Cite as 2020 Ark. App. 251 Reason: I attest to the accuracy and integrity of this document Date: 2021-06-16 13:42:03 ARKANSAS COURT OF APPEALS Foxit PhantomPDF Version: 9.7.5 DIVISION I No. CV-19-192
Opinion Delivered April 22, 2020
DEVLIN VEDIEL ASHBY AND APPEAL FROM THE PULASKI SHELTER MUTUAL INSURANCE COUNTY CIRCUIT COURT, COMPANY SECOND DIVISION APPELLANTS [NO. 60CV-17-7363]
V. HONORABLE CHRISTOPHER MARNETTE RAGON, INDIVIDUALLY CHARLES PIAZZA, JUDGE AND AS SPECIAL ADMINISTRATRIX OF THE ESTATE OF WILLIAM RAGON AFFIRMED APPELLEE
BRANDON J. HARRISON, Judge
This personal-injury case has a car wreck at its center. After a jury trial, Marnette
Ragon and William Ragon1 were awarded approximately $353,000 in damages for injuries
caused by Devlin Ashby’s negligence. The focus of Shelter Mutual Insurance Company’s
appeal is whether the circuit court should have granted Shelter’s motion for a mistrial after
the court allowed evidence that Ashby may have been intoxicated and then did not give the
jury instructions dealing with the topic of intoxication. Finally, Shelter challenges the
attorney’s fee award in the Ragons’ favor.
1 William Ragon died on 20 February 2020. The circuit court appointed Marnette Ragon as the special administratrix of his estate on 15 April 2020. We have in turn substituted the parties pursuant to Ark. R. App. P.–Civ. 12(a) (2019). 1 We affirm the denial of Shelter’s motion for a mistrial, the court’s judgment on the
jury’s verdict, and the related fee award.
I.
In January 2016, the Ragons and Devlin Ashby were involved in a car wreck.
According to the Ragons, they had stopped at a stop sign but were struck by Ashby’s vehicle,
on their car’s right rear side, as they drove through the intersection after stopping. Ashby
had just driven around a slower vehicle in the oncoming lane when he struck the Ragons’
car. Ashby left the scene on foot. The passenger in Ashby’s car stated that Ashby was
intoxicated and speeding. Such were the material facts as alleged in the Ragons’ complaint
against Ashby. The complaint also named Shelter as a defendant. Shelter was the Ragons’
insurance carrier at the time. The Ragons sued Shelter under their underinsured-motorist
coverage and, if necessary, their uninsured-motorist coverage. The complaint sought
damages for physical injury, mental anguish, past and future medical expenses, and punitive
damages.2
The case went to trial, and a jury awarded $183,046.37 in damages to Marnette
Ragon and $170,249.94 in damages to William Ragon. Facts related to the issues on
appeal—the court should not have allowed the jury to hear intoxication evidence in the
first place, and a mistrial should have been granted when the court did not properly instruct
the jury at the trial’s end—are discussed below as needed.
2 In due course, the circuit court granted Shelter’s motion for partial summary judgment on the claims for punitive damages and underinsured-motorist benefits. The court also severed the claims against Ashby for civil and punitive damages.
2 A.
Did the circuit court abuse its discretion when it let an investigating police officer
testify that Ashby showed some indicia of intoxication when he talked with Ashby at the
accident scene? We address this question first.
Prior to trial, Shelter moved to prevent Officer Jeffrey Coburn from testifying that
Ashby was intoxicated when the wreck occurred or was otherwise at fault. Officer Coburn
responded to the accident and engaged personally with Ashby while investigating what
happened. Shelter argued that there was “no reliable evidence that Ashby was intoxicated
or impaired at the time of the accident,” so any testimony to that effect should be excluded
as being unduly prejudicial. Shelter contended that the officer’s testimony should be limited
to his factual observations.
The court held a hearing on the motion in limine, during which the Ragons’ counsel
said that Officer Coburn would testify that Ashby was “slurring his speech, that he smelled
of intoxicants, he admitted he had been drinking earlier in the day, and that he had red
eyes.” Shelter objected to any evidence of alcohol use being allowed because it was more
prejudicial than probative. The court said, “I think I’m going to let it in, but, but you need
to talk to your officer as to not give an opinion.”
