asserts that the subpoena for Judge Mixon scheduling his deposition was not required to be included in the record. He further contends that the motion for stay and response were included in the record and, thus, a motion to supplement the record is not necessary. Finally, he claims that no order for a stay of discovery was entered by the trial court, but, rather, the appellant voluntarily postponed Judge Mixon’s deposition.

Appellant Moix-McNutt replies that her copy of the record does not include the motion for stay and the response because her copy does not include pages 51 to 61. Moreover, she maintains that she only agreed to postpone Judge Mixon’s deposition after the trial judge requested that she do so. She says that she expected the “request” to be entered as an order of the court and denies that she voluntarily postponed the deposition. She attaches to her reply letters from her counsel and a legal assistant that state that the trial court requested the postponement.

With respect to the motion for stay and the response, appellee Brown is correct that these items are in the record on file with the Clerk of this court. Accordingly, the motion to supplement the record with these items is denied.

With respect to the subpoena of Judge Mixon and the allegation that the trial court requested that the deposition of Judge Mixon be postponed, we remand the matter to the trial court to settle the record pursuant to Ark. R. App. P. — Civ. 6(d) and 6(e).


author: W.H. ”Dub” Arnold, Chief Justice.

text:
    Kimberly BEAVERS v. STATE of Arkansas
    CR 00-615
    46 S.W.3d 532
    Supreme Court of Arkansas
    Opinion delivered June 21, 2001

      Alvin D. Clay, for appellant.

      Mark Pryor, Att’y Gen., by: Kent G. Holt, Ass’t Att’y Gen., for appellee.
   W.H. ”Dub” Arnold, Chief Justice.

Appellant, Kimberly Beavers, was convicted as an accomplice to Joseph Hill and Tavoris Thomas of aggravated robbery and theft of property for the June 11, 1997, robbery of the Golden Corral Restaurant. She was sentenced pursuant to a sentence enhancement provision to life imprisonment in the Arkansas Department of Correction. We affirm her conviction and sentence.

Prior to being charged in the present case, appellant was charged on July 9, 1997, with capital murder and aggravated robbery for an offense that occurred at the Back Yard Burger on July 1, 1997. The State elected to prosecute the Back Yard Burger offense prior to the present offense, which occurred at the Golden Corral. Appellant was convicted by a jury in the Back Yard Burger case of first-degree murder and aggravated robbery. She was sentenced to two consecutive ten-year sentences in the Arkansas Department of Correction.

In the present case, the State used the two convictions in the Back Yard Burger case to enhance appellant’s sentence. The felony information was amended on September 1, 1999, to include an allegation that appellant had previously been convicted of two serious felonies involving violence and that her sentence should be enhanced pursuant to Ark. Code Ann. § 5-4-501 (d) (Repl. 1997). Appellant objected to the sentence enhancement, but the trial court determined that the enhancement was proper and, after appellant was convicted by a jury, the court sentenced appellant to life in the Arkansas Department of Correction on the aggravated-robbery count and merged the misdemeanor theft-of-property count. It is from this judgment and conviction that appellant now appeals.

For her appeal, appellant asserts the following points for reversal:

1) The trial court erred in fading to allow appellant to use prior testimony of a witness for rehabilitation after the State used prior testimony to impeach the witness;
2) The trial court erred in allowing the State to use two prior convictions to enhance appellant’s sentence where the two prior convictions resulted from offenses committed after the present offense;
3) There was insufficient evidence to support the conviction of appellant since the only evidence connecting appellant to the offense was a statement by a co-defendant who later recanted his statement.

I. Sufficiency of the Evidence

Double jeopardy considerations require this Court to consider a challenge to the sufficiency of the evidence before other points are raised. See Jones v. State, 336 Ark. 191, 984 S.W.2d 432 (1999); Conner v. State, 334 Ark. 457, 982 S.W.2d 655 (1998); Britt v. State, 334 Ark. 142, 974 S.W.2d 436 (1998). When a defendant makes a challenge to the sufficiency of the evidence on appeal, we view the evidence in the light most favorable to the State. See Jones v. State, supra; Bell v. State, 334 Ark. 285, 973 S.W.2d 806 (1998); Bailey v. State, 334 Ark. 43, 972 S.W.2d 239 (1998). Evidence, whether direct or circumstantial, is sufficient to support a conviction if it is forceful enough to compel reasonable minds to reach a conclusion one way or the other. See Wilson v. State, 332 Ark. 7, 962 S.W.2d 805 (1998). On appeal, this court does not weigh the evidence presented at trial, as that is a matter for the fact-finder; nor do we assess the credibility of the witnesses. See id.

