Moncrief v. State

J.T. MONCRIEF v. STATE of Arkansas

CR 96-166                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered June 24, 1996


1.   Appeal & error -- flagrantly deficient abstract -- scattered
     references are not substitute for proper abstract. -- From
     appellant's flagrantly deficient abstract, the supreme court
     could neither tell whether appellant, who challenged the
     sufficiency of the evidence on appeal, had actually moved for
     a directed verdict nor discern the content and basis of his
     motions; the supreme court reiterated that, although
     appellant's statement of the facts and argument referred to
     motions for a directed verdict and to a denial of those
     motions, such scattered references are not a substitute for a
     proper abstract.

2.   Appeal & error -- flagrantly deficient abstract -- no showing
     that directed-verdict motions were made. -- Although the State
     did not deny that appellant had made motions for a directed
     verdict, the supreme court did not address the merits of the
     appeal because appellant's abstract did not show in any way
     that motions for a directed verdict were made; the supreme
     court affirmed for violation of Ark. Sup. Ct. R. 4-2(a)(6).

3.   Appeal & error -- record confined to that which is abstracted.
     -- Although appellant abstracted two motions to dismiss,
     nothing in his abstract showed that he ever obtained a ruling
     by the trial court on his motions; the record on appeal is
     confined to that which is properly abstracted.

4.   Appeal & error -- burden of obtaining ruling is on movant --
     unresolved objections waived. -- The burden of obtaining a
     ruling is on the movant; objections and questions left
     unresolved are waived and may not be relied upon on appeal;
     both the arguments made to the trial court and the trial
     court's ruling are vital to the appellate court's decision on
     review; without the trial judge's ruling or order, the
     appellate court has no basis for a decision; hence, the
     supreme court also affirmed on the issue of appellant's motion
     to dismiss because Moncrief's abstract was flagrantly
     deficient on the point.

5.   Appeal & error -- flagrantly deficient abstract -- appellant
     failed to abstract objection to seating of disqualified
     prosecutor. -- Where appellant failed to abstract any
     objection or ruling regarding the seating of the self-
     disqualified prosecutor at the counsel table with the special
     prosecutor, and since failure to make a timely objection
     waives the objection, and the record on appeal is limited to
     that which is abstracted, the supreme court affirmed on the
     point.

6.   Appeal & error -- flagrantly deficient abstract -- appellant
     failed to abstract any response or objection to State's
     petition for removal from office. -- Where appellant's
     abstract did not contain any response or objection to the
     State's petition for removal from office, the supreme court
     did not address the point.

7.   Appeal & error -- even constitutional issues are waived unless
     raised before trial court. -- Where appellant argued that his
     removal from office was unconstitutional, the supreme court
     did not address the issue because the record on appeal is
     confined to that which has been abstracted, and appellant's
     abstract in the instant case did not reflect that he raised
     the constitutional argument before the trial court; even
     constitutional arguments are waived unless raised before a
     trial court; moreover, without an abstract of the hearing, the
     appellate court was left in the dark concerning what
     transpired before the trial court.


8.   Appeal & error -- appellant's failure to move to supplement or
     substitute abstract prior to submission of case fatal to
     appeal. -- Appellant's failure to move to supplement or
     substitute his abstract prior to the submission of his case
     for decision was fatal to his appeal.


     Appeal from Lincoln Circuit Court; H.A. Taylor, Judge;
affirmed.
     Winfred A. Trafford and Green, Henry & Green, by: J.W. Green,
Jr., for appellant.
     Winston Bryant, Att'y Gen., by:  Sandy Moll, Asst. Att'y Gen.,
for appellee.

     Robert L. Brown, Justice.Associate Justice Robert L. Brown
June 24, 1996   *ADVREP*SC10*






J.T. MONCRIEF,
                    APPELLANT,

V.

STATE OF ARKANSAS,
                     APPELLEE,

CR 96-166




APPEAL FROM THE LINCOLN COUNTY
CIRCUIT COURT,
NO. CR 94-78-2,
HON. H.A. TAYLOR, JUDGE,




AFFIRMED.






