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ROBERT J. GLADWIN, Judge Appellant Herschel Brigance appeals from his conviction and sentence by a Faulkner County jury on a charge of residential burglary, for which he received an enhanced sentence of thirty years in the Arkansas Department of Correction (ADC) with no opportunity of parole. He argues that (1) the identification by the victim was so tainted that it should have been excluded by the circuit court; (2) the conviction is not supported by the evidence; (3) evidence undercutting the victim's identification of appellant was incorrectly excluded; (4) evidence of prior guilty pleas was incorrectly allowed under Rule 404(b) (2017) of the Arkansas Rules of Evidence ; and (5) the enhancement of appellant's sentence was an ex post facto violation. We find merit in appellant's argument that the circuit court committed reversible error by incorrectly excluding evidence that undercut the victim's identification of appellant; therefore, we reverse and remand. I. Facts and Procedural History This appeal arises from an event that occurred on March 26, 2016. Laura Montano, an off-duty Little Rock police officer, took an over-the-counter sleeping aid about 8:00 p.m. and went to sleep in her Conway home. She was awakened at approximately 11:30 p.m. to the sound of someone knocking at her door. Montano initially ignored the knocking, but when she heard her front door being kicked in, she grabbed her gun from beside her bed and went to confront the intruder. Montano went from her bedroom into the hallway, where she turned on a light and saw a black man in black clothing walking toward her television. The intruder's response to seeing Montano was to exclaim, "Oh, sh* *!" Montano fired her weapon at the intruder, and he ran from the house. Montano called 9-1-1 and described the intruder as a black man wearing black clothing. Officer Charles Waits was one of the officers who responded to the scene, and he first noticed damage to the front door. He saw four bullet holes, three in the front door and one in the wall, along with a shoe print on the door that later was found to be from a popular "Crocs" brand shoe. Officer Waits called Detective Bob Cole for assistance in processing the crime scene. Detective Cole arrived and noticed that Montano's deadbolt had a visibly damaged entry hole and looked as if one of the bullets had gone through the deadbolt. After appellant had become a suspect, Detective Cole obtained an order to take a DNA swab from appellant to send to the Arkansas State Crime Lab (ASCL) to compare with crime-scene evidence. While processing the scene, officers found four spent shell casings on the floor. Five unfired rounds were in Montano's gun's magazine, which holds nine rounds. Montano initially told investigating officers that she fired four rounds, although at trial she testified that she did not really know how many rounds she had fired. Montano explained that her usual habit was to load the gun with ten rounds-one in the chamber and nine in the magazine. Montano was questioned at the scene by Conway police about the description of the intruder, and she provided the same response that she gave to the 9-1-1 dispatcher. But she did tell Detective Cole before she went to the police station that she would be able to pick out the suspect. When Montano was questioned later at the Conway Police Department in the presence of her lawyer and union representative about the description of the intruder, she again provided the same answer. When asked, she did not recall any other specifics other than her recollection that the jacket worn by the intruder was hooded. Officer Cevron Hackett and Officer Lois Spencer were both at the crime scene looking for suspects and were sent to the Conway Regional Medical Center (CRMC) to assist a victim of a shooting that occurred that same night. At the hospital, Officers Hackett and Spencer discovered that appellant was the shooting victim. Detective Cole said that there were no other gunshot wounds reported to the Conway Police Department that weekend. Dr. Michael Fahr, an emergency-room physician at CRMC, testified that around 3:00 a.m. on March 27, 2016, he treated appellant for a superficial gunshot wound to his left shoulder. Appellant had a bullet lodged in his left shoulder, but the evidence did not confirm that the bullet came from Montano's gun. Officer Hackett, while in appellant's hospital room, saw appellant's clothing and noticed that his shirt did not have a bullet hole. Officer Hackett also saw some "Crocs" brand shoes in the bag containing appellant's clothes. Appellant was arrested and charged with residential burglary for breaking into Montano's home. The arrest was the subject of media coverage, and appellant's photograph, in prison attire, was broadcast on television and printed in newspapers. It is undisputed that Montano saw these reports that included appellant's photograph. In June 2016, the Faulkner County Prosecutor's Office contacted Montano to ask if she could identify the person who broke into her home, and she said that she could. On July 9, 2016, Montano met with Detective Cole and one other detective to take part in a double-blind photo lineup of possible suspects. Montano was shown six photographs, and she identified appellant in picture number four with 100 percent certainty that he was the intruder who had been in her living room March 26, 2016. She also personally identified appellant as the intruder at trial. Billy Bryant, a former reserve sheriff's deputy, was dumpster diving on September 27, 2016, in the Fox Run Apartment complex in Conway and found a black jacket that he thought might be worth keeping. When he examined the jacket, Bryant noticed a bullet hole and some discoloration that he thought might be dried blood. Bryant called the police to report finding the jacket. Rachel Ganley, forensic serologist for the ASCL, testified that she examined the black jacket found by Bryant. Ganley tested the stains found on twelve cuttings of areas of the jacket, and seven areas tested positive for blood. Ganley submitted these areas to the DNA division of the ASCL. Mary Simonson, forensic DNA examiner for the ASCL, testified that she examined DNA from the blood cuttings taken from the jacket and compared the DNA profile to the DNA swab previously taken from appellant. Simonson said the DNA profile obtained from the jacket cuttings matched appellant's DNA profile with all scientific certainty, or a 100 percent match to appellant. On December 13, 2016, appellant filed a motion to quash the photo-lineup identification of himself. At trial, appellant challenged both the photo-lineup and the in-court identifications and asked to have them excluded, but the circuit court denied the motion. The State sought to prove appellant's intent to commit a felony after entering Montano's home by introducing his prior guilty pleas pursuant to Arkansas Rule of Evidence 404(b), which appellant also challenged. At the jury trial held on December 20, 2016, immediately before jury selection, the circuit court held a hearing on these issues and allowed the admission of the evidence. Appellant moved for directed verdict both at the close of the State's case and at the close of the evidence, arguing that the State failed to present sufficient evidence to sustain a jury verdict. The circuit court denied the motions, and the jury returned a guilty verdict. The State sought to enhance appellant's penalty as a habitual criminal who had previously pleaded guilty to three other residential burglaries. Residential burglary had been reclassified as a violent felony before this incident occurred but after appellant's three prior guilty pleas. Appellant argued that the enhancement violated the ex post facto clauses of the Arkansas and United States Constitutions. The circuit court rejected appellant's argument and allowed the enhancement. The jury returned a sentence recommendation of thirty years in the ADC with no opportunity of parole, which the circuit court accepted. Appellant moved for judgment notwithstanding the verdict following the sentencing phase but before the sentence was imposed. The circuit court denied the motion. Appellant was sentenced pursuant to a sentencing order entered on December 27, 2016, and he filed a timely notice of appeal on December 29, 2016. II. Discussion A. Sufficiency of the Evidence Although appellant challenges the sufficiency of the evidence in his second point on appeal, preservation of an appellant's right to be free from double jeopardy requires a review of the sufficiency of the evidence before a review of trial errors. Sampson v. State , 2018 Ark. App. 160, 544 S.W.3d 580. Our test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id. On appeal, the evidence is viewed in the light most favorable to the State; only evidence supporting the verdict is considered. Id. Weighing the evidence, reconciling conflicts in testimony, and assessing credibility are all matters exclusively for the trier of fact. Id. A person commits residential burglary if he or she enters or remains unlawfully in a residential occupiable structure of another person with the purpose of committing in the residential occupiable structure any offense punishable by imprisonment. Ark. Code Ann. § 5-39-201(a)(1) (Repl. 2013). The offense of residential burglary requires proof of two elements: (1) that the person entered or remained unlawfully in a residential occupiable structure of another person and (2) that he or she did so with the purpose of committing an offense punishable by imprisonment. Wilson v. State , 2016 Ark. App. 218, 489 S.W.3d 716. Appellant argues that if Montano's identification had not been allowed, a verdict in his favor would have been directed. But appellant argues that even if the identification was properly allowed, his motions for directed verdict and judgment notwithstanding the verdict should have been granted. Appellant maintains that much of the evidence exonerates him. He notes that only four shots from Montano's weapon can be substantiated-four shell casings were found on the floor; four bullet holes were found in her door and wall; five rounds were in Montano's nine-round magazine; Montano initially reported firing four rounds. Appellant submits that none of those four rounds can remain in his shoulder because they hit either the wall or the door. He claims that the fact that a bullet remains in his shoulder supports his conclusion that all the bullets Montano fired at the intruder are accounted for by the holes they left in Montano's wall and door. Appellant submits that other physical evidence also fails to support him being the intruder. His jacket was found in a dumpster near Fox Run Apartments in South Conway miles from Montano's home in far West Conway. It had his blood on it and a bullet hole in it, but the evidence does not support that the wound was caused by Montano's gun. The two items of evidence on which the State's substantive case rests are a shoe print found on Montano's door and Montano's identification of appellant. The shoe print found on Montano's door was similar to the tread on the shoes appellant was wearing when he was treated at the hospital on the night of the intrusion. But those shoes are the popular "Crocs" brand, so appellant claims little weight can be afforded to the similarity. Regarding Montano's identification, appellant argues that the identification is wholly unreliable. Montano awoke from an induced sleep, admittedly groggy, to find an intruder in her home whom she saw for only seconds. She identified him only as a black man wearing black clothing. She did not provide information as to whether he was short or tall; thin or heavy; dark or fair; young or old. Appellant submits that it was only when media outlets posted appellant's picture as a suspect in the intrusion was she able to identify him. We disagree and hold that the State presented sufficient evidence as to both elements. See Wilson, supra. As to the first element, Montano testified about the unlawful entry, stating that she did not give appellant permission to enter the home. Montano was awakened around 11:30 p.m. because appellant was knocking on her door, and when she did not answer, appellant kicked her door in to gain entry. Evidence was presented to the circuit court that her front door was damaged from being kicked in, and the deadbolt lock appeared to have been shot. Evidence supports that not only did appellant enter the residence without permission, he remained there, specifically in the living room, without permission until Montano saw him and fired her gun. Moreover, mere hours after the intrusion, appellant was treated at CRMC for a gunshot wound to his left shoulder, and a few months later his black jacket was found in a dumpster with a bullet hole and blood stains that matched his DNA. Evidence was also presented that the shirt appellant wore to the hospital did not have a hole in it. Regarding the second element of residential burglary, the State established that appellant went into the residence with the purpose of committing an offense punishable by imprisonment as required by Arkansas Code Annotated section 5-39-201(a)(1). "A person acts purposely with respect to his or her conduct or a result of his or her conduct when it is the person's conscious object to engage in conduct of that nature or to cause the result." Ark. Code Ann. § 5-2-202(1) (Repl. 2013). Because a criminal defendant's intent can seldom be proved by direct evidence, it must usually be inferred from the circumstances surrounding the crime. Rockins v. State , 2018 Ark. App. 19, 541 S.W.3d 457. Jurors are allowed to draw upon their common knowledge and experience to infer intent from the circumstances, and it is presumed that a person intends the natural and probable consequences of his or her acts. Id. And, the jury may consider any other pertinent fact in determining whether a defendant held the specific intent required to commit the crime. See Johnson v. State , 2011 Ark. App. 718, 2011 WL 5974286. An eyewitness's testimony is sufficient to sustain a conviction, and this court does not weigh the credibility of witnesses on appeal. See Shelton v. State , 2017 Ark. App. 195, 517 S.W.3d 461. Here, Montano testified that appellant entered her home without permission and was in her living room in front of her television when she saw him and began to fire her gun. Appellant's response to seeing Montano was to exclaim, "Oh, sh* *!" and running from the residence. Although appellant argues that much of the evidence exonerates him, Montano testified that she did not know how many times she fired her gun at appellant, stating that because of her adrenaline she did not even hear her gun when she fired it. But she further testified that her usual habit was to load the gun with ten rounds-one in the chamber and nine in the magazine, and the undisputed evidence presented to the circuit court was that five rounds remained in the magazine after shots were fired at the intruder. Viewing the evidence in the light most favorable to the State, as we are required to do, we hold that the jurors, as the finders of fact and the assessors of witness credibility, could, on the evidence presented, determine that appellant committed the act of residential burglary by entering or remaining unlawfully in Montano's residence with the purpose of committing an offense punishable by imprisonment. B. Refusal to Quash Montano's Identification of Appellant A circuit court's ruling on the admissibility of an identification will not be reversed unless the ruling was clearly erroneous. Boyd v. State , 2016 Ark. App. 407, 500 S.W.3d 772. In determining the admissibility of a pretrial identification, the circuit court first looks at whether the identification procedure was unnecessarily suggestive. Id. An identification procedure violates due process when suggestive elements make it all but inevitable that one person will be identified as the criminal. Id. Even when the process is suggestive, the circuit court may conclude that, under the totality of the circumstances, the identification was sufficiently reliable for the matter to be decided by the jury. Smith v. State , 2015 Ark. App. 418, 467 S.W.3d 750. In determining the reliability of a pretrial identification, the following factors are considered: (1) the prior opportunity of the witness to observe the alleged act; (2) the accuracy of the prior description of the accused; (3) any identification of another person prior to the pretrial identification procedure; (4) the level of certainty demonstrated at the confrontation; (5) the failure of the witness to identify the defendant on a prior occasion; and (6) the lapse of time between the alleged act and the pre-trial identification procedure. Williams v. State , 2017 Ark. App. 198, 517 S.W.3d 446. As previously discussed, the primary evidence the State presented against appellant was Montano's identification of him. Appellant claims that much of the other evidence pointed toward someone else being the intruder. This court has held that a pretrial identification violates the Due Process Clause when there are suggestive elements in the identification procedure that make it all but inevitable that the victim will identify one person as the culprit. Smith , 2015 Ark. App. 418, at 7, 467 S.W.3d at 753-54. Appellant asserts that the "taint" is the media coverage revealing him as a suspect and broadcasting his picture in prison attire. Appellant maintains that the media coverage corrupted Montano's identification to such an extent that it created a substantial possibility of irreparable misidentification. Analyzing the facts in the context of the above-described factors balanced against the corrupting effect of the broadcast of his picture, appellant contends that the identification of appellant should not have been admitted. What Montano was shown was a picture of a black man in prison clothing who was arrested with a bullet in his shoulder hours after the intrusion into her home. Although previously she had only been able to describe the intruder as a black man wearing black clothing, she now was presented with a face, a criminal history, and even a name to fill in the blanks. Appellant maintains that these facts are suggestive and corrupting and that the identification should not have been admitted. The State argued, and the circuit court held, that the balance between the media coverage and the other factors went to the weight to be given to the identification rather than to its admission. We agree. Immediately prior to jury selection, the circuit court held a hearing on appellant's December 13, 2016 motion to quash the photo-lineup identification of appellant and his request that Montano be precluded from identifying appellant in court. Montano testified regarding the break-in, including that she had a brief glance at appellant when he was in her living room. She described appellant as a black male with a black hoodie/jacket. She told Detective Cole before she went to the police station that she would be able to pick out the suspect. Montano explained that she saw appellant's picture on television after the break-in a few times before she went in to identify him but that her ability to identify him was based on seeing him in her home in March. After the testimony, the circuit court denied appellant's motion to quash and stated, [T]here's nothing in the record now to indicate that the lineup was constitutionally infirm. What I've heard so far is the-goes to the reliability of her identification and-which you may certainly, I think, bring up during the course of trial if you have any issues regarding the reliability of that identification ... There's nothing to indicate that there's any manipulation in this. Admittedly she did see photographs of the person who had been taken into custody. But she'd already testified that she told the officers she could identify him if she saw him. So[,] with that, Mr. Plemmons, I'm going to-my ruling is going to be that your motion will be denied. During trial, Montano testified that on July 9, 2016, she met with Detective Cole and another detective to look at a photo lineup of possible suspects. Montano was shown six photographs, and she identified appellant in picture number four with 100 percent certainty that he was the man she saw in her living room on March 26, 2016. We hold that the pretrial identification procedure was not unnecessarily suggestive. See Boyd , 2016 Ark. App. 407, at 13, 500 S.W.3d at 780. While Montano admitted seeing appellant on the news after his arrest but before she identified him, she testified that her identification of him was based on having seen him standing in her living room that night in March. It cannot be said that a victim seeing her intruder featured on the local television news or in the newspaper "a few times" is unnecessarily suggestive. Identification is normally a matter to be decided by the trier of facts, and the circuit court is granted wide latitude. See McGee v. State , 280 Ark. 347, 658 S.W.2d 376 (1983)(holding that the circuit court did not abuse its discretion in declining to suppress an identification when the victim's testimony may have been confusing or contradictory). The law does not require a witness's identification to be totally accurate; rather, the accuracy of the identification and alleged weakness of the identification are matters of credibility for the fact-finder. See Mays v. State , 57 Ark. App. 282, 944 S.W.2d 562 (1997). Moreover, we hold that the circuit court did not err in allowing Montano's in-court identification of appellant. Appellant calls into question the credibility of Montano's identification of him because she was groggy after just having awakened when she saw him, which we reiterate goes to the weight rather than the admissibility of her testimony. Also, despite appellant's contentions that Montano was not able to identify him until his picture was "published broadly" in the media and that she was unable to recall any identifying feature, Montano testified that she told Detective Cole when he responded to the 9-1-1 call that she would be able to identify the intruder. Based on the totality of the circumstances, Montano's identification was sufficiently reliable. As such, the circuit court did not err by denying appellant's motion to quash. C. Exclusion of Evidence Undercutting Montano's Identification of Appellant Circuit courts have broad discretion in deciding evidentiary issues, and their rulings on the admissibility of evidence are not reversed on appeal absent an abuse of discretion. Conte v. State , 2015 Ark. 220, 463 S.W.3d 686 ; McClendon v. State , 2012 Ark. App. 479, 2012 WL 4009634. Montano awoke from an induced sleep to find an intruder in her home. She saw him only for a few seconds before he fled as she fired her gun at him. She identified him as a black man wearing black clothing and provided no information as to approximate height, weight, age, etc. Although she told Detective Cole on the night of the incident that she could identify the intruder, it was not until months later, after media outlets had posted appellant's picture, that Montano was brought in to participate in a photo lineup. She did, however, identify appellant as the intruder as part of that photo lineup and again in person during the jury trial. The State's case was based primarily on the credibility of Montano's identification of appellant. Appellant argues that the evidence in question could have undermined that identification, was critical to his defense, and the exclusion of it was highly prejudicial, incorrectly excluded, and constituted reversible error. Specifically, appellant submits that the circuit court incorrectly excluded two lines of questioning directed at undercutting Montano's identification of him during the cross-examination of Detective Cole, who headed the investigation. We agree. In the first excluded line of questioning, appellant's counsel sought to question Detective Cole regarding the suspicion he had on the evening of the intrusion that a ring of teenage burglars was involved in the incident. When the State objected, appellant's counsel explained what he wished to accomplish with the questioning: MR. PLEMMONS : The officer explained to Ms. Montano that he was aware that there was a ring of burglars operating in the area and then went on to tell her that some of the people from this crew or this gang as he referred to it were juveniles and he specifically mentioned a 16-year old they suspected and when he said that to her she made no response as far as contradicting or confirming that this was a juvenile versus an adult. It goes to the fact that she was not able to give any description of the person that she saw in her house when this officer told her that there might be a juvenile involved. She didn't respond to that. Counsel wanted to explain to the jury that when Montano was told that a sixteen-year old was suspected, she made no effort to tell Detective Cole that the intruder she saw in her home was not a teenager. Appellant claims that because he is much older than sixteen, this information would have undermined Montano's identification. The circuit court refused to allow the questioning: THE COURT : Mr. Plemmons, I'm going to have to cut you off on this one. I agree with the State on that. There are provisions where other suspects may be possible, but you can't just approach it in this fashion. You've got to have some kind of proof of that. So[,] I'm going to sustain the objection. Appellant argues, and we agree, that the State, and then the circuit court, either misunderstood the point of the line of questioning or misapplied Arkansas Rule of Evidence 613. The examination was not for the purpose of identifying another suspect; rather, it was to demonstrate to the jury that on the night of the intrusion and before the subsequent news coverage portraying appellant as a suspect, Montano knew so little about the intruder's identity that she did not inform Detective Cole that he was an adult and not a teenager. The State incorrectly argued the applicability of Rule 613 as follows: MR. FINKELSTEIN : First off 613 is very explicit. Now he's trying to impeach a witness without giving the witness a chance to explain or deny. Can't do that. He's also trying to violate by saying there's other suspects which you can't do. Rule 613 does not globally forbid the impeachment of a witness without first giving the witness an opportunity to explain or deny the evidence; rather, it specifically forbids impeaching a witness with a prior inconsistent statement without first affording that opportunity. See Ark. R. Evid. 613(b). Appellant's counsel was not attempting to impeach with a prior inconsistent statement. He was attempting to present evidence showing that Montano got so poor a look at the intruder in her home that she could not identify him as older than sixteen years of age. We agree that this evidence was relevant and should have been admitted to support appellant's argument that Montano's identification of him was incorrect. The second limitation on the cross-examination of Detective Cole occurred when appellant's counsel sought to inform the jury that Montano called appellant by name when she was contacted by the police to take part in the double-blind photo lineup: MR. PLEMMONS : In Officer Cole's supplemental statement he states that after being contacted by the prosecutor's office and requested to do a lineup, he contacted Ms. Montano and she told him she could identify Brigance. She called him by name. I want to ask this officer that question. Appellant explained that the purpose of this line of questioning was to indicate to the jury that Montano already had in mind who she would identify in the photo lineup and to suggest that it was based on the media coverage. The State made the same Rule 613 objection that it made above, which appellant argues is incorrect for the same reason. Counsel was not attempting to impeach Montano with a prior inconsistent statement, but rather was trying to establish that Montano's state of mind was prejudicially influenced by the media coverage of appellant's arrest. The circuit court again disallowed the questioning: THE COURT : Here's the situation we find ourselves in. At the time Mr. Brigance was already in custody. He'd been arrested. This was filed in May so there's no secret that Mr. Brigance was a suspect at that point. In fact[,] he was the one who had been charged at that point. It would be no secret by that time, the officer would have known that he had been arrested through her contact with the prosecutor's office. I don't think it's a mystery at this point, Mr. Plemmons, that he would be in the lineup and that she would know his identity. I think I'm going to go with the prosecutor on this one. The circuit court's explanation basically reiterated counsel's argument that by the time the photo lineup occurred, Montano had been so exposed to media coverage of appellant as a suspect and the surrounding investigation that she knew who she was "supposed" to identify. We hold that the circuit court's incorrect application of Rule 613 constitutes an abuse of discretion. See McClendon , 2012 Ark. App. 479, at 6. All relevant evidence is admissible unless excluded by some other rule pursuant to Arkansas Rule of Evidence 402, and no other rule worked to exclude this evidence. The evidence was essential to appellant's defense in this case because it directly contradicted the State's primary evidence against him-Montano's identification of appellant. We hold that its exclusion requires reversal. The State's attempted reliance on Zinger v. State , 313 Ark. 70, 852 S.W.2d 320 (1993), in which the Arkansas Supreme Court discussed the standard for admissibility of evidence incriminating third persons, and Conte , supra , requiring direct or circumstantial evidence linking the third person to the actual perpetration of the crime, is further indication that the State and the circuit court misapplied Rule 613 with respect to appellant's counsel's line of questioning. The evidence was not offered to prove that a sixteen-year old was a suspected perpetrator; rather, it was offered to show that Montano knew so little about the intruder that she did not inform Detective Cole that he was not a teenager. The State's argument that by the time of the photo lineup the fact that appellant's name was well associated with this incident and was not a "mystery" also misses the mark. The reason for the requested line of questioning was to show the jury that by the time of the photo lineup, Montano had been so exposed to the media coverage and investigation of appellant that she knew who she was supposed to identify. The circuit court rejected appellant's motion to exclude Montano's identifications, specifically reasoning that the facts related to those identifications were relevant to the "reliability of her identification, which you may certainly bring up during the course of trial if you have any issues regarding reliability of the identification." Yet the circuit court subsequently precluded appellant from presenting evidence to the jury of two specific, highly relevant items of evidence that undermined the reliability of the identifications. The jury should have heard this evidence as part of its analysis of the evidence related to Montano's identification. Because the circuit court's abuse of discretion in not allowing the evidence in question was highly prejudicial to appellant with respect to the credibility of Montano's identification of him, we reverse and remand. D. Admission of the State's 404(b) Evidence A circuit court has wide discretion in making evidentiary rulings and will not be reversed absent an abuse of discretion. Conte , supra. Evidence of other crimes, wrongs, or acts is admissible as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Ark. R. Evid. 404(b). Under Rule 404(b), evidence of other crimes will be admitted if it has independent relevance, and that relevance is not substantially outweighed by the danger of unfair prejudice. Jones v. State , 349 Ark. 331, 78 S.W.3d 104 (2002). Evidence is independently relevant if it tends to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. McCullough v. State , 2009 Ark. 134, 298 S.W.3d 452. "Any circumstance that ties a defendant to the crime or raises a possible motive for the crime is independently relevant and admissible as evidence." Id. at 2, 298 S.W.3d at 455. A circuit court has considerable leeway in determining whether the circumstances of prior crimes and those charged are sufficiently similar to warrant admission under the Rule. See Rounsaville v. State , 2009 Ark. 479, 346 S.W.3d 289. The State moved before trial to allow admission into evidence appellant's prior guilty pleas for residential burglary under Rule 404(b) on the basis that the guilty pleas could be admitted to prove that the intruder intended to commit theft once he entered Montano's residence. Appellant challenged the admission of the evidence, but the circuit court allowed the admission of the prior guilty pleas and instructed the jury as to their limited use. Analyzing 404(b) evidence combines the relevance factor and a Rule 403-type prejudice factor. The evidence will be admitted only "if it has independent relevance and its relevance is not substantially outweighed by the danger of unfair prejudice." Rudd v. State , 308 Ark. 401, 825 S.W.2d 565 (1992). Appellant maintains that the "unfair prejudice" is the tendency of a jury to convict a defendant of the charged crime because he previously committed the same type of crime. Appellant attempts to distinguish Rudd , which allowed evidence of prior burglary convictions to establish the element of intent to commit a crime when entering a residence unlawfully. There, the defendant did not dispute that he was in the home, merely whether he was there unlawfully. The admission of the prior convictions to support why he was there was not overly prejudicial because his intent for being in the residence was a critical issue and had high independent relevance. But here, appellant's defense was that he was not in Montano's home at all-that someone else broke in that night. Because the only supporting evidence that he was there was Montano's questionable identification of him, appellant claims that the danger of unfair prejudice was high because the jury was likely to use the prior convictions as the decisive factor in the case, reasoning that because appellant had committed residential burglary before, he must have done so this time. We hold that the circuit court did not abuse its discretion by admitting the Rule 404(b) evidence; alternatively, any error was harmless. Before trial, the State filed a notice of intent to use Rule 404(b) evidence, informing the circuit court that it intended to introduce evidence of appellant's prior residential-burglary convictions. During the December 9, 2016 pretrial motions hearing, appellant objected to the admission, arguing that there was no identification by Montano and that the intent issue was secondary. The circuit court stated that it would admit the Rule 404(b) evidence with a limiting instruction. Immediately prior to resting its case, the State moved to introduce appellant's prior residential-burglary convictions. Appellant again objected, stating, "[T]he danger of unfair prejudice exceeds any sort of benefit the State might derive from it." Before introducing the prior residential-burglary convictions, the circuit court cautioned the jury that the evidence of the other crimes was not to be considered to establish particular traits of character that appellant may have, nor was it to be considered to show that he acted similarly on the day of the intrusion. Furthermore, the circuit court instructed the jury that the evidence was merely offered to show evidence of motive, opportunity, intent, identity, and absence of mistake. After the instructions were given, appellant renewed his objection to the admission of the evidence, and the State introduced appellant's three prior convictions for residential burglary. Montano's identification of appellant, while not overly descriptive, was clear and unequivocal. Montano told Detective Cole at the scene of the crime that she would be able to pick out the person who kicked in her door out of a lineup. The prior convictions were properly allowed to show that appellant's intent was to break into Montano's residence. Moreover, we disagree with appellant's contention that even if the evidence at issue is independently relevant to the charged offense, it should have been excluded because its prejudicial effect outweighs any probative value. Rule 403 states that relevant evidence may be excluded if its probative value is "substantially outweighed" by the danger of unfair prejudice. The mere fact that evidence is prejudicial to a party does not make it inadmissible; it is excludable only if the danger of unfair prejudice substantially outweighs its probative value. McDaniel v. State , 2018 Ark. App. 151, 544 S.W.3d 115. The circuit court has wide discretion in balancing the conflicting interests, and its judgment will be upheld absent a manifest abuse of discretion. Id. The circuit court properly found that appellant's prior convictions were independently relevant to the issue of whether the defendant intended to break into Montano's residence. The evidence gleaned from appellant's prior convictions was that he intended to break into Montano's residence with the purpose of committing an offense punishable by imprisonment. Any prejudicial effect of the evidence was minimized by the limiting instruction read by the circuit court. It is appellant's burden to demonstrate undue prejudice, and merely stating that the prejudicial effect of the evidence far outweighs any probative value does not meet that burden. Particularly in light of the circuit court's cautionary instructions to the jury, it cannot be said that the potential for prejudice substantially outweighed the probative value of the evidence at issue, and this court rejects appellant's argument to the contrary. E. Ex Post Facto Violation Issue with Sentence Enhancement A law is prohibited as ex post facto when it authorizes punishment for a crime because of an act previously committed, makes more burdensome the punishment for a crime after its commission, or deprives one charged with a crime of any defense that was available according to law when the act was committed. Laymon v. State , 2015 Ark. 485, 478 S.W.3d 203. For ex post facto to apply, there must be a change in the law that either criminalizes a previously innocent act or that increases the punishment received for an already criminalized act. Lard v. State , 2014 Ark. 1, 431 S.W.3d 249. Residential burglary was recharacterized as a "felony involving violence" in 2015, after appellant's prior guilty pleas but before the commission of this offense. Act of Apr. 1, 2015, No. 895, § 3, 2015 Ark. Acts 3551, 3552 (amending Ark. Code Ann. § 5-4-501(d)(2)(A)(xi) ). Appellant objected to the enhancement as an ex post facto violation. The circuit court allowed the State to enhance appellant's penalty on the basis that he was convicted of a crime of violence, residential burglary, and had three previous times pleaded guilty to residential burglary. The enhanced range for residential burglary, as a Class B felony, is thirty to sixty years' imprisonment with no chance of parole. Ark. Code Ann. § 5-4-501(d)(1)(C) (Supp. 2017). In 2015, before residential burglary was added to the list of felonies involving violence, the sentencing range for a habitual offender convicted of residential burglary who had four or more prior felony convictions was five to forty years. Ark. Code Ann. § 5-4-501(b)(2)(C) (Repl. 2013). It is undisputed that when appellant pleaded guilty to the three prior offenses, residential burglary was not characterized as a crime of violence; accordingly, his sentence would have been less if the enhancement did not apply. Appellant argues that the retroactive enhancement of a penalty is just as onerous as the retroactive creation of a penalty. Eichelberger v. State , 323 Ark. 551, 916 S.W.2d 109 (1996). Appellant acknowledges Parker v. State , 355 Ark. 639, 144 S.W.3d 270 (2004), and Beavers v. State , 345 Ark. 291, 46 S.W.3d 532 (2001), which allow retroactive application of enhancement statutes. He attempts to distinguish his case because Act 895 recharacterized the crime of residential burglary and made it something it was not when appellant previously pleaded guilty to it. It made it a felony involving violence irrespective of whether any violence occurred during its commission. Appellant claims that removes this case from the reasoning of Parker and Beavers because he simply did not plead guilty to a "felony involving violence" at any point in time. He pleaded guilty to a nonviolent felony then known as residential burglary. We disagree and hold that there was no ex post facto violation by allowing the sentencing enhancement. The 2015 amendment to Ark. Code Ann. § 5-4-501(d) had no effect on the sentences appellant received for his prior convictions. His argument that his prior nonviolent residential-burglary convictions were outside the reach of Act 895 is misplaced. By March 26, 2016-the night of the intrusion into Montano's residence-residential burglary was, by then, listed as a felony involving violence that would subject appellant to an enhanced sentencing range as a habitual offender. It is well settled that ignorance of the law or lack of knowledge of a legal requirement is never an excuse to a criminal charge. See Handy v. State , 2017 Ark. App. 74, at 9, 510 S.W.3d 292, 298 (citing Williams v. State , 346 Ark. 304, 309, 57 S.W.3d 706, 710 (2001) ). In Sims v. State , 262 Ark. 288, 556 S.W.2d 141 (1977), our supreme court rejected Sims's claim of an ex post facto violation and held that "habitual criminal and habitual traffic offenders acts are not ex post facto laws, in circumstances such as those here presented, since they give notice that if persons persist in certain behavior they will be punished more severely than previously." Id. at 290, 556 S.W.2d at 142. The Sims court cited Oliver v. United States , 290 F.2d 255 (8th Cir. 1961), in which the Eighth Circuit Court of Appeals held that an increased penalty is not a punishment for the previous offense, but is "a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one." Oliver , 290 F.2d at 256. In Garrett v. State , 347 Ark. 860, 69 S.W.3d 844 (2002), Garrett was convicted of DWI after having had a previous conviction for DWI. Between his earlier conviction and his latest one, the General Assembly amended the DWI statute to increase the "look-back" period for prior offenses from three years to five years. Garrett argued that his prior DWI conviction, which occurred more than three years before his latest one but within the five-year look-back period, should not be counted for purposes of enhancing his sentence on his current charge. Citing Sims, supra , our supreme court held that the five-year look-back period was not an ex post facto violation as applied to Garrett. It stated, [Garrett] had notice of the 1999 legislative amendment that any future DWI offense would subject him to an increased penalty. He repeated the DWI offense on February 26, 2000, thereby subjecting himself to an enhanced sentence under the 1999 amendment, which was in effect at the time of his second offense. Garrett , 347 Ark. at 865, 69 S.W.3d at 847. More recently, the court reached the same conclusion in Laymon , supra (statute providing that sixth DWI offense occurring within ten years of prior offense was Class B felony was not prohibited as an ex post facto violation). When appellant committed residential burglary in March 2016, he was on notice that residential burglary was then listed as a felony involving violence that would subject him to a more severe penalty than the previous residential-burglary statute. The 2015 amendment that added residential burglary to the list of felonies involving violence did not affect his sentences for his previous residential burglaries but did enhance the sentence he could receive when he was convicted of residential burglary in 2016. As in Sims , Garrett , and Laymon , we hold that there was no ex post facto violation here, and the circuit court properly denied appellant's objection. Reversed and remanded. Virden and Vaught, JJ., agree. The State initially sought a court order to remove the bullet but later withdrew the request.

BRANDON J. HARRISON, Judge Andrea Day appeals the termination of her parental rights to her three children. She argues that the circuit court erred in finding that termination was in the children's best interest because (1) the Arkansas Department of Human Services (DHS) presented insufficient evidence to support a finding of adoptability and (2) the Cherokee Nation expert witness expressed a preference that the children be placed together. We affirm. On 1 November 2016, the Washington County Circuit Court ordered an emergency seventy-two-hour hold of ten-year-old T.D., five-year-old D.D., and two-year-old A.D. after the children's school principal requested that a FINS (Family In Need of Services) case be opened. The children initially could not be located but were later found behind an EZ-Mart looking for food in a dumpster. On November 7, DHS petitioned for emergency custody of the children, and the attached affidavit noted five previous true findings against Day dating back to 2007 for inadequate supervision, newborn illegal-substance exposure, and inadequate food. The circuit court ordered the children into emergency custody and later found probable cause to continue custody with DHS. The probable-cause order also directed DHS to notify the Cherokee Nation of the proceedings, as it was believed that the children were eligible for membership in the Cherokee Nation of Oklahoma. The Cherokee Nation Indian Child Welfare program confirmed that the children qualified as "Indian children," and Nicole Allison intervened in the case on behalf of the Cherokee Nation. In December 2016, the circuit court adjudicated the children dependent-neglected due to neglect and parental unfitness. The goal of the case was reunification of the children with Day, and she was ordered to cooperate with DHS, participate in counseling, abstain from illegal drugs or alcohol, submit to random drug screens, and obtain and maintain stable housing and employment. The court also found that the Indian Child Welfare Act (ICWA) applied to the children and that there was good cause to deviate from ICWA's placement preferences "due to the children's special needs and behaviors and due to the current lack of ICWA-compliant placement options." AT that time, the court found that it was in the children's best interest to be placed separately. In April 2017, the circuit court conducted a review hearing and found that Day had not complied with most of the court orders and the case plan and that she had made minimal progress toward mitigating the causes of the children's removal. The case was reviewed again in August 2017, and the court found that Day had not complied with any of the court orders or the case plan. In October 2017, the court entered a permanency-planning order that authorized a plan for adoption with DHS filing a petition for termination of parental rights. The order noted that Day was in total noncompliance and had not contacted DHS since the last hearing. The court found that Day had not shown stability or sobriety and had not availed herself of the services provided by either DHS or the Cherokee Nation. In November 2017, DHS petitioned to terminate Day's parental rights. It alleged the statutory grounds of failure to remedy, failure to maintain meaningful contact, and aggravated circumstances. The circuit court convened a termination hearing on 1 February 2018. Day did not attend the hearing. Nicole Allison, the Cherokee Nation child-welfare specialist, testified that Day had not taken advantage of services offered to her through the Cherokee Nation, such as transportation and housing assistance, drug treatment, counseling, and health care. Allison also said that DHS had provided active efforts to Day, but those efforts had failed. Allison opined that there was evidence beyond a reasonable doubt that continued custody with Day would likely result in serious emotional or physical damage to the children. She explained that the Cherokee Nation had no objection to the fact that the children were not currently placed together but said, "The tribe would like to see the kids be placed together once they can." Sarah Franklin, a therapist for therapeutic foster care (TFC), testified that she had been seeing D.D. since the fall of 2017. She said that D.D. had been diagnosed with ADHD and disruptive behavior disorder, NOS (not otherwise specified) and that he was on medication. She characterized his progress as "back and forth" but said that he had overall made progress and had decreased tantrums. She also noted that when T.D. was placed in the same home as D.D. for a short time, D.D. showed some regression. Franklin said that she would like to see D.D. transition out of TFC and either be adopted or be placed with a relative. Whitney Muller, the DHS caseworker for all three children, testified that D.D. was currently in TFC, A.D. was in a local foster home, and T.D. was in residential treatment in Little Rock. Muller explained that A.D. was doing very well, that she was adoptable, and that her foster family was a potentially adoptive placement. Muller said D.D. had made progress in his TFC and that he was adoptable as well. As for T.D., Muller stated that he had been struggling lately and dealing with a lot of anger surrounding his mother's abandonment. She opined that "it will take the right family" but he was adoptable. Muller said that Day had not been compliant at any point in the case and that she had last visited the children in April or May 2017. Day had also recently been arrested on charges of possession of methamphetamine, possession of controlled substance, and furnishing prohibited articles. Muller agreed that Day had not demonstrated an ability to keep the children safe from harm and said that the most important thing for the children was stability and permanency. A.D.'s foster mom, identified only as Jody, testified that A.D. was placed with her in November 2016 and was doing very well. Jody said that A.D. was close with the entire family and that they were a potential adoptive home for A.D. Jody also explained that she facilitated communication between T.D. and A.D. about once a week and would like for them to spend more time together when T.D. is released from residential treatment. She also expressed interest in contact between A.D. and D.D. but said that there had been trouble scheduling visitation. Pertinent to this appeal, in its oral ruling, the circuit court found that although the placements that the three children are in are not ICWA-compliant placements, that there is good cause shown, the evidence shows today, that it's in their best interest that they remain in their particular placements[.] ... I find that it's in the best interest of these individual children that they be placed separately. We always try to keep children together, but every child is not the same, and what's best for one child might not be best for the other. The court found all three children adoptable and said, "[W]e can look at adoption for the three together, but I don't think that's in their best interest." Specifically, the court found that it was in A.D.'s best interest to stay in her potential adoptive placement and for DHS to "explore and get matching lists for [T.D.] and [D.D.] to be adopted separately and also together, so we need to look at both of those options." The circuit court's written order terminated Day's parental rights on grounds of failure to remedy, failure to maintain meaningful contact, and aggravated circumstances. The court also found that termination was in the children's best interest, considering the potential harm to the health and safety of the children if returned to Day and the likelihood that the children will be adopted. As to adoption, the circuit court cited the testimony of Whitney Muller, who stated that [A.D.], [T.D.], and [D.D.] have no special medical or behavioral needs that would prevent them from being adopted. Ms. Muller testified that [A.D.] is an adorable, smart little girl who is very bonded to her foster family. Further, the testimony of [A.D.]'s foster mother, Jodi [sic], is that she and her husband wish to adopt [A.D.]. Ms. Muller further testified that [D.D.] is an adorable little boy whose behaviors are drastically improving in his Therapeutic Foster Home. Finally, Ms. Muller testified that [T.D.] is a great kid, and although he is struggling lately with his behaviors, he is definitely adoptable. Regarding ICWA compliance, the circuit court found the following: The Court notes that the testimony of Nicole Allison, certified Indian Child Welfare Expert for the Cherokee Nation, is that the children's placements are not ICWA compliant, but that the Cherokee Nation does not have any objections to the children's placements. The Court notes that the Department and the Cherokee Nation have attempted to find ICWA compliant family placements for the children, but that no such placements have been found. The Court therefore finds beyond a reasonable doubt that it is in the best interests of the juveniles to remain placed separately at this time. Further, the testimony of Ms. Allison is that it is in the best interests of the children to remain placed separately and that the Cherokee Nation does not have any objection to the placement of the children at this time. Ms. Allison testified that it is in [A.D.]'s best interests to be adopted by her foster family, and the Court finds that the Department shall continue moving forward with the adoption of [A.D.] by her foster family. Ms. Allison further testified that it is in [D.D.]'s best interests to remain in his TFC home, as the Cherokee Nation does not have an ICWA compliant placement at the moment that can meet all of [D.D.]'s needs. Day has now appealed this order. On appeal, Day only challenges the circuit court's determination that termination of parental rights was in the children's best interest. A best-interest finding under the Arkansas Juvenile Code must include consideration of two factors, the first of which is the child's likelihood of adoption. Ark. Code Ann. § 9-27-341(b)(3)(A)(i) (Supp. 2017). Adoptability is not a required finding, and likelihood of adoption does not have to be proved by clear and convincing evidence. Duckery v. Ark. Dep't of Human Servs. , 2016 Ark. App. 358. We have previously explained that the Juvenile Code does not require "any 'magic words' or a specific quantum of evidence" to support a finding as to likelihood of adoption. Sharks v. Ark. Dep't of Human Servs. , 2016 Ark. App. 435, at 8, 502 S.W.3d 569, 576. The law simply requires that the court consider adoptability and that if there is an adoptability finding, there must be evidence to support it. See Haynes v. Ark. Dep't of Human Servs. , 2010 Ark. App. 28 (reversing a best-interest determination because no evidence of adoptability was introduced, and the court failed to consider adoptability). A caseworker's testimony that a child is adoptable is sufficient to support an adoptability finding. Miller v. Ark. Dep't of Humans Servs. , 2016 Ark. App. 239, 492 S.W.3d 113. Day first argues that despite Muller's testimony that all three children are adoptable, the only "substantial" evidence of the likelihood of adoption related to A.D., who resides in a potential adoptive placement. Day contends that Muller did not fully explain, nor did the circuit court consider, the depth of T.D.'s and D.D.'s behavioral issues, and due to this lack of consideration "and the black and white facts that the system is flooded with older children, it cannot be said that the evidence introduced in this case satisfied any reasonable quantum of proof as it related to the likelihood of adoptability for T.D. and D.D." Day also asserts that the circuit court misstated Muller's testimony in its order when it found that Muller testified that the children "have no special medical or behavioral needs that would prevent them from being adopted." DHS responds that the record shows the circuit court fulfilled its statutory requirement by considering evidence on adoptability. It argues that the existence of evidence that a child may have difficulties finding an adoptive placement, due to special needs or behavioral issues does not make a circuit court's adoptability finding clearly erroneous. DHS contends that Day is essentially asking this court to reweigh the evidence of adoptability, which we will not do. As stated above, the law only requires that the court consider adoptability and that if there is an adoptability finding, that there be evidence to support it. Haynes, supra. Here, the circuit court clearly considered adoptability, and Muller testified that the children are adoptable. We agree that the circuit court may have misspoken when it said the children "have no special medical or behavioral needs that would prevent them from being adopted"; however, the circuit court followed that statement with an acknowledgment that D.D. was still in TFC and T.D. had behavioral issues. Thus, it cannot be said that the court did not take D.D.'s and T.D.'s specific circumstances into consideration. Next, Day argues that the circuit court misconstrued Allison's testimony as to the children's best interest and failed to adhere to ICWA's provisions on preferred placement. The court found that Allison had testified that separate placements were in the children's best interest and that adoption by her foster family was in A.D.'s best interest. But, Day asserts, Allison never made those statements at the hearing. In addition, ICWA provides that "[i]n any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a placement with (1) a member of the child's extended family; (2) other members of the Indian child's tribe; or (3) other Indian families." 25 U.S.C. § 1915(a). Day contends that the circuit court ignored this provision and erroneously "foreclose[d] any chance of reuniting these siblings and seeking a permanent placement where all three children could be placed together." In response, DHS argues that Day failed to raise this argument below and is barred from raising it for the first time on appeal. See Lauman v. Ark. Dep't of Human Servs. , 2010 Ark. App. 564 (holding argument that DHS failed to comply with the notice requirements of ICWA was not preserved for review when it was not raised below). Alternatively, DHS asserts that there is no merit to Day's argument because the circuit court addressed placing the children together and found good cause for the children to be placed separately. Further, the circuit court's order provided that DHS should continue to look for adoptive homes for T.D. and D.D. either together or separately, so reuniting the siblings was not foreclosed by the circuit court. We agree that Day failed to make the "preferred placement" argument below, so it is not preserved for our review. If it were preserved, we would find the argument unpersuasive. The record demonstrates that DHS and the Cherokee Nation attempted to find ICWA-compliant family placements, including several possible relative placements, but none of those efforts were successful. Thus, the court specifically found good cause for the children to remain in their current placements. As to the circuit court's recitation of Allison's testimony, while it does appear that the circuit court embellished Allison's testimony, we hold that this is not a reversible error. The court made its own independent best-interest finding and did not rely solely on Allison's testimony to make that finding. Any overstatement the circuit court made regarding Allison's testimony is not a basis to reverse the termination of Day's parental rights when the entire record is considered. Affirmed. Virden and Klappenbach, JJ., agree. The termination hearing was a two-day hearing, with the second day occurring on March 8. However, Day's parental rights were adjudicated on February 1, and the March 8 hearing concerned the parental rights of Zchon Willis, D.D.'s putative father. Mr. Willis is not a party to this appeal. DHS and the children's attorney ad litem filed a joint brief, but for simplicity's sake, we refer to appellee as "DHS."

Hart, J., dissents. I dissent. The only issue before this court is the circuit court's denial of Mack's in forma pauperis petition. The circuit court denied Mack's in forma pauperis petition pursuant to Rule 72 based upon its holding that, while Mack is indigent, his petition failed to state a colorable cause of action. This court has held that that habeas will lie where the confinement order is illegal on its face or the court that issued the confinement order was without jurisdiction. Smith v. Hobbs , 2015 Ark. 312, 468 S.W.3d 269. The majority suggests that Mack's claim is limited to an assertion of an involuntary plea or improper plea procedures that would not be cognizable in habeas proceedings. The majority misconstrues Mack's argument; Mack's petition argues that his confinement order is illegal on its face because the order fails to comply with Rule 24 of the Arkansas Rules of Criminal Procedure. Insofar as the claim in his petition, which is all the circuit court was permitted to consider in making this determination under Rule 72, and without addressing the merits of the underlying claim, Mack has at least stated a colorable cause of action. Accordingly, I would reverse the circuit court's denial of Mack's in forma pauperis petition.

COURTNEY HUDSON GOODSON, Associate Justice Appellant, Terrance Proctor, who is currently serving a cumulative 240-year sentence, appeals the circuit court's denial of his petition for a writ of habeas corpus. For reversal, Proctor argues (1) that the circuit court's dismissal of his petition was clearly erroneous because it fails to address whether he has a "meaningful opportunity of release" pursuant to Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), and (2) that the circuit court erred by dismissing his petition due to the disproportionality of his sentence. We affirm. I. Factual and Procedural Background Proctor committed a string of robberies in 1982 when he was seventeen years old. On January 13, 1983, Proctor pled guilty in the Pulaski County Circuit Court to ten counts of aggravated robbery and one count of robbery. Proctor was sentenced to life imprisonment for one of the aggravated-robbery counts. For the remaining offenses, he was sentenced to a total of 200 years' imprisonment with the sentences to be served consecutively to his life sentence. After the Supreme Court's ruling in Graham , which declared unconstitutional life-without-parole sentences for juveniles who did not commit a homicide offense, Proctor petitioned for a writ of habeas corpus in the Lincoln County Circuit Court and alleged that pursuant to the Supreme Court's decision in Graham , his sentence of life imprisonment for the nonhomicide offense of aggravated robbery was illegal. The circuit court granted the writ of habeas corpus. The circuit court concluded that, pursuant to our decision in Hobbs v. Turner , 2014 Ark. 19, 431 S.W.3d 283, the remedy for a Graham violation is to reduce the petitioner's life sentence to the maximum term-of-years sentence available for the crime at the time it was committed. The circuit court also determined that Proctor was not entitled to a resentencing proceeding in the circuit court in which he was convicted, and the court therefore reduced Proctor's life sentence to forty years. The court ordered the sentences to run consecutively. Therefore, Proctor was sentenced to a 240-year cumulative sentence, which he is now serving. We affirmed on appeal. Proctor v. Hobbs , 2015 Ark. 42, 2015 WL 603211. Proctor filed another petition for a writ of habeas corpus in the Lincoln County Circuit Court on August 9, 2017. Proctor argued that the 240-year cumulative sentence he is now serving is a de facto life sentence in violation of the holding of Graham. Proctor also argued that his sentence is grossly disproportionate to his crimes under an individualized Eighth Amendment analysis. The circuit court denied his petition, and Proctor appealed. II. Standard of Review A writ of habeas corpus is proper when a judgment of conviction is invalid on its face or when a trial court lacks jurisdiction over the cause. Benson v. Kelley , 2018 Ark. 333, 561 S.W.3d 327. Under our statute, a petitioner who does not allege his or her actual innocence must plead either the facial invalidity of the judgment or the lack of jurisdiction by the trial court and make a showing by affidavit or other evidence of probable cause to believe that the petitioner is being illegally detained. Id. ; Ark. Code Ann. § 16-112-103(a)(1) (Repl. 2016). Unless the petitioner can show that the trial court lacked jurisdiction or that the judgment is facially invalid, there is no basis for a finding that a writ of habeas corpus should issue. Williams v. Kelley , 2017 Ark. 200, 521 S.W.3d 104. A circuit court's decision on a petition for a writ of habeas corpus will be upheld unless it is clearly erroneous. Johnson v. State , 2018 Ark. 42, 538 S.W.3d 819. A decision is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been made. Id. III. Analysis The United States Supreme Court has developed "two strands of precedent" reflecting its concern with unconstitutionally disproportionate punishments. Miller v. Alabama , 567 U.S. 460, 470, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). The first strand "has adopted categorical bans on sentencing practices based on mismatches between the culpability of a class of offenders and the severity of a penalty." Id. at 470, 132 S.Ct. 2455. Beginning in 2005, the Supreme Court decided a series of cases adopting categorical bans for certain sentences for juvenile offenders. First, the Court determined that the execution of individuals who were under the age of 18 when they committed a capital crime violates the Eighth Amendment to the United States Constitution. Roper v. Simmons , 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005). Next, in Graham , the Court concluded that the Constitution prohibits the imposition of a life-without-parole sentence on a juvenile offender who did not commit a homicide. Finally, in Miller , the Supreme Court held that the Eighth Amendment forbids a mandatory life-without-parole sentence for juveniles. The second strand of precedent involves a "case-specific gross disproportionality inquiry," Graham , 560 U.S. at 77, 130 S.Ct. 2011, that evaluates "all the circumstances in a particular case." Id. at 59, 130 S.Ct. 2011. Proctor argues that his sentence is unconstitutional under either analysis. A. De Facto Life Sentence Proctor first argues that the circuit court erred by failing to address whether he has a meaningful opportunity for release as required by Graham. According to Proctor, he will not be eligible for parole until he is 87 years old. Citing various statistical reports, Proctor asserts that his life expectancy is less than 87 years. Therefore, he argues, his 240-year cumulative sentence is a de facto life-without-parole sentence and is illegal under Graham. A brief discussion of the facts in Graham is necessary for an understanding of its application to this case. Graham pled guilty to committing armed burglary with assault or battery and attempted armed robbery. Graham committed the offenses in Florida when he was sixteen years old, but he was charged as an adult. The court withheld adjudication of guilt, and Graham received concurrent three-year terms of probation. Graham was required to serve twelve months in a county jail, which he had already served while awaiting trial. Less than six months after his release, Graham was arrested on suspicion of his involvement in a robbery and an attempted robbery. Graham's probation officer filed an affidavit with the trial court asserting that Graham had violated the terms of his probation by possessing a firearm, by committing crimes, and by associating with persons engaged in criminal activity. At a hearing, Graham admitted violating his probation by fleeing. The court found that Graham admitted violating his probation when he admitted attempting to avoid arrest, and further found that he had violated his probation by committing a home-invasion robbery, by possessing a firearm, and by associating with persons engaged in criminal activity. After a sentencing hearing, the trial court sentenced Graham to life in prison for the armed burglary and fifteen years for the attempted armed robbery. Parole was not available, and Graham's challenges to his sentence in the Florida courts were fruitless. The Supreme Court granted certiorari. In holding that Graham's life sentence for a nonhomicide offense violated the Eighth Amendment, the Supreme Court wrote that [a] State is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime. What the State must do, however, is give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. It is for the State, in the first instance, to explore the means and mechanisms for compliance. It bears emphasis, however, that while the Eighth Amendment prohibits a State from imposing a life without parole sentence on a juvenile nonhomicide offender, it does not require the State to release that offender during his natural life. Graham , 560 U.S. at 74, 130 S.Ct. 2011. Proctor invites this court to "lead the tide with other jurisdictions" and to extend Graham to prohibit sentences for juveniles when the cumulative time to serve before parole eligibility exceeds the individual's life expectancy. Because of the number of years he must serve before his parole-eligibility date, Proctor argues, he has no meaningful opportunity for release, despite his maturity and rehabilitation. In response, the State argues that Graham applies only to life-without-parole sentences imposed for nonhomicide offenses and that the holding in Graham should not be extended to include offenders who have been sentenced to a term of years. Proctor's sentence differs in significant ways from Graham's. First, Proctor was not sentenced to life without parole. Rather, Proctor received a cumulative sentence of 240 years, and the fact that he has a parole eligibility date is undisputed. Additionally, Proctor's 240-year sentence is the result of multiple sentences, any one of which would not amount to a life sentence or, presumably, even a de facto life sentence. Proctor argues that other jurisdictions have held that sentencing juvenile nonhomicide offenders to aggregate sentences that amount to a life sentence is a violation of the Eighth Amendment. We recognize that some courts in other jurisdictions have concluded that Graham 's reach extends to a lengthy aggregate term-of-years sentence for a juvenile offender. See, e.g. , State v. Moore , 149 Ohio St.3d 557, 76 N.E.3d 1127 (2016), cert. denied , --- U.S. ----, 138 S.Ct. 62, 199 L.Ed.2d 183 (2017) ; Johnson v. State , 215 So.3d 1237 (Fla. 2017). However, that is not a universal position. Other courts have held the opposite. See, e.g. , Lucero v. People , 394 P.3d 1128 (Colo. 2017), cert. denied , --- U.S. ----, 138 S.Ct. 641, 199 L.Ed.2d 544 (2018) ; Vasquez v. Commonwealth , 291 Va. 232, 781 S.E.2d 920, cert. denied , --- U.S. ----, 137 S.Ct. 568, 196 L.Ed.2d 448 (2016). Graham itself cautions that "[t]he instant case concerns only those juvenile offenders sentenced to life without parole solely for a nonhomicide offense." By its very terms, Graham applies only to sentences of life without parole. Further, Graham 's use of the singular "solely for a nonhomicide offense" underscores the fact that Graham was sentenced to life in prison for a single offense. Proctor was sentenced on eleven separate crimes. Moreover, we considered Graham 's application in our unanimous opinion, Turner , supra. In Turner , a juvenile offender was sentenced to life imprisonment, and parole was not a possibility. After Graham , Turner was granted habeas relief, and the circuit court sentenced Turner to the maximum term of years available under the applicable statute. Turner appealed and argued that the circuit court erred in mechanically applying the maximum term of years instead of considering his youth at a resentencing hearing. In affirming the circuit court, we said that "[o]nce the circuit court imposed a nonlife sentence on Turner, its obligations under Graham were fulfilled." Turner , 2014 Ark. 19, at 11, 431 S.W.3d at 289. Here, Proctor has multiple sentences, but no individual sentence is a life sentence. Thus, Graham does not apply. B. Gross Disproportionality Proctor also argues that his sentence violates the United States Constitution and the Arkansas Constitution because it is grossly disproportionate to the crimes he committed. In Graham , the Supreme Court discussed the Eighth Amendment and observed that it prohibits "inherently barbaric punishments." However, the court noted that the Eighth Amendment goes further than simply prohibiting barbaric punishments: For the most part, however, the Court's precedents consider punishments challenged not as inherently barbaric but as disproportionate to the crime. The concept of proportionality is central to the Eighth Amendment. Embodied in the Constitution's ban on cruel and unusual punishments is the "precept of justice that punishment for crime should be graduated and proportioned to [the] offense." Weems v. United States , 217 U.S. 349, 367, 30 S.Ct. 544, 54 L.Ed. 793 (1910). Graham , 560 U.S. at 59, 130 S.Ct. 2011. The State argues that this claim is not preserved for review because it was not ruled on by the circuit court, that the claim is not cognizable in a habeas petition, and that even if it were cognizable, Proctor failed to make a showing of gross disproportionality. The circuit court identified and ruled on only one claim, which it described as Proctor's argument "that a sentence of 240 years is a de facto life sentence which constitutes cruel and unusual punishment entitling him to relief under the principles established in Graham. " Although Proctor raised his gross-disproportionality argument before the circuit court, it is clear that he did not obtain a ruling on that issue. Proctor's failure to obtain a ruling precludes our review. See, e.g. , Sylvester v. State , 2017 Ark. 309, 530 S.W.3d 346. Affirmed. Hart, J., concurs. The majority's reasons for affirming the denial of Mr. Proctor's habeas petition follows our prior precedent, which is correct. I write separately, however, because while the majority's analysis accurately depicts the law as it currently exists, I believe it is entirely too myopic. I fear that this case will once again put the State of Arkansas-and this court-on the wrong side of history. The case before us is reminiscent of Jackson v. Norris , 2011 Ark. 49, 378 S.W.3d 103. In Jackson , this court declined to apply the Supreme Court's guidance embodied in Roper v. Simmons , 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), and Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). Jackson became a companion case to the Supreme Court's decision in Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). In Miller , the Supreme Court stated that "the [Eighth] Amendment ... prohibits a sentence of life without the possibility of parole for a child who committed a nonhomicide offense." 567 U.S. at 470, 132 S.Ct. 2455. The Miller court further referred to the holding in Graham as a "flat ban on life without parole [for] nonhomicide crimes." 567 U.S. at 473, 132 S.Ct. 2455. With the benefit of twenty-twenty hindsight, it is obvious to me that Miller represents the logical progression of the Supreme Court's Eighth Amendment jurisprudence. In Roper v. Simmons , 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), the case in which the death penalty for juvenile offenders was declared unconstitutional, the Supreme Court outlined the methodology for analyzing issues related to the Eighth Amendment. The prohibition against "cruel and unusual punishments," like other expansive language in the Constitution, must be interpreted according to its text, by considering history, tradition, and precedent, and with due regard for its purpose and function in the constitutional design. To implement this frame work we have established the propriety and affirmed the necessity of referring to "the evolving standards of decency that mark the progress of a maturing society" to determine which punishments are so disproportionate as to be cruel and unusual. 543 U.S. at 560-61, 125 S.Ct. 1183 (quoting Trop v. Dulles , 356 U.S. 86, 100-101, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) ). It is noteworthy that Roper based its decision to proscribe the death penalty for juvenile offenders on three general differences between juveniles and adults which demonstrate "that juvenile offenders cannot with reliability be classified among the worst offenders." 543 U.S. at 569, 125 S.Ct. 1183. These differences are (1) that lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults; (2) that juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure; and (3) that the character of a juvenile is not as well formed as that of an adult. 543 U.S. at 569-570, 125 S.Ct. 1183. I am mindful that Mr. Proctor committed several very serious crimes. Yet, the diminished moral responsibility associated with his youth is no less a factor in eleven counts than it is in a single count. Accordingly, in my view, the harshest penalty available for a juvenile offender-never being allowed to leave prison during his natural life. Looking again to Graham , it is apparent that Mr. Proctor's 240-year sentence is constitutionally infirm because it can fairly be classified as "grossly disproportionate to the crime." 560 U.S. at 61, 130 S.Ct. 2011. The Graham court noted that after Roper , the most serious penalty available for a juvenile offender was life in prison without the possibility of parole, and such a sentence violated the Eighth Amendment when applied to nonhomicide offenses. While it is true that Mr. Proctor committed several very serious crimes, none resulted in the death of a human being, and the worst physical injury in the record was the scrapes and bruises suffered by the victim of a purse snatching. Furthermore, while acknowledging that the Eighth Amendment does not require the adoption of any specific penological theory, the Graham Court nonetheless considered the purpose and effect of a sanction to be relevant in a court's Eighth Amendment analysis, because a sentence lacking a "legitimate" penological purpose is by definition "disproportionate." 560 U.S. at 70, 130 S.Ct. 2011. Retribution, deterrence, incapacitation, and rehabilitation, are the penological theories discussed in Graham . "Retribution" is acknowledged to be a legitimate reason to punish. Id. However, while society is entitled to impose a sanction that will restore the "moral imbalance caused by the offense," the sentence must be "directly related to the personal culpability of the offender." 560 U.S. at 70, 130 S.Ct. 2011. The Graham Court rejected retribution as a legitimate reason for imposing a life sentence on a juvenile, nonhomicide offender because, unlike an adult, a juvenile has the previously noted diminished moral responsibility. 560 U.S. at 71-72, 130 S.Ct. 2011. The Graham Court similarly rejected deterrence as a legitimate justification for a life sentence because a juvenile is less susceptible to deterrence given his lack of maturity and an underdeveloped sense of responsibility. 560 U.S. at 72, 130 S.Ct. 2011. Incapacitation, was acknowledged as a legitimate reason for imprisonment, because the public's safety is jeopardized by recidivism. Id. However, the Graham Court stated that it is hard to justify a life sentence because it requires an "assumption that the juvenile offender forever will be a danger to society." Id. Finally, rehabilitation is not a sufficient justification because "[t]he penalty forswears altogether the rehabilitative ideal." 560 U.S. at 73, 130 S.Ct. 2011. In the case before us, the wisdom of the Graham Court's analysis is manifest. While Mr. Proctor was a prolific criminal, all of his offenses were committed during a narrow period of time when he was a teenager. Accordingly, retribution that extends for his entire natural life is, by definition, disproportionate to his nonhomicide offenses because of the diminished sense of moral responsibility that is positively correlated with his youth. I am mindful that, given his propensity for committing armed robberies, incapacitation was a legitimate societal interest. However, at some point, Mr. Proctor, or inmate, loses the impulsiveness of youth and no longer represents a virulent threat to society. At that point, it is impossible to justify spending over $20,000 a year to keep an inmate in prison. Deference is likewise not a legitimate reason for a de facto life sentence. At sentencing, the circuit judge stated that he intended to make an example out of Mr. Proctor. I note that the example went unheeded. In 1984, the prison population in Arkansas was 4,373. Jul. 1985-June 1986 Ark. Dep't of Corr. Ann. Rep. 76. By 2015, it had ballooned to 17,840. 2017-2027 Ark. Dep't of Corr. Sentencing Comm'n and Dep't of Cmty. Corr. Ten-Year Adult Secure Population Projection 12 (IFA Assocs. June 2017). While the general population of Arkansas increased by 25 per cent during this time, the number of prisoners increased by approximately 400 percent. Finally, the goal of rehabilitation is not served by a de facto life sentence because society will never benefit by a reformed man who never leaves prison. The parole process is the proper vehicle for determining whether a convicted person is ready to reenter society. Justice requires us to do more than simply throw away the key. I concur. Proctor does not argue that any of his sentences were individually illegal or outside the range provided for by the applicable statutes. The State does not challenge Proctor's assertions that he has matured and been rehabilitated but argues that those issues are not relevant to Proctor's habeas proceeding, which is limited to a facial challenge to the judgment. Precisely how a court might determine what constitutes a de facto life sentence is not clear. Proctor suggests that an offender's race, gender, and health conditions that may have arisen after sentencing are appropriate considerations. Thus, under Proctor's analysis, the exact same term of years might be a de facto life sentence for one individual but not for another. Or, a sentence might not be a de facto life sentence at sentencing but, due to the individual's deteriorating health, could become one later. We note that Proctor referenced in his brief Act 539, the Fair Sentencing of Minors Act (FSMA), which provides for parole eligibility for persons who were minors at the time of committing an offense "that was committed before, on, or after March 20, 2017." Ark. Code Ann. § 16-93-621 (Supp. 2017). Therein, the Arkansas General Assembly determined that twenty years is an appropriate maximum length of time a juvenile must serve for a nonhomicide offense before becoming eligible for parole. Ark. Code Ann. § 16-93-621(a)(1). However, Proctor does not argue that the FSMA's parole provisions should apply retroactively to him, and as a result, we are precluded from addressing such.

John Dan Kemp, Chief Justice Petitioner Danny Henington brings a second petition to reinvest jurisdiction in the trial court to file a petition for writ of error coram nobis. This court denied his first such petition in 2017. Henington v. State , 2017 Ark. 111, 515 S.W.3d 577 (per curiam), reh'g denied (May 4, 2017), cert. denied , --- U.S. ----, 138 S.Ct. 340, 199 L.Ed.2d 227 (2017). In the petition, Henington contends that the State failed to disclose exculpatory evidence to the defense before trial and that the trial court erred in the admission of evidence. As we find no merit to the allegations and further find that Henington did not exercise due diligence in bringing his claims, the petition is denied. I. Nature of the Writ The petition for leave to proceed in the trial court is necessary because the trial court can entertain a petition for writ of error coram nobis after a judgment has been affirmed on appeal only after we grant permission. Newman v. State , 2009 Ark. 539, 354 S.W.3d 61. A writ of error coram nobis is an extraordinarily rare remedy. State v. Larimore , 341 Ark. 397, 17 S.W.3d 87 (2000). Coram nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Green v. State , 2016 Ark. 386, 502 S.W.3d 524. The function of the writ is to secure relief from a judgment rendered while there existed some fact that would have prevented its rendition if it had been known to the trial court and which, through no negligence or fault of the defendant, was not brought forward before rendition of the judgment. Newman , 2009 Ark. 539, 354 S.W.3d 61. The petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the record. Roberts v. State , 2013 Ark. 56, 425 S.W.3d 771. II. Grounds for the Writ The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. Id. A writ of error coram nobis is available for addressing certain errors that are found in one of four categories: (1) insanity at the time of trial, (2) a coerced guilty plea, (3) material evidence withheld by the prosecutor, or (4) a third-party confession to the crime during the time between conviction and appeal. Howard v. State , 2012 Ark. 177, 403 S.W.3d 38. III. Background In 2009, a jury found Henington guilty of the rape of a five-year-old girl in 2007 and was sentenced to 432 months' imprisonment. The Arkansas Court of Appeals affirmed. Henington v. State , 2010 Ark. App. 619, 378 S.W.3d 196. He subsequently filed in the trial court a petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2009) that was denied. We affirmed the order. Henington v. State , 2012 Ark. 181, 403 S.W.3d 55. IV. Claims for Issuance of the Writ As his first ground for issuance of the writ, Henington contends that the prosecutor committed misconduct and violated Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to engage in the discovery process and disclose all evidence known to the State that was favorable to the defense. The mere fact that a petitioner alleges a Brady violation is not sufficient to provide a basis for error coram nobis relief. Wallace v. State , 2018 Ark. 164, 545 S.W.3d 767 ; see also Penn v. State , 282 Ark. 571, 670 S.W.2d 426 (1984) (a mere naked allegation that a constitutional right has been invaded will not suffice to warrant coram nobis relief). To establish a Brady violation, the petitioner must satisfy three elements: (1) the evidence at issue must be favorable to the accused, either because it is exculpatory or because it is impeaching; (2) that evidence must have been suppressed by the State, either willfully or inadvertently; (3) prejudice must have ensued. Howard , 2012 Ark. 177, 403 S.W.3d 38. The specific exculpatory evidence that Henington contends was not disclosed by the State was a police report dated June 26, 2000, that described the investigation of the alleged molestation of another young girl, D.W. D.W. testified at Henington's trial in 2009 under the "pedophile exception" in Arkansas Rule of Evidence 404(b) to the general rule that evidence of a defendant's prior bad acts cannot be used to prove that the defendant committed the charged crime. D.W. testified that Henington had molested her when she was approximately the same age as the child he was accused of raping and in a manner similar to the conduct described by the victim. Henington states that the 2000 report was mentioned several times at trial, but it was never provided to the defense or introduced into evidence at trial. He contends that the information in the report differed from D.W.'s trial testimony and that of her mother and that the outcome of the trial would have been different had the defense had the report to use in cross-examining D.W. and her mother to cast doubt on D.W.'s account of the molestation and to generally impeach the witnesses. He points out that he was not charged with any offense with respect to D.W. and argues that there were many facts that indicate D.W.'s and her mother's testimony was inaccurate; that is, he argues that there was no substantial evidence to demonstrate that he had committed acts with D.W. that were similar to those acts described by the victim at his trial. Henington has not established a Brady violation. He concedes that the report was mentioned at trial; therefore, it cannot be said that the report was concealed from the defense at the time of trial. A copy of the 2000 police report could have been sought out by the defense that was clearly aware of it. Accordingly, Henington did not meet his threshold burden of demonstrating a fundamental error of fact extrinsic to the record that was concealed from the defense. See Williams v. State , 2017 Ark. 313, 530 S.W.3d 844. Further, Henington asserts that the writ should issue because he can prove that he did not molest D.W. and therefore she should not have been allowed to testify in his trial under Rule 404(b). It appears that the crux of Henington's allegation is not that there was a true Brady violation, but rather that he is entitled to issuance of the writ because the defense did not obtain a physical copy of the report and use it to challenge witness credibility and prove that he did not commit a similar offense with D.W. Regardless of whether the information that Henington refers to in his petition was, or was not, brought out in cross-examination, the issue of whether a particular witness was credible is not, in itself, within the purview of the writ as a legal remedy. Grady v. State , 2017 Ark. 245, 525 S.W.3d 1. The writ will not lie to retry the defendant or to reexamine the strength of the evidence adduced at trial. Carner v. State , 2018 Ark. 20, 535 S.W.3d 634. We have repeatedly held that attacks on witness credibility and the sufficiency of the evidence are outside the scope of a coram nobis proceeding. Jackson v. State , 2017 Ark. 195, 520 S.W.3d 242. Henington also contends that the trial court made errors in its admission of evidence at his trial. By its very nature, a question concerning a trial court's ruling could have been settled in the trial court and on the record on direct appeal. Accordingly, the allegation that the trial court made some mistake in its rulings, including rulings concerning the admissibility of evidence, is not within the purview of a coram nobis proceeding. Mason v. State , 2014 Ark. 288, 436 S.W.3d 469. V. Petitioner's Failure to Act with Due Diligence The State argues in its response to Henington's petition that he failed to exercise due diligence in bringing this second coram nobis petition. We agree. We have consistently held that due diligence is required in making an application for coram nobis relief, and in the absence of a valid excuse for delay, the petition can be denied on that basis alone. Green , 2016 Ark. 386, 502 S.W.3d 524. This court will itself examine the diligence requirement and deny a petition when it is evident that a petitioner failed to proceed diligently. Roberts , 2013 Ark. 56, 425 S.W.3d 771. Due diligence requires that (1) the defendant be unaware of the fact at the time of trial; (2) the defendant could not have, in the exercise of due diligence, presented the fact at trial; and (3) upon discovering the fact, the defendant did not delay bringing the petition. Mosley v. State , 2018 Ark. 152, 544 S.W.3d 55. The only ground for coram nobis relief raised by Henington that is within the scope of the writ is the claim that the State violated Brady. Because the Brady claim pertained to a police report that Henington knew about at the time of trial, Henington has not established that the issue concerning the availability of the report could not have, in the exercise of due diligence, been presented at trial. Petition denied. Henington also raised the claim in his first coram nobis petition that there was prosecutorial misconduct in his trial because the State failed to bring forth the documentation that would have shown that Henington was not guilty. We held that Henington's assertions of prosecutorial misconduct did not establish the existence of some fact extrinsic to the record that was concealed from the defense by the State, and his assertions were the type that could have been raised at trial, and, therefore, he had not asserted a ground for the writ. Henington , 2017 Ark. 111, at 3, 515 S.W.3d 577, 580. Henington appended to his petition exhibits such as letters pertaining to the decision not to file charges on the allegation concerning D.W., docket sheets, marriage licenses, a divorce decree, court docket sheets, and court orders. The documents listed are matters of public record that were readily obtainable by the defense. Matters of public record are not subject to being hidden by the State in violation of Brady. See Wallace , 2018 Ark. 164, 545 S.W.3d 767. To the degree that Henington may be contending that it was the State's burden to gather the documents that he presents as exhibits and provide them to the defense before trial, Brady does not require the State to conduct research and provide that research to the defense. See Jefferson v. State , 2017 Ark. 293, 528 S.W.3d 830.

N. MARK KLAPPENBACH, Judge Appellant Raddai Swan was convicted by a jury of three counts of distributing, possessing, or viewing matter depicting sexually explicit conduct involving a child, in violation of Ark. Code Ann. § 5-27-602 (Repl. 2013). He was sentenced to six years of imprisonment on each count, to run consecutively. Swan contends that the prosecutor made an improper rebuttal closing argument by misstating the State's burden of proof, to which the defense counsel objected and requested a curative instruction. Swan argues on appeal that the trial court abused its discretion in refusing to issue a curative jury instruction. We affirm. We will not reverse the action of a trial court in matters pertaining to its control, supervision, and determination of the propriety of arguments of counsel in the absence of manifest abuse of discretion. Cook v. State , 316 Ark. 384, 872 S.W.2d 72 (1994). Generally, such an error may be cured by a remedial instruction from the court. Anderson v. State , 353 Ark. 384, 108 S.W.3d 592 (2003). The State is, however, allowed to "fight fire with fire" once the defendant has opened the door to a line of argument, and what might have been impermissible becomes permissible. Lee v. State , 326 Ark. 529, 932 S.W.2d 756 (1996) ; Raquel-Dieguez v. State , 2015 Ark. App. 626, 475 S.W.3d 585. The State is permitted in rebuttal to comment on matters that were discussed or invited by the appellant's preceding closing argument. Raquel-Dieguez, supra. The State's amended felony information accused Swan of knowingly possessing three photographs that depicted a child engaging in sexually explicit conduct. Ark. Code Ann. § 5-27-602(a)(2). The evidence was undisputed that Swan had entered search terms on his computer that resulted in his receipt of pornographic images, specifically photographs of naked females. Swan had entered computer search terms such as "pre-teen hard core" and had a computer file labeled "jailbait." Swan admitted in an interview that he had a variety of sexual interests that included pubescent females "in the spring of her adolescence ... starting to blossom." Swan maintained that despite his interest, he intentionally avoided crossing the line into having illegal pornography. Of the seventy-eight pictures in the "jailbait" file, the State sought to prove to the jury that three were clearly what is commonly referred to as "child porn." The State presented the testimony of a pediatrician, who opined that the three females in the photographs were between the ages of nine and eleven, but the oldest reasonable estimated age of the girls would be thirteen or fourteen. The investigator affirmed in his testimony that he thought these three photographs clearly showed young girls below the age of seventeen. The color photographs were stamped at the top with a cartoon teddy bear and the words "My Little Sisters." These photographs were submitted into evidence and presented to the jury. The trial focused on whether Swan knowingly possessed these illegal images; whether his receipt of the photographs was accidental; whether the girls in the images were, in fact, under the age of seventeen; and whether Swan knew that the girls were under age seventeen. The trial court instructed the jury before closing arguments, and the following instructions are relevant to this appeal: While you don't have a copy of the instructions to follow along with while I read them, a copy of the instructions will go back to the jury room with you for your deliberations. .... Opening statements, remarks during trial, and closing arguments of the attorneys are not evidence but are made only to help you in understanding the evidence and applicable law. .... There is a presumption of the defendant's innocence in a criminal prosecution. In this case Raddai Swan is presumed to be innocent. That presumption of innocence attends and protects him throughout the trial and should continue and prevail in your minds until you are convinced of his guilt beyond a reasonable doubt. Reasonable doubt is not a mere possible or imaginary doubt. It is a doubt that arises from your consideration of the evidence and one that would cause a careful person to pause and hesitate in the graver transactions of life. A juror is satisfied beyond a reasonable doubt if after an impartial consideration of all the evidence he or she has an abiding conviction of the truth of the charge. .... The attorneys in making these [closing] arguments will be commenting on the testimony you have heard and the evidence that has been presented in this case. They will be recalling the evidence as it has been presented, and they will not intentionally try to mislead you. However, if their recollection of the evidence differs from yours, you must follow your own recollection. These final arguments are not evidence or instructions on the law. They are intended to help you better understand the position of each side on the issues you will decide. In the State's initial closing argument, the prosecutor told the jury: The judge has given you the law. Don't get caught up in a legal fog that we're throwing out here. Strip away as much as you can to the essentials, the essential facts and the law as the judge has given you. Hold the State to our burden. And remember it is beyond a reasonable doubt; it's not beyond all doubt. Later in the closing argument, the prosecutor noted that Swan admitted his preference for young girls and then remarked, "How likely is it if that is your interest that these images happen to show up in something else that you're downloading?" Defense counsel did not object to this comment. The prosecutor continued with closing, asking the jurors to use their common sense and experience in life to determine whether Swan knowingly possessed child pornography and whether he knew the girls were under the age of seventeen. In the defense's closing argument, counsel reminded the jury that the State had to prove its case beyond a reasonable doubt. Defense counsel addressed whether Swan "knowingly" had the images on his computer and stated that of the seventy-eight photographs in the "jailbait" folder, only three were being prosecuted as child pornography. Defense counsel then said to the jury: What appears more likely to you, that he was looking for child pornography and struck out 75 times, but was successful three? Or he was looking for legal pornography and might have crossed that line three times, if you even come to that conclusion..... [W]hat percentage of 78 is three? That three pictures in there would end up being child pornography? But what is the likelihood of that and that he would know about it? ... [J]ust going through the numbers and deciding how likely this is, all needs to go into your calculations when determining reasonable doubt. ... If you experience that reasonable doubt, I would ask that you find my client not guilty because that's what the Constitution demands. The State presented a rebuttal closing argument that included the following: It doesn't really matter how many images were in that folder or what the statistics are or what the percentages of whatever, it doesn't matter. Based on everything you have heard in your experience in life you find that it is more likely that a person interested in the - - as he described hisself [sic], "hebephile" is interested in that range, somewhere around the age of 13, how likely is it that they're going to have images on their computer? Is it more likely? .... What does he do with things like that? Just delete them, get rid of it, delete it. Is it more likely that these images were downloaded in a folder called jailbait, is it more likely that they were in there and mistakenly thought they were deleted or forgot to delete them or the computer malfunctioned and shutdown and couldn't be restarted and you just forgot about them? What's more likely? This is where your common experience and your common sense come into play..... He had a computer full of porn and child erotica, not just erotica but child erotica. So what is more likely, those images got there by accident or that he forgot to delete them or wasn't able to delete them? When the prosecutor concluded the rebuttal closing, defense counsel approached the bench, telling the trial judge, "I just want to make sure that the jury gets instructed that the burden of proof the State has is not more likely than not, it's beyond a reasonable doubt, which is higher than more likely than not." The trial judge stated that the jury had already been properly instructed on what the State had to prove and that the burden of proof was beyond a reasonable doubt, so "I don't believe it's necessary to reiterate that again." The jury retired to deliberate, and the bailiff took the exhibits and jury instructions to the jury. Swan was convicted, leading to this appeal. Swan argues that because the State in its rebuttal closing argument made a "clear and unequivocal misstatement" of the State's burden of proof, and the trial court refused to issue a curative instruction to clarify the correct burden of proof, this manifests a gross abuse of discretion and requires reversal. Swan argues that the prosecutor's use of the words "what is more likely" is tantamount to saying the words "more likely than not," referencing a preponderance-of-the-evidence standard. The State counters by arguing that this was not a clear and unequivocal misstatement of the State's burden of proof but was rather a direct response to defense counsel's arguments to the jury. We agree with the State. Swan's attorney opened the door to any discussion of what was "more likely" by presenting his statistical argument to the jury. The State is permitted in rebuttal to comment on matters that were discussed or invited by the appellant's preceding closing argument. Raquel-Dieguez, supra. Also, both the State and the defense repeatedly told the jury in their closing arguments to hold the State to its burden to prove its case beyond a reasonable doubt, and the jury instructions were delivered into the jury deliberation room. "This court will presume that the jury followed the court's instruction on the proper burden of proof." Jeffries v. State , 2014 Ark. 239, at 5, 434 S.W.3d 889, 894. On this record, we cannot conclude that the trial court committed a manifest abuse of discretion in not reiterating the proper burden of proof to the jury. Affirmed. Virden and Harrison, JJ., agree.

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MIKE MURPHY, Judge On March 28, 2017, appellant Derrick Johnson was found guilty by a Faulkner County jury of fifteen counts of distributing, possessing, or viewing matter depicting sexually explicit conduct involving a child. On appeal, Johnson claims that the circuit court erroneously denied his motion to suppress evidence found on his mobile phone. We affirm. This case began when an eleven-year-old girl, M.P., made allegations to the police that Johnson had, on multiple occasions, touched her breasts under her clothes, her vagina over her clothes, and on one occasion, slid his cell phone under a closed door ostensibly to video her and her six-year-old sister changing out of their swimsuits. Johnson was later acquitted on the sexual-assault charges; however, in the process of investigating these allegations, child pornography was discovered on one of Johnson's cell phones. Johnson first moved to suppress the evidence found on the phone, alleging the search-warrant affidavit erroneously stated that it was seized from Johnson's house when it was really seized from his person. The court granted this motion. Following this ruling, the investigator, Kandis Rikard, requested a new search warrant to search the contents of the phone. The affidavit in support of the warrant was substantially similar to the prior warrant with the exception of an additional paragraph stating that the phone was found incident to an arrest. The court signed this warrant and again Johnson brought a motion to suppress. Finding that the motive to obtain this warrant did not come from material obtained as part of an illegal search, the circuit court denied the motion. It is this denial that is the subject of the present appeal. In reviewing the denial of a motion to suppress evidence, we conduct a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the circuit court and proper deference to the circuit court's findings. Johnson v. State , 2015 Ark. 387, at 3, 472 S.W.3d 486, 488. A finding is clearly erroneous when, even if there is evidence to support it, the appellate court, after reviewing the entirety of the evidence, is left with a definite and firm conviction that a mistake has been made. Id. A warrant is generally required before a search of a cell phone, even when the cell phone is seized incident to arrest. Riley v. California , --- U.S. ----, 134 S.Ct. 2473, 2493, 189 L.Ed.2d 430 (2014). Arkansas Rule of Criminal Procedure 13.1 controls the issuance of search warrants. One requirement to issue a warrant is that it must be supported by an affidavit that establishes probable or reasonable cause to believe the things subject to seizure will be found in the place identified. Johnson, supra . When that affidavit relies on hearsay, the affiant must set forth facts bearing on the informant's reliability and shall disclose how the information was obtained. Ark. R. Crim. P. 13.1(b). In determining the adequacy of the affidavit, the task of the issuing magistrate is to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying the hearsay information, there is a fair probability that evidence of a crime will be found in a particular place. Id. On appeal, the duty of the appellate court is to simply ensure that the magistrate had a substantial basis for concluding probable cause existed. Id. Johnson's argument that the circuit court erred in denying his motion to suppress has two prongs. First, he asserts that it was error for the court to find that the affidavit in support of the search warrant established reasonable cause because the affidavit does not establish the reliability of the hearsay declarant's allegations or provide any allegations that would demonstrate that the cell phone held evidence of sexual indecency with a minor. According to the affidavit, Melissa Driver, the mother of the two minor victims, was approached by her eleven-year-old daughter, M.P., and was told that Johnson had "touched her breasts under her clothes and touched her vagina on top of her clothes on multiple dates and times." Driver also suspected her six-year-old daughter, J.P., had been assaulted. Based on this, Driver contacted investigators. The affidavit shows that the children were taken to a local child-advocacy center where Melissa Moore conducted a "Child First Forensic Interview." It was in that interview that M.P. disclosed having been touched inappropriately and that Johnson had slid his cell phone under a closed door with the video application running while she and her sister were changing clothes. These are all facts that bear on the various informants' reliability and disclose how the information was obtained. Further, failure to establish the bases of knowledge of the informant is not a fatal defect if the affidavit viewed as a whole "provides a substantial basis for a finding of reasonable cause to believe that things subject to seizure will be found in a particular place." Winters v. State , 89 Ark. App. 146, 156, 201 S.W.3d 4, 12 (2005). Here, the affidavit contains allegations by M.P. that Johnson had slid a phone that was recording under a door while she was changing out of a swimsuit. This provides a sufficient nexus to the investigators' needs to search any cell phones in Johnson's possession. On these facts, a substantial basis for probable cause existed. Johnson argues that logic dictates that these allegations do not merit probable cause because a phone slid under a door could necessarily only record either the floor or the ceiling. This is not persuasive because the phone could have been slid close enough to the children for the camera to pick up footage of them changing. Next, Johnson argues that the motive for the search warrant at issue comes solely from the materials obtained from an illegal search. He asserts that under the independent-source doctrine, the images found on the phone should be excluded. There is a two-part test to determine whether the inclusion of illegally obtained information in an affidavit precludes the application of the independent-source doctrine. Lauderdale v. State , 82 Ark. App. 474, 120 S.W.3d 106 (2003). First, the appellate court examines the search warrant by excising the offending information from the probable-cause affidavit and determines whether the affidavit nevertheless supports the issuance of a search warrant; second, the appellate court examines the motivation of the officer or officers who obtained the warrant and determines whether the motivation to obtain the warrant came as a result of discovering the tainted information. Id. Here, the warrant at issue was almost the same as the warrant that was suppressed. The first warrant was suppressed for stating the phone had been taken during a search of Johnson's residence; the second warrant asserted the phone had been taken from Johnson's person. As discussed, the affidavit supports the issuance of a warrant. Investigator Rikard stated at the second suppression hearing that her motivation to search the phone was based on M.P.'s statement that Johnson had "stuck a phone underneath the door to try to video her while she's changing out of her bathing suit." To that end, Rikard provided that she then "served simultaneous warrants to get all the technology, cell phones, computers, any type of electronic evidence and have it dumped." Rikard stated that her motive was the same when she filed the affidavit for the second warrant as it was when she filed the affidavit for the warrant that was found to be insufficient. The circuit court did not err in refusing to suppress the evidence. Affirmed. Abramson and Gladwin, JJ., agree.

PHILLIP T. WHITEAKER, Judge The Prescott School District ("the District") appeals a Nevada County jury award in favor of Patricia Steed on her breach-of-contract action. We have this case before us for the second time. We dismissed the first appeal for lack of a final, appealable order because it was unclear from the record that (1) Steed's Arkansas Teacher Fair Dismissal Act ("ATFDA") and outrage claims had been dismissed with prejudice; (2) that the one-year savings statute on those dismissals had not yet expired; and (3) that no Arkansas Rule of Civil Procedure 54(b) certificate had been entered. See Prescott Sch. Dist. v. Steed , 2017 Ark. App. 533, 2017 WL 4664550. After our dismissal, the District requested that the circuit court enter a Rule 54(b)certificate. The court granted the request in a stand-alone order on November 8, 2017. The court found that the savings statute would not run on Steed's remaining claims until December 9, 2017; that she had not shown any intent to refile those claims; and that forcing the District to wait until December 9, 2017, to restart the appeal process would result in an unnecessary waste of time for all parties. The District filed a notice of appeal from the Rule 54(b) certificate. We must once again dismiss the appeal for lack of a final, appealable order because the Rule 54(b) certificate in this case is insufficient in both form and substance. The sufficiency of a certificate pursuant to Rule 54(b) of the Arkansas Rules of Civil Procedure is a jurisdictional issue that this court has the duty to raise, regardless of whether it is raised by the parties. Kowalski v. Rose Drugs of Dardanelle, Inc. , 2009 Ark. 524, 357 S.W.3d 432. Rule 2(a)(1) of the Arkansas Rules of Appellate Procedure-Civil provides that an appeal may be taken from a final judgment or decree entered by the circuit court. Ark. R. App. P.-Civ. 2(a)(1) (2017). Although the purpose of requiring a final order is to avoid piecemeal litigation, a circuit court may certify an otherwise nonfinal order for an immediate appeal by executing a certificate pursuant to Rule 54(b). Gray v. White River Health Sys., Inc. , 2016 Ark. 73, 483 S.W.3d 293. A proper Rule 54(b) certificate grants finality to a judgment that is otherwise not final for appellate purposes. Rule 54(b)(1) requires that a proper certificate "shall appear immediately after the court's signature on the judgment." Ark. R. Civ. P. 54(b)(1) (2017) (emphasis added). The word "shall" when used in our rules of civil procedure is construed to mean that compliance is mandatory. Watkins v. City of Paragould , 2013 Ark. App. 539, 2013 WL 5512831. "The plain language of the rule therefore requires that the certificate be located on the judgment, after the court's signature." Id. at 3. Here, the Rule 54(b) certificate does not comply with our rules. "It was not attached to the court's order; nor did it reiterate the findings and conclusions of law from the order, or incorporate or replicate the order in any way." Id. at 2. Accordingly, the Rule 54(b) certificate before us in its current form is insufficient to vest jurisdiction with this court. The Rule 54(b) certificate is also inadequate because it does not provide a proper justification for its entry. Rule 54(b) provides, in pertinent part, that the circuit court may direct the entry of a final judgment "only upon an express determination supported by specific factual findings, that there is no just reason for delay and upon an express direction for the entry of judgment." Ark. R. Civ. P. 54(b) ; see also Holbrook v. Healthport, Inc. , 2013 Ark. 87, 2013 WL 776240. Furthermore, the court must execute a certificate "which shall set forth the factual findings upon which the determination to enter the judgment as final is based[.]" Ark. R. Civ. P. 54(b). Our supreme court has repeatedly held that "the rule requires the order to include specific findings of any danger of hardship or injustice that could be alleviated by an immediate appeal and to set out the factual underpinnings that establish such hardship or injustice." Gray , 2016 Ark. 73, at 3, 483 S.W.3d at 295 ; see also Kyle v. Gray, Ritter & Graham, P.C. , 2012 Ark. 268, 2012 WL 2149754. In Bushee v. Arkansas Department of Human Services , 2016 Ark. App. 339, at 4, 492 S.W.3d 559, 562, we further explained that the circuit court must "tie [its] findings to its conclusion." In other words, the certificate must "explain exactly what constitutes the hardship or injustice or explain how it could be alleviated by an immediate appeal." Id. The certificate executed by the circuit court is woefully inadequate. It merely provides that "there is no just reason for delay on the District's appeal of the judgment and because there is substantial likelihood of hardship or injustice which would be alleviated by an immediate re-appeal." The circuit court then stated that if it did not enter the Rule 54(b) certificate, "the District would have to wait until December 9, 2017 to essentially restart the appeal process, which is an unnecessary waste of time for all parties." The Rule 54(b) certificate was entered approximately one month before the expiration of the savings statute. Such a short time period is not a satisfactory reason for the entry of such an order. Thus, even if the certificate had complied with Rule 54(b)'s requirements as to form, we do not find this court's reasoning persuasive. Because the Rule 54(b) certificate is insufficient in both form and substance, we dismiss the appeal without prejudice. Dismissed without prejudice. Gruber, C.J., and Brown, J., agree.

COURTNEY HUDSON GOODSON, Associate Justice Appellant James Edward Whitney appeals the denial by the circuit court of his petition to proceed in forma pauperis with respect to Whitney's pro se petition for writ of habeas corpus. Now before us is Whitney's motion, entitled "Notice and Advisement," in which he seeks leave to file a brief on appeal that does not conform to the rules of this court. Because we find that it is clear from the record that further findings from the circuit court are necessary for our review, the matter is remanded to the circuit court. The motion to file a nonconforming brief is moot inasmuch a new briefing schedule will be set when the remand is returned. The initial order setting the initial filing fee was entered on June 29, 2017. It was set aside in an order entered April 9, 2018, in which the court held that Whitney had established that he was indigent, but he had failed to state a colorable cause of action in the habeas petition. For that reason, he was required to submit the filing fee for the petition. Arkansas Rule of Civil Procedure 72 (2017) governs our review of a decision to grant or deny a petition to proceed in forma pauperis in a civil case. Gardner v. Kelley , 2018 Ark. 212, 549 S.W.3d 349. Rule 72 conditions the right to proceed in forma pauperis in civil matters on indigency and the circuit court's satisfaction that the alleged facts indicate "a colorable cause of action." Ark. R. Civ. P. 72(c). Rule 72 mandates that the circuit court make a specific finding of indigency based on the petitioner's affidavit. Gardner , 2018 Ark. 212, 549 S.W.3d 349. Once satisfied that a petitioner is indigent, the circuit court must then be satisfied that the facts alleged by the petitioner state a colorable cause of action. Ark. R. Civ. P. 72(c). If the circuit court failed to make the findings of fact mandated by Rule 72(c), this court must remand unless we can determine from the record before us that the appellant's cause of action could not proceed as a matter of law. Gardner , 2018 Ark. 212, 549 S.W.3d 349. In Gardner , the circuit court found only that petitioner had failed to allege facts that would support a colorable cause of action because he did not raise a claim in the submitted petition that was cognizable in habeas proceedings. 2018 Ark. 212, 549 S.W.3d 349. Likewise, the order in this case denied Whitney pauper status on the basis that Whitney had failed to state a cognizable claim for habeas relief and had therefore failed to state a colorable cause of action. A colorable cause of action is a claim that is legitimate and may reasonably be asserted given the facts presented and the current law or a reasonable and logical extension or modification of it. Penn v. Gallagher , 2017 Ark. 283, 2017 WL 4683871. We pointed out in Gardner that the circuit court is required under Rule 72 to enter specific findings on a petitioner's indigency before addressing issues as to whether the petitioner had stated a colorable claim. 2018 Ark. 212, 549 S.W.3d 349. If the circuit court's order does not provide findings on a petitioner's indigent status, such an omission will render the order deficient under Rule 72. Id. Moreover, the circuit court is required by Rule 72 to explain the basis for its conclusion that a petitioner has failed to state a colorable cause of action by making specific findings that delineate why a petitioner failed to allege a cognizable claim for habeas relief. Id. Accordingly, we remand to the circuit court for a supplemental order on the in forma pauperis petition that contains adequate findings of fact and complies with Rule 72. The order must include findings on Whitney's indigency and address the basis for its conclusion that the habeas petition failed to set forth a cognizable claim. The order is to be entered, and the supplemental record containing the order is to be returned within thirty days from the date of this opinion. Once the supplemental record is received, a copy of it will be provided to Whitney and a new briefing schedule will be set for the appeal. Remanded for additional findings; motion moot. Kemp, C.J., and Wood, J., dissent. Before the court is Whitney's pro se motion to accept his tendered brief. I would grant his motion and accept his brief for filing. Currently, there are no briefs filed before this court. Nevertheless, the majority reviews the record for the circuit court's order and remands for the circuit court to make specific findings as to why Whitney's claim did not state a colorable cause of action. Because Rule 72 does not require the circuit court to make specific findings on its colorable-cause-of-action analysis, I dissent. Arkansas Rule of Civil Procedure 72(c) (2017) only requires the circuit court to make "a finding regarding indigency." It does not require the circuit court to make specific findings on whether the claim states a colorable cause of action. Although in Gardner this court remanded for a specific finding on whether the claim identified a colorable cause of action, we also remanded for findings on the petitioner's indigency. Gardner v. Kelley , 2018 Ark. 212, 549 S.W.3d 349 (Wood, J., dissenting). Therefore, Rule 72 dictated that we remand Gardner regardless. Id. Here, there is no other reason to remand. This court is creating a new requirement for circuit courts under Rule 72. If this court deems it necessary for circuit courts to make findings of fact on colorable causes of action, in addition to indigency, we should amend the rules of procedure. It is a more comprehensive process. For these reasons, I dissent. Kemp, C.J., joins in this opinion.

SHAWN A. WOMACK, Associate Justice Reginald Early was convicted of first-degree murder and aggravated robbery for his role in the 1988 killing of Myrtle Holmes. He received a sentence of life imprisonment for each conviction. Early was a minor at the time of the crime. We affirmed Early's convictions on direct appeal. Brown v. State , 315 Ark. 466, 869 S.W.2d 9 (1994). The present appeal stems from Early's petition for a writ of habeas corpus filed in the Lee County Circuit Court. Early made two arguments in this petition below: (1) that the United States Supreme Court's opinion in Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), rendered his life sentence for the nonhomicide offense of aggravated robbery unconstitutional because he was a minor at the time of the offense; and (2) that the Court's decisions in Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and Montgomery v. Louisiana , --- U.S. ----, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), forbids the sentence he received even for his homicide offense. The circuit court denied his petition. We affirm. Early has abandoned his second, Miller -based argument on appeal, and it is, in any case, without merit. As the circuit court correctly ruled, Miller acts to limit sentences of life without parole for juvenile homicide offenders only when the imposition of those sentences was mandatory . See Miller , 567 U.S. at 465, 132 S.Ct. 2455. The sentencing regime for first-degree murder at the time of Early's conviction did not mandate a life sentence, instead allowing for a term of ten to forty years or for a life sentence. Early does maintain his first argument on appeal. It is not, however, any more availing. Simply put, Graham has no application to Early's case. Though Early did receive a life sentence for a nonhomicide offense as a juvenile, Early's presentation of Graham skips the critical detail that the opinion applies only to "juvenile offender[s] who did not commit homicide. " Graham , 560 U.S. at 74, 130 S.Ct. 2011 (emphasis added). As the Court explained, "[j]uvenile offenders who committed both homicide and nonhomicide crimes present a different situation for a sentencing judge than juvenile offenders who committed no homicide." Id. at 63, 130 S.Ct. 2011. As it is uncontested that Early committed a homicide offense along with his nonhomicide offense, Graham is simply inapplicable. Finally, Early argues-by his own concession for the first time on appeal-that his sentences for first-degree murder and aggravated robbery are invalid because aggravated robbery was a lesser-included offense of first-degree murder. As Early's reliance for this argument on Brewer v. State , 277 Ark. 40, 639 S.W.2d 54 (1982), makes clear, Early's claim is premised on an alleged double-jeopardy violation. This court has already addressed an identical argument from Early in one of his previous habeas petitions. See Early v. Norris , CV-08-465, 2008 WL 2310967 (Ark. June 5, 2008) (unpublished per curiam). Citing Johnson v. State , 298 Ark. 479, 769 S.W.2d 3 (1989), we held that Early's claim of a double jeopardy violation as presented does not "raise a question of jurisdiction for purposes of habeas corpus relief." Early , 2008 WL 2310967, at *2. That holding remains unchanged; therefore this final argument of Early's also lacks merit. Affirmed. Special Justice Sam Terry joins. Hart, J., dissents. Wynne, J., not participating. The majority misunderstands the holding in Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). In Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), the Supreme Court stated the holding in a simple and straightforward way: "the [Eighth] Amendment also prohibits a sentence of life without the possibility of parole for a child who committed a nonhomicide offense." 567 U.S. at 470, 132 S.Ct. 2455. The Miller court further referred to the holding in Graham as a "flat ban on life without parole applied only to nonhomicide crimes. " 567 U.S. at 473, 132 S.Ct. 2455 (emphasis added). The rationale for the Supreme Court's decision in Graham is that embodied with its Eighth Amendment jurisprudence; the punishment for a crime "should be graduated and proportioned to [the] offense." Graham , 560 U.S. at 59, 130 S.Ct. 2011 (quoting Weems v. United States , 217 U.S. 349, 367, 30 S.Ct. 544, 54 L.Ed. 793 (1910) ). Accordingly, a sentence must not be grossly disproportionate to the crime. 560 U.S. at 59-60, 130 S.Ct. 2011. The Supreme Court has also determined that "there is a line 'between homicide and other serious violent offenses against the individual.' " 560 U.S. at 68, 130 S.Ct. 2011 (quoting Kennedy v. Louisiana , 554 U.S. 407, 438, 128 S.Ct. 2641, 171 L.Ed.2d 525 (2008) ). Accordingly, under the Eighth Amendment-proportionality analysis, even very serious nonhomicide offenses must be treated differently from homicide offenses. Id. The Graham court consequently decided that the prohibition on sentencing a juvenile offender to a life-without-parole sentence was a "categorical rule." 560 U.S. at 81, 130 S.Ct. 2011. Thus, while it is true that Early also was convicted of first-degree murder, Early's sentence for that crime stands on its own. Accordingly, rather than scouring Graham for dicta, the majority should have employed the following syllogism. Graham banned life sentences for juvenile offenders who commit nonhomicide offenses. Early committed aggravated robbery as a juvenile and received a life sentence for that crime. Aggravated robbery is a nonhomicide offense. Therefore, Early's life sentence for aggravated robbery is illegal on its face. I dissent. The majority seems to hold that once a juvenile commits a homicide, the Eighth Amendment does not limit any punishment that the State chooses to impose for a nonhomocide offense committed during the same criminal episode. Carried to its logical extreme, if a juvenile murdered a store clerk, the majority would uphold a life sentence for the offender if he stole a pack of gum on the way out of the store or even the next week. Presumably, the majority would hold that other punishments like branding, flogging, and even keelhauling would not be proscribed by the Eighth Amendment once the homicide threshold has been crossed.

WAYMOND M. BROWN, Judge Appellants E B Management Company, LLC (E B Management), and Ernie of Little Rock, Inc., d/b/a Ernie Biggs (Ernie Biggs), and Brandon Griffin appeal from the circuit court's order denying their motion for summary judgment, dismissing their complaint for declaratory judgment, and granting the cross-motion for summary judgment of appellees Houston Specialty Insurance Company (Houston Specialty), and Michael Scott Tice. On appeal, Ernie Biggs argues that the (1) circuit court erred in finding that the insurance policy was unambiguous and (2) allegations of the underlying complaint give rise to the possibility of coverage and trigger the appellee's duty to defend. We affirm. On August 29, 2015, Houston Specialty issued a commercial general liability (CGL) policy to E B Management. The policy stated the following: SECTION I - COVERAGES COVERAGE A - BODILY INJURY AND PROPERTY DAMAGE LIABILITY 1. Insuring Agreement a. We will pay those sums that the insured becomes legally obligated to pay as damages because of "bodily injury" or "property damage" to which this insurance applies. We will have the right and duty to defend the insured against any "suit" seeking those damages. However, a limited-assault-or-battery-coverage section stated that it modified the CGL policy: I. LIMITED ASSAULT AND BATTERY INSURING AGREEMENT A. We will pay all sums the Named Insured is legally obligated to pay as damages because of "injury", "bodily injury", "property damage" or "personal and advertising injury" arising out of an "assault or battery incident" by any insured. In the "EXCLUSIONS" section, the policy stated: The following exclusion is added to the COMMERCIAL GENERAL LIABILITY COVERAGE FORM: Injury, damage or loss, however caused, arising, directly or indirectly, out of: 1. Assault; 2. Battery; 3. Any "assault or battery incident". In the immediately following "DEFINITIONS" section, "assault and battery incident" is defined: "Assault and battery incident" means harmful or offensive contact between or among two or more persons including, but not limited to, apprehension or harmful or offensive contact or threats or harmful or offensive contact. An "assault or battery incident" may be: a. provoked or unprovoked by any person, and b. arise out of or result form any act or omission in connection with: (1) Prevention or suppression of an "assault or battery incident"; (2) Protection of persons or property; (3) Negligent hiring, supervision, retention or training or any "employee" of the Insured; or (4) Implementation of adequate security measures, through security personnel, surveillance or other security devices. On December 29, 2015, Griffin paid an entry fee into Ernie Biggs as well as twenty dollars to a piano player to GO on stage and play the drums during a song being played by that piano player. Stating that Griffin was not keeping the beat, the piano player stopped playing the song. Griffin asked for the return of his twenty dollars; the piano player declined. At some point near this time, Tice removed Griffin from the stage and threw Griffin out the door of the establishment. After being released by Tice, Griffin hit his head on the concrete sidewalk, causing injury. On April 5, 2016, Griffin filed a complaint against Ernie Biggs and Tice, asserting a cause of action for negligence under the doctrine of respondeat superior, because Tice "negligently decided to come on stage and jerk Plaintiff Brandon Griffin off the stage, negligently led him to the door with too much force, and negligently threw Plaintiff Brandon Griffin out the door causing Plaintiff Brandon Griffin to hit his head on the concrete sidewalk outside the front door." Griffin further alleged that he was "knocked unconscious, sustained a brain bleed causing a traumatic brain injury, and has permanent brain damage." Houston Specialty provided a defense to Ernie Biggs under the policy's assault-and-battery coverage and not its CGL coverage. In an amended complaint filed on July 31, 2017, Griffin added E B Management as a defendant in the case. He also modified his statement of the case to assert that he paid the piano player forty dollars and that the piano player offered return of only twenty dollars when he requested a refund. On August 20, 2017, E B Management and Ernie Biggs filed a complaint for declaratory judgment. Griffin answered in agreement on October 10, 2017. Houston Specialty answered in opposition on November 30, 2017, and sought dismissal of the complaint with prejudice. Griffin voluntarily nonsuited his negligence complaint at some point. He refiled his complaint of December 28, 2017, adding Little Rock Ambulance Authority d/b/a Metropolitan Emergency Medical Services (MEMS), Arch Insurance Company, and five John Doe insurance companies as additional defendants. A negligence claim was asserted against these entities due to MEMS's employees allegedly being "negligent in causing further injury to Plaintiff Brandon Griffin, with that negligence being imputed to" MEMS. On March 9, 2018, Houston Specialty filed a motion for summary judgment and a separately filed memorandum in support. It asserted that it had "already accepted coverage under the Policy's only applicable coverage afforded for "assault and battery incidents" subject to a $ 100,000 limit of liability, and owes no further obligation to [E B Management and Ernie Biggs] in connection with this lawsuit." Also on March 9, 2018, E B Management and Ernie Biggs filed a cross-motion for summary judgment and a separately filed brief in support. Therein, it stated: 5. The [Houston Specialty] Policy provides coverage under its Commercial General Liability Coverage Form (the "CGL Coverage Form"), which also has certain exclusions as more fully set forth in the Complaint accompanying brief in support of this motion. One such exclusion is for an "assault and battery incident," which is defined under the Policy and gives rise to limited Assault and Battery Coverage [ (A & B Coverage) ]. 6. The limits of insurance under the CGL Coverage Form are $ 1 million. The limits of insurance under the A & B Coverage are $ l00,000. Both limits of insurance are inclusive of the costs of defense or "eroding" limits. 7. The complaint filed in the Underlying Action alleges theories of recovery grounded exclusively in negligence and does not allege (nor purport to allege) any claim, injury, damage, or loss arising out of an "assault," "battery," or "assault or battery incident." 8. [Houston Specialty] has denied coverage under the Policy's CGL Coverage Form for the Underlying Action and refuses to provide them with either a defense or indemnification under that coverage part. [Houston Specialty] is instead providing a defense to the Underlying Action under the lower limits of the A & B Coverage[.] E B Management and Ernie Biggs sought entry of a declaratory judgment that Houston Specialty "has a duty to indemnify E B Management and Ernie Biggs in the Underlying Action under the provisions of the Policy's CGL Coverage Form." Following a hearing on July 20, 2018, the circuit court entered an order denying the appellants' motion for summary judgment, dismissing their complaint for declaratory judgment, and granting the appellee's cross-motion for summary judgment. Therein, they stated: [Appellants] contend that resolution of the coverage dispute should be driven by the allegations of the Amended Complaint, which contains numerous assertions that the injuries suffered by Brandon Griffin resulted from negligence on the part of Separate Defendant Tice and Separate Defendant Ernie Biggs Piano Bar, his employer. And, plaintiffs contend that the insurance contract is ambiguous so that the Court should construe the meaning of "assault and battery incident" and be guided by the intent requirement found in the torts of assault and battery. However, as previously stated, the Limited Assault and Battery Coverage Endorsement defines "assault and battery" for purposes of the insurance contract. The definition is clear and unambiguous. There is no need to employ rules of construction to discern the meaning of "assault and battery" for purposes of resolving the coverage dispute. Hence, the Court must focus on the incident or injury that gave rise to the claim, rather than the theory of liability asserted in the Amended Complaint. The action of Michael Tice (the Ernie Biggs bouncer who ejected Brandon Griffin from that establishment resulting in Griffin sustaining a closed head injury from the fall) was "harmful or offensive contact between ... two ... persons ..." regardless whether Michael Tice intended to commit the torts of assault or battery as defined by the Arkansas Model Jury Instructions (Civil). To arrive at a different conclusion would involve the Court imposing a meaning that is different from the plain and unambiguous definition of "assault and battery" stated in the policy. In effect, the Court would be re-writing the contract on terms contrary to the explicit and unambiguous definition the insurance carrier declared when the coverage was offered and which its insured accepted. This timely appeal followed. A circuit court may grant summary judgment only when it is clear that there are no genuine issues of material fact to be litigated and that the party is entitled to judgment as a matter of law. Once the moving party has established a prima facie case showing entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of its motion leave a material fact unanswered. Ordinarily, we view the evidence in the light most favorable to the party resisting the motion, and any doubts and inferences are resolved against the moving party. Where there are no facts in dispute, our review focuses on the circuit court's application of the law to the facts. We give the circuit court's conclusions of law no deference on appeal. The appellants essentially argue first that "assault and battery incident[,]" as defined by the policy, is "inherently unreasonable and, at a minimum, ambiguous" because it does not include an element of intent as is found in the legal definitions for assault and battery. They go on to argue second that because Griffin's complaint is for negligence-which lacks an intent element as legally defined-Houston Specialty should be required to defend Griffin's complaint under the CGL policy-with the higher policy limit-and not the A & B Coverage-with the lower policy limit. In making these arguments, appellants necessarily admit that "assault and battery incident" is defined by the policy. So the question is whether the given definition is ambiguous. The initial determination of the existence of an ambiguity rests with the circuit court. Language is ambiguous if there is doubt or uncertainty as to its meaning and it is fairly susceptible to more than one equally reasonable interpretation. The primary contract-interpretation rule is to give the parties' words the meaning that they intended them to have. And we must give the words their plain and ordinary meaning. Another settled rule is that the parties' intention must be gathered, not from particular words and phrases, but from the entire agreement. Prior to using contract-interpretation devices, the contract must be ambiguous. A court cannot make a contract for the parties but can only construe and enforce the contract that they have made. Moreover, we will not read into the contract words that are not there. And we will not rewrite a contract or approve additional terms that would, in effect, enforce a contract that the parties might have made but did not make. A plain reading of the contract shows that an "assault and battery incident" is a "harmful or offensive contact between or among two or more persons" without regard to the listed act or omission from which it arose. We hold that the circuit court did not err in finding that the definition provided for "assault and battery incident" is not ambiguous as there is not more than one equally reasonable interpretation of the definition. Griffin was physically removed from the stage by an employee of Ernie Biggs, removed from the establishment, and released onto the sidewalk where he landed and hit his head. These actions fit squarely within the policy's definition of "assault and battery incident" since being thrown out of an establishment cannot be reasonably found to be anything other than "harmful or offensive," and it occurred between two persons-Tice and Griffin. This court cannot find error in the circuit court's finding that such actions constituted an "assault and battery incident" as defined. As such is the case, Houston Specialty is required to defend under the A & B Coverage and not the CGL Coverage. No one argues that it failed to do so. It offered to settle the matter for the balance of the A & B Coverage. Appellants would have this court read an intent element into the contract that simply is not there in order to "give rise to the possibility of coverage" under the CGL coverage. The lack of inclusion of such an element, which Houston Specialty could have included in its definition but declined to do, does not make the term "inherently unreasonable" or ambiguous. And when the term is clearly defined, this court need not interpret it. Furthermore, to the extent that appellants argue that their asserted cause of action governs the substance of the case to be litigated over the defined terms of the contract, it is well settled that the language of the contract governs. Affirmed. Gladwin, Harrison, Switzer, and Vaught, JJ., agree. Abramson, Virden, Whiteaker, and Hixson, JJ., dissent. Griffin originally filed a complaint against Ernie Biggs but subsequently joined appellants' position on appeal. The CGL coverage had a policy limit of $ 1,000,000 while the assault-and-battery coverage had a policy limit of $ 100,000. In his April 3, 2017 response to a March 8, 2017 letter from Griffin's counsel proposing a settlement amount, Houston Specialty's counsel declined Griffin's offer as it "[could not] satisfy the portion of the demand in excess of the available Policy Limits[.]" It did, however, offer "the applicable liability limits that remain available on its Policy[.]" Lopez v. United Auto. Ins. Co. , 2013 Ark. App. 246, at 5, 427 S.W.3d 154, 157 (citing Mitchell v. Lincoln , 366 Ark. 592, 596, 237 S.W.3d 455, 458 (2006) ). Id. (citing Mitchell , 366 Ark. at 597, 237 S.W.3d at 458 ). Id. Id. (citing Aloha Pools & Spas, Inc. v. Employer's Ins. of Wausau , 342 Ark. 398, 403, 39 S.W.3d 440, 443 (2000) ). George v. Great Lakes Reinsurance (UK) PLC , 2015 Ark. App. 36, at 4, 454 S.W.3d 243, 245 (citing Harasyn v. St. Paul Guardian Ins. Co. , 349 Ark. 9, 75 S.W.3d 696 (2002) ; Chamberlin v. State Farm Mut. Auto. Ins. Co. , 343 Ark. 392, 36 S.W.3d 281 (2001) ). Id. (citing Morningstar v. Bush , 2011 Ark. 350, 383 S.W.3d 840 ). Lee v. Bolan , 2010 Ark. App. 209, at 7, 374 S.W.3d 718, 723 (citing Fryer v. Boyett , 64 Ark. App. 7, 978 S.W.2d 304 (1998) ; Wedin v. Wedin , 57 Ark. App. 203, 944 S.W.2d 847 (1997) ). Rausch Coleman Homes, LLC v. Brech , 2009 Ark. App. 225, at 5, 303 S.W.3d 456, 459 (citing Magic Touch Corp. v. Hicks , 99 Ark. App. 334, 260 S.W.3d 322 (2007) ). Prochazka v. Bee-Three Dev., LLC , 2015 Ark. App. 384, at 4, 466 S.W.3d 448, 452 (citing Singletary v. Singletary , 2013 Ark. 506, at 10, 431 S.W.3d 234, 240-41 ). Id. Id. Crittenden Cty. v. Davis , 2013 Ark. App. 655, at 8, 430 S.W.3d 172, 178 (citing Found. Telecomm., Inc. v. Moe Studio, Inc. , 341 Ark. 231, 16 S.W.3d 531 (2000) ). Id. at 9, 430 S.W.3d at 178 (citing Found. Telecomm. Inc., supra ). Id. (citing Seidenstricker Farms v. Doss , 372 Ark. 72, 270 S.W.3d 842 (2008) ). Id. (citing Rector-Phillips-Morse, Inc. v. Vroman , 253 Ark. 750, 489 S.W.2d 1 (1973) ). The A & B Coverage had "eroding limits" in which the costs of defending the claim were subtracted from the total amount permitted under the coverage. PC Scale, Inc. v. Roll Off Servs., Inc. , 2010 Ark. App. 745, at 5, 379 S.W.3d 649, 652-53 (citing Hot Spring Cty. Med. Ctr. v. Ark. Radiology Affiliates, P.A. , 103 Ark. App. 252, 288 S.W.3d 676 (2008) ; Cal. Civ. Code §§ 1636, 1638, and 1639 (Deering 2005)).

ROBIN F. WYNNE, Associate Justice Kevin Hackie appeals from an order of the Pulaski County Circuit Court dismissing his petition for judicial review of an administrative decision by Colonel William J. Bryant, in his capacity as the director of the Arkansas State Police, on the basis that the petition is barred by the state's sovereign immunity from suit. Col. Bryant cross-appeals from a portion of the order voiding his administrative decision. We reverse the order in its entirety and remand on direct appeal. The cross-appeal is dismissed as moot. Hackie, who is a California resident, submitted an application to the Arkansas State Police for a Class C - Combined Security and Investigations Company and Owner License in order to become licensed as a private investigator in Arkansas. Col. Bryant, as director of the Arkansas State Police, has the administrative duty of considering such applications for licensure. Ark. Code Ann. § 17-40-207(a)(3) (Repl. 2018). A background check revealed that Hackie had been convicted in California of felony forgery in December 1996 and felon in possession of a firearm in November 1999. Hackie served his sentences and received a certificate of rehabilitation from the State of California in 2007. Hackie's application was denied, and he filed an administrative appeal. A hearing officer with the Arkansas State Police recommended that Hackie's application be denied. Col. Bryant entered an administrative order finding that Hackie was ineligible to receive a license due to his prior convictions. Hackie petitioned the Pulaski County Circuit Court for review. Review of a decision to deny a license application is governed by the Arkansas Administrative Procedure Act (APA). Ark. Code Ann. § 17-40-355(a) (Repl. 2018). Col. Bryant filed a motion to dismiss the petition, contending that it was barred by the state's sovereign immunity. The circuit court granted the motion to dismiss. It also voided the administrative order entered by Col. Bryant based on lack of a procedure for review of the decision. Hackie filed a motion for new trial, which was denied. This appeal and cross-appeal followed. Article 5, § 20 of the Arkansas Constitution provides: "The State of Arkansas shall never be made defendant in any of her courts." A suit against the state is barred by the sovereign-immunity doctrine if a judgment for the plaintiff will operate to control the action of the state or subject it to liability. See id. Whether a party is immune from suit is purely a question of law and is reviewed de novo. Ark. Cmty. Corr. v. Barnes , 2018 Ark. 122, 542 S.W.3d 841. The issue before this court on direct appeal is whether the circuit court erred in concluding that Hackie's petition for review under the APA was barred by the state's sovereign immunity from suit. We hold that the circuit court's conclusion is erroneous. In Arkansas Oil & Gas Commission v. Hurd , 2018 Ark. 397, 564 S.W.3d 248, the circuit court dismissed a petition for review under the APA as barred by sovereign immunity, declared provisions of the APA unconstitutional, and declared the action of the Arkansas Oil & Gas Commission void ab initio. On appeal, this court held that the petition for review was not barred by the state's constitutional immunity because the petition merely sought review of the Commission's decision and stated no cause of action against the Commission. Under those circumstances, the Commission was not "made a defendant" for the purposes of article 5, § 20. 2018 Ark. 397, at 11, 564 S.W.3d at 255. Likewise, the petition for review in this case solely seeks review of Col. Bryant's administrative decision denying Hackie's application for a license. No cause of action is stated against Col. Bryant in the petition. As with the Commission in Hurd , Col. Bryant is acting in a quasi-judicial capacity and has no vested interest in the outcome of the appeal other than whether his decision to deny the application is upheld. In Hurd , the Commission adjudicated a dispute between two private litigants, whereas here, Col. Bryant was considering a license application, not an existing dispute. The distinction makes no difference, however, because it has been clear since well before the enactment of the APA that a proceeding to challenge an administrative decision by a state entity is not one against the state for purposes of article 5, § 20. The APA was enacted in 1967. Act of March 16, 1967, No. 434, 1967 Ark. Acts 996. In Hall v. Bledsoe , 126 Ark. 125, 189 S.W. 1041 (1916), Dr. E.P. Bledsoe filed a petition for writ of certiorari in the Pulaski County Circuit Court seeking review of a decision by the board of control for the charitable institution of the state to remove him from his position as superintendent of the State Hospital for Nervous Diseases. On appeal, this court rejected an argument by the board of control that the petition constituted an action against the state, stating: In the first place, it appears clear to us that this is not, as contended by counsel for appellants, a suit against the state. It is merely a review of the proceedings of a tribunal created by the state to perform certain functions; the one exercised in this instance being quasi judicial. The rights of the state are in no wise drawn into the controversy; for the proceeding merely raises the question of regularity and correctness of the action of the board in removing Dr. Bledsoe from the office which he held. The state is not sued, either directly or indirectly. That feature of the discussion may therefore be dismissed without further comment. 126 Ark. at 130, 189 S.W. at 1042 (emphasis supplied). In considering Hackie's application, Col. Bryant was simply carrying out the administrative duties prescribed to him by statute. As in Hall , the state was not sued, either directly or indirectly, by the filing of a petition for circuit-court review. The enactment of the APA did not alter this; it simply set out the procedure to be followed. Because the state's sovereign immunity from suit does not apply to this proceeding, the circuit court erred by dismissing the petition on that basis. The order on appeal is reversed in its entirety and the matter is remanded to the circuit court for further proceedings. Col. Bryant argues on cross-appeal that the circuit court erred by voiding his decision to deny Hackie's application. The circuit court did so under the erroneous assumption that the state's constitutional immunity barred this proceeding, leaving Hackie with no avenue to challenge Col. Bryant's decision. As it was demonstrated above that this is not the case, and the entire order has been reversed and remanded, the cross-appeal is dismissed as moot. Reversed and remanded on direct appeal; cross-appeal dismissed as moot. Baker, J., dissents.

JOSEPHINE LINKER HART, Associate Justice Petitioner Gilberto Martinez-Marmol, who was convicted in 2012 of three counts of rape, brings this petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis. He contends that he has two claims generally: (1) he was mentally incompetent and (2) trial counsel was ineffective; however, within each claim, Martinez-Marmol raises numerous arguments. Because Martinez-Marmol has not demonstrated, looking at the reasonableness of the allegations in the proposed petition and the existences of the probability of the truth of the allegations, that the proposed attack on the judgment is meritorious, the petition is denied. The trial court cannot entertain a petition for writ of error coram nobis after a judgment has been affirmed on appeal unless this court grants permission. Carner v. State , 2018 Ark. 20, 535 S.W.3d 634 (citing Newman v. State , 2009 Ark. 539, 354 S.W.3d 61 ). A writ of error coram nobis is an extraordinarily rare remedy. State v. Larimore , 341 Ark. 397, 17 S.W.3d 87 (2000). Coram nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Green v. State , 2016 Ark. 386, 502 S.W.3d 524. The function of the writ is to secure relief from a judgment rendered while there existed some fact that would have prevented its rendition if it had been known to the trial court and that, through no negligence or fault of the defendant, was not brought forward before rendition of the judgment. Carner , 2018 Ark. 20, 535 S.W.3d 634. The petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the record. Roberts v. State , 2013 Ark. 56, 425 S.W.3d 771. The writ is allowed under compelling circumstances to achieve justice and to address errors of the most fundamental nature. Id. A writ of error coram nobis is available for addressing certain errors that are found in one of four categories: (1) insanity at the time of trial, (2) a coerced guilty plea, (3) material evidence withheld by the prosecutor, or (4) a third-party confession to the crime during the time between conviction and appeal. Howard v. State , 2012 Ark. 177, 403 S.W.3d 38. A court is not required to accept the allegations in a petition for writ of error coram nobis at face value. Jackson v. State , 2017 Ark. 195, 520 S.W.3d 242. Mental-Incompetency Claims Martinez-Marmol contends that he was tried while mentally incompetent. Within this claim, Martinez-Marmol raises several arguments, including: that the records of the proceedings indicated that the trial judge acted with "fraudulent" and "deceitful" tactics of judicial misconduct regarding the issuance of transport orders and that the filing of the transport orders and hearing dates conflicted, resulting in "fraudulent" charges of time against speedy trial; that, because his IQ was not tested, there was a measurement of error in the evaluations and findings that he was fit to proceed and was able to appreciate the criminality of his conduct; that, due to the lack of an IQ test, his mental retardation was not considered, which was error; that the prosecutor committed prosecutorial misconduct by admitting false evidence because the prosecutor was aware that the "required IQ test" had not been conducted; and that the trial court should have conducted its own competency hearing or review where there existed conflicting evidence in the evaluations. To the extent Martinez-Marmol's allegations address his mental incompetence or insanity at the time of trial, that evidence was adduced at the time of trial and was available at trial. Martinez-Marmol makes no assertion that there was any evidence extrinsic to the record that was hidden from the defense or unknown at the time of trial. See Larimore v. State , 327 Ark. 271, 938 S.W.2d 818 (1997). Neither Martinez-Marmol's dissatisfaction with the trial court's failure to find that he was mentally incompetent, the evidence admitted at trial, nor the trial court's rulings constitute a showing of extrinsic evidence that would have produced a different verdict had it been known at trial. See Cloird v. State , 357 Ark. 446, 182 S.W.3d 477 (2004). Martinez-Marmol's assertions of prosecutorial misconduct for the admission of "false evidence" could have been raised at trial and are not allegations of material evidence that was withheld by the prosecutor. The petitioner seeking to reinvest jurisdiction in the trial court to proceed with a coram nobis petition bears the burden of presenting facts to support the claims for the writ because an application for the writ must make a full disclosure of specific facts relied on and not merely state conclusions as to the nature of such facts. Howard , 2012 Ark. 177, 403 S.W.3d 38. In the same vein, Martinez-Marmol's assertions of trial error that were raised at trial, or which could have been raised at trial, are not within the purview of a coram nobis proceeding. Carner , 2018 Ark. 20, 535 S.W.3d 634. Martinez-Marmol has failed to assert a meritorious ground for the writ. Ineffective Assistance of Counsel Martinez-Marmol contends his trial counsel was ineffective because counsel had a conflict of interest, failed to secure a defense and call witnesses, and failed to make reasonable efforts to procure the testimony of an alibi witness. As with his first claim, Martinez-Marmol raises several arguments within this generalized claim. The majority of the claims are not claims of ineffective assistance of counsel but include claims that the criminal information filed in his case is invalid and defective on its face because it lacks the prosecutor's signature and that the prosecutor engaged in prosecutorial misconduct (1) by issuing a defective arrest warrant thirty-two days after he was detained; (2) by maliciously prosecuting him based on the illegally obtained confession; (3) by withholding material evidence in violation of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), specifically police reports and statements of witnesses involved in the investigation; and (4) by presenting false and perjured testimony. Martinez-Marmol further argues that the prosecutor failed to establish that he knowingly and intelligently waived his Miranda rights when he gave his custodial statement in violation of his constitutional rights, a claim he raised in his direct appeal. He argues the confession was not transcribed by a qualified and certified interpreter, also another claim raised in his direct appeal. Martinez-Marmol also appears to contend that trial counsel should have "attack[ed] the process and procedure from which Detective Barrios obtained the alleged confession," by filing a motion to suppress his confession. To the extent that Martinez-Marmol has argued that his counsel was ineffective, those claims are not cognizable in a coram nobis proceeding under our state law. Coram nobis proceedings are not to be used as a substitute for raising claims of ineffective assistance of counsel under our postconviction rule. Griffin v. State , 2018 Ark. 10, 535 S.W.3d 261 (citing State v. Tejeda-Acosta , 2013 Ark. 217, 427 S.W.3d 673 ). Martinez-Marmol's claim regarding the defect in the criminal information could have been discovered or raised in the trial court. See Beard v. State , 269 Ark. 16, 598 S.W.2d 72 (1980) (Criminal information is sufficient if it names the defendant, the offense charged, the statute under which the charge was made, the court and county where the alleged offense was committed, and if it set forth the principal language of the statute and the asserted facts constituting the offense.). Claims that a petitioner either could have known, or knew, at the time of trial do not provide grounds for issuance of a writ of error coram nobis, and Martinez-Marmol has not demonstrated that it should issue. Howard , 2012 Ark. 177, 403 S.W.3d 38. To the extent Martinez-Marmol raises a claim of a Brady violation regarding the prosecution withholding material evidence, his claim fails because he does not allege sufficient facts in support. To establish a Brady violation, three elements are required: (1) the evidence at issue must be favorable to the accused, either because it is exculpatory or because it is impeaching; (2) that evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensued. Jones v. State , 2017 Ark. 334, 531 S.W.3d 384. When a petitioner alleges a Brady violation as the basis for his or her claim of relief in coram nobis proceedings, the facts alleged in the petition must establish that there was evidence withheld that was both material and prejudicial such as to have prevented rendition of the judgment had it been known at the time of trial. Id. Evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Id. Here, Martinez-Marmol's allegation is conclusory and without any factual basis, making it insufficient to demonstrate that material evidence was withheld by the State in violation of Brady . Again, the burden is on the petitioner in the application for coram nobis relief to make a full disclosure of specific facts relied upon and not to merely state conclusions as to the nature of such facts. McCullough v. State , 2017 Ark. 292, 528 S.W.3d 833, reh'g denied (Dec. 14, 2017). Martinez-Marmol has failed to establish that there is a reasonable probability that the judgment of conviction would not have been rendered or would have been prevented had specific exculpatory evidence been disclosed at his trial. Martinez-Marmol's allegations regarding the defective arrest warrant, the use of the illegally obtained confession, and failure to establish that he knowingly and intelligently waived his Miranda rights are also not cognizable in a coram nobis proceeding. Martinez-Marmol does not make any assertion that the facts surrounding the issuance of the warrant or his confession were facts that he was unaware of at the time of trial. See generally Smith v. State , 2018 Ark. 37, 2018 WL 773711. Simply put, Martinez-Marmol fails to demonstrate a meritorious attack on the judgment because he failed to establish an error of fact extrinsic to the record that could not have been raised in the trial court. Id. Petition denied. Martinez-Marmol's conviction and sentence were affirmed by the Arkansas Court of Appeals. Martinez-Marmol v. State , 2013 Ark. App. 243, 2013 WL 1682631. Martinez-Marmol asserted that the prosecutor made improper comments during opening statements, voir dire, and closing statements; made improper comments on his confession; and presented fabricated evidence-all claims that could have been raised at trial or on direct appeal if a contemporaneous objection had been made to the comments, as they do not involve evidence extrinsic to the record. Cloird , 357 Ark. 446, 182 S.W.3d 477. To the extent Martinez-Marmol raises an allegation of judicial bias regarding any discrepancy in the trial court's transport orders and the orders setting hearings, Martinez-Marmol's claims are not extrinsic to the record and do not demonstrate an actual bias. Brown v. State , 2012 Ark. 399, 424 S.W.3d 288. Martinez-Marmol's claims here are nothing more than claims of trial court error, which are not cognizable in a coram nobis proceeding. See Carner , 2018 Ark. 20, 535 S.W.3d 634 ; see also State v. Wilmoth , 369 Ark. 346, 255 S.W.3d 419 (2007) (speedy-trial violation is not a defect sufficient to void a judgment). In his direct appeal, the court of appeals noted the fact that Martinez-Marmol did not object to the detective's testimony on the grounds that the testimony was illegally obtained. Martinez-Marmol , 2013 Ark. App. 243, at 2.

