text:
    Steve HUDNALL, Father of Stevie Hudnall, Female Minor v. Carol BALMEZ of the Arkansas Department of Human Services
    95-295
    898 S.W.2d 39
    Supreme Court of Arkansas
    Opinion delivered May 15, 1995

      Lewis W. Littlepage, for appellant.

      Breck G. Hopkins, Arkansas Dep’t of Human Services, for appellee.
   Per Curiam.

On November 9, 1994, appellant Steve Hudnall timely filed his appeal from the trial court’s October 10, 1994 order terminating his parental rights. He also duly designated the entire record and requested he be permitted to continue in forma pauperis. Hudnall further made a timely request for findings of fact and law and filed a motion for clarification which was denied on November 17, 1994. Hudnall then filed a second notice of appeal on December 2, 1994, and again requested a record be prepared. The trial judge questioned Hudnall’s indigency status and strongly disagreed with Hudnall’s designating the entire record.

After reviewing Hudnall’s status once again, the trial judge, by order dated December 22, 1994, continued to allow Hudnall to proceed as an indigent, but also continued to disagree that Hudnall needed the entire record transcribed for his appeal. In the same order, the judge acknowledged Hudnall had a shortage of time to perfect an appeal but still directed the court reporter to transcribe only certain portions of the record, rather than the entire record as requested by Hudnall. The judge further directed that, if Hudnall desired further portions of the transcript, Hudnall (1) needed to specifically designate and itemize those portions, (2) correlate the legal issue and transcript portion requested, (3) prepare an estimate of costs and (4) file a newly sworn petition and affidavit of indigency.

On January 26, 1995, Hudnall attempted to comply with the judge’s December 22, 1994 order by filing another designation, but by order dated February 2, 1995, the judge granted part of Hudnall’s new designation of record, and denied other portions, stating that Hudnall could designate it at his own expense. The judge declined to direct his court reporter or Hudnall on how to resolve the financial arrangement between the two in preparing the record; he merely reminded them that a motion for extension may be necessary. The judge then gave the parties until February 17, 1995 to designate any additional portions of the record. The 90-day period to lodge a record from the trial court’s first notice of appeal (November 9, 1994) ended on February 7, 1995. Thus, unless the trial judge by his order of February 2nd intended to extend Hudnall additional time past the February 7, 1995 deadline to file a record, Hudnall could never have complied with the judge’s order allowing him until February 17, 1995 to designate the record.

In fact, appellee Department of Human Services entered its own designation on February 7, 1995, and on February 10, 1995, Hudnall designated a new designation of portions of the record denied by the trial judge, and he agreed to pay the costs for the new designation.

In conclusion, the appeal record before us is fraught with confusion and pitfalls concerning if, when or how a record was to be designated in an appeal. Perhaps Hudnall should not have been declared an indigent — but he was. As an indigent, perhaps he was entitled to his designated record entirely without costs — but he was not. The trial judge was actively involved in raising and determining these matters and entered orders, establishing the directives and dates when the events must occur. The judge obviously by his order dated February 2, 1995, extended Hudnall time to perfect his appeal since he permitted Hudnall until February 17, 1995 — ten days after the 90-day period for filing a record had ended — to designate other portions of the record. Because the trial judge acted within the 90-day period in extending Hudnall’s time to designate the record, he obviously intended to extend Hudnall’s time within which to lodge his record on appeal. Therefore, we grant Hudnall’s motion for rule on the clerk.

Brown, J., would deny.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Charles PATTON v. STATE of ARKANSAS
    CR 95-230
    898 S.W.2d 446
    Supreme Court of Arkansas
    Opinion delivered May 15, 1995

      John F. Gibson, Jr., for appellant.
    No response.
   Per Curiam.

John F. Gibson, Jr., has filed a second motion for rule on the clerk on behalf of his client, Charles Patton. We denied appellant’s first motion for rule on the clerk without prejudice to file a proper motion. Once again, the appellant has confused two separate appeals and we deny the motion for rule on the clerk without prejudice to file a proper motion.

The appellant was convicted of three counts of delivery of a controlled substance on August 5, 1993. The record which contained the trial proceedings for those three counts was tendered to the Clerk on March 7, 1994. Subsequently, the Court of Appeals dismissed the appellant’s appeal, case number CACR 94-570, for failure to file a brief.

The judgment and commitment order for a fourth count of delivery of a controlled substance was entered on January 5, 1994. That proceeding is the subject of this appeal, case number CR 95230. On March 9, 1995, the appellant tendered the record with the Clerk and filed his first motion for rule on the clerk. The record was tendered more than seven months after the entry of the judgment. See Ark. R. App. P. 5(b). It is the attorney’s duty to file the record on time. Franklin v. State, 318 Ark. 324, 885 S.W.2d 23 (1994). When a complete record is not available, a partial record will suffice. If the attorney will concede by affidavit within thirty days from the date of this per curiam that it was his fault that the record was not timely filed, or if other good cause is shown, then the motion will be granted.

In the instant case, the appellant is appealing from the judgment and commitment order entered January 5, 1994. Appellant’s counsel admits fault for failing to file a brief; however, the brief was due in a separate appeal, case number CACR 94-570. The Court of Appeals dismissed the appeal from the August 5, 1993 judgment and commitment order. However, the appeal from the January 5, 1994 judgment and commitment order has not been dismissed, nor has a briefing schedule been set. The record was simply tendered more than seven months after the entry of the judgment.

Motion denied.

      The record tendered March 7, 1994, case number CACR 94-570, contains only the trial proceedings for the three convictions entered on August 5, 1993. The record tendered March 9, 1995, case number CR 95-230, contains only the trial proceedings for the conviction entered January 5, 1994.


text:
    Benny REED v. STATE of Arkansas
    CR 95-392
    899 S.W.2d 53
    Supreme Court of Arkansas
    Opinion delivered May 15, 1995

      John D. Lightfoot, for appellant.
    No response.
   Per Curiam.

Appellant, Benny Reed, by his attorney, has filed for a rule on the clerk.

His attorney, John D. Lightfoot, admits that the failure to file the record in time was 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 our Per Curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


author: Jack Holt, Jr., Chief Justice.

text:
    Richard Thomas BUNN v. STATE of Arkansas
    CR 94-1081
    898 S.W.2d 450
    Supreme Court of Arkansas
    Opinion delivered May 22, 1995
    [Rehearing denied June 12, 1995]

      Kent McLemore, for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, Richard Thomas Bunn, appeals his conviction of three counts of delivery of a controlled substance, cocaine, and asserts the following five points of error: (1) that the trial court erred in failing to grant his motion for severance of Count III from Counts I and II of the offenses charged; (2) that the trial court abused its discretion in admitting his “mug shot” into evidence; (3) that the trial court erred in admitting into evidence transcripts of recordings of two of the drug transactions; (4) that the trial court erred in admitting and allowing testimony about a letter purportedly written by him, in which he allegedly threatened a witness for the State; and (5) that the trial court erred in failing to declare Arkansas’s bifurcated sentencing procedures unconstitutional. Finding merit in the appellant’s claim that the trial court erred by refusing to sever offenses prior to trial, we reverse and remand.

Facts

In October of 1993, Leslie Blackburn contacted the Fourth Judicial Drug Task Force about working as a confidential informant. Blackburn, who was serving a ten-day jail sentence, told officers that he could buy some cocaine from the appellant, Richard Thomas Bunn, as he “had been there before to buy it.” On October 21, 1993, Blackburn had a meeting with officers at the Fayetteville Police Department to arrange for a drug buy from Bunn. Blackburn’s person was searched for money and drugs, and, finding neither, officers wired him with a body microphone, and gave him $50.00 to purchase the cocaine. Officers drove Blackburn to the area of Bunn’s trailer at 2605 Villa Boulevard, #1, where he entered to find Bunn, Andy Holm, Isaac Allen, “Amp,” Sandra Williams, and Sabrina Williams inside. According to Officer McCarty, who, together with other officers, was conducting visual and audio surveillance, Blackburn exited the trailer six minutes later, turned a rock of cocaine over to officers, and told them he had purchased it from Bunn. Blackburn was returned to the police department, searched, then taken back to the area of Bunn’s trailer approximately twenty-five minutes later, where he was again searched for drugs and money with negative results, given $50.00, and wired with a body microphone. Blackburn once again entered Bunn’s trailer, where he stayed between fourteen and sixteen minutes, purchased a rock of cocaine from Bunn, and turned it over to officers.

Two days later, on October 23, 1993, Darryl Williams, who had been working as a confidential informant since July of 1993 in order to help pay his bills, met with officers to arrange for a drug buy from Bunn. Williams was searched for money and drugs with negative results, wired with a body microphone, and given $50.00 before he was dropped off near Bunn’s trailer. Williams, who did not know Bunn, entered the trailer, recognized someone that he “knew from the streets” named Billy Joe, and returned a rock of crack cocaine to officers approximately four minutes later, describing the seller as a person who looked like the actor-dancer Gregory Hines. According to Officer McCarty, as he and other officers had been given this description before and “figured it was Bunn,” they showed Williams a “mug shot” of Bunn upon their return to the police department, from which he identified Bunn as the person who had sold him the cocaine.

Bunn was charged by felony information with three counts of delivery of a controlled substance, cocaine. Counts I and II each alleged that Bunn had illegally delivered approximately 1/4 gram of crack cocaine to a confidential informant (i.e., Blackburn) in exchange for $50.00 on October 21, 1993. Count III alleged that Bunn had delivered approximately 1/4 gram of crack cocaine to a confidential informant (i.e., Williams) in exchange for $50.00 on October 23, 1993. Prior to trial, Bunn filed a motion to sever Count III from Counts I and II of the offenses charged, as well as a motion to declare Act 535 of 1993, Arkansas’s bifurcated sentencing procedures, unconstitutional. The trial court denied both motions, and at trial, the State offered the testimony of both informants, Officer McCarty, and Norman Kemper, a forensic chemist with the State Crime Lab, who examined the three “rocks” and determined that each was cocaine base. It was through Officer McCarty’s testimony that the State sought and obtained admission, over objection, of Bunn’s “mug shot,” as well as two transcripts of the taped transactions, in which Officer McCarty had identified Bunn as the seller of the cocaine “based upon what the informant had told him.” Officer McCarty further stated that while he had been around Bunn before and knew what his voice sounded like, he could not positively identify the voice on the tape as being Bunn’s. The State rested.