In the instant case, the appellant asserts that the trial court erred in denying her motion for a directed verdict. However, appellant failed to properly preserve the motion for appeal. At the close of the State’s case, defense counsel made the following motion:

Defense Counsel: Judge, at this time we’d make a motion for directed verdict based upon the insufficiency of the evidence. We don’t feel that the State has established a prima facie case of theft of property and aggravated robbery.

In Conner v. State, supra, this Court said that:

[i]n order to preserve a challenge to the sufficiency of the evidence, an appellant must make a specific motion for a directed verdict which advises the trial court of the exact element of the crime that the State has failed to prove. Fultz v. State, 333 Ark. 586, 972 S.W.2d 222 (1998); Dulaney v. State, 327 Ark. 30, 937 S.W.2d 162 (1997). In contrast, a general motion that merely asserts that the State has failed to prove its case in inadequate to preserve the issue for appeal. See, e.g., Crisco v. State, 328 Ark. 388, 943 S.W.2d 582 (1997) (claiming that the Stated failed “to prove a prima facie case”) [.]

Id., 334 Ark. at 464, 982 S.W.2d at 658. We hold that, having failed to make a specific motion for directed verdict, the appellant’s sufficiency challenge was not properly preserved for appeal.

II. Prior Testimony of a Witness

The appellant asserts that the trial court erred in fading to allow her defense counsel to use former testimony to “rehabilitate” the witness, Joseph Hill, who was the appellant’s codefendant in this case and another separate but related case (the Back Yard Burger case), after the State impeached Hill with his testimony from a former trial.

Joseph Hill had previously entered into a plea agreement with the State whereby he agreed to testify truthfully at appellant’s trials in exchange for a fife sentence in the Back Yard Burger case and the present case. He did testify in the Back Yard Burger case and made statements that appellant was involved in the offense committed at the Golden Corral (the instant case). He was later called as a witness in the State’s first attempt to prosecute this case, which resulted in a mistrial. At that trial, Mr. Hill first attempted to exercise his Fifth Amendment rights, but then testified that appellant was not involved in the offense at the Golden Corral.

The State anticipated that Mr. Hill would again attempt to exercise his Fifth Amendment rights at the present trial and requested that the trial court treat him as “unavailable,” should he attempt to exercise his rights and allow the State to use his testimony from the Back Yard Burger case. Over the appellant’s objection, the trial court allowed the State to call Joseph Hill and to use his prior testimony if he refused to testify. When Mr. Hill was called by the State, he did exercise his Fifth Amendment rights, and appellant was permitted to cross-examine him before the State could use the prior testimony.

During cross-examination, Mr. Hill testified that appellant was not involved in the aggravated robbery and theft of property at the Golden Corral, just as he had testified at the previous trial, which had ended in a mistrial. During re-direct examination, the trial court permitted the State, over the appellant’s objection, to use Mr. Hill’s testimony from the Back Yard Burger case to impeach him. When appellant attempted during re-cross-examination to use the testimony of Mr. Hill from the mistrial to attempt to rehabilitate him, the State objected and the trial court refused to allow appellant to use this prior testimony of Mr. Hill. Appellant asserts that the trial court erred in this regard. We disagree and hold that, as the witness’s testimony was not in conflict with his second statement made in the first Golden Corral trial, it would not have been admissible. Further, the appellant, having obtained the testimony of the witness allegedly absolving her of responsibility for the crimes and a statement that the witness testified the same way in the first Golden Corral trial, is unable to show prejudice.

