author: Tom Glaze, Justice.

text:
    Kevin R. MULLING v. Teresa W. MULLING
    95-333
    912 S.W.2d 934
    Supreme Court of Arkansas
    Opinion delivered January 16, 1996

      Dunham & Ramey, P.A., by: James Dunham, for appellant.

      William F. Smith, for appellee.
   Tom Glaze, Justice.

Appellee Teresa Mulling filed suit for divorce against appellant Kevin Mulling, and after a contested hearing, the chancellor granted Teresa a divorce and awarded her custody of the parties’ three children. Kevin, who had resigned his job during the pendency of the action, was ordered to pay $117.00 child support per week, which sum would be reduced to $107.00 per week when Teresa commenced receiving one-half of Kevin’s $306.01 monthly pension. The chancellor further ordered Kevin to pay $1.00 per month alimony for a five-year period, but alimony would terminate upon Teresa’s remarriage or death. The trial judge also approved the parties’ settlement concerning household effects, automobiles and personal effects, including the already equally divided equity from the sale of the parties’ “jointly-owned” house. Kevin appeals from (1) the chancellor’s award of alimony and (2) the judge’s failure to award Kevin the first $8,000.00 from the parties’ equity in the house proceeds. In arguing his second point, Kevin argues the $8,000.00 amount he seeks can be traced to his separate property owned prior to marriage.

Kevin first argues the evidence is insufficient to support an alimony award. This court has held that the chancellor can make an award of alimony that is reasonable under the circumstances. See Harvey v. Harvey, 295 Ark. 102, 747 S.W.2d 89 (1988); Ark. Code Ann. § 9-12-312(a)(1) (Repl. 1993). The court has also said that the purpose of alimony is to rectify economic imbalance in earning power and standard of living in light of the particular facts in each case. The primary factors to be considered are the need of one spouse and the other spouse’s ability to pay. Id.; see also Boyles v. Boyles, 268 Ark. 120, 594 S.W.2d 17 (1980), (where this court listed illustrative factors courts have used when fixing the alimony amount).

In this case, the parties have been married thirteen years, and Teresa bore three children during the marriage. Although Teresa had obtained a marketing degree from the University of North Alabama, she never worked after her marriage to Kevin. During college and immediately prior to marriage, Teresa had worked as a legal secretary and also as a health physics technician with the Tennessee Valley Authority (TVA). After filing for divorce, Teresa was employed as a substitute teacher in elementary school and worked as a real estate agent. Her monthly income earned during the pendency of the divorce was $85.00. Teresa testified she has no health or physical limitations, and she was trying to locate a job that would permit her to be home at night and on the weekends with the children. Teresa testified that her monthly expenses amounted to $2,038.99.

Kevin, on the other hand, is an engineer and had previously worked in that capacity at TVA and later with Entergy at Arkansas Nuclear One in Russellville. When this action commenced, his base salary was $65,000.00 a year, and he earned an additional yearly amount of $10,000.00 in overtime. Sometime after the divorce suit was filed, Kevin was apparently given the option to resign by Entergy because Kevin had a “drinking problem.” When the parties’ divorce was granted, Kevin was receiving unemployment pay in the amount of $256.00 per week. He also received a monthly pension in the sum of $306.01. Kevin testified that he could not presently get a job in his industry, but he otherwise expected he could find employment paying around $35,000.00 to $40,000.00 per year. Kevin further listed his monthly living expenses at about $735.00. At the time the parties’ divorce was granted, Kevin testified that he had spent most of the proceeds he had received from the sale of the parties’ house to meet his monthly expenses plus his child support, alimony, bills and insurance ordered under the trial court’s temporary order.

From the foregoing evidence, we cannot say the chancellor abused his discretion in reserving an award of alimony, at least for a period necessary for Teresa to reenter gainful employment. Teresa’s needs are evident, since Kevin had been the family’s sole breadwinner during the parties’ entire marriage. Also, it is clear Kevin has the capacity and ability to pay alimony based both on his past employment history and his testimony concerning future employment expectations. However, we do have problems with the manner in which the chancellor directed alimony payments be reserved and paid.

In Grady v. Grady, 295 Ark. 94, 747 S.W.2d 77 (1988), Dale Grady, an attorney, had left his job, paying $1,900.00 a month, and went into solo law practice, where his net income was only $81.00 per week. There, this court held it is inequitable to hold that a spouse who may be entitled to alimony is forever barred from receiving it because the spouse who should pay it cannot do so at the moment of entry of the divorce decree. The Grady court further concluded as follows:

[I]f either spouse is entitled to alimony, the chancellor must comply with the statute by making that decision when the decree is entered. If circumstances prevent the spouse who is to pay the alimony from being able to do so, then the court may recite that fact and decline to award a specific amount. Thereafter, if circumstances change in a way that will permit the payment of alimony, the party who has been determined to be entitled to it may petition the court. By following this procedure, the court will have complied with the statute without resorting to the sort of subterfuge inherent in awarding a nominal amount.

In accordance with this court’s holding in Grady, we affirm the chancellor’s intention here to reserve the possible fixing of a specific and reasonable amount of alimony at a future time when the circumstances permit it. However, upon de novo review, we modify the chancellor’s divorce decree to reflect that Kevin’s unemployment prevents him from paying alimony at the time of entry of the decree, although Kevin’s earning capacity would otherwise warrant such an award of alimony. In accordance with Grady, the decree should read to reserve to Teresa the right to petition the trial court to establish an alimony amount if circumstances change. The five-year time constraint and other restrictions on alimony set out in the decree remain in effect.

Finally, we mention the case of Ford v. Ford, 272 Ark. 506, 616 S.W.2d 3 (1981), which was discussed in Grady. In Ford, this court overturned the chancellor’s decision denying alimony “for the time being, but retaining jurisdiction as to the possible future needs of the wife.” While this court in Grady recognized that the decision in Ford incorrectly held the chancellor had no power to retain jurisdiction or to treat alimony as a matter “reserved for future consideration,” the Grady court did not overrule that holding in Ford. We do so now, at least to the extent the Ford holding conflicts with Grady and today’s decision. In other words, if a spouse shows a need for alimony, and the other spouse is shown to have the ability or earning capacity to pay alimony except for a circumstance at the time the parties’ decree is entered, the chancellor may reserve jurisdiction, without assigning a nominal amount. This procedure would permit the spouse requesting alimony to petition for its payment after showing a change in circumstance.

We next address Kevin’s argument that the chancellor erred in failing to award him the first $8,000.00 of the sale proceeds of the parties’ house. Sometime after the chancellor’s temporary order granting Teresa possession of the parties’ home, the parties sold the home and split approximately $45,000 in proceeds equally. The parties’ sale of their house was in keeping with the trial court’s temporary order reflecting their agreement to sell at a private sale.

Kevin and Teresa agree they had originally purchased the house in Russellville as husband and wife and held the property by the entirety. Kevin asserts, however, that before his marriage to Teresa, he had owned a house which he sold and those proceeds, $8,000, were used by Kevin and Teresa when purchasing several homes (including the Russellville house) in both their names during their marriage. Because the $8,000.00 was his nonmarital property owned prior to marriage, Kevin claims he is entitled to its return pursuant to Ark. Code Ann. §§ 9-12-315(a)(2) and (b)(1) (Repl. 1993).

Teresa counters Kevin’s argument, by stating (1) the parties’ Russellville home was held by the entirety, and accordingly, they agreed to sell and split the proceeds equally which the chancellor approved in the final decree; and (2) citing Lofton v. Lofton, 23 Ark. App. 203, 745 S.W.2d 635 (1988), once the parties, as husband and wife, place property in their names without specifying the manner in which they take the property, a presumption arises that they own it by the entirety and it takes clear and convincing evidence to overcome that presumption. In this second instance, Teresa states that Ark. Code Ann. § 9-12-317 (Repl. 1993) is the only authority for dividing estates by the entirety, and it provides for equal division by the parties. Warren v. Warren, 273 Ark. 528, 623 S.W.2d 813 (1981).

We dispose of Kevin’s second point, because the record supports the chancellor’s finding that the parties had settled their respective equity interests in their home by agreeing to sell and divide the proceeds. At trial, Teresa’s counsel objected to Kevin’s testimony concerning the sale of Kevin’s premarital home and the use of those sale proceeds in purchasing subsequent houses in both parties’ names. Teresa’s counsel pointed out to the chancellor that without Kevin’s mentioning premarital property or asserting entitlement to $8,000.00, the parties made their own settlement, agreeing to sell their house and to split the proceeds in half. While the chancellor allowed Kevin to present further testimony on this point, the chancellor at the end of the hearing specifically held that all the proceeds from the sale of the house had been properly divided, and the chancellor in his decree approved the parties’ settlement and division of proceeds. We also note again the chancellor’s earlier témporary order which acknowledged that the parties had already agreed to sell their home. While no mention or distribution of the sale proceeds appeared in the temporary order, the record reflects Kevin waited until the final hearing, several months after selling the property, to assert his $8,000.00 premarital property claim. Because we uphold the chancellor’s approving the parties’ settlement of their equity interests in their home, we affirm.

We should add that, regardless of the parties’ decision to sell their house and equally divide the proceeds, Kevin’s argument would still fail. Case law has held that, when a husband and wife purchase property as a tenancy by the entirety, there arises a presumption of a gift from the party furnishing the greater part of the consideration to the other party, which although rebuttable, is strong and can be overcome only by clear and convincing evidence. Lyle v. Lyle, 15 Ark. App. 202, 691 S.W.2d 188 (1985); see also McLain v. McLain, 36 Ark. App. 197, 820 S.W.2d 295 (1991); cf. Canady v. Canady, 290 Ark. 551, 721 S.W.2d 650 (1986). In the present case, we carefully reviewed the record and find no evidence to rebut the presumption of the $8,000.00 being a gift.