After renewing his motion to sever Count III, Bunn presented the testimony of Isaac Allen and Melvin “Big” Salley, both of whom, after listening to the tape of the Blackburn transaction, concluded that the voice of the seller was not Bunn’s, but was Andy Holm’s, and both of whom denied seeing Bunn sell cocaine to Blackburn. Bunn rested his defense and again renewed his motion to sever.

As rebuttal evidence, the State presented the testimony of Sabrina Williams, a sixteen-year-old convicted felon who testified that she knew Bunn, as he was her mother’s former boyfriend, and that Bunn had “sold crack cocaine twenty times.” According to Sabrina, he would get the cocaine from her, then bring her back the money. Sabrina’s mother, Sandra Williams, corroborated her daughter’s testimony. Admitting that she was presently facing drug and forgery charges, and that she was expecting to receive favorable treatment in return for her testimony, Sandra testified, over objection, that she had received a letter from Bunn in late December of 1993, or early January of 1994, in which Bunn threatened her, stating that, “If you let someone find this letter or you tell on me, I will hunt you down.” Also over Bunn’s objection, the State sought and obtained admission of the letter into evidence.

As further rebuttal evidence, Andy Holm testified on behalf of the State, and while admitting he had sold drugs while living with Bunn in Bunn’s trailer, and that he had sold drugs to Blackburn one or two times, he denied having sold to him twice in the same day. He further testified that Bunn had also sold drugs, as Bunn “would knock on the doors, show me the amount of money he had and I would give him the dope,” and he (Holm) “would hear people coming in” and “would put two and two together.”

At the conclusion of the State’s rebuttal testimony, Bunn did not renew his motion to sever. Thereafter, the case was submitted to the jury who found Bunn guilty of the counts as charged, and the trial court conducted sentencing procedures as required by Act 535 of 1993, after which, the jury assessed punishment. As a result, the trial court sentenced Bunn to a forty-two-year term of imprisonment, encompassing the counts charged, as well as a theft of property charge to which Bunn pleaded guilty, and a revocation of probation charge. It is from this sentence that Bunn appeals.

I. Motion to sever

For his first argument on appeal, Bunn asserts that the trial court erred in refusing to grant his motion to sever Count III of the information from Counts I and II. Prior to trial, Bunn filed a written motion to sever the offenses pursuant to Ark. R. Crim. P. 22.3, arguing that severance was necessary to achieve a fair determination of his guilt or innocence of each offense. At a pre-trial hearing, counsel for Bunn agreed that the charges were of the same or similar character, but argued that Count III should be severed from Counts I and II because it was “not part of the same single scheme or plan as the first two ...” After hearing argument from the State, the trial court ruled on the motion as follows:

Well, the State is alleging that these are all a part of a common scheme or plan and if, by chance, the proof is otherwise, then I think the Court is still permitted to sever out one or more of the counts. But those are all the allegations made by the State. It’s sort of a matter of proof at this point. It seems to me, as I’ve just inquired, they’re identical charges, although they did — apparently these alleged offenses occurred at some — two on one particular occasion; one at some later time but, nonetheless, still in fairly close proximity to the earlier conduct or alleged conduct so I’m going to deny the motion. You may want to raise it at some point during the trial.

Bunn renewed his motion to sever the offenses at the close of the State’s case, and again after the presentation of his case, but before the State offered rebuttal testimony. The trial court denied the motion, concluding that the testimony of the witnesses showed a common scheme or plan, and that “all offenses were very similar, if not identical.”

The trial court’s rulings were in error. Arkansas Rules of Criminal Procedure 21 and 22 provide for joinder and severance of offenses, respectively. We have said that Rule 22.1(b) does not require that a motion to sever be renewed at the end of all the evidence but “before” or at the close of all the proof. Rockett v. State, 319 Ark. 335, 891 S.W.2d 366 (1995). Thus, as Bunn renewed his motion to sever at the close of the State’s casein-chief and at the end of his case, he did so “before or at the close of all the evidence” in conformance with the rule.

Rule 21.1 is a broad rule, allowing for joinder of offenses when they “(a) are of the same or similar character, even if not part of a single scheme or plan; or (b) are based on the same conduct or a series of acts connected together or constituting parts of a single scheme or plan.” Rule 22.2, the severance rule, “recognizes the grave risk of prejudice from joint disposition of unrelated charges and, accordingly, provides a defendant with an absolute right to a severance of offenses joined solely on the ground that they are of same or similar character.” Clay v. State, 318 Ark. 550, 886 S.W.2d 608 (1994); See also Commentary to Article VI. It provides in pertinent part that:

(a) Whenever two (2) or more offenses have been joined for trial solely on the ground that they are of the same or similar character and they are not part of a single scheme or plan, the defendant shall have the right to a severance of the offenses.
(b) The court, on application of the . . . defendant other than under subsection (a), shall grant a severance.of offenses:
(i) if before trial, it is deemed appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense . . .

A.RXr.P. Rule 37.2(a)-(b)(i).

In Clay v. State, supra, we made our position clear regarding what constitutes “a single scheme or plan,” stating that:

A single scheme or plan is discussed in the 1987 Unofficial Supplementary Commentary to Rule 21.1 as follows:
One who burglarizes an office on January 1 and a home on February 1 may be charged in the same information with both offenses, since they are “of similar character.” He would be entitled to severance under Rule 22.2(a), however, unless the offenses were part of a single scheme or plan or criminal episode. Even though roughly the same type of conduct might be argued to be involved in both burglaries, justifying joinder under Rule 21.1(b), the term “same conduct” in Rule 21.1(b) was probably intended to be read literally to refer to contemporaneous events and to permit joinder in a situation where, for example, a defendant robs three persons simultaneously.

In conformity with that commentary, in Teas v. State, 266 Ark. 572, 587 S.W.2d 28 (1979), we said that when an informer went to the home of the defendant and purchased some marijuana and a week later went back and purchased two morphine tablets from the same defendant, the evidence was insufficient to show that the sales were part of a single scheme or plan on the part of the defendant within the meaning of Rule 22.2. We reversed and remanded the case for a severance of the offenses. In a concurring opinion Justice George Rose Smith wrote:

Criminal Procedure Rule 22.2 gives the defendant an absolute right to a severance when two or more offenses have been joined for trial solely on the ground that they are of similar character, but they are not part of a single scheme. Here the two offenses, sales of drugs, are unquestionably similar; so the controlling question is whether they were committed as part of a “single scheme or plan.”
I think it clear that they were not so committed. The purpose of Rule 22.2 is to give effect to the principle that the State cannot bolster its case against the accused by proving that he has committed other similar offenses in the past. Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954). There are exceptions to that principle, however, as when two or more crimes are part of the same transaction, Harris v. State, 239 Ark. 771, 394 S.W.2d 135 (1965), cert. denied, 386 U.S. 964 (1967), or when two or more offenses have been planned in advance, as part of a single scheme. Ford v. State, 34 Ark. 649 (1879). The intent of Rule 22.2 must have been to carry into effect the spirit of those exceptions, by permitting the charges to be tried together when they are parts of a single scheme.
In drug cases the State cannot ordinarily prove that the accused sold drugs on one occasion by proving that he sold them on other occasions. Rios v. State, 262 Ark. 650, 473 S.W.2d 198 (1977); Sweatt v. State, 251 Ark. 650, 473 S.W.2d 913 (1971). Such proof of other sales, as we pointed out in Sweatt, would merely show that the accused had dealt in drugs before and hence was likely to do it again.
Teas v. State, 266 Ark. 572, 575, 587 S.W.2d 28, 30 (1979) (Smith, J., concurring).

318 Ark. 550 at 553-555, 886 S.W.2d 608 at 610-611.

The record is void of any evidence that the offense charged in Count III was planned in advance or as a part of the offenses charged in Counts I and II. In fact, the testimony of Williams indicates the contrary, as he testified that, at the time he purchased cocaine from Bunn, he did not know him, nor had he ever seen him before. It was Williams’s testimony that upon entering Bunn’s trailer, he lied about having been there before, but “didn’t have trouble buying the crack” once he recognized someone he “knew from the streets” named Billy Joe. Thus, it cannot be said that Bunn planned the delivery to Williams in advance. Moreover, the offense charged in Count III involves a different informant and occurred two days after the offenses alleged in Counts I and II. Under these circumstances, and pursuant to our holding in Clay v. State, supra, it was error for the trial court to deny Bunn’s motion to sever, as the offenses did not involve a single scheme or plan.

II. Issues in the event of retrial

We discuss the other four points of appeal for the guidance of the trial court and counsel on remand, as it is likely that these issues will arise again at subsequent trials. Diffee v. State, 319 Ark. 669, 894 S.W.2d 564 (1995); Spring Creek v. Sarrett, 319 Ark. 259, 890 S.W.2d 598 (1995).

A. Admission of “mug shot’’

Bunn alleges that the trial court abused its discretion in admitting his “mug shot” into evidence. During the State’s casein-chief, Detective Alan McCarty testified that upon Williams’s return from Bunn’s trailer, Williams told officers that the person who sold him the cocaine looked like Gregory Hines. It was Officer McCarty’s testimony that, as he and other officers had been given this description before and “figured it was Bunn,” they returned to the police department, where another officer showed a department photograph of Bunn to Williams. After Officer McCarty testified that Williams identified Bunn from the picture as the person who had sold him the cocaine, the State sought and obtained introduction of the picture into evidence.

We cannot consider the merits of Bunn’s argument, as he failed to abstract the photograph as a part of his appeal. As we have stated many times, “[t]he appellant in a felony criminal appeal has ‘the duty ... to abstract such parts of the record . . . as are material to the points to be argued in the appellant’s brief.’ ” Wynn v. State, 316 Ark. 414, 871 S.W.2d 593 (1994); See also Ark. Sup. Ct. R. 4-3(g). Moreover, Ark. Sup. Ct. R. 4-2(a)(6) provides that

Whenever a map, plat, photograph, or other similar exhibit, which cannot be abstracted in words, must be examined for a clear understanding of the testimony, the appellant shall reproduce the exhibit by photography or other process and attach it to the copies of the abstract filed in the Court and served upon the opposing counsel, unless this requirement is shown to be impracticable and is waived by the Court upon motion.