At trial, Officer Coburn testified that he responded to a car accident on 2 January
2016. He said that a blue Mitsubishi Montero driven by Ashby was pulled onto the curb
and that there were two other vehicles in the intersection of Mills Street and Lynch Drive
in North Little Rock. When Officer Coburn arrived at the scene, Ashby was not there,
but he was later found walking down Mills. Ashby said that he was “going to try and find
3 a phone to call 911.” Officer Coburn said that Ashby had “red watery eyes, slurred speech,
his balance was unsteady. He had an odor of intoxicants on his breath.” Ashby initially
denied being the driver of the Montero; but he later admitted to the officer that he was the
driver. Ashby also admitted that he had been “drinking intoxicants earlier in that day.”
Vicki Disabato, who lives close to the intersection where the accident occurred,
testified that she had been on her front porch and witnessed the accident. She saw a vehicle,
identified as the Ragons’, at a stop sign and heard another car approaching the intersection
at a speed “faster than thirty,” which was the posted speed limit. That car, identified as
Ashby’s, drove around a car and hit the Ragons’ car. Disabato saw Ashby climb out of the
passenger side of his car, run to the corner, go back to the car to get something from the
back seat, and run away again. She disagreed that the Ragons would have made it across
the intersection regardless of Ashby’s speeding vehicle. But she agreed that Ashby hit the
Ragons.
Shelter moved for a directed verdict during the trial and argued, “[T]here’s not any
evidence in the record upon which the minds of the jurors could differ on all of the elements
of proof.” That motion, and its timely renewal, were denied. Shelter also moved for a
mistrial about jury instructions related to intoxication. The jury decided the parties’ dispute
and, as we have already noted, returned a general verdict awarding damages to the Ragons.
After the circuit court entered a judgment on the verdict, Shelter moved for a new
trial and again argued that any indicia of intoxication was improperly admitted as evidence.
Shelter also stated that the Ragons had “submitted the testimony regarding Defendant
Ashby’s alleged alcohol consumption into evidence under an incorrect standard with the
4 intent of not pursuing the related jury instructions in order to prejudice the jury and inflame
the jury award.” The postjudgment motion was denied. Shelter appealed.
Now Shelter essentially challenges the denial of its motion in limine and the motion
for new trial. Although Shelter alleged several bases for relief under Ark. R. Civ. P. 59 in
its motion, here it focuses on Rule 59(a)(6), which provides for a new trial if the verdict or
decision is clearly contrary to the preponderance of the evidence or is contrary to the law.
Generally, we will not reverse a circuit court’s refusal to grant a motion for new trial unless
an abuse of discretion is shown. Sharp Cty. v. Ne. Ark. Planning & Consulting Co., 269 Ark.
336, 602 S.W.2d 627 (1980). When evaluating the denial of a motion for new trial under
Rule 59(a)(6), we will affirm if the circuit court’s decision is supported by substantial
evidence. Wal-Mart Stores, Inc. v. Tucker, 353 Ark. 730, 120 S.W.3d 61 (2003). Substantial
evidence is that which can compel a conclusion one way or the other. Dovers v. Stephenson
Oil Co., 354 Ark. 695, 128 S.W.3d 805 (2003). A jury’s verdict should not be disturbed
unless there is no reasonable probability that the prevailing party’s version of events could
have occurred or when fair-minded persons can only draw a contrary conclusion to the
verdict. Id.
Shelter argues that the Ragons’ theory of the case was that Ashby acted negligently,
and his negligence was due, in whole or in part, to his being intoxicated. Shelter is correct
that the only evidence of intoxication was Officer Coburn’s testimony. Shelter argues that
the “mere fact” that a driver had been drinking alcoholic beverages is not, standing alone,
enough evidence of negligence. City of Little Rock v. Cameron, 320 Ark. 444, 447, 897
S.W.2d 562, 564 (1995). More specifically, Shelter cites Cameron (more or less) for the
5 proposition that the Ragons did not establish Ashby’s intoxication under Arkansas law;
therefore, the jury should not have heard the legally insufficient testimony from Officer
Coburn about the topic.