For the reasons above, we affirm as modified.


source: Caselaw Access Project

author: Robert L. Brown, Justice.

license: Public Domain

text:
    Wendell CROOM v. Kathie YOUNTS, Individually and as Parent and Next Friend of Rachel Younts, a Minor
    95-814
    913 S.W.2d 283
    Supreme Court of Arkansas
    Opinion delivered January 16, 1996

      Huckabay, Munson, Rowlett & Tilley, P.A., by: John E. Moore and Julia L. Busjield; and Crockett & Brown, by: R.J. Brown, for appellant.

      Dodds, Kidd, Ryan & Moore, by: Greg Alagood, for appellee.
   Robert L. Brown, Justice.

The appellant in this case, Wendell Croom, urges two points in his appeal: (1) evidence of the tort of outrage was insufficient, and (2) the trial court erred in instructing the jury. We agree with the appellee, Kathie Younts, on both points and affirm the judgment.

Kathie Younts is the mother of Rachel Younts, who at the time of the events in question in 1993, was age 15. (Rachel Younts’s date of birth was October 2, 1977.) Younts is also the first cousin of Wendell Croom, who in the summer of 1992 lost his wife to cancer. During the time of the events leading to this litigation, Croom was 51. In January of 1993, Younts planned to go to Hawaii and visit a man whom she was engaged to marry. She needed someone to watch over her daughter Rachel and her younger daughter, Katie, while she was away. Croom first volunteered to do this but then attempted to renege the day before she left on the basis that he was inclined to drink alcoholic beverages and something might happen to the girls or someone might make an insinuation about the appearance of Younts’s daughters staying in his home. Younts implored him to reconsider which he did, and she left for her visit to Hawaii which was to last from January 6, 1993, to January 16, 1993.

While in Hawaii, Younts telephoned home on a daily basis but noticed that towards the end of her trip Rachel had been reluctant to come to the phone. When Younts returned, she observed that her children had become very attached to Croom, especially Rachel. Croom would call regularly and invite the girls over. Though Younts would refuse Croom’s offer to drive Rachel home from her school, Croom would on occasion pick her up anyway. Younts initially attributed this to Croom’s loneliness and lack of social friends. She urged Croom to stop intruding in her daughter’s life with offers of transportation and dinners, but Croom persisted.

The matter came to a head when Croom asked Younts if he could take Rachel to visit his wife’s and father’s graves. She balked at the invitation but eventually relented on the condition that Rachel would be home for church services at 5:00 p.m. Croom did not meet the deadline but rather called about 7:00 p.m. and told Younts that he and Rachel were having dinner at a restaurant. She demanded that Croom bring Rachel home, and he responded, according to Younts: “I’m getting sick and tired of you telling Rachel what to do. She’s a grown woman, I’m a grown man and to hell with you.” Croom brought Rachel home at midnight. There was a confrontation between Younts and Croom at that time, during which Croom expressed his love for Rachel. He refused to leave until he found out what punishment Younts was going to mete out to Rachel. Younts finally got a knife from the kitchen and threatened Croom with it, and he left. Younts then told her daughter that she was not to see Croom again, and later that night, Rachel attempted suicide by ingesting her brother’s asthma medicine. She was taken to Children’s Hospital and admitted on March 8, 1993. On the night of admission, Croom showed up at Children’s Hospital intoxicated, accused Younts of precipitating the suicide attempt, and professed that he was the only one who truly cared for Rachel. He had to be escorted from the hospital by security personnel.

At the hospital, Rachel initially denied that she had had a sexual relationship with Croom but then admitted it to a staff social worker on April 4, 1993. She stated that it began while her mother was in Hawaii and that Croom had forced sexual activity upon her. During the course of Rachel’s treatment, she was prescribed the antidepressant medication, Prozac, and on April 14, 1993, she was discharged from the hospital. On June 17, 1993, she was readmitted to Children’s Hospital after superficially slashing her wrists. She remained at the hospital until July 6, 1993.

On February 3, 1994, Younts brought suit against Croom and alleged violations of the torts of seduction and outrage. Before the trial, the trial court dismissed the seduction claim. At trial, Rachel explained how her sexual relationship with Croom developed. She testified that Croom had plied her with wine during a cookout with neighbors, and after they had left, he asked her into his bedroom and gave her a prescription medicine, Xanax. He then took her to bed and had sexual relations with her. She testified that following that first experience she had sexual relations with Croom 10 or 15 times. During this period, she described her state of mind as being “mad” and “just chaotic.” She added that she was “sad” and “hated” herself. Following the confrontation between her mother and Croom, during which Younts pulled the kitchen knife, Rachel decided to take all of the medicine in the medicine cabinet, including her brother’s asthma medication, and “lay down and just go to sleep.”

Croom’s defense at trial was that he was abusing alcohol daily and that Rachel initiated the sexual contact and told him he would never have to worry about getting into trouble. Before the relationship with Rachel developed, he testified that he was impotent. He also testified that after she was hospitalized, he sent her dimes, and she called him twice a day. Croom admitted at trial that he had been convicted of sexual misconduct, a class B misdemeanor, for having sexual contact with Rachel but stated that the matter was on appeal to circuit court. He further admitted that he had lied at the criminal proceeding, and in his deposition as well, about not having sex with Rachel. Sue Laneer, a psychotherapist, testified on behalf of Croom and stated that he was experiencing an adjustment disorder at the time of his relationship with Rachel and that this affected his ability to cope and make judgments. This condition, according to Laneer, caused him to “rationalize” his relationship with Rachel on the basis that she was intelligent and mature for her age.

The jury found for Younts on the tort of outrage and awarded her $15,286.96 for Rachel’s medical expenses, $60,000 in compensatory damages, and $25,000 in punitive damages. Judgment was entered, and Croom filed a motion for judgment notwithstanding the verdict or, alternatively, for a new trial on the basis that the evidence for the tort of outrage was insufficient and that the trial court erroneously instructed the jury on negligent conduct. The motion was denied. Croom appealed, and Younts cross-appealed on the dismissal of her seduction claim. Younts abandoned her cross-appeal in her brief filed in this appeal.

For his first point on appeal, Croom argues that there was no substantial evidence to support Younts’s claim of outrage. He concedes that his conduct was wrong, but he vigorously contends that it did not meet the test of outrageous conduct. He specifically urges that he lacked the requisite intent to inflict emotional distress on Rachel.

To succeed on a claim of intentional infliction of emotional distress, or outrage, Younts had to prove these elements:

(1) that the actor intended to inflict emotional distress or wilfully and wantonly knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous, was beyond all possible bounds of decency, and was utterly intolerable in a civilized community; (3) that the actions of the defendant were the cause of her distress; and (4) that the emotional distress sustained by the plaintiff was so severe that no reasonable person could be expected to endure it.

Hunt v. Riley, 322 Ark. 453, 909 S.W.2d 329 (1995); Perrodin v. Rooker, 322 Ark. 117, 908 S.W.2d 85 (1995); Hollingsworth v. First Nat’l Bank and Trust Co., 311 Ark. 637, 846 S.W.2d 176 (1993); Deitsch v. Tillery, 309 Ark. 401, 833 S.W.2d 760 (1992). What constitutes willful or wanton conduct for the tort of outrage is defined under Arkansas Model Instruction 404:

A person acts willfully and wantonly when he knows or should know in the light of surrounding circumstances that his conduct will naturally and probably result in emotional distress [and bodily harm] and continues such conduct in reckless disregard of the consequences.

What constitutes extreme and outrageous conduct is also defined under AMI 404:

By extreme and outrageous conduct, I mean conduct that is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society.

The jury was instructed on both definitions at the trial of this matter.

In the case before us, Croom appeals based on insufficient evidence to support the judgment and lack of substantial evidence to support the trial court’s denial of a motion for a judgment notwithstanding the verdict and new trial. To determine whether sufficient evidence exists to support a judgment in tort-of-outrage cases, we assess whether the evidence is substantial and, in doing so, consider it in the light most favorable to the appellee. City of Green Forest v. Morse, 316 Ark. 540, 873 S.W.2d 154 (1994); Tandy Corp. v. Bone, 283 Ark. 399, 678 S.W.2d 312 (1984). Whether there is substantial evidence to support the verdict is also the standard of review for the denial of a motion for a judgment notwithstanding the verdict and new trial. Scott v. McClain, 296 Ark. 527, 758 S.W.2d 409 (1988); Arkansas Power & Light v. Adcock, 281 Ark 104, 661 S.W.2d 392 (1983). Substantial evidence is evidence that is of sufficient certainty and precision to compel a conclusion one way or another, forcing or inducing the mind to pass beyond suspicion or conjecture. First Marine Ins. Co. v. Booth, 317 Ark. 91, 876 S.W.2d 255 (1994). On review of denial of a motion for new trial, this court gives the verdict the benefit of all reasonable inferences permissible in accordance with the proof. Gilbert v. Shine, 314 Ark. 486, 863 S.W.2d 314 (1993).