RHONDA K. WOOD, Judge This is an appeal from the Rogers Board of Education's decision upholding a half-day suspension of a five-year-old child who repeatedly used the "F-word." The father filed a writ of mandamus and writ of prohibition in circuit court. The circuit court granted the Board's motion to dismiss, and the father appeals that decision. We affirm. Northside Elementary School's principal suspended J.S. for a half-day after J.S. cussed on the playground. The school had previously warned J.S. on two occasions to not use profanity. On this third occasion, the school principal called J.S.'s father and told him to come pick up J.S. because he was suspended for the remainder of the school day. J.S.'s father, Ken Swindle, an attorney, refused. Instead, that same afternoon, he filed a complaint in circuit court for a writ of mandamus and writ of prohibition. Since the father did not pick up J.S., J.S. served his half-day suspension in the principal's office. The Rogers School Board later held a hearing and upheld the suspension. After the hearing, Swindle amended his complaint and asked the circuit court to order the Board to delete any reference of the suspension from J.S.'s file and prohibit the Board "from suspending five-year-old children without adult intervention." The Board filed a motion to dismiss, and the court granted the motion. Swindle appealed. First, the Board contends that Swindle's appeal is moot because J.S. has already served his suspension. Generally, appellate courts do not review moot issues; a case becomes moot when any judgment rendered would have no practical legal effect on a then-existing legal controversy. Warren Wholesale Co., v. McLane Co. , 374 Ark. 171, 286 S.W.3d 709 (2008). However, there are two exceptions to the mootness doctrine: (1) issues that are capable of repetition, but that evade review, and (2) issues that raise considerations of substantial public interest which, if addressed, would prevent future litigation. Id. Our supreme court has held that "we view the right of a student to appeal to the school board a suspension from school made by a teacher as an issue of public importance and one subject to repetition." Richie v. Bd. of Educ. of Lead Hill Sch. Dist. , 326 Ark. 587, 590, 933 S.W.2d 375, 377 (1996). By extension, the right to appeal the school board's decision to circuit court is also subject to repetition but evading review. Accordingly, this issue falls under an exception to the mootness doctrine, and we can reach the merits of Swindle's appeal. A court's review of school discipline issues is very limited. E.g. , Wynne Pub. Schs. v. Lockhart , 72 Ark. App. 24, 32 S.W.3d 47 (2000). Courts have no power to interfere with school boards when directing a school's operation unless the boards clearly abuse their discretion. Springdale Bd. of Educ. v. Bowman by Luker , 294 Ark. 66, 740 S.W.2d 909 (1987). Further, a court does not have the power to substitute its judgment for that of a school board and will only do so if the board's judgment was arbitrary, capricious, or contrary to law. Id. The burden is on those charging such an abuse to prove it by clear and convincing evidence. Id. In dismissing Swindle's complaint, the circuit court considered the student discipline policy and portions of the hearing in front of the Rogers School Board. Therefore, the Board's motion to dismiss is converted into one for summary judgment because the circuit court considered matters outside of the pleadings. Robbins v. Johnson , 367 Ark. 506, 241 S.W.3d 747 (2006). Summary judgment is proper when a claiming party fails to show that there is a genuine issue as to a material fact and the moving party is entitled to judgment as a matter of law. Hamilton v. Allen , 100 Ark. App. 240, 267 S.W.3d 627 (2007). In this case, there were no disputed material facts. Swindle has not presented any evidence that J.S. did not use profane language, and the actions of the school and school board are not contradicted. Therefore, summary judgment was appropriate. We next turn to whether the circuit court was correct in ruling that the Board did not abuse its discretion or act arbitrarily. When J.S. used the "F-word," the school used a scale from less-to-more severe consequences. The first time, he was warned by his teacher that the word was inappropriate. The second time, a letter was sent home to be signed by his parents. The third time, the principal suspended him for the rest of the day. Clearly, J.S. refused to modify his language, and more severe consequences for his repeated cussing and insubordination were appropriate. When fashioning the suitable consequence, the school adhered to its school discipline policy. This action is consistent with the Arkansas Code, which allows school boards to "suspend or expel any student from school for violation of the school district's written discipline policies." Ark. Code Ann. § 6-18-507(b) (Supp. 2011). According to the policy, suspension is the minimum punishment for using profane language, for repeated violations of school rules, and for insubordination. It was reasonable for the Board to enforce this established policy and suspend J.S., especially when J.S. had been warned, twice, that using the "F-word" was inappropriate. Swindle's request for relief-that the school remove any reference to J.S.'s suspension and never suspend him again-lacks foundation in any source of law. Swindle has not cited a single case that would support such a vast judicial overreach into matters left, rightly so, in the discretion of locally elected school boards. See Fortman v. Texarkana Sch. Dist. No. 7 , 257 Ark. 130, 514 S.W.2d 720 (1974). Our case law promotes the exact opposite view-the judiciary should stay out of school discipline matters unless there is a clear abuse of discretion: The legal principle is also firmly established that school authorities may expel or suspend from school any pupil who disobeys a reasonable rule or regulation. School officials are clothed with considerable discretionary authority in determining whether or not a rule has been violated, and, in the event they conclude that a violation has occurred, they also have discretionary authority in determining the nature of the penalty to be imposed-providing it is not arbitrary or unreasonable. Fortman , 257 Ark. at 133, 514 S.W.2d at 722. Our supreme court and this court have reversed trial courts that interfere with school disciplinary matters. See, e.g. , Bowman , supra (reversing chancery court's injunction that barred school from enforcing expulsion); Lockhart , supra (reversing court's injunction that reinstated expelled student); Cross Cnty. Sch. Dist. v. Spencer , 75 Ark. App. 421, 58 S.W.3d 406 (2001) (same). The facts of this case do not justify judicial interference, and the circuit court was correct when it granted summary judgment in the Board's favor. Affirmed. Walmsley and Whiteaker, JJ., agree.

RHONDA K. WOOD, Associate Justice Appellant Ricky Wayne White appeals the trial court's denial of his petition to correct an illegal sentence. In 1991, White was sentenced as a habitual offender to seventy-five years' imprisonment for aggravated robbery. Because we agree that White's petition failed to state a basis for relief under either Arkansas Code Annotated section 16-90-111 (Repl. 2016) or Arkansas Rule of Criminal Procedure 37.1 (1991), we affirm. White's motion for permission to file a belated reply brief is therefore moot. This court affirmed White's conviction for aggravated robbery in White v. State , 310 Ark. 200, 833 S.W.2d 771 (1992). The mandate issued July 24, 1992. White filed the petition that is the subject of this appeal on May 24, 2017, which is almost twenty-five years after the mandate issued. White's petition alleged that his sentence was illegal because two of the four prior convictions used at trial in support of the habitual-offender status were unconstitutionally admitted into evidence. This claim was based on White's contention that one of the prior convictions did not reflect that he was represented by counsel and one was for a misdemeanor crime that had been committed after the aggravated robbery. The trial court's order discussed how there were multiple grounds upon which White would not be entitled to relief. One of those was that the petition failed to state a basis for relief under the statute because it did not raise a claim that the judgment was illegal or facially invalid, and instead, the claim was one that the judgment had been illegally imposed. The court found that because the claim was one that the judgment had been illegally imposed, the petition must be treated as one under Rule 37. As such, the court found that the petition was untimely and successive. Although the trial court found that it did not therefore have authority to grant relief, it addressed the claims that the two previous convictions were erroneously admitted into evidence and determined that the convictions had not been erroneously admitted. This court will not reverse a denial of postconviction relief unless the trial court's findings are clearly erroneous. Fischer v. State , 2017 Ark. 338, 532 S.W.3d 40. A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Id. Questions of law are reviewed de novo. State v. Johnson , 2010 Ark. 77, 360 S.W.3d 104. A judgment of conviction is presumed valid. Coleman v. State , 257 Ark. 538, 518 S.W.2d 487 (1975). Arkansas Code Annotated section 16-90-111(a) provides authority to a trial court to correct an illegal sentence at any time. Jenkins v. State , 2017 Ark. 288, 529 S.W.3d 236. An illegal sentence is one that is illegal on its face. Id. A sentence is illegal on its face when it is void because it is beyond the trial court's authority to impose and gives rise to a question of subject-matter jurisdiction. Id. A sentence imposed within the maximum term prescribed by law is not illegal on its face. Id. The time limitations on filing a petition under section 16-90-111(a)(b)(1) alleging that the sentence was imposed in an illegal manner are superseded by Rule 37.2(c), although the portion of section 16-90-111 that provides a means to challenge a sentence at any time on the ground that the sentence is illegal on its face remains in effect. Gardner v. State , 2017 Ark. 230. White challenged whether there was sufficient evidence regarding two of his prior convictions and whether they were properly admitted. These are not challenges to the facial validity of his sentence. This court has held that to challenge the sufficiency of the evidence in support of a trial court's finding on the defendant's habitual-offender status, a contemporaneous objection is necessary to preserve the issue for review on appeal. Withers v. State , 308 Ark. 507, 825 S.W.2d 819 (1992). Like a challenge to the sufficiency of the evidence to convict, a challenge to the sufficiency of the evidence to support a finding on the defendant's habitual-offender status does not implicate the facial validity of the judgment. See Edwards v. Kelley , 2017 Ark. 254, 526 S.W.3d 825. The Judgment and Commitment Order reflects that White was convicted of aggravated robbery, a class Y felony, and sentenced as a habitual offender to seventy-five years' imprisonment, which was within the statutory range under Arkansas Code Annotated section 5-4-501(b)(1) (1987). This is not facially illegal. Because White did not plead facts to support a finding that his sentence was facially invalid and only raised a claim challenging the legality of the imposition of his sentence, his claim was one that was cognizable under Rule 37.1 and subject to the time limitations set forth in Rule 37.2. See Jenkins , 2017 Ark. 288, 529 S.W.3d 236. Under Arkansas Rule of Criminal Procedure 37.2(c) (1991), a petition claiming relief under the rule must be filed in the circuit court within sixty days of the date the mandate issued if the judgment was appealed. Because the petition at issue was filed far outside of that time limitation, almost twenty-five years, the trial court did not err in finding that his petition was untimely. Because we conclude the only timely challenge before the court was the facial challenge to his sentence and the circuit court did not err in denying relief, as such we need not consider the remaining arguments. Affirmed; motion moot. Hart, J., dissents. Josephine Linker Hart, Justice, dissenting. Until the briefing is complete, all that this court has pending before it is Mr. White's motion to file a belated reply brief. In his motion, Mr. White asserts that the tardy filing of his reply brief was the result of his not receiving the State's appellee brief until November 12, 2017, and cessation of prison-mail services over the Thanksgiving Day holiday, which kept his outgoing mail at the prison. This is clearly good cause to allow a belated filing of a reply brief. Because we do not allow an appellant to raise new issues in a reply brief, a reply brief can only help us decide a case. It is generally our practice to be lenient and accept a tardy reply brief-unless it is submitted by an incarcerated person. I respectfully dissent.

RHONDA K. WOOD, Associate Justice Larry Walther, as the Director of the Arkansas Department of Finance and Administration (DFA), appeals the circuit court's order granting FLIS Enterprises, Inc.'s (Burger King) motion for summary judgment in an action seeking relief from a tax assessment pursuant to Arkansas Code Annotated section 26-18-406 (Supp. 2017). DFA argues the circuit court erroneously construed the relevant statutes and promulgated rules to find that Burger King was only required to pay taxes on the wholesale value of the food ingredients removed from stock as opposed to the retail value of the meals. We hold the circuit court's interpretation was in error. Accordingly, we reverse and dismiss. Burger King purchases individual food ingredients used to create its menu items from third-party suppliers. The ingredients are stored separately and utilized only as needed to complete specific orders. At each location, Burger King employs managers to "oversee the operations of [its] restaurants." As an additional "perk," Burger King allows its managers to consume one meal (manager meal) per shift at no cost to the manager. The manager selects the meal from the same menu available to Burger King's customers. DFA conducted a sales-and-use-tax audit on Burger King's sixteen central-Arkansas restaurants for a three-year period and determined it underreported taxes by failing to account for the manager meals. Burger King did not dispute owing taxes on the manager meals, only the basis for the calculation. Burger King paid the full amount assessed but filed a protest with DFA's Hearing and Appeals Office. Following a hearing, the administrative law judge sustained the full assessment. Subsequently, Burger King filed a complaint in circuit court for judicial relief seeking a refund of the taxes paid pursuant to provisions of the Arkansas Tax Procedure Act. The parties filed cross-motions for summary judgment and agreed that all the material facts were undisputed. After a hearing, the circuit court entered an order granting Burger King's motion for summary judgment and reversing the decision of the administrative law judge. DFA appealed. For reversal, DFA argues the circuit court erroneously granted Burger King's motion for summary judgment because (1) withdrawals from stock of processed goods are subject to tax at the full retail value, and (2) the circuit court erroneously relied upon law and argument not raised by the parties. Additionally, DFA contends that the circuit court erred by not following the principle of stare decisis and that Burger King failed to meet its burden of proof. Part I. Sovereign Immunity After briefing was completed, DFA filed a notice under Arkansas Supreme Court Rule 5-1 that it intended to cite the recent decision of Board of Trustees v. Andrews , 2018 Ark. 12, 535 S.W.3d 616 and Koonce v. Mitchell , 341 Ark. 716, 19 S.W.3d 603 (2000). This court ordered supplemental briefing by both parties to allow them an opportunity to fully brief their positions on the impact, if any, of Andrews on this matter. The general rule is that we will not address an issue raised for the first time on appeal. See Technical Servs. of Ark., Inc. v. Pledger , 320 Ark. 333, 896 S.W.2d 433 (1995). DFA did not raise the issue of sovereign immunity at the trial court level nor is it asserting it as a defense on appeal. Our discussion would normally end there. However, due to this court's previous language that "subject-matter jurisdiction based on sovereign immunity is an issue that is always open and it is the duty of an appellate court to raise the issue on its own volition," DFA claims that the court could, on its own initiative, dismiss the case on sovereign immunity citing Dep't of Fin. & Admin. v. Staton , 325 Ark. 341, 942 S.W.2d 804 (1996). The parties cite five cases in which this court has referenced this duty. In each cited case, with one exception, this court used this language but did not actually raise and address sovereign immunity sua sponte. See id. ; Carson v. Weiss , 333 Ark. 561, 972 S.W.2d 933 (1998) ; Ark. Dep't of Fin. & Admin. v. Tedder , 326 Ark. 495, 932 S.W.2d 755 (1996) ; and Pitcock v. State , 91 Ark. 527, 121 S.W. 742 (1909). As such, the language expressed in those cases was dicta as it was extraneous to the pending matters. In the exception, McCain v. Crossett Lumber Co. , 206 Ark. 51, 174 S.W.2d 114 (1943), the court sua sponte raised and discussed sovereign immunity and determined at the end of the opinion that it was inapplicable. However, the order of the sovereign immunity discussion within the opinion is significant because the language contradicts the court's treatment of the issue. Subject-matter jurisdiction is a "threshold issue" that the court must consider first-not last. Hunter v. Runyan , 2011 Ark. 43, at 8, 382 S.W.3d 643, 648. Therefore, if the McCain court truly considered the issue as one of subject-matter jurisdiction, it should have considered it at the outset of the opinion. In other words, McCain said one thing but did another. McCain , 206 Ark. at 61, 174 S.W.2d at 120. Subject-matter jurisdiction is the "court's authority to hear and decide a particular type of case." Hunter , 2011 Ark. 43, at 10, 382 S.W.3d at 649. It relates more to the nature of the matter than to the identity of the litigants. Whether the court has jurisdiction over a suit against the State of Arkansas or whether the defendant has raised a defense of sovereign immunity, are not matters of subject-matter jurisdiction. Although sovereign immunity certainly has jurisdictional qualities, this court historically has treated it like an affirmative defense that must be preserved. See Ark. Lottery Comm'n v. Alpha Mktg. , 2012 Ark. 23, at 6, 386 S.W.3d 400, 404 (concluding that the trial court's failure to rule on sovereign immunity prevented appellate review). For example, our rules permit interlocutory appeals from a denial of a motion to dismiss based on the defense of sovereign immunity. Ark. R. App. P. Civ. 2(a)(10). However, we will not consider such an interlocutory appeal without a clear ruling from the circuit court on sovereign immunity. See id. While one could contend that requiring a specific ruling gives us appellate jurisdiction over interlocutory appeals, if one also accepted the proposition that sovereign immunity deprives the circuit court of subject-matter jurisdiction, remanding cases for sovereign immunity rulings would be illogical. This is why continuing to treat sovereign immunity as an affirmative defense is consistent with our precedent. Therefore, we hold that sovereign immunity is not a matter of subject-matter jurisdiction, as it is not a limit on the court's authority to hear a particular type of case. As the parties did not raise the issue below, it is not proper for us to address it further in this case. Although counsel and others may desire guidance on the impact of Andrews, it would be imprudent of this court to delve into the constitutional doctrine further without full development before the circuit court and when neither party is asserting it. Part II. Tax Assessment As to the merits of the case, we review a circuit court decision in a tax case de novo. Baker Refrigeration Sys., Inc. v. Weiss , 360 Ark. 388, 201 S.W.3d 900 (2005). We also review issues of statutory interpretation de novo, as it is this court's responsibility to determine what a statute means. Ryan & Co. AR, Inc. v. Weiss , 371 Ark. 43, 263 S.W.3d 489 (2007). Pursuant to Arkansas Supreme Court Rule 1-2(b)(6) (2017), we have jurisdiction over this appeal because it involves a substantial question of law concerning the construction and interpretation of statutes and the rules of an administrative agency. The "cardinal" rule of statutory interpretation is to give effect to the intent of the legislature. Miller v. Enders , 2013 Ark. 23, 425 S.W.3d 723. To do so, we first construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in the common language. Id. We construe the statute so that no word is left void, superfluous, or insignificant; and meaning and effect are given to every word in the statute. Ozark Gas Pipeline Corp. v. Ark. Pub. Serv. Comm'n , 342 Ark. 591, 29 S.W.3d 730 (2000). When the language of the statute is plain and unambiguous, there is no need to result to the rules of statutory construction, but when the meaning is not clear, we look to "the subject matter, the object to be accomplished, the purpose to the served, the remedy provided, the legislative history, and other appropriate means that shed light on the subject." Miller , 2013 Ark. 23, 425 S.W.3d 723. In general, a sales tax is imposed on all sales of tangible personal property unless an exemption applies. Ark. Code Ann. § 26-52-301 (Repl. 2014). Arkansas provides an exemption for purchasers regularly engaged in the business of reselling items purchased, the "sales-for-resale" exemption. Ark. Code Ann. § 26-52-401(12) (Supp. 2017). This provides them with relief from paying taxes on such purchases and instead requires payment of taxes upon resale. The "sales-for-resale" exemption also applies to goods purchased for subsequent use in processing or preparing different products for sale. Ark. Code Ann. § 26-52-401(12)(B)(i) (Supp. 2017). However, if the purchaser who received the exemption later withdraws the product from stock and does not resell it, Arkansas Code Annotated section 26-52-322 (Repl. 2014) specifies that tax must be collected. The parties agree that Burger King qualifies for the "sale-for-resale" exemption, that the manager meals were a withdrawal from stock, and that Burger King was required to report and remit taxes on the withdrawal. At issue here, and DFA's first point on appeal, is whether the tax for the manager meals should be assessed on the wholesale cost paid by Burger King to purchase the individual food ingredients or the retail sales price paid by customers to purchase identical meals. Ark. Code Ann. § 26-52-322 reads, in pertinent part, as follows: (b)(2) For purposes of calculating the gross receipts tax or the compensating use tax ... the gross receipts or gross proceeds for a withdrawal from stock is the value of any goods, wares, merchandise, or tangible personal property withdrawn. (c) The Director of the Department of Finance and Administration may promulgate rules to implement this section. Ark. Code Ann. § 26-52-322(b)(2), (c). Both parties agree that the proper calculation for the tax Burger King should remit for the meals it gives to the managers is the "value of goods ... withdrawn." However, because there is nothing in the language of the statute to indicate whether "value" refers to the wholesale value or the retail value, we turn to the rules promulgated by DFA since the General Assembly expressly provides it with the authority to promulgate rules. Ark. Code Ann. § 26-52-322(c). DFA promulgated the Arkansas Gross Receipts Tax Rule GR-18(D). The parties devote their arguments to whether section (1) or section (2) applies. The rule provides, in pertinent part, as follows: 1. Withdrawal of purchased goods. If a seller has a retail permit and purchases goods from its suppliers without paying tax to those suppliers claiming the "sale for resale" exemption and the seller withdraws the merchandise from stock and gives the merchandise to customers or other third parties, or uses the merchandise itself, then the value of this merchandise is a part of the seller's gross receipts or gross proceeds and the seller must remit the tax on the purchase price of the goods paid by the seller. 2. Withdrawal of manufactured or processed goods. (a) A business that manufactures or produces products and sells the products to third parties or at retail may at times transfer title to certain of those products to itself or give the products to another person or entity. The business should report and remit tax on the sales price of the products rather than the value of the raw materials used to manufacture or produce the products. Ark. Admin. Code 006.005.212-GR-18(D)(1), (2) (Westlaw 2017). Section (1), which is the more general provision, states that if "purchased goods" are bought for resale and later withdrawn from stock, the tax assessed when the goods are removed and given away is the wholesale price paid by the seller. However, section (2) specifies that if the goods withdrawn from stock and given away were "manufactured or produced" by the seller, then the tax assessed is based on what would have been the sales price of the goods. Therefore, the question becomes whether the goods withdrawn are produced. Burger King contends that section (D)(2) cannot apply because the manager meals could not be accurately described as "processed," as used in title of the section or "produced" goods, which is the term used within the text of the section. To "produce" simply means "to create," and "processed" simply means "to put through the steps of a prescribed procedure." Black's Law Dictionary (10th ed.); American Heritage College Dictionary (3rd ed.) . Either definition is consistent with Burger King's description of its process. Burger King's complaint states that it prepares the food fresh each day and does not store fully-compiled menu items to be withdrawn and sold. Instead, when a customer orders a meal, Burger King gathers the necessary ingredients and uses them to fill the order. Its complaint explains, "[s]imilarly, when a manager meal is consumed by a manager, [Burger King] withdraws the necessary ingredients from its stock and uses them to create the manager meal." Thus, Burger King uses the Black's Law Dictionary definition of the word "produce" to explain how it "creates" the manager meals. In its complaint, Burger King refers to the free benefit it provides its managers as a "meal." Burger King states that it "creates" a meal from the ingredients it has purchased and provides that "meal" to the manager free of charge. It is not providing the manager the individual ingredients, and as such, it cannot claim it is proper to assess taxes on the individual ingredients. As the manager receives the meal, a produced good, section (D)(2) applies and the tax is assessed on the retail value of the meal. In short, it is the prepared meal that is withdrawn from stock and given to the manager, not the individual ingredients. To hold otherwise and accept Burger King's argument that the calculation should be based on the value of the individual ingredients would lead to absurd results. See Clark v. Johnson Reg'l Med. Ctr. , 2010 Ark. 115, 362 S.W.3d 311 ("This court will not engage in statutory interpretations that defy common sense and produce absurd results."). Consider the practical effect of Burger King's argument: Burger King would have to (1) determine the value of one slice of tomato, one slice of cheese, one bun, an uncooked hamburger patty, several pieces of chopped lettuce, and count out how many frozen french fries or raw onion slices each manager took from stock (and that is not even attempting to determine how to assess the amount of condiments withdrawn from stock) and (2) add them all together to reach a value. Even Burger King did not attempt this calculation when it arrived at its proposed tax assessment in its complaint; rather, it used thirty-two percent of the retail price paid by customers for meals. Burger King argues that application of section (D)(2) would lead to absurd results as it could decide to charge its managers .01 cents and then only remit tax on that amount. It contends the State of Arkansas would subsequently receive much less taxes then it would if it applied its wholesale value argument. This is true. Businesses certainly have the ability to make decisions that impact the amount of taxes the State of Arkansas collects. One only needs to consider the drastic price cuts businesses make on Black Friday. The sales tax collected is reduced when a business reduces the price of each item. This does not mean this court should attempt to regulate business or protect the state's sales tax intake through its decisions. Our role is simply to interpret the law. The language of section (D)(1) clearly accounts for the goods given away in the condition they were purchased. If the language also encompassed products combined and processed subsequent to the initial purchase, the inclusion of subsection (2) would be superfluous. We do not interpret language to render one section dispensable. Ozark Gas Pipeline Corp. , 342 Ark. 591, 29 S.W.3d 730 (2000) ; Surplusage Canon, Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts 174-79 (2012). For additional support of its argument, DFA cites a previous Arkansas sales-tax case. Tony & Susan Alamo Found., Inc. v. Ragland , 295 Ark. 12, 746 S.W.2d 45 (1988). There, the Alamo Foundation's for-profit restaurant provided prepared meals to associates of the foundation. Although the arguments on appeal were not identical, certain facts are similar enough to shed light on previous litigation involving the same subject matter. Like Burger King, the Alamo restaurant had a retail sales tax permit to sell prepared meals to customers and provided the same meals to its associates without a monetary exchange. On appeal, Alamo argued that if the foundation wants to give its goods and services away, the goods and services should not be taxed. The court disagreed. While the specific tax exemption argued by Alamo was not the "sale-for-resale" exemption, the court opined that Alamo "overlook[ed] the fact that Arkansas law exempts these organizations from paying the sales tax on their purchases, not from collecting it on their sales," and held that "all the transfers should be taxed at retail value." Id. at 17, 746 S.W.2d 45. Crucial basics are the same: both Alamo and Burger King elected to go through the process of giving away a prepared meal. These were business decisions left to their discretion. Just as the Alamo Foundation was required to pay taxes on the full retail value of the meals it provided, Burger King also should be required. This is a case of statutory construction where the undefined term in the language of the statute led to the promulgation of the rule of an administrative agency as the statute provided. In this case, DFA's interpretation is consistent with the plain language of the agency rule. As such, it was an error for the circuit court to find that the proper assessment should be based on the wholesale value of the ingredients of the manager meals and to grant Burger King summary judgment. As we find that DFA is correct on its first point on appeal and we reverse, we need not address the additional points on appeal. Reversed and dismissed. Goodson, J., and Special Justice Lee Watson join in this opinion. Wynne, J., joins in this opinion as to Part II and concurs. Womack, J., joins in this opinion as to Part I and concurs in part and dissents in part. Baker and Hart, JJ., dissent. Kemp, C.J., not participating. The dissent contends it was poor judgment to order supplemental briefing. However, once the State filed its notice regarding sovereign immunity, allowing the parties the opportunity to brief the issue was prudent as this is their case. We overturned a separate portion of Staton but not the case in its entirety. Andrews , 2018 Ark. 12 at 11-12, 535 S.W.3d 616. The dissent claims that we are treating the legislative branch differently than the executive and judicial branches. The dissent confounds waiver and preservation. As a general matter, we do not raise constitutional issues for the parties-whether the party be from the legislative, executive, or judicial branch. This court simply is saying it will not raise the defense of sovereign immunity for the State. In Andrews , the State had raised the issue to the circuit court, and therefore, it was preserved for our review on appeal. We depart from Black's Law Dictionary for "processed" because in the legal context it is related to service of a judicial complaint. According to the International Food Information Council Foundation, an example of "processed" food is "food(s) prepared in quick-service restaurants." Understanding Our Food (2010), http://www.foodinsight.org/sites/default/files/what-is-a-processedfood.pdf Per the stipulated facts of both parties, the aggregate wholesale price paid annually by Burger King to purchase all of its food and food ingredients is approximately thirty-two percent (32%) of the aggregate retail price paid annually by Burger King's customers to purchase meals. As noted, the Alamo case was decided in 1988; however, Ark. Code Ann. § 26-52-322 was not codified until 2009.

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COURTNEY HUDSON GOODSON, Associate Justice Appellants 3 Rivers Logistics, Inc.; Heath Holbert; Amy Holbert; Gary Moss; Renee Moss; Judy McSwain; Richard F. Allen, Jr., and Judy Allen, as Trustees of the 2013 Allen Family Revocable Trust; and Richard F. Allen, Jr., appeal the dismissal of their nuisance lawsuit against appellee Brown-Wright Post No. 158 of the American Legion, Department of Arkansas, Inc. (the Legion). For reversal, appellants argue that the circuit court relied on an inapplicable statute to find that the Legion enjoyed immunity from appellants' lawsuit and erred in not finding the immunity statute unconstitutional. We affirm. The Legion is a charitable organization that owns forty acres located approximately five miles south of DeWitt in rural Arkansas County. Appellant 3 Rivers Logistics, Inc., is a trucking-logistics business operating on a tract of land adjacent to, and to the east of, the Legion property. Appellants Gary Moss and Renee Moss own land adjoining the Legion land to the north. Appellants Heath Holbert and Amy Holbert own a house and land to the north of the Moss property. Appellant Judy McSwain lives in a house on property across a roadway to the west of the range. Appellant Richard F. Allen owns and operates an outboard motor-repair shop on the same tract of land as the McSwain house. Appellants Richard F. Allen and Judy Allen, as trustees of the 2013 Allen Family Revocable Trust, own land to the north of the outboard-repair business. The Legion began building a shooting range that included areas designated for the use of pistols, rifles, and shotguns. On November 2, 2016, after shooting began at the range, appellants filed a complaint alleging that the noise from the range activities interfered with the use and enjoyment of their land and constituted a nuisance. Appellants sought a preliminary injunction preventing the Legion from using the range, and additionally, or alternatively, damages for the decrease in the value of their land. In response, the Legion filed a motion to dismiss. The Legion argued that appellants' complaint should be dismissed because it was based only on noise, and Arkansas Code Annotated § 16-105-502 (Repl. 2016) grants shooting ranges immunity for noise-based lawsuits if the range is in compliance with local noise-control ordinances. The circuit court held a hearing on January 11, 2017, to consider the Legion's motion to dismiss. The parties agreed that no local governmental unit had enacted a noise-control ordinance when the Legion began constructing and operating the range. Appellants argued that the Legion was not entitled to immunity because no local noise ordinance existed. Appellants cited Yates v. Kemp , 979 N.E.2d 678 (Ind. App. 2012), in support of their argument that the Legion was entitled to immunity only if it complied with a local noise ordinance in existence. The Legion argued that Jenkins v. Clayton , 273 Ga. 439, 542 S.E.2d 503 (2001), and Sara Realty, LLC v. Country Pond Fish & Game Club, Inc. , 158 N.H. 578, 972 A.2d 1038 (2009), offer guidance because the courts in those cases found immunity for shooting ranges pursuant to statutes like ours, even in the absence of a local noise-control ordinance. The circuit court determined that the Arkansas immunity statute was similar to the Georgia and New Hampshire statutes, and not like the Indiana statute, which affirmatively required the existence of a local noise ordinance. The circuit court therefore granted the Legion's motion to dismiss. Appellants filed a timely appeal. Appellants first argue that Arkansas Code Annotated § 16-105-502 (Repl. 2016) does not apply in this instance because the language of the statute requires the existence of a local noise ordinance with which to comply. The Legion argues that the plain language of the statute demonstrates that a shooting range is entitled to immunity from noise-based lawsuits as long as it is not in violation of any local noise ordinances. Because this is an issue of statutory interpretation, our review is de novo. DeSoto Gathering Co., LLC v. Hill , 2017 Ark. 326, 531 S.W.3d 396. However, this court will accept a circuit court's interpretation of the law unless it is shown that the court's interpretation was in error. Cockrell v. Union Planters Bank , 359 Ark. 8, 194 S.W.3d 178 (2004). In relevant part, Arkansas Code Annotated § 16-105-502 provides: (a) Notwithstanding any other provision of law to the contrary, a person who operates or uses a sport shooting range in this state shall not be subject to civil liability or criminal prosecution for noise or noise pollution resulting from the operation or use of the sport shooting range if the sport shooting range is in compliance with noise control ordinances of local units of government that applied to the sport shooting range and its operation at the time the sport shooting range was constructed and began operation. (b) A person who operates or uses a sport shooting range is not subject to an action for nuisance, and no court of the state may enjoin the use or operation of a sport shooting range on the basis of noise or noise pollution, if the sport shooting range is in compliance with noise control ordinances of units of local government that applied to the sport shooting range and its operation at the time the sport shooting range was constructed and began operation. We begin our analysis by applying the basic rules of statutory construction. The primary rule of statutory construction is to give effect to the intent of the legislature. Ark. Dep't of Corr. v. Shults , 2017 Ark. 300, 529 S.W.3d 628. We construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. We reconcile statutory provisions in order to make them consistent, harmonious, and sensible and to give effect to every part. Keep Our Dollars in Independence Cty. v. Mitchell , 2017 Ark. 154, 518 S.W.3d 64. When the language of a statute is plain and unambiguous, this court determines legislative intent from the ordinary meaning of the language used. Foster v. Foster , 2016 Ark. 456, 506 S.W.3d 808. Applying the principles set forth above, we conclude that the language of the statute clearly expresses the General Assembly's intent to give a shooting range immunity from noise-based lawsuits if it is not in violation of local noise ordinances at the time it was constructed and began operation. If there are no ordinances regulating noise, the range is in compliance and the immunity statute applies. We find support for our conclusion not only in the language of our statute, but also from the Georgia Supreme Court's construction of a similar immunity statute. Georgia's statute, like ours, provided shooting ranges with immunity from noise-based lawsuits when they complied with local noise ordinances. The Georgia statute, OCGA § 41-1-9(c) provided, in pertinent part: No sport shooting range ... shall be subject to any action for civil or criminal liability, damages, abatement, or injunctive relief resulting from or relating to noise generated by the operation of the range if the range remains in compliance with noise control or nuisance abatement rules, regulations, statutes, or ordinances applicable to the range on the date on which it commenced operation. Although another court's construction of a statute that is similar to ours is not binding, it may be persuasive. Jones v. Brinkman , 200 Ark. 583, 139 S.W.2d 686 (1940). The Georgia Supreme Court applied a statutory-construction rule much like ours and concluded: Ascribing ordinary signification to the words of this statute, as we are bound to do, OCGA § 1-3-1, we think its plain, commonsense meaning is as defendants suggest: A sporting clay course cannot be deemed a sound generating nuisance if it does not run afoul of local noise control ordinances (or ordinances aimed at the regulation of a sport shooting range). Jenkins, 542 S.E.2d at 503. In reversing the judgment against the owners of the shooting range, the Georgia Supreme Court stated: Jenkins County has not enacted an ordinance pertaining to noise control in general, or sport shooting ranges in particular. Thus, it cannot be said that defendants' sporting clay course failed to comply with noise control ordinances on the date on which it commenced operation. It follows that defendants' course could not be enjoined as a noise generating nuisance, and that the trial court erred in ruling otherwise. Id. Similarly, the people of Arkansas County have chosen not to enact a noise-control ordinance. The Indiana Court of Appeals decision in Yates also lends support to our conclusion. There, the Indiana immunity statute specifically required an existing local noise-control law or ordinance for immunity to apply: A person who owns, operates, or uses a shooting range is not liable in any civil or criminal matter relating to noise or noise pollution that results from the normal operation or use of the shooting range if the shooting range complies with a law or an ordinance that applied to the shooting range and its operation at the time of the construction or initial operation of the shooting range, if such a law or ordinance was in existence at the time of the construction or initial operation of the shooting range. Indiana Code § 14-22-31.5-6 (1996) (emphasis added). In keeping with the Indiana statute, the Indiana Court of Appeals concluded that the owners of a shooting range were not entitled to immunity from a nuisance lawsuit because no local noise ordinance existed. Yates , 979 N.E.2d at 681. Clearly, the Indiana statute differed significantly from ours in that it provided immunity only "if such a law or ordinance was in existence at the time of the construction or initial operation of the shooting range." The express language of the Indiana statute affirmatively required an existing local-noise ordinance, unlike Arkansas Code Annotated § 16-105-502, which does not. We give the words of our statute their ordinary and usually accepted common meanings, and we will not add words to convey a meaning that is not there. Our Comty., Our Dollars v. Bullock , 2014 Ark. 457, 452 S.W.3d 552. Contrary to appellants' argument, our interpretation does not render any words meaningless. Furthermore, the statute clearly expresses the will of the General Assembly to modify the common law of nuisance to reserve to local governments the power to regulate noise from shooting ranges. We conclude that the Legion is entitled to immunity as long as the shooting range did not violate any local noise ordinances existing at the time it was constructed and began operation. Because no local noise control ordinances existed at the time the shooting range in this case began operation, the Legion was in compliance with local noise control ordinances, and the circuit court was correct in finding that the Legion was entitled to immunity. We are not persuaded by appellants' argument that applying our statute here would yield absurd results. Although appellants argue the range could operate 24 hours a day and that ranges of any size could be built in any area, Arkansas County retains broad authority to enact zoning regulations. See Ark. Code Ann. § 14-17-209 (Repl. 2013) (declaring that county planning boards have authority to regulate uses of land and matters "necessary to the health, safety, and general welfare of the county"). Conversely, interpreting the statute to require a range owner to obtain passage of a local noise ordinance when one did not exist previously would be absurd. Likewise, we are not persuaded by appellants' argument that requiring an existing noise-control ordinance before granting immunity protects the parties' reliance interest. A party seeking to build a sport shooting range is just as entitled to rely on the lack of a noise-control ordinance as it is to rely on an existing noise-control ordinance. In either situation, the party building the range is relying on the ordinances of the local governmental unit. Appellants next argue that, even if Arkansas Code Annotated § 16-105-502 does apply, it violates their constitutionally protected property rights. The Arkansas Constitution provides that property rights are elevated "before and higher than any constitutional sanction." Ark. Const. art. 2 § 22. Appellants argue that immunizing the Legion from a noise-based lawsuit constitutes a taking because the Legion's activities disrupt the use of their property and reduce its value. We disagree. We are required to construe a statute as constitutional if possible. Hobbs v. Jones , 2012 Ark. 293, 412 S.W.3d 844. All statutes are presumed to be constitutional, and this court resolves all doubts in favor of constitutionality. Landmark Novelties, Inc. v. Ark. State Bd. of Pharmacy , 2010 Ark. 40, 358 S.W.3d 890. The party challenging a statute's constitutionality has the burden of proving that it is unconstitutional. Id. The taking alleged in this case is the appellants' diminished enjoyment of the property because of noise from the shooting range and the reduction in the value of the appellants' property because of the noise. Appellants allege that the government action effecting the taking is the immunity granted by Arkansas Code Annotated § 16-105-502. However, the mere fact that a partial use of one's property is burdened by regulation does not amount to a taking. J.W. Black Lumber Co., Inc. v. Ark. Dep't of Pollution Control & Ecology , 290 Ark. 170, 717 S.W.2d 807 (1986). Additionally, we have held that regulations that affected less than all of the use or value of property were not takings. For instance, in Barrett v. Poinsett County , 306 Ark. 270, 811 S.W.2d 324 (1991), a solid waste disposal authority acquired an option to purchase land for a price of $750,000 for use as a landfill. Poinsett County opposed the landfill and enacted a zoning ordinance to prevent the property from being used as such. The transaction was never completed because of the zoning ordinances and later changes in state law. The landowners argued that Poinsett County's actions were a taking. We held that no reduction in the value of the property had been shown, and the landowners demonstrated only a lessening of one profitable use of the property. Also, in Winters v. State , 301 Ark. 127, 782 S.W.2d 566 (1990), we concluded that mandatory quarantine regulations did not amount to a taking when the owner of a $1,000 horse would be forced to sell it for $200 if the owner could not comply with the regulations. Similarly, here, the burden on appellants' use of their property, and its diminution in value, is insufficient to rise to the level of a taking. In sum, because the people of Arkansas County have not enacted any noise-control ordinances that applied to the shooting range, the Legion is in compliance, and the immunity statute applies. Therefore, the circuit court correctly determined that the immunity provisions of Arkansas Code Annotated § 16-105-502 bar appellants' noise-based lawsuit. The circuit court also correctly found in this case that the immunity statute did not constitute a taking under the Arkansas Constitution, and therefore did not err in dismissing appellants' complaint. Affirmed. Baker, Hart, and Wynne, JJ., dissent. Josephine Linker Hart, Justice, dissenting. I dissent. The majority holds that Ark. Code Ann. § 16-105-502 grants Appellee immunity from Appellants' nuisance suit. Ark. Code Ann. § 16-105-502 grants immunity from noise-based nuisance suits to sport shooting ranges that are built to comply with local noise control ordinances. The language of this statute necessarily contemplates there being a local noise control ordinance establishing how much noise the local government considers acceptable, i.e., something for a sport shooting range to comply with. There is no such noise control ordinance in Arkansas County where Appellee operates its sport shooting range, so the statute should not apply to Appellee. The basic rule of statutory construction to which all other interpretive guides must yield is to give effect to the intent of the legislature. Leathers v. Cotton , 332 Ark. 49, 52, 961 S.W.2d 32, 34 (1998) (citing Mountain Home Sch. Dist. v. T.M.J. Builders , 313 Ark. 661, 664, 858 S.W.2d 74, 76 (1993) ). Where the language of a statute is plain and unambiguous, we determine legislative intent from the ordinary meaning of the language used. Id. The first rule in considering the meaning of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. The statute should be construed so that no word is left void, superfluous, or insignificant; and meaning and effect must be given to every word in the statute if possible. Locke v. Cook , 245 Ark. 787, 793, 434 S.W.2d 598, 601 (1968). Ark. Code Ann. § 16-105-502 provides in relevant part as follows: (a) Notwithstanding any other provision of law to the contrary, a person who operates or uses a sport shooting range in this state shall not be subject to civil liability or criminal prosecution for noise or noise pollution resulting from the operation or use of the sport shooting range if the sport shooting range is in compliance with noise control ordinances of local units of government that applied to the sport shooting range and its operation at the time the sport shooting range was constructed and began operation. (b) A person who operates or uses a sport shooting range is not subject to an action for nuisance, and no court of the state may enjoin the use or operation of a sport shooting range on the basis of noise or noise pollution, if the sport shooting range is in compliance with noise control ordinances of units of local government that applied to the sport shooting range and its operation at the time the sport shooting range was constructed and began operation. Ark. Code Ann. § 16-105-502(a) - (b) (emphasis added). The italicized portion of this excerpt describes the condition necessary for a sport shooting range to enjoy immunity from a noise-based nuisance suit. In order for a sport shooting range to enjoy the immunity, the sport shooting range must comply with noise control ordinances-but not just any noise control ordinances, as reflected by the underlined portion. The statute specifies that the noise control ordinances must have "applied to the sport shooting range" when it began operation. In this case, there was no local noise control ordinance to do the necessary "applying." If the legislature intended for this statute to immunize a sport shooting range even when there is no local noise ordinance that would "apply" to that sport shooting range, the legislature would have omitted the underlined portion. The New Hampshire Supreme Court reached the same conclusion when interpreting a similar statute in Sara Realty v. Country Pond Fish and Game Club, Inc. , 158 N.H. 578, 972 A.2d 1038, 1041 (2009) ("We read this condition to apply if and only if such regulation exists."). The majority's interpretation stands for the proposition that any sport shooting range that exists or comes to exist in any place where there is not already a noise-control ordinance in effect is forever immune from noise-based nuisance suits without limitation. Again, if this is what the legislature intended, the legislature would have simply said so. Because the majority's decision renders the underlined portion of the statute above meaningless, I dissent. Baker and Wynne, JJ., join. "Sport shooting range" or "range" means an area designated and operated for the use of rifles, shotguns, pistols, silhouettes, skeet, trap, black powder, or any other similar sport shooting. Ark. Code Ann. § 16-105-501(3) (Repl. 2016). The circuit court's first order addressed only the immunity statute, but it later entered a supplemental order rejecting appellants' constitutional argument. The Legion also cites Sara Realty , supra , in support of its proposed reading of our statute. There, the New Hampshire statute provided immunity for ranges if they complied with noise control ordinances, or if they were in operation before the date the complaining party acquired its land. The range owner in that case was granted immunity, but the New Hampshire Supreme Court said the ordinance-based immunity provision did not apply in the absence of a noise control ordinance. However, the court cited Jenkins , and later said both provisions of the immunity statute operated as independent bars to the nuisance lawsuit. Because of these internal inconsistencies, Sara Realty is of dubious persuasive value. This, of course, would not mean that Appellee is automatically liable for Appellants' nuisance suit; it would only mean that Appellee is not immune from noise-based nuisance suits as a general matter. Appellants would still have to actually establish the elements of their nuisance claim, which would require proof that Appellee is engaging in conduct "that unreasonably interferes with the use and enjoyment of the lands of another and includes conduct on property that disturbs the peaceful, quiet, and undisturbed use and enjoyment of nearby property." Aviation Cadet Museum, Inc. v. Hammer , 373 Ark. 202, 208, 283 S.W.3d 198, 203 (2008).

(Judge confers with Juror 12.) THE COURT : Okay, that was easy. That's it. Thanks. Okay, see you-all tomorrow. In one of our rebriefing orders, see Thompson v. State , 2014 Ark. 79, 2014 WL 689049 (per curiam), we directed appellate counsel to address this issue of a possible ex parte communication, which then prompted counsel to seek a hearing in the circuit court regarding this issue. Thereafter, on May 20, 2014, counsel filed in this court a supplemental record from that hearing. The supplemental record reflects that a juror asked the circuit judge whether jurors could ask witnesses questions, to which the circuit judge responded, "No." As previously pointed out, Thompson now argues that he is entitled to a reversal of his conviction because of the circuit court's failure to hold a posttrial hearing. As the State points out, however, a posttrial hearing was held and the nature of the exchange between the circuit judge and the jury was stated on the record. It is now clear that the exchange was in no way prejudicial to Thompson. This court noted in Barritt v. State , 372 Ark. 395, 400-01, 277 S.W.3d 211, 215 (2008), as follows: Both this court and the United States Supreme Court have noted that a "conclusion that an unrecorded ex parte communication between trial judge and juror can never be harmless error ignores [the] day-to-day realities of courtroom life and undermines society's interest in the administration of justice." Howard v. State , 367 Ark. 18, 35, 238 S.W.3d 24, 38 (2006) (quoting Rushen v. Spain , 464 U.S. 114, 119 [104 S.Ct. 453, 78 L.Ed.2d 267] (1983) ). In this case, not only was the exchange between the circuit judge and the juror inconsequential, but also Thompson never objected when the circuit judge allowed the juror to approach and ask the question or anytime thereafter. Thompson now argues, however, that this court should consider his argument pursuant to the second Wicks exception and cites to this court's decision in Bell v. State , 223 Ark. 304, 265 S.W.2d 709 (1954), which was the basis for the second exception announced in Wicks , 270 Ark. 781, 606 S.W.2d 366. In Bell , the State argued that the appellant had not timely objected after learning that the circuit judge had engaged in such a communication. This court rejected the State's argument and explained as follows: It is true that we have said many times in appeals in criminal cases that error assigned in the Motion for New Trial must be predicated on an objection or exception made at the time the error was committed. This is the rule: but we have recognized an exception to it, particularly in the matter of improper argument. In Wilson v. State , 126 Ark. 354, [359,] 190 S.W. 441, 443 [1916], in discussing the absence of any objection to an improper argument, we said: 'Appellant cannot predicate error upon failure of the court to make a ruling that he did not at the time ask the court to make, unless the remarks were so flagrant and so highly prejudicial in character as to make it the duty of the court on its own motion to have instructed the jury not to consider the same.' In the case at bar, we hold that the conversation between the Trial Judge and the juror falls within the purview of the quoted language above: the Judge, having committed the error, should have corrected it on his own motion, and the accused was not obligated to make a formal objection because the error had already been committed, and an objection could not have erased the damage that had been done. The remarks that the Trial Judge made to the jury were the same as ink upon snow, and no amount of admonitions or cautions could have erased from the minds of the jury what the Trial Judge had said. Id. at 310, 265 S.W.2d at 712 (footnotes omitted). The court in Bell ultimately concluded that the error was prejudicial and warranted a reversal of the appellant's conviction. The instant case is simply not controlled by this court's decision in Bell . In the Bell case, the circuit judge entered the jury room during deliberations to ask the jury if they were going to reach a verdict before a certain time and then answered juror questions about possible sentencing implications. The communication in this case in no way rises to the level of the exchange in Bell . We simply do not have a record before us that demonstrates prejudice or warrants reversal of Thompson's conviction. Arkansas Supreme Court Rule 4-3(i) (2014) requires this court to review the record for all errors prejudicial to an appellant in all cases when the sentence is death or life imprisonment. Pursuant to that review, we have discovered an error that occurred during sentencing. The record reflects that at the close of the case, the circuit court instructed the jury, in relevant part, as follows: REQUESTED INSTRUCTION NO. 13, AMCI 2d 1001 Edward Lee Thompson III is charged with the offense of capital murder. To sustain this charge, the State must prove beyond a reasonable doubt: First: That Edward Lee Thompson III, acting alone or with one or more other persons, committed the crime of aggravated robbery; and Second: That in the course and in furtherance of that crime, or in immediate flight therefrom, Edward Lee Thompson III, or a person acting with him, caused the death of Keye Richard Ratley under circumstances manifesting extreme indifference to the value of human life. REQUESTED INSTRUCTION NO. 14, AMCI 2d 1001-A As part of the charge of capital murder, the State contends that the death of Keye Richard Ratley occurred during the commission or attempted commission of the crime of aggravated robbery. To prove aggravated robbery, the State must prove beyond a reasonable doubt: First: That with the purpose of committing a theft, Edward Lee Thompson III, or an accomplice, employed or threatened to immediately employ physical force upon another; and Second: That Edward Lee Thompson III, or an accomplice, was armed with a deadly weapon or represented by words or conduct that he was armed with a deadly weapon. If the crime of aggravated robbery is not proved to have been committed or attempted by Edward Lee Thompson III, he is not guilty of capital murder. REQUESTED INSTRUCTION NO. 15, AMCI 2d 301 Edward Lee Thompson III is charged with capital murder. This charge includes the lesser offense of murder in the first degree. You may find the defendant guilty of one of these offenses or you may acquit him outright. If you have a reasonable doubt of the guilt of the defendant on the greater offense, you may find him guilty only of the lesser offense. If you have a reasonable doubt as to the defendant's guilt of both offenses, you must find him not guilty. REQUESTED INSTRUCTION NO. 16, AMCI 2d 302 If you have a reasonable doubt of the defendant's guilt on the charge of capital murder, you will then consider the charge of murder in the first degree. REQUESTED INSTRUCTION NO. 17, AMCI 2d 1002 To sustain the charge of murder in the first degree, the State must prove beyond a reasonable doubt: First: That Edward Lee Thompson III, acting alone or with one or more other persons, committed the crime of robbery; and Second: That in the course and in furtherance of that crime or attempt or in immediate flight therefrom, Edward Lee Thompson or a person acting with him, caused the death of Keye Richard Ratley under circumstances manifesting extreme indifference to the value of human life. REQUESTED INSTRUCTION NO. 18, AMCI 2d 1002-A As part of the charge of murder in the first degree, the State contends that the death of Keye Richard Ratley occurred during the commission or attempted commission of the crime of robbery. To prove robbery, the State must prove beyond a reasonable doubt: That with the purpose of committing a theft, Edward Lee Thompson III, or an accomplice, employed or threatened to immediately employ physical force upon another. If the crime of robbery is not proved to have been committed or attempted by Edward Lee Thompson III, he is not guilty of murder in the first degree. REQUESTED INSTRUCTION NO. 20, AMCI 2d 1201 Edward Lee Thompson III is charged with the offense of aggravated robbery of Tyler Ratley. To sustain this charge, the State must prove the following things beyond a reasonable doubt: First: That with the purpose of committing a theft, Edward Lee Thompson III, or an accomplice, employed or threatened to immediately employ physical force upon Tyler Ratley, and Second: That Edward Lee Thompson III, or an accomplice, was armed with a deadly weapon or represented by words or conduct that he was armed with a deadly weapon. REQUESTED INSTRUCTION NO. 22, AMCI 2d 301 Edward Lee Thompson III is charged with aggravated robbery. This charge includes the lesser offense of robbery. You may find the defendant guilty of one of these offenses or you may acquit him outright. If you have a reasonable doubt of the guilt of the defendant on the greater offense, you may find him guilty only of the lesser offense. If you have a reasonable doubt as to the defendant's guilt of both offenses, you must find him not guilty. Thus, the jury was instructed that in order to convict on the charge of capital-felony murder, the State was required to prove that Thompson committed the underlying felony of aggravated robbery. But, the jury was also instructed on the lesser-included offense of first-degree murder, which required the State to prove that Thompson committed the underlying felony of robbery. The court also instructed the jury on the charge of aggravated robbery, its lesser-included offense of robbery, as well as on the two theft charges. Additionally, the State sought firearm enhancements on both the murder and the robbery, and the jury was so instructed. Following jury deliberations, the circuit court read the jury verdicts aloud. The jury found Thompson not guilty of capital murder but guilty of first-degree murder. However, the jury found that the State had not proved that Appellant employed a firearm as a means of committing the murder. The circuit court then announced that the jury had found Thompson guilty of aggravated robbery but not guilty of using a firearm to commit the aggravated robbery. The following then occurred: THE COURT : (Reading) We, the Jury, find Edward Lee Thompson III guilty of robbery. I don't actually need this one. This is a lesser of the aggravated robbery. So I'll just consider this moot. Is that okay with the attorneys? [ DEFENSE COUNSEL ]: Your Honor, may I approach? THE COURT : You-all approach. [ DEFENSE COUNSEL ]: Your Honor, I guess I would argue that it should be robbery and not aggravated robbery since the lesser-since murder one says robbery is the underlying part of that charge is robbery, not aggravated robbery. [ THE STATE ]: Guilty of aggravated robbery as to Tyler, but not guilty of the capital. So I am going to ask for the murder first and the aggravated robbery conviction. THE COURT : Okay.... I'm going to find that they found him guilty of aggravated robbery and that this jury verdict on plain robbery is moot and unnecessary. [ DEFENSE COUNSEL ]: Can I just make one more argument, Your Honor? Just for the record that I would argue that they found him guilty of robbery and that's the underlying felony and therefore he should not be found guilty of the aggravated robbery because of the fact that they-it corresponds with the murder charge. THE COURT : Okay, thank you. This colloquy demonstrates that what trial counsel actually argued was that the State could not convict Thompson on the charge of aggravated robbery, when it was the underlying felony for capital murder, the charge the jury acquitted on. Thompson's trial counsel further argued that the felony corresponded to the murder charge, and because the jury found Thompson guilty of first-degree murder, the underlying felony for which he could also be convicted was robbery. We find this argument to be meritorious. It is well settled under our sentencing statutes that a person charged with felony murder, either capital or first degree, may be convicted of, and sentenced for, both the murder and the underlying felony. See Ark. Code Ann. § 5-1-110(d)(1)(A), (C) (Repl. 2013). Those provisions state as follows: (d)(1) Notwithstanding any provision of law to the contrary, a separate conviction and sentence are authorized for: (A) Capital murder, § 5-10-101, and any felony utilized as an underlying felony for the capital murder; ... (C) Murder in the first degree, § 5-10-102, and any felony utilized as an underlying felony for the murder in the first degree. This court has recognized that circuit courts have specific authority to sentence a defendant for the underlying felony supporting a capital-murder charge, as well as the felony of capital murder itself. Jackson v. State , 2013 Ark. 19, 2013 WL 298081 (per curiam); see also Clark v. State , 373 Ark. 161, 282 S.W.3d 801 (2008). The same would apply to a charge of first-degree-felony murder and its underlying felony. Here, the underlying felony for the first-degree murder charge was robbery. Thus, it is proper for the circuit court to sentence Thompson on the first-degree murder conviction and its underlying felony of robbery, and we reverse and remand for the circuit court to correct the sentence imposed for aggravated robbery. No other reversible error has been found pursuant to our Rule 4-3(i) review. Affirmed in part; reversed and remanded in part. Baker and Goodson, JJ., concur.

RAYMOND R. ABRAMSON, Judge A Cleveland County jury convicted Jason McDaniel of first-degree sexual assault of a minor victim, M.F., and sentenced him to 30 years' imprisonment in the Arkansas Department of Correction. McDaniel now appeals his conviction, arguing that the trial court erred by admitting evidence of prior sexual acts between M.F. and him. We affirm. McDaniel was initially charged with four counts of first-degree sexual assault of the same minor victim for two acts that occurred in June 2015 and two acts that occurred in July 2015. The first two counts were nolle prossed by the State because the alleged sexual acts occurred outside the Thirteenth Judicial District. McDaniel was subsequently charged in the second amended information with two counts of first-degree sexual assault for engaging in sexual intercourse and/or deviate sexual activity with the victim, M.F., on July 6 and July 8, 2015. He was convicted on the first count and acquitted on the second count. McDaniel filed a pretrial motion and an amended motion in limine asking the trial court to exclude evidence of sexual acts between him and the victim occurring in June 2015. In his motion, McDaniel argued that evidence of sexual contact with the victim outside the Thirteenth Judicial District, including communications between him and M.F. via social media and text messages before July, were irrelevant or, in the alternative, barred under Arkansas Rule of Evidence 403 because the evidence was more prejudicial than probative of the counts charged and would only serve to mislead the jury. In its response, the State argued that evidence of sexual acts between M.F. and McDaniel in June 2015 were relevant as the conduct involved the same victim and the same res gestae. Although it was evidence relating to uncharged crimes, the State argued that it was also admissible under the exception to Arkansas Rule of Evidence 404(b) because it was "proof of motive, opportunity, intent, preparation, plan, knowledge, and identity." The State further maintained that the probative value of the uncharged acts and communications between appellant and the victim outweighed the danger of unfair prejudice because appellant denied having sexual contact with the victim, and the "[t]ext or other social media messages referring to or suggesting sexual activities by a man in his 40s with a 14 year-old girl are highly probative when that man is alleged to have sexual contact with that girl within a short time period of those messages." The trial court agreed and denied McDaniel's motion in limine. McDaniel's sole argument on appeal is that the admission of the evidence only served to inflame the jury because it fueled his conviction and resulted in the jury's sentencing him to the maximum term of 30 years' imprisonment for first-degree sexual assault under Arkansas Code Annotated section 5-14-124 (Repl. 2013). That statute provides, in pertinent part, that a person commits first-degree sexual assault if he or she engages in sexual intercourse with a person who is not the actor's spouse and the victim is less than eighteen years of age at the time of the offense and the actor was in a position of trust or authority over the victim. See Ark. Code Ann. § 5-14-124. Evidence adduced at trial indicated that the victim was one of three children of a single mother, Melanie Fitzgibbon. Fitzgibbon testified that she met McDaniel through her children's sports activities. Her younger daughter and McDaniel's daughter were on the same basketball and softball teams. McDaniel served as the coach of both teams, and M.F. assisted him. During the spring and summer of 2015, Fitzgibbon worked as a substitute teacher and took courses to obtain a master's degree. McDaniel volunteered to help her during this time by giving her children rides to practices and games. He also took M.F. to physical-therapy appointments and would occasionally give her a ride home from school. Fitzgibbon testified that she trusted McDaniel and thought he was an upstanding citizen of the community. M.F. testified that on June 2, 2015, her mother gave her permission to go to lunch with McDaniel. After lunch, he drove M.F. to a logging road where they both removed their clothes and almost had sexual intercourse inside his truck. M.F. testified that she became scared so they stopped. Later that day, M.F. and McDaniel exchanged several text messages including the following in which M.F. explained why she was uncomfortable: [M.F.]: I had 2 reasons why I was. [ MCDANIEL ]: Why? [M.F.]: Cause you didn't have a condom & I'm scared to death of getting pregnant cause my luck I know I would & I was scared mom was wondering where I was. So next time you need to fix that. [ MCDANIEL ]: Ok bet[.] [M.F.]: I promise I'll be a lot better. I just was scared mom was wondering where I was & I don't wanna get pregnant at 14. So if you fix those things I think I'll be okay. M.F. testified that on June 24, 2015, McDaniel picked her up from her paternal grandmother's home in Warren and took her to lunch. After lunch, McDaniel took her to a remote logging road, parked the truck, and they had sexual intercourse for the first time. Later that same day, McDaniel sent M.F. the following message: "Well I know that you are tired. And probably ready for bed. I do hope that it was all good for you today and it was what you expected. I hope that I lived up to your every dream that you wanted. I love you and that will never go away." M.F. also testified that two days later, on June 26, 2015, McDaniel picked her up around 10:00 a.m. to take her to a softball game in Stuttgart. After they stopped at Walmart for Gatorade, McDaniel drove down a logging road between Monticello and Star City, and they had sexual intercourse inside his truck. Afterward, they picked up McDaniel's daughter and other team members along with the adult assistant coach from McDaniel's home and drove to Stuttgart. M.F. testified that on July 6, 2015, McDaniel picked her up from her home and took her to a physical-therapy appointment and then to lunch at a Mexican restaurant. After lunch, McDaniel took M.F. to his home where they had sexual intercourse in a camper parked behind his home. M.F. testified that the last time she and McDaniel had sexual intercourse was on July 8, 2015. That day, she and McDaniel left her home around 9:30 a.m. after they had loaded her younger brother's broken go-cart onto a trailer. They went to McDaniel's home, unloaded the trailer, and they again had sexual intercourse in the camper parked next to his home. M.F. testified that she also performed oral sex on McDaniel as a gift for his upcoming 40th birthday. After having sex, McDaniel took her to her 11:00 a.m. physical-therapy appointment. Our standard of review is well settled. A trial court has wide discretion in making evidentiary rulings and will not be reversed absent an abuse of discretion. E.g. , Jackson v. State , 375 Ark. 321, 340, 290 S.W.3d 574, 587 (2009). Pursuant to Arkansas Rule of Evidence 404(b), "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith." Such evidence is permissible for other purposes, however, "such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Id. "Under Arkansas Rule of Evidence 404(b), evidence of other crimes will be admitted if it has independent relevance, and its relevance is not substantially outweighed by the danger of unfair prejudice." Jones v. State , 349 Ark. 331, 339, 78 S.W.3d 104, 110 (2002). Evidence is independently relevant if it tends to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. E.g. , Cluck v. State , 365 Ark. 166, 175, 226 S.W.3d 780, 786 (2006). When the crime charged concerns the sexual assault of a minor, the "pedophile exception" to Rule 404(b)"allows the State to introduce evidence of the defendant's similar acts with the same or other children when it is helpful in showing a proclivity for a specific act with a person or class of persons with whom the defendant has an intimate relationship." Craigg v. State , 2012 Ark. 387, at 7, 424 S.W.3d 264, 268. "For the pedophile exception to apply, there must be a sufficient degree of similarity between the evidence to be introduced and the charged sexual conduct." Id. The evidence also must not be too separated in time, making it unduly remote. E.g. , Brown v. State , 2012 Ark. 399, at 7, 424 S.W.3d 288, 293. "[A] reasonableness standard is used to determine whether a crime remains relevant rather than a specific time limit." Id. at 8, 424 S.W.3d at 293. Additionally, under Arkansas Rule of Evidence 403, relevant evidence may be excluded if its probative value is "substantially outweighed" by the danger of unfair prejudice. The mere fact that evidence is prejudicial does not make it inadmissible; it is only excludable if the danger of unfair prejudice substantially outweighs its probative value. E.g. , Lamb v. State , 372 Ark. 277, 285, 275 S.W.3d 144, 151 (2008). The trial court has wide discretion in balancing the conflicting interests, and its judgment will be upheld absent a manifest abuse of discretion. E.g. , Bragg v. State , 328 Ark. 613, 626, 946 S.W.2d 654, 661 (1997). Under these standards, the trial court did not abuse its discretion by admitting evidence of McDaniel's prior bad acts. Here, the uncharged sexual acts that occurred in June 2015, as well as the texts and other social-media messages between McDaniel and the victim in the weeks leading up to the two counts charged, fall squarely within the pedophile exception to Rule 404(b). There was a sufficient degree of similarity between the uncharged sexual acts in June 2015 and the charged acts on July 6 and July 8, 2015. All of the acts occurred during the day after M.F.'s mother had either given McDaniel permission or asked him to take M.F. to or from a physical-therapy appointment, lunch, or other activity. As such, the testimony and texts were properly admitted under the pedophile exception. See Chunestudy v. State , 2012 Ark. 222, at 5-6, 408 S.W.3d 55, at 60 (holding the victim's testimony describing sexual acts similar to those charged and showing an ongoing sexual relationship clearly fell within the pedophile exception). As noted above, the trial court's decision will be upheld absent a manifest abuse of discretion. We cannot say the trial court abused its wide discretion in admitting evidence of McDaniel's prior bad acts; therefore, we affirm. Affirmed. Glover and Murphy, JJ., agree.

COURTNEY HUDSON GOODSON, Associate Justice The petitioner, Jim Knight, individually and on behalf of Citizens for Local Choice (CLC), brings this original action to challenge the sufficiency of the ballot title with regard to Issue No. 4, which provides for the issuance of four casino licenses in the state. By the complaint, petitioner seeks to enjoin respondent Arkansas Secretary of State Mark Martin from certifying any ballots cast for the proposed amendment at the November 6, 2018 general election. The initiated measure is sponsored by intervenor Don Tilton, both individually and on behalf of Arkansas Jobs Coalition, a ballot question committee. Our jurisdiction to determine this matter is conferred by amendment 7, as codified in article 5, section 1 of the Arkansas Constitution, section 2(D)(4) of amendment 80, and Arkansas Supreme Court Rule 6-5(a). We deny the petition. Knight is a resident of Pope County and a registered Arkansas voter. Knight is also a member of CLC. CLC is a ballot question committee as defined in Arkansas Code Annotated § 7-9-402(2) (Repl. 2018). The Attorney General certified the popular name and ballot title for Issue No. 4 on May 23, 2018. The next day the Attorney General issued another opinion recertifying the same popular name and ballot title, with the distinction being for typographical and scrivener's errors. On September 5, 2018, Secretary of State and Respondent Mark Martin declared that the proposed initiated measure met the requirements set forth in article 5, section 1 of the Arkansas Constitution and placed the proposed amendment on the November 6, 2018 ballot. The popular name and ballot title of the proposed amendment, as certified by the Attorney General, reads as follows: (Popular Name) AN AMENDMENT TO REQUIRE FOUR LICENSES TO BE ISSUED FOR CASINO GAMING AT CASINOS, ONE EACH IN CRITTENDEN (TO SOUTHLAND RACING CORPORATION), GARLAND (TO OAKLAWN JOCKEY CLUB, INC.), POPE, AND JEFFERSON COUNTIES (Ballot Title) An amendment to the Arkansas Constitution to require that the Arkansas Racing Commission issue licenses for casino gaming to be conducted at four casinos in Arkansas, being subject to laws enacted by the General Assembly in accord with this amendment and regulations issued by the Arkansas Racing Commission ("Commission"); defining "casino gaming" as dealing, operating, carrying on, conducting, maintaining, or exposing for play any game played with cards, dice, equipment, or any mechanical, electromechanical, or electronic device or machine for money, property, checks, credit, or any representative value, as well as accepting wagers on sporting events; providing that individuals under 21 are prohibited from engaging in casino gaming; providing that the Commission shall issue four casino licenses, one to Southland Racing Corporation ("Southland") for casino gaming at a casino to be located at or adjacent to Southland's greyhound track and gaming facility in Crittenden County, one to Oaklawn Jockey Club, Inc. ("Oaklawn") to require casino gaming at a casino to be located at or adjacent to Oaklawn's horse track and gaming facility in Garland County, one to an applicant to require casino gaming at a casino to be located in Pope County within two miles of Russellville, and one to an applicant to require casino gaming at a casino to be located in Jefferson County within two miles of Pine Bluff; providing that upon receiving a casino license, licensees will be required to conduct casino gaming for as long as they have a casino license providing that Southland and Oaklawn do not have to apply for a license and will automatically receive a casino license upon the Commission adopting rules and regulations to govern casino gaming; providing that the Commission shall require all applicants for the two remaining casino licensees, one in Pope County and one in Jefferson County to pay an application fee, demonstrate experience in conducting casino gaming, and submit either a letter of support from the county judge or a resolution from the county quorum court in the county where the casino would be located and, if the proposed casino is to be located within a city, a letter of support from the mayor of that city; providing that the Commission shall regulate all casino licensees; defining "net casino gaming receipts" as casino gaming receipts less amounts paid out or reserved as winnings to casino patrons; providing that for each fiscal year, a casino licensee's net casino gaming receipts are subject to a net casino gaming receipts tax of 13% on the first $150,000,000 of net casino gaming receipts or any part thereof, and 20% on net casino gaming receipts exceeding $150,000,001 or any part thereof; providing that no other tax, other than the net casino gaming receipts tax, may be imposed on gaming receipts or net casino gaming receipts; providing that the net casino gaming receipts tax shall be distributed 55% to the State of Arkansas General Revenue Fund, 17.5% to the Commission for deposit into the Arkansas Racing Commission Purse and Awards Fund to be used only for purses for live horse racing and greyhound racing by Oaklawn and Southland, as the case may be, 8% to the county in which the casino is located, and 19.5% to the city in which the casino is located, provided that if the casino is not located within a city, then the county in which the casino is located shall receive the 19.5%; permitting casino licensees to conduct casino gaming on any day for any portion of all of any day; permitting casino licensees to sell liquor or provide complimentary servings of liquor during all hours in which the casino licensees conduct casino gaming only for on-premises consumption at the casinos and permitting casino licensees to sell liquor or provide complimentary servings of liquor without allowing the residents of a dry county or city to vote to approve the sale of liquor; providing that casino licensees shall purchase liquor from a licensed Arkansas wholesaler; permitting shipments of gambling devices that are duly registered, recorded, and labeled in accordance with federal law into any county in which casino gaming is authorized; declaring that all constitutional provisions, statutes, and common law of the state that conflict with this amendment are not to be applied to this Amendment. On September 12, 2018, petitioner filed a complaint alleging that the popular name and ballot title for Issue No. 4 are materially misleading in five respects: (1) that voters are not informed in the ballot title that perpetual monopolies are given to private corporations over which local citizens have no control; (2) that voters are misled as to whether licenses are merely "issued" or if gambling is "required;" (3) that voters are misled as to whether local officials can approve casinos; (4) that voters are misled as to whether citizens lose oversight of corporations; and (5) that voters are misled as to whether local citizens lose oversight of unlimited free alcohol. Petitioner has briefed all five points raised in the original-action complaint. In connection with the complaint, the petitioner filed motions for expedited consideration and for consecutive briefing. Tilton moved to intervene, and he and the respondent filed responses to the complaint. This court granted the motion to intervene, set an expedited briefing schedule, and ordered consecutive briefing. Knight v. Martin , 2018 Ark. 258, 2018 WL 4474666 (per curiam). With the briefing complete, we now decide the merits of the complaint. I. Sufficiency of the Popular Name Petitioner argues that the popular name is insufficient in two respects. First, petitioner argues that the ballot title is misleading because the proposed amendment's popular name calls for casino licenses to be "issued" and the ballot title and proposed amendment itself require licensees to "conduct casino gambling." Additionally, petitioner argues that the popular name does not inform voters that local citizens will lose control of local alcohol sales or that sports wagering is included in the amendment. The "popular name is a useful legislative device that need not contain the same detailed information or include exceptions that might be required of a ballot title." Parker v. Priest , 326 Ark. 123, 129, 930 S.W.2d 322, 325 (1996). Additionally, the popular name is to be considered with the ballot title in determining its sufficiency. May v. Daniels , 359 Ark. 100, 194 S.W.3d 771 (2004). The popular name must only reflect a measure in a way that is "concise enough, and clear enough, for the voters to refer to and identify it easily." Gaines v. McCuen , 296 Ark. 513, 517, 758 S.W.2d 403, 405 (1988). However, a popular name must not contain catch phrases or slogans that tend to mislead or give partisan coloring to a proposal. May, supra . A. Licenses to be Issued and Gaming to be Conducted Petitioner's first challenge to the proposed amendment's popular name is characterized as a challenge to the ballot title. Petitioner argues that the popular name only requires "licenses to be issued," while the ballot title and the proposed amendment require licensees to "conduct casino gaming." Although petitioner argues that the ballot title is misleading because the popular name conflicts with the ballot title and the proposed amendment, we disagree. In reality, petitioner's argument is that the popular name is insufficiently detailed. Both the ballot title and the proposed amendment require the issuance of licenses. The fact that the ballot title and the text of the proposed amendment provide more detailed information about the requirement that licensees conduct casino gaming does not amount to a conflict with the popular name or mean that the popular name is misleading. See Parker, supra. B. Alcohol Sales and Sports Wagering Petitioner also argues that the popular name does not inform voters that local citizens will lose control of local alcohol sales or that sports wagering is included in the amendment. Although the proposed amendment's effect on alcohol sales and sports wagering is not included in the popular name, it is included in the ballot title. As previously mentioned, the popular name need not be as detailed as a ballot title. Parker, supra. Additionally, we must consider the ballot title with the popular name to determine the popular name's sufficiency. May, supra . We believe that the popular name, when read together with the ballot title, is sufficient. Nothing about the popular name is misleading, and we believe it offers voters a clear and concise way to identify the measure to be considered. II. Sufficiency of the Ballot Title Petitioner argues that the ballot title is insufficient in three respects. First, petitioner argues that the ballot title omits necessary information because it fails to inform voters that Issue No. 4 overturns article 2, section 19's constitutional ban of monopolies and perpetuities by giving exclusive, perpetual licenses for casino gambling and alcohol sales. Next, petitioner argues that the ballot title misleads voters into believing that local elected officials can approve or disapprove of casinos in their respective communities. Finally, petitioner argues that the ballot title is misleading because it does not inform voters that the provisions of article 12 of the Arkansas Constitution, which allow for the revocation of a corporate charter, are superseded by Issue No. 4 and that voters are misled into thinking that they are gaining authority due to the requirement for a letter of approval when in reality they are losing authority. We recently discussed the familiar standards governing our review of ballot titles: The ballot title must be an impartial summary of the proposed amendment, and it must give the voters a fair understanding of the issues presented and the scope and significance of the proposed changes in the law. May v. Daniels , 359 Ark. 100, 194 S.W.3d 771 (2004) ; Scott v. Priest , 326 Ark. 328, 932 S.W.2d 746 (1996). A ballot title must be free of any misleading tendency whether by amplification, omission, or fallacy, and it must not be tinged with partisan coloring. Parker v. Priest , 326 Ark. 386, 931 S.W.2d 108 (1996) ; Bailey v. McCuen , 318 Ark. 277, 884 S.W.2d 938 (1994). The ballot title need not contain a synopsis of the proposed amendment or cover every detail of it. See Becker v. McCuen , 303 Ark. 482, 798 S.W.2d 71 (1990) ; Sturdy v. Hall , 204 Ark. 785, 164 S.W.2d 884 (1942). However, if information omitted from the ballot title is an essential fact that would give the voter serious ground for reflection, it must be disclosed. Walker v. McCuen , 318 Ark. 508, 886 S.W.2d 577 (1994) ; Page v. McCuen , 318 Ark. 342, 884 S.W.2d 951 (1994). This court has long recognized the impossibility of preparing a ballot title that would suit everyone. Cox v. Daniels , 374 Ark. 437, 288 S.W.3d 591 (2008) ; Hogan v. Hall , 198 Ark. 681, 130 S.W.2d 716 (1939). Thus, the ultimate issue is whether the voter, while inside the voting booth, is able to reach an intelligent and informed decision for or against the proposal and understands the consequences of his or her vote based on the ballot title. Roberts v. Priest , 341 Ark. 813, 20 S.W.3d 376 (2000) ; Porter v. McCuen , 310 Ark. 562, 839 S.W.2d 512 (1992). The sufficiency of a ballot title is a matter of law to be decided by this court. May , supra ; Bailey, supra. Our most significant rule in determining the sufficiency of the title is that it be given a liberal construction and interpretation in order that it secure the purposes of reserving to the people the right to adopt, reject, approve, or disapprove legislation. May , supra ; Mason v. Jernigan , 260 Ark. 385, 540 S.W.2d 851 (1976). However, this approach does not imply that liberality is boundless or that common sense is disregarded. Christian Civic Action Comm. v. McCuen , 318 Ark. 241, 884 S.W.2d 605 (1994) ; Dust v. Riviere , 277 Ark. 1, 638 S.W.2d 663 (1982). In addition, when reviewing a challenge to a ballot title, this court recognizes that article 5, section 1 places the burden upon the party challenging the ballot title to prove that it is misleading or insufficient. Richardson v. Martin , 2014 Ark. 429, 444 S.W.3d 855 ; Cox v. Martin , 2012 Ark. 352, 423 S.W.3d 75. Finally, we observe that it is not our purpose to examine the relative merit or fault of the proposed changes in the law; rather, our function is merely to review the measure to ensure that, if it is presented to the people for consideration in a popular vote, it is presented fairly. Cox v. Daniels , supra ; May, supra . In other words, "[t]he question is not how the members of this court feel concerning the wisdom of this proposed amendment, but rather whether the requirements for submission of the proposal to the voters has been met." Ferstl v. McCuen , 296 Ark. 504, 509, 758 S.W.2d 398, 401 (1988). Rose v. Martin , 2016 Ark. 339, at 4-5, 500 S.W.3d 148, 151-52. With these standards in mind, we turn to the specific arguments petitioner makes in his challenge to Issue No. 4's ballot title. A. Monopolies and Perpetuities Petitioner first argues that the ballot title omits necessary information because it fails to inform voters that Issue No. 4 overturns article 2, section 19's constitutional ban on monopolies and perpetuities by giving exclusive, perpetual licenses for casino gambling and alcohol sales. Article 2, section 19 of the Arkansas Constitution provides that "[p]erpetuities and monopolies are contrary to the genius of a republic, and shall not be allowed; nor shall any hereditary emoluments, privileges or honors ever be granted or conferred in this State." Petitioner asserts that the proposed amendment is limited to gambling by named private-casino corporations and that licenses granted to those corporations can last into perpetuity. However, the proposed amendment does not overturn the constitution's general ban on monopolies. Just as a measure to allow a state lottery did not overturn the constitution's general ban on lotteries in Cox v. Daniels , supra , the amendment proposed here does nothing to invalidate the constitution's general prohibition on monopolies. Furthermore, the ballot title identifies Issue No. 4 as a constitutional amendment, which is sufficient to inform voters that change will result. Id. Additionally, petitioner is wrong in asserting that the proposed amendment is limited to gambling by named private-casino corporations. In reality, only two entities to receive casino licenses are identified. The proposed amendment would require the issuance of four casino licenses, one to Oaklawn, one to Southland, and one each in Jefferson and Pope Counties to an unnamed entity or entities. We considered a similar proposed amendment in Parker , supra , in which the ballot title explained that the proposed amendment would allow voters in Hot Springs to decide whether to authorize casino gambling "at or adjacent to the Oaklawn racetrack." Parker , 326 Ark. at 138, 930 S.W.2d 322. The proposal in Parker also provided for casino establishments at two other Hot Springs locations, as well as other types of gambling. Although we questioned whether the proposal there actually created a monopoly, we concluded that even if it did, "that effect is clearly stated in the ballot title." Id. at 133, 930 S.W.2d 322. As in Parker , the ballot title here clearly sets forth the issue voters must decide by informing them that the proposed amendment requires the Arkansas Racing Commission to issue a casino license to Oaklawn, a casino license to Southland, and a casino license in both Jefferson and Pope Counties. Likewise, the ballot title clearly explains that the casinos may sell or offer complimentary liquor "without allowing residents of a dry county or city to vote to approve the sale of liquor." Finally, petitioner is wrong in asserting that the licenses granted can last into perpetuity. In fact, petitioner himself acknowledges that licensees must be in compliance with the amendment for the renewal of their licenses. As we noted above, a ballot title need not contain a synopsis of the proposed amendment or cover every detail of it. See Becker , supra ; Sturdy, supra. It is enough for the ballot title to impart a fair understanding of the issues presented and the scope and significance of the proposed changes in the law. May, supra . We conclude that the ballot title adequately sets forth the proposed changes in the law with respect to the issuance and duration of casino licenses and the provision of alcoholic beverages. B. Letter of Support Next, petitioner argues that the ballot title misleads voters into believing that local elected officials can approve or disapprove of casinos in their respective communities. Specifically, petitioner argues that the ballot title's description of the proposed amendment's requirement that applicants "submit either a letter of support from the county judge or a resolution from the quorum court in the county where the casino would be located and, if the proposed casino is to be located within a city, a letter of support from the mayor of that city," may mislead voters into believing that local officials retain the power to approve or disapprove of a casino locating in their community. We disagree. The ballot title does nothing more than accurately describe the proposed amendment's requirement that applicants for a casino license in Jefferson and Pope Counties obtain a letter of support before they may be issued a license. To the extent that petitioner argues that the term "letter of support" should be defined, we believe that most voters will understand the term without further explanation. Furthermore, not every term must be defined in the ballot title. Cox v. Martin, supra. C. Oversight of Corporations Finally, petitioner argues that the ballot title is misleading because it does not inform voters that the provisions of Article 12 of the Arkansas Constitution, which allow for the revocation of a corporate charter, are superseded by Issue No. 4, and that voters are misled into thinking that they are gaining authority due to the requirement for a letter of approval when, in reality, they are losing authority. However, the ballot title states that casinos are "subject to laws enacted by the General Assembly and in accord with this amendment and regulations issued by the Arkansas Racing Commission." The amendment itself provides in section 4(e)(8) that the Racing Commission shall adopt rules governing the suspension or termination of casino licenses. The ballot title also states that all constitutional provisions, statutes, and common law of the state that conflict with the proposed amendment are not to be applied to the proposed amendment. Thus, the ballot title is not misleading in this respect. Although petitioner worries that the General Assembly would be unable to revoke Oaklawn's charter under article 12, section 6 if, in the future, it were to conclude that horse racing and gambling are injurious to the citizens, ballot titles are not required to include every possible consequence or effect of a proposed measure and need not cover or anticipate every possible legal argument that the proposed measure might evoke. Conway v. Martin , 2016 Ark. 322, 499 S.W.3d 209. We conclude that this point is without merit. III. Conclusion In conclusion, petitioner has not met his burden of proving that the ballot title is insufficient. We believe that the popular name and ballot title of Issue No. 4 give voters a fair understanding of the issues presented and the scope and significance of the proposed changes in law, are free of any misleading tendency or partisan coloring, and will allow voters to reach an intelligent and informed decision for or against the proposal and understand the consequences of his or her vote. Therefore, Issue No. 4 is proper for inclusion on the November 6, 2018 ballot and we deny the petition. We order the mandate to issue within five days from the filing of this opinion unless a petition for rehearing is filed. Petition denied. Special Justice Hugh Finkelstein joins in this opinion. Kemp, C.J., not participating. This court denied petitioner's motion for oral argument.

RHONDA K. WOOD, Associate Justice A Ouachita County jury convicted the appellant, Eric Thrower, of first-degree murder and arson. He was sentenced to life imprisonment for first-degree murder and a consecutive term of ten years' imprisonment for arson. Thrower argues nine points on appeal. Primarily, he challenges the sufficiency of the evidence on both convictions and argues that the case must be reversed and remanded for a new trial due to deficiencies in the record. We find there was sufficient evidence to support the convictions, but reverse and remand for a new trial because the record is insufficient. I. Facts Eric Thrower was charged with the murder of Erika Batton and arson. Emergency personnel were called to a fire at Batton's apartment and discovered her body inside. An autopsy revealed that she sustained "severe blunt and sharp force injuries of the head with extensive internal bleeding around the neck and scalp" and bleeding around her brain. Two of the State's witnesses, Demontrey Hathaway and Cornelius Hennings, were with Thrower only hours before the murder. Both recalled that just prior to Batton's murder, Thrower learned that his close friend, Courtney Anderson, had been arrested. They similarly detailed how Thrower became mad, and even cried. Thrower blamed Batton for the arrest, identifying her as a "snitch." According to both Hathaway and Hennings, Thrower maintained a bitter hatred toward snitches, wishing that "they were all dead." Additional evidence revealed that bloody footprints trailing out of Batton's apartment measured the same length as Thrower's foot. Cullen Rufus, a resident of the same apartment complex, also testified that he saw Thrower "creeping" around the complex shortly after the murder. Finally, two recorded interviews between Camden police and Thrower revealed that Thrower knew crime-scene details that were not publicly available. The State's key witness was Thrower's sister, Francine Cobb. She also testified that Thrower was visibly upset after hearing of Anderson's arrest. After Batton was identified as the "snitch," Cobb saw Thrower enter Batton's apartment. Cobb heard an altercation erupt and heard Batton emit "a horrible gut-wrenching scream." Approximately fifteen minutes later, Thrower returned to Cobb's apartment with blood spatters on his shirt and socks. Cobb testified that Thrower admitted to stabbing Batton and setting her apartment on fire. The jury convicted Thrower of first-degree murder and arson. Thrower appealed. During briefing, appellant's counsel discovered that the jury instructions, and every bench conference, were missing from the record. He filed a motion to require correction or supplementation of the record, which this court granted. The circuit court conducted a reconstruction hearing. The record was supplemented to include the transcript from that hearing, an affidavit from the original court reporter, and an order from the circuit court. Thrower raises nine issues on appeal. II. Sufficiency of the Evidence Thrower's first point on appeal challenges the sufficiency of the evidence supporting the murder and arson convictions. He contends that the court erroneously denied his motions for directed verdict because the State's only evidence of guilt was Cobb's testimony and a single bloodied footprint in Batton's kitchen. Thrower argues that because Cobb was initially charged as his alleged accomplice, her testimony was not credible and not otherwise corroborated. In reviewing a challenge to the sufficiency of the evidence, we consider the evidence in the light most favorable to the State and only consider the evidence that supports the verdict. See, e.g. , Tarver v. State , 2018 Ark. 202, 547 S.W.3d 689. We will affirm the conviction when substantial evidence supports it. Id. Substantial evidence constitutes evidence of sufficient force and character to compel a reasonably certain conclusion, without resorting to speculation or conjecture. Id. To affirm Thrower's first-degree murder conviction, substantial evidence must support the conclusion that Thrower purposely caused Batton's death. See Ark. Code Ann. § 5-10-102 (Supp. 2017). We will affirm Thrower's arson conviction if substantial evidence indicates that Thrower started a fire with the purpose of destroying an occupiable structure owned by another, and such actions resulted in at least $2,500 but less than $5,000 in damages. See Ark. Code Ann. § 5-38-301(b)(3). In reviewing the evidence of first-degree murder in the light most favorable to the State, three witnesses-Cobb, Hathaway, and Hennings-established, with strikingly similar detail, how only hours before the murder, Thrower became inflamed with anger upon hearing of his friend's arrest. Testimony describing Thrower's bitter hatred for "snitches," coupled with his direct correlation between Batton "snitching" and his friend's arrest, established a motive. Additionally, two eyewitnesses-Cobb and Rufus-placed Thrower near Batton's apartment in close proximity to when the murder occurred. The bloody footprint found in Batton's apartment, measuring the exact same size as Thower's foot, as well as the police interviews exposing Thrower's knowledge of undisclosed crime details, substantiated their testimony. Finally, Cobb testified that she saw Thrower enter Batton's apartment. She heard the ensuing altercation and heard Batton's screams. She testified that upon his return, Thrower was covered in blood, took a shower to wash off, and confessed that he both stabbed Batton and "lit her up." Cobb was initially charged as an accomplice, but the charge was dismissed. Nevertheless, Thrower contends that Cobb's status rendered her incredible at trial and that her testimony was insufficiently corroborated by separate evidence. This court has "consistently held that the corroborating evidence need not be sufficient in and of itself to sustain a conviction, but it need only, independently of the testimony of the accomplice, tend in some degree to connect the defendant with the commission of the crime." King v. State , 254 Ark. 509, 510, 494 S.W.2d 476, 478 (1973). Such corroborating evidence "may be circumstantial, so long as it is substantial, and tends to connect the defendant with the commission of the offense." King , 254 Ark. at 510-11, 494 S.W.2d at 478. Certainly, there was substantial evidence, separate from Cobb's testimony, that connected Thrower with the murder. In addition, the trier of fact is free to believe all or part of any witness's testimony. Kinsey v. State , 2016 Ark. 393, 503 S.W.3d 772. Whether Cobb is less credible because she was once charged as an accomplice was for the jury to decide. Id. We also find there was sufficient evidence to support the arson conviction. As explained supra , there was substantial evidence for the jury to find that Thrower was present in Batton's apartment immediately before the fire. Assistant Fire Chief Ronald Nash testified that the apartment fire was intentionally set. His conclusion was based on multiple factors, such as the presence of two unconnected burn areas, one of which had no ignition source tied to the apartment, and the location of the bloody footprints. Based on his assessment, someone had turned on the stove, started a fire, and then using the initial fire, ignited a second fire in the corner of the other room. He estimated $15,000 or more in damages. Viewing all the evidence in the light most favorable to the verdict, and only considering evidence that supports the verdict, we hold that substantial evidence supports Thrower's murder and arson convictions. III. Insufficient Record Thrower raises eight additional issues on appeal. One is that, despite the circuit court's reconstruction efforts, the record remains incomplete and insufficient for our review. His remaining seven issues all relate to this because each involves an issue where there is an omission in the record. We agree that despite considerable efforts by the circuit court and the parties, the record remains insufficient for appellate review. When a defendant is sentenced to life imprisonment, "the Court must review all errors prejudicial to the appellant in accordance with Ark. Code Ann. § 16-91-113(a)." Ark. Sup. Ct. R. 4-3(i) (2017). To facilitate such a comprehensive review, the rules require that the appellant abstract all adverse rulings that occurred during the proceedings in such a manner that the court can review each ruling. Id. This allows this court to conduct not only the review of the issues on appeal but also its Rule 4-3(i) review. When there is an omission in the record, we consider whether the reconstructed record permits "a full review of the proceedings from which an appeal has been taken." Ward v. State , 321 Ark. 659, 660, 906 S.W.2d 685, 687 (1995). In considering the sufficiency of a reconstructed record, this court exhibits heightened concern where the appeal involves a life sentence. See Hood v. State , 329 Ark. 21, 947 S.W.2d 328 (1997) ; McGehee v. State , 328 Ark. 404, 943 S.W.2d 585 (1997) ; Jacobs v. State , 327 Ark. 498, 939 S.W.2d 824 (1997). Even despite a "valiant and concerted effort to reconstruct the record," which resulted in the parties' full agreement, this court has held that the record failed to satisfy the requirements of Rule 4-3. McGehee , 328 Ark. at 414, 943 S.W.2d at 590. Initially, Thrower argues that the lack of a verbatim record, in and of itself, requires a reversal. We disagree. While a verbatim record is certainly ideal, to require it in every instance would render our rules for record reconstruction and settlement inoperative. Ark. R. App. P.-Civ. 6 (2017) . Instead, this court evaluates whether the supplemented record enables a full and complete appellate review. Lewis v. State , 354 Ark. 359, 362, 123 S.W.3d 891, 893 (2003). Here, the circuit court conducted a reconstruction hearing and supplemented the record. The court identified fourteen omitted bench conferences and two court recesses for reconstruction. Thrower, however, argues that the record remains incomplete and insufficient because the omitted conferences were not adequately reconstructed and the written jury instructions and two juror notes are still absent. At the reconstruction hearing, the circuit court, prosecutor, and defense counsel fully agreed on what occurred during five of the bench conferences. The defense counsel could not recall the specifics of the remaining nine identified conferences. The circuit court explained that the two court recesses did not require reconstruction because neither involved conversations requiring the court reporter's transcription. The record does not contain any discussion of jury instructions, objections, proffers, or rulings. The written jury instructions are not in the record. The only reconstruction of jury instructions transpired when the court was reconstructing the fourteenth missing bench conference, which occurred after the jury returned a guilty verdict. The court explained that this bench conference developed the sentencing-phase jury instructions, and that the parties agreed to them with no issues. After some discussion, defense counsel ultimately agreed he did not object or have issues with the sentencing-phase jury instructions. At this point, the court stated, "The only issue on jury instruction was during the guilt phase, which you [defense attorney] asked for a lesser included which I gave." The problem is that was the last reconstructed bench conference. Nowhere in the reconstruction of the omitted bench conferences was there a discussion on guilt-phase jury instructions, objections, requests, proffers, or rulings. This is particularly concerning because the court recalled that an issue did occur concerning the guilt-phase jury instructions. Moreover, this issue became more difficult when the court followed the reconstruction hearing with a written order in which the court held that "[u]pon review of the record, the jury instructions were recorded verbatim by the court reporter as read by the trial judge to the jury." But the court reporter's verbatim recording does not contain a jury instruction on lesser-included charges. Thus, the court's statement at the hearing that the jury received instructions on the lesser-included charge, upon request of defense counsel, directly contradicts the court reporter's verbatim transcript. The State argues that "it seems likely that the judge simply misspoke," and that Thrower cannot show prejudice. However, the issue is weightier than merely whether Thrower prevails in arguing he was entitled to lesser-included jury instructions. The ultimate issue is whether the record is sufficiently complete for this court to conduct a thorough appellate review. It is undisputed that at least fourteen bench conferences-nine of which we do not have full recollection by all parties-written jury instructions, and two juror notes are omitted from the record. There is no verbatim transcript of any dialog between counsel and the court concerning jury instructions. The omitted discussion of jury instructions also impacts other issues appealed. For example, Thrower contends that the circuit court should have instructed the jury on finding Cobb an accomplice as a matter of law. The State argues this issue is not preserved. However, that is impossible to determine since the record does not contain a transcript or reconstruction of the discussion, proffer, if any, or objection to the court's jury-instruction ruling on accomplice as a matter of law. The record's deficiencies remain palpable. We cannot review all the trial court's adverse rulings when we are uncertain what adverse rulings occurred. Nor can we confidently engage in the type of review a life-in-prison case demands. A comprehensive appellate review, particularly in criminal matters, is critical to our justice system. Therefore, we hold that the record cannot be sufficiently settled for this court to conduct its Rule 4-3(i) review, and we must reverse and remand for a new trial. We do not consider the remaining issues on appeal because the record is insufficient. Reverse and remanded. In the criminal context, "matters pertaining to ... modification of the record on appeal, as well as appeals where no stenographic record was made, shall be governed by the Rules of Appellate Procedure -Civil." Ark. R. App. P.-Crim. 4. The record reflects more than fourteen omitted bench conferences. For example, the record reflects two separate bench conferences occurred during voir dire. At the hearing, the court addressed only the conference involving the Batson challenge in its list of fourteen. As appellant had not raised the missing juror notes in the motion to supplement the record, they were not discussed at the reconstruction hearing.

ROBIN F. WYNNE, Associate Justice This is an interlocutory appeal from the Pulaski County Circuit Court's order entering a preliminary injunction in favor of the plaintiff-appellee, Barry Haas, in his challenge to Act 633 of 2017, which concerns "verification of voter registration." On appeal, appellant Mark Martin argues that appellee did not show a likelihood of success on the merits because Act 633 comports with the requirements in Amendment 51 to the Arkansas Constitution for its amendment; there was insufficient showing of harm; injunctive relief is barred by sovereign immunity; and appellee lacks standing. Separate appellants, Commissioners of the Arkansas State Board of Election Commissioners, argue that Act 633 is germane to, and consistent with, the original purpose of Amendment 51; Act 633 does not introduce an additional qualification to vote in violation of article 3, section 1; Act 633 does not impair the right to vote in violation of article 3, section 2; the circuit court erred in concluding that appellee showed irreparable harm; and the preliminary injunction is overbroad. This court has jurisdiction pursuant to Ark. Sup. Ct. R. 1-2(a)(1) (2017) (appeals involving the interpretation or construction of the Constitution of Arkansas) and (a)(4) (appeals pertaining to elections and election procedures). We reverse and remand for further proceedings consistent with this opinion. In Martin v. Kohls , 2014 Ark. 427, 444 S.W.3d 844, this court held that Act 595 of 2013, which required voters to show proof of identity in the form of a photo identification, was facially unconstitutional because it imposed an additional requirement to vote that "falls outside the ambit of article 3, section 1, of the Arkansas Constitution." Martin , 2014 Ark. 427, at 15, 444 S.W.3d at 852-53. Article 3, section 1 of the Arkansas Constitution provides as follows: Except as otherwise provided by this Constitution, any person may vote in an election in this state who is: (1) A citizen of the United States; (2) A resident of the State of Arkansas; (3) At least eighteen (18) years of age; and (4) Lawfully registered to vote in the election. [As amended by Const. Amend. 85.] Ark. Const. art. 3, § 1. Three justices concurred on the basis that it was unnecessary to reach the holding of the majority because Act 595 failed to obtain a two-thirds majority vote in both houses of the General Assembly as required by amendment 51, section 19. Id. at 17, 444 S.W.3d at 853 (Goodson, J., concurring). Following this court's ruling in Martin v. Kohls , the General Assembly passed Act 633 of 2017, which amends sections 6 and 13 of Amendment 51 and related statutes. Act of March 24, 2017, No. 633, 2017 Ark. Acts 3068. We provide a brief overview of Act 633 here. Titled "AN ACT TO REQUIRE THAT A VOTER PROVIDE VERIFICATION OF VOTER REGISTRATION WHEN VOTING; TO AMEND AMENDMENT 51 OF THE ARKANSAS CONSTITUTION; AND FOR OTHER PURPOSES," Act 633 requires Arkansas voters to provide verification of voter registration in the form of a document or identification card that shows the person's name and photograph, is issued by the federal or state government or an accredited postsecondary educational institution in Arkansas, and if displaying an expiration date, is no more than four years expired ("compliant identification"). Id. § 2, 2017 Ark. Acts at 3069 (amending § 13 of amendment 51 to add subsection (b)(1)(A)(i) ). An in-person voter who does not present to the election official compliant identification may cast a provisional ballot, not a regular ballot. Act 633 provides two ways for a person seeking to vote without a compliant form of identification to have his or her provisional ballot counted. One way is to complete a sworn statement at the polling site, under penalty of perjury, stating that the voter is registered to vote in this state and that he or she is the person registered to vote (the "voter identity affirmation"). (Section 2, amending § 13 to add subdivision (b)(4) ). Another way to have one's provisional ballot counted is to present a compliant form of identification to the county board of election commissioners or the county clerk by 12:00 noon on the Monday following the election. Id. § 2, 2017 Ark. Acts at 3072-73. If the voter identity affirmation is signed or if the voter later presents compliant identification as outlined above, the provisional ballot shall be counted if the county board of election commissioners "does not determine that the provisional ballot is invalid and should not be counted based on other grounds." Id. § 2, 2017 Ark. Acts at 3073. A person voting by absentee ballot must enclose a copy of a compliant identification in order to have his or her ballot counted as a regular ballot. (Section 2, amending § 13 to add subdivision (b)(3) ). If a copy of the identification is not included, the ballot shall be considered a provisional ballot and will be counted under essentially the same terms as an in-person voter without identification (completing voter-identity affirmation or providing a copy of a compliant identification by noon on the Monday after the election). A resident of a long-term care or residential-care facility licensed by the state is not required to present compliant identification when voting in-person or by absentee ballot but shall instead provide documentation from the administrator of the facility attesting that the person is a resident of the facility. Section 2, 2017 Ark. Acts at 3071 (amending § 13 to add subdivisions (b)(2)(B), (b)(3)(B)(iii) ). Finally, we note that all voters who do not present a compliant identification are subject to the possibility of a referral by the county board of election commissioners to the prosecuting attorney for investigation of possible voter fraud. The county board of election commissioners shall refer suspected instances of voter fraud to the prosecuting attorney. In addition to the amendments to sections 6 and 13 of Amendment 51, Act 633 amends various sections of the Arkansas Code to include the verification of voter registration requirements. On February 7, 2018, appellee filed a complaint pursuant to the Arkansas Declaratory Judgment Act, Arkansas Code Annotated §§ 16-111-101 et seq., asking the circuit court to declare Act 633 of 2017 unconstitutional and to enjoin its enforcement. Specifically, his complaint contains the following three counts: (1) Act 633 violates section 19 of Amendment 51 to the Arkansas Constitution because it is not germane to the amendment and is not consistent with its policy and purposes; (2) Act 633 violates article 3, section 1 of the Arkansas Constitution because it imposes an additional qualification for voting; and (3) Act 633 violates article 3, section 2 of the Arkansas Constitution because it constitutes an impairment on qualified voters' ability to cast valid ballots. Pursuant to Arkansas Rule of Civil Procedure 65, appellee also filed a motion for preliminary injunction seeking to prohibit the enforcement of Act 633 during the 2018 statewide preferential primary and general elections. Appellants filed responses to the motion for preliminary injunction, and the circuit court held an evidentiary hearing on March 12, 2018. On April 26, 2018, the circuit court entered a preliminary-injunction order prohibiting and enjoining appellants from enforcing the requirements of Act 633 or the rules of the Arkansas State Board of Election Commissioners that address Act 633. On April 27, 2018, both Secretary of State Mark Martin and the Commissioners filed separate notices of appeal. On May 2, 2018, this court granted a stay of the circuit court's preliminary injunction ahead of the May preferential-primary election. In determining whether to issue a preliminary-injunction order pursuant to Rule 65, the circuit court must consider two things: (1) whether irreparable harm will result in the absence of an injunction or restraining order, and (2) whether the moving party has demonstrated a likelihood of success on the merits. See Potter v. City of Tontitown , 371 Ark. 200, 206, 264 S.W.3d 473, 478 (2007). This court has described the "likelihood of success" showing as requiring a "reasonable probability of success." Custom Microsystems, Inc. v. Blake , 344 Ark. 536, 42 S.W.3d 453 (2001) ; Ark. Dep't of Human Servs. v. Ledgerwood , 2017 Ark. 308, 530 S.W.3d 336. On appeal, this court reviews the grant of a preliminary injunction under an abuse-of-discretion standard. Potter , supra ; Baptist Health v. Murphy , 365 Ark. 115, 226 S.W.3d 800 (2006). However, this court reviews a circuit court's interpretation of a constitutional provision de novo. Gatzke v. Weiss , 375 Ark. 207, 210, 289 S.W.3d 455, 458 (2008). I. Sovereign Immunity Martin contends that the circuit court lacked jurisdiction to grant a preliminary injunction because the defendants have sovereign immunity. He argues that injunctive relief is not available in a declaratory-judgment action, citing Cancun Cyber Cafe & Bus. Ctr., Inc. v. City of N. Little Rock , 2012 Ark. 154, 2012 WL 1223791. In that case, this court affirmed the dismissal of a complaint seeking declaratory judgment that the plaintiff's "sweepstakes promotion" was lawful and that any prosecution would be unconstitutional. The plaintiff also sought injunctive relief to prohibit any prosecution or other law-enforcement action against it. After concluding that no justiciable controversy existed and that the circuit court did not err in concluding that Cancun was not entitled to declaratory relief, this court wrote: "It follows that Cancun was not entitled to injunctive relief, which was dependent on the grant of declaratory relief." Id. at 7. That case is clearly not on point. Martin also cites the general rule that courts are without jurisdiction to enjoin state agencies from performing duties delegated to them by statute, and he asserts that appellee failed to prove any exception. Here, appellee challenged the constitutionality of Act 633. "We view our [sovereign immunity] cases as allowing actions that are illegal, are unconstitutional or are ultra vires to be enjoined." Cammack v. Chalmers , 284 Ark. 161, 163, 680 S.W.2d 689, 689 (1984) ; see also Bd. of Trustees of Univ. of Ark. v. Burcham , 2014 Ark. 61, at 4, 2014 WL 585981 ("[T]he scope of the exception to sovereign immunity for unconstitutional acts or for acts that are ultra vires, arbitrary, capricious or in bad faith, extends only to injunctive relief."). Because appellee has asserted that Act 633 violates qualified voters' constitutional right to vote and seeks declaratory and injunctive relief, not money damages, this action is not subject to the asserted sovereign-immunity defense. II. Standing As another threshold matter, appellant Martin argues that appellee lacks standing to bring this lawsuit. Martin contends that because appellee has a valid driver's license but testified that he will refuse to show it at the polls or sign the voter-verification affirmation, he has not demonstrated that he suffered any actual injury, but instead relies on "wholly manufactured standing." 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 law. Ghegan & Ghegan, Inc. v. Weiss , 338 Ark. 9, 14-15, 991 S.W.2d 536, 539 (1999). The issue of appellee's standing is settled by this court's opinion in Martin v. Kohls, supra. In Martin , this court held that the plaintiff-appellees had standing based on the fact that they were registered voters subject to the proof-of-identity requirement in Act 595. Thus, they were among the class of persons affected by Act 595. Here, appellee is a person affected by Act 633. He will be required to show compliant identification or sign the voter-verification affidavit, and the evidence presented at the hearing established that he is within the class of persons affected by the statute; therefore, he has standing to challenge the Act's constitutionality. III. Preliminary Injunction: Likelihood of Success on the Merits Appellants Martin and the Commissioners argue that appellee failed to show a likelihood of success on the merits because Act 633 comports with Amendment 51's requirements for amendment by the General Assembly. We begin by noting that an act of the legislature is presumed constitutional and should be so resolved unless it is clearly incompatible with the constitution, and any doubt must be resolved in favor of constitutionality. See Walden v. Hart , 243 Ark. 650, 652, 420 S.W.2d 868, 870 (1967) ; Cent. Oklahoma Pipeline, Inc. v. Hawk Field Servs., LLC , 2012 Ark. 157, at 9-10, 400 S.W.3d 701, 707-08 ("An act should be struck down only when there is a clear incompatibility between the act and the constitution."). Furthermore, public policy is for the General Assembly to establish, not the courts. McCutchen v. City of Fort Smith , 2012 Ark. 452, at 15, 425 S.W.3d 671, 681. "We are, of course, not concerned with the wisdom or policy of the legislation, as this is a question solely for the General Assembly. We may consider only the power of the General Assembly to enact the legislation." Adams v. Whittaker , 210 Ark. 298, 300, 195 S.W.2d 634, 635 (1946). Regarding the General Assembly's power to amend Amendment 51, section 19 of the amendment provides as follows: § 19. Amendment. The General Assembly may, in the same manner as required for amendment of laws initiated by the people, amend Sections 5 through 15 of this amendment, so long as such amendments are germane to this amendment, and consistent with its policy and purposes. The express policy of Amendment 51 is set out as follows: § 1. Statement of policy. The purpose of this amendment is to establish a system of permanent personal registration as a means of determining that all who cast ballots in general, special and primary elections, in this State are legally qualified to vote in such elections, in accordance with the Constitution of Arkansas and the Constitution of the United States. Amendment 7 to the Arkansas Constitution, codified at article 5, section 1, provides that laws initiated by the people may be amended through a two-thirds vote of both houses of the General Assembly. It is undisputed that Act 633 received the required two-thirds vote in the House of Representatives and the Senate. At issue then is whether Act 633 is "germane" to Amendment 51 and "consistent with its policy and purposes." Some background is necessary. Amendment 51 was proposed by initiative petition and approved at the general election in 1964. Its short title is "Arkansas Amendment for Voter Registration without Poll Tax Payment." Ark. Const. amend. 51, § 20. Amendment 51 abolished the poll tax, and it provides a comprehensive regulatory scheme governing the registration of voters. Martin v. Kohls , 2014 Ark. 427, at 17, 444 S.W.3d at 854 (Goodson, J., concurring). Here, the circuit court found that the provisions of Act 633 are not germane to Amendment 51 and are not consistent with Amendment 51's purpose and policy. The circuit court thoroughly set out and analyzed the voter registration process, and it found that Act 633 "imposes requirements that are not related to the system of voter registration in Amendment 51." The circuit court found that providing photo identification does not constitute a verification of voter registration, as it is the county clerk who verifies voter registration. According to the evidence at the hearing, prior to Act 633, poll workers verified a voter's registration by asking his name, date of birth, and address, and then confirming that information with the information in the poll book. The county clerk's poll book consists of only verified, legally registered voters. In the circuit court's view, "[n]othing in the requirement to produce a compliant photo identification or to complete a sworn statement each time one votes involves the actual process of registering to vote." Appellants contend that this reading of Amendment 51 as only encompassing voter registration, and nothing else, is too narrow. For the reasons that follow, we agree. First, we must determine whether Act 633 is germane to Amendment 51. Germane means "[r]elevant; pertinent," Black's Law Dictionary 802 (10th ed. 2014), or "having a close relationship." Webster's Third New International Dictionary of the English Language, Unabridged 951 (1993). In essence, whether an amendment is relevant, pertinent, or bears a close relationship to Amendment 51 turns on the subject matter and scope of Amendment 51. In our view, providing a system of verifying that a person attempting to cast a ballot is registered to vote is relevant and pertinent, or has a close relationship, to an amendment establishing a system of voter registration. We hold that verifying voter registration as set out in Act 633 is germane to Amendment 51. Next, this court must decide whether Act 633 is consistent with the policy and purpose of Amendment 51. Amendment 51's stated purpose is to "establish a system of permanent personal registration as a means of determining that all who cast ballots in ... elections ... are legally qualified to vote in such elections." Appellants argue that verifying voter registration is a way of determining that all who seek to vote are legally qualified to do so, which is the ultimate aim of the voter-registration system. Appellee, on the other hand, emphasizes the purpose of establishing a system of permanent personal registration, and argues that the language "as a means of determining that all who cast ballots in general, special and primary elections in this State are legally qualified to vote in such elections" modifies the requirement of "establish[ing] a system of permanent personal registration." Thus, in appellee's view, registration is the method of ensuring that all voters are qualified. This argument might be persuasive if we were viewing section 1 of Amendment 51 in isolation. However, we must look to Amendment 51 as a whole to determine its policy and purpose. Gatzke v. Weiss , 375 Ark. 207, 211, 289 S.W.3d 455, 458 (2008) ("The Arkansas Constitution must be considered as whole, and every provision must be read in light of other provisions relating to the same subject matter."). Additionally, section 3 of Amendment 51 provides: "No person shall vote or be permitted to vote in any election unless registered in a manner provided for by this amendment." Thus, the amendment itself contemplates some enforcement mechanism, and Act 633 provides a method of ensuring that no person is permitted to vote who is not registered. Providing a method of enforcement-verification of voter identity by photo identification or by affirmation-is consistent with the policy and purpose of Amendment 51. According to appellee, Act 633 is an attempt to re-write and enlarge the scope of Amendment 51 beyond voter registration to include day-of and post-voting qualification of registered voters. Appellee advances several arguments in favor of this position. For instance, registration ceases thirty days before each election, so according to the appellee and the circuit court, "the voter registration process is complete long before the voter appears at a voting location or casts his ballot." In addition, appellee argues that Act 633's ongoing requirement that voters present compliant identification at the time of voting runs contrary to the intent of Amendment 51 that the system of voter registration be "permanent." In appellee's view, it is impermissible for Act 633 to require voters to "resurrect the completed registration process and re-qualify as a voter each time she votes, as long as she lives." However, none of appellee's arguments are persuasive if one accepts the broader view of Amendment 51's purpose-to ensure that all who cast ballots in elections are legally qualified to vote. Here, we consider only the General Assembly's power to enact Act 633. We cannot say that Act 633's constitutional amendment is clearly not germane to Amendment 51 and not consistent with its policy and purpose. It is therefore constitutional. Accordingly, we reverse the circuit court's preliminary injunction and remand for further proceedings consistent with this opinion. Because we hold that appellee has failed to demonstrate a likelihood of success on the merits, it is unnecessary to address the arguments regarding irreparable harm. See Manila Sch. Dist. No. 15 v. Wagner , 356 Ark. 149, 156, 148 S.W.3d 244, 248 (2004) (citing cases). Likewise, it is unnecessary to address the remaining points on appeal because Act 633 is a valid constitutional amendment. The time for issuance of the mandate is shortened to seven days, and we direct that any petition for rehearing be filed within seven days from the date that this opinion is issued. Reversed and remanded. Kemp, C.J., and Hart, J., dissent. I do not agree that Act 633 is "germane" to amendment 51. Section 1 of amendment 51 clearly states that "[t]he purpose of this amendment is to establish a system of permanent personal registration as a means of determining that all who cast ballots in general, special and primary elections in this State are legally qualified to vote in such elections, in accordance with the Constitution of Arkansas and the Constitution of the United States." Further, section 3 of amendment 51 states, "No person shall vote or be permitted to vote in any election unless registered in a manner provided for by this amendment." I can draw no other conclusion that while the desire to ensure that only qualified electors cast ballots was the impetus for the amendment, its only stated mechanism for achieving this worthy goal was creating a system of "registration." Requiring a voter to show a photo identification card at a polling place is simply not part of the voter registration process. Accordingly, the circuit court did not clearly err when it so reasoned. Like the circuit court, I find it telling that "an individual registering to vote is not required to provide photo identification." Certainly the legislature could have required the presentation of a photo identification card when a person registers to vote. That would clearly be "germane" to the purposes of amendment 51. If providing photo identification were required at registration, requiring presentation of the card at the polling place would be more defensible. Asking for a photo identification card at the polling place strikes me as locking the barn door after the horse has been stolen. Finally, the secretary of state's argument that sections 1 and 3 of amendment 51"imply" that an "enforcement mechanism" is germane to the purposes of the amendment is a leap that I cannot make. No one has suggested that an "enforcement mechanism" can be found anywhere in the text of amendment 51. Accordingly, if it is "implied," then support for that proposition must exist in the amendment 51 "penumbra." Resorting to penumbras when the text of the constitution is silent on the subject is the kind of judicial activism that I have always opposed. The end never justifies the means. I dissent. Kemp, C.J., joins. Mark Martin was sued in his official capacities as Secretary of State for the State of Arkansas and as Chairman of the Arkansas State Board of Election Commissioners. The Commissioners, named in their official capacities, are Rhonda Cole, James Harmon Smith III, Belinda Harris-Ritter (substituted as a party by order of the circuit court), Charles Roberts, Chad Pekron, and James Sharp. Examples of compliant identification include a driver's license, a photo identification card, a concealed handgun carry license, a United States passport, an employee badge or identification document issued by an accredited postsecondary educational institution in the State of Arkansas, a U.S. military identification document, a public assistance identification card (with photo), and a voter verification card under section 7-5-324 (to be issued without payment of fee or charge to persons who do not possess another compliant form of identification under Amendment 51, § 13).See § 2, 2017 Ark. Acts at 3070 (adding to amendment 51, § 13 subsection (b)(1)(B) ). No identification is required of active-duty members of the uniformed services of the United States or United States Merchant Marine who are absent from the country on election day because of his or her service, or the spouse or dependent of such active-duty member. On March 29, 2018, the Secretary of State filed with this court a petition seeking an extraordinary writ requiring the circuit court to enter an order disposing of the motion for preliminary injunction "well in advance" of April 6, 2018 (the date for delivery of live absentee ballots to military and overseas voters), along with a motion to expedite. On April 4, 2018, this court granted expedited consideration but denied the petition. Appellee's counsel conceded at oral argument that if this court found Act 633 to be constitutional, it would be unnecessary to address whether the statutory provisions included in Act 633 violate article 3, section 1 of the Arkansas Constitution.

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MIKE MURPHY, Judge On November 28, 2012, Cindy Shields sustained an injury to her right index finger and left knee while at work for the Arkansas Department of Human Services. She was 49 at the time. A hearing regarding the compensability for the injury to her knee was held on November 21, 2013. At that hearing, the administrative law judge (ALJ) found that Shields had proved by a preponderance of the evidence that her knee injury was compensable. That finding was appealed, and on June 19, 2014, that opinion was affirmed and adopted by the Arkansas Workers' Compensation Commission (Commission). After the ALJ rendered its opinion, but before the Commission adopted it, on December 31, 2013, Shields underwent a total-left-knee-replacement surgery. A second hearing was held in this case on April 21, 2016. At that hearing, the following issues were litigated: (1) whether Shields was entitled to a total-knee-replacement surgery; (2) whether Shields is entitled to permanent partial-disability benefits in the form of an impairment rating; (3) a determination of Shields's temporary total-disability and permanent partial-disability rates; and (4) whether Shields is entitled to temporary total-disability benefits from December 31, 2013, until August 5, 2015. Regarding the first issue, the employer argued that the knee-replacement surgery was not necessary for Shields's work-related injury, but instead for her "preexisting longstanding degenerative joint disease." In Shields's reply, she did not dispute that diagnostic testing of her left knee revealed preexisting degenerative changes. The ALJ found, however, that Shields gave credible testimony that her left knee was asymptomatic before her injury, and there were no medical records in evidence that demonstrated any difficulties or complaints regarding her knees before the accident. The ALJ then went on to find that Shields reached maximum medical improvement on August 5, 2015, was entitled to a 50 percent impairment rating to the lower left extremity, that the compensation rates for temporary total- and partial-disability benefits established in a prior order should remain the same, and that Shields was entitled to temporary total disability from December 31, 2013, until August 5, 2015. The appellants appealed this decision to the Commission, and appellee Death and Permanent Total Disability Trust Fund (Trust Fund) filed a cross-appeal regarding the disability rates. The Trust Fund also filed, at this juncture, motions to supplement and expand the record, which the Commission granted. In its June 6, 2017 decision, the Commission entered a plurality opinion affirming the decision of the ALJ, with the exception of the issue of the average weekly wage, which it changed to $416 for temporary total disability and $312 for permanent partial disability (down from $477 and $368, respectively). The appellants now appeal, alleging the Commission committed error in adopting the portions of the ALJ's opinion that it did. Shields cross-appeals, arguing the Commission erred in modifying her temporary-total and permanent-partial disability rates. I. Res Judicata The employer first argues that Shields's claims for total-knee-replacement surgery and corresponding disability benefits are barred by res judicata, because Shields did not present evidence or preserve the issue of surgery and the corresponding disability benefits, or reserve the issues thereof, at the November 21, 2013 hearing. However, despite having made this argument to the Commission, the Commission did not rule on this issue. In order to preserve an issue for appellate review in a workers'-compensation case, it is a party's responsibility to present the issue to the Commission and obtain a ruling. Because the employer failed to obtain any ruling on the argument, we hold that this issue has been waived and that the merits need not be addressed on appeal. See St. Edward Mercy Med. Ctr. v. Chrisman , 2012 Ark. App. 475, at 6-7, 422 S.W.3d 171, 175. II. Entitlement to Additional Medical Care and Benefits The employer argues alternatively that the total-knee-replacement surgery was not reasonable and necessary medical treatment for Shields's November 28, 2012 injury. In appeals involving claims for workers' compensation, the appellate court views the evidence in the light most favorable to the Commission's decision and affirms the decision if it is supported by substantial evidence. Prock v. Bull Shoals Boat Landing , 2014 Ark. 93, 431 S.W.3d 858. Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. Id. The issue is not whether the appellate court might have reached a different result from the Commission but whether reasonable minds could reach the result found by the Commission. Id. When there are contradictions in the evidence, it is within the Commission's province to reconcile conflicting evidence and determine the facts. Wilson v. Smurfit Stone Container , 2009 Ark. App. 800, 373 S.W.3d 347. This court will reverse the Commission's decision only if it is convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. Prock , supra. Under Arkansas workers'-compensation law, the employer takes the employee as she is found, and an aggravation of a preexisting, noncompensable condition by a compensable injury is, itself, compensable. Oliver v. Guardsmark, Inc. , 68 Ark. App. 24, 3 S.W.3d 336 (1999). Furthermore, the Commission is authorized to accept or reject a medical opinion and is authorized to determine its medical soundness and probative value. Poulan Weed Eater v. Marshall , 79 Ark. App. 129, 84 S.W.3d 878 (2002). In its order, the ALJ found that Shields credibly testified that she was not having any difficulties with her left before to her November 28, 2012 fall. Shields had testified that before her fall, she had engaged in activities such as hiking and push mowing her one-acre lawn with no trouble. After her fall, her knee became symptomatic including swelling and popping and locking. The ALJ then carefully detailed Shields's medical history. Shields's first trip to the ER was on the day of her injury. The notes from the treating doctor indicated her knee had "mild soft tissue swelling." After following up with her normal doctor, she was referred to an orthopedic surgeon, Dr. Harp. The assessment at that visit on January 31, 2013, was "1. Post-traumatic patellofemoral syndrome, left knee. 2. [Degenerative Joint Disease ], left knee, medial compartment, with a recent acute on chronic exacerbation." MRI results demonstrated that her arthritic knee condition progressed from mild to severe in a three-month period. They also showed a meniscus tear. Treatment plans began conservatively but to no avail. Knee-replacement surgery was discussed on November 15, 2013. Before the hearing, the employer retained Dr. Bruce Randolph with UAMS to review Shields's medical records. Dr. Randolph opined that the total-knee-replacement surgery was to treat the longstanding degenerative changes in Shields's knee and that any soft-tissue injury Shields had sustained was healing and did not cause the need for the surgery. The ALJ concluded, based on the medical records and Shields's testimony, "that whatever damage was done to the claimant's left knee due to her specific incident on November 28, 2012, caused her pre-existing degenerative condition to accelerate which eventually resulted in her need for a total left knee replacement." It found that the surgery was reasonable and necessary medical treatment. Here, the ALJ provided that it gave less weight to Dr. Randolph's opinions because Dr. Randolph was not an orthopedist. It noted that Shields had credibly testified that she had not experienced knee pain before the November fall and that objective medical evidence demonstrated that her knee was injured in the fall and began degenerating rapidly thereafter. The ALJ's findings are supported by substantial evidence. III. Healing Period The employer next argues that substantial evidence does not support the finding that Shields was in a healing period from December 21, 2013, until August 5, 2015. The healing period is defined as that period for healing of the injury which continues until the employee is as far restored as the permanent character of the injury will permit. Ark. Highway & Transp. Dep't v. McWilliams , 41 Ark. App. 1, 846 S.W.2d 670 (1993). During that period, an employee is entitled to temporary disability when the employee suffers a total or partial incapacity to earn wages. Ark. Highway & Transp. Dep't v. Breshears , 272 Ark. 244, 613 S.W.2d 392 (1981). If the underlying condition causing the disability has become more stable and if nothing further in the way of treatment will improve that condition, the healing period has ended. Mad Butcher, Inc. v. Parker , 4 Ark. App. 124, 628 S.W.2d 582 (1982). Conversely, the healing period has not ended so long as treatment is administered for the healing and alleviation of the condition. McWilliams, supra. The determination of when the healing period ends is a factual determination to be made by the Commission. Id. Where the sufficiency of the evidence to support the Commission's findings of fact is challenged, this court views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission's findings. Thurman v. Clarke Indus., Inc. , 45 Ark. App. 87, 90-91, 872 S.W.2d 418, 421 (1994). The employer argues that the evidence supports a finding that Shields was at maximum medical improvement on October 1, 2014, because the report from Dr. Harp, which the ALJ cited in its opinion, stated that Shields was at maximum medical improvement and able to return to work on that date. The employer argues this directly contradicts the ALJ's findings. However, in its opinion, the ALJ provided that [t]he Commission has also been asked to determine the claimant's date of maximum medical improvement. I do note that Dr. Harp indicated maximum medical improvement in two separate medical records, the first time on October 1, 2014. However, in a medical record dated August 5, 2015, where at that time Dr. Harp provides an impairment rating for the claimant, he states: "Therefore, at this point, the patient is at maximum medical improvement. She does have a slight amount of medial lateral instability. To treat this would require increasing the size of the spacer. The patient does not want to undergo this currently so we are truly at maximum medical improvement." After review of the medical records in this matter, specifically considering the October 1, 2014 and August 5, 2015 medical records, I find that the claimant actually reached maximum medical improvement on August 5, 2015. Here, the ALJ's determination that Shields was in a healing period from December 21, 2013, until August 5, 2015, is supported by medical evidence. The ALJ explained its reasoning for not counting the October 1, 2014 date. Because the ALJ made its factual determination based on evidence from the record, we hold that there is no error on this point. IV. Permanent Anatomical-Impairment Rating The employer argues that because the compensable injury was not the major cause of any impairment, the Commission erred in assigning Shields a 50 percent anatomical-impairment-rating award. The employer reasons that the impairment is due to the degenerative condition and not due to the November 28, 2012 injury. It also argues that, alternatively, the permanent-impairment rating is not ripe for consideration because Shields testified that she needs another knee surgery to improve knee function; thus, it is premature for the Commission to make a finding on the amount of impairment Shields has as a result of the outcome of her total-knee-replacement surgery. "Permanent impairment" has been defined as any permanent functional or anatomical loss remaining after the healing period has ended. Johnson v. Gen. Dynamics , 46 Ark. App. 188, 878 S.W.2d 411 (1994). Any determination of the existence or extent of physical impairment shall be supported by objective and measurable physical or mental findings. Ark. Code Ann. § 11-9-704(c)(1)(B). The Commission is authorized to decide which portions of the medical evidence to credit and to translate this medical evidence into a finding of permanent impairment. Main v. Metals , 2010 Ark. App. 585, at 9, 377 S.W.3d 506, 511. As noted above, Dr. Harp indicated Shields had reached the end of her healing period and assessed her with an impairment rating in a report dated August 5, 2015. Dr. Harp rated Shields with a 50 percent impairment to her lower left extremity due to her total knee replacement. Dr. Harp's report provided that he believed the surgery had a "fair result." Because we affirm the prior point regarding when Shields reached maximum medical improvement, we necessarily reject the employer's argument that this issue is not now ripe for consideration. Likewise, we hold the impairment rating was supported by substantial evidence. Here, the ALJ relied on medical evidence provided in a report by Dr. Harp and cross-referenced that information with the AMA Guides to the Evaluation of Permanent Impairment to conclude the 50 percent rating is appropriate. This concludes the issues on direct appeal, all of which are affirmed. V. Cross Appeal: Modified Disability Rate On cross appeal, Shields argues that it was inappropriate for the Commission to modify her disability-wage rate when that rate had been set in a prior opinion by the Commission. Shields argues that to do so is in violation of the doctrine of the law of the case. The doctrine of law of the case provides that a decision of an appellate court establishes the law of the case for the trial on remand and for the appellate court itself on subsequent review. Linder v. Linder , 348 Ark. 322, 338, 72 S.W.3d 841, 849 (2002). However, this doctrine is inapplicable because Arkansas Code Annotated section 11-9-713(a)(1) provides that "[e]xcept where a joint petition settlement has been approved, the Workers' Compensation Commission may review any compensation order, award, or decision." The statute goes on to provide that this may be done upon proof of an erroneous wage rate and that, after review, the Commission may modify the compensation previously awarded. Ark. Code Ann. § 11-9-713(a)(2)-(3). To refresh, Shields and the employer stipulated to the compensation rates at the November 21, 2013 hearing on this claim. The Trust Fund was not yet joined as a party at this time. The Trust Fund was joined as a party by letter from the employer on January 27, 2016. As a general rule, one who becomes a party to an action after the making of a stipulation in a workers'-compensation proceeding is not bound by a prior stipulation. Jackson v. Circle T Express , 49 Ark. App. 94, 896 S.W.2d 602 (1995). The Trust Fund then provided evidence to the Commission that the November 2013 rates were not supported by Shields's wage records. The Commission's findings on Shields's disability rates were made in accordance with statutory authority. Affirmed on direct appeal; affirmed on cross-appeal. Gladwin and Brown, JJ., agree. The Trust Fund entered this litigation on January 27, 2016, by a letter from the employer, roughly three months before the April hearing. It deferred to the outcome of the litigation on all issues except for the average weekly wage and benefits rate. The Trust Fund contended that Shields's wage records do not support the stipulation for compensation rates of $477 for temporary-total disability and $368 for permanent partial-disability. Since the Trust Fund's entry, Shields has consistently argued that the Trust Fund may not now challenge the average weekly wage and benefit rates, because those matters were previously stipulated and adopted in a prior order, and doing so is barred by res-judicata principles. The Trust Fund's position is that it was not a party at the time of the stipulation, it is not bound by the prior stipulation, and that the Commission has statutory authority to modify compensation awards upon proof of erroneous wage rates under Arkansas Code Annotated section 11-9-713 (Repl. 2012). Under Arkansas law, the Commission is permitted to adopt the ALJ's opinion. SSI, Inc. v. Cates , 2009 Ark. App. 763, 350 S.W.3d 421. In so doing, the Commission makes the ALJ's findings and conclusions the findings and conclusions of the Commission. Id. For purposes of our review, we consider both the ALJ's opinion and the Commission's majority opinion. Id.

RITA W. GRUBER, Chief Judge Sherry Rickman appeals from the Crittenden County Circuit Court's order terminating her parental rights to K.R., born August 23, 2007. Appellant does not challenge the grounds for her termination. Her sole point on appeal is that the evidence was insufficient to support the circuit court's decision that termination was in K.R.'s best interest because appellant does not pose a potential harm to K.R. We find no error and affirm the circuit court's order. The case began on May 13, 2014, when the Arkansas Department of Human Services (DHS) took emergency custody of K.R. based on Rickman's illegal drug use. K.R. had been in foster care for over three years when the court terminated appellant's parental rights to K.R. in an order entered on June 5, 2017. The court terminated on the ground of aggravated circumstances, based on its previous finding that there was little likelihood that further services to appellant would result in successful reunification. The court had entered an order less than three months earlier terminating further reunification services to appellant, finding by clear and convincing evidence that aggravated circumstances existed because there was little likelihood that further services to the family would result in successful reunification; finding that it was not possible to return K.R. to appellant; and determining that K.R. "desperately need[ed] stability and continuity." This court affirmed that decision in Rickman v. Ark. Dep't of Human Servs. , 2017 Ark. App. 610, 534 S.W.3d 180. A more complete rendition of the procedural history in this case is set forth in that opinion. Id. In its finding that it was in K.R.'s best interest for appellant's parental rights to be terminated, the court specifically considered the testimony of the foster parent that she was interested in adopting K.R. and the testimony of the caseworker that there was a substantial likelihood that K.R. would be adopted. The court also found by clear and convincing evidence that there was potential harm to K.R. if she were to be returned to appellant's custody, specifically stating the following: The court further finds by clear and convincing evidence that there is potential harm if [K.R.] is returned to the custody of the mother, based on the Court's findings in subparagraphs J, K, and L of the No Reunification Services order issued by the Court on [February] 9, 2017, and filed for record on March 6, 2017, and that those findings are incorporated hereto. Specifically, the Court held after the hearing that it was contrary to the health, safety and welfare for [K.R.] to be returned home, and that there had been a lack of stability in Sherry Rickman's home, with significant ongoing issues with clutter and trash that would be harmful to the child, and there was a lack of stability in the home in Sherry Rickman's relationship with Johnny Underwood, when there had been two incidents of domestic violence within the past six months and evidence of alcohol abuse by Mr. Underwood, as well as Mr. Dow's testimony on that date that was based on Ms. Rickman's statements to him, she was in an emotionally and physically abusive relationship. The Court notes despite Ms. Rickman's testimony on that date that he had moved out of the home, he was visiting the home two to three times per week and had spent the night before the hearing in the home. Further Ms. Rickman's own testimony on that date was that she had an addiction to Adderall and had tried to get Adderall by means other than from medical providers. There was further testimony that Ms. Rickman suffered from borderline functioning, and had issues taking her medication regularly and had issues with parenting. On appeal, appellant argues that the evidence was insufficient to support the court's best-interest finding because appellant does not pose a potential harm to K.R. Specifically, appellant contends that the court's reliance on its no-reunification order for evidence of potential harm was not sufficient. She argues that DHS was required to present proof of potential harm at the termination hearing and claims that there was no evidence regarding appellant's "current situation" as it existed after the no-reunification order was entered and at the time of the termination hearing. We review termination-of-parental-rights cases de novo. Dinkins v. Ark. Dep't of Human Servs. , 344 Ark. 207, 40 S.W.3d 286 (2001). At least one statutory ground must exist, in addition to a finding that it is in the child's best interest to terminate parental rights; these must be proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341 (Supp. 2017). The appellate inquiry is whether the circuit court's finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. Shawkey v. Ark. Dep't of Human Servs. , 2017 Ark. App. 2, at 4, 510 S.W.3d 803, 806. Credibility determinations are left to the fact-finder. Id. Finally, the intent behind the termination-of-parental-rights statute is to provide permanency in a child's life when it is not possible to return the child to the family home because it is contrary to the child's health, safety, or welfare, and a return to the family home cannot be accomplished in a reasonable period of time as viewed from the child's perspective. Ark. Code Ann. § 9-27-341(a)(3). In finding that termination is in the best interest of the child, the circuit court is required to consider the potential harm to the health and safety of the child that might result from returning the child to the parent's custody. Ark. Code Ann. § 9-27-341(b)(3)(A)(ii). The circuit court is not required to find that actual harm would result or to affirmatively identify a potential harm. Dowdy v. Ark. Dep't of Human Servs. , 2009 Ark. App. 180, 314 S.W.3d 722. The potential-harm evidence must be viewed in a forward-looking manner and considered in broad terms. Samuels v. Ark. Dep't of Human Servs. , 2014 Ark. App. 527, 443 S.W.3d 599. Finally, a parent's past behavior is often a good indicator of future behavior and may be viewed as a predictor of likely potential harm should the child be returned to the parent's care and custody. Shawkey , 2017 Ark. App. 2, at 6, 510 S.W.3d at 807 ; Helvey v. Ark. Dep't of Human Servs. , 2016 Ark. App. 418, at 10, 501 S.W.3d 398, 404. Here, the no-reunification order containing the findings the court later considered important in its consideration of potential harm was entered less than three months before the termination hearing. Moreover, the case had been pending for three years while K.R. lingered in foster care. In addition to the evidence at the termination hearing, Arkansas Code Annotated section 9-27-341(a)(4)(B) requires the court to "rely upon the record of the parent's compliance in the entire dependency-neglect case" in making its decision whether it is in the juvenile's best interest to terminate parental rights. Ark. Code Ann. § 9-27-341(a)(4)(B). And the law specifically provides that a parent's overtures toward participation in the case plan or following orders of the court "following the permanency planning hearing and preceding the termination hearing is an insufficient reason to not terminate parental rights." Ark. Code Ann. § 9-27-341(a)(4)(A). Finally, although appellant testified that she had a clean home, was medication compliant, was participating in counseling, and had stable housing at the time of the hearing, her caseworker testified that she had no information that appellant's status had significantly changed since the reunification services had been terminated several months earlier and that appellant had not contacted DHS to offer any evidence of changes. Furthermore, appellant failed to provide any reports or other confirmation that she was compliant with counseling, medications, and other aspects of the court's prior orders. Credibility determinations are for the circuit court, Shawkey , 2017 Ark. App. 2, at 4, 510 S.W.3d at 806, and it was not required to believe appellant's self-serving testimony at the termination hearing that her situation had changed less than three months after it had terminated her reunification services. Tankersley v. Ark. Dep't of Human Servs. , 2012 Ark. App. 109, at 7-8, 389 S.W.3d 96, 100. Accordingly, the circuit court did not clearly err in considering that potential harm could result if K.R. were returned to appellant's custody and in finding that termination of appellant's parental rights was in K.R.'s best interest. Affirmed. Abramson and Gladwin, JJ., agree.

