text:
    Michael FEGANS v. Larry NORRIS, Director, Arkansas Department of Correction, and G. David Guntharp, Assistant Director, Arkansas Department of Correction
    01-1233
    89 S.W.3d 919
    Supreme Court of Arkansas
    Opinion delivered November 21, 2002

      Bowden Law Firm, P.A., by: David O. Bowden, for appellant.

      Mark Pryor, Att’y Gen., by: Ryan P. Blue, Ass’t Att’y Gen., for appellees.
   Per Curiam.

Appellant, an inmate in the Arkansas Department of Correction (ADC), filed this civil rights action against appellees in their official and individual capacities. Appellant’s alleged causes of action all arose out of a 1998 administrative directive concerning inmate cleanliness and grooming. The appellees moved for dismissal pursuant to Ark. R. Civ. P. 12(b)(6). The Lee County Circuit Court subsequendy dismissed the action with prejudice for failure to state a claim. We affirm.

Background

In 1978, inmates of the ADC filed a class action suit against ADC officials, raising First Amendment challenges to ADC grooming and food policies. On October 24, 1979, the parties entered a mediated settlement agreement. As a result of the agreement, the ADC issued a grooming policy stating that “[t]here shall be no standard hair length or style required[,]” of inmates.

In 1998, the ADC issued a new grooming policy. Administrative Directive (A.D.) 98-04 standardized hair length, prohibited beards, set other hygiene and grooming requirements, and authorized disciplinary action for failure to comply. Members of the 1978 class moved for contempt or breach of the settlement agreement. The United States District Court for the Eastern District of Arkansas, however, refused to find the ADC in contempt. In addition, upon the motion of the ADÓ officials, the district court terminated the settlement agreement pursuant to the Prison Litigation Reform Act (PLRA) of 1995. On appeal, the United States Court of Appeals for the Eighth Circuit held that the district court properly terminated the settlement agreement based on the district court’s findings that the settlement agreement failed to meet the standards of the PLRA and that A.D. 98-04 was not unconstitutional. See Jones v. Mabry, No. 99-1396 (8th Cir. 1999) (unpublished). In doing so, the court rejected the class inmates’ argument that the ADC had violated their procedural due process rights by enacting a new grooming policy before seeking to terminate the settlement agreement. Id.

Appellant entered the ADC in 1991. Following the enactment of A.D. 98-04, appellant filed an administrative grievance alleging that application of A.D. 98-04 to him would result in an unconstitutional violation of his religious beliefs. Appellant states that he is a member of the Church of Yahweh, and that his religion requires that his beard and hair not be clipped beyond that allowed within the context of the Bible. Appellant’s grievance was denied by the warden, and his administrative appeal was denied as well. The appellant’s further administrative grievances allegedly went unanswered. Appellant initiated his civil rights action in May 2000, filing pro se a “Request for Declaratory Judgment with Jury Demand.” Two amended petitions for declaratory judgment were later filed. Appellant alleged that following the enactment of A.D. 98-04, he was disciplined on a number of occasions for non-compliance, resulting in harassment and intimidation by ADC personnel, the denial of privileges, loss of good time, loss of class status, loss of opportunity for early release, placement in a maximum security unit, placement in isolation, and retaliatory transfers. Appellant raised five claims in his petitions, and requested declaratory judgment, injunctive relief, and monetary damages. Appellees moved to dismiss the action pursuant to Ark. R. Civ. P. 12(b)(6) for a failure to state facts upon which relief can be granted, raising the defenses of sovereign immunity, statutory immunity, and qualified immunity.

The circuit court dismissed appellant’s action with prejudice for a failure to state a claim. The circuit court also concluded that the dismissal of appellant’s complaint would be considered a strike for purposes of Arkansas Code Annotated § 16-68-607 (Supp. 2001), which provides:

In no event shall an incarcerated person bring a civil, action or appeal a judgment in a civil action or proceeding under the Arkansas indigency statutes if the incarcerated person has on three (3) or more occasions, while incarcerated or detained in any facility, brought an action that is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the incarcerated person is under imminent danger of serious physical injury.

Standard of Review

Both parties submitted exhibits with their pleadings, and the circuit court did not exclude them in dismissing appellant’s complaint with prejudice. Pursuant to Ark. R. Civ. P. 12(b) and (c), a motion to dismiss is converted to a motion for summary judgment when matters outside of the pleadings are presented to and not excluded by the court. Nielsen v. Berger-Nielsen, 347 Ark. 996, 1003, 69 S.W.3d 414, 418 (2002). Summary judgment is appropriate when there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. Id. Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appellate review, this court determines if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Id. This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. Our review focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties. Id.

Motion to Dismiss

Appellant claims on appeal that the circuit court erred in dismissing his complaint because appellees were not entitled to immunity in their official or individual capacities. Fie also argues that AD 98-04 was adopted in violation of the notice and publication requirements of the Administrative Procedures Act. And, he submits that, even if dismissal was proper, his case should be remanded for the entry of an order of dismissal without prejudice with the time his case has been pending in the courts tolled for the purpose of the running of the statute of limitations. He finally contends that the dismissal of his complaint should not be considered a “strike” for purposes of § 16-68-607.

Sovereign immunity is jurisdictional immunity from suit. Short v. Westark Community College, 347 Ark. 497, 504, 65 S.W.3d 440, 445 (2002). This defense arises from Article 5, Section 20, of the Arkansas Constitution, which provides: “The State of Arkansas shall never be made a defendant in any of her courts.” Id. As we stated long ago in Pitock v. State, 91 Ark. 527, 535 (1909), “[A] sovereign State cannot be sued except by its own consent; and such consent is expressly withheld by the Constitution of this State.” Id. In Brown v. Arkansas State HVACR Lic. Bd., 336 Ark. 34, 984 S.W.2d 402 (1999), we pointed out that sovereign immunity provides jurisdictional immunity from suit; where the pleadings show the action is one against the State, the trial court acquires no jurisdiction. Id. Unlike subject-matter jurisdiction, however, sovereign immunity can be waived. Id. The doctrine makes no distinction between actions in equity and actions at law. Id.

Appellant does not dispute that appellees are, in their official capacities, immune to suit for damages. He contends, however, that sovereign immunity fails to prevent the award of declaratory or injunctive relief. As such, the first issue to be resolved is whether appellant’s action constitutes a suit against the State. See Grine v. Board of Trustees, 338 Ark. 791, 797, 2 S.W.3d 54,58 (1999).

While appellant’s complaint does not name the State of Arkansas, he sued appellees in their capacities as employees of the State. A suit against a state official in his or her official capacity is not a suit against that person, but rather is a suit against that official’s office. Id. Short, 347 Ark. at 505, 65 S.W.3d at 445. Even where the State is not named as a defendant, if a judgment for the plaintiff will operate to control the action of the state or subject it to liability, we treat the suit as one against the state. See id. at 505, 65 S.W.3d at 446. As appellant’s request for relief, if granted, would control the action of the ADC, a state agency, and subject it to liability, his claims against appellees in their official capacities are barred by Article 5, section 20, of the Arkansas Constitution.

Appellant also asserts that appellees are liable personally, and are not entitled to statutory, or qualified, immunity. A motion for summary judgment based upon qualified immunity is precluded only when the plaintiff has asserted a constitutional violation, demonstrated the constitutional right is clearly established and raised a genuine issue of fact as to whether the official would have known that the conduct violated that clearly established right. Baldridge v. Cordes, 350 Ark. 114, 119, 85 S.W.3d 511, 514-15 (2002). As applied by this court, the doctrine of qualified immunity is akin to its federal counterpart. Id. Thus, an official is immune from suit if his actions did not violate clearly established principles of law of which a reasonable person would have knowledge. Id.; see also, Harlow v. Fitzgerald, 457 U.S. 800 (1982).

This court has recognized that the immunity provided by Ark. Code Ann. § 19-10-305 (Supp. 2001) is similar to that provided by the Supreme Court for federal civil-rights claims. Id. The statute provides state employees with statutory immunity from civil liability for non-malicious acts occurring within the course of their employment. See Grine, supra. In defining malice, this court has stated: Fuqua v. Flowers, 341 Ark. 901, 905-06, 20 S.W.3d 389, 391 (2000).

“It is true that in law malice is not necessarily personal hate. It is rather an intent and disposition to do a wrongful act greatly injurious to another.” Satterfield v. Rebsamen Ford, Inc., 253 Ark. 181, 185, 485 S.W.2d 192, 195 (1972); see also Stine v. Sanders, 66 Ark. App. 49, 987 S.W.2d 289 (1999). Malice is also defined as “the intentional doing of a wrongful act without just cause or excuse, with an intent to inflict an injury or under circumstances that the law will imply an evil intent. ... A conscious violation of the law . . . which operates to the prejudice of another person. A condition of the mind showing a heart . . . fatally bent on mischief.” Black’s Law Dictionary, 956-57 (6th ed. 1990). Although the complaint alleges an evil intent in the acts or omissions of the Department, a bare allegation of willful and wanton conduct will not suffice to prove malice. Beaulieu, 288 Ark. at 399, 705 S.W.2d at 882.