This court has repeatedly stated that we require clear-cut proof to establish the elements in tort-of-outrage cases. Ross v. Patterson, 307 Ark. 68, 817 S.W.2d 418 (1991); Cordes v. Outdoor Living Ctr., Inc., 301 Ark. 26, 781 S.W.2d 31 (1989); Harris v. Arkansas Book Co., 287 Ark. 353, 700 S.W.2d 41 (1985); Tandy Corp. v. Bone, supra; Givens v. Henson, 275 Ark. 370, 631 S.W.2d 263 (1982). Clear-cut proof, however, does not mean proof greater than a preponderance of the evidence. Harris v. Arkansas Book Co., supra; Hess v. Treece, 286 Ark. 434, 693 S.W.2d 792 (1985). We have also stated that we take a strict approach and give a narrow view to the tort of outrage. See, e.g., City of Green Forest v. Morse, supra; Forrest City Mach. Works v. Mosbacher, 312 Ark. 578, 851 S.W.2d 443 (1993); Deitsch v. Tillery, supra; Ross v. Patterson, supra; Tandy Corp. v. Bone, supra. Hence, in considering whether evidence is sufficient in tort-of-outrage cases, we must determine whether it is substantial in light of these standards.

The definition of the tort of outrage includes willful and wanton conduct which embraces activity in which a person knows or should know in light of surrounding circumstances that his actions will naturally and probably result in emotional distress. Thus, whether Croom specifically intended to inflict emotional distress on Rachel is not the sole test. We also consider whether he acted in such a fashion that he should have known under the circumstances that emotional distress to Rachel would be the result of what he did. Assuming that determination is made in favor of Younts, we must then assess whether Croom’s conduct was so extreme and outrageous that it exceeded all possible bounds of decency which renders it utterly intolerable in a civilized society.

We believe that there was substantial evidence that Croom should have known emotional distress to Rachel would occur because of his actions, but he acted in reckless disregard of that fact nonetheless. There is, first, the fact that Rachel was 15 at the time of her relationship with Croom, and Croom was 51. Secondly, Croom was a relative and close friend. The conclusion that his age and relationship exerted considerable influence over a minor girl is undeniable. According to Rachel, he used wine and medication to wear down her defenses in his home and forced sex upon her. He then relentlessly pursued Rachel, by his own admission, even to the point of causing an emotionally wrenching confrontation with Younts at her home which resulted in Rachel’s first suicide attempt. It was clear that Croom was fomenting a schism in the family relationship and forcing Rachel to break with her mother and side with him. Rachel described her state of mind at the time as “chaotic,” and suicide attempts followed. We have no doubt that Croom should have known the impact of his actions on Rachel but pursued his course of action in reckless disregard of the consequences to her. See Growth Properties I v. Cannon, 282 Ark. 472, 669 S.W.2d 447 (1984).

We next consider whether Croom’s actions were so outrageous and extreme as to meet the test of the tort of outrage. Certain facts in this case are undisputed — the age and relationship of Croom and Rachel, the fact that sexual relations occurred between the pair, the stark confrontation between Croom and Younts, Rachel’s suicide attempts, and her hospitalization. Where the rendition of events by Croom and Rachel diverges is over who was the catalyst for the sexual relationship and whether wine and medication were employed when they first had sex. Croom was never asked at trial whether he gave Rachel wine and Xanax, although he did admit that he was drinking alcoholic beverages on a daily basis and was taking Xanax himself. As we have already stated, in outrage cases to determine whether evidence is substantial we look to the evidence that supports the verdict and favors the appellee — in this case Younts. Rachel was adamant that Croom precipitated the relationship and that he used wine and medication to lower her defenses.

The facts of this case go beyond a mere sexual encounter but instead challenge basic social mores in our society. The use of wine and medication by a vastly older and more experienced relative to foist sex on a minor cousin in his home offends all sense of decency as it is commonly understood and cannot be tolerated. We have no hesitancy in holding that these facts meet the test for substantial evidence even under the restrictive standards which we use in tort-of-outrage cases.

For his second point, Younts maintains that the Arkansas Model Instruction 2217 on punitive damages given to the jury was error. The instruction given reads as follows:

In addition to compensatory damages for any actual loss that plaintiffs may have sustained, they ask for punitive damages from the defendant. Punitive damages may be imposed to punish a wrongdoer and to deter others from similar conduct. In order to recover punitive damages from the defendant, the plaintiffs have the burden of proving either:
First, that the defendant knew or ought to have known, in the light of the surrounding circumstances, that his conduct would naturally and probably result in damage and that he continued such conduct in reckless disregard of the consequences from which malice may be inferred; or
Second, that defendant intentionally pursued a course of conduct for the purpose of causing damages, or both.
You are not required to assess punitive damages against the defendant, but you may do so if justified by the evidence.

Croom’s basic contention is that the first prong of this instruction relates solely to negligence cases and that the tort of outrage is an intentional tort. Thus, he argues, the circuit court erred in giving an instruction which included the first prong. He cites Tandy Corp. v. Bone, supra, and Ford Motor Credit Co. v. Herring, 267 Ark. 201, 589 S.W.2d 584 (1979), in support of his argument. AMI 2217 was revised after the Tandy Corp. and Ford Motor Credit Co. decisions to include the second paragraph relating to intentional course of conduct. See AMI Civil 2d 2217 (1974 and Supp. 1986).

We give this issue little credence. The instruction is clearly couched in the alternative, and the jury could readily have discerned that the tort of outrage is an intentional tort and that the second paragraph of the instruction applied. No error was committed by giving AMI 2217 in its entirety.

Affirmed.


text:
    Lee DOUGLASS, In His Capacity as Commissioner of the Arkansas Insurance Department, and Arkansas Insurance Department v. NATIONWIDE MUTUAL INSURANCE COMPANY and State Farm General Insurance Company
    95-233
    913 S.W.2d 277
    Supreme Court of Arkansas
    Opinion delivered January 16, 1996

      Jeanette Denham, for appellants.

      Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., by: Robert M. Eubanks III, Stuart P. Miller, and J. Lee Covington II, for appellees.
   Robert L. Brown, Justice.

This appeal by Lee Douglass, Commissioner of the Arkansas Insurance Department, and the Arkansas Insurance Department itself (collectively referred to as Department), focuses on whether an insurance company may unilaterally rescind coverage based on fraud or material misrepresentations by the insured after a loss has occurred, when no third-party claims are involved. According to a Memorandum of Decision and Declaratory Order by the Department, rescission by an insurance company may only transpire when the company (1) seeks declaratory relief from a court of competent jurisdiction, or (2) obtains consent from the insured and any affected third parties. The circuit court reversed the order of the Department. On appeal, we affirm the circuit court’s order.

The relevant facts are found in a complaint filed jointly by appellees Nationwide Mutual Insurance Company and State Farm General Insurance Company against appellant Department. On April 26, 1993, State Farm issued a binder of coverage for renter’s insurance to Donna J. Carter and Michael Beirne based on representations submitted in their application for insurance. On May 12, 1993, a claim for theft loss was presented for payment under the policy. During State Farm’s investigation into the claim, it discovered that Carter and Beirne had experienced a theft loss three days prior to submitting their application for insurance. In the application, they had reported that no losses had been experienced in the past three years. State Farm alleged that it would not have issued the policy, if the truth had been known. Apparently, State Farm rescinded the policy and returned paid premiums to the insureds on or about July 20, 1993, but it is not altogether clear precisely when this occurred. Also on July 20, 1993, Donna Carter filed her complaint with the Arkansas Insurance Department.

On the same day that Carter filed her complaint, the Insurance Commissioner issued the following Memorandum of Decision and Declaratory Order:

The Arkansas Insurance Department (“Department”) has in the past several months received numerous consumer complaints regarding property and casualty insurance carriers unilaterally voiding insurance contracts ab initio for alleged material misrepresentation. The Department has received a request for declaratory order to articulate its position on this matter. As this raises an issue of great public importance, this order is being issued.
In Ferrell v. Columbia Mutual Insurance Casualty Company, 306 Ark. 533, 816 S.W.2d 593 (1991), the Arkansas Supreme Court rendered an opinion relevant to this order. The court opined that when an innocent third party has suffered damages as a result of an insured’s negligence, the insurer cannot rescind coverage retroactively based on the grounds of fraud or misrepresentation under a compulsory automobile insurance or financial responsibility law. Prospective cancellation was the only appropriate remedy the Ferrell court reasoned. Additionally, it was held that where in an application for non-compulsory coverage there were misrepresentations of material facts the knowledge of which would have caused the insurer to decline to issue the policy, rescission was the proper remedy.
The issue before the Department is, “Under what circumstances . . . will such an insurer be permitted to rescind a policy?” As recognized in Ferrell, cancellation is a prospective remedy and is based upon the insurer’s contract rights or rights under statute, while rescission is an equitable, common law remedy which voids the contract ab initio. An insurer may not purport to unilaterally rescind a policy ab initio, and such actions of an insurer violate Arkansas insurance laws and constitute an unfair trade practice under Ark. Code Ann. § 23-66-205, § 23-66-206, and § 23-89-301 et seq. Rescission of a policy may only be properly accomplished with consent of the insured policy owner and any third parties in whom rights may have vested, or by seeking declaratory relief in a court of competent jurisdiction.

In a letter dated July 29, 1993, the Department notified State Farm of Carter’s complaint and directed State Farm to respond. According to the letter, failure to respond could result in a finding of an unfair trade practice and result in the imposition of a fine up to $10,000. On August 6, 1993, State Farm responded and described the material misrepresentations by Carter and Beirne. On December 9, 1993, the Department informed State Farm that, pursuant to its order, State Farm could not unilaterally rescind the policy.

The second claim in the filed complaint involves Nationwide Mutual Insurance Company. On June 10, 1993, Nationwide bound coverage on an automobile policy for Trischia Gos-tony and Christopher M. Stefanik. In the application, Gostony stated that no one in the household had had any motor vehicle violations in the last five years. The insureds subsequently filed a claim with Nationwide for an accident which occurred on July 4, 1993. Motor vehicle reports later revealed that Stefanik had received seven violations within the last three years. On July 9, 1993, Nationwide rescinded its policy and returned the premiums to its insureds. On August 12, 1993, Gostony filed a complaint with the Department and the Department later notified Nationwide of that complaint. The letter, dated August 20, 1993, directed Nationwide to respond to the complaint or suffer potential penalties up to $10,000. Nationwide responded and asserted that it would not have issued the policy but for the material misrepresentations. Relying on its order, the Department informed Nationwide that it had improperly rescinded the policy.

