author: Jack Holt, Jr., Chief Justice.

text:
    McKinsey DeWayne DAVIS v. STATE of Arkansas
    CR 94-898
    893 S.W.2d 768
    Supreme Court of Arkansas
    Opinion delivered February 27, 1995

      Thomas A. Potter, for appellant.

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

A single issue is argued in this interlocutory appeal: whether the trial court erred in denying the defendant’s motion to transfer to juvenile court. This court has jurisdiction pursuant to Ark. Sup. Ct. R. l-2(a)(12) and Ark. Code Ann. § 9-27-318(h) (Repl. 1993).

Facts

The appellant, McKinsey DeWayne Davis, was charged by felony infomation on March 22, 1993, with the offense of rape. At the time of the alleged offense, January 30, 1993, Davis was sixteen years old. He was charged as an adult in circuit court. On March 23, 1993, Davis filed a motion to transfer to the juvenile division of the Lafayette County Chancery Court.

A hearing was held on January 4, 1994, at which Davis testified that he was sixteen years old at the time of the alleged rape and that he had never before been arrested or charged with an offense. He stated that he was in the eleventh grade and was expecting a B or C in algebra, a C or D in world history, and a C in English. On cross-examination, he acknowledged that he knew his companion, who was also alleged to have participated in the rape, was a convicted felon and had been to the penitentiary.

In ruling on the motion, the court noted that one of the factors to be considered in deciding whether to transfer the case “is the seriousness of the offense alleged to have been committed.” The court found that there was “no question that the charge itself pursuant to the Information filed in this matter is a serious offense.” Further, the court noted, it was alleged that the offense “has been committed upon a person less than fourteen years of age and/or committed against a person by forcible compulsion.” The court also found that Davis had “some mental maturity” and was a “person of average intelligence or better” who “should have known the difference between right and wrong.” No allegation of mental impairment or defect was alleged. For these reasons, the circuit court determined that it would retain jurisdiction.

Denial of transfer

As mentioned earlier, Davis’s sole argument for reversal is that the circuit court erred in denying the motion to transfer to juvenile court. The standard of review in juvenile transfer cases is whether the circuit court’s denial of the motion was clearly erroneous. Bell v. State, 317 Ark. 289, 877 S.W.2d 579 (1994); Beck v. State, 317 Ark. 154, 876 S.W.2d 561 (1994); Vickers v. State, 307 Ark. 298, 819 S.W.2d 13 (1991).

As the party seeking the transfer, Davis had the burden of going forward with proof to show that a transfer was warranted under the statute. Sebastian v. State, 318 Ark. 494, 885 S.W.2d 882 (1994); Williams v. State, 313 Ark. 451, 856 S.W.2d 4 (1993). Under Ark. Code Ann. § 9-27-318(e) (Repl. 1993), a court, in deciding whether to retain jurisdiction or to transfer the case, must consider the following factors:

(1) The seriousness of the offense, and whether violence was employed by the juvenile in the commission of the offense;
(2) Whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that the juvenile is beyond rehabilitation under existing rehabilitation programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts; and
(3) The prior history, character traits, mental maturity, and any other factor which reflects upon the juvenile’s prospects for rehabilitation.

The circuit court is not required to give equal weight to each of the statutory factors. Walter v. State, 317 Ark. 274, 878 S.W.2d 374 (1994). Moreover, proof need not be introduced against the juvenile on each factor. Hogan v. State, 311 Ark. 262, 843 S.W.2d 830 (1992).

Here, the record indicates that the circuit court considered each of the factors, giving weight to the serious and violent nature of the offense (rape of a person less than fourteen years of age) and Davis’s mental maturity (“average intelligence or better”) and taking into account the absence of allegations of a repetitive pattern of adjudicated offenses. The court found that Davis knew the difference between right and wrong and therefore should answer for his conduct in circuit court.

If a determination is made that a juvenile should be tried as an adult, the decision must be supported by clear and convincing evidence. Ark. Code Ann. § 9-27-318(f) (Repl. 1993); Sebastian v. State, supra; Williams v. State, supra. The serious and violent nature of an offense is a sufficient basis for denying a motion to transfer and trying a juvenile as an adult. Bell v. State, supra; Beck v. State, supra. While Davis contends that the circuit court erred in accepting from the State the felony information, affidavit for arrest warrant, and victim’s statement in lieu of testimony, this court has repeatedly held that a criminal information, on its own, is sufficient to establish that the offense charged is of a serious and violent nature. Id.; Vickers v. State, supra; Walker v. State, 304 Ark. 393, 803 S.W.2d 502 (1991).

Moreover, we have expressly held that rape is, by definition, a violent offense and that such a charge meets the requirements of Ark. Code Ann. § 9-27-318(e)(l). Slay v. State, 309 Ark. 507, 832 S.W.2d 217 (1992). In the present case, the State presented the felony information which charged Davis with rape by sexual intercourse with another person by forcible compulsion and with that person being less than fourteen years old. This evidence in itself established, under the cases cited above, the serious and violent nature of the offense with which Davis was charged.

The circuit court noted, in ruling on the motion to transfer, that both the information and affidavit set forth allegations of forcible compulsion. In particular, the affidavit alleged that Davis first pulled off the thirteen-year-old victim’s pants and panties (while another male held her hands down) and then climbed on top of the girl and raped her.

In sum, the evidence supporting the circuit court’s refusal to transfer this case to juvenile court was clear and convincing.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Michael Lee GARRISON v. STATE of Arkansas
    CR 94-802
    893 S.W.2d 763
    Supreme Court of Arkansas
    Opinion delivered February 27, 1995

      G. Keith Watkins, for appellant.

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

The appellant, Michael Lee Garrison, raises two points for reversal of his aggravated robbery conviction and life sentence: (1) whether the trial court erred in denying his motion in limine, and (2) whether the trial court erred in admitting a knife similar to the one used in the crime as an exhibit. Neither has merit, and we affirm the trial court.

Facts

Shortly before 10:00 a.m. on November 1, 1993, appellant Garrison and a companion, Judson Lee Dawson, entered a grocery store in Evening Shade, Sharp County, and asked the owner, Ray Thomas, for a pair of jersey gloves. Having none in stock, he produced a pair of leather driving gloves, which the two young men examined.

They then asked for four slices of ham, which Mr. Thomas cut and wrapped. When the store owner rang up the charge for the meat, the two men disputed the weight. Mr. Thomas and the two men returned to the meat counter, and he weighed the slices again, allowing Garrison and Dawson to see the digital display.

According to Mr. Thomas’s testimony at trial, as the three walked again from the meat counter to the check-out stand, Garrison struck him in the back of the head and tripped him. Then, while Mr. Thomas was on the floor, Garrison “started just beating and kicking and stomping and . . . finally got my head and tried to twist it around, and then he got something and went to cutting on my throat.” Mr. Thomas stated that Garrison pushed the instrument “way in hard” and then jerked it out.

The victim pretended to be dead, and Garrison and Dawson shortly thereafter left the store. Mr. Thomas then got up, locked the door, and phoned for help. He was subsequently hospitalized for several days.

Law-enforcement authorities set up a roadblock in Sharp County at the intersection of State Highways 115 and 117. Garrison and Dawson passed through the roadblock in a gray, primer-coated pickup truck with a green tailgate, telling the police that they were going to the residence of Dawson’s stepfather, James Richey. Police subsequently received information that a vehicle matching that description had been involved in an armed robbery. Shortly after, officers located the truck and the two suspects at Richey’s residence. Garrison and Lawson were seated in a blue Ford Escort, owned by Richey, who consented to its search. The police discovered a roll of money beneath the seat and found more money on Dawson.

Garrison received his Miranda rights and gave a statement to the Sharp County sheriff. In it, he acknowledged tripping and kicking Mr. Thomas and cutting his throat with a “roofer knife,” which he threw out of the truck window shortly afterward. The next day, an information was filed against Garrison and Dawson, charging them with aggravated robbery in violation of Ark. Code Ann. § 5-12-103 (Repl. 1993), a class Y felony. Garrison’s case was severed from Dawson’s and following a jury trial, he was convicted of the aggravated robbery charge and was sentenced to life in prison.

I. Motion in limine

Prior to trial, Garrison made a motion in limine to suppress certain evidentiary items seized from Dawson, consisting of $300 in cash (State’s Exhibit 6D), $111 in cash (State’s Exhibit 6C), a pair of gloves (State’s Exhibits 7 and 8), and a knife purchased by one of the involved police officers for the purpose of evidentiary display (State’s Exhibit 26). While the trial court did not rule on this motion during pre-trial proceedings, Garrison alluded to its pendency on several occasions during the course of trial, primarily when he raised timely objections to the introduction of the $300 cash and the purchased knife. As such, the admissibility of these items was properly preserved for purposes of appeal. The burden of obtaining a ruling on a motion in limine is on the appellant. Gilland v. State, 318 Ark. 72, 883 S.W.2d 474 (1994).

In the first instance, the State offered Exhibit 6D, the $300 in cash, as evidence, to which Garrison objected on the basis of his pending motion in limine. The trial court overruled the objection. Trooper Pardoe Roberts testified that he recovered the $300 from Dawson and that he turned the money over to Lieutenant Joe Stidman, who in turn stated that he marked each bill with his initials. Lieutenant Stidman then gave the money to Investigator Steve Huddleston, who testified that he carried it to the State Crime Lab for analysis. The Crime Lab returned the $300 to him by registered mail, and he kept it until the date of the trial.

Later, in a statement given to Investigator Huddleston, which was admitted into evidence without objection, Garrison said that Dawson got “a couple of hundred” dollars during the robbery and that Dawson “handled” the cash. The evidence showed that Garrison and Dawson were joint perpetrators of the armed robbery. There is no distinction between the criminal responsibility of a principal and that of an accomplice. Smith v. State, 310 Ark. 247, 837 S.W.2d 279 (1992). Thus, the admission of Exhibit 6D into evidence was not error.