The appellee officials are immune from suit in this action because they did not violate clearly established principles of law of which a reasonable person would have knowledge. In this case, appellees submitted the cases of Jones v. Mabry, No 99-1396 (8th Cir.1999) (unpublished), and Williams v. Norris, No. 00-1877 (8th Cir. 2001) (unpublished), as exhibits to their motion to dismiss. Appellee Norris was a defendant in both those cases, and Appellee Guntharp was a defendant in Williams. As such, both appellees were aware that the United States Court of Appeals for the Eighth Circuit had ruled that the ADC did not violate inmates’ procedural due process rights in enacting AD 98-04, that AD 98-04 was constitutional, that the 1979 mediated settlement agreement was properly terminated by the United States District Court for the Eastern District of Arkansas, and that First Amendment challenges to prison grooming regulations had repeatedly been rejected by the federal court of appeals. In short, no reasonable prison official, based on the official’s knowledge of the above cases litigated in federal court, would have known that they were violating appellant’s clearly established constitutional rights. Appellant’s conclusory allegations that appellees acted with malice to him when they enacted and enforced AD 98-04 fail to entitle him to relief. Ark. R. Civ. P. 8(a)(1) (requiring that a complaint must state facts, not mere conclusions, in order to entitle the pleader to relief). Accordingly, appellees were immune from suit, and we cannot say that the circuit court erred in dismissing appellant’s complaint.

However, we agree with appellant that the circuit court erred in dismissing his complaint with prejudice. We have explained that summary judgment based upon failure to state a claim upon which relief can be granted is different from summary judgment based upon a lack of disputed material facts, which is the failure to have a claim. Bushong v. Garman, 311 Ark. 228, 235, 843 S.W.2d 807, 811-12 (1992). When summary judgment is granted because of failure to state a claim, the dismissal should be without prejudice in order to afford the plaintiff-appellant a chance to plead further. Id. Therefore, the order dismissing appellant’s complaint is modified to be without prejudice.

Finally, we conclude that the circuit court correctly found that the dismissal of appellant’s complaint would constitute a “strike” for purposes of § 16-68-607. An action “that fails to state a claim upon which relief may be granted” is specifically identified, along with frivolous and malicious- suits, as one that counts toward the limited number of civil actions available to incarcerated persons. Ark. Code Ann. § 16-68-607 (Supp. 2001).

Affirmed as modified.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Myron Kent GEORGE v. STATE of Arkansas
    CR 01-871
    89 S.W.3d 931
    Supreme Court of Arkansas
    Opinion delivered November 21, 2002

      Joseph D. Hughes, for appellant.

      Mark Pryor, Att’y Gen., for appellee.
   Per Curiam.

Myron Kent George, through his attorney, Joseph D. Hughes, renews his motion for a rule on clerk and seeks, in the alternative, a new trial. The record shows that George’s trial was held January 22-23, 2001. On April 23, 2001, George moved for an extension of time to file the record. On June 1, 2001, that motion was granted and the time for filing the record was extended until August 9, 2001. George then filed a motion for rule on clerk on August 8, 2001. On September 13, 2001, we denied the motion and issued a per curiam order to the circuit court “to take whatever actions are necessary to secure the prompt certification of a full and complete record for appeal in this matter.” George v. State, 346 Ark. 22, 22, 53 S.W.3d 526, 527 (2001) (per curiam). On October 2, 2001, George’s counsel received the transcript. By order dated October 25, 2002, the trial court found (1) that there were no substantial defects in the transcript prepared by Nila Keels and lodged by George, and (2) that the transcript was sufficiently accurate for use and consideration by this court for purposes of this appeal.

Counsel for George now brings this renewed motion for rule on clerk and points out again that the court reporter, Nila Keels, was not a certified court reporter at the time of George’s trial. He further states that due to the passage of time, he is unable to certify with any certainty that the transcript of the lower court proceedings is accurate. Moreover, he asserts that he is unwilling to do so. Nevertheless, he moves for a rule on clerk and requests that this court direct the Supreme Court Clerk to file the transcript. In the alternative, he requests a new trial.

The State responds that it is unclear from George’s motion whether George’s counsel actually reviewed the transcript prepared by Ms. Keels. In the absence of such an averment, the State urges this court to deny his motion and direct the Supreme Court Clerk to accept the transcript for purposes of this appeal. In support of its argument, the State submits the affidavit of Curtis Hitt, Deputy Prosecuting Attorney for Green County, in which he states under oath that he prosecuted George and that he has reviewed the transcript and attached exhibits. Hitt avers that with the exception of insignificant clerical errors the trial transcript appears to be a fair and accurate record of the trial.

Our procedure for filing a record prepared by an uncertified court reporter was set out in Mitchell v. State, 345 Ark. 359, 45 S.W.3d 846 (2001)(per curiam). There, we specified that our Supreme Court Clerk would only be directed to accept a record prepared by an uncertified court reporter upon certification by the attorneys of record by means of affidavits that the transcript was true, accurate, and complete. In the case before us, we have a certification by the prosecuting attorney, together with a finding of sufficient accuracy by the trial court. Defense counsel has refused to certify the transcript due to the passage of time, but it is he who moves this court for a rule on clerk to require the clerk to file the transcript. Other than his general reference to the “passing of time,” defense counsel provides this court with no identified defects in the transcript or other reason for his refusal to certify.

We hold that the trial court’s order finding sufficient accuracy for appeal purposes and the prosecuting attorney’s affidavit certifying the transcript to be a fair and accurate record of George’s trial satisfy the Mitchell requirements. The motion, accordingly, is granted.

Corbin and Hannah, JJ., would deny.


text:
    Terry JACKSON v. STATE of Arkansas
    CR 02-1190
    89 S.W.3d 930
    Supreme Court of Arkansas
    Opinion delivered November 21, 2002

      Greg Robinson, for appellant.
    No response.
   Per Curiam.

Petitioner, Terry Jackson, by his attorney, Greg Robinson, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to a mistake on his part.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981); In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

A copy of this per curiam will be forwarded to the Committee on Professional Conduct. In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.


text:
    Michael James WICKER v. STATE of Arkansas
    CR 02-1161
    89 S.W.3d 931
    Supreme Court of Arkansas
    Opinion delivered November 21, 2002

      Richard Mattison, for appellant.
    No response.
   Per Curiam.

Appellant Michael James Wicker, by and through his attorney, has filed a motion for rule on clerk. The court considers the motion as a motion for belated appeal. His attorney, Richard Mattison, states in the motion that the record was tendered late due to a mistake on his part.

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

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


text:
    Harmon WILLIAMS v. STATE of Arkansas
    CR 02-1075
    89 S.W.3d 933
    Supreme Court of Arkansas
    Opinion delivered November 21, 2002

      David Mark Gunter, for appellant.
    No response.
   Per Curiam.

Appellant, Harmon Williams, by and through his attorney, David Mark Gunter, has filed a motion for rule on clerk to lodge the record in this appeal. Because the record was tendered later than the seven months from the date of judgment, we treat his motion as one for a belated appeal. See Ark. R. App. P. — Crim. 4; Ark. R. App. P. — Civ. 5. Attorney Gunter states in the motion that he accepts full responsibility for tendering the record beyond the seven-month period for filing. He further admits that he should have filed a partial record and moved for an extension of time before the seven months from date of judgment rah.

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

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


author: WH. “Dub” Arnold, Chiefjustice.

text:
    Phillip Dewayne WILLIAMS v. STATE of Arkansas
    CR 01-1170
    91 S.W.3d 54
    Supreme Court of Arkansas
    Opinion delivered December 5, 2002
    [Petition for rehearing denied January 9, 2003.]

      Henry & Cullen, L.L.P., by: Tim Cullen, for appellant.

      Mark Pryor, Att’y Gen., by: Lauren Elizabeth Heil, Ass’t Att’y Gen., for appellee.
   WH. “Dub” Arnold, Chiefjustice.

Appellant, Phillip Dewayne Williams, was charged with one count of capital-felony murder, two counts of aggravated robbery, and one count of misdemeanor theft of property. A Pulaski County jury convicted him on all counts, and the trial court sentenced him to life imprisonment without parole for capital murder, and twenty-year terms of imprisonment on each of the aggravated robbery convictions. His sentence for misdemeanor theft of property merged into his felony conviction sentences pursuant to Ark. Code Ann. § 5-4-404(c)(l) (Supp. 2001).

On appeal, appellant contends that the trial court erred by denying his motions for directed verdict, challenging the court’s finding of substantial evidence to support the judgment on each count. Additionally, appellant challenges the constitutionality of Arkansas’s substantial-evidence standard of review and the constitutionality of Rule 5-2 (d) of the Rules of the Supreme Court, which denies him the opportunity to cite favorable precedent from unpublished decisions of the Arkansas Court of Appeals. We affirm.

I. Motions for Directed Verdict

A motion for directed verdict is a challenge to the sufficiency of the evidence. See, e.g., Tester v. State, 342 Ark. 549, 30 S.W.3d 99 (2000). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence that is of sufficient certainty and precision to compel a conclusion. Id. Circumstantial evidence is substantial when it excludes every reasonable hypothesis consistent with innocence, and whether it does is a question for the jury. See Gregory v. State, 341 Ark. 243, 15 S.W.3d 690 (2000). In a challenge to the sufficiency of the evidence, the appellate court reviews the evidence in the light most favorable to the State. Id.

Appellant contends that the trial court erred by denying his motions for directed verdict, challenging the court’s finding of substantial evidence to support the judgment on each count. We disagree. The facts adduced at trial are as follows: on August 2, 2000, LaShun Henderson was on the porch of his home at 3214 Martin Luther King Drive in Little Rock. He was talking with Kevin Williams, his brother Derrick, and his first cousin, Eldrick Williams. As Eldrick left to wash dishes and the others started to go inside, a car pulled up in the alley beside the house. LaShun Henderson testified that, shortly thereafter, two men came into the house “yelling and shouting” and “pointing their guns in our face[s].” According to Henderson, the men ordered him to take off his clothes and lie on the floor, and one of them demanded money. One of the men, who was wearing a blue shirt, took money that Derrick had lying on a dresser. After taking the money, the men began to leave the house.