In a letter dated February 14, 1994, the Department advised State Farm and Nationwide that their actions were not in accord with Arkansas law. On March 11, 1994, Nationwide and State Farm filed their complaint for Declaratory Judgment and Request for Stay of the Department’s Order in circuit court.

On September 9, 1994, the circuit court conducted a hearing and heard arguments and subsequently filed its Memorandum Opinion and Order. After a detailed analysis, the court rendered the following conclusions and order:

Based on the foregoing, the court hereby declares that an insurer may exercise its common law right to rescind an automobile insurance policy or any other type of property and casualty insurance policy without obtaining the consent of the insured or a declaratory judgment. This common law right of unilateral rescission may be exercised at any time before or after a claim is made by an insured when it is discovered that the insured procured the insurance policy through fraud or misrepresentation as long as the insurer notifies the insured of the decision promptly upon discovery of the fraud or misrepresentation and the insurer returns all premiums paid by the insured.
Accordingly, the Court FINDS, DECLARES, AND ORDERS that plaintiffs’ complaint for declaratory judgment should be and is hereby granted, that the commissioner’s order, A.I.D. No. 93-39, should be and is hereby reversed, and that an insurer may exercise its common law right of unilateral recision as set forth herein.

I. Ripeness

For its first point on appeal, the Department contends that the trial court erred in finding that it had jurisdiction to determine whether an insurer could unilaterally rescind any type of property and casualty insurance policy before or after a loss. See Ark. Code Ann. §§ 23-62-104, 23-62-105 (Repl. 1994). The Department argues that the only issues ripe for determination were whether Nationwide could unilaterally rescind the specific automobile policy after a loss and whether State Farm could unilaterally rescind the renter’s policy after a loss. All other matters were contingent, remote, and speculative, according to the Department.

We initially observe that the Commissioner’s order was rendered in response to a request for a declaratory order concerning the right of insurers to rescind their policies ab initio and represents final agency action. Declaratory orders are contemplated under the Administrative Procedure Act and have the same status as agency orders in cases of adjudication. Ark. Code Ann. § 25-15-206 (Repl. 1992). Judicial review of administrative adjudications in circuit court is provided under Ark. Code Ann. § 25-15-212 (Repl. 1992). We further observe that the Administrative Procedure Act provides for petitions for declaratory judgment in circuit court concerning the validity of agency rules that threaten to injure the petitioner. Ark. Code Ann. § 25-15-207 (Repl. 1992); McCuen Burial Ass’n v. Arkansas Burial Ass’n Bd., 298 Ark. 572, 769 S.W.2d 415 (1989); see also Travelers Indem. Co. v. Olive’s Sporting Goods, Inc., 297 Ark. 516, 764 S.W.2d 596 (1989). The instant case concerns review of a declaratory order by the agency rather than a rule. However, with respect to the issue of ripeness and the threat of injury we see no legitimate distinction between judicial review of an agency rule and judicial review of a declaratory order by the agency.

The Department advised State Farm and Nationwide in the wake of their unilateral rescissions that failure to respond to the complaints of the insureds would be considered an unfair trade practice which could result in sanctions of up to $10,000 under the Trade Practices Act. See Ark. Code Ann. §§ 23-66-201 to 408 (Repl. 1994). In addition, the Commissioner’s order alludes to the same penalties for unilateral rescissions by insurance carriers respecting any type of property and casualty insurance. Thus, it appears manifest that the threat of sanctions for failure to comply with any aspect of the Commissioner’s order was imminent. It stands to reason that when a rule (or declaratory order) has a direct effect on the day-to-day business operations of an insurance company and places that company in a dilemma regarding the full range of property and casualty insurance, the issue is a fit subject for judicial review and a petition for declaratory relief. See Abbott Laboratories v. Gardner, 387 U.S. 136 (1967). The Abbott conditions were satisfied in the case before us. Accordingly, the Commissioner’s order, as it affected any type of property and casualty insurance written by State Farm and Nationwide, was ripe for determination and subject to review.

II. Unilateral Rescission

The essential point in this appeal is whether State Farm and Nationwide could unilaterally rescind their policies after a loss when no third parties were affected and when the insureds materially misrepresented the facts in their applications for insurance. The circuit court, initially, made it perfectly clear at the hearing that no third-party claims were involved in this matter:

THE COURT: Number one, so that we all are playing on the same level field, we are only talking about first party claims here, we are not talking about third party claims. Everybody agrees to that?
MS. DENHAM (ATTORNEY FOR DEPARTMENT): Yes, sir.

The Department argues, however, that either consent of the insured or judicial action is necessary before unilateral rescission for fraud may occur. We disagree, in the absence of innocent third parties.

In Ferrell v. Columbia Mut. Cas. Ins. Co., 306 Ark. 533, 816 S.W.2d 593 (1991), this court addressed whether the statute setting out the method for prospectively cancelling an automobile insurance policy had abrogated an insurance company’s common law right to rescind an automobile policy ab initio. Ferrell, 306 Ark. at 534-535, 816 S.W.2d at 594. In that case, Ferrell had made numerous misrepresentations to his insurance agent when filling out the application for his family’s auto insurance policy, including the failure to list his family’s traffic violations and accidents. After coverage was bound, Ferrell’s daughter ran a stop sign and was hit by another car. She immediately notified her insurance agent. A week later, the insurance company rejected the binder due to the driving records of the Ferrell children. On February 18, 1988, the insurance company, without knowledge of the wreck, refunded the entire premium and notified Ferrell that it was rescinding the policy ab initio. This court observed in Ferrell that all courts that have considered the question as it relates to third-party claimants have held that insurers cannot unilaterally rescind their contracts on grounds of fraud or misrepresentation. But we went on to say that because no third-party claimants were involved in the case and the case involved only the insured’s property, there was no public policy reason to hold that an insurer’s common law right to rescind for fraud was abrogated.

During the session of the General Assembly that followed the Ferrell decision, the Ferrell reasoning was adopted in Act 457 of 1993, now codified at Ark. Code Ann. § 23-89-303(e) (Supp. 1993), which relates to automobile liability coverage:

(e)(1) However, an insurer shall not be able to rescind bodily injury or property damage liability coverage under an insurance policy for fraud or misrepresentation with respect to any injury to a third party when suffered as a result of the insured’s negligent operation of a motor vehicle.
(2) Nothing in this subsection is intended to negate an insurer’s right to rescind other coverages in the insurance policy purchased by the insured.

The cases cited by the Department in support of its argument that unilateral rescission may not transpire stand for the proposition that a contract may be rescinded by mutual agreement. See Standard Abstract & Title Co. v. Rector-Phillips-Morse, Inc., 282 Ark. 138, 666 S.W.2d 696 (1984); Wheatley v. Drennen, 209 Ark. 211, 189 S.W.2d 926 (1945); Duty v. Keith, 191 Ark. 575, 87 S.W.2d 15 (1935). However, none of the cases adduced stands for the proposition that mutual consent or court action is required for a rescission at law based on fraud.

In the insurance treatise, Couch on Insurance, the author recognizes the right of the insurance carrier to rescind or repudiate a contract based on the insured’s fraud:

There tends to be some confusion in the cases because of the use of the term “rescission” without distinguishing between a judicially sought rescission and a unilateral rescission or repudiation. When the insurer asserts that it is not liable on the contract because it rescinds the contract because of insured’s fraud, the insurer is repudiating the contract, and unless justified in so doing is guilty of breach of its contract.

17 Couch on Insurance 2d § 67:314, p. 743 (1983).

In Arkansas, rescission of a contract at law is accomplished by the rescinding party’s tendering the benefits received to the contracting party, and the courts have nothing to do with the repudiated transaction. See Savers Fed. Savings & Loan Ass’n v. First Fed. Savings & Loan Ass’n, 298 Ark. 472, 768 S.W.2d 536 (1989), quoting with approval Dan B. Dobbs, Pressing Problems for the Plaintiffs Lawyer in Rescission: Election of Remedies and Restoration of Consideration, 26 Ark. L. Rev. 322 (1972). But one who desires to rescind a contract on grounds of fraud or deceit must do so as soon as that person discovers the truth. See Herrick v. Robinson, 267 Ark. 576, 595 S.W.2d 637 (1980), reh’g denied, 267 Ark. 592, 595 S.W.2d 647 (1980). We stated in Herrick that the rescinding party must announce his purpose at once and act with reasonable diligence so that the parties may be restored to their original position as nearly as possible. Id.

Hence, rescission of a contract at law occasioned by fraud may be accomplished without court action but by a prompt restoration of benefits to the contracting party and by a clear statement that rescission of the agreement is what is intended. Maumelle Co. v. Eskola, 315 Ark. 25, 865 S.W.2d 272 (1993); Herrick v. Robinson, supra. The contracting party then has the option of suing for breach of contract. The circuit court applied these general contract principles to the matter at hand, and we hold that it was correct in doing so.