Appellant asserts that Hill, having pled guilty to the charges regarding the Back Yard Burger robbery and murder, as well as the Golden Corral robbery, had effectively waived his Fifth Amendment privilege against self-incrimination. Appellant’s point is well-taken, and the trial court appears to have ruled in the appellant’s favor in allowing cross-examination as the situation developed. See Namet v. United States, 373 U.S. 179 (1963)(a “plea of guilty to [a particular] charge would erase any testimonial privileges as to that conduct.”); Reina v. United States, 363 U.S. 507 (1961)(“Ordinary rule is that once a person is convicted of a crime he no longer has privilege against self-incrimination.”)

The issue then becomes what, if any, former testimony would be allowed. Rule 802 of the Arkansas Rules of Evidence provides that “[h]earsay is not admissible except as provided by law or by these rules.” However, Rule 801(d) provides, in pertinent part, the following:

(d) A statement is not hearsay if:
(1) Prior Statement By Witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is . . .
(ii) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive.

When there is an express or implied charge that a witness has fabricated a statement that he is now making under oath, it is then proper, and not hearsay, to show that he made the same statement before the motive for fabrication came into existence. Gaines v. State, 340 Ark. 99, 8 S.W.3d 547 (2000); Henderson v. State, 311 Ark. 398, 844 S.W.2d 360 (1993). For this rule to apply, the prior consistent statement must be made before a motive to falsify has arisen or before the witness would foresee its effects upon the fact issue. See Henderson v. State, supra.

After Hill indicated that he would not testify in this case, appellant’s counsel cross-examined him, and he explained the testimony in the Back Yard Burger case that inculpated the appellant in both that case and the Golden Corral case. In addition to testifying about his testimony in the Back Yard Burger case, Hill also testified regarding the Golden Corral robbery in the following manner:

Defense COUNSEL: Do you recall testifying in another proceeding involving Golden Corral, case number 97-3182, the last time you were here?
Witness: No sir.
Defense Counsel: Okay. Do you ever recall testifying that Ms. Beavers did not drive you to the Golden Corral?
WITNESS: Can you repeat the question?
DEFENSE Counsel: Do you ever recall giving testimony that Ms. Beavers did not participate in the robbery of the Golden Corral the last time that you were here?
Witness: Yes, sir.
Defense Counsel: That testimony was different from the testimony that you initially gave, wasn’t it?
Witness: Yes, sir.
DEFENSE COUNSEL: And the last time you were here, you said that Ms. Beavers had absolutely nothing to do with it,, is that correct?
WITNESS: Yes, sir.
Defense Counsel: In fact, in your second statement, the one after the first, you said that you got to the Golden Corral on your own, didn’t you?
Witness: Yes, sir.
Defense COUNSEL: And that statement was certainly different from the first, wasn’t it?
Witness: Yes, sir.
Defense Counsel: In the second statement, you said that you drove the car, didn’t you?
WITNESS: Yes, sir.
* * *
DEFENSE Counsel: In the second statement, you basically said that you were lying in that initial statement, is that correct?
Witness: Yes, sir.
Defense Counsel: You said you were lying because Ms. Beavers did not drive the car and she did not participate in the aggravated robbery. Those were your words, correct?
Witness: Yes, sir.

With the witness having testified to the version of events consistent with his testimony (recantation) in the first trial of this matter, there then existed no reason for the appellant to use the testimony. Moreover, appellant’s counsel questioned Hill who, as a result, testified that the appellant did not participate in the Golden Corral robbery. It seems clear that appellant obtained the exact testimony she wanted; Hill testified that she did not participate in the Golden Corral robbery.

A party cannot complain of getting what they want. See Echols v. State, 326 Ark. 917, 956, 936 S.W.2d 509, 528 (1996), cert. denied, 520 U.S. 1244 (1997). Here, the jury heard and was able to evaluate the State’s evidence and that of the appellant as to how the Golden Corral robbery occurred. Even assuming that Hill’s former testimony in the Back Yard Burger case was only admissible to impeach the version he gave at the second trial, appellant’s counsel did not request any limiting instruction, and the jury could consider the former testimony as substantive evidence. See Ark. R. Evid. 105; Frazier v. State, 323 Ark. 350, 915 S.W.2d 691 (1996).

In short, because appellant was able to obtain the testimony she wanted, that being that she did not participate in the Golden Corral robbery, she is unable to show how the rulings by the trial court on this point prejudiced her in any way. We, therefore, find no error on this point.