The men ran into Eldrick on the porch as they were leaving, and, at that point, Mr. Henderson heard gunshots. The appellant, who was wearing red and black, shot Eldrick. There were, according to testimony, “numerous gunshots,” including one fired by the appellant’s accomplice back into the room. According to Mr. Henderson, Eldrick did not have a gun.

Barbara Henderson, Eldrick Williams’s aunt, also testified. She stated that she was upstairs in the house on August 2, 2000, when her nephew came and told her that there were two men downstairs with guns. Ms. Henderson testified that she heard a gunshot as she made her way down the stairs, and when she could see the porch, she saw two men with Eldrick. She stated that Eldrick “couldn’t control [himjself’; he was “falling down,” and she saw one of the men — the one who was wearing red — standing over him and shooting at him three or four times. Ms. Henderson also testified that Eldrick did not have a gun.

The appellant’s accomplice, Kareem Holloway, also testified for the State. Mr. Holloway stated that, on August 2, 2000, he was sleeping at his girlfriend’s house when the appellant arrived. They decided to go buy a sack of marijuana, and the appellant drove Mr. Holloway and two other friends to the house on Martin Luther King Drive in Little Rock. When they arrived at the house, the appellant got out of the car and began talking to three or four young men. Soon afterward, Mr. Holloway decided that he wanted to buy his own sack of marijuana and approached the house. He began talking to Kevin Williams in the doorway, while the appellant talked with Derrick Williams beside a bed in the interior of the house. Mr. Holloway subsequently followed Kevin into the house, where he saw $500.00 on a dresser. After putting the money in his pocket and turning back around, Mr. Holloway saw LaShun Henderson waving a gun, whereupon he, the appellant, and Derrick Williams all drew their weapons.

After drawing their weapons, Mr. Holloway and the appellant began to walk backwards out of the house. As they were leaving, Eldrick Williams ran in the house through the back door, ran out, and then ran back into the house, whereupon the appellant “turned around and shot him.” According to Mr. Holloway, the appellant, rather than walking around Eldrick after he shot him, “turned around and grabbed him in a headlock and . . . started shooting him in the head.” He estimated that the appellant shot Eldrick “about seven times.” Mr. Holloway testified that he and the appellant were armed with a .38 revolver and a 9-millime-ter handgun, respectively, but that Eldrick did not have a gun. After the shooting, Mr. Holloway and the appellant left the house on Martin Luther King Drive, separated briefly, and then met in North Little Rock, where they exchanged the money and marijuana that they had taken from the house.

Scientific testimony indicated that Eldrick died as a result of several gunshot wounds fired at close range. James Looney, an expert in tool marks and firearms from the Arkansas State Crime Laboratory, testified that several projectiles recovered from the scene, including one that was recovered from Eldrick’s body, were all fired from the same 9-millimeter weapon. Jeff Taylor, a trace-evidence expert from the laboratory, added that gunpowder residue on Eldrick’s clothing and on the hair surrounding his head wound indicated that he was shot at close range. Dr. Stephen Erickson, the forensic pathologist who performed the autopsy, testified that Eldrick sustained six gunshot wounds of varying kinds and severity. One of the bullets entered his left hip and broke his femur, which could have caused him to collapse to his knees. Other bullets caused wounds to his left bicep, the top of his left shoulder, and his left thumb, while two wounds, one to his head and one at the base of his neck, could have been fatal. According to Dr. Erickson, the head wound could have occurred while Eldrick was held in a headlock and shot at close range.

The appellant also testified on his own behalf at trial. He stated that he went to the house on Martin Luther King Drive to buy marijuana. He entered the house with Derrick Williams, Kevin Williams, and LaShun Henderson. Mr. Holloway unexpectedly followed them into the house and, as the appellant examined bags of marijuana, he heard shouting that caused him to turn around. He saw Mr. Holloway standing with his gun and money in his hands. LaShun Henderson then pulled a gun out from underneath a bed, provoking the appellant to pull his gun out of the waistband of his pants. The appellant testified that he was trying to back out of the house when Eldrick entered the room, looked at the men holding guns, and ran back out. By that time, Derrick was also pointing a gun. As the appellant continued to attempt to back out of the room, he ran into Eldrick, who was hollering and rushing toward him. The appellant testified that he believed that Eldrick had run to get a gun, and, with Derrick also shooting at him by that time, shot the floor near Eldrick and told him to stop. When Eldrick did not stop, he shot at him a second time from a distance of about five or six feet. According to the appellant, he did not know of any plan to take money, and he only shot at Eldrick because he believed that he had a gun, and, as a result, feared for his own life.

Appellant first contends that the trial court erred by denying his motion for a directed verdict on the charge of capital murder because there was insufficient evidence that he was an accomplice to either of the aggravated robberies and, because he shot Eldrick only in self-defense, that there was insufficient evidence that he acted with extreme indifference to the value of human life. He also appears to assert that the capital 'murder charge must fail because there is no conclusive evidence that his gun fired the fatal bullets. Furthermore, regarding the aggravated robbery of LaShun Henderson, the appellant contends that insufficient evidence supports that conviction because there was no proof that anything was taken from him. Regarding the aggravated robbery of Derrick Williams, he argues that there was no evidence that he knew of Mr. Holloway’s plan to take the money belonging to Mr. Williams, and that Mr. Holloway’s claim that they split the proceeds afterwards is uncorroborated accomplice testimony. He also contends that LaShun Henderson’s testimony, which independently establishes the elements of aggravated robbery, should be disregarded on review because it is largely uncorroborated and, therefore, “clearly unbelievable.”

As an initial matter, this Court will not dismiss LaShun Henderson’s testimony as “clearly unbelievable.” The weighing of evidence lies within the province of the jury, and this Court is bound by its determination regarding the credibility of witnesses. See, e.g. Harmon v. State, 340 Ark. 18, 8 S.W.3d 472 (2000). The jury is free to believe all or part of a witness’s testimony, and inconsistent testimony does not render proof insufficient as a matter of law. Id. Indeed, after a jury has given credence to a witness’s testimony, this Court does not disregard it unless it was “so inherently improbable, physically impossible, or so clearly unbelievable that reasonable minds could not differ thereon.” Kitchen v. State, 271 Ark. 1, 607 S.W.2d 345 (1980). One eyewitness’s testimony, moreover, is sufficient to sustain a conviction, e.g., Harmon, 340 Ark. at 25, 8 S.W.3d at 476, and his testimony is not “clearly unbelievable” simply because it is uncorroborated or because it has been impeached. See Kitchen, 271 Ark. at 19, 607 S.W.2d at 356. Thus, because the appellant only argues that Mr. Henderson’s testimony is unbelievable because it is uncorroborated and inconsistent with Kareem Holloway’s testimony, we decline his invitation to disregard it with respect to the convictions at issue.

A. Capital Murder

Appellant claims the trial court erred by denying his motion for a directed verdict on the charge of capital-felony murder. Appellant maintains that the State failed to produce sufficient evidence to support either charge of aggravated robbery levied against him and that, therefore, the capital-murder charge must fail. Appellant further claims that he did not act with extreme indifference to the value of human life because his actions were in self-defense and that, therefore, the mens rea necessary to sustain a capital-felony murder conviction was not present and was not proved by the State. Appellant’s argument fails for several reasons.

First, there was sufficient evidence that appellant was an accomplice to the underlying felony of aggravated robbery. Arkansas Code Annotated § 5-10-101 (a)(1) (Repl. 1997) provides that “a person commits capital murder if, acting alone or with one or more other persons, he commits or attempts to commit . . . robbery . . . and in the course of and in furtherance of the felony, or in immediate flight therefrom, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life.” Additionally, a person is an accomplice of another in the commission of an offense if, “with the purpose of promoting or facilitating the commission of the offense, he aids, agrees to aid, or attempts to aid the other person in committing it.” Ark. Code Ann. § 5-2-403(a)(2) (Repl. 1997).

This Court has held that factors that connect an accomplice with a crime include presence in the proximity of a crime, opportunity, and association with a person involved in the crime in a manner suggestive of joint participation. See, e.g., Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996), cert. denied, 519 U.S. 898 (1996). In accordance with these standards, the evidence established that the appellant was an accomplice to aggravated robbery. LaShun Henderson testified that the appellant and another man came into a room where he and Derrick Williams were standing, pointed their guns, ordered him to strip and lie on the floor, and demanded money. The appellant also shot Eldrick Williams in an apparent effort to facilitate their escape. Because the forgoing evidence demonstrates that appellant actively participated in the aggravated robberies, we affirm on this point.

Moreover, the State introduced sufficient evidence that the appellant acted with extreme indifference to the value of human life and that his gun fired the fatal shots. The requirement of extreme indifference involves actions that evidence a mental state on the part of the accused to engage in some life-threatening activity against the victim. McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002). Eldrick Williams was unarmed; everyone who testified agreed that he was unarmed, including appellant’s accomplice, Kareem Holloway. Ms. Henderson testified that she saw the appellant stand over Eldrick’s fallen body and shoot three or four times, and Kareem Holloway testified that the appellant held Eldrick in a headlock and shot him in the head. The scientific evidence, indicating that the head wound was inflicted at close range, corroborates that testimony. Additionally, testimony was adduced that the appellant fired a 9-miflimeter handgun, and a 9-millimeter projectile was recovered from Eldrick’s body. Thus, because the foregoing evidence demonstrates that the appellant acted with extreme indifference to the value of Eldrick Williams’s life and that appellant’s gun fired the fatal shots, we affirm the trial court’s denial of appellant’s motion for directed verdict in regard to the charge of capital murder.