While we uphold the right of an insurance company to rescind coverages based on fraud by the insured without consent of the insured or a declaratory judgment, we underscore the point that this right is unavailable when third-party claims are at issue. Other jurisdictions have likewise referred to these public policy considerations. See, e.g., Klopp v. Keystone Ins. Cos., 595 A.2d 1 (Pa. 1991) (concurring opinions); United Security Ins. Cos. v. Commissioner of Ins., 348 N.W.2d 34 (Mich. App. 1984). In Klopp, a husband and wife, as insureds, sought to prevent an insurance carrier from unilaterally rescinding an automobile policy due to material misrepresentations in the application concerning past accidents. The trial court denied the carrier the right to rescind, but the Pennsylvania Supreme Court reversed. The Court referred to a Pennsylvania statute which limited a carrier’s ability to cancel coverage 60 days after issuance of the policy but concluded that the legislature did not intend to abrogate the carrier’s rescission rights within that same 60-day period. Two concurring opinions emphasized the necessity for protecting the rights of innocent third parties and noted that third-party claims were not at issue in that case.

In United Security Ins. Co. v. Commissioner of Ins., supra, the Michigan Commissioner of Insurance prevented an insurance carrier from rescinding an automobile policy based on intentional misrepresentations in the application by the insured. The trial court reversed the Commissioner’s order, and the Court of Appeals affirmed, holding that common law rescission for fraud was still a right retained by insurers. The Court took pains, however, to assure that rescission was not appropriate when third-party claims were involved:

We emphasize that the person making the claim under the insurance policy here is the insured who made the intentional material misrepresentations; this is not a case in which the claimants are innocent third parties.

United, 348 N.W.2d at 36.

In the case before us, the circuit court made clear by its questioning to counsel that third-party claims were not at issue. We, accordingly, read the circuit court’s order of reversal as being solely limited to matters where third-party rights are not impacted.

There is, next, the issue of whether unilateral rescission for fraud may occur after the 60-day period from issuance of the insurance policy set out in the cancellation statutes for automobile insurance. See Ark. Code Ann. §§ 23-89-303, 23-89-304 (Repl. 1992 & Supp. 1993). The Department is correct that Ferrell v. Columbia Mut. Ins. Cas. Co., supra, concerned a rescission made within 60 days and that these statutes apply only to automobile liability insurance. Nonetheless, § 23-89-303(e)(2) does not limit the right to rescind to a particular time frame; nor does any other statute. As a result, we decline to apply the 60-day period specified in the cancellation statutes as a limitations period for rescission based on fraud without clearer direction from the General Assembly.

The Department also disagrees with the circuit court’s policy rationale for reversing the Commissioner’s order. The language used by the court was that it was “expeditious, cost-effective, and fair” to permit unilateral rescission. The court’s policy justifications for deciding as it did do not represent grounds for reversal.

Affirmed.

Jesson, C.J., not participating.

       The Department did not raise the promptness of the rescission by State Farm as an issue in this appeal.


text:
    Derrick MITCHELL v. STATE of Arkansas
    CR 95-439
    913 S.W.2d 264
    Supreme Court of Arkansas
    Opinion delivered January 16, 1996

      Michael L. Allison, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

Appellant Derrick Mitchell was tried and convicted of three offenses arising out of a shooting incident in Union Chapel, including first-degree murder. He appeals on six grounds. We hold that none of the points of appeal has merit, and we affirm.

During the early morning hours of January 8, 1994, a fight broke out at a party at Sonny’s Place in Union Chapel. In order to stop the fighting, an individual named Michael Clemons fired at least one shot from his pistol at the ceiling, and the fighting stopped. Hearing the shots, appellant Mitchell kicked in the door at Sonny’s Place and brandished a fully automatic Mac II nine millimeter pistol. According to one witness, he said: “You . . . want to play bad, I’m the baddest thing around.” He started shooting and sprayed the ceiling and wall with gunfire. According to Shalla Criswell, she heard the shooting stop but when she and Felicia Payne came to the bedroom door, Mitchell opened fire again. Shalla Criswell was wounded in the side, and Felicia Payne was shot in the abdomen and later died as a result of that wound. According to Criswell, after the shooting Mitchell said: “I got the bitch,” referring to Felicia Payne.

During a mental health evaluation before trial, Mitchell claimed that he had been possessed by a demon at the time of the shooting. He was found fit to stand trial. At trial, he admitted shooting the victims but offered a defense. He claimed that he was inside Sonny’s Place when a door slammed, and he felt the gun go off. He did not remember firing it himself. He blamed his memory loss on intoxication. He was convicted of first-degree murder, first-degree battery, and aggravated assault and received 40 years, 20 years, and 6 years, respectively. The circuit court ordered that the sentences be served consecutively.

Mitchell asserts that there was insufficient evidence to support his conviction for first-degree murder, and we consider this point initially, as is our practice. Rockett v. State, 319 Ark. 335, 891 S.W.2d 366 (1995). Mitchell has failed to. preserve this issue for our review due to a lack of specificity in his motion for a directed verdict following the State’s case. He merely stated in general terms that he did not believe that there was sufficient evidence to justify the charge. We set a bright line rule in Walker v. State, 318 Ark. 107, 883 S.W.2d 831 (1994), and held that a motion for directed verdict in a criminal case must include the specific ground for the motion. In Walker, we quoted from earlier authority that a directed verdict motion must be sufficiently specific to apprise the circuit court of the particular point raised. See Patrick v. State, 314 Ark. 285, 862 S.W.2d 239 (1993), quoting Middleton v. State, 311 Ark. 307, 842 S.W.2d 434 (1992). Accordingly, we will not.consider this point.

Mitchell next contends that the circuit court erred in finding him competent to stand trial. A defendant in a criminal case is ordinarily presumed to be mentally competent to stand trial, and the burden of proving incompetence is on that defendant. Mask v. State, 314 Ark. 25, 869 S.W.2d 1 (1993) (substituted opinion on denial of rehearing). The test for determining if an accused is competent to stand trial is whether he is aware of the nature of the charges against him and is capable of cooperating effectively with his attorney in the preparation of his defense. See Ark. Code Ann. § 5-2-302 (Repl. 1993); see also Mauppin v. State, 314 Ark. 566, 865 S.W.2d 270 (1993). In Mauppin, we stated:

We have said that in order to be competent to stand trial an accused must have the capacity to understand the nature and object of the proceedings brought against him, to consult with counsel, and to assist in the preparation of his defense. Addison v. State, 298 Ark. 1, 765 S.W.2d 566 (1989). Upon appellate review of a finding of an accused’s fitness to stand trial, the appellate court will affirm if there is substantial evidence to support the finding of the trial court. Id.

314 Ark. at 567, 865 S.W.2d at 271.

Mitchell was evaluated in 1994 by a team headed by Dr. John Anderson, a psychologist with the Mental Health Services Division of the Arkansas Department of Human Services. He was found to be of average or low intelligence but able to understand the legal proceedings against him and to assist effectively in his own defense. The evaluation noted that other than Mitchell’s own assertion that he was possessed by a demon at the time of the shooting, there were no other symptoms of a mental disorder at the time of the shooting. Tests were also administered, and Dr. Anderson concluded that the results of the Minnesota Multiphasic Personality Inventory-2 test were inconclusive in that Mitchell either did not read the questions, randomly answered them, or answered them in such a way as to over-report symptoms. Dr. Anderson stated during the competency hearing that Mitchell told him that there was a seven to eight minute gap in his memory during the shooting incident which might have been caused by a demon. Dr. Anderson concluded that Mitchell was competent to stand trial.

Mitchell offered no expert testimony to rebut these opinions. We conclude that substantial evidence supports the circuit court’s ruling of competency to stand trial.

For his third point, Mitchell, who is black, argues that the makeup of the jury venire did not represent a fair cross section of the community. To support his contention, he points to the fact that when the circuit clerk first called 224 jurors for the venire only 35 reported, and when the clerk followed this with a call of 112 jurors, only 26 reported. In his motion to the circuit court, defense counsel emphasized that the venire contained only 3 or 4 black jurors which was disproportionately low for the racial makeup of Conway County where Union Chapel is located.

The State maintained that the venire was randomly selected from the voter registration list, but defense counsel countered:

I know how that system works, but when they write in they have work hardships, illnesses, don’t answer or respond to their letters, then it’s not a random selection, it gets to be very selective because it boils down to just a few people that (sic) are interested enough in our system of government and our judicial system to serve on a jury.

The circuit court then called the circuit clerk, Carolyn Gadberry, who testified that there was no way to tell the racial makeup of the venire called from a voter list. The circuit court denied the motion to quash the venire.

Mitchell had the burden of proving the systematic exclusion of members of his racial group from the venire. Biggers v. State, 317 Ark. 414, 878 S.W.2d 717 (1994); Walker v. State, 314 Ark. 628, 864 S.W.2d 230 (1993); Walton v. State, 279 Ark. 193, 650 S.W.2d 231 (1983). To make a prima facie showing of systematic exclusion, he had to establish (1) the group allegedly excluded was a distinctive group in the community; (2) the representation of this group in the venire was not fair and reasonable in relation to the number of such persons in the community; and (3) the underrepresentation was due to systematic exclusion. Sanders v. State, 300 Ark. 25, 776 S.W.2d 334 (1989). Only after he made his prima facie case by establishing these three elements could the burden shift to the State to justify its procedure. Sanders v. State, supra. When the jury venire is drawn by random selection, the mere showing that it is not representative of the racial composition of the population will not make a prima facie showing of racial discrimination. Cleveland v. State, 315 Ark. 91, 865 S.W.2d 285 (1993); Thomas v. State, 289 Ark. 72, 709 S.W.2d 83 (1986).

In the instant case, there was no dispute that blacks represented a distinctive group in the community. However, Mitchell did not establish the second and third elements of the Sanders test. He failed to offer statistical proof of the racial composition of the community or of the venire. Furthermore, he completely failed to offer evidence of systematic exclusion. As a result, there was no prima facie case, and, therefore, the burden never shifted to the State to justify its procedure. We further note that two blacks sat on his jury. The circuit court correctly denied his motion to quash.