RITA W. GRUBER, Chief Judge Appellant Martha Rodriguez (formerly Lopez) appeals from an order of the Crawford County Circuit Court quieting title in favor of appellee, Noemi Lopez as administratrix of the estate of Guadalupe F. Lopez. Appellant raises two arguments on appeal: (1) that the circuit court improperly quieted title in favor of appellee; and (2) that this court should reverse and remand for a new trial because the trial judge was disqualified from hearing the case as the attorney who drafted the quitclaim deed at issue. We affirm. Appellant and Guadalupe Lopez (Mr. Lopez) were in a relationship when he purchased the property located at 400 North 23rd Street in Van Buren, Arkansas. After he purchased the property, Mr. Lopez executed a quitclaim deed placing title in himself and Martha C. Salinas as joint tenants with the right of survivorship. The deed was filed on May 8, 1995. The couple married on January 28, 1996, and divorced on July 21, 1998. Section VII of the divorce decree provided: That during the marriage of the parties, they have acquired no tract of real property. That [Mr. Lopez] acquired a home and real property located at 400 North 23rd Street which is non-marital property. That [appellant] does not have an interest in said property. Section VIII addressed the division of personal property. Paragraph X of the decree ordered that the parties shall be awarded the property as specified in paragraphs VII and VIII. After the divorce, Mr. Lopez resided at the home and continued to pay the monthly note/mortgage until paid in full in 2007, as well as the property taxes. Mr. Lopez died in 2012. His daughter, Noemi Lopez, was the administratrix of his estate; she filed a petition for declaratory judgment to quiet title on September 2, 2015. A bench trial occurred on May 1, 2017. Appellant testified at the bench trial that she married Mr. Lopez on January 28, 1996, separated in April 1998, and divorced in July 1998. She explained that Mr. Lopez purchased the property in April 1995. Appellant testified that she was with Mr. Lopez when he obtained the loan and explained that she was not approved for the loan because of her personal debts and credit problems. She stated that there was a mortgage on the property and that a warranty deed had been executed that transferred property to him. She testified that just before the divorce, Mr. Lopez told her that the property was in his name and that she had to leave the property. It was appellant's understanding when she signed the divorce decree that the house belonged only to Mr. Lopez. Appellant testified that after the divorce, Mr. Lopez was solely responsible for the mortgage payments and that she did not pay any property taxes until 2014. Appellant testified that Mr. Lopez never told her that he had executed the quitclaim deed, which was filed on May 8, 1998. She did not know her name was on the title to the property until 2014, when the tax collector charged her for two years of property taxes. She testified that she paid the taxes because they were two years behind, and she hired an attorney to ascertain her interest in the property. Her attorney told her she could begin cleaning the home. Appellant stated that she did not have a key to the home, but she entered the home through an open door. Appellant indicated that the statement regarding the property in the divorce decree was a mistake and that she did not discover the mistake until 2014. Martha Lopez (Ms. Lopez), who was married to Mr. Lopez before his marriage to appellant, also testified at the trial. Ms. Lopez testified that she resumed her relationship with Mr. Lopez after he was divorced from appellant. She stated that in 1998, she and Mr. Lopez, along with two of her children, lived in the home located at 400 North 23rd Street. She explained that in 2000, she and the children moved to Springdale and they would see each other on the weekends. Ms. Lopez testified that she and Mr. Lopez paid the mortgage from their joint checking account and eventually paid off the mortgage; the bank issued a deed of release. She stated that they paid the property taxes until Mr. Lopez died in 2012. Ms. Lopez testified that she moved to Springdale after Mr. Lopez died and thereafter heard nothing about the property taxes. In addition, she indicated that Mr. Lopez intended the property to go to his children and that he never mentioned appellant as having an interest in the property in all the years they lived in the home. Appellee Noemi Lopez testified that she is the daughter of Mr. Lopez and is the administratrix of his estate. She stated that she had lived in the home with her father, mother, and two siblings and had visited her father at the home. Appellee explained that her father lived in the home during the week while he worked and traveled to Springdale on the weekends. In addition, appellee lived in the home by herself for a year and a half. Appellee also testified that there were periods when her father rented the home and that she assisted him at times with the rent collection. Appellee explained that her father told her that he wanted his children to have the house and that he had never mentioned appellant having an interest in the property. Appellee testified that her father never told her about the quitclaim deed, but he had told her that he had put the property in his and appellant's name as joint tenants with the right of survivorship. Appellee explained in the following colloquy: Q. Okay. Had he ever told you that he had placed it in both their names as joint tenants with right of survivorship? A. Yes, he did. Q. He told you that? A. Yes. Q. When did he tell you that? A. When he-we were talking about him, you know, giving the house to the kids and all that. Q. He told you he put [appellant's] name on the property? A. Yes. But at the divorce that it was- Q. At least that's what he thought. A. Yes. Correct. Appellee testified that two years after her father died, she realized someone had changed the locks on the house. The neighbors told her they had seen two men and a woman around the house, and appellee thought appellant had been the woman seen at the house. Appellee sought an order of the probate court to prevent anyone from going to the property. In addition, when she tried to pay the property taxes, she learned that they had already been paid by appellant. Ruling in favor of appellee, the circuit court entered an order to quiet title on June 6, 2017, finding that, pursuant to the divorce decree, appellant had relinquished any interest in the property and that the divorce decree set forth that the property was the separate property of Mr. Lopez and was awarded to him in the decree. The order to quiet title added that the deed for the property had never been amended, nor had a quitclaim deed been executed to establish the property solely in the name of Mr. Lopez. In addition, the court specifically found that appellant's testimony regarding her understanding of the divorce decree and her assertion that she maintained an interest in the property after the divorce lacked credibility. The court further found that the time to present any alleged mistake in the divorce decree had long passed and that appellant was not "legally entitled under the Rules to challenge the terms of the divorce decree at this date." Appellant filed a timely notice of appeal. We review quiet-title actions de novo, but we will not reverse findings of fact unless they are clearly erroneous. Williams v. Double S Ranch, LLC , 2016 Ark. App. 609, at 3, 509 S.W.3d 680, 683. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been committed. Ward v. Adams , 66 Ark. App. 208, 989 S.W.2d 550 (1999). In reviewing a trial court's findings of fact, the appellate courts give due deference to the trial court's superior position to determine witness credibility and the weight to be accorded their testimony. Steele v. Blankenship , 2010 Ark. App. 86, at 10, 377 S.W.3d 293, 298. Appellant argues that the trial court improperly quieted title in the estate because it erroneously found that she knew of her interest in the property when she signed the divorce decree. Paragraph VII of the divorce decree specifically provided that appellant and Mr. Lopez did not acquire any tract of real property during the marriage; that Mr. Lopez acquired the property located at 400 North 23rd Street, which was nonmarital property; and that appellant did not have an interest in the property. The last paragraph of the decree stated that the parties shall be awarded the property as specified in paragraph VII. Appellant and Mr. Lopez, both of whom were represented by counsel, agreed to the divorce decree. Appellant sought no interest in the property at the time of the divorce. Both appellant and Mr. Lopez, as well as their lawyers, signed off on the decree. While appellant testified that she had no knowledge of the quitclaim deed at the time of her divorce, the trial court found her testimony regarding her understanding of the divorce decree and her assertion that she maintained an interest in the property after the divorce to lack credibility. Further, the trial court recognized the actions of appellant and Mr. Lopez after the divorce. Appellant testified that after the divorce, Mr. Lopez lived in the home and made all mortgage payments. Mr. Lopez paid off the mortgage in 2007 and paid the taxes until his death in 2012. It was not until 2014 that appellant paid any money toward the house since the divorce in 1998. The trial court further found that "the time period to present any alleged error or mistake with respect to the Divorce Decree entered in July of 1998 has long passed and the [appellant] is not legally entitled under the Rules to challenge the terms of the divorce decree at this late date." Rule 60 of the Arkansas Rules of Civil Procedure provides a method and a time frame for a party to request the court to correct errors or mistakes in judgments, which appellant failed to do. Based on the facts of this case, we cannot say that the trial court's findings are clearly erroneous. For her second point on appeal, appellant contends that this court should reverse and remand for a new trial because the trial judge was disqualified from hearing the case because he was the attorney who apparently drafted the quitclaim deed at issue. The quitclaim deed, which was filed in 1995, indicates that it was prepared by "MICHAEL J. MEDLOCK, ATTORNEY AT LAW, VAN BUREN, ARK." Appellant failed to timely object and has thus waived the issue on appeal. Appellant acknowledges that litigants can waive certain judicial disqualifications by failing to timely object. See Worth v. Benton Cty. , 351 Ark. 149, 89 S.W.3d 891 (2002) ; Nowlin v. Kreis , 213 Ark. 1027, 214 S.W.2d 221 (1948). The fact that "Michael Medlock" prepared the quitclaim deed was apparent on the face of the deed. As such, appellant had an opportunity to raise the issue of disqualification to the trial court but failed to do so. Affirmed. Whiteaker and Hixson, JJ., agree. This was appellant's name prior to her marriage to Mr. Lopez. After her divorce from Mr. Lopez, she remarried and changed her name to Rodriguez. Appellant also argues that the doctrine of res judicata does not bar her from litigating her interest in the property because she lacked a full and fair opportunity to litigate her ownership of the property before the divorce court. We do not address this argument because the trial court did not rule on this basis. While we recognize appellant's argument that some bases for disqualification may be so fundamental as to require reversal regardless of whether it was raised below, the cases she cited are all criminal cases where a familial relationship existed between the trial judge and a prosecutor involved in the case or where the trial judge had been involved in the case as a prosecutor prior to entering the judiciary, and those cases are not applicable here.

ROBERT J. GLADWIN, Judge Appellant Terry Lee, Jr., appeals the June 5, 2017 sentencing order entered by the Desha County Circuit Court. Specifically, he appeals the increase of his sentence that resulted from a hearing on a negotiated plea agreement from thirty-six months to twelve years-and then from twelve years to twenty years in the Arkansas Department of Correction (ADC). Appellant claims that the trial court abused its discretion when it refused to allow him to withdraw his plea after it had amended his entered plea agreement and when it increased his sentence in response to appellant's actions in the courtroom that constituted contempt of court. We affirm in part and dismiss in part. I. Facts Appellant was charged with the Class C felony offense of domestic battering in the second degree, subject to not less than three years nor more than twenty years as a habitual offender and up to a $10,000 fine. Appellant and his appointed counsel initialed, signed, and completed a plea statement establishing that appellant was aware of his rights and the plea process. Included in the document was a sentence recommendation signed by the deputy prosecuting attorney reflecting that if appellant pled guilty, the State would recommend thirty-six months in the ADC with an additional sixty months' suspended sentence, along with fines and costs. A plea hearing was held on June 5, 2017. Appellant was present with his appointed attorney, along with the Tenth Judicial District's deputy prosecutor. Appellant expressed to the trial court that he desired to take the plea and did not want to proceed to trial. Appellant acknowledged that he was aware of his right to a trial and that he was not forced to give up that right. However, he also explained that he could not remember the details of his criminal act sufficient to establish a factual basis for the plea. The State proffered what the anticipated testimony would be at trial from the case summary provided by McGehee police officer Jonathan Burgess, as set forth in his case file, which also included a statement from the victim, appellant's then girlfriend, Asia Davis. Before accepting his plea, the trial court asked appellant if he would like to change his plea from guilty to no contest. The trial court explained that a plea of no contest meant that appellant was not going to challenge the State's evidence; the State would proffer the evidence it would present at trial; and the trial court would make the determination if there was enough evidence to convict. The trial court reviewed the plea agreement and reiterated to appellant that he could receive twenty years on "this thing," and was getting three years pursuant to the agreement, plus an additional five years' suspended imposition of the sentence. The trial court said, "As I stated before, I find that there is a factual basis for your plea." The trial court then inquired of the State whether the victim was appellant's girlfriend and whether they were possibly back together. After hearing from appellant that they were not "together" but were in communication, the trial court again asked appellant if he had been too drunk to remember that night. Appellant indicated that he remembered some things, but acknowledged that he had been intoxicated. The trial court then stated, "Yeah, I've already taken your plea, and I've accepted your plea. Tell me what you do remember." Appellant answered: I really don't. I-I really-I don't-I don't really remember anything, really, too much. I came home-I don't know. I just blacked out, I guess. I really don't remember, and I don't even know why. It was-it started with an argument, not dealing with-it started with an argument and transformed to that, you know what I'm saying, transformed to something else into that. I flat done lost it. I don't remember too much though. And the table leg; they say such-and-such said this about a table leg. Who was there even to say I did anything with the table leg? I'm just-I was just furious. She the only one there. The trial court responded, I'm going to tell you what I'm thinking right now. I'm thinking three years is too low. And if you can be that intoxicated and beat the hell out of somebody with a table leg, whatever personal problems she may have, that's on her. But to come home and to do that, whether intoxicated or not-and intoxication is not a defense in the State of Arkansas-is a problem. And in my opinion, you're smiling too much about it. The trial court further questioned appellant about why he was currently incarcerated and what programs he had completed in the ADC. The trial court asked again if appellant understood that the trial court was not required to carry out the sentence agreed on by the defense counsel and prosecuting attorney and that the power of sentencing rested solely in the trial court. The trial court inquired about appellant's prior record and looked at the photographs of the victim taken after she had been beaten with the table leg. The trial court announced that appellant would be sentenced to twelve years' imprisonment in the ADC. Appellant's counsel immediately asked the trial court if she could have the opportunity to ask appellant if he would like to withdraw his no-contest plea. The trial court stated that the plea had already been accepted, that it would not accept a withdrawal, and that appellant was "going to get twelve years in ADC, and that is it." Appellant asked the trial court why it was going to do that, to which it explained that his sentence could be changed to twenty years. Appellant responded, "I don't give a f* * *, man." The trial court then amended appellant's sentence to twenty years. The following exchange occurred: THE COURT : Twenty years. Also-also let's- DEFENDANT : I'll get yo' ass too, n* * *er. THE COURT : -ten thousand-oh, hold- DEFENDANT : Yeah, I'll get yo' ass too, n* * *er. THE COURT : Oh, hold up. Prosecutor, I want you to go ahead and give him a charge on it. He's got 20 years. I'm going to max him out also on the-on his fines as well. DEFENDANT : Hunt him down and take-man, I don't give a f* * *. Ain't-Mother * * *er- THE COURT : And I find him in contempt. DEFENDANT : He ain't saying nothing, n* * *er. THE COURT : Mr. Prosecutor, I want an investigation on him for threatening a circuit judge. And I want that done. The sentencing order was filed on June 5, 2017, reflecting twenty years in the ADC and the maximum fine available; appellant filed his notice of appeal on July 5, 2017. II. Standard of Review and Applicable Law Arkansas Rule of Criminal Procedure 26.1(a) (2017) specifically provides that "[a] defendant may not withdraw his or her plea of guilty or nolo contendere as a matter of right after it has been accepted by the court." However, before entry of judgment, the trial court, in its discretion, may allow the defendant to withdraw his plea to correct a manifest injustice if it is fair and just to do so, giving consideration to the reasons advanced for the withdrawal. See, e.g. , Green v. State , 362 Ark. 459, 462, 209 S.W.3d 339, 341 (2005). Appeals of denials of motions to withdraw no-contest pleas are reviewed for abuse of discretion. Zoller v. State , 282 Ark. 380, 385, 669 S.W.2d 434, 436 (1984). An appellant bears the burden of showing to the satisfaction of the trial court that manifest injustice would result unless it sets aside the plea. Folk v. State , 96 Ark. App. 73, 77, 238 S.W.3d 640, 642 (2006). What may constitute "manifest injustice" under the rule is illustrated in Rule 26.1(b), which provides: Withdrawal of a plea of guilty or nolo contendere shall be deemed to be necessary to correct a manifest injustice if the defendant proves to the satisfaction of the court that: (i) he or she was denied effective assistance of counsel; (ii) the plea was not entered or ratified by the defendant or the person authorized to do so in his or her behalf; (iii) the plea was involuntary, or was entered without knowledge of the charge or that the sentence imposed could be imposed.... Arkansas law does not provide a means to appeal a plea of guilty or nolo contendere except in special circumstances that are not present in this appeal. Ark. R. Crim. P. 24.3(b) (2017). See Reynolds v. State , 2012 Ark. App. 440, 2012 WL 3744793. A defendant may appeal from a guilty plea under three limited exceptions: (1) a conditional guilty plea under certain specified circumstances pursuant to Arkansas Rule of Criminal Procedure 24.3(b) ; (2) when the assignment of error is from a sentence or sentencing procedure that was not an integral part of the acceptance of the plea; and (3) an appeal from a guilty plea when the issue on appeal is one of evidentiary errors that arose after the plea but during the sentencing phase of the trial, regardless of whether a jury was impaneled or the trial judge sat as the trier of fact during that phase. Matthews v. State , 2017 Ark. App. 25, 2017 WL 203340. Arkansas Rule of Criminal Procedure 25.3 governs relevant notice provisions: (a) The judge shall not participate in plea discussions. (b) If a plea agreement has been reached which contemplates entry of a plea of guilty or nolo contendere in the expectation that the charge or charges will be reduced, that other charges will be dismissed, or that sentence concessions will be granted, upon request of the parties the trial judge may permit the disclosure to him of the agreement and the reasons therefor in advance of the time for tender of the plea. He may then indicate whether he will concur in the proposed disposition. If, after the judge has indicated his concurrence with a plea agreement and the defendant has entered a plea of guilty or nolo contendere, but before sentencing, the judge decides that the disposition should not include the charge or sentence concessions contemplated by the agreement, he shall so advise the parties and then in open court call upon the defendant to either affirm or withdraw his plea. (c) If the parties have not sought the concurrence of the trial judge in a plea agreement or if the judge has declined to indicate whether he will concur in the agreement, he shall advise the defendant in open court at the time the agreement is stated that: (i) the agreement is not binding on the court; and (ii) if the defendant pleads guilty or nolo contendere the disposition may be different from that contemplated by the agreement. (d) A verbatim record of all proceedings had in open court pursuant to subsections (b) and (c) of this rule shall be made and preserved by the court. III. Discussion A. Did the Trial Court Abuse Its Discretion When It Refused to Allow Appellant to Withdraw His Entered and Accepted Plea Agreement? Appellant submits that the trial court abused its discretion in forcing him to go forward with the plea agreement from which he wanted to withdraw. Appellant argues that it is evident that after the trial court had decided to increase his sentence from three to twelve years, the actions and words of appellant indicated that he wished to withdraw his plea. Appellant submits that he was not getting the benefit of his agreed upon bargain. While acknowledging that he never expressly said he wished to withdraw, appellant notes that he did say to the trial court, "[W]hat if I ain't wanting to plea ..." The colloquy that followed evidenced that appellant became irate. His counsel asked the trial court for permission to discuss withdrawal of the plea with her client, but that request was promptly and summarily declined by the trial court. Appellant argues that he sufficiently indicated his intent to withdraw from the altered plea agreement. Appellant cites Drake v. State , 103 Ark. App. 87, 286 S.W.3d 728 (2008), in which a Drew County circuit judge was found to have entered a plea agreement although he had not expressly stated his intent to do so. This court held that "while the circuit judge did not explicitly state at Drake's plea hearing that it accepted the guilty plea, it is implicit in the colloquy between the court and appellant that the court did so." Id. at 91, 286 S.W.3d at 732. Our supreme court has also held that Rule 26.1(a) includes no requirement that the court accept a guilty or nolo contendere plea by express words and that we will not read language into a statute or a rule that is not included in it. See Potter v. City of Tontitown , 371 Ark. 200, 264 S.W.3d 473 (2007). Appellant argues that if the exchanges between the trial courts and defendants in Drake and Potter were sufficient to establish that the trial courts had "entered" the plea agreements, then the same analysis should apply in reverse in this case-that the actions and colloquy are sufficient to evidence that appellant desired to withdraw from his plea agreement without saying those express words. Accordingly, appellant argues that the trial court should have allowed him to withdraw his plea and not sentenced him to twelve years in prison. Alternatively, appellant argues that if the court determines that the plea agreement had already been expressly entered by the trial court, then the trial court should not have increased the length of appellant's sentence. Appellant notes that Judge Wendell Griffen, in the dissent in Drake, supra , stated that "the trial court's acceptance of the plea agreement is a procedural 'point of no return' for a criminal defendant. Prior to reaching that point, a defendant may, as a matter of right, withdraw his guilty plea. That right disappears upon the court accepting that guilty plea." Drake , 103 Ark. App. at 94, 286 S.W.3d at 733 (Griffen, J., dissenting). Appellant urges that at whatever time the trial court accepted his negotiated plea, it had reached that point of no return and ceased to have the authority thereafter to increase his sentence. We disagree and hold that the trial court expressly accepted appellant's no-contest plea after a lengthy discussion with appellant on what exactly a no-contest plea would mean. Because the trial court accepted appellant's no-contest plea, it was within the discretion of the trial court to determine whether it would allow appellant to withdraw his plea. Despite appellant's assertion that his statement, "[W]hat if I ain't wanting to plea," was a clear expression of his intent to withdraw his no-contest plea, the record does not support his claim. The trial court explained in detail what a plea of no-contest meant and explained that the trial court was under no obligation to sentence him to the thirty-six-month sentence to which his defense counsel and the deputy prosecutor had initially agreed. Appellant acknowledged that he understood that he could receive more than the agreed upon term and that he believed the plea to be in his best interest. Appellant fails to show that the trial court abused its discretion by not allowing him to withdraw his no-contest plea or how a manifest injustice occurred because the trial court was within its authority to sentence him under Arkansas Code Annotated section 5-4-501(a)(2)(D) (Supp. 2015). We affirm the refusal to allow appellant to withdraw his plea agreement after entry and acceptance by the trial court and will next discuss the length of the sentence imposed. B. Did the Trial Court Abuse Its Discretion in Increasing Appellant's Sentence? Recently, in Cartwright v. State , 2017 Ark. App. 100, 514 S.W.3d 494, we reiterated that Arkansas Rule of Appellate Procedure-Criminal 1(a) provides that there is no direct appeal from a plea of guilty. See Wright v. State , 2016 Ark. 5, 2016 WL 97510. In Cartwright , we acknowledged the exceptions set out in Matthews, supra. Absent one of the exceptions, a defendant waives his right to appeal when he pleads guilty. Id. Rule 25.3 of the Arkansas Rules of Criminal Procedure likewise does not salvage an appellant's ability to appeal. Rule 25.3 expressly contemplates the trial court's decision to vary from the sentencing recommendations or concessions of a plea agreement. When a trial court decides to vary from the sentencing recommendations or concessions of the plea agreement, the trial court is then required to inform the defendant of his right to withdraw the plea or to advise the defendant that the agreement is not binding on the court. Here, pursuant to Rule 25.3(c), because the parties did not seek the concurrence of the trial judge in the plea agreement, the trial judge advised appellant in open court at the time that (1) the agreement was not binding on the trial court and (2) if he pleaded or were to plead guilty or nolo contendere the disposition may be different from that contemplated by the agreement. Accordingly, we hold that the notice requirements of Rule 25.3 were met before any variance in appellant's sentence. Because this case does not meet the requirements for any of the exceptions that would allow for an appeal from the sentence, we dismiss that part of appellant's appeal. Affirmed in part; dismissed in part. Whiteaker and Brown, JJ., agree. The trial court expressly stated that "I have already taken your plea, and I have accepted your plea."

KAREN R. BAKER, Associate Justice A Union County jury found appellant, Courtney Jerrel Douglas, guilty of first-degree murder and possession of a firearm. Douglas was sentenced to a term of life imprisonment for the murder conviction plus an additional fifteen years' imprisonment for the use of a firearm. For his possession-of-a-firearm charge, Douglas was sentenced to forty years' imprisonment and a fine of $15,000. Douglas's probation was also revoked on three controlled-substance offenses, and he was sentenced to a total of fifty years' imprisonment to be served consecutively to his other sentences. We affirmed his convictions and sentences in Douglas v. State , 2017 Ark. 70, 511 S.W.3d 852. Subsequently, Douglas filed a timely petition for postconviction relief pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure. The circuit court denied Douglas's petition without a hearing and Douglas now brings this appeal. Our jurisdiction is pursuant to Rule 37 and Arkansas Supreme Court Rule 1-2(a)(8). We affirm in part and reverse and remand in part. Douglas's convictions and sentences stem from an altercation between the victim, Terrance Billings, and Douglas. On August 5, 2015, Douglas and Billings got into a verbal altercation at Douglas's home. After the altercation, Billings returned to his home. After Billings had left to go home, Douglas retrieved a firearm and drove to Billings's home. Jennifer Henry, Billings's girlfriend, testified that Douglas came to their home uninvited, and when she answered the door, "[Billings] pushed [Douglas] back outside the door and turned back around. I heard the gunshot. Then [Douglas] came and finished shooting inside the house where [Billings] fell on the floor and died. [Douglas] still stood there and shot when there wasn't no more bullets in the gun ... I kept hearing the gun clicking." D.H., Jennifer's fourteen-year-old son, testified that when Douglas came to their home, he witnessed Billings and Douglas as they "tussled" on the porch. D.H. further testified that Billings was inside the home when Douglas began shooting Billings. John Henry, Jennifer's father, testified that he witnessed Douglas and Billings scuffling on the porch as well. John further testified that it looked like Billings had Douglas in a headlock and Jennifer was standing behind them. Sergeant Jim Sanders with the Union County Sheriff's Office testified that upon arriving at the crime scene, it was his duty to immediately begin taking photographs. Sergeant Sanders testified that there did not appear to be any blood, tissue, or other bodily fluids on the porch or door. However, inside the threshold, but not on the threshold itself, there appeared to be bodily fluid. Further, Sergeant Sanders testified that there was no indication that Billings's body had been moved. Chief Investigator Ricky Roberts, also with the Union County Sheriff's Office, testified that there was no indication of blood on the porch, and based on the evidence, it was apparent that Billings was shot while standing inside the house. In his petition for postconviction relief, Douglas argued that trial counsel was ineffective in failing to present the proper jury instructions on (1) justification and (2) extreme emotional disturbance manslaughter. Douglas contended that based on these failures, he received ineffective assistance of counsel and was prejudiced. Douglas now appeals, arguing that the circuit court erred in denying relief on these claims without a hearing. Law & Analysis "On appeal from a trial court's ruling on a petitioner's request for Rule 37 relief, this court will not reverse the trial court's decision granting or denying postconviction relief unless it is clearly erroneous. Kemp v. State , 347 Ark. 52, 55, 60 S.W.3d 404, 406 (2001). A finding is clearly erroneous when, although there is evidence to support it, the appellate court after reviewing the entire evidence is left with the definite and firm conviction that a mistake has been committed. Id. " Prater v. State , 2012 Ark. 164, at 8, 402 S.W.3d 68, 74. "The benchmark for judging a claim of ineffective assistance of counsel must be 'whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.' Strickland [v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984) ]." Henington v. State , 2012 Ark. 181, at 3-4, 403 S.W.3d 55, 58. Pursuant to Strickland , we assess the effectiveness of counsel under a two-prong standard. First, a petitioner raising a claim of ineffective assistance must show that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the petitioner by the Sixth Amendment to the United States Constitution. Williams v. State , 369 Ark. 104, 251 S.W.3d 290 (2007). A petitioner making an ineffective-assistance-of-counsel claim must show that his counsel's performance fell below an objective standard of reasonableness. Springs v. State , 2012 Ark. 87, 387 S.W.3d 143. A court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. Second, the petitioner must show that counsel's deficient performance so prejudiced petitioner's defense that he was deprived of a fair trial. Id. The petitioner must show there is a reasonable probability that, but for counsel's errors, the fact-finder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. Howard v. State , 367 Ark. 18, 238 S.W.3d 24 (2006). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. Additionally, conclusory statements that counsel was ineffective cannot be the basis for postconviction relief. Anderson v. State , 2011 Ark. 488, 385 S.W.3d 783. Turning to the merits, we note that the circuit court did not hold an evidentiary hearing. Rule 37.3 of the Arkansas Rules of Criminal Procedure provides that an evidentiary hearing should be held in a postconviction proceeding unless the files and record of the case conclusively show that the prisoner is entitled to no relief. Wooten v. State , 338 Ark. 691, 1 S.W.3d 8 (1999) (citing Bohanan v. State , 327 Ark. 507, 939 S.W.2d 832 (1997) (per curiam)). If the files and the record show that the petitioner is not entitled to relief, the circuit court is required to make written findings to that effect. Ark. R. Crim. P. 37.3(a). Justification Jury Instruction For his first point on appeal, Douglas argues that the circuit court erred in denying his claim, without a hearing, that trial counsel was ineffective in failing to present the proper jury instruction on justification. Douglas contends that due to trial counsel's failure, he was prejudiced. At trial, Douglas asserted the defense of justification. However, trial counsel proffered justification instruction AMI Crim. 2d 704, which is the jury instruction for non-deadly force. As Douglas points out, AMI Crim. 2d 704 is inapplicable in a homicide case. Douglas contends that the proper jury instruction would have been AMI Crim. 2d 705, which is the justification jury instruction for the use of deadly force. Douglas argues that there were assertions-based on his own statement and the testimony of John Henry-that Billings physically attacked Douglas first and had him in a headlock. Thus, Douglas argues that he was entitled to AMI Crim. 2d 705, the justification instruction for the use of deadly physical force. Douglas argues that had trial counsel proffered the correct jury instruction, it would have been reversible error for the circuit court to refuse it. The State responds that trial counsel was not ineffective for failing to proffer AMI Crim. 2d 705 because there was no rational basis for giving the instruction. Notwithstanding trial counsel's failure to submit AMI Crim. 2d 705, the State contends that the circuit court rejected Douglas's request for an instruction on justification, finding that there was no basis for doing so. In its June 21, 2017 order, the circuit court denied Douglas's claim as follows: The defendant's first contention is that his trial counsel was ineffective in failing to present the proper jury instruction on justification and because of that failure the defendant was prejudiced. The defendant accurately quotes the colloquy between the Court, Mr. Reed (Trial Counsel) and Mr. Rogers (Chief Deputy Prosecuting Attorney). It is clear from this colloquy that the Court was not of the opinion that the instruction would be given if properly drafted. "... The instruction as presented is erroneous. It lacks necessary criteria. I submit to you and it is the position of this Court that there is not a reasonable basis to believe that Terrance Billings was about to use deadly physical force on this defendant because there is no evidence of such deadly physical force because the defendant is the one who provoked this incident by going to the residence of Terrence Billings and he is the only one that went to the residence or arrived at that residence with a firearm. I think it is unreasonable to believe that he can provoke this incident and then raise the defense of justification." (Emphasis added[.] ) This colloquy and all other discussion about the jury instructions were held outside the presence of the jury. As the State accurately points out, the proof in this case is undisputed. The victim had a verbal confrontation with the defendant at the defendant's house. The victim left the defendant's house and traveled to his, the victim's own house. As the State urges, it is important to note the initial confrontation between the victim and the defendant had fully concluded. There was no further threat to the defendant. Throughout the initial confrontation there is no mention or concern of either the victim or the defendant being armed with a firearm. After the victim left the defendant's house and went to his own house the undisputed proof was that the victim was relaxing on his sofa. His girlfriend was in the house with the victim, and her young son was outside standing in the yard. The defendant, not satisfied with the way the initial confrontation concluded, retrieved a handgun he had kept in a dresser drawer at his house and traveled to the victim's house. The defendant walked onto the victim's front porch and called out the victim. The victim, who was unarmed and entitled to defend himself, tried to push the defendant away from the front door. The defendant then pulled out his firearm and shot the victim multiple times while the victim was standing in his front doorway. A person may not use deadly physical force in self-defense if he knows that he can avoid the necessity of using that force with complete safety by retreating. Additionally, this defense is not applicable when one arms himself and goes to a place in anticipation that the other will attack him. Kemp v. State, 348 Ark. 750, 74 S.W.3d 224 (2002). Like Kemp, there is no rational basis for giving the jury instruction for self-defense even if it correctly followed the language of the law. Thus, failing to offer such an instruction is not evidence of ineffective assistance of counsel. Counsel is not ineffective for failing to make a motion or argument that is without merit. Flemons v. State, 2016 Ark. 460, 505 S.W.3d 196. Other than being convicted, the defendant has failed to show how he has been prejudiced. The revocations are NOT (emphasis added) pendent upon the conviction in 70CR-15-324. The burden of proof is a mere preponderance of the evidence. Based on Strickland , Douglas must demonstrate that trial counsel's failure to proffer AMI Crim. 2d 705 amounted to a deficient performance that fell below an objective standard of reasonableness that so prejudiced Douglas as to deprive him of a fair trial. In Sims v. State , we explained that "[t]o show prejudice under Strickland based on trial counsel's failure to request a specific instruction, the United States Supreme Court has held that an appellant must establish that it was 'reasonably likely that the instruction would have made any difference [in the outcome of the trial] in light of all the other evidence of guilt.' Berghuis v. Thompkins , 560 U.S. 370, 390, 130 S.Ct. 2250, 176 L.Ed. 2d 1098 (2010)." 2015 Ark. 363, at 10, 472 S.W.3d 107, 115. Further, there must be a rational basis in the evidence to warrant the giving of an instruction. Allen v. State , 326 Ark. 541, 932 S.W.2d 764 (1996). A party is entitled to an instruction on a defense if there is sufficient evidence to raise a question of fact or if there is any supporting evidence for the instruction. Yocum v. State , 325 Ark. 180, 925 S.W.2d 385 (1996). A person may not use deadly physical force in self-defense if he knows that he can avoid the necessity of using that force with complete safety by retreating. See Ark. Code Ann. § 5-2-607(b)(1). Additionally, this defense is not applicable when one arms himself and goes to a place in anticipation that another will attack him. Girtman v. State , 285 Ark. 13, 684 S.W.2d 806 (1985). One who claims self-defense must show not only that the person killed was the aggressor, but also that the accused used all reasonable means within his power and consistent with his safety to avoid the killing. Ricketts v. State , 292 Ark. 256, 729 S.W.2d 400 (1987) (citing Martin v. State , 290 Ark. 293, 718 S.W.2d 938 (1986) ). Here, as found by the circuit court, despite trial counsel's failure to proffer AMI Crim. 2d 705, there was no rational basis for giving this instruction. The record demonstrates that Douglas and Billings got into a dispute at Douglas's home. After the argument, Billings returned to his home. After the initial confrontation had fully concluded, Douglas retrieved a handgun and traveled to Billings's home with the firearm. As noted above, Arkansas Code Annotated section 5-2-607(b)(1) prohibits one from using deadly physical force in self-defense if he knows he can avoid the necessity of using deadly force with complete safety by retreating. Although Billings might have been the initial aggressor, the record is clear that the initial dispute had fully concluded, with Billings leaving the scene and returning to his home. However, Douglas, with a firearm in tow, initiated the second encounter at Billings's home. Further, Billings attempted to flee from Douglas by running back into the house. Accordingly, Douglas could not rationally argue that the use of deadly force was necessary to protect himself. In light of all the other evidence of Douglas's guilt, pursuant to Sims , Douglas has failed to establish that it was reasonably likely that the AMI Crim. 2d 705 instruction would have made any difference in the outcome of his trial. Thus, because Douglas has failed to prove either Strickland prong, he has failed to establish a claim for ineffectiveness of counsel on this point. In sum, we hold that the circuit court's decision was not clearly erroneous, and we affirm. Extreme-Emotional-Disturbance-Manslaughter Jury Instruction For his second point on appeal, Douglas argues that the circuit court erred in denying his claim, without a hearing, that trial counsel was ineffective in failing to present the proper jury instruction on extreme-emotional-disturbance manslaughter. Douglas contends that due to trial counsel's failure, he was prejudiced. However, prior to delving into the merits of his argument, Douglas asserts that the circuit court failed to comply with the dictates of Rule 37 of the Arkansas Rules of the Criminal Procedure. We agree. Pursuant to Arkansas Rule of Criminal Procedure 37.3(a), the circuit court has the discretion to decide whether the files and records are sufficient to sustain the court's findings without a hearing. Rule 37.3(a) states that "[i]f the petition and the files and records of the case conclusively show that the petitioner is entitled to no relief, the trial court shall make written findings to that effect, specifying any parts of the files, or records that are relied upon to sustain the court's findings." (Emphasis added.) This court has previously interpreted Rule 37.3 to provide that an evidentiary hearing should be held in a postconviction proceeding unless the files and record of the case conclusively show that the prisoner is entitled to no relief. Sanders v. State , 352 Ark. 16, 98 S.W.3d 35 (2003). When the trial court concludes, without a hearing, that the petitioner is not entitled to relief, Rule 37.3(a) requires the trial court to make written findings specifying the parts of the record that form the basis for the trial court's decision. Id. This court has, on occasion, affirmed the denial of a Rule 37 petition notwithstanding the circuit court's failure to make written findings under Rule 37.3(a), but we have done so only in two circumstances: (1) where it can be determined from the record that the petition is wholly without merit, or (2) where the allegations in the petition are such that it is conclusive on the face of the petition that no relief is warranted. Reed v. State , 375 Ark. 277, 280, 289 S.W.3d 921, 923 (2008). Here, as to Douglas's argument regarding the jury instruction on extreme-emotional-disturbance manslaughter, the circuit court entered the following one-sentence finding: "The Court adopts in 'toto' the argument of the State in its response in Topics No. 5 and No. 6." This finding does not comport with Rule 37.3(a). We cannot reach the merits of a postconviction claim for relief absent the circuit court's written findings of fact because, on review, we determine whether the findings are supported by a preponderance of evidence. Id. Likewise, we cannot say that Douglas's argument as to the jury instruction on extreme-emotional-disturbance manslaughter is so conclusive on the face of the petition or on the face of the record as to show that no relief is warranted. Further, it is not incumbent on this court to scour the record in a Rule 37 appeal to determine if the petition is wholly without merit when there are no written findings. Id. That is the circuit court's function if no hearing is held. Id. Based on the foregoing, because the circuit court failed to make written findings in accordance with Rule 37.3(a), we reverse and remand the case to the circuit court for written findings in compliance with Rule 37.3(a). It may well be that the circuit court will want to hold a hearing on Douglas's petition pursuant to Rule 37.3(c), following which the circuit court must make findings of fact and conclusions of law. Id. If the circuit court does not conduct a hearing and instead dismisses Douglas's petition, the court shall make written findings for this court to review under Rule 37.3(a). Id. In either instance, the circuit court shall enter findings with respect to Douglas's extreme-emotional-disturbance-manslaughter jury instruction claim. Affirmed in part; reversed in part and remanded. Kemp, C.J., and Hart, J., concur in part and dissent in part. Josephine Linker Hart, Justice, concurring in part and dissenting I part. I agree with the majority that it is necessary to remand this case for additional findings. Rule 37.3(a) provides that "[i]f the petition and the files and records of the case conclusively show that the petitioner is entitled to no relief, the trial court shall make written findings to that effect, specifying any parts of the files, or records that are relied upon to sustain the court's findings." "[A]n evidentiary hearing should be held in a postconviction proceeding unless the files and record of the case conclusively show that the prisoner is entitled to no relief." Mancia v. State , 2015 Ark. 115, 3, 459 S.W.3d 259, 263. Here, the circuit court's order denied Douglas's petition without a hearing and without making any findings with respect to Douglas's second argument. As such, the order appealed from is not final, and remanding for additional findings is appropriate. Brown v. State , 2015 Ark. 435, 474 S.W.3d 498 ; Echols v. State , 344 Ark. 513, 42 S.W.3d 467 ; Coleman v. State , 338 Ark. 545, 998 S.W.2d 748 (1999). Because this court is remanding this case for additional findings relating to Douglas's second argument, it lacks jurisdiction to address or rule on Douglas's first argument regarding the Justification (Deadly Force) instruction. Addressing this argument encourages the very same piecemeal appeals that our finality jurisprudence proscribes. See , e.g. , Gray v. White River Health System, Inc. , 2016 Ark. 73, 483 S.W.3d 293 (54(b) order that lacked findings explaining why hardship or injustice would result if immediate appeal was not permitted was not final, and Supreme Court accordingly lacked jurisdiction); K.W. v. State , 327 Ark. 205, 207, 937 S.W.2d 658, 659 (1997) ("The purpose of the finality requirement is to avoid piecemeal litigation."); Hyatt v. City of Bentonville , 275 Ark. 210, 211, 628 S.W.2d 326, 327 (1982) (appellate courts have a "duty" to address whether lower court's orders are sufficiently final "in order to avoid piecemeal litigation"). I would remand this case to the circuit court for additional findings, and decline to address any of the arguments presented at this juncture; this court lacks jurisdiction to do anything more. Kemp, C.J., joins. On June 27, 2017, the Union County Circuit Clerk prepared separate records for the probation revocation, 70CR-11-661, and the homicide case, 70CR-15-324. On June 29, 2017, the records were lodged in this court. The probation revocation appeal was assigned case number CR-17-546 and the homicide case was assigned case number CR-17-547. Douglas filed a motion to consolidate the two cases. On November 9, 2017, we granted Douglas's motion to consolidate, closing case number CR-17-547 and noting that all further proceedings will be identified and filed in CR-17-546.

KENNETH S. HIXSON, Judge Appellant Steven Kohlman appeals from the termination of his parental rights to his children J.K., As.K., Au.K., and B.K., who range in age from three to seven years old. On appeal, Steven argues that he was denied due process because he was not made a party or offered services until the petition to terminate his parental rights was filed, and he also argues that the termination order should be reversed because there was insufficient proof of statutory grounds or that termination was in the children's best interest. We affirm. We review termination-of-parental-rights cases de novo. Mitchell v. Ark. Dep't of Human Servs. , 2013 Ark. App. 715, 430 S.W.3d 851. At least one statutory ground must exist, in addition to a finding that it is in the child's best interest to terminate parental rights; these must be proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341 (Supp. 2015); M.T. v. Ark. Dep't of Human Servs. , 58 Ark. App. 302, 952 S.W.2d 177 (1997). Clear and convincing evidence is that degree of proof that will produce in the factfinder a firm conviction as to the allegation sought to be established. Anderson v. Douglas , 310 Ark. 633, 839 S.W.2d 196 (1992). The appellate inquiry is whether the trial court's finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. J.T. v. Ark. Dep't of Human Servs. , 329 Ark. 243, 947 S.W.2d 761 (1997). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Yarborough v. Ark. Dep't of Human Servs. , 96 Ark. App. 247, 240 S.W.3d 626 (2006). This case was initiated by appellee Arkansas Department of Human Services (DHS) when it filed a petition for emergency custody of the children on April 4, 2016. The petition named Kathy as the children's mother and Steven as their putative father. An attached affidavit of a family-service worker stated that it had been reported that the children had been left with a babysitter for three days and that Kathy was supposed to get them but never showed up. It was also reported that Kathy used drugs. The worker made contact with the babysitter and found that the children were safe and being cared for by her. The babysitter had already made arrangements with the children's paternal grandfather, Robert Kohlman (appellant's father), for Robert to pick the children up and take them to his home. At that time, DHS decided that it would allow Robert to take his grandchildren to his home. However, before Robert arrived to get the children, Kathy took the children from the babysitter and went to a motel under a false name. On the next day, the family-service worker located the children at the motel, and they were again in the care of the babysitter. Kathy was away from the hotel room, but she returned and was drug tested. Kathy tested positive for multiple controlled substances including methamphetamine, THC, and opioids. The babysitter also tested positive for drugs. The worker made contact with Steven, who had recently been arrested and incarcerated for failure to appear. Steven stated that he had left the children in the babysitter's care prior to his incarceration but that he did not know she used drugs. The affidavit also stated that DHS had a previous history with the family. In the previous protective-services case, there had been true findings against Steven for inadequate supervision of J.K. in 2011 and physical abuse committed against As.K. in 2012. On April 4, 2016, the trial court entered an ex parte order for emergency custody of the children. In the emergency order, the trial court found that removal of the children was necessary to protect their health and safety. A probable-cause order was entered on April 27, 2016. The probable-cause order stated that Steven was the putative father and had appeared at the probable-cause hearing. The trial court ordered Steven to submit to genetic testing. The trial court entered an adjudication order on June 7, 2016, finding the children to be dependent-neglected. The goal of the case was a concurrent goal of reunification and permanent relative placement. A review order was entered on December 14, 2016, wherein the goal of the case was changed to reunification with the concurrent goal of termination of parental rights and adoption. In the review order, the trial court found that Kathy had no income, no transportation, had not complied with the case plan, and had consistently tested positive for illegal drugs. The review order indicated that Steven was living with his father and had not availed himself of services. The trial court did, however, indicate that Steven had submitted to random drug screens (which were negative) and had exercised visitation with the children (but had appeared at visitation intoxicated). In a permanency-planning order dated February 6, 2017 (but not entered until March 28, 2017), the trial court found that DNA testing had confirmed Steven to be the children's father, and thus the court found Steven to be the legal father. The trial court appointed Steven counsel. The trial court found that both parents had not availed themselves of services and that Kathy continued to test positive for illegal drugs. The case goal was changed to termination of parental rights and adoption. On March 15, 2017, DHS filed a petition to terminate both parents' parental rights. The termination hearing was held on July 10, 2017. On August 16, 2017, the trial court entered an order terminating the parental rights of both Kathy and Steven. The trial court found by clear and convincing evidence that termination of parental rights was in the children's best interest, and the court specifically considered the likelihood that the children would be adopted, as well as the potential harm of returning them to the custody of their parents as required by Arkansas Code Annotated section 9-27-341(b)(3)(A)(i) & (ii). With respect to both parents, the trial court found clear and convincing evidence of the following three statutory grounds under subsection (b)(3)(B): (i)(a) That a juvenile has been adjudicated by the court to be dependent-neglected and has continued to be out of the custody of the parent for twelve (12) months and, despite a meaningful effort by the department to rehabilitate the parent and correct the conditions that caused removal, those conditions have not been remedied by the parent. .... (vii)(a) That other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that placement of the juvenile in the custody of the parent is contrary to the juvenile's health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent's circumstances that prevent the placement of the juvenile in the custody of the parent. .... (ix)(a) The parent is found by a court of competent jurisdiction, including the juvenile division of circuit court, to: (3)(A) Have subjected any juvenile to aggravated circumstances. (B) "Aggravated circumstances" means: (i) ... [A] determination has been made by a judge that there is little likelihood that services to the family will result in successful reunification. At the termination hearing, it was established that Steven had been incarcerated for a total of nine or ten months during the fifteen months since emergency removal of the children. Most recently, Steven was in prison between December 14, 2016, and May 23, 2017, for violating the terms of his probation related to a 2012 conviction for aggravated assault committed against Kathy. For the probation violations, Steven was sentenced to three years in prison followed by a three-year suspended imposition of sentence. He was paroled on May 23, 2017. After his release, Steven moved into his father's house where he continued to reside as of the termination hearing held on July 10, 2017. DHS family-service worker Tehrina Means was assigned to this case. Ms. Means indicated that a case plan was prepared by DHS about a month after the case began, wherein Steven was directed to maintain contact with DHS, submit to drug screens and a psychological evaluation, and take parenting classes. Steven was further directed to maintain stable housing, income, and transportation. Ms. Means indicated that Steven did submit to drug screens. These drug screens were performed on May 5, 2016, September 9, 2016, and June 7, 2017, and on each screen Steven was negative for both drugs and alcohol. Ms. Means also testified that, during the periods when he was out of jail, Steven visited his children on a fairly consistent basis and he was very loving with the children during the visits. However, Steven had shown up to visitation intoxicated. Ms. Means acknowledged that Steven was presently employed, that he was "pretty good" with acquiring transportation, and that he was living with his father. She also stated that, other than when he was incarcerated, Steven had consistently lived in his father's house. Ms. Means recommended termination of both Steven's and Kathy's parental rights. Ms. Means indicated that she did not think Steven had made any progress during the case. She stated that Steven had failed to complete services, which included parenting classes and submitting to a psychological evaluation. Ms. Means also indicated that one of her biggest concerns was the fact that Steven continued to have an alcohol problem, for which he had not received treatment. Ms. Means did testify, however, that Steven had told her he had tried to avail himself of services while in prison, but they were not made available to him. She also conceded that Steven had been in contact with DHS since his release from prison. Ms. Means thought that, due to Steven's minimal contact with his children and failure to make progress in the case, further services would not result in successful reunification. She thought that the children would be at risk of harm if returned to Steven, and that termination of parental rights and adoption was in the children's best interest. Ms. Means testified that the children were adoptable. Steven's father, Robert Kohlman, testified on Steven's behalf. Robert testified that he was willing to let Steven's children live with him when this case began and that he still wanted the children to be in his home. Robert stated that he lives in a clean and appropriate three-bedroom house with Steven and another of Robert's sons. Robert stated that he loves his grandchildren and that they call him "papa." Robert indicated that Steven was doing well since being released from prison and that Steven was focused only on getting his children back. Robert stated that his house is alcohol-free, and he thought that Steven was capable of maintaining sobriety. Steven testified on his own behalf, and he stated that, since being released from prison, he has had three or four visits with his children and that those visits have gone great. Steven stated that he is bonded with his children and that if given more time he could do what was necessary to show he is fit to care for them. He indicated that, while in prison, he signed up for parenting and anger management classes, but he was put on a waiting list and was never afforded the services. However, he expressed a willingness to comply with services and had been contacting DHS in an attempt to arrange them. Steven acknowledged that he had a drinking problem early in the case, and he admitted that he had shown up intoxicated to a visit with the children. However, he testified that he has not been intoxicated during his visits since being released from prison and that he was willing to undergo a drug-and-alcohol assessment. Steven stated that he had a strong support system and had no intention of getting into trouble. He stated that he was employed before going to prison and that he is employed now. Steven asserted that he has a good home environment, and he did not think the children would be in danger if returned to him. In this appeal, Steven first argues that he was denied due process because he was not made a party to the case or offered DHS services until DHS sought to terminate his parental rights. However, Steven failed to raise any due-process argument to the trial court. We have held that that we will not consider issues raised for the first time on appeal, even constitutional ones. Maxwell v. Ark. Dep't of Human Servs. , 90 Ark. App. 223, 205 S.W.3d 801 (2005). Because no specific due-process argument was raised below, this point is not preserved for our review. See Willis v. Ark. Dep't of Human Servs. , 2017 Ark. App. 559, 538 S.W.3d 842, 2017 WL 4800490. Steven's next argument is that none of the three statutory grounds relied on by the trial court were sufficient to support termination of his parental rights. He argues that the "failure to remedy" ground was not satisfied because he had no responsibility for the conditions that caused the children's removal. As for the "subsequent factors" and "aggravated circumstances" grounds, Steven contends that these were not proved because he never received meaningful DHS services. Only one ground is necessary to terminate parental rights. Wafford v. Ark. Dep't of Human Servs. , 2016 Ark. App. 299, 495 S.W.3d 96. We hold that the trial court did not clearly err in finding that Steven had subjected the juveniles to aggravated circumstances, meaning that there is little likelihood that services to the family will result in successful reunification. See Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3)(A) & (B). Because we conclude that DHS adequately proved "aggravated circumstances," we need not discuss the remaining two grounds found by the trial court. In contesting the trial court's finding of "aggravated circumstances," Steven argues that he was never offered meaningful services. However, a finding of "aggravated circumstances" does not require DHS to prove that meaningful services toward reunification were provided. See Ford v. Ark. Dep't of Human Servs. , 2017 Ark. App. 211 ; Draper v. Ark. Dep't of Human Servs. , 2012 Ark. App. 112, 389 S.W.3d 58. In light of Steven's persistent criminal misconduct for which he was incarcerated for the majority of this case, we hold that the proof supported the trial court's conclusion that there is little likelihood that services would result in successful reunification between Steven and his children. The record shows that, in the previous protective-services case, Steven was found to have inadequately supervised one of his children and had physically abused another. In addition, Steven was convicted of aggravated assault committed against the children's mother in May 2012, for which he had been placed on probation. When this dependency-neglect case was opened on April 4, 2016, Steven was incarcerated for failure to appear. Steven was later cited for failure to appear on additional occasions, and he was in and out of jail with his probation-revocation hearing pending. During this time, by his own admission, Steven was intoxicated during visitation with his children. On December 14, 2016, Steven pleaded guilty to violating the terms of his probation, and a sentencing order was entered sentencing him to three years in prison followed by a three-year suspended imposition of sentence. A report attached to the sentencing order stated that Steven had violated his probation by committing the new offenses of DWI and failing to report, by testing positive for controlled substances, and by failing to pay fines and fees as ordered. The trial court indicated in the report and in the sentencing order that Steven's sentence was a departure from the sentencing guidelines as a result of the aggravating factor "persistent criminal misconduct while under supervision." Although Steven was released from prison shortly before the termination hearing was held, he remained on parole and under the restrictions of a suspended sentence. According to Steven's testimony, he was in jail for a total of nine or ten months during these fifteen-month proceedings. Given the fact that Steven was incarcerated for the majority of this case and has demonstrated sustained criminal misconduct clearly indicative of an impediment to reunification with his children, we affirm the termination of his parental rights based on the trial court's finding of aggravated circumstances. We observe that Steven also challenges the trial court's finding that termination of his parental rights was in the children's best interest. However, we conclude that the trial court did not clearly err in making its best-interest determination for many of the same reasons supporting aggravated circumstances. Steven's history with violence, alcohol, and resulting incarcerations are factors weighing in favor of the trial court's finding that the children would be at serious risk of harm if returned to Steven's custody. Moreover, there was testimony that these children are adoptable, and termination of Steven's parental rights will have the effect of achieving permanency in the children's lives. Having concluded that the trial court's findings as to a statutory ground and the best interest of the children are not clearly erroneous, we affirm the order terminating Steven's parental rights. Affirmed. Gruber, C.J., agrees. Whiteaker, J., concurs. The children's mother, Kathy Jenkins, also had her parental rights terminated; however, Kathy has not appealed. Steven introduced a letter from his employer confirming his employment as an apartment maintenance worker since June 12, 2017. With respect to Kathy, Ms. Means testified that Kathy had tested positive for illegal drugs throughout the case and that the children could not be safely returned to her custody.

COURTNEY HUDSON GOODSON, Associate Justice In 2017, appellant Deandra L. Stephenson filed in the circuit court in the county where he was incarcerated a pro se petition for writ of habeas corpus pursuant to Arkansas Code Annotated sections 16-112-101 to -123 (Repl. 2016), alleging that he was entitled to release from custody because the trial court in his criminal case committed error in the conduct of the trial, the evidence was not sufficient to sustain the judgment, and he is innocent of the offenses of which he was convicted. He further argued that the court in a habeas proceeding should look beyond the face of the judgment to determine whether the writ should issue. Stephenson did not contend that any of the sentences imposed on him were outside the statutory range for the offenses of which he was convicted or that the trial court lacked jurisdiction to enter the judgment. The circuit court dismissed Stephenson's petition on the grounds that he failed to establish, as required by the statute, that the trial court lacked jurisdiction or that the commitment was invalid on its face. Stephenson brings this appeal. We find no error and affirm the circuit court's order. I. Background In 2007, Stephenson was found guilty by a Pulaski County jury of two counts of capital murder and sentenced to two terms of life imprisonment without parole. He was also found guilty of one count of committing a terroristic act for which 480 months' imprisonment was imposed. The sentences were enhanced pursuant to Arkansas Code Annotated section 16-90-120 (Repl. 2006) for use of a firearm in the commission of the offenses. We affirmed. Stephenson v. State , 373 Ark. 134, 282 S.W.3d 772 (2008). II. Standard of Review A circuit court's decision in a habeas proceeding will be upheld unless it is clearly erroneous. Clay v. Kelley , 2017 Ark. 294, 528 S.W.3d 836. A decision is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been made. Id. III. Grounds for the Writ A writ of habeas corpus is proper when a judgment of conviction is invalid on its face or when the trial court lacked jurisdiction over the cause. Williams v. Kelley , 2017 Ark. 200, 521 S.W.3d 104 ; Philyaw v. Kelley , 2015 Ark. 465, 477 S.W.3d 503. Under our statute, a petitioner for the writ who does not allege his actual innocence and proceed under Act 1780 of 2001 Acts of Arkansas must plead either the facial invalidity of the judgment or the lack of jurisdiction by the trial court and make a showing by affidavit or other evidence of probable cause to believe that he is being illegally detained. Ark. Code Ann. § 16-112-103(a)(1) (Repl. 2016). Unless the petitioner in proceedings for a writ of habeas corpus can show that the trial court lacked jurisdiction or that the commitment was invalid on its face, there is no basis for a finding that a writ of habeas corpus should issue. Fields v. Hobbs , 2013 Ark. 416, 2013 WL 5775566. Stephenson did not invoke Act 1780. With respect to Stephenson's argument that the court in a habeas proceeding should not be limited to examining the face of the judgment to determine if the writ should issue, the legislature has declined opportunities to amend the statute to express its disagreement with this court's interpretation, and thus, this court's interpretation remains the law. It appears that Stephenson's contention that the habeas statute should be viewed more broadly was essentially an attempt to broaden the scope of a habeas action to include claims of trial error and the sufficiency of the evidence to sustain the judgment. If so, we have held that a habeas corpus proceeding does not afford a prisoner an opportunity to retry his case, and a writ of habeas corpus will not be issued to correct errors or irregularities that occurred at trial. The remedy in such a case is a direct appeal. Birchett v. State , 303 Ark. 220, 795 S.W.2d 53 (1990). IV. Actual Innocence Stephenson argued that he is entitled to issuance of the writ because he is actually innocent of the offenses. We have held that claims of actual innocence are effectively challenges to the sufficiency of the evidence and are thus due-process claims that are not cognizable in habeas proceedings. Clay , 2017 Ark. 294, 528 S.W.3d 836 ; see also Philyaw , 2015 Ark. 465, 477 S.W.3d 503 (Due-process claims do not implicate the facial validity of the judgment or the jurisdiction of the trial court.). The circuit court did not err in declining to issue the writ on the basis of Stephenson's assertion that he was innocent. V. Trial Error Stephenson contended in his petition that he was denied due process of law because there were numerous errors made in the course of his trial, including the following: evidence was allowed into the record that was not admissible; he was not permitted sufficient opportunity to confront and cross-examine witnesses; evidence favorable to the defense was wrongfully excluded; and improper instructions were given to the jury, and jury instructions that should have been given were omitted. He reiterates these claims of trial error in this appeal. The assertions of trial error are not grounds for the writ. Story v. State , 2017 Ark. 358, 2017 WL 6376368. Assertions of trial error and due-process claims do not implicate the facial validity of the judgment or the jurisdiction of the trial court. Garrison v. Kelley , 2018 Ark. 8, 534 S.W.3d 136 (noting that assertions of error concerning jury instructions are allegations of trial error that are not cognizable in a habeas proceeding). Again, if there were errors at trial, those issues could, and should, have been raised at trial and on the record on direct appeal and are thus not within the purview of the remedy because the writ will not be issued to correct errors or irregularities that occurred at trial. Barber v. Kelley , 2017 Ark. 214, 2017 WL 2473267. Affirmed. Hart, J., dissents. Josephine Linker Hart, Justice, dissenting. I dissent. The majority disposes of Stephenson's appeal from the trial court's denial of his petition for writ of habeas corpus because his petition failed to show either (1) that the court in which he was convicted lacked jurisdiction or (2) that his commitment order is invalid on its face. Stephenson argues that the law in Arkansas does not require him to make any such showing with his habeas petition, and his argument has merit. To understand how we arrived in this position, it is necessary to review some of the history of habeas proceedings in the Arkansas and Federal judiciaries. Article 1, section 9, clause 2 of the United States Constitution provides that "[t]he privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." Similarly, Article 2, section 11 of the Arkansas Constitution provides that "[t]he privilege of the writ of habeas corpus shall not be suspended; except by the General Assembly, in case of rebellion, insurrection or invasion, when the public safety may require it." At common law, both the federal and Arkansas habeas provisions were understood to mean that habeas relief would only be available when the commitment order is invalid on its face or when the court from which the commitment order issued lacked jurisdiction to issue such an order. Ex parte Watkins , 28 U.S. (3 Pet.) 193, 7 L.Ed. 650 (1830) ; Ex parte Royster , 6 Ark. 28 (1845). However, in 1876, Congress passed legislative enactments prescribing the manner by which Article III courts shall address petitions for the writ. See Acts of February 5, 1867 (14 Stat. at L. 385, chap. 28) ("Application for writ of habeas corpus shall be made to the court, or justice, or judge authorized to issue the same, by complaint in writing, signed by the person for whose relief it is intended, setting forth the facts concerning the detention of the party restrained, in whose custody he is detained, and by virtue of what claim or authority, if known. The facts set forth in the complaint shall be verified by the oath of the person making the application."); see also Rev. Stat. §§ 754-761; Comp. Stat. 1913 §§ 1282-1289. In 1915, the United States Supreme Court interpreted these provisions to expand the parameters under which the writ for habeas corpus will lie. Frank v. Mangum , 237 U.S. 309, 330-31, 35 S.Ct. 582, 59 L.Ed. 969 (1915). There, the Court stated: The effect [of Acts 1876] is to substitute for the bare legal review that seems to have been the limit of judicial authority under the common-law practice, and under the act of 31 Car. II. chap. 2, a more searching investigation, in which the applicant is put upon his oath to set forth the truth of the matter respecting the causes of his detention, and the court, upon determining the actual facts, is to 'dispose of the party as law and justice require.' There being no doubt of the authority of the Congress to thus liberalize the commonlaw procedure on habeas corpus in order to safeguard the liberty of all persons within the jurisdiction of the United States against infringement through any violation of the Constitution or a law or treaty established thereunder, it results that under the sections cited a prisoner in custody pursuant to the final judgment of a state court of criminal jurisdiction may have a judicial inquiry in a court of the United States into the very truth and substance of the causes of his detention, although it may become necessary to look behind and beyond the record of his conviction to a sufficient extent to test the jurisdiction of the state court to proceed to judgment against him. Id. In 1921, the Arkansas Supreme Court acknowledged this change in the federal habeas jurisprudence in State v. Martineau , 149 Ark. 237, 232 S.W. 609 (1921), where a habeas petitioner was seeking review of his murder trial, which he alleged was invaded by a racist mob of armed white men. However, this court noted that the statute at issue in Mangum only concerned habeas proceedings in federal courts, and elected not to embrace Mangum 's holdings for purposes of Arkansas habeas proceedings. 232 S.W. at 613. However, the Martineau opinion contained no reference whatsoever to the fact that the Arkansas General Assembly had already passed certain legislative enactments concerning State habeas corpus proceedings that largely mirrors the aforementioned Congressional enactments. Act No. 49 of 1871 set forth the process by which Arkansas courts entertain petitions for writs of habeas corpus, providing in relevant part as follows: The writ of habeas corpus shall be granted forthwith ... to any person who shall apply for the same by petition, showing, by affidavit or other evidence, probable cause to believe he is detained without lawful authority, or is imprisoned when by law he is entitled to bail. Acts 1871, No. 49, § 1 [388]. This language, which specifically contemplates the petitioner filing an "affidavit or other evidence," necessarily rejects any intimation that a court's review of a habeas petition is limited to the facial validity of a confinement order. This precise language has been the applicable legal authority for Arkansas habeas petitions ever since its enactment, although other provisions have since been added to Arkansas's habeas corpus statute, now codified at Ark. Code Ann. § 16-112-101 et seq., to address claims of actual innocence based upon new scientific evidence. Even so, it appears that, since Martineau in 1921, the Arkansas Supreme Court never directly addressed the effect this specific language had upon State habeas proceedings until 1997 in Sawyer v. State , 327 Ark. 421, 938 S.W.2d 843 (1997). There, presented with the petitioner's argument that the "facial invalidity or lack of jurisdiction" rule did not comport with the statute's plain language, this court nonetheless declined to follow the statute's plain language, reasoning as follows: We have held that a habeas corpus petitioner is being held without lawful authority when the commitment order is invalid on its face or the circuit court lacked jurisdiction. The legislature is presumed to be familiar with this court's interpretation of its statutes, and if it disagrees with those interpretations, it can amend the statutes. Without such amendments, however, this court's interpretation of the statute remains the law. Sawyer , 327 Ark. at 424, 938 S.W.2d at 845 (internal citations omitted). Arkansas's "facial invalidity or lack of jurisdiction" rule appears to have remained undisturbed ever since. With all due respect to the Sawyer court, its rationale for declining to follow Ark. Code Ann. § 16-112-103(a)'s plain language is inadequate. A plain mistake is no less so simply because it has been regularly glossed over in the past. I submit that this court should dispose of the "facial invalidity or lack of jurisdiction" rule and simply adhere to the plain language of the applicable statutory authority, just as the United States Supreme Court did in Mangum . For these reasons, I dissent. Stephenson has raised allegations in his brief that were not raised in his petition, primarily assertions of trial error. Stephenson, who does not contend that he was a minor when he committed the offenses of which he was convicted, also argues for the first time in his brief, without further explanation of the reasoning in support of the claim, that Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), a case pertaining to juvenile offenders, applies to his claims for relief under the habeas statute. This court does not address issues raised for the first time on appeal. Rasul v. State , 2015 Ark. 118, 458 S.W.3d 722.

DAVID M. GLOVER, Judge This is a no-merit appeal filed on behalf of Charles Douglas Taylor after the Miller County Circuit Court revoked his probation and sentenced him to twelve years' imprisonment. Pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Rule 4-3(k) of the Rules of the Supreme Court and Court of Appeals, Taylor's counsel has filed a motion to withdraw on the ground this appeal is wholly without merit. The motion is accompanied by an abstract and addendum of the proceedings below, which address all objections and motions decided adversely to Taylor, and a brief in which counsel explains why there is nothing in the record that would support an appeal. The clerk of our court provided Taylor with a copy of his counsel's brief and notified him of his right to file a pro se statement of points for reversal. Taylor has submitted pro se points. We affirm the revocation of Taylor's probation and grant counsel's motion to withdraw. Taylor was originally placed on six years' probation in July 2009 for the commission of Class B felony arson in May 2008. In March 2011, he was found to have violated the terms of his probation, and his probation was extended for six years. In 2014, Taylor was again found to have violated the terms of his probation; probation was continued, and he was ordered to serve a 90-day jail sanction at the Miller County Detention Center. In February 2016, the State filed a petition to revoke Taylor's probation, alleging he failed to abstain from the use of alcoholic beverages or had manufactured, possessed, used, sold, or distributed a controlled substance, narcotic drug, or drug paraphernalia; failed to report to his supervising probation officer as directed; failed to notify the supervising officer of his change of residence; failed to pay court-ordered financial obligations; and failed to pay the probation-supervision fees. After a hearing on the revocation petition, the circuit court found Taylor had violated the terms and conditions of his probation, revoked his probation, and sentenced him to twelve years' imprisonment. Sufficiency of the Evidence The sole adverse ruling at the revocation hearing was the revocation of Taylor's probation. A circuit court may revoke a defendant's probation at any time prior to the expiration of the period of probation if, by a preponderance of the evidence, it finds that the defendant has inexcusably failed to comply with a condition of his or her probation. Kidwell v. State , 2017 Ark. App. 4, 511 S.W.3d 341. The State has the burden of proving a condition of probation has been violated; proof of only one violation must be shown in order to sustain a revocation. Martin v. State , 2017 Ark. App. 399, 2017 WL 2683955. The trial court's findings are affirmed on appellate review unless they are clearly against the preponderance of the evidence. Baney v. State , 2017 Ark. App. 20, 510 S.W.3d 799. The appellate courts defer to the trial court's superior position to determine credibility and the weight to be accorded testimony. Kidwell, supra. Henry Black, Taylor's probation officer, testified Taylor failed to report to him from August to December 2015. Taylor admitted he had not reported since July 2015, claiming he was afraid to report because another probation officer had threatened to "lock him up" for being delinquent on his fines. Black's testimony regarding Taylor's failure to report and Taylor's admission of such failure provides sufficient evidence of Taylor's violation of the terms and conditions of his probation; therefore, the revocation must be affirmed. Taylor's Pro Se Points Taylor's argument on appeal appears to be that his twelve-year sentence is illegal because he has been subjected to three revocation proceedings and has been sentenced to a total of twenty-four years for Class B felony arson when the sentencing range is only five to twenty years' imprisonment. Illegal-sentence claims may be raised for the first time on appeal. Anderson v. State , 2017 Ark. App. 300, 2017 WL 1951868. A sentence is illegal when the circuit court lacks the authority to impose it. Id. An illegal sentence is one that is illegal on its face, which requires that the sentence exceed the statutory maximum for the offense for which the defendant was convicted; if a sentence is within the statutory limits, it is legal. Id. Taylor's sentence is not an illegal sentence. A circuit court has the authority to revoke and extend probation multiple times. Ark. Code Ann. §§ 5-4-303(d) and 5-4-309(f)(2)(B) (Repl. 2006). Furthermore, the circuit court may modify felony probation during the probationary period by imposing a period of confinement not to exceed 120 days. Ark. Code Ann. §§ 5-4-306(b)(4) and 5-4-304(d)(1)(A)(i) (Repl. 2006). Therefore, the circuit court had the authority to revoke Taylor's probation and to also impose a 90-day jail sentence. Although Taylor claims he has been sentenced to twenty-four years for a Class B felony that has a sentencing range of five to twenty years, Ark. Code Ann. § 5-4-401(a)(3) (Repl. 2006), he has, in fact, been sentenced to only twelve years' imprisonment. Taylor is equating the periods of his probationary sentences with terms of imprisonment. They are not the same. If the trial court revokes a defendant's probation, it may impose any sentence that might have been imposed originally for the offense of which the defendant was found guilty, Ark. Code Ann. § 5-4-309(f)(1)(A) (Repl. 2006), as long as the sentence of imprisonment does not exceed the authorized term of imprisonment for the offense. Ark. Code Ann. § 5-4-309(f)(1)(B). See also Ark. Code Ann. § 5-4-303(f) (imprisonment authorized when probation has been previously extended). The State concedes Taylor is entitled to credit for whatever part of the 90-day jail term he may have served, Ark. Code Ann. § 5-4-304(e), but the twelve-year sentence for a Class B felony upon the revocation of his probation is within the sentencing range and is a legal sentence. From our review of the record and the briefs presented, we find counsel has complied with the requirements of Rule 4-3(k) and hold that there is no merit to this appeal. Accordingly, the revocation of Taylor's probation is affirmed, and counsel's motion to withdraw is granted. Affirmed; motion to withdraw granted. Virden and Brown, JJ., agree. Taylor notes in his pro se points that in Black's January 2015 "Report of Probated Sentence Violation and Recommendation to Revoke," Black erroneously stated that the underlying felony was a Class A felony. However, this typographical error was discussed at the revocation hearing, and it was clarified that Taylor's offense of arson was a Class B felony; the record is clear that Taylor was sentenced in accordance with Class B felony arson. All statutes referred to are the statutory provisions in effect at the time of the offense.

Entergy also included a more extensive affidavit from attorney Tim Matthews, which, unlike the earlier affidavit, distinguished the attorney-led root-cause evaluation of the stator-lift accident from more "routine root-cause investigations ... done by facility personnel regarding relatively minor events." Mr. Matthews also averred that the post-accident root-cause evaluation was not done in the ordinary course of business because counsel, as opposed to other Entergy personnel, chose its "methodologies and investigative techniques." There is no indication that the circuit court reconsidered its discovery order, at Entergy's request or otherwise, in light of the new information in Mr. Matthews's second affidavit. On appeal, Entergy first contends that the circuit court abused its discretion by relying only on lawyer's argument, rather than evidence, to order disclosure of the root-cause evaluations, which, according to Entergy, is not sufficient. Second, Entergy asserts that Francis had no procedural right to seek production of the root-cause evaluations because he was not a "discovering party" entitled to production. Entergy raises two additional subpoints within this argument, including that Bigge was not entitled to production of the reports because Bigge failed to meet and confer with Entergy before filing its motion to compel, as required by Ark. R. Civ. P. 37(a)(2). Entergy further asserts that Francis and Bigge are not entitled, in any event, to production of the second root-cause evaluation because they failed to provide any notice prior to the hearing on February 28, 2017, that they would seek production of that document. Finally, Entergy contends that the circuit court abused its discretion because the root-cause evaluations are work product and Francis has not shown a substantial need that defeats the privilege. III. Standard of Review A circuit court has broad discretion in matters pertaining to discovery, and the exercise of that discretion will not be reversed on appeal absent an abuse of discretion that is prejudicial to the appealing party. Gerber Prods. Co. v. CECO Concrete Constr. , 2017 Ark. App. 568, at 6, 533 S.W.3d 139, 143. To have abused that discretion, the circuit court must have not only made an error in its decision, but also must have acted improvidently, thoughtlessly, or without due consideration. Id. The abuse-of-discretion standard is also applied to a circuit court's ruling on a protective order. See id. IV. Discussion A. The Basis of the Circuit Court's Ruling Mr. O'Keefe's deposition testimony is at the heart of this issue. During the hearing that was held on February 28, 2017, Francis's counsel read excerpts from the deposition to support his argument that the root-cause evaluations were created in the ordinary course of business, rather than in anticipation of litigation. Entergy now claims that the circuit court erred by allowing Francis to use the deposition in that manner because he did not make the showing required by Ark. R. Civ. P. 32(a)(3)(A)-(E) (2017). Entergy further argues that Francis did not introduce the deposition-or any other exhibit-into evidence; therefore, the circuit court erroneously relied solely on the arguments of counsel when it found that the work-product rule did not apply to the root-cause evaluations. We decline to consider this issue because Entergy failed to preserve it for appellate review. This court will not consider arguments raised for the first time on appeal. See Parkerson v. Brown , 2013 Ark. App. 718, at 5, 430 S.W.3d 864, 870. Entergy did not argue below, as it does now, that Francis failed to comply with the requirements of Ark. R. Civ. P. 32, before using Mr. O'Keefe's deposition at the hearing or that only the statements of counsel supported the argument that the work-product rule did not apply to the root-cause evaluations. Accordingly, we must decline to consider these arguments because Entergy makes them for the first time on appeal. B. Francis's and Bigge's Rights to Seek Production of the Reports Entergy next argues that the circuit court's order should be reversed because Francis did not have standing to compel production of the root-cause evaluations. Specifically, Entergy contends that Francis did not separately propound interrogatories and requests for production to Entergy and was not a "discovering party" who had standing to file-or join-a motion to compel under Ark. R. Civ. P. 37(a)(2). Entergy also challenges Bigge's right to compel production of the documents, alleging that Bigge failed to confer with Entergy, as also required by Rule 37(a)(2), before filing its motion to compel on December 18, 2014. Finally, Entergy asserts that the circuit court erred by ordering production of the second root-cause evaluation because Entergy did not have fair notice before the hearing that Francis and Bigge would seek its production. Entergy's argument about Francis's right to seek production of the root-cause evaluations is well taken. Francis never served Entergy with interrogatories or requests for production formally seeking the root-cause evaluations, and in the absence of making his own requests for discovery from Entergy, he lacked standing to "join" Bigge's motion to compel. See Ark. R. Civ. P. 37(a)(2) (providing that only "the discovering party" may move for an order compelling discovery). Accordingly, we reverse the order of the circuit court to the extent that it orders Entergy to produce the root-cause evaluations to Francis. Entergy is mistaken, however, that the circuit court's order to produce the documents to Bigge was an abuse of discretion because Bigge failed to confer with Entergy prior to filing its motion to compel. As an initial matter, the argument ignores that this is an appeal from the circuit court's order denying Entergy's motion for an order of protection pursuant to Ark. R. Civ. P. 26(c) (2017), which required Entergy, and not Bigge, to state that it "in good faith conferred or attempted to confer with other affected parties." Id. Additionally, the record demonstrates that Entergy waived the argument, which first appeared in its response to Bigge's motion to compel, because it later met with Bigge and other parties regarding the items requested in the interrogatories and requests for production and provided its supplemental responses to the discovery in October 2016. Finally, we decline to reach the merits of Entergy's argument that it was denied fair notice that Francis and Bigge were going to request the second root-cause evaluation at the February 28, 2017, hearing. Quite simply, Entergy failed to preserve the argument for appellate review by raising it in the circuit court. See Parkerson , 2013 Ark. App. 718, at 5, 430 S.W.3d at 870. In any event, Entergy cannot credibly claim that it was unaware that the second root-cause evaluation was inextricably linked to the first, or that the second report, which was issued in December 2014, was outside the scope of the discovery that Bigge requested in "Interrogatory No. 21" or "Request for Production No. 9." Accordingly, we affirm. C. The Work-Product Privilege Entergy next contends that the circuit court abused its discretion by finding that the two root-cause evaluations did not qualify for the work-product privilege because they were created in the ordinary course of business. Specifically, Entergy asserts that, while its own policy required the root-cause evaluations, they had a far different character than those it performs in the ordinary course of business. Unlike more routine root-cause evaluations, those at issue here followed a severe accident that was certain to engender litigation; they were performed with the involvement of counsel; and they required a much more complex level of investigation. Entergy therefore contends that the two root-cause evaluations are "opinion work product" that warrant protection from disclosure even upon another party's showing of substantial need. We hold that the circuit court did not abuse its discretion by finding that work-product protection did not apply to the two root-cause evaluations. "The work product doctrine was designed to prevent 'unwarranted inquiries into the files and mental impressions of an attorney.' " Simon v. G.D. Searle & Co. , 816 F.2d 397, 400 (8th Cir. 1987) (quoting Hickman v. Taylor , 329 U.S. 495, 510, 67 S.Ct. 385, 91 L.Ed. 451 (1947) ). Ordinary work product, including "raw data collected in the course of litigation and included in an attorney's file," Shook v. Love's Travel Stops & Country Stores, Inc. , 2017 Ark. App. 666, at 9, 536 S.W.3d 635, 640, is subject to qualified protection and is discoverable only upon "a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means." Ark. R. Civ. P. 26(b)(3). Opinion work product, consisting of "the mental impressions, conclusions, opinions, and or legal theories of an attorney or other representative of a party concerning the litigation," Ark. R. Civ. P. 26(b)(3), is subject to almost absolute protection. "Regardless of the type of work product at issue," however, "the threshold question governing application of the doctrine is whether the contested documents were prepared in anticipation of litigation." Shook , 2017 Ark. App. 666, at 9, 536 S.W.3d at 640. "The mere possibility that litigation may result is not sufficient to trigger the protection of the work-product doctrine." Id. Rather, the test is "whether, in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation." Id. at 10, 536 S.W.3d at 640. There is no work-product protection for documents prepared in the ordinary course of business. Id. It is undisputed that Entergy would have performed the root-cause evaluations even in the absence of litigation, as required by its own policy and by the Nuclear Regulatory Commission. It argues, however, that the reports of those evaluations should nonetheless be protected as work product because the scale of the root-cause evaluations that followed the stator-lift accident were unlike those that are created in the ordinary course of business for more minor events. According to Entergy, the stator-lift root-cause evaluations were larger and more complex, were overseen by counsel, and were conducted when litigation was certain to occur. Entergy therefore argues that the circuit court abused its discretion by ordering it to produce the root-cause evaluations. We must reject this argument. The party asserting work-product privilege has the burden of proving its application, see Shook , 2017 Ark. App. 666, at 9, 536 S.W.3d at 640, and Entergy failed to timely offer the evidence that, in its view, establishes that the root-cause evaluations following the stator-drop incident were prepared outside the ordinary course of business. As an initial matter, there is no unredacted version of the first report in the record to allow the circuit court-or this court-to evaluate that claim, and there is no version of the second report-redacted or otherwise-in the record at all. Further, as indicated above, Entergy submitted two substantially different affidavits from Entergy's outside counsel, Timothy Matthews. The first affidavit did little more than establish that counsel was involved in the first root-cause evaluation that was otherwise performed in the ordinary course of business. The second affidavit went to greater lengths to distinguish both root-cause evaluations from those that are more "routine," but it was not presented in a format that allowed the circuit court to consider it. Indeed, Entergy submitted the second affidavit in a reply to Francis's response to Entergy's motion for protective order only after the circuit court entered its order denying the motion. Entergy did not request reconsideration of the discovery order based on the new information in the second affidavit. Therefore, Entergy cannot use the second affidavit now to demonstrate that the circuit court acted "improvidently, thoughtlessly, or without due consideration," Gerber , 2017 Ark. App. 568, at 6, 533 S.W.3d at 139, when it ordered production of the root-cause evaluations. Because there was no abuse of discretion, we affirm the circuit court's order requiring production of the root-cause evaluations to Bigge. V. Conclusion Because we find that Entergy failed to meet its burden of proving that it created the root-cause evaluations in a form that was different from those it creates in the ordinary course of business, we hold that the circuit court did not abuse its discretion when it ordered Entergy to produce those documents to Bigge. The circuit court's order, therefore, is affirmed as it pertains to Entergy's production of the root-cause evaluations to Bigge. We further hold, however, that the circuit court abused its discretion when it ordered Entergy to produce the root-cause evaluations to Francis, who did not propound discovery seeking those documents. Accordingly, the circuit court's order is reversed to the extent that it orders Entergy to produce the root-cause evaluations to Francis. Affirmed in part and reversed in part. Whiteaker, J., agrees. Hixson, J., concurs. Entergy now appears to have abandoned its initial claim that the reports are also covered by the attorney-client privilege. As indicated above, Bigge argued-and the circuit court ruled-that Entergy waived the work-product privilege for the first root-cause evaluation by disclosing its conclusions in its publication, The Navigator. We decline to reach the waiver issue, however, because we find that Entergy has failed to meet its burden of proving that the work-product privilege applies to the root-cause evaluations.

SHAWN A. WOMACK, Associate Justice Pursuant to the Arkansas Freedom of Information Act, petitioner Randy Turrell Johnson brings this pro se motion seeking a copy at public expense of all written material pertaining to his 1998 conviction of capital murder. Johnson appended an affidavit of indigency to his motion. Johnson appealed from the judgment, and this court affirmed. Johnson v. State , 337 Ark. 477, 989 S.W.2d 525 (1999). Johnson asks to be provided with a copy of all material from that case and prior cases, including his history of prior arrests, all docket sheets from prior charges, interrogation transcripts, the housing log of the county-detention facility, and the investigators' notes. Because this court has in its possession only that material that was made a part of the record on appeal of the capital-murder conviction, this court rules on the motion only as it concerns that record. The Arkansas Freedom of Information Act, codified as Arkansas Code Annotated sections 25-19-101 to -111 (Supp. 2017), does not require a court to provide photocopies at public expense. Scott v. State , 2018 Ark. 75, 540 S.W.3d 279. Likewise, indigency alone does not entitle a petitioner to photocopies at public expense. Id. To be entitled to copies at public expense, a petitioner must demonstrate a compelling need for the copies as documentary evidence to support an allegation contained in a timely petition for postconviction relief. Id. Johnson has cited no postconviction remedy available to him and has otherwise made no showing of a compelling need. If there is indeed a remedy available, he has not demonstrated that there is any particular issue that he cannot adequately raise to the court without access to the material he seeks. Accordingly, he has failed to show that a copy of material from the direct appeal should be provided to him at no cost. It should be noted that when material has been placed on file with either this court or the court of appeals, the material remains permanently on file with the clerk. Persons may review the material in the clerk's office and photocopy all or portions of it. An incarcerated person desiring a photocopy of material on file with the clerk may write to this court, remit the photocopying fee, and request that the copy be mailed to the prison. Id. All persons must bear the cost of photocopying unless this court has granted a motion for a copy of the requested material at public expense. Motion denied. In his signature on the motion, the spelling of Johnson's middle name is "Terrell," but the notice of appeal from the original judgment of conviction in Johnson's case and the docket entry in this court on direct appeal spells the name as "Turrell."

KAREN R. BAKER, Associate Justice Appellant Richard J. Jackson brings this appeal from the denial by the trial court of his pro se "petition to reconsider and/or modify sentence." Jackson argued in the petition, which sought postconviction relief from his sentence, that a hearing should be held so that he could make the trial court aware of new and mitigating circumstances that would affect the sentence imposed in his criminal case. The trial court denied the relief sought on the grounds that Jackson's petition was meritless. While Jackson did not invoke either Arkansas Rule of Criminal Procedure 37.1 or Arkansas Code Annotated section 16-90-111(Repl. 2016), the circuit court also noted that Jackson's petition was untimely under both of those postconviction remedies. This court will not reverse a denial of postconviction relief unless the trial court's findings are clearly erroneous. Fischer v. State , 2017 Ark. 338, 532 S.W.3d 40. A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Id. We find no error in the trial court's denial of Jackson's petition and affirm the order. In 2012, Jackson entered a plea of guilty to robbery, kidnapping, and two counts of theft of property. He elected to be sentenced by a jury and was sentenced as a habitual offender to consecutive sentences totaling 1080 months' imprisonment. The Arkansas Court of Appeals affirmed the sentencing proceeding and remanded with instructions to correct errors in the judgment form. Jackson v. State , 2013 Ark. App. 689, 2013 WL 6097989. Jackson filed his petition in the trial court to reconsider or modify the sentence in 2017. Jackson's petition in the trial court did not allege that the sentence imposed on him was either illegal or illegally imposed, only that he desired to present unspecified new evidence and information in mitigation of the sentence. Generally, absent a statute, rule, or available writ, once the trial court enters a judgment and commitment order, jurisdiction is transferred to the executive branch of our government. See Richie v. State , 2009 Ark. 602, 357 S.W.3d 909. Without an exception provided by statute, rule, or available writ, the trial court lacks subject-matter jurisdiction to modify the sentence. Whitney v. State , 2018 Ark. 21, 535 S.W.3d 627. Arkansas Rule of Criminal Procedure 37.1 is one of the rules that provides an avenue for the trial court to modify a sentence under certain circumstances provided that the petition for relief is timely filed. See Richie , 2009 Ark. 602, 357 S.W.3d 909. Rule 37.2(c) provides that a petition under the Rule is untimely if not filed within sixty days of issuance of the appellate court's mandate affirming the judgment of conviction. Here, the court of appeals' mandate that affirmed the sentencing order in Jackson's case was issued on December 10, 2013. Jackson filed his petition in the trial court more than three years after the mandate had been issued. The time limitations imposed in Rule 37.2(c) are mandatory, and the trial court may not grant relief on an untimely petition. Maxwell v. State , 298 Ark. 329, 767 S.W.2d 303 (1989). As Jackson did not file his petition within the time limit set by the Rule, he was not entitled to relief under the Rule. Jackson argues that he was entitled to relief under section 16-90-111 because the statute permits mitigating circumstances to be submitted for consideration by the trial court at any time and because he was denied effective assistance of counsel in the trial court. With respect to the claim of ineffective assistance of counsel, the claim should have been raised in a timely petition under Rule 37.1. Swift v. State , 2018 Ark. 74, 540 S.W.3d 288. Moreover, the argument was not raised below, and we do not address arguments that are raised for the first time on appeal. Marshall v. State , 2017 Ark. 347, 532 S.W.3d 563. As to section 16-90-111(a), the statute provides authority to a trial court to correct a truly illegal sentence at any time. Jenkins v. State , 2017 Ark. 288, 529 S.W.3d 236. An illegal sentence is one that is illegal on its face. Id. A sentence is illegal on its face when it is void because it is beyond the trial court's authority to impose and gives rise to a question of subject-matter jurisdiction. Lambert v. State , 286 Ark. 408, 692 S.W.2d 238 (1985). A sentence imposed within the maximum term prescribed by law is not illegal on its face. Fischer , 2017 Ark. 338, 532 S.W.3d 40 ; Green v. State , 2016 Ark. 386, 502 S.W.3d 524. Here, Jackson made no assertion that the sentence imposed on him exceeded the sentence permitted under the applicable law. Instead, Jackson argues for the first time in his brief that section 16-90-111 permitted him to present mitigating evidence at any time and that his attorney could have conveyed to the court evidence in mitigation of the sentence that he has a severe learning disability. Jackson cites no relevant case law or persuasive authority to support his argument that section 16-90-111 allows an unlimited opportunity for a trial court to consider factors in mitigation of a sentence after the sentence has been placed into execution. This court does not consider arguments without authority or convincing support when it is not apparent without further research that the argument is well-taken. Maiden v. State , 2014 Ark. 294, 438 S.W.3d 263. The allegation that counsel could have offered mitigation evidence concerning his learning disability constitutes an allegation of ineffective assistance of counsel and is not cognizable as a ground for relief under the statute. See Swift , 2018 Ark. 74, 540 S.W.3d 288. Furthermore, the allegation does not support his claim that he is entitled under the statute to present mitigation evidence at any time. Affirmed. This court has held that a petition challenging a judgment, regardless of the label placed on it by the petitioner, can be considered as a petition for postconviction relief. See Latham v. State , 2018 Ark. 44, 2018 WL 897481. The court of appeals noted that (1) the judgment failed to reflect Jackson had pleaded guilty; (2) check-marked boxes incorrectly reflected that Jackson was found guilty by the court and sentenced by a jury and that guilt had been pronounced at a jury trial; and (3) although the form showed that the two theft-of-property offenses were committed on June 24, 2010, check marks classified them as Class D felonies-which was not the classification of those offenses at the time. Jackson , 2013 Ark. App. 689, at 3. While the time limitations on filing a petition under section 16-90-111(a)(b)(1) alleging that the sentence was imposed in an illegal manner were superseded by Arkansas Rule of Criminal Procedure 37.2(c), the portion of section 16-90-111 that provides a means to challenge a sentence at any time on the ground that the sentence is illegal on its face remains in effect. See Beyard v. State , 2017 Ark. 203. For that reason, the trial court had authority to grant relief under the statute if the sentence imposed on Jackson had indeed been illegal. Ark. Code Ann. § 16-90-111(a) ; Jenkins , 2017 Ark. 288, 529 S.W.3d 236.

RAYMOND R. ABRAMSON, Judge Misty Lawrence appeals the Greene County Circuit Court order terminating her parental rights to her daughter, F.R. On appeal, Lawrence argues that the circuit court erred by (1) not complying with the notice provision of the Indian Child Welfare Act (ICWA); (2) terminating her parental rights based on grounds not pled in the amended petition; and (3) finding that it is in F.R.'s best interest to terminate her parental rights. We affirm. On March 11, 2016, the Arkansas Department of Human Services (DHS) filed a petition for emergency custody and dependency-neglect concerning F.R. The petition listed Lawrence as the mother and Joshua Richer as the putative father. In the affidavit attached to the petition, DHS stated that it had received a report from the hospital where F.R. was born that Lawrence could not adequately care for the child. Specifically, a nurse reported that the nursing staff had been feeding F.R. more than Lawrence and that Lawrence had been talking to herself and had scabies. Lawrence admitted that she had had her rights terminated to two other children due to her mental instability. DHS visited Lawrence's duplex and found it inappropriate for the child. The court entered an ex parte order for emergency custody the day the petition was filed. On March 16, 2016, the court entered a probable-cause order. In the order, the court included the following: The mother does/does not have membership in or descent from an Indian Tribe; the legal/putative father does/does not have membership in or descent from an Indian tribe; the juvenile does/ does not have membership in or descent from an Indian tribe. The phrase " does not " appears to be scratched through. On May 12, 2016, the court adjudicated F.R. dependent-neglected based on both inadequate supervision due to Lawrence's failure to feed the child as directed and concerns about her mental health. The adjudication order also contains the language concerning the "legal/putative father['s]" relationship to an Indian tribe; however, a line is not drawn through "does not." On September 26, 2016, the court entered a review order. The court found that Lawrence had partially complied with the case plan. The court noted a primary concern had been environmental neglect and that Lawrence's home still had "a strong odor of animal urine." The court ordered Lawrence to have supervised visitation at the DHS office for one hour or more. On March 6, 2017, the court entered a permanency-planning order. The court found that Lawrence had complied with the case plan but had not made substantial, measurable progress. The court changed the goal of the case to adoption with DHS filing a petition for termination of Lawrence's parental rights. The court continued Lawrence's visitation with F.R. for one hour every two weeks. On April 12, 2017, DHS filed a petition for termination of parental rights. DHS alleged the failure-to-remedy ground, subsequent-factors ground, and aggravated-circumstances ground. About twenty minutes after DHS had filed its original complaint, DHS filed an amended petition for termination of Lawrence's parental rights. In the amended petition, DHS stated, 1. The Department filed a petition to terminate parental rights on April 12, 2017. The Certificate of Service on that petition did not have a date or signature. 2. This amended petition is for the sole purpose of correcting the certificate of service on the original petition. The original petition's certificate of service shall be amended to look exactly as the certificate of service on this petition below. On May 15, 2017, the court held a termination hearing. Kim Bliss, a family-service worker, testified that she had visited Lawrence at the hospital after F.R.'s birth, and Lawrence told Bliss that she talked to herself on some occasions. Lawrence explained that she talked to herself because having F.R. was stressful. Lawrence further told Bliss that she had been on medications but that she was no longer taking them and that she had scabies because she forgot to bathe. Lawrence also reported to Bliss that her home was not clean but that she could clean it up. Bliss testified that she visited Lawrence's home the next morning and that the home had roaches, dirty dishes, trash, food, and screws and nails "all over the place." Bliss noted that Lawrence had a baby bed and baby "stuff" for F.R. Bliss stated that during the pendency of the case, Lawrence had watched "The Clock is Ticking" video, maintained stable housing and employment, completed her parenting classes and psychological referral, and visited F.R. However, she stated that Lawrence had not completed the recommendations of her psychological referral and had not improved her home. As to the psychological recommendations, Bliss testified that they included that Lawrence comply with medication management and mental-health services. She explained that Lawrence had not consistently taken her medication and had frequently missed her therapy appointments. She discussed an incident in October 2016 when Lawrence was not taking her medication. Specifically, Lawrence had a fight with Richer, threatened to take a bottle of pills, and cut herself in the leg with a knife. Lawrence was arrested for disorderly conduct and went to the hospital for the gash in her leg, where she received staples. Bliss testified that Lawrence had several animals living in her duplex and that the duplex had a strong odor of ammonia. She stated that the duplex also was infested with bed bugs, fleas, roaches, and mice. She testified that Lawrence removed the dog that had the worst urinary incontinence problem in November 2016 but that in March 2017, a family with two cats moved into Lawrence's duplex. Bliss stated that she most recently visited Lawrence's duplex on May 8, 2017, and that Lawrence had only two dogs living there. She further testified that it was clean but still had roaches, even after DHS provided Lawrence with roach repellent. She further testified that Richer had moved out of the duplex in December 2016 and that Lawrence's new boyfriend, Peter Carter, had moved in in January 2017. She testified that she gave Carter paperwork to complete a nationwide-maltreatment-registry search in January 2017, but he delayed completing the paperwork until May 5, 2017, and the results can take six to eight weeks. She noted that Carter has a history with DHS in Missouri, but the Missouri office cannot release the records without Carter's consent, and Carter refused to sign a consent form. As to F.R., Bliss testified that she is doing well and that she is bonded to her foster parents. She stated that F.R.'s foster parents are committed to adopting F.R. if Lawrence's rights are terminated. She testified that when Lawrence visits the child, F.R. cries almost the entire visit. She stated that Lawrence tries to console and distract F.R. but that the child prefers her foster parents. She noted that Lawrence often brings F.R. appropriate clothing, and during the visitations, she feeds the child. She stated that Lawrence had fed F.R. inappropriately and that she had to instruct Lawrence on proper feeding practices, but Lawrence had listened and had modified her practices. Ryan Vaughan, a CASA worker, testified that he visited Lawrence's duplex and that during his initial visits, the home was "really messy" and had a strong ammonia smell. He noted the cleanliness of the duplex fluctuated. He explained that the condition of the duplex had improved in January 2017 after Richer moved out and when Carter moved in. However, in April 2017, the duplex was at its worst when the visiting family moved into the duplex. He also voiced concern about Lawrence's psychological abilities and discussed the incident when Lawrence cut herself. He stated that Lawrence is inconsistent. Brittany White, a mental-health professional, testified that she had weekly counseling appointments with Lawrence. She stated that Lawrence had intermittently missed several appointments but that Lawrence was consistent in attending the sessions. She testified that Lawrence is prescribed an antidepressant, a sleeping medication, and an anxiety medication. White noted that both the antidepressant and sleeping medication were prescribed on an as-needed basis. She believed Lawrence could follow directions to care for a baby. She had observed one supervised visitation between Lawrence and F.R., and she believed that Lawrence did not pose a risk to the child. She further believed that Lawrence could care for F.R. on her own if she had consistent support. Following DHS's case, Lawrence's attorney moved for a directed verdict. She asked the court to dismiss the case because DHS's amended petition for termination of Lawrence's parental rights failed to allege any grounds for termination and did not incorporate the original petition. The court denied the motion. Thereafter, Peter Carter testified on Lawrence's behalf. He stated that he had lived in Lawrence's duplex since January 2, 2017, but that they hoped to move in the future. He explained that they had delayed moving because they did not want to appear unstable to the court. He noted his sixteen-year-old son, J.C., also lives with them. He testified that Lawrence's cousins had previously lived with them for a month in April, but the cousins had moved out and are moving into the duplex next to them. He noted that the cousins included a husband and wife and their three children. He testified that he and Lawrence have one dog and that the cousins' cat still lives with them until the cousins move into the new duplex. Carter testified that he is disabled and draws $785 a month in disability benefits. As to the condition of the duplex, he testified that the ammonia smell had not been an issue since February 2017. He noted that he is a smoker but stated that he now smokes only outside at DHS's direction. He explained that they have roaches and bed bugs but that the duplex became infested when the landlord removed the carpets from their neighbor's duplex. He testified that they had tried to get rid of the bugs but that they had been unsuccessful and that it continues to be a problem. He noted that DHS merely gave them one bottle of Raid. Carter further testified that he did not receive any paperwork from DHS concerning backgrounds checks until March. He noted that after he had received the paperwork, he completed it and submitted it to DHS. He further denied refusing to sign a consent form and stated that he is willing to sign the form so that DHS may contain the Missouri DHS records. Patty Brewer testified that she is the coordinator of ArkStart, a program that works with individuals with developmental disabilities and mental-health issues, and that she had visited Lawrence's home for one hour for each of the past eighteen months. Brewer described the home as in "good condition" and clean. She did not notice an odor or a pest infestation. She further testified that she had seen Lawrence interact with children, and she believed the interaction was appropriate. She did not have any concerns about the children's safety. Following the testimony, the court orally ruled to terminate Lawrence's parental rights. On June 9, 2017, the court entered a written termination order. The court found that the failure-to-remedy ground, subsequent-factors ground, and aggravated-circumstances ground supported termination. The court further found it is in F.R.'s best interest to terminate Lawrence's parental rights. The court stated as follows: In making this finding, the Court specifically considered the likelihood that the juvenile will be adopted if the termination petition is granted and the potential harm on the health and safety of the juvenile caused by returning the juvenile to the custody of Misty Lawrence. The Court finds that it would be harmful to return a child to a mother that lacks parenting skills and the ability to obtain them, that has psychological issues that Misty Lawrence has, and that is unwilling or incapable of keeping an environmentally safe home. The court has to be concerned that Ms. Lawrence testified that she was angry and got a knife during an altercation with Mr. Richer. Further, Ms. Lawrence has had criminal trouble subsequent to the removal of the child. Lawrence timely appealed the termination order to this court. She raises three arguments on appeal. We review termination-of-parental-rights cases de novo. Lively v. Ark. Dep't of Human Servs. , 2015 Ark. App. 131, 456 S.W.3d 383. It is DHS's burden to prove by clear and convincing evidence that it is in a child's best interest to terminate parental rights as well as the existence of at least one statutory ground for termination. Id. On appeal, the inquiry is whether the circuit court's finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the appellate court, on the entire evidence, is left with a definite and firm conviction that a mistake has been made. Id. We give a high degree of deference to the circuit court, as it is in a far superior position to observe the parties before it and judge the credibility of the witnesses. Id. We first address Lawrence's argument concerning ICWA. She argues that the circuit court erred by failing to comply with the notice provision of ICWA after the court had specifically found in its probable-cause order that F.R.'s father, Richer, had a membership in or descent from an Indian tribe. She claims that the circuit court made this finding because the probable-cause order includes the following statement: "the legal/putative father does/does not have membership in or descent from an Indian tribe." There is no other information in the record concerning Richer's relationship to an Indian tribe. However, Lawrence failed to raise the ICWA issue to the circuit court, and it is therefore not preserved for our review. Adams v. Ark. Dep't of Human Servs. , 2016 Ark. App. 131, 485 S.W.3d 275 ; Lauman v. Ark. Dep't of Human Servs. , 2010 Ark. App. 564. Lawrence acknowledges that she failed to preserve the issue but asks this Court to revisit our prior rulings on preservation as it applies to ICWA. We decline to do so in this case. Lawrence next argues that the circuit court erred by terminating her parental rights based on grounds not pled in the amended petition. She points out that the amended petition did not allege any statutory grounds for termination and that it did not adopt and incorporate the original petition that alleged the failure-to-remedy, subsequent-factors, and aggravated-circumstances grounds. Because it did not incorporate the original petition, she contends that the amended petition supersedes the original petition and cites McMullen v. McHughes Law Firm , 2015 Ark. 15, 454 S.W.3d 200, and Farmers Union Mutual Insurance Co. v. Robertson , 2010 Ark. 241, 370 S.W.3d 179. She asserts that a decision to terminate parental rights cannot rest on grounds that were not pled. Thus, she argues that the circuit court should have granted her motion to dismiss the petition on that basis. While Lawrence relies on McMullen and Farmers to support her argument, her claim is one of due process. This court will not affirm a termination of parental rights based on grounds that were not pled because it would result in a violation of the parent's due-process rights. See, e.g. , Jackson v. Ark. Dep't of Human Servs. , 2013 Ark. App. 411, 429 S.W.3d 276. We have reasoned that when DHS does not specifically inform the parent that a ground is being alleged, the parent is not placed on notice that she must defend herself on that particular ground. Id. In this case, we hold that the circuit court did not err in denying Lawrence's motion to dismiss. Lawrence cannot claim that she did not have notice that DHS sought to terminate her parental rights based on the failure-to-remedy, subsequent-factors, and aggravated-circumstances grounds. DHS pled all three grounds in its original petition; in the amended petition, DHS specifically stated that the petition was filed "for the sole purpose of correcting the certificate of service on the original petition." And the amended petition was filed only twenty minutes after the original petition had been filed. Further, Lawrence had the opportunity to defend herself against those grounds. Her attorney moved for a directed verdict on all three grounds and also argued against them in closing arguments. Thus, she was not denied the opportunity to defend herself against the allegations. Moreover, she did not raise a due-process violation to the circuit court. Because no specific due-process argument was made below, this point is not preserved for our review. Kohlman v. Ark. Dep't of Human Servs. , 2018 Ark. App. 164. Accordingly, under these unique circumstances, we hold that the circuit court did not err in denying Lawrence's motion to dismiss. Lawrence lastly argues that the circuit court erred in finding that it was in F.R.'s best interest to terminate her parental rights. The best-interest analysis includes consideration of the likelihood that the children will be adopted and the potential harm caused by returning custody of the children to the parent. Spencer v. Ark. Dep't of Human Servs. , 2013 Ark. App. 96, 426 S.W.3d 494. The court, however, does not have to determine that every factor considered be established by clear and convincing evidence. Caruthers v. Ark. Dep't of Human Servs. , 2017 Ark. App. 230, 519 S.W.3d 350. Instead, after considering all the factors, the evidence must be clear and convincing that the termination is in the best interest of the child. Reid v. Ark. Dep't of Human Servs. , 2011 Ark. 187, 380 S.W.3d 918. Here, Lawrence does not challenge the circuit court's adoptability finding. She argues only that the court erred in finding that F.R. would be at risk of potential harm if returned to her custody. She asserts that the circuit court completely ignored the testimony regarding her improvements throughout the case. She points out that her therapist testified that she had the capability to parent F.R. and that she took direction well. She further claims that the testimony showed the condition of her home had improved. We hold that the circuit court did not clearly err in determining that F.R. would be at risk of harm if returned to Lawrence's custody. Even though there was testimony that Lawrence had made improvements throughout the case, the court found that it would be harmful to return F.R. to Lawrence's custody based on her lack of parenting skills, her mental health, and her inability to keep an environmentally safe home. There is evidence to support these findings. Specifically, after F.R. had been removed from her custody, Lawrence was arrested for disorderly conduct after she cut herself during a fight with F.R.'s father. Further, Lawrence's home was in its worst condition in April 2017, just a month before the termination hearing. Moreover, Lawrence needed specific directions on how to properly care for F.R. Accordingly, we are not left with a definite and firm conviction that the court made a mistake in finding that it is in F.R.'s best interest to terminate Lawrence's parental rights. Accordingly, we affirm. Affirmed. Virden and Whiteaker, JJ., agree. DHS also filed a petition for termination of Richer's parental rights. However, he was not served with the petition; thus, the circuit court did not terminate his rights in the termination order. Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a) (Supp. 2017). Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a) . Ark. Code Ann. § 9-27-341(b)(3)(B)(xi).

BART F. VIRDEN, Judge Farm Credit Midsouth, PCA, appeals from a Crittenden County jury's verdict in favor of appellees Fred Bollinger Jr., individually, and his related farming entities Bollinger Lone Oak, Inc., and Bollinger Partners, Inc. (collectively, the Bollingers). The Bollingers cross-appeal from the circuit court's decisions granting summary judgment or directed verdicts in favor of Farm Credit on certain of the Bollingers' claims. We affirm in part and reverse in part on direct appeal; we affirm on cross-appeal. I. Background Beginning in 2003, Farm Credit made a series of operating and equipment loans to the Bollingers' farming operations. The loans were secured by various security agreements and mortgages granting Farm Credit liens in the Bollingers' crops, government payments, crop insurance, equipment, and real estate. The Bollingers had a disastrous 2007 crop season when a late-April freeze damaged their wheat crop. Later, a severe drought reduced their soybean yield. Because of these weather impacts, the Bollingers, who had booked their crops with Riceland Foods, were unable to produce enough grain to fulfill their contracts with Riceland. This caused a default on the Farm Credit loans. After the Bollingers defaulted, Farm Credit filed a foreclosure and replevin action in 2009 for judgment on the notes and foreclosure of the collateral. The Bollingers answered, raising affirmative defenses. They also filed a counterclaim, asserting three basic claims: (1) that Farm Credit improperly required the Bollingers to book their crops as a condition of receiving loans; (2) that Farm Credit disclaimed any interest in the proceeds of the Bollingers' 2008 soybean crop only later to renege on its disclaimer and wrongfully assert a lien on those proceeds; and (3) that Farm Credit mishandled the Bollingers' crop-insurance applications and claims. The Bollingers also sought punitive damages and a jury trial on all issues triable by jury. The circuit court granted partial summary judgment in favor of Farm Credit on the Bollingers' claim for punitive damages. Farm Credit also moved for summary judgment on its complaint, which the circuit court granted as to liability but withheld entry of a final summary judgement until after trial of the Bollingers' counterclaim when the value of all of the claims could be determined. The case was submitted to a jury over several days. The circuit court directed verdicts in favor of Farm Credit on certain claims. The jury found in favor of the Bollingers on all three of their claims, based on multiple theories on each claim. In entering judgment on the jury's verdict, the court found that the Bollingers were entitled to only one recovery on each of their claims. Thus, Fred Bollinger, Jr., was awarded a total of $564,564.35; Bollinger Lone Oak, Inc., a total of $534,314.42; and Bollinger Partners, Inc., a total of $389,108.15. Farm Credit filed a timely motion for judgment notwithstanding the verdict (JNOV) or, alternatively, for new trial, which was denied after a hearing. The Bollingers also filed a posttrial motion seeking prejudgment interest on their claims for Farm Credit's asserting a lien on their 2008 soybean crop. At the conclusion of a telephone hearing, the court granted the motion and awarded the Bollingers a total of $173,867.45. This appeal and cross-appeal timely followed. II. Finality Before addressing the merits of the appeal and cross-appeal, we must first address an issue of finality. The issue is that there was no express resolution of Farm Credit's complaint for foreclosure. As mentioned above, the circuit court granted summary judgment in favor of Farm Credit on its foreclosure complaint. However, the court withheld entry of a judgment in favor of Farm Credit until after trial of the Bollingers' counterclaim. The court said that it intended to issue a judgment once the amounts of the various claims were determined. Between the entry of the summary-judgment order as to liability and trial, however, Fred Bollinger, Jr., and Fred Bollinger, Sr., sold their interests in Bollinger Brothers, Inc., and paid off the principal and interest owing on loans made to Bollinger Lone Oak, Inc., and Bollinger Partners, Inc., secured by mortgages on land owned by Bollinger Brothers, Inc. Farm Credit subsequently released the mortgages securing the loans. Obviously, by having the loans paid and the mortgages released, there was no further need for action on Farm Credit's complaint. Both parties acknowledge that no order was ever entered finally adjudicating Farm Credit's complaint. Generally, this lack of an order disposing of Farm Credit's complaint would render the judgment entered on the Bollingers' counterclaim nonfinal. See Bevans v. Deutsche Bank Nat'l Tr. Co. , 373 Ark. 105, 281 S.W.3d 740 (2008). However, Farm Credit's notice of appeal contains a statement that it abandoned all pending but unresolved claims. This abandonment operates as a dismissal with prejudice effective on the date that the otherwise final judgment appealed from was entered. Ark. R. App. P.-Civ. 3(e)(vi). We hold that the statement in the notice of appeal was sufficient to render the judgment entered on the jury's verdict final and appealable even though there was no express final adjudication of Farm Credit's complaint. Ark. R. App. P.-Civ. 3 ; Bradshaw v. Fort Smith Sch. Dist. , 2017 Ark. App. 196, at 4, 519 S.W.3d 344, 347. III. Arguments on Appeal We depart from our usual practice of addressing the points of error in the order raised by the parties and address the points topically, including arguments on both direct appeal and cross-appeal. This is done in an attempt to make it easier on the reader of this opinion. On appeal, Farm Credit argues that (1) it is entitled to a new trial because the Bollingers received a double recovery; (2) there is no substantial evidence to support the jury's verdict on tortious interference; (3) there is no substantial evidence to support the jury's verdict on deceit as to the 2008 soybean crop; (4) there is no substantial evidence to support the verdict for promissory estoppel; (5) there is no substantial evidence to support the claims for negligence and breach of fiduciary duty arising out of the 2008 soybean crop; (6) there is no substantial evidence to support the jury's verdict of promissory estoppel on crop insurance; (7) it is entitled to a new trial because the circuit court erred by allowing the jury to decide the Bollingers' counterclaim; and (8) the court erred in granting prejudgment interest. On cross appeal, the Bollingers argue that the circuit court erred in granting Farm Credit directed verdicts on their claims for (1) negligence in the booking claim; (2) breach of fiduciary duty in the booking claim; (3) reduced yields; (4) and unplanted crops; and in granting Farm Credit summary judgment on their booking-penalties claim. IV. Standard of Review Both parties challenge the circuit court's rulings on motions for directed verdicts. A circuit court evaluates a motion for directed verdict by deciding whether the evidence is sufficient for the case to be submitted to the jury; that is, whether the case constitutes a prima facie case for relief. Gamble v. Wagner , 2014 Ark. App. 442, 440 S.W.3d 352. In making that determination, the circuit court does not weigh the evidence; rather, it is to view the evidence in the light most favorable to the party against whom the verdict is sought and give it its highest probative value, taking into account all reasonable inferences deducible from it. Id. If any substantial evidence exists that tends to establish an issue in favor of that party, then a jury question is presented. Id. Substantial evidence goes beyond suspicion or conjecture and is sufficient to compel a conclusion one way or the other. Id. V. Discussion A. The Booking Claim The Bollingers' first claim is their "booking" claim. Although Farm Credit denied it, the Bollingers claimed that as a requirement of receiving their 2007 crop loans, Farm Credit forced the Bollingers to "book" their crops. "Booking" means that the Bollingers entered into contracts to set the amount and price of the crops in advance of their planting, with Riceland Foods or some other buyer. In other words, they would sell in advance of planting a predetermined amount of grain at a predetermined price. The Bollingers argued that Farm Credit, by requiring them to book their crops, interfered with their right to market their crops however they pleased and to whomever they pleased at the time of harvest. They also argued that this introduced an unacceptable level of uncertainty and risk into their operations. In late 2006, the Bollingers booked both their 2007 and 2008 crops. The Bollingers pursued their booking claim under theories of negligence, breach of fiduciary duty, and tortious interference with contractual relations or business expectancies. The circuit court directed verdicts in favor of Farm Credit on the negligence and breach-of-fiduciary-duty theories. The jury found in favor of the Bollingers on their tortious interference claim and awarded the Bollingers $987,417. Farm Credit argues that the circuit court should have granted a directed verdict on this cause of action. Our supreme court recently set out the elements of the cause of action as follows: The elements of tortious interference are (1) the existence of a valid contractual relationship or a business expectancy; (2) knowledge of the relationship or expectancy on the part of the interfering party; (3) intentional interference inducing or causing a breach or termination of the relationship or expectancy; and (4) resultant damage to the party whose relationship or expectancy has been disrupted. A fifth requirement has been added by this court: the conduct of the defendant must be "improper." In addition to the above, another essential element of a tortious-interference-with-contractual-relations claim is that there must be some third party involved. Ballard Grp., Inc. v. BP Lubricants USA, Inc. , 2014 Ark. 276, at 14-15, 436 S.W.3d 445, 454 (citations omitted). Furthermore, the expectancy that is obstructed must be precise, and it must be sufficiently concrete in order to qualify as a business expectancy and survive summary dismissal. See Skalla v. Canepari , 2013 Ark. 415, 430 S.W.3d 72. The chief distinction between a cause of action for interference with a contractual relationship and a cause of action for interference with a business expectancy lies in whether there is a present contractual relationship or whether there is merely some prospective relationship that is interfered with. See, e.g. , Stewart Title Guar. Co. v. Am. Abstract & Title Co. , 363 Ark. 530, 215 S.W.3d 596 (2005) ; Restatement (Second) of Torts § 766B cmt. a (1979). Our supreme court has noted that tortious interference with an existing contract needs "greater protection," whereas tortious interference with a business expectancy needs only "some protection." Mason v. Funderburk , 247 Ark. 521, 526-27, 446 S.W.2d 543, 547 (1969). There is a greater recognition of privilege as a defense in the case of interference with business expectations. Walt Bennett Ford, Inc. v. Pulaski Cty. Special Sch. Dist. , 274 Ark. 208, 214-B, 624 S.W.2d 426, 429-30 (1981) (citing W. Prosser, The Law of Torts , § 130 (4th ed. 1971) ). The first element of the tort may be proved by demonstrating either a valid contractual relationship or a business expectancy. Cross v. Ark. Livestock & Poultry Comm'n , 328 Ark. 255, 262, 943 S.W.2d 230, 234 (1997). The Bollingers do not allege that they had an existing contract with Riceland; instead, they argue that they had a preexisting relationship with Riceland and sold their crops to Riceland as harvested each year. The business relationships protected by this tort include any prospective contractual relations if the potential contract would be of pecuniary value. Stewart Title , 363 Ark. at 542-43, 215 S.W.3d at 603. The protected relationships also include a "continuing business or other customary relationship" which is non-contractual. Stewart Title , 363 Ark. at 543, 215 S.W.3d at 603 (quoting Restatement (Second) of Torts § 766B, cmt. c (1979) ). This includes potential opportunities to sell or buy, and options. Id. Here, the Bollingers would enter into contracts with Riceland as each crop season progressed. As the Bollingers argued to the circuit court in response to Farm Credit's motion for directed verdict on this claim, the expectancy was that the Bollingers would control the marketing and selling of their crops without interference. The question of whether a valid business expectancy existed was a question for the jury to determine. Stewart Title, supra. It is clear from the jury's verdict that they found such an expectancy. Accordingly, we conclude that the Bollingers had a valid expectancy entitled to protection. As such, there was no requirement that there be a third party involved. Ballard Grp., Inc. v. BP Lubricants USA, Inc., supra ; Faulkner v. Ark. Children's Hosp. , 347 Ark. 941, 961, 69 S.W.3d 393, 406 (2002). The next necessary element of the cause of action for tortious interference requires that the relationship be terminated or breached. See Navorro-Monzo v. Hughes , 297 Ark. 444, 447, 763 S.W.2d 635, 636 (1989). After the Bollingers "booked" their crops, their relationship with Riceland continued, albeit on somewhat different terms than before. Therefore, we conclude there was a failure to prove a termination of breach of the relationship. This brings us to the next question, if Farm Credit required the Bollingers to "book" their crops as a condition for the further extension of credit, did such requirement amount to an improper interference with the Bollingers' business expectancy. Impropriety is determined by (1) the nature of the actor's conduct, (2) the actor's motive, (3) the interests of the other with which the actor's conduct interferes, (4) the interests sought to be advanced by the actor, (5) the social interests in protecting the freedom of the action of the actor and the contractual interests of the other, and (6) the proximity or remoteness of the actor's conduct to the interference and the relations between the parties. Hamby v. Health Mgmt. Assocs., Inc. , 2015 Ark. App. 298, at 3, 462 S.W.3d 346, 349-50. The actor's conduct is to be considered in light of what is fair and reasonable under the circumstances. Id. The determination of whether the interference is improper is ordinarily left to the jury. Id. What is missing from the Bollingers' argument is any discussion of the factual support for the jury's finding that Farm Credit's actions were improper. Indeed, in their summary of the elements of the cause of action, the Bollingers omit any discussion of impropriety, and they argue only that the verdict should be upheld because the jury was instructed on the seven factors set out above. The only evidence supporting impropriety was the testimony of Mack Adams, a former Farm Credit loan officer who handled the Bollingers' account, that requiring the Bollingers to "book" their crops would be a violation of Farm Credit's policy. However, that is not enough to support the jury's verdict because a Farm Credit policy is not independently enforceable. It was not contained in any of the contracts or loan documents between the Bollingers and Farm Credit. Again, what is missing is a discussion of the evidence to support the jury's verdict on this point. If the interference is not improper, the tort has not occurred, even if the victim is harmed. See Mason v. Wal-Mart Stores, Inc. , 333 Ark. 3, 969 S.W.2d 160 (1998). Arkansas law recognizes justification as a defense to a claim of tortious interference. See Walt Bennett Ford, Inc., supra. Farm Credit denies that it conditioned the extension of credit on the Bollingers "booking" their 2007 crops. Assuming, as we must in light of the jury's verdict, that Farm Credit did impose such a requirement, that does not make it "improper" as would support a verdict for tortious interference. Farm Credit had its own valid, economic interest to protect. Protecting one's economic interest constitutes justification for interference with a business expectancy unless one employs improper means to protect that interest. See Kinco, Inc. v. Schueck Steel, Inc. , 283 Ark. 72, 78, 671 S.W.2d 178, 181-82 (1984) (quoting Restatement (Second) of Torts § 768 (1977) ). So long as a defendant does not employ improper means, a defendant's own economic interest provides sufficient justification for an alleged tortious interference. West Memphis Adolescent Residential, LLC v. Compton , 2010 Ark. App. 450, 374 S.W.3d 922. Also under this claim, the Bollingers argue that the circuit court erred in granting a directed verdict in favor of Farm Credit on their claim of negligence arising out of Farm Credit's requirement that they book their 2007 and 2008 crops. However, the Bollingers' assertion on this point is made without a developed argument and without a convincing explanation as to how or why a legal error occurred. It is the appellant's burden to demonstrate reversible error. Parker v. Parker , 97 Ark. App. 298, 248 S.W.3d 523 (2007). Points asserted without citation to authority or convincing argument should not be considered. Id. The Bollingers next argue that the circuit court erred in directing a verdict for Farm Credit on their breach-of-fiduciary-duty claim arising from the requirement that they "book" their crops. We disagree. Ordinarily, the relationship between a bank and its customer is one of debtor and creditor. Mans v. Peoples Bank , 340 Ark. 518, 10 S.W.3d 885 (2000). For a fiduciary relationship to exist, our supreme court has emphasized the necessity of factual underpinnings to establish a relationship of trust between a bank and its customers. Id. at 526, 10 S.W.3d at 889. In their amended counterclaim, the Bollingers assert that the fiduciary relationship between them and Farm Credit resulted from Farm Credit being their lender over a period of years. A customer asserting a fiduciary relationship with his bank has the burden of proving the relationship is beyond that of debtor-creditor. Marsh v. Nat'l Bank of Commerce , 37 Ark. App. 41, 822 S.W.2d 404 (1992). The Bollingers have not shown anything more than an ordinary debtor-creditor relationship between them and Farm Credit. The mere fact that there is a long-term relationship, without more, is insufficient to establish a fiduciary relationship. Mans , supra. There has been no showing that Farm Credit has been "intimately involved" with the Bollingers' operations so as to elevate the relationship to a "special relationship" for which fiduciary duties are owed. Thus, the circuit court correctly directed a verdict on this count of the Bollingers' counterclaim. Because the Bollingers failed to prove two of the elements of the cause of action for tortious interference-that there was a termination or breach of their relationship with Riceland and that Farm Credit used improper means to achieve that result-the circuit court erred when it failed to grant Farm Credit's motion for a directed verdict on this claim. B. The 2008 Soybean Crop For the 2008 crop season, Farm Credit loaned the Bollingers only enough money for their wheat crop and for their land rent for the entire crop year cycle. The loans did not include moneys for their soybean crop. In fact, Farm Credit took the position that it would look at the situation again in June or July to determine whether to extend credit for the soybean crop. The Bollingers sought financing for its 2008 soybean crop from another agricultural lender, Home Oil Company, and its lending arm, AgQuest (collectively, Home Oil). Fred Bollinger, Jr., testified that he obtained a $100,000 line of credit from Home Oil in October 2007. He further testified that in an effort to obtain alternative financing, he asked Farm Credit to write a letter to Home Oil, stating that Farm Credit was not claiming a lien or security interest in the Bollingers' 2008 soybean crop. The letter, dated February 14, 2008, states in pertinent part: This letter is to notify Home Oil Company that Farm Credit Midsouth, ACA [sic], has no security interest or crop lien against the 2008 soybean crop for all entities related to Fred Bollinger, Jr. (including Fred Bollinger Jr., Individually, Bollinger Lone Oak, Inc., Bollinger Partners, Inc., or FNB Farms). Home Oil eventually loaned the Bollingers $300,000 in July 2008. However, Fred Bollinger, Jr., testified that the loan was not related to the February 2008 letter. The loan was not secured by a lien on the soybean cop. Instead, the loan was guaranteed by William Tennison. Farm Credit later asserted a lien on the soybean crop, and Riceland made the proceeds, approximately $411,000, jointly payable to Farm Credit and the Bollingers. The Bollingers endorsed the proceeds over to Farm Credit, who applied them to the balance of the Bollingers' notes and loans. The Bollingers' claim for recovery of the 2008 soybean proceeds fails on multiple bases. First, the Bollingers are getting a double recovery. The Bollingers received approximately $411,000 for their 2008 soybean crop. Farm Credit applied those proceeds to reduce the balance due on the Bollingers' loans. Thus, they have received the benefit of those proceeds when Farm Credit applied those same proceeds to reduce the loan balance. For the Bollingers to then recover a judgment for those same proceeds amounts to a prohibited double recovery. Fisher Trucking, Inc. v. Fleet Lease, Inc. , 304 Ark. 451, 803 S.W.2d 888 (1991). Second, the Bollingers' promissory-estoppel and deceit claims also fail because the promise-made in the February 2008 letter-induced no reliance or action by anyone. Home Oil did not assert its own lien on the proceeds of the crop. The law on promissory estoppel is set out in the Restatement (Second) of Contracts: A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires. Restatement (Second) of Contracts § 90 (1981) ; see also K.C. Props. of N.W. Ark., Inc. v. Lowell Inv. Partners, LLC , 373 Ark. 14, 280 S.W.3d 1 (2008) ; Rigsby v. Rigsby , 356 Ark. 311, 149 S.W.3d 318 (2004). As noted above, Fred Bollinger, Jr., testified that the July 2008 loan from Home Oil was not related to Farm Credit's February 2008 letter to Home Oil. Likewise, a claim of fraud or deceit also includes a reliance element. Tyson Foods, Inc. v. Davis , 347 Ark. 566, 66 S.W.3d 568 (2002). Because the claim fails, we also reverse the circuit court's award of prejudgment interest to the Bollingers arising from this claim. C. The Crop-Insurance Claims Farm Credit also argues that there is no substantial evidence to support the jury's verdicts for negligence, breach of fiduciary duty, and promissory estoppel concerning the Bollingers' crop-insurance claims. The Bollingers contend that Farm Credit mishandled their claim so that they did not recover all of the proceeds they were due. One of the Bollingers' claims centered on Farm 2311. For the 2007 crop year, the Bollingers reported to Charlene Zachary of Farm Credit that they had planted fifteen acres on Farm 2311. Zachary, in turn, relayed this information to the insurance company, Rain and Hail. Rain and Hail then issued a summary of coverage to both Farm Credit and the Bollingers. The 2007 summary of coverage, however, listed Farm 2311 as having only eight planted acres. The Bollingers did not notice or object to the acreage reduction. In obtaining their 2008 crop insurance, the Bollingers reported their 2007 production to Zachary, who relayed the information to Rain and Hail. The Bollingers reported their production for Farm 2311 as 534.14 bushels, which, when divided by eight acres rather than fifteen acres, resulted in an abnormally high yield of 67 bushels per acre. Fred Bollinger, Jr., testified that when he received a letter from Rain and Hail inquiring about possible excessive yields and requesting documentation, he spoke with Zachary and she said that she would handle it. He asked that she look at the documentation to determine the acreage he reported because he did not report eight acres for Farm 2311. Instead, he reported fifteen acres. Zachary testified that the Bollingers had correctly reported that they had planted fifteen acres. She said that she did not call Rain and Hail to discuss the discrepancy when she received the letter questioning the excessive yield. She said that Mr. Bollinger had told her that he had taken care of the situation. Zachary said that Rain and Hail probably resolved the issue by combining the Bollingers' separate farms into basic units. She also said that the Bollingers had paid to have their farms insured separately instead of having them combined into basic units. Farm Credit argues that it did not owe any duty to the Bollingers and cites the common-law rule that a policyholder has a duty to educate himself concerning matters of insurance, including the coverage available under different policies, and that an insurance agent generally has no duty to advise or inform policyholders as to different coverages. Buelow v. Madlock , 90 Ark. App. 466, 206 S.W.3d 890 (2005) (citing Scott-Huff Ins. Agency v.Sandusky , 318 Ark. 613, 887 S.W.2d 516 (1994) ; Howell v. Bullock , 297 Ark. 552, 764 S.W.2d 422 (1989) ; Stokes v. Harrell , 289 Ark. 179, 711 S.W.2d 755 (1986) ). However, if a special relationship exists between the insured and his insurance agent, this may place on the agent a higher duty to inform the insured. Id. The existence of a special relationship presents a question of fact. Id. Based on these principles, Farm Credit argues that the promissory-estoppel claim cannot stand because it owed no duty to the Bollingers to advise about coverages. However, these claims are not about coverages per se; instead, they concern whether Farm Credit was negligent in helping the Bollingers in resolving the excessive-yield matter with Rain and Hail. Although Farm Credit may not have owed the Bollingers a duty, the jury may have found that it had assumed a duty when Charlene Zachary told Fred Bollinger, Jr., that she would handle it. A party who gratuitously undertakes a duty can be liable for negligently performing that duty. Mercy Health Sys. of Nw. Ark. v. McGraw , 2013 Ark. App. 459, 429 S.W.3d 298. In that case, a hospital doctor, upon being served with a summons and complaint in a malpractice action, entrusted it to employees of the hospital who assured her that it would be answered. However, when no answer was timely filed, a default judgment for $500,000 was entered against the doctor. The doctor's subsequent promissory-estoppel claim against the hospital for failing to keep its specific promise "to take care of the complaint" was tried to a jury, which awarded the doctor $350,000 after the verdict was reduced by the doctor's fault. We affirmed and held that the hospital employees' promise to the doctor to "take care of" the malpractice complaint was specific enough to be relied on by the doctor as an element of her promissory-estoppel claim against the hospital. Here, the evidence was such that the issue of whether Zachary said that she would handle the excessive-yield matter and, if so, whether she was negligent in doing so, presented a jury question. D. Other Issues There are some loose ends on both direct appeal and on cross-appeal that do not fit into the discussion of the other issues. They are discussed here. First, Farm Credit concedes that in light of the supreme court's recent decision abolishing the clean-up doctrine in Tilley v. Malvern National Bank , 2017 Ark. 343, 532 S.W.3d 570, the circuit court did not err in submitting the Bollingers' counterclaim to a jury. Next, the Bollingers argue that the circuit court erred in directing a verdict for Farm Credit on their claim for reduced crop yields for their 2008 crop. Farm Credit moved for a directed verdict on this claim on the basis that the Bollingers did not provide proper evidence of their damages. In its motion, Farm Credit asserted that the Bollingers simply provided county-wide figures for average yield per acre for the prior years without comparison of the yield for the damaged field and the yield for an adjacent, undamaged field growing the same crop during the same season. There was discussion between the court and counsel for the Bollingers over the proper measure of damages. Counsel for the Bollingers indicated that he had used county-wide average yields. The court denied the motion at the conclusion of the Bollingers' case-in-chief but indicated that it was likely to grant the motion at the conclusion of all of the evidence. There was further discussion of the measure of damages and the Bollingers' proof at the close of all of the evidence. This discussion included both the reduced-yield claim and the claim for the acreage not planted. The court eventually granted the motion as to both claims. Arkansas law provides that when a crop is damaged but nonetheless grows to maturity, the damages are the difference between the market value, at the time of harvest, of the crop actually produced and the crop that would have been produced without the damage, less the costs of production. McGraw v. Weeks , 326 Ark. 285, 930 S.W.2d 365 (1996) ; McCorkle Farms, Inc. v. Thompson , 79 Ark. App. 150, 84 S.W.3d 884 (2002). Evidence as to the average yield per acre for the prior years is not reliable in computing damages in light of weather conditions and other factors that vary annually. McCorkle Farms , 79 Ark. App. at 164, 84 S.W.3d at 892 (citing J.L. Wilson Farms, Inc. v. Wallace , 267 Ark. 643, 590 S.W.2d 42 (Ark. App. 1979) ). However, "a comparison between the yield from the damaged land and the yield from adjacent but undamaged land during the same season, for the same crop, [is] substantial evidence to support an award of damages." Id. The Bollingers contend that they submitted proof regarding the proper measure of damages through the testimony of Fred Bollinger, Jr., and an exhibit he prepared. In his testimony, Bollinger gave an average yield for his total acreage farmed at the booked price of $8.85 per acre. He also testified as to the cost of production. He did not attempt to break the figures down as to how many acres had reduced yields as opposed to yields for his undamaged lands. Nor is there any evidence as to yields from adjacent, undamaged farms and how their yields compared to the Bollingers' yields. Without the showing of comparability, the circuit court properly granted the motion for directed verdict on this claim. McCorkle Farms, supra. The Bollingers also invite this court to adopt a measure of damages allowing recovery based on evidence of prior years' yields. This we cannot do. We are without authority to overrule our supreme court's precedent. See, e.g. , Selrahc Ltd. P'ship v. Seeco Inc. , 2009 Ark. App. 865, 374 S.W.3d 33 ; Roark v. State , 46 Ark. App. 49, 876 S.W.2d 596 (1994) ; Leach v. State , 38 Ark. App. 117, 831 S.W.2d 615 (1992). Another element of damages the Bollingers sought to recover was the value of their unplanted 2008 soybean crop. The circuit court granted a directed a verdict on this claim as part of a discussion that also included the Bollingers' reduced-yield claim. The circuit court and the parties agreed that the correct measure of damages was the fair rental value of the land. Gregory v. Walker , 239 Ark. 415, 389 S.W.2d 892 (1965) ; Farm Bureau Lumber Corp. v. McMillan , 211 Ark. 951, 203 S.W.2d 398 (1947) ; St. Louis, Iron Mtn. & S. Ry. v. Saunders , 85 Ark. 111, 107 S.W. 194 (1908). The Bollingers contend that they submitted proof regarding the rental value of the relevant land. We disagree. Fred Bollinger, Jr., testified that his loan from Farm Credit included enough money to cover the rental of the land. The Bollingers also cite part of the Bollingers' 2008 credit presentation prepared by Farm Credit, as setting forth the relevant rental figures. However, no such rental information appears in that document. Instead, that document breaks down the Bollingers' already-incurred costs per acre, as well as how much additional money per acre will be necessary to "make" or "finish" their wheat crop. There was no loan for the soybean crop at that time, and the document notes that Farm Credit would reevaluate in June or July for funding of the soybean crop. Therefore, the circuit court did not err in granting a directed verdict on this claim. Finally, the Bollingers argue that the circuit court erred in granting summary judgment in favor of Farm Credit on the Bollingers' claim for booking penalties imposed but never collected or sued for by Riceland. This issue arose as follows. By "booking" their 2007 crops, the Bollingers obligated themselves to sell certain quantities of grain to Riceland at a future date but then were unable to deliver those quantities of grain within the timeframe required. As a result, the Bollingers alleged that they incurred booking penalties in excess of $300,000. Farm Credit filed a motion for partial summary judgment on this claim, arguing that because the statute of limitations had run without Riceland having collected the booking penalties, they were not a proper element of the Bollingers' damages. The motion also sought to exclude evidence of the penalties from the jury. In their response to the motion, the Bollingers admitted that Riceland had not filed suit to collect the penalties. In their supporting brief, they also argued that excluding evidence of the penalties violated the collateral-source rule. After a hearing, the circuit court granted the motion for summary judgment. The burden of proving damages rests on the party claiming them. Minerva Enters., Inc. v. Howlett , 308 Ark. 291, 824 S.W.2d 377 (1992.) The Bollingers argue that Farm Credit never presented proof in support of its motion for partial summary judgment. However, there is no such requirement. Rule 56 does not require the moving party to present affidavits. Instead, it expressly dispenses with that requirement, stating that "a party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment" and "[a] party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought" may move for summary judgment "with or without supporting affidavits. " Ark. R. Civ. P. 56 (a), (b) (emphasis added). In any event, Farm Credit did provide proof to support its motion by citing the deposition testimony of Fred Bollinger, Jr., to the effect that the penalties had not been paid and that Riceland was not going to collect them. Moreover, the Bollingers admitted that they had not paid the penalties, that Riceland never filed suit to collect the penalties, and that the statute of limitations had run. Under these circumstances, the Bollingers cannot prove one of the elements of their claim to recover the booking penalties-namely, that they suffered damages. When a party cannot present proof on an essential element of his or her claim, there is no remaining genuine issue of material fact, and the party moving for a summary judgment is entitled to judgment as a matter of law. First United Methodist Church of Ozark v. Harness Roofing, Inc. , 2015 Ark. App. 611, 474 S.W.3d 892. Therefore, the circuit court correctly granted summary judgment in favor of Farm Credit on the Bollingers' claim for the booking penalties. VI. Conclusion In conclusion, we affirm the circuit court's decision to have the Bollingers' counterclaim presented to a jury because the clean-up doctrine has been abolished. We also affirm the jury's verdict on Farm Credit's handling of the Bollingers' crop-insurance claims. Because the Bollingers failed to make a prima facie case of tortious interference, we reverse the jury's verdict and dismiss that claim. We likewise reverse and dismiss the Bollingers' claim for the proceeds from their 2008 soybean crop. The judgments in the Bollingers' favor for deceit and promissory estoppel cannot stand because there was no reliance on Farm Credit's February 2008 letter to Home Oil Company. We also affirm on all points of the Bollingers' cross-appeal. Affirmed in part and reversed in part on direct appeal; affirmed on cross-appeal. Gladwin and Vaught, JJ., agree. Farm Credit originally named Fred Bollinger, Sr.; his wife, Syble Bollinger; and Fred Bollinger, Jr.'s wife, Betty Bollinger as defendants. Syble Bollinger died during the pendency of this action in the lower court and Fred Bollinger, Sr., was appointed personal representative. Also, Betty Bollinger filed for bankruptcy protection during the pendency of the case. Farm Credit was granted summary judgment on the counterclaim filed by Betty Bollinger. As explained below, there were multiple theories for each claim. Navorro-Monzo involved an existing contractual relationship between the parties.