B. Aggravated Robbery of LaShun Henderson

Additionally, the trial court did not err by denying the motion for directed verdict on the aggravated robbery charge regarding LaShun Henderson. Arkansas Code Annotated § 5-12-102(a) (Repl. 1997) states that “[a] person commits robbery if, with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another.” Arkansas Code Annotated § 5-12-103(a)(1) (Repl. 1997) states that “[a] person commits aggravated robbery when he is armed with a deadly weapon, or he represents by word or conduct that he is so armed.” It is well settled, and consistent with this statutory language, that no transfer of property needs to take place to complete the offense. See Robinson v. State, 303 Ark. 351, 797 S.W.2d 425 (1990). Rather, the focus of aggravated robbery is the threat of harm to the victim; and, consequently, the offense is complete when physical force is threatened. Id. LaShun Henderson testified that the appellant and another man came into his house, pointed their guns, ordered him to strip and lie on the floor, and demanded money. We, therefore, hold that the foregoing constitutes substantial evidence of aggravated robbery, regardless of whether property belonging to Mr. Henderson was taken.

C. Aggravated Robbery of Derrick Williams

Likewise, substantial evidence supports the appellant’s conviction for the aggravated robbery of Derrick Williams. Appellant’s accomplice, Kareem Holloway, testified that he and appellant divided the proceeds of the robberies upon meeting back up after the robberies/murder. Appellant argues that the testimony of his accomplice, alone, is insufficient to sustain a conviction for this charge and that it requires corroboration. By arguing that Kareem Holloway’s testimony about the division of proceeds requires corroboration, the appellant once again overlooks that, for aggravated robbery, a transfer of property does not need to take place, and the offense is complete when physical force is threatened. See Robinson v. State, supra. Therefore, the State did not need to corroborate Mr. Holloway’s testimony about the division of proceeds to prove the aggravated-robbery charge involving Derrick Williams. Rather, the State proved the appellant’s guilt with LaShun Henderson’s testimony, which established that the appellant and another man came into the room where he and Derrick Williams were standing, pointed guns and demanded money, and that Mr. Williams, who was standing by the dresser where the money was laying, “did what he was told.” Based on the foregoing, we affirm the trial court on this point, as well.

D. Misdemeanor Theft of Property Conviction

The appellant next contends that, because Kareem Holloway’s testimony about the division of proceeds is uncorroborated, the State failed to prove the charge of misdemeanor theft of property. We disagree.

A person commits theft of property when he knowingly obtains the property of another person, by deception or by threat, with the purpose of depriving the owner thereof. Ark. Code Ann. § 5-36-103(a)(2) (Repl. 1997). Theft of property is a misdemeanor if the property is valued at less than $500.00. Ark. Code Ann. § 5-36-103(b)(3) (Repl. 1997). Moreover, corroboration of the testimony of an accomplice is not required for a misdemeanor conviction. See Ark. Code Ann. § 16-89-lll(e)(l) (1987); see also Sanders v. State, 259 Ark. 329, 532 S.W.2d 752 (1976) (any error in failing to instruct the jury as to accomplice liability would be harmless because appellant was ultimately convicted of a misdemeanor). In this case, LaShun Henderson’s testimony established that the appellant participated in the aggravated robbery of Derrick Williams; and Kareem Holloway testified that, after the robbery, he gave the appellant some of the money that was taken. Mr. Holloway’s uncorroborated testimony is sufficient to sustain the appellant’s conviction for misdemeanor theft of property.

II. Constitutionality of Substantial-Evidence Standard of Review

The appellant next appears to contend that the oft-repeated standard of appellate review for sufficiency of the evidence, the substantial-evidence standard, is unconstitutional under fackson v. Virginia, 443 U.S. 307 (1979). While his argument is not entirely clear, he seems to assert that this Court erroneously concluded in Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980), that the substantial-evidence standard is consistent with the “rational fact-finder” standard enunciated in Jackson, and that his case, if affirmed on the allegedly scant evidence in the record, illustrates that the substantial-evidence standard does not adequately insure that the jury found he was guilty beyond a reasonable doubt. We must assume, then, that appellant is urging this Court to overrule Jones and explicitly adopt the rational fact-finder standard and that, under that purportedly more demanding standard of review, to hold that insufficient evidence supports his convictions for aggravated robbery. For the following reasons, we decline appellant’s apparent invitation to overrule Jones, and we affirm appellant’s conviction.

This Court actually held in Jones that the substantial-evidence standard is consistent with the rational fact-finder standard enunciated in Jackson. In Jackson, the United States Supreme Court rejected a standard of review that required only an examination of whether there was any evidence to support a conviction in favor of a standard which, instead, insured that the fact-finder rationally applied the standard of “guilt beyond a reasonable doubt,” or, in other words, that the evidence of guilt was convincing to a point that “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. at 317, 318-19. The substantial-evidence standard, while not explicitly reciting the standard from Jackson word for word, requires that evidence supporting a conviction must compel reasonable minds to a conclusion, see, e.g. Rutledge v. State, 345 Ark. 243, 45 S.W.3d 825 (2001), and force or induce the mind to pass beyond suspicion or conjecture, see Jones, 269 Ark. at 120, 598 S.W.2d at 749, and, thereby, ensures that the evidence was convincing to a point that any rational fact-finder could have found guilt beyond a reasonable doubt.

This Court recently reaffirmed Jones, and, moreover, again declined to explicitly adopt the rational fact-finder test. See Hale v. State, 343 Ark. 62, 31 S.W.3d 850 (2000). In short, because the Court’s standard of review is correct, and, because substantial evidence supports the appellant’s convictions, we affirm.

III. Constitutionality of Ark. Sup. Ct. R. 5-2(d) (2002)

The appellant next contends that Arkansas Supreme Court Rule 5-2(d) (2002), which provides that unpublished opinions by the Arkansas Court of Appeals shall not be cited in any argument in any court, is unconstitutional. Specifically, he relies upon Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000), vacated as moot, 235 F.3d 1054 (2000), and apparently asserts that the rule, like its federal analogue that was invalidated in Anastasoff, allows this Court to ignore its own precedent, and therefore, exceed its judicial power. The State contends that because the appellant does not suffer any injury as a result of his inability to rely on unpublished Court of Appeal’s opinions here, he lacks standing to challenge the constitutionality of Rule 5-2(d) and that this Court should, therefore, affirm. We agree.

A litigant has standing to challenge the constitutionality of a court rule if the rule is unconstitutional as applied to that particular litigant. See, e.g., Ross v. State, 347 Ark. 334, 64 S.W.3d 272 (2002). The general rule is that one must have suffered injury or belong to a class that is prejudiced in order to have standing to challenge the validity of a rule. Id. Stated differently, litigants must show that the questioned rule has a prejudicial impact on them. Id. Under these standards, the appellant in this case lacks standing to challenge the constitutionality of Rule 5-2(d).

In Anastasoff, the Eighth Circuit held that its rule regarding the precedential value of unpublished opinions was unconstitutional because it allowed that court to ignore its own precedent, and therefore, exceed the judicial power that it had been granted under Article III of the United States Constitution. See Anastasoff, 223 F.3d at 903, 905. In contrast to the appellant in Anastasoff, however, the appellant here does not seek to rely on an unpublished decision of this Court, which, if published, would bind the Court and control the outcome of the appeal. Rather, he wants to rely on opinions of the Arkansas Court of Appeals, which, even if published, do not have any binding effect on this Court. Cf. Amendment 80 § 5 (providing that Court of Appeals is subject to the general superintending control of the Supreme Court); cf. also, Box v. State, 348 Ark. 116, 71 S.W.3d 552 (2002) (noting that Court of Appeals lacks authority to overrule Supreme Court precedents). Therefore, as appellant does not belong to the class of persons who wish to rely on decisions that would otherwise be binding and that would be injured by the application of Rule 5-2(d), we hold that he does not have standing to challenge the constitutionality of this Rule.

IV. Rule 4-3 (h) Compliance

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

Affirmed.

       The constitutionality of Rule 5-2(d) is currently the subject of separate litigation in Weatherford v. State, CACR 02-415.


author: Tom Glaze, Justice.

text:
    John Franklin WILLIAMS v. STATE of Arkansas
    CR 02-21
    91 S.W.3d 68
    Supreme Court of Arkansas
    Opinion delivered December 5, 2002

      David L. Dunagin, for appellant.

      Mark Pryor, Att’y Gen., by: Lauren Elizabeth Heil, Ass’t Att’y Gen., for appellee.
   Tom Glaze, Justice.

In this appeal, we are asked to determine whether or not the trial court retroactively applied any part of Arkansas’ Sex Offender Registration Act, Ark. Code Ann. § 12-12-901 et seq. (Repl. 1999 and Supp. 2001), in revoking the suspended sentence of appellant John Williams. We hold that it did not, and affirm.

We begin with a chronology of the events leading up to this appeal. On December 20, 1991, Williams was convicted of third-degree sexual assault in Wisconsin; on February 3, 1992, he was sentenced, among other things, to two years’ probation. During his period of probation, Williams moved to Fort Smith in November of 1992, after spending a short period of time in Arizona. In 1993, Wisconsin enacted its Sex Offender Registry Program, requiring registration of any person who was “on probation . . . on or after December 25, 1993, for a sex offense.” Wisc. Stat. Ann. § 301.45(lg)(b). Because he was still on probation as of December 25, 1993, Williams was required to, and did, register as a sex offender in Wisconsin.