     This appeal involves a charge brought against appellant J.T.
Moncrief for violation of Ark. Code Ann.  16-15-109 (Repl. 1994),
which makes it unlawful for a county official to develop an
"interest" in a county contract.  Following a jury trial, Moncrief
was convicted of the charge, a misdemeanor, and fined $500.  As a
result of the conviction, he was later removed from his office of
County Judge of Lincoln County pursuant to  16-15-109(b).  He
appeals both the judgment against him and his removal from office. 
We do not address the merits of the appeal because we find the
appellant's abstract of the record to be flagrantly deficient under
Ark. Sup. Ct. R. 4-2(b).  For that reason, we affirm.
     On July 6, 1995, this case was tried to a jury.  The testimony
at trial was that after an ice storm in Lincoln County, the county
received federal financial assistance (FEMA funds) to make repairs
and clean up the roads.  Moncrief reviewed bids for the project and
chose Hal Garrison as the contractor to perform the work. 
Garrison, however, needed a performance bond before he could
finalize the arrangement with Lincoln County.  In order to obtain
the bond, Garrison went to the Bank of Star City with Moncrief and
Weldon Wynn, a bond writer, and sought a $4,000 dollar loan from
the bank to be used for a ten percent cash bond.  Moncrief assured
a lending officer of the bank, Mark Owen, that he would make sure
that the bank got paid and that there would be no risk in the
bank's making the loan to Hal Garrison.  Moncrief then signed a
personal guaranty on July 1, 1994, to repay the $4,000 promissory
note made by Garrison, and in return, the bank issued a cashier's
check in the amount of $4,000 payable jointly to Garrison and
Moncrief.
     Moncrief never revealed to the Lincoln County Quorum Court
that he had guaranteed the note for Garrison and, in fact, told
Quorum Court members when asked that he was not directly
responsible for Garrison's obtaining the $4,000.  Garrison paid off
the note, and the bank employee handling the loan testified that
Moncrief never received any money or other benefit from his
involvement in the Hal Garrison loan.
     The jury returned a guilty verdict and fixed Moncrief's
sentence at a fine of $500.00.  On July 11, 1995, the trial court
entered an order in accordance with the verdict.  On that same day,
the State filed a petition for removal of appellant as county judge
pursuant to Ark. Code Ann.  16-15-109(b) (Repl. 1994).  The
following day, the trial court entered an order granting the
petition.
     Moncrief first contends that there was no evidence that he was
"interested" in any contract or transaction made or entered into in
Lincoln County as required by  16-15-109(a)(1), and thus, the
trial court erred in not entering a judgment of acquittal.  The
State responds that this point must be affirmed because Moncrief
did not abstract any motion for a directed verdict or the trial
court's ruling, all of which is in violation of Ark. Sup. Ct. R. 4-
2(a)(6).  The State is correct.
     In Taylor v. State, 299 Ark. 123, 771 S.W.2d 742 (1989), this
court did not reach the merits of the defendant's challenge to the
sufficiency of the evidence to support a guilty verdict in part
because the defendant failed to abstract the motion for directed
verdict.  We stated:
     We do not reach the merits of Taylor's claim because he
     failed to abstract his motion for directed verdict and
     because he never challenged the sufficiency of the
     evidence below on the grounds the State failed to prove
     premeditation and deliberation.
          Parties have an affirmative obligation to abstract
     those portions of the record relevant to the points on
     appeal, and the record is confined to that which has been
     abstracted.  It is equally axiomatic that arguments made
     for the first time on appeal will not be considered by
     this court, and parties cannot change the grounds for an
     objection on appeal. 
Id. at 124, 771 S.W.2d  at 743 (citations omitted).  Following suit,
in Brown v. State, 316 Ark. 724, 875 S.W.2d 828 (1994), we refused
to address the merits of a challenge to the sufficiency of the
evidence because the defendant's abstract did not sufficiently
reflect the content of his motions for directed verdict at the
trial court level.  We stated:
          Appellant's abstract reflects that at the conclusion
     of the State's case he "[m]oved for a directed verdict,"
     which was denied, and at the end of the case he "renewed
     motion for a directed verdict," which was denied. 