BRANDON J. HARRISON, Judge A Pulaski County jury convicted Michael Duvall, Jr., on two counts of rape, both against his daughter K.D. He was sentenced to a total of sixty years' imprisonment; the terms to run consecutively. He argues that the circuit court erred in admitting the testimony of three witnesses under the pedophile exception to Arkansas Rule of Evidence 404(b) and that the State did not properly authenticate text messages it used against him as evidence. We affirm. I. Overview Pretrial. In August 2016, the State filed a felony criminal information charging Duvall with two counts of rape in violation of Ark. Code Ann. § 5-14-103 (Supp. 2017). The State alleged that Duvall engaged in sexual intercourse or deviate sexual activity with K.D., a minor less than fourteen years of age, on or about 1 January 2002 through 31 December 2010. The second count alleged that Duvall engaged in sexual intercourse or deviate sexual activity as a guardian of K.D. on or about 1 March 2013 through 30 June 2013 when she was less than eighteen-years-old. In March 2017, the State filed several notices of its intent to use Rule 404(b) evidence and sought a pretrial ruling that the testimony of L.A., T.D., and T.G. would be admissible under the pedophile exception. It argued that evidence of Duvall's prior acts of sexual misconduct would be admissible to show his motive, intent, preparation, plan, knowledge, absence of mistake, and any other relevant purpose. The State said that L.A. would testify that in 1999 or 2000, when she was a minor residing in the same household as Duvall, he showed her pornography and requested she take her clothes off and allow him to look at her naked body. It also alleged that L.A. performed oral sex on Duvall several times over the course of a month. The State also stated that T.D. is Duvall's biological daughter and that she would testify that Duvall would often walk around naked and that in 2015 he requested that she take off her underwear and show him her vagina over the FaceTime feature on her iPhone. The proposed testimony of the third witness, twenty-one-year-old T.G., was that when she was ten to twelve-years-old, Duvall walked around naked in her presence and showed her a pornographic movie. The State also said she would testify that Duvall walked in on her once while she was showering and touched her breast and buttocks. Duvall filed multiple objections to the "late filed" Rule 404(b) notices and asked the court to exclude each of the three witnesses' testimony for many rule-based and constitutional reasons. During a pretrial hearing on 13 March 2017, the circuit court stated that it did not need to hear from the three witnesses, that the State could use their testimony, and that Duvall could cross-examine them and "make proper objections at the time of their testimony." The court also overruled Duvall's detailed arguments, objections, and motions related to the State's Rule 404(b) evidence. II. Trial Testimony K.D.'s Testimony. K.D., Duvall's daughter and the victim in this case, was twenty years old at the time of the trial. She testified that she lived primarily in North Little Rock with her mother growing up but would visit Duvall on the weekends when he lived in the area. She told the jury that when she was approximately four-years-old and staying with her father, he came downstairs without any clothes on and asked if she wanted a peanut butter and jelly sandwich. K.D. said she wanted a jelly sandwich, and her father lay on the floor and put jelly on his penis and told her to lick it off. K.D. did so but said that he pushed her head forcefully. K.D. said it was normal for her father to walk around naked and that he would shower with her when she was a child. She also described events when her father made her stand naked in front of a mirror while he would ejaculate on her, or she would masturbate him. Duvall moved to Connecticut when K.D. was around 11-years-old but would visit her in Arkansas. During those visits, she said that she would stay in hotels with her father where he would immediately take off his clothes and masturbate. She would also visit him in Connecticut where he performed oral sex on her. She testified that Duvall gave her a cellphone when she was in eighth grade. He asked her to send him pictures, FaceTimed her when she was getting in the bathtub, and would sometimes tell her to do certain acts. She visited Duvall after he had moved from Connecticut to Georgia when she was fourteen-years-old. She said that he tried to insert his penis in her vagina, that she told him it hurt, and he moved off of her. She gave him massages while he was naked during that visit. K.D. also described a visit Duvall made to North Little Rock when she was sixteen-years old. She said that her father picked her up from school and that they went to his hotel. He told her to take her clothes off, face the television so he could masturbate, and then inserted his finger into her vagina as he performed oral sex. T.D.'s Testimony. Seventeen-year-old T.D. testified that she is Duvall's biological daughter but has a different mother than K.D. She said that she would stay with Duvall in hotels, and he would walk around naked all the time. From the time she was ten-years-old until she was sixteen, he would have her take off her top or bottoms to see how she was "developing" after taking her swimming at the hotel. T.D. testified that Duvall obtained and paid for her cellphone. She complied with Duvall's request to see her vagina over FaceTime. When she visited Duvall in Connecticut, he walked in the room when she was taking a bath. L.A.'s Testimony. L.A. testified that she is Duvall's former sister-in-law, that he lived with her, her sister, and her mother when L.A. was fourteen-years-old, which was approximately seventeen years ago. She described Duvall's asking her if she was a virgin and if she knew "what to do" if she had a boyfriend. He showed her a video of her sister performing oral sex on him and asked if he could teach her how. She said yes, and he asked what her favorite type of jelly was and then put strawberry jelly on his penis. He complimented her that she was "better than [her] sister," and L.A. said that she had given him oral sex about twenty times during the short time he had lived at the house. He warned her not to tell anyone because he would end up in the penitentiary. T.G.'s Testimony. K.D.'s twenty-one-year-old cousin, T.G., testified that she and K.D. were around the same age and spent a lot of time together when she was eleven or twelve-years-old. She said that Duvall always walked around naked and that the first time she went to his house, he was naked and watching pornography and asked her to "ejaculate him." She refused and walked on his back instead. She also said that Duvall walked in while she and K.D. showered, joined them, and washed them with a washcloth. She said that Duvall gave her and K.D. money to not say anything. III. The Pedophile Exception Our supreme court outlined the pedophile exception in Hortenberry v. State , 2017 Ark. 261, 526 S.W.3d 840 : Rule 404(b) states that evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. The first sentence provides the general rule excluding evidence of a defendant's prior bad acts, while the second sentence provides an exemplary, but not exhaustive, list of exceptions to that rule. We have explained that evidence is not admissible under Rule 404(b) simply to establish that the defendant is a bad person who does bad things. Rule 404(b) permits the introduction of evidence of prior bad acts if the evidence is independently relevant to make the existence of any fact of consequence more or less probable than it would be without the evidence. Additionally, this court has recognized a separate "pedophile exception" to the general rule that evidence of a defendant's prior bad acts cannot be used to prove that the defendant committed the charged crime. The pedophile exception allows the State to introduce evidence of a defendant's similar acts with the same or other children when it is helpful in showing a proclivity for a specific act with the person or class of persons with whom the defendant has an intimate relationship. The rationale for this exception is that such evidence helps to prove the depraved sexual instinct of the accused. There are two requirements for this exception to apply: (1) a sufficient degree of similarity between the evidence to be introduced and the charged sexual conduct, and (2) evidence of an "intimate relationship" between the defendant and the victim of the prior act. Even if evidence is admissible under a bad-acts exception, the evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Thus, a circuit court may refuse to admit evidence that is unfairly prejudicial to the defendant, even if it might be relevant. Finally, we have held that a circuit court has broad discretion in deciding evidentiary issues, and its decision will not be reversed absent an abuse of discretion. The abuse-of-discretion standard is a high threshold that does not simply require error in the circuit court's decision, but requires that the circuit court act improvidently, thoughtlessly, or without due consideration. Hortenberry , 2017 Ark. 261 at 9-10, 526 S.W.3d at 846-47 (internal citations omitted). A. Rule 404(b) Arguments Duvall argues that the circuit court committed reversible error when it allowed T.D., L.A., and T.G. to testify because no exception to Rule 404(b) applied. He maintains that those allegations were too dissimilar to the rapes that the State alleged he committed against K.D. and that even if the witnesses' accounts of past sexual abuse were sufficiently like the rape allegations, their probative value was substantially outweighed by the danger of unfair prejudice. He does not argue a lack of evidence of an "intimate relationship" between the witnesses and Duvall. The State responds that the circuit court did not abuse its discretion in admitting the three witnesses' testimony and that, in the alternative, any error in admitting their testimony was harmless. 1. T.D.'s testimony T.D.'s testimony at trial established a sufficient degree of similarity with the rape accusations made in this case. We reject Duvall's contention that because T.D. did not testify that he touched her, the encounters were too dissimilar to fall under the pedophile exception. The exception's reason for being is to allow evidence that helps prove the depraved sexual instinct of the accused. Flanery v. State , 362 Ark. 311, 208 S.W.3d 187 (2005). In this case, T.D.'s testimony that her father looked at her naked body when she stayed at hotels with him as a child and that he provided a cellphone and asked his daughter to act out sexually while using FaceTime is similar enough to K.D.'s testimony that she also stayed with her father alone in hotels, that he looked at her naked body, that he gave her a cellphone, and that he would ask her to act out sexually using FaceTime. The admission of this evidence helped to show that Duvall's impulses and behavior were far outside the expected range of a normal father, to understate the point. The circuit court did not abuse its discretion when it admitted the challenged testimony under the pedophile exception. 2. L.A.'s testimony Duvall argues that the encounters that L.A. testified about were too remote in time for the pedophile exception to apply. Recall that she testified about events that happened seventeen years ago with Duvall when she was fourteen-years-old. The passage of time, alone, does not determine the admission of evidence under the pedophile exception. Tull v. State , 82 Ark. App. 159, 164, 119 S.W.3d 523, 526 (2003). No abuse of discretion occurred by admitting L.A.'s testimony; her testimony was independently relevant to the unique signature and methods Duvall used to plan his assaults. K.D. testified that the first sexual encounter she remembered having with Duvall was when he put jelly on his penis and had her lick it off. Although occurring at a later age (fourteen, not four), L.A. had a remarkably similar first encounter in which Duvall placed strawberry jelly on his penis and instructed her on what to do. K.D.'s testimony and L.A.'s testimony showed similarities in that Duvall had the proclivity to lure and sexually violate young girls in his company, that he made efforts to be alone with them, that he showed sexually explicit videos, and that he had a planned method for obtaining oral sex from minor children. It suffices to state that we have considered Duvall's point carefully but reject his argument that the circuit court erred by allowing L.A. to testify. 3. T.G.'s testimony Duvall argues that because T.G. never claimed that he touched her, her testimony was too dissimilar to what K.D. alleged he did for the pedophile exception to apply. He cites Akins v. State , 330 Ark. 228, 955 S.W.2d 483 (1997) to support his argument. In Akins , our supreme court addressed whether two rapes were similar enough to support a finding that a prior adult rape victim's testimony should have been allowed. Id. But that was not the holding of the case; it was merely a teaching point that "had a proper objection been made, the evidence should have been excluded." Id. at 235, 955 S.W.2d at 487. Moreover, Akins is not a pedophile-exception case and does not control the outcome here. We affirm the admission of T.G.'s testimony. She, too, described Duvall walking around naked and showing her and K.D. pornography. Her account of Duvall asking her to "ejaculate" him or massage his back by walking on it is very similar to K.D.'s testimony that Duvall would have her rub his penis or give him massages. The similarities in Duvall's conduct towards K.D. and T.G., who were of very similar ages-ten to 11-years-old-demonstrated a depraved sexual instinct. Kelley v. State , 2009 Ark. 389, 327 S.W.3d 373 (concluding that there was a sufficient degree of similarity between the evidence to be introduced and the charged sexual conduct when both the witness and the victim, who were around the same age when the alleged abuse occurred, testified about Kelley's sexual conduct and stated that he showed them pornographic movies). IV. Rule 403 arguments Duvall also makes a catchall Rule 403 argument. "Even if this Court concludes that Mr. Duvall's alleged prior bad acts with respect to [T.D.], [L.A.], and [T.G.] are sufficiently similar to the charges that the State brought against him in this case, allegations of rape, particularly rape of young girls or young women, are so inflammatory and conscience shocking that it is a certainty that substantial prejudice will take root." Arkansas Rule of Evidence 403 states that although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. We do not reach Duvall's Arkansas Rule of Evidence 403 arguments because there is not a clear ruling by the circuit court on whether the probative value of each witness's testimony to the State's case substantially outweighed the danger of unfair prejudice to him. An appellant must obtain a ruling on whether Rule 404(b) evidence should have been excluded under Rule 403 to preserve the issue for an appeal. Hubbard v. State , 2017 Ark. App. 93, at 9, n.5, 513 S.W.3d 289, 295 n.5. See also Cluck v. State , 365 Ark. 166, 175, 226 S.W.3d 780, 787 (2006) (circuit court must conduct a probative versus prejudicial weighing with respect to evidence if the defense considers the weighing to be important or legally required in order to preserve the Rule 403 issues for an appeal). Duvall failed to obtain a ruling on the Rule 403 arguments he presents here, so we will not address them. V. Authentication of Text Messages Duvall argues that some text messages were admitted as evidence against him but were not properly authenticated. Some more background is needed to place this issue in context. A. How the Text Messages Were Admitted During Trial The authenticity of some text messages first arose while North Little Rock police detective Ashley Noel testified. Detective Noel interviewed K.D. about the allegations she had made against her father. The detective testified that she was given some text messages and photos during her interview with K.D. in July 2016. She said that K.D. signed a consent to search an electronic device (cellular phone), and the detective photographed text-message exchanges between K.D. and Duvall. Those photographs were first introduced as State's exhibits one through nine during Detective Noel's testimony. Detective Noel also testified that the phone number she (K.D.) had listed for Duvall was the same number that he later gave to Detective Noel. According to the detective, Duvall gave her his number on 23 August 2016. She agreed that she had verified that the number on the challenged text messages was Duvall's phone number. Here is the substantive part of Duvall's objections: These photos have not been properly authenticated. The witness has testified that because she had a phone number and that she had access to [K.D's] phone those documents have not been proven to be the actual text messages themselves. The State could've easily gotten the provider to provide a copy of the true text messages. Those messages could have been altered.... Those documents haven't been properly authenticated. If they are alleging that my client sent that, my client will have to go and testify say, yes, the texts were from him. Also too [sic] those are just photo images or just screen shots. You could easily modify those text messages which we can later prove if my client takes the stand, the State could have easily gotten a warrant to actually issue to the provider to get the true text message from the provider, what is AT & T, Southwestern Bell, whomever. But just to take a screen shot and say this is a text message from my client, that is not proper authentication. After some discussion between the attorneys and the court, the text messages were not admitted. On cross-examination, Detective Noel admitted that she "believed" but did not "know" that Duvall had sent the text messages and had "no proof" that he did. K.D. testified briefly about the text messages before they were accepted by the circuit court as evidence. She said that before she reported her father, she tried to talk to him by text messaging. She "wanted him to understand what he did" but still wanted a relationship with him. She agreed that the texts were sent to a number she knew to be his; she had labeled the number as "Padre." K.D. said that she did not believe Duvall let other people use his phone. She agreed that when she was texting these messages to the phone number that she knew to be her dad, someone was replying to her messages. She also said that State's exhibits one through seven were accurate pictures of the text messages that she sent to her father's number. Exhibits one through seven were admitted over Duvall's renewed objection. Exhibits eight and nine were also admitted over his objection. K.D. said exhibits eight and nine accurately depicted the photographs that were on her phone that she sent to the number she saved as "Padre, Michael Duvall." B. Argument on Appeal Duvall argues that the circuit court abused its discretion when it allowed pictures of the text messages into evidence because the State could not prove that he "actually sent" them. The State counters that sufficient circumstantial evidence exists to reliably tie Duvall to the text messages K.D. received. Duvall relies on a Pennsylvania case, Commonwealth v. Koch , 39 A.3d 996 (Pa. Super. Ct. 2011) for the proposition that authenticating text messages requires more than confirming that the telephone number belongs to a particular person; instead, there must be evidence that the text messages contain factual information unique to the parties involved because more than one person can use a phone to send text messages. The State tries to distinguish the Koch case, arguing that a Pennsylvania state court decision does not control in Arkansas. True enough, but the bigger problem is that the case the parties tussle over has been vacated by the Pennsylvania Supreme Court on review. See Commonwealth v. Koch , 630 Pa. 374, 106 A.3d 705 (2014). The Pennsylvania Supreme Court ended up affirming the admission of text messages under some unique facts involving accomplice liability. Id. at 714. We have not, strictly speaking, applied Koch in any party's favor in this case. A document must be authenticated before it can be admitted as evidence. Davis v. State , 350 Ark. 22, 39, 86 S.W.3d 872, 883 (2002). A rule of evidence provides: "The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what the proponent claims." Ark. R. Evid. 901(a) (2017). Rule 901 further provides that the testimony of a witness with knowledge that a matter is what it is claimed to be is sufficient to authenticate evidence and also that appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances, can be used to authenticate evidence. Ark. R. Evid. 901(b)(1) & (4). We review the authentication of text messages like any other evidence-for an abuse of discretion-and do not reverse absent a showing of prejudice. Gulley v. State , 2012 Ark. 368, at 10, 423 S.W.3d 569, 576. The main thrust of the authentication requirement is to sufficiently ensure that the proposed evidence is, in fact, what the proponent claims it to be. To this end, our supreme court has required "sufficient circumstantial evidence" to "corroborate the identity of the sender" of the text messages; in other words, there must be some indicia of authorship. Id. at 15 n.4, 423 S.W.3d at 579 n.4 ; see also Steele v. Lyon , 2015 Ark. App. 251, at 11, 460 S.W.3d 827, 835 (Harrison, J., concurring) ("[A] proper foundation for the introduction of electronically recorded material should include who is communicating what to whom."). This is admittedly a developing (and important) area of the law in this electronic age. See Koch , 106 A.3d at 721 (Eaton, J., dissenting in part and concurring in part) ("The possibility that a person other than [appellee] was the author of the drug-related text messages went ... to the weight of the evidence rather than admissibility of the messages."). In Gulley , our supreme court held that three text messages were properly authenticated. Gulley , 2012 Ark. 368, at 13, 423 S.W.3d at 578. For example, it reasoned that one of the text messages came from a cellular telephone number assigned to Gulley-together with witness testimony that Gulley was dropped off at the victim's apartment the night that she was killed, and given the context and content of the message-met the authentication requirements of Rule 901. Id. at 14, 423 S.W.3d at 579. As in Gulley , the State here presented sufficient corroborating evidence that the text messages were what the State claimed them to be: communicative exchanges between Duvall and K.D. on a legally relevant issue. There was testimony that the telephone number that K.D. sent the messages to, and from which messages were sent to her, was Duvall's cellphone number. K.D. said that the texts were exchanged after she talked with the police and reached out to Duvall and that Duvall did not let someone else use his phone. Detective Noel testified that she took photos from K.D.'s phone with K.D.'s permission. The detective also said that text messages received by K.D. came from a cellphone number assigned to Duvall. The same cellphone number was saved as "Padre, Michael Duvall" in K.D.'s phone. Moreover, K.D. testified that she sent the messages to her father at that number to try to "understand" and to still have a relationship. The content of the controverted text messages suggested that Duvall did (or could have) sent them. And no direct proof in this case undermined the messages' authenticity. Given this record, the thrust of Duvall's challenge goes to the weight the jury could have placed on the challenged text messages, not their admissibility. The circuit court did not abuse its discretion when it overruled Duvall's authentication challenge and admitted the text messages as evidence. Last, Duvall argues that the text messages were inadmissible hearsay. Because he did not raise the hearsay objection to the circuit court, we will not address it. Marshall v. State , 2017 Ark. 347, at 5, 532 S.W.3d 563, 566. Affirmed. Gruber, C.J., and Glover, J., agree. The State amended some of the wording and dates in the later documents it filed, but those differences are immaterial. Duvall moved before the trial to exclude the texts and objected for lack of authentication along the way. We have only included one example of his objections.

PHILLIP T. WHITEAKER, Judge Appellant Dermarius Blanks was convicted by a Drew County jury of one count each of aggravated residential burglary, aggravated robbery, and theft of property valued at less than $1,000; he was sentenced to twenty years in the Arkansas Department of Correction. On appeal, Blanks does not challenge the sufficiency of the evidence. Instead, he argues that the circuit court erred in (1) refusing to provide a remedy for a discovery violation, and (2) refusing to grant a mistrial for its unmerited rebuke of counsel in front of the jury. We affirm. I. Mistrial Based on Discovery Violation In his first argument on appeal, Blanks argues that the circuit court erred in denying his motion for mistrial based on a purported discovery violation. Although Blanks does not challenge the sufficiency of the evidence, a brief recitation of the evidence is helpful here to understand the context of his argument. Blanks, Rodney Payne, and Jessica Dodson conceived a plan to rob Lamichael Wigfall. On the day of the robbery, Dodson had spent time at Wigfall's home. Later that day, Payne and Blanks entered Wigfall's home uninvited. They were armed, pointed guns at Wigfall, robbed him, and then fled from the house. Law enforcement investigated the robbery. As a part of the investigation, Wigfall told the police that he had been robbed by two assailants. He identified one as Payne and the other as a man he knew as "Demo." At trial, Wigfall testified about the events of the robbery and his identification of his assailants. He stated that the man whom he called by the nickname "Demo" is Blanks. Wigfall explained that he had known Blanks for six or seven years, although he conceded that he never knew him by any name other than his nickname. He nonetheless identified "Demo" as the defendant sitting in the courtroom. On cross-examination, Wigfall admitted that "Demo" had a bandana over his forehead during the robbery, but it did not cover his face. Wigfall was adamant that the robber was "Demo because I know him. And I know who came in my house." Blanks asserts that the purported discovery violation occurred during the State's redirect examination of Wigfall. During redirect, the State asked Wigfall to recount everything that happened after he encountered the police following the robbery. Wigfall responded that while he was at the police station, he identified "Demo" and "pointed him out in a lineup." Blanks immediately objected that he had not been provided with a lineup in discovery. Before the court ruled on the objection, Wigfall stated, "It wasn't really a lineup. They just pulled his picture off of Facebook." Without specifically ruling on the objection, the court directed the State to continue with its redirect. Blanks then conducted further cross-examination during which Wigfall reiterated that law enforcement showed him a Facebook photo to identify Blanks and that he identified the person in the photo as "Demo." Blanks once again alleged a discovery violation. He admitted that discovery provided by the State included some Facebook photos, but he asserted that there was nothing to indicate that these photos were used in the pretrial identification process and that this constituted a discovery violation. Blanks argued that the use of the photographs by the police, without their disclosure to the defense, constituted a discovery violation and was "something we should have been made aware of" so that the matter could have been dealt with before trial. The court disagreed. It did, however, agree to allow Blanks to question Wigfall further about the photos once the jury retired to deliberate. Subsequently, outside the presence of the jury, Blanks elicited a proffer of testimony from Wigfall. Wigfall was shown three photographs taken from Facebook that had been communicated to the defense during discovery. Wigfall said that none of those photos was the one that the police had shown him after the robbery. He repeated his testimony that he advised the police that it was "Demo" who robbed him; the police then pulled up some pictures from Facebook and asked whether the picture was of "Demo," and Wigfall said that it was. At that point, Blanks moved for a mistrial. He argued that the photograph the police showed Wigfall was an important part of his identification, and without having been given a copy of the photo in discovery, there was no way to attack Wigfall's actual identification of "Demo"-i.e., whether the Facebook picture was of Blanks or of someone else. The court denied the mistrial motion, ruling that Wigfall was "sure about who he was talking about, they didn't need a lineup for him to be sure." In his first argument on appeal, Blanks argues that the circuit court erred in denying his motion for mistrial based on the alleged discovery violation. Our standard of review for denials of mistrials is well settled. A mistrial is an extreme and drastic remedy that will be resorted to only when there has been an error so prejudicial that justice cannot be served by continuing with the trial or when fundamental fairness of the trial has been manifestly affected. Bullock v. State , 2018 Ark. App. 118, at 5, 544 S.W.3d 566, 570 (citing McClinton v. State , 2015 Ark. 245, 464 S.W.3d 913 ). Declaring a mistrial is proper only when the error is beyond repair and cannot be corrected by any curative relief. Id. The judge presiding at trial is in a better position than anyone else to evaluate the impact of any alleged errors. Id. Therefore, the circuit court has wide discretion in granting or denying a motion for mistrial, and the decision of the circuit court will not be reversed except for abuse of that discretion or manifest prejudice to the complaining party. Id. As a preliminary issue, Blanks's argument on appeal is that the discovery violation "required a remedy, but none was given." His argument relies on an underlying premise-that a discovery violation occurred. We note that the court never specifically ruled that a discovery violation occurred, and the State argues that such a violation did not occur; therefore, no remedy was needed. We need not decide this issue, however. Even assuming the State's failure to disclose the Facebook photo to the defense constituted a violation of the rules of discovery, we affirm the circuit court because Blanks sought only the drastic remedy of a mistrial rather than a less extreme remedy that might have cured any resulting prejudice. Arkansas Rule of Criminal Procedure 19.7(a) sets forth the remedies available to a court in connection with a discovery violation: If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or with an order issued pursuant thereto, the court may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, prohibit the party from introducing in evidence the material not disclosed, or enter such other order as it deems proper under the circumstances. Here, Blanks argues that the "effective remedies available to the trial court upon the initial revelation of the discovery violation in this case were simple: produce the photograph or continue the trial to allow it to be produced." Blanks did not raise this argument below or request either of those remedies; instead, he sought only the drastic remedy of mistrial. Our supreme court has previously addressed a similar issue. In Snell v. State , 290 Ark. 503, 721 S.W.2d 628 (1986), appellant Snell challenged the denial of his mistrial motion that was based on the State's withholding of allegedly exculpatory material. The supreme court affirmed the denial of the mistrial, noting that Snell had not sought "any of the sanctions provided for in Rule 19.7, such as a continuance, choosing instead to ask only for mistrial, the most extreme recourse open to a trial court." Snell , 290 Ark. at 512, 721 S.W.2d at 633. Likewise, in Thompson v. State , 322 Ark. 586, 589, 910 S.W.2d 694, 696 (1995), the supreme court affirmed the denial of the defendant's motion for mistrial, which was the only relief sought in response to a discovery violation, because "[a] mistrial is an extreme sanction for a Rule 17.1 violation and is to be avoided unless the fundamental fairness of the trial itself is at stake." Blanks relies on Vilayvanh v. State , 2012 Ark. App. 561, in support of his argument that the circuit court erred in denying his request for a mistrial. We disagree that Vilayvanh supports his argument. In Vilayvanh , the defendant alleged a discovery violation involving a missing videotape and requested a mistrial. The circuit court denied the mistrial but offered the options of a continuance or other appropriate orders to locate the videotape. The defendant refused the other remedial options offered by the court and sought the sole remedy of a mistrial. This court affirmed, concluding that the lesser remedies offered by the court "could have settled the questions of whether a copy of the surveillance video was actually received by the police and, if so, whether the video was in fact exculpatory.... Given that appellant refused lesser remedies that would have permitted the trial court to determine whether he had been prejudiced, denial of a mistrial was manifestly within the trial court's discretion." Id. at 5. We conclude that Vilayvanh supports our decision to affirm the circuit court's denial of Blanks's mistrial motion. Blanks sought only one remedy-a mistrial. A mistrial is the most extreme recourse open to a circuit court and is to be avoided except when the fundamental fairness of the trial itself is at stake. When a lesser remedy, such as a continuance to locate and examine the Facebook photograph, could have cured the alleged discovery violation, we cannot say that it was error for the circuit court to refuse the mistrial in these circumstances. II. Mistrial Based on Comments to Defense Counsel In his second point on appeal, Blanks argues that the circuit court improperly chastised his counsel in front of the jury and erred in denying his ensuing motion for mistrial based on the court's comments. Here, Blanks assigns error to the court's behavior during two separate encounters during the trial, both of which occurred during the testimony of Detective Walter Hollinger. In the first encounter, as Hollinger testified about how the police developed Blanks as a suspect, he stated that the victim had told police he knew his assailant. Blanks raised a hearsay objection, and the court suggested that Hollinger "[could] just say, I developed a suspect based on what-." Defense counsel objected again, and the following colloquy ensued: DEFENSE : I'm going to object to you telling the witness what to say. COURT : I'm not telling him what to say; I'm simply telling him what he was asked and that he can simply state who he developed- DEFENSE : That is commenting on the evidence. I have an objection. It's a hearsay objection. I'm asking for a ruling on that. COURT : You have. It's overruled. DEFENSE : Okay, so- COURT : When I overrule it that means you sit down. DEFENSE : Well- COURT : That's what it means. Unless you want the bailiff to help you sit down. DEFENSE : Judge, I'm asking can I make a record. COURT : Bailiff, help him sit down. When I rule, that's the end of it. DEFENSE : I didn't hear your ruling, your honor. COURT : Now, go ahead. You did. Go ahead. Defense counsel moved for a mistrial, arguing that the court's directing the bailiff to help him sit down "hurts my client in front of the jury" and "embarrassed me in front of this jury unnecessarily as if I was doing something wrong." The court denied the mistrial without further comment. In the second encounter, the State attempted to introduce a duffel bag into evidence. The State argued that the bag contained a jacket with Blanks's name on it, thus establishing that the bag belonged to Blanks. Defense counsel objected, saying "it doesn't establish that it belongs." The court admonished counsel not to engage in speaking objections but "just object, lack of foundation." The court declined to allow the State to introduce the bag at that juncture and directed it to lay a better foundation. Defense counsel continued to object, and the court advised counsel that "[i]f you stand up and do this again and interrupt this court, I will recess the jury and will deal with it in that manner." Counsel asked to approach, but the court refused to allow it, stating, "Ladies and gentlemen of the jury, we're going to take a ten-minute recess. It'll go better when you get back." Once the jury had left the courtroom, the court explained to defense counsel that it believed counsel was being unnecessarily argumentative and confrontational with the court after the court made its rulings. The court stated that its options were to let counsel continue to disrupt him or hold counsel in contempt, which would result in the court's having to declare a mistrial, which it declined to do. On appeal, Blanks argues that the circuit court abused its discretion in denying his motion for mistrial because the circuit court's "unmerited rebuke" could have negatively impacted the jury's impression of defense counsel and, by extension, the defendant. We address only the first encounter and colloquy between the court and defense counsel, however, because counsel did not specifically move for a mistrial with respect to the second exchange. See Thornton v. State , 2018 Ark. App. 33, at 10, 539 S.W.3d 624, 630 (noting that a motion for mistrial must be raised at the first opportunity, and because defendant never expressly asked for a mistrial, his arguments were not preserved for appeal). Although the court sua sponte fulminated that it would not declare a mistrial, the record is clear with respect to this second exchange that there was no express motion for mistrial. We now turn to Blanks's argument regarding his attorney's first exchange with the court. Our supreme court has stated that a circuit court's remarks do not amount to prejudicial error unless those remarks constitute an "unmerited rebuke" giving the jury the impression that defense counsel is being ridiculed. Echols v. State , 326 Ark. 917, 972, 936 S.W.2d 509, 537 (1996). Prejudice is not shown, however, when the record reveals that the circuit court was merely irritated at defense counsel's trial tactics. Id. In McDaniel v. State , 283 Ark. 352, 676 S.W.2d 732 (1984), the supreme court explained as follows: This court has decided many cases involving remarks by a judge to counsel. On one hand, we have consistently reversed where there was an unmerited rebuke which gave the jury the impression that counsel was being ridiculed. Davis v. State , 242 Ark. 43, 411 S.W.2d 531 (1967). Examples of unmerited rebukes which ridiculed counsel and caused reversal are: You are "facilitating a trial like a crawfish does, backwards," Jones v. State , 166 Ark. 290, 265 S.W. 974 (1924) ; "To grant your motion would be just silly," and "I am not going to put up with any more of this foolishness," McAlister v. State , 206 Ark. 998, 178 S.W.2d 67 (1944) ; "... these men here on the jury have something else to do besides listen to that," Fuller v. State , 217 Ark. 679 at 681, 232 S.W.2d 988 (1950). On the other hand, we recognize that the trial court has the responsibility for the proper conduct of the trial and we find no reversible error where the record reveals that the trial judge was merely irritated at defense counsel's trial tactics. Rogers v. State , 257 Ark. 144, 152, 515 S.W.2d 79, 84 (1974). For example, in Rogers , supra , the defense counsel cross-examined a prosecutrix in such a manner that she began to cry. Defense counsel then stated that the prosecutrix needed a few minutes to get herself together. The judge responded, "Well, you got her this way. Why don't you go ahead?" The judge's inquiry in the case now before us amounted, at the most, to a showing of irritation at defense counsel's trial tactics and did not constitute an unmerited rebuke which ridiculed the attorney. McDaniel , 283 Ark. at 356-57, 676 S.W.2d at 735-36. Here, we are not convinced that the comments from the court to counsel constituted an unmerited rebuke that ridiculed counsel, necessitating a reversal. As an appellate court, we do not possess the ability to see or hear exactly what transpired in the courtroom between the court and the attorney; we can rely only on the written words in the record. It is apparent from the written record, however, that the court was exasperated with counsel. It is also apparent from the written record that the court believed counsel was being argumentative with the court's rulings, and the court was frustrated with counsel's tactics. On the record before us, however, we are unable to conclude that the court's frustrated comments to counsel amounted to remarks that could be "construed as a reflection upon counsel's knowledge and skill as a lawyer." Davis , 242 Ark. at 45, 411 S.W.2d at 537. We therefore cannot say that the circuit court's denial of Blanks's mistrial motion amounted to a reversible abuse of discretion. Affirmed. Gruber, C.J., and Brown, J., agree. Blanks, Payne, and Dodson were all charged as codefendants in these crimes. Dodson accepted a guilty plea, and Payne's case was severed from Blanks's. After the second encounter, the circuit court recounted at length its experience with trial counsel in this case, noting that it had granted numerous continuances even though they had not been timely requested. The court also observed that counsel had previously tried unsuccessfully to be relieved from representing Blanks. Here, as noted above, the court remarked: "When I overrule, that means you sit down"; "Unless you want the bailiff to help you sit down"; and "Bailiff, help him sit down." We would caution the bench that while we do not find reversible error in this opinion, such comments may be viewed as intemperate.

COURTNEY HUDSON GOODSON, Associate Justice Petitioner Cecil D. Beene was convicted of sexual assault in the second degree as reflected in a judgment-and-commitment order entered on August 9, 2016. On February 6, 2018, Beene filed in this court a pro se motion for belated appeal and rule on clerk seeking to proceed with a belated appeal of the judgment pursuant to Arkansas Rule of Appellate Procedure-Criminal 2(e) (2017). In his motion, Beene contended that his trial counsel, Hugh Laws, failed to pursue an appeal on his behalf in that he requested an appeal from Laws on the "day [of his] conviction and through [Beene's] mother"; that Beene had attempted to contact Laws numerous times to "get an update [ ] to no avail"; and that Beene's mother had requested transcripts to assist in perfecting the appeal and was told that she could not afford them. Beene further alleged that he learned that no notice of appeal had been filed and no appeal had been perfected, which was "expressly contrary to his desire." When a pro se motion for belated appeal is filed in which the petitioner contends that he or she made a timely request to appeal and the record does not contain an order relieving trial counsel, it is the practice of this court to request an affidavit from the trial attorney in response to the allegations in the motion. The affidavit requested of trial counsel is required because Arkansas Rule of Appellate Procedure-Criminal 16 (2017) provides in pertinent part that trial counsel, whether retained or court appointed, shall continue to represent a convicted defendant throughout any appeal unless permitted by the trial court or the appellate court to withdraw in the interest of justice or for other sufficient cause. The right to appeal may be waived by the defendant's failure to inform counsel of his or her desire to appeal within the thirty-day period allowed for filing a notice of appeal under Arkansas Rule of Appellate Procedure-Criminal 2(a). See generally McDonald v. State , 356 Ark. 106, 146 S.W.3d 883 (2004). Laws, in his affidavit, averred that immediately after the trial on August 3, 2016, he met with Beene and Beene's family and informed them that that there was a thirty-day period from the entry of the judgment for the filing of a notice of appeal. Laws contended that he consulted with Beene about an appeal and made an effort to determine whether Beene wanted to appeal and that Beene and Beene's sister, Trisha Bailey, informed him that Beene did not want to pursue an appeal and that nothing had indicated since that time that Beene had changed his mind about his desire to seek an appeal. We remanded the matter for an evidentiary hearing and directed the trial court to enter "Findings of Fact and Conclusions of Law" and submit the findings and conclusions to this court with the transcript of an evidentiary hearing. Beene v. State , 2018 Ark. 120, 2018 WL 1752022. The remand was returned, and the findings of fact and conclusions of law and the transcript of the evidentiary hearing were filed here on June 27, 2018. The trial court took testimony at the hearing from Beene, Patricia Chamberlain (Beene's sister), Carla Mae Beene (Beene's wife), and Laws. In its findings of fact, the trial court noted that evidence and testimony showed that Beene "never indicated to [Laws] that he wanted to file an appeal." The findings of fact also referenced a letter from Laws to Beene introduced by the State that was dated two days after the sentencing order had been filed. The letter noted the deadline for filing a notice of appeal and expressed Laws's understanding that Beene did not wish to file an appeal. The trial court found Laws's testimony more credible than Beene's. In determining whether to grant a motion for belated appeal, this court does not reverse the trial court's conclusion of law based on its findings of fact unless the conclusion is clearly erroneous. Strom v. State , 348 Ark. 610, 74 S.W.3d 233 (2002). It is well settled that the trier of fact is free to believe all or part of any witness's testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id. As the merits of Beene's motion for belated appeal rested entirely on the credibility of the witnesses, we accept the trial court's findings that Beene did not articulate a desire to appeal within the time limit allowed for counsel to file a timely notice of appeal. Id. Motion treated as motion for belated appeal and denied. The motion is treated as a motion for belated appeal under Arkansas Rule of Appellate Procedure-Criminal 2(e), rather than as a motion for rule on clerk, because no notice of appeal was filed. Arkansas Rule of Appellate Procedure-Criminal 2(a) provides that a notice of appeal must be filed within thirty days of the date of entry of the order from which the appeal is taken. Beene makes no specific claim as to when he learned that no appeal was perfected. There was no order relieving Laws in the record filed in this case.

MIKE MURPHY, Judge Katia Colston appeals the January 3, 2018 order of the Washington County Circuit Court denying her petition to modify visitation for purposes of relocation. On appeal, she argues that the circuit court erred in finding that relocation was not in the child's best interest. We affirm. Katia Colston and Walter Jackson Williams had a daughter together in December 2007. They were not married. An order establishing paternity, visitation, and child support was entered in 2009. Colston had primary custody and Williams received visitation. From that point, some contentious litigation between the parties ensued. In 2010, Williams petitioned for a change in custody and contempt, and Colston counterclaimed for modified visitation. Colston was found in contempt for failing to communicate healthcare information about the minor child to Williams. Williams's petition for a change in custody was denied, and Colston's counterclaim for a new visitation schedule was granted. The parties and the child were all ordered to see a therapist to develop a visitation schedule. The subsequent order established a new visitation schedule and directed the parties to continue counseling to work on coparenting. In 2016, Williams again filed a motion for contempt and a petition for modification of visitation alleging that Colston was interfering with his visitation. Colston was again found in contempt, and the parties were ordered to continue counseling together. An ad litem was appointed, and the issue of visitation was reserved. In February 2017, an agreed order modifying visitation was entered, but the record demonstrates that Colston was unhappy with the agreement. Approximately three days after this order had been entered, Colston applied for a job that would require her to relocate from Northwest Arkansas. Colston did not tell Williams she was applying for the position. Nor did she tell Williams when she received the promotion in April, despite having ample opportunity to do so. Instead, that June, she served him with a motion to modify his visitation schedule. Colston's motion, effectively a petition to relocate, was denied in January 2018, and this timely appeal followed. We review the denial of a petition to relocate de novo but will not reverse the circuit court's findings unless they are clearly erroneous. Parker v. Parker , 75 Ark. App. 90, 55 S.W.3d 773 (2001). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake was committed. Id. The factors a circuit court must consider when determining whether to grant a petition to relocate are set out in Hollandsworth v. Knyzewski , 353 Ark. 470, 109 S.W.3d 653 (2003), holding modified on other grounds by Cooper v. Kalkwarf , 2017 Ark. 331, 532 S.W.3d 58. These factors include (1) the reason for relocating; (2) the educational, health, and leisure opportunities available in the new location; (3) the effect of the move on the visitation and communication schedule of the noncustodial parent; (4) the effect of the move on extended family relationships in Arkansas and the new location; and (5) the child's preferences, considering the age and maturity level of the child and the reasons given for the preference. Id. Even when these factors are considered, the polestar interest remains whether it has been established by a preponderance of the evidence that a proposed relocation would serve the child's best interest. Id. A presumption exists in favor of relocation for custodial parents with primary custody, with the burden being on a noncustodial parent to rebut the presumption; therefore, a custodial parent is not required to prove a real advantage to herself and to the children in relocating. Id. At the conclusion of the hearing, the circuit court made extensive findings from the bench. It noted that it had carefully evaluated the credibility of the witnesses and the findings were based on those observations. The court found it was telling that Colston had applied for a new job out of state so shortly after the agreed order had been entered and had not told Williams about it until June 21, 2017, even though Colston had been hired by the end of April. It noted that the history of the communication and visitation issues and conflicts was relevant to provide a context to evaluate Colston's "actual reason" for the relocation. Considering the first Hollandsworth factor, the court found that "the reason for this proposed relocation is to thwart Mr. Williams'[s] visitation time with his daughter and to further interfere with his relationship with his daughter, which the Court finds is clearly contrary to the child's best interest." Applying the other factors, the court found that the education, health, and leisure opportunities in Bentonville, Arkansas and Denver, Colorado were almost identical. Regarding visitation, the court noted that the parties have had problems with that in the past. Williams, whom the court found to be credible, testified that Colston interferes with telephone visitation. The court voiced concerns that Colston would not adhere to a visitation schedule based on past findings of contempt and the lack of communication, including Colston's failure to tell Williams of the planned move to Denver. Because there was no family living near Colorado, the court found that moving would have an adverse impact on extended family relationships. Finally, regarding the child's preference, the child had stated that she wanted to go to Colorado, but the court did not give much weight to the statement because of the child's young age. The ad litem recommended that the petition be denied, stating that the move would adversely affect the child's relationship with her father and would not be in her best interest. Colston faults the circuit court's ruling for failing to mention her long-term career planning and ambitions. It is true that Colston, if she were to move, would advance within her company and get a raise. Even still, Colston asks us to reweigh the evidence in considering this against the other considerable and supported findings made by the circuit court. We are required to give due deference to the superior position of the circuit court to view and judge the credibility of the witnesses, and this deference is even greater in cases involving child custody or visitation, because a heavier burden is placed on the circuit court to utilize to the fullest extent its powers of perception in evaluating the witnesses, their testimony, and the best interest of the child. Favano v. Elliott , 2012 Ark. App. 484, at 8, 422 S.W.3d 162, 167. Colston also argues that the court ignored the six years that the parties were not actively litigating the case and that it was error for the court to "go behind" the February 2017 agreed order. However, a court may consider the custodial parent's interference with the noncustodial parent's visitation when determining the best interest of the child. Turner v. Benson , 59 Ark. App. 108, 953 S.W.2d 596 (1997). Nor did the court err in considering the presumption in favor of relocation rebutted when there is a supported finding that the relocation was for the sole purpose of thwarting visitation. Sill v. Sill , 94 Ark. App. 211, 219, 228 S.W.3d 538, 544 (2006). The circuit court's findings were supported by the record. Williams rebutted the presumption in favor of relocation and demonstrated the move would not be in the child's best interest. We are not left with a definite and firm conviction that a mistake has been made. Affirmed. Abramson and Gladwin, JJ., agree.

DAVID M. GLOVER, Judge Jessica Vangilder appeals from the June 23, 2017 sentencing order revoking her probation in case number CR2014-1043. She contends the trial court erred in revoking her probation because 1) the State failed to show her failure to pay was willful, 2) the conditions of probation were not entered into evidence, and 3) the State produced no evidence that she was aware she was to report on May 4 and May 9. We affirm. There are two revocations on appeal concerning Vangilder, one revoking her probation in case number CR2014-1043, which is this appeal, and one revoking her probation in case number CR2017-41, which is also handed down this date. Both petitions to revoke were addressed in the same hearing on June 23, 2017. In the instant appeal, Vangilder pleaded guilty to the underlying offense of possession of drug paraphernalia. The March 2, 2015 sentencing order shows she was sentenced to forth-eight months' probation. The conditions of her probation, which are part of the record, included 1) that she abstain from the use of alcoholic beverages, 2) that she abstain from illegal drug use, 3) that she report to the probation office as directed, and 4) that she pay all costs, fees, fines, and restitution ordered by the court. On May 10, 2017, the State filed a petition to revoke in this case, alleging Vangilder violated the terms and conditions of her probation by 1) failing to report, 2) failing to pay court ordered fines and fees, and 3) failing to abstain from illegal substances. Stephanie Turner, Vangilder's probation officer, was the only witness to testify at the June 23 revocation hearing. Turner testified she had been a probation officer for almost two years and currently served as Vangilder's probation officer. At first, she stated Vangilder had had two prior revocations, but on cross-examination she clarified that while two prior petitions had been filed, one was dismissed, leaving only one 2015 revocation for Vangilder before the two at issue in the June 23, 2017 revocation hearing. The basis for the 2015 revocation was Vangilder's failure to report. Turner explained Vangilder's signed terms and conditions from case number CR2014-1043 were in Vangilder's file, and Carla Griswald, the administrative officer at the time, had gone over the conditions with Vangilder. Turner testified Vangilder was instructed to report on May 4, but failed to do so; two probation officers conducted a home visit and left instructions from Turner for Vangilder to report on May 9; and Vangilder failed to report on that date also. Turner testified Vangilder was fourteen months behind in paying her supervision fees, currently owing $490. She said Vangilder also owed $1,345 in fines to Faulkner County. Turner testified that on or about April 27, Vangilder tested positive for alcohol; she did not test Vangilder on that day; she got the information from "Lauren," the lab technician; Lauren sends them e-mails with lab results; and the e-mails go directly from Lauren to Turner's case file. On cross-examination, Turner explained there was no contact with Vangilder after she left the office on April 27, and she was placed in "abscond status." On redirect examination, Turner stated Vangilder had been ordered to complete twenty-one hours of community service; and she had not completed any of those hours. She said the only record she had of Vangilder reporting to the probation office was on April 27, and the first time she actually met Vangilder was when Vangilder was arrested on May 22. On recross-examination, Turner confirmed the only test she was aware of where Vangilder tested positive was the April 27 positive test for alcohol; and she did not have any drug tests printed and available at the hearing. Vangilder put on no proof. At the close of the hearing, the trial court ruled from the bench that Vangilder was in willful violation of the terms and conditions of her probation; that she failed to report; that she had a positive screen for alcohol; that she had not completed her community service; and that she was in arrears on all fines, fees, and costs, including her probation fees. In this appeal, the trial court ruled it was going to sentence Vangilder to thirty-six months in the Arkansas Department of Correction and that all fines, fees, and costs associated with the original conviction would be reinstated and due upon her release. In order to revoke a probation or a suspended imposition of sentence, the trial court must find by a preponderance of the evidence that the defendant has inexcusably violated a condition of the probation or suspension. Springs v. State , 2017 Ark. App. 364, 525 S.W.3d 490. To sustain a revocation, the State need only show that the defendant committed one violation. Id. We will not reverse the trial court's findings unless they are clearly against the preponderance of the evidence. Id. Evidence that would not support a criminal conviction in the first instance may be enough to revoke probation or a suspended sentence. Id. Determining whether a preponderance of the evidence exists turns on questions of credibility and weight to be given to the testimony. Id. For her first point of appeal, Vangilder contends the trial court erred in revoking her probation because the State failed to show her failure to pay was willful. The gist of her argument under this point is that she filed an affidavit of indigency, which established she was indigent and could not afford to hire an attorney. She argues that the affidavit was part of the official record on the day of the revocation hearing and showed she had no income, no personal property, and no real property. She further argues that even though she did not testify, the affidavit should have been considered and should have demonstrated her failure to pay was excusable. She recognizes that once the State put on evidence she was in arrears, the burden of moving forward with proof of a valid excuse shifted to her; but she argues that the ultimate burden of proving her failure to pay was inexcusable was still shouldered by the State and that it did not satisfy that burden. We disagree. When an alleged violation involves the failure to pay court-ordered restitution, after the State has introduced evidence of nonpayment, the burden shifts to the defendant to provide a reasonable excuse for his or her failure to pay. Robertson v. State , 2015 Ark. App. 113, 2015 WL 830855. It is the defendant's obligation to justify the failure to pay, and this shifting of the burden of production provides an opportunity to explain the reasons for nonpayment. Id. Ultimately, the State has the burden of proving that the defendant's failure to pay was inexcusable. Id. Here, the affidavit informed the court Vangilder was unable to afford an attorney, and the affidavit was submitted to the court outside the revocation hearing. She offered no explanation at the hearing regarding her failure to pay her court-ordered obligations. The trial court cannot be expected to know why she believed her failure to pay was excusable without proof of some sort. Her citation to legal authority does not support her contention that the mere filing of an affidavit of indigency-without introducing it at the revocation hearing or even developing an argument based on it-was sufficient to satisfy her burden of moving forward; neither do we find her argument convincing. We do not consider arguments that are unsupported by convincing argument or sufficient citation to legal authority. Harrison v. State , 2017 Ark. App. 580, 533 S.W.3d 146. The State met its burden of proving Vangilder's failure to pay; she did not then demonstrate why she was unable to do so. Robertson v. State , 2015 Ark. App. 113. We are not left with a definite and firm conviction the trial court made a mistake in finding that Vangilder's failure to pay was willful. For her second point of appeal, Vangilder contends the trial court erred in revoking her probation because the conditions of probation were not entered into evidence. We do not address this issue because it was not preserved for appeal. Procedural objections must be raised at the trial-court level, and an argument that the State failed to introduce a copy of the terms and conditions of probation or a suspended sentence is procedural. Cotta v. State , 2013 Ark. App. 117. As we explained in Myers v. State , 2014 Ark. App. 720, at 3, 451 S.W.3d 588, 590 : Myers couches his argument as a challenge to the sufficiency of the evidence, which is an argument that may be raised for the first time on appeal in an appeal of a revocation in the absence of a motion for directed verdict. See Barbee v. State , 346 Ark. 185, 56 S.W.3d 370 (2001). This court, however, has held that an argument that the State failed to introduce a copy of the terms and conditions of a suspended sentence is a procedural objection that must be raised before the circuit court. Cotta v. State , 2013 Ark. App. 117, 2013 WL 625735 ; Whitener v. State , 96 Ark. App. 354, 241 S.W.3d 779 (2006). Myers never objected to the State's failure to introduce the terms and conditions of his suspended sentence. Under Cotta and Whitener , therefore, Myers's first two arguments are not preserved for appeal. Because we find no clear error in the trial court's finding that her failure to pay was willful, it is not necessary to address Vangilder's remaining point of appeal. The establishment of one violation is sufficient to support a revocation. Springs , supra. Affirmed. Abramson and Vaught, JJ., agree.

Lastly, Despain presented the testimony of Dr. James Moneypenny. Dr. Moneypenny testified that he had reviewed the literature on adolescent brain development and opined that Despain had the brain development of a 13- to 14-year-old and, while not intellectually stunted, was immature in his development. In addition to the evidence from Despain, the court received evidence from the Arkansas State Police. Investigator Louis Imsler testified regarding his investigation, the incriminating statements given by Despain and Taylor, and the search of Despain's home as outlined above. After the hearing, the circuit court issued a written order denying the motion to transfer. Despain appeals the denial. He argues that the circuit court improperly disregarded the testimony of his expert witness, Dr. James Moneypenny, and erroneously determined that he was unlikely to be rehabilitated by his twenty-first birthday. III. Standard of Review In juvenile transfer proceedings, the court shall order the case transferred to another division of circuit court only upon a finding by clear and convincing evidence that the case should be transferred. Ark. Code Ann. § 9-27-318(h)(2). Clear and convincing evidence is the degree of proof that will produce in the trier of fact a firm conviction as to the allegation sought to be established. Lewis v. State , 2011 Ark. App. 691, 2011 WL 5562773. Despain, as the moving party, bore the burden of proving that his case should be transferred to the juvenile division of circuit court. See Magana-Galdamez v. State , 104 Ark. App. 280, 291 S.W.3d 203 (2009). In deciding whether to transfer, the circuit court must consider and issue written findings on the ten factors set forth in Ark. Code Ann. § 9-27-318(g) : (1) The seriousness of the alleged offense and whether the protection of society requires prosecution in the criminal division of circuit court; (2) Whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner; (3) Whether the offense was against a person or property, with greater weight being given to offenses against persons, especially if personal injury resulted; (4) The culpability of the juvenile, including the level of planning and participation in the alleged offense; (5) The previous history of the juvenile, including whether the juvenile had been adjudicated a juvenile offender and, if so, whether the offenses were against persons or property, and any other previous history of antisocial behavior or patterns of physical violence; (6) The sophistication or maturity of the juvenile as determined by consideration of the juvenile's home, environment, emotional attitude, pattern of living, or desire to be treated as an adult; (7) Whether there are facilities or programs available to the judge of the juvenile division of circuit court that are likely to rehabilitate the juvenile before the expiration of the juvenile's twenty-first birthday; (8) Whether the juvenile acted alone or was part of a group in the commission of the alleged offense; (9) Written reports and other materials relating to the juvenile's mental, physical, educational, and social history; and (10) Any other factors deemed relevant by the judge. Ark. Code Ann. § 9-27-318(g). We will not reverse a circuit court's determination of whether to transfer a case unless that decision is clearly erroneous. R.W.G. v. State , 2014 Ark. App. 545, 444 S.W.3d 376. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a firm conviction that a mistake has been committed. Id. However, the circuit court does not have to give equal weight to each factor. Harris v. State , 2016 Ark. App. 293, at 9, 493 S.W.3d 808, 813. IV. Analysis A. Expert Testimony Despain first contends that the science involving the immaturity of the adolescent brain has been explicitly and fully accepted by the United States Supreme Court and that the circuit court therefore erred by improperly disregarding or disbelieving the testimony of Dr. Moneypenny in that regard. Despain's argument, however, misapprehends the substance of the court's ruling. With regard to Dr. Moneypenny's testimony, the court's order states: F. The sophistication and maturity of the Defendant is of such a level that he should be treated as an adult.... The main defense evidence going to the sophistication and maturity level of the Defendant came from Dr. James Moneypenny, a practicing psychologist. He testified that he had worked on the case of the Defendant during the past 2 months during which he had reviewed school records, witness statements, research on adolescent brain development, and met with the Defendant on January 5, 2017 for 2 ½ to 3 hours. His research on adolescent brain development consisted of reading one article which contained summaries of 40+ researchers and then reading the abstracts of several of them. Based on this, Dr. Moneypenny concluded that the Defendant was behaviorally immature against the norm and that his development was below the norm. Dr. Moneypenny had the opportunity to listen to all the testimony presented. He said the most impressive testimony was the statements of the Defendant's former school bus driver, Marilyn Hunt, that she thought he could be talked into anything, and by his adoptive father that the Defendant was mature enough to drive alone to Oklahoma. Dr. Moneypenny thought this testimony supported his conclusion of the Defendant's immaturity. The Court questions why Dr. Moneypenny did not consider the testimony of the investigating officer to be impressive on the issue of maturity in light of the Defendant's statements concerning planning, execution, and motivation. The adoptive father, who has spent more than 3 hours with the Defendant, felt the Defendant was mature and responsible enough to drive alone to Oklahoma. The school bus driver knew the Defendant from riding her bus for 2-3 years and visiting her home on several occasions and from this contact opined he could be talking into anything; however, no examples were cited and the Court disagrees with her conclusion. Dr. Moneypenny seemed to have little basis for his conclusions and the Court disagrees with them. As shown above, the court did not question the science of adolescent brain development. It merely questioned Dr. Moneypenny's understanding and application of that science to his evaluation of Despain-a credibility determination. Thus, the circuit court did not ignore or disregard the evidence as argued by Despain; it simply weighed the evidence differently than Despain desired. See Brown v. State , 2016 Ark. App. 254, 492 S.W.3d 126. B. Likelihood of Rehabilitation Next, Despain argues that the circuit court's finding that the resources available would not likely rehabilitate him before his twenty-first birthday was clearly erroneous. He asserts that the testimony of Juvenile Ombudsman Scott Tanner revealed the availability of resources under an EJJ designation. He argues that the General Assembly enacted EJJ to give the courts flexibility to deal with juveniles who have committed serious offenses, but who nonetheless demonstrate that they can be rehabilitated. He takes the position that the circuit court disregarded Tanner's testimony. Again, this argument misapprehends the substance of the court's ruling. In regard to this issue, the court's order states: G. There are facilities or programs available to the Judge of the Juvenile Division of the Circuit Court to rehabilitate juveniles, but they are unlikely to rehabilitate the Defendant before the expiration of his twenty-first birthday. In November of 2014, he had contact with the juvenile office concerning unwanted text messages to a female. A diversion was used which involved contact with the juvenile office and counseling. He did fine until February of 2015 when his father reported he had stolen $200.00 from his mother and was bullying his mother. The juvenile office worked with him with more restrictions. Later it was reported he was skipping school and a Family in Need of Services case was opened. He appeared before the Juvenile Court Judge on May 1, 2015 and was ordered to comply with court rules including counseling and school attendance. He attended counseling until sometime in December of 2015. He reported to his parents he was attending school and his counseling, but was not. In March of 2016, the parents reported he had stolen credit cards and a truck. He was scheduled for adjudication on May 20, 2016; the homicide occurred April 14, 2016. Again, as shown above, the court did not disregard the testimony of Mr. Tanner. Instead, it focused on Despain's prior juvenile history and the steps taken which had failed to rehabilitate him thus far. Additionally, Despain was charged with premeditated capital murder-a serious and violent crime-for purposely shooting his neighbor twice-once in the back and once in the head. Our supreme court has held that a juvenile may be tried as an adult solely because of the serious and violent nature of the offense. See C.B. v. State , 2012 Ark. 220, 406 S.W.3d 796. Based on its consideration of the statutory factors, the court denied Despain's transfer motion. On the whole, we cannot find that this was clearly erroneous. See Harris v. State , 2016 Ark. App. 293, 493 S.W.3d 808 ("We will not reverse a circuit court's determination of whether to transfer a case unless that decision is clearly erroneous."). Finally, there can be no EJJ designation unless the case is either already in the juvenile division or is transferred to the juvenile division. J.S. v. State , 2009 Ark. App. 710, 372 S.W.3d 370. Once the circuit court found that Despain's transfer motion should be denied, EJJ was no longer available. Id. Affirmed. Harrison and Hixson, JJ., agree. There is also some evidence that Despain had a micropenis diagnosis and that his refusal to discuss this abnormality was further evidence of his immaturity.

MIKE MURPHY, Judge Appellant P.A.M. Transport, Inc. (P.A.M.), appeals from the June 19, 2017 opinion of the Arkansas Workers' Compensation Commission (Commission) that ruled appellee David Eason sustained a compensable injury. The full Commission's opinion reversed the opinion of the administrative law judge (ALJ) who ruled Eason failed to prove a compensable injury. P.A.M.'s sole argument on appeal is that the Commission's decision is not supported by substantial evidence. We affirm. Eason worked for P.A.M. as a truck driver in training. On the day of the incident, Eason was riding with his mentor, Robert Flippo. They pulled into a truck stop at approximately 10:26 a.m. to wait out an extended delay of twenty hours before they could pick up the next load. Upon arriving at the truck stop, Eason changed his driver log to "off duty" at 10:42 a.m. Before making a personal call, Flippo informed Eason that they would be practicing the difficult task of backing up the truck later that day and that Eason should use the time until then to study for a necessary work-related test taken at the end of training. Flippo testified that he did not like letting trainees wander too far from the vehicle, so he told Eason to stay at least within walking distance. According to Eason, he studied for approximately twenty minutes before he decided to put up his phone so he would not be distracted. While putting his phone on his top bunk, he fell and injured his left leg. Eason testified that to get to his bunk he had to climb two stairs up and then get "[his] left leg up over the top of the mattress and so [he was] on that last step with [his] right leg." He explained that his sleeping bag was on top of the mattress, which caused him to slip, lose his grip, and fall backwards onto the floor of the cab of the truck. Eason had immediate pain in his left leg. After Eason had fallen, Flippo called the employer to explain what happened, and it was decided that Flippo would drive Eason to a nearby motel so that Eason's father could come pick him up and take him to get medical treatment. Once back in his hometown, Eason was initially evaluated at an urgent-care facility that immediately referred him to the emergency room where he had surgery on his left knee and femur on April 10, 2016. After a hearing, the ALJ found that Eason failed to prove he sustained a compensable injury. Eason appealed to the Commission; whereupon the full Commission found that Eason proved he sustained a compensable injury that arose out of and in the course of his employment. Further, the Commission found that Eason was entitled to temporary total-disability benefits from April 6 through July 11, 2016; that his injury was not idiopathic; and that his injury was not connected to any alleged preexisting condition. P.A.M. now appeals, arguing that the full Commission erred in finding that substantial evidence supports the conclusion that Eason sustained a compensable left-leg injury while working for P.A.M. and that the decision should be reversed. The standard of review in workers'-compensation cases is well settled. On appeal, this court views the evidence in the light most favorable to the Commission's decision and affirms the decision if it is supported by substantial evidence. Schall v. Univ. of Ark. for Med. Scis. , 2017 Ark. App. 50, at 2, 510 S.W.3d 302, 303. Substantial evidence exists if reasonable minds could reach the Commission's conclusion. Id. The issue is not whether the appellate court might have reached a different result from the Commission but whether reasonable minds could reach the result found by the Commission: if so, the appellate court must affirm. Id. Additionally, the credibility of witnesses and the weight to be given to their testimony are within the exclusive province of the Commission. Webster v. Ark. Dep't of Corr. , 2017 Ark. App. 558, at 3, 537 S.W.3d 731, 734. Thus, we are foreclosed from determining the credibility and weight to be accorded to each witness's testimony, and we defer to the Commission's authority to disregard the testimony of any witness, even a claimant, as not credible. Id. When there are contradictions in the evidence, it is within the Commission's province to reconcile conflicting evidence and determine the facts. Id. A compensable injury is defined as "an accidental injury causing internal or external physical harm to the body ... arising out of and in the course of employment." Ark. Code Ann. § 11-9-102(4)(A)(i). Here, the primary issue is whether Eason's injury arose out of and in the course of his employment with P.A.M. An employee is performing employment services when he or she is doing something that is generally required by his or her employer. Webster , 2017 Ark. App. 558, at 4, 537 S.W.3d 731, 734-35. We use the same test to determine whether an employee is performing employment services as we do when determining whether an employee is acting within the course and scope of employment. Pifer v. Single Source Transp. , 347 Ark. 851, 69 S.W.3d 1 (2002). The test is whether the injury occurred within the time and space boundaries of the employment when the employee was carrying out the employer's purpose or advancing the employer's interest, either directly or indirectly. Id. Moreover, whether an employee was performing employment services within the course of employment depends on the particular facts and circumstances of each case. Id. On appeal, P.A.M. contends that substantial evidence does not support the Commission's decision that Eason was performing employment services at the time of his injury. P.A.M. argues that Eason sustained the injury while performing a personal activity-returning his cell phone to his bunk. P.A.M. further asserts that even if Eason had been studying at the time of injury, the studying was not mandatory and did not advance the interests of the employer. Lastly, P.A.M. argues that the Commission ignored the evidence that established that Eason was not studying at the time of the incident. We disagree. In support of its argument, P.A.M. cites two cases that merit discussion. In both Trezza v. USA Truck Inc. , 2014 Ark. App. 555, 445 S.W.3d 521, and Cook v. ABF Freight Systems, Inc. , 88 Ark. App. 86, 194 S.W.3d 794 (2004), the Commission found that the employees had not sustained a compensable injury and we affirmed. In Trezza , a truck driver was "off duty" according to his log book and somehow injured his ankle on the way to the bathroom. We affirmed the Commission, explaining that the appellant was not taking a necessary bathroom break so that he could return to his work duties; instead, he was off work and not required to do anything. Trezza , 2014 Ark. App. 555, at 5, 445 S.W.3d at 524. In Cook , a truck driver was "off the clock" taking a mandated eight-hour overnight rest break when he was injured turning on his motel bathroom light. We affirmed the Commission, explaining that the performance of routine personal grooming and related tasks upon arising in the morning is not the performance of employment services for the purposes of compensability. Cook , 88 Ark. App. at 91, 194 S.W.3d at 797. The cases cited by P.A.M., however, are distinguishable from the facts of this case. In Trezza , appellant's work day had ended, and he did not intend to perform any further job functions for thirty-four hours. There, we distinguished it from a situation where an employee was taking a necessary bathroom break so that the employee could return to his or her work duties. Here, while technically Eason and Flippo were "logged off," they did intend to perform further job functions that day of practicing backing up the truck. The case at hand is similarly distinguishable from Cook because Cook was off duty and tending to personal grooming when he was injured. Here, Eason was not on a leisure time off and tending to personal things away from the truck. Instead, Eason was required to stay nearby and was injured inside the actual P.A.M. truck, whereas in the other two cases, the employees were injured elsewhere. Our standard of review is critical in this case, and we find reasonable minds could reach the result found by the Commission. Eason's situation is unique in that he was a trainee expected to study or practice backing up the truck, which benefited P.A.M. Further, the injury occurred within the truck during a period when Eason was not enjoying a leisure time off or free to do as he pleased. Lastly, P.A.M. argues that the Commission's opinion ignored the testimony and evidence that Eason had been using his personal phone for Facebook just before the injury. P.A.M. asserts that when considered as a whole, the Facebook post established without a doubt that Eason was not studying just before the injury. P.A.M. proffered evidence that Eason had been using Facebook until 12:09 p.m. and that the injury occurred at 12:25 p.m. As previously explained, it is within the Commission's province to reconcile conflicting evidence and determine the facts. Thus, reasonable minds could conclude that it was not necessary for the Commission to discuss this testimony in its opinion. Accordingly, on the facts of this case, substantial evidence supports the Commission's decision and we affirm. Affirmed. Virden and Gladwin, JJ., agree.

RAYMOND R. ABRAMSON, Judge Appellant John V. Glenn appeals following a bench trial in the Pope County Circuit Court. On appeal, Glenn argues that the circuit court erred by finding that there was a breach of contract and by awarding damages and attorney's fees. We disagree and affirm. This case arises from a dispute regarding the terms of a lease agreement between Glenn and appellee Mike Bubbus. On June 28, 2004, the parties entered into a ten-year lease agreement which provided that Bubbus would lease a mobile-home park from Glenn. The lease permitted Bubbus to install, at his own expense, furniture, fixtures, and equipment on the premises. Language from the lease also provided that "such furniture, fixtures, and equipment shall be deemed to be [Bubbus's] trade fixtures and shall not be deemed incorporated into or a part of the Demised Premises provided they can be removed without causing any damage to the structural elements of the Demised Premises." At the conclusion of the term of the lease, the lease agreement permitted Bubbus to "remove from the Demised Premises all of such trade fixtures and other personal property belonging to Tenant," as long as Bubbus was not in default, and as long as he repaired any damage to the property caused by such removal. During the term of that lease, Bubbus installed electrical meter boxes, related electrical equipment, and water meters to the individual mobile-home lots on the property. With respect to the electrical meter boxes, Bubbus would install a six-by-six-inch square piece of lumber vertically into the ground. Bubbus would then attach a rectangular metal meter box to that pole, and Entergy would later insert the meter itself into the meter box. Bubbus would then install a conduit in the ground between the pole and the mobile home. Wiring would then be run from the mobile home, up the pole, into the meter box, then out of the meter box and to the top of the pole. Entergy would then connect this wire at the top of the pole to the main electrical power grid. Because the City of Russellville would install only one master water meter to the leased property's exterior lot line, Bubbus also installed individual water meters to each lot so that he could determine how much water each tenant used for billing purposes. At the conclusion of the lease term, Bubbus asked whether he could remove the meters and was told he could not. A dispute arose as to who was entitled to these items, and on August 31, 2015, Bubbus filed a complaint in replevin. Glenn timely filed an answer and counterclaim on September 14, 2015. On September 23, 2015, Bubbus filed an answer to the counterclaim. Glenn then filed a supplemental counterclaim on March 21, 2016, which the court found to be time-barred by the statute of limitations and dismissed it with prejudice on July 7, 2016. Glenn filed a supplemental answer with affirmative defenses on August 11, 2016. On October 19, 2016, Bubbus filed an amended complaint, adding a claim for breach of contract. Glenn then filed an amended answer with affirmative defenses and a counterclaim on January 3, 2017. Bubbus timely filed an answer on January 4, 2017. A bench trial was held on February 2, 2017. After the trial, the parties submitted closing statements in written form. On April 25, 2017, the circuit court entered a final order, judgment, and order for delivery, finding in favor of Bubbus. The order does not expressly address Glenn's counterclaim, but Glenn's notice of appeal resolves that issue by stating that he "further abandons any pending but unresolved claims." Accordingly, this appeal is now properly before us. We have long held that, in appeals from bench trials, we will reverse only if "the trial court's findings are clearly erroneous, or clearly against the preponderance of the evidence." Adamson v. Sims , 85 Ark. App. 278, 282, 151 S.W.3d 23, 25 (2004). In applying this standard of review, our court gives recognition to "the trial judge's superior opportunity to determine the credibility of the witnesses and the weight to be given to their testimony." Gosnell v. Indep. Serv. Fin., Inc. , 28 Ark. App. 334, 335, 774 S.W.2d 430, 431 (1989). Further, the evidence is viewed "in a light most favorable to the appellee, resolving all inferences in favor of the appellee." McSparrin v. Direct Ins. , 373 Ark. 270, 272, 283 S.W.3d 572, 574 (2008). At the trial, Glenn presented no witnesses nor introduced any evidence and rested immediately after Bubbus rested. On appeal, he must show that the circuit court made a clearly erroneous finding. However, he has not done so. Based on our review of the record before us, the circuit court's findings (1) that Glenn breached the parties' contract by not allowing Bubbus to remove items at the end of the lease term; (2) that the items were Bubbus's property and trade fixtures and therefore could be removed at the end of the lease term; (3) that Bubbus be awarded $14,400 as damages for the retention of the property by Glenn; and (4) that Bubbus was entitled to attorney's fees, were consistent with the only testimony presented at trial. On appeal, Glenn argues that there was no breach of contract, that damages were improperly awarded, and because there was no breach of contract, there can be no award of attorney's fees. The Arkansas Supreme Court has announced a three-part test to determine whether an article remains personal property or becomes a fixture: "(1) whether the items are annexed to the realty, (2) whether the items are appropriate and adapted to the use or purpose of that part of the realty to which the items are connected, and (3) whether the party making the annexation intended to make it permanent." Pledger v. Halvorson , 324 Ark. 302, 305, 921 S.W.2d 576, 577 (1996). In this case, based on the language of the lease and the testimony presented at trial, the meter boxes, poles, and wiring were removable, and the circuit court's decision, which again was consistent with the only testimony presented at trial, was not clearly erroneous. In applying the three-factor test set forth above, our supreme court has held that the third factor-the intent of the party making the annexation-is "a consideration of primary importance." Id. at 306, 921 S.W.2d at 578. In considering this factor, the court considers "the nature of the chattel, the relation and situation of the party making the annexation, the structure and mode of annexation, and the purpose for which the annexation has been made." Id. at 305-06, 921 S.W.2d at 578. In this case, when considering intent, it is vital to consider the language of the lease between Bubbus and Glenn. Specifically, that lease provided that Bubbus could remove any property that he put on the premises, even items that might otherwise be considered trade fixtures, as long as he could remove them without causing damage to the structures on the premises: Tenant shall be entitled to install at it[s] own cost additional furniture, fixtures, and equipment in or upon the Demised Premises, all of which furniture, fixtures, and equipment shall be deemed Tenant's trade fixtures and shall not be deemed incorporated into or a part of the Demised Premises provided they can be removed without causing any damage to the structural elements of the Demised Premises. Upon the expiration of the lease term, Tenant may, if it is not in default hereunder at that time, remove from the Demised Premises all of such trade fixtures and other personal property belonging to Tenant. Tenant agrees to repair any damage to the interior or exterior of the Demised Premises caused by the removal of such trade fixtures. The language in the lease agreement itself makes clear that the intent of both parties was for the electrical equipment and water meters to be removed at the termination of the lease. The uncontroverted testimony was that the equipment could be removed with no damage to the structural portion of the premises, and with only minor damage to the real estate that could be easily repaired. Based on the three-prong test, and particularly on the intent prong of the test, the circuit court did not err in finding that Bubbus should have been allowed to remove his electrical equipment. There was ample testimony that the poles, meter boxes, and wires could be removed from the property with no damage to the real property and with minimal interruption of electrical service to the residents of the mobile homes. The poles and electrical equipment were installed for the benefit of Bubbus and his tenants, and the parties' intent in the lease reflects that Bubbus would be able to remove the electrical equipment at the termination of the lease. We therefore affirm the circuit court's decision. We find Glenn's damages argument unpersuasive. He argues that the damages awarded for loss of use of property was an improper award, but he fails to cite any authority to support his position. Assignments of error that are unsupported by convincing authority will not be considered. Holcombe v. Marts , 352 Ark. 201, 99 S.W.3d 401 (2003). Glenn's final argument is that because there was no breach of contract, there can be no award of attorney's fees. Because we affirm the circuit court's decision that Glenn breached the parties' contract, Glenn's attorney's-fees argument fails. Accordingly, we affirm. Affirmed. Gruber, C.J., and Gladwin, J., agree. Pursuant to Rule 3 of the Arkansas Rules of Appellate Procedure-Civil, such language "operates as a dismissal with prejudice effective on the date that the otherwise final order or judgment appealed from was entered." Ark. R. App. P.-Civ. 3(e)(vi). We note the circuit court's order granting intervention to the Pope County Sheriff's Office was entered July 14, 2017, which was three days after the notice of appeal was filed in this court on July 11, 2017. Therefore, this is a final order for purposes of appeal. Glenn's abstract is woefully deficient. Rather than remand for rebriefing, we relied on Bubbus's supplemental abstract and addendum to reach the merits of this case. See Ark. Sup. Ct. R. 4-2(b)(1), which allows an appellee to supplement a deficient abstract or addendum and petition this court to recover costs and fees incurred in doing so. Other than filling in the hole upon removal of the pole. Testimony indicated the entire process would cause, at most, only two hours of "shutdown" time. Bubbus's motion to dismiss the appeal, filed on Friday, April 6, 2018, is denied.

N. MARK KLAPPENBACH, Judge Appellant Sherry Lashay Woods was convicted of the second-degree murder of Jeffrey Baker, and the jury sentenced her to thirty years in prison. Woods admitted that on October 5, 2016, she stabbed Baker with a knife during an altercation with her and her two teenage sons. Baker died as a result. Woods argues on appeal that the trial court erred in denying her motion for directed verdict on the second-degree-murder charge, asserting that she was justified in defending herself and her sons and that she was acting under extreme emotional disturbance. The State contends that appellant's arguments are not preserved for appellate review. Because we agree with the State that appellant's arguments are not preserved for appellate review, we affirm without reaching the merits of appellant's arguments. In a challenge to the sufficiency of the evidence, we review the evidence in the light most favorable to the State and consider only the evidence that supports the conviction. Cluckv. State, 226 S.W.3d 780 (2006). Evidence is sufficient if it is of such character and force that it, with reasonable certainty, compels a conclusion one way or the other without resort to speculation or conjecture. Id. The credibility of witnesses is an issue for the jury. Kinsey v. State , 2016 Ark. 393, 503 S.W.3d 772. The trier of fact is free to believe all or part of any witness's testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id. In order to preserve a challenge to the sufficiency of the evidence in a jury trial, a criminal defendant must make a motion for directed verdict at the close of the evidence offered by the prosecution and at the close of all the evidence. Ark. R. Crim. P. 33.1(a) (2016). A motion for directed verdict shall state the specific grounds therefor. Maxwell v. State , 373 Ark. 553, 559, 285 S.W.3d 195, 200 (2008). Without a circuit court ruling on a specific motion, there is nothing for this court to review. Id. Failure to abide by these procedural rules renders any question of the sufficiency of the evidence waived on appeal. Ark. R. Crim. P. 33.1(c) ; Bradley v. State , 2013 Ark. 58, 426 S.W.3d 363. An appellant must make a specific motion for a directed verdict that advises the trial court of the exact element of the crime that the State has failed to prove. Conley v. State , 2011 Ark. App. 597, 385 S.W.3d 875. Rule 33.1 is strictly construed. Pratt v. State , 359 Ark. 16, 194 S.W.3d 183 (2004). Here, appellant's attorney made the following motion for directed verdict at the close of the State's evidence: I have a Motion for Directed Verdict. I do not think the state has met the element of murder in the second degree in that they have failed to prove it. Ms. Woods knowingly caused the death of uh, Jeffrey Baker. I think there has been testimony that she was defending her uh, defending her sons, and that she tried to break this up and stop this several times, and I do not think the state has met their burden that she knowingly caused the death of someone under the circumstances manifesting extreme indifference to the value of human life, or for the purposes of causing serious physical injury caused the injury caused the death of someone else. The prosecutor argued that the motion should be denied. The trial court responded that it knew that appellant's defense was justification but that this would be a fact question for the jury to determine. The trial court denied appellant's directed-verdict motion. After appellant testified in her own defense, her attorney renewed the motion for directed verdict, which was again denied. The jury was subsequently instructed that Woods was asserting justification as a defense to the charge of second-degree murder or the lesser-included offense of manslaughter. The jury was instructed that this was a defense only if Woods reasonably believed that the deceased was committing or about to commit a felony with force or violence and if Woods only used such force as she reasonably believed was necessary. The jury instruction further provided that Woods would not have been justified in using deadly physical force if she knew that the use of deadly physical force could be avoided with complete safety by retreating. However, she is not required to retreat if she is in her dwelling or on the curtilage surrounding her dwelling, and is not the original aggressor. The jury returned a guilty verdict on second-degree murder, and this appeal followed. Woods argues on appeal that Baker was known to have a history of domestic violence with his girlfriend and that he was aggressive, highly intoxicated, and violent on that date, justifying her use of deadly force. Woods also asserts that she regularly carried protection, such as a taser or knife, when she walked from her house, and she was only protecting her two sons who were engaged in an altercation with Mr. Baker. We cannot reach these arguments. A party cannot enlarge or change the grounds for an objection or motion on appeal but is bound by the scope and nature of the arguments made at trial. Kinsey, supra. In Mr. Kinsey's appeal of his murder convictions for killing two men with a machete, Kinsey argued that there was insufficient evidence to sustain his convictions because the State failed to negate his defense of justification. Mr. Kinsey argued on appeal that the State failed entirely to address his claim of self-defense and did not offer any evidence disproving that the deceased men were the aggressors. Mr. Kinsey also contended that any evidence the State presented was not of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. The State responded that Mr. Kinsey's argument was not preserved for review. Our supreme court agreed with the State because, in his directed-verdict motion, Mr. Kinsey failed to identify specifically how the State's proof was insufficient to meet its burden. Mr. Kinsey argued in his motion for directed verdict that "the State has failed to negate self defense" or "disprove" it. The supreme court concluded: The State asserts that Kinsey did not preserve the issue for review because he did not identify the specific elements he alleged were lacking to the circuit court to preserve the issue for this court's review; rather, Kinsey made only a general motion. Here, based on the record before us, Kinsey generally argued that the State failed to negate self-defense, but in his directed-verdict motion, Kinsey failed to identify specifically how the State's proof was insufficient to meet its burden-e.g., whether the State failed to show that Kinsey lacked a reasonable belief that the victims were about to use deadly force; whether the State failed to demonstrate that Kinsey could not have retreated safely; or whether the State failed to demonstrate that the victims were not committing, or were about to commit, a felony involving force or violence. Accordingly, Kinsey did not identify the specific elements to the circuit court that he now claims the State did not meet and therefore did not preserve the issue for review. Thus, we do not reach the merits on this point and affirm the circuit court. Kinsey , 2016 Ark. 393, at 9, 503 S.W.3d at 777-78. Likewise, in the present appeal, Woods argued only that she was "defending her sons." There was no focused argument regarding any specific element that the State failed to disprove, as outlined in the Kinsey appeal. Woods did not address the elements of justification as delineated in the jury instruction. A general motion does not satisfy the requirements of specificity mandated in Rule 33.1. Our appellate courts have been steadfast in holding that we will not address the merits of an appellant's insufficiency argument when the directed-verdict motion is not specific. Reynolds v. State , 2018 Ark. App. 8, 538 S.W.3d 223. Woods additionally argues that she was acting under the influence of extreme emotional disturbance for which there was a reasonable excuse. Woods did not argue in any fashion in her motion for directed verdict that she was acting under the influence of such an extreme emotional disturbance. Moreover, "extreme emotional disturbance" applies only with regard to manslaughter, and Woods agrees that the jury was properly instructed to consider manslaughter. We affirm the conviction for second-degree murder. Affirmed. Virden and Harrison, JJ., agree.

BART F. VIRDEN, Judge A Crawford County Circuit Court jury convicted German Vasquez of rape and sentenced him to 120 months' incarceration in the Arkansas Department of Correction ("ADC"). On appeal, Vasquez asserts that his right to a speedy trial was violated, and his conviction must be overturned. We affirm. I. Factual History Vasquez was arrested pursuant to a charge of rape on May 7, 2016, and he was not tried until August 7, 2017, 457 days later, ninety-one days beyond the one-year anniversary of his arrest. During the pendency of the case, the circuit court granted four continuances. The State requested the first continuance due to its need for more time for the Arkansas State Crime Laboratory to process evidence. Vasquez did not object, and the circuit court granted the continuance from February 6, 2017, to March 9, 2017. The circuit court did not exclude the time for the purpose of speedy-trial calculation. The State filed a second motion for continuance in which it reiterated its request for more time for evidence testing. Vasquez did not object to the request. The circuit court granted the continuance and ordered that the time was not excluded for purposes of speedy-trial calculation. The new trial date was set for April 13, 2017. Vasquez filed the third motion for a continuance due to the unavailability of a witness for trial, and the circuit court granted the motion, excluding the time for purposes of speedy-trial calculation and setting the trial for July 6, 2017. On July 6, 2017, the 344th non-excluded day, Vasquez and the State appeared in court, ready for trial; however, due to an error in the circuit court's juror-notification system, some of the jurors had been given the wrong date to report for duty, and not enough jurors were present to hold the trial. The circuit court found that the trial had to be continued until the next available court date, August 7, 2017. The circuit court also found that the phone-system error constituted good cause as described by Arkansas Rule of Criminal Procedure 28.3(h) and that the thirty-one-day continuance was excluded from speedy-trial calculation. Vasquez objected, and the circuit court noted the objection. On August 7, 2017, Vasquez filed a motion to dismiss based on the violation of his right to a speedy trial. In his motion, Vasquez asserted that as of July 31, 2017, the State was no longer able to try his case because his constitutional right to a speedy trial prevented such. Vasquez argued that a jury could have been called in long before August 7, and as it was, the trial was eight days past the time period for a speedy trial. Vasquez asserted that though the unavailability of the jury may constitute good cause for delay for one day, the trial could have been scheduled earlier than August 7. The State responded that the continuance constituted good cause and that the circuit court granted the minimal continuance possible because it set the trial for the next available trial date, the circuit judge had a vacation scheduled during the thirty-one day time period, and there were "other cases scheduled on the other days[.]" The State also asked that the circuit court take judicial notice that the logistics of holding a trial, including subpoenaing witnesses and scheduling court interpreters, takes a certain amount of time to accomplish. The circuit court denied Vasquez's motion, stating that because only fifteen of the requisite twenty-six potential jurors had been present for trial on July 6, it had no discretion in the matter and had been forced to issue a continuance. The circuit court also noted that two court interpreters had to be rescheduled for a jury trial, which had bearing on when the case was set for trial. The jury found Vasquez guilty of rape and sentenced him to ten years in the ADC. Vasquez filed a timely notice of appeal. II. Speedy Trial On appeal, we conduct a de novo review to determine whether specific periods of time are excludable under our speedy-trial rules. Yarbrough v. State , 370 Ark. 31, 33, 257 S.W.3d 50, 53 (2007). Pursuant to Rule 28.1 of the Arkansas Rules of Criminal Procedure, a defendant must be brought to trial within twelve months unless there are periods of delay that are excluded under Rule 28.3. The twelve-month period for bringing an accused to trial begins to run on the date the information is filed, or the date of arrest, whichever occurs first. Id. It is the burden of the State and the circuit court to ensure that the defendant is brought to trial within the required time period so as not to violate the defendant's right to speedy trial; the defendant, on the other hand, is not required to demand a trial to preserve his or her right to speedy trial. Gwin v. State , 340 Ark. 302, 9 S.W.3d 501 (2000). Once a prima facie case for the violation of a defendant's right to a speedy trial is established by the accused, the State has the burden of showing that the delay exceeding the twelve-month period was the result of the defendant's conduct. Scroggins v. State , 312 Ark. 106, 848 S.W.2d 400 (1993). Upon request of a party, the circuit court may grant a continuance, but the movant has the burden of showing good cause. David v. State , 295 Ark. 131, 748 S.W.2d 117 (1988). Notwithstanding good cause, the record must properly explicate the rationale for speedy trial to be tolled. Berry v. Henry , 364 Ark. 26, 216 S.W.3d 93 (2005). In the instant case, the parties agree that Vasquez was tried 457 days after his arrest; thus, the burden was on the State to prove that the delay was excludable for speedy-trial purposes. Vasquez concedes that the eighty-four-day continuance he requested from April 13 to July 6, 2017, was properly excluded from speedy-trial calculation, but he contends that even excluding that time, the State brought the case to trial eight days past the speedy-trial terminus. Vasquez asserts that the State did not meet its burden regarding the final continuance, and the circuit court erred by refusing to include the thirty-one days in the speedy-trial calculation. Our analysis of this issue focuses on the State's assertion that bringing a case to the jury requires a certain amount of time, and thirty-one days is a reasonable delay pursuant to Rule 28.3(h), which allows exclusion of "other periods of delay for good cause." In denying the motion to dismiss, the circuit court rejected Vasquez's argument that the jury could have been called "the next day" after the notification-system error was discovered. The State asserted, and the circuit court agreed, that logistical issues, including scheduling the two necessary court interpreters for a jury trial, notifying jurors, and subpoenaing witnesses, could not be accomplished in a just few days. In our de novo review of the record, we note that the circuit court's July 13, 2017 form that provides notice of trial to counsel sets forth that for a jury trial, "[a]ttorneys shall notify the Court of the need of Interpreters ... NO LATER THAN TEN (10) DAYS BEFORE TRIAL DATE, (AOC's REQUIREMENT)[.]" (Emphasis in the original.) While the circuit court judge's absence due to a vacation does not constitute good cause for delay, the other factors named above do, and the court's decision to set the trial for the next available court date does not constitute undue delay. In arguing that the circuit court erred in rejecting his speedy-trial motion, Vasquez cites several cases he argues require dismissal of his charges. We find the cases to be factually distinguishable from Vasquez's situation and not controlling here. In Tanner v. State , 324 Ark. 37, 918 S.W.2d 166 (1996), the circuit court continued the case for one month because it reset a capital-murder case for an earlier trial date, which moved Tanner's case to a date beyond the permitted time period. The instant case differs from Tanner because here, the circuit court did not issue a continuance to hear a case it deemed more important. Instead, a true bar to having the trial arose, and the court had no choice but to continue the case until the requisite number of jurors could be present. The other cases cited by Vasquez, Eubanks v. Humphrey , 334 Ark. 21, 972 S.W.2d 234 (1998), Novak v. State , 294 Ark. 120, 741 S.W.2d 243 (1987), and Campbell v. State , 26 Ark. App. 133, 761 S.W.2d 613 (1988), involve an inordinately long delay in coming to trial because of emergency circumstances that arose suddenly on or near the day of trial. The holding in each of these cases is that, though an emergency can be good cause for delay-a death in the judge's family, the judge's illness, and an ice storm-the delay cannot continue after good cause no longer exists. In each of the above cases, the delays ranged from seventy days to almost four months, which was much longer than necessary. Here, the one-month delay to the next available court date is not unnecessarily lengthy in light of the fact that jurors had to be notified, witnesses subpoenaed, and translators scheduled. Affirmed. Klappenbach and Murphy, JJ., agree. The record does not contain an arrest warrant or docket entry showing Vasquez's date of arrest; however, in his motion to dismiss, Vasquez states that he was arrested on May 7, 2016. The State does not contest this statement, and we may assume that for the purposes of this appeal, Vasquez was arrested on May 7, 2016.

KENNETH S. HIXSON, Judge Appellant Brady Williamson ("appellant" or "son") appeals from the Searcy County Circuit Court's final judgment entered after a bench trial in favor of appellee John J. Williamson ("appellee" or "father"). On appeal, appellant contends that (1) appellee failed to make a prima facie case during his case-in-chief; (2) the trial court impermissibly shifted the burden of proof to appellant; (3) the judgment is not supported by the weight of the evidence; (4) the trial court erred by allowing recovery for funds never included in the complaint; and (5) the trial court erred in granting appellee attorney's fees and costs. We affirm, in part, and reverse and remand, in part. Appellee lives in Saint Joe, Arkansas. Appellant is appellee's son and lives in Oxford, Mississippi. Father was arrested for terroristic threatening and was detained in the Searcy County Law Enforcement Center. It is undisputed that father subsequently executed a durable power of attorney on September 9, 2010, to give son the right to act on his behalf during this period. Subsequently, a judgment of acquittal by reason of mental disease or defect was entered in that case on October 1, 2010, and father was committed to the Arkansas State Hospital, where he was later released in November 2010. After his release, father alleged that son had breached his fiduciary duty under the durable power of attorney and had converted father's money and property for his personal use. Therefore, father filed his complaint on September 9, 2013, for breach of fiduciary duty and conversion. In his complaint, he sought a judgment for moving expenses in recovering some of his property; unauthorized checks that were given by son to son's wife; unauthorized disposition of his retirement benefits; unauthorized disposition of cash funds taken from his safe; unauthorized disposition of firearms, ammunition, and weapons that belonged to him; attorney's fees and costs; and punitive damages. Son filed his answer generally denying the allegations. The events took place in late 2010, and the trial commenced almost five years later. Discovery disputes and other matters arose. A bench trial was held over an eighteen-month period on May 15, 2015, February 24, 2016, and October 9, 2016. Deputy Lang Holland testified that when father was arrested, several firearms, accessories, and ammunition were taken into custody by the sheriff's department. Deputy Holland testified that because father refused to have his firearms sold at public auction, his son was called to retrieve the items. Father testified and admitted that he gave his son a power of attorney. Father's home was a cabin located on fifteen acres in Saint Joe, Arkansas. Father further testified that he gave his son specific verbal instructions to store his personal belongings in "PODs"; take care of his dog; pay his bills, including home insurance; and list his home for sale for $150,000. Father testified that he had been incarcerated and detained at the hospital from May through November 2010, for a total of six months. According to father, after his release, son picked him up from the hospital but told father that father could not return to his cabin because son had rented the cabin in Saint Joe to some hunters. Father stayed with his great aunt in Mississippi and later in a trailer on her lot. Father discovered that his belongings had been moved to son's home in Oxford, Mississippi, son had changed the mailing address on his banking accounts to his personal address, son had written checks from father's accounts to son's wife, and son had retained two of his retirement checks and social security checks that totaled $11,382. Therefore, father revoked the durable power of attorney on November 17, 2010. Furthermore, father testified that he paid expenses to retrieve his belongings from Mississippi from his son. Father explained that some of his property was still missing, including $900 in cash that was stored in his gun safe and his firearms. On cross-examination, despite alleging that some of his social security checks were converted, father admitted that he did not have the bank statements from that time. However, a bank employee had provided him with pictures of some of the personal checks that son had written to son's wife. Son's counsel subsequently objected at one point to any testimony regarding the social security checks as the complaint had not specifically alleged that son had converted those moneys. Counsel explained that had there been such allegations, there would have been further discovery as to the social security checks. Father's counsel responded that it would move to "amend the pleadings to conform with the proof." The trial court ruled that it would take the objection and motion to conform with the proof under advisement "as we proceed" and allowed father to put forward any evidence and testimony he wished regarding the subject. Father testified that he had received the same amount, $1897, from the Social Security Administration every month that was directly deposited. However, father testified that after he was incarcerated, "they were given, sent, mailed to [appellant]" instead for "about seven months." Father additionally testified that the Social Security Administration told him that his checks were being sent to son and that it was not until February 2011 that his social security benefits were once again sent to him. Regarding the condition of the cabin, father admitted that there were only plywood subfloors and that the cabin was unfinished. Father testified that "the hall and the kitchen and living room [only had] subfloor. And the stairs, well, they were bare and they put carpet on it." When asked whether he would agree that the cabin was unfinished, appellee responded, "[e]verything but the floors ... [s]ome floors." Son testified and admitted that he had changed the mailing addresses on father's bank accounts so that they would be mailed to his own residence in Mississippi. He testified that father told him to take all of his personal effects from the basement in the cabin to his home. Son testified that he had paid the home insurance and repaired and remodeled his father's cabin as he was requested to do by his father. Son further admitted that there was $900 in cash in the safe and that after he renovated the cabin, he had rented the cabin for $200, but he stated that he did not deposit either amount in the bank. Son explained that he had the retirement checks mailed to him, but he did not believe that he contacted the Social Security Administration. Son additionally admitted that several checks were written to his wife, but son explained that the moneys were spent on the renovation and repair of father's cabin. However, son did not have any receipts to support his claim that the checks were spent on cabin-renovation expenditures because he claimed that he gave the receipts to appellee back in 2010 or early 2011. Instead, son testified that he had bank statements that contained some form of documentation. Appellee's counsel objected and requested a continuance since that documentation had not been provided in discovery. The trial court granted a continuance and instructed both parties to supplement discovery, including any further information regarding the social security checks. Trial resumed on February 24, 2016. Father rested his case without any further testimony or evidence, and son moved for a directed verdict. The trial court denied the motion, and the trial continued. Son called Andrea Val Matty as a witness. Matty testified that she operates Buffalo River Cabins. Her parents sold father the property on which his cabin was built, and she was familiar with the cabin. Matty testified that son had asked her whether she would consider cleaning the cabin when father was not there. She thought that father was either in jail or in Little Rock at the time, but she did not know. Matty testified that the cabin was "filthy" and "disgusting" at that time and that she had cleaned the cabin. More specifically, she testified that there was junk everywhere, brown paper on the windows, no flooring except the plywood subfloor, and a lack of home furnishings. Photographs were introduced that were taken after son cleaned, remodeled, and renovated the cabin. Matty testified that the photographs introduced by son accurately reflected the condition of the cabin after the renovations and remodeling. Vincent Neil Johnson testified that he had previously done carpentry work for father. He had completed the exterior building, roof, siding, windows, doors, and the basement. However, Johnson testified that when he left, the cabin was ready for the next set of contractors to complete the plumbing, sheet rock, and flooring. Son testified in his case-in-chief that when father was incarcerated, his relationship was good with father. Son claimed that father gifted him all of his tools and firearms. He additionally testified that father told him to pay the insurance and to prepare the cabin to either be sold or rented. Son testified that he and his wife cleaned and remodeled the cabin. According to son, they installed hardwood flooring and carpeting, painted, made curtains, installed plumbing, and added furnishings. Although he did not take any photographs of the cabin before or during the remodel, son provided several photographs depicting the finished cabin. Son testified at length regarding all of the furnishings and materials that he had purchased to complete the cabin. Although he was unable to produce the original receipts for the furnishings, he provided his handwritten list of what he purchased and the associated costs. Son testified that he had his bank statements that showed purchases at gas stations and at various stores and withdrawals from ATMs that he claimed were associated with the improvements to father's cabin. Son further testified that he had given all the original receipts to appellee in a manila envelope years earlier without keeping any copies. However, son was able to provide email documentation from eBay that stated that a memory foam mattress costing $299.99 was shipped. Another email stated that a "1911 Arkansas Color Map Missouri map on back" had been won on eBay. Son claimed that those items were purchased for the cabin. Son explained that he paid cash to get better deals on the furnishings and renovations. Therefore, he wrote several checks to his wife from father's account so that she could deposit them in their personal account to pay for items. The September 13, 2010 check written to appellant's wife for $3,572 contains a handwritten notation on the memo line that the check was for "Flooring, Beds, Bedding." The September 18, 2010 check for $5,000 states that it was for "Home Furnishings-see list." The September 30, 2010 check for $1,750 states that it was for "Carpet/Upstairs Bath install." The October 31, 2010 check for $200 does not contain any notation on the memo line. The November 2, 2010 check for $400 states that it was for "heater supplies." Finally, the November 11, 2010 check for $400 states that it was for "Finish Home Ready to Rent/Sale." Regarding father's claim that checks were missing, son testified that he remembered giving father two checks back. However, he was not sure whether the checks were from father's social security or retirement, but he was certain that they would not have been deposited into his personal account. Son provided bank statements from his father's account that showed that there were checks deposited from the U.S. Treasury for social security into father's bank account. Those bank statements show that five separate social security check deposits were made into father's bank account during a time period spanning from May 12, 2010, to September 15, 2010. Son denied that he contacted the Social Security Administration and advised them to stop depositing or mailing father's social security checks to him as father alleged. On cross-examination, son testified that the rent he obtained from renting the cabin was deposited into his personal account but was used toward remodeling father's cabin. He explained that father told him to take the $900 in cash that was contained in the gun safe and to use it. He additionally claimed that father was not permitted to possess any of his firearms and admitted that he took the firearms to his home in Mississippi. Regarding the retirement checks, a handwritten notation was introduced in which father had written "Entergy replaced 4 checks of 6 checks. They were sent by mail to Brady [son]. They were not directly deposited. Brady spent 2. Each Entergy retirement checks were $1197 per month." At the close of trial, the parties agreed to submit written closing arguments and motions. In father's position statement, he reiterated the same arguments presented at trial and alleged that he was entitled to a judgment of $34,451.46 in damages and $8,751.07 in attorney's fees and costs. Son filed a written motion for dismissal. In his motion, he argued that the durable power of attorney authorized him to act on his father's behalf and generally that he had not acted outside the scope of the power of attorney and did not self-deal with his father's property. The trial court issued a letter opinion stating that it was finding in favor of father and that it was also awarding attorney's fees and costs but declining to award any punitive damages. The letter opinion did not state the amount of damages to be awarded. The trial court further stated, The Court finds that under the totality of all of the circumstances and the testimony from the witnesses, the Plaintiff has established a breach of the fiduciary duty created by the power of attorney. While counsel for Defendant makes the best case possible under the circumstances, many of the facts and circumstances set out in her Memorandum Brief in Support of Motion illustrate many matters either not addressed or for which no reasonable explanation is offered. Given the scrutiny given the parties' relationship under Arkansas law, the Court finds from a preponderance of the evidence that these matters are resolved in favor of the Plaintiff. Specifically, despite the Defendant's denials of self-dealing or conversion of property, the woeful lack of even the most rudimentary "paper trail" involving different types of assets lend credence to Plaintiff's position: The manner in which Plaintiff's retirement checks were handled, with four of six being returned but two cashed with no documentation as to their disposition; no records relating to the disposition of Plaintiff's Social Security checks; while Defendant argues, correctly, that a pre-trial order prohibited Plaintiff's possession of firearms, the ultimate disposition of those items of personal property are not adequately documented or explained; and the awkward and circuitous route Defendant purportedly used Plaintiff's checking account to purchase materials to remodel the home, by writing checks to his wife, Cory, who then cashed the checks. Finally, the trial court requested appellee's counsel to prepare a draft order to that effect for appellant's counsel to review. Subsequently, the trial court entered a final judgment in favor of appellee and made the following pertinent findings: Following this trial, and considering the evidence, oral and documentary, the stipulations of the parties and the arguments of the attorneys, the court now finds, determines and adjudges: 3. The power of attorney gave the defendant the right to act on plaintiff's behalf and in his stead in all matters pertaining [to] his personal business. The plaintiff specifically directed Brady to pay the insurance premium on the plaintiff's home and property; list the home for sale with REMAX for one hundred fifty thousand dollars ($150,000.00), and put all of plaintiff's personal property in POD containers. Other than paying the premium for the homeowner's insurance policy, defendant did not carry out plaintiff's verbal instructions. .... 5. That defendant, standing in his fiduciary relationship as plaintiff's attorney in fact, breached that relationship by acts and conduct that did not meet the requisite standards of fair dealing, good faith, honesty, and loyalty. That defendant's acts and actions as plaintiff's attorney in fact were contrary to the best interest of his principal. 6. That during plaintiff's detention in the Arkansas State Hospital and unknown to him, his son began writing checks on the plaintiff's checking account with First Federal Bank. That a substantial portion of these checks were not written to cover expenditures and items pertaining to plaintiff's personal business but to the contrary, they were written by him payable to and cashed by his wife, Cory Williamson. These checks are evidenced by the following: Check No. 1309, dated September 13, 2010, for the sum of $3,572.00;Check No. 1311, dated September 18, 2010, for the sum of $5,000.00;Check No. 1331, dated September 30, 2010, for the sum of $1,750.00;Check No. 1332, dated October 30, 2010, for the sum of $200.00;Check No. 1333, dated November 2, 2010, for the sum of $400.00;Check No. 1334, dated November 11, 2010, for the sum of $400 Total $11,322.00 7. That defendant caused all of the records relating to the plaintiff's checking account with First National Bank to be sent to his address ... [in Mississippi]. 8. That upon his discharge, on or about the 17th day of November 2010, from the Arkansas State Hospital, plaintiff discovered that defendant had been writing checks on his checking account and making them payable to his wife. Learning this plaintiff cancelled the Durable Power of Attorney and the right of defendant[ ] to act on his behalf. 9. Plaintiff learned defendant rented his home to a group of hunters for an undisclosed amount of money and kept these rent proceeds for himself. Defendant has failed to and has yet to account for these funds. 10. While plaintiff was incarcerated in the Searcy County Law Enforcement Center and in the Arkansas State Hospital, the defendant: 1). Converted plaintiff's retirement payments from Entergy, Inc., and had them forwarded to his home in Oxford, MS. The defendant collected six (6) of these retirement checks in the separate amount of $1,178.00 each, wrongfully cashed two (2) and kept the $2,356.00 for his personal use. 2). Converted $900.00 from plaintiff's gun safe and wrongfully kept it for his personal use. 3). Wrongfully took possession of all of the plaintiff's personal property, except one bed, a gun safe, and a few cooking utensils, and moved them all to his residence in Oxford, MS. 4). Wrongfully took possession and for his personal use, $11,382.00 of plaintiff's Social Security Benefits. 6). Wrongfully took possession of plaintiff's personal property consisting of (ammunition, pistols, shotguns and long guns) having a fair market value of $7,304.50, keeping and disposing same for his personal benefit. 7). The actual recovery cost for the furniture and household appliances from defendant wrongfully took from plaintiff is $1,186.96. 11. That plaintiff is granted judgment against the defendant, Brady Williamson, in the following amounts: a. Checks written to defendant's wife $11,322.00 b. Retirement Check proceeds 2,356.00 c. Cash from gun safe 900.00 d. Social Security benefits 11,382.00 e. Fire Arms 7,304.50 f. Costs of recovery 1,186.96 Total judgment $34,451.46 12. That in addition, plaintiff is granted judgment against the defendant for his court costs of $177.72 and his attorney fees of $8,398.95. 13. All premises considered plaintiff is granted a judgment against the defendant in the total sum costs, and attorney's fees, in the sum of $43,027.53, all for which levy, attachment, garnishment, and all other forms of collection shall attach and be available to plaintiff. This appeal followed. I. Motion to Dismiss Appellant, son, first argues that appellee, father, failed to make a prima facie case for either breach of fiduciary duty or conversion during his case-in-chief and that his motion to dismiss should have been granted. When a party moves for a directed verdict in a jury trial or dismissal in a bench trial, it is the duty of the trial court to consider whether the plaintiff's evidence, given its strongest probative force, presents a prima facie case. Follett v. Fitzsimmons , 103 Ark. App. 82, 286 S.W.3d 742 (2008). It is not proper for the court to weigh the facts at the time the plaintiff completes his case, and the motion should be denied if it is necessary to consider the weight of the testimony before determining whether the motion should be granted. Id. On appeal, we determine whether dismissal should have been granted by reviewing the evidence in the light most favorable to the party against whom the dismissal was sought, giving it its highest probative value and taking into account all reasonable inferences deducible from it. Id. A person holding a power of attorney has a fiduciary duty to the principal. Stokes v. Stokes , 2016 Ark. 182, 491 S.W.3d 113. Breach of fiduciary duty involves betrayal of a trust and benefit by the dominant party at the expense of one under his influence. Cole v. Laws , 349 Ark. 177, 76 S.W.3d 878 (2002). Regardless of the express terms of an agreement, a fiduciary may be held liable for conduct that does not meet the requisite standards of fair dealing, good faith, honesty, and loyalty. Id. Further, self-dealing by a fiduciary (without consent) is always a violation of the duty, even if innocent and unintentional. Agracat, Inc. v. AFS-NWA, LLC , 2012 Ark. App. 372, 2012 WL 1943334. Conversion is a common-law tort action for the wrongful possession or disposition of another's property. Hartness v. Nuckles , 2015 Ark. 444, 475 S.W.3d 558. To establish liability for the tort of conversion, a plaintiff must prove the defendant wrongfully committed a distinct act of dominion over the property of another, which is a denial of or is inconsistent with the owner's rights. Id. Where the defendant exercises control over the goods in exclusion or defiance of the owner's rights, it is a conversion, whether it is for defendant's own use or another's use. Id. It is undisputed that son was authorized to act on father's behalf through a durable power of attorney. However, father testified at trial that son breached his fiduciary duty when son took control of father's money, assets, and other property and converted it for his or his wife's personal use. After reviewing the evidence in the light most favorable to appellee father, father's testimony was sufficient to overcome a motion to dismiss, and we affirm on this point. II. Burden-Shifting Argument Appellant son next argues that the trial court impermissibly shifted the burden of proof to appellant. Son specifically argues that the trial court required him to rebut father's allegations rather than requiring father to prove that son did, in fact, breach his fiduciary duty. As support, son cites us to the trial court's letter opinion in which son alleges that the trial court's focus is on what son did not prove rather than on what father did prove. Upon review of the letter opinion, the statements made in the letter opinion do not indicate that the trial court shifted the burden to son. At no point does the trial court state that it was son's burden to establish that he did not breach his fiduciary duty. Rather, the trial court specifically found that appellee (father) had established a breach of fiduciary duty. In so doing, the trial court found that son's lack of "even the most rudimentary 'paper trail' involving different types of assets lend[ed] credence to [appellee's] position. " (Emphasis added.) Thus, appellant's argument is without merit, and we affirm on this point. III. Judgment Not Supported by the Weight of the Evidence Argument The trial court specifically awarded appellee father a judgment for damages for the six checks written to son's wife, two retirement checks, cash from the gun safe, social security benefits, value of the missing firearms, and costs to recover his property from Mississippi, totaling $34,451.46. Appellant argues that the judgment is not supported by the weight of the evidence. We agree, in part. Generally stated, our standard of review following a bench trial is whether the trial court's findings are clearly erroneous or clearly against the preponderance of the evidence. Bohannon v. Robinson , 2014 Ark. 458, 447 S.W.3d 585. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. Disputed facts and determinations of the credibility of witnesses are within the province of the fact-finder. Id. A. Firearm Award We cannot say that the trial court clearly erred in finding that appellant son breached his fiduciary duty when he took and converted father's firearms for his personal benefit. Father testified that he did not gift his property to son. Although son contradicted father's testimony and stated that father had gifted him the firearms, the trial court was permitted to resolve the conflicting testimony and determine the credibility of the witnesses. Therefore, we must affirm the trial court's award of the value of the missing firearms and affirm that portion of the judgment in the amount of $7,304.50. B. All Other Awards We cannot say the same for the remainder of the trial court's judgment. Appellee father gave appellant son a broad durable power of attorney that allowed him to act on father's behalf. This power allowed son to act for father's benefit. It was undisputed that son exercised his power while father was confined. However, the trial court concluded that appellant breached his fiduciary duty by failing to "meet the requisite standards of fair dealing, good faith, honest, and loyalty" and that he "converted" some of appellee's money and property. Based on these findings, the trial court awarded $11,322 for the checks written to appellant's wife, $2,356 for the retirement-check proceeds, $900 for the cash from the gun safe, $11,382 for the social security benefits, and $1,186.96 for the costs of recovering property from appellant's home. However, the crux of father's case is that son was self-dealing with father's property. Even if son did exercise control over some of father's assets, it is clear from the record, especially from the photographs and testimony of independent witnesses, that father benefited significantly from son's conduct. The cabin was in a condition of disrepair, and son used the power of attorney to clean, renovate, and remodel father's cabin. The trial court did not take these increases in value to the cabin into consideration when it awarded the judgment to the father herein. Because we are left with a definite and firm conviction that a mistake was made and because the remaining awards are interrelated, we must reverse and remand. The following are just two examples of errors that permeate the trial court's judgment that require reversal. First, even if we were to credit father's testimony, father did not dispute that the floors of the cabin were unfinished and that son had finished out the cabin. Son testified that he used father's funds to finish the cabin and provided some documentation to support his contention. While the trial court was not required to fully accept and credit son's testimony that he spent all the funds to improve father's cabin, we cannot conclude, as the trial court apparently did, that son spent none of the funds to improve the cabin with the evidence presented at trial. Pictures of a beautiful, fully finished and furnished cabin were introduced at trial, and father admitted that the cabin had been unfinished before his confinement. Thus, at the very least, some of father's disputed funds must have been expended for that purpose and did not constitute self-dealing or conversion as appellee alleged. As a second example, it is undisputed that father received $1,897 per month in social security benefits. Father testified that he failed to receive seven months of social security benefits after son directed the Social Security Administration to disburse father's benefits to son instead. Son disputed that allegation, and the trial court was permitted to credit father over son. That said, son produced bank statements from father's account at trial that showed that social security checks were deposited into father's account through September 2010. The trial court awarded father a total of six months of benefits; however, even crediting father's testimony, there are, at best, only four months of social security benefits remaining in dispute because father testified that he began receiving his benefits again in February 2011. Given these two examples alone, we must reverse and remand the trial court's judgment as clearly erroneous with the exception of the trial court's award for the value of the firearms. On remand, the trial court must redetermine, consistent with this opinion, whether appellee father sustained his burden of showing what portion, if any, of the disputed funds were specifically attributable to a breach of fiduciary duty for self-dealing or converted by appellant inconsistent with appellee's rights. IV. Amending the Complaint Appellant son additionally argues that the trial court erred by allowing recovery for social security benefits that were never included or alleged in appellee's complaint and that any award must be in error of law. Appellant correctly states that appellee did not seek recovery for any missing social security benefits in his complaint. However, we will not reverse a trial court's decision regarding the amendment of pleadings to conform to the evidence in the absence of a manifest abuse of discretion. Cross v. Cross , 2016 Ark. App. 327, 497 S.W.3d 712. Arkansas Rule of Civil Procedure 15(b) governs the amendment of pleadings to conform to the evidence: When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended in its discretion. The court may grant a continuance to enable the objecting party to meet such evidence. Ark. R. Civ. P. 15(b). Beginning with his opening statement, appellee father stated that he was seeking the recovery of missing social security benefits. Appellee further testified regarding that allegation in his case-in-chief. Appellant son later objected, and appellee moved to amend to conform to the proof. However, even when an objection is made that the issue was not included in the pleadings, the circuit court may allow an amendment at its discretion. Hope v. Hope , 333 Ark. 324, 969 S.W.2d 633 (1998). Here, the trial court took the matter under advisement, and a continuance was later granted, in which the trial court explicitly instructed that "either party can go back and find out what happened with those Social Security checks." When trial resumed, the parties presented further evidence regarding social security benefits and no further objections were made. Furthermore, the trial court ultimately awarded appellee a judgment for social security benefits, which we reverse and remand for the reasons set out above. Appellant notes on appeal that the trial court did not specifically grant appellee's motion to amend the pleadings to conform to the evidence. Although the court did not expressly say that it was granting the motion, it is clear that it did so. In Cross , a complaint was treated as amended, despite the lack of a ruling on a motion to amend to conform to the proof, where discussion between the trial court and counsel and the result of the case indicated that the amendment had occurred. See Cross, supra. That is what happened in the present case-the trial court granted the motion after a continuance was granted without expressly stating so, and appellant fails to show that the trial court manifestly abused its discretion on appeal. Thus, we affirm on this point. V. Attorney's Fees Lastly, appellant argues that the trial court erred in granting appellee attorney's fees. Because we reverse and remand the judgment in this case for the trial court to make further findings consistent with this opinion, we also reverse and remand the issue of attorney's fees and costs. Affirmed in part; reversed and remanded in part. Klappenbach and Glover, JJ., agree. Because this case involved a bench trial, appellant's motion was properly a motion to dismiss, not a motion for directed verdict. Arkansas Rule of Civil Procedure 50(a) (2017) provides that "[i]n nonjury cases a party may challenge the sufficiency of the evidence at the conclusion of the opponent's evidence by moving either orally or in writing to dismiss the opposing party's claim for relief." Nonetheless, the trial court must use the same legal standard in evaluating a motion to dismiss as it would in evaluating a motion for a directed verdict. The court must decide "whether, if it were a jury trial, the evidence would be sufficient to present to the jury." Woodall v. Chuck Dory Auto Sales, Inc. , 347 Ark. 260, 264, 61 S.W.3d 835, 838 (2001). If the nonmoving party has made a prima facie case on its claim or counter-claim, then the issue must be resolved by the finder of fact. Swink v. Giffin , 333 Ark. 400, 402, 970 S.W.2d 207, 208 (1998). The judge who presided over the trial left office on December 31, and a new appointed judge signed the order and judgment.

JOHN D. KEMP, Chief Justice This is an appeal from an order entered by the circuit court denying appellant Abraham Grant's pro se motion for relief from judgment filed pursuant to Rule 60 of the Arkansas Rules of Civil Procedure (2017). Grant's Rule 60 motion sought relief from the circuit court's order that had denied his pro se petition for writ of habeas corpus wherein he had alleged that the judgment of conviction in his criminal case was illegal on its face because he had been initially charged with first-degree murder but was convicted of capital murder. Grant did not appeal the order entered by the circuit court that denied his pro se petition for a writ of habeas corpus. As stated, this appeal is from the denial of his motion under Rule 60 only. After the record on appeal was lodged here, Grant filed a second pro se motion titled pro se motion for Arkansas Rule 60 (b) relief. In the body of his motion he references Rule 60(c) as a basis for this court to vacate the circuit court's ruling. In his motion, Grant asks this court to address the merits of his habeas petition despite the fact that he failed to file a notice of appeal from the order denying the habeas petition. Grant also subsequently filed a motion for default judgment pursuant to Arkansas Rule of Civil Procedure 55 (2017), wherein Grant alleges that he is entitled to a default judgment due to the State's failure to respond to his Rule 60 motion. An appeal from an order that denied a petition for postconviction relief will not be permitted to go forward where it is clear that the appellant could not prevail. See Brown v. State , 2017 Ark. 232, 522 S.W.3d 791 (citing Justus v. State , 2012 Ark. 91, 2012 WL 664259 ). Rule 60(b) provides, in pertinent part, that the court may at any time correct clerical mistakes in judgments, decrees, or orders arising from oversight or omission. Because neither Rule 60(b) nor Rule 60(c) are applicable as an avenue for relief from a judgment of conviction or from an order that denies a petition for writ of habeas corpus or other request for postconviction relief, we dismiss the appeal, which renders the motion moot. Ibsen v.Plegge, 341 Ark. 225, 15 S.W.3d 686 (2000) (we know of no case in which the court has applied Rule 60 of the Arkansas Rules of Civil Procedure to a criminal proceeding); see also McCuen v. State , 338 Ark. 631, 999 S.W.2d 682 (1999) ; Baker v. Norris , 369 Ark. 405, n.2, 255 S.W.3d 466 n.2 (2007) (The Arkansas Rules of Civil Procedure have never been applied to postconviction proceedings nor do they apply to a postconviction habeas proceeding.). Grant has cited no authority and provided no convincing argument to allow the application of Rule 60(b) or 60(c) as a means to set aside an adverse ruling with respect to a habeas petition, and we do not consider arguments that are not well taken. Gay v. State , 2016 Ark. 433, 506 S.W.3d 851. Grant failed to perfect an appeal from the denial of his underlying habeas petition, and for the reasons stated above, Grant is not entitled to postconviction relief through the application of Rule 60 of the Arkansas Rules of Civil Procedure. Finally, Grant has likewise provided no authority or convincing argument for his proposition that he is entitled to a default judgment pursuant to Rule 55 of the Arkansas Rules of Civil Procedure and, as stated above, we do not consider arguments that are not well taken. Id. Appeal dismissed; motions moot. Hart, J., dissents. Josephine Linker Hart, Justice, dissenting. Because I do not agree that "appeal dismissed; motions moot" is the proper disposition of this case, I must dissent from the majority opinion. Grant did not file a notice of appeal from the trial court's denial of his habeas petition. Instead, Grant filed a notice of appeal from the trial court's order denying his Rule 60(c) motion, lodged the record with this court, and filed a document titled "Motion-Arkansas- Rule 60" that he plainly intended to serve as his argument on appeal, all in timely fashion. I see no reason why this court should not simply address Grant's arguments on the merits, and then "affirm" or "reverse" accordingly. Furthermore, I do not understand why this court is declaring "moot" Grant's motion for default judgment; said motion was filed in the circuit court, not the appellate court, and we lack jurisdiction to address it. I dissent. In 2003, Grant was found guilty by a jury of capital murder and first-degree battery. An aggregate sentence of life without parole was imposed. This court affirmed. Grant v. State , 357 Ark. 91, 161 S.W.3d 785 (2004). Grant's previous claim for postconviction relief that he was arrested for first-degree murder and subsequently charged with capital murder has been rejected by this court as a ground for coram nobis relief. Grant v. State , 2014 Ark. 466, 2014 WL 5784447 (per curiam). In denying his petition for coram nobis relief, this court noted that the issue had been previously addressed and rejected in an appeal from the denial of a petition filed by Grant pursuant to Arkansas Code Annotated section 16-90-111 (Repl. 2003). See Grant v. State , CR-07-784, slip. op., 2008 WL 616056 (Ark. Feb. 7, 2008).

PHILLIP T. WHITEAKER, Judge Brett Sills appeals the Craighead County Circuit Court order terminating his parental rights to his son B.S. He argues that there was insufficient evidence to support the grounds for termination and the circuit court's best-interest finding. He also argues that he was denied the most basic elements of due-process when the Arkansas Department of Human Services (DHS) failed to keep him informed of the case progression or to secure his participation in the reunification process. While the due-process arguments raised by Stills gave us pause, we affirm the termination under the facts and arguments as presented to us in this case. I. Background Brett Sills and Raylin Cox are the parents of B.S., who was born on February 5, 2016. B.S. tested positive for THC at the time of his birth. DHS removed B.S. from the custody of Cox. Sills was incarcerated at the time on a "probation violation." At the probable-cause hearing, Sills was present but was not represented by counsel. He was declared the biological and legal father. The court noted that Sills was incarcerated on a "parole violation" and was due to serve a 15-month sentence. Despite the incarceration, the court ordered the standard services (cooperating with the Department; remaining drug free; watching "The Clock is Ticking" video, participating in parenting classes; obtaining and maintaining stable housing and employment, etc.). At the adjudication hearing, Sills was again present and still unrepresented. The court entered an adjudication order finding that Sills had been served by certified mail. The court also found B.S. to be dependent-neglected due to parental unfitness and the drug use of the mother and that Sills had not contributed to the dependency-neglect of the child. However, the court further found Sills was not a fit parent for purposes of custody and visitation. The court continued its previous orders and specifically ordered Sills to resolve his criminal issues and to complete the case plan and court orders before placement or visitation would be provided. Subsequent to adjudication, the court conducted two review hearings. Sills was not present at either hearing and was not represented by counsel. After each hearing, the court found that he had not complied with the case plan. The court also held a permanency-planning hearing (PPH). Once again Sills was not present or represented by counsel. After the hearing, the court changed the goal of the case to adoption, and an attorney was then appointed to represent Sills. Once again, the court found that Sills had not participated in the case plan or complied with its orders. DHS filed a petition to terminate the parental rights of both Cox and Sills. As to Sills, DHS alleged that Sills had abandoned B.S. ( Ark. Code Ann. § 9-27-341(b)(3)(B)(iv) (Supp. 2017)); that there were subsequent other factors ( Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a) ); and that Sills was sentenced in a criminal proceeding for a period of time that would constitute a substantial period of the child's life ( Ark. Code Ann. § 9-27-341(b)(3)(B)(viii) ). As for the last statutory ground, DHS alleged that Sills had been incarcerated in the Arkansas Department of Correction since February 18, 2016, following the revocation of probation related to a conviction for robbery. DHS further stated that he was not eligible for release until October 2017 at the earliest. The court conducted a hearing on the petition to terminate Sills's parental rights on May 12, 2017. Sills was present for the first time since adjudication and this time was represented by counsel. When DHS attempted to introduce the prior orders of the court as exhibits, Sills's counsel objected to the introduction of the two review-hearing orders and the PPH order on the following basis: Sills had not been transported to court or allowed to participate by telephone; Sills had not been represented by counsel; and Sills was never sent a copy of the orders entered thereafter. The court admitted the evidence over counsel's objection. A summary of the evidence and testimony before the court is necessary to understand and address the issues Sills raises on appeal. Sills was the first witness called by DHS. He testified that he had been incarcerated on the day B.S. was born and was not responsible for the child's removal. He continued to be incarcerated in the Arkansas Department of Correction on a probation violation (failure to pay fines), he had been incarcerated for 17 months, but he was set to be released soon. He testified that his expected release date was August 1 but that he fully anticipated to be released mid-June. He stated that he is on parole until January 2021. He testified that once he is released from custody, he intends to live with his mother and work at Anchor Packaging. Regarding his participation in the dependency-neglect process, he stated that he attended one hearing telephonically and one in person. He bemoaned the fact that he was not appointed an attorney until one year into the case. He stated that DHS knew that he was incarcerated but failed to communicate with him and that he did not know who to contact at DHS. He stated he never received a copy of the case plan and only received a copy of the petition from Cox's attorney. Once he received the petition to terminate, he wrote letters advising DHS that he wanted to come to court and participate in the case. He also indicated that his mother and grandmother were interested in being a placement for the child but that DHS would not give them any information when they called. In fact, he stated that no one from DHS had contacted his family to see if they might be interested as a possible placement for B.S. As for services, he stated that he had completed anger- and stress-management classes and had completed a class on communication skills and thinking errors. He stated that DHS never sent him a copy of "The Clock is Ticking" video and denied having the ability to watch it on YouTube. He admitted he had never seen the child because of his incarceration, but he insisted that he had not abandoned the child. He complained that DHS never made arrangements to have the child brought to him and that he never wrote to the child because the child is too young to read. In addition to Sills, the court heard testimony from Precious Hale, a family service worker with Craighead County DCFS, and Jessica Cox, the foster mother. Hale testified concerning the relationship between DHS and Sills. She admitted she had not had any contact with Sills and had never received any telephone calls or emails from him. She did acknowledge receiving a letter from Sills dated March 16, 2017, stating he did not want his parental rights terminated. She stated that she knew Sills was incarcerated, that no services had been provided to him by DHS, and that no attempt had been made to transport the child to visit him. She also admitted that she never sent him a copy of the case plan. She testified that she had no contact with any of Sills's family members regarding placement of the child. In fact, she admitted there was nothing in the CHRIS database about him and that he was not even listed as a client. She further admitted that, based on all this, she was unsure if DHS's petition should be granted. Despite this uncertainty, Hale stated that the case was approximately 15 months old, and that she believed the child had a right to permanency after that amount of time. She opined that the child could not be safely placed in Sills's home anytime soon, even upon his release. She stated that once he was released, he would have to complete all the standard services and that it could take as long as twelve months or more for him to comply. She testified that B.S. is an adoptable child and that there is nothing in his makeup that would hinder any sort of an adoption. In fact, the foster family had indicated an interest in adopting the child. Jessica Cox, the foster mother, confirmed that B.S. had been in her custody since shortly after he had been born-15 months. She testified that she was willing to adopt him if he were available for adoption. She stated that she believed the child would be harmed-or in her words "devastated"-if he was taken from her and placed with Sills because the child had bonded with her. After the termination hearing, the circuit court granted the petition to terminate, concluding that termination was in the child's best interest. The court found only one of the grounds for termination alleged in the petition had been proved: that Sills had been sentenced in a criminal proceeding for a period of time that would constitute a substantial period of the child's life ( Ark. Code Ann. § 9-27-341(b)(3)(B)(viii) ). Sills now appeals the order of termination. II. Standard of Review We review termination-of-parental-rights cases de novo but will not reverse the circuit court's ruling unless its findings are clearly erroneous. Dade v. Ark. Dep't of Human Servs. , 2016 Ark. App. 443, 503 S.W.3d 96. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. In determining whether a finding is clearly erroneous, we have noted that in matters involving the welfare of young children, we will give great weight to the circuit court's personal observations. Jackson v. Ark. Dep't of Human Servs. , 2016 Ark. App. 440, 503 S.W.3d 122. The termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Fox v. Ark. Dep't of Human Servs. , 2014 Ark. App. 666, 448 S.W.3d 735. As a result, there is a heavy burden placed on the party seeking to terminate the relationship. Id. The termination of parental rights is a two-step process that requires the circuit court to find that the parent is unfit and that termination is in the best interest of the child. T.J. v. Ark. Dep't of Human Servs. , 329 Ark. 243, 947 S.W.2d 761 (1997) ; Smith v. Ark. Dep't of Human Servs. , 2013 Ark. App. 753, 431 S.W.3d 364. The first step requires proof of one or more of the statutory grounds for termination. Ark. Code Ann. § 9-27-341(b)(3)(B). The second step requires consideration of whether the termination of parental rights is in the child's best interest. Ark. Code Ann. § 9-27-341(b)(3)(A). III. Grounds for Termination The circuit court terminated Sills's parental rights under the ground that Sills had been sentenced in a criminal proceeding for a period of time that would constitute a substantial period of the child's life ( Ark. Code Ann. § 9-27-341(b)(3)(B)(viii) ). Sills argues that there was insufficient evidence to support the ground for termination because DHS failed to introduce any evidence of his sentence. He contends that the only evidence presented concerning his sentence came from his testimony. Sills takes the position that his testimony proves only that he was incarcerated on a probation violation for nonpayment of fines; was sentenced to 15 months; and was set to be released within the month. He argues that this evidence is insufficient to prove the ground alleged. Sills is correct that the only evidence concerning his sentence came from his testimony. DHS did not introduce Sills's sentencing order detailing the length of his sentence at the termination hearing, which is the better practice. However, we have previously held that other evidence of a parent's sentencing is acceptable. See Edwards v. Ark. Dep't of Human Servs. , 2016 Ark. App. 37, at 11, 480 S.W.3d 215, 221 (evidence of length of incarceration found in a continuance motion filed by father). Here, the court had proper evidence of the length of sentence in the form of Sills's own testimony. He testified that he was sentenced to 15 months on a probation revocation. He further testified that his parole was set to end January 1, 2021-in another three and a half years. The evidence further showed that he had been incarcerated at the time of the child's birth and was still incarcerated at the time of the termination hearing-over fifteen months. A court may terminate parental rights if the parent is sentenced to a criminal proceeding for a period of time that would constitute a substantial period of the juvenile's life. It is the prison sentence itself, not the potential release date, that determines whether this statutory ground is satisfied. Here, Sills was sentenced to at least five years' imprisonment (based on his sentence of revocation and his parole end date). We find this is a substantial period of time for a child less than two years of age. See Moses v. Ark. Dep't of Human Servs. , 2014 Ark. App. 466, 441 S.W.3d 54 (holding that a five-year sentence was a substantial period of the children's lives when they were less than one year old and less than one month old). Sills also argues that the circuit court erred in terminating his rights under this ground because DHS failed to provide services to him and completely ignored him until time for termination in violation of his due-process rights. His arguments fail. The only requirement under this statutory ground is that Sills be sentenced in a criminal proceeding for a period that would constitute a substantial period of B.S.'s life. Ark. Code Ann. § 9-27-341(b)(3)(B)(vii). Under the incarceration ground, DHS does not have to provide services to a parent while he or she is in prison as a prerequisite to termination or to contemplate what it will do when the parent is released. Moses , supra. As a result, whether DHS provided services to Sills is not relevant to proving the statutory ground for termination. See Woodward v. Ark. Dep't of Human Servs. , 2017 Ark. App. 91, at 6, 513 S.W.3d 284, 288. Likewise, DHS's failure to provide services to Sills is also irrelevant for purposes of determining whether there was sufficient evidence to sustain a finding on this statutory ground. The effect, if any, that a violation of his due-process rights would have on the eventual termination is discussed more fully below. IV. Best Interest Determination Next, Sills argues that the circuit court erred in finding that it was in the child's best interest to terminate his parental rights. To terminate parental rights, a circuit court must find by clear and convincing evidence that doing so is in the best interest of the juvenile, while considering (1) the likelihood that the juvenile will be adopted if the termination petition is granted and (2) the potential harm, specifically addressing the effect on the health and safety of the child, caused by returning the child to the custody of the parent. Hamman v. Ark. Dep't of Human Servs. , 2014 Ark. App. 295, 435 S.W.3d 495. The potential-harm inquiry must be viewed in a forward-looking manner and in broad terms; there is no requirement that actual harm would result or that the circuit court identify the potential harm. Knuckles v. Ark. Dep't of Human Servs. , 2015 Ark. App. 463, 469 S.W.3d 377. There is no requirement that every factor considered be established by clear and convincing evidence; instead, after considering all factors, the evidence must be clear and convincing that termination is in the child's best interest. Hamman , supra. Here, Sills concedes that B.S. is adoptable; he challenges only the court's finding of potential harm. He claims that the only evidence of potential harm presented at the hearing was his inability to assume custody because of his incarceration. He notes that there was no evidence that he had ever harmed the child and that there was evidence that his relatives were willing to care for the child until he was released. He also notes that the caseworker was unable to estimate how long it would take for Sills to prove that he was able to reunify with the child. However, the court had evidence that B.S. had already been in DHS's custody his entire life and would be required to linger in DHS custody until Sills is released from jail or perhaps longer to allow Sills the opportunity to prove that he has a stable home and stable employment. We have held that "this kind of wait-and-see is the definition of the instability that the termination statute is intended to protect children from." See Hamman , 2014 Ark. App. 295, at 11, 435 S.W.3d at 502. Thus, there was no error in the circuit court's finding that it was in the child's best interest to terminate Sills's parental rights. V. Due Process Finally, Sills argues that it was error for the circuit court to proceed with the termination petition because DHS completely abrogated its duty to provide him with copies of the case plan that he was ordered to follow, the court orders, or any of the pleadings in the case. In fact, he argues, DHS failed to permit him to have any meaningful participation in the case, thereby depriving him of due process. As stated earlier, this argument gave us pause because DHS did almost nothing to engage Sills in the reunification process. We have long held that few consequences of judicial action are so grave as the severance of natural family ties. See Osborne v. Ark. Dep't Human Servs. , 98 Ark. App. 129, 252 S.W.3d 138 (2007). In Tuck v. Arkansas Department of Human Services , 103 Ark. App. 263, 266-67, 288 S.W.3d 665, 667-68 (2008), we held, Once a child has been adjudicated dependent-neglected, there is a presumption that DHS will provide services to preserve and strengthen the family unit. Benedict, supra. A parent's right to the care and control of his or her child is a fundamental liberty, and termination of parental rights is an extreme remedy in derogation of those rights. See Jones v. Ark. Dep't of Human Servs. , 361 Ark. 164, 205 S.W.3d 778 (2005). This fundamental liberty interest does not evaporate simply because the mother and father have not been model parents. See Osborne , supra. ... If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting State intervention into ongoing family affairs. Id. Accordingly, when the State moves to destroy weakened familial bonds, it must provide parents with fundamentally fair procedures. See id. Our Juvenile Code requires a dependency-neglect petition to set forth the names of the juvenile's parents and putative parents and designate them as defendants. Ark. Code Ann. §§ 9-27-311(a)(2), (a)(6), and (c) (Repl. 2008). It also provides that all adult defendants shall be served with a copy of the petition and either a hearing notice or an order to appear, as provided in the Arkansas Rules of Civil Procedure. Ark. Code Ann. § 9-27-312 (Repl. 2008). These elemental protections serve to identify the juvenile and his parents, place them within the system, and facilitate the provision of services in hopes of preserving the family. While we continue to uphold the principles set forth in Tuck , we find the facts presented in this record are distinguishable from Tuck . In Tuck , the parent was not made a party and had no right to participate before the termination. Here, Sills was named as a party, was made aware of the DHS action, had the right to participate in the proceedings, and did participate in the first two hearings. Despite knowing of the open juvenile case, he failed to stay apprised of the progress or inquire into what was necessary to maintain his parental rights. DHS informed the court that Sills took no action to keep advised, such as phone calls, emails or letters, until he received the letter addressing the potential of termination. While Sills told the court that he did not know who to contact at DHS, this was a matter for the court's credibility determination. Ultimately, he was appointed parent counsel and appeared at the termination hearing with the benefit of counsel. Consequently, we are not convinced that Sills was denied "fundamentally fair procedures" as discussed in Tuck . Nonetheless, we take this opportunity to remind DHS and the ad litem of the magnitude and importance of the rights involved in termination cases. DHS has the duty to ensure that both parents are provided the resources necessary to promote positive, nurturing parent-child relationships and that they are given ample opportunity to reunite with their children before the natural, familial bonds are severed and a forced dissolution of their parental rights occurs. Sills also argues that he was hampered in defending his rights in the proceeding by not having an attorney to represent him. Admittedly, Sills was not represented by counsel until the petition to terminate had been filed. However, the court did not commit error in this regard. Under the juvenile code, Sills had a right to be represented by counsel at all stages of the proceedings. Ark. Code Ann. § 9-27-316(h)(1)(A). However, the court has a statutory duty to appoint counsel for parents in dependency-neglect proceedings only if the parent is indigent and is also the parent or custodian from whom custody was removed. Ark. Code Ann. § 9-27-316(h)(1)(B). See also Chaffin v. Ark. Dep't of Human Servs. , 2015 Ark. App. 522, 471 S.W.3d 251. Here, Sills was not a parent "from whom custody was removed," and he was not entitled to appointed counsel under the statute before the process moved to termination of his rights. Ark. Code Ann. § 9-27-316(h)(1)(D). Here, the court appointed counsel for Sills almost three months before the hearing on the petition to terminate parental rights. Even if the court had erred in this regard, there is authority for the proposition that any "failure" to appoint counsel at early stages of the dependency-neglect process is harmless if the parent has an attorney before the termination hearing. See Jefferson v. Ark. Dep't of Human Servs. , 356 Ark. 647, 158 S.W.3d 129 (2004) ; Briscoe v. State , 323 Ark. 4, 912 S.W.2d 425 (1996). Next, Sills argues that DHS never made any effort to provide him with any services and never even gave him the case plan; thus, DHS denied him due process. As discussed earlier under the incarceration ground, DHS is not required to provide services to a parent while he or she is in prison as a prerequisite to termination or to contemplate what it will do when the parent is released. Moses v. Ark. Dep't of Human Servs. , 2014 Ark. App. 466, 441 S.W.3d 54. Because DHS did not have to provide services pursuant to the ground on which it sought to terminate Sills's parental rights, his argument fails. In addition, it does not appear that Sills made this particular argument below. Granted, Sills did complain to the court about DHS's failure to fully include him in the proceedings, but he did so only in a way so as to excuse his failure to complete the case plan and to prevent the orders documenting his noncompliance from being admitted into evidence. He did not specifically make the due-process argument he makes on appeal. A party cannot change his or her argument on appeal and is bound by the scope of his or her arguments made to the circuit court. Andrews v. Ark. Dep't of Human Servs. , 2012 Ark. App. 22, at 9, 388 S.W.3d 63, 68 (citing Holiday Inn Franchising, Inc. v. Hotel Assocs., Inc. , 2011 Ark. App. 147, 382 S.W.3d 6 ). Even in termination cases, we will not address arguments raised for the first time on appeal. Id. (citing Lyons v. Ark. Dep't of Human Servs. , 2009 Ark. App. 271 ). Affirmed. Klappenbach and Vaught, JJ., agree. This information was provided to the court in the affidavit of facts supporting the petition for emergency custody and dependency-neglect. This information was provided to the court in the affidavit of facts supporting the petition for emergency custody and dependency-neglect. The mother's parental rights were terminated by separate order dated April 21, 2017, and she is not a party to this appeal. While Sills's expected release date was August 2017, it appears that he was released in June 2017 as his address in the amended notice of appeal changed from a Department of Corrections address to a street address in Jonesboro. Here, Sills was incarcerated and unable to attend scheduled hearings without the benefit of a transport order. Since Sills did not have counsel prior to the petition to terminate, the task of securing this order most naturally would fall on counsel for DHS.