In Cameron, a negligence case, the driver of a vehicle that hit a traffic pole had been
drinking. An officer testified that she smelled alcohol on his breath; another officer testified
that the driver’s blood-alcohol level was .05 percent according to a portable breathalyzer
test. After a directed verdict was granted in the driver’s favor, the city appealed. The
supreme court affirmed the verdict.
The mere fact that Cameron had been drinking alcoholic beverages is not sufficient evidence of negligence, standing alone, for this claim, to withstand a directed verdict. Cameron was not legally intoxicated based on his percentage of blood/alcohol content. But even had he been intoxicated, a distinguished treatise on torts concludes that the fact of intoxication is not negligence in itself, but it must be shown to have caused the actor’s behavior to have deviated from that of a reasonable person and to have caused the plaintiff’s injuries. In this vein, we have stated that voluntary intoxication may be a factor to be considered by the trier of fact in determining negligence.
Id. at 447, 897 S.W.2d at 564 (internal citations omitted) (emphasis original).
Also, in Wade v. Grace, 321 Ark. 482, 902 S.W.2d 785 (1995), the supreme court
affirmed the exclusion of evidence that beer cans were floating in the water after a ski boat
collided with a party barge—absent some evidence that the driver of the ski boat was
intoxicated. The supreme court affirmed the circuit court’s decision to exclude the
intoxication evidence because the evidence would have been unduly prejudicial. In Baker
v. Trevathan, 2018 Ark. App. 135, 542 S.W.3d 231, a car-accident case, this court held that
there was no evidence of Baker’s intoxication or impairment at the time of the accident or
immediately afterward, so any evidence regarding her prescription medication was irrelevant
6 and should have been excluded. But because Baker was not found to have been at fault,
she could not show any prejudice from the admission of the evidence.
Moving from the caselaw to the testimony, Shelter notes that Officer Coburn
testified as a lay witness, and thus his testimony in the form of opinions or inferences was
limited to those opinions or inferences that were rationally based on his perception and
helpful to a clear understanding of his testimony or a determination of a fact in issue. See
Ark. R. Evid. 701 (2019). Shelter also cites Disabato’s opinion that “everyone” drives fast
on the road where the accident occurred and infers that because everyone goes fast, “Ashby’s
alleged intoxication or consumption of alcohol is not indicative that he was negligent or
behaved out of character for those that travel that area.” 3 And it contends there was no
evidence that Ashby’s alleged intoxication showed a lack of reasonable care or caused the
accident; thus, any consumption of alcohol by Ashby failed to give rise to an inference of
negligence. Shelter says that it was negatively impacted by the admission of Officer
Coburn’s testimony, as evidenced by the jury’s awarding the Ragons “nearly $100,000.00
each over their respective medical expenses.”4
The Ragons counter that Shelter mistakenly presses an “actual intoxication” legal
standard before any indicia of driving under the influence can be admitted into evidence.
Contrary to Shelter’s all-or-nothing approach, the Ragons urge that Officer Coburn’s
3 Disabato’s exact words were: “I had just walked out, and I sit down. And, I don’t know, it was a couple of minutes went by, and I heard a sound, and I said to myself I said, oh, they drive so fast on this road.” 4 It seems that the jury was given a packet that included a summary of medical expenses that the Ragons incurred. That information is not in the record, so we cannot verify the amount of medical expenses claimed.
7 detailed testimony is prima facie evidence of potential intoxication, which the jury can
receive and weigh in its deliberations. As for the caselaw, the Ragons point out that
Arkansas cases have repeatedly allowed lay witnesses to describe actions and conditions
consistent with intoxication. For example, in Lockhart v. State, 2017 Ark. 13, at 4, 508
S.W.3d 869, 872, our supreme court affirmed a DWI conviction and noted that “the
observations of police officers regarding the smell of alcohol constitutes competent evidence
on the issue of intoxication. Further, opinion testimony regarding intoxication is
admissible.” (Internal citations omitted.) See also Peterson v. State, 81 Ark. App. 226, 100
S.W.3d 66 (2003) (same); Wortham v. State, 65 Ark. App. 81, 985 S.W.2d 329 (1999) (noting
that police officers’ observations may be competent evidence supporting a DWI charge).