Garrison also challenges the admission of Exhibit 6C, the $111 in cash, which was specifically mentioned in his motion in limine, but not ruled upon by the trial court. This exhibit, however, was admitted into evidence without objection, and the issue is not preserved for appeal. Hall v. State, 314 Ark. 402, 862 S.W.2d 268 (1993). In a somewhat analogous case, Byrum v. State, 318 Ark. 94, 884 S.W.2d 248 (1994), the trial court had made a preliminary ruling on the potential admissibility of hearsay testimony, but the appellant did not renew or request a final ruling on his objection or move to strike the hearsay testimony. This court held that he had thereby failed to make a timely objection at trial to the admission of the challenged statement and was thus precluded from raising the issue on appeal.

Similarly, Garrison failed to object to the introduction of Exhibits 7 and 8, a pair of gloves which were mentioned in the motion in limine but not ruled upon at that time by the trial court. By his failure to make a timely objection, Garrison waived any right to raise the point on appeal. Johnson v. State, 314 Ark. 471, 863 S.W.2d 305 (1993).

At trial, Garrison also objected to the introduction of Exhibit 26, a box-cutter knife characterized as being similar to the one used to cut Mr. Thomas’s throat — an item also listed in the motion in limine. This evidentiary exhibit is the subject of Garrison’s second point for reversal and will be considered in the discussion of that issue.

II. Admission of knife

In a custodial interview with Sharp County Sheriff Sonny Powell that was admitted into evidence, Garrison stated that he threw the knife out of the moving track after the robbery. In his second point for reversal, he argues that the trial court erred in admitting into evidence Exhibit 26, a box-cutter knife purchased, at the request of the prosecutor, by Lieutenant Stidman at an Ace Hardware Store the day before the trial began. Garrison preserved the issue for appeal by objecting in a timely manner to the introduction of the knife and by moving for a mistrial. The trial court overruled the objection and concurrent motion.

Garrison complains that there was no investigation undertaken by Lieutenant Stidman to determine whether the knife was similar to the knife he had described in his statement to Sheriff Powell, as follows:

POWELL: Okay, uh, what kinda’ knife was it?
GARRISON: It was a razor blade, little blue razor blade, uh, roofer knife, I guess.
POWELL: That you used to cut, uh,
GARRISON: Yes.
POWELL: Boxes or roofs, or stuff.
GARRISON: Roofs or somethin’ like that.
POWELL: That the blade slid in an’ out?
GARRISON: It slid in an’ out an’ broke off an’ stuff.

(Emphasis added.) Garrison’s responses did not constitute a model of clarity.

The following exchange between defense counsel and Lieutenant Stidman is illuminating in this context:

Q ... Didn’t you just testify that you went and purchased [the knife] at the instruction of Mr. Stallcup?
A Yes, sir.
Q Okay. So there was no independent investigation by you that determined that this instrument was similar to the one described by the defendant?
A Not by me, no.
Q Okay. So it’s the State’s conclusion that that’s a similar instrument.
A You’ll have to ask the State that.
Q Well, he’s the one testifying it seems like.
A Yes.
Q Okay. In fact, did you check at Ace Hardware and see how long that type of box cutter had been in production?
A No, I did not.
Q Do you even know if that type of box cutter was in production at the time of the crime?
A No, I do not.
Q Did you have any box cutters or any objects that you showed the defendant or anybody else to see if they could identify it as a similar instrument in this case?
A No, I did not.
Q So the only person telling you this is a similar instrument is Mr. Stallcup?
A According to the statements that I read that the defendant made to other officers, the instrument was described as a roofing knife or a cutter-type instrument that the blade came out on and, as one got dull, you broke it off, and a new part of the blade came out.
Q Is that a roofing knife?
A This, this is a cutting knife. I suppose you could use it for any purpose you wanted to.
Q Isn’t there a special tool that called a roofing knife?
A There is, but I’ve never seen one like was described in that report. And I didn’t find one at the hardware store like that. This is the nearest thing I could find as was described.

(Emphasis added.) It was clear from the outset that the State was attempting to introduce an approximation of the lost crime weapon — the “nearest thing” available for illustrative purposes, based on Garrison’s own imprecise custodial statement. The exhibit was demonstrative evidence, which, having no historical connection with the facts of the case, nevertheless served to illustrate or demonstrate the testimony of the witness. See Edward J. Imwinkelreid, Evidentiary Foundations 62 (2d ed. 1989).

The admissibility of demonstrative evidence is a matter falling within the wide discretion of the trial court. Bowden v. State, 297 Ark. 160, 761 S.W.2d 148 (1988). We will uphold the trial court’s decision to admit physical evidence absent an abuse of discretion. Ferrell v. State, 305 Ark. 520, 810 S.W.2d 29 (1991). Here, as in Ferrell, where a .25-caliber pistol was introduced for demonstrative purposes in a case involving a .22-caliber gun, the testimony was clear that the knife was introduced as a means of demonstrating a point and not as the actual weapon used in the crime.

In Wilburn v. State, 292 Ark. 416, 731 S.W.2d 756 (1987), a Rule 37 post-conviction appeal, this court held that the petitioner had not shown that he was prejudiced by the display in court of a gun similar to the murder weapon, which had not been found. In Fountain v. State, 273 Ark. 457, 620 S.W.2d 936 (1981), we held that a roll of black electrical tape found at the accused rapist’s residence was admissible because of its similarity to the tape used to bind the victim.

The court of appeals, in Barker v. State, 21 Ark. App. 56, 65, 728 S.W.2d 204, 209 (1987), ruled that a knife that might not have been the murder weapon was admissible because “[e]ven if this knife were not the fatal weapon, the similarity between it and the weapon used would make appellant’s identity as the attacker more probable than it would be without the evidence.” See also Willis v. State, 309 Ark. 328, 829 S.W.2d 417 (1992), where we held that there was no error in the introduction of a photograph of a sack similar to but larger than one containing drugs when the discrepancy in size and the actual quantity of drugs seized were explained to jury.

We are somewhat troubled by the lack of proof of similarity between the purchased knife and the one employed in the crime as well as by the fact that its introduction was deemed necessary or appropriate by the trial court. Nevertheless, there was no attempt on the part of the State in the present case to deceive the jury with regard to the provenance of the knife that was introduced into evidence. Rather, the jury was made aware of when, where, and by whom the knife was purchased. Lieutenant Stidman testified that he had never seen and was unable to purchase a knife like the one described by Garrison. The one he bought was the “nearest thing I could find.” It was, therefore, relevant to illustrate how the victim received his particular injury.

In view of the State’s straightforward explanation of the circumstances surrounding the acquisition of the knife and Garrison’s failure to show prejudice, Wilburn v. State, supra, the trial court did not abuse its discretion in admitting the purchased knife as demonstrative evidence.

On appeal, Garrison also argues that the State violated discovery rules by not disclosing before trial that it planned to offer a knife similar to the one used in the robbery. However, Garrison objected only after the knife had been admitted through Lieutenant Stidman’s testimony. Failure to raise an objection at the first opportunity to do so waives any right to raise the point on appeal. Johnson v. State, supra. Further, Garrison never obtained a ruling on the objection and thus failed to sustain his burden of doing so. Id.

III. Compliance with Rule 4-3(h)

Because Garrison was sentenced to life imprisonment, all errors prejudicial to him must be reviewed. Ark. Code Ann. § 16-91-113(a) (1987); Ark. R. Crim. P. 36.24; Ark. Sup. Ct. R. 4-3(h). The State has scrupulously reviewed the record and has abstracted those objections at trial which were decided adversely to Garrison but were not included in his abstract. No adverse rulings warranting reversal appear.

Affirmed.


author: Jack Holt, Jr. Chief Justice.

text:
    Katherine Elizabeth WILLIAMS v. SOUTHWESTERN BELL TELEPHONE COMPANY
    94-682
    893 S.W.2d 770
    Supreme Court of Arkansas
    Opinion delivered February 27, 1995

      Dewey Moore, for appellant.

      Karen Queen Hare, for appellee.
   Jack Holt, Jr. Chief Justice.

The appellant, Katherine Elizabeth Williams, allegedly sustained injury to her wrist on a pay-telephone cord maintained by the appellee, Southwestern Bell Telephone Company (“Bell”), and brought suit against Bell in Pulaski County Circuit Court for personal injury. The jury returned a verdict in favor of Bell, and the trial court entered judgment accordingly.

On appeal, Ms. Williams furnishes to this court a limited portion of the record of trial, primarily pleadings, pretrial motions, and testimony of two witnesses, claiming that the trial court erred in permitting Bell to offer expert testimony relative to properties of the allegedly defective metal telephone cord at issue, or similar cords, while not permitting her an opportunity to examine and test a similar cord and present expert testimony. Bell responds by claiming that there was no final appealable order or ruling regarding the introduction of expert testimony and that the testimony of James Williams Jr. believed to be expert testimony for Bell was not, as the court ruled in its discretion, expert testimony. We agree with Ms. Williams that the trial court erred in permitting expert testimony after a ruling, in essence, that expert testimony was unnecessary; however, because she failed to object to similar testimony offered by another witness, we hold that the admission of Mr. Williams’s testimony was harmless error.

In her complaint filed on November 7, 1992, Ms. Williams alleged that she was injured on November 11, 1989, when she attempted to use a pay telephone at the Junior League Baseball Field at Burns Park in North Little Rock. She claims that she severely cut her wrist on the metal cord which extended from the handset of the telephone, as the cord had apparently been stretched to expose a sharp-cutting edge. According to her complaint, Ms. Williams underwent surgery and was left with a permanent impairment. She alleged that Bell was negligent in permitting the telephone cord to remain in a defective and dangerous condition when it knew or should have known that it could have caused injury to her or to other members of the public. A jury verdict was rendered in favor of Bell.

Prior to trial, both parties directed interrogatories to one another. In answer to Ms. Williams’s inquiry, Bell stated that the telephone cord at issue, along with the handset, had been removed from the pay telephone in question on November 28, 1989, due to a report that the cord was frayed. As a result, a new cord had been put in its place and the old cord scrapped. Bell further responded that no inspection or testing had been done on the cord prior to its disposal.

In addition, Ms. Williams requested that Bell furnish to her the identity of each witness that it anticipated calling and to identify whether or not the parties would be called as expert witnesses and if so, to furnish the substance of the facts or opinions that he or she was expected to testify to, and the grounds for each opinion. Bell responded by stating that it would call James Williams, Jr. and Kurt Bender Jr., and that neither witness would be called as an expert.

