author: Andree Layton Roaf, Justice.

text:
    AFFILIATED FOODS SOUTHWEST, INC. v. Fletcher B. MORAN et al.
    95-671
    912 S.W.2d 8
    Supreme Court of Arkansas
    Opinion delivered December 18, 1995

      Dover & Dixon, P.A., by; Steve L. Riggs, for appellant.

      Page & Thrailkill, by: Patricia Page and Henry Morris, for appellees.
   Andree Layton Roaf, Justice.

This case involves a question concerning the law of torts. Appellant, Affiliated Foods Southwest, Inc., is an Arkansas cooperative that sells groceries to its member shareholders at wholesale. Appellees Fletcher B. Moran and Thomas K. Moran operated a member grocery store in Mena, Moran’s Foodland, Inc. (Moran’s), which obtained groceries from appellant on open account. This case arose from an action filed by appellant against appellees as guarantors of a promissory note owed by Moran’s, after the grocery store had been placed in bankruptcy and sold. The appellees responded that appellant had acted in bad faith and filed a counterclaim for the amount appellant sought in its complaint against them. In a non-jury trial, the circuit judge found that appellees owed the unpaid balance due on the promissory note but also granted the appellees’ counterclaim in an equal amount to offset appellant’s award.

The appellant appeals from this judgment asserting the trial court erred in granting the counterclaim and in basing its opinion on a finding of bad faith on the part of appellant. We agree that the trial court erred and reverse.

a. Facts

Moran’s became a member of the appellant cooperative in 1986, and at that time established an open account for the purchase of inventory from appellant. Appellant filed a Uniform Commercial Code (UCC) financing statement in 1986, taking a security interest in Moran’s inventory of groceries and other merchandise, and in proceeds from sale of the collateral. By 1990, the open account had grown to $124,000, which was of concern to appellant. The $124,000 debt was set up as a promissory note with weekly payments of $627.00; appellees were required to personally guarantee this note. Moran’s was allowed to continue purchasing groceries on open account; appellees were not at any time required to guarantee the open account. In 1992, appellant refiled its financing statement taking a security interest in Moran’s equipment in addition to the inventory and cash collateral.

Moran’s continued to experience financial difficulties, and by the fall of 1992, although the balance due on the promissory note had been reduced to approximately $67,000, the open account had grown to $132,000. The appellees attempted to sell the store in October 1993 to two employees of a rival Mena grocery store, which was also a member/customer of appellant. This attempt was unsuccessful when, according to the testimony of appellees and the prospective purchaser, appellant reneged on the agreement to finance the purchase a few days before it was to be consummated and the purchasers were unable to obtain financing elsewhere.

Appellees contacted appellant on December 8, 1993, and advised that they could no longer continue to operate the store and requested that appellant pick up the inventory. According to the testimony of appellees, the inventory at that time was sufficient to pay off the indebtedness; however, employees of appellant ordered them to continue operation of the store and stated that appellant would assist in finding a purchaser. Appellees closed the grocery store about three weeks later after an inventory reduction sale, and Moran’s was placed in bankruptcy on January 4, 1994. The bankruptcy trustee later abandoned interest in the inventory and equipment of Moran’s to appellant. It was sold for $48,000, and all of the proceeds applied toward the unguaranteed open account.

In response to the complaint filed by appellant to collect the $64,000 balance due on the guaranteed promissory note, appellees acknowledged liability on the note but raised a number of defenses, including bad faith. Appellees also filed a counterclaim, in which they alleged that appellant became a partner in the business, or became an agent of appellees, by refusing to take merchandise (inventory) when offered and by directing appellees to continue operation of the grocery store, and that appellant caused the loss it complained of by accepting, then withdrawing, an offer by a third party to purchase the inventory.

After hearing the testimony, the trial court found that there was evidence that appellant acted in bad faith, stating:

But, it’s here for me to believe or not that Affiliated willfully and in bad faith, failed to go through with the financing for [the purchaser]. Now, they don’t have any obligation to do it, but once they start, then - and if they’re acting in bad faith which I think there’s some evidence of, I think it’s clear that — to me anyway, that they didn’t go through with it because they didn’t want to incur the wrath of another customer. I think that gives the Morans a defense.
Now, the Morans got themselves into a situation and I don’t know whose fault it was, I don’t think they were made to borrow the money at gun point by Affiliated, but having gotten into that situation, I believe Affiliated was — had some obligation to help them out and didn’t do so.

b. Tort of Bad Faith

On appeal Affiliated argues, and appellees concede, that we have limited the tort of bad faith to insurance cases. American Health Care Providers, Inc. v. O’Brien, 318 Ark. 438, 886 S.W.2d 588 (1994); Quinn Cos. v. Herring Marathon Group, Inc., 299 Ark. 431, 773 S.W.2d 94 (1989); Aetna Casualty & Surety Co. v. Broadway Arms Corp., 281 Ark. 128, 664 S.W.2d 463 (1983). We have said that “a claim based on the tort of bad faith must include affirmative misconduct by the insurance company, without a good faith defense, and that the misconduct must be dishonest, malicious, or oppressive . . .” and cannot be based on negligence or bad judgment but upon actual malice, “that state of mind under which a person’s conduct is characterized by hatred, ill will or a spirit of revenge.” Aetna Casualty & Surety Co., supra. Nevertheless, appellees suggest that the relationship of the parties is one of a wholesale vendor selling goods to a retail vendor and that the appellant also assumed the role of a “lender,” consequently the UCC requirement of “good faith” dealings provides a basis for affirming the trial court in this instance. Arkansas Code Annotated § 4-1-203 (Repl. 1991) provides: “Every contract or duty within this subtitle imposes an obligation of good faith in its performance or enforcement.” Good faith is defined as “honesty in fact in the conduct or transaction concerned.” Ark. Code Ann. § 4-1-201 (Supp. 1993).

We have considered the general good faith requirement found in § 4-1-203 and its predecessor, Ark. Stat. Ann. § 85-203 on three occasions. Adams v. First State Bank, 300 Ark. 235, 778 S.W.2d 611 (1989) (bank exercised right of set-off); Sullins v. Thrift Plan, Inc., 255 Ark. 655, 501 S.W.2d 781 (1973) (repossession and sale of automobile by secured creditor); Farmers Equip. Co. v. Miller, 252 Ark. 1092, 482 S.W.2d 805 (1972) (repossession and sale of tractor by secured creditor). However, we agree with appellant that failure to exercise good faith raises the issue of breach of contract and is not present in the instant case. Here, the only contract at issue between the parties is the promissory note; appellant did not contract with Moran’s, the appellees, or the prospective purchasers of Moran’s to finance the purchase of Moran’s by the third-party purchasers. Also, it is well settled that a holder of a promissory note has no duty to accept an offer of the collateral pledged by the maker of the note in lieu of payment; appellant accordingly was under no obligation to accept the inventory from the grocery store in order to discharge the debt owed on the promissory note. See Moore v. Luxor (North American) Corp., 294 Ark. 326, 742 S.W.2d 916 (1988); Storthz v. Commercial National Bank, 276 Ark. 10, 631 S.W.2d 613 (1982).

Appellees’ contention that the appellant ordered them to continue to operate the store, and in so doing, became a partner in the business is without merit. Appellant’s employee testified that he merely advised appellees to keep the store open because they were attempting to sell it and a going concern would have a higher value. Appellee Fletcher Moran testified that he considered this advice an “order” because the business inventory was used as collateral for the debt owed to appellant and he was trying to get them to come down and recover their merchandise. The burden of proving a joint venture rests on the party asserting the relationship, and it is generally understood that the relationship of borrower and lender does not establish a joint venture. Burge v. Pack, 301 Ark. 534, 785 S.W.2d 207 (1990).

Finally, appellant’s employee testified that the purpose of the promissory note was to clear the sizeable open account which was due immediately, and to give the appellees additional time to pay off the account, but that Moran’s continued to “go downhill.” He stated that although appellants had no obligation to find a buyer for Moran’s, they did try to assist them by sending several people who were interested in the store to Moran’s. He testified that “Basically we were trying to help Moran’s out to get them out of the store before they lost any more money.” In sum, appellees presented no evidence that the appellant was dishonest in its dealings with them concerning the promissory note.

We reverse and remand to the trial court for entry of judgment in favor of appellant and dismissal of the appellees’ counterclaim.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Guy C. BARNES v. STATE of Arkansas
    CR 95-1075
    912 S.W.2d 405
    Supreme Court of Arkansas
    Opinion delivered December 18, 1995

      Petitioner, pro se.
    No response.
   Per Curiam.

Guy C. Barnes tendered to this court a pro se petition for writ of mandamus in which he contended that the Circuit Court of Sebastian County had improperly refused to allow him to appeal as an indigent even though he filed a timely notice of appeal. With the petition for writ of mandamus, petitioner Barnes furnished an order of the circuit court entered April 18, 1995, denying relief pursuant to Criminal Procedure Rule 37. We presumed the notice of appeal was from that order. In an order entered August 9, 1995, the circuit court had directed that the notice of appeal and designation of record be stricken from the record and that the record not be prepared at public expense for an appeal unless a higher authority were to order it prepared.

Because there was no reason given in the order for striking the notice of appeal, it could not be determined why the notice of appeal was dismissed from the record. So that the ground or grounds for striking the notice of appeal could be determined, we treated the petition for writ of mandamus as a petition for writ of certiorari and directed the Circuit Clerk of Sebastian County, Ft. Smith District, to provide the record with respect to the Rule 37 petition which was denied on April 18, 1995.

The record has been received and the mandamus petition filed. The record reflects that the notice of appeal was filed by petitioner on August 3, 1995. Rule 4(a) of the Rules of Appellate Procedure provides that, to be effective, a notice of appeal must be filed within thirty days of the date an order is entered. It is likely that the trial court dismissed it because it was untimely as this court would do.

While we agree that the notice was untimely and, as a result, deny the petition for writ of mandamus, we take this opportunity to note that pursuant to Rule 3(b) of the Rules of Appellate Procedure a trial court cannot dismiss a notice of appeal, whether timely or untimely, without a proper stipulation of the parties or a motion to dismiss filed by the appellant. It is not within the authority of a trial court to pass on the validity of a notice of appeal and dismiss it sua sponte. At the least, a partial record suitable for tender to the appellate court should be prepared whereby the appellant may tender the record and allow the appellate court to determine whether the appeal should be lodged.