III. Convictions for Offenses that Occurred after the Charged Offense used for Enhancement

The appellant argues that she is not subject to the enhanced range of punishment under Ark. Code Aim. § 5-4-501 (d)(1) because the offenses on which her prior violent felony convictions are based occurred after the offense for which she was convicted in the instant case. This argument is without merit.

In this case, the State sought enhanced punishment under the provisions of Ark. Code Ann. § 5-4-501. The State put the appellant on notice that it would seek sentence enhancement under both the subsection involving multiple felonies and the more severe subsection involving multiple violent felonies. See Ark. Code Ann. § 5-4-501 (a)(1) and (d)(1).

There is no question that the appellant’s convictions for murder and aggravated robbery stemming from the Back Yard Burger case, occurred cfter the Golden Corral robbery, which is the subject of this case. We have held that the provisions of the Arkansas Habitual Criminal Statute, to which Ark. Code Ann. § 5-4-501(d)(1) is a relatively recent addition, are not deterrent, but punitive in nature, so that a prior conviction, regardless of the date of the crime, may be used to increase punishment. Gillie v. State, 305 Ark. 296, 808 S.W.2d 320 (1991); see also Washington v. State, 273 Ark. 482, 621 S.W.2d 216 (1981).

The appellant’s sentence was enhanced under Ark. Code Ann. § 5-4-501 (d)(1), which states the following:

(d)(1) A defendant who is convicted of a felony involving violence enumerated in subdivision (d)(2) of this section and who has previously been convicted of two (2) or more of the felonies involving violence enumerated in subdivision (d)(2) of this section shall be sentenced to an extended term of imprisonment, without eligibility except under § 16-93-1302 for parole or community punishment transferf.]

The statute plainly speaks in terms of the conviction date of the offenses and not the dates of the actual crimes. The date of the offense is immaterial, and this has been evidenced in other aspects of sentencing, as well. See Williams v. State, 338 Ark. 97, 991 S.W.2d 565 (1999) (use of prior-violent-felony evidence admissible regardless of whether it pre- or postdated the offense being tried.)

In short, with the date of the offense being immaterial to the application of the code provision that permits enhancement for prior convictions with offenses committed subsequent to the charged offense, we hold that the trial court did not err in enhancing appellant’s sentence accordingly.

IV Rule 4-3(h) Compliance

The record has been reviewed for prejudicial error pursuant to Ark. Sup. Ct. R. 4-3 (h), and no reversible errors were found.

Affirmed.


author: Tom Glaze, Justice.

text:
    Linda TAYLOR v. Chris TAYLOR
    00-926
    47 S.W.3d 222

    Supreme Court of Arkansas
    Opinion delivered June 21, 2001

      Lambda Legal Defense & Education Fund, Inc., by: Patricia M. Logue and David S. Bucket; and Sullivan Law Firm, P.L.L.C., by: Gary L. Sullivan, for appellant.
    No response.
   Tom Glaze, Justice.

This custody case began in 1998, when Linda Taylor was granted a divorce from Chris Taylor. Originally, the chancery court awarded the Taylors joint custody of their two minor children, Jessica and Megan. Megan is the youngest child, and suffers from a developmental disability that appears to be either a form of autism or attention deficit disorder. In 1999, Chris Taylor petitioned for custody of the girls. He alleged that Linda was engaged in a romantic relationship and cohabitating with Christina Richards. Apparently, Linda had been romantically involved with Richards since the divorce, and the two had purchased a home together.

On August 5, 1999, the chancery court issued a temporary custody order, which contained a non-cohabitation clause that ordered Linda not to permit Christina Richards to remain in residence or to be an overnight guest in the home when the children were present. After the temporary custody order issued, Linda made arrangements for Christina to continue to live in the home and provide care for the children on the nights that Linda worked overnight shifts.

Before the hearing on Chris Taylor’s petition for custody, he also moved for the chancellor to hold Linda in contempt of the temporary order. Linda filed a petition for custody to remain with her and moved for a modification of the temporary order to allow Christina Richards to five in the home with her and the children, and continue in her role as a secondary caregiver. Linda also filed a motion for a continuance to allow time for further testing of Megan’s developmental disorder to determine whether it was a form of autism. No continuance was granted.