(Emphasis added.)

Bunn did not present such a motion asking that we waive the requirements of Rule 4-2(a)(6); therefore, his failure to abstract the “mug shot” precludes our review of his argument on this point. As we have stated many times, the reason for this rule is basic — there is only one transcript, there are seven judges on this court, and it is impossible for each of the seven judges to examine the one transcript. Franklin v. State, 318 Ark. 99, 884 S.W.2d 246 (1994); Dixon v. State, 314 Ark. 378, 863 S.W.2d 282 (1993).

B. Admission of transcripts

Bunn next asserts that the trial court erroneously admitted transcripts of the recordings of the first and third transactions into evidence, asserting that the transcripts were not properly authenticated under Arkansas Rule of Evidence 901, and that they were unduly prejudicial under A.R.E. 403.

At trial, tapes of both the October 21, 1993, Blackburn transactions, and the October 23, 1993, Williams transaction were admitted without objection. Officer McCarty then testified that he had transcripts of the tapes prepared, identifying State’s Exhibit 4 as a transcript of Blackburn’s first cocaine purchase, and State’s Exhibit 5 as a transcript of Williams’s cocaine purchase. Bunn then made a “foundational objection,” and the trial court asked that the tapes be played and that Bunn review the transcript.

Officer McCarty testified that he listened to the tapes twenty or thirty times for approximately three hours, took notes, wrote down what he heard, had his secretary type what he had written, then compared what she had typed with his notes. Regarding State’s Exhibit Four, Officer McCarty stated that he identified the persons on the transcript as “the confidential informant and who I believe to be Richard Bunn,” as he “attributed Richard Bunn’s name to the person selling the cocaine based on what the informant told me.” He further testified that “[t]he voice appeared to be the person selling crack cocaine or negotiating the transaction.” While he testified that he “kn[ew] what Richard Bunn’s voice sounds like by having been around him and having heard him talk,” he stated that he couldn’t “positively identify” the voice on the tape as Bunn’s.

The trial court overruled Bunn’s “foundational objection,” finding that Officer McCarty had clearly testified how the transcripts were prepared. We agree that the transcripts were properly authenticated under A.R.E. 901, as Officer McCarty’s opinion that the voice on the tape was Bunn’s was clearly “based upon [his] hearing the voice at any time under circumstances connecting it with the alleged speaker.” See A.R.E. 901(b)(5).

After allowing Bunn to voir dire Officer McCarty, the trial court overruled Bunn’s Rule 403 objection, concluding that the jury could give whatever weight that it desires to the tapes and the transcripts. The thrust of Bunn’s argument is that State’s Exhibit 4 erroneously attributes his name to one of the voices with the use of his initials, “RB.” (State’s Exhibit 5 attributes the voice on the tape to an unknown male, labeled “UM.”) However, the State asserts, and we agree, that because Bunn failed to ask that the objectionable part of the transcript, or the “RB,” be separated, the trial court was not required to sustain an objection to the entire transcript. See Vasquez v. State, 287 Ark. 468, 701 S.W.2d 357 (1985). Moreover, transcripts which are essentially accurate are admissible. See Leavy v. State, 314 Ark. 231, 862 S.W.2d 832 (1993). Under these circumstances, we cannot say that the trial court’s ruling that the jury could give whatever weight that it desired to the tapes and the transcripts was in error.

C. Admission of letter

For his fourth assignment of error, Bunn maintains that the trial court abused its discretion in admitting a letter purportedly written by him to Sandra Williams into evidence, and in allowing her to testify about the letter at trial. Sandra, who had previously lived with Bunn, testified that she had received a letter from Bunn in late December of 1993, or early January of 1994, in which Bunn threatened her, stating that, “If you let someone find this letter or you tell on me, I will hunt you down.” The trial court admitted the letter over Bunn’s objection. On appeal, he argues that the letter was more prejudicial than probative and was thus admitted in violation of A.R.E. 403. However, he failed to object to Sandra’s earlier testimony concerning the letter as follows:

PROSECUTOR: . . . Ms. Williams, have you ever been threatened by Mr. Bunn with reference to your testimony today?
WITNESS: Uh, I’ve been threatened. I have a letter saying that when he was in jail if I told anything on him, he would hunt me down.
PROSECUTOR: Do you have that letter with you?
WITNESS: Yes I do.

Bunn did not object until the State actually sought and obtained admission of the letter. As stated in Gonzalez v. State, 306 Ark. 1, 811 S.W.2d 760 (1991), evidence that is merely cumulative or repetitious of other evidence admitted without objection cannot be claimed to be prejudicial. See also Williams v. Southwestern Bell Tel. Co., 319 Ark. 626, 893 S.W.2d 770 (1995). As such, Bunn has not demonstrated prejudice on this point. We will not reverse in the absence of prejudice. See Caldwell v. State, 319 Ark. 243, 891 S.W.2d 42 (1995).

D. Act 535 of 1993

For his final point of error, Bunn asserts that the trial court erred in refusing to declare Act 535 of 1993, Arkansas’s bifurcated sentencing procedures, unconstitutional. Due to his failure to abstract any part of the sentencing proceedings at trial, we will not consider his argument on this point. Wynn v. State, supra, Franklin v. State, supra; Dixon v. State, supra.

Reversed and remanded.


author: Jack Holt, Jr., Chief Justice. Newbern and Roaf, JJ.,

text:
    Terry SIMS v. STATE of Arkansas
    CR 94-934
    900 S.W.2d 508
    Supreme Court of Arkansas
    Opinion delivered May 22, 1995

      Maxie G. Kizer, for appellant.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, Terry Sims, was convicted of capital felony murder and sentenced to life imprisonment without parole. On appeal, he asserts the following three points of error: (1) that the State unconstitutionally used its peremptory strikes to exclude African-Americans from the petit jury; (2) that the trial court erroneously denied the motion to transfer his case to juvenile court; and (3) that his confession was illegally taken. After examining these points as well as all objections decided adversely to Sims pursuant to Ark. Sup. Ct. R. 4-3 (h), we affirm.

Facts

On December 15, 1992, the body of Mary Lou Jones was discovered behind the counter at Cloud’s Grocery Store in Casscoe, Arkansas. An employee of the store, Ms. Jones had been shot three times in the head. The owner, Julian Russell, had also been shot and was on the floor behind the store’s meat counter. He died at a Little Rock hospital the following evening.

Police discovered the movie “52 Pickup” and a receipt for its rental on the store’s counter bearing the name of the appellant, Terry Sims, then sixteen years old. When Arkansas State Police Investigator Lloyd Franklin phoned Sims on December 16, Sims told him that he had returned the movie to the store during his lunch break at school on December 15. Unaware that Investigator Franklin had spoken with Sims, Investigator Gary Allen interviewed him as a potential witness on December 29, at which time Sims stated that he had returned the tape to the store shortly after 7:00 p.m. on December 15.

Based upon the discrepancies in Sims’s statements to these two officers, Sims was interviewed by Investigators John McCord and John Howell on January 5, 1993, and gave a voluntary statement without either of his parents being present to consent to waiver of his right to counsel. Discovering inconsistencies in Sims’s January 5 statement after speaking with another witness, the officers interviewed Sims at 4:00 p.m. on January 8. At that time, Sims gave another voluntary statement implicating others in the murders. Subsequently, at 9:38 p.m., after being advised of his Miranda rights, Sims, again without either of his parents being present, admitted to the murders.

According to the last statement Sims gave to the police, he and accomplice Albert Bell went to Cloud’s Grocery Store on the night of the incident, and Sims returned the movie while Bell asked Mr. Russell if he had any fuses. While Mr. Russell was looking for fuses, Sims shot him approximately five times. Ms. Jones began screaming, and after she gave Bell approximately $200 from the register and picked up the'telephone, Sims shot her twice. Sims and Bell then went to Sims’s car and drove to a friend’s house.

Sims was charged by felony information with two counts of capital felony murder. Prior to trial, Sims filed motions to transfer his case to juvenile court, to change venue, and to suppress his statements to police, all of which were denied following separate hearings. At trial, the jury, after hearing all the evidence, found Sims guilty as charged, and, although the State sought the death penalty, the jury recommended that Sims be sentenced to life imprisonment without parole. The trial court entered judgment against Sims, from which he now appeals.

I. Batson objection

For his first point of error, Sims claims that the State unconstitutionally used its peremptory strikes to exclude African-Americans from the petit jury. Ms. Tisinger, a minority venire member, was struck by the State. Sims objected, and the prosecutor offered the following explanation for striking Ms. Tisinger:

First of all, Ms. Tisinger was acquainted with the defendant’s sister and went to school with her for twelve years. Secondly, I got some mixed signals about what she would require of the state in proving this case against the defendant. Third, quite frankly I think she was much too anxious to say that she would impose the death penalty. I have some questions about her desire to try and get on this jury to do something. I am concerned about all three of these factors. I am not seeking to do anything because of her race. I would point out that there are prior African-American jurors that have been seated on this case.

Sims responded that Ms. Tisinger’s responses were no different than those of any other jurors, and that she stated that she had not spoken to Sims’s sister in a number of years. The trial court held that a prima facie case was not made, stating as follows:

I have reviewed Mr. Hall’s work on the subject and his digest of cases and read several of the cases cited therein as well as Batson itself. For the record I would note that the state has exercised four peremptory challenges, three of which were used to excuse whites and one of a black, a Ms. Ellis. She had a wide variety of matters or answers that could give a prosecutor pause. The other prospective black jurors that have been excused were Ms. Hancock, Ms. Lockett and Ms. Dabner for their inability to consider the death penalty. Ms. Briggs was a cousin of the defendant. Ms. Jones, my notes reflect, had already made up her mind.
(After counsel for Sims commented that he had no objection to Ms. Jones being excused, the trial court continued.)
Mr. Ferguson is so far the only black juror to be seated. Having said all that I cannot find a pattern here of discrimination or an attempt to exclude all of the blacks from the panel. I would note too that Ms. Tisinger’s answers were technically correct in almost all aspects but I can find some justification for [the prosecutor’s] gut reaction to Ms. Tisinger as a juror. She does have a basis of knowing or being acquainted with some members of the family. For that reason I will allow the peremptory.