Mitchell next maintains that the circuit court erred in failing to make a sensitive inquiry into the circumstances surrounding his Batson challenge. During voir dire, the State sought to strike a black juror, Carolyn Hervey, for cause. Ms. Hervey stated on voir dire that she was related to Bryan Hervey, a State witness, by marriage, as well as being related to State witnesses Dejuan and Michael Clemons. Ms. Hervey admitted that she was their aunt. Michael Clemons, at one point, was a co-defendant in this action. Ms. Hervey stated, nevertheless, that she would not have a problem sitting on the jury even though her decision would be partially based on her relatives’ testimony.

The prosecutor moved to strike Carolyn Hervey for cause based on her kinship with one of the former co-defendants and her suspected knowledge of the facts of the case. The defense retorted that Ms. Hervey stated that she could be objective in the case. The circuit court denied the motion to strike for cause. The State then used a peremptory challenge to strike Ms. Hervey, and the defense raised a Batson objection. The court ruled that there was a sufficient basis for the State to use one of its challenges.

This court has stated the procedures to be followed when a Batson objection is raised:

First, the defendant must make a prima facie case that racial discrimination is the basis of a juror challenge. In the event the defendant makes a prima facie case, the State has the burden of showing that the challenge was not based upon race. Only if the defendant makes a prima facie case and the State fails to give a racially neutral reason for the challenge is the court required to conduct a sensitive inquiry.

Franklin v. State, 314 Ark. 329, 338, 863 S.W.2d 268, 273 (1993); see also Heard v. State, 322 Ark. 553, 910 S.W.2d 663 (1995); Sims v. State, 320 Ark. 528, 900 S.W.2d 508 (1995). This court has stated that a prima facie case may be established by: (1) showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose, (2) demonstrating total or seriously disproportionate exclusion of blacks from the jury, or (3) showing a pattern of strikes, questions or statements by a prosecuting attorney during voir dire. Gilland v. State, 318 Ark. 72, 883 S.W.2d 474 (1994). The standard of review for reversal of a circuit court’s Batson ruling is whether the court’s findings are clearly against the preponderance of the evidence. Sims v. State, supra.

In the matter before us, Mitchell did not make a prima facie case. He failed to raise an inference of discrimination or to prove a disproportionate exclusion of blacks from the jury or a pattern of strikes. First, it is unclear from the record which party excluded which jurors, except for Juror Hervey. Secondly, the fact that one black member is struck from the jury, by itself, is not sufficient to make a prima facie case.

Moreover, we again observe that two blacks were actually seated on the jury in this case. In Thompson v. State, 301 Ark. 488, 785 S.W.2d 29 (1990), this court concluded that the presence of minority members on the jury, while by no means determinative of the question of whether discrimination occurred, is significant. This court has also stated that the best answer the State can have to a charge of discrimination is to point to a jury which has black members. Gilland v. State, supra; Ward v. State, 293 Ark. 88, 733 S.W.2d 728 (1987). And, finally, even if a prima facie case had been proven, the State’s explanation for the challenge was racially neutral, and the circuit court was well within its discretion to deny the Bat-son challenge.

Mitchell then contends that the circuit court erred in failing to exclude the victim, Shalla Criswell, from the courtroom during the testimony of other witnesses because she had given prior inconsistent statements regarding the events on the night of the shooting. The Rule (Ark. R. Evid. 615) was invoked by Mitchell in this case, and the circuit court ordered the exclusion of witnesses during the course of testimony from other witnesses at trial. Ark. R. Evid. 616 provides that “[notwithstanding any provision to the contrary” the victim of a crime shall have the right to be present during the trial of the offense. As we said in Stephens v. State, 290 Ark. 440, 720 S.W.2d 301 (1986), Rule 616 was added to the Rules of Evidence by Act 462 of 1985, and we adopted the rule in that opinion. We noted that the presence of a victim in the courtroom throughout the trial conceivably could put the fairness of the trial in jeopardy under some circumstances, but that that was not the case in Stephens. Nor has Mitchell succeeded in showing us how fairness was jeopardized in his trial by the presence of one of his victims. We conclude that the circuit court did not err by permitting Shalla Criswell to attend Mitchell’s trial.

For his final argument, Mitchell contends that the admission into evidence of the nude autopsy photograph of Felicia Payne was prejudicial to his case and constituted error by the circuit court. This point is not preserved for our review in that the photograph at issue is not included in either the record of this matter or the abstract of testimony and evidence in Mitchell’s briefs. It is impossible for this court to determine the degree of prejudice if the photograph in question is not before us. See Russell v. State, 269 Ark. 44, 598 S.W.2d 96 (1980).

Affirmed.


author: Andree Layton Roaf, Justice.

text:
    Robert Earl GALVIN v. STATE of Arkansas
    CR 95-753
    912 S.W.2d 932
    Supreme Court of Arkansas
    Opinion delivered January 16, 1996

      Arkansas Public Defender Comm’n, by: Richard A. Hutto, for appellant.

      Winston Bryant, Att’y Gen., by: Vada Berger, Asst. Att’y Gen. and Robin Carroll, Law Student Admitted to Practice Pursuant to Rule XV(E)(1) of the Rules Governing Admission to the Arkansas Supreme Court, for appellee.
   Andree Layton Roaf, Justice.

Appellant Robert Earl Galvin was convicted of first-degree murder and sentenced to thirty-six years imprisonment. For his sole point on appeal, Galvin contends that the trial court erred in denying his motion for a directed verdict. We affirm.

At appellant’s trial an officer with the Little Rock Police Department testified that he received a call at 2:31 a.m. on December 19, 1993, and, after arriving at the intersection of Twenty-fifth and Maple, discovered the body of the victim, Joey Madaris, lying in a grassy area next to a fence near the corner. In addition, an expended cartridge was found in the intersection itself. A crime specialist testified that the expended cartridge was found approximately forty feet from the victim and that such a cartridge would not have been ejected more than six or seven feet from where the weapon was fired. He further testified that it was impossible to determine whether the cartridge was involved in this incident. An associate medical examiner with the Arkansas State Crime Laboratory testified that the victim had two gunshot wounds. The fatal shot entered the right side of the victim’s back, and a second shot entered the sole of the victim’s right foot.

Derrick Johnson, age seventeen, testified that he knew the victim, Joey Madaris, and that he saw the victim on the morning of December 19, 1993. Johnson stated that he also saw Robert Galvin, age sixteen, John Holmes, and Derrick Galvin standing in a yard by John Holmes’ house which was next to the house with the fence where the victim was found. Derrick Johnson was standing across the street near an elementary school on Maple Street. Johnson testified that it appeared Madaris was exchanging words with the Galvins and Holmes. When Madaris attempted to walk away, Derrick Galvin and Holmes grabbed him, Robert Galvin pulled up his shirt, pulled out a gun, and started shooting. Johnson testified that he heard two shots and started running; the last place he saw Madaris was near the corner of the fence. Johnson stated that he knew appellant Robert Galvin before the incident and identified the appellant in court. Although Johnson could not say that he actually saw Madaris get shot, he testified that he saw Galvin shoot the gun at Madaris from close range and heard two shots before he ran away.

The appellant argues that the trial court erred in denying his motions for directed verdict because there was no substantial evidence upon which reasonable jurors could find appellant committed the homicide. A motion for a directed verdict is a challenge to the sufficiency of the evidence. Young v. State, 321 Ark. 541, 906 Ark. 280 (1995). When reviewing the sufficiency of the evidence on appeal, we do not weigh the evidence but simply determine whether the evidence in support of the verdict is substantial. Id. Substantial evidence is that which is forceful enough to compel reasonable minds to reach a conclusion one way or another. Id. In determining whether there is substantial evidence, we review the evidence in the light most favorable to the State, and it is permissible to consider only that evidence which supports the guilty verdict. Id.

At the close of the State’s case, the appellant moved for a directed verdict on the basis that reasonable jurors could not find Derrick Johnson credible. The appellant further asserted Johnson’s testimony was directly contradicted by the State’s evidence regarding where the victim was found and where other evidence was found. The appellant again moved for a directed verdict at the close of all the evidence on the basis that reasonable jurors could not find Johnson’s testimony credible based upon “all the contradictions of the other testimony.”

On appeal, the appellant asserts that the only evidence which had any tendency to link him with the crime was the testimony of Derrick Johnson. The appellant again submits that such evidence was not credible and was not substantial. However, on matters of credibility of the witnesses and conflicting testimony, we have repeatedly held that the determination of those issues is left to the trier of fact. Wilson v. State, 320 Ark. 707, 898 S.W.2d 469 (1995). Further, the uncorroborated testimony of one State’s witness is sufficient to sustain a conviction. Tisdale v. State, 311 Ark. 220, 843 S.W.2d 803 (1992).

The appellant points out certain discrepancies in the statements Johnson gave to police and his testimony at trial. At trial, Johnson admitted that in his original statement to the police on the morning of December 19, 1993, the day of the shooting, he said that he did not know anything because he did not want to get involved. He testified that he gave the police a second statement on February 9, 1994, in which he told the truth. In his second statement, Johnson told the police he went to a friend’s home and had her dial “911,” and he then reported the shooting. At trial, Johnson testified that he dialed “911.” The friend testified by way of a transcript from a prior proceeding that Johnson had not come to her house on the night Madaris was shot. She admitted that she told an officer that Johnson called “911” from her home but claimed that Johnson had called and asked her to do so, and she thought it was a prank. Johnson also admitted that he had pled guilty to two counts of delivery of cocaine and made an agreement with the State that in exchange for his truthful testimony in the instant case his punishment on the delivery of cocaine offenses would be reduced to five years probation, 120 days in the county jail, and a $500 fine.