Petition for Writ of Mandamus Denied.


text:
    Willie BURTON, Jr. v. STATE of Arkansas
    CR 95-1234
    912 S.W.2d 11
    Supreme Court of Arkansas
    Opinion delivered December 18, 1995

      Marc Honey, for appellant.
    No response.
   Per Curiam.

Willie Burton, Jr., by his attorney, has filed a motion for a rule on the clerk.

His attorney, Marc Honey, admits in his motion that the record was tendered late due to a mistake on his part.

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

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


text:
    DIXON TICONDEROGA COMPANY v. WINBURN TILE MANUFACTURING COMPANY
    95-812
    911 S.W.2d 955
    Supreme Court of Arkansas
    Opinion delivered December 18, 1995

      Allen Law Firm, by: H. William Allen, for appellant.

      John E. Tull, III, for appellee.
   Per Curiam.

The appellant, Dixon Ticonderoga Co., filed its abstract and brief in this case. The Winburn Tile Manufacturing Co. filed the appellee’s brief. Prior to the time appellant’s reply brief was due, the appellant’s attorney realized that the abstract was insufficient to address an issue raised by appellee in its brief, and filed a motion asking that he be allowed to supplement appellant’s abstract. Since the case is not yet ready for submission, we grant the motion and allow the appellant fifteen days within which to file a substituted abstract and brief.

Rule 4-2(b)(2) of the Rules of the Supreme Court provides that, when it does not cause an unreasonable or unjust delay in the disposition of an appeal, an appellant’s attorney may be allowed time to revise his brief, at his own expense, to conform to Rule 4-2(a)(6); however, he may not simply address the new issue in his reply brief, as the rule requires that appellee be afforded the opportunity to revise or supplement its brief. Granting the motion in this case will not cause an unjust delay since the case is not yet ready for submission and other cases are ready for submission. Upon filing of the substituted abstract and brief, the appellee will be afforded an opportunity to revise or supplement its brief, at the expense of the appellant’s counsel.


text:
    Reginald JOHNSON v. STATE of Arkansas
    CR 95-1227
    911 S.W.2d 593
    Supreme Court of Arkansas
    Opinion delivered December 18, 1995

      Tell Hulett, for appellant.
    No response.
   Per Curiam.

Petitioner, Reginald Johnson, by his attorney, Tell Hulett, has filed a motion for rule on the clerk. His attorney admits that he untimely filed a notice of appeal in this cause due to a mistake on his part. Under our rules the notice of appeal was of no effect. Ark. R. App. R 4.

We will treat petitioner’s motion as one for a belated appeal which we grant upon counsel’s admission of error. We direct that a copy of this per curiam will be forwarded to the Committee on Professional Conduct. Woods v. State, 316 Ark. 705, 873 S.W.2d 563 (1994).


text:
    Paul G. MILLER v. George KING, Owner, George King Body & Frame; Detective Steve Scott, Fort Smith Police Department; Ron Fields, Prosecuting Attorney
    95-979
    912 S.W.2d 416
    Supreme Court of Arkansas
    Opinion delivered December 18, 1995
    Sebastian Circuit Court, Fort Smith District; John Holland, Judge; Pro Se Motion for Rule on the Clerk; denied.

      Petitioner, pro se.
    No response.
   Per Curiam.

This is a civil case. Paul G. Miller filed a pro se “complaint in equity” against three persons. Each of the three defendants filed a motion to dismiss the complaint, and the circuit court granted each of the motions with prejudice in separate orders, the last of which was entered June 19, 1995.

Plaintiff Miller filed an untimely notice of appeal of the three orders on July 27, 1995. When he tendered the record to this court, the clerk declined to lodge it. Miller subsequently filed the motion for rule on clerk which is now before us in which he contends that the record should be filed because he did not receive adequate notice that the complaint had been dismissed.

The motion is denied. It is clear that in a civil matter the plaintiff bears the responsibility of being aware of the proceedings and filing a timely notice of appeal if an adverse final ruling is entered. Karam et al. v. Halk, 260 Ark. 36, 537 S.W.2d 791 (1976). There is no provision for a belated appeal on the ground that the plaintiff was unaware that an order had been entered as is permitted in certain instances under Criminal Procedure Rule 36.9 in criminal cases.

Motion denied.


author: Per Curiam. Bradley D. Jesson, Chief Justice.

text:
    Donald B. PENNINGTON, et al. v. HARVEST FOODS, INC.
    95-732
    913 S.W.2d 758
    Supreme Court of Arkansas
    Opinion delivered December 18, 1995

      The Perroni Law Firm, P.A., by; Rita S. Looney and Samuel A. Perroni, for appellant Donald B. Pennington.

      Steven W. Quattlebaum, for appellants Billy J. Armstrong and Service Brokerage Co.

      Wilson, Engstrom, Corum & Coulter, by; Stephen Engstrom, for appellees.
   Per Curiam.

Nine defendants have appealed a judgment

obtained against them by Harvest Foods, Inc., in October of 1994. Harvest Foods has moved to dismiss the appeals of three of those parties, i.e., Donald B. Pennington, Billy J. Armstrong, and Service Brokerage Co., because their trial records were not filed in a timely manner. We agree. The Motion to Dismiss is granted.

The procedural history of this case is as follows:

October 25, 1994 Judgment entered after trial.
November 4, 1994 Pennington files Motions for New Trial and JNOV; Armstrong and Service Brokerage file Motions for New Trial
November 7, 1994 Other defendants file Motions for post-judgment relief; Armstrong and Service Brokerage file Motion for Remittitur.
December 7, 1994 Trial Court enters order denying all of the post-judgment motions filed by all defendants.
December 15, 1994 Pennington files Notice of Appeal
December 19, 1994 Armstrong and Service Brokerage file Notices of Appeal.
December 29, 1994 Oldner files Notice of Appeal
February 17, 1995 All defendants jointly move for seven-month extension pursuant to Rule 5(b). Motion specifies that extension until July 7, 1995 is desired.
February 22, 1995 Trial Court enters order granting the extension, but does not specify a date.
July 7, 1995 Record is filed.

Harvest Foods argues that, according to A.R.A.P. 4(c), the post-judgment motions filed by Mr. Pennington, Mr. Armstrong, and Service Brokerage were deemed denied on December 4, 1994. Accordingly, their seven-month extension to file their records could only last until July 5, 1995. In response, Mr. Pennington argues that the seven-month extension did not'begin to run until December 7, 1994, because on that date, the Trial Court disposed of the last of the post-judgment motions that were filed in the case. Likewise, Mr. Armstrong and Service Brokerage contend that their time to file the record should also be computed from December 7, 1994, because the order that was entered on that date, which effectively denied their Motion for Remittitur, was an order that was contemplated by A.R.A.P. 5(b).

Rules 4(b) and 5(b) of the Arkansas Rules of Appellate Procedure clearly indicate the interplay between the filing of post-judgment motions and the correct time for filing the record on appeal after a seven-month extension has been granted. Although these rules provide for extensions in both filing the notice of appeal and filing the record that is designated therein, their applicability is limited by the type of post-judgment motions that are filed. In particular, Rule 4(b) provides that the time for filing the notice of appeal shall be extended upon the filing of a judgment notwithstanding the verdict, a motion to amend the court’s findings of fact or to make additional findings, or of a motion for a new trial. Moreover, Rule 4(c) provides that if one of these motions is filed in a timely manner, the time for appeal for all parties shall run from the entry of an order disposing of the motion. However, if no such order is entered within 30 days of the filing of the motion, the motion will be deemed denied as of the 30th day. Similarly, the seven-month extension for filing the record in Rule 5(b) is unequivocally linked to the disposition of the motions listed in Rule 4(b): “In no event shall the time be extended more than seven months from the date of the entry of the judgment, decree or order, or from the date on which a timely post-judgment motion under Rule 4(b) is deemed to have been disposed of under Rule 4(c), whichever is later.”

In this case, the motions filed by Mr. Pennington, Mr. Armstrong, and Service Brokerage on November 7, 1994, are listed in Rule 4(b). However, according to Rule 4(c), they were “deemed denied” on December 4, 1994. Therefore, each of these parties had until July 5, 1995 in which to file their record. Although Mr. Armstrong and Service Brokerage filed Motions for Remittitur, they cannot claim December 7, 1994, as the starting date for their seven-month extension because such a motion is not contemplated by Rule 4(b).

Mr. Armstrong and Service Brokerage point out that Rule 4(c) permits all parties to file their notice of appeal after the post-judgment motions of only one of them have been disposed of, and they argue that this principle should carry over to Rule 5(b) regarding each party’s filing of the record on appeal. In other words, their argument is that if all parties can proceed from the same date in filing their notices of appeal, they should be able to do so when they seek a seven-month extension in which to file their records. That is not what the rules provide.

The procedural history of this case clearly indicates that Mr. Armstrong and Service Brokerage filed their record on July 7, 1995, the date which they believed, despite the clear language of our rules to the contrary, to be the last day of their seven-month extension. The language in Rule 4(c) to which they refer in their argument was meant to eliminate confusion over whether litigants in a multiple party action, in filing their notice of appeal, must proceed from the date of the judgment or the date upon which a post-judgment motion is disposed of. Because of the discretion each party has in designating the record on appeal, the same interpretation need not be given to Rule 5(b).

Motion granted. In addition, we note that Harvest Foods has filed a motion to stay its brief time regarding these appeals. Since we are dismissing the appeals, Harvest Foods’ request is now moot.

Jesson, C.J., Brown and Roaf, JJ., dissent.

Bradley D. Jesson, Chief Justice.

I disagree with the court’s decision in this case from both a practical standpoint and a legal standpoint.

Legally speaking, our ruling has the effect of depriving certain appellants in a multi-party case of the full seven-month period for filing the record, as allowed by ARAP Rule 5(b). For example, if a “timely” record had been filed in this case, in accordance with our Per Curiam, those appellants other than Pennington, Armstrong and Service Brokerage would have been required to file the record two days short of the seven-month period. There is, after all, only one record.