The landmark case of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986), provides that the Equal Protection Clause forbids prosecutors from challenging potential jurors solely on the basis of race. See the recent application of the Batson doctrine in Purkett v. Elem, 115 S.Ct. 2635 (U.S. 1995).

In the recent case of Rockett v. State, 318 Ark. 831, 863 S.W.2d 235 (1994), we set out the procedures which are to be followed in Arkansas 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 on race. Only if the defendant makes a prima facie case and the state fails to give a facially neutral reason for the. challenge is the court required to conduct a sensitive inquiry.

319 Ark. at 839, 863 S.W.2d at 239 (quoting Franklin v. State, 314 Ark. 329, 338, 863 S.W.2d 268, 273 (1993)). The standard of review for reversal of a trial court’s Batson ruling is whether the court’s findings are clearly against the preponderance of the evidence. Bradley v. State, 320 Ark. 100, 896 S.W.2d 425 (1995); Rockett v. State, supra; Colbert v. State, 304 Ark. 250, 801 S.W.2d 643 (1990).

In his brief, Sims contends that the issue of whether a prima facie case of discrimination was made is moot, relying on the United States Supreme Court decision in Hernandez v. New York, 500 U.S. 352 (1991). We agree with the State’s assertion that Sims’s reliance on the case is misplaced, as in that case, the trial court had no opportunity to rule on whether a prima facie case of discrimination had been shown; rather, the trial court only ruled on the question of intentional discrimination, and, as such, the Supreme Court concluded that the issue of whether a prima facie case had been made was moot. Id. at 1866. Conversely, in this case, the trial court ruled that a prima facie case had not been made, and alternatively, that intentional discrimination had not been shown.

Sims also asserts that the striking of Ms. Tisinger in and of itself established a prima facie case of racial discrimination. See e.g. Franklin v. State. Sims’s reliance on Franklin is strained, as in that case, while we held that a prima facie case was shown when the State challenged the first African-American juror called, we recognized that that case was one “fraught with racial overtones,” and concluded that a racially neutral explanation was required “under the totality of relevant facts.” Franklin at 338-339, 863 S.W.2d at 273. Whereas the jury in Franklin was composed entirely of white persons by the time the trial court ruled on Franklin’s Batson motion, in this case, Juror Ferguson, an African-American, had been seated as a juror prior to the State’s challenge of Ms. Tisinger.

Prior to the striking of Ms. Tisinger, the State had used its first peremptory challenge to excuse an African-American veniremember, Ms. Ellis, and three more peremptory challenges to excuse white veniremembers. While Sims made a Bat-son objection when the State excused Ms. Ellis, Sims does not abstract this portion of the record and from what little information we have before us, we see no pattern of discrimination. Furthermore, Sims does not furnish us with a comprehensive analysis of the jury’s composition; rather, with the exception of Ms. Tisinger’s examination, he only abstracts the voir dire examinations of the jurors who were seated. While the State maintained in its argument to the trial court that other African-American jurors had been seated as jurors, we have no evidence of the jury’s composition other that the trial court’s comment and Sims’s concession in his brief that at least one African-American, Juror Ferguson, had been seated prior to the striking of Ms. Tisinger. Under these circumstances, certainly there has been no showing of a prima facie case of discrimination with reference to the excusal of Ms. Ellis or Ms. Tisinger.

Alternatively, the State did furnish racially-neutral reasons for striking Ms. Tisinger. The prosecutor based his first reason on the fact that she had gone to school with Sims’s sister for twelve years. Sims challenges the State’s reasoning, asserting that Ms. Tisinger’s testimony regarding her knowledge of Sims’s sister was “equivalent” to that of Juror Hammans, who had known the victims and was seated prior to the striking of Ms. Tisinger. Juror Hammans stated that while he did not know them well, he did know the victims, as he had stopped by Cloud’s Grocery during turkey season to get a Coke. Also seated prior to the State’s peremptory challenge of Ms. Tisinger was Juror Houten, who stated that, while she could have seen Sims when she worked at his high school, she did not remember his face. We cannot say that the testimony of either Jurors Hammans or Houten was “equivalent” to that of Ms. Tisinger. Even if we were to agree with Sims’s comparision, the prosecutor offered additional racially neutral reasons for striking Ms. Tisinger, as he stated that he had gotten some mixed signals about what Ms. Tisinger would require in terms of the State’s proof against Sims. We note that this concern was in fact reflected in a question posed to Ms. Tisinger during voir dire examination, as the prosecutor specifically inquired as to her hesitation in answering a question. Finally, the prosecutor explained that he thought that Ms. Tisinger seemed much too anxious to say that she would impose the death penalty. Under these circumstances, the trial court’s overmling of Sims’s Batson objection was not clearly against the preponderance of the evidence.

II. Denial of transfer

For his second point of error, Sims asserts that the trial court erroneously denied his motion to transfer his case to juvenile cour,t. At a hearing on the motion, both parties stipulated that Sims was on juvenile probation at the time of the murders for theft of property, as he had unlawfully taken cattle and a cattle trailer. The trial court then heard testimony from Sims’s mother, Thelma Sims, who related that her son was in the tenth grade at the time of his arrest for the Cloud’s Grocery killings. While he had a few disciplinary problems where he would have to stay in detention, Mrs. Sims stated that Terry had never been expelled from school. According to Mrs. Sims, with the exception of the charge for which he was placed on juvenile probation, her son had never been charged with any other criminal offenses, nor did he have any alcohol, drug or health problems. Mrs. Sims concluded that she had taught Terry to do his chores, and that, after school, he would help his father on their farm.

The State offered the testimony of Arkansas County Sheriff Wayne Simpson, who testified that, on the date of the incident in question, he arrived at Cloud’s Grocery to find Ms. Jones dead, as she had been shot, and was “lying on the floor with blood all beneath her head.” According to Sheriff Simpson, there was no evidence that either victim had a weapon, and “[t]here was no way that either of the victims could have left the area without coming past their assailants.” He further remarked that Sims had confessed and admitted being the person who fired the weapon used in the shooting.

Following this testimony, Sims offered his psychological evaluation completed by an independent psychiatrist, Dr. Brad Fisher, who stated in his report that Sims functioned “like a thirteen-year-old,” and that his “immaturity” was coupled with “a strongly dependent character whose borderline intelligence and developmental lags look to outsiders for guidance in complex situations.” After hearing all the evidence, the trial court denied Sims’s motion to transfer based upon the fact that Sims had been charged with capital murder involving the “violent death” of two victims, that Sims had a prior juvenile record at the time of the alleged offense consisting of a felony conviction for which he received probation, and “on all other matters of fact and law properly before the court.”

We have recently decided the issue of the appealability of denials of transfer to juvenile court following a conviction in circuit court in Hamilton v. State, 320 Ark. 346, 896 S.W.2d 877 (1995). In that case, we announced a prospective rule, holding that an appeal from an order granting or denying transfer of a case from one court to another having jurisdiction over juvenile matters must be considered by way of interlocutory appeal, and an appeal from such an order after a judgment of conviction in circuit court is untimely and will not be considered. Because the case against Sims was commenced prior to our decision in Hamilton, we will address the merits of his argument.

As we stated in Hamilton, the standard of review in juvenile-transfer cases is whether the circuit court’s denial of the motion was clearly erroneous. See also Davis v. State, 319 Ark. 613, 893 S.W.2d 678 (1995); Beck v. State, 317 Ark. 154, 876 S.W.2d 561 (1994); Vickers v. State, 307 Ark. 298, 819 S.W.2d 13 (1991). 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. Id.; See also Walker v. State, 304 Ark. 393, 803 S.W.2d 502, Supplemental Opinion on denial of rehearing, 304 Ark. 402-A, 805 S.W.2d 80 (1991); Here, the information alleged that Sims committed two counts of capital felony murder by “acting alone or with one or more persons, he caused the death[s] of Julian Russell [and Mary Lou Jones] in the course of and in furtherance of a felony under circumstances manifesting extreme indifference to the value of human life.” At the hearing on the motion to transfer, Sheriff Simpson testified that he found Ms. Jones’s body “lying on the floor with blood all beneath her head,” and that Sims had confessed to shooting both victims. There was also evidence presented at the hearing that Sims was on juvenile probation at the time of the incident. Undoubtedly, there was clear and convincing evidence which supported the circuit court’s denial of the motion to transfer; accordingly, it cannot be said that its ruling was clearly erroneous. Moreover, Sims’s date of birth was September 23, 1976, and because he had reached the age of eighteen, Sims could not then have been committed to a youth services center on conviction, and therefore a transfer of his case to juvenile court was unwarranted. See Myers v. State, 317 Ark. 70, 876 S.W.2d 246 (1994); Bright v. State, 307 Ark. 250, 819 S.W.2d 7 (1991). See also Ark. Code Ann. §§ 9-27-331(1) & 9-28-209(a)(1) (Repl. 1993).

III. Admissibility of confession

For his final point of error, Sims maintains that his confession was illegally taken on the grounds that its admission violated a provision of the Arkansas Juvenile Code, particularly, Ark. Code Ann. § 9-27-317 (Repl. 1993), which provides that, when obtaining a juvenile’s waiver of the right to counsel, the waiver must include a written and signed agreement by the juvenile and his parent, guardian, or custodian. At a hearing on his motion to suppress, Sims challenged the admission of the statements given to police on January 5 and January 8, 1993, without his parents being present to consent to the waiver of counsel. In response, the State specifically relied on the case of Boyd v. State, 313 Ark. 171, 853 S.W.2d 263 (1993), in arguing that the Arkansas Juvenile Code did not apply to Sims, as he was being charged as an adult in circuit court. Thereafter, the State stipulated to the fact that neither Mr. Sims or Mrs. Sims was present, nor was a juvenile intake or probation officer present during the taking of the statements. After hearing testimony from Sims, both his parents, and Investigators Howell and McCord of the Arkansas State Police, the trial court denied Sims’s motion to suppress.