Arkansas subsequendy passed its own Sex Offender Registration statute: Act 989 of 1997, which is codified at Ark. Code Ann. § 12-12-901 et seq., and which has since been amended in part in 1999 and 2001. Arkansas’ registration requirements applied to anyone who was “serving a sentence of incarceration, probation, parole, or other form of community supervision as a result of an adjudication of guilt for ... a sex offense, on the effective date of this act.” Act 989 of 1997, § 4(2) (codified at Ark. Code Ann. § -12-12-905(a)(2)). The statute became effective on August 1, 1997.

On October 8, 1997, Williams pled guilty to charges of breaking or entering and felony theft of property in Sebastian County Circuit Court. He was sentenced to prison for six years, with four and a half years suspended, on the breaking or entering, and to ten years, with eight and a half years suspended, for the theft of property. In May of 1998, Williams was paroled. One of the terms of his parole was that he was not to violate any state law.

On April 11, 2000, Jessie King, the Coordinator of the Arkansas Sex Offender Registry, received information from the Arizona Department of Public Safety that Williams was a sex offender, that he was moving to Arkansas, and that he was required to register with the Sex Offender Registry. On November 15, 2000, a warrant for Williams’s arrest was issued, alleging that, on April 14, 2000, the Fort Smith Police Department received information from the Arkansas Crime Information Center (“ACIC”) that Williams, who was living in Fort Smith, was required to register as a sex offender and had failed to respond to requests for address verification from ACIC.

As a result, on September 19, 2001, the State filed a petition to revoke Williams’s suspended sentences, alleging that he committed the offense of failing to comply with the reporting requirements of Ark. Code Ann. § 12-12-904(a)(l) (Repl. 1999 and Supp. 2001), which makes it a Class D felony to fail to register or to fail to report a change of address as required under the Sex Offender Registration Act. After a hearing, the trial court revoked Williams’s suspended sentence on November 2, 2001. From that order, Williams brings this appeal, wherein he argues, among other things, that the trial court retroactively applied portions of the registration statutes to revoke his suspended sentences.

Williams argues that the trial court erred in revoking his suspended sentence, because the court applied a version of § 12-12-905 to him that was not in effect at the time he received his suspended sentence in October of 1997. He maintains that the revocation of his suspended sentence on the basis of this amended statute was an unconstitutional ex post facto application of the law. We disagree. Williams’s ex post facto argument fails because his sentence was imposed in October of 1997, and, as noted above, the effective date of Act 989 was August 1, 1997. Under § 5(a)(4) of Act 989, as an offender who moved to Arkansas from another jurisdiction, Williams had thirty days after August 1, 1997, in which to register. He failed to do so.

Williams also argues that, because there was nothing on the face of his Wisconsin conviction that showed he was required to register as a sex offender, his time of “community supervision” was over, and therefore, he was not required to register under Arkansas law. However, his argument ignores the fact that Wisconsin’s Sex Offender Registration Statute, enacted in 1993, applied to anyone who was “on probation ... on or after December 25, 1993, for a sex offense.” Williams was sentenced in February of 1992 to two years’ probation in Wisconsin, and he was therefore on probation on December 25, 1993, and required to register in Wisconsin. This adjudication of guilt of a sex offense of the laws of Wisconsin brought Williams within the ambit of Arkansas’s registration laws, since he was “a person . . . serving a sentence of. . . other form of community supervision as a result of an adjudication of guilt for ... a sex offense.” See Act 989 of 1997, § 4(2).

Finally, we consider Williams’s argument on appeal that there was insufficient evidence to warrant the revocation of his suspended sentence. To revoke probation or a suspended sentence, the burden is on the State to prove the violation of a condition of probation or the suspended sentence by a preponderance of the evidence. See Ark. Code Ann. § 5-4-309(d) (Supp. 2001); Bradley v. State, 347 Ark. 518, 65 S.W.3d 874 (2002); Lemons v. State, 310 Ark. 381, 836 S.W.2d 861 (1992). On appellate review, the trial court’s findings will be upheld unless they are clearly against the preponderance of the evidence. Bradley, supra; Hoffman v. State, 289 Ark. 184, 711 S.W.2d 151 (1986). Because the burdens are different, evidence that is insufficient for a criminal conviction may be sufficient for a probation or suspended sentence revocation. Thus, the burden on the State is not as great in a revocation hearing. Lemons, supra. Since determination of a preponderance of the evidence turns on questions of credibility and weight to be given to the testimony, we defer to the trial judge’s superior position. Id.

The evidence introduced at the revocation hearing showed that Williams had lived in Arkansas since 1992. In addition, the Coordinator of the Sex Offender Registry in Arkansas testified that she’ had not received any information in the last year that Williams had registered as a sex offender in Arkansas. Although Williams testified that he did not believe that he had to register in Arkansas, based on conversations he had had with Fort Smith Police Department detectives, his credibility was impugned when the State introduced a letter he wrote, apparently to the Wisconsin Sex Offender Registry, stating that he was “currently registered in Fort Smith. ... I was told to sign in in every state if I choose to relocate. Do I have to inform Wisconsin SORP [Sex Offender Registration Program] also[?]” Clearly, Williams was aware of both Arkansas’ and Wisconsin’s registration requirements, despite his testimony that he believed he did not have to register in this state. The trial court apparently did not believe this contention, and this court defers to the trial court on questions of credibility.

In sum, because the evidence showed that Williams was convicted of a sex offense and registered as a sex offender in Wisconsin, had lived in Arkansas since 1992, and failed to register as a sex offender in this State, in accordance with the requirements in § 12-12-905, the State met its burden of proving that Williams violated a condition of his suspended sentence. The trial court’s revocation of Williams’s suspended sentence is therefore affirmed.

       Obviously, the Arizona information was somewhat out-of-date, as Williams had been living in Fort Smith since November of 1992.


author: Annabelle Clinton Imber, Justice.

text:
    John NEEVE v. CITY of CADDO VALLEY
    02-656
    91 S.W.3d 71
    Supreme Court of Arkansas
    Opinion delivered December 5, 2002

      Winston C. Mathis, for appellant.

      Brian Trubitt, for appellee.
   Annabelle Clinton Imber, Justice.

Appellant John Neeve was cited for speeding on January 8, 2002, by a police officer for the City of Caddo Valley. He was scheduled to appear in the City Court of Caddo Valley, but objected to that court’s exercise of jurisdiction. Following the city court’s denial of his motion to dismiss, Neeve sought a writ of prohibition in the Clark County Circuit Court. The circuit court denied the writ, and Neeve now appeals the circuit court’s ruling. We affirm.

As he did before the city court and the circuit court, Neeve raises two points on appeal: (1) Act 944 of 1917 prohibits the City of Caddo Valley from establishing its own court; and (2) Amendment 80 to the Arkansas Constitution bars the establishment of the Caddo Valley City Court. In response, the City of Caddo Valley contends that neither point has merit. First, the city asserts that Act 944 of 1977 did not repeal Ark. Code Ann. § 14-45-106 (Repl. 1998), which authorizes the establishment of city courts by incorporated towns. Second, the city states that Amendment 80 to the Arkansas Constitution does not affect the jurisdiction of the Caddo Valley City Court because that court was established before Amendment 80’s effective date.

Act 944, which is entitled “An Act to Reorganize the Arkadelphia/Clark County Municipal Court,” was enacted by the General Assembly in 1977. Pursuant to Act 944 and local Ordinance 80-2, the City of Caddo Valley, a municipality located in Clark County, placed its docket on the Clark County Municipal Court Agenda on May 8, 1980. Then, on May 17, 2001, the city’s town council passed Ordinance 2001-4 to establish the Caddo Valley City Court. Amendment 80 to the Arkansas Constitution became effective on July 1, 2001. Subsequently, in October, 2001, the mayor appointed a judge to preside over the new city court.

As a starting point, we observe that Neeve appeals the circuit court’s denial of a petition for a writ of prohibition. A writ of prohibition is an extraordinary writ that is appropriate only when the lower court is wholly without jurisdiction. Travelers Ins. Co. v. Smith, 329 Ark. 336, 947 S.W.2d 382 (1997). On appeal, this court’s review is limited to the pleadings. Id.

I. Act 944 of 1977

Determining whether Act 944 of 1977 prohibits the City of Caddo Valley from establishing a city court is a matter of statutory construction. The germane section of the Act states:

All municipalities located in Clark County currently maintaining a docket on the Court Agenda, as of the effective date of this Act, shall be part of the Clark County Municipal Court System without further action on the part of said municipality. Any Clark County Municipality desiring to maintain a docket on the Municipal Court Agenda may do so by filing a resolution or ordinance with the Municipal Court Clerk requesting a docket on the Court Agenda.

1977 Ark. Acts 944 § 3 (not codified).

In his first point on appeal, Neeve essentially argues that once the city exercised its right under Act 944 of 1977 to place its docket on the Clark County Municipal Court’s Agenda, it no longer had the right to create a court under Ark. Code Ann. § 14-45-106. Specifically, Neeve seizes on the mandatory language in section 3 of the Act, which states in pertinent part that “[a]H municipalities located in Clark County currently maintaining a docket on the Court Agenda, as of the effective date of this Act, shall be part of the Clark County Municipal Court System without further action on the part of said municipality.” 1977 Ark. Acts 944 § 3 (emphasis added). However, Neeve fails to address the discretionary language in section 3 of the Act, which states that “[a]ny Clark County Municipality desiring to maintain a docket on the Municipal Court Agenda may do so by filing a resolution or ordinance with the Municipal Court Clerk requesting a docket on the Court Agenda.” Id. Neeve suggests that the “mandatory language” of Act 944 coupled with the city’s election to maintain its docket on the Clark County Municipal Court Agenda indicates that the city lost its power to withdraw from the Clark County Municipal Court System and create its own court. Neeve recognizes that this case necessarily involves statutory interpretation and, in support of his interpretation, states that Arkansas “has long subscribed to the notion that common sense is a key element in defining statutory construction.” See Keith v. Barrow-Hicks Extensions of Water Improv. Dist. No. 85, 275 Ark. 28, 626 S.W.2d 951 (1982).