For his remaining point of appeal, Harrell contends the State did not properly authenticate the fingerprint evidence and because of that failure, the trial court abused its discretion in allowing the evidence at trial. We disagree. Harrell argues that the State used AFIS prints in order to identify Harrell and had nobody to testify regarding the taking of the AFIS prints; that Ms. Kinkaid testified about prints she herself did not take; that she could not authenticate the evidence about which she testified; and that the trial court abused its discretion in admitting the fingerprints into evidence. The decision to admit or exclude evidence is within the sound discretion of the trial court, and that decision will not be reversed absent a manifest abuse of discretion. Settles v. State , 2011 Ark. App. 241, 2011 WL 1166851. An abuse of discretion is a high threshold; it does not simply require error in the trial court's decision, but requires that the trial court acted improvidently, thoughtlessly, or without due consideration. Id. We find no abuse of discretion by the trial court in allowing the challenged fingerprint evidence. We begin our discussion of this issue by noting that, contrary to Harrell's argument, Sergeant Ronald McDermott testified he took the fingerprints that were stored in AFIS and used to identify Harrell; he was specifically able to identify the AFIS prints as the ones he had taken from Harrell because they contained information identifying both Harrell and him; the fingerprint evidence taken from Birmingham's truck was subsequently compared to the AFIS prints; and the prints were identified as belonging to Harrell. In addition, Rachel Carver processed Birmingham's truck and took the prints that were then examined by Kinkaid. Kinkaid analyzed the truck prints and compared them to Harrell's AFIS prints, and she confirmed they were the same. The trial court heard extensive testimony from Kinkaid about the process of fingerprint identification and the reliability of the AFIS; Kinkaid was knowledgeable regarding the process and procedures of both the Little Rock Police Department (LRPD) and the Arkansas State Crime Lab; after hearing her testimony, the trial court concluded the fingerprint identification evidence could be presented to the jury because Kinkaid had followed standard operating procedures, and any issue about whether the AFIS print was, in fact, Harrell's print card, was one that could be developed and addressed in cross-examination. Rule 901(a) of the Arkansas Rules of Evidence provides: The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. Here, the trial court took great care to question the witnesses and allow arguments from the State and defense counsel. There was no basis upon which to conclude that the challenged fingerprint evidence was anything other than what its proponents claimed it to be. We find no abuse of discretion by the trial court in allowing this fingerprint evidence. Affirmed. Virden and Brown, JJ., agree.

BART F. VIRDEN, Judge A Miller County jury convicted appellant James Ernest Duff of being a felon in possession of a firearm. The jury sentenced him as a habitual offender to twelve years' imprisonment, and he was ordered to pay a $10,000 fine. He raises two arguments on appeal. Duff argues that the trial court erred (1) in admitting a firearm into evidence over his chain-of-custody objection and (2) in denying his motion to suppress evidence. We affirm. I. Summary of Trial Testimony On May 22, 2016, Officer William Daugherty with the Texarkana Arkansas Police Department stopped a vehicle with a defective headlight. Officer Daugherty asked the driver whether there were any weapons or anything illegal inside the vehicle, to which Duff said that he had some knives in a bag. Officer Daugherty asked to search the vehicle, and Duff consented. Before the search began, Duff told Officer Daugherty that there was also a gun inside the bag. Officer Daugherty testified that Duff had told him that the .380-caliber semi-automatic pistol did not belong to him, that it had been in the borrowed vehicle's glove compartment, and that he had unloaded it and placed it in his bag. II. Discussion A. Chain of Custody The purpose of establishing chain of custody is to prevent the introduction of evidence that has been tampered with or is not authentic. Laswell v. State , 2012 Ark. 201, 404 S.W.3d 818. The trial court must be satisfied within a reasonable probability that the evidence has not been tampered with, but it is not necessary for the State to eliminate every possibility of tampering. Id. Minor uncertainties in the proof of chain of custody are matters to be argued by counsel and weighed by the jury, but they do not render the evidence inadmissible as a matter of law. Id. Absent evidence of tampering, the trial court's ruling will not be disturbed unless it was a clear abuse of discretion. Id. Officer Daugherty testified that he recognized the firearm that the State was attempting to introduce into evidence as the one he had removed from Duff's bag inside the vehicle that Duff had been driving that night. Officer Daugherty stated that he had placed the firearm inside a package at the crime scene and logged it into evidence in the department's property room. Officer Daugherty conceded that the firearm was not in the original packaging that he had placed it in at the scene but stated that it was "a pretty identifiable firearm." He further testified that he had written the firearm's serial number in his report. Defense counsel objected to introduction of the firearm, arguing that there had been "a major break in the chain of custody" because the original packaging from the scene was missing. The trial court overruled the objection, noting that a weapon with a serial number on it is a unique item, and admitted the firearm into evidence. Officer Chase Dixon, who had assisted Officer Daugherty at the scene, also identified State's exhibit 2 as the firearm that had been taken from Duff's bag. Detective Romeo Cross with the Texarkana Arkansas Police Department testified that exhibit 2 looked like the firearm that he had test fired the day before trial. He said that he had gone to the property room, checked out the firearm on the property log, fired it at the firing range, and returned it to the property room. The property log was introduced into evidence, and Detective Cross identified his signature showing that he had checked out the firearm and returned it the day before trial and that he had checked out the firearm to bring to court on the day of trial. Detective Cross stated that, when evidence is checked out and taken somewhere, it should be signed out. Defense counsel produced a photocopy of the firearm and pointed out that there was no notation on the property log showing that it had been removed from the property room. On appeal, Duff argues that the trial court erred in admitting the firearm into evidence over his chain-of-custody objection. He contends that the chain of custody was broken because the firearm's original packaging was missing and, although the firearm had been photocopied, there was no notation in the property log as to who had opened the package to make the photocopy and when that was done. Because this piece of evidence had a serial number that could be tracked from the crime scene to the property room and then to the courtroom, we hold that the trial court did not clearly abuse its discretion in concluding that there was a reasonable probability that the evidence had not been tampered with or otherwise compromised. Proof of the chain of custody for interchangeable items like drugs or blood needs to be more conclusive. Laswell, supra. The firearm here was not an interchangeable item because its serial number recorded at the scene matched the serial number of the firearm introduced at trial. See Harris v. State , 72 Ark. App. 227, 35 S.W.3d 819 (2000) (holding that there was no error in introduction of the firearm into evidence when an officer testified that he had seen another officer write down its serial number and log it into evidence at the property room, and that officer had retrieved the firearm from the property room under that same number and brought it to court); Meador v. State , 10 Ark. App. 325, 664 S.W.2d 878 (1984) (holding that there was no error in admitting a firearm into evidence because its serial number had been written on a receipt and two witnesses identified the firearm). B. Motion to Suppress In reviewing the trial court's denial of a motion to suppress, the appellate court makes an independent examination based on the totality of the circumstances and will reverse only if the trial court's ruling was clearly against the preponderance of the evidence. Burris v. State , 330 Ark. 66, 954 S.W.2d 209 (1997). The determination of a preponderance of the evidence turns on questions of credibility and weight to be given to testimony, and the appellate courts will defer to the trial court's superior position in that regard. Pokatilov v. State , 2017 Ark. 264, 526 S.W.3d 849. At the suppression hearing, Daugherty testified that on May 22, 2016, he had observed a vehicle with a defective headlight and initiated a stop. Officer Daugherty said that he had gone to the front of the vehicle to confirm that one headlight was defective. Officer Daugherty stated that, although he had written in his report that the driver's side headlight was defective, it was actually the passenger's side. The dash-camera video from Officer Daugherty's patrol car was played. Defense counsel argued that Duff's motion to suppress should be granted because the video of the traffic stop showed that the vehicle's lights appeared to be working properly. The trial court denied the motion, finding that the officer had probable cause to initiate the stop. Duff argues on appeal that Officer Daugherty was uncertain of the exact cause for stopping the vehicle given that he had to check the front of the vehicle. Duff also points out the discrepancy in the officer's report as to which headlight was defective. He states that the evidence from the dash-camera video, which showed the oncoming vehicle, was inconclusive as to whether the vehicle had a defective headlight. Relying on Travis v. State , 331 Ark. 7, 959 S.W.2d 32 (1998), Duff argues that this stop was unlawful and that the evidence seized should have been suppressed as "fruit of the poisonous tree." In Travis , the police officer stopped Travis because his Texas license plate did not display expiration stickers. The supreme court held that the officer had probable cause to stop Travis's vehicle, even though it was later determined that Texas does not require drivers to display expiration stickers, as Arkansas does. The supreme court did not suppress the evidence in Travis . This case does not support Duff's argument. A police officer may stop and detain a motorist when the officer has probable cause to believe that a traffic violation has occurred. Burris, supra. Probable cause exists when the facts and circumstances within an officer's knowledge are sufficient to permit a person of reasonable caution to believe that an offense has been committed by the person suspected. Id. In assessing the existence of probable cause, our review is liberal rather than strict. Id. Whether the defendant is actually guilty of the traffic violation is for a jury or a court to decide, and not an officer at the scene. Id. Arkansas Code Annotated section 27-36-101 (Repl. 2014) provides that it is a misdemeanor for any person to drive any vehicle that "is not at all times equipped with lamps in proper condition and adjustment." Also, section 27-36-207(a) provides that at least two lighted lamps shall be displayed, one on each side at the front of every motor vehicle. Again, we defer to the trial court's determinations on credibility and weight of the evidence. Officer Daugherty testified that he stopped the vehicle Duff was driving because it had a defective headlight. The fact that his report was wrong about which headlight was defective goes to the weight of the evidence. Because the law requires two working headlights, there was probable cause for this traffic stop. We hold that the trial court's denial of Duff's motion to suppress was not clearly against the preponderance of the evidence. Affirmed. Klappenbach and Murphy, JJ., agree.

Wynne, J., concurs. Hart, J., concurs in part; dissents in part.

RITA W. GRUBER, Chief Judge A jury found appellant, Aaron Crift, guilty of first-degree murder in connection with the shooting death of James Murray. He was sentenced as a habitual offender and received 50 years for the murder and 15 years as an enhancement for the use of a firearm in the commission of the offense. On appeal, appellant argues that the circuit court erred by declining to instruct the jury on manslaughter as a lesser-included offense of capital murder and first-degree murder. We find no error and affirm. On June 22, 2016, Sgt. Rowland Dorman of the Pine Bluff Police Department responded to a shooting call at 315 West Fifteenth St. He found James Murray slumped in a corner on the front porch with a gunshot wound to his forehead. Sergeant Dorman learned that the shooter was a black male who left the scene in a white Jeep with a black male and a white female. Sergeant Dorman immediately broadcasted the information over the radio. Det. Mike Sweeney was on his way to the scene when he heard the broadcast and spotted a vehicle matching the description approximately ten blocks from 315 West Fifteenth St. As he approached the vehicle, he saw a black male wearing a yellow shirt flee from the driver's side. He made contact with Deonna Logue, the female passenger in the backseat. Detective Sweeney and other detectives who arrived on the scene set up a perimeter around a house because of the presence of the vehicle matching the description of the car that was fleeing the scene of the shooting, and the male wearing the yellow shirt had exited the vehicle and had run inside the home. The man was later identified as Arthur "Jay" Paylor. When Detective Sweeney approached the home, Paylor and another man, Travis Roberts, came outside. Paylor acknowledged that the white Jeep belonged to him, and both men said that no one else was in the home. Debra Scott lived at 1516 South Walnut St. She testified that on June 22, she saw appellant and a white female sitting on the porch at 1509 South Walnut St. and heard them talking about clothes. She heard appellant say in a loud tone, "He['s] going to give me your stuff." Scott went inside and soon after heard a loud pop. When she opened the door, she saw appellant running from around the corner with a gun and heard him say to the white female on the porch, "I just shot this mother* * * * * *." She then saw appellant and the white female run into the house. A short time later, she saw appellant and the white female get into a white SUV. Scott described the gun as having a silver barrel with a black handle. She also heard a lady from Murray's house saying, "He shot my brother." Travis Jackson testified that he lived at 1509 South Walnut St. and worked at Subway. He and appellant were as close as blood relatives. The night of June 21, Jackson had friends over, including appellant and Deonna Logue, who both spent the night at his home. When Jackson left for work, appellant and Logue were the only people remaining in the home. Around 12:00 p.m. he learned from a neighbor that his house was surrounded by police. He went home and the police told him a suspected murder weapon was inside. Jackson testified that he did not have a weapon in the house because he was a felon and not allowed to have a gun. He consented to a search of his home, and a long silver handgun with a black handle was recovered. Deonna Logue had dated James Murray for three years but was dating appellant at the time of the shooting. She testified that they were at Jackson's house the day of the shooting, talking on the porch when appellant got mad and went inside. When he came back out, she asked him what he was doing, and he replied that he was going to talk to Murray. She knew Murray was staying at his sister's home around the corner. She testified that she was on the porch when appellant went around the corner, and it sounded like he and Murray were arguing. Shortly after he had left, Logue heard a gunshot, which sounded to her like it came from where Murray had been staying. She saw appellant with a gun when he came back around the corner, although she had not seen it when he left. She described it as silver with a black handle. Logue testified that when appellant returned, he told her he had shot Murray. He then called Paylor, who picked them up in a white Jeep. They then went to Paylor's cousin's house, where appellant and Paylor went inside. Logue stayed in the backseat. She explained that appellant would want to shoot Murray because they had been arguing over clothes that belonged to her that were in Murray's possession. She indicated that appellant was upset about threats they had made against one another and not the clothes, but that it all started with the clothes. About a month before the shooting, Logue had heard appellant say that he was going to "level" Mr. Murray's house. Arthur "Jay" Paylor, Jackson's little brother, testified that on June 22, 2016, he was at Subway when he received a call from appellant around 11:00 a.m. to come get him at Jackson's house. Paylor testified that when he pulled up to his brother's house on Walnut Street, appellant and Logue got in his white Jeep. Paylor drove to appellant's cousin's house at 1222 West Fourteenth St. where he and appellant went inside while Logue stayed in the car. Paylor asked appellant what was going on when he saw the police surround his car. He testified that appellant told him that he had shot someone. Sgt. Jason Howard assisted in the search of 1222 West Fourteenth St. because a homicide suspect was possibly inside the residence. Appellant was discovered inside a closet underneath some clothes. Michael Gorman, Murray's brother, testified at trial that he had been at 315 West Fifteenth St. at the time Murray was shot. He stated that he answered a knock on the door around noon. When he opened the door, appellant told Murray he needed to speak to him. Soon after appellant and Murray had gone outside, Gorman heard yelling and then a gunshot. When Gorman opened the door, he saw appellant standing over Murray with a gun in his hand pointed at Murray, who had been shot in the head. Gorman went to call 911, and appellant was gone. Appellant testified in his defense that he did not shoot Murray and that he did not go to Murray's house on the day of the shooting. He claimed he was hiding the day he was arrested because he had an absconder warrant for his arrest for cutting off an ankle bracelet in February 2016. After the defense had rested, the circuit court considered the jury instructions requested by the parties. The circuit court denied defense counsel's request for the manslaughter instruction and instructed the jury on capital murder, first-degree murder, and second-degree murder. The jury convicted appellant of first-degree murder. For his sole argument on appeal, appellant contends that the circuit court erred by declining to instruct the jury on manslaughter as a lesser-included offense of capital murder and first-degree murder. It is reversible error to refuse to give an instruction on a lesser-included offense when the instruction is supported by the slightest evidence. Atkinson v. State , 347 Ark. 336, 349, 64 S.W.3d 259, 268 (2002) (citing Chapman v. State , 343 Ark. 643, 38 S.W.3d 305 (2001) ). The circuit court may refuse to offer a jury instruction on an included offense when there is no rational basis for a verdict acquitting the defendant of the charged offense and convicting him of the included offense. Id. Additionally, it is not error for the circuit court to decline to give the proffered instruction on the lesser offense when the evidence clearly shows that the defendant is either guilty of the greater offense charged or innocent. Id. In cases in which a defendant makes a claim of innocence, no rational basis exists to instruct the jury on a lesser-included offense because the jury need only determine whether the defendant is guilty of the crime charged. Id. In the present case, the circuit court did not err in refusing to give the manslaughter instruction. Appellant argues that the evidence of his conduct after the shooting indicates shock, surprise, and panic. He points to the facts that he stood over Murray rather than immediately fleeing, that he incriminated himself in an excited utterance before telling Logue to go inside, and that he called Paylor in a spur-of-the-moment request for transportation to leave the vicinity. He claims that because of this evidence and the lack of eyewitness testimony that he intentionally pulled the trigger, the jury could have found that he "unintentionally fired the weapon while brandishing or otherwise handling it in a manner exhibiting conscious disregard of a substantial and unjustifiable risk that he would accidentally cause it to discharge and strike Murray." In his defense, however, appellant testified that he did not shoot James Murray and that he did not go to his house on the day of the shooting. Considering his own testimony, the evidence clearly showed that appellant was either guilty of the offense charged or innocent. When a defendant makes a claim of innocence, no rational basis exists to instruct the jury on a lesser-included offense because the jury needs to determine only whether the defendant is guilty of the crime charged. Atkinson v. State , 347 Ark. 336, 349, 64 S.W.3d 259, 268 (2002). Based on his claim of innocence, there was no rational basis to instruct the jury on manslaughter as a lesser-included offense of capital murder or first-degree murder. Therefore, we cannot say that the circuit court erred in declining to instruct the jury on manslaughter. We affirm. Affirmed. Harrison and Glover, JJ., agree. Appellant's argument ignores the fact that the jury was instructed on the lesser-included offense of second-degree murder, but convicted of the greater offense of first-degree murder. This implicates the "skip rule" as mentioned by the State. The skip rule provides that when a lesser-included offense has been given and the jury convicts on the greater offense, any error resulting from the lack of instruction on another lesser-included offense is cured. Flowers v. State , 362 Ark. 193, 214, 208 S.W.3d 113, 129 (2005).

MIKE MURPHY, Judge In this no-merit appeal, a Jefferson County Circuit Court revoked Alvontae Whitmore's probation and sentenced him to ten years in the Arkansas Department of Correction. Pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Arkansas Supreme Court Rule 4-3(k), Whitmore's counsel has filed a motion to be relieved as his attorney, alleging that this appeal is without merit. Counsel has also filed a brief in which he contends that all adverse rulings have been abstracted and discussed. Our review of the record reveals that there is no meritorious ground for an appeal. We affirm and grant appellate counsel's motion to withdraw. A brief summary of the facts and procedural history follows. Whitmore was originally charged by information with the felony offenses of residential burglary and theft of property in September 2015. He was convicted and sentenced in January 2016 to sixty months of probation. He was to abide by the terms and conditions of his probation that included a list of monetary obligations. On September 20, 2016, a petition to revoke Whitmore's probation was filed alleging multiple violations of the terms and conditions of his probation. A supplemental petition to revoke probation was filed seven days later along with two violation reports reflecting that Whitmore was charged with committing multiple serious felonies on two separate occasions. At the revocation hearing conducted on March 7, 2017, Whitmore appeared with counsel. Whitmore's probation officer testified to his various probation violations, including that he had tested positive for hydrocodone, heroin, and marijuana on two occasions. Whitmore failed to report to the office for the entire month of May and once in July. He also was delinquent in his monetary obligations. Lastly, Whitmore had left the State of Arkansas without the necessary permission. At the conclusion of the hearing, the circuit court found Whitmore guilty of violating the terms and conditions of his probation and sentenced him to a total term of ten years in the Arkansas Department of Correction. The court dismissed the two supplemental petitions for having insufficient proof. Upon filing a motion for reconsideration on April 20, 2017, Whitmore's counsel discovered that Whitmore had filed a pro se notice of appeal on April 18, 2017. On May 7, 2017, the circuit court conducted a hearing on the motion for reconsideration. At the hearing, Whitmore clarified on the record that he wished to revoke his pro se notice of appeal and that he wanted to allow the court to make a ruling on the motion for reconsideration. The court then ruled from the bench that it had heard all the evidence introduced at the March hearing and did not see any reason to change the ruling, and it denied the motion. Thereafter, the notice of appeal and motion to be relieved as counsel were filed. The test for filing a no-merit brief is not whether there is any reversible error but whether an appeal would be wholly frivolous. Wright v. State , 2015 Ark. App. 300, at 1, 2015 WL 2149417. On appeal, counsel first discussed the circuit court's revocation of Whitmore's probation. A circuit court may revoke a defendant's probation at any time before the expiration of the period of probation if it finds by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of his or her probation. Ark. Code Ann. § 16-93-308(d) (Repl. 2016). This court will not reverse the circuit court's decision to revoke unless it is clearly against the preponderance of the evidence. Hart v. State , 2017 Ark. App. 434, 530 S.W.3d 366. Because the determination of a preponderance of the evidence turns on questions of credibility and the weight to be given testimony, we defer to the circuit court's superior position. Id. Finally, the State need only show that the appellant committed one violation in order to sustain a revocation. Id. Relying on the probation officer's testimony citing multiple probation violations, the circuit court did not clearly err in finding Whitmore guilty of violating the terms and conditions of his probation. Next, counsel discussed the denial of Whitmore's objection to the State's entry of Facebook posts. The probation officer testified that he would check Facebook when supervising probationers to look for incriminating posts. Defense counsel objected to the officer's reading the incriminating posts he had discovered on Whitmore's Facebook page, arguing they were unreliable and that there was an insufficient foundation. The circuit court correctly overruled the objection explaining that the rules of evidence do not strictly apply in probation-revocation proceedings. Ark. R. Evid. 1101(b)(3). Third, counsel discussed the denial of Whitmore's two objections to the State's entry of 911 dispatch information. Whitmore objected on the grounds that the person who had supplied the information and description to the officer was not available for examination. The circuit court did not err when it overruled both objections because not only are rules of evidence inapplicable to revocation proceedings, but also the statements were not being offered to prove the truth of the matter asserted and were therefore not hearsay. Ark. R. Evid. 801(c). Fourth, counsel discussed the denial of Whitmore's objection to testimony as being outside the scope of direct examination during the State's cross-examination. The court overruled the objection. Evidentiary matters regarding the admissibility of evidence are left to the sound discretion of the circuit court and rulings in this regard will not be reversed absent an abuse of discretion, which we do not find here. Newman v. State , 327 Ark. 339, 347, 939 S.W.2d 811, 815-16 (1997). Lastly, counsel discussed the denial of Whitmore's motion for reconsideration. The circuit court has discretion to set punishment within the statutory range of punishment provided for a particular crime. Deere v. State , 59 Ark. App. 174, 954 S.W.2d 943 (1997). The court sentenced Whitmore to a term of ten years for residential burglary and an additional six years for theft of property to run concurrently. Residential burglary is a Class B felony. Ark. Code Ann. § 5-39-201 (Repl. 2016). For a Class B felony, the sentence shall be not less than five years nor more than twenty years. Ark. Code Ann. § 5-4-401. Thus, Whitmore was sentenced within the statutory range of punishment. From our review of the record and the brief presented to us, we find compliance with Rule 4-3(k) and that there is no issue of arguable merit to an appeal. Affirmed; motion to withdraw granted. Gladwin and Vaught, JJ., agree.

Josephine Linker Hart, Justice This case is once more before this court pursuant to a petition for review filed by Brookshire Grocery Company (Brookshire). On April 3, 2017, Brookshire filed a petition asking us to review an opinion, Brookshire Grocery Co. v. Morgan , 2017 Ark. App. 170, 2017 WL 1019035, handed down by the court of appeals on March 15, 2017. We noted that in this workers' compensation case, neither the Commission nor the court of appeals had issued a formal opinion. Brookshire Grocery Co. v. Morgan , 2017 Ark. 221, 2017 Ark. 221. The Arkansas Workers' Compensation Commission (the Commission) merely adopted the administrative law judge's findings of fact and conclusions of law, and the court of appeals issued a memorandum opinion. Id. That memorandum opinion became the impetus for our decision to abolish the practice of disposing of fully briefed cases by memorandum opinion. Id. We overruled In re Memorandum Opinions , 16 Ark. App. 301, 700 S.W.2d 63 (1985) (per curiam), and we amended Arkansas Supreme Court Rule 5-2(e) to require that all opinions issued by the court of appeals "be in conventional form." Brookshire , 2017 Ark. 221. We remanded the case to the court of appeals, requiring it to state in conventional-opinion form its reasoning for the disposition of the case. The court of appeals did so, issuing a new opinion on June 21, 2017. Brookshire Grocery Co. v. Morgan , 2017 Ark. App. 387, 525 S.W.3d 58. Brookshire again petitioned for review, and we granted its petition. We also allowed Brookshire to supplement the brief it had filed in the court of appeals. We now consider Brookshire's appeal on the merits, and we reverse and remand. Brookshire appeals from a decision of the Compensation Commission (Commission). It found that, at the time of his injury, Deputy Cleon Morgan, Sr., had two employers, the Jefferson County Sheriff's Department and Brookshire. The Commission concluded that as "joint employers," both were liable for Deputy Morgan's workers'-compensation benefits. On appeal, Brookshire raises four points, which we have renumbered for the sake of simplicity: I. Appellants cannot be liable for worker's-compensation benefits if Morgan was an independent contractor. II. When the traditional factors are applied, they demonstrate Morgan was an independent contractor on the day of his injury. III. The court of appeals erred by considering factors that are wholly irrelevant to the issue of employee versus independent contractor. IV. The court of appeals erred by inserting facts into the record. In considering Brookshire's arguments on appeal, we first wish to make it clear that, consistent with our long-established practices and procedures, when we review a decision by the court of appeals, we treat the case as though it had been originally filed in this court. Askins v. Kroger Ltd. P'ship , 2018 Ark. 23, 535 S.W.3d 629. We will therefore treat Brookshire's arguments accordingly. It is undisputed that Deputy Morgan injured his ankle on February 19, 2014, while working a part-time security job at a Brookshire grocery store. He noticed a female in the store who he believed was shoplifting. When he approached her, he found several pieces of merchandise concealed on her person. By his own description, when that occurred, he was in "arrest mode" and his "authority as a deputy kicked in." According to Deputy Morgan, he "sweet-talked" the suspect into accompanying him upstairs to the manager's office. Deputy Morgan recalled that sometimes the manager will decline to press charges and instead ban the shoplifter from the store. However, on the night in question, the manager insisted that the shoplifter go to jail. There, he handcuffed her and formally placed her under arrest. She then asked to be uncuffed so that she could use the restroom. When the restraint was unlocked, she bolted. Deputy Morgan sprained his ankle while sprinting after her down the stairs. Deputy Morgan informed the sheriff's department of his injury. Initially, Deputy Morgan's medical expenses were submitted to his health-and-accident insurance carrier, but personnel at the sheriff's department told him it was a workers'-compensation claim. He eventually was held out of work for five weeks. Brookshire contested its liability for Deputy Morgan's workers'-compensation benefits, arguing that he was an independent contractor, not an employee. The issue was tried before an administrative law judge, with only Deputy Morgan testifying. Deputy Morgan stated that he joined the Jefferson County Sheriff's Department on January 1, 2010, and he currently worked in the patrol division. For his work, he wears a uniform and a gun. He noted that he was trained at the police academy in Camden. His usual shift at the sheriff's department was from 8:00 a.m. to 5:00 p.m., five days a week. After serving with the sheriff's department for a year, he was allowed to file a formal written request for off-duty employment. Deputy Morgan noted that most of the deputies in the department engaged in off-duty security work. His request was approved. The department had a specific off-duty work policy. It restricted deputies to no more than twenty hours of part-time work per week. According to Deputy Morgan, while on location in their off-duty jobs, the deputies were required to "follow the policy of the Sheriff's Department and wear [their] uniform, carry [their] gun and handcuffs." He also stated that he carried a Taser. Deputy Morgan confirmed not only that Brookshire did not supply him with any type of equipment, but also that the sheriff's office required him to wear to Brookshire "exactly what I wear doing my regular duties." During his security work for Brookshire, as in any off-duty situation, he was authorized to make arrests at the store. He was also allowed to drive his patrol vehicle to his security job at Brookshire. He also noted that if he encountered a person who had an outstanding warrant while he was working his security job, he was obligated to serve the warrant. Deputy Morgan further testified that, aside from telling him to make sure that nobody was left in the store at closing time and to watch for shoplifters, he received no direction from Brookshire regarding how to do his job. Initially, his duties were shown to him by a fellow deputy. He did not even interview with anyone at Brookshire before accepting security work. The manager of the store where Deputy Morgan worked did not directly schedule his security work. The scheduling was done by Lafayette Wood, who set his hours and chose his work locations. Deputy Morgan failed to identify whether Wood was an employee of Brookshire or merely coordinated off-duty security work by deputies for various entities. All part-time work had to be approved by his superiors in the sheriff's department. Deputy Morgan stated that his compensation was $18 an hour, with nothing withheld by Brookshire. He received no employee benefits from Brookshire. His hours were kept on a sign-in sheet at the store. When he arrived at a work location, he was required to report to the sheriff's department that he was "10-8," which meant that he was in the service area of Brookshire, working part time. According to Deputy Morgan, he was "basically on duty twenty-four hours." As noted previously, the administrative law judge concluded that at the time of Deputy Morgan's injury, Brookshire and the Jefferson County Sheriff's Department were "joint employers" and that both were liable for Deputy Morgan's "benefits and expenses." The Full Commission affirmed and adopted the administrative law judge's findings of fact and conclusions of law. Brookshire timely filed a notice of appeal. We first note our standard of review. We view the evidence in the light most favorable to the Commission's decision and affirm that decision if it is supported by substantial evidence. Id. Substantial evidence exists if reasonable minds could have reached the same conclusion. Id. (citing Plante v. Tyson Foods, Inc. , 319 Ark. 126, 890 S.W.2d 253 (1994) ). We now turn to Brookshire's argument on appeal. Because Brookshire's first and second points are so closely related, we consider them simultaneously. Brookshire argues that Deputy Morgan, an off-duty sheriff's deputy, was an independent contractor when he was injured while working part time for Brookshire. Citing Dillaha Fruit Co. v. LaT ourrette , 262 Ark. 434, 437, 557 S.W.2d 397, 399 (1977), for the proposition that joint employment exists only where relation of employer to employee is simultaneously maintained, Brookshire asserts that before a company can become a joint employer, the person being paid for services must, in fact, be an employee of the company. Further, in determining whether a person is an independent contractor or an employee, courts must review the totality of the circumstance. Blankenship v. Overholt , 301 Ark. 476, 479-80, 786 S.W.2d 814, 815 (1990). Brookshire argues that this court uses the factors listed in Restatement (Second) of Agency § 220 to evaluate the relationship, focusing especially on the degree of control. Brookshire lists these factors as (1) the extent of control that the master exercises, (2) whether the worker is engaged in a distinct occupation or business, and (3) if the work is a part of the regular business of the master. ConAgra Foods, Inc. v. Draper , 372 Ark. 361, 365, 276 S.W.3d 244, 248 (2008). Using these factors to analyze its relationship with Deputy Morgan, Brookshire argues that the record is devoid of any evidence that demonstrates it had the right to, or attempted to, control the details or manner in which Deputy Morgan conducted his security duties. It notes that Deputy Morgan himself admitted that Brookshire did not control his activities. It asserts that it did not tell Morgan what to wear, where to stand, or how to conduct himself while providing security, and for all practical purposes, Deputy Morgan appeared as if he were performing work for the sheriff's department while providing security for Brookshire. Furthermore, all objective factors indicate that the only control Brookshire exercised was that it could pay Morgan to provide a police presence or to stop contracting with him. Brookshire argues that it paid him for the result and did not scrutinize the means by which he achieved it. Even though Deputy Morgan was being paid by Brookshire when he was injured, he nevertheless was under the control and supervision of the sheriff at all times. While Brookshire acknowledges that it was asked if it wished to press charges, the whole point of asking whether a crime victim wishes to press charges is to gather the consent of the victim to provide proof. Moreover, Brookshire argues that it was Deputy Morgan's independent decision to unlock the suspect's handcuffs after being notified that Brookshire would press charges that resulted in the injury. Finally, Brookshire argues that other factors listed in the Restatement (Second) of Agency § 220(2) indicate that Deputy Morgan was an independent contractor. Brookshire asserts that it sells groceries, which is distinct from providing law enforcement or security. Further. Deputy Morgan wore his sheriff's-deputy uniform, gun, and other tools and was required by the department to arrest individuals inside Brookshire for crimes that had nothing to do with Brookshire's grocery store. We find these arguments persuasive. The general rule is that one who hires an independent contractor is not responsible for his workers'-compensation coverage and claims. See Ark. Transit Homes, Inc. v. Aetna Life & Cas. , 341 Ark. 317, 16 S.W.3d 545 (2000). We have consistently held that an independent contractor is one who contracts to do a job according to his or her own method and without being subject to the control of the other party, except as to the result of the work. Id. There is no fixed formula for determining whether a person is an employee or an independent contractor, so the determination must be made based on the particular facts of each case. Id. However, as Brookshire asserts, we have endorsed the factors listed in section 220 of the Restatement second of Agency to guide the court's inquiry. Blankenship v. Overholt , 301 Ark. 476, 786 S.W.2d 814 (1990). As noted by the Blankenship court, section 220 of the Restatement (Second) of Agency sets out the various factors that are to be considered in determining whether a person is an employee or independent contractor: (a) the extent of control which, by the agreement, the master may exercise over the details of the work; (b) whether or not the one employed is engaged in a distinct occupation or business; (c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision; (d) the skill required in the particular occupation; (e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work; (f) the length of time for which the person is employed; (g) the method of payment, whether by the time or by the job; (h) whether or not the work is a part of the regular business of the employer; (i) whether or not the parties believe they are creating the relation of master and servant; and (j) whether the principal is or is not in business. 301 Ark. at 479, 786 S.W.2d at 815. While Brookshire provided Deputy Morgan with compensation, that is of no moment because both employees and independent contractors are paid. Considering the Restatement factors, there is very little in the record to suggest that Deputy Morgan was not an independent contractor. Deputy Morgan testified that he is a certified law enforcement officer twenty-four hours a day. The sheriff's department required that he secure from them "permission" to provide security for Brookshire. Brookshire did not control what he wore-he was required by the sheriff's department to wear his uniform; Brookshire did not provide his tools-again department policy specified that he carry his gun and handcuffs. Brookshire never trained him-his job duties were shown to him by a fellow deputy. Deputy Morgan stated that his formal training as a law enforcement professional came from the police academy. Further, there is nothing in the record to indicate that Deputy Morgan should be considered an employee of Brookshire. Brookshire did not interview him for his position. He was required to secure "permission" from the sheriff's department to work at the store. His time at Brookshire was scheduled by an individual who apparently was not directly connected with the store. Deputy Morgan was essentially a uniformed deputy who was assigned a time slot to provide a police presence at Brookshire to maintain law and order. Finally, Deputy Morgan testified that his work as a deputy sheriff took precedence over his security duties during his scheduled time at Brookshire. Looking at the remaining Restatement factors, while it is true that Brookshire is a business entity, Brookshire is only in the business of selling groceries. Deputy Morgan described his job as providing a police presence to maintain order and prevent loss of property. Accordingly, all the factors that are to be considered in determining if Deputy Morgan was an employee or an independent contractor indicate that Deputy Morgan was an independent contractor. We therefore reverse and remand this case to the Workers' Compensation Commission for further proceedings consistent with this opinion. Reversed and remanded; court of appeals opinion vacated. Kemp, C.J., and Goodson and Wynne, JJ., dissent.

II. Standard of Review in Motion to Recall the Mandate This court has the inherent power to recall its mandate but will exercise that power only in the most "extraordinary circumstances" to be used as a last resort to address "grave, unforeseen contingencies." Ward v. State , 2015 Ark. 61, at 3, 455 S.W.3d 818, 820 ; Nooner v. State , 2014 Ark. 296, at 9, 438 S.W.3d 233, 240 (citing Calderon v. Thompson , 523 U.S. 538, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998) ). To establish the extraordinary circumstances required, we have enumerated certain factors we consider, namely: (1) the presence of a defect in the appellate process, (2) a dismissal of proceedings in federal court because of unexhausted state-court claims, and (3) the appeal is a death case that requires heightened scrutiny. Wertz v. State , 2016 Ark. 249, at 5, 493 S.W.3d 772, 775. A defect in the appellate process is "an error alleged to have been made by this court during the course of its appellate review" of a death-penalty case. Nooner , 2014 Ark. 296, at 8, 438 S.W.3d at 239. Such an error is distinguished from one that "should have been raised to the trial court" and could not be "considered as falling within one of the so-called Wicks ... exceptions," or within our independent review of death cases pursuant to Rule 4-3 of the Arkansas Supreme Court Rules, and Rule 10 of the Arkansas Rules of Appellate Procedure-Criminal. Id. (quoting Engram v. State , 360 Ark. 140, 148-50, 200 S.W.3d 367, 370-72 (2004) ). The factors are not necessarily to be strictly applied; rather, they serve as a guide in determining whether to recall a mandate. Wertz , 2016 Ark. 249, at 5, 493 S.W.3d at 775. This guide is particularly important because recalling the mandate is discretionary and applying the factors serves as "some means of an internal check on that discretion" to ensure against its arbitrary application. Nooner , 2014 Ark. 296, at 9, 438 S.W.3d at 240 III. Ake Requirements In Ake v. Oklahoma , the Supreme Court held that when a defendant shows that his "sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense." 470 U.S. at 83, 105 S.Ct. 1087. The Court specifically stated that a defendant is not constitutionally entitled "to choose a psychiatrist of his personal liking or to receive funds to hire his own," but left the decision up to the individual states on how to implement the right. Id. at 83, 105 S.Ct. 1087. The Court recently revisited its holding in Ake in McWilliams v. Dunn , --- U.S. ----, 137 S.Ct. 1790, 198 L.Ed.2d 341 (2017), where it rejected Alabama's argument that it met the requirements of Ake when it provided a competent psychiatrist to evaluate the defendant. Id. at 1800. The Court explained that Ake requires more than just an evaluation but "access to a competent psychiatrist who will [also] ... assist in [the] evaluation , ... preparation , and ... presentation of the defense." Id. (quoting Ake , 470 U.S. at 83, 105 S.Ct. 1087 ). The Court specifically declined to answer whether "a State must provide an indigent defendant with a qualified mental health expert retained specifically for the defense team, not a neutral expert available to both parties" because Alabama did not meet the most basic requirements. McWilliams , 137 S.Ct. at 1799. From Davis's motion, it is clear that his request to stay his execution was premised on the assumption that the Supreme Court would answer that question in McWilliams . See Davis v. State , 2017 Ark. 135, 2017 WL 1404354 (Womack, J., dissenting). Both parties in this case acknowledge that the Court did not answer the anticipated question; therefore, Ake and this court's precedent still govern. Davis wrongly argues that this court has always applied a flawed interpretation of Ake by holding that a mental examination at the state hospital is all a defendant is entitled to. He argues that we should recall the mandate because this court applied our flawed interpretation on his direct appeal. IV. Ake's Application This court has never held such. At the time of Davis's trial, Ark. Code Ann. § 5-2-305 (Supp. 1989) stated that if the defendant files notice that he intends to rely on a defense of mental disease or the court has reason to expect that the defendant's mental fitness will be in question, then the court shall order a mental examination. The circuit court in this case ordered an examination to be performed by Dr. Jenkins and an additional examination by the psychiatrists at the state hospital. Both examinations concluded that Davis was competent to stand trial. Our court has consistently held that the medical experts available at the Arkansas State Hospital meet the requirements of Ake because they are not involved in the prosecution of criminals, not that a mental examination is all that is required once a defendant has made a preliminary showing that his mental state will be a "significant factor at trial." See, e.g., Creed v. State , 372 Ark. 221, 224, 273 S.W.3d 494, 497 (2008) ; Dirickson v. State , 329 Ark. 572, 576, 953 S.W.2d 55, 57 (1997) ; Branscomb v. State , 299 Ark. 482, 486, 774 S.W.2d 426, 428 1989). We recently upheld our interpretation of Ake in Ward v. State and explained that the constitution does not guarantee a defendant the right to "shop" around until he finds a psychiatrist that will declare him incompetent. Ward v. State , 2015 Ark. 61, at 14, 455 S.W.3d 818, 826 (quoting Creed , 372 Ark. at 223-24, 273 S.W.3d at 497 ). In short, Davis's interpretation of our caselaw is incorrect. Regardless of our interpretation of Ake , Davis received at least the minimum due process required. First, it is undisputed that Davis received a mental examination under the statute. Second, while his first request for funds to hire an independent expert was denied, his new counsel, Tim Morris, filed another motion to hire an independent counselor to develop mitigating evidence. At the November 8 hearing on Davis's written motion, the circuit court held his motion under advisement because the report from the state hospital did not contain any findings regarding how Davis's hyperactivity issues may have affected his judgment. The court specifically gave Davis the opportunity to interview the examiners and return to court if the information they provided was insufficient. Both of his attorneys testified that the state mental-health experts were not helpful in aiding his defense, and Morris stated that he spent four to six hours interviewing each doctor from the state hospital and it was their opinion that there was no mitigating evidence. Morris, who was lead counsel, ultimately made the decision to proceed with Jenkins's testimony at trial because his testimony was more helpful than that of the state doctors. However, he admitted that even if he had obtained funds to hire an independent psychiatrist there was no indication that they would have reached a different result and there "wasn't any need to go further." Despite both Morris's and Martin's testimony that the state doctors were unhelpful and unwilling to aid them in their defense, there is no evidence that they returned to court and asked for funds to hire their own expert. Rather, the record shows they made the strategic decision not to move forward with their motion because no matter who they talked to, they were not going to obtain an opinion substantially different than what they had already received. It was at this point that they decided to present Jenkins's testimony at trial, and Morris even admitted that Jenkins was a helpful and willing participant at trial. Jenkins testified extensively about Davis's hyperactivity disorder and stated that individuals who face this disorder are substantially more likely to have substance abuse problems, psychiatric difficulties, and future legal problems. He also testified that substance abuse leads to some stunting of emotional or judgmental maturity and that such an individual may have difficulty conforming his actions to abide within the law. Notably, Davis raised this same argument in his federal habeas petition, where the Eighth Circuit Court of Appeals determined that Jenkins's detailed testimony met the requirements of Ake . Davis v. Norris , 423 F.3d 868, 877 (8th Cir. 2005). In summary, Davis made the strategic decision to not pursue a partisan psychiatrist and proceeded with Jenkins's testimony at trial. Such a decision is not a "defect in the appellate process" that is attributable to this court upon its review. Noel v. State , 342 Ark. 35, 41, 26 S.W.3d 123, 127 (2000) (trial strategy, even improvident strategy, is not reversible error). While the U.S. Constitution guarantees a right to a competent psychiatrist, it does not guarantee a psychiatrist who will reach the medical conclusions the defense team desires. Therefore, there was no breakdown in the appellate process that would warrant recalling the mandate. Because Davis cannot prevail on the first factor to recall the mandate, there is no need to apply the remaining two. Nooner , 2014 Ark. 296, at 9, 438 S.W.3d at 239. Motion to recall the mandate denied; stay of execution lifted. Kemp, C.J., and Hart, J., concur. Josephine linker Hart, Justice, concurring. While I agree with the outcome of this case, I write separately because I cannot sign on to the majority's intimation that Arkansas has always correctly interpreted the requirements of Ake v. Oklahoma , 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). Without parsing the details of the majority's opinion, it suffices to say that in my view, Arkansas case law has interpreted Ake to guarantee a defendant with less than what McWilliams v. Dunn , 582 U.S. ----, 137 S.Ct. 1790, 198 L.Ed.2d 341 (2017) confirms is actually required. I believe Arkansas's prior interpretation of Ake is similar to that of the Alabama Court of Appeals in McWilliams , which the United States Supreme Court declared was "plainly incorrect." 582 U.S. at ----, 137 S.Ct. at 1800. However, because of the unique factual circumstances of this case, I nonetheless join the result reached by the majority. In spite of Arkansas's prior flawed interpretation of Ake's requirements, Davis was not denied anything Ake affords him, according to current United States Supreme Court precedent. Ake provides that when a defendant's sanity is likely to be a significant issue at trial, "the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense." Ake , 470 U.S. at 83, 105 S.Ct. 1087. In McWilliams , the United States Supreme Court reiterated that Ake's requirements are not limited to just an "examination"; "[r]ather, it requires the State to provide the defense with 'access to a competent psychiatrist who will conduct an appropriate [1] examination and assist in [2] evaluation , [3] preparation , and [4] presentation of the defense,' " notwithstanding this court's prior decisions suggesting otherwise. 582 U.S. at ----, 137 S.Ct. at 1800 (emphasis in original); see, e.g. , Creed v. State , 372 Ark. 221, 224, 273 S.W.3d 494, 497 (2008) (stating that "a defendant's right to examination under Ake is protected by an examination by the state hospital as provided by [ Ark. Code Ann. § 5-2-305 (Repl. 2006) ]"; Dirickson v. State , 329 Ark. 572, 576, 953 S.W.2d 55, 57 (1997) ("We have repeatedly held that a defendant's right to examination under Ake is protected by an examination by the state hospital as provided by [ Ark. Code Ann. § 5-2-305 (Repl. 1993) ]."), Branscomb v. State , 299 Ark. 482, 486, 774 S.W.2d 426, 428 (1989) ("Counsel on appeal acknowledges the position we have taken but contends that, given the facts of this case, we should reconsider it. We decline to do so."). The relevant facts for purposes of this analysis are as follows. Before trial, Davis's mental-health history was reviewed both by Dr. Travis Jenkins at Ozark Guidance Center and by Drs. John Anderson and Wendell Hall at the Arkansas State Hospital. Dr. Jenkins conducted the initial examination to determine whether Davis was competent to stand trial and whether he was insane at the time of the offense. Dr. Jenkins opined that, while Davis's ADHD diagnosis could have contributed to the commission of the crime, there was nothing found in the examination warranting a conclusion that Davis was psychotic at the then-present time or at the time of the offense, or that he was incompetent to stand trial. Davis then filed a motion for an additional psychiatric evaluation to explore what aspects of his mental health could serve as mitigation evidence for purposes of sentencing. The circuit court entered an order committing Davis to the state hospital, where Drs. Anderson and Hall conducted examinations of Davis. However, the order did not specifically direct the state hospital doctors to address whether Davis's mental-health history offered evidence of mitigation. The state doctors issued a 5-page report which concluded that Davis was not insane at the then-present time or at the time of the offense, although it did note diagnoses of antisocial personality disorder, psychoactive substance abuse, and alcohol abuse, and detailed Davis's history of learning disabilities, hyperactivity, troubled family relationships, and previous stretches of incarceration. The report did not address whether any aspects of Davis's mental health amounted to mitigation evidence for purposes of sentencing. Davis then moved the circuit court to order that expert funds be provided so that Davis could hire an independent psychiatrist. In this motion, Davis argued that there was no doctor-patient confidentiality with the state psychiatrists and that he wished to explore potentially mitigating evidence presented by his mental-health history. The circuit court denied this motion. Subsequently, Davis filed a written motion again requesting funds to hire an independent psychiatric expert. The circuit court held a hearing on Davis's motion, at which the circuit court reviewed the report from the doctors at the state hospital and concluded that it contained no findings with respect to mitigation. The circuit court then directed Davis's counsel to return to the state hospital and meet with the doctors who examined Davis to determine whether there was mitigation evidence presented by Davis's mental-health history. The circuit court did not specifically deny Davis's request for funds to hire an independent psychiatrist but directed Davis's counsel to return to court if the state doctors refused to cooperate. Davis's counsel traveled to Little Rock where he met with Drs. Anderson and Hall for approximately four to six hours. In reviewing the testimony from Davis's counsel at Davis's Rule 37 hearing, it is unclear whether the state doctors were unwilling to assist Davis's counsel in translating Davis's mental health history into a defense strategy to show mitigation evidence, whether the state doctors simply felt that Davis's mental history offered no mitigating evidence at all, or whether the truth is somewhere in the middle. There is no testimony in the record to the effect that the state doctors were wholly unwilling to testify about their opinions at Davis's trial. What is undisputed is that Davis's counsel decided not to rely on any testimony from the state doctors at trial, and that Davis's counsel did not return to the circuit court before trial with any report that the state doctors had refused to cooperate. Instead, Davis's counsel returned to Dr. Jenkins because in his initial report he had opined that Davis's ADHD diagnosis could have contributed to the commission of the crime. Dr. Jenkins agreed to testify at Davis's sentencing trial, and Davis's counsel later characterized Dr. Jenkins's participation as "cooperative," "helpful," and "sympathetic in regard to those factors that affected [Davis], the ADHD and child events, and he had an antisocial disorder." However, it does not appear that Dr. Jenkins re-examined Davis after the initial 75-minute competency examination he conducted several months prior, or that Dr. Jenkins participated in any sort of "wood-shedding session" with either of Davis's attorneys to develop a trial strategy. It also appears that Dr. Jenkins had not reviewed all of Davis's school and medical records before testifying. I now turn to whether the participation of either Dr. Jenkins or the state doctors in this case adequately protected the rights indisputably guaranteed by Ake and McWilliams : "examination," "evaluation," "preparation," and "presentation." See Ake and McWilliams, supra . In my opinion, Dr. Jenkins's participation falls short of these requirements; if nothing else, Dr. Jenkins's participation does not satisfy the preparation requirement because he never met with Davis's attorneys to convert Davis's mental-health history into trial strategy. See McWilliams , 582 U.S. at ----, 137 S.Ct. at 1800-01 (opining that Ake's assistance requirements contemplate helping defense evaluate defendant's medical records, translating those data into legal strategy, helping defense prepare and present legal arguments, preparing questions for direct-examination of witnesses, etc.). Before turning to the participation of the state doctors in this case, I pause to note that I am troubled by a glaring legal question implicated by these facts: whether Ake is satisfied when although Ake's requirements have been triggered, the state doctor, who is presumed to be neutral and unbiased toward either the defense or the prosecution, opines that the defendant's mental-health status presents no defense or mitigating evidence. It was anticipated that the Supreme Court would resolve this issue when it granted certiorari in McWilliams on the specific question of whether Ake established that a state must provide an indigent defendant with a mental-health expert retained specifically for the defense team, as opposed to a neutral expert available to both parties. However, the McWilliams Court did not reach this issue. This leaves cases like Davis's in a difficult position. A defense attorney in this situation will have no meaningful way to ensure the veracity of the expert's methodology or to rebut the expert's conclusions, nor will the record contain any information that would empower a reviewing appellate court to recognize any impropriety on the part of the expert if any such impropriety has actually occurred. However, as long as we accept the notion that Ake's requirements can be satisfied without utilizing a mental-health expert independent from the state hospital (a notion which this court has adhered to and which remains specifically unrebutted after McWilliams ), this scenario seems inevitable. Thus, I turn to the participation of the state doctors in this case and whether that participation satisfied Ake's requirements. It seems apparent that the "examination" requirement was satisfied while Davis was committed at the state hospital; the real question relates to the three "assistance" requirements: evaluation , preparation , and presentation. The circuit court in this case explained to Davis's counsel that he should return to the court for assistance if the state doctors refused to cooperate with him. The testimony from Davis's Rule 37 hearing reflects that, after meeting with the state doctors for four to six hours and considering their opinions that Davis's mental-health history offered no mitigating evidence, Davis's counsel decided that there "wasn't any need to go further." Davis's counsel then went back to Dr. Jenkins because he had opined that Davis's ADHD diagnosis could have contributed to the commission of the crime. Davis's counsel did not return to the circuit court before trial for further assistance on this issue. Overall, as it relates to Davis's interactions with the doctors at the state hospital, the record does not reflect that the circuit court deprived Davis of his rights under Ake and McWilliams . The record reflects that the state doctors examined Davis, evaluated their findings, and concluded that Davis's mental-health history offered no mitigating evidence. The state doctors spent several hours going over their opinions with Davis's counsel, and there is nothing in the record to suggest that the state doctors would not have been willing to present those opinions to the jury if Davis's counsel had asked them to do so. Davis's counsel did not rely on any further assistance from the state doctors, nor did he return to the circuit court before trial with a report that the state doctors' assistance had been inadequate; instead, Davis's counsel went back to Dr. Jenkins. Applying Ake and McWilliams , this can only be characterized as a tactical decision made by Davis's trial counsel, not a constitutional violation committed by the circuit court. Kemp, C.J., joins. This statute, which existed in some form since 1995 and was repealed in 2017, provided for an examination at the Arkansas State Hospital by a qualified psychiatrist or psychologist who would then issue a report to the court and to the parties. See Ark. Code Ann. § 5-2-305 (Repl. 1997), amended by Act of Apr. 1, 2011, No. 991, 2011 Ark. Acts 4188; Act of Mar. 26, 2013, No. 506, 2013 Ark. Acts 1924; (Repl. 2013 & Supp. 2017), repealed by Act of Mar. 13, 2017, No. 472, § 5, 2017 Ark. Acts 2217, 2219. The statute did not contain any provision specifically addressing Ake's "preparation" or "presentation" requirements. Id.

KAREN R. BAKER, Associate Justice Petitioner, Bruce Earl Ward, requests this court to recall the mandate from his resentencing in Ward v. State , 338 Ark. 619, 622, 1 S.W.3d 1, 3 (1999) ( Ward III ), asserting that he was entitled to an independent defense expert to aid in his defense regarding his competency. In early 2017, the governor of Arkansas set Ward's execution for April 17, 2017. Subsequently, Ward filed a motion to recall the mandate in this matter and stay of execution until the United States Supreme Court issued its opinion in McWilliams v. Dunn , --- U.S. ----, 137 S.Ct. 1790, 198 L.Ed.2d 341 (2017), contending that McWilliams had a direct impact on his claim pursuant to Ake v. Oklahoma , 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). Ward further asserts that we should overrule our precedent holding that a competency evaluation at the Arkansas State Hospital satisfies Ake . We granted the stay of execution and took the motion as a case. This is a death-penalty case with a long history before this court. The facts of Ward's underlying case are as follows: [O]n August 11, 1989, Little Rock Police Sergeant Michael Middleton was patrolling the area near the Jackpot convenience store on Rodney Parham Drive. Upon pulling into the parking lot, he noticed that the store's clerk was not at her normal work station. He then went into the store to try and locate the clerk. After he had looked through the store and was unable to find the clerk, Middleton called other officers to assist in the search. In the meantime, Middleton began to check outside the store, near the restrooms. He observed Ward walking from the restrooms toward a motorcycle that was parked nearby. Middleton spoke to Ward and told him that he was looking for the store's clerk. Ward told the officer that the clerk was inside the store, stocking. Ward stated that he had just had a cup of hot chocolate with the clerk and that she had given him the key to the restroom. Moments later, Sergeant Scott Timmons discovered [Rebecca] Doss's body lying on the floor of the men's restroom. She had been strangled to death. Ward was arrested and subsequently convicted of the murder. Ward III , 338 Ark. 619, 622, 1 S.W.3d 1, 3. In Ward v. State , 308 Ark. 415, 827 S.W.2d 110 (1992) ( Ward I ), we affirmed Ward's capital-murder conviction for the death of Doss. Although we affirmed Ward's conviction, we reversed and remanded for resentencing based on an evidentiary error. Upon remand, Ward was again sentenced to death. However, we reversed and remanded his sentence for a second time because a transcript of the record from the second sentencing was incomplete. Ward v. State , 321 Ark. 659, 906 S.W.2d 685 (1995) ( Ward II ) (per curiam). At his 1997 sentencing, Ward was sentenced to death for a third time. We affirmed his sentence on appeal in Ward III . Ward next filed a petition for postconviction relief under Ark. R. Crim. P. 37.5. We affirmed the circuit court's denial of that petition in Ward v. State , 350 Ark. 69, 84 S.W.3d 863 (2002) ( Ward IV ). On July 16, 2010, Ward filed a petition to reinvest jurisdiction in the circuit court to consider a petition for a writ of error coram nobis asserting he was incompetent at the time of trial and entitled to a writ of error coram nobis. On September 30, 2010, we summarily denied Ward's petition. In 2013, Ward next filed motions to recall the mandates from his direct appeal ( Ward I ), resentencing ( Ward III ), and the denial of postconviction relief ( Ward IV ) based on his mental competency and asserted that this court should overrule its precedent pertaining to Ake . In Ward v. State , 2015 Ark. 60, 2, 455 S.W.3d 302, 305 ( Ward V ), we denied the motion to recall the mandate in Ward's direct appeal. In Ward VI , 2015 Ark. 60, at 2, 455 S.W.3d 818, at 820, we denied Ward's motion to recall the mandate in Ward's resentencing. In Ward v. State , 2015 Ark. 62, 1, 455 S.W.3d 830 ( Ward VII ), we denied the motion to recall the mandate in Ward's postconviction matter. Accordingly, we denied all three motions to recall the mandates. Now before the court, Ward has filed a motion to recall the mandate in Ward III , asserting again that Ward was entitled to an independent mental health expert under Ake ; that this court misinterpreted Ake ; that McWilliams could possibly be a seminal case in this area; and that the court should therefore stay his execution pending resolution of this matter. On April 17, 2017, we took the motion as a case and entered a stay of execution. On June 19, 2017, the Supreme Court issued its opinion in McWilliams , and the issue of whether to recall the mandate in Ward's case is now before us. We deny the motion to recall the mandate for the reasons discussed below. Standard for Recalling the Mandate and the Doctrine of Law of the Case "The power of an appellate court to recall its mandate, if the circumstances warrant it, is recognized both in federal courts and state courts across the country." Robbins v. State , 353 Ark. 556, 563, 114 S.W.3d 217, 221 (2003) (internal citations omitted). This court will recall a mandate and reopen a case only in extraordinary circumstances. Id. In Nooner v. State , 2014 Ark. 296, at 7-8, 438 S.W.3d 233, 239, we explained our standard for recalling a mandate: [O]ur decision in Robbins is patently clear that recall of our mandate is an extremely narrow remedy. Indeed, we stated in Robbins that recall of our mandate is to be granted only in extraordinary circumstances as a last resort to "avoid a miscarriage of justice" or "to protect the integrity of the judicial process." See Robbins , 353 Ark. [556, 563],114 S.W.3d [217, 222 (2003) ] (quoting Calderon v. Thompson , 523 U.S. 538, 558, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998), and Demjanjuk v. Petrovsky , 10 F.3d 338, 357 (6th Cir. 1993) ). Regardless of any inconsistencies in our decisions concerning the mandatory satisfaction of the three Robbins factors, what has remained consistent in these cases has been a discussion of the three Robbins factors and this court's overarching concern that we will reopen a case only to address an "error in the appellate process," meaning an error that this court made or overlooked while reviewing a case in which the death sentence was imposed. See, e.g. , Engram v. State , 360 Ark. 140, 147, 148, 200 S.W.3d 367, 369, 370 (2004) (observing that the purpose of recalling the mandate in Robbins was to "correct an error in the appellate process" and emphasizing that "the Robbins case hinged on the fact that an error was made during this court's review, and the recall of the mandate was intended to give this court an opportunity to address an issue it should have addressed before"). We have also been consistent in considering motions to recall mandates in criminal cases only where the death penalty has been imposed. See, e.g. , Maxwell v. State , 2012 Ark. 251, 2012 WL 1950253 (per curiam). Nooner , 2014 Ark. 296, at 8-9, 438 S.W.3d at 239. Accordingly, circumstances requiring this court to recall a mandate occur in extremely limited circumstances. Next, with regard to the doctrine of law of the case, in United Food & Commercial Workers International Union v. Wal-Mart Stores, Inc. , 2016 Ark. 397, 504 S.W.3d 573, we explained the law-of-the-case doctrine: [T]he doctrine of law of the case prohibits a court from reconsidering issues of law or fact that have already been decided on appeal. The doctrine provides that a decision of an appellate court establishes the law of the case for trial upon remand and for the appellate court itself upon subsequent review. The doctrine serves to effectuate efficiency and finality in the judicial process, and its purpose is to maintain consistency and to avoid reconsideration of matters once decided during the course of a single, continuing lawsuit. "As a general rule, we are bound to follow prior case law under the doctrine of stare decisis, a policy designed to lend predictability and stability to the law." Ward VII , 2015 Ark 62, at 5, 455 S.W.3d at 833. I. The Court Should Recall the Mandate in Ward's Resentencing to Correct a Defect in the Appellate Process In Ward's motion to recall the mandate, he asserts that he was denied the assistance of a mental-health expert to evaluate, prepare, and present a defense in violation of Ake and urges the court to grant his motion. Ward's argument is two-fold. First, he asserts that the State did not meet the minimum Ake requirements, arguing that this court's interpretation of Ake is a defect in the appellate process. Second, Ward contends that McWilliams clarifies the Ake requirements, and he urges this court to recall the mandate from his resentencing, alleging that his case does not comply with McWilliams . First, we review Ward's allegation that there is a defect in the appellate process and that this court's interpretation of Ake "falls dramatically short of what Ake requires." Ward contends that this court has misinterpreted and erroneously applied the Ake standard for thirty years. Ward repeatedly asserts that this court has held that an examination by a "state doctor meets the requirements of Ake ." Ward reshashes the same arguments he made in Ward VI , where we recounted Ward's claims as follows: [W]e turn to the facts of Ward's case. At the time of his 1997 sentencing, Ward must have made the threshold showing that his sanity at the time of the offense would be a significant issue and an error occurred in this court's review that requires us to recall the mandate in Ward III. The record demonstrates that on February 14, 1997, Ward filed a motion for appropriation of funds for expert assistance pursuant to Ake . In Ward's motion, he stated in pertinent part: Mr. Ward requests an ex parte hearing on this motion under the authority of Ake v. Oklahoma , 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). This request is made because defense counsel does not wish to unnecessarily disclose the defense mitigation case. The reasons in support of this motion are set out in the accompanying memorandum. .... Counsel for Mr. Ward represents to the Court that she has probable cause to suspect that the utilization of these particular experts will produce mitigating evidence. It is the professional judgment of defense counsel that this information is necessary in order to adequately represent Mr. Ward and that these steps would most certainly be undertaken in the course of representation provided to a similarly situated client in a retained counsel case. On February 27, 1997, the circuit court denied the Ake motion. At the pretrial hearing, Ward stated several times that he was not interested in resentencing and wanted to be released from prison or reinstate the death penalty. Additionally, Ward refused to cooperate in 1996 with the state hospital for a mental evaluation. On October 7, 1997, pursuant to both parties' request, the circuit court ordered Ward to undergo an Act III evaluation. On October 17, 1997, Michael Simon, Ph.D., a forensic psychologist, attempted to conduct an evaluation of Ward and submitted a report to the circuit court on that same date. The evaluation stated in pertinent part: On 10/17/97, a forensic evaluation team consisting of Wendell Hall, MD., Michael I. Simon, PhD., and Maria Gergely, L.C.S.W. made an attempt to evaluate Mr. Ward. He was brought to a conference room to meet with the evaluation team at the Arkansas State Hospital. He was neatly dressed in an, orange jumpsuit. He began the interview by stating, "I cannot comply with the evaluation," He did say his attorneys filed a motion for evaluation and he tried to remove their motion. The court denied them and ordered him to appear for evaluation. He politely informed us "I am competent" ... "I have a right to remain silent," ... "I am not going to submit to evaluation." At this point the evaluation was terminated. Thus, in summary, the evaluation could not be completed due to Mr. Ward's unwillingness to participate. There was no evidence to indicate that this unwillingness was due to mental disease or defect. During our brief interview with Mr. Ward, he interacted in a logical, coherent manner and exhibited no signs of psychosis. Thus, in summary, Mr. Ward refused to cooperate with this evaluation and there was no indication that this uncooperativeness was due to any Axis I mental disorder. At Ward's 1997 resentencing trial, Ward presented several witnesses through video-taped statements. Ward presented testimony of three educators from the Erie, Pennsylvania school system where he attended school. Thomas Ritter, a teacher and guidance counselor, testified that he taught Ward in 1965 and 1966 and was also his guidance counselor in the 1970s. Ritter testified that Ward did not have success in school and that Ward was disruptive, and without provocation was aggressive toward other students, but when Ritter spoke to Ward about this behavior he had a "blank stare ... there was no comprehension that he did anything wrong." Ritter further testified that he knew something "was basically wrong" with Ward but that he did not refer him to a psychologist because at that time the school system had very limited access to psychologists and based on Ward's testing he had the ability to learn. Ritter also testified that Ward exhibited "hostile behavior ... bizarre behavior." L. Catherine Fayenmeyer, a guidance counselor in Wattsburg, Pennsylvania from 1965 to 1975, testified that she met with Ward ten to twelve times over a five-year period and knew Ward well. She testified that Ward came to see her mainly for disciplinary problems. She further testified that Ward did not put forth effort in school and was disruptive in class. Fayenmeyer testified that Ward was very bright but had very few friends and did not engage in any activities at school. She testified that Ward was "exceptional" because he did not need classes for "dull students," but she opined that the opportunity to work one on one with a teacher would have made a significant difference for him. C.J. Wortham, an education specialist in the City of Erie, Pennsylvania in the 1960s and 1970s and who was also part of the Civil Air Patrol Program, worked with Ward for approximately a year and a half when Ward was a cadet in the program. Wortham testified that Ward did well in the structured Civil Air Patrol program and was good with outdoor work and compassing. He also testified that Ward was good with adults, but had emotional problems dealing with his peers and life in general. Wortham testified that he recommended to Ward's family that they seek psychiatric help for Ward. He also testified that Ward got "into trouble" when alcohol was present. Next, the deposition of Dr. Anthony Cillufo, a psychologist, was read into the record as part of Ward's 1997 sentencing. Dr. Cillufo testified that on April 22, 1977, he conducted a three-hour interview of Ward at the Erie County jail. He testified that he conducted a battery of tests and an extensive clinical interview with Ward, including talking with Ward about his life history, family relationships, and sexual history. Dr. Cillufo diagnosed Ward as an anxious, shy, alienated man of average intelligence, with a propensity for acting violently as part of a mixed personality disorder. He further testified that Ward had features of social personality or explosive personality as well as passive/aggressive and paranoid disorders, and a secondary diagnosis of alcoholism. Further, Dr. Cillufo testified that Ward could possibly have had some early history of minimal brain dysfunction and a slight possibility of neurological damage as Ward had reported fainting spells or blackouts. Dr. Cillufo testified that his main diagnosis was mixed personality disorder. Ward also presented testimony from Tom Devine, an attorney at the Pulaski County Public Defender's Office. Devine testified that he had known Ward for twelve and a half years and Ward made paintings and drawings for him. Gary Wayne Brossett had testified at Ward's first trial, and his testimony was also read into the record during Ward's 1997 sentencing. Brossett testified that he was a nursing student at Arkansas Children's Hospital in 1989 and was working at Joubert's, a local tavern. Brossett testified that Ward was at Joubert's on the night of Doss's murder and that Ward drank a few beers and played some pool and left the tavern around midnight. Having reviewed Ward's presentation of evidence at the 1997 sentencing, we turn to Ward's argument in his motion to recall the mandate regarding an alleged Ake violation. In asserting that this court should recall the mandate on this point, Ward relies primarily on a report from Dr. William Logan, a forensic psychiatrist. Logan's forty-one-page report regarding Ward's 1997 sentencing can be summarized as follows. Logan diagnosed Ward with "schizophrenia, paranoid type, as evidenced by a preoccupation with persecutory and grandiose delusional ideas, and occasional hallucinations and disorganized thinking." Dr. Logan examined Ward on October 22, 2008. Dr. Logan completed a three-hour examination on Ward at the Varner Supermax Unit. According to his report, Dr. Logan reviewed IQ evaluations performed on Ward in 1972, a presentence report performed in 1977, several documents compiled in connection with Ward's prior arrest in Pennsylvania in 1977, Ward's military records, a questionnaire completed by Ward's mother in 1977, Ward's medical history compiled after his 1989 arrest in Arkansas, evaluations performed by Dr. Simon, affidavits from Ward's prior counsel describing his behavior during his 1990 trial and two resentencing hearings, Ward's competency hearing, and various filings and pleadings made by both the State and Ward during his trial and sentencing hearings. In his report, Dr. Logan described Ward as a heavyset man with poor grooming. He described Ward as having "fair thought organization when giving information about his family and childhood," but noted that "[a]s he began to discuss his legal situation his thought processes deteriorated markedly." Dr. Logan described Ward's "persistent and grandiose delusions" that he "was the target of a conspiracy between officials in Pennsylvania, someone he knew in Canton, Texas and various Arkansas government entities including the governor's office and the State and Federal Public Defenders." According to Dr. Logan, Ward's delusions "do not compromise his intellectual capacity in terms of his intelligence and orientation," but that his understanding of his conviction and sentence are "irrational and delusional." For example, Dr. Logan stated that Ward expressed his belief that "he will never be executed, but rather be exonerated and leave prison a free man to achieve great success." According to Dr. Logan, Ward attributes this belief to "revelations from God." Dr. Logan's report also described delusions reported by Ward, including his belief that Joe Biden "got Nick Trenticosta (a former attorney of Mr. Ward's) on his case and also has a connection to his current attorney." Ward also reported that he "can see the future including future disasters and future events." He also believes his father is part of the Illuminati and that the Illuminati are trying to help him. According to Dr. Logan's report, Ward described visions of a large black dog that jumps into people and possesses them and that Ward reported hearing his deceased father's voice from a chair. Ward also described his belief that others are jealous of him because of his talent and power and that some of the other prisoners are demons under a spell from the State because they do not complain. Ward stated that he "also has been the victim of a laxative curse." During the interview, Ward reported that the "unholy Alliance in Pennsylvania told him to give up his powers or suffer the consequences." Dr. Logan diagnosed Ward as having schizophrenia, paranoid type. Dr. Logan gave his opinion that Ward was not competent to be executed. Dr. Logan's specific report regarding the 1997 sentencing was as follows: Competency to Stand Trial in the 1997 Penalty Phase Hearing Mr. Ward adamantly opposed any attempt by his then attorney, Ms. Tammy Harris to present mitigation testimony that might result in a life sentence. He resisted an effort to assess his competency. Mr. Ward's decisional competency was never addressed. He wanted an outright dismissal of the charges and compensation. Despite his bizarre behavior, the case was allowed to proceed. Subsequently, it has been revealed Mr. Ward's actions were the direct consequences of delusional beliefs that resulted from his Paranoid Schizophrenia, a mental disease. Consequently, it is my opinion with a reasonable degree of medical certainty that at the 1997 Penalty Phase proceeding, Mr. Ward suffered from Paranoid Schizophrenia. It is my further opinion that the delusions characteristic of this mental disease prevented him from having an ability to understand rationally the proceedings against him and from having the ability to assist effectively in his own defense. In reviewing Dr. Logan's report, we note that Dr. Logan's evaluation was performed in 2008 and was not part of the record in Ward's 1997 sentencing. Further, Dr. Logan's report discrediting years of data and evaluation is based on his one visit with Ward in 2008. In any event, Dr. Logan's report is of limited support for Ward's argument that a fundamental breakdown in the appellate process occurred in Ward's 1997 sentencing regarding Ward's Ake argument because it was not part of the record reviewed by this court. Next, the record demonstrates that on October 17, 1997, Ward was afforded the opportunity to have his "competency and criminal responsibility" evaluated by psychologists at the state hospital. Although Ward was unwilling to participate, Dr. Simon reported that "there was no evidence to indicate that this unwillingness was due to mental disease or defect." Ward asserts that this evaluation is unreliable and he should be afforded an independent evaluation. However, we have recognized that a defendant's rights are adequately protected by an examination at the state hospital, an institution that has no part in the prosecution of criminals. Branscomb v. State , 299 Ark. 482, 774 S.W.2d 426 (1989) ; Dunn v. State , 291 Ark. 131, 722 S.W.2d 595 (1987) ; Wall v. State , 289 Ark. 570, 715 S.W.2d 208 (1986). In other words, the defendant does not have a constitutional right to search for a psychiatrist of his personal liking or to receive funds to hire his own but is entitled to access to a competent psychiatrist and the examination afforded to Ward satisfied that right. Although Ward requests that we overrule our precedent holding that a competency evaluation at the Arkansas State Hospital satisfies Ake , we decline to overrule this precedent. In sum, we do not find merit in Ward's assertions. Whether Ward contends that he was not competent to stand trial at the 1997 sentencing or that his sanity at the time of the offense was at issue, based on the record before us, we do not find that there was a breakdown in the appellate process in Ward III. Ward was afforded his constitutionally guaranteed evaluation pursuant to Ake , and the record does not support Ward's contention that any breakdown occurred. Ward simply failed to make a threshold showing that his sanity at the time of the offense or his competence to stand trial were significant factors. While the record demonstrates that Ward filed the Ake motion, Ward did not make an argument that the state hospital evaluation was inadequate or present any evidence that would support his argument that there was a breakdown in the appellate process. Likewise, we reject Ward's contention that the circuit court's failure to provide an independent psychiatrist to develop mitigating evidence during sentencing, and this court's subsequent failure to discover and reverse that decision, resulted in a breakdown of the appellate process. Accordingly, we deny Ward's request that we recall the mandate on his first point. Ward V , 2015 Ark. 61 at 7-15, 455 S.W.3d at 823-27. In reviewing Ward's claims, we recognize that we addressed Ward's arguments in his current motion to recall the mandate regarding Ake and its requirements in Ward VI. Today, he continues to make the same arguments he made in 2015 when this court addressed those issues and denied the motion. "The doctrine of the law of the case provides that the 'decision of an appellate court establishes the law of the case for the trial upon remand and for the appellate court itself upon subsequent review.' Washington v. State , 278 Ark. 5, 7, 643 S.W.2d 255 (1982) (citing Mayo v. Ark. Valley Trust Co. , 137 Ark. 331, 209 S.W. 276 (1919) ). Although we noted in Washington that the doctrine is not inflexible and does not absolutely preclude correction of error, id. (citing Ferguson v. Green , 266 Ark. 556, 557, 587 S.W.2d 18 (1979) ), we have also held that the doctrine prevents an issue raised in a prior appeal from being raised in a subsequent appeal 'unless the evidence materially varies between the two appeals.' Fairchild v. Norris , 317 Ark. 166, 170, 876 S.W.2d 588 (1994). We adhere to this doctrine to preserve consistency and to avoid reconsideration of matters previously decided. Id. Significantly, the doctrine extends to issues of constitutional law. Id. ; Findley v. State , 307 Ark. 53, 818 S.W.2d 242 (1991)." Kemp v. State , 335 Ark. 139, 142-43, 983 S.W.2d 383, 385 (1998). Here, there is neither an allegation for correction of an error nor of evidence that materially varies from Ward's prior motion to recall the mandate of his resentencing in Ward VI. Ward merely reargues the merits of his former challenges to this court's interpretation of Ake . We previously considered and rejected Ward's arguments. Accordingly, pursuant to the law-of-the-case doctrine, we hold that Ward's arguments provide no basis for granting Ward's motion to recall the mandate in his resentencing. Further, as we explained in Ward VI , the United States Supreme Court in Ake held that when a defendant has made a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial, due process requires that a state provide access to a psychiatrist's assistance on this issue, if a defendant cannot otherwise afford one. Ake , 470 U.S. at 74, 105 S.Ct. 1087. The Supreme Court held: [W]hen a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense. This is not to say, of course, that the indigent defendant has a constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own. Our concern is that the indigent defendant have access to a competent psychiatrist for the purpose we have discussed, and as in the case of the provision of counsel we leave to the State the decision on how to implement this right. Ake , 470 U.S. at 83, 105 S.Ct. 1087. Pursuant to Ake , Ward must make a threshold showing that his sanity is likely to be a significant factor in his defense. This determination is made on a case by case basis. See Pyland v. State , 302 Ark. 444, 790 S.W.2d 178 (1990). In Ward VI , we held that Ward failed to meet this standard. Accordingly, based on our discussion above, we do not find merit in Ward's argument that this court has misinterpreted Ake . Next, with regard to Ward's argument that McWilliams altered or expanded the standards required by Ake , this argument is without merit. In McWilliams , the Court did not alter or change the requirements of Ake . The United States Supreme Court held: We turn to the main question before us: whether the Alabama Court of Criminal Appeals' determination that McWilliams got all the assistance that Ake requires was "contrary to, or involved an unreasonable application of, clearly established Federal law." 28 U.S.C. § 2254(d)(1). McWilliams would have us answer "yes" on the ground that Ake clearly established that a State must provide an indigent defendant with a qualified mental health expert retained specifically for the defense team, not a neutral expert available to both parties. He points to language in Ake that seems to foresee that consequence. See, e.g., 470 U.S. at 81, 105 S.Ct. 1087 ("By organizing a defendant's mental history, examination results and behavior, and other information, interpreting it in light of their expertise, and then laying out their investigative and analytic process to the jury, the psychiatrists for each party enable the jury to make its most accurate determination of the truth on the issue before them" (emphasis added)). We need not, and do not, decide, however, whether this particular McWilliams claim is correct. As discussed above, Ake clearly established that a defendant must receive the assistance of a mental health expert who is sufficiently available to the defense and independent from the prosecution to effectively "assist in evaluation, preparation, and presentation of the defense." Id. , at 83, 105 S.Ct. 1087. As a practical matter, the simplest way for a State to meet this standard may be to provide a qualified expert retained specifically for the defense team. This appears to be the approach that the overwhelming majority of jurisdictions have adopted. See Brief for National Association of Criminal Defense Lawyers et al. as Amici Curiae 8-35 (describing practice in capital-active jurisdictions); Tr. of Oral Arg. 40 (respondent conceding that "this issue really has been mooted over the last 30-some-odd years because of statutory changes"). It is not necessary, however, for us to decide whether the Constitution requires States to satisfy Ake 's demands in this way. That is because Alabama here did not meet even Ake 's most basic requirements. The dissent calls our unwillingness to resolve the broader question whether Ake clearly established a right to an expert independent from the prosecution a "most unseemly maneuver." Post , at 1801-1802 (opinion of ALITO, J.). We do not agree. We recognize that we granted petitioner's first question presented-which addressed whether Ake clearly established a right to an independent expert-and not his second, which raised more case-specific concerns. See Pet. for Cert. i. Yet that does not bind us to issue a sweeping ruling when a narrow one will do. As we explain below, our determination that Ake clearly established that a defendant must receive the assistance of a mental health expert who is sufficiently available to the defense and independent from the prosecution to effectively "assist in evaluation, preparation, and presentation of the defense," 470 U.S. at 83, 105 S.Ct. 1087 is sufficient to resolve the case. We therefore need not decide whether Ake clearly established more. (Nor do we agree with the dissent that our approach is "acutely unfair to Alabama" by not "giv[ing] the State a fair chance to respond." Post, at 1808. In fact, the State devoted an entire section of its merits brief to explaining why it thought that "[n]o matter how the Court resolves the [independent expert] question, the court of appeals correctly denied the habeas petition." Brief for Respondent 50. See also id., at 14, 52 (referring to the lower courts' case-specific determinations that McWilliams got all the assistance Ake requires).) McWilliams , 137 S.Ct. 1790, 1799-801. Simply put, McWilliams did not answer the question that Ward was relying on in seeking relief in this motion. McWilliams did not establish new law. In sum, this case is the same one he presented in Ward VI , and McWilliams does not develop new law or change the standard pursuant to Ake. Based on our review of the record and the discussion above, Ward has failed to meet the standard for this court to recall the mandate in his resentencing. Therefore, the motion is denied. Motion denied; stay of execution lifted. Wood and Womack, JJ., concur. Kemp, C.J., and Hart, J., dissent. In Robbins , we recalled the mandate because (1) Robbins cited to a decision "on all fours legally" with the issue presented, (2) federal court proceedings had been dismissed because of an unexhausted state-court claim, and (3) it was a death-penalty case, which required heightened scrutiny. Robbins , 353 Ark. at 564, 114 S.W.3d at 222-23 In making that decision, we noted that there were unique circumstances that made the case "one of a kind, not to be repeated." Id. , 114 S.W.3d at 223. Although we lift the stay of execution in this case, we note that in Ward v. Hutchinson , CV-17-291, on April 14, 2017, we entered a stay of execution.

Arkansas Code Annotated section 5-64-440 (Repl. 2016) provides in pertinent part that a person commits the offense of trafficking a controlled substance if he or she possesses, possesses with the purpose to deliver, delivers, or manufactures a controlled substance by aggregate weight, including an adulterant or diluent, in the following amounts: ... cocaine, two hundred grams (200g) or more. Introduction of the actual controlled substance is not essential if a qualified person has analyzed it and found it to be the substance on which the charge was based. Parker v. State , 265 Ark. 315, 578 S.W.2d 206 (1979). That is what happened here. The chain of custody was explained, and there is no argument to challenge it. Then, Dan Hedges, the forensic chemist, testified about the tests he conducted and the results he obtained. Those results showed that each of the four kilos of suspected cocaine turned out to be powder cocaine, along with a cutting agent. In addition to his testimony, the State introduced Hedges's lab report. The State satisfied its burden of proving that the substance upon which Alvarez was charged was indeed powder cocaine. For her remaining point, Alvarez acknowledges the State is not required to prove literal physical possession, but she contends that to prove constructive possession, the State was required to establish that she exercised care, control, and management over the contraband. She is correct. Block v. State , 2015 Ark. App. 83, 455 S.W.3d 336. She is also correct that there must be some evidence she had knowledge of the presence of the contraband. Id. The State produced evidence of Alvarez's care, control, management, and knowledge of the contraband with the audio-videos from the police stop and her interview statement, along with Officer Begoon's testimony explaining who was saying what in the police-car video. The jury thus had evidence before it of Alvarez admitting that the kilos of cocaine were found in a suitcase belonging to her, that she was aware of it, and that the other passenger knew nothing about it. The fact she told a completely different story when she testified at trial merely made the issue one of credibility, and the jury clearly credited her statement in the video over her trial testimony. Affirmed. Gladwin and Hixson, JJ., agree.

MIKE MURPHY, Judge Appellant Kayla Picinich appeals from the October 31, 2017 order of the Sebastian County Circuit Court adjudicating her child dependent-neglected. On appeal, Picinich argues that the circuit court lost subject-matter jurisdiction and committed reversible error by failing to enter a written adjudication order within thirty days of the adjudication hearing per Arkansas Code Annotated § 9-27-327(f). We affirm. On May 15, 2017, the Department of Human Services (DHS) exercised an emergency seventy-two hour hold on Picinich's child, P.P. (DOB 5/13/2017). DHS filed a petition for emergency custody and dependency neglect on May 17, 2017. The petition alleged P.P. dependent-neglected based on the fact that Picinich voluntarily terminated her parental rights to her two other children on March 31, 2017-less than two months prior to P.P.'s birth. The affidavit attached to the petition stated that based on interviews with family members, the circumstances were such that Picinich and the identified biological father still could not ensure the safety of P.P. That same day, the circuit court entered an ex parte order of emergency custody. A probable-cause order was entered June 19, 2017, that stipulated that probable cause existed at the time the hold was exercised and continued to exist such that it was necessary that P.P. continue in the legal custody of DHS and provisional care of her maternal grandparents. At the adjudication hearing, held on June 21, 2017, Picinich agreed to stipulate to a dependency-neglect finding. The circuit court found from the bench that P.P. was dependent-neglected based upon parental unfitness. It ordered custody to remain with DHS with a goal of reunification. The adjudication order was not entered until October 31, 2017. This timely appeal followed. In dependency-neglect cases, the standard of review on appeal is de novo, but we do not reverse the circuit court's findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Samuels v. Ark. Dep't of Human Servs. , 2016 Ark. App. 2, at 6-7, 479 S.W.3d 596, 600. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. In reviewing a dependency-neglect adjudication, we defer to the circuit court's evaluation of the credibility of the witnesses. Id. The focus of an adjudication hearing is on the child, not the parent; at this stage of a proceeding, the Juvenile Code is concerned with whether the child is dependent-neglected. Id. In dependency-neglect cases, a written adjudication order shall be filed by the court, or by a party or party's attorney as designated by the court, within thirty (30) days of the date of the hearing or prior to the next hearing, whichever is sooner. Ark. Code Ann. § 9-27-327(f). Here, the circuit court conducted the adjudication hearing on June 21, 2017, and the adjudication order was not filed until 132 days later. Picinich asserts that the court's failure to enter the order within the time period authorized under the Juvenile Code deprived the circuit court of jurisdiction to enter its order and that the court committed reversible error by entering the order. Appellees assert that our court has already resolved that noncompliance with the Juvenile Code's time frames does not take away the circuit court's jurisdiction, and we agree. We most recently addressed this argument in Turner v. Arkansas Dep't of Human Servs. , 2018 Ark. App. 52, 539 S.W.3d 635. There, the appellant never raised the issue that the adjudication order was entered well beyond the statutory deadline until after her parental rights were terminated and we held that it precluded our review of the issue. Here, while the issue was raised in a timely manner, we are still precluded from addressing it based on our further explanation in Turner : We recognize appellant's argument that this is an issue of subject-matter jurisdiction and may be raised for the first time on appeal. Our relevant case law suggests otherwise. Although the juvenile code sets forth certain time frames for the court regarding the various hearings and orders, these statutes do not express a remedy for a violation of these time limits. We have held that when the legislature has not seen fit to fashion a remedy, it is not the province of the court of appeals to do so. Id. We have also held that the circuit court's violation of a statutory time frame under the juvenile code does not cause the court to lose jurisdiction over the case when the General Assembly did not provide a sanction for the violation and there was no evidence that such a result was intended. Termination cases are unique civil cases because time is viewed from the juvenile's perspective, and the best interests of the children take precedence at every stage of the proceedings. To reverse this case would be contrary to [the child's] best interest. We hold that the circuit court's violation of the time limits set forth in Ark. Code Ann. § 9-27-327 did not deprive it of jurisdiction over the case. Turner , 2018 Ark. App. 52, at 4-6, 539 S.W.3d at 637-38 (internal citations omitted). We decline to overrule our own precedent and similarly hold that the circuit court did not lose jurisdiction. Therefore, the court did not commit reversible error by failing to enter a timely written-adjudication-order because Arkansas Code Annotated § 9-27-327(f) provides no specific consequences for the failure to abide by its mandatory dictates. Additionally, to reverse would be contrary to P.P.'s best interest. Although the legislature has failed to incorporate statutory consequences for a circuit court's failure to comply with the statutory timelines in the juvenile code, we strongly encourage the circuit courts to abide by these timelines because compliance is in the juveniles' best interests. Affirmed. Whiteaker and Hixson, JJ., agree. P.P.'s legal father, Picinich's current husband, was incarcerated during the period of time when conception would have occurred. He is currently serving a twenty-year sentence. P.P's biological father was also the father of Picinich's other children, and his rights were also terminated in March 2017.

RHONDA K. WOOD, Associate Justice This is appellant Theodore Anderson's third appeal from an order denying his pro se petition for writ of habeas corpus. We affirm because Anderson's habeas petition raises only issues that this court has previously considered and rejected . Following a bench trial, Anderson was convicted on charges of residential burglary, domestic battering, and rape. The trial court imposed an aggregate sentence of 240 months' imprisonment. The Arkansas Court of Appeals affirmed. Anderson v. State , CR 07-900, 2008 WL 442598 (Ark. App. Feb. 20, 2008) (unpublished). In 2010, Anderson filed his first petition for habeas relief under Arkansas Code Annotated sections 16-112-101 -123 (Repl. 2016). The circuit court denied his petition. On appeal, this court affirmed the denial, finding Anderson's petition without merit. Anderson v. State , 2011 Ark. 35, 2011 WL 395486 (per curiam). In a subsequent habeas petition, Anderson pursued the same issues. Once again, the circuit court rejected Anderson's petition and this court affirmed its ruling. Anderson v. Kelley , 2015 Ark. 411, 473 S.W.3d 537 (per curiam). In his present habeas petition, Anderson continues to allege that the trial court lacked jurisdiction because his case was incorrectly filed in a juvenile court. He also contends that he is illegally detained insofar as his arrest was procedurally defective, he was not properly arraigned and did not enter a plea on the record, the criminal information charging him was defective, and the deputy prosecuting attorney did not have authority to sign the information. In accordance with our previous rulings, we find these claims without merit. Anderson , 2015 Ark. 411, 473 S.W.3d 537. A circuit court's decision on a petition for habeas relief is upheld unless it is clearly erroneous. Hobbs v. Gordon , 2014 Ark. 225, 434 S.W.3d 364. A decision is clearly erroneous when the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake was made. Id. A writ of habeas corpus is proper when a judgment of conviction is invalid on its face or when the trial court lacked jurisdiction over the cause. Story v. State , 2017 Ark. 358, 2017 WL 6376368. It is the petitioner's burden to establish probable cause, by affidavit or other evidence, that he is being illegally detained. Ark. Code Ann. § 16-112-103(a)(1) ; Garrison v. Kelley , 2018 Ark. 8, 534 S.W.3d 136. Unless the petitioner satisfies this showing, there is no basis for issuing a writ of habeas corpus. Fields v. Hobbs , 2013 Ark. 416, 2013 WL 5775566. Anderson frames his allegations as issues of jurisdiction. Yet his claims, with one exception, are simply allegations of trial error. While claims of defective information that raise a jurisdictional issue-such as a claim of an illegal sentence-are cognizable in habeas proceedings, general defective information allegations are not. Clay v. Kelley , 2017 Ark. 294, 528 S.W.3d 836. Indeed, such assertions of trial error and due-process violations do not implicate the facial validity of a trial court's judgment or jurisdiction. Ratliff v. Kelley , 2018 Ark. 105, 541 S.W.3d 408. The defective information claims advanced in Anderson's petition are claims of trial error. Because a writ of habeas corpus will not be issued to correct errors or irregularities that occurred at trial, his claims fall outside the scope of remedy afforded by the writ. Barber v. Kelley , 2017 Ark. 214, 2017 WL 2473267. A habeas proceeding does not afford a prisoner an opportunity to retry his or her case. Id. Anderson's only viable allegation is that the trial court lacked subject-matter jurisdiction to try adult, criminal cases. But as this court previously explained, this claim is without merit. See Young v. Ark. Dep't of Human Servs. , 2012 Ark. 334, 2012 WL 4163177. The circuit court did not clearly err in declining to issue the writ. Affirmed; motion to correct docket number granted; motion for appointment of counsel moot. Hart, J., concurs. Josephine Linker Hart, Justice, concurring. While I agree with the majority's disposition of this case, I write separately because I cannot sign on to the majority's intimation that an allegation of a defective information is somehow a claim of "trial error." Allegations of deficiencies in the information are traditionally addressed with a motion to quash filed in the circuit court, before the jury decides guilt at trial. See, e.g., Nance v. State , 323 Ark. 583, 918 S.W.3d 114 (1996) ; Dupree v. State , 271 Ark. 50, 607 S.W.2d 356 (1980). Instead, it would be more accurate to state that a failure to assert a deficiency contained in the information (excluding deficiencies that would deprive the circuit court of jurisdiction) before trial or plea amounts to a waiver of the deficiency. See Geoates v. State , 206 Ark. 654, 176 S.W.2d 919 (1944) ("The irregularity, if objectionable to the defendant, should have been tested by motion to quash."). Here, Anderson's asserted deficiency in the information is that it was only signed by the deputy prosecutor. This is not a sufficient basis for the issuance of the writ. I concur. Anderson filed two motions in which he requests appointment of counsel and permission to replace the cover sheet on his brief-in-chief to reflect the correct circuit court docket number. As we affirm, we find the motion for appointment of counsel moot. We grant his motion to correct the docket number. In his brief on appeal, Anderson includes some arguments not raised in the habeas petition. This court will not consider arguments that were not raised below. Halfacre v. Kelley , 2018 Ark. 46, 538 S.W.3d 834. The appellee contends that the law-of-the-case doctrine should bar Anderson's arguments. However, this court will consider additional facts raised in support of a jurisdictional argument; those arguments are not barred as law-of-the-case. Cloird v. State , 352 Ark. 190, 99 S.W.3d 419 (2003). As with coram nobis petitions, the abuse-of-the-writ doctrine may apply in habeas proceedings to subsume res judicata in cases where the petitioner raises the same arguments addressed previously without bringing forward additional facts that would support his or her argument. To the extent that Anderson pled additional facts in support of his jurisdictional argument, those facts were not sufficient to reach a different result, and the habeas petition was an abuse of the writ.

KAREN R. BAKER, Associate Justice Appellant Kyron Watkins appeals the dismissal of his petition for writ of habeas corpus filed pursuant to Arkansas Code Annotated sections 16-112-101 to -123 (Repl. 2016) in which he alleged that he was being illegally subjected to serving 70 percent of a fifteen-year enhancement pursuant to Arkansas Code Annotated section 16-90-120 (Supp. 2007). Watkins also has before the court a motion for belated brief, which was filed after the appellant's brief was tendered. We now grant the motion, making the appeal ripe for our review. Because Watkins has failed to state a ground on which the writ could issue, the circuit court's dismissal of the writ of habeas corpus is affirmed. A writ of habeas corpus is proper when a judgment of conviction is invalid on its face or when a circuit court lacks jurisdiction over the cause. Philyaw v. Kelley , 2015 Ark. 465, 477 S.W.3d 503. Under our statute, a petitioner for the writ who does not allege his or her actual innocence and proceed under Act 1780 of 2001 must plead either the facial invalidity of the judgment or the lack of jurisdiction by the trial court and make a showing by affidavit or other evidence of probable cause to believe that he or she is being illegally detained. Ark. Code Ann. § 16-112-103(a)(1) (Repl. 2006). A habeas proceeding does not afford a prisoner an opportunity to retry his or her case, and it is not a substitute for direct appeal or postconviction relief. See Noble v. Norris , 368 Ark. 69, 243 S.W.3d 260 (2006). A circuit court's decision on a petition for writ of habeas corpus will be upheld unless it is clearly erroneous. Hobbs v. Gordon , 2014 Ark. 225, at 5, 434 S.W.3d 364, 367. A decision is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been made. Id. Unless the petitioner can show that the trial court lacked jurisdiction or that the commitment was invalid on its face, there is no basis for a finding that a writ of habeas corpus should issue. Fields v. Hobbs , 2013 Ark. 416, at 2, 2013 WL 5775566. On appeal, Watkins argues that his judgment-and-commitment order is invalid on its face and that the Arkansas Department of Correction (ADC) has a duty to execute his sentence in compliance with the law. Specifically, he contends that the "70% was illegal on its face and a violation of [the] probation (sic) against ex-post facto law for his charge [of a] commission of a felony with [a] firearm [pursuant to] A.C.A. § 16-90-120" and that the trial court failed to clarify if the firearm enhancement in the judgment-and-commitment order was "to be on 50% or 70% when it read enhanced with kidnap[.]" As he argued below, Watkins's basic contention centers on the fact that he believes he is being subjected to serve an excessive period of time because he is ineligible for parole until he serves 70 percent based on the fifteen-year enhancement pursuant to Arkansas Code Annotated section 16-90-120 (Supp. 2007). Watkins, having committed his offenses in April 2007, argues that subsection (e)(1)(A) does not apply because that subsection states that "[f]or an offense committed on or after July 2, 2007, ... any person who is sentenced under subsection (a) of this section is not eligible for parole or community correction transfer until the person serves [s]eventy percent (70%) of the term of imprisonment to which the person is sentenced under subsection (a) of this section...." Watkins's claims regarding the applicability of section 16-90-120 to his parole eligibility are not cognizable in a habeas proceeding. Habeas proceedings do not extend to issues of parole eligibility and are limited to the questions of whether the petitioner is in custody pursuant to a valid judgment of conviction or whether the convicting court had proper jurisdiction. See Blevins v. Norris, 291 Ark. 70, 722 S.W.2d 573 (1987) ; see also Garrison v. Kelley , 2018 Ark. 8, 534 S.W.3d 136, reh'g denied (Feb. 22, 2018). Parole eligibility falls clearly within the domain of the executive branch and specifically the ADC, as fixed by statute. Johnson v. State , 2012 Ark. 212, 2012 WL 1739110. A question regarding parole eligibility is not properly raised in a habeas proceeding, as it does not challenge the trial court's jurisdiction or the facial invalidity of the judgment. Garrison , 2018 Ark. 8, 534 S.W.3d 136. Because Watkins's challenge is to his parole eligibility, he fails to establish that the writ should issue, and the circuit court's dismissal of the petition for writ of habeas corpus is affirmed. Affirmed; motion granted. Hart, J., dissents. Josephine Linker Hart, Justice, dissenting. I dissent. This case presents yet another illustration of the various problems with our jurisprudence addressing State habeas corpus claims. Watkins was convicted of kidnapping, second degree battery, and possession of a firearm by certain persons, and sentenced to ten (10), five (5), and five (5) years in ADC, respectively. Watkins also received a fifteen-year firearm enhancement pursuant to Ark. Code Ann. § 16-112-103 (the firearm-enhancement statute). The crimes in question occurred on April 29, 2007, and the filing date of Watkins' confinement order is September 12, 2007. Also in 2007, the General Assembly passed Act 1047, which modified the firearm-enhancement statute to require those upon whom the statute is imposed to serve 70% of his or her sentence before he or she may be considered eligible for parole for crimes committed on or after July 2, 2007 (the 70% requirement). A person's parole eligibility is determined by the laws in effect at the time of the offense for which he or she is sentenced. Ark. Code Ann. § 16-93-612. The Arkansas Department of Correction (ADC) is holding Watkins to the firearm-enhancement statute's 70% requirement before he will be eligible for parole. Watkins filed a habeas corpus petition in Jefferson County Circuit Court arguing that his confinement order was facially invalid, and the circuit court denied his petition without a hearing. Watkins now appeals to this court. Article 2, section 11 of the Arkansas Constitution provides that "The privilege of the writ of habeas corpus shall not be suspended; except by the General Assembly, in case of rebellion, insurrection or invasion, when the public safety may require it." The process by which one applies for the writ is prescribed at Ark. Code Ann. § 16-112-103, which provides that the writ shall be granted "to any person who shall apply for the writ by petition showing, by affidavit or other evidence, probable cause to believe he or she is detained without lawful authority, is imprisoned when by law he or she is entitled to bail, or who has alleged actual innocence of the offense or offenses for which the person was convicted." The majority states, as do many of our prior cases, that habeas corpus relief is only available "when a judgment of conviction is invalid on its face or when a circuit court lacks jurisdiction over the cause." See , e.g. , Smith v. Hobbs , 2015 Ark. 312 at 3, 468 S.W.3d 269 at 273 ("The burden is on the petitioner in a habeas corpus petition to establish that the trial court lacked jurisdiction or that the commitment was invalid on its face; otherwise, there is no basis for a finding that a writ should issue."). As I explained in Stephenson v. Kelley , this "facial invalidity or lack of jurisdiction" rule is an ancient one that should have been expanded long ago in light of various enactments by our State legislature. 2018 Ark. 143, 544 S.W.3d 44 (J. Hart, dissenting). The writ of habeas corpus should not be fettered by such a narrow conception of its purpose. Ark. Code Ann. § 16-112-103 's plain language, which contemplates the petitioner filing an "affidavit or other evidence," necessarily rejects any intimation that a court's review of a habeas petition is limited to an examination of the facial validity of the confinement order or to whether the court that issued the confinement order had proper jurisdiction. However, even under the narrow "facial invalidity or lack of jurisdiction" rule, Watkins should be entitled to some form of relief. Watkins asserts that his confinement order is facially invalid. The confinement order, which specifies April 29, 2007 as the "offense date," imposes a fifteen-year sentence enhancement pursuant to "16-90-120" (the firearm-enhancement statute). However, the confinement order does nothing to specify that Watkins was sentenced pursuant to the firearm-enhancement statute's pre-Act 1047 version, which required those convicted to serve 33.3% to 50% of the sentence, or to otherwise avert the application of the post-Act 1047 version's 70% requirement. This renders Watkins's confinement order facially invalid, as the 70% requirement only became effective July 2, 2007, months after the date of Watkins's offenses and months before the convicting court issued the confinement order. Predictably, this error has led to ADC holding Watkins to a substantially later transfer eligibility date than he would otherwise be entitled to. This error should be corrected. The majority would hold otherwise, suggesting that "habeas proceedings do not extend to issues of parole eligibility and are limited to the questions of whether the petitioner is in custody pursuant to a valid judgment of conviction or whether the convicting court had proper jurisdiction." In support of this proposition, the majority cites to Garrison v. Kelley , 2018 Ark. 8, 534 S.W.3d 136 and Blevins v. Norris , 291 Ark. 70, 722 S.W.2d 573 (1987). However, neither Garrison nor Blevins actually support the majority's proposition. Garrison , the case where the language quoted above first appears, was a case about jury instructions where the trial judge had made certain erroneous comments to the jury before it retired for deliberations about when the petitioner would be eligible for parole in the event of a conviction. 2018 Ark. 8 at 2-4, 534 S.W.3d 136 at 137-38. The petitioner's argument was that the jury, after hearing the incorrect assertion from the trial judge that the petitioner could be paroled after serving only one sixth of a term-of-years sentence, did not "want the petitioner to only serve one sixth or less and therefore imposed a life sentence." Id. The language from Garrison referenced in the majority opinion here had nothing to do with the actual issue on appeal in that case (a trial error regarding jury instructions), and is accordingly dicta. Id. Garrison cited to Blevins in support of this proposition, but this was also in error. Id. at 4, 534 S.W.3d at 138. In Blevins , the petitioner was attempting to use a habeas corpus petition to challenge the constitutionality of the entire parole-eligibility statute. 291 Ark. 70, 722 S.W.2d 573. While the court there held that a habeas corpus petition was not the proper vehicle to challenge the constitutionality of the statute, the court certainly did not hold that the writ habeas corpus can never address issues of parole eligibility. Id. at 71, 722 S.W.2d at 574. In short, neither Garrison nor Blevins defeat Watkins' claim. Turning back to Watkins's claim, the writ of habeas corpus would be perfectly appropriate in this situation. Watkins asserts that his confinement order is facially invalid, and his claim appears to be meritorious, as set forth above. We should be remanding this case to the circuit court. Watkins tendered eight copies of the appellant's brief one day late. Although the brief was noncompliant, had it been tendered on or by the due date, Watkins would have been granted a fourteen-day compliance extension. See Ark. Sup. Ct. R. 4-7(c)(4) (2017). Due to the reasons given and Watkins's expeditious return of a compliant brief, Watkins has provided good cause for the late tender of the appellant's brief. For good cause shown, Watkins's motion for belated brief is granted. Arkansas Code Annotated section 16-90-120 (Repl. 2006) was amended by Act 1047 § 5 of the Acts of 2007 with the amendment to become effective on July 31, 2007. Arkansas Code Annotated section 16-90-120 (Repl. 2006) contained what is currently in subsection (a), (b), (c), and (d). The 2007 amendment essentially amended the section adding subsection (e), adding the 70 percent provision and making the subsection applicable for offenses "committed on or after July 2, 2007."

DAVID M. GLOVER, Judge Marie White appeals the Arkansas Workers' Compensation Commission's (Commission) denial of her claim that she suffered a compensable injury while working for appellee Butterball, LLC (Butterball). On appeal, she argues the Commission's decision is not supported by substantial evidence. We affirm. White was the sole witness at the hearing before the administrative law judge (ALJ). She testified that, on April 29, 2016, she injured her left wrist while she was dumping an approximately 300-pound barrel of unusable turkey parts and the handle of the barrel broke, pulling her left hand. She said she immediately began hurting from the middle of her left hand down into her wrist, but she did not report the incident, thinking she was not seriously injured. When she returned to work two days later, her wrist began hurting and swelling while she was taking boxes to the parts room. White reported her wrist pain to Kevin Carter, her day manager, and was instructed to see the nurse, where she was written up for property damage, failure to report an injury, and for a safety violation for failure to report an accident. Butterball did not send White to a doctor, but she presented at the emergency room on her own, where x-rays were taken and she was given anti-inflammatory medication and a splint. White testified she quit her job at Butterball when she was not allowed to seek treatment for her hand and wrist. She sought treatment from her primary-care physician, Dr. Brandi Guthrey, who initially put her on anti-inflammatory medications and then on neuropathy medication; she also sent White to physical therapy. White said her left wrist continued to bother her, she had trouble driving, she dropped things, and she could not lift with her left hand. White was sent for a nerve-conduction study in late September, which came back abnormal in both her left and right hands, indicating bilateral carpal-tunnel syndrome. She was scheduled to see an orthopedic surgeon approximately one month after the hearing before the ALJ. White asserted she had never had any problem with her left hand or wrist prior to the handle breaking on the waste barrel, but she has had problems with them ever since that time. On cross-examination, White said she had only worked at Butterball for a little over one month before the barrel incident. She was unsure how she had come to have bilateral carpal-tunnel syndrome. White admitted Dr. Guthrey had told her at one point that her weight was a major health issue, and she believed White's carpal-tunnel symptoms were weight related. She said Dr. Guthrey did not want to talk about her left wrist being a workers'-compensation issue; rather, she was more concerned about White losing weight. White said she was currently trying to lose weight; she had lost fifty pounds in three months. The first medical record provided by White was from her May 16, 2016 visit to Dr. Guthrey, which indicated White's chief complaint was left-wrist pain from a fall, but it also stated a host of other problems that were addressed at this visit, including not only left-wrist pain but also issues including obesity, polycystic ovaries, acute conjunctivitis, and joint pain. Dr. Guthrey ordered x-rays of White's wrist and referred White to physical therapy; she also wanted to look into a bariatric referral for White's obesity. The record did not indicate that any of White's issues were work related. The x-rays of White's left wrist showed no evidence of acute fracture or subluxation; the joint spaces were maintained; the soft tissues were unremarkable; and there was no acute osseous abnormality. Dr. Guthrey released White to return to work on June 10, 2016. White began physical therapy on June 8, 2016, twice a week for four weeks. A nerve-conduction test was performed on September 30, 2016; the results of the study were abnormal, showing bilateral carpal-tunnel syndrome and sensory neuropathy of the bilateral upper extremity. In his order, the ALJ found White had failed to meet her burden of proving by a preponderance of the evidence that she suffered a compensable injury to her left wrist in the form of carpal-tunnel syndrome. The ALJ initially noted that while persons diagnosed with carpal-tunnel syndrome allege a gradual-onset injury, White contended that her carpal-tunnel syndrome was the result of a specific incident that occurred on April 29, 2016. In denying White's claim, the ALJ found that even though the nerve-conduction test confirmed carpal-tunnel syndrome, there was insufficient evidence to link it to a specific injury on April 29, 2016; the nerve-conduction test indicated bilateral carpal-tunnel syndrome, but White claimed only a compensable injury to her left wrist; the fact she also had carpal-tunnel syndrome on the right side without a history of injury indicated that the left side was not causally related to any incident on April 29; Dr. Guthrey attributed White's symptoms to her weight; and no physician was of the opinion her carpal-tunnel syndrome was causally related to the April 29 incident. The Commission affirmed and adopted the ALJ's opinion. Arkansas law permits the Commission to adopt the ALJ's opinion. Stoker v. Thomas Randal Fowler, Inc. , 2017 Ark. App. 594, 533 S.W.3d 596. When the Commission adopts the ALJ's opinion, it makes the ALJ's findings and conclusions its findings and conclusions, and for the purpose of appellate review, we consider both the ALJ's opinion and the Commission's majority opinion. Id. When the Commission denies benefits because a claimant has failed to meet his or her burden of proof, the substantial-evidence standard of review requires that we affirm if the Commission's decision displays a substantial basis for the denial of relief. Fulbright v. St. Bernard's Med. Ctr. , 2016 Ark. App. 417, 502 S.W.3d 540. On appeal, the appellate court views the evidence in the light most favorable to the Commission's decision and affirms the decision if it is supported by substantial evidence, which is evidence that a reasonable mind might accept as adequate to support a conclusion. Jones v. Target Corp. , 2017 Ark. App. 199, 518 S.W.3d 119. The issue on review is not whether the evidence would have supported a contrary finding or whether we might have reached a different result; we affirm if reasonable minds could reach the Commission's conclusion. Bennett v. Tyson Poultry, Inc. , 2016 Ark. App. 479, 504 S.W.3d 653. We defer to the Commission on issues involving credibility and the weight of the evidence. Frost v. City of Rogers , 2016 Ark. App. 273, 492 S.W.3d 875. In Yates v. Boar's Head Provisions Co., Inc. , 2017 Ark. App. 133, at 4-5, 514 S.W.3d 514, 516-17, our court held: To prove a compensable injury as a result of a specific incident that is identifiable by time and place of occurrence, the claimant must establish by a preponderance of the evidence (1) an injury arising out of and in the course of employment; (2) that the injury caused internal or external harm to the body that required medical services or resulted in disability or death; (3) medical evidence supported by objective findings, as defined in Ark. Code Ann. § 11-9-102(16) (Repl. 2012), establishing the injury; and (4) that the injury was caused by a specific incident identifiable by time and place of occurrence. Ark. Code Ann. § 11-9-102(4)(A)(i). White argues that she injured her wrist on April 29, 2016, and reported it to her supervisor two days later; she immediately experienced pain from the middle of her left hand to her left wrist when the incident occurred; and there was no evidence she had any problem with her left wrist before the April 29 incident. She contends the April 29 incident aggravated her asymptomatic carpal-tunnel syndrome, which was discovered only after the April 29 incident. In workers'-compensation law, an employer takes the employee as he finds them, and employment circumstances that aggravate preexisting conditions are compensable. Johnson v. PAM Transport, Inc. , 2017 Ark. App. 514, 529 S.W.3d 678. An aggravation of a preexisting noncompensable condition by a compensable injury is, itself, compensable. Id. An aggravation is a new injury resulting from an independent incident. Id. An aggravation, being a new injury with an independent cause, must meet the definition of a compensable injury in order to establish compensability for the aggravation. Id. There is a substantial basis for the Commission's denial of White's claim. There is no indication in White's medical records of any injury to her left hand and wrist due to a work-related injury, such as swelling or bruising; her May 16 visit to Dr. Guthrey only indicated left-wrist pain from a fall, not from a work-related incident. Furthermore, no physician causally related White's left-side carpal-tunnel syndrome to the April 29 incident; in fact, Dr. Guthrey attributed White's carpal-tunnel syndrome symptoms to her morbid obesity. Because there is a rational basis for the Commission's denial of White's claim, we affirm. Affirmed. Virden and Brown, JJ., agree.

A. Best Interest In her first point on appeal, Whitaker argues that the circuit court erred in finding that termination of her parental rights was in the best interest of her children. In making a "best interest" determination, the circuit court is required to consider two factors: (1) the likelihood that the child will be adopted and (2) the potential of harm to the child if custody is returned to a parent. Ford v. Ark. Dep't of Human Servs. , 2014 Ark. App. 226, at 2, 434 S.W.3d 378, 380 ; Tucker v. Ark. Dep't of Human Servs. , 2011 Ark. App. 430, 389 S.W.3d 1. Whitaker challenges the circuit court's findings with respect to both adoptability and potential harm. 1. Adoptability A best-interest finding under the Arkansas Juvenile Code must be based on the consideration of two factors, the first of which is the child's likelihood of adoption. Ark. Code Ann. § 9-27-341(b)(3)(A)(i) (Supp. 2017). Adoptability is not a required finding, and likelihood of adoption does not have to be proved by clear and convincing evidence. Duckery v. Ark. Dep't of Human Servs. , 2016 Ark. App. 358, 2016 WL 4455696. We have previously explained that the Juvenile Code does not require "any 'magic words' or a specific quantum of evidence" to support a finding as to likelihood of adoption. Sharks v. Ark. Dep't of Human Servs. , 2016 Ark. App. 435, at 8, 502 S.W.3d 569, 576. The law simply requires that the court consider adoptability and that if there is an adoptability finding, there must be evidence to support it. See Haynes v. Ark. Dep't of Human Servs. , 2010 Ark. App. 28, 2010 WL 135194 (reversing a best-interest determination because no evidence of adoptability was introduced and the court failed to consider adoptability). Whitaker argues that the circuit court erred in finding that the children were adoptable because the evidence relied on to make that finding was "speculative, at best." She contends that the plain wording of Arkansas Code Annotated section 9-27-341 makes consideration of the likelihood that the children will be adopted "mandatory" and that there must be some quantum of evidence to support a circuit court's finding on adoptability. She complains that the adoption specialist, Danyetta Pride, did not testify as to any specific characteristics of the children that made them adoptable and that her testimony that the children were adoptable "as a sibling group" did not indicate if all four children would be adoptable together, when C.W. had significant behavioral issues. This court recently discussed the quantum of proof necessary to sustain a circuit court's findings regarding adoptability in McNeer v. Arkansas Department of Human Services , 2017 Ark. App. 512, 529 S.W.3d 269 : McNeer asserts that no evidence was introduced at the termination hearing to establish the adoptability of the children. Here, McNeer argues that "the plain language" of section 9-27-341(b)(3)(A)(i) makes consideration of the likelihood that the children will be adopted "mandatory." It is true that our court has interpreted the statute as having that meaning. See Lively v. Ark. Dep't of Human Servs. , 2015 Ark. App. 131, at 5, 456 S.W.3d 383, 387 (citing Haynes v. Ark. Dep't of Human Servs. , 2010 Ark. App. 28 ). The statute does mandate that the circuit court "consider" the likelihood of adoptability. The statute does not, however, mandate that the circuit court make a specific finding that the children are adoptable, nor must the court find the children are "likely" to be adoptable. The statute only mandates the "consideration" of the likelihood of adoptability. We have held that adoptability is "but one factor that is considered when making a best-interest determination." Renfro v. Ark. Dep't of Human Servs. , 2011 Ark. App. 419, at 6, 385 S.W.3d 285, 288 (emphasis in original) (citing McFarland v. Ark. Dep't of Human Servs. , 91 Ark. App. 323, 210 S.W.3d 143 (2005) ). To that end, we have held that adoptability "is not an essential element in a termination case." Tucker v. Ark. Dep't of Human Servs. , 2011 Ark. App. 430, at 7, 389 S.W.3d 1, 4 ; see also Smith v. Ark. Dep't of Human Servs. , 2017 Ark. App. 368, at 8, 523 S.W.3d 920, 926 (stating that termination requires that the circuit court consider the likelihood of adoption but that the factor does not require that adoptability be proved by clear and convincing evidence); Singleton v. Ark. Dep't of Human Servs. , 2015 Ark. App. 455, at 6, 468 S.W.3d 809, 813 (noting that adoptability is not an essential element of proof). Rather, it is the "best interest" finding that must be supported by clear and convincing evidence. Salazar v. Ark. Dep't of Human Servs. , 2017 Ark. App. 218, at 14, 518 S.W.3d 713, 722. McNeer , 2017 Ark. App. 512, at 5-6, 529 S.W.3d at 272-73. In light of the standard set out in McNeer , we hold that there was sufficient evidence on which the circuit court could base its findings regarding the adoptability of the children. As set out above, DHS adoption specialist Danyetta Pride specifically testified that the children are adoptable, are adoptable as a sibling group, and there are fifty-nine families on a data-matching list that had expressed interest in adopting children with the same characteristics of these children. Our appellate courts have repeatedly held that the testimony of an adoption specialist is sufficient to support a circuit court's adoptability findings. See, e.g. , Martin v. Ark. Dep't of Human Servs. , 2017 Ark. 115, 515 S.W.3d 599 ; Brumley v. Ark. Dep't of Human Servs. , 2015 Ark. 356, 2015 WL 5895440 ; Hughes v. Ark. Dep't of Human Servs. , 2017 Ark. App. 554, 530 S.W.3d 908 ; Thompson v. Ark. Dep't of Human Servs. , 2012 Ark. App. 124, 2012 WL 386762. 2. Potential harm In conducting the best-interest analysis, the court must consider the potential harm in returning the child to the parent. Ark. Code Ann. § 9-27-341(b)(3)(A)(ii). This potential-harm inquiry is but one of the many factors that a court may consider, and the focus is on the potential harm to the health and safety of a child that might result from continued contact with the parent. Tadlock v. Ark. Dep't of Human Servs. , 2009 Ark. App. 841, 372 S.W.3d 403. The court is not required to find that actual harm would result or to affirmatively identify a potential harm. Id. Furthermore, the potential-harm analysis should be conducted in broad terms. Id. In her second subpoint, Whitaker argues that the court erred in finding that returning the children to her presented a risk of potential harm. She contends that the circuit court erred in focusing almost exclusively on her past struggles with drug addiction; in relying on a psychological evaluation administered in March 2016, shortly after this case was opened; and in failing to consider any evidence of the improvements she had made since the beginning of the case. She further cites to the testimony of the caseworker, who stated that she did not believe that termination was in the children's best interests. However, the court did not rely solely on Whitaker's psychological evaluation, and it did not fail to note that she had made "efforts." The court found, however, that those efforts were "eleventh hour efforts" that did not compensate for her "significant pattern of polysubstance abuse ... going back at least ten years," her persistent relapses into drug abuse, her lack of insight, her mental-health issues, her very recent release from rehabilitation, and her failure to cooperate throughout the case. In Sharks v. Arkansas Department of Human Services , 2016 Ark. App. 435, 502 S.W.3d 569, this court upheld the circuit court's potential-harm findings based on similar evidence: Although Sharks tried to rehabilitate himself in the eleventh hour, these improvements need not be necessarily credited by the circuit court and do not necessarily outweigh evidence of prior noncompliance. By the time Sharks had been released from jail and had begun serious rehabilitation efforts, D.S. had been in DHS custody for nearly a year. Over the course of the case, Sharks tested positive for alcohol, was arrested at least twice for public intoxication, and was inconsistent in visiting D.S. While Sharks's purposeful efforts to complete most of the significant aspects of the case plan in the six weeks before the termination hearing are admirable, they do not warrant reversal. Had Sharks put forth those efforts earlier in the case, a termination may have been prevented, but Sharks's efforts to get his life together were still a work in progress at the time of the termination hearing. Given Sharks's history of mixing prescription medications and alcohol, his arrests for public intoxication, and his odd behavior during previous hearings, the court was not clearly wrong to find a likelihood of potential harm if D.S. was to return to his custody. Past actions of a parent over a meaningful period of time are good indicators of what the future may hold. Sharks's behaviors over the course of the entire case do not show enough stability and sobriety to render the court's finding that Sharks posed a risk of potential harm to D.S. clearly erroneous. Sharks , 2016 Ark. App. 435, at 11, 502 S.W.3d at 577 (internal citations omitted). Similarly, here, the circuit court's observation of Whitaker's past actions over the course of the case factored into its conclusions that her eleventh-hour improvements were not enough. We cannot say that the court's potential-harm finding was clearly erroneous. B. Statutory Grounds In her second point on appeal, Whitaker argues that the circuit court erred in terminating her parental rights because there was insufficient evidence offered to support the statutory grounds for termination. She challenges each of the three statutory grounds that the circuit court relied on to terminate; however, only one ground is necessary to terminate parental rights. See, e.g. , Lowery v. Ark. Dep't of Human Servs. , 2012 Ark. App. 478, 2012 WL 4009601. We hold that the circuit court can be affirmed based solely on its findings regarding aggravated circumstances. "Aggravated circumstances" means, among other things, that a determination has been made by a judge that there is little likelihood that services to the family will result in successful reunification. Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3)(B)(i) . Whitaker argues that the circuit court's aggravated-circumstances finding in the termination order was not supported by sufficient evidence because (1) there was a lack of proof as to the provision of timely services and (2) the conclusion that continued services would not result in reunification was mere speculation. However, the circuit court first made its aggravated-circumstances finding in the adjudication order, and the case law is clear that in termination cases, a challenge to a finding of abuse or aggravated circumstances must be made, if at all, in an appeal from the adjudication hearing. See Dowdy v. Ark. Dep't of Human Servs. , 2009 Ark. App. 180, 314 S.W.3d 722. Because there was no such appeal from the adjudication order, we are now precluded from addressing Whitaker's argument. See Denen v. Ark. Dep't of Human Servs. , 2017 Ark. App. 473, 527 S.W.3d 772 (explaining that when a party fails to appeal from an adjudication order and challenge the findings therein, he or she is precluded from asserting error on appeal with respect to those findings from an order terminating parental rights). We therefore affirm the termination of Whitaker's parental rights. II. Ramirez's Appeal Ramirez's points on appeal are somewhat muddled, but he generally challenges the statutory grounds for termination and asserts that DHS failed to provide services to him in a timely manner. A. Statutory Grounds Ramirez argues that he was actively seeking to rehabilitate himself and the conditions that caused removal, that he was remedying all subsequent issues, and that the evidence did not support the circuit court's aggravated-circumstances conclusion that there was "little likelihood that services to the family will result in successful reunification." As with Whitaker, we hold that the circuit court can be affirmed based solely on its findings regarding aggravated circumstances. Again, the circuit court first made its aggravated-circumstances finding in the adjudication order, and the case law is clear that in termination cases, a challenge to a finding of abuse or aggravated circumstances must be made, if at all, in an appeal from the adjudication hearing. See Dowdy, supra. Because there was no such appeal from the adjudication order, we are now precluded from addressing Ramirez's argument and affirm on this point. See Denen, supra. B. Timely Services In his second argument on appeal, Ramirez argues that there was "conflicting evidence as to whether there is a compelling reason not to terminate" his parental rights. He argues that while DHS did provide him services, it "failed to provide such services timely. " (Emphasis in original.) As DHS points out in response, however, Ramirez did not raise an argument about the "timely" provision of services below and thus cannot raise it for the first time on appeal. See Willis v. Ark. Dep't of Human Servs. , 2017 Ark. App. 559, 13-14, 538 S.W.3d 842 ; Maxwell v. Ark. Dep't of Human Servs. , 90 Ark. App. 223, 205 S.W.3d 801 (2005). We therefore affirm the termination of Ramirez's parental rights. Affirmed. Whiteaker and Hixson, JJ., agree.