On April 10, 2000, at a hearing on the motions and custody petitions, the court heard evidence from each party, as well as the expert testimony of Dr. Deyoub, a clinical psychologist appointed by the court at Linda’s request. Linda attempted to present evidence from two other experts, Dr. Cheralyn Powers, a clinical psychologist, and Anna Vollers, an expert in the care of autistic children. Powers’s and Vollers’s testimonies were largely foreclosed by the chancellor’s rulings on objections from opposing counsel, but Linda proffered her experts’ testimonies.

At the conclusion of the hearing, the chancellor adopted Dr. Deyoub’s recommendation that primary custody remain with Linda, conditioned upon Christina Richards’s removal from the household. Although the court ruled from the bench that Christina must move out immediately, the court modified that ruling, upon Linda’s request, to allow an additional thirty days for compliance. The court held Linda in contempt for violating the non-cohabitation clause in its temporary custody order, but withheld punishment pending her compliance with the final order. Despite the grant of custody in her favor, Linda appealed the custody order, including procedural and evidentiary rulings of the chancellor and his finding of contempt. Linda’s arguments are the only ones submitted for review, since Chris Taylor chose not to respond or participate in this appeal.

First, it is important to note the level of deference that a reviewing court will give a chancery court in its de novo review of child custody cases. The chancellor’s findings will not be reversed unless they are clearly erroneous. See Campbell v. Campbell, 336 Ark. 379, 985 S.W.2d 724 (1999). This court has held that there is no other case in which the superior position, ability, and opportunity of the chancellor to observe the parties carries a greater weight than one involving the custody of minor children. See, e.g., Jones v. Strauser, 266 Ark. 441, 585 S.W.2d 931 (1979). The best interest of the child is the polestar in every child-custody case; all other considerations are secondary. Id.

On appeal, Linda argues that Christina’s presence in the household is in the best interests of the children. However, this argument appears largely moot because the custody order allows Christina to remain as a caretaker for the children on the nights that Linda has to work, conditioned upon the approval of Dr. Deyoub and Chris Taylor. The circumstance with which the chancellor took issue was Christina’s continued presence as a resident in the household, not Christina’s caretaker abilities. Arkansas’s appellate courts have steadfastly upheld chancery court orders that prohibit parents from allowing romantic partners to stay or reside in the home when the chfidren are present. See Campbell, 336 Ark. at 389 (this court and the court of appeals have never condoned a parent’s promiscuous conduct or lifestyle when such conduct has been in the presence of a child); see also Ketron v. Ketron, 15 Ark. App. 325, 692 S.W.2d 261 (1995). The Campbell court stated that the purpose of the overnight-guest order is to promote a stable environment for the children and is not imposed merely to monitor a parent’s sexual conduct. 336 Ark at 389. Linda does not seek to overturn these decisions, but instead tries to distinguish them from the facts here. For example, Linda asserts no evidence has been presented that she has engaged in promiscuous or illicit behavior with Christina Richards in the presence of the children. Linda’s argument, however, misses the point. As emphasized by our court’s earlier decisions, the trial court’s use of the non-cohabitation restriction is a material factor to consider when determining custody issues. Id. Such a restriction or prohibition aids in structuring the home place so as to reduce the possibilities (or opportunities) where children may be present and subjected to a single parent’s sexual encounters, whether they be heterosexual or homosexual.

Linda has failed to demonstrate how the chancellor erred in finding that it was against the children’s best interests for her to remain living in an admittedly romantic relationship with Christina while residing in the home with the children present. Once again, Arkansas case law simply has never condoned a parent’s unmarried cohabitation, or a parent’s promiscuous conduct or lifestyle, when such conduct is in the presence of a child. See Campbell, supra, and the cases cited therein. The chancellor here acted within his authority and was not clearly erroneous in determining that it was not in the children’s best interests for their primary custodian to continue cohabitating with another adult with whom she admitted being romantically involved.