In this particular case, two sets of defendants filed post trial motions, following an October 25 judgment. Pennington, Armstrong and Service Brokerage filed their motion on November 4. It was deemed denied December 4. The other defendants filed a post-trial motion on November 7. In our conference, there was some confusion as to the timeliness of this motion. It was in fact timely, having been filed nine business days after the judgment. When the time period for filing is less than eleven days, weekends and holidays are not counted in the computation. ARCP Rule 6(a). So, this timely post-trial motion was denied by court order on December 7.

By the precise wording of ARAP 5(b), at least some defendants had until July 7 to file the record. Again, I point out, there is only one record in this case. The Per Curiam refers to the record to be filed by Pennington, Armstrong and Service Brokerage as “their record,” but that is misleading. There is not a separate record for each appellant.

In order that all appellants be accorded the full time extensions available to them, the record should be due on the latest date it is due for any one appellant, rather than the earliest. Our rules make such a provision for a multi-party situation in the filing of a notice of appeal. ARAP Rule 4(c). It was certainly reasonable for Pennington, Armstrong and Service Brokerage to infer that the same philosophy would apply with regard to filing the record, especially since there is no explicit provision in our rule governing this issue.

From a practical standpoint, I disagree with the harsh sanction of dismissal that has been imposed on three appellants. Despite the Per Curiam’s implication that our rules are clear in a case like this one, there is in fact no rule that addresses timeliness of the record filing in a multi-party situation. Additionally, this is the first time we have been called upon to interpret our rule in this regard. The record reflects that the parties have made a good faith effort to comply with our time requirements. Their late filing, if any, was not due to mistake, negligence, miscalculation or inadvertence, but to a very understandable interpretation of our rules. Unfortunately, this court has not agreed with that interpretation.

I would deny the motion to dismiss.

Brown and Roaf, JJ., join in this dissent.


text:
    Donald B. PENNINGTON, et al. v. HARVEST FOODS, INC.
    95-732
    913 S.W.2d 760
    Supreme Court of Arkansas
    Opinion delivered December 18, 1995

      The Perroni Law Firm, P.A., by: Rita S. Looney and Samuel A. Perroni, for appellant Donald B. Pennington.

      The Boswell Law Firm, by: Dennis Davis, for appellants John Oldner and John Oldner Consulting Services, Inc., d/b/a John Oldner Enterprises.

      Dodds, Kidd, Ryan & Moore, by: Greg Alagood, for appellants Joel Tumbleson, Sr., and Soundra Tumbleson.

      David H. Williams, for appellants Joel Tumbleson, Jr., T.S.P., Inc., and Top Spread, Inc.

      Steven W. Quattlebaum, for appellants Billy J. Armstrong and Service Brokerage Co.

      Wilson, Engstrom, Corum & Coulter, by: Stephen Engstrom, for appellees.
   Per Curiam.

Some of the appellants in this case, namely, John Oldner, John Oldner Consulting Services, Inc., d/b/a/ John Oldner Enterprises, Joel Tumblson, Sr., and Soundra Tumblson, Joel Tumblson, Jr., T.S.P. Inc., Billy Armstrong, and Service Brokerage, have filed motions to settle the record. In a per curiam opinion issued this date, we have dismissed the appeals of Mr. Armstrong and Service Brokerage. The motions of the other appellants are granted.

The motions explain that certain exhibits, which formed the basis of the testimony of several witnesses, were lost in the transfer from the temporary court quarters in the KARK building to the Pulaski County Courthouse. The motions and responses also indicate that the record can be settled through the inclusion of photocopies of each of the exhibits. The parties request that a writ of certiorari, returnable within 30 days, to the lower court to settle the record.

The writ is granted and the briefing time for each of these parties is stayed until 15 days after the writ is returned.


author: Robert H. Dudley, Justice.

text:
    Richard Alan FRANA v. STATE of Arkansas
    CR 95-605
    912 S.W.2d 930
    Supreme Court of Arkansas
    Opinion delivered January 8, 1996

      Doug Norwood, for appellant.

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

Appellant was arrested and issued citations for driving while intoxicated, improper lane change, and violation of the implied-consent law. The citations were filed as three separate cases in the Municipal Court of Bentonville. Appellant pleaded not guilty to all three charges, but subsequently appeared, and a judgment of conviction was entered on the court’s docket by use of a rubber stamp and with the blanks filled in, which reflects that appellant entered a plea of guilty to the DWI charge. The municipal court docket sheet does not show that he entered guilty pleas on either of the other charges, or that he was tried for either of them. It reflects that they were “merged.” Appellant filed a notice of appeal to the circuit court, which appealed only the DWI case.

Over appellant’s objection, the circuit court ruled that appellant would be tried de novo on all three charges. A jury found appellant not guilty of improper lane change and guilty of violation of the implied-consent law, but was unable to reach a verdict on the DWI charge. Appellant appeals from the conviction in circuit court of violation of the implied-consent law. We affirm.

Appellant raises four points of appeal, but, in oral argument before this court, acknowledged that Cook v. State, 321 Ark. 649, 907 S.W.2d 672 (1995), recently decided three of the points. As a result, we do not discuss those three points.

In his remaining point of appeal, appellant contends that the procedure in circuit court, which forced him to stand trial for violation of the implied-consent law, violated the Double Jeopardy Clause. We affirm on this point because the record neither shows that appellant was threatened with multiple punishments for violation of the implied-consent law nor shows that there was a threat of successive prosecutions on the charge. See State v. Schaub, 310 Ark. 76, 832 S.W.2d 843 (1992). The record does not show that appellant was either convicted or acquitted of this charge in municipal court. It only shows that he pleaded not guilty and the charge was “merged.”

The record does not show how the term “merged” was used in municipal court, and we will not speculate about its use. The term is ordinarily used when lesser-included offenses are merged into greater offenses. See Ark. Code Ann. § 5-1-110 (Repl. 1993); and see, e.g., Withers v. State, 308 Ark. 507, 825 S.W.2d 819 (1992); Burks v. State, 293 Ark. 374, 738 S.W.2d 399 (1987). However, in this case, violation of the implied-consent law was not a lesser offense included in driving while intoxicated, and the offense of driving while intoxicated is not a lesser-included offense of violation of the implied-consent law, and they are not based on the same conduct. Driving while intoxicated is operating or being in actual physical control of a motor vehicle while intoxicated or while having one-tenth of one percent (0.10%) or more by weight of alcohol in the person’s blood. Ark. Code Ann. § 5-65-103 (Repl. 1993). Any person who operates a motor vehicle is deemed to have consented to having his blood, breath, or urine tested for alcohol or controlled substances if the driver is arrested for driving while intoxicated or driving while there was one-tenth of one percent (0.10%) or more of alcohol in the person’s blood, or other provisions not applicable to this case. Ark. Code Ann. § 5-65-202 (Repl. 1993).

From the above it can be seen that driving while intoxicated and violation of the implied-consent law are not the same offenses, one is not a lesser-included offense of the other, and they would not be “merged” in the ordinary use of the word. In short, the record does not reflect that the Double Jeopardy Clause was violated.

Affirmed.


author: David Newbern, Justice.

text:
    Judy BRISCOE v. STATE of Arkansas, Arkansas Department of Human Services
    95-524
    912 S.W.2d 425
    Supreme Court of Arkansas
    Opinion delivered January 8, 1996

      Mary M. Rawlins, for appellant.

      Deborah Cooksey Avillion, for appellee.
   David Newbern, Justice.

Judy Briscoe is the mother of John W. Briscoe who was born in 1986. Ms. Briscoe appeals from a decision terminating her parental rights with respect to her son. She argues the Trial Court erred by failing to notify her of her right to representation by an attorney and by failing to provide an attorney upon her request to be represented. We agree it was error for the Trial Court to have failed to honor Ms. Briscoe’s request for an attorney at one of the several review hearings, but we affirm the decision because she was represented by counsel in the hearing which resulted in the decision now on appeal.

The case originated in June 1991 when John Briscoe was taken to a hospital with a laceration and puncture wounds. He reported that his mother had pushed him, causing him to fall and sustain the injuries. The Department of Human Services (DHS) obtained an order for emergency custody based on its allegation that John was a dependent-neglected child. See Ark. Code Ann. § 9-27-303(12) (Supp. 1995). Thus began a long series of hearings, and reviews with the development by DHS of a case plan, the object of which was to reunify John and his mother while custody remained with DHS and John was placed in foster care.

John’s father, Tyrone Briscoe, lived apart from the family and played a part in the proceedings but ultimately conceded that he was not capable of caring for his son and consented to the termination of his parental rights. The Briscoes were divorced prior to the termination hearing, and Tyrone Briscoe is not a party to this appeal.

The original emergency custody order which named Judy and Tyrone Briscoe as defendants specified that they had the “right and opportunity to obtain legal counsel” and that a request could be made to the Court to appoint legal counsel “if indigent.” The Briscoes were represented at the outset by an attorney who appeared on their behalf through the issuance of a review hearing order dated October 14, 1991. The attorney thereafter asked to be relieved of representation because of a conflict which had arisen between the Briscoes. He was relieved by the Court in December 1991.

The case proceeded as a dependency-neglect matter. The Briscoes were allowed supervised visitation. At a hearing held in September, 1992, there was testimony from the DHS family services worker assigned to the case that in his opinion Ms. Briscoe would not be able to care for John despite the efforts being made through counseling and parenting skills education. Ms. Briscoe was asked if she wished to testify, and she replied, “I’d like to have an attorney.” She confirmed that she did not want to testify, but she was put on the witness stand and questioned by counsel for DHS. The social services worker, through testimony, asked the Court to be allowed to change the case plan to one seeking guardianship of John with a termination-of-parental-rights hearing as the final object. The Court agreed.

Review hearings continued through 1993 and 1994, and Ms. Briscoe appeared at them without an attorney. There was testimony about attempts by DHS to counsel both Mr. and Ms. Briscoe as well as reports on John who was making slow progress, through medication and counseling, toward overcoming serious behavior problems resulting from his hyperactivity and attention deficit symptoms. Evidence developed that, despite her refusal to acknowledge it, Ms. Briscoe had at least five other children who were in the custody of the Texas counterpart of DHS.