The Ragons also distinguish the cases relied on by Shelter. In Wade, the investigating
officers did not observe any behavior at the boating-accident scene that led them to believe
the driver was intoxicated; the mere fact that beer cans were found floating nearby in the
lake was deemed more prejudicial than probative. And in Cameron, the investigating officers
did not observe any behavior to support a finding of intoxication. In fact, a breathalyzer
test administered at the scene showed that the driver was not legally intoxicated.
This case is different. Here, Officer Coburn testified that Ashby had slurred speech;
red, watery eyes; poor balance; and he smelled of alcohol. That testimony is sufficient under
our caselaw to establish a prima facie case of intoxication, which the jury was permitted to
hear and consider.
Shelter’s main error here is that it presses the wrong test for determining whether
intoxication evidence may be admitted. Specifically, Shelter argues the following:
8 In order for Officer Coburn’s testimony that Mr. Ashby had an odor of alcohol on his person, red watery eyes, slurred speech and an unsteady balance to be admissible it must be clear that not only was Mr. Ashby actually intoxicated at the time of the accident but that alleged intoxication resulted in him striking the Appellees as they pulled from the stop sign into his path of unrestricted travel.
We disagree with Shelter’s view of the law. Notice what this (mis)statement of the law
does besides assert an “actual intoxication” standard, which does not now exist in the
caselaw. Shelter’s position melds the issue of intoxication with a proximate-cause point. A
witness who testifies about indicia of intoxication in a way that establishes a prima facie case
on the point does not have to also state that it proximately caused some act or omission that
resulted in damages. It would be improper for a witness to opine on a jury question in this
manner.
We hold that Officer Coburn’s observations established a prima facie5 case of
intoxication, so his testimony was admissible under Arkansas law. A jury was not, of course,
required to conclude that Ashby was intoxicated or that, even if he was, his intoxication
contributed to any negligent act or omission on his part while driving his car. As we have
already stated, the jury’s verdict will only be set aside under Rule 59(6) when there is no
reasonable probability that the car wreck happened in a manner consistent with the Ragons’
version of events. See Dovers, supra. That is not the case here. Consequently, we affirm
the denial of Shelter’s motion for new trial.
5 Prima facie evidence is “[s]ufficient to establish a fact or raise a presumption unless disproved or rebutted; based on what seems to be true on first examination, even though it may later be proved to be untrue.” Prima Facie, Black’s Law Dictionary (11th ed. 2019).
9 B.
The second and more important facet of the “intoxication evidence” question relates
to the jury-instructions phase of the case. It is on this point that our dissenting colleagues
part ways with us. Specifically, the Ragons’ counsel offered AMI Civ. 6066 and 607,7 which
are intoxication instructions. Shelter objected to them,8 and the Ragons’ counsel voluntarily
withdrew them. The court did not rule on whether the instructions should be given.
Shelter’s counsel then moved for a mistrial, arguing that “they’ve tainted the barrel.” The
court denied the mistrial motion, stating that “the officer just testified to what he observed.”
6 AMI 606 Intoxication—Definition
A person is intoxicated when [he][she] is influenced or affected by the ingestion of alcohol, a controlled substance, any intoxicant, or combination thereof, to such a degree that [his][her] reactions, motor skills, and judgment are substantially altered and, as a result, [he][she] constitutes a clear and substantial danger of physical injury or death to [himself][herself] and others.
AMI Civ. 606 (2020). 7 AMI 607 Intoxication as Negligence
Whether a person involved in the occurrence was intoxicated at the time is a proper question for you to consider together with other facts and circumstances in evidence in determining whether [he][she] was negligent. Intoxication is no excuse for failure to act as a reasonably careful person would act. An intoxicated person is held to the same standard of care as a sober person.
AMI Civ. 607 (2020). 8 Shelter does not dispute that it objected to the instructions. Shelter’s counsel on appeal, who was also its trial counsel, confirmed during the oral argument that he had objected to the Ragons’ instructions.