Sims argues that the cases of Rhoades v. State, 315 Ark. 658, 869 S.W.2d 698 (1994), in which we held that, when the State chooses to file its petition in juvenile court, the Juvenile Code provisions control, and Boyd v. State, supra, in which we held that the Arkansas Juvenile Code does not refer to proceedings to circuit court, rather, only to proceedings in juvenile court, are inconsistent, and urges us to overrule our decision in Boyd. We reconciled these two cases in Ring v. State, 320 Ark. 128, 894 S.W.2d 994 (1995), in which Ring brought an interlocutory appeal of an order denying his motion to transfer his case to juvenile court on the grounds that the trial court erred in admitting his confession at his transfer hearing, as neither of his parents signed a written waiver of his right to counsel under § 9-27-317. At the time of Ring’s confession to police, he had not yet been charged in circuit court. We rejected his argument, reasoning as follows:

Appellant’s reliance on Rhoades is misplaced. True, similar to appellant, Rhoades had not yet been charged in any court when he made his statement. Also similar to appellant, Rhoades was charged in circuit court. However, unlike appellant, Rhoades’s case was transferred to juvenile court where he was ultimately adjudicated a delinquent. Thus, even though Rhoades had not yet been charged in circuit court when he gave his confession, because his offense was ultimately adjudicated in juvenile court, this court held that the Arkansas Juvenile Code applied to Rhoades at the time he gave his confession, such that the law enforcement officers’ failure to comply with section 9-27-317 barred admission of Rhoades’s confession at the adjudicatory hearing.
The state responds that Boyd v. State, rather than Rhoades, controls the present case. In Boyd, this court stated that when a prosecutor chooses to prosecute a juvenile in circuit court as an adult, the juvenile becomes subject to the procedures and penalties prescribed for adults. Thus, the state argues that when a juvenile is charged in circuit court, the requirement in section 9-27-317 that the juvenile’s parent consent to the juvenile’s waiver of right .to counsel is not applicable.
The state’s argument is correct. In Boyd, this court held that the Arkansas Juvenile Code does not refer to proceedings in circuit court, rather, only to proceedings in juvenile court. When Rhoades and Boyd are considered together and applied to the facts in this case, they imply but one conclusion: since appellant was ultimately charged in circuit court and, upon this court’s affirmance of the denial of his motion to transfer, will ultimately he tried there, the failure of the law enforcement officers to obtain the consent of appellant’s parents to his waiver of right to counsel, as required by section 9-27-317, does not bar admission of appellant’s confession. . .

(Citations and footnote omitted.) (Emphasis added.)

In short, in light of our holdings in Ring v. State, supra, and Boyd v. State, supra, Sims’s argument on this point is without merit.

IV. Compliance with Ark. Sup. Ct. R. 4-3(h)

As Sims received a sentence of life imprisonment without parole, we must examine all objections decided adversely to him in accordance with Ark. Sup. Ct. R. 4-3(h). In a motion for change of venue, Sims submitted the affidavits of nine Arkansas County residents, each of whom opined that Sims could not receive a fair and impartial trial in the county. Sims also referred to a county newspaper article which quoted the prosecutor as stating that he expected “to have a problem” with finding a jury in the case against Sims, as there were “some awful strong feelings in Arkansas County about Cloud’s Grocery,” referencing an earlier murder trial involving the same store in 1975. Following a hearing, the trial court denied Sims’s motion for change of venue. Article 2, section 10 of the Arkansas Constitution provides that a criminal defendant has the “right to a speedy and public trial by impartial jury of the county in which the crime shall have been committed,” while venue “may be changed to any other county of the judicial district in which the indictment is found upon the application of the accused.” Sanders v. State, 317 Ark. 328, 878 S.W.2d 391 (1994). However, “there can be no error in the denial of a change of venue in cases . . . where an examination of the jury shows that an impartial jury was selected and that each juror stated he or she could give the defendant a fair trial and follow the instructions of the court.” McArthur v. State, 309 Ark. 196, 830 S.W.2d 842 (1992). Sims has in fact abstracted the voir dire examinations of each of the seated jurors, and upon review of these individual examinations, it appears that an impartial jury was selected and that each juror in fact indicated that he or she had not formed an opinion about Sims’s guilt or innocence based upon what had been printed in the area newspapers. As such, there was no error.

Affirmed.

Newbern and Roaf, JJ.,

dissent for the reasons stated in the dissenting opinions in Ring v. State, supra, and Boyd v. State, supra.


author: Robert H. Dudley, Justice.

text:
    The CITY OF FAYETTEVILLE, Arkansas and the Board of Trustees of the University of Arkansas v. Sue PHILLIPS, Washington County Tax Assessor
    94-786
    899 S.W.2d 57
    Supreme Court of Arkansas
    Opinion delivered May 22, 1995

      Ginger P. Crisp, Assoc. Gen. Counsel for the University of Arkansas, for appellant.

      Jerry E. Rose, Fayetteville City Attorney, for appellant.

      Winston Bryant, Att’y Gen., by: Ann C. Purvis, Asst. Att’y Gen., for appellant.

      Fred H. Harrison, Gen. Counsel for the University of Arkansas, for appellant.

      George E. Butler, for appellee.
   Robert H. Dudley, Justice.

The Walton Arts Center is jointly owned by the City of Fayetteville and the Board of Trustees of the University of Arkansas. The issue on appeal is whether the Center is exempt from ad valorem taxation as “public property used exclusively for public purposes.” Ark. Const, art. 16, § 5(b). It is undisputed that the Center is public property: The question is whether it is used exclusively for public purposes.

In 1988, during construction of the'Center, appellants applied to Washington County for an exemption from ad valorem taxation. The exemption was denied, and the issue ultimately reached this court. In 1991, we affirmed the denial of the exemption for the tax year 1988. City of Fayetteville v. Phillips, 306 Ark. 87, 811 S.W.2d 308 (1991). Appellants subsequently applied for an exemption for the tax year beginning January 1, 1992. The County Equalization Board denied the exemption. Appellants appealed to the county court, and that court reversed the Board’s ruling. The Tax Assessor appealed to circuit court, and the circuit court ruled that the property was not used exclusively for public purposes. Appellants appeal to this court. We affirm the ruling of the circuit court because the Center is not used exclusively for public purposes.

It is settled that a taxpayer must establish an entitlement to an exemption beyond a reasonable doubt. City of Little Rock v. McIntosh, 319 Ark. 423, 426, 892 S.W.2d 462 (1995). A strong- presumption operates in favor of the taxing power. Id. Tax exemptions must always be strictly construed against the exemption. City of Fayetteville v. Phillips, 306 Ark. 87, 91, 811 S.W.2d 308, 311 (1991). In Hilger v. Harding College, 231 Ark. 686, 331 S.W.2d 851 (1960), we wrote:

Taxation is an act of sovereignty to be performed, so far as conveniently can be, with justice and equality to all, and exemptions, no matter how meritorious, are acts of grace, and must be strictly construed, and every reasonable intendment must be made that it was not the design to surrender the power of taxation or to exempt any property from its due proportion of the burden of taxation.

Id. at 693, 331 S.W.2d at 855 (quoting Brodie v. Fitzgerald, 57 Ark. 445, 22 S.W. 29 (1893)).

Appellants first assignment' of error is that the trial court erred in ruling that because the' Center rents space to individuals and private entities for private events it is not being used exclusively for public purposes. In-this argument, appellants urge this court to interpret the term “public purpose” to include the concept of private use when any member of the general public can rent space for private use.= We have previously rejected the argument.

The facts in the first appeal involving the Center, Phillips, 306 Ark. 87, 811 S.W.2d 308, showed that the facility, when completed, might be rented by private individuals and that, in some instances, events at the Center might be closed to the public-at-large. As a result, we wrote: “The stipulated facts indicate the Center may be used for non-public purposes. Such anticipated private use, regardless of any fee arrangements, could prevent property from being used exclusively for public purposes, which is the constitutional standard.” Id. at 94, 811 S.W.2d at 312. As authority for this statement, the opinion appropriately cites Holiday Island Suburban Improvement District No. 1 v. Williams, 295 Ark. 442, 749 S.W.2d 314 (1988).

Holiday Island involved recreational facilities that were open only to members of an improvement district. The district argued that the facilities were for a public use because any member of the public could use the facilities by purchasing property in the district. In rejecting the argument, we wrote:

While we find authority for the view that reasonable fees may be charged for use by the public, and that reasonable classifications of persons can be established, the law almost uniformly is to the effect that a “public purpose” contemplates that the use must be common to all and not to a particular group.

Id. at 445, 749 S.W.2d at 316 (citations omitted).

Similarly, in Off-Street Parking Development District No. 1 v. City of Fayetteville, 284 Ark. 453, 683 S.W.2d 229 (1985), we wrote:

There is a material difference between the use of property exclusively for public purposes and renting it out an then applying the proceeds arising therefrom to the public use. The property under our Constitution must be actually occupied or made use of for a public purpose and our court has recognized the difference between the actual use of the property and the use of the income.

Id. at 456, 683 S.W.2d at 231 (quoting Hilger v. Harding College, 231 Ark. 686, 331 S.W.2d 851 (1960) (emphasis in the original)).

Appellants ask us to follow the case of City of Cleveland v. Carney, 174 N.E.2d 254 (Ohio 1961). That case is contrary to our precedent, and, in addition, involves a statute with language that is different from our constitutional provision. We choose to follow our cases, and, under those cases, which represent a strict construction of the public purpose exemption, the use of space by private entities for private events is not a use for a public purpose.

Appellants next contend that the trial court erred because the private use of the facility was only incidental to the public use, and, consequently, the private use should not deny the Center a tax-exempt status. We most recently discussed the incidental use exception in City of Little Rock v. McIntosh, 319 Ark. 423, 892 S.W.2d 462 (1995), a case involving private businesses located on real estate owned by a municipal airport. We stated:

When the exemption from ad valorem taxation depends upon the use of the property “then the general rule is that the exception does not apply to property rented out to others by the exempt association or to other property held or used by it merely as a source of revenue, except that a mere occasional renting out, not interfering the primary use of the property by the lessor, does not affect the exemption.”

Id. at 429, 892 S.W.2d at 466 (quoting 2 Thomas M. Cooley, The Law of Taxation § 686, at 1435-37 (4th ed. 1924)).