WAYMOND M. BROWN, Judge Appellant appeals from the Arkansas Workers' Compensation Commission's (Commission) January 12, 2017 opinion affirming and adopting the July 11, 2016 opinion of the administrative law judge (ALJ) denying his claim on finding that the statute of limitations had run in the matter and that he had failed to prove that he was entitled to any additional indemnity benefits. On appeal, appellant argues (1) that the Commission erred in finding that his claim for additional indemnity benefits was barred by the applicable statute of limitations and (2) that Flores's interpretation of the statute of limitations is not strict construction and is therefore contrary to legislative intent. We affirm. Appellant provided the only testimony at the hearing. He testified that he was injured on July 25, 2006. He received temporary total disability benefits through October 15, 2007. He also received medical treatment at the expense of Central States Manufacturing, Inc. (Central States), including surgery with Dr. Blankenship, after which he returned to work. While working for Central States in South Dakota in 2013, appellant started experiencing increased pain, which he reported to Central States. Central States "forced [him] to go through a process with the Workers' Compensation Commission," in which he eventually returned to the care of Dr. Blankenship, who removed him from work and performed a second surgery. Following the surgery, he attempted to return to work under partial day and limited activity restrictions in 2014, but his pain increased despite being limited to four-hour work days. He returned to Dr. Blankenship, who again removed him from work after finding that appellant's pain levels were increasing. It was during this time when he was "totally off work by Dr. Blankenship's recommendation" that Central States fired him saying that he was "no longer needed." Appellant had not been employed at all since his termination by Central States, but he applied and was approved for Social Security disability benefits. Central States stopped paying indemnity benefits when it fired him, though it had resumed doing so after his second surgery. Appellant testified that "[t]here was a period of about five years that [he] did not receive any type of indemnity benefit, only medical"; he thought the gap was between 2007 and 2012. He was not asked about any indemnity benefits during that time nor did he ask. He never made a written claim for indemnity benefits and did not request additional indemnity benefits before hiring an attorney. He stated that he "never saw a need to request additional benefits; [he] did not know it was an option." Following appellant's testimony, the ALJ ordered briefs from both parties, which were submitted by both parties on May 13, 2016. The ALJ filed his opinion on July 11, 2016, in which he found that (1) the statute of limitations had run on appellant's claim for indemnity benefits, (2) appellant had failed to prove the defense of estoppel as it related to appellee's claim that the statute of limitations had run in this matter, and (3) appellant had failed to prove that he was entitled to any additional indemnity benefits. Accordingly, the ALJ denied appellant's claim in its entirety. Appellant timely appealed to the Commission, which entered its opinion on January 12, 2017, affirming and adopting the opinion of the ALJ. This timely appeal followed. Under Arkansas law, the Commission is permitted to adopt the ALJ's opinion. In so doing, the Commission makes the ALJ's findings and conclusions the findings and conclusions of the Commission. Therefore, for purposes of our review, we consider both the ALJ's opinion and the Commission's majority opinion. In appeals involving claims for workers' compensation, the appellate court views the evidence in the light most favorable to the Commission's decision and affirms the decision if it is supported by substantial evidence. Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. The issue is not whether the appellate court might have reached a different result from the Commission, but whether reasonable minds could reach the result found by the Commission. Additionally, questions concerning the credibility of witnesses and the weight to be given to their testimony are within the exclusive province of the Commission. When there are contradictions in the evidence, it is within the Commission's province to reconcile conflicting evidence and determine the facts. This court will reverse the Commission's decision only if it is convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. Questions of law are reviewed de novo. In addition to reviewing the record for substantial evidence, however, we also examine the record for matters that would toll the limitations statute. Appellant's first argument on appeal is that his claim for additional indemnity benefits is timely because Central States has provided continuous compensation. In support of this argument, he asserts that (1) his August 18, 2014 request for additional indemnity payments was within one year of his last payment of compensation, which was for his June 19, 2014 visit with Dr. Blankenship; and (2) the plain language of the statute-which refers to "any additional compensation"-does not require the last paid compensation to be the same kind sought for additional compensation, noting that courts have defined "last payment compensation" to include the date medical services were last provided. Arkansas Code Annotated section 11-9-702 states in relevant part, that "[i]n cases where any compensation, including disability or medical, has been paid on account of injury, a claim for additional compensation shall be barred unless filed with the commission within one (1) year from the date of the last payment of compensation, or two (2) years from the date of the injury, whichever is greater." All parties agree that appellant never filed a Form AR-C, which is the typical method to notice a claim. However, he did notice a claim by requesting a hearing on the "issue of permanent and total benefits" by letter from his counsel dated August 18, 2014. Accordingly, absent some action that tolled the statute of limitations, appellant's claim for additional indemnity benefits would normally have had to be filed within one year of August 14, 2014 (the date of the last receipt of medical benefits) or two years from July 25, 2006 (the date of injury). Under this timeline, it may have been possible that the statute of limitations had not run on appellant's request for additional indemnity benefits. However, the fact that Central States paid appellant indemnity benefits and then ceased for a period of time before resuming so bears on the outcome of this matter. Appellant's indemnity payments ceased from October 15, 2008, to October 28, 2013. While it is clear that appellant's medical treatment continued through this gap in indemnity payments, the fact remains that appellant's indemnity payments stopped for a period of five years before being resumed and he failed to file any claim for benefits during this time-formal or otherwise. This is similar to the appellant in Flores , who was injured on April 30, 2005, for which she received medical treatment and total temporary disability (TTD) benefits; filed a Form AR-C seeking additional treatment and TTD benefits on June 29, 2005; had a hearing and was awarded treatment and TTD benefits from June 17, 2005, through June 30, 2005; returned to work for the employer but eventually ceased working altogether; and did not request additional compensation until October 11, 2010. Noting that the parties had stipulated that Flores's last medical treatment occurred on July 6, 2009, the ALJ issued an opinion granting Flores's claims for additional medical benefits, but stated that her claims for benefits attributable to permanent impairment and wage-loss disability were barred because they were first raised in her October 11, 2010 letter, a date which was not within two years of her injury or one year of her last payment of compensation. This court affirmed the ALJ and in doing so, made it clear that the statute of limitations can run on a claim for additional indemnity benefits and not have run on additional medical benefits. In the case at bar, appellant never filed any request for additional indemnity benefits-whether through the typical Form AR-C form or another method-until August 18, 2014, and this request was made after there had been a five-year gap in receipt of indemnity benefits. That gap began and ended a little less than six years and three years, respectively, before the date of appellant's claim for indemnity benefits. The purpose of the statute of limitations in workers' compensation cases is to permit a claimant's injuries to be promptly investigated and treated. The burden of filing a claim for additional benefits within the statute of limitations is upon the claimant. While certain claims may toll the running of the statute of limitations, such claims cannot revive other forms of compensation once the statute has run. This court cannot find that the ALJ erred in finding that appellant's claim for indemnity payments was barred by his failure to raise his claim within the appropriate period of time after Central States ceased paying indemnity benefits nor can it find error in the ALJ's assertion that "gratuitous payment of indemnity benefits does not revive the state of limitations[.]" Appellant's second argument is that Flores's interpretation of the statute of limitations is not strict construction, and is therefore contrary to legislative intent. In support of this argument, he asserts that the Flores interpretation restricts the statute of limitations against legislative intent, and that Flores broadens the statute of limitations leading to absurd results not intended by the legislature. According to appellant, "[i]f the legislature intended to have a distinction between requesting additional medical and additional indemnity, it would have specifically included language stating that an additional benefits claim must be for each distinct type of compensation[.]" Appellant asserts that this court has read a different statute of limitations for indemnity and medical benefits into the statute. Appellant's reading misunderstands the holding in Flores as Flores was held to the same one-year-from-the-date-of-the-last-payment-of-compensation statute of limitations given in the statute. Furthermore, the Flores court looked to Stewart v. Arkansas Glass Container to address the same argument that appellant now makes, namely, that it failed to strictly construe the statute. The Flores court noted that among other things, the Stewart court also held that Stewart's claim for medical benefits "would have tolled the statute of limitations only with regard to that specific claim and not as to other claims for benefits not requested at that time." The Stewart court therefore indicated, even prior to the Flores court, that there is a distinction in the statute of limitations for additional medical benefits as opposed to additional indemnity benefits so that the statute of limitations may run on one type of benefit and not the other. Finally, we note that the legislature has yet to amend the statute to correct or overturn Stewart or Flores , if it saw fit. Affirmed. Klappenbach and Whiteaker, JJ., agree. Flores v. Walmart Distrib. , 2012 Ark. App. 201, 2012 WL 723252. He continued to receive medical treatment after the surgery through 2016. The parties stipulated in the April 12, 2016 prehearing order that appellant was "currently receiving medical benefits for his claim and no controversy exists regarding those current benefits." Williams v. Ark. Dep't of Cmty. Corr. , 2016 Ark. App. 427, at 4, 502 S.W.3d 530, 533 (citing SSI, Inc. v. Cates , 2009 Ark. App. 763, 350 S.W.3d 421 ). Id. at 4-5, 502 S.W.3d at 533. Id. at 5, 502 S.W.3d at 533. Skinner v. Tango Transp., Inc. , 2016 Ark. App. 304, at 8, 495 S.W.3d 637, 643 (citing Prock v. Bull Shoals Boat Landing , 2014 Ark. 93, 431 S.W.3d 858 ). Id. Id. Id. Id. Id. Id. (citing Johnson v. U.S. Food Serv., Inc. , 2013 Ark. App. 86, 2013 WL 543906 ). Plante v. Tyson Foods , 319 Ark. 126, 128, 890 S.W.2d 253, 254 (1994) (citing McFall v. United States Tobacco Co. , 246 Ark. 43, 436 S.W.2d 838 (1969) ). Appellant was provided medical treatment continuously until June 19, 2014, and his last indemnity payment was received August 14, 2014. Ark. Code Ann. § 11-9-702(b)(1) (Repl. 2012). We should note that though medical payments were made until this date, appellant reached maximum medical improvement on June 19, 2014. Neither party appealed this award. Flores had previously requested a hearing on her entitlement to medication and additional medical treatment in a letter to the Commission dated April 8, 2009, but it was canceled by the parties on June 24, 2009. St. John v. Ark. Lime Co., (Rangaire Corp.) , 8 Ark. App. 278, 283, 651 S.W.2d 104, 106 (1983) (citing Woodard v. ITT Higbie Mfg. Co. , 271 Ark. 498, 609 S.W.2d 115 (Ark. App. 1980) ). Id. (citing Petit Jean Air Serv. v. Wilson , 251 Ark. 871, 475 S.W.2d 531 (1972) ). Terminal Van & Storage v. Hackler , 270 Ark. 113, 117, 603 S.W.2d 893, 896 (Ark. Ct. App. 1980). Two years had clearly passed from the date of Flores's July 6, 2009 injury. 2009 Ark. App. 300, 307 S.W.3d 614. Flores , 2012 Ark. App. 201, at 6-7.

PHILLIP T. WHITEAKER, Judge In this one-brief appeal, appellants William and Bettie Schernikau contend that the Benton County Circuit Court erred in enforcing an attorney's lien in favor of appellee Jeremiah Pearson. Because of multiple problems with the record, abstract, and addendum, however, we are unable to reach the merits of the Schernikaus' arguments at this time. I. Background This case originally began as a personal-injury case arising out of a motor-vehicle accident allegedly caused by appellee Beau Williamson in June 2012. The Schernikaus were initially represented by appellee Pearson. At some point, the Schernikaus terminated Pearson's employment, and they hired their current counsel, Glenn Gulick, who settled the case in July 2016. It is unclear from the record and addendum exactly what transpired between the two attorneys over the next few weeks, but Gulick wrote to Pearson in August 2016 to "advise as to the amount of quantum meruit claim [he was] asserting for attorney's fees." Apparently, Pearson did not respond to this communication. Gulick, on behalf of the Schernikaus, subsequently filed a "Motion to Determine Attorney's Lien" in September 2016, asking the circuit court to "adjudicat[e] the alleged lien of Jeremiah Pearson who was discharged by plaintiffs prior to suit being filed in this case." Pearson responded and stated that the Schernikaus were "made aware of his right to claim his attorney's lien and expenses in a letter dated January 3, 2014." Pearson purported to attach a copy of this letter as exhibit A, but the letter does not appear in the record. At a hearing on the Schernikaus' motion, neither attorney called witnesses, but the court and counsel discussed the fact that the Schernikaus had given videotaped depositions and that the court had a copy of the videotapes and the transcripts of those depositions: COURT : All right, counsel, tell me how you want to proceed. Mr. Gulick, I don't know if you want to call witnesses, if you just want to-I know you left for my office a notebook that looks about like that. GULICK : Yes, Your Honor. When we had a telephone conference with the Court,- COURT : Uh-huh. GULICK : -you had indicated a preference that-that depositions be taken and submitted to the Court for consideration. We-we've done that. It-everybody's been-I think it's important that a deposition has been taken, and it's included in the binder, Judge- COURT : Yes. GULICK : -both by written transcript, and then by video. COURT : Yes, sir. And I have-I've looked at those. I have not watched the videos yet. I have read all of the depositions and looked at the records so-that are included therewith. GULICK : And anything else I would have at this time would just be redundant then, Judge. COURT : OK. Very good. Mr. Pearson, anything else you want to present? PEARSON : Your Honor, well, it's my understanding on the Court's instructions about the depositions that they are in lieu of the Schernikaus' unavailability.... I would argue that it's not an exhibit so much as their live testimony before this Court, Judge. COURT : I agree with you. I agree. That's what-that's the way I accepted it, is their live testimony before the Court. The parties then went on to argue the merits of Pearson's attorney's lien. The transcript of the hearing does not indicate that any documents or any other items of evidence were introduced into the record. Following the hearing, the circuit court entered an order finding that Pearson was "entitled to judgment in this matter in the amount of 25% of the [Schernikaus'] total settlement ... plus his expenses." Gulick filed a timely notice of appeal in which he designated the complaint; all pleadings "and other matters filed of record on and after July 25, 2016"; the docket sheet; and the transcript of the hearing. Gulick also included the following paragraph in his notice of appeal, designating [a]ll matters which the trial court deemed to be admitted or received in evidence, or relied upon, in connection with the hearing of February 2, 2017. Appellant understands there is an issue with regards to a binder which was presented to the trial court prior to hearing of February 2. The trial court did review the binder and contents, as evidenced by comments made during the hearing and the Order of February 13, 2017. Appellants have no objection to whatever action the trial court deems appropriate in regards to whether the binder is or is not to be regarded as a part of the record in this action. Neither the binder nor its contents appear in the record of this case. On appeal, the Schernikaus raise three arguments for reversal: (1) there is no evidence contained in the record in this case, and therefore, the judgment appealed from lacks any evidentiary support; (2) Pearson was not entitled to an attorney's fee based on his contingency-fee contract with the Schernikaus; and (3) the judgment awarding Pearson "25% of the total settlement" is void and unenforceable. II. Deficiencies in the Record, Addendum, and Abstract As noted above, we must order rebriefing at this time because of multiple deficiencies in the record, addendum, and abstract. We first consider the deficiencies in the record. The gist of the Schernikaus' first argument on appeal is that there was no evidence of record presented at the hearing; therefore, they argue, the circuit court's order is unsupported by the evidence. Neither party moved at the hearing to introduce the binder of depositions into evidence. It is apparent from the circuit court's comments at the hearing, however, that it considered the substance of the Schernikaus' depositions and that it considered those depositions to be in lieu of live testimony. We must therefore remand this case to settle and supplement the record to include the contents of the binder. See Ark. R. App. P.-Civ. 6(e) ("If anything material to either party is omitted from the record by error or accident or is misstated therein, ... the appellate court ... on its own initiative, may direct that the omission or misstatement be corrected, and if necessary, that a supplemental record be certified and transmitted."). We next find a deficiency in the record that is relevant to the Schernikaus' second argument on appeal-namely, that the contingency-fee contract they had with Pearson did not entitle him to attorney's fees. The contract, however, is not in the record, nor is the letter that Pearson claimed informed the Schernikaus of his right to pursue an attorney's lien and which he purported to attach as exhibit A to his response to the motion to determine attorney's lien. Gulick attempted to tender a copy of the contingency-fee contract to our clerk's office, but his tender was rejected. Gulick nonetheless included a copy of the contract in his addendum, in violation of Arkansas Supreme Court Rule 4-2(8). This rule provides that an appellant's addendum is to contain "true and legible copies of the non-transcript documents in the record on appeal that are essential for the appellate court to confirm its jurisdiction, to understand the case and to decide the issues on appeal. The addendum shall not merely reproduce the entire record of trial court filings, nor shall it contain any document or material that is not in the record. " (Emphasis added.) See also Doughty v. Douglas , 2016 Ark. App. 463, at 4, 2016 WL 5799619. The record should also be supplemented with a copy of this contract as well as the letter designated as exhibit A. See Ark. R. App. P.-Civ. 6(e). Having addressed the deficiencies in the record, we turn to the deficiencies in the addendum. In addition to the items addressed above that were not incorporated into the record, the addendum fails to include a copy of the complaint that began this case-the personal-injury action against appellee Williamson. Arkansas Supreme Court Rule 4-2(8)(A) requires the addendum to include "the pleadings ... on which the circuit court decided each issue [including the] complaint[.]" Finally, we consider the deficiencies in the abstract. An abstract is required by Arkansas Supreme Court Rule 4-2(5)(B) to be an "impartial condensation, without comment or emphasis, of the transcript." The abstract submitted in this case falls far short of that requirement. Rather than being an impartial condensation of the transcript, it appears to consist mainly of a general summary of the arguments of counsel and colloquies between counsel and the court, with the writer's impressions of what was transpiring at the hearing and commentary thereon. An abstract should be sufficient for this court to reach the merits of the case by providing an impartial condensation of the attorneys' arguments and the court's rulings that are necessary for us to understand the questions on appeal in accordance with our rules, and the burden is on the appealing party to provide an abstract sufficient for appellate review. Longley v. Gatewood , 2016 Ark. App. 365, at 5, 2016 WL 4540043. As counsel has fallen short of this burden, we direct that a substituted abstract be filed as well. Counsel shall have thirty days to settle and supplement the record. See, e.g. , Buckley v. Summerville , 2017 Ark. App. 623, 2017 WL 5476319 ; Lacy v. State , 2017 Ark. App. 509, 2017 WL 4399844. Upon settling and supplementation of the record, a substituted abstract and addendum shall be filed within fifteen days. See Ark. Sup. Ct. R. 4-2(b)(3). Remanded to settle and supplement the record; rebriefing ordered. Harrison and Hixson, JJ., agree. Beau Williamson was under the age of eighteen at the time of the accident, and his mother, appellee Angela Williamson, was named as a defendant as the person who signed Beau's application for a driver's license.

MIKE MURPHY, Judge Appellant Phillip Herren was charged in the Cleveland County Circuit Court with one count of rape and one count of possession of firearms by certain persons. The charges were severed and appellant was first tried at a bench trial for the firearm offense, which is the subject of this appeal. The court found him guilty and sentenced him to ten years in the Arkansas Department of Correction (ADC) and ten years' suspended imposition of sentence, to run concurrently. On appeal, appellant contends that the circuit court abused its discretion when it mechanically refused to order a presentence report (PSR), which appellant requested. We affirm. After the court found appellant guilty, appellant requested a PSR prior to sentencing. The court declined to grant the request, and the State went on to present appellant's criminal history to the circuit court, which included an aggravated-robbery conviction. Appellant did not dispute his criminal history but asked the court to consider his familial circumstances, including his wife's declining health and that he is a cancer survivor and is in treatment for a seizure disorder. Once both sides rested, the circuit court stated, "There is a reason that there is a law against felons being in possession of firearms and there's also a reason why there's what amounts to an enhanced penalty range when there's a violent conviction involved." The court then sentenced appellant, and this timely appeal followed. The decision whether to permit a PSR or evidence in mitigation of sentence is within the discretion of the circuit court. Harrison v. State , 303 Ark. 247, 796 S.W.2d 329 (1990). The PSR governing statute provides that "[i]f punishment is fixed by the court, the court may order a presentence investigation before imposing sentence." Ark. Code Ann. § 5-4-102 (Repl. 2013) (emphasis added). In Scott v. State , the Arkansas Supreme Court found that the circuit court exercised its discretion and did not mechanically make its ruling where the circuit court, "having heard during the testimony the background of the [d]efendant," had "sufficient facts" and denied the PSR request. Scott , 284 Ark. 388, 389, 681 S.W.2d 915, 916 (1985). On appeal, appellant claims that, despite timely requesting a PSR, the circuit court mechanically refused to order one and instead immediately proceeded to sentencing without providing any reasoned basis for doing so. He argues that PSRs are valuable sentencing tools and because the court chose to forgo one, it failed to consider appellant's mitigating circumstances. We do not agree. Rather than sentencing based on a PSR, the circuit court heard both testimony and arguments regarding appellant's situation. At sentencing, the circuit court was asked to consider the age of appellant's prior convictions, his and his wife's declining health, and the State's recommended sentence of at least five years in the ADC. Before the court sentenced appellant, it provided its reasoning for its decision. Because the PSR statute is not mandatory and the court made reference to the evidence it had heard when it sentenced appellant, we hold that the court exercised its discretion in refusing to order a PSR. Nothing in the record shows an abuse of that discretion. Affirmed. Gladwin and Vaught, JJ., agree.

ROBERT J. GLADWIN, Judge Appellant Larry Rothrock appeals the July 24, 2017 opinion of the Arkansas Workers' Compensation Commission (Commission) that affirmed the January 30, 2017 opinion of the administrative law judge (ALJ) ruling that appellant's claim for additional medical treatment after April 4, 2016, was barred by res judicata. Appellant argues that the Commission erred in (1) requiring appellant to prove that res judicata did not bar his claim; (2) ruling that res judicata barred appellant's claim; and (3) finding that substantial evidence supported its finding that res judicata barred appellant's claim. We affirm. I. Facts On April 30, 2013, appellant sustained a compensable injury to his lower back at work when he was lifting a tub of melted plastic that weighed an estimated forty to fifty pounds. Appellant was initially treated at Arkansas Occupational Health Clinic from May 1 through June 6, 2013. He obtained a change of physician to Dr. Michael Morse at Neuroscience Institute on July 23, 2013. Dr. Morse saw appellant on August 19, 2013, and referred him to Dr. Knox at NWA Neurosurgery Clinic. Dr. Knox ordered a bone scan, and appellant returned on September 16, 2013, to review the results. Dr. Knox was unable to recommend any further neurosurgical treatment and assigned appellant a five percent disability rating to the body as a whole. Appellant subsequently sought treatment almost two years later at UAMS Family Medical Center on July 10, 2015, for reports of low-back pain. An MRI was ordered on July 31, 2015, and performed at Washington Regional Medical Center on August 9, 2015. Appellant returned on August 17, 2015, and was instructed to follow up with Dr. Knox, which he did on September 29, 2015. Dr. Knox recommended an injection and physical therapy. Appellant returned to Dr. Knox on December 21, 2015, and Dr. Knox recommended continued physical therapy. Appellant sought compensation for the 2015 treatment at UAMS and the follow-up treatment with Dr. Knox. Appellee controverted the additional treatment, and a hearing was held on January 5, 2016. The ALJ issued an opinion dated April 4, 2016, denying appellant's claim and specifically ruling that appellant failed to prove that the 2015 treatment was reasonable and necessary. That decision was not appealed. Dr. Knox corresponded with appellant's attorney on April 14, 2016: Concerning causation of his continuing difficulties, [appellant] dates them back to the injury occurring on 04/30/13. He has been quite consistent with his continuing difficulties and complaints. I do not believe surgery would be in his best interest. His continuing difficulties, as well as pain and need for continued treatment are due to the above mentioned injury. Appellant saw Dr. Knox on June 6, 2016. The history provided on that date was substantially the same as the histories given on September 29, 2015, December 21, 2015, and March 7, 2016. Dr. Knox reported on June 6, 2016, We discussed the possibility of surg. He assured me he is quite motivated to avoid surg. He has an unusual L4 vert body that has resulted in hyperlordosis of the L spine. Impression: The surgical and non-surgical treatment options available for the management of the patient's spine problem were discussed. The details of lumbar disk surgery, including the potential risks, were discussed with the patient ... The patient requested that we proceed as advised. Appellant subsequently filed another claim for additional medical treatment, contending that he was "presenting a new issue as to whether he was entitled to additional medical treatment" after the April 4, 2016 opinion. The only record of treatment after April 4, 2016, was the visit to Dr. Knox on June 6, 2016, when he discussed the possibility of surgery. Appellee contended that this additional treatment was "barred by res judicata and collateral estoppel" and by the statute of limitations. A hearing was held on November 1, 2016, and the ALJ ruled in its January 30, 2017 opinion that appellant's claim for additional treatment after April 4, 2016, was not barred by the statute of limitations but was barred by res judicata. Appellant filed an appeal with the Commission, challenging the ruling on res judicata. Appellee filed a cross-claim, challenging the finding on the statute of limitations. The Commission affirmed the ALJ's decision and ruled that appellant's claim was barred by res judicata in its opinion filed on July 24, 2017. The Commission found that appellant "did not prove there was a change in his physical condition." Because the Commission found that appellant's claim was barred by res judicata, it did not address the statute of limitations. Appellant received the Commission's decision on July 31, 2017, and filed his timely notice of appeal on August 22, 2017. II. Standard of Review Our court recently reiterated our standard of review for appeals from the Commission in Herrera-Larios v. El Chico 71 , 2017 Ark. App. 650, 535 S.W.3d 305. When reviewing a decision from the Commission, the appellate court views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirms that decision if it is supported by substantial evidence. Id. Substantial evidence is that evidence that a reasonable mind might accept as adequate to support a conclusion. Id. The issue is not whether the appellate court might have reached a different result from the Commission; if reasonable minds could reach the result found by the Commission, we must affirm the decision. Id. When the Commission denies a claim because of a claimant's failure to meet his or her burden of proof, the substantial-evidence standard of review requires that we affirm the Commission's decision if its opinion displays a substantial basis for the denial of relief. Id. III. Discussion A. Did the Commission Err in Requiring Appellant to Prove Res Judicata Did Not Bar His Claim? Res judicata is an affirmative defense, and the party asserting this defense has the burden of proof. See JeToCo Corp. v. Hailey Sales Co. , 268 Ark. 340, 596 S.W.2d 703 (1980). Because appellee asserted that appellant's claim for additional benefits was "barred by res judicata and collateral estoppel," appellant submits that the Commission improperly placed the burden of proof on him, stating in its ruling that "appellant did not prove there was such a change in his physical condition." Appellant contends that placing the burden of proof on him was an error of law warranting remand with proper instructions from this court for the Commission to apply the correct legal standard. We disagree and hold that the Commission did not err in requiring appellant to prove that he sustained a change in his physical condition in order to overcome the application of the doctrine of res judicata. Although as an affirmative defense, appellee carried the burden of proving that appellant's claim is barred by res judicata, res judicata does not apply if appellant has sustained a change in condition or seeks benefits for a subsequent period of complications. O'Hara v. J. Christy Constr. Co. , 94 Ark. App. 143, 227 S.W.3d 443 (2006) ; Cariker v. Ozark Opportunities , 65 Ark. App. 60, 987 S.W.2d 736 (1999). Before analyzing the claim under the doctrine of res judicata, the burden of proof rested with appellant to establish whether there had been a change in his physical condition. See Shaver v. Ashley Cty. Det. Ctr. , 2015 Ark. App. 151, at 6, 2015 WL 1000803. Accordingly, it was proper to require appellant to prove by a preponderance of the evidence that he sustained a change in condition, which he failed to do. Appellant contended at the second hearing before the ALJ that he experienced a change in condition because he now has pain and symptoms in his right leg that he did not have when he first sought additional treatment. Specifically, appellant testified that he was having "sharp pains going into my right leg now" that began in March of 2016. Appellant further testified that Dr. Knox had only now recommended surgery. But, as noted by the Commission, appellant first complained of pain in his right leg to Dr. Moffitt no later than May 8, 2013, when Dr. Moffitt recorded "pain going down his right leg to his knee." Likewise, Dr. Knox noted complaints of "con't LBP rad to bilateral hip ... Shooting pains in bilateral legs ... Occ tingling in the right foot" in his September 29, 2015, December 21, 2015, March 7, 2016, and June 6, 2016 office notes. Based on those notes, reasonable minds could find that appellant failed to prove that a change in condition occurred in his right leg; accordingly, the Commission correctly found that appellant failed to prove by a preponderance of the evidence that he sustained a change in condition such that res judicata no longer applies. B. Did the Commission Err in Ruling That Res Judicata Barred Appellant's Claim? Both the Arkansas Supreme Court and this court have held that the doctrine of res judicata is applicable to decisions of the Commission, which exercises quasi-judicial functions. Craven v. Fulton Sanitation Serv., Inc. , 361 Ark. 390, 206 S.W.3d 842 (2005) ; Nucor Yamato Steel Co. v. Kennedy , 2017 Ark. App. 126, 513 S.W.3d 895. Res judicata consists of two facets, one being issue preclusion and the other being claim preclusion. Craven, supra. Res judicata bars relitigation of claims that were litigated or could have been litigated. Id. The issue-preclusion provision of res judicata is also referred to as collateral estoppel and will bar relitigation of issues if the following requirements are met: (1) the issue sought to be precluded must be the same as that involved in the prior litigation; (2) the issue must have been actually litigated; (3) the issue must have been determined by a valid and final judgment; and (4) the determination must have been essential to the judgment. Id. ;see also Johnson v. U.S. Food Serv., Inc. , 2013 Ark. App. 86, 2013 WL 543906. Appellant maintains that the Commission improperly applied the doctrine of res judicata because the issue presented at the second hearing was not-and could not have been-presented at the first hearing. At the initial hearing, appellant was seeking additional medical treatment in addition to specific treatment already received from Dr. Thorn and Dr. Knox in 2015. At the second hearing, appellant presented a new claim for additional medical treatment that he received after the date of the ALJ's April 4, 2016 opinion-treatment that could not have been presented at the first hearing because it had not yet occurred. Appellant submits that the ALJ's April 4, 2016 opinion did not forever bar any and all future medical treatment; rather, the opinion simply ruled that the specific treatment sought from Dr. Thorn and Dr. Knox in 2015 was not reasonable or necessary. Conversely, appellant acknowledges that if the ALJ's April 4, 2016 opinion had found that he was entitled to the additional medical treatment sought from Dr. Thorn and Dr. Knox, appellant could not use this ruling as res judicata that would somehow require appellee to pay for any and all future treatment. Because his claim for additional medical treatment following the April 4, 2016 opinion was not and could not have been presented at the initial hearing, appellant argues that his claim for additional benefits after April 4, 2016, was not barred by res judicata. We disagree. Res judicata applies to workers'-compensation cases if the merits of the issue have already been subject to a full and fair hearing, see O'Hara , 94 Ark. App. at 146, 227 S.W.3d at 445-46, and bars the relitigation of not only issues actually litigated, but also those issues that could have been litigated. See Kennedy, supra. Appellee maintains that the factors required in Craven , supra , and Johnson , supra , were met in the present case. While we acknowledge appellant's argument that the specific treatment at issue at the second hearing could not have been presented at the first hearing because it had not yet occurred, we agree with appellee's assertion that the underlying need for the treatment appellant sought both at the first hearing and the second hearing remained the same. The additional treatment sought that was presented at the first hearing was the treatment appellant received from Drs. Thorn and Knox for his low back pain. After hearing the testimony and reviewing the medical evidence, the ALJ found that the additional treatment sought was "not reasonable and necessary medical treatment for his compensable back injury" that occurred in 2013. In order to have successfully met his burden, appellant had to prove that the abnormality for which he sought treatment from Drs. Thorn and Knox in 2015 was causally related to his 2013 compensable injury. See Williams v. Prostaff Temps. , 336 Ark. 510, 988 S.W.2d 1 (1999). He failed to do so. In reaching his conclusion to the contrary, the ALJ examined the MRI reports that depicted "a congenital or non-acute objective finding for his difficulties" and found "it highly unlikely that the claimant's current complaints of difficulties are related to the his (sic) compensable low back injury which he sustained in April of 2013." In his initial opinion filed April 4, 2016, the ALJ thoroughly analyzed the additional medical treatment sought by appellant and the condition or abnormality it sought to remedy and found that appellant had failed to prove by a preponderance of the evidence that the complaints were related to the compensable injury. While appellant presented a request for a new date of treatment at the subsequent hearing held on November 1, 2016, the abnormality which that treatment sought to remedy remained the same. Appellant saw Dr. Knox on March 7, 2016, and June 6, 2017, for the same complaints of lower-back pain for which he previously sought treatment on September 29 and December 21, 2015, and which was the subject of the first hearing. As explained above, the medical records related to those treatments fail to demonstrate a change in appellant's condition or a change in the abnormality for which treatment was sought. Accordingly, we hold that the Commission did not err in finding that appellant's request for additional medical treatment is barred by res judicata. C. Was There Substantial Evidence to Support That Res Judicata Barred Appellant's Claim? As previously discussed, res judicata does not bar litigation of new issues that were not or could not have been previously addressed in litigation. In workers'-compensation cases, even issues previously litigated can be relitigated if there has been some change in circumstances. See Cariker, supra. Appellant urges that, as in Cariker , supra , his condition did "deteriorate" or change in some way. Appellant claims that during the time between the April 4, 2016 denial of his first claim for additional medical benefits and the time he filed his second claim for additional medical benefits, he began having different symptoms in his right leg. He also testified that he had recently been missing work. Appellant points out that the ALJ noted in his second opinion that appellant "does have some different evidence and some subjective complaints of new difficulties in his right foot or leg," but still ruled that the claim was barred by res judicata. Appellant states that in O'Hara , supra , this court ruled that objective findings were not necessary to prove a deterioration or change in condition. He also notes a letter that Dr. Knox wrote stating that the cause of appellant's continued symptoms was due to his original work-related injury. Before April 4, 2016, appellant was receiving conservative treatment through Dr. Knox, including physical therapy, injections, and medication. When appellant returned to Dr. Knox on June 6, 2016, after the April 4, 2016 opinion he reported that his pain had increased and was now rated as high as "7-9/10." Appellant's medication had changed to tramadol and amitriptyline. Appellant had completed physical therapy, but his pain level had increased. The report notes that Dr. Knox and appellant had "discussed the possibility of surg (sic)" but that appellant was "motivated to avoid surg (sic)." At the hearing on November 1, 2016, appellant testified that he had been putting off surgery, but now feels that he needs it-which he regarded as the most notable change. Appellant maintained that there was evidence that his condition had deteriorated or changed as in Cariker . First, he testified that he had new symptoms in his right leg and that he was now having problems at work that he did not previously have. Second, he submitted that medical records indicated that his pain level had increased and that there was a change in his medication. He testified that although before April 4, 2016, he was trying conservative treatment with no mention of surgery, after April 4, 2016, it was apparent that conservative treatment was not effective, and he was now opting for surgery. He urges that these changes were sufficient to preclude res judicata. We disagree. The Commission considered appellant's argument and determined that it was not supported by the evidence. The Commission specifically found: "The evidence demonstrates that the claimant complained of right leg symptoms no later than May 8, 2013, at which time Dr. Moffitt noted 'pain going down his right leg to his knee.' Dr. Knox reported 'shooting pains' in the claimant's legs bilaterally on September 29, 2015, along with tingling in the claimant's right foot and muscle spasm. Dr. Knox reported the same finding on December 21, 2015 and March 7, 2016." Accordingly, substantial evidence supports the Commission's finding that the alleged "new" or "changed" physical condition existed at the time of the first hearing. Regarding appellant's argument that his condition has changed because he now has a causation letter from his treating physician and because surgery has now been recommended-when it was not a stated treatment option at the first hearing-we note that this evidence does not change the fact that appellant had already litigated whether additional medical treatment for his low-back complaints is reasonable and necessary in connection with his 2013 compensable injury. Although the causation letter discusses appellant's complaints since the date of injury, it does not identify a new or changed condition that is related to the underlying compensable injury that amounts to a change in physical condition. See Shaver, supra. In Shaver , the claimant sought additional temporary total-disability benefits after such benefits had been denied by an ALJ. At the second hearing, the claimant presented evidence from his treating physician that he was unable to work. In affirming the Commission's finding that res judicata barred the claim, this court stated, "While it is true that Dr. Qureshi's assessment of his ability to work was much more favorable to his claim than previous doctors' assessments had been, the fact that he now has better evidence to support his claim does not amount to a material change." Shaver , 2015 Ark. App. 151, at 5. This court affirmed the Commission's determination that res judicata barred the second attempt to recover benefits. Id. In this case, the letter from Dr. Knox does not establish a change in appellant's physical condition; rather, it is "better evidence" to support the issue presented at both hearings of whether the additional medical treatment sought was reasonable and necessary. In his letter dated April 14, 2016, Dr. Knox clearly stated, "I do not believe surgery would be in his best interest," and Dr. Knox's June 6, 2016 office note does not set forth any reason, explanation, or change in physical findings that would now make appellant a surgical candidate. Dr. Knox documented in his most recent notes that the pros and cons of surgery were discussed with appellant, but that does not change that it had previously been determined that appellant's complaints of lower-back pain are not related to his compensable injury. Thus, even if surgery is now a treatment option, it does not change the fact that it is recommended to address appellant's current complaints of pain that had previously been found to be unrelated to his compensable injury. Accordingly, substantial evidence supports the Commission's finding that appellant's claim for additional medical treatment for his lower-back pain is barred by the doctrine of res judicata. Affirmed. Whiteaker and Brown, JJ., agree.

ROBERT J. GLADWIN, Judge Appellants Amy Villines ("Villines") and Gerrie Parker ("Parker") appeal the October 7, 2016 and May 30, 2017 orders of the Boone County Circuit Court dismissing appellees, the City of Harrison ("Harrison") and the Harrison Housing Authority ("HHA"), from the lawsuit appellants had filed against them. Appellants contend that material questions of fact remain on the issues of whether Harrison was an actor in the termination of their employment, whether the HHA is a separate and independent agency with the authority to conduct its business independently of Harrison, and whether the HHA is entitled to charitable immunity from suit. We reverse and remand in part and reverse in part. I. Facts and Procedural History HHA is a municipal corporation created by Harrison pursuant to the Housing Authorities Act. See Ark. Code Ann. §§ 14-169-201 to 1108 (Repl. 1998) & (Supp. 2017). The HHA was created pursuant to a resolution passed by Harrison on July 28, 2011, to remedy "a shortage of safe or sanitary dwelling accommodations in the city available to persons of low income." According to the resolution that purported to create the HHA: The HHA is created to act as an agent of the City of Harrison and shall have the powers and shall perform all of the functions set forth in A.C.A. Title 14-169-202 et seq. ("Act"). Harrison, Ark., Res. No. 1095 (July 28, 2011) (emphasis added.) According to the HHA's executive director ("ED"), the HHA was created: [F]or the purpose of engaging in the leasing and administration of subsidized housing programs. The [HHA] receives federal funding from the U.S. Department of Housing and Urban Development (HUD) and from the Arkansas Development Finance Authority (ADFA) under its HOME Program. The HHA is composed of five commissioners (the "Board") and additional officers and personnel, including an ED, who are employed as necessary to accomplish the HHA's mission through its programs. Pursuant to the HHA's bylaws, termination authority rests with the ED. The HHA is shown as a "department" of Harrison on Harrison's website and follows Harrison's personnel policies and schedule for closing its offices. Harrison processes the HHA's payroll, after which the HHA reimburses Harrison. The HHA receives its financing from HUD and ADFA to subsidize housing for persons with low income through its major program, the Section 8 Housing Choice Voucher Program. 42 U.S.C. § 1437f (2012). The HHA's predecessor entity was the City of Harrison, Arkansas Housing Agency (the "Agency"). Unlike the Agency, the HHA is governed by its independent board ("Board"), rather than being a "component unit of the City of Harrison, Arkansas." The HHA undisputedly has more "powers and financing capabilities" than did the Agency. Appellants Villines and Parker worked for the HHA; however, they submitted their applications for employment to Harrison. Appellants were paid by checks drawn on Harrison's payroll account, and Harrison was shown as the "employer" on all W-2s issued to appellants during their employment with the HHA. In December 2013, appellants reported to the Board their suspicions that the then ED, Derrick White, had misappropriated money and other assets of the HHA for his personal use. The Board confronted White, and he resigned in August 2014. Despite the Board's promoting Parker to interim executive director ("IED") of the HHA and increasing both her salary and Villines's, appellants allege that Board members warned them that they would be immediately terminated if they discussed White's resignation with anyone outside the HHA. Harrison's mayor filed a complaint with Harrison's police department, which resulted in a criminal investigation of White's alleged thefts from the HHA. In December 2014, Villines and Parker were interviewed as a part of the investigation and gave written statements to the investigator. Also in December 2014, the HHA Board hired Chonda Tapley as the new ED. The Board instructed appellants to train Tapley for the position, but allegedly they failed to do so. There were multiple reported incidents of misconduct and insubordination by appellants that allegedly occurred after Tapley's arrival at the HHA. As a result, Tapley required appellants to attend a customer-service seminar for remedial training. In January 2015, Tapley also disciplined appellants on three occasions each. She told appellants that they would be subject to discipline "up to termination" if they engaged in "deceitful or insubordinate" behavior. It is undisputed that Tapley consulted four people before firing appellants, including a consultant who had previously worked with the HHA employees under the former ED. All four expressed to Tapley that she should fire appellants if they were not working as a team. After informing the Board of her decision to do so, Tapley fired both appellants on February 27, 2015, in the presence of two or three members of the Board. According to Tapley, it was her decision to fire Villines and Parker. Appellants filed for unemployment benefits, and it is undisputed that Harrison was shown as the "employer" on all documents issued regarding appellants' claims for benefits. Harrison indicated to the Arkansas Department of Workforce Services that appellants were fired for "continued behavior to the detrement [sic] of employer." Appellants filed suit against the HHA and Harrison alleging that their (1) employment was wrongfully terminated under the Arkansas Whistle-Blower Act; (2) right to free speech was violated under the Arkansas Civil Rights Act; and (3) employment was terminated in violation of public policy. The HHA and Harrison denied these allegations and filed multiple motions to dismiss and for summary judgment. Without reaching the substantive allegations of appellants' claims, in an order entered on October 7, 2016, the circuit court granted Harrison's motion to dismiss, finding that Harrison was not an actor in the termination of appellants from the HHA. The circuit court further found that the HHA is a separate and independent agency that has the authority to conduct its business independently of Harrison. In a subsequent order dated May 30, 2017, the circuit court granted the HHA's motion to dismiss and motion for summary judgment, finding that the HHA is entitled to charitable immunity from suit. Appellants filed a notice of appeal from both orders on June 21, 2017, and this appeal followed. II. Standard of Review Pursuant to Ark. R. Civ. P. 12(b) and (c) (2017), a motion to dismiss is converted to a motion for summary judgment when matters outside the pleadings are presented to, and not excluded by, the court. Heinrich v. Anders , 2017 Ark. App. 413, 528 S.W.3d 277. Because it is clear from the wording of the orders that the circuit court considered matters outside the pleadings, we review these motions as requests for summary judgment. Ordinarily, upon reviewing a court's decision on a summary-judgment motion, we examine the record to determine if genuine issues of material fact exist, but in cases that do not involve the question of whether factual issues exist but rather the application of legal doctrine, we simply determine whether appellee was entitled to judgment as a matter of law. See id. The law is well settled that summary judgment is to be granted by a circuit court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. Barnett v. Cleghorn , 2017 Ark. App. 641, 536 S.W.3d 147. 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, we determine 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. We view the evidence in the 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 documents filed by the parties. Id. The purpose of summary judgment is not to try issues, but to determine whether there are any issues to be tried. Id. III. Dismissal of Harrison While it is undisputed that appellants worked for the HHA, every document in their respective personnel files identifies Harrison as their employer, including but not limited to: employment application; applicant information for record-keeping requirements; request from Harrison's mayor's office for criminal background search; personal data form for Harrison employee; receipt of Harrison's personnel handbook; receipt of Harrison's drug-free workplace policy; informed-consent and release-of-liability document for use with drug or alcohol testing; Arkansas Public Employees' Retirement System ("APERS") employee-enrollment request; notice to last employer; discharge general-employer statement with facsimile cover sheet from Harrison's mayor's office; notice of agency determination; UnitedHealthcare enrollment detail; Delta Dental eligibility maintenance; and APERS termination-of-employment-refund request. Additionally, paychecks issued to appellants came from Harrison's payroll account, and all W-2 forms issued to appellants showed Harrison as the "employer." Appellants submit that Harrison and the HHA could and should have effected the separate legal existence envisioned by the Housing Authorities Act upon the HHA's creation, but the resolution of Harrison's city council, which created HHA, states in part: "The HHA is created to act as an agent of the City of Harrison...." (Emphasis added.) Other evidence supporting appellants' argument that a material question of fact exists as to whether the HHA is a separate and independent agency with the authority to conduct its business independently of Harrison includes that (1) Harrison identifies the HHA as one of its "departments" on its website; (2) the affidavit of HHA's current ED Tapley, which was filed in support of Harrison's motion for summary judgment, fails to specifically identify appellants as employees of the HHA; (3) Harrison failed to produce a single document that identified the HHA as appellants' employer; (4) Harrison, as an allegedly separate and distinct entity, failed to produce any evidence, by affidavit or otherwise, that appellants were not its employees; and (5) Harrison's mayor initiated the criminal investigation against the HHA's former ED. Appellants cite Draper v. ConAgra Foods, Inc. , 92 Ark. App. 220, 233, 212 S.W.3d 61, 69 (2005), noting that one indicator of an employer-employee relationship is that the parties themselves believed they were creating an employer-employee relationship. Harrison and the HHA claim that this argument was never made below and therefore is not properly preserved before this court. Found. Telecomms., Inc. v. Moe Studio, Inc. , 341 Ark. 231, 238, 16 S.W.3d 531, 536 (2000). We disagree and note that Harrison filed a motion for summary judgment asking the circuit court to dismiss it from the action because it was not appellants' employer. Appellants filed their response with forty-seven pages of supporting exhibits indicating that appellee Harrison had self-identified as their employer during their employment. We hold that the argument that appellants and Harrison believed they were creating an employment relationship was properly before the circuit court. Appellants both submitted applications for employment to Harrison. Another indicator of an employer-employee relationship is that one party possesses the right to control the conduct of the other party. Wilhelm v. Parsons , 2016 Ark. App. 56, 481 S.W.3d 767 (stating that the ultimate question in whether an employer-employee relationship exists is not whether the employer actually exercises control over the doing of the work, but whether it has the right to control). Parker signed a memorandum issued on Harrison's mayor's letterhead to acknowledge she understood and accepted Harrison's policy on "racial and sexual sensitivity." Villines signed (1) a receipt for a personnel policy in which she acknowledged that Harrison could terminate her employment at any time without cause; (2) a receipt for a drug-free workplace policy that she was to keep for review during her employment with Harrison; and (3) an informed-consent and release-of-liability form that allowed Harrison to require her to submit to drug and alcohol testing. Appellants cite Dixon v. Salvation Army , 360 Ark. 309, 313, 201 S.W.3d 386, 388 (2005), for the proposition that an obvious indicator of an employer-employee relationship is when an individual employee renders labor or services to another for salary or wages. As previously noted, the final checks appellants received for their work at the HHA were drawn on Harrison's "payroll account." We hold that Arkansas Louisiana Gas Co. v. City of Little Rock , 256 Ark. 112, 506 S.W.2d 555 (1974), is distinguishable, despite its holding that "the statutes demonstrate that the housing authorities are autonomous entities that have the power to act in every field related to their work independently of the cities." Ark. La. Gas Co. , 256 Ark. at 114, 506 S.W.2d at 557. There, the City of Little Rock passed two resolutions referring to the housing authority as its "agency," but the relevant statute made no mention of housing authorities as agents, later resolutions did not refer to the authority as an agent, and the relevant actions were taken by the authority and not the city. The same cannot be said of the HHA. We take issue with appellees' assertion that there is no genuine issue of material fact because the HHA's predecessor was an agency of Harrison and the HHA merely used documents and procedures it already had available. The evidence presented by appellees is simply not significant enough to prove, as a matter of law, the alleged distinction between the two entities. Harrison failed to meet "proof with proof" that it was not appellants' employer. Yet, absent a discussion of what evidence was before it, the circuit court granted Harrison's motion and dismissed it from the suit. While it was possible, and even preferred pursuant to both statutory authority and caselaw, a significant amount of the evidence before the circuit court indicated that Harrison was identified in many aspects as appellants' employer. At best, there remain genuine issues of material fact as to whether the HHA was or is an "autonomous" and distinct entity, and whether Harrison was an actor in the termination of appellants' employment with the HHA. Because Harrison may be a viable party under Arkansas's recognized concept of "joint" employers, see Brotherton v. White River Area Agency on Aging , 93 Ark. App. 432, 220 S.W.3d 219 (2005), or pursuant to some other agency theory, we reverse and remand on this issue. IV. Dismissal of the HHA Appellants alleged in their complaint that Defendant Harrison Housing Authority ("HHA") is a body politic located in Boone County, Arkansas, created by the City of Harrison, Arkansas, pursuant to the Housing Authorities Act, Ark. Code Ann. 14-169-201, et seq. As such, it has the power to sue and to be sued. Appellants suggest that the circuit court must have considered these facts as true and viewed them in a light most favorable to appellants because the circuit court found in its order dismissing Harrison that the Harrison Housing Agency [sic] is a separate and independent agency that has the authority to conduct its business independently of the City. And in its order dismissing the HHA, the circuit court stated: The Court in that Order [dismissing Harrison] also found the Harrison Housing Authority, or Harrison Housing Agency, is a separate and independent agency with the authority to conduct public business and to sue and be sued independently of the City of Harrison. Despite these findings, the circuit court dismissed the HHA on the basis of charitable immunity. Appellants argue that the dismissal of the HHA was incorrect. Appellants cite Progressive Eldercare Services-Saline, Inc. v. Cauffiel , 2016 Ark. App. 523, at 3, 508 S.W.3d 59, 62, for the proposition that "[t]he essence of the charitable-immunity doctrine is that entities created and maintained exclusively for charity may not have their assets diminished by execution in favor of one injured by acts of persons charged with duties under the entity." Arkansas appellate courts have narrowly construed the doctrine, see Ouachita Wilderness Institute, Inc. v. Mergen , 329 Ark. 405, 947 S.W.2d 780 (1997). The eight factors considered when extending charitable immunity to a party are (1) whether the organization's charter limits it to charitable or eleemosynary purposes; (2) whether the organization's charter contains a "not-for-profit" limitation; (3) whether the organization's goal is to break even; (4) whether the organization earned a profit; (5) whether any profit or surplus must be used for charitable or eleemosynary purposes; (6) whether the organization depends on contributions and donations for its existence; (7) whether the organization provides its service free of charge to those unable to pay; and (8) whether the directors and officers receive compensation. Cauffiel , 2016 Ark. App. 523, at 3, 508 S.W.3d at 62. These factors are illustrative, not exhaustive, and no single factor is dispositive of charitable status. George v. Jefferson Hosp. Ass'n, Inc. , 337 Ark. 206, 987 S.W.2d 710 (1999). Whether the entity in question was created and is maintained exclusively for charitable purposes is the "recurring theme" in cases that examine the application of the doctrine. J.W. Resort, Inc. v. First Am. Nat'l Bank , 3 Ark. App. 290, 292, 625 S.W.2d 557, 558 (1981). Appellees claim that appellants failed to make the argument below that the HHA is not entitled to charitable immunity based on the common-law doctrine of charitable immunity. They claim that appellants argued below only that charitable immunity is not a defense to a claim under the Arkansas Civil Rights Act, rather than that the HHA is not entitled to charitable immunity under the substantive law of the doctrine, or that the statutes regarding housing authorities do not define housing authorities as charitable entities. We disagree and note that appellees themselves asserted that the HHA had the power "to sue and to be sued" when they argued that the HHA was autonomous from Harrison. The circuit court referred to this power in its order in the paragraph that immediately preceded its holding that the HHA was entitled to charitable immunity. We hold that appellants' argument was before the circuit court and is properly preserved for our review. The HHA had the burden of proving it was entitled to this defense, see Downing v. Lawrence Hall Nursing Ctr. , 2010 Ark. 175, 369 S.W.3d 8, and it failed to do so. The HHA produced no evidence before the circuit court to show that it was created exclusively for charitable purposes. The Act that authorizes housing authorities, the Housing Authorities Act, Ark. Code Ann. §§ 14-169-201 to 1108, comprises forty sections-none of which contains the word "charitable" or any of its variants. Likewise, the resolution enacted by Harrison in creating the HHA does not contain the word "charitable." It refers to the HHA as a "municipal corporation" and links its purpose to "residential construction" and "general economic activity." The sole indication that the HHA submitted to support its claim to charitable immunity was an affidavit from current ED Tapley that was attached to the HHA's second supplement to its motion to dismiss appellants' second amended complaint: The Harrison Housing Authority exists exclusively for a charitable purpose which is, simply put, to provide housing assistance to persons in need. The Housing Authority does not and has not carried any policy of insurance, liability or otherwise, which would insure the Housing Authority for the claims made by the Plaintiffs in the Second Amended Complaint in the case of Villines et al. v. City of Harrison et al., Boone County Circuit Court. Yet earlier, before HHA raised the defense of charitable immunity, Tapley stated: The Harrison Housing Authority (Authority) was created for the purpose of engaging in the leasing and administration of subsidized housing programs. The Authority receives federal funding from the U.S. Department of Housing and Urban Development (HUD) and from the Arkansas Development Finance Authority (ADFA) under its HOME Program. The Authority's major program is the Section 8 Housing Choice Voucher Program. .... A housing authority is created, under the Arkansas Housing Authorities Act, as "a public body corporate and politic...." A.C.A. § 14-169-207 (1987). Arkansas Code Annotated § 14-169-211 (1987) states that "[a] housing authority shall constitute a public body corporate and politic, exercising exclusively public and essential governmental functions...." We discount appellees' reliance on the unpublished opinion of Bridget v. West Helena Housing Authority and Centerpoint Energy , No 2:06CV00161-WRW, 2006 WL 3313674 (E.D. Ark. Nov. 14, 2006), in which there was no analysis of the Helena Housing Authority's entitlement to the affirmative defense of charitable immunity under the factors developed by Arkansas jurisprudence. The circuit court's sole rationale for dismissing the HHA in this action appears to be its reliance on Bridget . The Housing Authorities Act gives housing authorities the power to sue and to be sued. Ark. Code Ann. § 14-169-211(1). Interestingly, the circuit court recognized this power of housing authorities when it explained its dismissal of Harrison as a party; then it dismissed HHA because of charitable immunity. We hold that nothing in the Act can be construed as extending the doctrine of charitable immunity to housing authorities, and we further note that logic would be offended by a legal entity simultaneously having the power "to be sued" and yet be afforded the protection of charitable immunity. Although the HHA claims that the charitable-immunity issue was essentially decided by Hogue v. Housing Authority of North Little Rock , 201 Ark. 263, 144 S.W.2d 49 (1940), Hogue did not extend the doctrine of charitable immunity to housing authorities. Rather, it held, inter alia , that the property of the Housing Authority of North Little Rock was exempt from taxation under article XVI, section 6 of the Constitution of 1874 because it was public property used exclusively for public purposes, and its buildings and grounds and materials were used exclusively for public charity. We note that the Arkansas Whistle-Blower Act, a violation of which is part of appellants' lawsuit against Harrison and the HHA, logically does not allow for a charitable-immunity defense. If any public employer whose assets are exempt from taxation were allowed to claim charitable immunity from suit under the Arkansas Whistle-Blower Act, then the Act would become meaningless. Because the HHA failed as a matter of law to present sufficient evidence to meet its burden of proof regarding the applicability of the charitable-immunity defense, we reverse the circuit court's dismissal of the HHA on that basis. V. Appellees' Justification Argument Finally, we note that appellees devote an entire section of their argument to the idea that this court should affirm the circuit court because "Appellants ['] Terminations were lawful." Appellees discuss the evidence that supports their substantive defenses. Although appellees submit that this general discussion of the evidence is properly before this court because we can "affirm the judgment of the circuit court if that court's result-herein the judgments dismissing appellees-was right for any reason, even if it did not rely on the reason this court finds relevant," we disagree. Before an appellate court can "go to the record" to affirm a circuit court's decision, the circuit court must have rendered a decision on the issue at hand. Our supreme court stated in TEMCO Construction, LLC v. Gann , 2013 Ark. 202, at 12-13, 427 S.W.3d 651, 659 : This court decides if the trial court erred in reaching a decision. This court does not make the decision. Long ago in Stroud v. Crow , 209 Ark. 820, 192 S.W.2d 548 (1946), we similarly stated: Furthermore, this is a court of appellate jurisdiction, and we do not decide issues not directly or indirectly presented in or decided by the trial court. "The constitution vests in this court only appellate and supervisory jurisdiction, and not original jurisdiction, in controversies between individuals." May v. Ausley , 103 Ark. 306, 146 S.W. 139 [ (1912) ] [.] Here, the circuit court declined to rule on any other defense raised by appellees after it decided to dismiss the case against Harrison by a previous order and subsequently the HHA on the basis of its charitable immunity. Accordingly, the issues raised by appellees in section IV of their argument are not properly before this court for review. Reversed and remanded in part; reversed in part. Virden and Vaught, JJ., agree. Appellant Parker originally was hired by the Agency in 2005. Appellees maintain that appellants' argument that Harrison possessed the right to control the conduct of appellants was not made below and is not properly preserved. We disagree. It is undisputed that the circuit court had before it a letter from the mayor of Harrison to "All City Department Heads and Subordinate Staff" that threatened dismissal for any employee who did not accept people of diverse racial backgrounds or sexual orientation. Parker signed that letter as "Employee." Also, the circuit court had before it an informed consent signed by Villines that allowed Harrison to require her to undergo random tests for alcohol or drug use. Accordingly, the argument was raised before the circuit court.

ROBIN F. WYNNE, Associate Justice This is an original action under the Arkansas Supreme Court Procedures Regulating Professional Conduct. Stark Ligon, as executive director of the Arkansas Supreme Court Committee on Professional Conduct (Committee), seeks the disbarment of Bruce Jamison Bennett, an attorney licensed to practice law in the State of Arkansas. This court's jurisdiction lies pursuant to Arkansas Supreme Court Procedures Regulating Professional Conduct section 13(A). In a ballot vote held on November 18, 2011, Panel A of the Committee unanimously found that Bennett had committed numerous violations of the rules governing the conduct of attorneys licensed to practice in Arkansas. The panel voted to initiate disbarment proceedings and to impose an interim suspension of Bennett's license to practice law. An order of interim suspension suspending Bennett's license during the pendency of the disbarment proceedings was entered on December 1, 2011. Ligon filed a complaint for disbarment on December 15, 2011. In a per curiam opinion issued on March 8, 2012, this court appointed the Honorable John Cole as special judge to preside over the disbarment proceedings. Ligon v. Bennett , 2012 Ark. 111, 2012 WL 745307. The complaint for disbarment and the testimony at the trial centered on Bennett's representation of Darrell Cavanagh. The pertinent facts can be summarized as follows. Bennett operated a law firm in Bentonville that handled primarily criminal and domestic-relations matters. Cavanagh inherited a sum of money from his grandparents who resided in California. Cavanagh, who testified at trial that he is dyslexic and has a history of drug use, approached Bennett for assistance with the inheritance. Cavanagh expressed to Bennett an interest in investing his share of the money from the estate so that he would not spend it quickly. On January 22, 2003, Bennett and Cavanagh entered into an agreement under which Bennett would assist Cavanagh in "the remaining distribution of the estate of Thomas Cavanagh and Marguerite Cavanagh." In return, Bennett was to receive ten percent of all distributions from the estate issued to Cavanagh from the date of the agreement. Bennett was also to receive a 10 percent fee on all sums made or earned by Cavanagh from the investment of distributions received by Cavanagh. In February 2003, Bennett drafted and Cavanagh signed an authorization permitting Wells Fargo, the bank holding the estate funds, to transfer Cavanagh's funds into Bennett's IOLTA trust account. The following distributions were placed into Bennett's IOLTA account: $809,322.63 in April 2003; $100,000 in September 2003; $1,096.96 in October 2003; and $32,500 in November 2003. Bennett admitted that, throughout this period, he commingled client funds and other funds in his IOLTA account and wrote checks for personal and firm expenses out of the IOLTA account. After Cavanagh expressed an interest in investing his money, Bennett introduced him to Ricky Hancock. Hancock and Bennett had played in a band together, and Bennett had represented Hancock in various legal matters. In April 2003, a corporation known as Hancock Holding Company, LLC, was formed. Ricky Hancock had a 60 percent ownership stake in Hancock Holding, with Cavanagh owning the remaining 40 percent. On April 11, 2003, Bennett prepared forms to create the Darrell Cavanagh Trust. Bennett utilized blank forms provided by Brad Lushbaugh, who represented Hancock in the loan negotiations. Bennett also drafted forms that granted him a springing durable power of attorney for financial purposes only, which were executed by Cavanagh on April 11, 2003. On April 12, 2003, Hancock Holdings borrowed $745,000 from the Darrell Cavanagh Trust. Under the terms of the promissory note executed by Cavanagh and Ricky Hancock, the money was loaned at an interest rate of 2 percent per annum, with Hancock Holdings agreeing to pay the entire unpaid balance plus accrued and unpaid interest on or before May 1, 2013. Prior to that date, Hancock Holdings was required to pay accrued interest on a monthly basis. No monthly principal payment amount was listed. The loan was unsecured. A subsequent promissory note, executed on April 15, 2003, granted Hancock Holdings the unilateral right to extend the loan balance repayment date to April 15, 2023, with Hancock Holdings being responsible for interest-only payments prior to that date. The other material provisions of the original note remained unchanged. Cavanagh testified at trial that he did not authorize any additional loans to Hancock Holdings. On February 25, 2005, Ricky Hancock executed a promissory note in which he agreed to pay Cavanagh $225,000 in exchange for Cavanagh's interest in Hancock Holdings. Cavanagh testified that he was not told that the payment was for the sale of his interest in the company. On May 2, 2005, Bennett wrote a $100,000 check out of his IOLTA account to Hancock Holdings. Bennett does not dispute that the funds were derived from Cavanagh's inheritance. According to Hancock's testimony, he obtained the additional funds by calling Bennett and telling Bennett that he needed money. Hancock Holdings subsequently dissolved, and Ricky Hancock declared bankruptcy. It is unclear how much of the loans were repaid, but the testimony makes it clear that a substantial portion of the loaned sums were not repaid. Cavanagh filed suit against Bennett, Hancock, and Hancock Holdings over the loans and failed venture. Cavanagh settled with Bennett for $17,000, which Cavanagh testified he received. Cavanagh obtained a $211,296.42 judgment against Hancock regarding the February 25, 2005 promissory note. Cavanagh's separate settlement with Hancock and Hancock Holdings required Hancock to make the mortgage payments on a home in Rogers. According to Hancock's testimony, that obligation was discharged in his subsequent bankruptcy. Hancock failed to make the payments, and Cavanagh lost the home in foreclosure. Cavanagh had a child-support obligation that preexisted his dealings with Bennett and continued throughout Bennett's representation of him. Cavanagh testified that he instructed Bennett to pay an existing arrearage and his ongoing obligation. Bennett countered that he was not aware of the obligation for some time and that Cavanagh did not instruct him to make child-support payments. The record contains child-support payment notices from Idaho and Arkansas that were addressed to Cavanagh and sent to Bennett's firm. Cavanagh testified that when he went to Idaho in early 2006 to visit his two children by a previous marriage, their mother informed him that she had not received support payments for some time. The failure to make payments resulted in a contempt sanction and body attachment that were resolved without assistance from Bennett. According to Mindy Cavanagh, Darrell Cavanagh's former spouse, the arrearage also negatively affected Darrell's credit. On April 13, 2006, Cavanagh wrote Bennett a letter in which he instructed Cavanagh to pay the child-support arrearage. In the letter, Cavanagh states that he had instructed Bennett on "numerous occasions" to pay his child support. On May 16, 2006, Cavanagh terminated Bennett's representation via letter. In the letter, Cavanagh requested an accounting, a return of his money, and his files. According to Cavanagh, Bennett never returned any money and failed to return all of Cavanagh's files. On March 16, 2016, the special judge issued findings of fact and conclusions of law in which he found that Bennett had committed violations of Rules 1.1, 1.2(a), 1.4(a)(1), 1.4(a)(3), 1.4(b), 1.5(a), 1.7(b), 1.15, 1.15(a)(1), 1.15(b)(1), 1.15(b)(3), 1.16(d), 3.3(a)(1), 3.3(a)(3), 8.4(b), and 8.4(c) of the Model/Arkansas Rules of Professional Conduct. Following a separate hearing on the issue of the sanction to be imposed, the special judge determined that the appropriate sanction to be imposed is disbarment. Bennett has filed a brief with this court in which he contends that the special judge erred in finding that he had committed violations of the Model/Arkansas Rules of Professional Conduct. In attorney-discipline proceedings, this court accepts the special judge's findings of fact unless they are clearly erroneous. Ligon v. Price , 360 Ark. 98, 200 S.W.3d 417 (2004). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Ligon v. Newman , 365 Ark. 510, 516, 231 S.W.3d 662, 667 (2006). The court must view the evidence in a light most favorable to the decision of the special judge, resolving all inferences in favor of his or her findings of fact. Id. Disputed facts and determinations of the credibility of witnesses are within the province of the fact-finder. Id. The purpose of disciplinary actions is to protect the public and the administration of justice from lawyers who have not discharged their professional duties to clients, the public, the legal system, and the legal profession. Id. Model Rule of Professional Conduct 1.1 required Bennett to provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. The special judge found that Bennett's conduct violated Rule 1.1, but he did not specify which conduct he believed violated the rule. Bennett's conduct in advising his client to enter into an unsecured loan at 2 percent interest with no monthly principal payments required and a possible twenty-year repayment date violates Rule 1.1. The same is true for Bennett's failure to pay Cavanagh's child-support obligation. We accept the special judge's finding that Bennett violated Rule 1.1. Model Rule 1.2(a) required Bennett to abide by Cavanagh's decisions regarding the objectives of representation and consult with Cavanagh as to the means by which they were to be pursued. Cavanagh testified that he never authorized any loan to Hancock Holdings beyond the initial $745,000 sum. He also testified that he instructed Bennett to pay his child-support arrearage and ongoing obligation, which Bennett failed to do, even though the payment coupons were being sent to Bennett's firm. Bennett contended at trial that he gave the additional money to Hancock to hold for Cavanagh because he no longer felt comfortable having it in his IOLTA account. Hancock's testimony does not support that contention. Bennett also contended that he was never instructed to pay Bennett's child-support obligations and proffered evidence that, he argued, demonstrated that Cavanagh was unconcerned with the obligation. The special judge found that Bennett's conduct in investing additional funds after Cavanagh expressly told him not to do so and Bennett's failure to pay the child support arrearage and obligation violated Rule 1.2(a). Given the conflicting testimony, this issue comes down to credibility, and the special judge, who was present during the testimony, credited the testimony of Cavanagh and Hancock over Bennett. We accept this finding. Arkansas Rule of Professional Conduct 1.4(a)(1) required Bennett to promptly inform Cavanagh of any decision or circumstance with respect to which Cavanagh's informed consent was required. The special judge found that Bennett had failed to get his client's consent before making additional loans. Bennett disputes the contention that unauthorized loans were made, but this is also a credibility issue that was resolved against Bennett by the special judge. We accept this finding. Model Rule 1.4(a)(3) and Arkansas Rule 1.4(a)(3) both required Bennett to keep Cavanagh reasonably informed about the status of the matter. The special judge found that Bennett had violated these rules by failing to pay Cavanagh's child-support obligation, which resulted in either the issuance or near-issuance of a body attachment that had to be resolved with assistance from another attorney. Bennett was clearly aware of the child-support obligation, by virtue of the payment coupons being sent to his firm's address, and at a minimum, he failed to advise Cavanagh that he was not paying the obligation. We accept this finding. Model Rule 1.4(b) and Arkansas Rule 1.4(b) both required Bennett to explain matters to the extent reasonably necessary to permit Cavanagh to make informed decisions regarding the representation. The special judge found that Bennett violated the rules by failing to adequately explain to Cavanagh that he was selling his interest in Hancock Holdings, considering Cavanagh's disability. The special judge also found that Bennett's failure to adequately explain the child-support situation constituted a violation of the rules. Bennett questions whether Cavanagh has a disability and contends that the evidence demonstrates that he did not learn of a potential disability until after the relevant documents had been signed. Bennett also repeats his earlier arguments regarding Cavanagh's child-support issue. This finding presents another credibility issue that the special judge resolved against Bennett. We accept this finding. Model Rule 1.5(a) required Bennett's fees to be reasonable. The factors to be considered in determining the reasonableness of a fee include: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent. The special judge found that Bennett's fee agreement violated Rule 1.5. As stated above, under the agreement, Bennett was entitled to receive 10 percent of Cavanagh's disbursements from his grandparents' estate, plus an additional 10 percent of any income Cavanagh realized from investment of the distributed amounts in which Bennett may have been involved. At the time the agreement was executed, there was no indication that anyone contended Cavanagh was not entitled to a share of his grandparents' estate. It was simply a question of how much he would receive and when he would receive it. Thus, there is little, if anything to justify Bennett's entitlement to 10 percent of Cavanagh's distributions. While Bennett is certainly entitled to be compensated for his time, under the agreement, he was entitled to receive approximately $80,000-90,000 in exchange for what amounted to writing a series of letters to Wells Fargo with no litigation, or even the possibility of litigation, being necessary to obtain the funds. This is not reasonable. Bennett contends that he did a large amount of work for Cavanagh. While that may be correct, the fee agreement itself did not require him to do any work other than obtain the funds from the estate in order to be entitled to 10 percent of the distributions. There was no written agreement between the parties that contemplated any additional services to be provided by Bennett in exchange for his fee. Because it was clear from the outset that the work contemplated under the fee agreement would not be sufficiently substantial to justify the amount of the fee, we accept the finding by the special judge that the fee agreement violated Rule 1.5(a). Model Rule 1.7(b) prohibited Bennett from representing a client if the representation of that client was materially limited by his responsibilities to another client, a third party, or his own interests. The special judge found that Bennett's action in advising Cavanagh to enter into a loan agreement for $745,000 with Bennett's friend and former client under terms that were unfavorable to Cavanagh violated Rule 1.7. Although Cavanagh and Hancock were represented by separate counsel during the loan negotiations, Bennett did have personal and professional ties to Hancock of which Cavanagh stated he was unaware at the time. The special judge's finding on this point is bolstered by Bennett's later actions in loaning Hancock additional money with a simple phone call being all that was required. We accept this finding. Bennett admitted commingling client and personal funds in his IOLTA trust account. This is a clear violation of Model Rule 1.15 and Arkansas Rule 1.15, which require attorneys to hold client property separate from their own property, with client funds required to be held in a separate, clearly identifiable trust account. The special judge also found that Bennett's actions constituted misappropriation from his IOLTA account and involved dishonesty, deceit, fraud, or misrepresentation warranting disbarment. Bennett disputes the latter finding, arguing that, while he did keep personal funds in his IOLTA account, it was a simple matter for him to check his records and determine what was client money and what was not. Our review of the financial records submitted at trial reveals no proof that Bennett took money belonging to his clients. It does not appear that his account ever dropped below what would have been required to cover Cavanagh's disbursements, which are the only client funds that were proved to be in the account. We accept the finding of violations of Model Rule 1.15 and Arkansas Rule 1.15, but we do not accept the finding of misappropriation of client funds, as proof of misappropriation is absent from the record. The special judge also found that Bennett's mishandling of his IOLTA trust account violated Model Rule 8.4(b) and Arkansas Rule 8.4(b), which both state that it is professional misconduct for an attorney to commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects. Although Bennett clearly commingled funds, petitioner has failed to prove theft or any other criminal conduct in connection with Bennett's handling of his IOLTA trust account. We conclude that the special judge's finding of a violation of Model Rule 8.4(b) and Arkansas Rule 8.4(b) is clearly erroneous and we do not accept it. Arkansas Rule 1.16(d) states, Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law. Cavanagh testified that Bennett failed to provide him with an accounting of his money and provided him with only a "small box" after he requested his files and documents. The special judge found that Bennett's actions violated Rule 1.16(d). Bennett disputes the finding, but the special judge credited Cavanagh's testimony that a complete accounting was not provided and his files were not returned. We accept this finding. Arkansas Rule 3.3(a)(1) prohibits a lawyer from making a false statement of fact or law to a tribunal. It also prohibits a lawyer from failing to correct a false statement of fact or law he or she previously made to the tribunal. Rule 3.3(a)(3) prohibits a lawyer from offering evidence the lawyer knows to be false. In both his responsive pleading and his deposition during the litigation initiated by Cavanagh that was later settled, Bennett stated that attorney Brad Lushbaugh drafted the estate-planning documents for Cavanagh and the Darrell Cavanagh Trust. During his disbarment trial, Bennett testified that Lushbaugh provided him with blank estate-planning forms that he completed and provided to Cavanagh. The special judge found that Bennett's statements prior to the disbarment trial violated Rules 3.3(a)(1) and (3). The special judge also found that Bennett's actions involved dishonesty, deceit, fraud, or misrepresentation warranting disbarment. Bennett responds that he never indicated that Lushbaugh represented Cavanagh, nor did he intend to mislead by making the statements. There is a material difference between "drafting" forms and providing blank forms to be completed, and an attorney is expected to be aware of that difference. There is evidence in the record that Bennett's statements in the earlier pleading and deposition were false statements of fact. We accept the finding of a violation by the special judge. The special judge found that Bennett's conduct in violating several of the other rules constituted violations of Model Rule 8.4(c) and Arkansas Rule 8.4(c), which both state that it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. There is evidence that Bennett counseled his learning-disabled client to engage in a $745,000 unsecured loan to Bennett's friend at 2 percent interest. There is also evidence that Bennett later loaned his friend substantial additional sums against his client's express wishes. This is evidence of conduct involving fraud, deceit, or misrepresentation. We accept the finding that Bennett violated Model Rule 8.4(c) and Arkansas Rule 8.4(c). Having accepted findings by the special judge that Bennett committed violations of the rules, we must determine the appropriate sanction for those violations. Bennett himself admitted at the sanction hearing that the evidence was sufficient for disbarment, stating, "You want to disbar, there's more than enough evidence to do it." He offers no argument in his brief in response to the special judge's recommended sanction of disbarment. The special judge found that Bennett had engaged in serious misconduct, which is defined in section 17B of the Procedures Regulating Professional Conduct as "conduct in violation of the Rules [of Professional Conduct] that would warrant a sanction terminating or restricting the lawyer's license to practice law." Pursuant to section 17B, conduct will be considered serious misconduct if any of the following considerations apply: (1) The misconduct involves the misappropriation of funds; (2) The misconduct results in, or is likely to result in, substantial prejudice to a client or other person; (3) The misconduct involves dishonesty, deceit, fraud, or misrepresentation by the attorney; (4) The misconduct is part of a pattern of similar misconduct; (5) The attorney's prior record of public sanctions demonstrates a substantial disregard of the attorney's professional duties and responsibilities; or (6) The misconduct constitutes a "Serious Crime," as defined in these Procedures. While the special judge found that Bennett had misappropriated funds, as stated above, we do not accept that finding. The special judge found that certain instances of misconduct committed by Bennett involved dishonesty, deceit, fraud, or misrepresentation, and we have accepted certain of those findings. Cavanagh was clearly prejudiced by Bennett's conduct, as he lost the bulk of his inheritance through his dealings with Bennett and Hancock. Bennett's prior disciplinary history includes one caution, three reprimands, and three suspensions, for three, six, and nine months respectively. Given Bennett's history, the findings from the disbarment hearing, and Bennett's admission during the sanctions hearing, we adopt the special judge's recommended sanction of disbarment. Order of disbarment issued. Special Justice Robert Hudgins concurs. Baker, J., not participating. Special Justice Robert Hudgins concurs. I would join with the majority opinion but have significant concerns regarding the Trial Court's findings. There was a line from a movie in the early 1990's called, "He Said, She Said." It was a movie about male and female television opinion show hosts. Their show was a pre-curser to today's Fox and MSN news but they operated on a point, counter-point premise and the male would sometimes end his argument with the following: "Like my old Uncle Olaf used to say, 'This just smells bad, and I'm not going to eat it.' " I'm not exactly to the point where I'm not going to eat it, but certainly there are items in the Trial Court's findings that do not set right with me. I take my role seriously as a reviewing court and as a practicing attorney who is bound by only those items that I can prove as opposed to what I speculate that I might have proved. The majority affirmed several of the Trial Court's findings that came down to a credibility issue where the Court sided with the Complainant, Darrell Cavanagh. "In attorney-discipline proceedings, this court accepts the special judge's findings of fact unless they are clearly erroneous. Ligon v. Price , 360 Ark. 98, 200 S.W.3d 417 (2004). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Ligon v. Newman , 365 Ark. 510, 516, 231 S.W.3d 662, 667 (2006)." I am definitely left with a most firm conviction that a mistake has been committed. I can't assign any credibility whatsoever to Darrell Cavanagh. Any issue that pits his credibility against anyone else, in my opinion, is contrary to the facts. This is a man with multiple felony convictions whose testimony was wholly unreliable. Every single thing that he testified to on direct, he countered on cross. I mean everything. That in itself should render his testimony unreliable. But add that to his criminal past, his extensive admitted drug use and the fact that he lied to the Petitioner during this investigation on multiple occasions regarding a non-existent diagnosis of cancer. I would not affirm on any issue that came down to his credibility. As to the issue of Respondent's failure to make Cavanagh's child support payments. I restate all of the above as to Mr. Cavanagh's credibility and add that actions have to speak louder than words. This is a man that made close to $100,000.00 a year working on fishing boats in Alaska and never paid a dime of child support. Before he ever appeared to the Respondent, he owed over $20,000.00 in child support. Before he came to Mr. Bennett, he had received $140,000 and did not pay a dime of child support. Respondent received $809,000.00 on behalf of Mr. Cavanagh and paid his outstanding bills that he had run up in a very short period of time, leaving $745,000.00 to invest. None of the $809,000.00 went toward any child support at Mr. Cavanagh's directions. Then for a period of three years, he had all of his expenses paid and a stipend of $3,500 a month, many months getting twice that amount because he had already blown through the money. In the first year and one-half alone, he received $250,000.00 from a $745,000.00 note to be paid monthly at two percent interest. Yet, again, not a dime went to his child support. In late 2005 upon getting out of jail, he received $100,000.00 and again nothing went to child support. He received $20,000.00 to open a business with another convicted felon, who promptly wasted all of the money and, again, nothing went to child support. The Trial Court found and the majority affirmed that Respondent had a duty to pay child support because he was asked by Mr. Cavanagh. Respondent testified that he didn't know Mr. Cavanagh had children until 2004, which is backed up by the vouchers that started coming to his office. I can assign no credibility to Darrell Cavanagh and very little to Mr. Bennett. However, Mr. Bennett's secretary, Kara Morgan, testified that Cavanagh would come to the office daily and advise her which bills to pay with directions not to pay support. That probably comes closer to the truth than anything. As such, I would not affirm the Trial Court's findings on anything having to do with the Respondent having an obligation to pay child support. Thus, I find no violation of Rule 1.1 nor 1.4(a)(3) in connection to support. Typically, our Courts have disbarred attorneys for gross incompetence, theft, a combination of the two or multiple violations. My problem is when reviewing the record several findings are not supported by the facts. For example, there is a finding that the Respondent filed a false pleading as to preparation of documents in a related matter and testified in a deposition falsely as to the preparation of those documents. Perhaps Panel A in making their findings were provided that evidence but for certain in this record there was no testimony as to that type of violation. There were no copies of the pleadings submitted as evidence and there was no portion of the deposition submitted into evidence. As such, I find it puzzling that the Petitioner wants to disbar a man for violations of the ethical rules yet submits a finding that is not supported by the record. I see no violation of Rule 3.3(a)(1) and 3.3 (a)(3). The Court's finding is replete with descriptions of Darrell Cavanagh's mental abilities, from anything that he was dyslexic, to "given Cavanagh's cognitive limitations," to a learning-disabled client. I suppose the Petitioner could argue that I didn't have the opportunity to observe Cavanagh during this matter and that perhaps I should leave that to the trier of fact. However, the actions complained of happened between 2003 and 2006 and the trial occurred in 2015. There is not one shred of medical evidence as to any medical problems of Cavanagh and more than likely his extensive drug use played a part in any cognitive ability. But again, that was ten years earlier. Wouldn't the more prudent way to prove that have been to submit medical evidence of Cavanagh's disabilities from 2003 to 2006? In fact, the only evidence mentioning medical records is the Respondent pointing out that he secured medical authorizations after the primary documents were signed, which is backed up by the documents that were introduced, sent those authorizations to the facilities where Cavanagh stated he had been treated and all of the responses came back that they had never heard of him. This lends credence to my finding that Cavanagh has absolutely no credibility whatsoever. In a disbarment proceeding for our Courts to place reliability and credibility on such a source is a dangerous precedent. The Trial Court found that Mr. Bennett had violated Rule 1.1(6)(d) based purely upon Mr. Cavanagh's statement that Mr. Bennett failed to provide him with an accounting of his money and only provided him a "small box" after he requested his files and documents. How about a modicum of evidence. What is "small box?" On a previous appointment as Special Justice the entire appeal was sent to me in a "small box." I have all the exhibits and pleadings from this matter in a "small box." How about a little bit of something in the record that it was a shoe box or copy paper box or a box that was 1 ft. x 2 ft.? To make a finding of a violation of a rule based upon the wholly unreliable testimony of Mr. Cavanagh and then no description whatsoever of what was and was not provided to him, again, is a troubling precedent to me. I do not think lawyers should take advantage of clients, but I do not think our governing body should make findings based upon a unreliable client's testimony and that is exactly what Mr. Cavanagh appears to be. He sees this as a game. He even sued the attorneys that represented him against Mr. Bennett. If you recall, he testified that Mr. Bennett kept him apprised at all times of the amounts in the accounts and what was spent. Now, he claims he didn't receive an accounting. Once again, his own testimony conflicts with the findings. If we are to believe his testimony over somebody else's, which one of his statements are we to believe? As such I see no violation of Rule 1.1(6)(d). My only other pause is that Mr. Bennett does have a prior bad history of misconduct. My pause on that is that all of those actions occurred after these actions. He was previously cited in the 2009-2011 period. Now we are citing him for violations from 2003-2006. So in a sense, we are saying that as to the items that happened first, we are going to disbar him because he has a history of things that happened afterwards. Maybe this is where Uncle Olaf comes in! Why did this proceeding take nine (9) years to make its way through the courts? Having said that, I do find troubling that one of the prior issues of misconduct was when Mr. Bennett lied to a trial judge about the whereabouts of his client after he told his client to leave the hearing. Most troubling to me regarding all of these findings that in my opinion were not supported by the record is they were not needed. Mr. Bennett admitted and it was pointed out by the majority that we have enough evidence to disbar him. Perhaps that was his point. Perhaps he was trying to say that several of the allegations made against him were not true. I would affirm on his admissions alone, but there are three (3) primary reasons for the finding of disbarment to stand: No. 1-the employment contract that he prepared and signed with Darrell Cavanagh was wrong. There is not a lot of proof in the record that he actually was paid the amounts he contracted for and as the majority points out he did additional work for Mr. Cavanagh. However, the contract as written takes advantage of a client, which we cannot have. No. 2-Mr. Bennett essentially used his IOLTA account as his primary account. The majority correctly found there was not any proof that he had taken money from Mr. Cavanagh perhaps at least partially on the fact that Mr. Bennett's record keeping was incomplete. Respondent classified it as that he was sloppy. That type of sloppiness is also inexcusable. He co-mingled hundreds of thousands of dollars of his money and client's money without reasonable explanations or accountings and it is just something that an attorney cannot do. I suspect that if better evidence was presented at trial there were quite possibly further violations of our ethical code, but this is gross incompetence and a substantial disregard of the attorney's professional duties and responsibilities. No. 3-Mr. Bennett took $100,000.00 of Mr. Cavanagh's money and invested it without his permission. It does appear from the evidence that Mr. Cavanagh did not lose that money and that it was repaid to him. I do not believe Mr. Cavanagh told him not to invest other funds, but Mr. Bennett admits that he was not authorized to invest the money. Attorney's cannot be giving $100,000.00 of client's money to another source without the client's permission. Those items are more than enough evidence to affirm the Trial Court's findings. Thus, I find it troubling that there were far too many other findings of the Trial Court that were not supported by the record and they should not be affirmed. Even if they are true the Petitioner had a duty to prove them by providing evidence not conjecture. I concur with the overall findings but not specific finding as set forth above. Both the Model Rules of Professional Conduct and the Arkansas Rules of Professional Conduct are implicated here because the Model Rules were adopted by this court via per curiam order dated December 16, 1985, and were replaced by the current Arkansas Rules effective May 1, 2005. In re Ark. Bar Ass'n , 361 Ark. App'x 451.

BRANDON J. HARRISON, Judge Sandra Franks appeals the circuit court's divorce decree, arguing that the circuit court erred in (1) its division of the retirement accounts, (2) its division of the marital home, and (3) dividing the property in a "starkly inequitable" manner. We affirm. Sandra and William Franks married in September 1993 and separated in November 2016. Sandra filed for divorce and asked the circuit court to make an equitable division of the marital property. William counterclaimed for divorce and agreed that the parties' property should be fairly and equitably divided. In their pleadings, neither party mentioned a prenuptial agreement signed in September 1993; this agreement stated that each of the parties have agreed that all of the property now owned by either party or hereafter acquired by either of them by gift or inheritance, including any property conveyed to either party by the other, shall be free from any rights or claims that each party might otherwise acquired as the other's spouse[.] The agreement also included a list of the parties' separate property; on William's list was "ABF Retirement or Pension" and "ABF Stock." The circuit court convened a hearing in June 2017. Sandra testified that she and William bought their marital home on Bunker Hill Drive in November or December 1997 and that the $31,000 down payment came from an inheritance she had received from her aunt. She testified that she paid another $10,000 toward the property in December 1997 and $63,425 toward the property in March 1998; both of these payments stemmed from Sandra's inheritance from her aunt. In January 2000, Sandra received a $25,000 payment of gas royalties that she inherited from her aunt, and that money was used to make improvements to the Bunker Hill house. And in June 2011, William's brother paid approximately $34,000 to pay off the house. In all, Sandra estimated that she had paid 80 percent of the purchase price of the home, and she asked the court to divide the value of the marital home accordingly. She acknowledged that a separate property known as the Barling property was William's premarital property, although she said that she was responsible for managing the rental properties contained on that property. Sandra also explained that William has a pension "with the Teamsters when he retired from ABF" and that he had worked for ABF for five years before they were married. She said that William was currently receiving $1772 a month from that pension. Sandra explained that William also has an IRA through ABF and that after he retired, "the IRA was left through Morgan Stanley and then they said since he was no longer working it had to be rolled over into a Fidelity account." She also said that it was divided into stocks. According to Sandra, during the marriage she had access to the IRA and withdrew money at William's request whenever he needed it. On cross-examination, Sandra agreed that the Bunker Hill house was held jointly by her and William. She also agreed that she and William had signed a prenuptial agreement and that the agreement listed the Barling property, "ABF Retirement or Pension," and "ABF Stock" as William's property. But she said that William's pension was through the Teamsters, not through ABF. William testified that he did not dispute any of Sandra's testimony. He stated that he wanted the Bunker Hill home to be equally divided and that the Barling property was his separate property. He also agreed that the Fidelity account, which was his 401k through ABF, and his pension are listed as his separate property in the prenuptial agreement as "ABF retirement or pension." He clarified that his pension is "a Teamsters pension that was paid through ABF." He also said, "I had stock too, but we sold that." He also stated that he had put Sandra's name on the Morgan Stanley account because she was his wife and acknowledged a 2013 account statement from Morgan Stanley that listed him and Sandra as "JTWROS," meaning joint tenants with right of survivorship. Sandra was recalled and confirmed that when the Morgan Stanley account was rolled over into Fidelity, her name was not placed on the account. After the hearing, the court issued a letter opinion that found in pertinent part: The Court determines the home place is marital property based upon the testimony of the parties; the status of the ownership as Tenants by the Entirety; and the joint occupance and contributions of the parties. There was no proof before the Court of any intent to keep this property separate and no indication from either party that the property was maintained other than as joint property. This property shall be listed and sold and the proceeds divided equally between the parties[.] ... The Court finds the Premarital Agreement is legal and binding as to all property of the parties listed in the Agreement. The pension and IRA accounts are specifically mentioned in the premarital agreement and have been maintained as separate property. Thus, the finding of the Court is that these properties and any increase in the value are the sole property of the Defendant. The Fort Street property in Barling is premarital property and has always been maintained as such. The court also awarded Sandra temporary support and maintenance in the amount of $665.50 a month until March 2019. The court entered a written order in July 2017, and Sandra has appealed. This court reviews cases involving the division of marital property de novo. Beck v. Beck , 2017 Ark. App. 311, 521 S.W.3d 543. With respect to the division of property in a divorce case, we review the circuit court's findings of fact and affirm them unless they are clearly erroneous or against the preponderance of the evidence. Skokos v. Skokos , 344 Ark. 420, 40 S.W.3d 768 (2001). A finding is clearly erroneous when the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Id. I. Retirement Accounts In its order, the circuit court found that "the pension and the I.R.A. accounts are specifically mentioned in the Premarital Agreement and have been maintained as separate property." Sandra argues that this finding is clearly erroneous because the agreement was limited to "property now owned," and William did not then own the accumulations added to his pension and his retirement accounts. Sandra also asserts that the Morgan Stanley/Fidelity account was not listed in the agreement and that it was joint property acquired during the marriage. Sandra contends that a fair reading of the agreement would be to apply the exclusion to what William owned at the time the agreement was executed, namely his pension, but not to the Morgan Stanley/Fidelity account. William argues that the prenuptial agreement clearly listed his "ABF Retirement or Pension" and that the Morgan Stanley and Fidelity accounts were products of his ABF retirement/pension. He asserts that the Fidelity account was in his name only and that the Morgan Stanley account with Sandra's name on it was the stock account that was sold. William contends that a premarital agreement is valid if the parties freely entered it and it is free from fraud, see Banks v. Evans , 347 Ark. 383, 64 S.W.3d 746 (2002), and that in this case, Sandra does not allege any fraud. Instead, she takes issue with how the circuit court interpreted and applied the agreement, but William argues that the circuit court did not err in its interpretation and application of the agreement. Sandra appears to reply that the lists of the parties' separate property attached to the prenuptial agreement were only a disclosure of assets and that the prenuptial agreement only applied to "property now owned or hereafter acquired by gift or inheritance" but not to the listed property. She ends on the point that the Morgan Stanley/Fidelity account is not on William's list of separate property and thus should not be subject to the agreement. We are unpersuaded by Sandra's argument. By the clear terms of the agreement, William's retirement plan and pension are excluded as his separate premarital property. The retirement plan may have changed names, resulting in the Fidelity account, but it is still the same retirement plan listed in the agreement. While Sandra was listed as a joint tenant with right of survivorship on a Morgan Stanley account, the exhibit introduced by Sandra supports William's testimony that the account was a stock account that was later sold. And while Sandra had access to the Fidelity account so she could withdraw money at William's request, this does not change the ownership of the account. We therefore affirm on this point. II. Division of the Marital Home Here, Sandra again explains that her inheritance money paid approximately 80 percent of the cost of the home and argues that "there is little difference between the character of the Barling property which the Appellant concedes to be protected by the prenuptial agreement and the investment in the homeplace from her own personal inheritance other than timing." Sandra says that the circuit court should have considered the factors set out in Ark. Code Ann. § 9-12-315 (Repl. 2015): (a) At the time a divorce decree is entered: (1)(A) All marital property shall be distributed one-half (½) to each party unless the court finds such a division to be inequitable. In that event the court shall make some other division that the court deems equitable taking into consideration: (i) The length of the marriage; (ii) Age, health, and station in life of the parties; (iii) Occupation of the parties; (iv) Amount and sources of income; (v) Vocational skills; (vi) Employability; (vii) Estate, liabilities, and needs of each party and opportunity of each for further acquisition of capital assets and income; (viii) Contribution of each party in acquisition, preservation, or appreciation of marital property, including services as a homemaker; and (ix) The federal income tax consequences of the court's division of property. Specifically, Sandra argues that the court should have considered the length of the marriage, the age and health of the parties, and in particular, the contribution of each party in the marital home. In her view, that William keeps his inheritance, which is the Barling property, and also receives half of her inheritance, is unfair. William argues that there is no question that he and Sandra held the marital home as tenants by the entirety and therefore that any contribution made by either party toward the home should be considered a gift. See Lyle v. Lyle , 15 Ark. App. 202, 691 S.W.2d 188 (1985) (contributions toward down payment of property held as tenants by the entirety are presumed to be a gift from the party furnishing the consideration). Thus, the court's division of this property was fair and equitable and should be affirmed. Sandra believes that the circuit court's division of property is "grossly inequitable" and that the court should have used its discretion under § 9-12-315 to reach a more equitable result. We hold that the circuit court did exactly what it was supposed to do-it enforced the prenuptial agreement in dividing the parties' premarital property (as listed in the agreement), and it divided the jointly held marital property (the marital home) equally. Arkansas law has long recognized the validity of premarital agreements, and as noted above, a premarital agreement is valid if it was freely entered into and is free from fraud and not inequitable. See Banks, supra. Parties contemplating marriage may, by agreement, fix the rights of each in the property of the other differently than established by law. Id. In this case, Sandra does not argue the agreement is unconscionable or unenforceable; she merely asserts now that it is unfair as applied. Regardless, it is a valid contract that she freely entered into, and the court did not err in enforcing it. We affirm on this point. III. Inequitable Division Based on the circuit court's property division as outlined above, Sandra argues that the monthly income of the two parties is grossly inequitable. According to Sandra, William will receive a monthly income of $5,710.25, consisting of rental income from the Barling property, his pension, and Social Security. Sandra will receive $1,331.50, consisting of Social Security and spousal support; after March 2019, she will receive only $666 a month in Social Security. Regarding the marital home, she argues that the proceeds of the home should be distributed "in the same ratio of contributions to the purchase," which would "extend the purpose of the agreement" to her inheritance as well. William argues that this point is merely a reargument of her first two points and again asserts that the circuit court properly considered the evidence at trial in making its property division. For the same reasons noted above, we affirm on this point. Sandra has not challenged the validity of the prenuptial agreement; instead, she argues that enforcing the agreement results in an inequitable distribution of property. But again, parties contemplating marriage may, by agreement, fix the rights of each in the property of the other differently than established by law. Banks, supra. Affirmed. Virden and Klappenbach, JJ., agree.

KAREN R. BAKER, Associate Justice This appeal stems from the circuit court's denial of appellant John Richard Lukach's pro se petition for relief under Arkansas Code Annotated section 16-90-111 (Repl. 2016) and his motion for reconsideration of that decision and the circuit court's imposition of a strike under the three-strike rule in Arkansas Code Annotated section 16-68-607 (Repl. 2005). We affirm the denial of postconviction relief and reverse and remand for an appropriate order. In addition, Lukach filed a petition for writ of mandamus against our clerk, which we deny. He also filed a motion for clarification after the matter had been briefed. That motion is rendered moot by our decision in the appeal. Lukach's section 16-90-111 petition challenged his convictions in four cases. This court granted his pro se motion for rule on clerk to proceed with the appeal and later dismissed the appeal as to two of the four cases. Lukach v. State , 2017 Ark. 128, 516 S.W.3d 711 (per curiam). In that decision, we also limited the appeal to the issue of whether the circuit court lacked the authority to sign the commitment order and to whether the circuit court erred in imposing a strike. I. Mandamus and Motion In his petition for mandamus against our clerk, Lukach complains that he was not provided all four volumes of the original record, and he seeks to have this court direct the clerk to provide him with the remaining three volumes of that original record. However, based on the record before us, it is clear that Lukach has received the volumes of the record he asserted he had not received. Because Lukach received a complete copy of the record necessary for this appeal, the petition for mandamus is moot and therefore denied. Further, after the briefs were filed, Lukach filed a motion in which he seeks clarification of certain actions by our clerk; this motion is also rendered moot by our decision to reverse and remand in part to the circuit court. II. The Commitment Orders For his first point on appeal, Lukach challenges the commitment orders entered in case Nos. 30CR-91-123 and 30CR-91-124. As we noted in our previous opinion, the challenges Lukach raised to the judgments of conviction and his sentences were not valid. The record on direct appeal contains judgments that were entered on August 27, 1991, and signed by the Honorable John Cole, the judge who presided over the trial. Those judgments reflect that Lukach was sentenced in person, that he was convicted on two charges of rape against different victims, and that each judgment imposed a sentence of life imprisonment in the Arkansas Department of Correction (ADC). There were two later judgment-and-commitment orders also contained in that record, and it is the validity of those two orders that Lukach challenges. Lukach alleged that the judge who signed the first judgment-and-commitment order, the Honorable Phillip H. Shirron, did not have the authority to enter the order. He contends that until the legislature passed Act 51 of 1992, there was no legislative authority for chancellors and circuit judges in the same judicial district to act under exchange agreements. Lukach asserted that a subsequent judgment-and-commitment order signed by Judge Cole was invalid because the sentence had been placed into execution. The State contends that Lukach did not state a cause of action under section 16-90-111. With regard to claims pursuant to Ark. Code Ann. § 16-90-111, a circuit court's decision to deny relief will not be overturned unless that decision is clearly erroneous. Green v. State , 2017 Ark. 361, 533 S.W.3d 81. A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Fischer v. State , 2017 Ark. 338, 532 S.W.3d 40. The time limitations for filing a petition under section 16-90-111 alleging that the sentence was imposed in an illegal manner are superseded by Arkansas Rule of Criminal Procedure 37.2(c) (1994), and when a petition under the statute has been filed far beyond the expiration of those time limitations, as it was here, the circuit court has authority to grant relief under the statute only if the sentence imposed was illegal. Id. Under section 16-90-111, a sentence is illegal when it is illegal on its face. Anderson v. State , 2017 Ark. 357, 533 S.W.3d 64. A sentence is illegal on its face when it is void because it is beyond the circuit court's authority to impose and gives rise to a question of subject-matter jurisdiction. Jenkins v. State , 2017 Ark. 288, 529 S.W.3d 236. With these standards in mind, we turn to Lukach's argument. On appeal, Lukach does not contend that his sentences exceeded the statutory maximum because of Judge Shirron's action. Rather, he challenges the validity of the document that authorized his commitment to the ADC. We note that the record contains a valid judgment signed by Judge Cole imposing sentences within the statutory range. A sentence imposed within the maximum term prescribed by law is not illegal on its face. Id. In challenging the judgment-and-commitment order, Lukach challenges the imposition of his sentences rather than the validity of his sentences. Although he frames this as a jurisdictional issue that would void the judgment, it is not. Lukach contends that Judge Shirron acted in excess of his authority, which is not a question of subject-matter jurisdiction. Jurisdiction is granted to a particular position, that is, to a particular court, and not to the person who fills it. Simpson v. State , 310 Ark. 493, 837 S.W.2d 475 (1992). In Simpson , this court was asked to consider a question raised for the first time on appeal concerning whether the chancellor who tried a case lacked subject-matter jurisdiction and whether an intradistrict exchange was authorized. We affirmed the circuit court and explained that "subject matter jurisdiction ... is determined from the pleadings, and once a proper charge is filed in circuit court, that court may exercise jurisdiction over that subject matter. Walker v. State , 309 Ark. 23, 827 S.W.2d 637 (1992).... Jurisdiction is granted to a particular position, that is, to a particular court, and not to the person who fills it. Nation v. State , 283 Ark. 250, 674 S.W.2d 939 (1984)." Simpson , 310 Ark. at 499, 837 S.W.2d at 478. Here, the Hot Spring County Circuit Court clearly had jurisdiction over this matter, and the issue raised by Lukach concerns the authority of the individual who filled that position. As we explained in Simpson , that issue relates to the authority of the sitting judge and not to the jurisdiction of the circuit court. Because this issue is not one of subject-matter jurisdiction, we hold that the circuit court did not clearly err in denying relief under Arkansas Code Annotated section 16-90-111. III. Imposition of a Strike For his second point on appeal, Lukach contends that the circuit court erroneously imposed a strike pursuant to Arkansas Code Annotated section 16-68-607 (Repl. 2005) based on the denial of his petition. The State concedes that it was error for the court to count the denial of the section 16-90-111 petition as a strike under Arkansas Code Annotated section 16-68-607 (Repl. 2005). The language of that statute as was in effect when Lukach filed his petition does not confer authority on the circuit court to impose a strike in a criminal case, and the circuit court erred by imposing a strike. Hill v. State , 2017 Ark. 196, 520 S.W.3d 664. To the extent that it did so, the order was void. Accordingly, we reverse and remand for the circuit court to enter an order consistent with this opinion. Affirmed in part and reversed and remanded in part; petition denied; motion moot. Lukach questioned why the additional copy that he provided to be returned to him as file-marked did not contain all the pages, why the mandamus petition was filed in this proceeding, and why it appeared to him to take several days for his pleadings to be filed. This court may take judicial notice of the record on direct appeal in postconviction proceedings without need to supplement the record. McClinton v. State , 2017 Ark. 360, 533 S.W.3d 578. Lukach appealed his convictions. Lukach v. State , 310 Ark. 119, 835 S.W.2d 852 (1992), and the mandate issued on July 17, 1992. When an appeal was taken, Rule 37.2(c) required a petition seeking that type of relief to be filed within sixty days of the date the mandate was issued by the appellate court. Lukach filed his section 16-90-111 petition in 2015, more than twenty years after the mandate had been issued. Act 1110 of 2017 Acts of Arkansas amended the statute, effective August 1, 2017. Ark. Code Ann. § 16-68-607 (Supp. 2017).

KENNETH S. HIXSON, Judge Appellant Jeffrey Allen Wolfe appeals after he was convicted by a Yell County jury of two counts of theft of property as a habitual offender. He was sentenced to serve 60 months' imprisonment for count one, theft of property, a Class C felony, and 84 months' imprisonment for count two, theft of property, a Class B felony, to be served consecutively for a total of 144 months' imprisonment. On appeal, appellant's sole argument is that there was insufficient evidence to convict him of the two counts of theft of property. We affirm. Appellant was arrested and charged with theft of property, a Class C felony under Arkansas Code Annotated section 5-36-103(b)(2) (Repl. 2013); with theft of property, a Class B felony under Arkansas Code Annotated section 5-36-103(b)(1) ; and as a habitual offender under Arkansas Code Annotated section 5-4-501. A jury trial was held on January 19, 2017, and the following facts were introduced at trial. Much of the facts are undisputed in this case. A service van containing plumbing tools from Mountain Valley Plumbing was reported stolen in Plainview, Arkansas, on July 10, 2016. Detective Gary Morrison testified that he was assigned to investigate the case. Detective Kenneth Poore discovered the keys to the van at the home of Candice Howard, who lived in Dardanelle, Arkansas. Howard testified that appellant had stayed with her for a few days and that appellant had left the keys and other belongings on her counter. Appellant was not at the residence when Detective Poore discovered the keys at the home. Detective Morrison and Lieutenant Scott Moore testified that the van was recovered eleven days after it was reported stolen on the Dardanelle side of the Arkansas River. Lieutenant Moore testified that the van had been left unlocked and that the back of the van was buried in a sandbar. Deidre Thurman testified that, while the van still contained tools in it, some of the tools were missing. Thurman's family owns Mountain Valley Plumbing. Thurman further testified that the van cost approximately $45,000 in 2014 and still maintained a value of approximately $39,000 when it was stolen. The cost of the tools was approximately $30,000-$40,000. Thurman testified that a "few thousand" dollars' worth of tools were missing from the van and that one of the recovered tools cost $900 to repair. After the State rested its case, appellant moved for a directed verdict. He argued that the State had failed to make a prima facia case and specifically challenged the "intent" element. After the trial court denied his motion, appellant testified on his own behalf. Appellant admitted that he took the van and was guilty of unauthorized use of a motor vehicle. However, he argued that he was not guilty of theft because he did not intend to "not return the van." He explained that he is diabetic and took the van because he was having an "episode." Appellant testified that he had traveled with Howard and two other females to Lake Nimrod. Because he wanted to stay longer, he told Howard and the others to leave without him. However, he had no food or water, and he admitted that he had taken methamphetamine. Appellant further testified that shortly after midnight he began to feel faint, disoriented, and that he would "fall out" at any minute. However, he could not call anyone for help because the screen on his phone had shattered. Although he had passed by houses at 3:00 or 4:00 a.m., he did not want to knock on people's doors because he "looked like a total mess" and did not want to "surprise anybody." Therefore, he took the van that he found. He testified that it had been left unlocked and had the keys inside it. Appellant claimed that he immediately went to McDonald's and then parked the van down a "rougher road" in a "somewhat ... public place" by the river because he was embarrassed. He testified that he locked the van and did not know why he kept the keys in his pocket. However, he claimed that he did not intend to keep the van or the tools inside. Appellant admitted that he had six to eight convictions but did not remember having thirteen convictions as the State alleged. Appellant additionally indicated that he wrote an "apology letter" to the victim after his arrest. The letter was introduced into evidence. In the letter, he requested the victim to contact the prosecutor and recommend that he be allowed to participate in a drug-court program rather than being imprisoned. Appellant reiterated his claims that he took the van as an emergency and stated that he did not take anything from the van. After appellant rested, he renewed his motion for a directed verdict. He specifically challenged the intent element and additionally argued that the value of the van and the tools had not been adequately established. The trial court denied his motion. The jury found him guilty of both charges. Appellant stipulated that he had over four prior felony convictions, and he was sentenced as a habitual offender to serve a total of 144 months' imprisonment. Because appellant's notice of appeal was untimely filed, appellant filed a motion and amended motion for belated appeal with our supreme court. Our supreme court granted appellant's amended motion for belated appeal and subsequently transferred the case to our court; this appeal followed. I. Sufficiency of the Evidence A motion for a directed verdict is a challenge to the sufficiency of the evidence. Hinton v. State , 2015 Ark. 479, 477 S.W.3d 517. When reviewing a challenge to the sufficiency of the evidence, this court assesses the evidence in the light most favorable to the State and considers only the evidence that supports the verdict. Id. The sufficiency of the evidence is tested to determine whether the verdict is supported by substantial evidence, direct or circumstantial. Wyles v. State , 368 Ark. 646, 249 S.W.3d 782 (2007) ; Boyd v. State , 2016 Ark. App. 407, 500 S.W.3d 772. Substantial evidence is evidence that is of sufficient force and character that will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Hinton , supra. Finally, the credibility of witnesses is an issue for the jury and not the court. Id. The trier of fact is free to believe all or part of any witness's testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id. A person commits theft of property if he or she knowingly (1) takes or exercises unauthorized control over or makes an unauthorized transfer of an interest in the property of another person with the purpose of depriving the owner of the property; or (2) obtains the property of another person by deception or by threat with the purpose of depriving the owner of the property. Ark. Code Ann. § 5-36-103(a). Theft of property is a Class B felony if the value of the property is twenty-five thousand dollars ($25,000) or more and a Class C felony if the value of the property is less than twenty-five thousand dollars ($25,000) but more than five thousand dollars ($5,000). Ark. Code Ann. § 5-36-103(b)(1)-(2). A person can "deprive" another person of his or her property in three ways: (A) Withhold property or to cause it to be withheld either permanently or under circumstances such that a major portion of its economic value, use, or benefit is appropriated to the actor or lost to the owner; (B) Withhold property or to cause it to be withheld with the purpose to restore it only upon the payment of a reward or other compensation; or (C) Dispose of property or use it or transfer any interest in it under circumstances that make its restoration unlikely[.] Ark. Code Ann. § 5-36-101(A)-(C) (emphasis added). Appellant contends that substantial evidence does not exist to support his convictions. Appellant admits that he knowingly exercised unauthorized control over the property. However, he argues that the State failed to prove that he intended to "deprive" the owner, Mountain Valley Plumbing, of the van or the tools. He maintains, as he did at trial, that he merely took the van with the tools inside as a medical emergency because he needed to go to McDonald's to get some food to cure his "impending diabetic episode." Then, because he was embarrassed, he parked the van by the river in a public location and claims that he did not take any of the tools. Further, appellant explains that, although he took the keys to the van, he left them on Howard's counter in plain sight. He suggests that because he did not return to Howard's home to retrieve the keys, he did not have the intent to return to the van, which he argues was necessary to show that he intended to "deprive" the owner after taking the van for medical purposes. Therefore, appellant argues that he lacked the requisite intent to constitute theft. We disagree. Intent can rarely be proved by direct evidence, but may be inferred from the circumstances of the crime, and jurors may draw on common knowledge and experience to infer intent. Pruitt v. State , 2011 Ark. App. 754, 2011 WL 6065008. Here, the State offered testimony at trial that indicated appellant had admitted he took the van and that he was, by his own admission, under the influence of methamphetamine. Law enforcement discovered the keys to the van in Howard's residence, where appellant had been staying and left other personal effects. Law enforcement further testified that the van was subsequently found eleven days after it was stolen. The van was found unlocked and buried in a sandbar by the Arkansas River in an isolated place. There was no evidence that appellant had attempted to return the van or tools or to contact the owner. Although appellant argues that he did not intend to deprive the owner of the property but only temporarily used the van for medical purposes, his argument is misplaced. The theft statute makes no exception for a "temporary deprivation." Winston v. State , 368 Ark. 105, 111, 243 S.W.3d 304, 308 (2006) (citing Moore v. State , 299 Ark. 532, 773 S.W.2d 834 (1989) ). As in Winston , the jury in the instant case could have concluded from the evidence that appellant intended to permanently deprive the owner of the property for at least the time he was in possession of it, if not longer. Moreover, a jury is permitted to consider and to give weight to any false and improbable statements made by an accused in explaining suspicious circumstances; furthermore, it is the responsibility of the jury to weigh the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence. Pruitt , supra. Despite appellant's testimony that he did not take any of the tools, Thurman testified that tools were missing from the vehicle after it was recovered, and she testified as to the value of the van and the tools. The jury was entitled to disbelieve appellant's testimony and explanation of events. Winston , supra. Accordingly, after considering all the evidence in the light most favorable to the State, we hold that there was sufficient evidence to support appellant's convictions for theft of property. Affirmed. Abramson and Virden, JJ., agree.

I. Facts Chris and Kerri divorced pursuant to a final order entered on October 14, 2015. At the time of divorce, the parties were real estate investors in Northwest Arkansas with a marital estate that included several million dollars' worth of income-producing property, most of which they handled by incorporating into the divorce decree a settlement agreement that divided the real properties they owned. Paragraph 11 of the order provided that each would have the right of first refusal if the other elects to sell ... any of the properties awarded to them herein.... Failure to give notice of a party's election to exercise this first option within 10 days of being notified of the proposed sale shall be deemed a waiver of such a right. The parties negotiated this right of first refusal because they each owned income-producing property in the same subdivisions; accordingly, each had an interest in acquiring the properties awarded to the other. It is undisputed that the right-of-first-refusal language in the order was "short on detail" and provided neither the content of the notice to be sent when properties were to be sold nor the contents of any notice by the optionee to indicate a desire to exercise the right of first refusal. It simply provided that the failure to elect within ten days operated as a waiver of the right. Chris planned to sell several of the parcels of real property awarded to him in the divorce. On February 7, 2017, he sent notice to Kerri in the form of a text stating that he was going to sell eight Stonegate duplexes for $215,000 and triplexes for $315,000. He indicated that he was sure she was not interested in buying, but that he was letting her know. In response, Kerri said she would like "to discuss the duplexes," but her response dealt primarily with a promissory note she held on which Chris was obligor. Chris replied on February 13, 2017, that he had been informed by his attorney that Kerri might be interested in exercising her right to purchase the duplexes and that "if so, I need to know right away." Kerri sent no additional communication regarding the duplexes within ten days of that message from Chris because she was waiting for him to send her copies of the contracts he had obtained on those properties. On March 25, 2017, Chris's assistant emailed to Kerri offers and acceptances regarding five additional lots that showed addresses and prices but redacted the buyers names and signatures. Kerri did not declare within ten days of the email that she wanted to buy any of these properties. Certain of these contracts were set to close on May 5, 2017. On April 13, 2017, Chris sent Kerri full copies of the deeds of the eight lots he had under contract in February. Kerri again did not notify Chris within ten days of her intent to purchase any of these properties. On May 3, 2017, Kerri filed an emergency motion for preliminary injunction and a motion for declaration regarding the parties' rights of first refusal, wherein she alleged that Chris had sold eight lots in the Stonegate subdivision (Eight Lots) and planned to sell an additional five lots in the Stonegate subdivision (Five Lots), all in contravention of her right of first refusal. Kerri filed the motion for a preliminary injunction to halt the May 5, 2017 sales and requested a lis pendens be placed on every property that Chris owned, even those not in issue. Her motion acknowledged that she had been notified of Chris's plans to sell both the Eight Lots and the Five Lots but alleged that the notices were inadequate. Kerri also requested a declaration specifically defining the notice required by the final order. Kerri did not request that the trial court issue a show cause order to Chris, and the motion did not expressly seek a finding of contempt. Paragraph 21 of Kerri's motion did request an order "declaring that Chris Elder failed to substantially comply with the terms of the [Final Order] when he sold the [Eight Lots] that have already closed." At the close of the hearing held on May 25, 2017, the trial court announced that the notice sent on March 27, 2017, with respect to the Five Lots that were scheduled to close starting May 5, 2017, was adequate, but that the notice sent on the Eight Lots under contract in February 2017 was inadequate. The trial court held Chris in contempt for his failure to provide Kerri her right of first refusal as to the Eight Lots, in direct violation of the trial court's final order, and directed Kerri to file a motion for attorney's fees within ten days of the entry of the order. The following day, Chris requested the trial court to reconsider its contempt finding, but his motion was denied on June 7, 2017. The final order was filed June 20, 2017. On July 3, 2017, Kerri filed a motion for a new trial. The trial court took no action; accordingly, it was deemed denied on August 2, 2017. Chris filed a notice of appeal on August 3, 2017, and Kerri filed a notice of cross-appeal on August 10, 2017. When the notices of appeal were filed, there was pending before the trial court Kerri's motion for attorney's fees. Before the record was lodged in this court, the trial court on October 4, 2017, awarded attorney's fees to Kerri. Chris filed a second notice of appeal on October 5, 2017, including the order awarding fees and continuing his first notice of appeal. II. Discussion A. Direct Appeal With respect to our standard of review, a finding of indirect contempt is reviewable de novo. Jones v. Jones , 320 Ark. 449, 898 S.W.2d 23 (1995). The trial court found Chris in contempt for violating the final order's right of first refusal. A right of first refusal is triggered only after the owner (1) receives an acceptable offer and (2) notifies the right holder of such offer. 3 Arthur L. Corbin, Corbin on Contracts § 11.3 (rev. ed. 1996). Courts agree that, at a minimum, notice must reasonably disclose the terms of the sale to trigger the right of first refusal. See, e.g. , John D. Stump & Assoc., Inc. v. Cunningham Mem. Park, Inc. , 187 W.Va. 438, 419 S.E.2d 699, 706 (Va. 1992) . Chris challenges the trial court's finding him in contempt for the February 2017 sales of the Eight Lots without having given "adequate notice" to Kerri. Chris argues that the finding was erroneous because it was not based on a violation of any explicit statement in the final order either obliging him to offer notice or detailing how specific his conduct had to be. He further argues that the finding of contempt was entered without previous notice to him that he was being charged with contempt-notice that would have allowed him to offer "advice of counsel" defenses. Arkansas has repeatedly recognized that before a person may be found guilty of contempt, he or she must have violated a court order that is definite in its commands and clear as to what duties it imposes. See Ark. Dep't of Human Servs. v. Jones , 2017 Ark. App. 365, 522 S.W.3d 853 ; Holifield v. Mullenax Fin. & Tax Advisory Grp. , 2009 Ark. App. 280, 307 S.W.3d 608 ; Applegate v. Applegate , 101 Ark. App. 289, 275 S.W.3d 682 (2008). See also Ivy v. Keith , 351 Ark. 269, 92 S.W.3d 671 (2002) ; Hodges v. Gray , 321 Ark. 7, 901 S.W.2d 1 (1995) ; Lilly v. Earl , 299 Ark. 103, 771 S.W.2d 277 (1989) ; Warren v. Robinson , 288 Ark. 249, 704 S.W.2d 614 (1986). Those commands must be express, rather than implied. Johnson v. Johnson , 343 Ark. 186, 33 S.W.3d 492 (2000) ; Allison v. DuFresne , 340 Ark. 583, 12 S.W.3d 216 (2000). When a party has done everything he or she is expressly ordered to do, it is error to hold a party in contempt. Id. When there is nothing in the court order to indicate a party's specific duty to do something, a party is free of contempt. See Lilly, supra. Kerri's counsel acknowledged to the trial court that the final order was short on detail and did not specify the contents of any notice the parties were bound to give, and the trial court found that the final order was silent with respect to the contents of a notice. Chris claims that he provided more information than the final order expressly ordered, and we agree. His February 2017 text to Kerri advising her that he was planning to sell "eight Stonegate duplexes for $215,000 and triplexes for $315,000" provided sufficient information to put Kerri on notice that she might inquire which specific duplexes and triplexes were to be sold if she were interested in exercising her right of first refusal. The text informed Kerri about the type of property (duplexes and triplexes) in a specific subdivision (Stonegate) and specified the prices he was seeking. Those details are not expressly required by the final order. We hold that the trial court erred in issuing, in effect, a retrospective finding of contempt by declaring what should have been done in the past and then holding Chris in contempt for not providing "adequate notice," as opposed to his having failed to perform a duty expressly required by the final order. We disagree with Kerri's contention that her right of first refusal in connection with the Eight Lots that Chris sold and the minimum requirement of "reasonable notice of the essential terms of an offer" required that Chris "provide a copy of the bona fide offer to purchase." The express terms of the final order do not require a seller to give "market information" about a mere offer that is presented. This court "will not reverse a finding of civil contempt unless it is clearly against the preponderance of the evidence." Nat'l Ass'n for the Advancement of Colored People v. Bass , 2017 Ark. App. 166, at 7-8, 519 S.W.3d 336, 341, reh'g denied (Apr. 19, 2017). "A finding of contempt is clearly against the preponderance of the evidence if, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made." Id. While there is no question that "willful disobedience of a valid order of a court is contemptuous behavior," Ivy , 351 Ark. at 279, 92 S.W.3d at 677 ; see also Cartwright v. State , 2016 Ark. App. 426, at 11, 501 S.W.3d 859, 868, we hold that Chris did not willfully disobey the requirements of the final order because it was not definite in its commands regarding the notice to be given and did not clearly express what duties it imposed. Moreover, because Chris's alleged contemptuous actions occurred outside the immediate view and presence of the trial court, he was entitled to "noti[ce] of the accusation and ... a reasonable time to make his ... defense." Ark. Code Ann. § 16-10-108(c) (Repl. 2010). See id. We disagree with Kerri's claim that when she filed her emergency motion for preliminary injunction and motion for declaration regarding the parties' rights of first refusal on May 3, 2017, she provided more than sufficient notice with respect to a finding of contempt by seeking a finding that he had violated the final order in denying her the right of first refusal and that he had done so in bad faith. It is undisputed that Kerri's motion did not contain the term "contempt" nor did the summons that was served, and we hold that Chris's responding to Kerri's motion and appearing before the trial court on May 25, 2017, to defend against it is not synonymous with being notified of and defending against a specific contempt charge. Despite Kerri's considering communications indicating parties, prices, and properties to be inadequate-claiming that Chris should also tell her how much rent he was getting on any property he was selling as well as the commission he was paying-the final order drafted by the parties failed to specify how notice was to be given, what it would contain, and when it was to be transmitted. While the trial court properly made these determinations in its June 20, 2017 order with respect to the parties' proper procedures going forward, it erred in finding Chris in contempt with respect to the Eight Lots. Because we reverse the trial court's contempt finding in its June 20, 2017 order, we also reverse the trial court's October 4, 2017 order awarding attorney's fees pursuant to the petition filed by Kerri at the direction of the trial court upon its announcement of the finding of contempt against Chris. B. Cross-Appeal-Notice Regarding Five Lots Kerri argues on cross-appeal that the trial court improperly found that her right of first refusal expired for the Five Lots that Chris had contracted to sell. She claims that Chris provided only a general notice as to these lots, consisting of partially legible, single-page offers to sell. Kerri submits that she asked Chris for more information so that she could determine whether to exercise her right of first refusal but that Chris did not provide any additional information beyond the initial disclosure of price, address, and partially legible contracts to sell. Kerri argues that the trial court incorrectly found that Chris satisfied his duty to notify her through only his initial general disclosure. She claims that the trial court also incorrectly concluded that Kerri never requested more information or indicated any intent to exercise her right of first refusal on the Five Lots. We disagree. Chris received offers to buy the Five Lots in March 2017. On March 25, 2017, Chris's assistant, Hannah Murphey, sent an email to Kerri with unsigned, single-page offers for each of the Five Lots. Kerri, upon receiving the notice that she deemed insufficient, emailed Chris the same day and asked for complete, signed contracts, as well as additional information regarding the Five Lots that Chris had provided to the potential buyers so that she could determine whether to exercise her right of first refusal. She acknowledges that Chis responded to this email, but she claims that he did not provide full contracts or any other information, claiming that Kerri was not entitled to "look at any contracts." On March 27, 2017, Kerri sent Chris a text stating, "I told you I was interested in purchasing any Stonegate.... I will be exercising my rights through the decree." Kerri again asked for the full contracts and informed Chris that she intended to exercise her right of first refusal. Within two days of receiving the unsigned, illegible offers to buy, Kerri claims that she satisfied her obligations under the final order. Kerri argues that Chris violated the final order-and thus her right of first refusal-when he failed to respond to her request for additional information. Kerri asserts that Chris never provided her any additional information as to the Five Lots; instead, he scheduled closings. Kerri notes that she filed her emergency motion for preliminary injunction on May 3, 2017, once it became clear that Chris had no intention of allowing her the opportunity to exercise her right of first refusal. Kerri argues that the trial court erred as a matter of law in denying her motion and allowing Chris to close on the Five Lots. She submits that the law imposes a duty on the owner to provide reasonable notice of a planned sale that implicates a right of first refusal, and Kerri submits that Chris failed to do so. Kerri urges that the analysis does not end with the initial notification, noting that the law imposes additional duties beyond just the initial notice. Kerri claims that she satisfied her duty to seek additional information after she received insufficient notice to make an informed decision about whether to exercise her right when she both emailed and texted Chris seeking additional information. She contends that Chris then failed to satisfy his duty to respond to her inquiry and to act timely, reasonably, and in good faith when he wholly refused to provide the complete contracts or any other information. Accordingly, Kerri maintains that the trial court erred in concluding that her right of first refusal with respect to the Five Lots had expired. Chris notes that despite Kerri's allegations that one of the five contracts received by her was illegible, she did not mention "illegibility" in her response to him. He maintains that what angered Kerri was that "incomplete" (i.e., unsigned by buyers) contracts were sent to her, despite her counsel telling Chris's counsel that contracts could be redacted. Instead of responding with an acceptance within ten days of March 25, 2017, which was her duty, Kerri indicated that she was "interested" in the Stonegate properties. It is undisputed that she provided no signature, earnest money, statement of "interest," etc., that might constitute an "acceptance." Equivocal statements are insufficient to bind either Kerri or Chris. See Restatement (Second) of Contracts § 57. We agree that Chris provided Kerri sufficient information, specifically lot numbers and prices, to make a decision regarding her right of first refusal with respect to property that she previously had managed and owned. Accordingly, we affirm on cross-appeal. Reversed on direct appeal; affirmed on cross-appeal. Gruber, C.J., and Abramson, J., agree. The parties owned sixty total lots in the Stonegate subdivision at the time of divorce, and each was awarded approximately half of these lots.

RHONDA K. WOOD, Associate Justice Appellants, which include Arkansas Department of Finance and Administration (DFA), Arkansas Alcoholic Beverage Control Division (ABC), and Arkansas Medical Marijuana Commission (MMC), appeal the circuit court's preliminary injunction and declaratory judgment. At issue is the MMC's process that resulted in a decision awarding the top five scoring applicants, including Natural State Wellness Enterprises, Delta Medical Cannabis Company, Bold Team, LLC, and Osage Creek Cultivation, medical-marijuana-cultivation-facility licenses. Appellee Naturalis Health, LLC (Naturalis), is one of the applicants that did not receive a score sufficient to obtain one of the initial five licenses. We reverse and dismiss the appeal because the circuit court lacked subject-matter jurisdiction. I. Factual and Procedural Background In 2016, the people of Arkansas amended the Arkansas Constitution to legalize medical marijuana. Ark. Const. amend. 98. Amendment 98 created the MMC "to determine the qualifications for receiving a license to operate a dispensary or a license to operate a cultivation facility and the awarding of licenses." Id. § 19(a)(1). Pursuant to this authority, the MMC promulgated "Rules and Regulations Governing the Application For, Issuance, and Renewal of Licenses for Medical Marijuana Cultivation Facilities and Dispensaries in Arkansas" (MMC Rules). The MMC reviewed and ranked the applications for cultivation-facility licenses pursuant to the criteria for merit selection contained in the MMC Rules. In February 2018, the MMC named the top five applicants to whom it would award licenses after each applicant paid a $100,000 licensing fee and posted a $500,000 performance bond. Naturalis ranked thirty-eighth out of eighty-two applicants. On March 13, 2018, Naturalis filed a "Verified Complaint to Appeal Agency Decision, for Temporary Restraining Order, Preliminary and Permanent Injunction and Declaratory Judgment" in the circuit court against DFA, ABC, and the MMC. On March 14, 2018, the circuit court entered a temporary restraining order. On March 16, 2018, the circuit court conducted an evidentiary hearing on the preliminary injunction. On March 21, 2018, the circuit court entered an order granting the preliminary injunction and a declaratory judgment. Naturalis had asserted that the MMC carried out the application process in a flawed, biased, and arbitrary and capricious manner, and that the commissioners failed to uniformly apply their rules when scoring the applications. The circuit court went further and concluded that the MMC's licensing process and decisions violated Amendment 98 to the Arkansas Constitution, were ultra vires , violated due process of law, resulted from improper procedure, and were arbitrary and capricious. It also declared the MMC's licensing decisions null and void, and it enjoined the MMC from issuing the cultivation-facility licenses. After the circuit court entered its order, successful and unsuccessful applicants filed motions to intervene, each seeking an opportunity to be heard in the matter. On April 2, 2018, the circuit court entered a "Nunc Pro Tunc Order," again granting the preliminary injunction and declaratory judgment. The circuit court granted the motions to intervene. On April 11, 2018, the circuit court entered a "Memorandum Omnibus Order" denying the appellants/intervenors' motion to vacate the preliminary injunction on grounds of "law of the case." The court stated that because it had already made its decision, it was prohibited from reconsidering it and the parties were bound by it. Appellants appealed. II. Analysis A. Finality We must first determine whether there is an appealable, final order. See Henson v. Cradduck , 2017 Ark. 317, 530 S.W.3d 847. The circuit court's April 11, 2018 memorandum order stated that because it had remanded to the agency, "it is not a final appealable order." First, it is for this court to make that determination, and second, the circuit court is wrong. In some instances, a remand to an agency would preclude us from hearing the appeal for lack of a final order. See Floyd v. Ark. State Bd. of Pharm. , 248 Ark. 459, 451 S.W.2d 874 (1970). An order to remand is not final and appealable if it directs the agency to complete a step which is a predicate to the circuit court reaching its ultimate decision. When this occurs, the circuit court's order contemplates the agency completing the task and the case returning to it for a final decision. See, e.g. , Floyd , 248 Ark. 459, 451 S.W.2d 874 (dismissing appeal because the circuit court's order remanded to the Board to correct its order); Ark. Ins. Dep't v. Henley , 2016 Ark. App. 60, 481 S.W.3d 467 (dismissing appeal because the circuit court remanded for further proceedings); Ark. Dep't of Human Servs. v. J.N. , 96 Ark. App 319, 241 S.W.3d 293 (2006) (circuit court remanding for an in-person hearing to be scheduled at DHS's earliest possible convenience); Hargrett v. Dir., Emp't Sec. Dep't , 44 Ark. App. 111, 866 S.W.2d 432 (1993) (per curiam) (dismissing appeal because the circuit court remanded for the Agency to "issue a determination"); Baldor Elec. Co. v. Jones , 29 Ark. App. 80, 777 S.W.2d 586 (1989) (denying rehearing, 29 Ark. App. 80, 777 S.W.2d 586 (1989) ) (dismissing appeal because the circuit court remanded for the taking of additional evidence). Here, the circuit court's order is final. It nullified the MMC's decision and remanded to restart the selection process. The circuit court had ruled on the merits. Therefore, we find that the order is a final disposition of the case for purposes of an appeal. Appellees also argue that our review is limited to the injunctive relief and that we cannot consider the merits because this is an interlocutory appeal under Arkansas Rule of Appellate Procedure-Civil 2(a)(6). Again, we disagree. "For an order to be final and appealable, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy." Robinson v. Villines , 2012 Ark. 211, at 2-3, 2012 WL 1739140. In contrast, an order that contemplates further action by a party or the court is not a final, appealable order. Id. at 3. Here, the circuit court's order is final, and therefore appealable, because it vacated the selection of licensees and enjoined the MMC from issuing the cultivation licenses to applicants it had chosen. The circuit court considered it sufficiently final that it erroneously applied the "law of the case doctrine." The court's decision concluded the lawsuit's controversy, and the appellants appealed from a final, appealable order. B. Subject-Matter Jurisdiction Next, we must address subject-matter jurisdiction. Subject-matter jurisdiction is a court's authority to hear a particular type of case. Fatpipe, Inc. v. State , 2012 Ark. 248, 410 S.W.3d 574. It cannot be waived, can be questioned for the first time on appeal, and can be raised by this court sua sponte. Terry v. Lock , 343 Ark. 452, 37 S.W.3d 202 (2001). Subject-matter jurisdiction is determined from the pleadings and not proof. Id. Where the issue of subject-matter jurisdiction requires interpretation of a statute or constitutional provision, our review is de novo. Tripcony v. Ark. Sch. for the Deaf , 2012 Ark. 188, 403 S.W.3d 559. Our constitution divides our state government into three branches and states that no branch "shall exercise any power belonging to either of the others." Ark. Const. art. 4, § 2. This is foundational to our government. The judicial branch must not abdicate this by reviewing the day-to-day actions of the executive branch. See Ark. Livestock & Poultry Comm'n v. House , 276 Ark. 326, 634 S.W.2d 388 (1982). The Administrative Procedure Act (APA) subjects limited agency decisions to circuit court review. See Tripcony , 2012 Ark. 188, at 6-7, 403 S.W.3d at 561-62. In Tripcony we explained that the courts do not generally have jurisdiction to examine administrative decisions of state agencies. "[I]t is only with respect to its judicial functions, which are basically adjudicatory or quasi-judicial in nature, that the APA purports to subject agency decisions to judicial review." Id. ; see also Sikes v. Gen. Publ'g Co., Inc. , 264 Ark. 1, 568 S.W.2d 33 (1978) (holding that the Board's decision was administrative and not an adjudication because the Board heard no testimony, made no findings of facts, did not serve the parties with a copy of the decision, and certified no record of any proceeding). Because we conclude that the circuit court did not have subject-matter jurisdiction, we must reverse and dismiss. Based on the complaints, we must consider whether the circuit court had subject-matter jurisdiction under section 212 or section 207 of the APA. Ark. Code Ann. § 207, 212 (Repl. 2014). Section 212 provides circuit courts with jurisdiction to review agency decisions in "cases of adjudication." Ark. Code Ann. § 25-15-212(a). "Adjudication" is defined as the "agency process for the formulation of an order." Id. § 25-15-202(1)(A). An "order" is defined as "the final disposition of an agency in any matter other than rule making, including licensing and rate making, in which the agency is required by law to make its determination after notice and hearing." Id. § 25-15-202(6). If the agency has not conducted an adjudication, then there is no reviewable agency action under section 212. Fatpipe , 2012 Ark. 248, 410 S.W.3d 574. Appellees cannot identify anything that occurred at the agency level that was an adjudication as defined by statute. Neither can we. The legislature identified quasi-judicial decisions involving "adjudications" as appropriate for judicial review. The MMC's decision simply was not quasi-judicial. Therefore, we find that the circuit court did not have subject-matter jurisdiction over the action disputing MMC's decision to grant the five identified licenses under section 212 of the APA. Section 207 also fails to provide subject-matter jurisdiction for the controversy at issue. It reads, "[T]he validity or applicability of a rule may be determined in an action for declaratory judgment if it is alleged that the rule, or its threatened application, injures or threatens to injure the plaintiff in his or her person, business, or property." Thus, the plain language of section 207 confers subject-matter jurisdiction on a circuit court to resolve either whether a rule is valid or whether a rule is applicable, or both. Appellees did not plead the invalidity of an MMC rule. Rather, the appellees' complaints alleged that the MMC violated its rules and procedures during the application process and asked the circuit court to invalidate the results. To determine whether the appellees sought a declaration as to a rule's "applicability," we must take a closer look at the meaning of "applicability" in the context of section 207. The Oxford English Dictionary defines "applicability" as "[t]he quality of being applicable; capable of being fitly applied; pertinence." Applicability , Compact Oxford English Dictionary 64 (2d ed. 1987). Black's Law Dictionary defines "applicable" as it relates to a rule as "affecting or relating to a particular person, group, or situation; having direct relevance." Applicable, Black's Law Dictionary (10th ed. 2014). Thus, the question of whether a rule is "applicable" asks whether that rule may be applied to a person or factual situation or whether it is inappropriate or irrelevant to the person or situation. The applicability of a rule is different from the application of a rule. Black's Law Dictionary defines "application" as "the process by which a decision-maker categorizes the legal facts at issue and hence ascertains the rule of law that is to govern them." Application, Black's Law Dictionary (10th ed. 2014). Consequently, an inquiry into the "application" of a rule would ask how the rule should be applied given a particular set of facts or circumstances. Therefore, examining a rule's "applicability" is not the same as examining its "application." We find that section 207 is limited to declarations concerning the rule-that the rule is either null and void, in the case of a validity challenge, or whether the rule should be applied to a particular person or situation, in the case of an applicability challenge. This interpretation of Rule 207 is consistent with the purpose and intent of the APA, which is to allow circuit courts to review judicial or quasi-judicial decisions of state agencies after notice and a hearing. A broad reading of applicability, as to permit circuit courts to determine whether the agency complied with the rules, would largely eliminate the notice and hearing requirements of the APA and would swallow section 212 entirely. The appellees' complaints do not challenge the "applicability" of any rule as contemplated by section 207. Nor do they seek a declaration regarding whether the rules should have been applied. Rather, the complaints seek a declaration that the "application" of the MMC's rules was improper, unfair, and arbitrary as to them and others during the selection process. As such, the circuit court did not have subject-matter jurisdiction over the action under section 207. Finally, we decline to address appellees' arguments under MMC Rule 19. The rule states that "if the commission denies an application for a cultivation license, the commission's decision may be appealed to the circuit court of the county in which the cultivation facility is situated or the Pulaski County Circuit Court. Appeals shall be governed by the terms of the Arkansas Administrative Procedure Act, § 25-15-201, et seq." However, the arguments concerning the denial of the license were not ripe for the circuit court to hear. Because the appellees have not been issued denial letters subsequent to an adjudication, the issue was not ripe; therefore, we reverse. We do not address whether Rule 19 conveyed subject-matter jurisdiction to the circuit court. In sum, we conclude that the circuit court lacked subject-matter jurisdiction. Because the circuit court lacked jurisdiction over this matter, this court must reverse and dismiss both the appeal and the cross-appeal. Reversed and dismissed on direct appeal and on cross-appeal. Special Justice Emily White joins. Kemp, C.J., concurs. Hart, J., not participating. Appellants/intervenors are Natural State Wellness Enterprises, Delta Medical Cannabis Company, Bold Team, LLC, and Osage Creek Cultivation. We collectively refer to the appellants and appellants/intervenors as "appellants". Appellees/intervenors are Arkansas Medicinal Source, LLC, Clear Creek Medical, Inc., Natural State Agronomics, Inc., River Valley Production, LLC, Acanza Health Group, LLC, Carpenter Farms Medical Groups, LLC, Mildred Griggs, and Delta Cannabinoid Corporation. These entities also scored lower than the top five, which resulted in none of them being selected to receive one of the initial five licenses. We use the term "appellees" to include of all appellees. The MMC is organized within the DFA. Ninety-five applications were submitted to the MMC, but only eighty-two made it through the initial screening process and were ranked by the MMC. Under Amendment 98, MMC must issue at least four but no more than eight medical marijuana cultivation-facility licenses. These are the entities identified as appellants/intervenors in footnote 1 supra and appellees/intervenors in footnote 2 supra. The following parties intervened as plaintiffs: Arkansas Medicinal Source, LLC; Clear Creek Medical, LLC; River Valley Production, LLC d/b/a River Valley Relief Cultivation; Natural State Agronomics, Inc.; Carpenter Farms Medical Group, LLC; Acanza Health Group, LLC; Mildred Griggs and Delta Cannabinoid Corporation. The following intervened as defendants: Natural State Wellness Enterprises, LLC; Bold Team, LLC; Delta Medical Cannabis Company, LLC; and Osage Creek Cultivation, LLC. Application of law of the case doctrine is not an issue on appeal. A good discussion of the doctrine can be found in Cannady v. St. Vincent Infirmary Medical Center , 2018 Ark. 35, 537 S.W.3d 259. Additionally, the appellants' notice of appeal stated that they were appealing from a final order and were not limiting it to an interlocutory appeal.