On December 9, 1993, the trial court, after acknowledging an oral motion on the part of Ms. Williams, ordered Bell to check on the availability of a similar telephone cord, indicating that, after a telephone conference, it would advise the parties whether any testing could be done, and under what conditions. After Bell advised the court that it could produce a similar cord, the trial court directed that Bell produce such to Ms. Williams on the condition that no destructive testing be done unless representatives of all parties were present. No tests were performed.

On the same date, Bell filed a motion in limine requesting that the trial court prohibit Ms. Williams from offering expert testimony at trial due to the fact that she had not provided the name and address of an expert witness until three days prior to the trial date. Ms. Williams also filed a motion in limine asking that Bell be precluded from offering either testimony concerning the results of the testing of similar phone cords, if any, or “expert opinions” relative to properties of the cord at issue, or of similar cords.

At a pretrial hearing, the trial court made the following statement in response to the parties various motions:

... I think I’ll go on record as saying now what I said in the telephone conference, that is, I don’t think this is — I think we’ll get off on a tangent if we get off on expert testimony in this particular case. I think if we keep it within what the common, ordinary juror can understand. You got a photograph of an outstretched cord there, you may have evidence of whether the telephone was operating or wasn’t, that’s certainly permissible, but she’s going to testify she got hurt on it and we set out the standard of negligence, what the company owes patrons and the jury can decide whether they breached that, or whether the lady got hurt on this cord, things like that. I don’t see this as, we can make it a complicated case, but I don’t think it is.

It is also significant that, during the course of these proceedings and prior to the court making its remarks, counsel for Bell assured the court that she had no intention of putting on expert testimony.

Although the court did not issue formal written orders as to its rulings on the motions, when we examine its remarks, it is clear to us that in advising the parties that there would be no need for expert testimony at trial, its comments were tantamount to a ruling which is now a proper subject for appeal.

Ms. Williams asserts that the trial court committed error in permitting James Williams, Jr. to testify as an expert witness on behalf of Bell relative to the properties of the alleged defective metal telephone cord at issue. Mr. Williams, a customer service technician with Bell, testified that he had been with the company for 22 years, had worked on pay phones 18 of those years, and, particularly, that he had repaired pay telephones in the Burns Park area. The exchange in question involved Mr. Williams’s testimony after he was shown pictures of the cord that were taken by Ms. Williams and her mother on the day after the incident, which had been admitted earlier as evidence. His testimony was as follows:

COUNSEL FOR BELL: Mr. Williams, I’d like you to look at those pictures and tell me, if you would, on Plaintiff’s Exhibit 1A, there’s a series of three pictures on front that show this telephone, first, I assume that’s the Burns Park telephone we are talking about?
WITNESS: Yes, this is the one that was at the Little League baseball field.
COUNSEL FOR BELL: You are familiar with that and service it often?
WITNESS: Yes.
COUNSEL FOR BELL: Mr. Williams, is it your opinion, after twenty years of being a repairman, that that telephone would be operating?
WITNESS: No, not in the condition this phone cord is.
COUNSEL FOR BELL: Are you sure of that?
WITNESS: Positive because the middle cord was stretched, the wires inside will not stretch.
COUNSEL FOR BELL: Explain that.
WITNESS: The middle cord, it unravels, it will stretch out, but the wires are straight wires about three feet long and the cord originally is two feet eight inches.
COUNSEL FOR MS. WILLIAMS: At this point, I’ll make my objection as to expert testimony on this cord.
COUNSEL FOR BELL: He’s talking about his experience as a repairman.
COURT: Overruled.

Following the trial court’s denial of Ms. Williams’s objection, Mr. Williams testified as to both the length of the wires inside the cord and of the length of the original cord, and that in his opinion, there would be no dial tone on the pay phone if the cord were stretched out more than six inches than normal. Following Mr. Williams’s testimony, Kurt Bender, Jr., Bell’s area manager for pay telephones in Arkansas who had worked for the company for sixteen years, was also shown the pictures of the telephone cord, and offered similar testimony to that of Mr. Williams.

The test as to whether a witness qualifies as an expert is whether, on the basis of his qualifications, he has knowledge of the subject at hand which is beyond that of ordinary persons. Wilburn v. State, 289 Ark. 224, 711 S.W.2d 760 (1993); Dildine v. Clark Equipment Co., 282 Ark. 130, 666 S.W.2d 692 (1984). Further, we will not reverse the trial court’s determination on whether a witness qualifies as an expert absent an abuse of discretion. Wilburn v. State, supra. Stated another way, it is always discretionary with the trial court whether a person is qualified as an expert in a particular field. Robinson v. State, 274 Ark. 312, 624 S.W.2d 437 (1981). Arkansas Rule of Evidence 702 governs the admission of expert testimony, and provides that:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Under the facts before us, we cannot agree with the trial court’s finding that Mr. Williams was not testifying as an expert as he was offering his technical and specialized knowledge to assist the triers of fact to determine a fact in issue as to whether the telephone was capable of use at the time of Ms. Williams’s alleged injury. In his opinion, “after 20 years of being a repairman,” Mr. Williams based his testimony on specialized knowledge and experience as contemplated by A.R.E. 702.

The trial court’s error, however, was harmless due to the fact that Ms. Williams did not object to similar testimony which was admitted, without objection, after that of Mr. Williams. Mr. Kurt Bender, who, as Bell’s area manager for pay telephones, was in charge of installation, repair, and collection for over 14,000 units in Arkansas, had sixteen years with the company, offered similar opinion testimony as to whether this phone would have been operable during the time of Ms. Williams’s alleged injury. We have stated that we will not find prejudicial error where the evidence erroneously admitted was merely cumulative. Gibson v. State, 316 Ark. 705, 875 S.W.2d 58 (1994); Hooper v. State, 311 Ark. 154, 842 S.W.2d 850 (1992). Stated another way, evidentiary error is harmless if the same or similar evidence is otherwise introduced at trial. Shamlin v. Shuffield, 302 Ark. 164, 787 S.W.2d 687 (1990). Here, Mr. Williams and Mr. Bender were separate witnesses and were qualified and questioned separately. Under these circumstances, we hold that the admission of Mr. Williams’s testimony was harmless error.

Affirmed.

Roaf, J., not participating.


author: Robert H. Dudley, Justice.

text:
    Elizabeth Z. SELF v. Mildred SELF
    94-793
    893 S.W.2d 775
    Supreme Court of Arkansas
    Opinion delivered February 27, 1995

      Ben Seay, for appellant.

      Ronald L. Griggs, for appellee.
   Robert H. Dudley, Justice.

This case involves a dispute between Mildred Self and Elizabeth Self, both wives of Alex Self, now deceased, over which one is entitled to receive widow’s benefits from the Veterans Administration. The chancellor decided in favor of Mildred. Elizabeth appealed to the court of appeals. The court of appeals, by a tie vote, affirmed en banc. Self v. Self, 46 Ark. App. 250, 878 S.W.2d 436 (1994). Elizabeth filed a petition for review in this court. We granted certiorari because of the tie vote. See Sup. Ct. R. l-2(f). Upon review, we reverse.

There is no dispute about the facts. Alex and Mildred Self were married in 1947 and eventually had four children. Alex was in military service and moved from base to base. In 1964, Alex returned to the United States from Tripoli, Libya, and the couple moved to a home they owned in Pineville, Louisiana. Mildred and the children remained in Pineville while Alex was stationed at an Air Force base in Clinton, Oklahoma.

On September 1, 1965, Alex filed a complaint for divorce in Union County, Arkansas. He alleged that he had been a resident of the State of Arkansas for more than ninety days and that Mildred’s last known address was Alexander City, Alabama. A warning order was issued, and an attorney at litem wrote Mildred at an address in Alexander City. The letter was returned and marked “undeliverable.” It is undisputed that Alex was not a resident of Arkansas for the time required by law for a divorce, that Mildred was not a resident of Alexander City, Alabama, and that Mildred received no notice of the proceedings in Union County. On October 8, 1965, Alex obtained a decree of divorce in Union County.

A week later Alex was in Pineville, Louisiana, and Mildred saw the divorce decree in the glove pocket of Alex’s car. It was the first notice she had of the divorce. She promptly consulted with James Gravels, a lawyer in Alexandria, Louisiana. As a result of that conference she subsequently filed a petition in Louisiana for a separation from bed and board. The Louisiana court granted the separation and ordered Alex to pay child support, which he sporadically paid. Gravels’s recollection of the events at the conference with Mildred are abstracted, in the pertinent part, as follows:

I reviewed the divorce decree and I remember discussing with her whether we could set aside the Arkansas divorce. She had told me that her husband had lived with her through the entire period of time when the divorce was obtained. I knew you had to establish some sort of residency to have jurisdiction. I probably told her and the only reason that I got a separation for her was that I did not think the Arkansas divorce was any good and it could be attacked at any time.
When Mrs. Self showed me the Arkansas divorce, I advised her that it was voidable. I took action on her behalf in Louisiana by filing a separation action. . . .
Mrs. Self did not follow through with the divorce proceeding with me. She would not have been eligible for a divorce at that time. Whether she could have gotten a divorce a year or six months after the rendering of this judgment, I do not know. I did not get her a divorce. As far I know, this is the last legal action she took against Mr. Self.
When Mrs. Self left my office, it was my belief she understood that she wasn’t divorced, as far as I was concerned. Her documents could be attacked by anyone by interested parties and set aside.
I did not recommend she contact an attorney in Arkansas to do something about that divorce decree. I did not think anybody would give it full faith and credit. [Emphasis added.]

To prevent a misunderstanding, we note that the prevailing opinion of the court of appeals states that Gravels told Mildred the decree was “null and void,” but this opinion does not so state. The comment quoted by the court of appeals’s majority opinion was made by Gravels in a letter he wrote to the Veterans Administration on September 8, 1987, but that was more than twenty years later. See Self 46 Ark. App. at 252, 878 S.W.2d at 437.

After the conference with Gravels, Mildred did not formally attack the decree either directly or collaterally. She wrote the clerk of the court that her husband had lived in Arkansas for thirty days, but that she was never notified of the action. In short, she left the facially valid decree entered of record.