In addition to common sense, we have consistently stated that the basic rule of statutory construction is to give effect to the intent of the General Assembly. Nations Bank v. Murray Guard, Inc., 343 Ark. 437, 36 S.W.3d 291 (2001). This court will construe a statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. Furthermore, we will not read into a statute a provision not put there by the General Assembly. State v. Goss, 344 Ark. 523, 42 S.W.3d 440 (2001).

The mandatory language in section 3 of the Act merely provides that if a municipality, such as the City of Caddo Valley, maintained a docket on the court agenda at the time the Act was enacted, it would automatically become part of the Clark County Municipal Court System. At the time Act 944 was passed, the City of Caddo Valley did not maintain a docket on the court agenda. Thus, that provision is not applicable here. According to the discretionary language in the next sentence of the Act, if a municipality desires to maintain a docket on the court agenda, it may file an ordinance with the'court, just as the City of Caddo Valley did in this case. The plain language of the Act does not prohibit the establishment of a city court. Furthermore, Ark. Code Ann. § 14-45-106 authorizes the establishment of a city court.

To construe Act 944 as Neeve suggests would necessarily require this court to conclude that Act 944 impliedly repealed Ark. Code Ann. § 14-45-106. Repeals by implication are strongly disfavored by the law. Shelton v. Fisher, 340 Ark. 89, 8 S.W.2d 557 (2000); Robinson v. Langdon, 333 Ark. 662, 970 S.W.2d 292 (1998). In Arkansas, a statute is only impliedly repealed when there is a repugnance between the two enactments such that both cannot stand together. Thomas v. State, 315 Ark. 518, 868 S.W.2d 85 (1994). Moreover, we will not find a repeal by implication if there is any way to interpret the statutes harmoniously. Waire v. Joseph, 308 Ark. 528, 825 S.W.2d 524 (1992). As neither statute at issue here makes jurisdiction exclusive in either court, which effectively means that both courts may exercise concurrent jurisdiction, we hold that Act 944 does not impliedly repeal Ark. Code Ann. § 14-45-106.

2. Amendment 80

In Neeve’s second point on appeal, he argues that Amendment 80 to the Arkansas Constitution prohibits the city from establishing a city court. While acknowledging that the Town Council of Caddo Valley enacted Ordinance 2001-4 prior to the effective date of Amendment 80, Neeve claims that a court did not exist until the mayor appointed a judge. As support for this claim, he points to the following language in the ordinance: “The Mayor of the Town of Caddo Valley, Arkansas, shall delegate the power, duties, and responsibilities given to him by Section 14-45-106 (1999 Replacement) of the Arkansas Code Annotated, to any person qualified under the laws of the State of Arkansas to assume those powers, duties, and responsibilities.” City of Caddo Valley, Ar., Ordinance 2001-4 (2001). According to Neeve, because the ordinance requires the mayor to delegate the judicial duties given to him by Ark. Code Ann. § 14-45-106, the city court was not established until the mayor in fact appointed a judge. We disagree.

The ordinance enacted by the Town Council of Caddo Valley on May 17, 2001, provides in pertinent part:

SECTION ONE: There is hereby created the City Court of Caddo Valley, Arkansas, and such City Court is hereby granted such power and jurisdiction as is allowed by the provisions of Section 14-45-106 (Replacement 1999) of the Arkansas Code Annotated.

City of Caddo Valley, Ar., Ordinance 2001-4, § 1 (2001). The word “hereby” clearly indicates that the city court was established immediately, and not upon the appointment of a judge. A better characterization of the situation would be that the city court existed as of May 17, 2001, but a vacancy existed on the bench.

It is a basic tenet of statutory construction that the court will give meaning to each word and not interpret a statute to an effect that will render some words superfluous. Nations Bank v. Murray Guard, Inc., 343 Ark. 437, 36 S.W.3d 291 (2001). We will not ignore the plain language in the ordinance that provides for the creation of the city court immediately. Therefore, we hold that the City Court of Caddo Valley was established before July 1, 2001, the effective date of Amendment 80. Thus, the issue of whether Amendment 80 prohibits the establishment of new city courts need not be addressed. Accordingly, the lower court was not wholly without jurisdiction and the trial court properly denied the writ.

Affirmed.


author: Jim Hannah, Justice.

text:
    Jimmy Don WOOTEN v. STATE of Arkansas
    CR 01-986
    91 S.W.3d 63
    Supreme Court of Arkansas
    Opinion delivered December 5, 2002

      Alvin Schay, for appellant.

      Mark Pryor, Att’y Gen., by: Jeffrey A. Weber, Ass’t Att’y Gen., for appellee.
   Jim Hannah, Justice.

Jimmy Don Wooten appeals the denial of his petition under Ark. R. Crim P. 37 for relief due to ineffective assistance of counsel. Wooten was convicted of capital murder, criminal attempt to commit capital murder, and aggravated assault. He was sentenced to death, thirty years, and six years respectively. His convictions and sentences were affirmed by this court in Wooten v. State, 325 Ark. 510, 931 S.W.2d 408 (1996) (Wooten I).

In his appeal from the denial of his petition for relief under Ark. R. Crim. P. 37, Wooten asserts that the trial court erred when it did not find that trial counsel was ineffective: 1) for failure to put on mitigation evidence in the penalty phase; 2) for failure to argue that the Arkansas death-penalty scheme is unconstitutional; and 3) for failure to preserve certain issues at trial.

We hold that there is no merit to the issues raised. Wooten fails to show what evidence would have been introduced in mitigation, and therefore, he has not shown he was prejudiced by any alleged error by counsel in the admission of mitigation evidence. Wooten’s assertion with respect to his claims that the death penalty sentencing scheme is unconstitutional is also without merit. This court has repeatedly considered and rejected this argument. With respect to claims by Wooten that he was prejudiced by trial counsel’s failure to preserve certain alleged errors for review on direct appeal, he fails to show that but for counsel’s alleged errors, the result of the trial court would have been different. The decision denying Wooten’s petition is affirmed.

Wooten’s convictions and sentences were affirmed in Wooten I. In Wooten v. State, 338 Ark. 691, 1 S.W.3d 8 (1999) (Wooten II), Wooten appealed the denial of his petition for postconviction relief under Ark. R. Crim. P. 37. We reversed and remanded the case due to a lack of written findings and for an evidentiary hearing if additional evidence was required pursuant to Rule 37.3.

Wooten is proceeding under Rule 37.2(c) because he became eligible to file a petition under Rule 37 before March 31, 1997, and therefore, he was not eligible to proceed under Ark. R. Crim. P. 37.5. The facts of this case were set out in both of Wooten’s prior appeals and will not be repeated here.

Standard of Review

Where ineffective assistance of counsel is asserted, the reviewing court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. McGehee v. State, 348 Ark. 395, 72 S.W.3d 867 (2002); Thomas v State, 330 Ark. 442, 954 S.W.2d 255 (1997). To rebut this presumption, the petitioner must show that there is a reasonable probability that, but for counsel’s errors, the factfinder would have had a reasonable doubt respecting guilt, i.e., that the decision reached would have been different absent the errors. Id. A reasonable probability is one that is sufficient to undermine confidence in the outcome of the trial. Id. In determining a claim of ineffectiveness, the totality of the evidence before the factfinder must be considered. Chenowith v. State, 341 Ark. 722, 19 S.W.3d 612 (2000). This court will not reverse the denial of postconviction relief unless the trial court’s findings are clearly erroneous or clearly against the preponderance of the evidence. Green v. State, 343 Ark. 244, 33 S.W.3d 485 (2000).

To prevail on a claim of ineffective assistance of counsel, Wooten must show that counsel’s representation fell below an objective standard of reasonableness and that but for counsel’s errors, the result of the trial would have been different. Kemp v. State, 347 Ark. 52, 60 S.W.3d 404 (2001) (citing Strickland v. Washington, 466 U.S. 668 (1984)).

Mitigation Evidence

Wooten alleges that he was represented by incompetent counsel where his attorney believed that if mitigation evidence was offered, the door would be opened to allow the state to put on victim-impact evidence. Wooten, citing Payne v. Tennessee, 501 U.S. 808 (1991), alleges that the state had the right to put on victim-impact evidence whether the defense offered mitigation evidence or not. He further alleges that the failure to put on mitigation evidence constituted ineffective assistance of counsel and left him a virtual stranger to the jury. Wooten also alleges that this amounts to a breakdown of the adversarial process and requires reversal.

The guarantee of effective assistance of counsel includes the sentencing phase of a criminal trial. Coulter v. State, 343 Ark. 22, 31 S.W.3d 826 (2000). Counsel’s primary function in the penalty phase of a capital trial is to neutralize the aggravating circumstances and to present mitigating evidence. Sanford v. State, 342 Ark. 22, 25 S.W.3d 414 (2000). A decision not to offer significant mitigating evidence is a matter of trial strategy only where the decision is made after a full investigation of all the mitigating circumstances so that counsel may make an informed tactical decision. Sanford, supra. The failure to carry out an investigation into mitigating circumstances may constitute ineffective assistance of counsel requiring reversal. Coulter, supra. However, reversal is not automatic. Coulter, supra. The petitioner must show that but for counsel’s errors, there is a reasonable probability that the sentence imposed would have been different. Carmargo v. State, 346 Ark. 118, 55 S.W.3d 255 (2001). See also Williams v. Taylor, 529 U.S. 362 (2000).