The appellant also asserts that Johnson’s testimony conflicts with the physical evidence. We need not examine these conflicts because we review the evidence in the light most favorable to the State, and it is permissible to consider only that evidence which supports the guilty verdict. Nevertheless, much of the testimony can be reconciled with the physical evidence. Johnson testified that he saw Galvin shoot the gun from close range. The appellant submits this conflicts with the testimony of the criminalist with the Arkansas State Crime Laboratory. However, the criminalist testified that her conclusion that the shots were fired at a “distant range” was simply based upon the fact that no smoke residues or gunpowder flakes were discovered, and she stated that “distant range” meant nothing in terms of feet and inches. The appellant also points out that Johnson last saw the victim at the corner of the fence, and the victim was in fact discovered approximately fifteen feet away. Finally, the appellant finds it significant that an expended cartridge was found in the intersection some forty feet away; however, the crime specialist testified it was impossible to determine whether the cartridge was involved with this incident.

In sum, this case involves a credibility determination and while Johnson may not have an exemplary background, credibility is for a jury, not an appellate court, to determine. Larimore v. State, 317 Ark. 111, 877 S.W.2d 570 (1994); Moore v. State, 315 Ark. 131, 864 S.W.2d 863 (1993).

Affirmed.


author: Per Curiam.

text:
    Dale BRYANT v. STATE of Arkansas
    CR 95-741
    913 S.W.2d 257
    Supreme Court of Arkansas
    Opinion delivered January 16, 1996

      John Putman, for appellant.

      Winston Bryant, Att’y Gen., by: Vada Berger, Asst. Att’y Gen., for appellee.
   Per Curiam.

The appellant, Dale Bryant, pleaded guilty to capital murder on August 18, 1992. His plea was conditional on his right to appeal an adverse ruling by the trial court on a motion to suppress his inculpatory statements. The appellant was sentenced to life without parole. On September 13, 1993, the Arkansas Supreme Court affirmed the trial court’s denial of the suppression motion. Bryant v. State, 314 Ark. 130, 862 S.W.2d 215 (1993). On November 18, 1993, the appellant filed a petition for postconviction relief pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure. On the same date, the appellant also filed a motion for the trial judge to recuse himself from the appellant’s case. The petition and motion were denied without a hearing, and the appellant brings this appeal.

The appellant argues that the trial court erred in not holding an evidentiary hearing on the appellant’s Rule 37 petition. The judge held that the petition did not state grounds sufficient to grant relief. In the petition the appellant claimed that his sentence should be vacated and asked that he be allowed to withdraw his guilty plea for several reasons. He stated that his constitutional right to be present at all critical stages of the proceedings was violated when he was not present at a hearing on the state’s motion to have the appellant submit to blood and hair samples. He also claimed that the trial judge violated his rights and “committed a grave malfeasance” by stating that the appellant was represented by counsel at the hearing. Neither of these claims is cognizable in Rule 37 proceedings. When a defendant pleads guilty, the only claims cognizable in Rule 37 proceedings are those which allege that the plea was not made voluntarily and intelligently or was entered without effective assistance of counsel. See Branham v. State, 292 Ark 355, 730 S.W.2d 226 (1987).

The appellant next claimed in his petition that his guilty plea was the result of “reprehensible methods of persuasion to gain the plea” by his appointed counsel and that, but for counsel’s persuasion tactics and unprofessional errors, the results of the proceeding would have been different. These are conclusory allegations totally unsupported by facts; therefore, the allegations do not provide a basis for a hearing or postconviction relief.

Sixteen months after the appellant filed his Rule 37 petition, he filed a twenty-three page document entitled “Rule 37 — WRITTEN ARGUMENT.” None of the claims in that document were considered by the trial judge, nor should they have been. Arkansas Rule of Criminal Procedure Rule 37.1 (e) provides that a petition shall not exceed ten pages in length. Rule 37.2(b) provides that all grounds for relief must be raised in the original petition and section (e) of the same rule provides that in order to amend his petition a petitioner must ask leave of the court. In filing the twenty-three page document, the appellant did not ask the court’s permission to either file an overlength document or amend his original petition with the latter document. Therefore, the allegations in the latter document will not be considered.

The appellant claims that the trial court erred in refusing to recuse from the appellant’s case. In the appellant’s motion he stated that the trial judge should be disqualified because the appellant had filed a complaint against the judge with the Arkansas Judicial Discipline Committee. The appellant further stated that the committee only ruled on part of the complaint because of lack of jurisdiction and the appellant was seeking a ruling on the remainder of the complaint. The appellant also claimed that the judge should be disqualified because the judge’s actions in the pretrial proceedings form the basis of some of his Rule 37 allegations.

In his brief on appeal, the appellant argues that the trial judge should have disqualified himself from the Rule 37 proceeding because he was going to have to rule on the propriety of his own actions. This court has held that the judge who presides over a defendant’s trial can also preside over that defendant’s postconviction proceeding. Travis v. State, 283 Ark. 478, 678 S.W.2d 341 (1984). Moreover, recusal is not required when some of the judge’s rulings are considered in the Rule 37 proceedings. See Meyers v. State, 252 Ark. 367, 479 S.W.2d 238 (1972); Holloway v. State, 293 Ark. 438, 738 S.W.2d 796 (1987).

The appellant also claims that the trial court’s order dismissing the Rule 37 petition indicated that the trial court was prejudiced against the appellant. The order stated in part:

It’s the Court’s impression that [the appellant] considers himself far more clever and intelligent than either of his lawyers or the trial judge. His filing of a Rule 37 petition was recognized by all concerned to be a given. This case was processed recognizing that regardless of circumstances of his being convicted that [the appellant] would claim that he was entitled to postconviction relief and would complain about the quality of legal representation.

The appellant argues that the judge’s comments reflect a preconceived notion that any allegations made by the appellant in a Rule 37 petition would be false.

A circuit judge’s decision not to recuse from a case is a discretionary one and will not be reversed on appeal absent an abuse of that discretion. Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772 (1993). The trial judge’s comments were made when he ruled on the appellant’s motion some sixteen months after it was filed, but the appellant wants this court to consider those comments as a reason to hold that the trial judge was wrong in refusing to disqualify himself. This court will consider only the facts set forth in the motion that the trial court ruled on; we find that there was no abuse of discretion in the trial court’s decision not to recuse.

Affirmed.


text:
    Larry DONIHOO v. STATE of Arkansas
    CR 95-1194
    912 S.W.2d 937
    Supreme Court of Arkansas
    Opinion delivered January 16, 1996

      Garnett E. Norwood, for appellant.
    No response.
   Per Curiam.

Larry Donihoo has filed this Motion for Rule on the Clerk through his attorney, Garnett E. Norwood. His attorney does not admit fault, but states that because he timely tendered a partial record, he is entitled to have the record filed and the case docketed by the Clerk.

The chronology of this appeal is as follows:

Judgment and Commitment Order Entered 4/28/95
Notice of Appeal and Designation of Record 5/23/95
Order for Extension of Time to prepare transcript to November 15, 1995 5/31/95
Petition for certiorari filed along with a partial record 11/15/95
Transcript tendered 12/15/95

It is an attorney’s duty to file the record on time. In this case, Mr. Donihoo offers no explanation as to why the record was late. See Ark. R. App. R. 5. If the attorney will concede by affidavit that it was his fault that the record was not filed on time, or if other good cause is shown, then the motion will be granted. Harkness v. State, 264 Ark. 561, 572 S.W.2d 835 (1978).

Motion denied.


text:
    Barry Lynn SIMPSON v. STATE of Arkansas
    CR 95-967
    912 S.W.2d 435
    Supreme Court of Arkansas
    Opinion delivered January 16, 1996

      Joe Kelly Hardin, for appellant.
    No response.
   Per Curiam.

Barry Lynn Simpson, by his attorney, Joe Kelly Hardin, has filed a motion for a rule on the clerk. This court previously granted a motion to supplement the record by November 30, 1995, and set December 10, 1995, as the due-date for appellant’s brief. Mr. Hardin states by motion that he tendered both the addition to the record and appellant’s brief on December 10, 1995, but that the Clerk refused to accept the addition to the record.

Mr. Hardin admits by motion that the addition to the record was tendered late due to a mistake on his part. We find that such an error, admittedly made by the 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.


author: Bradley D. Jesson, Chief Justice.

text:
    Marshall COLE v. STATE of Arkansas
    95-848
    913 S.W.2d 779
    Supreme Court of Arkansas
    Opinion delivered January 22, 1996

      John R. Hudson, for appellant.

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

Appellant Marshall Cole, age fifteen, was charged in circuit court with possession of a handgun on school property and aggravated assault. He filed a motion to transfer his case to juvenile court. Following a hearing, the circuit court denied the motion. Cole brings this interlocutory appeal from the circuit court’s refusal to transfer his case to juvenile court. Our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a)(12), as this interlocutory appeal is permitted by statute. See Ark. Code Ann. § 9-27-318 (Supp. 1995). We affirm.

The amended information alleged that on February 14 and 15, 1995, Cole and two other juveniles, Brent William Dobbs and Tony Rios, were in possession of a .25-caliber pistol at Prairie Grove Junior High School. It was further alleged that Cole and Dobbs pointed a loaded gun at several students at the school.