A termination hearing began in December 1994 but was stopped when the Court realized that Ms. Briscoe was without counsel. The hearing was rescheduled for January 1995 with counsel appointed for Ms. Briscoe. At this final hearing, all the evidence, beginning with the 1991 incident, was presented. Arkansas Code Ann. § 9-27-316 (Repl. 1993) provides in part:

(f)(1) In all proceedings to terminate parental rights or remove custody of a juvenile from a parent or guardian, the parent or guardian shall be advised at his first appearance before the court of the right to be represented by counsel at all stages of the proceedings and the right to appointed counsel if indigent.
(2) Upon request by a parent or guardian and a determination by the court of indigency, the court shall appoint counsel, and if an attorney other than the public defender is appointed, the court shall award a fee and costs from the Juvenile Court Representation Fund in an amount not to exceed the amounts provided by law for appointment of counsel for indigent defendants in criminal cases.
* * *
(h) Appointment of counsel shall be made at a time sufficiently in advance of the court appearance to allow adequate preparation by appointed counsel and adequate consultation between the appointed counsel and the client.

The proceedings began as proceedings to “remove custody,” and the hearings had to do with whether Ms. Briscoe should remain without custody of her son. We have no doubt the statute applied, and Ms. Briscoe was entitled to notice of her right to counsel. The record does not show that Ms. Briscoe was advised at the “first appearance” of her right to counsel other than through the emergency order of which she may or may not have been aware, but the notice point is moot due to the fact that she appeared with counsel at the first two hearings.

Of far greater concern is the Trial Court’s allowing a hearing to proceed and holding later ones after Ms. Briscoe had asked to have an attorney represent her. The statutory provision of the right to an attorney, and to the appointment of one for an indigent person, is obviously mandatory. It was error to allow the hearing at which she asked for an attorney to proceed and to require Ms. Briscoe to testify absent representation. We con-elude, however, that the error was harmless.

The final termination hearing aired all the evidence which had been presented in the earlier dependency-neglect hearings and the hearings leading up to the termination. Ms. Briscoe was represented in the termination hearing and given an opportunity to challenge the evidence against her and to present evidence on her own behalf with the full assistance of counsel. Her counsel had an opportunity at the final hearing to challenge any of the evidence against Ms. Briscoe and to present any evidence she might not have thought to present in previous hearings when she was not represented.

We emphasize that the statutory requirement that counsel be provided when the issue is termination of parental rights is mandatory. We decline to reverse only because we conclude that, in the limited circumstances of this case, the error of failing to provide counsel in earlier hearings was cured by the provision of counsel in the final hearing in which the entire case against Ms. Briscoe was presented.

Affirmed.


text:
    Anthony L. COLE v. STATE of Arkansas
    CR 95-877
    913 S.W.2d 255
    Supreme Court of Arkansas
    Opinion delivered January 8, 1996

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

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

Anthony Cole was convicted of first-degree murder and sentenced to 37 years imprisonment. He contends the evidence showed conclusively that Germaine Brown, who testified against him, was an accomplice as a matter of law and the other evidence was insufficient to corroborate Germaine Brown’s testimony. We conclude the Trial Court properly instructed the jury to determine whether Germaine Brown was an accomplice. Mr. Cole also argues certain hearsay evidence was improperly admitted. We find no error and affirm.

Ronald Brown was shot and killed as he stood on the porch of a residence in Little Rock. Anthony Cole and Arlantus White were charged with capital murder. At Cole’s trial, the State proceeded on a theory that Mr. White was the “trigger man” in the crime, and Mr. Cole was his accomplice.

1. Accomplice determination

Germaine Brown was with a group of men, including Cole and White, on the night of the shooting. Germaine Brown testified Cole wanted to “get” Ronald Brown. The group followed the victim until he went into a residence. They waited outside.

At one point Mr. Cole approached the residence. Two women who were present inside with the victim said Cole warned them what was to happen. After he returned to the group outside, Cole told Germaine Brown to go into the residence to get Ronald Brown to come out. Germaine Brown said he at first refused, but did as he was told after White insisted while holding a gun. Ronald Brown came out onto a porch where White shot him. Germaine Brown said he refused to go up to the porch with the others as he wanted nothing to do with the shooting. He did not see the shooting directly, but knew what was happening because he could see shadows of the participants around the corner of a building. All of the men who had been in the group, including Germaine Brown, then ran away.

The defendant bears the burden of proving that a witness is an accomplice whose testimony must be corroborated. Nelson v. State, 306 Ark. 456, 816 S.W.2d 159 (1991); Scherrer v. State, 294 Ark. 287, 742 S.W.2d 884 (1988). An accomplice is one who, with the purpose of promoting or facilitating the commission of an offense, either solicits, advises, encourages, or coerces the other person to commit it, or aids, agrees to aid or attempts to aid the other person in planning or committing it, or fails to make a proper effort to prevent the commission of the offense, provided he has a legal duty to prevent it. Ark. Code Ann. § 5-2-403 (1987); Pilcher v. State, 303 Ark. 335, 796 S.W.2d 845 (1990). Mere presence at the scene of the crime does not make one an accomplice. Spears v. State, 280 Ark. 577, 660 S.W.2d 913 (1983); Vickers v. State, 313 Ark. 64, 852 S.W.2d 787 (1993).

Germaine Brown testified that when the police arrived to investigate the incident, he remained silent because he felt threatened by White and Cole. He went to the police the next day to report the crime.

The testimony of other witnesses indicated the extent of Germaine Brown’s involvement in the murder and his fear of Cole and White. Tonya Rogers testified that Germaine Brown did not want to talk to the police at first because “he was scared for his life.” Diane Delph, who was in the apartment when Germaine Brown entered to speak to Ronald Brown, testified that Germaine Brown said that “Boo (Mr. Cole) and them say get that boy named Ron out the house, or else they’re going to shoot up in there.” Paul Humphrey, who took Germaine Brown to the police station, testified that after the murder, Germaine Brown seemed “upset and scared.”

The Trial Court did not err by refusing to declare Germaine Brown an accomplice as a matter of law. The evidence was such that it was appropriate for the jury to decide whether his participation was under duress, see Ark. Code Ann. § 5-2-208 (Repl. 1993), and thus that it was not his purpose to aid in the commission of the crime.

2. Hearsay

Germaine Brown’s testimony included the following:

PROSECUTOR: After y’all stopped running, do you recall Arlantus White and the Defendant, Anthony Cole, having a conversation?

MR. BROWN: Yes, sir.

PROSECUTOR: What was that conversation?

MR. BROWN: Well, Arlantus said, “I told y’all I was going to kill him.”

[Objection from Defense Counsel]

PROSECUTOR: And what did Anthony Cole, Boo, say when Arlantus White said “I told you I was going to kill him?”

MR. BROWN: You done a good deed.

Counsel objected to this line of questioning on the basis that the statement made by Mr. White, “I told y’all I was going to kill him,” was hearsay. The State responded that the statement was not hearsay because it was made by a co-defendant in the furtherance of a conspiracy. The Trial Court overruled Mr. Cole’s objection. Mr. Cole argues that the Trial Court erred when he allowed Mr. Brown to testify that Mr. White had said, “I told y’all I was going to kill him.”

As the statement in question allegedly was uttered after the murder occurred it was not “in furtherance” of a crime. See Brazel v. State, 296 Ark. 563, 759 S.W.2d 563 (1988). The State, citing Mock v. State, 20 Ark. App. 72, 723 S.W.2d 844 (1987), and Russell v. State, 18 Ark. App. 45, 709 S.W.2d 825 (1986), now argues the statement was admissible to provide a context for Mr. Cole’s statement, “You done a good deed,” which is an admission by a party-opponent.

Arkansas R. E. 801(c) defines “hearsay” as a statement, other than one made by the declarant while testifying at a trial or hearing, offered in evidence to prove the truth of the matter asserted. In this case, Mr. White’s statement was not hearsay because it was not offered for the truth of the matter asserted.

Some Out-of-Court Utterances Which Are Not Hearsay.

. . . Utterances and writing offered to show effect on hearer or reader. When it is proved that D made a statement to X, with the purpose of showing the probable state of mind thereby induced in X, such as being put on notice or having knowledge, or motive, or to show the information which X had as bearing on the reasonableness or good faith or voluntariness of the subsequent conduct of X, or anxiety, the evidence is not subject to attack as hearsay. . . .

McCormick on Evidence, § 249, pp. 733-34 (3d Ed. 1984).

The statement was admissible because it tended to show the effect on the listener, i.e., instigating Mr. Cole’s immediate response showing his approval of the shooting and tending to prove Mr. Cole’s status as an accomplice.

Affirmed.


author: Tom Glaze, Justice.

text:
    FOXSMITH, INC. v. COCA-COLA BOTTLING COMPANY of Northeast Arkansas
    95-815
    912 S.W.2d 923
    Supreme Court of Arkansas
    Opinion delivered January 8, 1996

      James F. Lane, for appellant.

      Richard Downing, P.A. and Williams & Anderson, by: John E. Tull, III and Leon Holmes, for appellee.
   Tom Glaze, Justice.

Appellant Foxsmith, Inc., an Arkansas corporation operating a restaurant known as East End Cafe, sued appellee Coca-Cola Bottling Co. of Northeast Arkansas and other defendants/appellees, doing business as licensed distributors, selling soft drinks to Arkansas retailers. Foxsmith alleged that, as a retailer that purchased soft drinks, it had been unlawfully subjected to the Arkansas Soft Drink Act, Ark. Code Ann. §§ 26-57-901—909 (Supp. 1993). Specifically, Foxsmith references § 26-57-904(b)(2), which in relevant part provides that a retailer shall not be subject to this tax, if the retailer purchases soft drinks from a supplier licensed under § 26-57-909. Under § 26-57-909(a), a licensed supplier includes distributors, wholesalers, or manufacturers of soft drinks located within or without Arkansas, who are licensed by the Director of the Department of Finance and Administration (DFA), and sells soft drinks to retailers in the state. Coca-Cola Bottling is such a licensed distributor.

