{ "id": 369320, "name": "J.T. MONCRIEF v. STATE of Arkansas", "name_abbreviation": "Moncrief v. State", "decision_date": "1996-06-24", "docket_number": "CR 96-166", "first_page": "173", "last_page": "180", "citations": [ { "type": "official", "cite": "325 Ark. 173" }, { "type": "parallel", "cite": "925 S.W.2d 776" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "322 Ark. 817", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1447551 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/322/0817-01" ] }, { "cite": "308 Ark. 372", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1904374 ], "weight": 3, "year": 1992, "pin_cites": [ { "page": "911" } ], "opinion_index": 0, "case_paths": [ "/ark/308/0372-01" ] }, { "cite": "315 Ark. 398", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1910568 ], "weight": 4, "year": 1993, "pin_cites": [ { "page": "399" }, { "page": "59", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/ark/315/0398-01" ] }, { "cite": "313 Ark. 407", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1914648 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/313/0407-01" ] }, { "cite": "316 Ark. 428", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1907804 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/316/0428-01" ] }, { "cite": "875 S.W.2d 814", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1907745, 1910447 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/316/0753-01", "/ark/315/0658-01" ] }, { "cite": "316 Ark. 753", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1907745 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/316/0753-01" ] }, { "cite": "321 Ark. 46", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1449589 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/321/0046-01" ] }, { "cite": "319 Ark. 335", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1453563 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/319/0335-01" ] }, { "cite": "316 Ark. 509", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1907732 ], "weight": 2, "year": 1994, "pin_cites": [ { "parenthetical": "per curiam" }, { "parenthetical": "per curiam" } ], "opinion_index": 0, "case_paths": [ "/ark/316/0509-01" ] }, { "cite": "289 Ark. 69", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1875442 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/ark/289/0069-01" ] }, { "cite": "314 Ark. 438", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1912801 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/314/0438-01" ] }, { "cite": "313 Ark. 304", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1914618 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/313/0304-01" ] }, { "cite": "318 Ark. 99", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1455816 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/318/0099-01" ] }, { "cite": "316 Ark. 724", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1907723 ], "weight": 4, "year": 1994, "pin_cites": [ { "page": "727" }, { "page": "830" } ], "opinion_index": 0, "case_paths": [ "/ark/316/0724-01" ] }, { "cite": "299 Ark. 123", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1888323 ], "weight": 4, "year": 1989, "pin_cites": [ { "page": "124" }, { "page": "743", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/ark/299/0123-01" ] }, { "cite": "Ark. Code Ann. \u00a7 16-15-109", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "year": 1994, "pin_cites": [ { "page": "(b)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 664, "char_count": 13735, "ocr_confidence": 0.801, "pagerank": { "raw": 1.8565605068066932e-07, "percentile": 0.7242578621379084 }, "sha256": "49799ed8b53c0a02422dc5a5683fc0f5d4faca7d24da30c7fa146faba92a6485", "simhash": "1:974d9424636e9be3", "word_count": 2385 }, "last_updated": "2023-07-14T19:33:21.718216+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "DUDLEY, J., not participating." ], "parties": [ "J.T. MONCRIEF v. STATE of Arkansas" ], "opinions": [ { "text": "ROBERT L. Brown, Justice.\nThis appeal involves a charge brought against appellant J.T. Moncrief for violation of Ark. Code Ann. \u00a7 16-15-109 (Repl. 1994), which makes it unlawful for a county official to develop an \u201cinterest\u201d 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 \u00a7 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\u2019s abstract of the record to be flagrandy deficient under Ark. Sup. Ct. R. 4-2 (b). For that reason, we affirm.\nOn 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\u2019s 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\u2019s check in the amount of $4,000 payable jointly to Garrison and Moncrief.\nMoncrief 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\u2019s 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.\nThe jury returned a guilty verdict and fixed Moncrief\u2019s 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. \u00a7 16-15-109(b) (Repl. 1994). The following day, the trial court entered an order granting the petition.\nMoncrief first contends that there was no evidence that he was \u201cinterested\u201d in any contract or transaction made or entered into in Lincoln County as required by \u00a7 16-15-109(a)(l), 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\u2019s ruling, all of which is in violation of Ark. Sup. Ct. R. 4-2 (a) (6). The State is correct.\nIn Taylor v. State, 299 Ark. 123, 771 S.W.2d 742 (1989), this court did not reach the merits of the defendant\u2019s 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:\nWe do not reach the merits of Taylor\u2019s 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.\nParties 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.\nId. 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 refosed to address the merits of a challenge to the sufficiency of the evidence because the defendant\u2019s abstract did not sufficiently reflect the content of his motions for directed verdict at the trial court level. We stated:\nAppellant\u2019s abstract reflects that at the conclusion of the State\u2019s case he \u201c[m]oved for a directed verdict,\u201d which was denied, and at the end of the case he \u201crenewed motion for a directed verdict,\u201d which was denied. Appellant\u2019s 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.\nId. at 727, 875 S.W.2d at 830.\nIn 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).\nIn 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\u2019s 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).\nMoncrief 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\u2019s abstract is deficient on this point because he failed to abstract any ruling by the trial court on the motion to dismiss.\nWe 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\u2019s ruling are vital to this court\u2019s decision on review. Watson v. State, supra. Without the trial judge\u2019s 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\u2019s abstract is flagrantly deficient. See Ark. Sup. Ct. R. 4-2(b).\nFor 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\u2019s 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\u2019s favor.\nWe 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\u2019s 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\u2019s failure to abstract any objection and ruling on the objection. See Stone v. State, 321 Ark. 46, 900 S.W.2d 515 (1995).\nMoncrief 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\u2019s petition for removal whatsoever. Based on the previous discussion, we will not address this point.\nFor 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 \u201cembezzlement of public money, bribery, forgery, or other infamous crime\u201d and that here he was only convicted of a misdemeanor, which is not listed in Ark. Const, art. 5, \u00a7 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.\nAgain, 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.\nFinally, 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, \u201cthe appellant\u2019s attorney may be allowed time to revise the brief, at his or her own expense, to conform to Rule 4-2(a)(6).\u201d\nIn Harris v. State, 315 Ark. 398, 868 S.W.2d 58 (1993), we affirmed the defendant\u2019s convictions on two counts of delivery of a controlled substance on the basis that his abstract was flagrandy deficient. In a footnote, we noted:\nWe 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\u2019s 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.\nId. 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.\nIn 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\u2019s attorney filed a motion requesting that he be allowed to supplement his abstract and brief. We stated:\nSince 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.\nRule 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\u2019s 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.\nId 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).\nIn short, Moncrief\u2019s 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.\nAffirmed.\nDUDLEY, J., not participating.", "type": "majority", "author": "ROBERT L. Brown, Justice." } ], "attorneys": [ "Winfred A. Trafford and Green, Henry & Green, by: J. W Green, Jr., for appellant.", "Winston Bryant, Att\u2019y Gen., by: Sandy Moll, Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "J.T. MONCRIEF v. STATE of Arkansas\nCR 96-166\n925 S.W.2d 776\nSupreme Court of Arkansas\nOpinion delivered June 24, 1996\nWinfred A. Trafford and Green, Henry & Green, by: J. W Green, Jr., for appellant.\nWinston Bryant, Att\u2019y Gen., by: Sandy Moll, Asst. Att\u2019y Gen., for appellee." }, "file_name": "0173-01", "first_page_order": 197, "last_page_order": 204 }