In 1982, Alex met Elizabeth Zagarra. Alex told Elizabeth he was divorced and showed her the divorce decree. On February 15, 1984, they had a daughter, and on May 17, 1984, they were married. They continued to live together until May 10, 1987, when Alex died. Soon after Alex’s death, Elizabeth applied for and began receiving widow’s benefits from the Veterans Administration. A little later, in August 1987, Mildred applied for the same widow’s benefits. Her claim was denied, primarily because of the decree of divorce. It was at this time that Gravels wrote his letter to the Veterans Administration advising them that the decree was “null and void.”

On April 3, 1989, Mildred filed a morion to set aside the divorce decree that had been entered in 1965, twenty-four years earlier. Mildred did not give Elizabeth notice of the motion. On May 24, 1989, the chancery court entered an order setting aside the decree for lack of jurisdiction. This action made Mildred the widow of Alex, and, consequently, she was entitled to receive the widow’s benefits. On November 18, 1991, Elizabeth filed a motion to intervene and asked the chancellor to vacate the order setting aside the decree of divorce because of laches. The chancellor denied Elizabeth’s motion, and she appealed. Upon review, we reverse.

The issue in this case is not whether the decree of divorce should have been granted. It should not have been granted, but it was. Consequently, we now have this contest between the two victims. The only issue is which of the two victims should prevail. It is an equitable issue and, in part, is determined by which victim is the more innocent. The exact equitable issue is whether the chancellor erred in refusing to apply the doctrine of laches after Mildred waited twenty-four years to file her action to set aside the divorce.

The doctrine of laches is based on a number of equitable principles that are premised on some detrimental change in position made in reliance upon the action or inaction of the other party. Andarko Petroleum v. Venable, 312 Ark. 330, 850 S.W.2d 302 (1993). It is based on the assumption that the party to whom laches is imputed has knowledge of his rights and the opportunity to assert them, that by reason of his delay some adverse party has good reason to believe those rights are worthless or have been abandoned, and that because of a change of conditions during this delay it would be unjust to the latter to permit him to assert them. Briarwood Apartments v. Lieblong, 12 Ark. App. 94, 671 S.W.2d 207 (1984).

The doctrine of laches has been applied in numerous cases where one party has obtained an invalid divorce and remarried, but the first spouse then waits too long under the facts of the particular case to assert her right to have the void judgment vacated. See Fair v. Fair, 232 Ark. 800, 341 S.W.2d 22 (1960); Sariego v. Sariego, 231 Ark. 35, 328 S.W.2d 136 (1959); Allsup v. Allsup, 199 Ark. 130, 132 S.W.2d 813 (1939); Maples v. Maples, 187 Ark. 127, 58 S.W.2d 930 (1933); Corney v. Corney, 97 Ark. 117, 133 S.W. 813 (1910). We have stated that judgments in matrimonial cases should be more stable than in others, because matrimonial status draws with it so many collateral rights and interests of third persons. Maples, 187 Ark. at 130-31, 58 S.W.2d at 932. However, we have also held that when divorces have a “mail-order” appearance, we shall not hesitate to set them aside, even though the divorced party remarries in the meantime, as we cannot permit such frauds to be practiced upon the courts of this state. Murphy v. Murphy, 200 Ark. 458, 462-63, 140 S.W.2d 416, 419 (1940).

In this case, Mildred allowed the voidable decree to remain in effect for twenty-four years, even though her attorney, James Gravels, told her it could be set aside. Our general rule is that a party who has knowledge of a judgment against himself or herself is required to exercise reasonable diligence in seeking to have it set aside, and an unexcused delay can justify a court in refusing to grant relief prayed for. O’Neal v. B.F. Goodrich Rubber Co., 204 Ark. 371, 162 S.W.2d 52 (1942). The attorney’s testimony established that he knew that the decree was voidable and that he communicated that fact, but neither he nor Mildred took action. We need not determine whether that was Gravels’s or Mildred’s fault. If the fault were Mildred’s, she failed to act with diligence, and if the fault were her attorney’s, it was imputable to her. An attorney’s acts of omission, as well as his commissions, are to be regarded as the acts of the client he represents, and the negligent acts of the attorney are equivalent to the negligence of the client himself. Springdale Memorial Hospital v. Director of Labor, 34 Ark. App. 266, 809 S.W.2d 828 (1991) (citing Peterson v. Worthen Bank & Trust Co., 296 Ark. 201, 753 S.W.2d 278 (1988)). In the absence of fraud, the client is bound, according to the ordinary rules of agency, by the acts, omissions, or neglect, of the attorney within the scope of his authority. Id.; see also Riley v. Vest, 235 Ark. 193, 357 S.W.2d 497 (1962); Beth v. Harris, 208 Ark. 903, 188 S.W.2d 119 (1945). This includes such things as negligent failure to file proper pleadings. See Allen v. Kizer, 294 Ark. 1, 740 S.W.2d 137 (1987); DeClerk v. Tribble, 276 Ark. 316, 637 S.W.2d 526 (1986).

The trial court was persuaded by Mildred’s statement that she did not know that Alex had. remarried until after he died in 1987. However, that statement does not diminish the fact that Mildred is the one that left the voidable decree in effect. Further, it was undisputed that Mildred knew that Elizabeth and Alex lived together, and she knew they had a child; therefore, she should have been on notice that Alex might have been married to Elizabeth. When the issue is laches, a party is chargeable with such knowledge as might have been obtained upon reasonable inquiry, provided the facts as known to him were such as to put the duty of inquiry upon a person of reasonable intelligence. Pope v. Pennzoil Producing Co., 288 Ark. 10, 701 S.W.2d 366 (1988); Mitchell v. Hammons, 31 Ark. App. 180, 792 S.W.2d 333 (1990). In addition, Mildred admitted that she knew that Alex had remarried approximately two years before she filed the motion to set aside the divorce decree. Thus, the record does not support a finding of totally innocent ignorance on the part of Mildred.

In the application of the doctrine of laches each case depends on its particular circumstances. Grimes v. Carroll, 217 Ark. 210, 229 S.W.2d 668 (1950). The issue of laches is one of fact. See Davenport v. Pack, 35 Ark. App. 40, 812 S.W.2d 487 (1991). A reviewing court does not reverse the trial court’s decision on a question of fact unless it is clearly erroneous. A.R.C.P. Rule 52(a); Mobley v. Harmon, 313 Ark. 361, 854 S.W.2d 348 (1993). A finding is clearly erroneous “when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” RAD-Razorback Ltd. Partnership v. B.G. Coney Co., 289 Ark. 550, 553, 713 S.W.2d 462, 464 (1986). The facts here show that Mildred learned of the decree within one week of its entry and immediately contacted an attorney who told her it was voidable, yet she delayed for twenty-four years the filing of a motion to set aside the decree. The result was that she left a voidable decree in effect for twenty-four years. In the meantime, Elizabeth relied on the facially valid decree and married Alex. Clearly, Elizabeth is the more innocent of the two victims.

Our case of Maples v. Maples, 187 Ark. 127, 58 S.W.2d 930 (1933) is squarely in point. In that case a non-resident filed suit for divorce, falsely representing that he was a resident of Arkansas and that his wife had deserted him. He was granted the decree of divorce. His wife subsequently learned of the divorce. He remarried. He later died, and his widow, the second wife, began receiving veterans widow’s benefits. Fourteen years after the decree of divorce, the first wife brought an action to set aside the divorce decree. The chancellor set aside the decree. The second wife intervened. The chancellor refused to vacate the order setting aside the decree. The second wife appealed. In reversing the ruling of the chancellor we wrote: “Here, the first wife, having been advised that her husband had married another woman in 1917, waited until after her husband was dead and until 1931 before proceeding to have the divorce decree vacated. We feel constrained to hold that she waited too long, and is barred by her laches.” Id. at 131, 58 S.W.2d at 932.

In the case at bar, Mildred was advised within two weeks after entry of the divorce decree that it was a voidable decree, and yet she let it remain in effect for twenty-four years. Even if she did not fully understand the consequences of leaving such a decree in effect, her attorney did, but no action was taken. While Mildred testified that she did not know that Elizabeth and Alex were married until after Alex’s death, she admitted that she knew that Elizabeth lived with Alex, and that they had a child. This should have put her on notice that Elizabeth might be relying on the decree. The knowledge of these facts imposed a duty of inquiry upon her, but even at that time she took no action. Finally, even if we were to disregard those facts, Mildred admitted that she became aware of Elizabeth’s marriage to Alex at the time of Alex’s death, but still it was nearly two more years before she filed the petition to set aside the decree. Under these circumstances we have no hesitance in holding that the chancellor erred in failing to apply the doctrine of laches to Mildred’s petition.

The decree of the chancery court that vacated and set aside the decree of divorce will therefore be reversed, and the cause will be dismissed.

Glaze, J., concurs.


text:
    Jeanne STEVENS v. STATE of Arkansas
    CR 94-296
    893 S.W.2d 773
    Supreme Court of Arkansas
    Opinion delivered February 27, 1995
    [Rehearing denied April 3, 1995.]

      Appellant, pro se.

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

Appellant was convicted in municipal court of speeding, operating a motor vehicle with a suspended driver’s license, and operating a motor vehicle without proof of financial responsibility. She appealed to circuit court where she was again convicted of each of the misdemeanors. She appealed to the court of appeals, and it certified the case to this court as a case involving the constitutionality of statutes. We affirm the convictions.

Appellant challenges the constitutionality of sections 27-22-104(a) and 27-16-3Q3(a)(l) of the Arkansas Code Annotated of 1987. The first of these two statutes requires the driver of a motor vehicle either to have a minimum amount of liability insurance or to show financial responsibility, and, if he is arrested and can show neither, his vehicle registration will be suspended and its license impounded. See Ark. Code Ann. § 27-22-104(c)-(d) (Repl. 1994). The second statute provides that a person may not operate a motor vehicle while his driver’s license is suspended. Ark. Code Ann. § 27-16-303(a)(l). Appellant was previously involved in an accident and was convicted of a traffic misdemeanor. Her license had been revoked, and she did not have insurance and could not show financial responsibility. The two statutes operated together to prevent appellant from lawfully operating a motor vehicle. She contends that the statutes, taken together, constitute an abridgment of her rights under the Fourteenth Amendment, therefore, the convictions under these two statutes must be reversed.