Foxsmith’s primary argument, both below and now on appeal, is that Foxsmith was unlawfully made subject to the tax when Coca-Cola Bottling submitted its invoice for Foxsmith’s soft-drink purchases and the invoice included an itemized or separate charge labeled, “Drink Excise Tax . . . $20.00.” Coca-Cola Bottling filed a motion for summary judgment below, stating that such a separate itemization of the tax did not make Fox-smith “subject to” the soft-drink tax, and therefore Foxsmith’s complaint should be dismissed with prejudice. The trial court granted the summary judgment motion, and because we find no merit to Foxsmith’s argument, we affirm.

Section 26-57-906(a)(l) of the Soft Drink Act provides effectively that the tax shall be paid by the licensed distributor when the soft drink is sold, and under § 26-57-906(b), the distributor shall file a monthly return and remit the tax for the month to the DFA director on or before the fifteenth day of the month following the sale. In addition, the Act nowhere prohibits the soft-drink tax from being passed on to retailers like Fox-smith. In fact, DFA’s regulations authorize licensed distributors to pass the tax on to the retailer. In its argument, Foxsmith even concedes the Act allows the tax to be passed on to the retailer. See Soft Drink Tax Regulation — 1993-8 C. 2. Accordingly, by memorandum DFA informed all Arkansas licensed soft-drink distributors that, as the parties or sellers responsible for collecting the tax, they had the option of (1) including the tax in the cost of the product or (2) separately stating the tax on the invoice or document of sale. (Emphasis added.) Foxsmith seems only to take issue with this separate listing of the tax on the sale invoice, but Foxsmith is unclear as to how such an itemization makes it unlawfully “subject to” the tax under the Act. On the other hand, the DFA has made it fundamentally clear that it interprets the Act to permit distributors to pass on the tax by showing it separately on sale invoices, and that Agency’s construction of the Act shall not be overturned unless it is clearly wrong. Douglass v. Dynamic Enter., Inc., 315 Ark. 575, 869 S.W.2d 14 (1994).

We agree with Coca-Cola Bottling’s construction of the Act that being “subject to” the tax means the one who must file a monthly return and remit the tax to the state. In addition, Foxsmith simply fails to demonstrate that any material issue of fact exists, nor does it offer any sound or convincing legal argument that DFA’s regulation and interpretation of the Soft Drink Act is wrong. Because the Act and DFA’s regulations authorize licensed distributors, like Coca-Cola Bottling, to pass the soft-drink tax on to retailers and to list the cost of the tax as a separate item on sales invoices, we reject Foxsmith’s argument and affirm the trial court’s dismissal of Foxsmith’s complaint.

       For simplicity, Coca-Cola Bottling will be named in this opinion, but it is representative of all other defendants/appellees since they are all similarly situated as to the issue raised and argued in the matter.


text:
    Edward Eugene WHITNEY, et al. v. HOLLAND RETIREMENT CENTER, INC.
    94-1232
    912 S.W.2d 427
    Supreme Court of Arkansas
    Opinion delivered January 8, 1996

      Michael W. Hawkins and Denny Hyslip, for appellants.

      Zurborg & Spaulding, by: Brian L. Spaulding, for separate appellant Phyllis Whitney Avalos.

      Arnold, Grobmyer & Haley, by: Jacob Sharp, Jr., and David H. Pennington, for appellee.
   Tom Glaze, Justice.

Leo Whitney, eighty-one years old, had been a patient at the Veterans Administration Hospital in Fayetteville, but afterwards was discharged and transported directly to the appellee Holland Retirement Center. During his stay at Holland, Leo left the premises sometime between 10:30 p.m. and 6:00 a.m., was unable to reenter the building because of locked doors, and died of hypothermia as a result of exposure to sub-freezing temperatures. Leo’s estate and certain family members brought suit against Holland, alleging Holland negligently (1) failed to instruct Leo on how to reenter the building, (2) admitted Leo without obtaining his medical records, and (3) failed to make itself aware of Leo’s special medical needs or problems. At a jury trial, Holland was found twenty-four percent negligent in causing Leo’s death and Leo was found nine percent at fault; the jury awarded the estate zero dollars, but it awarded Robert and Edward Whitney $3,000 and $2,500.

The Whitney estate moved for a new trial, alleging the jury erred in failing to award the estate any damages. The estate further argued the trial court erred during trial when it allowed David L. Moore’s deposition read into evidence. Moore is a clinical social worker at the VA Hospital, and he had referred Leo and family to Holland as an appropriate care facility for Leo. After the trial court denied the estate’s motion, the estate brings this appeal.

We first consider the estate’s argument that the trial court erroneously admitted Moore’s pretrial deposition into evidence. The events that led to this trial issue were as follows. Moore’s name had been on Holland’s witness list, but Moore did not appear when the trial commenced. Because of Moore’s failure to appear, Holland issued a subpoena directing Moore to appear in court to testify the next day. Moore again failed to appear. Holland explained to the trial court that VA regulations, entitled “Testimony of Department [of Veteran Affairs] Personnel and Production of Department Records in Legal Proceedings,” 59 Fed. Reg. 6564-6570 (1994), made it impossible for Holland to produce Moore as a live witness. During a recess, and with trial counsel present, the trial court telephoned the VA District General Counsel’s office, which informed the court that, if Moore appeared and testified at trial, Moore would violate the VA regulations. VA’s counsel informed the trial court that he had directed Moore not to obey the court’s subpoena.

When Holland asked that Moore’s deposition be read into evidence because of Moore’s unavailability, the estate objected, stating Holland should have subpoenaed Moore earlier. The estate also argued that, when Moore’s deposition was taken fourteen months prior to trial, the deposition was considered one of discovery and not for evidentiary purposes. The estate claimed that, if the deposition was admitted, it would be prevented proper and effective cross-examination of Moore.

Citing Ark. R. Civ. P. 32(a)(3)(D) and (E), the trial court allowed Holland to introduce Moore’s deposition into evidence. In sum, the trial court ruled Holland could use Moore’s deposition because Holland had been unable to procure Moore’s appearance. It also found that such exceptional circumstances existed as to make it desirable, in the interest of justice and with due regard to the importance of presenting Moore’s testimony in open court, to allow his deposition to be used. We hold the trial court ruled correctly.

We initially point out that, although not argued below, the estate now contends the VA regulations involved here do not prohibit a VA employee, like Moore, from testifying at a court proceeding, but instead only establish the procedure to follow when VA personnel are requested to provide testimony or to produce documents. The estate argues that Holland’s failure to follow the VA regulations in seeking Moore’s court appearance did not amount to an exceptional circumstance under Rule 32(a)(3)(E). We are unable to consider this specific argument since it was not presented to the trial court below. It is well settled that, if the grounds for an objection are changed on appeal, the argument is considered raised for the first time on appeal and the argument is waived. Cortinez v. Brighton, 320 Ark. 88, 894 S.W.2d 919 (1995).

The estate argued below, and argues now on appeal, that an implied agreement existed between the parties that Moore’s deposition was only for discovery purposes. The estate’s counsel claims this implied agreement was borne out by Holland never indicating until trial that Moore would not be called as a live witness. The estate relies upon Goodwin v. Harrison, 300 Ark. 474, 780 S.W.2d 518 (1989), which in relevant part related the following:

In Shelter Mutual Ins. Co. v. Tucker, 295 Ark. 260, 748 S.W.2d 136 (1988), we note that ARCP Rule 32 outlines the use of depositions; it does not distinguish between discovery depositions and evidentiary depositions. Yet, we know that members of the bar commonly describe depositions as being either discovery or evidentiary. Here, the parties and the court obviously thought that they were dealing with “discovery” depositions, and accordingly, there was an implied agreement that they were not evidentiary depositions and could not be used as evidence at the trial. Thus, appellant waived the literal wording of ARCP Rule 32.

In Goodwin, the parties’ and the trial court’s understanding before trial was that plaintiff’s counsel would not use a doctor’s discovery deposition as an evidentiary deposition. In view of this agreement and understanding, this court held the plaintiff had waived Rule 32 and therefore could not introduce the doctor’s deposition at trial. Here, we note that, unlike in Goodwin, the party seeking introduction of the witness’s deposition did attempt to subpoena the witness. In fact, the record reflects the witness, Moore, had received the subpoena, and except for VA regulations, would have appeared in court pursuant to the subpoena. Also unlike in Goodwin, the record here reveals the parties never limited the use of Moore’s deposition, nor did the trial court elicit from counsel that Moore’s deposition would not be utilized at trial. The trial court went to considerable trouble in determining whether Moore was available and in deciding whether exceptional circumstances existed warranting the admission of Moore’s deposition. We conclude that the trial court did not abuse its discretion in ruling as it did. See Ouachita Mining & Exploration, Inc. v. Wigley, 318 Ark. 750, 778 S.W.2d 526 (1994).

Before leaving this issue, we take this opportunity to reiterate that Rule 32 does not distinguish between discovery and evidentiary depositions. Rule 32 is essentially the same as Fed. R. Civ. P. 32, which has been construed to point out that any party, not only the party who took the deposition, may use the deposition of a witness, whether or not a party, for any purpose at the trial or hearing, if the party demonstrates to the court the existence of one of the conditions specified in Rule 32(a)(3). See Shelter Mut. Ins. Co. v. Tucker, 295 Ark. 260, 748 S.W.2d 136 (1988).

The estate’s second point of reversal is its claim that the jury erred in failing to award it any damages. The decedent’s daughter-in-law, Virginia Whitney, was the only witness testifying to the funeral expenses and costs incurred in handling the estate, and she testified that $4,000 was expended for Leo’s funeral and $4,000 to $5,000 was spent “to keep up” Leo’s property. Virginia’s husband, Robert, had been the initial representative of the estate but after he died, Edward was appointed the estate’s representative. As mentioned previously, the jury awarded Robert $3,000, Edward $2,500, and the estate nothing.