In Hilger, the issue involved the tax-exempt status of a print shop owned by a college. In discussing incidental use, we wrote:

We recognize that a casual or incidental outside usage might not always be inconsistent with the constitutional requirement of exclusiveness but we are unwilling to say that the outside work in this instance was casual or incidental. If we arbitrarily hold that 10% is incidental and inconsequential and that it does not violate the constitutional injunction of exclusiveness, then we would open a Pandora[’s] box of borderline questions to plague the courts in the future. We are not inclined to endorse a procedure that could result in whittling away at the intent of the Constitution.

231 Ark. at 696, 331 S.W.2d at 857.

In the case at bar, appellants argue that the private use is incidental because only 26 of 300, or only 9%, of the performances and activities at the Center were closed to the general public in 1992; that only 4% of the rental income came from private rentals; and that only .4% of the total income came from private rentals. While those limited facts are not in dispute, they do not provide an accurate measure of incidental use and do not establish entitlement to an exemption beyond a reasonable doubt.

The statistic that only 9% of the activities were closed to the general public is somewhat deluding because it does not take into account the fact that the Center sells memberships based upon contributions, which begin at $50, and continue in increments to $100, $250, $500, and $5,000, and that those who contribute $250 or more are entitled to purchase tickets in advance of the general public. The result of this “priority seating” is that the general public is excluded to an unknown extent from events. An illustration occurred when the touring production of the Broadway show “Cats” visited the Center, and only 32% of the seats were made available to the general public. The rest of the tickets had already been purchased by contributors who held priority seating. Yet, this event is included in the statistic as one being open to the general public.

Likewise, appellants proved that the total revenue of the Center in 1992 was $1,070,900, and, of that amount, rental fees amounted to only 10.4%, with private rentals constituting .4%. Again, these statistics do not present an accurate measure of the incidental use of the facilities. A significant amount of the gross income comes from corporate and individual gifts and from the earnings from a $4,500,000 endowment contributed by the Sam Walton family.

Further, even if 9% were an accurate representation of the rentals made to private persons or entities, it would not necessarily be determinative of incidental use. In Hilger, we explained that we would not set some arbitrary percentage of use, such as 10%, that would qualify as incidental use because to do so would violate the constitutional mandate of exclusiveness, and we would be opening borderline questions that would plague courts in the future. Hilger, 231 Ark. at 696, 331 S.W.2d at 857.

Another reason for denying the exemption is the fact that the facility is in competition with other tax-paying facilities located in the area such as the Arts Center of the Ozarks located in Springdale. See McIntosh, 319 Ark. at 429, 892 S.W.2d at 466. We have stated the exemption should not be construed to give one business an advantage over another. Id.

Appellants’ last argument is that the ticket policy utilized by the Center does not limit public access to the facility. We summarily dispense with the argument. It is manifest that the ticket priority policy substantially curtails the general public’s access to some of the events.

In summary, we hold that the trial court correctly ruled that there is substantial doubt that the Center is being used exclusively for public purposes.

Holt, C.J., and Newbern and Brown, JJ., not participating.

Special Chief Justice Tom D. Womack, Special Justice Janet Pulliam, and Special Justice David G. Henry, join in this opinion.


text:
    Bud SAUNDERS, for Himself and Similarly Situated Taxpayers of Washington County, Arkansas, Appellants and Cross-Appellees and Tom Brown, for Himself, Cross-Appellee v. Steven NEUSE, Jerome J. Paddock, Jr., and Job Serebrov [both individually and jointly as comprising the Washington County Board of Election Commissioners]; Washington County Judge Charles Johnson, Washington County Treasurer Joan Perry, Appellees and Cross-Appellants and Washington County, the State Board of Election Commissioners, and Washington County Prosecuting Attorney Terry Jones, Appellees

    94-1434
    898 S.W.2d 43
    Supreme Court of Arkansas
    Opinion delivered May 22, 1995

      Donald C. Donner, for appellants and cross-appellees.

      George E. Butler, Washington County City Att’y, for appellees and cross-appellants.

      Winston Bryant, Att’y Gen., by: Patricia Van Ausdall, Asst. Att’y Gen., for appellees.
   Robert H. Dudley, Justice.

Budd Saunders filed this suit seeking a declaratory judgment that defendants Steven Neuse and Jerome J. Paddock, Jr. were ineligible to serve on the Washington County Board of Election Commissioners. The gravamen of count one of the complaint was that article 3, section 10 of the Constitution of Arkansas provides that no election officer shall hold any office or employment in state or city government and that Neuse was a professor at the University of Arkansas and Paddock was the City Attorney for the City of West Fork.

In the second count of his complaint Saunders asked that, after Neuse and Paddock were declared ineligible to serve on the Board, the circuit court remove them from office, rule that any compensation paid to them constituted an illegal exaction, and issue a writ of mandamus compelling the Washington County Judge, Charles Johnson, and the Prosecuting Attorney, Terry Jones, to institute an action for the recovery of all compensation paid to Neuse and Paddock for their service on the Board.

Both Neuse and Paddock resigned from the Board before judgment was rendered. The circuit judge entered judgment declaring that Neuse and Paddock were prohibited by article 3, section 10 from serving on the Board. The circuit judge did not address the moot issue of removal, but ruled that the compensation paid to Neuse and Paddock constituted an illegal exaction and that there were no affirmative defenses to an illegal exaction. The trial court refused to issue the writs of mandamus commanding the county judge and prosecuting attorney to file suit to collect the compensation paid.

Saunders appeals from that part of the order refusing to issue the writs of mandamus. Neuse, the county judge, the county treasurer, and Paddock, the third member of the Board, cross-appeal from that part of the ruling providing there are no affirmative defenses to an action for an illegal exaction. We affirm on direct appeal, and dismiss the cross-appeal.

The proceedings in this case are enigmatic. In the first proceeding the circuit court dismissed a taxpayer’s petition for a writ of mandamus. The taxpayer appealed. We affirmed because of a flagrantly deficient abstract. Edwards v. Neuse, 312 Ark. 302, 849 S.W.2d 479 (1993). A second suit was filed, but the taxpayer failed to name the appropriate parties, failed to fully develop the issues, and obtained a ruling on only one of the multiple issues. We affirmed. Morgan v. Neuse, 314 Ark. 4, 857 S.W.2d 826 (1993). This was the third time a taxpayer’s suit involving this same issue was filed. In this suit the taxpayer did not ask that Neuse and Paddock be required to reimburse Washington County for an illegal exaction. Rather, the taxpayer sought writs of mandamus that would compel the county judge and the prosecuting attorney to file the illegal exaction suits against Neuse and Paddock. It is from the denial of those writs that the taxpayer files his direct appeal.

In order to prevent any confusion, we note that the taxpayer could have filed the illegal exaction suit directly against Neuse and Paddock. See Ark. Const. art. 16, § 13. It was not necessary to seek the writs of mandamus commanding the county judge and prosecuting attorney to file the suit. In Samples v. Grady, 207 Ark. 724, 182 S.W.2d 875 (1944), we held that the refusal of the prosecuting attorney to bring a suit on behalf of the taxpayers was not a condition precedent to the exercise of that right by a citizen. We wrote that Ark. Const, art. 16, § 13 is self-executing and imposes no terms or conditions upon the right of the citizen to file suit to prevent an illegal exaction.

/.

The Direct Appeal

In his points of appeal, the taxpayer argues that the trial court erred in refusing to issue the writs of mandamus commanding the county judge and prosecuting attorney to file suit against Neuse and Paddock. Mandamus is an appropriate remedy when a public officer is called upon to do a plain and specific duty, which is required by law, and which requires no exercise of discretion or official judgment. State v. Grimmett, 292 Ark. 523, 525, 731 S.W.2d 207, 208 (1987). However, a writ of mandamus is a discretionary remedy which will be issued only when the petitioner has shown a clear and certain legal right to the relief sought and there is no other adequate remedy. Id. at 525, 731 S.W.2d at 208. The writ of mandamus will not lie to control or review matters of discretion; it will lie only to compel the exercise of that discretion. Thompson v. Erwin, 310 Ark. 522, 838 S.W.2d 353 (1992) (citing Eason v. Erwin, 300 Ark. 384, 781 S.W.2d 21 (1989)).

In the case at bar the trial court ruled that mandamus would not lie. We affirm the ruling because both the county judge and the prosecuting attorney have discretion in the filing of a lawsuit such as the one at issue. They must exercise discretion in deciding whether an attempt to recover the funds would be prudent — whether the cost of such a suit might exceed the amount of the recovery. The county judge and prosecuting attorney are required to weigh cases such as Martindale v. Honey, 261 Ark. 708, 551 S.W.2d 202 (1977), where we held that a county was not entitled to a windfall and that a dual office holder was not required to account for compensation, when the dual officeholder performed the duties of the other office in good faith. Similarly, they must weigh the application of a case where we held that amounts unlawfully appropriated, but well spent, were not recoverable in a taxpayer’s suit for the return of compensation unlawfully paid to a road commissioner. Ward v. Farrell, 221 Ark. 363, 253 S.W.2d 353 (1952). They would also be required to weigh the application of a statute of limitations, for we have applied a statute of limitations to claims of illegal exaction. Baker v. Allen, 204 Ark. 818, 164 S.W.2d 1004 (1942). In summary, the county judge and the prosecuting attorney have discretion to determine whether it is prudent to file the suit, and, accordingly, we affirm the denial of the writs of mandamus.

II.

The Cross-Appeal

The trial judge additionally ruled that affirmative defenses are not available in illegal exaction suits, and this ruling is assigned as error on cross-appeal. We do not reach the assignment because, even though this is the third appeal of this case, no one has yet sought to recover the compensation illegally paid to Neuse or Paddock, and, consequently, they have not pleaded any affirmative defenses to such a claim. Therefore, any ruling about affirmative defenses would be advisory. It is well settled that we do not issue advisory opinions. Walker v. McCuen, 318 Ark. 508, 886 S.W.2d 577 (1994). However, because of the unconventional proceedings to date, because Neuse and Paddock were made parties to this proceeding but no relief was asked from them, and because the trial judge ruled that no affirmative defenses are available, we understand cross-appellants’ dilemma. They may wish to plead an affirmative defense if this action is pursued in the future, and they do not want to be bound by law of the case. To prevent a possible injustice, we hold that the trial judge’s ruling on affirmative defenses by Neuse and Paddock was advisory only, and because we do not reach the issue, is not binding upon the parties if this action is pursued further. Accordingly, we dismiss the cross-appeal.


text:
    Mark Thomas STOUT v. STATE of Arkansas
    CR 94-1276
    898 S.W.2d 457
    Supreme Court of Arkansas
    Opinion delivered May 22, 1995

      A. Wayne Davis and Steven E. Cauley, for appellant.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant Mark Stout was driving his sister’s hatchback station wagon on Interstate 30 near Arkadelphia when Deputy Sheriff Terry Palmer stopped him for crossing the center line of the highway. Stout rolled down the window by the driver’s seat and handed Palmer his driver’s license. Palmer smelled alcohol and asked Stout how much he had to drink. Stout replied “a beer or two since [he] had been in Texas.” Stout explained that he had been in Texas visiting for a week or two and was on his way back to Wisconsin. Palmer asked Stout to get out of the station wagon and take some field sobriety tests. Stout got out and took three tests. Palmer determined that Stout was not under the influence of intoxicants and issued a warning ticket for crossing the center line. At this time Stout, who was standing near the rear of the hatchback, was free to leave.