In her next argument on appeal, Linda alleges certain procedural and evidentiary errors that she contends the chancellor committed. First, Linda contends that the chancellor erred in refusing to grant a continuance. Linda desired to delay the final custody hearing until Megan could undergo scheduled diagnostic testing to better determine whether the source of her developmental disorder was a form of autism. Although there is no ruling in the record, the chancellor conducted the final hearing as scheduled on April 10, 2000. The grant or denial of a continuance is at the discretion of the trial court, and is only reviewed for abuse of that discretion. See Alexander v. Flake, 322 Ark. 239, 910 S.W.2d 190 (1995). Linda concludes that, given the relevance of the issue of the care required by Megan, it was an abuse of discretion to deny the continuance. However, she fails to demonstrate how more evidence as to Megan’s care would have affected the court’s consideration on the cohabitation issue or the outcome of the decision on that issue. Id.

Linda further argues that the chancellor abused his discretion in sustaining an objection to expert testimony by Anna Vollers, the Director of the Arkansas Autism Society, on autistic disorders and the care required for autistic children. When counsel for Chris Taylor objected on the basis of relevance, Linda argued that the testimony was relevant to the determination of Megan’s best interest in the level of care and supervision an autistic child required, and the advantages of being cared for by two adults in the home. Based upon the lack of a final diagnosis of Megan’s condition, the chancellor excluded Linda’s expert from testifying, but allowed her to proffer that testimony for the record.

Evidentiary rulings are a matter of discretion, and are reviewed only for abuse of that discretion. See Ozark Auto Transportation, Inc. v. Starkey, 327 Ark. 227, 937 S.W.2d 175 (1997). Although two regular caregivers may be desirable in any child custody case, Linda fails to demonstrate how this evidence was relevant to the cohabitation decision, especially in light of the fact that the chancellor was open to the possibility of Christina providing care for the children on the nights that Linda works.

Linda next addresses her argument to the chancellor’s exclusion of testimony by a clinical psychologist, Dr. Powers, an expert in the area of same-sex parenting. The chancellor sustained Chris Taylor’s objection to Dr. Powers’s use of research and statistics compiled by others in her testimony, but the court permitted Linda to proffer the evidence. She again argues that the chancellor abused his discretion by refusing her efforts to refute Dr. Deyoub’s opinions on same-sex parenting, by allowing Dr. Powers to testify as to research by others. Linda’s argument on appeal, that expert testimony may be based upon facts reasonably relied on by experts in the field or upon learned treatises, is correct. See Ark. R. Evid. 703, 803(18). However, in view of the fact that Linda retained primary custody, and because the focus of the court’s ultimate ruling was not on what type or level of childcare was desirable or required, but upon Christina Richards’s continued cohabitation in the household, the chancellor’s exclusion of expert testimony on same-sex parenting was not prejudicial error.

Finally, Linda argues that the chancellor’s finding of contempt was in error because she had complied with the non-cohabitation clause contained in the temporary custody order by making arrangements so that she and Richards never slept in the home on the same night. From Linda’s and Christina’s own admissions at the final hearing, and despite the living arrangements that she devised in reaction to the non-cohabitation order, Linda still considered Christina to be a resident of the household and allowed her to remain living there overnight in the presence of the children, three nights a week when Linda worked overnight shifts.

As the chancellor noted in finding Linda in contempt of his order, the temporary order clearly mandated that Christina be removed from the same household as the children and forbade Linda from sharing the residence and living arrangements with Christina when the children were present. Christina’s continued residence in the home was a violation of the express terms of the non-cohabitation clause, and the chancellor did not err in holding Linda in contempt. It is important to note that the custody order conditions Linda’s continued custody on compliance with this provision and allows custody to revert to Chris Taylor should he demonstrate that Linda has failed to comply with the non-cohabitation order.

Affirmed.

       In oral argument, Linda attempted to raise an Equal Protection issue that children would fare as well with homosexual couples as they would with heterosexual ones, but that argument was not raised and ruled on below. Linda was required to raise those constitutional arguments and obtain a ruling at trial in order to argue them on appeal. See Warnock v. Warnock, 336 Ark. 506, 988 S.W.2d 7 (1999); Stewart v. Winfrey, 308 Ark. 277, 282, 824 S.W.2d 373, 376 (1992).