We have already held that the operation of a motor vehicle upon a public road is a privilege and not a right and that the State may exercise its police powers to regulate that privilege. Satterlee v. State, 289 Ark. 450, 711 S.W.2d 827 (1986); Jones v. City of Newport, 29 Ark. App. 42, 780 S.W.2d 338 (1989). This power is most often recognized for the purpose of promoting safety. See Hess v. Pawloski, 274 U.S. 352 (1927).

Appellant contends that Satterlee and Jones are not in point because those cases did not involve insurance, and, even if they are in point, they are in violation of the Fourteenth Amendment because it provides, “No State shall make or enforce any law which shall abridge the privileges ... of any citizen.” U.S. Const, amend. 14, § 1 (emphasis added.)

The statutes together have the effect of making drivers financially responsible, at least in part, for damages they might negligently inflict upon others. Damages in this context include the cost of medical care and rehabilitation. In this manner the statutes promote public well being and safety and come within the State’s police power. In addition, it is generally recognized that police powers regulating the operation of motor vehicles are applicable to areas other than safety. See Jeffrey T. Walker, Annotation, Validity And Application Of Statute Or Regulation Authorizing Revocation Or Suspension Of Driver’s License For Reason Unrelated To Use Of Or Ability To Operate, Motor Vehicle, 18 A.L.R. 5th 542 (1994). The statute at issue originated as Act 988 of 1991 as “an attempt to enhance the enforcement of the motor vehicle licensing law” the lack of which had resulted in “lost revenues to schools and the state and local governments.” Act 988 of 1991, § 9 (emergency clause). The State may impose reasonable requirements on the licensure of privileges in order to collect taxes. See Wometco Servs., Inc. v. Gaddy, 272 Ark. 452, 616 S.W.2d 466 (1981).

The Supreme Court of the United States has approved the regulation of a privilege where there is a legitimate state interest. For example, a New Orleans ordinance was upheld which prohibited pushcart food sales in the French Quarter unless the vendor had eight years experience. City of New Orleans v. Dukes, 427 U.S. 297 (1976). The State has a legitimate interest in providing that persons who operate motor vehicles have the financial ability to pay for damages they might cause.

Appellant’s next assignment of error is that the convictions should be reversed because the trial court interrupted her as she tried to explain that she could not afford to purchase liability insurance because she was indigent. Appellant cites no authority and actually makes no argument for the point. We have long held that assignments of error, unsupported by convincing argument or authority, will not be considered on appeal unless it is apparent without further research that they are well taken. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).

In her last point of appeal, appellant states that the speedometer in her car reflected that she was driving exactly forty miles per hour when she was stopped for exceeding forty miles per hour, but she does not assign a ruling by the trial court as error. Our general rule is that we will not reverse a case unless there has been some erroneous trial court ruling. There are limited exceptions, but none of them are applicable to this case. See Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).

Affirmed.


author: David Newbern, Justice.

text:
    Gloria Jean BILDERBACK v. STATE of Arkansas
    CR 94-1034
    893 S.W.2d 780
    Supreme Court of Arkansas
    Opinion delivered February 27, 1995
    [Rehearing denied April 3, 1995.]

      Gene O’Daniel, for appellant.

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

Gloria Jean Bilderback, the appellant, was convicted in 1990 of attempted possession of a controlled substance. She was sentenced to six years imprisonment with execution “deferred,” and she was placed on probation. On July 27, 1993, she was arrested for possession of drug paraphernalia and two counts of possession of a controlled substance. In subsequent proceedings her earlier probation was revoked. She challenges the revocation on the ground that the hearing resulting in the revocation was held more than 60 days after she was arrested on the revocation charge and on the ground that she had served a 10-month jail sentence which was a condition of her probation. She also contends the Trial Court erred in admitting as evidence against her a statement she made after her 1993 arrest. We hold no error occurred on the points she has raised. The State advises that the ultimate sentence imposed pursuant to the revocation may be illegal, but we do not address that point as Ms. Bilderback has not raised it.

On November 22, 1993, while Ms. Bilderback remained incarcerated as a result of her arrest on July 27, 1993, a motion for revocation of suspended sentence was filed by the prosecuting attorney. An arrest warrant for probation violation was served on Mrs. Bilderback on November 24, 1993. Ms. Bilderback was released on bond on January 18, 1994.

The revocation hearing was held on March 3, 1994. Ms. Bilderback moved to dismiss on the ground that the hearing was not held within 60 days of the arrest as required by Ark. Code Ann. § 5-4-310(b)(2) (Repl. 1993). The prosecution responded that Ms. Bilderback had expressly waived the 60-day requirement upon arraignment. Defense counsel, who began representing Ms. Bilderback after she was arraigned, asked if the waiver were a matter of record. The Trial Court declined to interrupt the proceedings to search for the record but stated that it was his practice to make a record of such a matter and denied the motion to dismiss.

Upon concluding the hearing on the motion to dismiss the revocation matter, the Trial Court proceeded to consider the new charge of possession of drug paraphernalia and announced his understanding that Ms. Bilderback was offering a plea of guilty conditioned on preserving her right to appeal the issue of suppression of a confession. A suppression hearing was then conducted, and the Trial Court found the statement to have been made knowingly and voluntarily.

Ms. Bilderback was sentenced to five years imprisonment to run concurrently with a six-year term imposed as a result of the revocation of probation.

1. The 60-day requirement

We might agree with Ms. Bilderback’s argument that the record before us is insufficient to demonstrate that she waived the 60-day requirement of § 5-4-310(b)(2); however, we conclude the requirement did not apply.

Ms. Bilderback spent no time in jail as a result of the motion to revoke probation. She was incarcerated on the later charge when she was served with the arrest warrant issued pursuant to the revocation motion. In Boone v. State, 270 Ark. 83, 603 S.W.2d 410 (1980), a case involving a very similar sitúation, we held: “[As] the purpose of the limitation period is to assure that a defendant is not detained in jail for an unreasonable time awaiting his revocation hearing, the limitation loses its meaning when he is already serving time on another charge.” See also Beasley v. Graves, 315 Ark. 663, 869 S.W.2d 20 (1994). That holding applies here.

2. Probation conditions

Ms. Bilderback contends the Trial Court should not have revoked her probation as she had served ten months in jail which fulfilled one of the conditions of her probation. Citing Gautreaux v. State, 22 Ark. App. 130, 736 S.W.2d 23 (1987), which held probation may not be revoked after the imprisonment period imposed by the original sentence had passed, she contends she was ineligible for revocation as her sentence had ended. The sentence imposed upon Ms. Bilderback but “deferred” when probation commenced was for six years imprisonment.

The six years had not expired when revocation was considered, thus there was no bar to revocation. Although Ms. Bilderback had served the 10 months in jail, which was a condition of her probation, she had not fulfilled other conditions such as enrollment in a drug treatment program and desisting from committing another crime.

3. Suppression

Ms. Bilderback contends, with no citation of pertinent authority, that the written statement containing her confession should have been suppressed because it was not signed by her. The record shows she signed and initialed answers on a rights form in conjunction with the taking of her statement indicating her understanding of her waiver of the right to advice of counsel and the right to remain silent. Ordinarily we would engage in a determination whether the statement was made knowingly and voluntarily based on the “totality of the circumstances.” Piercefield v. State, 316 Ark. 128, 871 S.W.2d 348 (1994); Moore v. State, 303 Ark. 514, 798 S.W.2d 87 (1990). We need make no such determination in this case.

Arkansas R. Crim. P. 24.3(b) allows a defendant, “With the approval of the court and the consent of the prosecuting attorney,... [to] enter a conditional plea of guilty ... reserving in writing the right, on appeal from the judgment, to review of an adverse determination of a pretrial motion to suppress evidence.” We will not entertain an appeal of a suppression issue in conjunction with a guilty plea unless the requirements of Rule 24.3(b) have been met. Noble v. State, 314 Ark. 240, 862 S.W.2d 234 (1993). The requirement of “reserving in writing” the right of review was not met, and we have been cited to no authority which would allow us to consider whether there was substantial compliance in view of the opening pronouncement of the Trial Court and the fact that the parties may have proceeded as if the plea were conditional. As stated in Scalco v. City of Russellville, 318 Ark. 65, 883 S.W.2d 471 (1994), “If the express terms of Rule 24.3 are not complied with, the appellate court acquires no jurisdiction to hear the appeal of a conditional [guilty] plea.”

4. Illegal sentence

The State points out that the sentence given Ms. Bilderback upon revocation may have been illegal because it exceeded the six-year sentence initially imposed, see Easley v. State, 274 Ark. 215, 623 S.W.2d 189 (1981), and the jail term exceeded that allowable pursuant to Ark. Code Ann. § 5-4-304 (Repl. 1993). Bangs v. State, 310 Ark. 235, 835 S.W.2d 294 (1992).

While an appellant may raise on appeal the issue of an illegal sentence without having objected to it at the trial, Bangs v. State, supra; Howard v. State, 289 Ark. 587, 715 S.W.2d 440 (1986), in other than life imprisonment or death sentence cases we do not consider such a question on appeal unless the appellant has raised it here. In Deaton v. State, 283 Ark. 79, 671 S.W.2d 175 (1984), we recognized the illegality of a sentence upon revocation which was in excess of the fixed term remaining on the suspended sentence, but we declined to treat the matter and said, “. . . no appeal was taken. If the state attempts to enforce the sentence, the appellant must raise the matter in a post-conviction proceeding.”

Affirmed.


author: Tom Glaze, Justice. Robert L. Brown, Justice,

text:
    Deborah J. THOMSON and John Thomson v. A.B. and W.C. LITTLEFIELD, d/b/a Littlefield Oil Company, and Teddy Tritt
    94-841
    893 S.W.2d 788
    Supreme Court of Arkansas
    Opinion delivered February 27, 1995
    [Rehearing denied April 13, 1995.]

      Ronald W. Metcalf, P.A., for appellants.

      Davis, Cox & Wright, by: Constance G. Clark and Tilden P. Wright, III, for appellees.

      Brown and Roaf, JJ., would grant rehearing.