Palmer noticed that there was no baggage or clothing inside the station wagon and wondered about the truth of Stout’s statement that he had been visiting in Texas for a week or two. As a result, he asked Stout if he had any contraband in the vehicle. Stout replied that he did not. Palmer asked if he and another deputy sheriff could search the vehicle. Stout said that they could. Although the record does not show the length of this conversation, it appears from all of the testimony that it occurred almost immediately after Palmer handed Stout the warning ticket, and Stout makes no argument that Palmer “detained” him unduly after a legitimate stop for an unauthorized warrantless search. See United States v. Ramos, 20 F.3d 348 (8th Cir. 1994). Palmer filled out a consent to search form, but Stout refused to sign it. Stout told Palmer that he could look in the vehicle from the outside. Palmer looked through the driver’s window and saw a package of cigarettes on the front seat. He noticed that inside the cellophane on the pack was “what looked to me as a marijuana cigarette, what we call a roach.” Palmer opened the door, took the cigarette butt, smelled it, and determined that it was a marijuana cigarette. At that time he arrested Stout, handcuffed him, and had him stand on the side of the highway. Palmer and the other deputy then conducted a search of the hatchback station wagon. In the hatchback area, there is a flap on the floor that covers the spare tire. Under the flap, and inside the spare tire compartment, Palmer found a square blue metal container. Inside it were packages wrapped in gray duct tape which that contained 10.6 pounds of marijuana.

Stout was subsequently charged with possession of a controlled substance with intent to deliver. He filed a motion to suppress the evidence seized, both the cigarette roach and the 10.6 pounds of marijuana, on the grounds that it was illegally seized under article 2, section 15 of the Constitution of Arkansas and Rule 12.4 of the Arkansas Rules of Criminal Procedure. He additionally made a Fourth Amendment argument. The trial court denied the motion to suppress because the deputy sheriff had probable cause to make the initial stop for crossing the center line and the marijuana roach was in plain view; consequently, that seizure was valid. The trial court further reasoned that after Stout was lawfully arrested for possession of the marijuana cigarette, the subsequent search of the inside of the hatchback was valid as incident to the arrest for possession of the marijuana roach. We affirm.

Stout argues that the trial court erred in construing article 2, section 15 of the Constitution of Arkansas and the Fourth and Fourteenth Amendments to the Constitution of the United States in refusing to suppress the evidence of the 10.6 pounds of marijuana found in the hatchback area of the vehicle. His arguments are based on the fact the officer had no probable cause to believe the marijuana was in the hatchback area of the car. The arguments are without merit. Once Stout was lawfully arrested, the officers were justified in making a contemporaneous search of the interior of the vehicle.

In New York v. Belton, 453 U.S. 454 (1981), the Supreme Court provided a bright line rule for automobile searches incident to lawful arrest. The Court acknowledged “that a lawful custodial arrest creates a situation which justifies the contemporaneous search without a warrant of the person arrested and of the immediately surrounding area.” Id. at 457. Such searches are justified because of the need to remove any weapons that the arrestee might use to resist or escape, and to prevent the concealment or destruction of evidence. Id.; see also Chimel v. California, 395 U.S. 752 (1969). The scope of the search must be strictly tied to and justified by the circumstances. Id.; see also Chimel, 395 U.S. at 762; Terry v. Ohio, 392 U.S. 1, 19 (1968).

The Court in Belton stated that it recognized that Chimel and other cases had not provided a workable definition of “the area within the immediate control of the arrestee” when the area arguably includes the interior of the automobile that the arrestee occupied just prior to arrest. Belton, 453 U.S. at 460. The Court held that when police have made a lawful custodial arrest of the occupant of an automobile, they may, as a contemporaneous incident of that arrest, search the passenger compartment of the automobile. Id. Containers found within the pas senger compartment of the car may be searched whether they are open or closed, id. at 461, but the Court specifically stated that its holding encompassed “only the interior of the passenger compartment of an automobile and [not] the trunk.” Id. at 460-61 n.4.

In this case Stout was arrested for possession of marijuana after police found a marijuana roach in plain view in the front seat of the station wagon. After arresting Stout, Palmer opened the hatchback, raised the flap that covered the spare tire compartment, smelled a strong odor of marijuana, and discovered the metal container that held 10.6 pounds of marijuana. In Baxter v. State, 274 Ark. 539, 626 S.W.2d 935, cert. denied, 457 U.S. 1118 (1982), we held, without discussion, that the hatchback area of an automobile qualifies as part of the “passenger compartment” under Belton. That holding appears to be the general construction of “passenger compartment” under Belton. See United States v. Russell, 670 F.2d 323 (D.C. Cir. 1982); Stevens v. State, 38 Ark. App. 209, 832 S.W.2d 275 (1992); State v. Delossantos, 559 A.2d 164 (Conn. 1989). Professor Wayne LaFave in his treatise on search and seizure suggests that the passenger compartment is to be read as all space reachable without getting out of the vehicle and without regard to the likelihood in the particular case that it was possible to reach the object. 3 Wayne LaFave, Search and Seizure §7.1(c), at 16-17 (2d ed. 1987 & Supp. 1994). In summary, the trial court correctly ruled that under the Fourth Amendment the search was justified as being incident to a lawful arrest under Belton.

Next, appellant asks this court to hold that, even if the search and seizure were valid under the Fourth Amendment, they were unconstitutional under article 2, section 15 of the Constitution of Arkansas. Of course, we could hold that the Arkansas Constitution provides greater protection against unreasonable searches than does the Constitution of the United States, but we see no reason to do so. The wording of each document is comparable, and through the years, in construing this part of the Arkansas Constitution, we have followed the Supreme Court cases. It seems especially appropriate to do so in this case because courts in the past had great difficulty in balancing the competing interests and, at the same time, setting out workable rules for search and seizure cases involving automobiles. See 1987 Unofficial Supplementary Commentary to A.R.Cr.P. Rule 12.4. Belton has provided a practical and workable rule for fourteen years, and we have followed it on many occasions. Consequently, we choose to continue to interpret “unreasonable search” in Article 2, section 15 of the Constitution of Arkansas in the same manner the Supreme Court interprets the Fourth Amendment to the Constitution of the United States.

Appellant next argues that the Arkansas Rules of Criminal Procedure provide greater protection against unreasonable searches than does the Fourth Amendment, see Cook v. State, 293 Ark. 103, 106, 732 S.W.2d 462, 464 (1987), and that under A.R.Cr.P. Rule 12.4, deputy sheriff Palmer could not have lawfully searched the area under the hatchback without probable cause. Appellant asserts that Palmer improperly searched the hatchback area because he only saw a marijuana roach, which, without more, is insufficient to establish probable cause. See State v. Villines, 304 Ark. 128, 801 S.W.2d 29 (1990). Standing alone, Rule 12.4 does provide a more narrow definition of a reasonable search than does Belton because it requires the officer who stops a vehicle to have a reasonable belief that the vehicle contains things which are connected with the offense. The State responds that Palmer had more cause than just the cigarette; he had the cigarette and the unbelievable statement that appellant had been in Texas for a week or two. Taken together, these two elements would give a reasonable suspicion that Stout was a “mule” carrying drugs. However, we need not decide the issue on that basis. Rule 12.1 provides the permissible purposes of search and seizure incidental to arrest and, although written in 1976, embraces the Belton rationale. It provides that an officer may, incident to a lawful arrest, conduct a warrantless search of the person or his (immediate) property in order to protect the officer; or to obtain evidence of the commission of the offense for which the accused has been arrested; or to seize contraband, the fruits of the crime, or other things criminally possessed or used in conjunction with the offense. A.R.Cr.P. Rule 12.1. The purpose for this rule is to allow the search of the passenger compartment of a car incident to a lawful custodial arrest for the officer’s protection.

Appellant parenthetically argues that our case of Burkett v. State, 271 Ark. 150, 607 S.W.2d 399 (1980), a pre-Belton case, held that under Rule 12.4 an officer cannot lawfully conduct a warrantless search of a vehicle after arresting the defendant for possessing a marijuana roach. We are not persuaded by the argument because of a significant difference in the two cases. The illegal search in the cited case was in the trunk of the car, and we held that it was conducted in violation of the Fourth Amendment. Our holding today would be consistent on those same facts. The case at bar involved the search of the passenger compartment of the car.

Appellant Stout next argues that the trial court erred in ruling that the seizure of the marijuana roach was admissible under the plain view exception to the general requirement of a search warrant. The requirements of the plain view exception are: (1) The initial intrusion must be lawful; (2) the discovery of the evidence must be inadvertent; and (3) the incriminating nature of the evidence must be immediately apparent. Johnson v. State, 291 Ark. 260, 263, 724 S.W.2d 160, 162 (1987). Here, there was substantial evidence for the trial court to find that the plain view exception applied. The officer testified at the suppression hearing that appellant consented to the search. It is well established that validly-obtained consent justifies an officer in conducting a warrantless search, with or without probable cause. See Joshua Dressier, Understanding Criminal Procedure § 88, at 177 (1991). If an officer discovers evidence during a warrantless “consent search” he may seize it without a warrant pursuant to the plain view doctrine. Id.