Thus, in the Rule 37 petition proceedings, Wooten had to show that but for his counsel’s failure to put on additional evidence in mitigation, there is a reasonable probability that a different sentence would have been imposed. Two witnesses in mitigation were presented, a coworker who testified Wooten had several job skills and was a good worker, and a jailer who testified that Wooten had been a good prisoner.

Wooten argues other evidence in mitigation should have been offered. However, Wooten provided nothing to the trial court in his Rule 37 petition proceedings regarding what mitigation evidence his counsel should have presented. He states in his brief that the Rule 37 court noted that “petitioner did not state what additional witnesses for Mr. Wooten would have said.” Wooten fails to establish what other witnesses would have testified to, and he fails to show how their testimony could have changed the outcome of his case. When a petitioner fails to show what the omitted testimony was and how it could have changed the outcome, we will not grant postconviction relief for ineffective assistance of counsel. Pyle v. State, 340 Ark. 53, 8 S.W.3d 491 (2000); Johnson v. State, 321 Ark. 117, 900 S.W.2d 940 (1995). Wooten thus fails to show that he is entitled to relief on this point.

Failure to Argue the Death Penalty Sentencing Scheme is Unconstitutional

Wooten argues his counsel was ineffective for not raising the issue of the constitutionality of the death penalty sentencing scheme. This court has “repeatedly rejected this contention.” Williams v. State, 346 Ark. 54, 59, 56 S.W.3d 360 (2001). Counsel cannot be found ineffective for failing to make an argument that has no merit or that has been previously rejected by this court. Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000). Accordingly, Wooten has failed to demonstrate both error and prejudice on this issue.

Failure to Preserve Issues for Direct Appeal

Wooten alleges his counsel was ineffective in failing to preserve a Batson issue, referring to Batson v. Kentucky, 476 U.S. 79 (1986). Under Batson, a prosecutor in a criminal case may not use his peremptory strikes to exclude jurors solely on the basis of race. Hinkston v. State, 340 Ark. 530, 10 S.W.3d 906 (2000).

In Wooten I, we held that Wooten failed to preserve the issue of whether the State failed to provide a racially neutral reason for its peremptory challenge of the only African-American juror. Wooten’s counsel did not make the argument in the trial court that the State failed to give a racially neutral explanation; therefore, the argument was not preserved for appellate review. Wooten I, supra. He now argues his counsel was ineffective for failing to make this argument below and preserve the issue. However, Wooten’s argument reaches no further than the assertion that his counsel failed to preserve the issue. In his Rule 37 Petition, Wooten stated, “Counsel’s first argument on appeal was that the only African-American juror was excused from the jury panel. The Arkansas Supreme Court held that ‘Because an appellant may not change his grounds for objection on appeal, this point is not preserved on appeal.’”

In his brief on appeal from denial óf his Rule 37 petition, Wooten states that “[t]his court held that appellant had not preserved the point because he made an argument for the first time on appeal — that three white jurors had made a similar response to the one a black juror made, which the prosecutor cited as the reason for using a peremptory challenge to remove her.” Wooten fails to provide any citation of authority or convincing argument showing he would have been entitled to Rule 37 relief had the argument that the State failed to provide a racially neutral explanation been preserved, and on that basis, his argument of ineffective assistance of counsel on this issue fails. Hall v. State, 326 Ark. 318, 933 S.W.2d 363 (1996).

In Hollis v. State, 346 Ark. 175, 55 S.W.3d 756 (2001), this court stated:

We have made it exceedingly clear that we will not consider an argument, even a constitutional one, when the appellant presents no citation to authority or convincing argument in its support, and it is not apparent without further research that the argument is well taken. Dougan v. State, 330 Ark. 827, 957 S.W.2d 182 (1997); Williams v. State, 325 Ark. 432, 930 S.W.2d 297 (1996); Roberts v. State, 324 Ark. 68, 919 S.W.2d 192 (1996); Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).

Hollis, 346 Ark. at 179.

Further, to prevail on a claim of ineffective assistance of counsel, Wooten must show that his counsel’s representation not only fell below an objective standard of reasonableness, but also that but for counsel’s error, the result of the trial would have been different. Kemp, supra. Wooten offers nothing to show this alleged error by his counsel prejudiced his case in any way, let alone that but for the failure to preserve the issue he would have prevailed on appeal.

Wooten also alleges the trial court erred in not finding counsel ineffective for failing to preserve alleged error in denial of his motion to suppress identification evidence from a line up. This issue was preserved and appealed in Wooten I. A ruling in the trial court was made on this issue of suppression of the line up in the trial court, and this court rejected the assertion of error on the ruling in the direct appeal. Wooten I, 325 Ark. at 519.

It appears that Wooten actually intended to appeal the trial court’s denial of his Rule 37 petition based upon the trial counsel’s alleged failure to preserve the issue of suppression of the in-court identification. However, because Wooten did not address the issue in his brief, we decline to address the issue of suppression of the in-court identification.

Affirmed.


text:
    Lewis EADY v. Bryan K. LANSFORD
    02-695
    92 S.W.3d 57
    Supreme Court of Arkansas
    Opinion delivered December 12, 2002

      Law Offices of Charles Karr, P.A., by: Charles Karr and Shane Roughley, for appellant.

      Warner, Smith & Harris, PLC, by: Waynr Harris, for appellee.
   Tom Glaze, Justice.

In this case, Lewis Eady challenges the constitutionality of the Arkansas Medical Malpractice Act, codified at Ark. Code Ann. §§ 16-114-201, et seq. (1987 and Supp. 2001), with respect to cases involving informed consent. The trial court rejected Eady’s argument. Specifically, Eady argues that Ark. Code Ann. § 16-114-206(b) (1987 and Supp. 2001) is invalid as special legislation under Ark. Const, amend. 14, and violates his equal protection rights under U.S. Const, amend. 14 and Ark. Const, art. 2, § 3. Alternatively, if§ 16 — 114—206(b) is constitutional, Eady submits that our court should apply the “common knowledge” exception to informed consent cases.

The facts leading to this controversy can be briefly stated. Eady saw Dr. Bryan Lansford about complaints Eady had of seasonal allergy symptoms, nasal congestion, and facial pain. Dr. Lansford diagnosed Eady as having allergic rhinitis and possible sinusitis. The doctor ordered an allergy evaluation, a CT scan of Eady’s sinuses, and nasal steroids, and he gave Eady a prescription for Bactrim and asked him to return in two weeks. Upon Eady’s return, the doctor noted that Eady suffered from allergies and suggested Eady might want to consider endoscopic sinus surgery.

Eady continued to feel bad, and, because he could not get in to see Dr. Lansford right away, Eady went to a medical clinic where he was examined, prescribed an antibiotic, and given an analgesic. Two days later, the clinic also gave Eady a prescription for Lorabid and Darvocet for pain. Later that same day, Eady went to the hospital because he could not eat or drink anything, and he began to spit up blood. At the hospital, Eady was diagnosed with Stevens-Johnson Syndrome, an allergic reaction to the Bactrim prescribed by Dr. Lansford. Eady’s skin began to peel, he lost his vision, and suffered from other symptoms, including the sloughing of the lining of his esophagus and stomach. He remained in the hospital for twenty-five days and suffered numerous residual effects, including impaired vision and darkened skin.

Eady filed suit against Dr. Lansford, alleging the doctor committed medical malpractice and had been negligent, among other things, by failing to warn Eady of the possible side effects of Bactrim, including Stevens-Johnson Syndrome. He also alleged the doctor failed to obtain Eady’s informed consent before prescribing Bactrim. Dr. Lansford responded by moving for summary judgment, attaching an affidavit by Dr. Ehab Hanna, an expert in otolaryngology; Dr. Hanna opined that Lansford’s treatment did not fall below the standard of care for an ENT (ear, nose, and throat) specialist in Fort Smith. Eady responded by submitting that § 16-14-206 (b) is unconstitutional as special legislation and as violative of the equal protection clause; he further contended summary judgment was inappropriate because there were genuine factual issues to be decided by a jury. Eady did not submit any medical expert affidavit or testimony to counter that furnished by Dr. Hanna.

The trial court rejected Eady’s constitutional arguments, stating that Arkansas law is well-settled that expert witnesses are required if the alleged medical negligence is outside a jury’s comprehension and not a matter of “common knowledge.” Thus, because Eady did not respond to Dr. Lansford’s summary judgment motion with any expert testimony of his own, the trial court ruled that Dr. Lansford was entitled to summary judgment.

On appeal, Eady contends that § 16-114-206(b) is out of step with modern medical practices. With respect to cases where a patient’s informed consent is at issue, that statute provides as follows:

(b)(1) Without limiting the applicability of subsection (a) of this section, where the plaintiff claims that a medical care provider failed to supply adequate information to obtain the informed consent of the injured person, the plaintiff shall have the burden of proving that the treatment, procedure, or surgery was performed in other than an emergency situation and that the medical care provider did not supply that type of information regarding the treatment, procedure, or surgery as would customarily have been given to a patient in the position of the injured person or other persons authorized to give consent for such a patient by other medical care providers with similar training and experience at the time of the treatment, procedure, or surgery in the locality in which the medical care provider practices or in a similar locality.
(2) In determining whether the plaintiff has satisfied the requirements of subdivision (b)(1) of this section, the following matters shall also be considered as material issues:
(A) Whether a person of ordinary intelligence and awareness in a position similar to that of the injured person or persons giving consent on his behalf could reasonably be expected to know of the risks or hazards inherent in such treatment, procedure, or surgery;
(B) Whether the injured party or the person giving consent on his behalf knew of the risks or hazard inherent in such treatment, procedure, or surgery;
(C) Whether the injured party would have undergone the treatment, procedure, or surgery regardless of the risk involved or whether he did not wish to be informed thereof;
(D) Whether it was reasonable for the medical care provider to limit disclosure of information because such disclosure could be expected to adversely and substantially affect the injured person’s condition.