ROBERT J. GLADWIN, Judge This appeal involves the sale of nonvoting stock in a family-held corporation, Black, Inc. (Black Inc.), pursuant to a stock repurchase agreement (SRA). Black Inc. and Deborah Dunklin Tipton have filed separate appellate briefs seeking reversal of a series of orders in the Arkansas County Circuit Court that, among other things, confirm the appraisal of appellee George H. Dunklin, Jr.'s nonvoting shares in Black Inc.; order Tipton to purchase Dunklin's nonvoting shares for the price of $15,619,240; and deny Tipton's motion to conduct discovery on the appraisal. Tipton argues that the circuit court erred by (1) denying her permission to conduct discovery; (2) adopting the appraisal; and (3) concluding that the fair market value (FMV) of the stock was $15,619,240 rather than $15,600,000. Black Inc. similarly argues that the circuit court erred in interpreting the SRA and in adopting the appraisal. We affirm. I. Facts and Procedural History Jerry Lee Bogard and Rebecca Winemiller offered Dunklin $20,000,000 for his shares in Black Inc. Under the SRA, Dunklin gave notice of his intent to sell, and Tipton elected to purchase the shares. When a dispute arose about the purchase price and the timing and manner for electing to exercise options under the SRA, Dunklin filed his complaint against Black Inc., its shareholders, Bogard, and Winemiller, seeking a declaration of the parties' rights and obligations under the SRA with respect to the offer. Dunklin attached to his complaint the $20,000,000 offer and the SRA, which provides that if Dunklin should sell his shares, he must first offer to sell them to his children (who waived their rights) and then to his sister, Tipton. The SRA also provides that the FMV of the shares of stock would be by mutual agreement of the selling shareholder and the purchaser. However, if those parties could not agree, FMV would be determined by an appraiser selected jointly by the seller and the purchaser. Tipton separately answered Dunklin's motion and counterclaimed, also seeking a declaration of the parties' respective rights and obligations under the SRA. Tipton noted that, even though she and Dunklin had agreed on an appraiser, the firm of Stout Risius Ross, Inc. (SRR), Dunklin still disavowed the validity of Tipton's election and asserted that her window to exercise her option had closed. Black Inc. and the remaining shareholders named in the action answered both motions by affirmatively stating that they wished to protect their rights in the event Tipton's election was found to be invalid, and they filed a motion for preliminary injunction, arguing that the purpose of the SRA was to provide for continuity and harmony among the family members in the management and continued family ownership of Black Inc. The circuit court issued a temporary restraining order on January 8, 2016, preserving the position of all parties under the SRA as of January 7, 2016. A second hearing was held on January 26, 2016, and the resulting order filed March 7, 2016, states that the parties stipulated that Tipton had elected to purchase and would "put up assets or funds as security on March 12, 2016," for the purchase price. Dunklin and Tipton stipulated that they had jointly agreed to an appraiser. The order provided that Black Inc. would make its election or waiver pursuant to the SRA by March 9, 2016, and provision was made for it to provide security on the purchase of the stock if Tipton's purchase was not accomplished. Paragraph 3 of the order states, Other undecided issues raised in the pleadings of the parties are reserved by the Court. Dunklin, through counsel, specifically reserved his issues raised in the Complaint about any appraisal received by the parties and the methodology employed by the appraisers. On August 23, 2016, Tipton filed a "Motion for Leave to Conduct Discovery and Obtain Court Approval of Appraisal." Attached was the final appraisal report of SRR rendered on July 22, 2016. Tipton alleged that, even though Dunklin had never accepted the $20,000,000 offer in writing and the offer contained due-diligence provisions and asset-verification provisions that allowed for modification of the amount of the offer, SRR "elected to consider the existence of the offer and afforded it weight in their appraisal." The appraisal report stated that the offer was "arms-length," and the purchasers were considered to have the ability to execute and close on the offer. Based on these conclusions, the ultimate appraisal amount was increased by about $4,300,000. Therefore, Tipton asked that she be permitted to conduct formal discovery into the financial ability of Winemiller and Bogard to complete the transaction and into the prior course of any dealings Dunklin had with them. Black Inc. responded that Tipton should be allowed to inquire into the "factors underlying the conclusions reached by the appraiser." Dunklin filed a status update on August 24, 2016, in anticipation of the status hearing set for August 26. He alleged that the hearing had not been requested by him for the purpose of challenging the appraisal. He stated that he and Tipton had stipulated that they had jointly selected SRR to perform the appraisal "in accordance with the terms of the SRA." He alleged that SRR's final report had been issued and that it was time for the sale to close. Dunklin relied heavily on the stipulation as presented in the circuit court's order of March 7, 2016. He contended that Tipton refused to close and that she sought to delay the closing based on her dissatisfaction with the results of the valuation. Dunklin also reported that Black Inc. had exercised its preemptive rights under the SRA to purchase Dunklin's nonvoting shares in the event that they were not purchased by Tipton. He asked that Tipton be ordered to either close on or before August 31, 2016, or give notice that she would not close. Dunklin asked that Black Inc. be ordered to close by September 7, 2016, if Tipton failed to close. Black Inc. responded to Dunklin's status update and stated affirmatively that "the appraisal failed to comply with the [SRA] and failed to comply with requirements of the appraisal itself so that such should be construed by the Court, particularly as it related to any purchase by Black Inc." The circuit court held a hearing on August 26, 2016, and at its conclusion, the circuit court ruled from the bench as follows: The parties, Mr. Dunklin and Mrs. Tipton in accord with the [SRA] and as affirmed in the Court's order of March 1, 2016, jointly selected SRR to perform the [FMV] appraisal of the stock. The appraisal process by SRR went through three drafts. Beginning with the first on February 23, 2016. A second on June 11, 2016. And the third and final draft on July 22, 2016. The fair market evaluation reached by SRR in its final-in its final appraisal was $15,619,240.00.... The weight assigned with respect to the Bogard/Winemiller offer increased the value by some $4 million dollars. As noted previously, Mrs. Tipton's position is that SRR gave too much weight to the Bogard/Winemiller offer in that the firm failed to fully explore the financial ability of the ... offerors to complete the purchase and whether the transaction was in fact an arm's-length transaction. During the appraisal process the parties were given opportunities to submit information ... to be considered by SRR to consider the evaluation or the validity of the Bogard/Winemiller offer. By jointly agreeing to have SRR perform the final market value of the stock, I believe that it can be said that Mrs. ... Tipton agreed certainly by implication at the very least that SRR would perform the appraisal in a fair, professional, and thorough manner. It is argued today that SRR accepted Mr. Bogard's representations concerning the validity of the Bogard/Winemiller offer. But I do think that by agreeing to SRR, the parties rely on SRR to give full and studied consideration to all factors touching on the issue of the evaluation of the stock and the Court must assume that is in fact what SRR did. The issue, I think, in this case comes down to and is controlled by the [SRA]. The parties chose how they wish to proceed. That is, by agreeing that the appraisal should ... be done by SRR to decide the value. There is no provision in the agreement regarding what should happen if the parties didn't agree on the appraisal reached by the appraiser jointly agreed to. I think that the parties are bound under the circumstances and given the totality of how this case has proceeded by the conclusion reached by SRR and its appraisal. I can foresee that if discovery was permitted at this point to go behind or beyond the SRR appraisal that would be giving or just about guarantee further hearings on the details or the methodology of ... SRR and the factors considered by SRR and will eventually require the Court to more or less determine the value of the stock. Which is exactly the primary purpose that a stock repurchase is signed in the first place. That is to rightfully seek to avoid court intrusion into the evaluation process. And as I said, while I can appreciate the positions of all parties and I make this decision and I particularly understand the effect this appraisal will have on the estate tax values down the line, but the effect of this decision on the estate tax considerations is, in this Court's judgment, not relevant to the Court's decision in this particular case. In conclusion, the Court finds that the SRR appraisal amount of $15,619,240 should stand as the [FMV] of the stock and the amount Mrs. Tipton should pay to Mr. Dunklin for his 5160 shares of stock. Accordingly, Mrs. Tipton's motion for discovery is denied. All that said I'm going to allow some leeway in the closing date of the transaction and rule that the closing in this transaction should be completed no later than close of business on September 15, 2016. At a hearing held on September 12, 2016, the circuit court noted that Tipton and Black Inc. had objected to the proposed order submitted by Dunklin's attorney from the August 26, 2016 hearing. By order filed September 13, 2016, the circuit court affirmed its bench opinion of August 26, 2016; confirmed the FMV of Dunklin's nonvoting shares to be $15,619,240; ordered Tipton to complete her purchase of those shares by September 15, 2016, or to notify Dunklin and the circuit court in writing that she waived her right; found that Lester A. McKinley, Georgea McKinley Greaves, Mary Jennings, Warren Jennings, Jr., and Jean Johnston had waived their rights to purchase Dunklin's shares; preserved Black Inc.'s right to purchase Dunklin's shares if Tipton waived her right; denied Tipton's motion to conduct discovery; denied Tipton's request for Ark. R. Civ. P. 54(b) certification; terminated Bogard's and Winemiller's interests in the proceeding; and retained jurisdiction to carry out the terms of the order. In an amended order filed September 30, 2016, the circuit court found that, despite its denial of Tipton's request for a Rule 54(b) certificate, all pending claims had been resolved and the order should be considered final. In a second order filed on September 30, 2016, entitled "Final Order," the circuit court found that Tipton had completed the purchase of Dunklin's 5160 shares of nonvoting stock in Black Inc. for $15,619,240. The circuit court found that Tipton's purchase rendered moot the contingent provisions for the purchase of the shares by Black Inc. and that all the parties' claims had been fully and finally resolved. Black Inc. and Tipton filed separate notices of appeal, and this appeal followed. II. Standard of Review The standard of review on appeal from a bench trial is that we conduct a de novo review and reverse only if the circuit court's findings of fact are clearly erroneous or clearly against the preponderance of the evidence. Wesleyan Corp. v. Anderson Elec. of Pine Bluff, Inc. , 2013 Ark. App. 121, at 4-5, 2013 WL 625046. A finding is clearly erroneous when, although there is evidence to support it, we are left with a distinct and firm conviction that a mistake has been committed. Id. Disputed facts and determinations of credibility are within the province of the fact-finder. Id. III. Reaching the Arguments on Appeal A. Preservation of Tipton's Argument on Specific FMV Before we can reach the merits, we must first consider Dunklin's arguments that Tipton and Black Inc. are precluded from their appeals. Dunklin argues that the issue of the specific FMV ($15,619,240 versus $15,600,000) is not preserved for appellate review. We agree that Tipton did not object at the first opportunity when the circuit court made its finding that the FMV was $15,619,240. The circuit court stated this amount in the August 26, 2016 hearing and again at the September 12, 2016 hearing. No objections were made; thus, the issue is not preserved for appellate review because objections were not made and the circuit court was given no opportunity to rule on that issue. Madden v. Aldrich , 346 Ark. 405, 58 S.W.3d 342 (2001) ; Blair v. Willis , 2017 Ark. App. 324, 521 S.W.3d 535. B. Mootness of Tipton's Appeal Dunklin argues that Tipton's appeal is moot because the purchase has been completed and she did not request a supersede as bond. Citing City of Little Rock v. Circuit Court of Pulaski County , 2017 Ark. 219, 521 S.W.3d 113, Dunklin argues that Tipton chose to pay the appraised value on September 15, 2016, and purchased all his shares pursuant to the SRA; thus, he contends that her appeal is moot. In City of Little Rock , our supreme court relied on the City's failure to request a supersedeas bond pending the appeal and determined that the City voluntarily paid the penalty, rendering its appeal moot. Id. at 4-5, 521 S.W.3d at 116. Dunklin argues that Tipton paid the appraised value and never requested a supersedeas bond pending an appeal. As a general rule, appellate courts of this state will not review issues that are moot. Warren Wholesale Co., Inc. v. McLane Co., Inc. , 374 Ark. 171, 286 S.W.3d 709 (2008). To do so would be to render advisory opinions, which this court will not do. Id. A case becomes moot when any judgment rendered would have no practical legal effect upon a then existing legal controversy. Id. In Lytle v. Citizens Bank of Batesville , 4 Ark. App. 294, 630 S.W.2d 546 (1982), this court wrote the following: We adopt the majority rule as the better reasoned rule. Thus, if appellant's payment was voluntary, then the case is moot, but if the payment was involuntary, this appeal is not precluded. In applying this rule to the facts at bar, we must determine whether the payment made by appellant was voluntary or involuntary. In doing so, we believe that one of the most important factors to be considered is whether appellant was able to post a supersedeas bond at the time he satisfied the judgment. Lytle , 4 Ark. App. at 297, 630 S.W.2d at 547 ; see also Sherman Waterproofing, Inc. v. Darragh Co. , 81 Ark. App. 74, 98 S.W.3d 446 (2003) ; Hendrix v. Winter , 70 Ark. App. 229, 16 S.W.3d 272 (2000) ; Smith v. Smith , 51 Ark. App. 20, 907 S.W.2d 755 (1995) ; DeHaven v. T & D Dev., Inc. , 50 Ark. App. 193, 901 S.W.2d 30 (1995). Citing the majority rule settled in Lytle , this court analyzed the voluntariness of the satisfaction of a judgment and determined as follows: Based on the majority rule, we dismissed the appeal [in Lytle ] because there was no evidence in the record that showed that the appellant requested the court to set the amount of a supersedeas bond or that showed his financial inability to pay such cost. Id. at 297, 630 S.W.2d at 547. To the contrary, the record demonstrated that the appellant could pay such costs in that he was able to borrow money to pay the judgment in full when faced with the threat of execution of the judgment. Id. , 630 S.W.2d at 547. We stated, "[f]or whatever reasons, appellant simply chose to forgo his right to request a bond in an effort to stay the circuit court's judgment and any subsequent proceedings to enforce it." Id. at 298, 630 S.W.2d at 547. Therefore, we held that the appellant's payment was voluntary and dismissed the appeal as moot. Id. , 630 S.W.2d at 548. HomeBank, relying upon Lytle , contends that Hubbard's appeal should also be dismissed. It argues that, as in Lytle , there is no evidence in the record that Hubbard sought to stay HomeBank's execution of its judgment by seeking a stay or by requesting a supersedeas bond. We agree that Hubbard did not seek to stay the judgment or request a supersedeas bond, but we disagree that these facts are dispositive. Instead, we liken the instant case to Reynolds Health Care Servs. v. HMNH, Inc. , 364 Ark. 168, 217 S.W.3d 797 (2005) and Ward v. Williams , 354 Ark. 168, 118 S.W.3d 513 (2003). In Reynolds Health Care and Ward , after judgments were entered against the appellants, they appealed; however, they failed to post supersedeas bonds, and the judgments were satisfied. Reynolds Health Care Servs. , 364 Ark. at 181-82, 217 S.W.3d at 808-09 (judgment was satisfied when the sheriff levied on and later sold the appellant's property); Ward , 354 Ark. at 175, 118 S.W.3d at 517 (circuit court entered order vesting title to appellee in fee simple absolute). In both cases, the appellees claimed that the appellants' appeals were moot because the judgments were satisfied. The supreme court rejected the appellees' arguments, holding that the judgments were not satisfied voluntarily by the appellants. Reynolds Health Care Servs. , 364 Ark. at 182, 217 S.W.3d at 809 ; Ward , 354 Ark. at 182, 118 S.W.3d at 521. The court in these cases, both decided after Lytle , acknowledged that no supersedeas bond was filed by either appellant. Reynolds Health Care Servs. , 364 Ark. at 182, 217 S.W.3d at 809 (stating that " 'one of the most important factors to be considered' in determining whether a judgment was satisfied voluntarily is whether a supersedeas bond has been filed"); Ward , 354 Ark. at 182, 118 S.W.3d at 521. However, the voluntariness of the payment remains a factor to be considered. As stated by the Reynolds Health Care court, "the court must still consider as an additional factor the fact that the judgment was only satisfied as the result of the sheriff's levying a writ of execution on [the appellant's] property." Id. , 217 S.W.3d at 809. In the case at bar, Hubbard did not voluntarily pay money to HomeBank to satisfy the judgment. Unlike the appellant in Lytle , Hubbard did not borrow money to pay the judgment. Rather, HomeBank, without notice and authorization, transferred funds out of Hubbard's account. This action was more akin to the involuntary satisfaction of judgments that occurred in Reynolds Health Care and Ward . Because we hold that Hubbard did not voluntarily satisfy the judgment in this case, we deny HomeBank's motion to dismiss Hubbard's appeal. Hubbard v. HomeBank of Ark. , 2011 Ark. App. 183, at 4-6, 382 S.W.3d 721, 724-25. Based on caselaw, Tipton contends that her payment was involuntary, and we agree. Tipton was ordered to complete her purchase by September 15, 2016, or to notify Dunklin and the circuit court in writing that she waived her right. Thus, if she did not purchase by the deadline, her right would be waived. Her request for a Rule 54(b) certificate was rejected. The circuit court did not enter a final, appealable order until September 30, 2016. Accordingly, when she purchased the stock pursuant to the circuit court's order on September 15, 2016, she could not have obtained a supersedeas bond because there was no final order, and bond may be given "at or after the time of filing the notice of appeal." Ark. R. Civ. P. 62 (2016). We hold that Tipton's purchase was involuntary in the same way that payment was involuntary in Ward , supra , in which our supreme court stated, "Nevertheless, we do not believe that the absence of a supersedeas bond and the granting of the land to Williams as part and parcel to execution on a judgment nullifies an appeal from that underlying judgment." Here, Tipton would have lost her option to purchase the stock had she refused to do so by September 15, 2016. Accordingly, her purchase of the stock does not nullify her appeal of the circuit court's declaratory judgment. C. Mootness of Black Inc.'s Appeal Dunklin claims that Black Inc.'s appeal is also moot because its only role was a contingent right to elect to buy the shares if Tipton did not. Because Tipton bought the shares, Dunklin argues that Black Inc. has no viable appealable issues. Sherman Waterproofing , supra (a case becomes moot when any judgment rendered would have no practical legal effect on an existing legal controversy). Dunklin also points to Black Inc.'s counsel's statement that the transaction between Tipton and Dunklin did not "involve my clients," and "I'm moot if this goes through," referring to Tipton's purchase of the stock. Black Inc. argues that its appeal is not moot because this case involves the lower court's acceptance of an appraisal, the result of which is a detrimental effect on the rights of all remaining shareholders for years to come. We agree. A ruling on the merits will have the practical legal effect of determining what actions may or may not be taken by the shareholders with respect to the appraisal. Campbell v. State , 300 Ark. 570, 781 S.W.2d 14 (1989) (stating that when the case involves the public interest, or tends to become moot before litigation can run its course, or a decision might avert future litigation, the supreme court has, with some regularity, refused to permit mootness to become the determinant). D. Advisory Opinion and Lack-of-Standing Argument Dunklin claims that Black Inc. is seeking an advisory opinion in its appeal because it has no standing. He argues that Black Inc. was not a party to the sale, and it did not purchase the shares. Because Tipton exercised her right, Dunklin contends that Black Inc. is asking this court for an advisory opinion about academic questions. Sanders v. Neuse , 320 Ark. 547, 898 S.W.2d 43 (1995) ; Dougan v. Gray , 318 Ark. 6, 884 S.W.2d 239 (1994). For the same reasons, Dunklin contends that Black Inc. has no standing. Walker v. Ark. State Bd. of Educ. , 2010 Ark. 277, 365 S.W.3d 899 (standing is a matter of law for appellate courts to decide and review de novo). We disagree and hold that Black Inc. has standing as a party to the lawsuit. In Forrest Constr., Inc. v. Milam , 345 Ark. 1, 43 S.W.3d 140 (2001), the Arkansas Supreme Court held that a party has standing to appeal if the circuit court's order has impaired its economic interests. Black Inc. remains an interested party under the SRA because its economic interest has been impaired by the lower court's decision and all subsequent sales of its shares will be directly affected by the value determined under the appraisal. E. Waiver and Estoppel Dunklin contends that the issues raised by Tipton are precluded by the doctrines of waiver and estoppel. He points to her arguments raised at the hearings-that she would pay the sum for his stock as soon as the appraisal amount was received. Her counsel stated that once the appraiser was jointly agreed on, the circuit court had no "question of fact whatsoever then." Tipton's counsel also stated that the parties did not have the right to "dictate how an appraisal should be made. We think the appraiser is in charge of that and however he elects to do it, both parties are bound by it." Thus, Dunklin contends that Tipton has waived her rights to object to the appraisal and was estopped to belatedly attempt to conduct discovery. See Shepherd v. State Auto Prop. & Cas. Ins. Co. , 312 Ark. 502, 850 S.W.2d 324 (1993) ; Anderson v. Anderson , 223 Ark. 571, 267 S.W.2d 316 (1954) ; Taylor v. Hamilton , 90 Ark. App. 235, 205 S.W.3d 149 (2005). However, Tipton filed a motion seeking leave to conduct discovery, obtained an order of the circuit court denying that motion, and filed a notice of appeal from that order. Nothing more was required. See Bayer CropScience LP v. Schafer , 2011 Ark. 518, at 14 n.5, 385 S.W.3d 822, 831 n.5. Further, estoppel rests upon deliberate action by the party estopped that induces reliance by the other party. Anderson, supra. The March 7, 2016 order reserves "other undecided issues raised in the pleadings of the parties," and Tipton's counterclaim included a request to ascertain "the appropriate procedure to be followed in appraising [FMV]." Therefore, Tipton did not waive her right to object to the appraisal and was not estopped from requesting discovery. IV. Denial of Discovery Motion The circuit court has wide discretion in matters pertaining to discovery, and its decision will not be reversed absent an abuse of discretion that is prejudicial to the appealing party. Banks v. Jackson , 312 Ark. 232, 848 S.W.2d 408 (1993). An abuse of discretion may be found when there was an undue limitation of the appellant's substantial rights under the prevailing circumstances. Dodson v. Allstate Ins. Co. , 345 Ark. 430, 47 S.W.3d 866 (2001). Tipton argues that the circuit court erred by denying her permission to conduct discovery to confirm the validity of the assumptions made in the appraisal, i.e., that it was an arms-length offer and that the third-party purchasers had the financial ability to pay the offered amount. Tipton states that these assumptions made by the appraiser were not based on information obtained from the prospective purchasers. Instead, she claims that the assumptions were based on conversations with Dunklin, Tipton, their attorneys, and the president of Black Inc. She argues that the appraiser had no means to compel the prospective purchasers to prove information that would confirm their relationship to Dunklin and their financial wherewithal. Tipton contends that the circuit court apparently accepted Dunklin's argument that she had waited too long to raise the issue. However, she argues that she did not know prior to the final appraisal report that the appraisal would assume the validity of the $20,000,000 offer without deeper investigation. The final appraisal report does not reflect that the appraiser spoke with Bogard or Winemiller. Tipton contends that she did not know that the final appraisal would ultimately rest on "completely unfounded assumptions about the prospective purchasers" until she received it. Once she knew, she sought leave to conduct discovery. She argues that permitting discovery would not have posed any harm to Dunklin. She had already placed sufficient funds into restricted accounts to secure the purchase of shares, and Black Inc. was poised to exercise its option should Tipton not execute the purchase. Therefore, she contends that the small amount of time needed for discovery would have been brief, and Dunklin faced no harm. On the other hand, she contends that she faced considerable harm from the unfounded assumptions playing such a central role in the appraisal. The inclusion of the offer increased the FMV by $4,300,000. Thus, she claims that the circuit court abused its discretion when it denied her motion to conduct discovery because she was prejudiced by not having the chance to determine whether the appraisal's assumptions were accurate. However, we agree with Dunklin's contention that the circuit court properly denied Tipton's motion for discovery. The circuit court considered that Tipton had received a draft of the appraisal via email on February 23, 2016, and that draft included the exact weighting of the third-party offer as was included in the final report dated July 22, 2016. The March 7, 2016 order contains the stipulation that Dunklin and Tipton had agreed on an appraiser and that the SRA provided that the FMV would be determined by an appraiser selected jointly. That is what occurred, and Tipton stipulated to it in the March 7, 2016 order. The circuit court analyzed the issues and concluded that there was no issue of fact, the appraisal issue was determined by the SRA and the stipulation between Tipton and Dunklin, and there was no valid reason or basis for discovery at the late August date. The circuit court was correct in stating that granting the discovery would require the court eventually to determine the value of the stock and that the SRA was signed to avoid that circumstance. Thus, we hold that there was no abuse of discretion in denying Tipton's discovery motion. V. SRA The first rule of interpretation of a contract is to give the language employed the meaning that the parties intended. Singletary v. Singletary , 2013 Ark. 506, 431 S.W.3d 234. In construing any contract, we must consider the sense and meaning of the words used by the parties as they are taken and understood in their plain and ordinary meaning. Id. The best construction is that which is made by viewing the subject of the contract, as the mass of mankind would view it, as it may be safely assumed that such was the aspect in which the parties themselves viewed it. Id. It is also a well-settled rule in construing a contract that the intention of the parties is to be gathered, not from particular words and phrases, but from the whole context of the agreement. Id. Black Inc. argues that the circuit court erred in its interpretation of the SRA and its acceptance of the appraised value. Black Inc. refers to the SRA's provision regarding the definition of FMV, which states in relevant part: 1.1 Definitions: (b) Except as set forth in Article 5.2, "Fair Market Value" shall be determined, as of the Valuation Date, by mutual agreement of the selling Shareholder and the purchaser(s). If the selling Shareholder and the purchaser(s) are unable to unanimously agree upon [FMV], [FMV] shall be determined by an appraiser selected jointly by the selling Shareholder and the purchaser(s). Black Inc. contends that there are no provisions in the SRA regarding what should happen if the parties disagree on the appraisal reached by the appraiser jointly agreed to by the selling shareholder and purchaser. It contends that the SRA did not intend for an outside offer to be given weight in determination of FMV. No one argued at trial that the SRA was ambiguous regarding a determination of FMV. When a contract is free of ambiguity, its construction and legal effect are questions of law for the court. Crittenden Cty. v. Davis , 2013 Ark. App. 655, 430 S.W.3d 172. Black Inc. claims that the SRA was silent regarding a conflict based on the appraisal for FMV. The parol-evidence rule is a rule of substantive law in which all antecedent proposals and negotiations are merged into the written contract and cannot be added to or varied by parol evidence. Simpson v. Braden , 2011 Ark. App. 250, 2011 WL 1166848. Such evidence is inadmissible if it tends to alter, vary, or contradict the written contract but is admissible if it tends to prove a part of the contract about which the written contract is silent. Id. We will not reverse a circuit court's ruling allowing or disallowing evidence on the basis of the parol-evidence rule absent an abuse of discretion. Armstrong Remodeling & Constr., LLC v. Cardenas , 2012 Ark. App. 387, 417 S.W.3d 748. Black Inc. contends that additional evidence regarding the methodology employed by SRR would have been admissible and essential to determine the validity of SRR's assumptions. The circuit court interpreted the SRA to mean that the choice of appraisal method employed by the selling shareholder and the purchasing party was binding as to the appraised value. Black Inc. claims that the circuit court's interpretation was error and that the circuit court should have allowed discovery and evidence as to the underlying factors that contributed to the determination of the FMV. Dunklin argues that the circuit court correctly analyzed the SRA and accepted the stipulated appraised value because it was controlled by the SRA, the parties chose how they wished to proceed, they agreed on the appraiser and the process, and the SRA states the FMV will be determined by the agreed upon appraiser. The circuit court noted that by signing the SRA, the parties avoided the circuit court determining the value of the stock. We hold that even though the SRA did not provide for the parties' disagreement over the FMV, it was not an abuse of discretion to disallow parol evidence considering that the context of the SRA was to avoid a court's determination of FMV. VI. Appraisal Tipton argues that based on the appraisal's own terms, the circuit court erred by adopting the appraisal's conclusions as to FMV without confirming that the offer came from legitimate arms-length purchasers with the financial ability to execute and close on the offer. She contends that the appraisal's consideration of the offer as part of the valuation process was premised on the offer being "arms-length" by an "unrelated third party" with "financial ability to execute and close on the offer." She urges that, without confirmation of the arms-length transaction with purchasers who had the financial ability to conclude the purchase, the appraisal fails because the appraiser did not know if either consideration was true. Tipton argues that under these circumstances, the appraisal's consideration of the offer is a fiction, and the circuit court clearly erred by adopting and enforcing the appraisal. Black Inc.'s arguments mirror those set forth by Tipton, adding that the offer was contingent on due diligence and had expired at the time of the appraisal. Therefore, Black Inc. claims that SRR's consideration of the offer in its appraisal was an error because the offered price was purely speculative and would likely not have remained the same after due diligence. Olson v. United States , 292 U.S. 246, 54 S.Ct. 704, 78 L.Ed. 1236 (1934). These arguments do not take into consideration the controlling aspect of the SRA. In section IV, we held that the circuit court did not abuse its discretion in denying Tipton's request for discovery related to SRR's appraisal, which was based on the assumptions about which Tipton and Black Inc. complain. The circuit court reasoned as follows: [B]y agreeing to SRR, the parties rely on SRR to give full and studied consideration to all factors touching on the issue of the evaluation of the stock and the Court must assume that in fact what SRR did. The issue, I think, in this case comes down to and is controlled by the [SRA]. The parties chose how they wish to proceed. That is, by agreeing that the appraisal should done by SRR to decide the value. There is no provision in the agreement regarding what should happen if the parties didn't agree on the appraisal reached by the appraiser jointly agreed to. I think that the parties are bound under the circumstances and given the totality of how this case has proceeded by the conclusion reached by SRR and its appraisal. I can foresee that if discovery was permitted at this point to go behind or beyond the SRR appraisal that would be giving or just about guarantee further hearings on the details or the methodology of SRR and the factors considered by SRR and will eventually require the Court to more or less determine the value of the stock. Which is exactly the primary purpose that a stock repurchase is signed in the first place. That is to rightfully seek to avoid court intrusion into the evaluation process. And as I said, while I can appreciate the positions of all parties and I make this decision and I particularly understand the effect this appraisal will have on the estate tax values down the line, but the effect of this decision on the estate tax considerations is, in this Court's judgment, not relevant to the Court's decision in this particular case. The circuit court interpreted the SRA to mean that the choice of appraisal method employed by the selling shareholder and the purchasing party were binding as to the appraised value. We hold that in so doing, the circuit court's acceptance of the appraisal was not clearly erroneous. Affirmed. Vaught and Murphy, JJ., agree. The shareholders of Black Inc. at the time of the filing of Dunklin's complaint were the Hattie Boone Black Testamentary GST Exempt Trust, Deborah Dunklin Tipton, Lester Asher McKinley, Georgea Boone McKinley Greaves, Mary McKinley Jennings, Warren Jennings, Jr., Jean Johnston, and George H. Dunklin, Jr. The SRA defines "Dunklin Shareholders" to mean Dunklin, Tipton, any of their lineal descendants, and the trustee of any trust for the sole benefit of the foregoing persons and/or their spouses. The SRA provides that Dunklin's lineal descendants had sixty days to exercise their option to buy. Further, the SRA states: (ii) Next, for a period of thirty (30) days following the expiration of the sixty (60) day period set forth ... above, the other Dunklin Shareholders shall have the option to purchase any Shares not purchased pursuant to [those shares offered first to Dunklin's lineal descendants]. If the parties could not agree on an appraiser, then each would select an appraiser, and the selected appraisers would select a third appraiser to conduct the FMV determination. The average of $11,238,480 (FMV) and the offer of $20,000,000 was found to be $15,619,240. Therefore, the difference between $11,238,480 and $15,619,240 is $4,380,760.

MIKE MURPHY, Judge Eric Collier appeals the Arkansas Workers' Compensation Commission's (Commission) determination that he did not suffer a compensable injury. On appeal, he argues that substantial evidence supports a finding of a compensable injury. We affirm. On April 22, 2016, Eric Collier was forty-nine years old when, while working for the appellee, Walmart, he allegedly slipped and fell on a sheet of ice on a freezer floor, hurting his lower back. Collier did not report the fall and went about his work. He testified he was not in discomfort at the time. About a week later, Collier testified that his neck and lower back started to bother him. About a month after the fall, Collier sought treatment from a chiropractor. The chiropractor's notes provide that Collier said he began experiencing pain three days before the appointment. Those notes further provide that Collier said he did not know why his back and neck were hurting. He did not mention slipping and falling at work. Five weeks after the fall, Collier reported it to a supervisor. He filled out the incident report on June 1, 2016. Two days later, the company sent Collier to be evaluated by John Nicholas, a physician assistant at the Arkansas Occupational Health Clinic. Collier told Nicholas that his pain began a week after his fall. Nicholas took x-rays and gave Collier some work restrictions. Nicholas also recommended six physical-therapy sessions. Collier did not attend physical therapy because his workers'-compensation claim had been denied. On June 17, 2016, Collier's supervisor advised him that because the workers'-compensation claim had been denied, Collier would have to provide Walmart a full medical release to return to work. Collier was not provided light-duty work after the claim was denied. Collier did not return to work for Walmart thereafter, though he did continue to work another job setting up and running photo booths. Collier had an MRI on June 29, 2016. The MRI revealed mild degenerative-disc disease of the lumbar spine with multilevel-facet degeneration. The MRI further showed "mild right neural foraminal narrowing at L4-5 but no objective findings of trauma." The parties presented their case on December 8, 2016. The administrative law judge (ALJ) found that Collier proved he sustained compensable injuries to his neck and back and awarded him medical treatment and temporary total-disability benefits. Walmart then appealed to the Commission. The Commission reversed the ALJ's finding that Collier proved he sustained compensable injuries to his neck and back. It noted that Collier did not report his injury for several weeks and did not tell his doctors about the source of the pain. The Commission specifically found that Collier was not a credible witness, and that he did not prove his injury. Collier appeals. When the Commission denies benefits because a claimant has failed to meet his burden of proof, the substantial-evidence standard of review requires that we affirm if the Commission's decision displays a substantial basis for the denial of relief. White v. Butterball, LLC , 2018 Ark. App. 7, at 4-5, --- S.W.3d ----, ----, 2018 WL 343625. On appeal, we view the evidence in the light most favorable to the Commission's decision and affirm the decision if it is supported by substantial evidence, which is evidence that a reasonable mind might accept as adequate to support a conclusion. Id. The issue on review is not whether the evidence would have supported a contrary finding or whether we might have reached a different result; we affirm if reasonable minds could reach the Commission's conclusion. Id. We defer to the Commission on issues involving credibility and the weight of the evidence. Frost v. City of Rogers , 2016 Ark. App. 273, at 4, 492 S.W.3d 875, 878. To prove a compensable injury, the claimant must establish by a preponderance of the evidence (1) an injury arising out of and in the course of employment; (2) that the injury caused internal or external harm to the body that required medical services or resulted in disability or death; (3) medical evidence supported by objective findings, as defined in Arkansas Code Annotated section 11-9-102(16) (Repl. 2012), establishing the injury; and (4) that the injury was caused by a specific incident identifiable by time and place of occurrence. Ark. Code Ann. § 11-9-102(4)(A)(i). Collier, citing Patterson v. Frito Lay, Inc. , 66 Ark. App. 159, 169, 992 S.W.2d 130, 136 (1999), argues that the Commission arbitrarily labeled him as not a credible witness without stating the reason for its credibility determination in light of the ALJ finding him credible. Here, however, the Commission stated it found Collier not credible because of the lack of corroborating evidence to support his injury and his conflicting statements to medical providers. Collier also argues that he should not be penalized for not reporting the accident immediately because Arkansas Code Annotated section 11-9-701(b) provides that failure to give notice will not bar a claim if the Commission finds the reasons for lack of notice satisfactory. This is a correct recitation of the law; however, it is inapplicable. The Commission found that Collier was barred from receiving benefits, not because he failed to give notice, but because the alleged trauma was not supported by any medical evidence or credible testimony. There is substantial evidence to support the Commission's denial of Collier's claim. It specifically found Collier not to be a credible witness, and there were no witnesses to corroborate his claim. Collier did not report the incident until over a month later and gave competing reasons for his neck pain to his medical providers. The MRI only noted degenerative changes. We affirm. Affirmed. Virden and Klappenbach, JJ., agree.

Special Justice Lee Watson joins in this opinion. Hart, J., dissents. Kemp, C.J., not participating. Josephine Linker Hart, Justice, dissenting. I dissent. The majority has affirmed this case ostensibly because "the record in this case does not include a copy of the judgment originally entered in Force's criminal case in which she was originally sentenced to pay the fine or fines at issue." Summary affirmance for this reason was abolished nearly two decades ago when Arkansas Supreme Court Rule 4-2 was amended to allow an appellant to fix a deficiency. If the majority believes that it is unable to reach the merits due to missing documents, the proper disposition of this case is to decline to consider the case on the merits and order the appellant to cure the deficiency. See, e.g. , Bryan v. City of Cotter , 2009 Ark. 172, 303 S.W.3d 64 ; Ark. Sup. Ct. R. 4-2(b). (b) Insufficiency of Appellant's Abstract or Addendum. Motions to dismiss the appeal for insufficiency of the appellant's abstract or addendum will not be recognized. Deficiencies in the appellant's abstract or addendum will ordinarily come to the court's attention and be handled in one of three ways as follows: (1) If the appellee considers the appellant's abstract or addendum to be defective, the appellee's brief should call the deficiencies to the court's attention and may, at the appellee's option, contain a supplemental abstract or addendum. When the case is considered on its merits, the court may upon motion impose or withhold costs, including attorney's fees, to compensate either party for the other party's noncompliance with this rule. In seeking an award of costs under this paragraph, counsel must submit a statement showing the cost of the supplemental abstract or addendum and a certificate of counsel showing the amount of time that was devoted to the preparation of the supplemental abstract or addendum. (2) If the case has not yet been submitted to the court for decision, an appellant may file a motion to supplement the abstract or addendum and file a substituted brief. Subject to the court's discretion, the court will routinely grant such a motion and give the appellant fifteen days within which to file the substituted abstract, addendum, and brief. If the appellee has already filed its brief, upon the filing of appellant's substituted abstract, addendum, and brief, the appellee will be afforded an opportunity to revise or supplement its brief, at the expense of the appellant or the appellant's counsel, as the court may, upon motion, direct. (3) Whether or not the appellee has called attention to deficiencies in the appellant's abstract or addendum, the court may address the question at any time. If the court finds the abstract or addendum to be deficient such that the court cannot reach the merits of the case, or such as to cause an unreasonable or unjust delay in the disposition of the appeal, the court will notify the appellant that he or she will be afforded an opportunity to cure any deficiencies, and has fifteen days within which to file a substituted abstract, addendum, and brief, at his or her own expense, to conform to Rule 4-2(a)(5) and (8). Mere modifications of the original brief by the appellant, as by interlineation, will not be accepted by the Clerk. Upon the filing of such a substituted brief by the appellant, the appellee will be afforded an opportunity to revise or supplement the brief, at the expense of the appellant or the appellant's counsel, as the court may direct. If after the opportunity to cure the deficiencies, the appellant fails to file a complying abstract, addendum and brief within the prescribed time, the judgment or decree may be affirmed for noncompliance with the rule. (4) If the appellate court determines that deficiencies or omissions in the abstract or addendum need to be corrected, but complete rebriefing is not needed, then the court will order the appellant to file a supplemental abstract or addendum within seven calendar days to provide the additional materials from the record to the members of the appellate court. (c) Noncompliance. (1) Briefs not in compliance with the format required in Rules 4-1 and 4-2 shall not be accepted for filing by the Clerk. When a party submits a noncompliant brief on time that substantially complies with the rules governing briefs, the Clerk shall mark the brief "tendered," grant the party a seven-day compliance extension, and return the brief to the party for correction. If the party resubmits a compliant brief within seven (7) calendar days, then the Clerk shall accept that brief for filing on the date it is received.

Reversed.

RHONDA K. WOOD, Associate Justice Appellants Apprentice Information Systems, Inc., and David Randall Lamp (collectively, "AIS") appeal an interlocutory order granting a permanent injunction in favor of appellee, DataScout, LLC ("DataScout"). The circuit court concluded that AIS was liable to DataScout for violations of the Freedom of Information Act ("FOIA") and the Arkansas Deceptive Trade Practices Act ("ADTPA") and for tortious interference with a business expectancy and ordered a permanent injunction against AIS. DataScout filed a motion to dismiss this appeal. We deny the motion to dismiss and hold that granting the permanent injunction was an abuse of discretion and reverse. I. Facts AIS is an Arkansas corporation that provides electronic data storage and management. Roughly sixty-six county collectors and forty county assessors contract with AIS for data storage and software products for their day-to-day operations. In addition, AIS maintains a fee-based website that sells data, including real-estate and personal-property records and geographic-information system data. DataScout is AIS's competitor. DataScout provides similar data services to county officials. DataScout also gathers public data from counties and charges users a fee for access to public records and information on its website. DataScout had been obtaining the AIS-managed data it needed either individually or in small quantities directly from the counties or from AIS's website. In 2011, DataScout approached AIS about entering into a business arrangement in which AIS would provide bulk data-essentially all the counties' public data-directly to DataScout. The business relationship failed to evolve, however, and in 2013, DataScout issued a written FOIA request to AIS for several of the counties' bulk data that AIS possessed by virtue of its contracts with the counties. AIS responded in writing, explaining that AIS was not the "custodian" of any "public records". DataScout sued AIS alleging that it was taking public data and including it on its fee-based website without the county officials' knowledge. In addition, DataScout contended that county officials could not process a bulk-data FOIA request without AIS's assistance unless they had purchased AIS's bulk-data-extract function. Therefore, it argued, AIS was the de facto custodian of the public records, and AIS had systematically denied others access to bulk data by engaging in delay tactics, deception, and charging exorbitant fees for the data. In sum, DataScout alleged that AIS had manipulated the counties to gain exclusive access and control of the counties' data, used its control of the data for its own benefit, and prevented DataScout from obtaining bulk data in a timely fashion and for a reasonable cost. Following the liability trial, the circuit court concluded that AIS had violated FOIA, Ark. Code Ann. § 25-19-101 et seq., and the ADTPA, Ark. Code Ann. § 4-88-101 et seq., and had tortiously interfered with DataScout's business expectancy. The court held AIS was the custodian of the counties' electronic records unless the county possessed the bulk-data-extraction function. Further, the court determined that AIS had violated FOIA "by obstructing access and refusing to provide public data subject to its control," and by providing "software which impedes 'public access to records in electronic form' in violation of A.C.A. § 25-10-105(g)." After determining liability on the above three grounds, the circuit court entered a permanent injunction that required AIS to "pay the same price for public data that other requestors pay, to provide all requestors with the same frequency of access to public data that [AIS] currently enjoy[s] and to prohibit AIS from charging a fee for the public data, unless [AIS] also pay[s] that same fee." AIS filed an interlocutory appeal to this court challenging the permanent injunction while awaiting the trial on damages. II. Jurisdiction and Standard of Review As this matter involves a permanent injunction, we have jurisdiction to review it at the interlocutory stage pursuant to Arkansas Rule of Appellate Procedure-Civil 2(a)(6). The circuit court granted a permanent injunction against AIS after the liability phase of the trial but before the trial on damages. After hearing the merits, a court may grant a permanent injunction. City of Dover v. City of Russellville , 363 Ark. 458, 215 S.W.3d 623 (2005). This court reviews matters that sound in equity, including permanent injunctions, de novo. United Food & Commercial Workers Int'l Union v. Wal-Mart Stores, Inc. , 353 Ark. 902, 120 S.W.3d 89 (2003). We will reverse a decision on injunctive relief if the court abused its discretion. Id. However, we review the factual findings which result in the issuance of the injunction under the clearly erroneous standard. S. College of Naturopathy v. State of Arkansas ex rel. Beebe , 360 Ark. 543, 203 S.W.3d 111 (2005). III. Merits The only issue before us at this interlocutory stage is the permanent injunction; however, we must first consider the underlying merits that resulted in the court determining liability to ascertain whether the court abused its discretion in entering the permanent injunction. If a party is subject to liability, then an injunction may be an appropriate remedy when the harm is of the nature that "it cannot be compensated by monetary damages." United Food & Commercial Workers Int'l Union , 353 Ark. at 907, 120 S.W.3d at 92. Thus, permanent injunctive relief is predicated on liability existing. Actual success on the merits distinguishes a permanent injunction from a preliminary injunction, which concerns itself with the likelihood of success on the merits. A. Arkansas Freedom of Information Act AIS argues the circuit court erroneously found it was a covered entity, ruled it violated FOIA, and granted the permanent injunction. We agree. For a record to be subject to FOIA it must be (1) possessed by an entity covered by the Act; (2) fall within the Act's definition of a public record; and (3) not be exempted by the Act or other statutes. Nabholz Constr. Corp. v. Contractors for Pub. Prot. Ass'n , 371 Ark. 411, 266 S.W.3d 689 (2007). The county officials are covered entities because they are the custodians of the public records. The General Assembly has tasked county officials with the custodial responsibility of their public records. Ark. Code Ann. § 14-14-111 (Repl. 2013). It was clear. Ark. Code Ann. § 14-14-111(a)(2) states "[public] records are routinely kept in electronic format by the county officials who are the custodians of the records. " Id. (emphasis added). The General Assembly specifically stated its intent was to "ensure that all public records kept by county officials are under the complete care, custody, and control of the county officials responsible for the records." Ark. Code Ann. 14-14-111(a)(3)(A). FOIA provides that " '[c]ustodian' does not mean a person who holds public records solely for the purposes of storage, safekeeping, or data processing for others." Ark. Code Ann. § 25-19-103(1)(B) (Supp. 2017). Occasionally, a private entity or individual may keep a public record for a public official; however, the public official retains the obligation to produce the public record. See City of Fayetteville v. Edmark , 304 Ark. 179, 801 S.W.2d 275 (1990) (requiring the city to produce memoranda prepared by the city's private attorney); Swaney v. Tilford , 320 Ark. 652, 898 S.W.2d 462 (1995) (holding the Arkansas Development Finance Authority must produce its outside auditor's working papers); Fox v. Perroni , 358 Ark. 251, 188 S.W.3d 881 (2004) (finding the circuit judge was custodian of personal check written by his law clerk). The General Assembly clearly intended for the responsibility of initially determining whether a record sought was a public record to rest with the public official, not a private entity. Nabholz, 371 Ark. at 418, 266 S.W.3d at 694. The circuit court's conclusion that the county officials were unnecessary parties to a dispute over access to those officials' public records was clearly erroneous. The effect would be to usurp them from their obligations in the FOIA process. This is why in Nabholz we held a private entity alone is not a proper defendant in a FOIA action. Id. In Nabholz , the Contractors for the Public Protection Association ("CFPPA") sent a FOIA request to Nabholz as general contractor of a state project. Id. After Nabholz refused to comply, CFPPA sued under FOIA. Id. We refused to extend the scope of FOIA to Nabholz, a private entity doing business with the state. Id. We stated, "Nabholz is an Arkansas corporation and is not an entity of the state. It alone cannot be sued under the Act and directed to turn over documents under the Act." 371 Ark. at 418, 266 S.W.3d at 693. We reversed and dismissed that case. 371 Ark. at 419, 266 S.W.3d at 694. Here, DataScout sued only AIS, a private corporation. As we held in Nabholz , DataScout cannot sue AIS alone under FOIA and direct AIS to produce public records because it is a private corporation and is not the custodian of the public records. Therefore, because AIS had no liability under the FOIA claim brought, DataScout was not entitled to permanent injunctive relief under this claim. B. Tortious Interference with Business Expectancy The circuit court also found in favor of DataScout on its claim that AIS tortiously interfered with its business expectancy. To establish a claim of tortious interference with business expectancy, DataScout had to prove: (1) it had a business expectancy with a third party; (2) AIS knew of the expectancy; (3) AIS intentionally interfered and caused a breach or termination of the expectancy; and (4) it resulted in damages. Stewart Title Guar. Co. v. American Abstract & Title Co. , 363 Ark. 530, 215 S.W.3d 596 (2005). Because DataScout failed to prove the first element-the existence of a business expectancy with a third party-AIS is not liable to DataScout. Therefore, DataScout was not entitled to injunctive relief under this claim. The existence of a business expectancy must be proven with precision. Stewart Title Guar. Co. , 363 Ark. at 543, 215 S.W.3d at 603 ; Country Corner Food & Drug, Inc. v. First State Bank & Trust Co. , 332 Ark. 645, 966 S.W.2d 894 (1998). Here, the circuit court identified no third party with whom DataScout had a business expectancy. The court solely referenced a generalized business goal of "one-stop shop of public data available for paid subscribers." DataScout did not prove that it had a business expectancy with any particular person or entity. The record did not identify a specific agreement that was interfered with or that did not come to fruition because of AIS's conduct. At most, DataScout's chief operating officer, Cory Scott, testified that DataScout had difficulty obtaining the bulk data when it was in the process of creating a proposal for the Arkansas Commissioner of State Lands. However, the creation of a proposal hardly amounts to a business expectancy. DataScout simply did not introduce sufficient evidence necessary to prove the existence of precise business expectancy with a specific third party. As AIS was not liable for tortious interference with DataScout's business expectancy, DataScout would not be entitled to a permanent injunction on this claim. C. Arkansas Deceptive Trade Practices Act Finally, the circuit court concluded that AIS violated the ADTPA "by engaging in unconscionable, false or deceptive acts, in conducting its business with county collectors and assessors across the State of Arkansas." As this matter is before us on an interlocutory appeal of the permanent injunction, we do not consider the merits of this claim because, as AIS argues, the ADTPA does not "provide for a private cause of action seeking injunctive relief." Baptist Health v. Murphy , 2010 Ark. 358, at 28, 373 S.W.3d 269, 288. We therefore hold that DataScout was also not entitled to injunctive relief pursuant to the ADTPA. IV. Conclusion In sum, because (1) DataScout only brought an action against a private entity under FOIA and failed to sue an entity covered by FOIA; (2) DataScout failed to prove with particularity any business expectancy with whom AIS interfered; (3) DataScout's ADTPA claim does not provide for injunctive relief, the circuit court's issuance of the permanent injunction was an abuse of discretion and we reverse. Motion to dismiss denied; reversed. This is also why we deny DataScout's motion to dismiss.

RAYMOND R. ABRAMSON, Judge Appellant Frankie Dwayne Vonholt was convicted by a jury of the following charges: (1) conspiracy to commit delivery of methamphetamine; (2) possession of hydromorphone with the purpose of delivery; (3) possession of oxycodone with the purpose of delivery; and (4) trafficking of methamphetamine. He was charged as a habitual offender and was sentenced to the Department of Correction for 15 years on the conspiracy charge, 30 years on each delivery charge, and 80 years on the trafficking charge. The terms of imprisonment are to run consecutively. He appeals his convictions, arguing that the circuit court erred by denying his motion for directed verdict because the State did not present sufficient evidence to establish that he (1) possessed methamphetamine, hydromorphone, or oxycodone, and (2) conspired to deliver methamphetamine. I. Factual History At trial, the State presented the following evidence. Detective Napier of the Fort Smith Police Department arranged a controlled buy of methamphetamine. In a controlled buy, an officer gives a confidential informant (C.I.) money to purchase drugs from a suspect. Detective Napier was investigating Curtis Jones for drug distribution and arranged for a C.I. to perform a controlled buy with Jones. Detective Napier met with the C.I. on the morning of December 22, 2015, and had her purchase methamphetamine from Jones. The C.I. went to Jones's residence and purchased $200 worth of methamphetamine from Jones. While at his residence, Jones insisted that the C.I. leave because "his source" would be arriving soon. Detective Napier testified that a source is a drug dealer who brings large amounts of drugs to a smaller dealer, who then sells the drugs. Shortly after the C.I. had left Jones's residence, Frankie Vonholt arrived in a pickup truck. Detective Napier then obtained a search warrant and executed it on Vonholt's truck. Jones suggested that Detective Napier check some boots owned by Vonholt, which were in the back of the truck. Detective Napier found an Armor All container hidden in one boot that contained 248.5 grams of methamphetamine, a digital scale, Ziploc bags, and a pill bottle. The pill bottle contained .1964 grams of hydromorphone and .0996 grams of oxycodone. The pill bottle had Jones's name on it, and the State presented testimony that dealers such as Jones often give their source something of value-such as prescription drugs-when the dealer does not have enough money to give the source. During the time Detective Napier was obtaining the search warrant, Vonholt and Jones both entered and left the residence several times. When the officers approached the residence to execute the search warrant, Vonholt and Jones were standing outside near the truck. Vonholt was standing on the driver's side of the truck with his arms hanging in the bed near the boots. In Vonholt's pockets, the officers found the $200 of prerecorded buy money that the C.I. had given to Jones. After the State rested, Vonholt moved for directed verdict, and his motion was denied. A motion for directed verdict is a challenge to the sufficiency of the evidence. Matlock v. State , 2015 Ark. App. 65, 454 S.W.3d 776. In a challenge to the sufficiency of evidence presented at trial, this court considers only the evidence supporting the conviction in the light most favorable to the State and determines whether the verdict is supported by substantial evidence. Sweet v. State , 2011 Ark. 20, 370 S.W.3d 510. Substantial evidence is evidence that is forceful enough to compel a conclusion beyond suspicion or conjecture. Id. Circumstantial evidence can sustain a conviction when the jury decides that the evidence excludes every other reasonable hypothesis consistent with innocence. Coger v. State , 2017 Ark. App. 466, at 6, 529 S.W.3d 640, 646. II. Possession of Contraband A person possesses a controlled substance if he or she "exercise actual dominion, control, or management over a tangible object." Ark. Code Ann. § 5-1-102(15) (Repl. 2013). The State is not required to prove actual, physical possession of contraband. Mings v. State , 318 Ark. 201, 884 S.W.2d 596 (1994). Possession may be constructive if the State establishes beyond a reasonable doubt that the defendant exercised care, control, and management over contraband. Clark v. State , 2015 Ark. App. 679, 477 S.W.3d 544. Factors to consider in determining constructive possession include (1) whether contraband is in plain view, (2) whether contraband is found in the defendant's personal belongings, (3) whether contraband is found on the same side of the car seat as the defendant is sitting, (4) whether the defendant owns the car or exercises dominion and control over it, and (5) whether the defendant acted suspiciously before the arrest. McCastle v. State , 2012 Ark. App. 162, 392 S.W.3d 369. Vonholt argues that the State did not present sufficient evidence to support the jury's finding that he possessed methamphetamine, hydromorphone, or oxycodone. However, the State presented evidence that the substances were all found in a boot owned by Vonholt in the bed of Vonholt's pickup truck, which he had driven to Jones's residence. There is substantial evidence to support a finding that Vonholt possessed the substances because they were hidden in his boot in the back of his truck. There is no evidence that anyone else was in the truck or exercised any form of control over the truck. Vonholt exercised dominion and control over the truck by arriving in it; therefore, he exercised dominion and control over the substances found in his boot. The evidence showed that only Vonholt had control and dominion over the truck, and the jury could conclude beyond suspicion or conjecture that Vonholt possessed the drugs. While Vonholt argues that Jones was equally likely to have possessed the substances, the jury could have reasonably found that Jones's mere presence near the truck and knowledge that the drugs were in Vonholt's boot did not constitute another reasonable hypothesis. We hold that substantial evidence supports a finding that Vonholt possessed the substances. Vonholt also argues that the fact the hydromorphone and oxycodone were found in a pill bottle bearing Jones's name negates a finding that he possessed these substances. However, the State presented testimony that dealers such as Jones often give sources such as Vonholt prescription drugs to satisfy a debt. The jury was free to believe this testimony and to believe that Vonholt possessed the substances. Furthermore, the pill bottle was found in Vonholt's boot in Vonholt's truck bed. Therefore, the circuit court did not err in denying Vonholt's motion for directed verdict with respect to possession of methamphetamine, hydromorphone, or oxycodone. III. Conspiracy to Deliver Methamphetamine A person commits conspiracy if, with the purpose of promoting or facilitating the commission of any offense, he or she agrees with another person that (1) one or more of them will engage in conduct that constitutes the offense, or (2) the person will aid in the planning or commission of the offense, and the other person commits any overt act in pursuit of the conspiracy. Ark. Code Ann. § 5-3-401. The State may prove conspiracy with circumstantial evidence and inferences drawn from the conspirators' conduct. Henry v. State , 309 Ark. 1, 828 S.W.2d 346 (1992). Vonholt argues that substantial evidence does not support a finding that he engaged in a conspiracy because there was no indication that (1) he took drugs to Jones's home, (2) he intended to provide drugs to Jones, or (3) he intended to enter into any agreement with Jones. He further argues that, while he and Jones exchanged money, there was no indication that the exchange was for drugs. However, the State presented evidence that Jones referred to Vonholt as his "source," meaning that the jury could infer Vonholt brought drugs to Jones before this incident and likely intended to bring him drugs again. The evidence also showed that drugs and a digital scale were found in Vonholt's truck. The jury could infer that this evidence showed Vonholt intended to weigh the methamphetamine before giving it to Jones, and this reflects an agreement to deliver methamphetamine. The money found on Vonholt was the money that had been given to Jones during the controlled buy, so the jury could find beyond mere conjecture that this money had been given to Vonholt to advance their plan to deliver methamphetamine. Substantial evidence supports a finding that an agreement existed between Vonholt and Jones. The jury could infer from Vonholt's possession of a large amount of methamphetamine in his truck, possession of the money the C.I. had previously given to Jones, Jones's reference to Vonholt as his "source," and possession of digital scales with the methamphetamine that Vonholt intended to agree with Jones to deliver methamphetamine. This evidence supports a reasonable finding that Jones and Vonholt were working together to deliver methamphetamine. Therefore, the circuit court did not err in denying Vonholt's motion for directed verdict on the conspiracy charge. Affirmed. Vaught and Hixson, JJ., agree. Vonholt was also charged and convicted of possession of drug paraphernalia. He was sentenced to 30 years' imprisonment for this conviction, but he does not address this conviction in his appeal. Vonholt was not convicted of simple possession on any of these charges. However, possession is an element of each charge, and possession is the only issue that Vonholt challenges on appeal.

LARRY D. VAUGHT, Judge Appellants Northwest Arkansas Community College (NWACC) and the Public Employee Claims Division (collectively "appellants") appeal the opinion of the Arkansas Workers' Compensation Commission (Commission) affirming and adopting the opinion of the administrative law judge (ALJ) that found appellee Heidi Migliori sustained a compensable head injury on July 28, 2016, entitling her to medical benefits, temporary total-disability benefits, and an attorney's fee. On appeal, appellants argue that substantial evidence fails to support the Commission's opinion. We affirm. Migliori is employed as an administrative analyst for the vice president of learning at NWACC. On July 28, 2016, she arrived at work, retrieved a yoga ball from a coworker's office, placed the ball on the ground in front her desk, sat down on the ball, and began to work at her computer. She had never sat on a yoga ball before. When she needed a book behind her, she turned and instinctively pushed off from her desk, which caused her to fall off the ball and hit the left side of her head on the desk. She reported the injury to NWACC, sought medical treatment for a head injury, and later requested workers'-compensation benefits. Appellants controverted the claim, contending that Migliori did not sustain a compensable injury within the meaning of Arkansas Code Annotated § 11-9-102 and that her need for medical treatment was not related to the alleged injury but rather to preexisting medical issues. At the April 6, 2017 hearing before the ALJ, Migliori testified that after she fell off the ball, she rolled to her knees, picked up the phone, and called a coworker, Lindsey White. Migliori stated that White, along with coworker Cheryl Wagner, came to Migliori's office to check on her and that Wagner retrieved a bag of ice for Migliori's head. According to Migliori, Wagner also called Beverly Hill, NWACC human-resources representative, who filled out the first report of injury. Migliori testified that she also emailed her supervisor, Dr. Ricky Tompkins, to report the incident; she signed the employee's report of accident, which stated that her injury occurred when she fell off the yoga ball; and she called her husband. Migliori said that as a result of the accident, she experienced left-side facial numbness, left-ear ringing, neck pain, vertigo (dizziness), and headaches. Migliori testified that soon after she fell, she was seen by a NWACC nurse, who diagnosed her with a contusion and sent her to Mercy Clinic for treatment. Migliori's husband drove her to Mercy Clinic, where she was treated by APN Tu Phan. The July 28, 2016 Mercy Clinic medical report states that Migliori "hit back of head at 07:16 this morning falling off a yoga ball chair, HA, struggling to read forms here, left ear pain/pressure/numbness/tingling, shaky, denies other symptoms." Migliori returned to Mercy Clinic on August 1, 2016, and was seen by Dr. David Sitzes. In his August 1 report, Dr. Sitzes stated that Migliori was experiencing ringing in the left ear and eye twitching. He stated that Migliori reported that the "bump is gone," but she still feels pain, and the left side of her face feels swollen. Dr. Sitzes requested head and face CT scans, which were performed on August 2, 2016. The radiology reports provide that the head and face CT scans were normal. One of the radiology reports reflects that Migliori had been diagnosed with postconcussion headache; pressure, hearing loss, and tinnitus in the left ear; vertigo; contusion of the scalp ; and visual impairment. Migliori returned to Dr. Sitzes on August 3, 2016, with continued complaints of left-ear ringing, left-eye draining, and pain in her head. She requested a referral to her chiropractor, Dr. Kent Moore. Migliori saw Dr. Moore six times from August 4, 2016, to September 6, 2016. Dr. Moore opined in an April 6, 2017 report that Migliori's head injury was work related and was supported by objective findings; the work-related injury was the major cause for the need of his treatment; and she had reached maximum medical improvement. Migliori admitted that she had been a patient of Dr. Moore's for cervical-, thoracic-, and lumbar-spine issues, along with headache and migraine complaints, following a car accident in April 2012 that gave her severe whiplash and headaches. She said that she had been released from Dr. Moore's treatment in April 2013 but continued to see him as needed for headaches. She said that the problems she experienced after falling off the yoga ball were "most certainly different" than the problems she had before. Migliori stated that Dr. Moore referred her to Dr. Shawn Key, an audiologist, for her concussion symptoms: ringing in her ear and vertigo. Dr. Key evaluated Migliori on March 22, 2017. In his report of the same date, he stated that she had been diagnosed with a concussion after she fell off a yoga ball and hit her head with force on a desk. Dr. Key diagnosed her with mild left-unilateral sensory hearing loss. He acknowledged that she suffered from mild hearing loss in her left ear in 2012, yet he also opined that Migliori's change in tinnitus, postconcussion, could be due to swelling around the nerves and that her vertigo "is more likely than not a result of the impact to her head, which resulted in a concussion." According to Migliori's testimony, Dr. Key's treatment improved her condition greatly. Migliori stated that Dr. Sitzes restricted her from work for two weeks. Thereafter, he released her for light-duty work for two weeks. She said that Dr. Sitzes released her to return to work full duty on August 28, 2016. She stated that she was no longer experiencing problems related to the accident and has been working full time since September 1, 2016. Finally, Migliori testified that before the July 28 incident, she was not having any problems and was functioning at full capacity. Lindsey White, executive assistant to the president of NWACC, testified that on July 28, 2016, she received a call from Migliori that she had fallen and needed help. White, along with Cheryl Wagner, went into Migliori's office and found her on her knees on the ground with her hands on the back of her head. Migliori reported that she had fallen off the yoga ball. White said Migliori looked like she had been crying "a little bit." White stated that Migliori complained about her head and was holding her head, but she (White) did not see any cut or bruise on Migliori's head. Wagner, administrative assistant to the president of NWACC, testified that White called her in the morning of July 28 and said that Migliori had fallen. Wagner stated that Migliori said that she had hit her head and was "a little bit upset." Migliori asked Wagner if there was a bump on her head, and Wagner said, "Honestly, I don't remember if there was. It was not of any great significance." Wagner said that there was no cut and there was no bleeding; however, she offered to get ice in case it "would start swelling." Wagner further testified that she "didn't think much of [the incident]. Yes, she fell and she bumped her head. And yes, it would have hurt, you know. But other than that, you know, I really didn't think much of it. I mean she seemed to be acting okay." During cross-examination, Wagner was shown a picture: Q: Cheryl, I'm going to show you a picture. It's marked July 28th, 2016 on this phone. A: Okay. Q: Does that look like what you saw on her head that morning? A: No. But she has real thick hair. And I'll be honest with you, you know, I just kind of moved it. And no, I did not see that. Q: So-you're not a doctor, are you? A: No. Q: So if a doctor said that she had a contusion on the head, you wouldn't have any reason to dispute that, would you? A: I guess not. No. On April 20, 2017, the ALJ issued an opinion, finding that Migliori met her burden of proving a compensable head injury and was entitled to medical benefits, temporary total-disability benefits, and an attorney's fee. The ALJ found that there was "no question that [Migliori] fell at work hitting her head." The ALJ also found that Migliori reported the fall to coemployees; filled out forms for a work-related injury; and sought medical treatment for her head injury. The ALJ further found that Migliori's testimony was credible and was supported by two witnesses and the medical evidence. The ALJ found that medical records reflect that Migliori suffered a concussion and a scalp contusion and that she was restricted from work for two weeks as per doctor's orders. The ALJ stated that while Migliori suffered from ringing in the ears before the July 2016 fall, based on Dr. Key's medical report, this condition was worsened by the 2016 fall. The ALJ further stated that there were objective findings to support the injury and that they were causally connected to Migliori's work-related incident. The ALJ found that Migliori had proved that the medical treatment she received was reasonably necessary for her compensable head injury ; thus, she was entitled to medical benefits. Finally, the ALJ found that Migliori met her burden of proving that she was taken off work for a two-week period and suffered a total incapacity to earn wages; accordingly, she was entitled to temporary total-disability benefits. Appellants appealed the ALJ opinion to the Commission, and on September 13, 2017, the Commission issued an opinion affirming and adopting the ALJ's opinion. This appeal followed. Under Arkansas law, the Commission is permitted to adopt the ALJ's opinion. City of El Dorado v. Smith , 2017 Ark. App. 307, at 8, 521 S.W.3d 523, 529. In so doing, the Commission makes the ALJ's findings and conclusions the findings and conclusions of the Commission. Id. at 8-9, 521 S.W.3d at 529. Therefore, for purposes of our review, we consider both the ALJ's opinion and the Commission's majority opinion. Id. at 9, 521 S.W.3d at 529. In appeals involving claims for workers' compensation, the appellate court views the evidence in the light most favorable to the Commission's decision and affirms the decision if it is supported by substantial evidence. Id. , 521 S.W.3d at 529. Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. Id. , 521 S.W.3d at 529. The issue is not whether the appellate court might have reached a different result from the Commission, but whether reasonable minds could reach the result found by the Commission. Id. , 521 S.W.3d at 529. Questions concerning the credibility of witnesses and the weight to be given to their testimony are within the exclusive province of the Commission. Id. , 521 S.W.3d at 529. Thus, we are foreclosed from determining the credibility and weight to be accorded to each witness's testimony, and we defer to the Commission's authority to disregard the testimony of any witness, even a claimant, as not credible. Id. , 521 S.W.3d at 529. When there are contradictions in the evidence, it is within the Commission's province to reconcile conflicting evidence and determine the facts. Id. at 9-10, 521 S.W.3d at 529. The Commission has the authority to accept or reject medical opinions, and its resolution of the medical evidence has the force and effect of a jury verdict. Id. at 10, 521 S.W.3d at 529. To receive workers'-compensation benefits, Migliori had to prove these facts: (1) that she suffered an injury arising out of and in the course of her employment; (2) that the injury was caused by a specific incident identifiable by time and place of occurrence; (3) that the injury caused internal or external physical harm to her body, which required medical services or resulted in disability or death; and (4) that the injury was established by medical evidence supported by objective findings. Ark. Code Ann. § 11-9-102(4)(A)(i), (D) (Repl. 2012). Objective findings are those that cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-102(16)(A)(i). Appellants argue on appeal that substantial evidence fails to support the Commission's finding that Migliori sustained a compensable head injury. Under this point, appellants first contend that the fall did not occur. Specifically, appellants point out that there were no witnesses to Migliori's fall, the fall did not knock her glasses off her face, and neither White nor Wagner saw a cut, bump, bruise, or swelling on Migliori's head immediately after the accident. The Commission found that there was "no question that [Migliori] fell at work hitting her head." Substantial evidence supports this finding. Migliori testified about the details of her fall on July 28, 2016, and the injury to her head. She testified that she reported the fall immediately. This is confirmed by White and Wagner. White and Wagner testified that they found Migliori on her knees in her office with her head in her hands, reporting that she had fallen off the ball. White and Wagner both testified that Migliori looked like she had been crying and was upset. Wagner confirmed that she offered to retrieve ice for Migliori's head. While White and Wagner did not see a bruise or a cut on Migliori's head, Wagner agreed that Migliori fell, bumped her head, and that it would have hurt. Wagner was also shown a picture, taken July 28, 2016, of Migliori's head, and said that she did not see whatever was shown in the picture and that she would not dispute a doctor's statement that Migliori had a contusion on her head. Further, Migliori signed the employee's report of accident; emailed her supervisor; spoke with NWACC's human-resource representative; spoke to the NWACC nurse, who diagnosed Migliori with a contusion; and was referred for treatment at Mercy Clinic, which she received at 9:44 a.m., within hours of her fall. The Commission found Migliori's testimony credible. The documentary evidence-forms signed by Migliori and Hill and medical records all dated July 28, 2016-corroborates Migliori's testimony. Accordingly, we hold that there is substantial evidence to support the ALJ's finding that Migliori fell off the yoga ball and suffered a head injury. Appellants also argue that substantial evidence fails to support the Commission's finding that Migliori's head injury is supported by objective findings. Appellants focus on the July 28, 2016 medical record, which provides that Migliori "hit back of head at 07:16 this morning falling off a yoga ball, HA, struggling to read forms here, left ear pain/pressure/numbness/tingling, shaky, denies other symptoms." Appellants argue that this report, generated the day of the alleged fall, contains no objective findings-only subjective complaints. Appellants further argue that the face and head CT scans were normal. We hold that substantial evidence supports the Commission's finding that Migliori established a compensable head injury by medical evidence supported by objective findings, namely a scalp contusion. We have held that a contusion is an objective medical finding. Ellis v. J.D. & Billy Hines Trucking, Inc. , 104 Ark. App. 118, 121, 289 S.W.3d 497, 499 (2008) (citing Parson v. Ark. Methodist Hosp. , 103 Ark. App. 178, 182, 287 S.W.3d 645, 648 (2008) (holding that contusions are objective findings because they do not come under the voluntary control of the patient) ). We agree that there is no medical record dated July 28, 2016-the date of Migliori's injury-that contains an objective finding that supports a compensable injury; nevertheless, we hold that substantial evidence supports the Commission's finding that her head injury was supported by objective findings. Migliori testified that the NWACC nurse diagnosed her with a contusion on the day of her fall. The August 2, 2016 radiology report states that Dr. Sitzes had diagnosed her with a contusion of the scalp, which was one of the bases for his request for the face and head CT scans. Finally, after seeing a picture of Migliori's head the day of the accident, Wagner testified that she did not see whatever was depicted in the picture and that after looking at the picture she would not dispute a doctor's opinion that Migliori suffered a head contusion. Appellants further contend that Migliori's subjective symptoms-left-side facial numbness, left-ear ringing, neck pain, vertigo (dizziness), and headaches-are preexisting conditions. Appellants point to medical records that demonstrate that Migliori has had a history of these symptoms and treatment for these symptoms as far back as 2012 and as recently as June and July 2016. The Commission acknowledged that Migliori suffered from preexisting ringing in her ears but noted that Dr. Key found that the issue was made worse after her July 2016 fall due to swelling in the nerves. Dr. Key also acknowledged Migliori's history with vertigo following a car accident in 2012 but stated that she had not had those symptoms since that time, and her current vertigo complaint was "more likely than not a result of the impact to her head, which resulted in a concussion." The Commission has the duty of weighing medical evidence, and the resolution of conflicting evidence is a question of fact for the Commission. St. Jean Indus., Inc. v. Ezell , 2016 Ark. App. 516, at 8, 504 S.W.3d 679, 684. Moreover, the Commission has the authority to accept or reject medical opinions, and its resolution of the medical evidence has the force and effect of a jury verdict. Foster v. Kann Enters. , 2009 Ark. App. 746, at 5-6, 350 S.W.3d 796, 800. It is the province of the Commission to weigh conflicting medical evidence; however, the Commission may not arbitrarily disregard medical evidence or the testimony of any witness. St. Jean Indus. , 2016 Ark. App. 516, at 8, 504 S.W.3d at 684. Here, the Commission did not disregard the medical evidence; it weighed it, giving more weight to Dr. Key's opinion that Migliori's current complaints were caused by her fall from the yoga ball and not her preexisting conditions. In sum, because substantial evidence supports the Commission's finding that Migliori proved a compensable head injury on July 28, 2016, we affirm. Affirmed. Glover and Brown, JJ., agree. The first report of injury, signed by Hill and dated July 28, 2016, states that Migliori's injury is "Concussion," the part of the body affected is "Skull," and that the injury was caused when "Heidi pushed backwards on the yoga chair she uses as a chair at her desk and rolled off the chair hitting the back of her head on her wooden desk." Migliori testified that Dr. Sitzes referred her to another audiologist, Dr. James Ragland, whom she saw on September 19, 2016. Dr. Ragland treated Migliori in November 2012 for complaints of "hearing loss, dizziness, sleep apnea, and headaches" and a history of migraine headaches. The picture is not in the addendum or record.

DAVID M. GLOVER, Judge Davin Allen was charged in Pulaski County Circuit Court with two counts of aggravated robbery, Class Y felonies, and two counts of theft of property by threat of serious physical injury, Class B felonies. He filed a motion to transfer his case to the juvenile division, which was denied by the circuit court. Allen has filed an interlocutory appeal of the denial of his motion to transfer, arguing the circuit court's decision was clearly erroneous. We affirm the denial of Allen's motion to transfer. At the hearing on Allen's motion to transfer, Detective Julio Gil of the Little Rock Police Department testified that he responded to a report of a robbery in southwest Little Rock on July 31, 2016. The victims, Jose Gonzalez and Gustavo Martinez, both Hispanic males, told Detective Gil four black males had robbed them at gunpoint, taking their cell phones and wallets. On August 8, Mr. Gonzalez brought his new phone to the police station to show the police that on his iCloud there were pictures of people he did not know, including pictures of the people who had robbed him. Through these pictures, Detective Gil identified three suspects, and Mr. Gonzalez, using a photo spread, positively identified Allen and Brian Welch as two of the persons who had robbed him and tentatively identified Keith Harris as a third suspect. Detective Gil was unable to get Mr. Martinez to come to the police station, explaining at the hearing that many people in the Hispanic community were unwilling to cooperate with the police in fear of being deported. Gil stated Brian Welch gave a statement admitting that he, Allen, and Harris followed the victims in their vehicle until it stopped, at which time Allen approached the vehicle holding a gun, and Harris and another person known to Welch only as Johnathan got the two victims out of the vehicle. Welch admitted he took a cell phone from the vehicle. Talisa Obi, Allen's aunt, testified in Allen's defense. She stated that Allen, who was currently attending Central High School, had lived with her from the beginning of school last year until he was arrested; prior to that, Allen had lived with his mother and attended Hall High School. Obi explained Allen had been retained twice in school; his behavior changed after transferring to Central; he lost interest in sports; and he began to associate with a "different type of crowd." Obi testified Allen had been diagnosed with oppositional defiant disorder (ODD) and was prescribed medication but had stopped taking it; he had also received some outpatient therapy. Allen's mother, Obi's sister, could not be in court for the hearing due to training requirements associated with her new job, but Obi said her sister had attempted to get Allen help from school counselors and juvenile services, only to be told there was nothing they could do because he had not committed any crimes. On cross-examination, Obi explained she is not Allen's guardian, but had taken him into her care so her husband could be a father figure to Allen and to get him out of his previous neighborhood. She agreed no one had petitioned the juvenile court for a family-in-need-of-services (FINS) case to be opened; she said no one had mentioned FINS as an option; and she could not do anything because she is not Allen's legal guardian. Obi acknowledged Allen had three other cases currently pending in juvenile court, but she stated Allen had never been "convicted" of a crime in the juvenile system or placed on probation. Kantris Oliver, an employee of the Division of Youth Services (DYS), testified DYS could offer Allen mental-health services and life-adaptive skills, as well as individual, group, and family counseling. Oliver was familiar with ODD, stating it was a common diagnosis for DYS youth; DYS would be well suited to treat Allen for ODD; and there was a "good chance" DYS programs could rehabilitate Allen by the time he turned twenty-one. However, Oliver admitted she had not had an opportunity to interview Allen or anyone in his family and did not know anything about his particular needs except the information she had been provided by the public defender. A letter from Allen's mother was entered as an exhibit in which Janice Obi explained she was unable to be in court with Allen due to work. She stated Allen was a "great kid" who had been involved in sports but began hanging out with boys from his school and making poor choices, such as skipping school and letting his grades drop. She explained Allen had ODD and was taking medication. When she was unable to get help from the juvenile-detention center, she sent Allen to live with her sister. She wrote that she was willing to have Allen in her care under house arrest; however, she stated that she knew he did not play a part in the aggravated robbery for which he stood accused. Her plan if Allen was released was to place him in Job Corps to continue his education and training for a trade. On May 1, 2017, the circuit court entered an order denying Allen's motion to transfer. Allen appeals the decision, arguing it is clearly erroneous. Arkansas Code Annotated section 9-27-318 (Repl. 2015) governs the transfer of criminal cases to juvenile court. Subsection (g) of the provision sets forth the ten factors a circuit court is required to consider in a transfer hearing: (g) In the transfer hearing, the court shall consider all of the following factors: (1) The seriousness of the alleged offense and whether the protection of society requires prosecution in the criminal division of circuit court; (2) Whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner; (3) Whether the offense was against a person or property, with greater weight being given to offenses against persons, especially if personal injury resulted; (4) The culpability of the juvenile, including the level of planning and participation in the alleged offense; (5) The previous history of the juvenile, including whether the juvenile had been adjudicated a juvenile offender and, if so, whether the offenses were against persons or property, and any other previous history of antisocial behavior or patterns of physical violence; (6) The sophistication or maturity of the juvenile as determined by consideration of the juvenile's home, environment, emotional attitude, pattern of living, or desire to be treated as an adult; (7) Whether there are facilities or programs available to the judge of the juvenile division of circuit court that are likely to rehabilitate the juvenile before the expiration of the juvenile's twenty-first birthday; (8) Whether the juvenile acted alone or was part of a group in the commission of the alleged offense; (9) Written reports and other materials relating to the juvenile's mental, physical, educational, and social history; and (10) Any other factors deemed relevant by the judge. The statutory language is clear. The circuit court shall make written findings on all the factors set forth in subsection (g) of this section. Ark. Code Ann. § 9-27-318(h)(1). Our case law further explains its application. The State is not required to introduce proof of each factor, and the circuit court does not have to give equal weight to each factor. Flowers v. State , 2017 Ark. App. 468, 528 S.W.3d 851. The movant bears the burden of proving by clear and convincing evidence that his case should be transferred from the criminal division to the juvenile division of circuit court. Drexler v. State , 2018 Ark. App. 95, 538 S.W.3d 888. On appeal, we will not reverse a circuit court's decision denying a motion to transfer unless it is clearly erroneous; a finding is clearly erroneous when, after reviewing the evidence, our appellate courts are left with a firm and definite conviction that a mistake was made. Id. Appellate courts will not reweigh the evidence presented to the circuit court. Flowers, supra. Here, the circuit court made findings regarding each factor listed in section 9-27-318(g). It found that the offenses with which Allen was charged were serious, involved violence, and were committed in a premeditated manner against persons and property, and the nature of the offenses and society's protection would favor prosecution in the criminal division of circuit court. The circuit court further found Allen had acted as part of a group; Allen's culpability in the commission of the offenses appeared to be equal to that of his co-defendants; and Allen had three cases pending in juvenile court that had not yet been adjudicated. Additionally, the circuit court found Allen's home environment was poor, he had lost interest in sports, he had been associating with people his family found unacceptable, and he lacked a male role model when he lived with his mother. The circuit court noted Allen's date of birth is March 14, 2000; therefore, he was sixteen years and four months old at the time the offenses were committed and was seventeen at the time of the transfer hearing. Although the circuit court recognized the difference in the brain functioning of juvenile and adult offenders, weighing the efficacy of juvenile programs and services against the legitimate concerns of protecting society from violent offenders, the circuit court was "concerned with the sufficiency of the resources available to the Juvenile Division and finds that the programs in their current form would fail when applied to the circumstances of this case." Even though the circuit court found it was "beyond dispute" Allen and his family were in need of services, it ultimately found the programs and facilities were not likely to rehabilitate Allen prior to his twenty-first birthday. The circuit court also found the evidence presented at the transfer hearing indicated Allen was targeting Hispanic males due to their reluctance to contact authorities; Allen was behind two years in school; he had been diagnosed with ODD; his mother was unable to attend the hearing due to her job, which she must keep to support her family; and his mother had sought help but had been told that there was nothing that could be done unless Allen had been charged with a crime or adjudicated delinquent. The circuit court found its decision came down to balancing the seriousness of the offense against the protection of society. The circuit court noted that it was presented with a single mother whose teenage son had behavioral issues; she had asked authorities for help multiple times without success; and she was unable to protect her son from "falling prey to his own impulses and surroundings." The circuit court found Allen was attempting to "fit in" with his peers and gain attention by engaging in behavior designed to garner this attention, but, "[p]ointing a firearm at someone, and robbing them of both their property and sense of security is shocking and unacceptable behavior for a child or an adult." Allen's sole argument is that the testimony of Talisa Obi and Kantris Oliver, taken together, establishes he has the potential to be rehabilitated by DYS services available to him if his case is transferred to juvenile court, and the circuit court clearly erred in denying his motion to transfer. We do not agree. Other than setting forth the testimony of Obi and Oliver again, Allen fails to explain how the circuit court erred in denying the motion to transfer. Oliver testified in general terms as to what type of programs and services were available at DYS, but she also admitted she knew virtually nothing about Allen's particular needs because she had not interviewed him. The circuit court was concerned DYS services were insufficient resources to successfully rehabilitate Allen under the circumstances. Allen has been charged with two counts of aggravated robbery and two counts of theft of property by threat of serious physical injury. A juvenile may be tried as an adult based solely on the serious and violent nature of the offense. C.B. v. State , 2012 Ark. 220, 406 S.W.3d 796. The circuit court found pointing a firearm at people and robbing them of their property and security was shocking and unacceptable behavior for either a child or an adult. Furthermore, Allen had three pending cases in juvenile court at the time of the motion to transfer. Based on these facts, we cannot say the circuit court's denial of Allen's motion to transfer was clearly erroneous. Affirmed. Klappenbach and Hixson, JJ., agree.

ROBERT J. GLADWIN, Judge Ronald Clark Shaver appeals the Boone County Circuit Court's denial of his motion to dismiss, which was based on res judicata and Arkansas Code Annotated sections 5-1-110 and -113 (Repl. 2013). On appeal, he contends that his prosecution in Boone County for theft of property is barred by issue and claim preclusion related to his previous theft-by-receiving conviction in the Franklin County Circuit Court. The State has filed a motion to dismiss Shaver's appeal because he did not file a notice of appeal within 30 days of the circuit court's form order denying his motion to dismiss. We grant the State's motion and dismiss Shaver's appeal. Shaver was charged with theft by receiving on March 10, 2016, in Franklin County, and he pled guilty after admitting as follows: I purchased sixteen head of cattle at a discount price from an individual and whereas I took ten to the Franklin County Livestock Auction to sell and found out then they were stolen and then arrested. On June 30, 2016, Shaver was sentenced to 48 months' probation based on his negotiated guilty plea. Shaver's attorney told the Franklin County Circuit Court that Shaver was "contending this is the same course of conduct as those other counties so we will be making collateral estoppel arguments in those jurisdictions." Counsel was referring to Shaver's theft-of-property charge in the instant case, which was described in the February 18, 2016 information as follows: The said defendant, on or about the 28th day of January, 2016, in Boone County, Arkansas, did unlawfully and feloniously take or exercise unauthorized control over or make an unauthorized transfer of an interest in the property of another, with the purpose of depriving the owner of the property, with the value of the property being more than $5,000 but less than $25,000, against the peace and dignity of the State of Arkansas, to wit: the defendant stole from Lee Roy Roberts and Sharon Starkey sixteen (16) head of cattle. Later that same day, the defendant sold ten (10) of the cattle for a total of $10,323.59. After Shaver pled guilty to theft by receiving in the Franklin County case, he filed a motion to dismiss in the Boone County Circuit Court, arguing that the affirmative defenses of Arkansas Code Annotated sections 5-1-113 (issue preclusion) and 5-1-110 (claim preclusion), and the common-law doctrine of res judicata, which includes both issue and claim preclusion, warranted dismissal of the charge in Boone County. The brief in support of Shaver's dismissal motion explains res judicata and the two facets of it-issue and claim preclusion. Further, Shaver argued that "collateral estoppel" or "issue preclusion" is codified in section 5-1-113. He also argued that the doctrine of claim preclusion warranted dismissal, and the codified version thereof is set forth in section 5-1-110. The circuit court denied Shaver's motion, ruling from the bench on January 20, 2017, and an order was filed January 23, 2017, with a handwritten portion stating, "Motion to Dismiss is denied." The order also set a hearing for February 10, 2017, and on that date, the following colloquy occurred: THE STATE : Judge, we had a discussion over lunch and I believe that we are going to get a copy of the Court's ruling from two weeks ago and reduce it to writing. And then I-once that is done- THE COURT : You're getting a transcript? THE STATE : Transcript. THE COURT : Yeah. THE STATE : Once that is done, then I believe that they will be able to do an interlocutory appeal. DEFENSE COUNSEL : Judge, we believe that a written order be entered (sic) is necessary. I don't know that the Court agrees with that but from our assessment of things, I think it's required in order to meet our- THE COURT : I think that's required for an interlocutory appeal. DEFENSE COUNSEL : So that's what we're going to try and so- THE COURT : I think you have to enter a plea to do the interlocutory appeal, do you not? THE STATE : This isn't a Motion to Suppress. I think this goes to-and you can correct me if I'm wrong, I think it goes to the court's jurisdiction. DEFENSE COUNSEL : I have found several cases, Your Honor, where the appellate courts have said that appeals based on collateral estoppel and res judicata are appealable. An order to deny a motion to dismiss based on- THE COURT : So that is just going to postpone further disposition of this case? DEFENSE COUNSEL : It will, Your Honor. THE COURT : All right. DEFENSE COUNSEL : But I believe the law is that a denial of a motion to dismiss based on res judicata, collateral estoppel related issues, double jeopardy are appealable-interlocutorially (sic) appealable. THE COURT : Very well. THE STATE : So, RaLenn, if you could prepare a transcript? THE COURT : And the Court will have to enter a written order. Okay. THE STATE : And Judge, I told him I will prepare a written order and once I get a copy of the transcript, I'll send him a transcript-do a written order. I would prefer that [defense counsel] sign off on it. DEFENSE COUNSEL : I would too, Your Honor. THE COURT : All right. .... THE COURT : So this-what this does is it essentially suspends the-from here forward, any running speedy trial at all? DEFENSE COUNSEL : I agree. I think we actually have to file the notice of appeal after the order is entered so I don't know up until the time the order is entered I would say no, but after that once the appeal is filed, yes. Thereafter, the circuit court filed an order on February 13, 2017, reflecting that the parties were ordered to appear on March 24, 2017, to update the court on the "status of appeal." Although the March 24 hearing is not reflected in either of the parties' abstracts in their appellate briefs or in the record filed on appeal, the resulting order of March 29, 2017, reflects that Shaver's counsel was to prepare the "order" for the court's signature. On May 10, 2017, the circuit court filed an "Order Denying Motion to Dismiss," setting forth its reasoning for denying the motion, which was based on res judicata and double jeopardy. The circuit court found that theft of property and theft by receiving are two different crimes that require different elements to be proved. The circuit court also found that theft by receiving is in no way a lesser-included offense of theft of property. On June 5, 2017, Shaver filed a notice of appeal, noting that the circuit court had denied his motion to dismiss on the grounds of res judicata. Following the notice of appeal, the record was lodged with this court on October 2, 2017, and briefing commenced. Shaver filed his brief on November 17, 2017, and the State filed its motion to dismiss on December 7, 2017, arguing that Shaver did not file a timely notice of appeal because the notice was filed more than 30 days after the order filed January 23, 2017. This is an interlocutory appeal. Our supreme court has long recognized the right to an immediate appeal from the denial of a motion to dismiss on double-jeopardy grounds. See , e.g. , Dilday v. State , 369 Ark. 1, 250 S.W.3d 217 (2007) ; Winkle v. State , 366 Ark. 318, 235 S.W.3d 482 (2006) ; Jones v. State , 230 Ark. 18, 320 S.W.2d 645 (1959). Immediate appeals from the denial of a motion to dismiss based on res judicata have also been allowed. See Winkle , supra ; Fariss v. State , 303 Ark. 541, 798 S.W.2d 103 (1990). Rule 2 of the Arkansas Rules of Appellate Procedure-Criminal does not address interlocutory appeals. Looking to the civil appellate rules, see , e.g. , Byndom v. State , 344 Ark. 391, 405, 39 S.W.3d 781, 789 (2001), Rule 4 provides that a notice of appeal must be filed within 30 days of the entry of an appealable order. Ark. R. App. P.-Civ. 4(a) (2017). The question before us is whether the January 23, 2017 order stating "Motion to Dismiss is denied" is an appealable order for purposes of this interlocutory appeal. The State argues that it is and that Shaver had 30 days from the entry of that order in which to file a notice of appeal under Rule 4(a), yet he failed to do so. Thus, the notice of appeal filed June 5, 2017, was untimely, and the appeal should be dismissed for lack of jurisdiction. The State contends that if the parties had been unaware of the January 23, 2017 order, it is of no consequence because parties have a duty to be aware of the status of their cases. See Arnold v. Camden News Publ'g Co. , 353 Ark. 522, 110 S.W.3d 268 (2003). The State disputes that there is a findings requirement for appellant to pursue an interlocutory appeal. See Shelton v. State , 2009 Ark. 388, 326 S.W.3d 429. The State also asserts that the lack of findings is not a jurisdictional bar to an appeal from an order not containing them. See State v. Bragg , 2016 Ark. 242, 2016 WL 3346350. The State submits that no agreement or understanding between the parties can render an untimely notice of appeal timely. See Reed v. Ark. State Hwy. Comm'n , 341 Ark. 470, 17 S.W.3d 488 (2000). The State argues that the May 10 order did not render the appeal timely because the first order denying the motion to dismiss was appealable, and a contrary conclusion would sanction delay in the prosecution of interlocutory appeals. Shaver contends that the January 23, 2017 order was a "docket scheduling order" that is routinely issued for housekeeping purposes. He contends that even though the order denied the motion to dismiss, it contained no factual findings "as typically required under the Arkansas Rules of Criminal Procedure." Shaver cites the February 10, 2017 hearing as set forth in the colloquy above and argues that the circuit court "noted that a written order would be necessary" for him to file an interlocutory appeal. He claims that the circuit court did not recognize the January 23 order as the final and appealable order related to his motion to dismiss and that the circuit court was concerned with making a "proper final and appealable written order with its reasoning for the ruling so that a proper interlocutory appeal could be presented" to this court. Thus, Shaver argues that he timely appealed the May 10, 2017 final order. Shaver also argues that Rule 37.3 of the Arkansas Rules of Criminal Procedure (2017) denotes the need for final orders containing the circuit court's findings and contends that for an order to be appealable, it must put the circuit court's directive into execution. He argues that when an order provides for a subsequent hearing, that provision prevents the order from being a final order for the purposes of appeal. See Daniel v. State , 64 Ark. App. 98, 983 S.W.2d 146 (1998). Thus, he claims that the scheduling order of January 23, 2017, cannot be a final order because it provides a subsequent hearing date of February 10, 2017, at which time the circuit court "requested that a final order be prepared and submitted." Shaver also claims that, even if the parties were unaware of the scheduling order, the circuit court was aware of its own order and still felt compelled to direct the parties to prepare an order. He claims that this gives credence to the argument that it was the circuit court's intent for a final and appealable order, not the January 23 docket scheduling order, to be drafted. Shaver claims that order was filed May 10, 2017, and his notice of appeal was timely filed. Shaver argues that if he had appealed the January 23, 2017 scheduling order, the State would be arguing that it was not a final and appealable order that contained the reasoning and basis of the circuit court's decision to deny the motion to dismiss, but he does not cite any supporting law for this argument. Neither party addresses the Arkansas Supreme Court's ruling in Arkansas Lottery Commission v. Alpha Marketing , 2012 Ark. 23, at 5, 386 S.W.3d 400, 403, wherein the court held that it was without jurisdiction to consider an interlocutory appeal that did not contain a specific ruling on the sovereign-immunity issue raised as a defense. The supreme court reasoned that for it to assume jurisdiction, the appeal of an interlocutory order must be premised on the lower court's ruling premised on sovereign immunity. Id. , 2012 Ark. 23, at 6, 386 S.W.3d at 404. The court stated, Logic dictates that, before an interlocutory appeal may be pursued from the denial of a motion to dismiss on the ground of sovereign immunity, we must have in place an order denying a motion to dismiss on that basis. In this case, the Commission moved for dismissal on multiple grounds, only one of which was based on the defense of sovereign immunity. In its order, the circuit court noted that the Commission had raised the issue of sovereign immunity in defense of the claims for monetary and injunctive relief. However, the circuit court ruled only on the Commission's separate claim that Alpha Marketing had not stated a cause of action for trademark infringement. The court did not pass judgment on the Commission's argument that the relief sought by Alpha Marketing was barred by sovereign immunity. It is axiomatic that, without a ruling on the sovereign-immunity issue, there can be no interlocutory appeal. Id. The distinguishing factor between the instant case and Alpha Marketing is that the underlying motion to dismiss is based solely on Shaver's premise that res judicata prevents Boone County from prosecuting him for theft of property. Res judicata, which includes issue and claim preclusion, is codified under both statutes argued by Shaver as prohibiting his prosecution. Therefore, the circuit court's denial of the motion is necessarily a denial of Shaver's res judicata arguments; thus, the January 23, 2017 order is the order from which Shaver should have filed his notice of appeal. Shaver's notice of appeal filed on June 5, 2017, was untimely, and this court lacks jurisdiction to consider his appeal. Motion to dismiss granted; appeal dismissed. Murphy and Brown, JJ., agree.

RHONDA K. WOOD, Associate Justice Petitioners Judith Stiritz, Billy Carroll Wheeler, Kenneth Ray Carney, and Bobby Gene Smith, individually and on behalf of Ensuring Arkansas' Future, filed this original action seeking to enjoin the Secretary of State Mark Martin from placing Issue Number 4, a proposed constitutional amendment concerning casino gambling, on the ballot for the general election on November 6, 2018. Petitioners claim that the proposed amendment's popular name and ballot title are insufficient. With our consent, Don Tilton, individually and on behalf of Arkansas Jobs Coalition, has intervened in support of the proposed amendment. Because we conclude that the popular name and ballot title are sufficient, we deny the petition. Arkansas's Attorney General certified this proposed amendment's popular name and ballot title on May 23, 2018. The Secretary of State certified the sufficiency of the proposed initiative measure on September 5, 2018. As certified, the popular name of the proposed amendment is: An Amendment to Require Four Licenses to be Issued for Casino Gaming at Casinos, One Each in Crittenden (to Southland Racing Corporation), Garland (to Oaklawn Jockey Club, Inc.), Pope, and Jefferson Counties. The complete text of the ballot title, as certified, is appended to this opinion. On September 12, 2018, petitioners filed this original action. This court has jurisdiction under both Amendment 7 as codified in article 5, section 1 of the Arkansas Constitution and Arkansas Supreme Court Rule 6-5(a). Petitioners raised twenty-seven challenges to the proposed amendment. Three challenges pertain to the popular name and twenty-four concern the ballot title. This court reviewed and considered each challenge; however, many of them necessitate no analysis in this opinion because they were wholly unsupported by any factual or legal argument. We have frequently stated that we will not research or develop arguments for petitioners. City of Greenbrier v. Roberts , 354 Ark. 591, 127 S.W.3d 454 (2003). Accordingly, we limit our discussion below to those arguments adequately presented to our court. I. Popular Name We first consider the challenges to the popular name of the proposed amendment. The purpose of an amendment's popular name is "to identify the proposal for discussion prior to the election." May v. Daniels , 359 Ark. 100, 104, 194 S.W.3d 771, 776 (2004). It is "primarily a useful legislative device that need not contain the same detailed information or include exceptions that might be required of a ballot title." Id. It must not be misleading; it must be intelligible, honest, and impartial. Id. While it cannot contain catchphrases or slogans that may mislead or give partisan coloring, it is not held to the same stringent standards as the ballot title. Id. ; see also Ark. Women's Political Caucus v. Riviere , 283 Ark. 463, 677 S.W.2d 846 (1984). Petitioners first argue that the popular name is insufficient because it designates Southland Racing Corporation and Oaklawn Jockey Club, Inc., as two entities that will receive a casino license, but the amendment's text does not specifically name those corporations. Petitioners contend this omits pertinent information and is misleading. As it is undisputed that Oaklawn and Southland are the only franchise holders that meet the description contained in the amendment, we find that it is informative, not misleading. Petitioners also assert that the popular name suggests that the Arkansas Racing Commission must issue four casino licenses, one in each of the four counties. They argue this is misleading since the amendment provides that for a casino to receive a license in Pope and Jefferson Counties, the casino applicant will have to meet certain requirements. Therefore, the possibility exists that the Commission could not issue four casino licenses. We conclude that this is not misleading. A popular name need not identify all future scenarios. "[B]ecause so little is required of a popular name, we have never held a proposed measure invalid solely because of an incomplete description of the act by the popular name." Gaines v. McCuen , 296 Ark. 513, 516, 758 S.W.2d 403, 404-05 (1988). The popular name is an identification tool and simply cannot explain every eventuality of the actual amendment. II. Ballot Title This court decides the sufficiency of the ballot title as a matter of law. Wilson v. Martin , 2016 Ark. 334, 500 S.W.3d 160. The ballot title (1) must include an impartial summary of the proposed amendment that will give voters a fair understanding of the issues presented and of the scope and significance of the proposed changes in the law; (2) cannot omit material information that would give the voter serious ground for reflection; and (3) must be free from misleading tendencies that, whether by amplification, omission, or fallacy, thwart a fair understanding of the issues presented. Parker v. Priest , 326 Ark. 123, 930 S.W.2d 322 (1996). The ballot title need not contain a synopsis of the proposed amendment or cover every detail of it. Rose v. Martin , 2016 Ark. 339, at 4, 500 S.W.3d 148, 151. If information omitted from the ballot title is an essential fact that would give the voter serious ground for reflection, it must be disclosed. Id. , 500 S.W.3d at 152. A. Lack of Definitions and Misleading Terms Petitioners argue that the ballot title fails to define key terms for the voter and that certain terms are misleading. They first argue that of the eleven terms defined in the amendment's text, only two-casino gaming and net casino-gaming receipts-are defined in the ballot title. Our court has disapproved of undefined terms in a ballot title that are highly technical, obscure, that attempt to mislead voters, or that hide the actual nature of the proposal. See Christian Civic Action Comm. v. McCuen , 318 Ark. 241, 884 S.W.2d 605 (1994). However, a term's definition need not appear in the ballot title if it is readily understandable. See id. We have previously held that terms such as state lottery, charitable bingo game, and charitable raffle do not require a definition. Id. ; see also Cox v. Daniels , 374 Ark. 437, 288 S.W.3d 591 (2008) (holding that omitting a definition of "state lottery" did not make the ballot title misleading or insufficient). Here, the terms that the petitioners object to being undefined in the ballot title include casino, franchise holder, intoxicating liquor, net casino gaming receipts, sporting events, and wholesaler. We do not find these terms obscure or highly technical. They do not require definitions in order for voters to understand this amendment's scope and import; therefore, voters are not misled by their omission. Similarly, petitioners claim that the term "casino gaming" is incomplete and misleading because it fails to state that lotteries are excluded from the definition. However, "casino gaming" is defined in the ballot title as gambling "with cards, dice, equipment, or any mechanical, electromechanical, or electronic device or machine ... as well as accepting wagers on sporting events." This mirrors the definition contained in the amendment, and we find it to be a common appellation. In Parker , we concluded that voters could readily understand terms such as "state lottery" and "casino gambling." 326 Ark. 123, 930 S.W.2d 322. Likewise, because we assume that voters can readily differentiate these two terms, we find that voters will not be misled. Again, a ballot title is not "required to include every detail, term, definition, or how the law may work." Cox v. Martin , 2012 Ark. 352, at 9, 423 S.W.3d 75, 83. Finally, as in the popular-name challenge, petitioners argue that the ballot title is misleading because it states that the Commission is "required" to issue four casino licenses. Certainly, the amendment places requirements on casino applicants in Pope and Jefferson Counties that, if not met, could result in the Commission's not issuing four licenses. We reject this argument because the ballot title explains this process and the requirements for applicants, and voters generally understand that the issuance of a license is contingent upon the applicant's satisfying those requirements. B. Omission of Key Words and Phrases Petitioners also contend that the ballot title is legally insufficient because it omits key words and phrases. They first assert that the ballot title omits the term "gross" from the definition of "net casino gaming receipts." We conclude that this omission is not misleading. The ballot title defines "net casino gaming receipts" as "gaming receipts less amounts paid out or reserved as winnings to casino patrons." The omission of the term "gross" detracts nothing from the definition since "net" and "gross" are commonly understood terms. Petitioners also claim that the ballot title is misleading because it fails to disclose that the amendment obligates the Arkansas Racing Commission, with the assistance of the Arkansas Department of Human Services, to conduct and fund compulsive-gambling-disorder treatment and educational programs. Again, a ballot title cannot include every detail of an amendment. Our ultimate inquiry is "whether a voter, while inside the voting booth, is able to reach an intelligent and informed decision for or against the proposal and understands the consequences of his or her vote based on the ballot title." Cox , 374 Ark. 437, 443, 288 S.W.3d 591, 595 (2008). Here, the ballot title provides the purpose and scope of the amendment. It conveys sufficient information upon which voters can step into the voting booth, read the title, and make an informed decision. Ultimately, we do not find that the omission of this provision is "an essential fact that would give the voter serious ground for reflection." Rose , 2016 Ark. 339, at 5, 500 S.W.3d at 152. C. Omission of Changes in the Law and Impact of the Amendment Petitioners also argue that the ballot title fails to inform voters of various conceivable eventualities, such as how the amendment will impact certain laws or how future events may impact the amendment. For example, they claim that the ballot title does not reveal that the amendment changes Arkansas laws regarding who may be a franchise holder. Similarly, they argue that the ballot title fails to inform voters (1) that Southland and Oaklawn could transfer their licenses, (2) that the casinos may not be located in Pine Bluff or Russellville if those cities are no longer the county seats, and (3) what would happen to the 17.5 percent of revenues designated for funding racing purses if the franchise holders stop offering races. This court has repeatedly stated that a ballot title does not need to include every possible consequence or impact of a proposed measure, and it does not need to address or anticipate every possible legal issue. Conway v. Martin , 2016 Ark. 322, 499 S.W.3d 209. A ballot title is not required to state "every detail of an amendment or how it will work in every situation." Richardson v. Martin , 2014 Ark. 429, at 11, 444 S.W.3d 855, 862 (quoting Ferstl v. McCuen , 296 Ark. 504, 758 S.W.2d 398 (1988) ). The ballot title also is not required to account for every possible occurrence that might impose some effect upon the amendment's operation, particularly those that are speculative. Consequently, we conclude that this ballot title sufficiently informs the public of the amendment's purpose and scope and its consequences. Because we find that all of petitioners' arguments fail, we deny the petition. We order the mandate to issue within five days from the filing of this opinion unless a petition for rehearing is filed. Petition denied. Special Justice Hugh Finkelstein joins in this opinion. Hart, J., dissents. Kemp, C.J., not participating. ADDENDUM (Ballot Title) An amendment to the Arkansas Constitution to require that the Arkansas Racing Commission issue licenses for casino gaming to be conducted at four casinos in Arkansas, being subject to laws enacted by the General Assembly in accord with this amendment and regulations issued by the Arkansas Racing Commission ("Commission"); defining "casino gaming" as dealing, operating, carrying on, conducting, maintaining, or exposing for play any game played with cards, dice, equipment, or any mechanical, electromechanical, or electronic device or machine for money, property, checks, credit, or any representative value, as well as accepting wagers on sporting events; providing that individuals under 21 are prohibited from engaging in casino gaming; providing that the Commission shall issue four casino licenses, one to Southland Racing Corporation ("Southland") for casino gaming at a casino to be located at or adjacent to Southland's greyhound track and gaming facility in Crittenden County, one to Oaklawn Jockey Club, Inc. ("Oaklawn") to require casino gaming at a casino to be located at or adjacent to Oaklawn's horse track and gaming facility in Garland County, one to an applicant to require casino gaming at a casino to be located in Pope County within two miles of Russellville, and one to an applicant to require casino gaming at a casino to be located in Jefferson County within two miles of Pine Bluff; providing that upon receiving a casino license, licensees will be required to conduct casino gaming for as long as they have a casino license providing that Southland and Oaklawn do not have to apply for a license and will automatically receive a casino license upon the Commission adopting rules and regulations to govern casino gaming; providing that the Commission shall require all applicants for the two remaining casino licensees, one in Pope County and one in Jefferson County to pay an application fee, demonstrate experience in conducting casino gaming, and submit either a letter of support from the county judge or a resolution from the county quorum court in the county where the casino would be located and, if the proposed casino is to be located within a city, a letter of support from the mayor of that city; providing that the Commission shall regulate all casino licensees; defining "net casino gaming receipts" as casino gaming receipts less amounts paid out or reserved as winnings to casino patrons; providing that for each fiscal year, a casino licensee's net casino gaming receipts are subject to a net casino gaming receipts tax of 13% on the first $150,000,000 of net casino gaming receipts or any part thereof, and 20% on net casino gaming receipts exceeding $150,000,001 or any part thereof; providing that no other tax, other than the net casino gaming receipts tax, may be imposed on gaming receipts or net casino gaming receipts; providing that the net casino gaming receipts tax shall be distributed 55% to the State of Arkansas General Revenue Fund, 17.5% to the Commission for deposit into the Arkansas Racing Commission Purse and Awards Fund to be used only for purses for live horse racing and greyhound racing by Oaklawn and Southland, as the case may be, 8% to the county in which the casino is located, and 19.5% to the city in which the casino is located, provided that if the casino is not located within a city, then the county in which the casino is located shall receive the 19.5%; permitting casino licensees to conduct casino gaming on any day for any portion of all of any day; permitting casino licensees to sell liquor or provide complimentary servings of liquor during all hours in which the casino licensees conduct casino gaming only for on-premises consumption at the casinos and permitting casino licensees to sell liquor or provide complimentary servings of liquor without allowing the residents of a dry county or city to vote to approve the sale of liquor; providing that casino licensees shall purchase liquor from a licensed Arkansas wholesaler; permitting shipments of gambling devices that are duly registered, recorded, and labeled in accordance with federal law into any county in which casino gaming is authorized; declaring that all constitutional provisions, statutes, and common law of the state that conflict with this amendment are not to be applied to this Amendment. I agree with the majority's conclusion that there is no fatal infirmity with the popular name of Issue No. 4. However, the ballot title tends to mislead, rather than clearly inform, the voter of the issue presented and likewise fails to adequately convey the scope and import of the proposed amendment. Accordingly, Issue No. 4 should be struck from the ballot. Our standards for reviewing the language of a ballot title require that a ballot title (1) be free from any misleading tendency; (2) inform the voters with such clarity so that they can cast their ballots with a fair understanding of the issue presented; and (3) convey an intelligible idea of the scope and import of the proposal. Bailey v. McCuen , 318 Ark. 277, 284, 884 S.W.2d 938, 942 (1994). Issue No. 4 is a massive constitutional amendment even by Arkansas standards-3104 words. Accordingly, it should surprise no one that the 707-word ballot title contains material omissions. While I address only four issues, the petitioner asserts that the ballot title is infirm for twenty-four reasons. Because they are not individually addressed by the majority, I have listed the headings of these points in the addendum to this dissent. In my view, the ballot title in Issue No. 4 is infirm because: (1) it fails to disclose to the voter that the amendment creates major social-welfare programs for problem gamblers, tasks the Arkansas Department of Human Services with working with the Arkansas Racing Commission "to implement the compulsive gambling disorder treatment programs and the compulsive gambling disorder educational programs," and levies a meager contribution of "at least $200,000 on the Arkansas Racing Commission for these treatment and education programs (see # 19); (2) it is inherently misleading because it fails to inform the voter that the amendment unleashes a powerful casino industry in this state without oversight-while it mentions that the Racing Commission has control over the issuing licenses, it does not provide for day-to-day monitoring the way the state lottery commission overseas the Arkansas Scholarship Lottery (see # 9); (3) it does not adequately inform the voters, particularly in Pope County, which is a "dry" county, that the amendment effectively hijacks state liquor laws as they apply to casinos (see # 22); (4) it omits an explanation of the role of "sports betting" at the casinos (see # 3). While it is true that not every term need be defined, important terms must be or the measure will be struck from the ballot. Wilson v. Martin , 2016 Ark. 334, 500 S.W.3d 160. Sports betting is just such a term. It is not a traditional casino offering like blackjack, craps, or slot machines-it creates a legal book-making operation in four locations in this state where a gambler can bet, certainly on the Razorbacks, and possibly even on the local high school game. The Supreme Court's decision in Murphy v. National Collegiate Athletic Ass'n , --- U.S. ----, 138 S.Ct. 1461 [200 L.Ed.2d 854] (May 14, 2018) makes it very clear that sports betting is exclusively a matter of state law, and if Issue No. 4 passes, unimpeded sports betting will be the law in Arkansas. "Ballot titles must include an impartial summary of the proposed amendment that will give voters a fair understanding of the issues presented and of the scope and significance of the proposed changes in the law." Parker v. Priest , 326 Ark. 123, 129, 930 S.W.2d 322, 325 (1996). The ballot title in the case before us fails to meet this standard. I respectfully dissent. ADDENDUM (1) The ballot title is misleading in stating that the Commission is "required" to issue four casino licenses "being subject to" laws to be enacted by the legislature and to regulations issued by the Arkansas Racing Commission. (2) Of the eleven definitions contained in § 2 of the Amendment's text, only two (casino gaming and net casino gaming receipts) are revealed, albeit partially, in the ballot title. (3) The ballot title's reference to the definition of "casino gaming" is incomplete and misleading. (4) In partially reciting the definition of "net casino gaming receipts," the ballot title omits the word "gross" from the Amendment's definition in the text. (5) The ballot title uses the term "liquor" instead of the defined term "intoxicating liquor" as found in the Amendment's text, and no explanation is given for "liquor." (6) The ballot title uses the term "licensed Arkansas wholesaler" instead of the defined term "wholesaler" as found in the Amendment's text, and the ballot title does not explain what is meant by "licensed Arkansas wholesaler." (7) The Amendment's defined term "Franchise holder" is not revealed in the ballot title and the ballot title does not reveal that the Amendment would change Arkansas law by allowing the Franchise holders to be an individual, partnership, association, trust or other entity, instead of restricting a Franchise holder to being a corporation as provided by existing law. (8) The ballot title fails to reveal that the Amendment's § 3(c) directs the legislature to enact laws and appropriate monies to fulfill the purposes of this Amendment. (9) The ballot title fails to reveal that the Arkansas Racing Commission, while authorized to regulate casino licenses, is not authorized by the Amendment to regulate all casino operations. (10) The ballot title fails to reveal the content of the Amendment's § 4(b) and 4(d) through (h), which set out numerous material provisions such as the thirteen subjects for the Arkansas Racing Commission's rulemaking; the requirements for casino license applications; and the requirements to qualify as a casino licensee. (11) The Amendment's § 4(j) "requires the Commission to issue a license to the "Franchise holder" in Crittenden and Garland Counties (with the designation "there being only one"), but § 4(j) does not name Southland Racing Corporation and Oaklawn Jockey Club, Inc. as the Franchise holders. By contrast, the ballot title identifies the two entities by name, but does not explain that they are Franchise holders. (12) The ballot title states that "Southland and Oaklawn do not have to apply for a license" but the ballot title does not reveal that those corporations are not considered "applicants" and that the Amendment fails to impose on those corporations any requirements to obtain a license, other than qualifying as a Franchise holder. Also, the ballot title does not reveal if those corporations will be subject to, or exempt from, the rules adopted by the Arkansas Racing Commission, or, if the rules are applicable, whether such corporations could have their casino licenses suspended or terminated as provided in the Amendment's § 4(e)(8). (13) The ballot title does not reveal that Southland Racing Corporation and Oaklawn Jockey Club, Inc., pursuant to the Amendment's § 4(e)(12), could transfer its casino license to any party who has casino gaming experience, even if the party to whom the transfer is made is not a Franchise holder that operates a race track. (14) The ballot title states that Southland Racing Corporation and Oaklawn Jockey Club, Inc. are to be granted casino licenses "upon the Commission adopting rules and regulations to govern casino gaming." However, the Amendment's § 4(j)(1) and (2) conditions the license issuance on both adoption of the rules and upon "initial laws and appropriations required by this Amendment being in full force and effect." (15) The ballot title says that licenses will be granted for a casino to be located within two miles of Russellville and within two miles of Pine Bluff, but the Amendment's § 4 (k) refers to the casinos being located within 2 miles of the city limits of the county seats in Pope and Jefferson counties. Thus, the ballot title communicates to the voters an assumption that the county seats of Pope and Jefferson Counties will always be Russellville and Pine Bluff. (16) The ballot title fails to reveal that under the Amendment, so long as the racing Franchise holder continues to be one, then it would possess, by operation of the amendment, a casino license and have to offer casino gaming in perpetuity whether it wanted to or not, or whether it had the financial ability to do so. (17) The ballot title fails to disclose that one entity may not hold more than one casino license, but affiliates of a licensee are not barred from holding another license, pursuant to the Amendment's § 4(p). (18) The ballot title fails to disclose that a casino license has a duration of ten years unless renewed by the Arkansas Racing Commission and also fails to disclose if the licenses originally granted "automatically" are to be "automatically" renewed every ten years. (19) The ballot title fails to disclose the provisions in the Amendment's § 4(r)(1) through (4) that impose on the Arkansas Racing Commission and the Department of Human Services obligations to conduct and fund compulsive gambling disorder treatment and educational programs. (20) The ballot title fails to disclose the provisions in the Amendment's § 5(d) pertaining to how and when the State Treasurer will transfer the 17.5% of revenues derived by the taxes levied under the Amendment to the Arkansas Racing Commission to be distributed to the Franchise holders to fund racing purses. More importantly, both the Amendment's text and ballot title fail to address the allocation and use of the 17.5% of revenues derived from taxes levied under the Amendment if one or both Franchise holders were to no longer offer horse or dog racing and thus cease to exist as Franchise holders. (21) The ballot title fails to disclose the provisions in the Amendment's § 6(a) through (f), entitled "Contribution to purses and promotion of Arkansas thoroughbred and greyhound breeding activities." The ballot title thus fails to reveal the impact of the Amendment on the use of net gaming receipts on purses and capital improvements at the race tracks and on activities of the Arkansas Racing Commission. Additionally, the ballot title fails to reveal that the racing Franchise holders could offer casino gaming even if no longer offering horse and dog racing. In that event, the set aside and allocation by Franchise holders of specified net casino gaming receipts to fund racing purses, capital improvements and certain breeding and other activities of the Arkansas Racing Commission would have no application. (22) The ballot title fails to disclose the provisions in the Amendment's § 7(b) that casino licensees shall not be subject to Ark. Code Ann. § 3-3-211, which prohibits the sale of intoxicating liquor on Christmas Day, and that Arkansas laws involving the distribution and sale of intoxicating liquor shall not apply to casino licensees if those laws conflict with the Amendment. (23) The ballot title fails to disclose the provisions in the Amendment's § 9(b) to the effect that this Amendment does not amend, repeal or affect the constitutional provisions authorizing lotteries and raffles or creating a lottery and the statutes permitting electronic games of skill. (24) The ballot title inadequately describes the provisions in the Amendment's § 10 dealing with "Inconsistent provisions inapplicable."

PHILLIP T. WHITEAKER, Judge John and Darlene McGraw appeal a Newton County Circuit Court order granting Richard Crowden, Jr., and Jane Crowden a road across their property. We reverse the circuit court's order without reaching the merits of the McGraws' claims, because the circuit court lacked the jurisdiction to enter it. The underlying facts are not in dispute. The Crowdens own certain real property in Newton County, Arkansas. The Crowden property is bounded on three sides by the Ozark National Forest. The remaining side abuts property owned by the McGraws. Claiming their property was landlocked, the Crowdens initially filed suit in the Newton County Circuit Court seeking a prescriptive easement for an access road across the McGraw property. The circuit court denied this claim, and the Crowdens did not appeal that decision. Instead, the Crowdens filed an action for a private road. Pursuant to Arkansas Code Annotated sections 27-66-401 et seq., the Crowdens filed their claim for a private road in the county court of Newton County. The McGraws were served and filed their answer. The county court took no action whatsoever on the claim because the parties agreed to have the matter heard by the Newton County Circuit Court. The Crowdens filed a notice of appeal to the Newton County Circuit Court and requested that the matter be assigned to Judge Gordon Webb. On August 16, 2017, the Newton County Circuit Court entered a judgment in favor of the Crowdens. The McGraws appeal the circuit court's order, claiming four separate errors. We cannot reach the merits of the McGraws' claims because the circuit court was without jurisdiction to entertain the petition. Article 7, section 28 of the Arkansas Constitution taken together with Arkansas Code Annotated sections 27-66-401 to -404 gives the county court the power of eminent domain to allow access to landlocked tracts. Yates v. Sturgis , 311 Ark. 618, 621, 846 S.W.2d 633, 634 (1993). Pursuant to Arkansas Code Annotated section 27-66-401(a)(1), a landlocked property owner must seek relief in the county court. If the county court determines that the circuit court has jurisdiction over the matter, the county court may stay the proceedings or dismiss the case without prejudice to be refiled within one year of dismissal. Ark. Code Ann. § 27-66-402(a)(2). Here, the Crowdens sought relief in the county court pursuant to Arkansas Code Annotated section 27-66-401(a)(1). The county court, however, never ruled on their claim, nor did it issue a stay or dismiss the proceedings pursuant to Arkansas Code Annotated section 27-66-402(a)(2). Instead, the parties attempted to invoke the circuit court's appellate jurisdiction by filing a notice of appeal in the Newton County Circuit Court. Arkansas Code Annotated section 27-66-403(b)(1) states that "[e]ither party may appeal to the circuit court from the final order or judgment of the county court within thirty (30) days from the entry of the order and not thereafter." Upon proper appeal, the circuit court conducts a de novo review of the county court's action. Ark. Code Ann. § 27-66-403(b)(2). The circuit court's jurisdiction, however, is appellate, not original. Here, the county court never entered a final order or judgment. Because no action was ever taken by the county court, there was no final order or judgment from which an appeal could have been taken. Thus, the circuit court's assumption of appellate jurisdiction in this matter was clearly inappropriate. It is well settled that the parties to an action may not confer subject-matter jurisdiction on a court. City of Little Rock v. Circuit Court of Pulaski Cty. , 2017 Ark. 219, 521 S.W.3d 113 ; Vanderpool v. Fid. & Cas. Ins. Co. , 327 Ark. 407, 939 S.W.2d 280 (1997). A court that acts without subject-matter jurisdiction or in excess of its jurisdiction produces a result that is void and cannot be enforced. Jonesboro Healthcare Ctr., LLC v. Eaton-Moery Envtl. Servs.,Inc. , 2011 Ark. 501, 385 S.W.3d 797. Moreover, when a circuit court lacks jurisdiction, we do not acquire jurisdiction on appeal. City of N. Little Rock v. Pfeifer , 2017 Ark. 113, at 4, 515 S.W.3d 593, 596 ; Barrows v. City of Fort Smith , 2010 Ark. 73, 360 S.W.3d 117 ; Vanderpool, supra. Based on our determination that the circuit court lacked jurisdiction to decide the matter, the underlying judgment of the circuit court is void. Accordingly, we vacate the order of the circuit court, dismiss the appeal, and remand to the county court for further proceedings. Appeal dismissed; order vacated; and remanded to county court for further proceedings. Klappenbach and Hixson, JJ., agree. (Supp. 2017). Judge Webb had presided over the previously litigated prescriptive-easement case between the parties. We further note that there is nothing in the record to indicate that original jurisdiction of the circuit court was implicated. The notice of appeal filed in the circuit court did not designate from what order the appeal was being taken.

MIKE MURPHY, Judge Appellant Derrick Hunter appeals from the March 28, 2018 order of the Columbia County Circuit Court terminating his parental rights to his son, J.H. Hunter argues that he was denied due process because (1) he was not provided assistance of counsel until the termination hearing and (2) sufficient evidence did not support the termination. We affirm. On August 19, 2016, the Arkansas Department of Human Services (DHS) exercised an emergency seventy-two-hour hold on newborn J.H. when both J.H. and his mother, Jessica Otwell, tested positive for amphetamines at the time of J.H.'s birth. At the time of removal, Hunter was identified as J.H.'s putative father. He tested negative for drugs at the time, but he admitted using marijuana in the past. It was also discovered that Hunter is a level-three sex offender. In addition, DHS's records revealed that Hunter has a long history with DHS dating back to 2001 when a true finding was made against him for sexual penetration and exploitation of a juvenile. In addition, he had been implicated in five reports to the hotline resulting in two additional true findings for sexual and physical abuse, both against his children from other marriages. A petition for emergency custody was filed on August 25, 2016, and an ex parte order for emergency custody was signed that same day. A probable-cause hearing was conducted on September 2, 2016, and the order entered found that the emergency conditions that necessitated removal of J.H. from his mother's custody continued to exist. Hunter was present at the hearing and was ordered to submit to a DNA test to determine paternity as to J.H. On October 7, 2016, Hunter attended the adjudication hearing, and the circuit court found J.H. dependent-neglected. In addition, it was established that Hunter did not have significant contacts with J.H., and putative-parent rights had not attached. The circuit court reiterated its order for Hunter to submit to DNA testing. A review hearing was held on January 6, 2017, and DNA test results were entered into evidence showing that there was 99.99 percent probability that Hunter is J.H.'s biological father. The circuit court ordered Hunter to "participate in the services outlined in the case plan, including random drug testing, and ... submit to a hair follicle drug screen." Additionally, the circuit court found that Hunter had completed parenting classes and submitted to a psychological evaluation, but he had tested positive for illegal substances. Another review hearing was held on February 17, 2017, and the circuit court found that Hunter was complying with the case plan and court orders and that he had been testing negative for illegal substances. On March 6, 2017, an amended review order was filed pertaining to the review hearing held on January 6, 2017. The order was amended to reflect the addition of Hunter as a defendant and to add language adjudicating Hunter the legal father of J.H. On April 21, 2017, a third review hearing was held. The circuit court found that Hunter was complying with the case plan and ordered him to submit to a psychosexual evaluation. A fourth review hearing was held June 23, 2017, and the circuit court found that Hunter had "violated the Court's previous order restricting [his] visitation to supervised visits only." On October 17, 2017, DHS filed a petition for termination of Hunter's parental rights based on three grounds: "failure to remedy," Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a) (Supp. 2017); "subsequent factors," Ark. Code Ann. § 9-27-341(b)(3)(B)(vii) ; and "aggravated circumstances," Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3) . On December 1, 2017, the circuit court held a permanency-planning hearing and found that Hunter had not made significant, measurable progress. The circuit court held the termination-of-parental-rights hearing on January 19, 2018. After finding that Hunter was indigent and had requested counsel, the court appointed counsel to represent him at the termination hearing. The circuit court terminated Hunter's parental rights based on the aggravated-circumstances ground. Moreover, the circuit court found that it was in J.H.'s best interest to terminate Hunter's parental rights. This timely appeal follows. We review termination-of-parental-rights cases de novo. Dinkins v. Ark. Dep't of Human Servs. , 344 Ark. 207, 40 S.W.3d 286 (2001). At least one statutory ground must exist in addition to a finding that it is in the child's best interest to terminate parental rights; these must be proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341 ; M.T. v. Ark. Dep't of Human Servs. , 58 Ark. App. 302, 952 S.W.2d 177 (1997). Clear and convincing evidence is that degree of proof that will produce in the fact-finder a firm conviction as to the allegation sought to be established. Anderson v. Douglas , 310 Ark. 633, 839 S.W.2d 196 (1992). The appellate inquiry is whether the circuit court's finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. J.T. v. Ark. Dep't of Human Servs. , 329 Ark. 243, 947 S.W.2d 761 (1997). Credibility determinations are left to the fact-finder. McKinney v. Ark. Dep't of Human Servs. , 2018 Ark. App. 325, at 3-4, 551 S.W.3d 412, 415. In this appeal, Hunter first argues that he was denied due process because he was not appointed counsel until the termination-of-parental-rights hearing. However, Hunter failed to raise any due-process argument to the circuit court and we have held that that we will not consider issues raised for the first time on appeal, even constitutional ones. Maxwell v. Ark. Dep't of Human Servs. , 90 Ark. App. 223, 205 S.W.3d 801 (2005). Still, Hunter argues that this shortcoming qualifies as the third exception to the contemporaneous-objection requirement set forth in Wicks v. State , 270 Ark. 781, 606 S.W.2d 366 (1980). The third Wicks exception bestows a duty on the circuit court to intervene, even without an objection, to correct a serious error. Weathers v. Ark. Dep't of Human Servs. , 2014 Ark. App. 142, at 10, 433 S.W.3d 271, 277. We are not convinced. A Wicks exception will not apply absent a flagrant error so egregious that the circuit court should have acted on its own initiative. Id. Admittedly, Hunter was not represented by counsel until the termination hearing. However, the circuit court did not commit error in this regard. Under the juvenile code, Hunter had a right to be represented by counsel at all stages of the proceedings. Ark. Code Ann. § 9-27-316(h)(1)(A). However, the court has a statutory duty to appoint counsel for parents in dependency-neglect proceedings only if (1) the parent from whom custody was removed is (2) indigent and (3) counsel is requested by the parent or custodian. Ark. Code Ann. § 9-27-316(h)(1)(B) ; see also Sills v. Ark. Dep't of Human Servs. , 2018 Ark. App. 9, at 13-14, 538 S.W.3d 249, 257 ; Chaffin v. Ark. Dep't of Human Servs. , 2015 Ark. App. 522, 471 S.W.3d 251. Here, Hunter concedes he was not a parent "from whom custody was removed," because he was not adjudicated a parent until January 6, 2017. The record reflects that the circuit court never denied any request by Hunter for counsel and appointed him counsel as soon as the proper findings were made regarding paternity, indigency, and a request for counsel. Moreover, there is authority for the proposition that any "failure" to appoint counsel at early stages of the dependency-neglect process is harmless if the parent has an attorney before the termination hearing. See id. ; Jefferson v. Ark. Dep't of Human Servs. , 356 Ark. 647, 158 S.W.3d 129 (2004) ; Briscoe v. State , 323 Ark. 4, 912 S.W.2d 425 (1996). Thus, the circuit court did not act in a manner that so flagrantly prejudiced Hunter as to justify our application of the third Wicks exception. Next, Hunter challenges both the ground for termination and the best-interest finding. The termination-of-parental-rights analysis is twofold; it requires the circuit court to find that the parent is unfit and that termination is in the best interest of the child. The first step requires proof of one or more of the nine enumerated statutory grounds for termination. Ark. Code Ann. § 9-27-341(b)(3)(B). The best-interest determination must consider the likelihood that the child will be adopted and the potential harm caused by returning custody of the children to the parent. Ark. Code Ann. § 9-27-341(b)(3)(A). The court, however, does not have to determine that every factor considered be established by clear and convincing evidence. Spencer v. Ark. Dep't of Human Servs. , 2013 Ark. App. 96, at 5-6, 426 S.W.3d 494, 498. Instead, after considering all the factors, the evidence must be clear and convincing that the termination is in the best interest of the child. Id. Hunter asserts that insufficient evidence supported the circuit court's reliance on the statutory ground of "aggravated circumstances" to terminate his parental rights. The aggravated-circumstances ground requires proof that there is little likelihood services to the family will result in successful reunification. Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3) . There must be more than a mere prediction or expectation on the part of the circuit court that reunification services will not result in successful reunification. McLemore v. Ark. Dep't of Human Servs. , 2018 Ark. App. 57, at 12, 540 S.W.3d 730, 737. Here, the record at the termination hearing reflects there was ample evidence to support more than a "mere prediction" that reunification services would not result in successful reunification under the "aggravated-circumstances" ground. At the time of the termination hearing, Hunter, a level-three sex offender, was incarcerated awaiting trial for delivery of a controlled substance. He had a long history with DHS, including two true findings of sexual misconduct and a true finding of physical abuse. He has had a history of substance abuse and failure to follow court orders. Lastly, he lacked credibility as evidenced by the fact that he lied to the circuit court about a drug test in which he first claimed he used his cousin's urine and he would not disclose his cousin's name but then later claimed the urine as his own. Based on these circumstances, the circuit court did not clearly err in finding there was little likelihood that services would result in reunification. Next, in determining the best interest of the child, the circuit court should consider factors such as the likelihood of adoption and the potential harm to the health and safety of a child if subjected to continuing contact with the parent. Ark. Code Ann. § 9-27-341(b)(3)(A)(i), (ii). Parental rights will not be enforced to the detriment of the health and well-being of the child. Christian-Holderfield v. Ark. Dep't of Human Servs. , 2011 Ark. App. 534, at 7-8, 378 S.W.3d 916, 920. The court is not required to find that actual harm would result or to affirmatively identify a potential harm. Jones v. Ark. Dep't of Human Servs. , 2017 Ark. App. 125, at 11-12, 515 S.W.3d 151, 158. Furthermore, the supreme court has directed that the potential-harm analysis be conducted in broad terms. Id. Hunter challenges the circuit court's best-interest finding but does not specifically contest either the adoptability prong or the potential-harm prong of the best-interest analysis. Rather, he argues that he made measurable progress toward remedying the situation and that he is being punished for a conviction that occurred when he was a teenager. However, when an appellant fails to make a specific argument in his or her brief regarding the factors outlined in the termination statute, this court will consider any argument pertaining to those factors abandoned on appeal. See Thomas v. Ark. Dep't of Human Servs. , 2018 Ark. App. 355, at 9-10, 553 S.W.3d 175, 179-80 ; Benedict v. Ark. Dep't of Human Servs. , 96 Ark. App. 395, 409, 242 S.W.3d 305, 316 (2006). We therefore affirm on this point as well. Affirmed. Abramson and Gladwin, JJ., agree. Otwell's one-year-old son C.O. was also removed from her custody, but neither C.O. nor Jessica is a party to this appeal.