Appellant Stout next argues the discovery of the roach was not inadvertent. The inadvertence requirement of the plain view doctrine has generally been interpreted to mean that “immediately prior to the discovery the police lacked sufficient information to establish probable cause to obtain a warrant to search for the object.” Johnson, 291 Ark. at 263, 724 S.W.2d at 162. Inadvertence does not encompass total surprise or mean “unexpected.” Id. Here, the marijuana roach was discovered as the deputy sheriff looked into the car. The fact that the deputy was suspicious of marijuana use before finding the roach does not make the discovery inadvertent. See id. at 263, 724 S.W.2d at 162. In sum, the evidence of the marijuana roach was admissible under the plain view doctrine.

In his final argument appellant Stout contends that the trial court erred by refusing to rule that one of his witnesses was qualified to testify as an expert witness. The witness, a former marijuana grower who has special skills in the cultivation of marijuana and served as a drug education specialist in the United States Navy, is a member of the National Organization for Reform of Marijuana Laws, and was proffered as an expert to show that appellant possessed less than ten pounds of marijuana. The trial court refused to rule that he was an expert in weighing marijuana.

The qualification of an expert witness is within the sound discretion of the trial court and will not be reversed absent abuse. Dillon v. State, 317 Ark. 384, 877 S.W.2d 915 (1994). If there is some reasonable basis to find that the witness has knowledge of a subject beyond that of ordinary knowledge then witness may be qualified as an expert. Poyner v. State, 288 Ark. 402, 705 S.W.2d 882 (1986).

An element of the crime with which appellant was charged was that he possessed ten pounds or more of marijuana. See Ark. Code Ann. § 5-64-401 (Repl. 1993). When marijuana is weighed the stalks are excluded, but the stems and seeds are included. Appellant’s witness stated that he could identify marijuana by sight, knew the difference between a leaf and a seed, and knew how to grow it. However, he admitted that he is not a chemist, had no comparable education in chemistry, and was a drug counselor in the Navy over twenty years ago. He stated that he just had a general knowledge of the legal definition of marijuana. He admitted that any definition he would give would be paraphrasing what he had read in the Arkansas statutes. He could not say how his background related to weighing and distinguishing stalks and stems.

In Dillon, the trial court found that while a proffered expert’s experience might have been beyond that of persons who had no experience at all in the general area to which he would testify, it was not error to refuse to qualify him as an expert when his knowledge was below the standards of most recognized experts in the field. Dillon, 317 Ark. at 394, 877 S.W.2d at 920. Similarly, while appellant’s proposed expert witness might have more knowledge than the average citizen about marijuana cultivation, he admitted that he was not a chemist, was not intimately familiar with the legal definition of marijuana, and could not say how his experience related to the weighing of marijuana. The general test of admissibility of expert testimony is whether it will assist the trier of fact in understanding the evidence or determining a fact in issue. Utley v. State, 308 Ark. 622, 826 S.W.2d 268 (1992). As appellant did not show how the witness’s testimony would aid the jury in determining whether the marijuana weighed more than ten pounds, the trial court did not abuse its discretion in refusing to qualify him as an expert.

Affirmed.


author: David Newbern, Justice.

text:
    Charles R. BADER, as Father and Next Friend of Jennifer Nicole Bader, a Minor v. Gene LAWSON and Sharon Lawson, His Wife
    94-1440
    898 S.W.2d 40
    Supreme Court of Arkansas
    Opinion delivered May 22, 1995

      Annie Powell and Eddie N. Christian, for appellant.

      Jones, Gilbreath, Jackson & Moll, by: Robert L. Jones, III, and Charles R. Garner, Jr., for appellees.
   David Newbern, Justice.

Jennifer Bader, the eight-year-old daughter of the appellant, Charles Bader, was injured as the result of jumping off a trampoline belonging to Gene and Sharon Lawson, the appellees. Mr. Bader sued the Lawsons for negligence. The Lawsons contended Jennifer was a mere licensee to whom they owed only a duty not to engage in willful or wanton conduct. Mr. Bader contended Jennifer was an invitee to whom the Lawsons owed a duty of ordinary care. The Lawsons’ motion for summary judgment was granted. Mr. Bader contends summary judgment was improper due to remaining genuine issues of material fact. Ark. R. Civ. P. 56(c). We affirm the summary judgment.

The Baders and the Lawsons are neighbors. Mr. Bader and Mr. Lawson were in their front yards when Jennifer’s accident occurred in the Lawsons’ backyard. Mr. Bader was aware that Jennifer was using the trampoline. She was jumping on the trampoline with her two brothers, the Lawsons’ three children, and Mike Emmert, a friend of the Lawson family. Some of the children began jumping from the trampoline to the ground. When Jennifer attempted the same feat she fractured her left arm and dislocated her elbow.

Mr. Bader alleged the Lawsons were negligent in several respects including failing to supervise Jennifer while she was jumping on the trampoline, failing to warn Jennifer of the danger, providing a condition or activity which they knew or should have known involved a risk of harm to children, and providing a condition or activity which they reasonably should have known would attract children. In their answer denying liability the Law-sons admitted there was a warning sticker on the trampoline which stated “WARNING — USE UNDER PARENTAL SUPERVISION AT ALL TIMES.”

Attached to the summary judgment motion were excerpts of deposition testimony of Jennifer and of Charles Bader and Mr. Lawson. The Lawsons contended in their motion that there were no material issues of fact in dispute and no evidence supporting the allegations of negligence proximately causing the accident. Mr. Bader responded with an excerpt from Mr. Lawson’s deposition in which he admitted that Jennifer had permission to jump on the trampoline and that if he, Mr. Lawson, had been in the backyard he would have told the children to stop jumping from the trampoline onto the ground.

1. Jennifer’s status

Mr. Bader contends factual issues remain which are relevant to determining whether Jennifer was a licensee or an invitee. He bases the contention on deposition testimony that the children of the two families often entertained each other and that each family from time to time looked after the children of the other, thus conferring economic benefits on one another.

We have defined “invitee” as “one induced to come onto property for the business benefit of the possessor.” Lively v. Libbey Mem. Physical Med. Ctr., 311 Ark. 41, 841 S.W.2d 609 (1992); Kay v. Kay, 306 Ark. 322, 812 S.W.2d 685 (1991); Coleman v. United Fence Co., 282 Ark. 344, 668 S.W.2d 536 (1984). A “licensee” is one who goes upon the premises of another with the consent of the owner for one’s own purposes and not for the mutual benefit of oneself and the owner. Lively v. Libbey Mem. Physical Med. Ctr., supra; Tucker v. Sullivan, 307 Ark. 440, 821 S.W.2d 470 (1991).

In the Tucker case,-a young woman brought a negligence action against the man with whom she was living, claiming she was an invitee owed the duty of ordinary care. She contended the defendant benefitted from her presence as she made house payments and paid utility bills and other living expenses. We held summary judgment in favor of the defendant was proper because the plaintiff presented no evidence to show her presence at the defendant’s property was other than “primarily social.” Her claim of having conferred an economic benefit was certainly stronger than that asserted in this case by Mr. Bader.

We again decline to expand the “invitee’’ category beyond that of public or business invitee to one whose presence is primarily social. There is no factual dispute the resolution of which might result in a holding that Jennifer Bader was an “invitee” as we have defined the term.

2. Duty

• Mr. Bader also claims that, even if Jennifer’s status was that of a licensee, a material question of fact exists as to whether the Lawsons breached the duty of care which was owed to Jennifer. The question of the duty, if any, owed by one person to another is always a question of law and never one for the jury. Lovell v. St. Paul Fire and Marine Ins., 310 Ark. 791, 839 S.W.2d 222 (1992).

A landowner owes' a licensee the duty to refrain from injuring him or her through willful or wanton conduct. Lively v. Libbey Mem. Physical Med. Ctr., Inc. supra; King v. Jackson, 302 Ark. 540, 790 S.W.2d 904 (1990); Baldwin v. Moseley, 295 Ark. 285, 748 S.W.2d 146 (1988). To constitute willful or wanton conduct, there must be a course of action which shows a deliberate intention to harm or utter indifference to, or conscious disregard of, the safety of others. If, however, a landowner discovers a licensee is in peril, he or she has a duty of ordinary care to avoid injury to the licensee. The duty takes the form of warning a licensee of hidden dangers if the licensee does not know or have reason to know of the conditions or risks involved. Lively v. Libbey Mem. Physical Med. Ctr., Inc., supra; King v. Jackson, supra. None of these descriptions-of conduct applies to the Law-sons, given the evidence before the Trial Court.

3. Attractive nuisance

One who maintains upon one’s premises a condition, instrumentality, machine, or other agency which is dangerous to children of tender years by reason of their inability to appreciate the peril, and which may reasonably be expected to attract children of tender years to the premises, is under a duty tó exercise reasonable care to protect them against the dangers of the attraction. See Cooper, Adm’r v. Diesel Service Et. Al., 254 Ark. 743, 496 S.W.2d 383 (1973). That is the “attractive nuisance doctrine” which was effectively pleaded in Mr. Bader’s complaint but not addressed in the summary judgment motion or the Trial Court’s ruling. Mr. Bader asks that we remand the case for consideration of that point. We decline to do so.

In his response to the Lawsons’ summary judgment motion, Mr. Bader addressed only the matter of Jennifer’s status as a licensee or invitee and his allegation that the Lawsons were negligent in failure to supervise the children using the trampoline. No reference to the attractive nuisance doctrine appears.

In Oglesby v. Baptist Medical Sys., 319 Ark. 280, 891 S.W.2d 48 (1995), Ms. Oglesby alleged medical malpractice and battery resulting from an injection she was given, but which had not been prescribed for her, while she was a patient in the defendant hospital. Motions for partial summary judgment addressing the malpractice claim were granted and the case “dismissed” without consideration of the battery claim. Refusing Ms. Oglesby’s request that the case be remanded for consideration of the battery claim we said:

Common sense but also judicial economy dictate such a result in light of the fact that this issue could have been readily resolved by timely motion to the trial court.
Because no effort was made by Oglesby to move to obtain a ruling from the trial court based on its seeming failure to hear and determine the battery claim, we consider the issue waived. Parmley v. Moose, 317 Ark. 52, 876 S.W.2d 243 (1994).

By failing to raise the attractive nuisance claim in the context of the summary judgment motion and response, Mr. Bader waived it.

Affirmed.