First, we find the abstract is not clear as to what expenses, if any, the estate actually incurred in this case. While it is true that the jury assigned some negligence on Holland’s part in Leo’s death, the only testimony abstracted concerning damages or expenses is that of Virginia Whitney, as mentioned above. When the estate’s counsel stated that he wished to elicit Virginia’s testimony to prove Leo’s funeral expenses and costs in maintaining Leo’s property, Holland objected, stating maintenance costs were not “an item of damage in this case.” The trial court allowed Virginia’s testimony, but stated it believed probate court was the proper venue for reimbursement of maintenance costs. In allowing Virginia’s testimony, the trial court said that it would later consider the jury instructions and the appropriate elements of damages. Those instructions, however, are not abstracted and the only testimony given by Virginia is, “We incurred expenses in the amount of $4,000 for the funeral bill” and “$4,000 to $5,000 for keeping up the property.” Virginia’s testimony reflects she and other family members paid $8,000 to $9,000 for funeral and maintenance expenses, but nothing in her testimony reflects what the estate was due. As stated above, Robert and Edward received a total of $5,500.

Generally, where the primary issue on appeal is the alleged inadequacy of the jury’s award, the appellate court will sustain the trial court’s denial of a motion for new trial unless there is a clear abuse of discretion. Garrett v. Brown, 319 Ark. 662, 893 S.W.2d 784 (1995). A jury has the right to believe or disbelieve all or any part of the testimony at trial and is in a superior position to judge the credibility of the witnesses. Williams v. Ingram, 320 Ark. 615, 899 S.W.2d 454 (1995). This is true even when the testimony is uncontradicted. See Garrett, 319 Ark. 662, 893 S.W.2d 784; Olmstead v. Moody, 311 Ark. 163, 842 S.W.2d 26 (1992).

Based upon the record before us, we cannot discern what the jury considered when awarding nothing to the estate. Concerning Leo’s funeral expenses and property maintenance costs, perhaps the jury found Robert and Edward had paid them and only they, and not the estate, should have received reimbursement. While other possibilities come to mind, it is sufficient to say that this court has held that it will not engage in speculation on how jury verdicts are reached. Garrett, 319 Ark. 662, 893 S.W.2d 784.

Because we find no reversible error, we affirm.

       The estate in this appeal does not question the jury’s assignment of negligence in the amount of thirty-three percent and its failure to account for the remaining sixty-seven percent.

       A Phyllis Whitney Avalos was separately denied any damages or award.

       While there were fourteen witnesses, the estate abstracted only Moore’s and Virginia Whitney’s testimonies. We also note that the estate limits its argument to the funeral and maintenance damages discussed in this opinion and never refers to other elements of damages.


author: Donald L. Corbin, Justice.

text:
    EQUITY FIRE AND CASUALTY COMPANY v. Gary NEEDHAM
    95-280
    912 S.W.2d 926
    Supreme Court of Arkansas
    Opinion delivered January 8, 1996

      Barrett & Deacon, by: Paul Waddell, and Davidson, Horne & Hollingsworth, by: Cyril Hollingsworth and William 5. Roach, for appellant.

      Henry, Walden & Halsey, by: Troy Henry and Clarke Mixon, for appellee.
   Donald L. Corbin, Justice.

Our standard for review of a summary judgment is whether the evidentiary items presented by the moving party in support of the motion left a question of material fact unanswered and, if not, whether the moving party is entitled to judgment as a matter of law. Baker v. Milam, 321 Ark. 234, 900 S.W.2d 209 (1995). We view all proof in the light most favorable to the party opposing the motion, resolving all doubts and inferences against the moving party. Id. When the facts are undisputed, we simply determine whether the movant was entitled to judgment as a matter of law. City of Little Rock v. Pfeifer, 318 Ark. 679, 887 S.W.2d 296 (1994).

The facts, construed in appellant’s favor, are as follows. On October 15, 1993, appellant issued an insurance policy to appellee for automobile liability coverage for the six-month period beginning on October 15, 1993. The policy premium, subject to adjustment as a result of appellee’s motor-vehicle report or other underwriting factors, was $414.00, plus a $5.00 policy fee. Appellee elected to pay the premium in installments, whereby he would pay one-third of the premium, $143.00, at the time of application, and would be billed for the remaining balance in four monthly payments. Appellee paid $143.00 to appellant’s local agent, Ms. Cheryl Cook, and was informed by her that he would receive the next payment-due notice in approximately fifty-five days.

Appellant mailed a notice, dated October 23, 1993, to appellee that billed him for an additional downpayment in the amount of $75.00, and informed him that, in accordance with the terms and conditions of his policy, his insurance would cease at 12:01 a.m. on November 5, 1993, if the payment was not received prior to that time. The $75.00 amount represented the one-third portion of appellee’s increased policy premium, as adjusted by appellant after appellee’s motor-vehicle report revealed prior traffic violations, which was allocable to the premium downpayment. The adjusted premium for the full six months’ coverage was $624.00. Appellee denies receipt of the October 23, 1993 billing/cancellation notice or, prior to the date of his accident, of any other communication from appellant or Ms. Cook regarding the $75.00 additional downpayment due or the cancellation of his insurance. Appellee did not tender the $75.00 payment to appellant.

On November 17, 1993, appellee was involved in an automobile collision, and upon reporting the accident to Ms. Cook’s office on that date, was informed that his insurance had been cancelled on November 6, 1993 for non-payment of the additional $75.00 premium downpayment. Appellee also received on November 17, 1993, written confirmation of the cancellation of his policy from Ms. Cook’s office.

On November 27, 1993, Ms. Cook received a check from appellant, dated November 11, 1993, which was payable to appellee in the amount of $63.00. Ms. Cook stated in her deposition testimony attached to appellee’s counter-motion for summary judgment that the $63.00 was for “the remaining amount that he had left on the policy because he failed to make the additional payment.” Ms. Cook mailed the refund check to appellee.

Appellee was contacted later by the insurance carrier for the other party to the automobile collision regarding appellee’s liability for the other party’s damages. After appellant’s denial of coverage, the instant litigation ensued.

Appellee’s counter-motion for summary judgment included his argument that Ark. Code Ann. § 23-89-303 (Supp. 1993), which sets forth grounds for cancellation, prohibited the cancellation or rescission of any automobile-liability policy that has been in effect for less than sixty days. In his supporting memorandum brief to the chancellor, appellee also argued that, even if the chancellor held that the additional premium was due, appellee had paid sufficient funds to buy coverage to the date of the collision if calculated on a prorated basis. In her deposition, Ms. Cook stated that if appellant had prorated the downpayment at the increased rate per day, then appellee’s policy was paid up until sometime after the date of his accident, November 17, 1993. A hearing was conducted in which both the statutory-construction issue and the pro-rata-payment issue were addressed.

By letter opinion dated November 14, 1994, the chancellor found, in pertinent part:

There is no claim of misrepresentation or fraud.
The sum of $143.00 paid to defendant’s agent by plaintiff on October 15, 1993, would constitute a sufficient amount to pay the premium on the policy in question through the period the accident occurred. ACA § 23-89-303 provides the grounds for cancellation including non-payment of premiums; however, §(b) provides that the grounds for cancellation do not apply if the policy had been in effect less than 60 days unless it is a renewal policy. It is, therefore, the Opinion of the Court that the policy in question was in effect on November 17, 1993, and defendant is bound by the terms and provisions of that policy.

On November 28, 1994, the chancellor’s order was filed granting summary judgment for appellee and incorporating the findings of fact set forth in the November 14, 1994 letter opinion.

Appellant’s sole point for reversal is that the trial court erroneously construed section 23-89-303 as prohibiting cancellation of appellee’s policy within sixty days of its issuance. Appellant argues that, pursuant to section 23-89-303(b), the statute is not applicable to this case because the cancellation was effected within six months of the policy’s issuance, and, therefore, the cancellation was governed solely by the terms and conditions of the policy. Appellee disputes this argument, and, in addition, argues that the judgment should be affirmed on the alternative ground that the chancellor found that the policy was in force on November 17, 1993, due to pro-rata application of appellee’s $143.00 premium downpayment.

Appellant does not address the merits of the chancellor’s ruling as regards pro-rata payment of the premium through the date of the accident. Appellant responds that it does not raise the pro-rata-payment issue on appeal and does not request this court to rule upon it because the issue is not dispositive of the case, and, therefore, is not proper for appeal. Appellant argues that the parties agreed that the statutory-construction issue was the threshold question in this case and that the issue of whether the premium was paid on a pro-rata basis through the date of the accident is not dispositive.

We disagree. Regardless of what the parties agreed was the threshold issue in this case, the chancellor indisputably ruled that: “The sum of $143.00 paid to defendant’s agent by plaintiff on October 15, 1993, would constitute a sufficient amount to pay the premium on the policy in question through the period the accident occurred.” In light of the fact that the sole reason for the cancellation was non-payment of premium, the chancellor’s finding that a sufficient premium was in fact paid invalidates the stated ground for the cancellation, and, thereby, renders moot the issue of whether the cancellation was also statutorily prohibited because it occurred within six months of the policy’s issuance.

In oral argument before this court, appellant’s counsel stated that the chancellor’s judgment was not based on the prorata-payment ruling as an alternative ground, and that the prorata-payment issue was not adequately developed below because the parties concentrated on the statutory-construction issue. These arguments are not persuasive on the facts. Further, it was up to appellant to obtain a ruling giving the basis of the chancellor’s ruling. Firstbank of Ark. v. Keeling, 312 Ark. 441, 850 S.W.2d 310 (1993).

As we have held many times, the burden is on appellant to bring up a record sufficient to demonstrate error, and, where appellant fails to meet that burden, the trial court must be affirmed. E.g., Troutt v. Matchett, 305 Ark. 474, 808 S.W.2d 777 (1991). Appellant fails to demonstrate that the chancellor’s ruling on the pro-rata issue is error. Appellant presents no authority or convincing argument contradicting the chancellor’s ruling on the pro-rata issue. The record, in fact, fails to reveal any citation to authority either supporting or contradicting the chancellor’s ruling on this issue. Arguably, however, authority for the chancellor’s ruling is found in National Union Fire Ins. Co. v. Want, 181 Ark. 824, 832, 28 S.W.2d 63, 66 (1930), a case that is cited by neither party, wherein this court stated:

[I]t is the law that, where a part payment is made and accepted on a premium which amounts to more than the premium then earned, and a loss occurs before the whole of the premium paid has been earned, there is a waiver of any forfeiture on account of a failure to pay the whole premium. This is an application of the simple principle that it would be inequitable to permit the insurer to receive and retain the insured’s money without giving him credit for it, and if credit is given it must be applied to extend the insurance for such proportionate time as the money received and held would pay.