     Appellant's record on appeal is limited to that which is
     abstracted.  Thus, we do not know whether the motion to
     the trial court applied to one, two, or all three of the
     charges, and we do not know the specific grounds of the
     motion or motions. 
Id. at 727, 875 S.W.2d  at 830.
     In the instant case, we cannot tell from the abstract that
Moncrief actually moved for a directed verdict at all, much less
the content and basis of his motions.  His Statement of the Facts
and Argument do refer to motions for a directed verdict and to a
denial of those motions, but this court has explained that such
scattered references are not a substitute for a proper abstract. 
See, e.g., Franklin v. State, 318 Ark. 99, 884 S.W.2d 246 (1994);
Watson v. State, 313 Ark. 304, 854 S.W.2d 332 (1993).
     In his Reply Brief, Moncrief relies on Fight v. State, 314
Ark. 438, 863 S.W.2d 800 (1993), for the point that since the State
does not deny that Moncrief made the motions and that they were
denied, this court should address the merits.  The Fight case is
distinguishable, though.  In Fight, the defendant's abstract did
indicate that the motions for a directed verdict had been made. 
Indeed, in Fight we took pains to distinguish Taylor v. State,
supra, and similar cases which totally failed to abstract motions. 
Because the abstract in this case does not show in any way that
motions for a directed verdict were made, Fight v. State, supra, is
not controlling.  We affirm for violation of Ark. Sup. Ct. R. 4-
2(a)(6).
     Moncrief next asserts that he moved to dismiss the criminal
charge before the jury trial on the basis that the criminal
information did not set forth sufficient allegations and facts to
support a criminal charge and he could not prepare a defense based
on the insufficient information and that the information was
unconstitutionally vague.  The State again responds that Moncrief's
abstract is deficient on this point because he failed to abstract
any ruling by the trial court on the motion to dismiss.
     We agree that the abstract is lacking on this issue.  Moncrief
did abstract his two motions to dismiss.  However, there is nothing
in the abstract to show that he ever obtained a ruling by the trial
court on his motions, and this court has emphasized time and again
that the record on appeal is confined to that which is properly
abstracted.  See, e.g., Brown v. State, supra.  Moreover, we have
held numerous times that the burden of obtaining a ruling is on the
movant, and objections and questions left unresolved are waived and
may not be relied upon on appeal.  See, e.g., Watson v. State,
supra; Williams v. State, 289 Ark. 69, 709 S.W.2d 80, (1986).  Both
the arguments made to the trial court and the trial court's ruling
are vital to this court's decision on review.  Watson v. State,
supra.  Without the trial judge's ruling or order, we have no basis
for a decision.  See Johnson v. State, 316 Ark. 509, 872 S.W.2d 400
(1994) (per curiam).  Hence, we must also affirm the judgment and
order below on this point because Moncrief's abstract is flagrantly
deficient.  See Ark. Sup. Ct. R. 4-2(b).
     For his next point, Moncrief asserts that the trial court
erred in allowing Betty Dickey, the prosecuting attorney who had
been disqualified on her own motion, to sit at the counsel table
with the special prosecutor.  Moncrief asserts that Wayne Juneau,
a deputy prosecuting attorney in Dickey's office, testified for the
State, and because of this, allowing Dickey to sit inside the bar
amounted to a comment on the evidence.  The State responds once
again that the abstract is flagrantly deficient with respect to
this issue, and therefore the issue should be decided in the
State's favor.
     We agree.  The abstract contains only the motion for
appointment of the special prosecutor filed by Dickey and the order
granting the motion and appointing a special prosecutor.  The
abstract contains nothing further regarding Dickey's seat at the
counsel table.  As we have previously noted, scattering references
throughout a Statement of the Case and Argument is not a substitute
for a proper abstract.  See, e.g., Watson v. State, supra.  Since
failure to make a timely objection waives the objection, [Rockett
v. State, 319 Ark. 335, 891 S.W.2d 366 (1995)], and the record on
appeal is limited to that which is abstracted, we affirm this point
based on Moncrief's failure to abstract any objection and ruling on
the objection.  See Stone v. State, 321 Ark. 46, 900 S.W.2d 515
(1995).
     Moncrief states as his fourth argument that he objected at the