10 Now, Shelter complains that the failure to give the two intoxication instructions to
which it objected tainted the jury deliberations and the verdict because intoxication
evidence was received at trial, but the jury was not told what to do with it. The Ragons
say that they withdrew the instruction because Shelter had objected to it; and Shelter cannot
invite an alleged error then complain about it later. See Park Plaza Mall CMBS, LLC v.
Powell, 2018 Ark. App. 48, at 4 (a party may not complain on appeal of an erroneous action
of a circuit court if it induced or acquiesced in that action).
We agree that Shelter invited the perceived error about which it now complains.
The instructions were withdrawn because Shelter objected to them. When the parties had
their instructions conference, the court had already admitted intoxication evidence over
Shelter’s multiple objections. At that time, regardless of how an appellate court might decide
the admission question if appealed, Shelter had clearly preserved the argument that the
circuit court should not have admitted the officer’s intoxication testimony during the trial
in the first place. The problem arose when Shelter did not fully appreciate that the jury-
instructions phase is separate from the evidentiary-error question that occurred when the
parties made their respective cases to the jury. We therefore disagree with Shelter’s main
concern that it would have waived its in limine and trial objections challenging the
admission of the intoxication evidence in the first place had it not objected to the Ragons’
offering AMI Civ. 606 and 607.
A court must generally give an instruction if a party offers it, the instruction correctly
states the law, and there is “some evidence” to support the instruction. See Parker v. Holder,
315 Ark. 307, 867 S.W.2d 436 (1993) (holding that it is error to exclude a requested
11 instruction that correctly states the law and there is evidence that supports its use). All those
boxes were checked when Shelter objected to the instructions at the conference. Without
question there was “some evidence” of intoxication by way of the officer’s testimony.
Shelter could not and did not argue the contrary; it just argued for an “actually intoxicated”
standard and for the court to exclude evidence of it.
In our view, Shelter should have recognized that the Ragons offered AMI
instructions that correctly stated the law and that there was “some evidence” to support the
instructions—albeit over Shelter’s well-preserved prior objections that no intoxication
evidence should have come in at all. Then, during its closing argument, Shelter could have
told the jury, for example, that the Ragons’ own evidence of intoxication (Officer Coburn’s
testimony) did not meet the standard in AMI Civ. 606 and should otherwise be rejected.
AMI Civ. 606 imposes a rather stringent definition of intoxication, and Shelter could have
(and should have) highlighted that standard and argued that the officer never came close to
stating the things included in the jury instruction.
In other words, had Shelter wanted to require the Ragons to satisfy the legal burden
for establishing intoxication, as the term is defined in the relevant jury instructions, then it
should not have sought to keep the instructions out. In its reply brief, Shelter says that it
could not “consent to the admission of a jury instruction presented when it has objected to
the evidence which is the basis for the instruction.” But it provides no citation to authority
for this statement; nor have we found any caselaw holding that failing to object to a jury
instruction in this case’s context can waive a sufficiency-of-the-evidence argument on
appeal. It is congruent for Shelter to have challenged the admissibility of the intoxication
12 evidence in the first place, and then once it was before the jury, argue to the jury that it
should assess the proof in light of the instructions (AMI Civ. 606 and 607) and find that
Ashby was not intoxicated when the wreck occurred and/or that intoxication was not a
proximate cause of any alleged negligent act or omission.
An additional problem with Shelter’s instruction argument is that this case, with both
parties’ and the court’s consent, was submitted on a general verdict form. The general
verdict means that no party asked the jury to parse out, through interrogatories, exactly
which act(s) or omission(s) of alleged negligence proximately caused the Ragons’ damages.
There was no attempt to ask the jury whether it believed alcohol played a part in the verdict.
This is important because there was evidence, apart from potential intoxication, that could
have alone supported a negligence verdict. Intoxication evidence was the highlight of the
case no doubt. But the case still would have gone to the jury without it. Stated differently,
a sober person using questionable judgment could be charged with the same negligent acts
or omissions. Intoxication is not a necessary finding before one can violate the rules of the
road in a negligent manner. No one will ever know without speculating what role, if any,
intoxication as opposed to speeding, for example, played in the jury’s determination. Shelter
wants “intoxication” to be the driving factor in the adverse verdict, the end-all; but there is
no way to know that it was, and we do not guess at general verdicts’ rationales.