Where appellant fails to cite any authority or present any convincing argument, and it is not apparent without further research that appellant’s position is well taken, we will affirm. Firstbank of Ark., 312 Ark. 441, 850 S.W.2d 310. We therefore affirm the judgment on the basis of the chancellor’s ruling on the pro-rata-payment issue.

Affirmed.


text:
    Benny REED v. STATE of Arkansas
    CR 95-392
    912 S.W.2d 929
    Supreme Court of Arkansas
    Opinion delivered January 8, 1996

      Vickery, Landers, & Lightfoot, P.L.L.C., by: John D. Lightfoot, for appellant.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant, Benny Reed, appeals a judgment of the Union County Circuit Court convicting him of possession of cocaine with intent to deliver and possession of drug paraphernalia and sentencing him to the Arkansas Department of Correction for forty years and ten years respectively. We granted his motion for rule on the clerk. Reed v. State, 320 Ark. 515, 899 S.W.2d 53 (1995) (per curiam). Our jurisdiction of this appeal is pursuant to Ark. Sup. Ct. R. 1-2(a)(2).

Appellant raises four points for reversal, all of which are claims that he received ineffective assistance of counsel at his jury trial. It is well established that claims of ineffective assistance of counsel may not be raised on direct appeal unless the issue was considered by the trial court, as on a motion for new trial. E.g., Pipkin v. State, 321 Ark. 511, 905 S.W.2d 827 (1995) (citing Sumlin v. State, 319 Ark. 312, 891 S.W.2d 375 (1995)). The rationale behind this rule of law is that an evidentiary hearing and finding as to the competency of appellant’s counsel by the trial court better equips the appellate court on review to examine in detail the sufficiency of the representation. Kanig v. State, 321 Ark. 515, 905 S.W.2d 847 (1995).

Appellant did not file a motion for new trial, nor did he raise the issue of his counsel’s ineffectiveness during trial. See Tisdale v. State, 311 Ark. 220, 843 S.W.2d 803 (1992). Because appellant failed to preserve below the issue of ineffective assistance of counsel, we affirm.


text:
    Earl WORDLAW, as Special Administrator of the Estate of Alberta Wordlaw, Deceased v. Pleaze LASTER and Oscar Laster, Jr., as Executors of the Estate of Oscar Laster, Deceased
    95-421
    912 S.W.2d 924
    Supreme Court of Arkansas
    Opinion delivered January 8, 1996

      Crockett & Brown PLLC, by: Richard Crockett, for appellant.

      William Reed, for appellee.
   Donald L. Corbin, Justice.

Appellant, Earl Wordlaw, as special administrator of the estate of Alberta Wordlaw, deceased, commenced this action in the Lonoke County Circuit Court against appellee, Pleaze Laster and Oscar Laster, Jr., as executors of the estate of Oscar Laster, for the fair-market value of the alleged use by appellee’s decedent, Oscar Laster, of certain farmland owned by appellant’s decedent, Alberta Wordlaw. Appellant’s decedent died during the pendency of this action in the trial court. Appellee’s decedent died during the pendency of this appeal. The trial court filed an order of revivor designating the present parties on April 12, 1995. Jurisdiction of this appeal is properly in this court pursuant to Ark. Sup. Ct. R. 1-2(a)(16).

By order filed on December 27, 1994, the trial court dismissed the present action on the basis of the doctrine of res judicata, having found that a trial in the England Municipal Court had involved the same issues and parties. This appeal arises therefrom.

The present action was commenced by complaint filed on March 23, 1994, by Earl Wordlaw, as guardian of the person and estate of Alberta Wordlaw, an incompetent. Appellant alleged that, by recorded partition deed dated November 2, 1936, Ms. Wordlaw acquired title in fee simple to a twelve-acre parcel of real property located in Lonoke County; that Ms. Wordlaw was confined to various Illinois state mental-health facilities for a total of forty-three and one-half years during the period from April 1943 to July 1992 due to mental illness or insanity; that Oscar Laster farmed Ms. Wordlaw’s property and derived income therefrom for the immediately-preceding forty years; and that Mr. Laster had refused to pay for the use of the property for those forty years. Appellant prayed for judgment in an amount necessary to compensate Ms. Wordlaw for Mr. Laster’s use of her property, plus interest, costs, and attorney’s fees, “all of which being in excess of that necessary for Federal Court jurisdiction.”

The municipal-court action was commenced by complaint filed by Earl Wordlaw, individually, and as attorney in fact for “all current owners for whom rental income is overdue, including Alberta Wordlaw,” against Oscar Laster in the England Municipal Court. The municipal-court complaint alleged that a written lease agreement was made by and between “Laster Estate/Oscar Laster — Administrator,” as lessor, and a third party, as lessee, for real property in Lonoke County that included a twelve-acre parcel jointly owned by Earl Wordlaw, his mother (Ms. Wordlaw), and his four siblings; that, pursuant to the lease agreement, rent was due on April 15, 1993, in the amount of $321.96; and that said rent had been collected by Mr. Laster who refused to make payment to the complainants. The municipal-court complaint also stated: “This action is for current, over-due rent only. It is noted, however, that Oscar Laster has failed to pay rent to the owner for many, many years.” By order filed on August 13, 1993, the municipal court awarded the complainants the sum of $321.96 plus court costs.

Appellant’s sole argument for reversal is that the present circuit-court action raises claims in tort or fraud that are outside the limited subject-matter jurisdiction of the municipal court, and, therefore, the municipal-court judgment does not bar the present action. We affirm the trial court’s judgment.

It is clear from reading the municipal-court complaint and the complaint in the case at bar that both complaints were brought to recover monies allegedly owed by Mr. Laster to Ms. Wordlaw for the use of her twelve-acre parcel, and that both complaints state one claim or cause of action. Both complaints allege the operative facts of Ms. Wordlaw’s ownership of the twelve-acre parcel, the use of that land by Mr. Laster, Mr. Laster’s receipt of income for that use, and his refusal to pay the income over to Ms. Wordlaw. The municipal-court complaint, in fact, expressly refers to the fact that Mr. Laster had failed to pay rent to Ms. Wordlaw for years. The lease agreement in the municipal-court action simply provided evidence of the sum certain owed for a portion of the property’s use.

Even construing the pleadings liberally so as to do substantial justice, we do not find that the present action raises claims in tort or fraud. ARCP Rule 8(f). Appellant fails to aver circumstances constituting the alleged fraud with particularity as required by ARCP Rule 9(b). Appellant nowhere names the nature of the tort alleged in his circuit-court complaint, but merely states in his brief to this court: “The remedies herein are in tort, whether the tort is called trespass, conversion, embezzlement, conversion, or breach of fiduciary duty.” Appellant did not plead deceit, or any form of fraud, or other tort. Thus, appellant’s argument for reversal is based upon a false premise, namely, that the circuit-court complaint raises claims in tort or fraud, and is therefore without merit. Columbia Mut. Ins. Co. v. Patterson, 320 Ark. 584, 899 S.W.2d 61 (1995).

The instant action and the municipal-court action are based on the same events and subject matter. Appellant’s unpersuasive attempt to characterize the legal basis for the present action as an action in tort or fraud does not alter that result. We have held that, when a subsequent suit is based on the same events and subject matter as that previously litigated and only raises new legal issues and seeks additional remedies, the trial court is correct to hold the subsequent suit is barred by res judicata. American Standard, Inc. v. Miller Eng’g, Inc., 299 Ark. 347, 772 S.W.2d 344 (1989); Swofford v. Stafford, 295 Ark. 433, 748 S.W.2d 660 (1988).

Affirmed.

Roaf, J., concurs.

       Attached to the complaint was a deed, dated December 28, 1992, conveying undivided interests in the twelve-acre parcel from Alberta Wordlaw to Alberta Wordlaw, Earl Wordlaw, and four other persons.


author: Robert L. Brown, Justice.

text:
    Eldridge Ray PARNELL v. STATE of Arkansas.
    CR 95-573
    912 S.W.2d 422
    Supreme Court of Arkansas
    Opinion delivered January 8, 1996

      Snellgrove, Laser, Langley, Lovett, & Culpepper, by: Todd Williams and Barrett & Deacon, by: D.P. Marshall, Jr., for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

The appellant, Eldridge Ray Parnell, was convicted of rape. He appeals on the basis that the State’s case was premised on his causing the crime of rape between his two adopted children and that what occurred between the two children did not constitute rape under Arkansas law. Accordingly, he maintains that he could not be guilty of the crime. We disagree, and we affirm the conviction.

The facts in this case were developed at Parnell’s trial. Audrey Parnell testified that she married Parnell in 1989 and he adopted her two children, B.P. and E.P., in 1991. Parnell worked as a radio dispatcher on the night shift at the Craighead County jail. Toward the end of July in 1993, Parnell suffered a work-related injury while attempting to lock up a prisoner and was off work for ninety days. During this time, he was home with the children.

On February 4, 1994, Audrey Parnell had a conversation with her son, B.P. She testified that her son told her that Parnell had forced him to have sex with his sister, E.P. At the time of these events, B.P. was age 9 or 10 and E.P. was age 8. When Audrey Parnell confronted Parnell by telephone with what B.P. had told her, he responded that he caught the kids “doing things with each other” in B.P.’s bedroom, and “he told them to go for it.” Following this conversation, she called the child abuse agency, SCAN, and removed the children from Parnell’s house. The next day, on February 5, 1994, she took the children to St. Bernard’s Hospital in Jonesboro for a physical examination. Later, she initiated divorce proceedings. The divorce was final by the time of Parnell’s trial.

Parnell was initially charged with sexual abuse in the first degree and sexual solicitation of a child less than age 14. The information was amended three months later to include a rape count.