   Tom Glaze, Justice.

Appellant Deborah J. Thomson was driving her car in the westbound lane on Highway 22 near Charleston when a collision occurred causing her serious injuries. Allen Jones and appellee Carol Riechmann were in their respective vehicles in the westbound lane and behind the Thomson vehicle, which was stopped with its left turn signal activated waiting to turn into the driveway of Dave’s One-Stop. Riechmann’s pickup truck rearended the Jones car, propelling it into the back of Thomson’s car causing it to cross the westbound lane. The Thomson car came to rest partially in both the One-Stop driveway and the eastbound lane of Highway 22. Appellee Teddy Tritt was driving east at the time in a truck owned by appellee Littlefield Oil Co., and attempted to avoid collision with the two cars by passing between them. Nevertheless, Tritt’s truck hit both the Thomson and Jones vehicles, resulting in Thomson’s vehicle flipping over into a ditch. Ms. Thomson, twenty-three years old, sustained brain damage, paralysis on her right side and confinement to a wheelchair. Ms. Thomson and her husband brought suit against Tritt, Littlefield Oil, Jones and Riechmann, but Jones was later dismissed from the action. Following trial against the remaining parties, the jury returned a verdict against Riechmann, finding her 100% at fault, and dismissed Tritt and Littlefield Oil with prejudice. The jury awarded Ms. Thomson $1,388,500 and her husband $50,000. Both the Thomsons and Riechmann filed motions for new trial, and the trial court denied the Thomsons’ but granted Riechmann’s. Subsequently, the Thomsons dismissed their complaint against Riechmann without prejudice but appealed from the judgment dismissing Tritt and Littlefield Oil.

The Thomsons first argue that Mike Jeffers, the officer who investigated the scene of the accident, was erroneously allowed to testify as to what he considered to be the contributing factors to the accident. On appeal, they contend Jeffers had not been qualified as an expert accident reconstructionist, nor did the trial court acknowledge Jeffers as an expert. The Thomsons argue that Jeffers’ opinion was that of a layman and was inadmissible under A.R.E. 701, since he was not an eyewitness. They further assert that, even if Jeffers had been qualified as an expert, the probative value of his testimony was outweighed by the danger of undue prejudice. Appellees point out that the Thomsons made no specific objection below and that none of these arguments on appeal were mentioned or preserved at trial. The Thomsons called Officer Jeffers as a witness, but Jeffers’ testimony pertinent to the Thomsons’ argument was elicited on cross-examination by Tritt’s and Littlefield Oil’s counsel and reads as follows:

Q: Tell me a little bit about what you do when you investigate an accident.
A: Basically, as I stated, check for injuries and then from there you just try to piece together basically what has occurred.
Q: Why are you interested in what has occurred?
A: Well, that’s the purpose of investigating an accident to determine possibly who is at fault or why the collision occurred.
Q: Is that one of the things that you as a police officer for Charleston are suppose to do when you investigate accidents that are within your jurisdiction?
A: Yes, sir.
Q: And, if you find fault during the course of your investigation, do you customarily issue citations?
A: Customarily, yes, sir.
Q: Did you make such an investigation in this case to determine whether or not there was any fault on any of the participants to this accident?
A: As far as the —
Thomsons’ Counsel: Your Honor, may we approach the Bench?
BY THE COURT: Yes, sir.
(Side-Bar Conference, outside the hearing of the Jury)
Thomsons’ Counsel: Your Honor, I’m not sure where this is headed.
Defense Counsel: I think he knows where it’s headed. I am going to ask him if he found any fault in this accident and go through the contributing factor section of his report. I have no intentions of asking him about citations. I don’t think that’s admissible; but I think I can ask his findings.
Thomsons’ Counsel: I don’t think it would be proper to go through the fault section of the report, Your Honor, in this particular situation.
Defense Counsel: He qualified him over a hundred accident investigations.
BY THE COURT: As long as you stay away from citations I don’t have a problem.

As is readily apparent from the above colloquy, the Thomsons made no specific objection to Jeffers’ testimony. In fact, it can be argued they acquiesced in the trial court’s ruling to allow Jeffers to testify to fault, so long as he stayed away from any citations he had issued. Then defense counsel proceeded with his examination of Jeffers by asking Jeffers which vehicles were contributing factors to the accidents. Jeffers said that the Thomson, Jones and Tritt vehicles were not contributing factors to the collisions, but Riechmann’s vehicle was. Again, the Thomsons never objected, nor did they mention any of the specific grounds they now argue on appeal.

In an attempt to salvage their argument, the Thomsons cite A.R.E. 103(a)(1) which provides error may not be predicated upon a ruling admitting evidence unless there is a timely, specific objection. They also state that Rule 103(a)(1) further provides that a specific ground of objection need not be stated when the error is obvious from the context, and urges that that is the situation here. We must disagree.

First, while this court has said that a specific ground of objection need not be stated when the error is obvious from the context, Rule 103(a)(1) does not mean that no objection need be made. Powell v. Burnett, 304 Ark. 698, 805 S.W.2d 50 (1991). Here, the Thomsons made no clear objection, and as previously noted, it can easily be argued they acquiesced in the trial court’s ruling. Second, the context of the colloquy between the trial court and counsel leaves us questioning the true nature of the Thomsons’ initial inquiry of the trial court. They mentioned nothing pertaining to the possible hearsay nature of Jeffers’ testimony, or whether such testimony was inadmissible as lay or expert opinion evidence. Nor did they suggest at trial, as they do now, that, even if Jeffers had been properly qualified as an expert, his testimony still should have been excluded under Rule 403 because of its prejudicial impact. For those reasons, we are unable to reach the merits of the Thomsons’ first argument.

The Thomsons’ second point for reversal is that the trial court erred in refusing to admit expert testimony regarding a skid test performed on Tritt’s (Littlefield Oil’s) truck. The Thomsons believed, given the distance between their vehicle and the Littlefield Oil truck at the start of the accident, the truck should have been able to stop prior to the point of impact. Thus, in preparation for trial, the Thomsons requested that the trial court require Littlefield Oil to produce for inspection the truck which was involved in the accident, so they could have their expert conduct braking and skid tests. The trial court agreed, but it cautioned counsel such test results might be inadmissible at trial.

In its order granting the Thomsons’ request, the trial court established a date and protocol for the testing and specifically directed that representatives of Littlefield Oil must be present when the Thomsons’ expert and driver performed the test. The Thomsons concede that, at the time of the testing, their expert and driver drove the Littlefield Oil truck out of the sight of those present and performed some tests. In later ruling these test results inadmissible at trial, the trial court stated the Thomsons’ expert and driver had violated its order and the integrity of the tests had been violated. In short, the trial court found the test results, as conducted, were prejudicial to Tritt and Littlefield Oil and provided the Thomsons with an unfair advantage.

The rule is settled that a trial court has discretion in determining the relevance of evidence and in gauging its probative value against unfair prejudice, and its decision on such a matter will not be reversed absent abuse of that discretion. Simpson v. Hunt, 294 Ark. 41, 740 S.W.2d 618 (1987); Carr v. Suzuki Motor Company, 280 Ark. 1, 655 S.W.2d 364 (1983); A.R.E. Rule 403. We conclude that the trial court gave a fair and reasonable explanation for excluding the Thomsons’ expert testimony pertaining to the tests as conducted, and therefore should be affirmed.

Before leaving point two, we mention the Thomsons’ discussion surrounding the fact that, after the trial court fixed a date for the inspection of Littlefield Oil’s truck but before that date occurred, Tritt authorized the repair of the truck’s vacuum booster check valve and vacuum gauge. Tritt did not disclose this repair job to the Thomsons, thus, the Thomsons argue that an intentional spoliation of evidence had occurred preventing them from inspecting the truck’s mechanical condition as it existed at the time of the accident. While Tritt admitted the described repairs were made, full disclosure of these repairs was made at trial. In other words, to the extent Tritt’s conduct involved a spoliation of evidence, the jury was made fully aware of that conduct and of Tritt’s silence on the subject. The trial court’s ruling allowing the Thomsons to reveal these matters to the jury was correct and within its discretion and gives the Thomsons no cause to complain. We are unable to think of what more the trial court could have done in these circumstances.

The Thomsons’ third argument is that the trial court erred in giving AMI 614 on sudden emergency because Tritt failed to maintain proper lookout and control of his truck at the time of the accident. Considerable testimony was given concerning when Tritt first saw the collision take place between the Reichmann, Jones and Thomson vehicles and his possible reaction or braking time to avoid the final stage of the accident. The Thomsons place emphasis on Tritt’s testimony that, while he had seen Ms. Thomson’s vehicle stop in preparation to turn left into One-Stop’s east driveway, Tritt looked into his side mirrors to make sure a white car, which had been following him closely, was not attempting to pass. In looking forward again, Tritt was confronted with seeing Thomson’s car coming into and finally coming to rest partially in his eastbound lane; his choices were to veer right into a 3.5 foot deep culvert, veer left into the westbound lane where Riechmann’s truck was located or pass between what appeared to be a gap between the Thomson and Riechmann vehicles. He unsuccessfully attempted the latter choice, but the Jones car crossed over into his lane, preventing him from missing the Thomson car and causing him to knock it into the culvert.

AMI Civil 3d 614 reads as follows:

SUDDEN EMERGENCY
A person who is suddenly and unexpectedly confronted with danger to himself or others not caused by his own negligence is not required to use the same judgment that is required of him in calmer and more deliberate moments. He is required to use only the care that a reasonably careful person would use in the same situation.

In the plain terms of AMI 614, when an emergency arises wholly or partially from the negligence of the person who seeks to invoke the sudden emergency doctrine, AMI 614 has no application and should not be delivered to the jury. Druckenmiller v. Cluff, 316 Ark. 517, 873 S.W.2d 526 (1994) (see Glaze, J. concurring). In the present case, Tritt in no way caused the danger with which he was confronted, but instead only became aware of the danger caused by another (or others), perceived the emergency and acted in accordance with the stress caused by the danger. Id. The issue became one of fact as to whether Tritt used only the care that a reasonably careful person would use in the same situation, not whether he was entitled to AMI 614. Tritt clearly was entitled to the sudden emergency instruction, since he did not create the emergency. Smith v. Stevens, 313 Ark. 534, 855 S.W.2d 323 (1993).