II.
The Ragons moved for attorney’s fees pursuant to Ark. Code Ann. § 23-79-208(a)(1)
(Repl. 2014), which provides that in all cases in which loss occurs and the liable insurance
company fails to pay the losses within the time specified in the policy after demand is made,
13 “the person, firm, corporation, or association shall be liable to pay the holder of the policy
or his or her assigns, in addition to the amount of the loss, twelve percent (12%) damages
upon the amount of the loss, together with all reasonable attorney’s fees for the prosecution
and collection of the loss.” Counsel asked for $134,400, which constitutes its portion of
the amount awarded under its contingency contract, or alternatively, for at least $13,830
based on its hourly rate and time spent on the case. Shelter objected to the amounts as
excessive and unreasonable. In its order, the circuit court found that the hourly rate ($250
per hour) and the time spent on the case (56.3 hours) asserted by the Ragons’ counsel was
reasonable and awarded attorney’s fees in the amount of $13,830.
The decision to award attorney’s fees and the amount to award is discretionary and
will be reversed only if the appellant can demonstrate that the circuit court abused its
discretion. Harrill & Sutter, P.L.L.C. v. Kosin, 2012 Ark. 385, 424 S.W.3d 272. Shelter
argues that the attorney’s-fee award is excessive and “without justification.” Shelter
primarily asserts that counsel’s statement supporting the award “includes entries of time in a
case that Appellees were ultimately forced to nonsuit due to their own failure to be ready
for the trial, and it contains duplicate entries for the same tasks performed in the subsequent
filing.” But Shelter fails to pinpoint what entries it is referring to or provide any page cites
to the record or addendum. Shelter also contends that counsel should be held to the rate
determined to be reasonable ($200 per hour) in McCollum v. Shelter Mutual Insurance
Company, 2013 WL 1498995, a 2013 unreported case in the United States District Court
for the Western District of Arkansas.
14 Because Shelter has not shown that the circuit court abused its discretion when it
awarded the amount of fees that it did, the attorney’s fee award of $13,830 is affirmed.
III.
The circuit court properly admitted the intoxication evidence, and Shelter invited
the jury-instruction error about which it now complains. To hold otherwise means that
AMI Civ. 606 and 607 must be given when intoxication evidence is admitted during a trial.
But no case in Arkansas so holds. Moreover, as a practical matter, Shelter maintained
throughout the trial that Ashby did not act negligently, for any reason and in any way. The
jury simply found that Ashby operated his car in a negligent manner and that his negligence
proximately caused the Ragons’ damages. Given the general verdict and the instructions
that were given, we cannot know which act or omission the jury based its decision on.
The record amply supports the jury’s verdict and the attorney’s-fee award. The
circuit court’s judgment on the jury verdict and the related fee award are therefore affirmed.
Affirmed.
GRUBER, C.J., and ABRAMSON, VIRDEN, KLAPPENBACH, and SWITZER, JJ., agree.
GLADWIN, VAUGHT, and BROWN, JJ., dissent.
LARRY D. VAUGHT, Judge, dissenting. I respectfully dissent from my colleagues
and would reverse the circuit court’s denial of Shelter’s motion for a mistrial or new trial
because it was reversible error for the court to admit extremely prejudicial evidence and
then allow the case to go to the jury without any legal guidance for how it should evaluate
that evidence.