B.P. testified at trial that Parnell “made me stick my front private part in my sister’s mouth.” He further testified that Parnell made him “put his front private in his sister’s back private.” He testified that this would occur in the afternoon when his mother was at work or at the mall or the store. He agreed that it happened more than 10 times. B.P. also testified that Parnell told them that if they told their mother, she would be put in jail and the children would go to a foster home. B.P. admitted that he eventually told his mother.

E.P. testified that Parnell made her perform oral sex on her brother and made her brother perform sex with her in her “back private.” She added, “He said if we didn’t do it, he would put us in jail.” E.P. testified that appellant made B.P. do this to her because she was “talking.” E.P. agreed that it happened more than five or six times. E.P. also testified that Parnell once summoned her into the bathroom and made her rub his penis. A nurse, Tracey Pilgrim, confirmed in her testimony that E.P. told her at the hospital essentially the same thing about sex with her brother.

Parnell moved for a directed verdict on all charges at the close of the State’s case and argued that the State had failed to prove the elements of rape, sexual abuse in the first degree, or sexual solicitation of a child. The trial court denied the motion for directed verdict on all counts. Parnell then took the stand in his own defense and denied that he ever caused B.P. and E.P. to have sexual relations. The jury convicted Parnell of rape and sexual abuse in the first degree, and he was sentenced to ten years imprisonment for rape and three years probation for sexual abuse.

Parnell first contends in this appeal that he had no notice prior to trial that the State would proceed on a complicity theory in establishing its case for rape. The facts in this case belie that contention. The criminal information expressly charged Parnell with rape by forcing his adopted children to engage in sexual relations. More importantly, though, Parnell’s counsel never argued his lack of notice of the State’s theory of the case to the trial court either by way of a motion for directed verdict or an objection to instructions. We do not entertain arguments raised for the first time on appeal. Hodges v. Gray, 321 Ark. 7, 901 S.W.2d 1 (1995); Arkansas Office of Child Support Enforcement v. House, 320 Ark. 423, 897 S.W.2d 565 (1995). This point, therefore, is not preserved for our review.

The crux of Parnell’s appeal centers on his argument that he cannot be guilty of causing rape if the two children themselves were not guilty of that crime. We begin by quoting pertinent parts of the statutory definition of rape:

(a) A person commits rape if he engages in sexual intercourse or deviate sexual activity with another person:
(1) By forcible compulsion; or
(2) Who is incapable of consent because he is physically helpless; or
(3) Who is less than fourteen (14) years of age.
It is an affirmative defense to prosecution under this subdivision that the actor was not more than two (2) years older than the victim. . . .

Ark. Code Ann. § 5-14-103 (Repl. 1993). The statute is precise in stating that one commits the crime of rape if he engages in sexual intercourse with a person who is less than 14 years of age.

In the instant case, B.P. was 9 or 10 at the time of his sexual relations with his sister, and E.P. was 8. Under our juvenile statutes, a 10-year-old may be subject to commitment as a juvenile delinquent for the crime of rape. Ark. Code Ann. § 9-27-303 (11) (Repl. 1993). But regardless of that fact, B.P. had clear defenses to any such charge because he acted under the duress of his adoptive father and because he was no more than 2 years older than his sister at the time of the sexual activity.

The fact that B.P. would not be guilty of a crime, however, does not inure to Parnell’s benefit. An Arkansas statute specifically embraces the circumstances of the instant case and expressly makes complicitous conduct a crime:

A person is made criminally liable for the conduct of another person when:
(3) Acting with the culpable mental state sufficient for the commission of the offense, he causes another person to engage in conduct that would constitute an offense but for a defense available to the other person.

Ark. Code Ann. § 5-2-402 (Repl. 1993); see also Ark. Code Ann. § 5-2-405 (Repl. 1993). A plain reading of § 5-2-402(3) renders Parnell criminally culpable irrespective of B.P.’s age defense or the fact that he acted only under duress. The trial court instructed the jury to this effect: “[Parnell] is criminally liable for the conduct of B.P. if, [Parnell] purposely, knowingly, or recklessly caused B.P. to engage in conduct that would constitute rape but for a defense available to B.P.” This is precisely what § 5-2-402(3) provides. As a result, the trial court committed no error in instructing the jury as it did.

Our statutory law, as codified at § 5-2-402(3), resembles § 2.06(2) of the Model Penal Code:

A person is legally accountable for the conduct of another person when:
(a) acting with the kind of culpability that is sufficient for the commission of the offense, he causes an innocent or irresponsible person to engage in such conduct

Model Penal Code § 2.06 (Am. L. Inst. 1985). The Comment to § 2.06(2) recognizes that the subsection is based on the universally recognized principle that one is no less guilty of the commission of a crime because he uses the overt conduct of an innocent agent. The Commentary to § 5-2-402(3), as originally codified at Ark. Code Ann. § 41-302 (Repl. 1977), specifically acknowledged § 2.06 of the Model Penal Code and this principle.

Our interpretation of § 5-2-402(3) in this matter is consistent with results reached in other jurisdictions. See Morrisey v. State, 620 A.2d 207 (Del. 1993); State v. Harvey, 736 P.2d 191 (Or. 1987); State v. Presley, 694 S.W.2d 867 (Mo. App. 1985). In Morrisey v. State, supra, the Delaware Supreme Court reviewed a case where a defendant was convicted of multiple counts of unlawful sexual intercourse for forcing two couples at apparent gunpoint to engage in various sexual acts. The defendant argued on appeal that the innocent couples were voluntary social companions and neither forced the other into sexual activity. The Supreme Court dismissed the defendant’s argument and looked both to Delaware law concerning complicitous conduct and to Model Penal Code § 2.06 in affirming the convictions. The Court stated:

It is well-established at common law that an individual is criminally culpable for causing an intermediary to commit a criminal act even though the intermediary has no criminal intent and is innocent of the substantive crime.

Morrisey, 620 A.2d at 211. The Court concluded that the innocent intermediaries were “viewed legally as only an instrumentality of the crime,” and that the defendant was the principal perpetrator. Id.

In State v. Harvey, supra, the defendant contended on appeal that he could not be convicted of rape for forcing his 14-year-old son to engage in sexual acts with his 11-year-old stepdaughter. The Oregon Court of Appeals agreed, but the Oregon Supreme Court reversed and reinstated the rape convictions. In doing so, the Supreme Court invoked an Oregon statute on complicity which is similar to ours in Arkansas and wrote that under the statute it “is no defense for the adult defendant that his juvenile son could not be criminally tried for first degree rape although an adult could be.” Harvey, 736 P.2d at 192.

And, finally, in State v. Presley, supra, the defendant was charged with rape for aiding and encouraging his 14-year-old stepson to have sexual intercourse with his adoptive daughter who was less than 14. The defendant argued that due to the age of his stepson, he could not be guilty of rape, but the Missouri Court of Appeals held that that fact did not absolve the defendant under Missouri statutes. The Court observed that Missouri’s complicity statute included, as a basis for liability, instances when a defendant causes an innocent person to commit the criminal acts.

The trial court, in the instant case, committed no error in ruling as it did.

Affirmed.


text:
    Damien ECHOLS v. STATE of Arkansas
    CR 94-928
    912 S.W.2d 11
    Supreme Court of Arkansas
    Opinion delivered January 8, 1996

      Winston Bryant, Att’y Gen., by: David R. Raupp, Asst. Att’y Gen., for appellee.
   Per Curiam.

Appellant Damien Echols was found guilty of three counts of capital murder and was sentenced to death on each of the three counts. His attorneys filed the record, abstracts, and briefs with the assignments of error including both the guilt-innocence and the penalty phases of the trial. Echols, acting pro se, filed a motion requesting that this court consider only the guilt-innocence points of appeal and not the arguments involving the death penalty. On July 17, 1995, we remanded the matter to the trial court for a determination of whether appellant had been advised by counsel of the consequences of abandoning the points of appeal concerning the death penalty and whether appellant was competent to make a rational decision about abandoning the death penalty arguments. Echols v. State, 321 Ark. 497, 902 S.W.2d 781 (1995).

Appellant has now filed a motion to withdraw his request that we not consider the death penalty issues and asks us to proceed with the full appeal. The Attorney General, in response, asks that we not yet recall the case, but instead asks that we leave the remand in effect for a factual determination by the trial court of appellant’s competency, for the reason that the “development of such a record will best protect the interests of the appellant and the State in future proceedings.” The response has merit. Thus, we leave the remand in effect and will proceed with the appeal when the trial-court certifies its findings to us.


text:
    Cleotis WILLIS v. STATE of Arkansas
    CR 95-1218
    912 S.W.2d 430
    Supreme Court of Arkansas
    Opinion delivered January 8, 1996

      Don G. Gillaspie, for appellant.
    No response.
   Per Curiam.

On June 12, 1995, Cleotis Willis filed a notice of appeal from his criminal conviction. Rule 5(a) of the Arkansas Rules of Appellate Procedure provides that a record shall be filed with this Court within 90 days of the filing of the first notice of appeal unless the time is extended by the trial court. Subsection (b) of the Rule provides that the trial court may extend the time for filing the record with this Court if the order of extension is entered before the expiration of the original filing period.

On September 11, 1995, which was the 90th day from the date the notice of appeal was filed, the Trial Court signed an order extending to October 11, 1995, the time for filing the record. Mr. Willis’s counsel, Donnie Gillaspie, attempted to lodge the record with this Court on October 11, 1995. The Clerk refused the record because the Trial Court had not acted to extend the time for lodging the record within the 90-day period prescribed by Rule 5. Mr. Gillaspie contends that, in view of the fact that both he and the circuit clerk’s office received facsimile copies of the Trial Court’s order extending the time on September 11, 1995, compliance with the Rule was had. Rule 5(b) provides, however, that the order of extension must be “entered” within .the 90-day period. The order was not entered and file marked by the Circuit Clerk until September 12, 1995; therefore, it was not timely.

Mr. Gillaspie has admitted, as an alternative to his argument that the record was lodged in a timely manner, that he was negligent in not having the record filed on time. The motion for rule on the clerk is granted, and a copy of this opinion will be forwarded to the Committee on Professional Conduct. Harkness v. State, 264 Ark. 561, 572 S.W.2d 835 (1978).