The Thomsons next submit that Littlefield Oil’s truck was in poor mechanical condition in violation of, and that Littlefield Oil failed to comply with, federal Department of Transportation regulations. Therefore, they claim the trial court erred in rejecting two proffered instructions setting out certain regulations the Thomsons claim were violated by Tritt and Littlefield Oil. These violations, the Thomsons assert, were the proximate cause of Tritt’s collision.

The Thomsons offer little argument in support of this point and only one legal citation to support their claim that federal safety regulations can be, and here should have been, submitted to the jury. It is well-settled law that the violation of a safety statute is evidence of negligence, however, it is required such negligence be a proximate cause of the injuries before the rule is applicable in a particular case. Bussell v. Missouri Pacific Railroad, 237 Ark. 812, 376 S.W.2d 545 (1964). As appellees point out, the Thomsons presented no evidence demonstrating the federal Department of Transportation regulations were applicable to Littlefield Oil’s truck. Instead, the owner of Littlefield Oil testified that such regulations applied to trucks transporting gasoline and other hazardous materials, not trucks transporting sand as was the case here. Because the Thomsons offer no convincing argument or showing that the proffered federal Department of Transportation regulations are applicable to the situation here, we affirm the trial court’s ruling rejecting the Thomsons’ proposed instructions.

Finally, in a single sentence, the Thomsons state the trial court erred in refusing them a new trial. Without a discussion of the law or evidence, they assert that no substantial evidence exists to support the jury verdict favoring Tritt and Littlefield Oil. As this court has stated numerous times, arguments on appeal that are unsupported by convincing argument or authority will not be considered on appeal, unless it is^apparent without further research that the argument is well taken. Fayetteville School Dist. v. Arkansas State Bd. of Educ., 313 Ark. 1, 852 S.W.2d 122 (1993). Here, although required, the Thomsons offer no argument at all.

For the reasons discussed hereinabove, we affirm.

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

Robert L. Brown, Justice,

dissenting. I disagree that the Thomsons’ counsel failed to object to Officer Jeffers’s testimony. The investigating officer had been called as the plaintiffs’ witness, but on cross-examination the questioning veered off into how the officer assessed fault in the accident. The attorney for the Thomsons immediately stopped the trial and asked for a sidebar conference. At that conference, outside of the jury’s hearing, this exchange occurred:

- Thomsons’ Counsel: Your Honor, I’m not sure where this is headed.
Defense Counsel: I think he knows where it’s headed. I am going to ask him if he found any fault in this accident and go through the contributing factor section of his report. I have no intentions of asking him about citations. I don’t think that’s admissible; but I think I can ask his findings.
Thomsons’ Counsel: I don’t think it would be proper to go through the fault section of the report, Your Honor, in this particular situation.
Defense Counsel: He qualified him over a hundred ■ accident investigations. ■
BY THE COURT: As long as you stay away from citations I don’t have a problem.

It was obvious to the three participants what was at issue. And the trial court ruled on the matter.

The majority says Thomsons’ counsel made no.objection. Presumably, had counsel stated, “I object to going through the fault section of the report” as opposed to “I don’t think it would be proper to go through the fault section of the report,” the majority would be satisfied. I see little or no distinction between the two statements. In Black’s Law Dictionary, “objection” is defined as the “act of a party,” which is “[u]sed to call the court’s attention to improper evidence or procedure.” Black’s, p. 1073 (6th Ed. 1990). The term is further defined as an “adverse reason or argument.” Id. All of the requirements for an objection were met in this case. In viewing what occurred here, it is too restrictive to have the decision turn on whether the word “object” was used.

I further disagree that the grounds for the objection were unclear or imprecise. This was a sidebar conference. The Thomsons’ counsel objected to the officer’s testimony as to fault. True, the Thomsons embellished on that argument in their appeal, but the core objection was made at trial. Our Rules of Evidence state that specificity of the grounds asserted may be determined from the objection or the context. Ark. R. Evid. 103(a)(1); Philmon v. State, 267 Ark. 1121, 593 S.W.2d 504 (1986). Here, both pertain. In other words, it is obvious from counsel’s statements and the context what the basis for his objection was — an investigating officer may not opine as to which parties were at fault.

Here, Officer Jeffers proceeded to give his opinion:

DEFENSE COUNSEL: Did you find any contributing factors to this accident whatsoever?
JEFFERS: There was one contributing factor; yes, sir.
DEFENSE COUNSEL: And, what was that?
JEFFERS: That was the vehicle that was cited for following too closely.
DEFENSE COUNSEL: And, what vehicle was that?
JEFFERS: That would have been the vehicle of the Riechmanns.
DEFENSE COUNSEL: Did you find any contributing factors on the part of the Allen Jones vehicle?
JEFFERS: No contributing factor.
DEFENSE COUNSEL: Did you find any contributing factors on the part of the Deborah Thomson vehicle?
JEFFERS: No contributing factors.
DEFENSE COUNSEL: Did you find any contributing factors on the part of Ted Tritt’s vehicle?
JEFFERS: No contributing factors.
DEFENSE COUNSEL: Did you as a result of your accident investigation satisfy yourself that Ted Tritt’s actions and inactions that may have occurred were not a contributing factor to this event?
JEFFERS: I was completely satisfied that Mr. Tritt was not a factor in this collision.

The impact of this testimony was clearly immense, and counsel’s objection, just as clearly, was voiced to the trial court. I find no basis for the majority’s conclusion that the Thomsons’ counsel “acquiesced” in this testimony in any respect. I would hold that an objection was made on specific grounds and reach the merits of this issue. I respectfully dissent.

Holt, C.J., and Roaf, J., join.


author: Robert L. Brown, Justice.

text:
    Roger D. FLEMENS and Nancy Flemens v. Glen D. HARRIS
    94-245
    893 S.W.2d 783
    Supreme Court of Arkansas
    Opinion delivered February 27, 1995
    [Rehearing denied March 27, 1995.]

      Wright, Chaney, Berry & Danie, P.A., by: Don P. Chaney, for appellants.

      Wood, Smith, Schnipper & Clay, by: Philip M. Clay and Lynn Williams, for appellant.
   Robert L. Brown, Justice.

The appellants in this case, Roger D. Flemens and Nancy Flemens, appeal an order granting summary judgment to appellee Glen D. Harris because the Flemenses’ complaint for negligence was filed outside of the time of the applicable statute of limitations. Because the record on appeal fails to reflect any disposition of the complaint filed by the Flemenses against a party defendant, Shelter Life Insurance Company, we dismiss the appeal for lack of finality under Ark. R. Civ. P. 54(b).

In the summer of 1988, Glen Harris was an insurance agent for Shelter Life in the town of Dierks. He had passed his state licensure examination in June 1988. On August 8,1988, Harris sold Roger Flemens several insurance policies on behalf of Shelter Life, including a disability insurance policy. Roger Flemens’s wife, Nancy Flemens, was the named beneficiary under that policy which, upon her husband’s disability, would pay her $1,000 a month.

On December 15, 1988, Roger Flemens had a car accident in which he experienced back injuries. He applied for disability benefits under his policy with Shelter Life and initially received one payment in the amount of $233.33 by check dated February 7, 1989, for his disability during the last two weeks in December 1988. On March 21, 1989, Shelter Life then discovered what it described as a “problem” with the policy and stopped paying benefits. Shelter Life contended that Roger Flemens had misrepresented his annual earned income on the application form as being too high. On December 13, 1991, the Flemenses filed a complaint against Harris and Shelter Life and alleged that Harris was negligent in completing the insurance application for Roger Flemens which provided Shelter Life with “an excuse” not to pay benefits. The complaint further alleged that Shelter Life had failed and refused to pay the benefits due and owing, despite demand.

The parties on appeal have advised this court that Shelter Life was dismissed from this litigation due to settlement, but there is no order in the record of this appeal showing that Shelter Life was dismissed as a party defendant. An Abstractor’s Note was included in the Flemenses’ brief in this appeal to the effect that Shelter Life “was dismissed early on in this litigation.” Appellee Harris confirmed that fact in his brief and added that Shelter Life “was dismissed after a settlement and compromise which required a payment from Shelter to the Appellants of $125,000.” The only reference in the record to Shelter Life’s status, however, is the following statement in Harris’s brief before the trial court in support of his motion for summary judgment:

It is first important to ask the court to note that the only issue remaining and pertaining to the parties in this action, Roger Flemens, Nancy Flemens and Glen Harris, is an action for contended negligence on the part of Defendant Harris in the handling of Plaintiff’s application for disability insurance. The independent action, which Plaintiff Roger Flemens has filed against Shelter Insurance Company in the Circuit Court of Pike County, Arkansas, and subsequently removed to the United States District Court for the Western District of Arkansas has been settled and compromised between the parties.

But that reference in the record and those statements in the parties’ briefs on appeal fall short of a court order which specifically disposes of the claim against Shelter Life.

At oral argument of this matter, counsel for the parties stipulated that Shelter Life had indeed been dismissed from the lawsuit, and counsel for appellee Harris informed the court that his firm had also been counsel for Shelter Life in the trial court. Nevertheless, we decline to reach the merits of this appeal because there is no court order dismissing the complaint against Shelter Life. Cortese v. Atlantic Richfield, 317 Ark. 207, 876 S.W.2d 581 (1994); Martin v. National Bank of Commerce, 316 Ark. 83, 870 S.W.2d 738 (1994). In Cortese v. Atlantic Richfield, supra, the record on appeal did not reflect what had happened regarding some 20 defendants. We declined in that case to rely on the recollections of counsel for both the appellant and appellees at oral argument about what had happened to those 20 defendants in the trial court, and we dismissed the appeal. We consider the Córtese decision to be precedent for the case before us. Consistency demands that we require more than the recollections of counsel in the case before us.

Nor is there a certification in the trial court’s order which would permit a piecemeal-appeal under Rule 54(b). Id. Failure to dispose of all claims or all of the parties is a jurisdictional matter which we are obligated to raise on our own. Maroney v. City of Malvern, 317 Ark. 177, 876 S.W.2d 585 (1994). Parties may not consent or stipulate for the purpose of establishing subject matter jurisdiction in a particular court. Arkansas Department of Human Services v. Estate of Hogan, 314 Ark. 19, 858 S.W.2d 105 (1993); Waddle v. Sargent, 313 Ark. 539, 855 S.W.2d 919 (1993).