§ 16-114-206(b).

As is readily seen by reading § 16-114-206, the burden is on the plaintiff to prove that the physician failed to supply the type of adequate information regarding the treatment or procedures as would have been given by physicians in the same, or in a similar, locality. In Fuller v. Starnes, 268 Ark. 476, 597 S.W.2d 88 (1980), this court discussed in some depth the divergent views of American courts concerning the degree of disclosure necessary to render a consent adequate and informed so as to bind the patient:

Although the existence of a physician’s duty to warn a patient of hazards of future medical treatment is generally recognized, a wide divergence of views has developed concerning the appropriate standard for measuring the scope of the duty. The minority view is that the duty of a physician to disclose is measured by the patient’s need for information material to the patient’s right to decide whether to accept or reject the proposed medical treatment. Emphasizing the right of the patient to control what happens to his body, the minority view is undergirded by the proposition that what a patient should be told about future medical treatment is primarily a human judgment. The majority view is that the duty of a physician to disclose is measured by the customary disclosure practices of physicians in the community or in a similar community. This view emphasizes the interest of the medical profession to be relatively free from vexatious and costly litigation and holds that what a patient should be told about future medical treatment is primarily a medical decision.

Fuller, 268 Ark. at 478 (citations omitted) (emphasis added). See also Grice v. Atkinson, 308 Ark. 637, 826 S.W.2d 810 (1992) (where court continued to adhere to the Fuller case, stating that this court chose the majority view, which places on the plaintiff the burden of proving that the physician failed to supply the type of adequate information regarding the surgery as would have been given by other physicians in the same, or in a similar, locality); Aronson v. Harriman, 321 Ark. 359, 901 S.W.2d 832 (1995); Brumley v. Naples, 320 Ark. 310, 896 S.W.2d 860 (1995).

Eady cites to and quotes from a New Jersey Supreme Court decision, Perez v. Wyeth Lab., Inc., 734 A.2d 1245, 1246-47 (N.J. 1999), which contains broad policy language that seems to justify medical product cases directly against drug manufacturers, but Eady fails to clarify how such a policy suggests the obsolescence or unconstitutionality of § 16-114-206(b). In fact, Eady’s argument explicitly recognizes that Arkansas “still clings to” the majority view established in Fuller.

While our court and the Arkansas General Assembly have adopted the majority view that the duty of a physician to disclose is measured by the customary practices of physicians in the community or in a similar community, Eady still maintains that it is unconstitutional for § 16-114-206(b) to require a medical expert in every case involving informed consent and that it grants a privilege to health care providers that is not granted to other professionals; he argues that there is no rational basis for drawing a distinction between informed consent cases and other medical malpractice cases.

Of course, there is a presumption of validity attending every consideration of a statute’s constitutionality; every act carries a strong presumption of constitutionality, and before an act will be held unconstitutional, the incompatibility between it and the constitution must be clear. Gay v. Rabon, 280 Ark. 5, 652 S.W.2d 836 (1983). Any doubt as to the constitutionality of a statute must be resolved in favor of its constitutionality. Id. The heavy burden of demonstrating the unconstitutionality of a statute is upon the one attacking it. Id.

Here, in order to prove that the requirement of expert testimony in informed consent cases violates the equal protection clause, Eady would have to demonstrate that there is no rational basis for such a requirement. See Raley v. Wagner, 346 Ark. 234, 57 S.W.3d 683 (2001) (finding rational basis for two-year statute of limitations in medical malpractice cases). Under the rational basis test, legislation is presumed constitutional and rationally related to achieving any legitimate governmental objective under any reasonably conceivable fact situation. Fayetteville Sch. Dist. v. Arkansas State Bd. of Educ., 313 Ark. 1, 852 S.W.2d 122 (1993). This presumption places the burden of proof on the party challenging the legislation to prove its unconstitutionality. Id.

The test is the same for cases in which it is alleged that a statute is unconstitutional special legislation. Id. Legislation is special “if by some inherent limitation or classification it arbitrarily separates some person, place, or thing from those upon which, but for such separation, it would operate [.]” Id. (citing Owen v. Dalton, 296 Ark. 351, 757 S.W.2d 921 (1988) (emphasis supplied in text). The determinative factor is whether the General Assembly acted in an arbitrary manner to separate one class of persons from another, and we apply the rational basis test to determine whether such a separation is arbitrary. Id. (citing Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983)).

Eady has offered no proof that the General Assembly acted arbitrarily, or that the legislation is not rationally related to achieving any legitimate objective of the government under any reasonably conceivable fact situation, beyond a bare assertion that “the statute’s goals of reducing medical costs and malpractice premiums would not be achieved through the imposition of the professional standard with regard to informed consent cases.” Clearly, there is a rational relationship between the burden of proof required and the achievement of a legitimate governmental objective. The emergency clause of the Medical Malpractice Act states as follows:

It is hereby found, determined and declared by the General Assembly that the threat of legal actions for medical injury have resulted in increased rates for malpractice insurance which in turn causes and contributes to an increase in health care costs placing a heavy burden on those who can least afford such increases and that the threat of such .actions contributes to expensive medical procedures to be performed by physicians and others which otherwise would not be considered necessaryf,] and that this Act should be given effect immediately to help control the spiraling cost of health care.

It is made clear by the General Assembly that the objective of the Act is to control rapidly increasing health care costs. The requirement of producing expert testimony in informed consent cases assists in keeping such costs down; in the absence of such a requirement, nearly every informed consent claim would create a jury question as to whether the “prudent patient” standard (i.e., the minority standard) had been met. This would result in more litigation, higher costs, and greater expenses to the medical profession, which would in turn be passed on to patients and health care consumers. Thus, the General Assembly did not act arbitrarily in requiring a different degree of proof in informed consent cases than in other medical malpractice cases.

Finally, Eady argues that, in the event the court determines that the act is constitutional, we should alternatively apply the “common knowledge” exception to informed consent cases. This exception provides that expert medical testimony is not required when the asserted negligence lies within the comprehension of a jury of laymen, such as a surgeon’s failure to sterilize his instruments or to remove a sponge from the incision before closing it. See Haase v. Starnes, 323 Ark. 263, 915 S.W.2d 675 (1996) (citing Lanier v. Trammel, 207 Ark. 372, 180 S.W.2d 818 (1944)). On the other hand, when the applicable standard of care is not a matter of common knowledge, the jury must have the assistance of expert witnesses in coming to a conclusion upon the issue of negligence. Id.

Eady argues that this “common knowledge” exception should apply “because a prudent patient would want to know about serious risks of death or severe injury from a treatment.” Flere, the asserted negligence was Dr. Lansford’s alleged failure to inform Eady of the potential for developing Stevens-Johnson syndrome. The question is whether this asserted negligence lies within the comprehension of a jury of laymen. Eady asserts that it does, because the jury could understand that a reasonably prudent patient in his position would have opted for a different treatment, had he been informed of the possibility of suffering this serious complication, and he argues that the “common knowledge” exception should apply to informed consent cases, because “a lay jury can understand that a physician has a duty to disclose potential side effects which may cause death or a significant risk of death.”

However, such argument simply ignores the requirement in § 16-114 — 206(b) that an informed-consent plaintiff must demonstrate “that the medical care provider did not supply the type of information ... as would customarily have been given to a patient in the position of the injured person ... by other medical care providers with similar training and experience at the time of the treatment ... in the locality in which the medical care provider practices or in a similar locality.” To accept Eady’s argument would require holding § 16-114-206(b) unconstitutional. One cannot “alternatively” apply the common knowledge exception to informed consent cases without striking § 16-114-206(b) in its entirety. As discussed above, we hold the statute is constitutional, and therefore, the court will not “alternatively” apply the comr mon knowledge doctrine.

In sum, Dr. Lansford presented expert testimony to the effect that he was acting within the required standard of care of physicians engaged in the practice of otolaryngology during 1996 within the State of Arkansas. Dr. Lansford’s expert stated that the prescribing of Bactrim was appropriate for the treatment of Eady’s symptoms, and that, although a physician does have a duty to inform a patient about commonly encountered side effects, the risk of developing Stevens-Johnson syndrome is so rare that doctors do not specifically advise of that risk unless a patient has a known allergy to sulfonamides such as Bactrim. Further, Dr. Lansford’s expert pointed out that Eady’s condition was about the same on September 25, 1996, as it had been on September 13, 1996, and there was no reason presented to Dr. Lansford to have discontinued Eady’s taking of Bactrim at that time.

Rather than meeting proof with proof, and offering expert testimony of his own, Eady chose to challenge the constitutionality of the statute. The proof required to survive a motion for summary judgment in a medical malpractice case must be in the form of expert testimony. Ford v. St. Paul Fire & Marine Ins. Co., 339 Ark. 434, 55 S.W.3d 460 (1999) (citing Oglesby v. Baptist Medical System, 319 Ark. 280, 891 S.W.2d 48 (1995)). Eady offered no proof whatsoever to demonstrate that Dr. Lansford violated the appropriate standard of care. Because Eady failed to meet proof with proof in the form of expert testimony, the trial court did not err in granting Dr. Lansford’s motion for summary judgment, and the lower court’s decision is therefore affirmed.