Cole filed a written motion to have his case transferred to juvenile court on the grounds that he was only fifteen years of age at the time of the alleged incidents and that no serious physical harm or bodily injury occurred as a result of the incidents. At a hearing on the motion, Prairie Grove Police Chief Robin Casey testified that he was called to the school on the morning of February 15 by Principal Frank Baughman, who told him a student had threatened another student with a weapon on campus. Chief Casey interviewed the alleged victim, Matt Mangin, and based on information received from him, placed Cole and Dobbs under arrest. In a separate interview, Dobbs stated that he had taken the weapon to school. Cole, who had been involved in an altercation with Mangin, came to Dobbs to get the weapon. After removing three to four rounds from the clip, Dobbs gave Cole the weapon. Dobbs made no indication, however, as to whether he told Cole that the gun was loaded or unloaded. Cole took the gun in a bathroom with Mangin, and later brought the weapon back to Dobbs. Dobbs and Cole later took the gun and placed it in a backpack belonging to Rios.

Chief Casey interviewed Cole separately. Cole denied having threatened Mangin; rather, he maintained that he just held the gun out in the palm of his hand and was showing it to Mangin. During the course of his investigation, Chief Casey determined that there were at least two other incidents occurring on the previous day which involved Cole, Dobbs, and Rios and alleged threats using the gun. There were other incidents under investigation relating to the three defendants and guns that allegedly occurred prior to the incidents at the school. In one of these incidents, a mother reported that her daughter had been similarly assaulted. Chief Casey had no knowledge of any other police contact involving Cole and his department. On cross-examination, Chief Casey testified that the gun used in the February 15 incident was not fired, and that to his knowledge, there were no resulting injuries.

Cole’s stepfather, Jessie Bounting, testified that, to his knowledge, his stepson had never been arrested before. It was Bounting’s testimony that Marshall had been in trouble for “minor things” in school such as talking in class or disrupting class. On cross-examination, Bounting admitted that Marshall had gotten into trouble for fighting at school. According to Bounting, Marshall “hit a kid” on the first day he was in school at Prairie Grove, having just moved from Kansas. While Marshall, a ninth grader, was active in football and baseball and had never failed a grade in school, he was on medication for attention deficit disorder.

At the conclusion of the hearing, the circuit judge announced his ruling from the bench as follows:

[I]t is incumbent upon the State to show by clear and convincing evidence that basically the case should not be transferred to juvenile court ... A number of those factors have been touched upon by the parties. It’s clear to me, and I’m convinced that these crimes, aggravated assault and possession of a handgun at school or on public school property or on school property, both felonies, are extremely serious crimes. Obviously, for years the crime of aggravated assault has been treated and dealt with as a serious crime, a crime in which there’s a potential for injury or death, but for the Defendant’s conduct in not carrying out that threatened violence, it never occurs. The crime of possession of a handgun on school property is a relatively new crime, again, a felony. As I have indicated in a number of cases prior to this, I view the proliferation of handguns as a terribly serious problem in this community and this county and this state and across this country. To me, these are terribly serious crimes and have the potential for violence. The law is clear, I can consider any one or more of these factors in determining whether or not these cases should be transferred. I can basically base my decision on one factor and, as I was indicating a minute ago, it’s clear to me, the evidence is clear that these two Defendants were involved in this activity, direct participants in this activity, and in my judgment, should be prosecuted and tried as adults. And, consequently, I’m going to deny their motions.

Cole filed a timely notice of appeal of the circuit court’s denial to transfer.

We recently repeated the guidelines under which we consider motions to transfer in juvenile cases in Holmes v. State, 322 Ark. 574, 911 S.W.2d 256 (1995):

In deciding whether to retain jurisdiction of the case, the trial court shall consider the seriousness of the offense, whether the offense is part of a repetitive pattern of adjudicated offenses, and the juvenile’s prospects for rehabilitation. Ark. Code Ann. § 9-27-318(e) (Repl. 1993). A defendant seeking a transfer has the burden of proof to show a transfer is warranted under Ark. Code Ann. § 9-27-318(e). Ring v. State, 320 Ark. 128, 894 S.W.2d 944 (1995); Davis v. State, 319 Ark. 613, 893 S.W.2d 768 (1995). “If he or she meets the burden, then the transfer is made unless there is clear and convincing countervailing evidence to support a finding that the juvenile should remain in circuit court.” Bradley v. State, 306 Ark. 621, 623, 816 S.W.2d 605, 606 (1991); Ark. Code Ann. § 9-27-318(f) (Repl. 1993). “‘Clear and convincing evidence’ has been defined by this Court as ‘that degree of proof which will produce in the trier of fact a firm conviction as to the allegation sought to be established.’ ” Cobbins v. State, 306 Ark. 447, 450, 816 S.W.2d 161, 163 (1991) (citation omitted).
The trial court is not required to give equal weight to each of the statutory factors. Ring v. State, 320 Ark. 128, 894 S.W.2d 944 (1995). “Moreover, proof need not be introduced against the juvenile on each factor.” Davis v. State, 319 Ark. at 616, 893 S.W.2d at 769. “We have often stated that the serious and violent nature of an offense is a sufficient basis for denying a motion to transfer and trying a juvenile as an adult.” Sims v. State, 320 Ark. 528, 536, 900 S.W.2d 508, 513 (1995) (citing Davis v. State, 319 Ark. 613, 893 S.W.2d 678 (1995)). No element of violence beyond that required to commit the crime is necessary under Ark. Code Ann. § 9-27-318(e)(1), see Slay v. State, 309 Ark. 507, 832 S.W.2d 217 (1992), a case in which the underlying crime was rape, and we wrote, “Cobbins cannot be read to require that an added element of violence must be shown under § 9-27-318(e)(1), and we believe it would be a perverted interpretation to construe that provision in such a manner.” Id. at 511, 832 S.W.2d at 219. However, that a crime is serious without the use of violence “is not a factor sufficient in and of itself for a circuit court to retain jurisdiction of a juvenile.” Sebastian v. State, 318 Ark. 494, 498, 885 S.W.2d 882, 885 (1994).
The standard of review in a juvenile transfer case is whether the trial court’s denial of the motion to transfer was clearly erroneous. Sims v. State, 320 Ark. 528, 900 S.W.2d 508 (1995).

322 Ark. at 576-577. While we recognized in Holmes that, under our previous holding in Sebastian v. State, supra, the commission of a serious offense alone without the use of violence is not sufficient for a circuit court to retain jurisdiction of a juvenile, we held that the trial court could have relied on the violent nature of the crime of aggravated robbery in denying appellant’s motion to transfer to juvenile court. Id. at 579. In so holding, we said that no violence beyond that necessary to commit the offense of which the defendant was accused is necessary under Ark. Code Ann. § 9-27-318(e)(l). Id., citing Slay v. State, 309 Ark. 507, 832 S.W.2d 217 (1992). Our decision in Holmes is easily reconciled with Sebastian v. State, supra, in which the appellant was charged with two counts of theft by receiving. While we affirmed the denial of transfer in Sebastian based on evidence of a repetitive pattern of offenses, we recognized, citing Blevins v. State, 308 Ark. 613, 826 S.W.2d 265 (1992), that the commission of a serious offense without the use of violence is not a factor sufficient in and of itself for a circuit court to retain jurisdiction of a juvenile. 318 Ark. at 498. In Blevins, we reversed the circuit court’s decision to deny transfer where the appellant was charged with possession of a controlled substance with the intent to deliver. Unlike the charges of theft by receiving in Sebastian and possession of a controlled substance with intent to deliver in Blevins, the crime of aggravated robbery charged in Holmes was inherently violent in nature.

A prosecuting attorney has the discretion to file charges in circuit court when a case involves a juvenile fourteen or fifteen years of age and the alleged act constitutes a crime listed in Ark. Code Ann. § 9-27-318(b)(2) (Supp. 1995). Both possession of a handgun on school property and aggravated assault are included in this list. See § 9-27-318(b)(2)(I) and (b)(2)(J). With respect to the crime of possession of a handgun on school property, codified at Ark. Code Ann. § 5-73-119 (Supp. 1995), we have recognized that the intent behind this statute is clearly to insure safety at Arkansas’s public schools. S.T. v. State, 318 Ark. 499, 885 S.W.2d 885 (1994).

Cole acknowledges that the criminal information, on its own, is sufficient to establish that the offense charged is of a serious and violent nature. Hamilton v. State, 320 Ark. 346, 896 S.W.2d 877 (1995). Here, the information alleged that Cole was in possession of a .25-caliber pistol at Prairie Grove Junior High School. The information further alleged that Cole committed aggravated assault by “unlawfully and feloniously, under circumstances manifesting extreme indifference to the value of human life, purposefully engaged in conduct that created a substantial danger of death or serious physical injury to another person . . . [by] pointing] a loaded gun at several students at school.” As we stated in Holmes v. State, supra, and Slay v. State, supra, no violence beyond that necessary to commit aggravated assault is necessary under Ark. Code Ann. § 9-27-318(e)(1). Unlike the crimes charged in Sebastian v. State, supra, and Blevins v. State, supra, we conclude that the crime of aggravated assault charged here, involving the alleged pointing of a loaded gun at several students at school, is inherently violent in nature. Moreover, the allegations in the information indicated that there were other incidents involving Cole and alleged threats using the gun in addition to the incident involving Mangin.

The fact that Cole had no prior adjudications did not render the trial judge’s decision erroneous, since it was not necessary that proof of each factor listed in Ark. Code Ann. § 9-27-318(e) be presented or that the trial court give each factor equal weight. See Holmes v. State, supra. The circuit court, recognizing that it was not required to give equal weight to each of these factors, based its decision on the extreme seriousness of the crimes charged. In sum, these charges alone were clear and convincing evidence which supported the circuit court’s decision to deny transfer. Thus, we cannot conclude that its ruling was clearly erroneous.

Affirmed.