-We dismiss the appeal without prejudice.

Glaze and Roaf, JJ., dissent, would reach the merits of the appeal.


text:
    Don GARRETT and Doris Garrett v. Ronnie BROWN
    94-959
    893 S.W.2d 784
    Supreme Court of Arkansas
    Opinion delivered February 27, 1995

      Murrey L. Grider, for appellants.

      Bradley & Coleman, by: Jon R. Coleman and Robert J. Gibson, for appellee.
   Robert L. Brown, Justice.

Appellants Don Garrett and Doris Garrett appeal on the basis that the trial court erred in two respects: (1) by failing to grant a directed verdict at trial in their favor, and (2) by failing to order a new trial due to the inadequate damages awarded and to the prejudicial testimony of Don Garrett’s alcohol consumption. Neither point has merit in our judgment, and we affirm.

On March 20, 1992, the Garretts were traveling east on a motorcycle on Highway 67 (Main Street) in Walnut Ridge. Don Garrett was the driver and Doris Garrett was the passenger. At the same time, appellee Ronnie Brown was exiting from a Worthen Bank driveway. He crossed the two westbound traffic lanes of Highway 67 and began to turn east in the inside lane. It is disputed whether the Garretts changed from the outside lane to the inside lane as they traveled east. It is further disputed whether Brown’s vehicle hit the Garretts’ motorcycle from the rear or whether the motorcycle struck the car. In any case the motorcycle and the car collided, the motorcycle turned over, and both of the Garretts were injured.

The Garretts filed a complaint against Brown for negligence and sought damages for property loss, medical expenses, loss of work time and diminished earning capacity, and pain and suffering. Brown answered and alleged that Don Garrett’s fault proximately caused the accident. At trial, Don Garrett testified that he turned onto the inside lane of Highway 67 and was moving east when his motorcycle was hit. Doris Garrett testified that the motorcycle was struck by the Brown vehicle “behind my leg.”

Ronnie Brown and his passenger, Curtis Neal Fain, testified to the following. Brown asked Fain whether the eastbound traffic lane was clear, and Fain answered that it was. At that point, according to Fain, the Garrett motorcycle was in the outside lane. Fain stated that as the Brown car pulled out of the Worthen Bank driveway, the Garrett motorcycle began to change from the outside lane to the inside lane. When Brown saw the motorcycle, he tried to veer away, but there were two trucks proceeding toward him in the westbound lane. Brown stated that the front grill of his car was not damaged but that the front tire area and right front fender showed marks of a collision. Brown added that when he rolled Don Garrett over following the accident, Garrett was wet and smelled of alcohol. He also noticed a beer can at the scene of the accident. The investigating police officers did not detect the smell of alcohol; nor did they test Garrett for his blood/alcohol content.

At the conclusion of all the evidence, the Garretts moved for a directed verdict on the issue of their liability. The motion was denied, and the trial court instructed the jury on comparative fault. The jury found for the Garretts and awarded damages of $2,315.86 to Doris Garrett and $3,168.82 to Don Garrett. Judgment was entered accordingly. The Garretts then moved for a new trial on the basis of grossly inadequate damages and abuse of discretion in permitting evidence of Don Garrett’s alcohol consumption. The trial court did not rule on the motion within 30 days, and it was deemed' denied.

The Garretts’ first point on appeal is that the trial court erred in refusing to direct a verdict in their favor on the issue of their own negligence and in instructing the jury on comparative fault. We disagree. In the past, we have made clear the test for our review of a trial court’s ruling on a motion for directed verdict:

The test for the trial court in ruling on a motion for a directed verdict by either party is to take that view of the evidence that is most favorable to the non-moving party and give it its highest probative value, taking into account all reasonable inferences deducible from it; after viewing the evidence in this manner, the trial court should: (1) grant the motion only if the evidence is so insubstantial as to require that a jury verdict for the non-moving party be set aside, or (2) deny the motion if there is substantial evidence to support a jury verdict for the non-moving party. Farm Bur. Mut. Ins. Co. v. Henley, 275 Ark. 122, 628 S.W.2d 301 (1982). Substantial evidence is that which is of sufficient force and character that it will compel a conclusion one way or another. It must force or induce the mind to pass beyond a suspicion or conjecture. Id.

Kinco v. Schueck Steel, Inc., 283 Ark. 72, 76, 671 S.W.2d 178, 180-181 (1984); see also Precision Steel Warehouse, Inc. v. Anderson-Martin Machine Co., 313 Ark. 258, 854 S.W.2d 321 (1993); Young v. Johnson, 311 Ark. 551, 845 S.W.2d 509 (1993); Williams v. Smart Chevrolet Co., 292 Ark. 376, 730 S.W.2d 479 (1987).

With this test in mind, we turn to the proof presented of the Garretts’ negligence. There was testimony at trial that the Garrett motorcycle changed lanes without checking to see if the inside lane was occupied which was a factor in the accident. There was further testimony that the point of impact on the Brown vehicle was at the right front side and that the right front fender had been pulled away above the right front wheel, indicating that the Garrett motorcycle struck the car rather than that the car hit the motorcycle from the rear. Brown’s friend, Fain, and Brown himself also testified to the smell of alcohol about Don Garrett.

This case, admittedly, represents something of a swearing match between the parties. Ultimately, the weight and value to be given the testimony of witnesses lies within the exclusive province of the jury. Pineview Farms, Inc. v. A.O. Smith Harvest Store, Inc., 298 Ark. 78, 765 S.W.2d 924 (1989). Viewing the proof in the light most favorable to Brown, we cannot say that it does not represent substantial evidence of fault on the part of the Garretts. The trial court did not err in its ruling.

For their second point, the Garretts contend that the trial court abused its discretion in failing to grant a new trial due to insufficient damages and to the testimony of alcohol consumption in connection with Don Garrett. They contend that they sustained $3,250 for damage to the motorcycle; $90 for a towing bill; $1,768.82 for Don Garrett’s medical expenses; $1,400 for Don Garrett’s lost wages; $1,653.37 for Doris Garrett’s medical expenses; $244 a week for three weeks for her lost wages; and damages for pain and suffering. The jury awarded Don Garrett $3,168.82 and Doris Garrett $2,315.86.

Regarding the first prong of this argument, our rules concerning new trials state that error in the assessment of recovery, whether too large or too small, is a ground for a new trial even in the absence of other trial error. Ark. R. Civ. P. 59(a)(5); Kempner v. Schulte, 318 Ark. 433, 885 S.W.2d 892 (1994). Where the primary issue is the alleged inadequacy of the jury’s award, this court will sustain the trial court’s denial of the motion for new trial unless there is a clear abuse of discretion. Id. An important consideration in this analysis is whether a fair-minded jury might reasonably have fixed the award at the amount advocated by the appellant. Id. The jury may believe or disbelieve the testimony of one or all of the witnesses, even when the evidence is uncontradicted. Id.

The Garretts urge that the jury failed to make any award for pain and suffering or for property damage. It does appear that the damages awarded did approximate medical expenses for the Garretts, lost wages, and a towing bill. Nevertheless, we will not engage in speculation on how the jury verdicts were reached. There was testimony that only the plastic windshield and plastic saddle bags of the motorcycle were damaged in the wreck and that the motorcycle had 37,000 miles at the time of the accident. There was also testimony that the motorcycle was going at a slow rate of speed at the time of the accident; that Don Garrett was released from the Emergency Room of the hospital on the day of the accident with a prescription for pain medication; and that Doris Garrett told an investigating police officer that she was doing “fine” at the hospital after the accident. The jury may have decided that the Garretts did not experience pain and suffering, or it may have awarded damages for pain and suffering and not for some of the medical expenses. Again, it would be pure crystal ball gazing to attempt to divine the origin for these amounts. The Garretts could, of course, have submitted interrogatories requesting that the jury allocate its damage award. They did not do this and, as a result, we are left only to speculate about the awards which we will not do. Hubbard v. Jackson, 298 Ark. 93, 766 S.W.2d 2 (1989).

In this same vein, the Garretts argue that the jury failed to make an award for three weeks of Doris Garrett’s lost wages. Specifically, they argue that the jury incorrectly based the damage award on net pay rather than on gross pay. The Garretts are correct that, ordinarily, the proper measure of damages for wage loss is the gross amount of the wages. Cates v. Brown, 278 Ark. 242, 645 S.W.2d 658 (1983). Be that as it may, the Garretts invited this error when they submitted an exhibit by stipulation which showed the jury Doris Garrett’s net pay. We will not reverse a judgment based on an error invited by the appellant. See Security Pacific Housing Services, Inc. v. Friddle, 315 Ark. 178, 866 S.W.2d 375 (1993); Schmidt v. McIlroy Bank & Trust, 306 Ark. 28, 811 S.W.2d 281 (1991).

The second prong of the Garretts’ argument is that a new trial is warranted because the trial court erred in allowing evidence of Don Garrett’s consumption of alcohol. This point has no merit because the Garretts failed to preserve the issue for our review. They moved in limine on April 20,1994, and requested that the court exclude any evidence of alcohol in connection with Don Garrett. Though counsel for Brown admits to a ruling in his brief, we find no evidence in the record that the trial court ever ruled on the motion. Moreover, the Garretts did not object to Brown’s or Fain’s testimony at trial regarding the smell of alcohol on Garrett. The failure to bring up a record showing a ruling on the motion in limine and the failure to object to the testimony precludes us from considering this point as a basis for a new trial. McDonald v. Wilcox, 300 Ark. 445, 780 S.W.2d 17 (1989).

In short, a fair-minded jury could reasonably have fixed the awards in the challenged amounts. National Bank of Commerce v. McNeill Trucking Co., 309 Ark. 80, 828 S.W.2d 584 (1992). We hold that there was no abuse of discretion by the trial court in denying the motion for a new trial. Younts v. Baldor Electric Co., 310 Ark. 86, 832 S.W.2d 832 (1992).

Affirmed.