15 In City of Little Rock v. Cameron, 320 Ark. 444, 897 S.W.2d 562 (1995), the Arkansas
Supreme Court held that “the mere fact that Cameron had been drinking alcoholic
beverages is not sufficient evidence of negligence, standing alone,” and it noted that
although there was evidence that Cameron had been drinking, there was “no evidence that
Cameron was intoxicated or otherwise impaired at the time of the accident or that his liquor
consumption” contributed to the wreck. In Wade v. Grace, 321 Ark. 482, 902 S.W.2d 785
(1995), the Arkansas Supreme Court affirmed the circuit court’s decision to exclude
evidence of alcohol consumption—including the presence of beer cans in the water around
the scene of a boating accident, testimony that the driver of the boat had consumed one
beer, and an officer’s testimony that he smelled alcohol on the driver—on the basis of Rule
403 of the Arkansas Rules of Evidence. The court reasoned that the officer who would have
testified to this evidence could not say that the driver had been under the influence of
alcohol at the time of the accident. The supreme court affirmed the exclusion of the
evidence as unduly prejudicial, quoting the circuit court to explain that “we have jurors that
when they hear the word beer cans, it’s all over for either side.” Wade, 321 Ark. at 488, 902
S.W.2d at 789.
Here, rather than ruling on the admissibility of the plaintiffs’ evidence, the circuit
court acknowledged that such evidence might not be admissible under Rule 403 unless it
rises to the level of intoxication but then asked the plaintiffs if they wanted to “take the
risk” of introducing it anyway. They did, and the jury was allowed to hear highly prejudicial
evidence of intoxication very much akin to the beer cans in Wade. I agree with the majority’s
conclusion that the mere introduction of this evidence was not reversible error pursuant to
16 Balentine v. Sparkman, 327 Ark. 180, 937 S.W.2d 647 (1997). The problem here is that the
jury in this case was not instructed on the legal standards governing how it should evaluate
evidence of intoxication. I would reverse the court’s denial of Shelter’s motion for a mistrial
or new trial because even if the evidence was admissible, it should not have been used to
confuse and manipulate the jury.
The Ragons take the position that Shelter is barred from prevailing on the denial of
its motion for a mistrial or new trial because it originally objected to the jury instructions
on intoxication. The majority agrees and has affirmed on a theory of “invited error,”
concluding that Shelter got what it wanted when the Ragons withdrew their intoxication
instruction and that it cannot subsequently use the withdrawal of that instruction as the basis
for seeking a mistrial.
I disagree. Such an outcome is clearly unjust. Shelter’s objections to the intoxication
instructions were a continuation of its ongoing and consistent position throughout this case
that there was insufficient evidence to establish intoxication. It is common practice for a
party to object to a jury instruction for which it claims there is insufficient evidentiary
support. See, e.g., Neal v. J.B. Hunt Transp., Inc., 305 Ark. 97, 805 S.W.2d 643 (1991); Tran
v. Vo, 2017 Ark. App. 618, 535 S.W.3d 295. Objecting to the instructions was not error;
Shelter was positioning itself for a mistrial because the Ragons had chosen to “take the risk”
of introducing the highly prejudicial evidence and had then failed to prove intoxication, as
evidenced by their quick agreement to withdraw the intoxication instructions upon Shelter’s
objection. A mistrial was Shelter’s only remaining remedy. Had it not objected to the
instructions it would have acquiesced to the Ragons’ contention that alcohol consumption
17 was a relevant issue in the case. Shelter was legally entitled to challenge the evidentiary basis
for any of the Ragons’ proposed jury instructions, and when it was successful in doing so,
it was then entitled to move for a mistrial.
In my opinion, the circuit court set this case on a path toward either mistrial or
appellate reversal when it essentially allowed the Ragons to gamble on the admissibility of
Rule 403 evidence by offering them the option to “take the risk” of presenting prejudicial
material to the jury. The court then failed to follow through on its analysis under Rule 403
when Shelter played its final hand by moving for a mistrial. And today, it looks like the
Ragons hit the jackpot with the majority’s decision to affirm. They were able to introduce
inflammatory evidence without having to first prove its admissibility under Rule 403, send
the case to the jury without the burden of any relevant instructions as to that evidence, and
then prevail on appeal on the basis of an invited-error theory that penalizes Shelter for
making routine, valid, and timely objections throughout the case. I would reverse.
GLADWIN and BROWN, JJ., join.
Matthew, Sanders & Sayes, by: Mel Sayes, for separate appellant Shelter Mutual
Insurance Company.
Brad Hendricks Law Firm, by: Christopher R. Heil; and Brian G. Brooks, Attorney at Law,
PLLC, by: Brian G. Brooks, for appellee.