trial level to any action being taken by the trial court in
Jefferson County on the petition for his removal for a cause of
action that was tried in Lincoln County.  He makes the additional
argument that his removal from office constituted double jeopardy. 
The State responds that the abstract does not contain any hearing
or any objections made by him on this point, and therefore this
point should be affirmed.  Again, the State is right.  In fact, the
abstract does not contain any response or objection to the State's
petition for removal whatsoever.  Based on the previous discussion,
we will not address this point.
     For his final point, Moncrief urges that Article 5, Section 9,
of the Arkansas Constitution provides that a person may be removed
from public office if he is convicted of "embezzlement of public
money, bribery, forgery, or other infamous crime" and that here he
was only convicted of a misdemeanor, which is not listed in Ark.
Const. art. 5,  9.  Hence, he argues that his removal from office
was unconstitutional.  The State responds that Moncrief did not
abstract any such argument made to the trial court or any hearing
on this point.  Accordingly the issue should be resolved in favor
of the State.  We agree.
     Again, the record on appeal is confined to that which has been
abstracted, and the abstract in the instant case does not reflect
that Moncrief raised this constitutional argument before the trial
court.  Even constitutional arguments are waived unless raised
before a trial court.  Marshall v. State, 316 Ark. 753, 875 S.W.2d 814 (1994).  Moreover, without the abstract of the hearing we are
left in the dark as to what transpired before the trial court.  See
Pogue v. State, 316 Ark. 428, 872 S.W.2d 387 (1994); Haynes v.
State, 313 Ark. 407, 855 S.W.2d 313 (1993).  We will not address
this argument.   
     Finally, Moncrief requests in his Reply Brief that if this
court determines that his abstract is deficient, he should be
allowed time to revise his brief to conform to Ark. Sup. Ct. R. 4-
2(a)(6).  Ark. Sup. Ct. R. 4-2(b)(2) provides that if the court
determines that an affirmance for noncompliance with the
abstracting rules is unduly harsh, "the appellant's attorney may be
allowed time to revise the brief, at his or her own expense, to
conform to Rule 4-2(a)(6)."  
     In Harris v. State, 315 Ark. 398, 868 S.W.2d 58 (1993), we
affirmed the defendant's convictions on two counts of delivery of
a controlled substance on the basis that his abstract was
flagrantly deficient.  In a footnote, we noted:
          We note that in his reply brief, Harris requested
     that he be permitted to supplement his abstract, but that
     request was without a prior timely motion, and as a
     matter of course, would not (and did not) come to the
     court's attention until after this case was submitted to
     the court for decision.  It is not permissible to supply
     a deficiency in the abstract of the record in a reply
     brief.
Id. at 399, 868 S.W.2d  at 59 (citation omitted).  Similarly, in the
instant case, Moncrief did not file a prior timely motion
requesting that he be allowed to revise his brief to provide a
sufficient abstract.
     In Young v. State, 308 Ark. 372, 823 S.W.2d 911 (1992), this
court allowed an appellant to supplement his abstract and brief. 
The Young case differs, however, from the instant case in that in
Young the appellant's attorney filed a motion requesting that he be
allowed to supplement his abstract and brief.  We stated:
     Since the case is not yet ready for submission, we grant
     the motion and allow the appellant fifteen days within
     which to file a substituted abstract and brief.
          Rule 9(e)(2) of the Rules of the Supreme Court and
     Court of Appeals provides that, when it does not cause an
     unreasonable or unjust delay in the disposition of an
     appeal, an appellant's attorney may be allowed time to
     reprint his brief, at his own expense, to conform to Rule
     9(d).  Granting the motion in this case will not cause an
     unjust delay since the case is not yet ready for
     submission and other cases are ready for submission.
Id at 372, 823 S.W.2d  at 911; see also Dixon Ticonderoga Co. v.
Winburn Tile Manufacturing Co., 322 Ark. 817, 911 S.W.2d 955
(1995).
     In short, Moncrief's failure to move to supplement or
substitute his abstract prior to the submission of this case for
decision is fatal to his appeal.  To decide otherwise would
unjustly delay the disposition of this matter.
     Affirmed.
     Dudley, J., not participating.