JOSEPHINE LINKER HART, Justice Mo Shay was convicted in a bench trial of possession of methamphetamine. Shay was sentenced to six years' probation and fined $2000. On appeal, he argues that the circuit court erred by denying his motion to suppress because the arresting officer lacked reasonable suspicion to search him for weapons and lacked probable cause or reasonable suspicion to search his wallet. Regarding the latter point, Shay further argues that he did not consent to the search of his wallet. This case was originally filed in the court of appeals, which reversed and remanded. Shay v. State , 2018 Ark. App. 101, 542 S.W.3d 885. We granted the State's petition for review. When we grant a petition to review a decision of the court of appeals, we treat the matter as if the appeal had been originally filed in this court. Arms v. State , 2015 Ark. 364, 471 S.W.3d 637. Shay was arrested and charged with possession of methamphetamine after Corporal Kenneth Kennedy of the Clarksville Police Department discovered the drug in Shay's wallet. Shay filed a motion to suppress asserting that Corporal Kennedy did not have reasonable, articulable suspicion that Shay was presently armed and dangerous and represented a threat to the officer or others, so the pat-down search violated Rule 3.4 of the Arkansas Rules of Criminal Procedure. Shay also argued that Corporal Kennedy had no probable cause to search his wallet. Corporal Kennedy was wearing a video camera over his right ear during his encounter with Shay. At the trial, the video of the incident was presented during Corporal Kennedy's testimony. Corporal Kennedy testified that he had fifteen years' experience in law enforcement. Early in the morning July 27, 2016, he was patrolling Cline Park after making a drug-related arrest there an hour earlier. Corporal Kennedy described the park as a "medium high" crime area. At 4:59 a.m., he discovered a parked car. According to Corporal Kennedy, Clarksville city ordinance dictated that the park was closed at this time. Corporal Kennedy stopped his patrol vehicle near the parked car and walked up to the driver's side. He shined a light in the window and observed Shay and a female companion, Faith Rolle. Shay was sitting in the front passenger seat, and Rolle was sitting behind the driver's seat. Corporal Kennedy recalled that both occupants of the car were nervous, and he specifically ordered Shay to keep his hands where he could see them. Corporal Kennedy asked Shay and Rolle for identification and both denied having any. They both gave him their names and dates of birth, and he reported them to his dispatcher to check for outstanding warrants. There were none. Corporal Kennedy admitted that he knew Shay from previous encounters when Shay was intoxicated. Because neither occupant of the car claimed to have a driver's license, Corporal Kennedy told them that he would not allow them to drive the car out of the park. Rolle said she lived close by and intended to just walk home. Corporal Kennedy informed Rolle that he would first check her for weapons. His non-invasive "frisk," included ordering Rolle to "shake her bra." Although Rolle claimed to not know her address, he did get an address from a paycheck stub that he found in the car. He then turned his attention to Shay. According to Corporal Kennedy, Shay was acting nervous, fidgeting and repeatedly reaching for his pockets. When he patted down Shay, he felt a wallet. Shay handed him the wallet, and he immediately opened it to "see if there was identification in it" but also because perpetrators "store drugs-small packets of drugs in their wallet." According to Corporal Kennedy, when he opened the wallet, he noticed an I.D. "in the very first pleat of it, the plastic." He claimed he could not read the I.D. because of how the plastic framed it, so he slid the I.D. out to "verify that's who he was" and he observed "a small, brown bag of methamphetamine-what I believed to be methamphetamine." At that point, he decided to arrest Shay. Footage from Corporal Kennedy's video camera did not capture a visual record of how the wallet came into the officer's possession, that is, whether Shay actually handed the wallet to him. Audio of the encounter, however, was recorded. After Corporal Kennedy inquired, "What's that?" he acknowledged that it was a wallet saying, "Oh! There's probably some I.D. in there." Corporal Kennedy then verbally indicated that he was searching the wallet when the contraband was discovered. The discovery of the wallet occurred while Corporal Kennedy was frisking Shay for weapons. The recording indicated that Corporal Kennedy knew that the wallet was exactly that, a wallet. Significantly, the audio proved that Corporal Kennedy did not ask Shay for permission to search his wallet and that Shay did not voice his consent to allow the wallet to be searched. On cross-examination, Corporal Kennedy admitted that he searched the wallet to see if it contained an I.D. because Shay claimed he did not have one. Corporal Kennedy conceded that it was not a violation of the law to not produce an I.D. He also confirmed that he was patting Shay down only for his "safety." Aside from Shay moving his hands over his thighs and pockets and otherwise appearing "nervous," Corporal Kennedy could articulate no reason why he suspected that Shay might have been armed. The circuit court denied Shay's motion to suppress. It found that when Corporal Kennedy felt the wallet, "the officer knew that it was not anything that would affect his safety. Nonetheless, Corporal Kennedy had "articulable suspicion, cloudy circumstances." However, the circuit court also found that when Shay "pulled out" his wallet and handed it to Corporal Kennedy, he "meant for the officer to have it." Further, the circuit court found that "I'm not critical of opening the wallet and checking of I.D." After the circuit court denied Shay's motion to suppress, the parties stipulated that the Arkansas State Crime Lab determined that the substance seized from Shay's wallet was methamphetamine and that Shay possessed it. The case was then submitted on these stipulated facts and the circuit court found Shay guilty of possession of methamphetamine. Shay now appeals. The Fourth Amendment to the United States Constitution protects an individual from unreasonable searches and seizures. In reviewing a circuit court's denial of a motion to suppress evidence, we conduct a de novo review based on the totality of the circumstances, reviewing findings of historical fact for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the circuit court. Pickle v. State , 2015 Ark. 286, 466 S.W.3d 410. The touchstone principle in any Fourth Amendment analysis is reasonableness. State v. Robinson , 2013 Ark. 425, 430 S.W.3d 105. Shay first argues that Corporal Kennedy violated Arkansas Rule of Criminal Procedure 3.4 because he did not have reasonable suspicion to search him for weapons. Shay contends that the circuit court erred in relying on Davis v. State , 351 Ark. 406, 94 S.W.3d 892 (2003), because the facts in his case are radically different. The State contends that we should look to Potter v. State , 342 Ark. 621, 30 S.W.3d 701 (2000), for guidance. In our totality-of-the circumstances review, we hold that the pat-down search did not violate Shay's constitutional rights. The Potter court noted that although this court has promulgated separate criminal procedure rules, the purpose of Rules 3.1 and 3.4 was to give effect to the holding in Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The Supreme Court's holding is clear, We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken. Terry , 392 U.S. at 30-31, 88 S.Ct. 1868. In Potter we noted the interplay between Rules 3.1 and 3.4 ; a pat-down search for weapons depends on the validity of the Rule 3.1 investigatory detention. The logic of this rationale is patent; if a suspect is already lawfully seized pursuant to a valid investigatory stop, the minimal additional intrusion of a pat-down search of the suspect's outer clothing is reasonable given the compelling State interest in the safety of law-enforcement officers doing their jobs. Such was the situation in the case before us. Shay does not dispute that Corporal Kennedy had reasonable suspicion to investigate the presence of his car in a closed city park during the early morning hours. The park was known to Corporal Kennedy as a "medium to high" crime area-indeed, he had made a narcotics arrest in the vicinity just an hour before he encountered Shay. Upon making contact with Shay, Corporal Kennedy made reasonable inquiries and Shay's responses did not "dispel" his reasonable fear for his safety. The responses of Shay and his companion Rolle were evasive, if not completely untruthful. While Shay was in his car, he failed to comply with Corporal Kennedy's orders to keep his hands in sight. Shay appeared to be extremely nervous and repeatedly felt for his pockets. When neither Shay nor Rolle could produce a driver's license, driving the car from the park was not an option, and Corporal Kennedy was compelled to have the occupants leave the car. Only then did he undertake a pat-down search for his safety. Thus, under the totality of the circumstances, the pat-down search was reasonable under the Fourth Amendment. Shay next argues that even if we were to hold that the pat-down search was constitutionally permissible, the search of his wallet by Corporal Kennedy exceeded the scope of the search allowed by Arkansas Rule of Criminal Procedure 3.4, which provides in pertinent part that "in no event shall this search [for weapons] be more extensive than is reasonably necessary to ensure the safety of the officer or others." Shay further asserts that Corporal Kennedy lacked probable cause to open his wallet and search the contents. He also rejects the idea that he consented to the search because the record is devoid of the proof required by Arkansas Rule of Criminal Procedure 11.1(b). Rule 11.1(b) states: "The state has the burden of proving by clear and positive evidence that consent to a search was freely and voluntarily given and that there was no actual or implied duress or coercion." Shay's arguments are compelling. The scope of the pat-down search authorized by Rule 3.4 is limited to a person's "outer clothing." Corporal Kennedy admitted that he knew he felt a wallet during the pat-down, so further investigation was not permissible. Additionally, Corporal Kennedy conceded at trial that it was not a crime for Shay to not provide him with an identification card. Probable cause is defined as facts or circumstances within a police officer's knowledge that are sufficient to permit a person of reasonable caution to believe that an offense has been committed by the person suspected. Laime v. State , 347 Ark. 142, 60 S.W.3d 464 (2001). Accordingly, Corporal Kennedy did not have probable cause to search Shay's wallet for the identification card. Finally, it is not disputed that Corporal Kennedy failed to ask Shay to consent to the search of his wallet and that Shay did not verbally authorize him to look inside. Thus, the State's proof falls short of what is required by Rule 11.1(b). Accordingly, we hold that the search of Shay's wallet violated the Fourth Amendment. We therefore reverse and remand this case for further proceedings consistent with this opinion. Reversed and remanded; court of appeals opinion vacated. Goodson, J., concurs. Wood and Womack, JJ., dissent. I agree that Corporal Kennedy did not have probable cause to search Shay's wallet, and I fully join the majority's decision to reverse and remand this case. I write separately to emphasize my view that the circuit court never made a finding that Shay consented to the search of his wallet. The circuit court's finding that Shay voluntarily gave Kennedy his wallet after an initial pat-down search is not a finding that Shay consented to a search of the wallet's contents. Kennedy performed an initial pat-down search, which was permissible under Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and Arkansas Rule of Criminal Procedure 3.4. Kennedy discovered Shay's wallet during this initial search, and the circuit court found that Shay then voluntarily gave Kennedy the wallet. The circuit court found that when Shay handed Kennedy his wallet, "he meant for him to have it." Rule 3.4 provides for a limited search of the "outer clothing" and immediate surroundings of an individual when the officer reasonably suspects that a person detained is armed and dangerous. However, this search cannot "be more extensive than is reasonably necessary to ensure the safety of the officer or others." Thus, Rule 3.4 contemplates that anything beyond what is required to ensure officer safety constitutes an additional search. In this instance, Kennedy conducted an initial pat-down search of Shay's person and then a second, more extensive search of the contents of the wallet. The circuit court recognized that "this is not a 3.4 issue" and concluded that "based on the circumstances, [Kennedy] had reason." I do not believe that the circuit court's ruling that Shay voluntarily surrendered his wallet can be construed as a finding that Shay consented to the additional and more extensive search of the contents of his wallet. I concur. It is the general practice of this court to accord deference to the factual findings of circuit courts, and in few areas is that deference more warranted than in determinations of witness credibility. As the majority confirms, the nontestimonial evidence in this case does not provide much insight at all into the crucial question of whether Shay consented to a search of his wallet. Arkansas Rule of Criminal Procedure 11.1 (2016) states that "an officer may conduct searches and make seizures without a search warrant or other color of authority if consent is given to the search." While the State has the burden of providing "clear and positive evidence that consent to a search was freely and voluntarily given," id. , the questions of consent and voluntariness are factual in nature and are necessarily only resolved based on the factual record developed at the circuit court. See, e.g. , Webb v. State , 2011 Ark. 430, 385 S.W.3d 152. As such, we review this determination for clear error. The only evidence directly on the point of consent is the testimony of the police officer that Shay voluntarily handed over his wallet after it had been discovered in the initial search that the majority concedes was permissible under Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). At the suppression hearing, Shay did not offer testimony contradicting the police officer's description of events, and no party offered testimony describing any limits placed on the scope of a search of the wallet. The majority appears to rely on the fact that the police officer "failed to ask Shay to consent to the search of his wallet and that Shay did not verbally authorize him to look inside." Consent to search, however, need not be express or verbal; it can be "fairly inferred from context." Birchfield v. North Dakota , --- U.S. ----, 136 S.Ct. 2160, 2185, 195 L.Ed.2d 560 (2016). The circuit court weighed the officer's testimony, determined that it was not contradicted by the video evidence, and concluded that it "assume[d] when [Shay] pulled [the wallet] out it was for the officer to have it." This ruling might not be the model of clarity, but there is simply nothing in the record to support an appellate court finding of clear error in the circuit court's factual determination of consent made after weighing witness credibility. I respectfully dissent.

KAREN R. BAKER, Associate Justice Petitioner Androus Hall brings this petition to reinvest jurisdiction in the trial court so that he may file a petition for writ of error coram nobis in his criminal case. In the petition, Hall contends that there were defects in both the trial and the appellate processes, and the evidence was insufficient to sustain the judgment. Because Hall does not state a ground for the writ, the petition is denied. I. Nature of the Writ The petition for leave to proceed in the trial court is necessary because the trial court can entertain a petition for writ of error coram nobis after a judgment has been affirmed on appeal only after we grant permission. Newman v. State , 2009 Ark. 539, 354 S.W.3d 61. A writ of error coram nobis is an extraordinarily rare remedy. State v. Larimore , 341 Ark. 397, 17 S.W.3d 87 (2000). Coram nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Green v. State , 2016 Ark. 386, 502 S.W.3d 524. The function of the writ is to secure relief from a judgment rendered while there existed some fact that would have prevented its rendition had it been known to the trial court and which, through no negligence or fault of the defendant, was not brought forward before rendition of the judgment. Newman , 2009 Ark. 539, 354 S.W.3d 61. The petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the record. Roberts v. State , 2013 Ark. 56, 425 S.W.3d 771. II. Grounds for the Writ The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. Id. A writ of error coram nobis is available for addressing certain errors that are found in one of four categories: (1) insanity at the time of trial, (2) a coerced guilty plea, (3) material evidence withheld by the prosecutor, or (4) a third-party confession to the crime during the time between conviction and appeal. Howard v. State , 2012 Ark. 177, 403 S.W.3d 38. III. Background In 1997, a jury found Hall guilty of aggravated robbery, first-degree battery, and attempted rape. An aggregate sentence of 576 months' imprisonment was imposed. The Arkansas Court of Appeals affirmed. Hall v. State , CR-97-1344 (Ark. App. Nov. 18, 1998) (unpublished). IV. Claims of Error at Trial and on Direct Appeal Hall argues that the trial court and the Arkansas Court of Appeals made errors that amount to a breakdown in both the trial and the direct-appeal proceedings. We need not list the errors alleged by Hall because error by the trial court or the appellate court is not a ground to grant a writ of error coram nobis. Errors that occurred at trial could have been addressed at trial. Accordingly, assertions of trial error that were raised at trial, or which could have been raised at trial, are not within the purview of a coram nobis proceeding. Howard , 2012 Ark. 177, 403 S.W.3d 38. Such claims are not within the scope of the limited grounds on which the writ may issue, and a coram nobis action does not provide the petitioner with a means to retry his or her case. Carner v. State , 2018 Ark. 20, 535 S.W.3d 634. Likewise, any errors that occurred on direct appeal could have been addressed before the mandate of the appellate court was issued in a petition for rehearing and petition for review. We have held that a coram nobis proceeding is not a means to challenge the review conducted by the appellate court on direct appeal. Id. (holding that the petitioner in a coram nobis proceeding was not entitled to issuance of the writ based on claims of error by the court of appeals inasmuch as he could have filed a petition for rehearing or review in accordance with Arkansas Supreme Court Rules 2-3 and 2-4 (2017) before the mandate of the court of appeals was issued). V. Sufficiency of the Evidence Hall contends that the writ should issue because there was no DNA evidence presented at trial and there was no fingerprint evidence tying him to the offenses of which he was convicted. The assertions of insufficient evidence to sustain the judgment do not state a basis for granting a coram nobis petition. An attack on the sufficiency of the evidence constitutes a direct attack on the judgment and is not within the purview of a coram nobis proceeding. Grady v. State , 2017 Ark. 245, 525 S.W.3d 1. Allegations that the evidence presented at trial was not sufficient to support a finding of the defendant's guilt are issues to be addressed at trial and, when appropriate, on the record on direct appeal. Jackson v. State , 2017 Ark. 195, 520 S.W.3d 242. Petition denied. Hart, J., concurs. I concur with the disposition reached by the majority, insofar as Hall's claims do not sound in error coram nobis. The writ of error coram nobis exists to address allegations regarding facts extrinsic to the record, and there is no such allegation at issue here. However, there does appear to have been a breakdown in the appellate process in this case. Hall has never received appellate review of his 1997 convictions out of Phillips County, something to which he has a constitutional right, for reasons that appear to be in no way attributable to Hall. While error coram nobis may not be suited to remedy this breakdown in the appellate process, the actual claims Hall attempted to raise in the appeal he sought from the 1997 convictions (to the effect that he was improperly sentenced on overlapping and duplicative charges), if meritorious, could still potentially be cognizable now in a habeas corpus proceeding or an action to correct an illegal sentence. Even so, there is nothing attached to Hall's petition, not even his confinement order, from which we could even assess such a claim at this juncture. Accordingly, his petition is properly denied. Hall also alleges in his petition, without further explanation, that "newly discovered evidence" exists. Generally, newly discovered evidence, in itself, is not a ground for the writ. Munnerlyn v. State , 2018 Ark. 161, 545 S.W.3d 207 ; see also Larimore v. State , 327 Ark. 271, 938 S.W.2d 818 (1997). Hall's conclusory statement that there is newly discovered evidence does not warrant relief.

ROBERT J. GLADWIN, Judge In this appeal of the termination of his parental rights, Duane Ewasiuk argues that the trial court relied on insufficient evidence. We affirm. I. Facts and Procedural History In early September 2015, the Arkansas Department of Human Services (DHS) took custody of J.E. (born December 4, 2010) and K.E. (born June 5, 2014) because their mother, Elizabeth Ewasiuk, had left their nine-year-old half brother in a hotel room without food or supervision, and Elizabeth could not be found. J.E. and K.E. had been left with a friend during that time. Elizabeth admitted using methamphetamine but refused to be drug tested, and her parental rights were eventually terminated. Duane's drug screen was negative. Duane and Elizabeth were separated when the children were taken into DHS custody, and Duane was living at a separate residence and working out of town Monday through Friday. Based on these facts, DHS filed a petition for emergency custody alleging that the children were dependent-neglected due to neglect or parental unfitness. An ex parte order granting custody to DHS was filed, and a probable-cause hearing was set in the Johnson County Circuit Court. The resulting probable-cause order continued custody with DHS; awarded Duane supervised visitation contingent on drug screening; and ordered Duane to obtain and maintain stable housing and employment. The children were adjudicated dependent-neglected on November 3, 2015. The trial court found that the children were at substantial risk of serious harm based on neglect because of inadequate supervision due to their mother's drug use. The children remained in DHS custody for their protection, and the goal of the case was reunification. The orders pertaining to Duane remained unchanged. The case was reviewed in January 2016, and it was found to be in the children's best interest to remain in DHS custody, and the goal of the case remained reunification. The trial court found that DHS had made reasonable efforts to provide services to achieve the goal. There were no specific findings related to Duane, and his orders remained the same with the added requirement that he submit to a drug-and-alcohol assessment and complete all its recommendations. In its review order from the April 19, 2016 hearing, no findings were made related to Duane, but the trial court ordered that he submit to, and successfully complete, outpatient drug treatment. The permanency-planning order was filed on July 27, 2016, and the goal of the case was changed to adoption. No findings were listed regarding either parents' compliance with the case plan. Duane's orders remained unchanged. DHS filed a termination-of-parental-rights (TPR) petition on September 6, 2016, and alleged that, subsequent to the filing of the original petition, other factors arose that demonstrated that returning the children to their parents' custody would be contrary to their health and safety and that the parents had manifested the incapacity or indifference to remedy the subsequent issues. See Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a) (Repl. 2015). DHS alleged that Duane did not have stable housing; had not submitted to any random drug screens; had not attended outpatient drug treatment as ordered; had six positive drug screens during the case; had been jailed during the case for failure to pay fines; and had not visited the children on a regular basis. DHS claimed that it was in the children's best interest that its petition be granted. After a hearing on November 15, 2016, the trial court filed an order denying DHS's petition for termination of Duane's parental rights. The court specifically found: [DHS] has not proven by clear and convincing evidence that termination of the father's parental rights is in the best interests of the children. The children have a significant bond with the father. He is visiting regularly and the visits are going well. The father needs to complete only one outpatient drug abuse treatment session in order to complete the treatment. He last tested positive during the summer. While he did drink beer and had to restart the treatment in August, he is now nearing completion of the treatment without further issues. He is presently employed and has housing available. The Court is aware that most of the father's progress occurred after the permanency planning hearing and that the father remains legally married (albeit separated) to the mother whose rights have been terminated. However, the evidence presented regarding the bond between the father and the children, his maintaining this bond by visiting regularly, along with his impending completion of outpatient drug treatment leads the Court to the conclusion that clear and convincing evidence has not been presented that termination is in the best interests of the children. It remains in the best interests of the children to remain in the custody of [DHS] and that the goal be returned to reunification with the father. A permanency-planning order followed a February 2017 hearing, and the goal of reunification was ordered because Duane had been complying with the case plan and orders and had made significant measurable progress toward reunification. Duane was subject to the court's original orders that he submit to random drug screens and obtain and maintain stable housing and employment. In a second permanency-planning order from a May 2, 2017 hearing, the goal of the case was again changed to adoption. There were no specific findings regarding Duane's compliance. DHS filed a petition for TPR on May 19, 2017, alleging that Duane had tested positive for methamphetamine, amphetamines, and THC on April 14, 2017, and this was confirmed by a lab. After confirmation, Duane admitted smoking THC but continued to deny methamphetamine use. DHS alleged that Duane was unemployed at the time of the permanency-planning hearing, had not had stable housing during the case, had not visited the children on a consistent basis, and continued to have contact with Elizabeth. DHS alleged that these facts supported the "other factors" ground for termination. At the TPR hearing held on June 20, 2017, DHS caseworker Mahogany Smith testified that DHS had provided services to Duane in the form of referrals for a drug-and-alcohol assessment, supervised visits, random drug screens, transportation, referrals for outpatient treatment, and home visits. She said that Duane had testified at the previous TPR hearing in November 2016 that he was about to complete outpatient treatment the next day. However, she said that he did not complete it until December 20, 2016. Since that time, DHS had given Duane drug screens, and he tested positive on April 14, 2017, for THC, methamphetamine, and amphetamines. She said that he denied the methamphetamine use, DHS "sent that sample off," and the test was returned positive for all three drugs. She said that Duane told her he had taken a "nitro pill" that a friend had given him, and he had not known that it would cause him to test positive. He also admitted to her that he took "one puff of weed." Smith said that DHS was concerned because Duane admitted having contact with Elizabeth at the May permanency-planning hearing, and the concern was based on the facts that Elizabeth had her parental rights terminated, Duane was still in contact with her, he was not legally divorced from her, and the divorce had been pending since before the first TPR hearing. She said that Duane had an appropriate home in Lamar, but at the last TPR hearing, he was living in Cabot. She also said that Duane's employment was not stable and that he had been working for Townsell Construction, which required him to travel extensively when the case began. He was told that to be "looked at as a placement for these kids to go home to, he needed to get a local job." She said that he got a job, then quit that job to work at the nuclear plant. When that plan failed, he tried to work for Hanes. When that plan failed, he told her he was going to start catching chickens, but she had not verified that job. She said that she had done a home visit on Duane two weeks after the last hearing, and a woman there told her that Duane had gone to work for Townsell Construction again; however, Duane told her that he had worked there for one week. She said that Duane's work situation was unstable and had been throughout the case. She said that the goal for the children was adoption; that it was very likely that they would be adopted; DHS has had children adopted in similar situations; and that DHS felt that it was in the children's best interest to terminate Duane's parental rights. On cross-examination, Smith said that she had been unable to randomly drug screen Duane and that he was screened before every visitation. She said that Duane had been at his present home since January 2017, and it was appropriate. She agreed that Duane had been employed throughout most of the case and that one of the times he had changed employment was at the direction of DHS. She said that Duane was participating in individual therapy with J.E. and that visitation with the children had gone well. She said that before Elizabeth's rights were terminated, Duane had tested positive for drugs and that those positive screens occurred around the time Duane and Elizabeth had been together. She said that this was part of DHS's concern about Duane's having contact with Elizabeth. She said that Elizabeth had not remedied her drug use since her rights had been terminated, that Elizabeth had been arrested on drug charges in May 2017, and Duane tested positive in April 2017, around the time he admitted being around Elizabeth. Kelsey Lewis, a licensed certified social worker, testified that she had been J.E.'s therapist since October 2016. She said that J.E. has severe behavioral problems, including anger outbursts, running off, cussing, and tantrums. She said that J.E. had made progress and was showing less defiance. Lewis said that she had been in a "state of flux" with the case because, even though the hearing was for TPR, Duane had recently been involved with J.E.'s counseling. She said Duane began therapy with J.E. in April 2017 and he was cooperative, open, and pleasant. She said that she had discussed with Duane whether or not it would [be] detrimental to J.E. if [Elizabeth] was reintroduced into the picture and back into her life for any length of time. In that conversation, I had talked about how since she had gone through termination and we had discussed it and we had tried to resolve it and make her okay with it, reintroducing mother to that situation would be very confusing for J.E. and would be difficult for her to understand.... if [Elizabeth is] suddenly reintroduced back into her life, she's not going to have coping skills, she's not going to have been able to get her feelings out there and processed correctly. The following colloquy occurred: ATTORNEY AD LITEM : How did Mr. Ewasiuk relate to you that Ms. Ewasiuk was? Did he tend to idealize her? Did he tend to make her out to be more favorable? What was that scenario? LEWIS : He spoke very highly of J.E.'s mother. Did seem to idolize her a bit. Seemed still smitten with her. Described her as a bit manipulative and able to have a pattern of convincing him to get back to her until the first disagreement and then she would go back to her drug lifestyle and other men.... So, basically, she controlled the extent of their relationship; fair enough. Yes, that he had little assertiveness with her. Lewis also testified that she thought Duane had minimized the reasons that the children were placed in DHS custody. She thought Duane felt that the children were "safe where they were. That they weren't in any harm." She said the bond between Duane and J.E. had been compromised over the past twenty months that J.E. had been in foster care, and she did not know how strong it had been before or if they had a bond before. She said that Duane had been very attentive in therapy and was engaged and responsive when discussing issues. She said that he was appropriate and likeable. She had concerns with Duane's impulsivity and judgment at times, giving as examples his failed drug test, speeding, and cliff diving. She said that Duane had been to the therapy appointments on Fridays since April, and the appointments were in Harrison, which was two hours travel time for him. She said that she thought Duane was still in love with Elizabeth. Duane testified that he was living in Lamar and had been since January. He said that he was working with Mark Mackey in construction and had been, on and off, since December. He then said that he was working for Townsell Construction most recently and that if he was available to work out of town, he could go to work immediately. He said he was aware of one time that Smith had tried to give him a drug screen and he was not home, and he claimed that Smith had not tried to contact him for that purpose. He said that he had been visiting his children regularly and that he had attended six to eight therapy sessions with J.E. Duane said that he had filed for divorce from Elizabeth, but it had not been finalized. He denied having been in contact with Elizabeth, explaining that she had blocked him from Facebook because he "went off on her." He said he had no way of reaching her and that he heard she was not in town. He explained that the last time he saw her was at her brother's house. He said that he drove up, and she was outside. She offered to allow him to talk to her son on the phone, and he did, even though he knew he should not. He said that he did not "talk the rest of the day, and [he] left shortly after." He said that he heard she was with someone else. He denied having any feelings for Elizabeth and stated that he had explained to the therapist how he felt about her when they met and how she was before the drugs. He said he understood that she did not need to be around the children and that he would not allow it if he obtained custody. Duane denied needing additional drug treatment but stated that he would be willing to do it. He admitted that he had failed the drug screen in April and said that he had smoked marijuana and taken a pill without knowing what it was. He denied any drug use since that time. He said that his job situation came down to his citizenship information, he is Canadian, and his Social Security card and permanent-resident card had been stolen from his wallet eight years ago. He added that he thought he could get a job at the Walmart distribution center. He said that his mother could help him with childcare and that he would be willing to continue the drug screens. Duane's sister-in-law, Alishia Evans, testified that she is married to Elizabeth's brother and that she and her husband had known Duane before Elizabeth had. She said she does not have a relationship with Elizabeth but that Elizabeth had been to her house the day before. She stated that she and her husband saw Duane regularly, no less than three times a week. She was not aware of Duane's maintaining a relationship with Elizabeth and had not seen him have any contact with her. She said it had been over a year since Duane and Elizabeth were together as a couple and that Duane did not want anything to do with Elizabeth. The trial court ruled that TPR would be granted, relying heavily on the therapist's unbiased and credible opinion. The trial court stated that the first TPR petition was denied as to Duane; however, seven months later at this hearing, Duane remained married to Elizabeth, whose rights had been terminated, and continued to have contact with her family. The trial court stated, The impression I get from watching and observing the witnesses, including the father, testify, is that he frankly adores the mother. He holds her in a high regard. I think it's my belief, my impression based on watching him, listening to him, that he still holds out hope that the mother will eventually be able to rehab her drug life and return to the person she was before and that he can then continue that relationship. That's the impression. That's the impression I'm getting from watching and observing the father's testimony and hearing what he had to say. I think he still holds out hope that he can reignite that relationship with the mother. He shows up at the brother's place, "Oh, low and behold, there's mom. Well, how about that. What a coincidence." I think he still wants to have contact with her. That's my opinion. I think he's holding out hope. I think he still carries a torch for mom. And with him having and maintaining this relationship with her brother, there's a substantial chance that he will have contact with the mother and that if we return this child to him, the child will then have contact with this mother, whom her counselor has said this would be very detrimental to the child to have such contact. I think the counselor, herself, indicated that she thought dad was, quote smitten, end quote. And that he still holds a torch, so to speak, for mom. I found the counselor's testimony to be very creditable, very persuasive. Like I said, she has no reason to say other than what she honestly believes. So that is a big concern for the Court. The trial court also noted its concern that Duane tested positive for THC, methamphetamine, and amphetamines in April 2017. The TPR order filed June 27, 2017, states that the trial court found that TPR was in the children's best interest, that they would likely be adopted, and that there was potential harm to their health and safety if returned to Duane. The trial court found that "other factors" arose subsequent to the original petition, which included that Duane tested positive for illegal drugs on April 14, 2017, he continued to have contact with Elizabeth, whose parental rights had been terminated, and that reintroduction of Elizabeth into the children's lives would be detrimental to the children. See Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a) . In Duane's appeal of the TPR order, he challenges the sufficiency of the evidence supporting the trial court's conclusions that he was still in love, and desired to be with, the children's mother and that he "continued" to test positive for drugs when he had a single positive drug screen. II. Standard of Review We review TPR cases de novo. Parnell v. Ark. Dep't of Human Servs. , 2017 Ark. App. 688, --- S.W.3d ----. Grounds for TPR must be proved by clear and convincing evidence, which is that degree of proof that will produce in the finder of fact a firm conviction of the allegation sought to be established. Id. The appellate inquiry is whether the trial court's finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. In resolving the clearly erroneous question, we give due regard to the opportunity of the trial court to judge the credibility of witnesses. Id. On appellate review, this court gives a high degree of deference to the trial court, which is in a far superior position to observe the parties before it. Id. TPR is an extreme remedy and in derogation of the natural rights of parents, but parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Id. Pursuant to Ark. Code Ann. § 9-27-341(b)(3), an order forever terminating parental rights shall be based on a finding by clear and convincing evidence that it is in the best interest of the juvenile, including consideration of the likelihood that the juvenile will be adopted if the termination petition is granted and the potential harm, specifically addressing the effect on the health and safety of the child, caused by returning the child to the custody of the parent. Ark. Code Ann. § 9-27-341(b)(3)(A). The order must also find by clear and convincing evidence one or more grounds. Ark. Code Ann. § 9-27-341(b)(3)(B). The purpose of the TPR statute, Ark. Code Ann. § 9-27-341(a)(3), is to provide permanency in a juvenile's life in all instances in which the return of a juvenile to the family home is contrary to the juvenile's health, safety, or welfare, and it appears from the evidence that a return to the family home cannot be accomplished in a reasonable period of time, as viewed from the juvenile's perspective. Even full compliance with the case plan is not determinative; the issue is whether the parent has become a stable, safe parent able to care for his or her child. Camarillo-Cox v. Ark. Dep't of Human Servs. , 360 Ark. 340, 201 S.W.3d 391 (2005) ; Cole v. Ark. Dep't of Human Servs. , 2012 Ark. App. 203, 394 S.W.3d 318 ; Tucker v. Ark. Dep't of Human Servs. , 2011 Ark. App. 430, 389 S.W.3d 1. A parent's past behavior is often a good indicator of future behavior. Stephens v. Ark. Dep't of Human Servs. , 2013 Ark. App. 249, 427 S.W.3d 160. III. Sufficiency of the Evidence Duane does not challenge the trial court's finding that his children are likely to be adopted; however, he denies that he posed a potential risk to their health and safety or that there were any issues that arose subsequent to the children's removal that he failed to remedy so insufficiently that it was contrary to the children's health, safety and welfare to return to his custody. He argues that there is no evidence of record to support the trial court's belief that he continues to hold out hope that Elizabeth will get clean from drugs, that he can continue a romantic relationship with her, and that this continued contact would be detrimental to J.E. Duane contends that because the orders leading to the TPR petition are devoid of findings regarding him, the testimony at the TPR hearing provides the only source of evidence on this issue. He argues that Lewis speculated that he was vulnerable to Elizabeth's influence because he might be "impulsive" and "immature." She based this on his having received a speeding ticket on his way to a therapy session with her and his ankle injury that Lewis believed was a result of his "cliff diving." He contends that Lewis acknowledged that his response was appropriate when she discussed with him the harm it would cause J.E. to be reintroduced to Elizabeth, and she acknowledged that Duane had appropriate judgment regarding J.E. during therapy. Duane points to his own testimony clarifying the contact he had with Elizabeth and his thought about J.E. having contact with her and contends that his testimony was unchallenged and bolstered by his sister-in-law's testimony. He describes the trial court's statement that the divorce had not been finalized, which indicated Duane's lack of urgency, as unfair. He claims that his testimony regarding his contact with Elizabeth proved that he had no relationship with her and that he could not assist with service of the divorce petition because he did not know where she lived. Thus, he argues that there was no evidence that he still loved Elizabeth. Duane argues that while the trial court might not have believed him, even credibility determinations must relate to testimony or evidence regarding material facts. Guthrey v. Ark. Dep't of Human Servs. , 2017 Ark. App. 19, 510 S.W.3d 793 (reversing termination order when circuit court made findings that were not supported by the record or were based on speculation). Duane argues that he denied having any relationship with Elizabeth and that there was zero evidence to the contrary. He claims that the trial court substituted its credibility determination for substantive evidence, which was reversible error. Duane also argues that the trial court did not cite any facts to support its finding that he continued to use drugs even after completion of drug treatment. He contends that the record does not demonstrate that he used drugs frequently or at all, except in the order denying DHS's first motion to terminate his parental rights when the court noted that he tested positive in the summer of 2016. He acknowledges that, after completing drug treatment, he had a single positive test in April 2017. He contends that the trial court's orders do not include findings regarding drug usage and that the caseworker's testimony that he "started" testing positive was inaccurate based on one positive drug screen in April 2017. He argues that his single positive drug screen was isolated, idiosyncratic, and not "continued." He cites Kight v. Arkansas Department of Human Services , 87 Ark. App. 230, 189 S.W.3d 498 (2004), in which this court reversed a TPR order when the evidence was that, notwithstanding a one-time relapse, Kight remained clean and sober for over six months, had maintained full-time employment, and had completed everything that was required of her. Duane further contends that the law does not require "flawless compliance" with court orders or "perfect parent[ing]." Rhine v. Ark. Dep't of Human Servs. , 2011 Ark. App. 649, 386 S.W.3d 577 ; see also Cranford v. Ark. Dep't of Human Servs. , 2011 Ark. App. 211, 378 S.W.3d 851. Duane urges this court to require more from DHS in meeting its burden of proof. He contends that a caseworker's mischaracterizations and failure to produce the proof of her attempts to randomly drug screen him cannot be the basis for termination. See Jefferson v. Ark. Dep't of Human Servs. , 356 Ark. 647, 158 S.W.3d 129 (2004) (TPR is an extreme remedy and in derogation of the natural rights of the parents). DHS contends that Duane's arguments do not warrant reversal of the trial court's order and that clear and convincing evidence supports the "other factors" ground. We agree. The "other factors or issues" ground cited by DHS is found at Arkansas Code Annotated section 9-27-341(b)(3)(B)(vii)(a ) : That other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that placement of the juvenile in the custody of the parent is contrary to the juvenile's health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent's circumstances that prevent the placement of the juvenile in the custody of the parent. Duane's failure to remedy the subsequent factors occurred despite appropriate family services being offered. Further, the evidence supported that Duane lacked urgency to become a parent capable of providing a safe environment for his children's return, when twenty-one months into the case, he had allowed his employment situation to deteriorate to unstable job hopping, he had continued contact with his wife whose parental rights had been terminated, and he had used drugs after completing outpatient treatment. See Del Grosso v. Ark. Dep't of Human Servs. , 2017 Ark. App. 305, 521 S.W.3d 519 (appellant's lack of urgency coupled with other findings supported the trial court's finding that appropriate services had been provided); Howell v. Ark. Dep't of Human Servs. , 2009 Ark. App. 138, at 8, 2009 WL 476076"other factors" ground was relied on by trial court and affirmed, and our court stated that, "[a] stable home is one of a child's most basic needs"). DHS asserts that Duane's employment situation was worse at the termination hearing than it was at the beginning of the case. DHS argues that Duane sat on the problem of his immigration paperwork for years, showing no urgency in finding a remedy. Further, DHS claims that the evidence supported that Duane remained enamored with Elizabeth. The caseworker's testimony indicated this; the parties remained married at the time of the TPR hearing; and there was a link between Duane's contact with Elizabeth and his drug usage. The caseworker testified: Last year before a termination on Elizabeth, there had been some positive drug screens from [Duane]. Those positive drug screens occurred around the time they were together. That's part of [DHS's] concern with [Duane] having contact with Elizabeth. At the time that the court terminated on [Elizabeth], she had not remedied her drug issue. She was recently arrested on drug charges. That was May of 2017. And [Duane's] positive drug screen in April, was around the time he admitted to being around [Elizabeth]. Lewis testified that continued contact with Elizabeth could be detrimental to J.E. Further, she stated that Duane seemed "smitten" with Elizabeth and had described her as manipulative and able to convince him to get back with her. Elizabeth's sister-in-law testified that she and her husband, Elizabeth's brother, were good friends with Duane and regularly saw him. Duane testified that he had encountered Elizabeth at her brother's house, and although he could have turned around, he chose to drive up and interact with her. In light of this evidence, the trial court did not clearly err in concluding that Duane's ongoing relationship with Elizabeth's brother increased the chances of ongoing contact with Elizabeth. DHS also contends that the testimony indicated that Duane had not remedied his drug problem. We agree. The caseworker testified that Duane did not start the outpatient treatment until it became clear that Elizabeth was not going to be able to comply with the case plan. Duane did not complete outpatient treatment until after the termination hearing held October 2016, even though it had been ordered in January 2016. Duane tested positive for THC, methamphetamine, and amphetamines in April 2017, almost twenty months into the case. The therapist indicated that Duane had poor judgment based in part, on the failed drug test, and Duane testified that he smoked marijuana in April 2017 and took a pill, even though he did not know what it was. DHS claims that, unlike Guthrey , supra , the trial court relied on the testimony of multiple individuals and did not hinge its determination solely on a finding that Duane was not credible. And, unlike Kight , supra , Duane was not complying with the case plan and more than twenty-one months had transpired in the case, whereas in Kight, only seven months had elapsed. Duane asks this court to reweigh the evidence, which is improper. Posey v. Ark. Dep't of Human Servs. , 370 Ark. 500, 262 S.W.3d 159 (2007). Appellate courts defer to the trial court's credibility determinations, and in matters involving young children's welfare, give great weight to their observations. Osborne v. Ark. Dep't of Human Servs. , 98 Ark. App. 129, 252 S.W.3d 138 (2007). Further, the trial court was not required to believe Duane's testimony that he did not continue to use drugs and that he and Elizabeth had only minimal contact. See Tankersley v. Ark. Dep't of Human Servs. , 2012 Ark. App. 109, 389 S.W.3d 96 (holding that the trial court was not required to believe appellant's self-serving testimony). Affirmed. Whiteaker and Brown, JJ., agree. Elizabeth is not an appellant in this case. The petition included Elizabeth's nine-year-old son, who is not a subject of this appeal. Duane testified at the TPR hearing that he injured his ankle in a three-wheeler accident.

ROBIN F. WYNNE, Associate Justice Parrish Dare appeals from an order of the Saline County Circuit Court modifying the visitation awarded to appellee Scott Frost and denying her petition to modify the amount Frost pays in child support. She argues that the circuit court erred in finding that there had been a material change in circumstances that justified modifying Frost's visitation with the parties' child. She also argues that the trial court erred in deciding not to include the increase in the value of Frost's stock portfolio in the calculation of his child-support obligation and deciding not to impute additional income to Frost. We affirm. While the parties lived in Virginia, they were involved in a relationship that produced one child, R.D. The parties were never married. A Virginia court ordered Frost to pay child support in the amount of $400 per month. The court awarded Frost "liberal visitation" and set a visitation schedule that alternated holidays and gave Frost two weeks in the summer with R.D. After Dare relocated to Arkansas with the child, Frost typically kept the child for three to four weeks during the summer. Frost also began paying $425 per month in child support. In 2015, Dare began asking Frost to pay additional child support; he declined. During this same period, Dare restricted Frost's visitation to that provided for in the Virginia court order. In February 2016, Frost petitioned to register the Virginia orders in the Saline County Circuit Court. He contemporaneously filed a motion for modification in which he alleged that there had been a change in Dare's "willingness to co-parent" that constituted a material change in circumstances justifying an award of additional visitation with R.D. Dare filed a counterclaim in which she requested a modification of Frost's child-support obligation to reflect his current income. The circuit court held hearings on the visitation and child-support issues. Regarding child support, Dare argued that the growth of Frost's stock portfolio should be considered in the calculation of his child-support obligation. Dare also contended that the trial court should impute Frost's income commensurate with his lifestyle. The circuit court subsequently entered an order in which it found that a material change in circumstances had occurred and modified Frost's visitation, increasing summer visitation to four weeks each summer and setting out a schedule for holiday visitation. The circuit court also found that there was insufficient evidence to impute income beyond that reported on his affidavit of financial means and ordered him to pay child support in the amount of $213.00 every two weeks based on his reported bi-weekly income of $1,174.46. Dare appealed to our court of appeals, which affirmed on the finding of material change in circumstances and reversed and remanded on the issue of child support, with instructions for the circuit court to consider the gains in Frost's stock portfolio as income for child support purposes. Dare v. Frost , 2017 Ark. App. 325, 522 S.W.3d 146. The parties filed competing petitions for review with this court, with Dare seeking review of the portion of the circuit court order on the issue of visitation that was affirmed and Frost seeking review of the court of appeals' decision to reverse and remand on the issue of child support. Dare's petition was denied; Frost's was granted. Because, upon granting a petition for review, we consider the appeal as though it were initially filed with this court, Powell v. Lane , 375 Ark. 178, 181, 289 S.W.3d 440, 442 (2008), all issues raised in the appeal are currently before us. Visitation Dare's first argument on appeal is that the trial court erred in finding that Frost had proved a material change in circumstances sufficient to warrant a modification of the existing visitation order. In domestic relations cases, we review the evidence de novo and will not reverse the circuit court's findings unless they are clearly erroneous. Brown v. Brown , 2012 Ark. 89, 387 S.W.3d 159. We also give special deference to the circuit court's superior position in evaluating the witnesses, their testimony, and the child's best interest. Id. Because a circuit court maintains continuing jurisdiction over visitation, it may modify or vacate a prior visitation order when it becomes aware of a material change in circumstances since the previous order. Id. The party seeking modification has the burden of demonstrating such a material change in circumstances. Id. Regarding visitation, the primary consideration is the best interest of the child. Id. Important factors for the court to consider in determining reasonable visitation are the wishes of the child, the capacity of the party desiring visitation to supervise and care for the child, problems of transportation and prior conduct in abusing visitation, the work schedule or stability of the parties, and the relationship with siblings and other relatives. Id. We have held that fixing visitation rights is a matter that lies within the sound discretion of the circuit court. Id. In its order modifying visitation, the circuit court found that Dare had exposed R.D. to inappropriate circumstances and had been negative toward Frost to such a degree that it caused strain between R.D. and Frost. The testimony at the hearing on visitation was that at some point in 2011, the parties had agreed to modify the visitation schedule to allow Frost more time with R.D. during the summer. He was typically given three to four weeks instead of the two specified in the Virginia order. During his testimony, Frost read from an email sent to him by Dare in which she stated that if he did not pay more than was required by the child-support guidelines, she would not do anything outside of the visitation guidelines. Dare repeated that stance in her testimony. Frost testified that in 2015, he was informed that, instead of spending four weeks with him, R.D. would spend two weeks in Virginia and two weeks with a friend of Dare's in Texas. Frost also testified regarding a Thanksgiving visitation when Dare sent R.D. to his home with a mostly empty suitcase. Dare testified that this was intended as a message to Frost that he was not taking responsibility for R.D.'s care while she was with him. Frost further testified that Dare told him that she allowed R.D. to read their correspondence regarding child support, which included statements by Dare that he was not doing enough for R.D. Frost stated that this resulted in different behavior toward him by R.D. Frost stated that he felt like Dare pushed him out and made R.D. feel like it was acceptable to minimize his part in her life. The testimony at the hearing was sufficient to establish that the parties' ability to cooperate regarding R.D.'s visitation had deteriorated since the Virginia visitation order was entered. The parties had voluntarily modified the visitation order, presumably because this was in R.D.'s best interest. Dare unilaterally changed the visitation back to that specified in the Virginia order, and there was evidence from which the circuit court could reasonably conclude that this was done not because it was in R.D.'s best interest but because of issues Dare was having with Frost, specifically her unhappiness with the amount of child support he was paying. There was also testimony that Dare's actions, which included showing R.D. communications between the parties, affected the relationship between Frost and R.D. While Dare naturally seeks to counter this evidence, as stated above, we defer to the circuit court on issues regarding the credibility of the witnesses and the weight to be given to their testimony. See Brown , 2012 Ark. 89, 387 S.W.3d 159. Under these circumstances, we conclude that the change in the parties' interactions with each other constitute a material change in circumstances sufficient to warrant a modification of visitation. We affirm the circuit court's order modifying the visitation schedule. Child Support Dare next argues that the circuit court erred by not including the increase in value of Frost's stock portfolio in the calculation of his child-support obligation. Arkansas Supreme Court Administrative Order Number 10 defines "income" as any form of payment, periodic or otherwise, due to an individual, regardless of source, including wages, salaries, commissions, bonuses, workers' compensation, disability, payments pursuant to a pension or retirement program, and interest less proper deductions. It is the policy of the state to interpret "income" broadly for the benefit of the child. Ark. Sup. Ct. Admin. Order No. 10. Frost testified that he had approximately $40,000 in stocks. He also testified that he does not receive any money from the stocks and that any increase stays in the portfolio. In its order, the circuit court denied Dare's request that the stock dividends be included as part of Frost's income, based on the court's conclusion that the growth of the portfolio should be counted as income for child support purposes only when the growth is "realized" by the owner. The order states that any disbursements from Frost's investment account are to be utilized in calculating his child support. Dare contends that the circuit court's order permits Frost to take his income from his stocks and reinvest it instead of treating it as income. But it is not clear from the record that Frost has "income" from the portfolio. Frost testified that he does not see any money from his stock portfolio. While Dare suggests that the increase be treated as a bonus for purposes of determining child support, we cannot determine from this record whether this is possible, as there is no evidence in the record to indicate what form the capital gains and dividends from the portfolio reflected on Frost's tax returns have taken, nor is there any indication as to whether they may be accessed and used by Frost in the same manner as a bonus check. The order requires Frost to treat funds he receives from the investment account as income in calculating child support, while not requiring him to treat an unrealized increase in his portfolio's value as income. This would require Frost to include cash dividends or realized gains he receives from his stocks in the amount of child support to be paid. On this record, we cannot conclude that the circuit court erred, as the record is insufficient to establish that the portfolio activity sought by Dare to be included in the child support calculation constitutes income as defined in Administrative Order Number 10. Dare's final argument is that the trial court erred by declining to impute income to Frost based on his lifestyle. Administrative Order Number 10 states as follows regarding imputing income: If a payor is unemployed or working below full earning capacity, the court may consider the reasons therefor. If earnings are reduced as a matter of choice and not for reasonable cause, the court may attribute income to a payor up to his or her earning capacity, including consideration of the payor's life-style. Income of at least minimum wage shall be attributed to a payor ordered to pay child support. Dare contends that Frost's reported income does not match up with his expenses. Based on this, she concludes that he must be shielding income. Frost testified that he is employed as a behavioral-specialist counselor earning $1071 semi-monthly, and his wife's employment and savings contribute toward paying their expenses. The record contains no evidence to indicate that Frost is working below his full earning capacity. We hold that the circuit court did not err in declining to impute additional income to Frost. Affirmed; court of appeals opinion vacated. Baker, Goodson, and Hart, JJ., concur in part and dissent in part. We wish to stress that these circumstances are being applied to a modification of visitation, not a modification of custody.

RITA W. GRUBER, Chief Judge Megan Pearson and James Wells appeal from the Pulaski County Circuit Court's order terminating their parental rights to their three children, SW, born April 6, 2009; LW, born May 29, 2014; and TW, born August 3, 2015. Neither parent challenges the grounds for termination. Pearson contends that the circuit court abused its discretion in denying her motion for a continuance and that there was insufficient evidence that termination was in the children's best interest. Wells's sole point on appeal is that the evidence was insufficient to support the circuit court's decision that termination was in the children's best interest. We affirm the circuit court's decision. The case began on September 6, 2016, when the Arkansas Department of Human Services (DHS) took emergency custody of the children after Pearson was involved in a car accident with TW in the car. Pearson admitted to having drunk a beer and ingested Xanax earlier in the day. On October 26, 2016, the circuit court entered an order adjudicating the children dependent-neglected due to neglect and parental unfitness by the mother. Pearson stipulated to the finding. The court specifically noted that Wells, the noncustodial parent, did not contribute to the dependency-neglect. Wells did not attend the hearing. The court found that Wells was not a fit parent for custody and that it considered credible testimony that he was "armed and dangerous" and had outstanding arrest warrants on commercial-burglary charges. The case goal was set as reunification with a concurrent goal of obtaining a guardian. The case was also placed in the court's "Zero to Three" program that allowed for more frequent review hearings and additional services. Pearson and Wells were both ordered to cooperate with DHS and notify DHS of any change in their residences, employment, or contact information; notify DHS if transportation assistance was needed; participate in individual and family counseling with a domestic-violence component; take medications as prescribed; refrain from the use of illegal drugs; undergo a drug-and-alcohol assessment; submit to random drug screens every two weeks; complete parenting classes; obtain and maintain safe, stable, and clean housing; obtain and maintain stable employment and income; demonstrate the ability to protect the children and keep them safe; and resolve paternity issues regarding LW and SW. Pearson was also ordered to attend all of the children's medical appointments, and Wells was ordered to have a psychological evaluation and follow its recommendations. During Zero to Three review hearings in November and December 2016, the court recognized Pearson's progress in working the case plan but did not find that the children's health and safety could be adequately protected by her if returned home at that point. Wells did not attend the November review hearing, and the court found that he had failed to comply with the case plan and had not provided DHS with his contact information. Although Wells attended the December review hearing, the court found that he had not complied with the case plan, was incarcerated, and had drug and mental-health issues that needed to be addressed. The children were placed in the temporary custody of their paternal great-grandmother, Shirley Connell, on December 2, 2016. At a review hearing on January 25, 2017, the court found that the placement with Ms. Connell was not a safe placement due to her forgetfulness in allowing a fifteen-year-old boy with PTSD to watch LW and TW overnight. In addition, the court was "gravely concerned" about Ms. Connell's allowing SW to stay overnight at least once a week with "Paw Paw," a former boyfriend of the children's paternal grandmother, and a person about whom DHS had little knowledge. SW testified that she sometimes slept in his bed and that she did not like sleeping there. The court found Pearson had complied with the case plan, had applied for a job, had not missed any visits with the children, and was making progress toward alleviating the cause of removal. Wells was still incarcerated but had submitted to DNA testing. At the review hearing held on March 9, 2017, Wells was still incarcerated. Pearson had made "some progress" and had "more than partially complied" with the case plan. The court noted that Pearson had not attended all of her therapy sessions, however, and had made "limited progress" in that area. She also had not been to any of the children's medical appointments as ordered. At a review hearing on April 13, 2017, the court again found that Pearson was making progress but that she had missed some visits with the children, had missed a therapy appointment with LW, and remained unemployed. The court granted Pearson's request to reduce her visitation. The court found that Wells had complied to the extent possible but remained incarcerated. Wells was released from prison and awarded visitation with the children in June 2017. Following the review hearing on July 20, 2017, the court found that Pearson had "partially complied" with the case plan and that she still was not employed, had no source of income, and did not have stable housing. The court also found that she had missed more visits with the children than she had attended, that she had not participated in therapy sessions with LW, that she had missed two intake appointments for individual therapy and was not addressing her mental-health issues, and that DHS had been unable to locate her from June 30 through July 17. The court found that Pearson was making "little progress" toward alleviating or mitigating the cause of the children's removal. The court was particularly concerned about Pearson's judgment because she was living with a boyfriend who did not support her goal to regain custody of her children. The court found that Wells had missed some visits with the children and had tested positive for illegal substances. DHS and the attorney ad litem filed a joint petition for termination on August 28, 2017, alleging the grounds of subsequent factors, aggravated circumstances, and failure to remedy. Specifically regarding Pearson, the petition alleged that she had moved in with Wells, had been minimally compliant with the case plan and court orders, and had participated in only two visits since the previous court hearing. The petition also alleged that Pearson had tested positive for alcohol on August 23, 2017, and had not made herself available for biweekly drug-and-alcohol screens. With regard to Wells, the petition alleged that, since the last hearing, he had been minimally compliant with the case plan, had tested positive for alcohol, had an abnormal drug screen on August 23, 2017, had not scheduled a drug-and-alcohol assessment, and had participated in only two visits with the children. On August 30, 2017, two days after the petition was filed, the court held a permanency-planning hearing. In the permanency-planning order, the court found that the permanency goals should be "to authorize a plan to obtain a guardian AND authorize a plan to obtain a permanent custodian, including permanent custody with a fit and willing relative." The court also found that adoption was not in the children's best interest because they had "a bond with their mother and father." However, the court also found that neither parent was in a position to have the children placed with them within a time frame consistent with the children's developmental needs. Specifically, the court found that both parents were complying with some of the case plan and orders of the court but that neither was making significant, measurable progress toward achieving the goals in the case plan or diligently working toward reunification. Pearson had no stable home and no source of income. The court found that Pearson's visits with the children were appropriate but that she visited them inconsistently and had not participated in court-ordered counseling with SW or parent-child interaction therapy with LW. The court also noted that Pearson had not complied with the recommendations of her psychological evaluation and had not addressed her own mental-health or medical-management issues. The court found that Wells had not submitted to a drug-and-alcohol assessment as ordered, had failed to submit a hair-shaft drug test as ordered, had used marijuana, and had tampered with a drug screen by mixing lemonade in it. The court also found that he had not completed his psychological evaluation, had not participated in individual counseling, did not have a source of income, had missed six visits with the children since the last hearing, and did not attend the family team meeting. Finally, the court also found that the children had been placed together in the same foster home after having spent many months separated from each other and that they were doing well. The termination hearing was held less than two months later on October 20, 2017. Before any testimony was presented, the court addressed a motion from Pearson's attorney. Pearson had been represented throughout the case by her court-appointed attorney, Phil Beuth. Because he was unable to attend the termination hearing, Mr. Beuth had asked Brian Butler to act as substitute counsel. After DHS's opening remarks, Mr. Butler told the court that he had spoken with Pearson; had informed her that he was well prepared to try the case; and had studied the case, the previous orders, and the case plan. He said that Pearson had told him she did not "feel comfortable" having him represent her, having met him for the first time at the hearing. According to Mr. Butler, Pearson preferred that Mr. Beuth try the case. DHS's attorney responded that she had worked with Mr. Butler and found him to be a capable and competent attorney; she asked the court to deny Pearson's motion. The attorney ad litem stated that her clients had a right to permanency without undue delay, that DHS and the ad litem had multiple witnesses subpoenaed for the hearing, that Pearson had not attended the family team meeting where she could have spoken with Mr. Beuth about his schedule, and that Pearson had not kept in touch with Mr. Beuth. The ad litem explained that a continuance would be "extremely prejudicial" to her clients, particularly SW, who had a "very high level of anxiety" about testifying at the hearing. The court denied the motion, stating that everyone was available and ready for the hearing and that Mr. Butler was a good lawyer, had indicated that he had familiarized himself with the case file, had handled Zero to Three cases before, and was "perfectly capable" of providing the representation needed. Eight-year-old SW testified first. She stated that she felt worried at the visits with her parents because they asked her whether she loved them and wanted to come home. She said that she did not want them to know that she did not want to go home with them. SW's school counselor also testified that she had known SW for years and that SW had begun to see her more frequently than in the past and that she was very upset and nervous on a more frequent basis. She explained that SW was nervous, scared, and upset before visits with her parents and upset after the visits. The counselor's impression was that SW's visits with her parents had not been beneficial to her and were unhealthy. Joy Pemberton, a clinical psychologist with the UAMS Child Study Center, testified that she began seeing LW and Pearson for parent-child interaction therapy (PCIT) in March 2017. Ms. Pemberton testified that the therapy was designed to be weekly, but she had not had a session with LW and Pearson since July 2017, although the sessions remained scheduled. Ms. Pemberton testified that LW had continued to demonstrate defiant behaviors, which was to be addressed during phase two of the therapy. Because Pearson did not continue with regular attendance, she did not progress to phase two of the PCIT therapy. Dr. Karin Vanderzee, a child psychologist at the UAMS Child Study Center, testified that she had been SW's therapist since June 2017. She said that SW had initially improved but had regressed in the month or so before the hearing, experiencing incidents of anxiety. According to Dr. Vanderzee, SW did not want to visit her parents because she felt unsafe and frightened. Selina Porter, a DHS caseworker, testified that she had supervised visits with the children and their parents. She said that Pearson interacted normally with the children during visits but that Wells was stern and aggressive. She said that his visits were characterized by a lot of aggressive touching and grabbing the girls. She said during one visit, she observed Wells pinning TW on the floor and holding a broom raised in his other hand over the child. On the same day, she witnessed Wells holding TW in a highchair for about ten minutes. Several days later, she noticed that TW had bruises on her arm where Wells had held her. Darneshia Bell, a specialist for the Safe Babies Court Teams, recommended that the children be adopted because it was "the safest and surest route for permanency for these children who have experienced a very high level of trauma." She stated that at the beginning of the case, maintaining the biological bond with the family was very important, but given that the children had experienced additional "compound trauma" from having several placements and because the parents had missed opportunities for therapy with the children, the children were still "wearing that trauma" and the next placement of the children should be their final placement. She expressed concern that if the case closed without the most "legally secure placement," it would be a setback for the children later. The DHS adoption specialist testified that the children were adoptable as a sibling group. The children's foster mother testified that she was supportive of what was in the children's best interest and that she wanted to adopt the three children. The DHS family caseworker, Nicki Baker, testified that there had been several recent drug screens for both parents that had been designated by the labs as "abnormal" and unusually diluted. In addition, a test from September 28, 2017, indicated that Pearson was positive for buprenorphine. A test on Wells on October 12, 2017, indicated that Wells was positive for buprenorphine. Mr. Baker testified that the drug and alcohol use by Pearson had not been resolved. He expressed concern with the credibility of both parents, whose diluted drug screens suggested that they would "do whatever they needed to do" to tamper with the screens to show that they were negative. He said that both parents had been inconsistent in their visits with the children and their willingness to participate in the case plan, and he opined that it is in the children's best interest for the parental rights to be terminated and for the children to be put in a "forever home" where they could get closure and thrive. He also testified that DHS had explored placement with relatives, including the maternal grandmother, Candida Pearson, whose home was appropriate, but who was later rejected as having an issue with her background. She had failed to disclose that her daughter had once been in foster care. In addition, her husband, the children's grandfather, had not ever visited the children while they were in foster care for the year before the hearing. Mr. Baker also said he spoke with a cousin, Sarah Thompson, who was approved for provisional placement but who did not want to be considered for placement. Finally, he said that he had spoken with Catherine Griggs, the children's maternal great-aunt, who was a potential placement. The paperwork on Ms. Griggs was completed on October 16, 2017, several days before the termination hearing. Pearson did not testify. Wells did testify and admitted that he had missed the October 13, 2017, family team meeting and that he had missed some visits with the children. He could not recall why he had missed them. He agreed that he had a problem with addiction and said that he would need to "go somewhere inpatient" in order to resolve his issues. He also testified that he was "absolutely not" ready to have custody of his children and thought it was best for them to be in a relative placement. He said that he did not want his children to be adopted because he would like to regain custody if he could get sober in the future. He admitted that he "absolutely" had been intoxicated since the previous hearing. We review termination-of-parental-rights cases de novo. Dinkins v. Ark. Dep't of Human Servs. , 344 Ark. 207, 40 S.W.3d 286 (2001). At least one statutory ground must exist, in addition to a finding that it is in the child's best interest to terminate parental rights, considering the likelihood that the child will be adopted if the parent's rights are terminated and the potential harm caused by returning the child to the custody of the parent. Fox v. Ark. Dep't of Human Servs. , 2014 Ark. App. 666, at 4, 448 S.W.3d 735, 737. These must be proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341 (Supp. 2017). The appellate inquiry is whether the circuit court's finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. Shawkey v. Ark. Dep't of Human Servs. , 2017 Ark. App. 2, at 4, 510 S.W.3d 803, 806. Credibility determinations are left to the fact-finder. Id. Finally, the intent behind the termination-of-parental-rights statute is to provide permanency in a child's life when it is not possible to return the child to the family home because it is contrary to the child's health, safety, or welfare, and a return to the family home cannot be accomplished in a reasonable period of time as viewed from the child's perspective. Ark. Code Ann. § 9-27-341(a)(3). In finding that termination is in the best interest of the child, the circuit court is required to consider the potential harm to the health and safety of the child that might result from returning the child to the parent's custody. Ark. Code Ann. § 9-27-341(b)(3)(A)(ii). The court is not required to find that actual harm would result or to affirmatively identify a potential harm. Dowdy v. Ark. Dep't of Human Servs. , 2009 Ark. App. 180, 314 S.W.3d 722. The potential-harm evidence must be viewed in a forward-looking manner and considered in broad terms. Samuels v. Ark. Dep't of Human Servs. , 2014 Ark. App. 527, 443 S.W.3d 599. Finally, a parent's past behavior is often a good indicator of future behavior and may be viewed as a predictor of likely potential harm should the child be returned to the parent's care and custody. Shawkey , 2017 Ark. App. 2, at 6, 510 S.W.3d at 807 ; Helvey v. Ark. Dep't of Human Servs. , 2016 Ark. App. 418, at 10, 501 S.W.3d 398, 404. I. Motion for Continuance We turn first to Pearson's argument that the circuit court abused its discretion in denying her motion for a continuance. She contends that it prejudiced her to arrive at the termination hearing to discover that her attorney, Phil Beuth, would not be there to represent her and that a stranger was there instead. A circuit court shall grant a motion for continuance only upon a showing of good cause and only for so long as is necessary. Jones-Lee v. Ark. Dep't of Human Servs. , 2009 Ark. App. 160, at 19, 316 S.W.3d 261, 271. We will not reverse the denial of a motion for continuance absent an abuse of discretion amounting to a denial of justice. Id. In addition, the appellant must show prejudice from the denial of the motion. Id. Pearson does not argue that she needed the continuance to obtain additional evidence nor does she explain what Mr. Beuth might have done differently from Mr. Butler had he represented her at the hearing. Rather, she contends that she had expressed her discomfort to the circuit court about being represented by an attorney who was a stranger to her. The attorney ad litem noted that Pearson had failed to attend the family team meeting where she might have spoken with Mr. Beuth about his potential absence and that Pearson had not remained in contact with Mr. Beuth and thus was not aware of his absence until she arrived at the hearing. The court noted that Mr. Butler had ample experience in the juvenile court system and had handled Zero to Three cases before. Mr. Butler stated that he was well prepared and had studied the previous orders and the case plan. The court found that Mr. Butler was "perfectly capable" of providing representation for Pearson and that the witnesses were available and ready for the hearing. The court expressed particular concern that SW was extremely anxious about the hearing and a delay would not be good for her health and well-being. On this record, we hold that the circuit court did not abuse its discretion in denying Pearson's motion for a continuance. II. Best-Interest Finding Pearson's second point on appeal, and Wells's only point on appeal, is that there was insufficient evidence that termination was in the children's best interest. Because they make almost identical arguments, we address their points on appeal together. Specifically, they rely on the court's finding at the permanency-planning hearing two months before the termination hearing that adoption was not in the children's best interest. The crux of their argument to us is that this finding is not open to challenge and that the circuit court could not consider facts that occurred before the date of the permanency-planning hearing in making its determination that it was in the children's best interest to terminate their parental rights. They argue that there was no significant evidence after the permanency-planning hearing to support the court's findings regarding adoption and, thus, that we must reverse. In addressing appellants' argument, we focus first on the purpose of the dependency-neglect statutory scheme. The intent of termination of parental rights is to provide permanency in a juvenile's life in all instances in which the return of a juvenile to the family home is contrary to the juvenile's health, safety, or welfare and it appears from the evidence that a return to the family home cannot be accomplished in a reasonable period of time as viewed from the juvenile's perspective. Ark. Code Ann. § 9-27-341(a)(3). Although the statutory scheme allows a court to hold a hearing to finalize a permanency plan for children in dependency-neglect proceedings, a permanency-planning hearing is not a prerequisite to the court's consideration of a petition to terminate parental rights, and either DHS or the attorney ad litem may file a petition to terminate parental rights at any time prior to a permanency-planning hearing, as occurred in this case. See Ark. Code Ann. §§ 9-27-338(b)(1) ; 9-27-341(b)(1)(B). Moreover, adoptability is but one factor for a court to consider when making a best-interest determination. There is no requirement that every factor considered be established by clear and convincing evidence; rather, after consideration of all factors, the evidence must be clear and convincing that termination is in the best interest of the child. Hamman v. Ark. Dep't of Human Servs. , 2014 Ark. App. 295, at 8, 435 S.W.3d 495, 500. Further, appellants' argument that the court may consider only evidence that arose after the permanency-planning hearing in making its findings under the termination statute is incorrect. The termination statute specifically provides that, in deciding whether it is in the juvenile's best interest to terminate parental rights, the court "shall rely upon the record of the parent's compliance in the entire dependency-neglect case" and evidence presented at the termination hearing. Ark. Code Ann. § 9-27-341(a)(4)(B) (emphasis added); see also Chandler-Sivage v. Ark. Dep't of Human Servs. , 2017 Ark. App. 544, at 2-3, 532 S.W.3d 113, 115. The process through which a parent or parents travel when a child is removed from their home consists of a series of hearings, which all build on one another. Osborne v. Ark. Dep't of Human Servs. , 98 Ark. App. 129, 136, 252 S.W.3d 138, 142 (2007). "[T]he proceedings and orders pertaining to the termination of parental rights [are] in fact a continuation of the original dependency-neglect case." Neves da Rocha v. Ark. Dep't of Human Servs. , 93 Ark. App. 386, 393, 219 S.W.3d 660, 664 (2005) (quoting Wade v. Ark. Dep't of Human Servs. , 337 Ark. 353, 361, 990 S.W.2d 509, 514 (1999) ). Here, the court found clear and convincing evidence of grounds to support termination, which neither parent challenges, and found that it was in the children's best interest to terminate Pearson and Wells's parental rights. The court entered nine pages of very specific findings, detailing the parents' progress and lack thereof throughout the course of the case. The court noted that the children were initially taken into emergency custody by DHS after Pearson had a car accident with TW in the car. Pearson was driving after having drunk alcohol and taken Xanax without a prescription. The court also specifically considered testimony at the termination hearing, including that of SW's therapist and her school counselor, that SW had increased symptoms of anxiety in the several weeks leading up to the termination hearing, she did not want to visit her parents because she felt frightened and unsafe, and she was afraid that she would be kidnapped by her parents. In addition, the court found credible the caseworker's testimony that Pearson was very responsive to participating in services at the beginning of the case but that her interest had waned as time progressed. The court found that Pearson had not completed individual counseling or followed the recommendation of her psychological assessment. The court also found that she had never obtained employment or stable housing and was not able to protect the children and keep them safe. The court found that Pearson had continued to test positive for alcohol and illegal substances and had submitted altered screens, leading to concerns about her truthfulness. These positive and abnormal drug-and-alcohol screens occurred after the permanency-planning hearing. The court also found that Pearson had visited the children inconsistently, which negatively impacted the children and increased their fears and anxiety, and the court found credible SW's testimony that she did not want to want to go home with her parents but was afraid to tell them. Finally, regarding Wells, the court found that he also had tested positive for illegal substances since being released from prison in June 2017 and that the drug screens that were negative had been altered. Most of these screens occurred after the permanency-planning hearing. The court found that Wells had not submitted to a psychological evaluation, had not participated in and completed individual counseling, had not participated in LW's counseling, and had not participated in family team meetings. He also disobeyed the court's orders that the children have no contact with Shirley Connell, the children's paternal great-grandmother, or Darlena Wells, the children's grandmother. He claimed that the children needed to see their grandmother. The court made the following specific findings regarding best interest: In making this determination to grant the petition for termination of parental rights, the Court has included its consideration of the following factors: the likelihood that the juveniles will be adopted if the termination of parental rights petition is granted; and the potential harm, specifically addressing the effects on the health and safety of the juveniles, caused by returning the juveniles to the custody of the mother or placing the juveniles in the custody of the father. Returning the juveniles to the mother's custody or placing them in the father's custody would harm the juveniles' emotional health and physical safety. Mother and father have not visited the juveniles consistently, and, during the visits, the juveniles are fearful and anxious. Mother makes decisions that are not appropriate for her or the juveniles, as she did when she started seeing a man who was not supportive of her getting the juveniles back and she failed to keep contact with DHS. Father has used alcohol since he was five (5) years old, and is still drinking alcohol. Mother and father are still using illegal substances. They are still unfit parents. The Court has no doubt that mother and father love the juveniles and the juveniles love them. Unfortunately, love alone is not enough to make a person a fit and appropriate parent. The Court is not saying that mother and father can never be fit parents, as the Court believes people have the capacity to change. However, these juveniles cannot wait until the parents may become fit. These juveniles deserve permanency and stability without undue delay. DHS has an appropriate plan for permanent placement of the juveniles. That plan is adoption. Testimony has been presented that there is a very good likelihood that juveniles will be adopted if the petition to terminate is granted. Finally, appellants appear to argue that the court's finding of best interest was erroneous because DHS failed to pursue relative placement. Throughout the case, DHS pursued placement with a relative. The children were actually placed unsuccessfully with their paternal great-grandmother. Mr. Baker testified that various other placements were considered but not approved. Although Mr. Baker testified that the children's great aunt, Ms. Griggs, was a "potential" placement, Ms. Griggs turned in her paperwork at the eleventh hour, just four days before the termination hearing. Appellants presented no evidence about the relationship, if any, between Ms. Griggs and the children. Finally, appellants presented no evidence that there was an approved relative who was ready, willing, and able to take custody of the children at the time of the termination hearing. The court specifically expressed its concern that the children needed permanency and stability "without undue delay." Our de novo review of this record convinces us that the circuit court's finding that it was in the children's best interest for appellants' parental rights to be terminated is not clearly erroneous. Affirmed. Harrison and Brown, JJ., agree.

BRANDON J. HARRISON, Judge Kyle McKinney appeals the termination of his parental rights to his three children. He generally challenges the circuit court's best-interest finding and asserts that the Arkansas Department of Human Services (DHS) did not prove a lack of compliance with the case plan. We affirm. On 17 June 2016, DHS exercised a 72-hour hold on three-month-old A.M. after a medical examination at Arkansas Children's Hospital revealed bone fractures, head trauma, brain damage, and a subdural hematoma. See Mercado v. Ark. Dep't of Human Servs. , 2017 Ark. App. 232, 519 S.W.3d 715. A.M. is the daughter of Francesca Mercado, who was McKinney's girlfriend at the time. McKinney and Mercado also lived together. As part of DHS's investigation, it learned that McKinney's three children, seven-year-old J.M., four-year-old K.M.1, and three-year-old K.M.2, either visited or resided in his and Mercado's home. Due to the physical abuse by an unknown offender and the magnitude of A.M.'s injuries, DHS placed a 72-hour hold on K.M.1 and K.M.2. J.M. was returned to her mother's custody, and DHS requested that McKinney have no contact with her. On 20 June 2016, DHS petitioned for and was granted an order of emergency custody and order of protection for J.M., K.M.1, and K.M.2. In August 2016, the circuit court found probable cause to continue DHS's custody of K.M.1 and K.M.2 and to continue the order of protection for J.M. In September 2016, the court adjudicated the children dependent-neglected. The court noted that Mercado and McKinney had married and found that the "juveniles are at substantial risk of serious harm as a result of physical abuse of the juveniles' step-sibling, [A.M.], by Kyle McKinney." McKinney was ordered to obtain and maintain stable and appropriate housing, income, and transportation; complete parenting-without-violence classes; submit to a psychological evaluation and comply with the recommendations; submit to random drug-and-alcohol screens; and if a positive test occurs, undergo a drug-and-alcohol assessment. In November 2016, DHS petitioned to terminate McKinney's parental rights pursuant to Ark. Code Ann. § 9-27-341(c)(2), which provides that a court may terminate the rights of one parent and not the other parent if the court finds that it is in the best interest of the child. See Ark. Code Ann. § 9-27-341(c)(2)(B) (Supp. 2017). As grounds, DHS alleged that a sibling of the children had been adjudicated dependent-neglected as a result of neglect or abuse that could endanger the lives of the children, subsequent factors, and aggravated circumstances. See Ark. Code Ann. § 9-27-341(b)(3)(B)(vi), (vii), and (ix). In December 2016, the circuit court entered a review and custody order. That order placed K.M.1 and K.M.2 in the custody of their mother, Katessa Mayner, and ordered McKinney to pay child support. The order also continued custody of J.M. with her mother, Taryn Price, and ordered McKinney to pay child support. The court conducted a lengthy termination hearing over several days in April and May 2017 and also received posttrial briefs in lieu of closing arguments from the children's ad litem, DHS, and McKinney. The majority of the testimony presented at the termination hearing focused on the nature and extent of A.M.'s injuries and who was responsible for those injuries. In a letter opinion dated 12 June 2017, the circuit court specifically found both McKinney and Mercado not credible. Turning to the day of A.M.'s injuries, the court found that when A.M. was first presented to the emergency room, no one had any plausible explanation as to what might have caused the injuries. The story was that one of the other children had fallen on the baby or that a thrown toy had struck her. These theories were discounted by Dr. Farst and by common sense. The opinion of Dr. Farst was that if the baby was fine at breakfast and at noon the injury had to have occurred when the child was in the care of McKinney that afternoon. On June 17, DHS placed a hold and obtained an ex parte order of custody on two of his children and an order of protection for the one of which he did not have custody. At this time the staff at ACH told McKinney that he could not stay there, as he was not related to [A.M.]. To solve that problem he married Francesca [Mercado] on June 27, eleven days after [A.M.] was admitted. He is then the stepfather. It is the opinion of this court, based on the psychological diagnosis, that this was in order for him to stay close to Francesca, not lose control of the situation and anything she might tell the medical staff or authorities. .... Sometime after the probable cause hearing Francesca has an "epiphany" as described in Ms. Imbeau's brief. She recalled falling with the child in the bathtub the night before her symptoms appeared. Her excuses for not reporting this earlier, like when the initial history was being taken at Children's, just don't hold water. It is the finding of this court that this statement is a pure fabrication on the part of Francesca and a result of the manipulation of Kyle. After noting further changes in the stories of both McKinney and Mercado at the adjudication hearing and the termination hearing, the court concluded that "nothing these two people say can be believed." The court found that DHS had proved by clear and convincing evidence every ground alleged in the termination petition, that "Kyle's behavior in maintaining a relationship with Francesca after she had told him that she caused the injuries to [A.M.] shows a total disregard for the danger she may be to his children," and that "[t]his man has no regard for the safety and well being of his children." The court also noted that it determined at the adjudication hearing that McKinney had abused A.M., and the adjudication order was not appealed, so that fact was now settled. The court also again made a specific finding that McKinney was the person who had abused A.M. The court entered an order terminating McKinney's parental rights on 12 July 2017. The order fully incorporated the findings of fact and credibility determinations in the court's letter opinion. The order also found that it made no legal difference whether the children were adoptable because they would remain in the care of their mothers. As to potential harm, the court found: [T]he above facts supporting grounds for termination of parental rights demonstrate that the juveniles would be at great risk of harm if returned to Kyle McKinney. [A.M.] sustained extensive, life-threatening injuries from which she will never fully recover in the home of Kyle McKinney and Francesca Mercado when the herein juveniles were present. Such circumstances establish that the herein juveniles would be at risk of harm in this home and absolutely nothing has meaningfully changed to alleviate this risk. The potential for harm is abundant and the Court cannot wait for actual harm to befall these children before taking the steps necessary to protect them. McKinney has appealed from this order. A circuit court's order that terminates parental rights must be based on findings proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341(b)(3) ; Dinkins v. Ark. Dep't of Human Servs. , 344 Ark. 207, 40 S.W.3d 286 (2001). Clear and convincing evidence is proof that will produce in the fact-finder a firm conviction on the allegation sought to be established. Dinkins, supra. On appeal, we will not reverse the circuit court's ruling unless its findings are clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. In determining whether a finding is clearly erroneous, an appellate court gives due deference to the opportunity of the circuit court to assess the witnesses' credibility. Id. I. Compliance with Case Plan McKinney first argues that he complied with all requirements of the case plan and that DHS did not prove, and the termination order did not state, that he had not substantially complied with the case plan. This argument is of no moment, as our case law is clear that even full compliance with the case plan is not determinative; the issue is whether the parent has become a stable, safe parent able to care for his or her child. Shaffer v. Ark. Dep't of Human Servs. , 2016 Ark. App. 208, 489 S.W.3d 182. II. Best Interest Under Arkansas law, to terminate parental rights, a circuit court must find by clear and convincing evidence that termination is in the best interest of the juvenile, taking into consideration (1) the likelihood that the juvenile will be adopted if the termination petition is granted and (2) the potential harm, specifically addressing the effect on the health and safety of the child, caused by returning the child to the custody of the parent. Ark. Code Ann. § 9-27-341(b)(3)(A)(i)-(ii). This potential-harm inquiry is but one of the many factors that a court may consider, and the focus is on the potential harm to the health and safety of a child that might result from continued contact with the parent. Tadlock v. Ark. Dep't of Human Servs. , 2009 Ark. App. 841, 372 S.W.3d 403. The court is not required to find that actual harm would result or to affirmatively identify a potential harm. Id. Furthermore, the potential-harm analysis should be conducted in broad terms. Id. McKinney challenges the circuit court's potential-harm finding and argues that DHS's assertion that he posed a risk of potential harm based on A.M.'s injuries was "dubious" because the identity of the offender was unclear. McKinney contends that there was no testimony that he caused the injuries to A.M. and, while acknowledging the finding at adjudication that he was the abuser, notes that Mercado later came forward claiming responsibility for the injuries. McKinney also asserts that there was no testimony given on the likelihood of adoption. McKinney's status as A.M.'s abuser is considered an established fact because he did not appeal from the adjudication order that made that finding. In Villasaldo v. Arkansas Department of Human Services , 2014 Ark. App. 465, 441 S.W.3d 62, this court noted that Villasaldo had not appealed from the adjudication order in which the circuit court found that she failed to protect J.G. from abuse. After noting that a parent's failure to appeal the rulings made in an adjudication order precludes appellate review of those rulings in an appeal from a subsequent order, we held that we would not question whether Villasaldo had failed to protect her son from abuse "because that fact has been established." 2014 Ark. App. 465, 441 S.W.3d at 66. The same holds true here-we will not question whether McKinney was the cause of A.M.'s injuries, because that fact has been established. And the fact that McKinney perpetrated severe abuse on A.M. supports the court's finding that the children faced potential harm if returned to McKinney's home. McKinney essentially asks this court to reweigh the evidence on this issue, which we will not do. As to evidence of adoption, the circuit court found, and we agree, that it made no legal difference whether the children were adoptable, as the children were to remain in the custody of their mothers. McKinney also mentions other reasons that termination was not in the children's best interest, such as the cessation of child support, the lack of a father figure in the children's lives, and the loss of extended family. However, the circuit court heard testimony on these issues and is presumed to have considered them in determining best interest, and we will not second-guess that determination. III. Statutory Grounds McKinney's argument as to the statutory grounds for termination consists of the following: The Department and Attorney Ad Litem did not provide clear and convincing evidence that any of the statutory grounds for termination of parental rights were met. Appellant completed the case plan, and had no need to remedy the situations that caused removal because he did not injure the child, A.M., the injury which spurred this case. To the extent that McKinney is repeating his arguments as to compliance with the case plan and his status as A.M.'s abuser, those arguments have been addressed above. The remainder of McKinney's argument is conclusory and develops no argument based on the elements of the statutory grounds for termination; therefore, we will not address it. See Todd v. Ark. Dep't of Human Servs. , 85 Ark. App. 174, 151 S.W.3d 315 (2004) (when a party cites no authority or convincing argument on an issue and the result is not apparent without further research, the appellate court will not address the issue). Affirmed. Gruber, C.J., and Glover, J., agree. Mercado's parental rights to A.M. were later terminated, and this court affirmed the termination. Mercado v. Ark. Dep't of Human Servs. , 2017 Ark. App. 495, 2017 WL 4399856. McKinney had full custody of K.M.1 and K.M.2 and exercised regular visitation with J.M. McKinney and Mercado were married on 27 June 2016 and divorced on 7 December 2016.

ROBERT J. GLADWIN, Judge Lamar Daniel Ron Wilson appeals from an order of the Garland County Circuit Court denying his petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2017). He claims on appeal that his trial counsel was grossly ineffective, arguing that the circuit court lacked subject-matter jurisdiction and that his trial counsel, by not arguing this point, violated Wilson's due-process rights. We affirm. I. Procedural History Wilson was charged with the rape of a nine-year-old. After a jury trial, he was acquitted of rape but convicted of second-degree sexual assault and sexual indecency with a minor after the jury was erroneously instructed on these two charges. Wilson was sentenced to twenty years' imprisonment on the sexual-assault conviction. Because Wilson had been charged only with rape, he filed a motion for new trial, arguing that second-degree sexual assault was not a lesser-included offense of rape. In its response, the State admitted that the sexual-assault charge was not a lesser-included offense of rape but asked that the circuit court enter the jury's determination of guilt on the sexual-indecency charge. At the hearing on Wilson's motion for new trial, defense counsel announced that an agreement had been reached wherein Wilson pleaded no contest to sexual indecency with a minor, and a plea and waiver was introduced that had been signed by Wilson, his counsel, and the prosecutor. Based on the plea agreement, the circuit court sentenced Wilson to six years' imprisonment, and a sentencing order was filed on October 5, 2015. On October 8, 2015, Wilson filed a motion to vacate the judgment, arguing that he had never been charged with the offense of sexual indecency with a child and that no amendments to his charge had been made. The circuit court denied Wilson's motion, and Wilson filed a timely notice of appeal. However, Wilson's counsel filed a no-merit brief and motion to withdraw; Wilson did not file pro se points for reversal, and this court granted counsel's motion and affirmed Wilson's conviction. Wilson v. State , 2017 Ark. App. 385, 2017 WL 2683953. Wilson filed a Rule 37 petition in the circuit court within sixty days of this court's mandate, see Ark. R. Crim. P. 37.2(c)(ii), arguing that his trial counsel was ineffective on six grounds: (1) failing to object to "having the court hold Wilson for any other charge/offense due to the acquittal of the jury during Wilson's jury trial"; (2) failing to investigate jurisdiction; (3) "violation of the Constitutional Due-Process Clause"; (4) "Judge Hearnsberger's unfairness, Sixth Amend. Violation"; (5) failing to move to withdraw Wilson's plea; and (6) "lack of jurisdiction by State's violation of Due Process." The circuit court denied the petition without a hearing and entered an order containing specific findings on each ground as alleged in Wilson's petition. First, the court ruled that Wilson had not been acquitted; rather, the jury convicted him of second-degree sexual assault and sexual indecency with a child. Second, the court found that Mr. Adams, defense counsel, had not been ineffective for failing to challenge the circuit court's jurisdiction because the court had proper jurisdiction of the case; moreover, a jurisdictional challenge could have been made at trial or on direct appeal, and one had not been made. Third, the court ruled that there had been no due-process violation because Wilson pleaded nolo contendere to the amended charge of sexual indecency with a child and that he had not raised a due-process argument on appeal. Fourth, the court ruled that Wilson had not been "bullied, pushed, and hoodwinked" into entering his plea; moreover, Wilson had stated in court that he understood what he was doing and was satisfied with Mr. Adams's representation of him. Fifth, Mr. Adams was not ineffective for failing to move to withdraw the plea; Wilson, acting pro se, had unsuccessfully moved to vacate the judgment and did not challenge that ruling on appeal. Sixth, Wilson did not challenge the circuit court's jurisdiction or make a due-process argument on appeal. This appeal timely followed. II. Standard of Review and Applicable Law We do not reverse the denial of postconviction relief unless the circuit court's findings are clearly erroneous. Johnson v. State , 2018 Ark. 6, at 2, 534 S.W.3d 143, 146. A finding is clearly erroneous when the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that the circuit court made a mistake. Id. "The benchmark for judging a claim of ineffective assistance of counsel must be 'whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.' Strickland [v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, (1984) ]." Mancia v. State , 2015 Ark. 115, at 4, 459 S.W.3d 259, 264 (citing Henington v. State , 2012 Ark. 181, at 3-4, 403 S.W.3d 55, 58 ). Pursuant to Strickland , we assess the effectiveness of counsel under a two-prong standard. First, a petitioner raising a claim of ineffective assistance of counsel must show that his counsel's performance fell below an objective standard of reasonableness. Id. A court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. Second, the petitioner must show that counsel's deficient performance so prejudiced petitioner's defense that he was deprived of a fair trial. Mancia , 2015 Ark. 115, at 4-5, 459 S.W.3d at 264. The petitioner must show there is a reasonable probability that, but for counsel's errors, the fact-finder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. Mancia , 2015 Ark. 115, at 5, 459 S.W.3d at 264. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. Additionally, conclusory statements that counsel was ineffective cannot be the basis for postconviction relief. Id. A person seeking postconviction relief on a claim of ineffective assistance that is based on the failure of counsel to make a motion or objection must show that counsel could have made a successful argument in order to demonstrate the prejudice required under the Strickland test. Breeden v. State , 2014 Ark. 159, at 6-7, 432 S.W.3d 618, 624 (per curiam). Failure to make a meritless objection or motion does not constitute ineffective assistance of counsel. Id. ; Greene v. State , 356 Ark. 59, 70, 146 S.W.3d 871, 880 (2004). When a petitioner attacks a plea of guilty in a postconviction petition, the only issues considered by this court are whether the petitioner entered the plea knowingly and intelligently, with the advice of competent counsel, and whether the circuit court had subject-matter jurisdiction over the criminal offense to which the defendant pleaded guilty. Zoller v. State , 282 Ark. 380, 669 S.W.2d 434 (1984). III. Arguments Not Preserved In his petition below, Wilson argued six numbered grounds as set forth above. On appeal, Wilson's argument is divided into three sections: (1) subject-matter jurisdiction; (2) ineffective-counsel and due-process violations; and (3) conclusion. Because Wilson's argument does not mirror the petition filed below, there are arguments Wilson presents on appeal that were never presented for the circuit court's consideration. It is appellant's obligation to obtain a ruling from the circuit court in order to properly preserve an issue for review. Beshears v. State , 340 Ark. 70, 72, 8 S.W.3d 32, 34 (2000). Thus, Wilson's arguments that "a plea bad in part is bad for the whole," "the rules of new trial do not permit new charges," and "charges cannot be orally amended" are not preserved for appellate review. IV. Preserved Arguments With regard to the arguments made on appeal that correlate to the petition denied below, Wilson contends that the record is devoid of a valid charging instrument regarding sexual indecency with a child. Because there was no charging instrument on sexual indecency, Wilson contends that his negotiated plea is invalid because the "State did not acquire proper jurisdiction from pleadings," citing Hall v. State , 326 Ark. 823, 933 S.W.2d 363 (1996) (wherein a properly signed amended information gave jurisdiction to the circuit court). In an appeal from the denial of a petitioner's habeas corpus petition, the Arkansas Supreme Court stated, Unquestionably, the appellant here had been correctly charged with murder and the trial court, entering its conviction, clearly had jurisdiction over appellant's person as well as the criminal matter involved. Appellant's actual argument is that the trial court was somehow divested of that jurisdiction upon his requesting, and the court's granting, an erroneous instruction which resulted in his conviction of a different felony from the one charged, viz., hindering apprehension instead of murder. We cannot agree. As we have already pointed out, the trial court had both personal and subject matter jurisdiction of this case. While the court may have erred at trial by granting appellant's request to instruct the jury on hindering apprehension as a lesser included offense, this error would not take away the court's subject matter jurisdiction. Appellant could have appealed the trial court's ruling to determine whether the hindering apprehension instruction was erroneously given and reversible or whether he invited such error for which he could not complain. See Harris v. State , 295 Ark. 456, 748 S.W.2d 666 (1988). In other words, if the trial court erred in its decision or proceeded irregularly within its assigned jurisdiction, as was the case here, the appellant's remedy was by direct action in the erring court or by appeal. Birchett v. State , 303 Ark. 220, 221-22, 795 S.W.2d 53, 54 (1990). Based on the reasoning in Birchett , we hold that the circuit court had jurisdiction over Wilson after the circuit court erred by instructing the jury on offenses that were not lesser-included offenses of rape. Because the circuit court had jurisdiction to accept Wilson's plea and to sentence him, his counsel was not ineffective for failing to make a frivolous objection to the court's jurisdiction. E.g. , Cox v. State , 365 Ark. 358, 229 S.W.3d 883 (2006). Wilson also contends that he was twice convicted for the same offense because his conviction for sexual indecency with a child had been vacated when he pleaded no contest to the same charge; thus, he contends that his plea was a violation of double jeopardy. Hagen v. State , 315 Ark. 20, 864 S.W.2d 856 (1993). The circuit court's order does not address Wilson's double-jeopardy argument because the argument was made in relation to Wilson's contention that his counsel was ineffective for failing to "investigate jurisdiction." The circuit court ruled that it had jurisdiction over Wilson and that Wilson could have raised the issue on direct appeal or at trial and did not. Nonetheless, Wilson's nolo contendere plea to sexual indecency with a child was not a second conviction for the same offense. Wilson's plea occurred after he had filed a motion for a new trial. He then entered his plea to avoid being tried for the greater offense of second-degree sexual assault. By virtue of his plea, he stands convicted of only a single count of sexual misconduct with a child, and he is serving a six-year sentence for only that offense. Wilson claims that convicting a person for a crime with which he was never charged is a clear violation of the right to due process. Hagen , supra (citing general rule but holding that appellant was, in fact, given adequate notice under the state and federal constitutions). In Wilson v. State , 251 Ark. 900, 475 S.W.2d 543 (1972), the Arkansas Supreme Court held that a defendant seeking postconviction relief may not attack the validity of a guilty plea by arguing that the information charging him with an offense was defective unless it did not sufficiently apprise him of the charges against him. It is well settled that the State is entitled to amend an information at any time prior to the case being submitted to the jury so long as the amendment does not change the nature or degree of the offense charged or create unfair surprise. Flanagan v. State , 368 Ark. 143, 243 S.W.3d 866 (2006) ; DeAsis v. State , 360 Ark. 286, 200 S.W.3d 911 (2005) ; Stewart v. State , 338 Ark. 608, 999 S.W.2d 684 (1999). In Kelch v. Erwin , 333 Ark. 567, 970 S.W.2d 255 (1998), this court analyzed the issue of whether a trial court properly allowed the State to amend an information to conform to the proof in the case. In ruling that the amendment was proper, this court quoted from Wilson v. State , 286 Ark. 430, 692 S.W.2d 620 (1985) and stated: The state is entitled to amend an information to conform to the proof when the amendment does not change the nature or degree of the alleged offense.... Such authorization simplifies procedure and eliminates some technical defenses by which an accused might escape punishment.... The change sought by the state would not have changed the nature or degree of the offense but would merely have authorized a less severe penalty. Id. at 432, 692 S.W.2d at 621 (citations omitted) (quoting State v. Brown , 283 Ark. 304, 306, 675 S.W.2d 822, 824 (1984) ). This court has even allowed an amendment that authorizes a more severe penalty where the appellant was sufficiently apprised of the specific crime charged "to the extent necessary to enable her to prepare her defense, that being all that is required." Kelch , 333 Ark. at 574, 970 S.W.2d at 258 (citing Workman v. State , 267 Ark. 103, 589 S.W.2d 20 (1979) ). Hill v. State , 370 Ark. 102, 105-06, 257 S.W.3d 534, 537 (2007). Wilson's due-process argument related to his indictment is without merit. He pled guilty to sexual indecency with a child, an offense of which he was sufficiently apprised. To argue that at the time of his plea agreement the State had not amended the criminal information to include the charge is disingenuous. As argued by the State, because Wilson had been found not guilty of rape, the new trial he sought would have been a trial for second-degree sexual assault. When the circuit court was going to grant the new trial, Wilson agreed to plead no contest to the lesser offense of sexual indecency with a child. The State claims that if the circuit court had ordered a new trial, the State could have amended its information to conform to the proof presented at Wilson's first trial. E.g. , Hill, supra. Again, counsel's failure to make a meritless objection or motion does not constitute ineffective assistance of counsel. Breeden, supra. Wilson argues that the circuit court erred when it denied his motion for reconsideration of his Rule 37 petition and request for an evidentiary hearing because a hearing is mandatory under the rule. Carter v. State , 342 Ark. 535, 29 S.W.3d 716 (2000) (if a trial court fails to make written findings in accordance with the governing rule of procedure when denying postconviction relief without a hearing, it is reversible error); Ark. R. Crim. P. 37.3(a). Under Rule 37.3, a hearing is not mandatory, but written findings are mandatory when a hearing is not held. Because the circuit court made the required findings, Wilson's argument fails. Wilson also argues that because the circuit court did not address the merits of his motion for reconsideration, the circuit court "admitted" the merit of his motion. Wilson's citation to Arkansas Rule of Civil Procedure 8 is inapplicable, and his argument is misplaced. Rule 8 guides litigants in the general rules of pleading; circuit courts are not subject to the rule and do not make admissions as discussed in it. Wilson contends that because the circuit court did not address his argument regarding lack of subject-matter jurisdiction, the circuit court conceded the issue. Again, Wilson's argument here is inapposite because Ark. R. Civ. P. 8 does not apply. He points to his Rule 37 petition and his motion to vacate wherein his subject-matter-jurisdiction argument was made and argues that the circuit court erred in determining that he did not raise the issue regarding the fact that he was not properly charged. Wilson misinterprets the circuit court's finding; the circuit court found that Wilson could have raised the issue on direct appeal but did not. This finding is not in error. Wilson contends that his counsel's actions fell below the standard demanded in Strickland , supra , because counsel intentionally and knowingly supported the circuit court by maliciously coercing him with false information into a criminal act of fraud against the State to maintain and acquire a fraudulent conviction. Wilson claims that counsel did this by refusing to object to the plea "as without subject-matter jurisdiction." Thus, Wilson claims that this resulted in a due-process violation. Under Breeden , supra , counsel is not required to make a meritless objection or motion. Here, the argument that the circuit court was without subject-matter jurisdiction is negated by Birchett, supra . V. Conclusion The circuit court properly denied Wilson's Rule 37 petition. The following colloquy occurred at the hearing on Wilson's motion for new trial: MR. ADAMS : Judge, in the meantime, we have reached an agreement, if the Court will accept it, to allow the Defendant to enter a plea of guilty to sexual indecency with a child-excuse me-nolo for sexual indecency with a child, six years in the Arkansas Department of Correction, Court costs, DNA fee and registration as a sex offender. COURT : So, my understanding is, Mr. Wilson, you wish to-rather than have a new trial, you wish to admit you-or plead no contest to the charge of Sexual Indecency with a Child, is that right? WILSON : No, ma'am. Yes, ma'am. COURT : All right, I'm looking at a document entitled Plea and Waiver. Have you ever seen this document before? WILSON : Yes, ma'am. COURT : Did you read it? WILSON : Yes, ma'am. COURT : Did you sign it? WILSON : Yes, ma'am. COURT : Did you go over it with Mr. Adams? WILSON : I did. COURT : This document sets out the constitutional rights that you give up by pleading guilty or no contest to an offense in this Court. Do you understand those constitutional rights? WILSON : Yes, ma'am. COURT : In fact, we had a jury trial in this case so in fact you did go to jury trial at one time in this case, is that right? WILSON : I did go to jury trial, ma'am. COURT : All the way through. The jury found you guilty of sexual abuse in the second degree and sexual indecency with a child, is that right? WILSON : Yes, ma'am. COURT : So, you understand these constitutional rights because you've exercised these constitutional rights, is that right? WILSON : Yes, ma'am. .... COURT : And you understand the rights that you're giving up by pleading guilty or no contest. WILSON : I do, ma'am. COURT : You understand that a no-contest plea is exactly the same thing as a guilty plea? WILSON : I do understand that. .... COURT : Anyone used any force or threats to get you to do this? WILSON : No, ma'am. COURT : I'm looking at a document entitled Plea Agreement Under Arkansas Rules of Criminal Procedure 25. Have you ever seen this document before? WILSON : Yes, ma'am. COURT : Did you read it? WILSON : I did. COURT : Did you sign it? WILSON : Yes, ma'am. COURT : Did you go over it with Mr. Adams? WILSON : I did. .... COURT : Other than the promise made by the State in this document to recommend a sentence of six years in the Department of Correction, court costs and DNA fee, other than those promises has anyone made any other promises to you to get you to admit your violation? WILSON : No, ma'am. .... COURT : Are you admitting that you committed the offense? MR. ADAMS : He pleads nolo to that, Judge. COURT : You admit that the State could prove that you committed the offense. MR. ADAMS : We believe that the jury verdict proved that. COURT : Right. Is that right? WILSON : Yes, ma'am. .... COURT : Mr. Wilson, are you satisfied with the advice and counsel of Mr. Adams and his office? WILSON : Yes, ma'am, he's been very effective, yes. The State correctly points out that a hearing on a Rule 37 petition is not mandatory if the court can rule without a hearing. See Ark. R. Crim. P. 37.3(a). The State contends that motions for reconsideration are not permitted in Rule 37 proceedings unless the court is asked to rule on a claim that it overlooked. Ark. R. Crim. P. 37.2(d). However, Wilson's motion for reconsideration expresses his disagreement with the circuit court's findings. There is no assertion that the court overlooked or omitted any of his claims. The State challenges Wilson's assertion that his counsel coerced him to enter his plea of no contest because the record as set forth in the above colloquy belies that claim. Wilson stated that he understood his constitutional rights, that he wanted to plead no contest to sexual indecency with a child, and that no one forced him to enter the plea. Wilson signed the plea agreement and stated that he believed the State could prove that he committed sexual indecency with a child and that he was satisfied with his counsel's "very effective" representation of him. We hold that Wilson's counsel's performance did not fall below an objective standard of reasonableness. Strickland, supra . Affirmed. Klappenbach and Brown, JJ., agree.

PHILLIP T. WHITEAKER, Judge Josue Tovias appeals from a Washington County Circuit Court order terminating his parental rights to JT, born September 25, 2012. On appeal, Tovias argues that the trial court erred in terminating his parental rights because (1) the Arkansas Department of Human Services (DHS) failed to establish he was a parent for purposes of satisfying the statutory-grounds requirement for termination and (2) there was insufficient evidence of potential harm to satisfy the best-interest requirement for termination. On the record as presented to us, we must reverse because there is no evidence that Tovias's status as a "legal father" falls within the statutory definition of a parent for purposes of the aggravated-circumstances ground for termination. I. Factual and Procedural History We provide the following review of the factual and procedural history for an understanding of our analysis. In January 2018, Tovias was living with his girlfriend, Melissa Miranda; her son, JT; and her four other children. Both Miranda and Tovias were arrested on charges related to the abuse and neglect of the children, at which point the children were left without a caregiver. As a result of the abuse and neglect allegations and the absence of a caregiver, DHS exercised a seventy-two-hour hold on all the children and filed a petition for emergency custody and dependency neglect alleging that the children were dependent-neglected. Tovias was not named as a party in the petition or in the ex parte order for emergency custody. After the children's removal, the court conducted a probable-cause hearing. The court heard evidence of the numerous criminal charges that had been filed against both Miranda and Tovias. Specifically as to Tovias, the court was informed that he had been arrested and charged with second-degree domestic battering, aggravated assault on a family or household member, first-degree endangering the welfare of a minor, tampering with physical evidence, kidnapping, terroristic threatening, and permitting child abuse. The court recognized Tovias as the putative father of JT but did not order DNA testing. The court conducted an adjudication hearing in March 2018, in which it found that the children were dependent-neglected as a result of abuse and neglect. The court specifically identified Miranda as the perpetrator of the "horrific abuse" inflicted on one of JT's siblings and ordered the goal of the case to be reunification with a concurrent goal of adoption. The court again recognized Tovias as the putative father of JT, found that he had established significant contacts with JT, and concluded that his putative parental rights had attached. Despite these findings, the court once again failed to order DNA testing. DHS subsequently filed a motion to terminate reunification services. At the hearing on the motion, the court found that Tovias was the "legal father" of JT and ordered the clerk to add him to the style of the case. Our review of the no-reunification order reveals no basis for how this determination was made-there is no mention of any evidence of any DNA testing or any acknowledgment of paternity in the order. Immediately following the no-reunification-services hearing, the court conducted a permanency-planning hearing. The order filed thereafter is perplexing. The court clearly found that the permanent goal for JT was adoption with DHS filing a petition for termination of parental rights. The court again clearly found Tovias to be JT's "legal father" and that he was entitled to appointed counsel at the hearing to terminate parental rights. This clarity, however, is clouded by language in that same sentence indicating that counsel would be appointed if the "putative" parent requested it. So, in the very same sentence , the court referred to Tovias as both the "putative father" and the "legal father." DHS filed its petition to terminate parental rights in which it identified Tovias as the "legal father" of JT, alleged that termination was in the best interest of the children, and listed aggravated circumstances as the statutory ground for termination. After a termination hearing, the trial court found that DHS had proved aggravated circumstances by clear and convincing evidence and that termination was in JT's best interest. Tovias appeals both the court's statutory-grounds and its best-interest findings. II. Standard of Review and Applicable Law Our supreme court has held that the termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Earls v. Ark. Dep't of Human Servs. , 2017 Ark. 171, 518 S.W.3d 81. We, therefore, review termination-of-parental-rights cases de novo. Harjo v. Ark. Dep't of Human Servs. , 2018 Ark. App. 268, 548 S.W.3d 865. To terminate parental rights, the court must find the existence of at least one statutory ground, in addition to a finding that it is in the child's best interest to terminate parental rights. Ark. Code Ann. § 9-27-341 (Supp. 2017); Kohlman v. Ark. Dep't of Human Servs. , 2018 Ark. App. 164, 544 S.W.3d 595. A trial court's findings on statutory grounds and best interest are factual findings, and we will not reverse the trial court's ruling unless its findings are clearly erroneous. Sharks v. Ark. Dep't of Human Servs. , 2016 Ark. App. 435, 502 S.W.3d 569. A finding is clearly erroneous when, although there is evidence to support it, we are left with a definite and firm conviction that a mistake has been made. Id. On appeal, Tovias argues that DHS only pled, and the court only found, one statutory ground for termination-aggravated circumstances. He further argues that the aggravated-circumstances ground applies only to one who is a "parent." More specifically, he argues that the juvenile code provides a very specific definition of parent and that his status as a "legal father" does not satisfy that definition. His arguments involve statutory construction. We review issues of statutory interpretation de novo, as it is for this court to decide what a statute means. Baker Refrigeration Sys., Inc. v. Weiss , 360 Ark. 388, 201 S.W.3d 900 (2005) ; Monday v. Canal Ins. Co. , 348 Ark. 435, 73 S.W.3d 594 (2002). Our basic rule of statutory construction is to give effect to the intent of the legislature. Ward v. Doss , 361 Ark. 153, 205 S.W.3d 767 (2005) ; Ark. Tobacco Control Bd. v. Santa Fe Nat. Tobacco Co., Inc. , 360 Ark. 32, 199 S.W.3d 656 (2004). Where the language of a statute is plain and unambiguous, we determine legislative intent from the ordinary meaning of the language used. Id. In considering the meaning of a statute, we construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. We construe the statute so that no word is left void, superfluous, or insignificant, and we give meaning and effect to every word in the statute, if possible. Id. When the language of a statute is plain and unambiguous, there is no need to resort to rules of statutory construction. Stephens v. Ark. Sch. for the Blind , 341 Ark. 939, 20 S.W.3d 397 (2000) ; Burcham v. City of Van Buren , 330 Ark. 451, 954 S.W.2d 266 (1997). We are not bound by the trial court's interpretation of a statute. However, in the absence of a showing that the trial court erred, its interpretation will be accepted as correct on appeal. Id. III. "Legal Father" as "Parent" The court terminated the parental rights of Tovias under the aggravated-circumstances ground codified at Arkansas Code Annotated section 9-27-341(b)(3)(B)(ix)(a) . This statute allows for the termination of parental rights when a "parent" is found by the trial court to have subjected the juvenile(s) to aggravated circumstances. Riggs v. Ark. Dep't of Human Servs. , 2019 Ark. App. 185. "Parent" is defined by Arkansas Code Annotated section 9-27-303(40) as a biological mother, an adoptive parent, or a man to whom the biological mother was married at the time of conception or birth, who has signed an acknowledgment of paternity pursuant to section 9-10-120, or who has been found by a court of competent jurisdiction to be the biological father of the juvenile. We hold that the language of these statutes is plain and unambiguous and sets forth unequivocally the classes of persons for whom the aggravated-circumstances findings are applicable. As this case has been presented to us, Tovias simply does not fall within any of these designated categories. Here, Tovias is not the mother, he is not an adoptive parent, and there is no evidence in the record that he was married to the mother at the time of JT's conception or birth; nor is there any evidence in our record that he has signed an acknowledgment of paternity pursuant to section 9-10-120 or that he has been found by the court to be the biological father of JT. What we do have is a finding by the court that Tovias is the "legal father" of JT. We cannot, however, ascertain on what basis this determination was made, and we note that the terms "legal father" and "biological father" are not interchangeable. While a biological father can be a legal father, not all legal fathers are biological fathers. For example, a man can be a legal father based on his marriage at the time of conception or birth, by adoption, by acknowledgment, and yes, by biology-but at least for the purposes of the termination statutes, only if the court so finds. Both our court and the supreme court have addressed the significance of the distinction between the terms "legal father" and "parent" in recent years. In Howerton v Arkansas Department of Human Services , 2016 Ark. App. 560, 506 S.W.3d 872, our court was faced with the situation in which there were, by definition, two legal fathers-a father by acknowledgment (Howerton) and a biological father (Edgar). The trial court recognized both fathers in the termination proceedings. We reversed, holding that a child cannot have more than one legal father; thus, once it was determined that Edgar was the biological father of the child, Howerton's status changed, and he was no longer deemed to be the "legal father." As a result, he had no legal rights to terminate. Our case law indicates that it is necessary for a court to find that the father is the biological father. In Earls , supra , the supreme court held that Earls was not a parent for purposes of the termination statute even though DNA evidence was introduced indicating Earls was the biological father of the child. In that case, the trial court never recognized Earls as the biological father of the child, continued to treat him as a putative father, and never entered any order establishing his "legal status" as a "biological parent." Similarly, our court has also reversed a termination because the trial court failed to make a finding that the father was the "biological father" of the child. In Northcross v. Arkansas Department of Human Services , 2018 Ark. App. 320, 550 S.W.3d 919, we held that even though there was DNA evidence to support a finding that Northcross was the child's father, the trial court had failed to elevate Northcross's status to that of a "parent" by making a finding that he was the biological father of the child. In other words, we concluded that the entry of the DNA test was insufficient by itself to make him a parent under the termination statutes. In so doing, we noted that this court cannot make a finding regarding paternity when the circuit court deliberately did not do so. However, we have held that a party may, in some instances, acquiesce in a court's finding of "legal" parentage. In Brown v. Arkansas Department of Human Services , 2018 Ark. App. 104, 542 S.W.3d 899, Brown had been identified as the biological father of the child based on DNA results. The court added Brown as a party to the case and entered an order denoting him as the "legal father." Brown appealed, arguing that he had not specifically been found to be the biological parent and that his rights should not have been terminated. We affirmed the termination, holding that Brown had consented to and acquiesced in the trial court's finding that established his parental status. In doing so, however, we noted that the trial court had treated him as the "legal father" "after DNA testing had confirmed he [was] the biological father. " Brown , 2018 Ark. App. 104, at 11, 542 S.W.3d at 905 (emphasis added). We have also held that a trial court's finding that a party is the biological parent without a corresponding pronouncement of the party's legal status as a parent is sufficient. In Johnson v. Arkansas Department of Human Services , 2018 Ark. App. 221, 547 S.W.3d 489, Johnson had a DNA test that indicated paternity, and an order of paternity was prepared but never entered. The court, however, in its fifteen-month-review hearing order, did state that a DNA test had shown Johnson to be the biological father. Under those facts, we found there was sufficient evidence to support a finding that Johnson was a "parent." Unlike the preceding cases, here, we only have a finding of legal status and absolutely no basis in the record to support it. In that sense, the facts in this case are even more problematic than the facts presented in Earls and Northcross where we reversed despite DNA results indicating paternity. Nor is this case like Johnson , where there was a written acknowledgement by the court in a review order that Johnson was the biological father. Our facts are more consistent with those in Earls and Northcross than in Johnson . We also decline to hold, as we did in Brown , that Tovias acquiesced in the court's finding of parentage. First, unlike in Brown , there is no underlying evidence to support the trial court's finding. Second, we note that the trial court's orders in this case frequently exchanged the terms "legal father" and "putative father" when referring to both Tovias and Flores-the other "father" identified in the case. As a result, we cannot tell on what basis the court made its finding of Tovias's status as "legal father" or how much significance to place on it; on this record, the court's designation of Tovias's status as a "legal father" is murky at best. Because we reverse the termination decision on the statutory-grounds issue, we need not address Tovias's best-interest challenge. Reversed and remanded. Virden and Gladwin, JJ., agree. Tovias has another child, JT, who was born on April 30, 2018, after the institution of these proceedings and is not a subject of this termination action. To eliminate any confusion, this child will be referred to as "JT (18)." Tovias has no legal or biological relationship to the other four children, and their rights are not at issue here. Miranda is not a party to this appeal. The petition named Juan Manuel Flores as the legal father of three of JT's siblings. Flores is not a party to this appeal. The motion indicates it was received by the court on March 27 prior to adjudication but was not filed of record until March 29-the day after the adjudication hearing. Oddly, Juan Manuel Flores, while designated in the style of the case as the legal father of three of JT's siblings, was described as a putative father in the body of the court's order. Again, the case caption lists Flores as the legal father of three of the children, but the petition only identifies him as the putative father of the three. The termination hearing was held on August 23, 2018, immediately following the adjudication, no-reunification-of-services, and permanency-planning hearings for JT (18). At some point after the permanency-planning hearing for JT, Tovias and Miranda wed. They were married at the time JT (18) was born, thereby making Tovias the presumed legal father of JT (18).

RHONDA K. WOOD, Associate Justice Craig Allen Wade appeals from the denial of his pro se petition for a writ of error coram nobis. Wade alleged that his guilty plea was not voluntarily or intelligently entered because his counsel led him to believe that his sentence would be life, not life without parole. Wade has also filed a motion for an extension of time to file his brief-in-chief. This court will not permit an appeal from the denial of coram nobis relief when it is clearly without merit. Hill v. Kelley , 2018 Ark. 118, 542 S.W.3d 852. Because it is clear from the record that Wade's allegations fail to state a claim for coram nobis relief, the appeal is dismissed, and the motion to file a belated brief-in-chief is moot. Error coram nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Nelson v. State , 2014 Ark. 91, 431 S.W.3d 852. The writ functions to secure relief from a judgment rendered when there existed some fact that would have prevented its rendition had the circuit court known it and, through no fault of the defendant, the fact was not brought forward before judgment. Id. The writ is issued only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. It is available to address errors found in one of four categories: (1) insanity at the time of trial, (2) a coerced guilty plea, (3) material evidence withheld by the prosecutor, or (4) a third-party confession to the crime during the time between conviction and appeal. Id. In 2016, Wade pleaded no contest to capital murder and aggravated robbery, and the court sentenced him to life imprisonment without parole for the former and to a concurrent sentence of life imprisonment for the latter. In his petition for the writ of error coram nobis, Wade contended that his guilty plea was coerced and not entered voluntarily or intelligently. Wade alleged that he entered into the plea agreement on the "sole belief at that time as explained to him by his attorney of record, that he would be doing a regular life sentence (not life without parole) and after 12 years petitioner could go before the parole board for clemency consideration from the governor." Wade's allegation amounts to a claim of ineffective assistance of counsel. Such claims are not cognizable in error coram nobis proceedings. Under our state law, coram nobis proceedings are not a substitute for claims of ineffective assistance of counsel under Arkansas Rule of Criminal Procedure 37.1 (2018). State v. Tejeda-Acosta , 2013 Ark. 217, 427 S.W.3d 673. Wade contends that his counsel provided misleading advice with respect to his life sentence and maintains that due to counsel's erroneous advice, he pleaded guilty based on the belief that his life sentence included a possibility of parole. Wade does not allege any facts that his guilty plea coerced, forced, or a result of fear or duress as required for a writ of error coram nobis in this context. Nelson , 2014 Ark. 91, 431 S.W.3d 852. Wade did not allege that his guilty plea resulted from any form of physical or psychological duress, but instead alleged that he was provided erroneous advice with respect to parole eligibility. Erroneous advice does not render a guilty plea involuntary nor does it support a claim of a coerced plea, providing a basis for coram nobis relief. Green v. State , 2016 Ark. 386, 502 S.W.3d 524. Appeal dismissed; motion moot. Hart, J., dissents. Josephine Linker Hart, Justice, dissenting. I dissent for the reasons outlined in Gray v. State , 2018 Ark. 79, 540 S.W.3d 658 (Hart, J., dissenting)

KAREN R. BAKER, Associate Justice Petitioner Tracy Lee Bryant asks for permission to proceed with a belated appeal of an order denying his pro se petition for writ of error coram nobis. He has also filed a pro se motion requesting that counsel be appointed for the proceedings, a motion seeking to supplement his appeal, a motion to file rule on clerk in which he seeks permission to file pleadings in the matter without a notarized signature, a motion in which he seeks to add "to [his] error coram nobis," a second motion to supplement, and a second motion to add. In his coram nobis petition, Bryant challenged the judgment and commitment order that was entered subsequent to his guilty plea on the charges of aggravated robbery, theft of property, and two counts of theft by receiving. The partial record filed with the motion for belated appeal contains no notice of appeal. Bryant alleges difficulties concerning injuries that he received and gaining access to books as his bases for excusing the procedural default. However, because his coram nobis petition stated no basis for the writ to issue, we deny the motion for belated appeal. The motions for appointment of counsel, to supplement the appeal, to file rule on clerk, "to add to [Bryant's] coram nobis," second motion to supplement, and second motion to add are therefore moot. Under Arkansas Rule of Appellate Procedure-Criminal 2(e), this court may act on and decide a case in which the notice of appeal was not filed in the time prescribed when a good reason for the omission is shown. Yet this court need not consider the reasons for the petitioner's failure to file a timely notice of appeal when it is clear from the record that the postconviction petition denied was wholly without merit. Latham v. State , 2018 Ark. 44, 2018 WL 897481. An appeal from an order that denied a petition for a postconviction remedy, including the denial of a petition for writ of error coram nobis, will not be permitted to go forward when it is clear that the petitioner could not prevail. Whitney v. State , 2018 Ark. 138, 2018 WL 1957111. A writ of error coram nobis is an extraordinarily rare remedy, more known for its denial than its approval. State v. Larimore , 341 Ark. 397, 17 S.W.3d 87 (2000). Coram nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Green v. State , 2016 Ark. 386, 502 S.W.3d 524. The function of the writ is to secure relief from a judgment rendered while there existed some fact that would have prevented its rendition had it been known to the trial court and which, through no negligence or fault of the defendant, was not brought forward before rendition of the judgment. Id. The petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the record. Roberts v. State , 2013 Ark. 56, 425 S.W.3d 771. The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. Howard v. State , 2012 Ark. 177, 403 S.W.3d 38. A writ of error coram nobis is available for addressing certain errors that are found in one of four categories: (1) insanity at the time of trial, (2) a coerced guilty plea, (3) material evidence withheld by the prosecutor, or (4) a third-party confession to the crime during the time between conviction and appeal. Id. The standard of review of an order entered by the trial court on a petition for writ of error coram nobis is whether the trial court abused its discretion in granting or denying the writ. Griffin v. State , 2018 Ark. 10, 535 S.W.3d 261. An abuse of discretion occurs when the court acts arbitrarily or groundlessly. Id. There is no abuse of discretion in the denial of error coram nobis relief when the claims in the petition were groundless. Id. Bryant asserted three claims in his petition: (1) that his allegations of mental disease or defect were not fully adjudicated; (2) that his guilty plea was coerced; and (3) that his trial counsel was ineffective. This court has repeatedly held that an ineffective-assistance-of-counsel claim is not a ground for the writ. Mosley v. State , 2018 Ark. 152, 544 S.W.3d 55. The other two claims were framed to fall within two of the recognized categories of error that will support the writ but failed to allege any facts to support those claims. Bryant's competency claim in the petition is not clear. He contends that there was trial error in accepting his plea without having the mental evaluation mandated when his attorney raised the potential for a defense based on mental disease or defect. He alleged that he was prejudiced at the sentencing hearing because he did not have such an evaluation. Yet, as he acknowledges, Bryant's decision to enter a plea of guilt effectively waived any such defense. To the extent that Bryant alleged he was incompetent to enter his plea, he did not plead any facts in the petition to support that claim and certainly pointed to none outside the record. Bryant noted considerable discussion at his sentencing about his failure to take medications prescribed for bipolar disorder after his release from prison. It is recognized that not every manifestation of mental illness demonstrates incompetence to stand trial. Newman v. State , 2014 Ark. 7, 2014 WL 197789 (citing United States v. Turner , 644 F.3d 713 (8th Cir. 2011) ). The mere fact that Bryant suffered from, and was treated for, a mental illness does not establish his incompetence, and his diagnosis was clearly known at the time of his guilty plea. A defendant in a criminal case is ordinarily presumed to be mentally competent to stand trial, and the burden of proving incompetence is on the defendant. Deason v. State , 263 Ark. 56, 562 S.W.2d 79 (1978). When a petitioner seeking the writ makes no assertion that there was any evidence concerning his incompetence extrinsic to the record, hidden from the defense, or unknown at the time of trial, grounds based on the petitioner's incompetence fail. Martinez-Marmol v. State , 2018 Ark. 145, 544 S.W.3d 49. In sum, Bryant has not shown that there existed some fact-incompetence at the time of his guilty plea-that would have prevented rendition of the judgment had it been known to the circuit court and that, through no negligence or fault of the defendant, was not brought forward before rendition of judgment. Bryant's final claim of a coerced guilty plea was intertwined with his earlier allegations of incompetency. However, Bryant failed to offer additional facts to support those allegations. Instead, Bryant raised additional issues concerning whether his plea was voluntary, the court's failure to follow proper plea procedure, and ineffective assistance of counsel. To prevail on a claim that a writ of error coram nobis is warranted because a plea was coerced, the petitioner bears the burden of establishing that the plea was the result of fear, duress, or threats of mob violence as previously recognized by this court as grounds for a finding of coercion. Griffin , 2018 Ark. 10, 535 S.W.3d 261. Bryant alleged no facts to support such a conclusion. Those allegations in a coram nobis petition that appeared to attack a plea of guilty on the basis that it was not entered intelligently and voluntarily fail, because any such claim should have been brought under Arkansas Rule of Criminal Procedure 37.1 and not in a petition for writ of error coram nobis. Smith v. State , 2017 Ark. 236, 523 S.W.3d 354. Issues concerning the trial court's failure to comply with mandatory procedural rules are likewise addressed under Rule 37. Deason , 263 Ark. 56, 562 S.W.2d 79. Because the only cognizable claims raised in the petition did not state adequate facts to support those claims, the coram nobis petition denied was wholly without merit. It is therefore clear that Bryant can show no abuse of discretion in the denial of relief, and he could not prevail on appeal. Motion for belated appeal denied; motions for appointment of counsel, to supplement appeal, to file rule on clerk, to add, second motion to supplement, and second motion to add moot. Hart, J., dissents. Josephine Linker Hart, Justice, dissenting. There is no notice of appeal in the record of Mr. Bryant's case. A notice of appeal is necessary to confer jurisdiction on this court. Bray v. State , 375 Ark. 238, 289 S.W.3d 455 (2008) ; Davis v. State , 319 Ark. 171, 889 S.W.2d 769 (1994). Without jurisdiction, this court cannot consider any of Mr. Bryant's motions, much less his appeal. Bray , supra . The majority has erroneously resorted to the new provisions in Rule 2 of the Arkansas Rules of Appellate Procedure-Criminal. The provision that the majority purports to rely on, Rule 2(e), became effective on January 1, 2019. Most of Mr. Bryant's motions were filed well before Rule 2(e) became effective. His motion for a belated appeal was filed on May 10, 2018. His motion for appointment of counsel was filed on August 20, 2018. His motion to supplement his appeal was filed on October 31, 2018. Accordingly, the jurisdictional defect in this case should have been apparent to the majority more than a year before this case was submitted. I note further that the majority's interpretation of Rule 2(e) as authority to run roughshod over the due-process rights of an incarcerated pro se litigant is indefensible. Rule 2(e) states: (e) Failure to Pursue Appeal. Failure of the appellant to take any further steps to secure the review of the appealed conviction shall not affect the validity of the appeal but shall be grounds only for such action as the Supreme Court deems appropriate, which may include dismissal of the appeal. The Supreme Court may act upon and decide a case in which the notice of appeal was not given or the transcript of the trial record was not filed in the time prescribed, when a good reason for the omission is shown by affidavit. However, no motion for belated appeal shall be entertained by the Supreme Court unless application has been made to the Supreme Court within eighteen (18) months of the date of entry of judgment or entry of the order denying postconviction relief from which the appeal is taken. If no judgment of conviction was entered of record within ten (10) days of the date sentence was pronounced, application for belated appeal must be made within eighteen (18) months of the date sentence was pronounced. The court may equitably toll this 18-month deadline if the defendant has pursued his or her rights diligently and some extraordinary circumstance stood in his or her way. Ark. R. App. P.-Crim. 2(e) (emphasis supplied). The majority has apparently latched onto the phrase "[t]he Supreme Court may act upon and decide a case in which the notice of appeal was not given or the transcript of the trial record was not filed in the time prescribed," without giving effect to the balance of the sentence that includes the clause "when a good reason for the omission is shown by affidavit." Accordingly, the sentence in its entirety is intended to allow this court to excuse what was previously regarded as a fatal defect in an appeal by an incarcerated person upon the establishment of a good reason for the omission. It is troubling that the majority has construed Rule 2(e), which was intended to safeguard an incarcerated person's constitutional right to appeal, as authority for depriving that person of it. I dissent. Bryant notes in the petition that he entered into a negotiated plea agreement involving multiple other criminal charges in other cases, and those judgments are included in the record before us. However, the petition was filed in the single case, 60CR-00-365, in which Bryant entered his plea directly to the court.

SHAWN A. WOMACK, Associate Justice Malik Muntaqim, an inmate of the Arkansas Department of Correction (ADC), appeals the denial of his motion for preliminary injunction. The circuit court denied the motion on the basis that Muntaqim failed to demonstrate both irreparable harm and a likelihood of success on the merits. We affirm. I. Procedural and Factual Background Muntaqim is a professed member of the Nation of Islam (NOI), an alternative branch of the Islamic faith. He filed the underlying suit against numerous ADC officials under, inter alia , the Free Exercise Clause of First Amendment to the United States Constitution and the federal Religious Land Use and Institutionalized Persons Act (RLUIPA). Muntaqim contends that prison officials have unlawfully withheld a number of issues of The Final Call , a weekly periodical published by the NOI, and have unconstitutionally prohibited him from leading NOI services. He moved for a preliminary injunction against ADC's publications policy as applied to NOI material and against ADC's religious services policy so that he may lead NOI services in prison. This is the second interlocutory appeal related to Muntaqim's motion for preliminary injunction. See Muntaqim v. Hobbs , 2017 Ark. 97, 514 S.W.3d 464. In the first appeal, we reversed and remanded with instructions for the circuit court to conduct a hearing on the motion. Id. During the hearing on remand, Muntaqim testified that he has consistently received The Final Call and other NOI material since 2015. He alleged that he had periodically been denied issues of The Final Call between 2013 and 2015 while incarcerated at a different unit. The court also heard testimony about the weekly Islamic prayer services offered to prisoners and Muntaqim's refusal to attend because of the presence of orthodox Muslims. ADC officials testified about the publication and religious service policies and their general application within the prison. The court issued a written order denying Muntaqim's motion for preliminary injunction. It held that Muntaqim failed to show any irreparable harm if the ADC policy prohibiting publications that promote violence remained in effect. The court also determined that Muntaqim failed to demonstrate a likelihood of success on the merits. It held that Muntaqim seeks to overturn judicial precedent recognizing the legitimate penological interests in the safety and welfare of prisoners, prison staff, and visitors. But he failed to offer any authority supporting his claims. While the court recognized that Muntaqim's claims were brought under the First Amendment and RLUIPA, its analysis was limited to the First Amendment. Muntaqim did not request any findings related to the RLUIPA claims. This appeal followed. II. Standard of Review A preliminary injunction is an "extraordinary remedy ... reserved for extraordinary circumstances." Drummond Citizens Ins. Co. v. Sergeant , 266 Ark. 611, 621, 588 S.W.2d 419, 424 (1979). When determining whether to grant a preliminary injunction, circuit courts must consider two factors: (1) whether irreparable harm will result in the absence of an injunction; and (2) whether the moving party has demonstrated a likelihood of success on the merits. See Muntaqim , 2017 Ark. 97, at 3, 514 S.W.3d at 467. A party seeking a preliminary injunction bears the burden of demonstrating both factors. See Smith v. Am. Trucking Ass'n, Inc. , 300 Ark. 594, 596, 781 S.W.2d 3, 4 (1989). We will only reverse a decision to deny a preliminary injunction for abuse of discretion, which occurs when the decision is made "thoughtlessly and without due consideration." Muntaqim , 2017 Ark. 97, at 3, 514 S.W.3d at 467. Any factual findings that lead to the circuit court's conclusions of irreparable harm and likelihood of success on the merits will not be set aside unless clearly erroneous. Baptist Health v. Murphy , 365 Ark. 115, 121, 226 S.W.3d 800, 806 (2006). The decision to issue a preliminary injunction rests within the sound discretion of the circuit court, and not in the discretion of this court. Id. Accordingly, we will not delve into the merits of the case further than necessary to determine whether the circuit court exceeded its discretion. Id. The sole question before this court is whether the circuit court departed from the rules and principles of equity in making the order, and not whether we would have made the order. Id. III. First Amendment The circuit court held that Muntaqim failed to demonstrate a likelihood of success on the merits because the challenged ADC policies are consistent with judicial precedent recognizing the legitimate penological interests of prison safety and security. As previously stated, the circuit court's decision was premised on an analysis of Muntaqim's claims brought under the Free Exercise Clause of the First Amendment. The First Amendment is made applicable to the states through the Fourteenth Amendment. See Myers v. Ark. Dep't of Human Servs. , 2011 Ark. 182, at 10, 380 S.W.3d 906, 912. The United States Supreme Court has recognized that prisoners retain protections afforded by the First Amendment. O'Lone v. Shabazz , 482 U.S. 342, 348, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987). These rights are limited, however, by the fact of incarceration and valid penological objectives, such as deterrence of crime, rehabilitation of prisoners, and institutional security. Id. Accordingly, a policy that impinges on a prisoner's constitutional rights is valid if it is "reasonably related to legitimate penological interests." Id. at 349, 107 S.Ct. 2400. Prison security has been recognized as "the most compelling government interest in a prison setting." Murphy v. Mo. Dep't of Corr. , 372 F.3d 979, 983 (8th Cir. 2004). We first address the mail policy. It is well settled that a prison may prohibit incoming publications deemed to be "detrimental to the security, good order, or discipline of the institution or if it might facility criminal activity." Thornburgh v. Abbott , 490 U.S. 401, 416, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989). A policy that allows for censorship of incoming publications deemed likely to incite prison violence is related to the legitimate penological interest in maintaining a controlled and secured prison environment. Murphy , 372 F.3d at 986. While prisoners may receive publications while incarcerated, ADC policy prohibits any publication which incites violence or contains inflammatory attitudes toward certain groups, such as those based on race or disability. According to testimony at the hearing, this policy is designed to protect the safety and security of the prison. There is no blanket prohibition of any publication. Instead, each incoming publication is individually reviewed by ADC mailroom staff. In other words, each issue of a periodical like The Final Call will be individually assessed. Any publication believed to contain language violating the policy will not distributed to the prisoner. The prisoner will be notified of the rejection and informed of his right to appeal. The appeal process is two-fold. The prisoner must first appeal to the warden. If unsuccessful, the prisoner may appeal to the publications committee. To have a broader viewpoint when assessing publications, the committee consists of persons of various races, religions, and professional backgrounds. After meeting and deliberation, the committee issues the final decision on the publication. Muntaqim seeks to enjoin this policy and require ADC to provide him with any incoming NOI material, regardless of content. The circuit court determined the mail policy was based on legitimate interests in the safety and welfare of prisoners, prison employees, and visitors. It also found the policy is applied to all incoming mail and not limited to NOI publications. Indeed, white supremacy literature promoting hate and violence has been withheld under the policy. Moreover, it is undisputed that Muntaqim has consistently received every issue of The Final Call since 2015. While he was denied some issues between 2013-2015, those issues were deemed to violate prison policy because of language suggesting that readers "rise up and strike out at their oppressors." Because the mail policy is designed to promote the legitimate penological interests of prison safety and security and requires individualized review of all incoming mail, we hold that the circuit court did not abuse its discretion in denying Muntaqim's motion for preliminary injunction on this point. Turning next to the religious services policy, Muntaqim seeks to enjoin ADC policy requiring that religious services be led by an outside, credentialed volunteer responsible for the orthodoxy of the religion or sect. Under the policy, free-world volunteers are permitted to conduct services for any religion or sect so long as they are credentialed by the respective group and pass background checks required of all prison visitors. ADC officials, including the Islamic coordinator, have unsuccessfully attempted to find outside NOI volunteers. This issue is not unique to NOI; testimony revealed this issue has arisen with other religious groups. Nevertheless, Muntaqim contends he should be permitted to lead NOI services. During the hearing, ADC's chaplain testified that this policy is designed to protect prison security and order by preventing the dissemination of unorthodox or heretical views to the respective religion or sect, which could result in violence. As indicated above, prison security is the most compelling government interest in the prison setting. See Murphy , 372 F.3d at 983. This is especially true when "dealing with group activities because of the potential for riots and the extensive damage resulting therefrom." Id. Prisoners are only allowed to lead weekly Jumu'ah prayer services. This exception is made to comply with federal law. According to Muntaqim, this service consists solely of prayer and does not include theological teaching. Moreover, Muntaqim refuses to attend. He contends it violates his religion to worship next to orthodox Muslims who do not recognize the NOI. The circuit court denied Muntaqim's motion for a preliminary injunction of this policy given the legal precedent establishing that prisons may reasonably restrict a prisoner's activities to protect the legitimate interests of prison safety. We find that decision was not an abuse of discretion. Because we affirm the circuit court's decision on this point, it is unnecessary to address the arguments regarding irreparable harm. See Martin v. Haas , 2018 Ark. 283, at 13, 556 S.W.3d 509, 517. IV. RLUIPA As indicated, the circuit court's order mentioned but did not analyze Muntaqim's claims under RLUIPA and failed to provide any findings under RLUIPA. See Holt v. Hobbs , --- U.S. ----, 135 S. Ct. 853, 190 L.Ed.2d 747 (2015) (RLUIPA analysis). Muntaqim had the burden to request those findings if he wished to preserve the RLUIPA issue for appeal. TEMCO Const., LLC v. Gann , 2013 Ark. 202, at 9, 427 S.W.3d 651, 657. We therefore decline to consider whether a preliminary injunction was appropriate under RLUIPA. Affirmed. Hart, J., would take as a case.

RAYMOND R. ABRAMSON, Judge Shaun Anthony Allen appeals from his conviction of second-degree domestic battery. On appeal, he argues that the circuit court erred by (1) denying his motion to dismiss; (2) admitting into evidence unauthenticated phone recordings; and (3) permitting an undisclosed witness to testify. We affirm. On January 31, 2017, the State charged Allen with second-degree domestic battery in the Lonoke County Circuit Court. The State also charged Allen as a habitual offender. On March 7, 2017, Allen's counsel filed a motion for discovery requesting the names and addresses of the persons whom the prosecuting attorney intended to call as witnesses. On March 10, 2017, the State responded that it has an "open-file" policy that satisfies its obligations pursuant to Arkansas Rule of Criminal Procedure 17.2(b). The court set a trial date for November 15, 2017. On November 9, 2017, the State moved for a continuance because a necessary witness, Dr. Edward Gardner, was unavailable on the scheduled trial date. In the motion, the State explained that it had contacted Allen's counsel and that he did not object to the request. The court granted the State's motion, and the case proceeded to a bench trial on January 10, 2018. At trial, Officer Randy Mauk testified that Brittany Allen, Allen's wife, came to the Lonoke Police Department to make a report. Officer Mauk testified that Brittany had swelling to the left side of her face and had "limited mouth movements." He noted that she had been crying and appeared scared and nervous. He explained that after he received Brittany's report, he arrested Allen and interviewed him. He recorded the interview, and the interview was played for the court. In the interview, Allen stated that he and Brittany had a disagreement concerning his texting another woman. He admitted that he had abused Brittany in the past but denied breaking her jaw. Melissa Woodard, an employee with the Division of Children and Family Services, testified that she spoke with Allen regarding a hotline report. She testified that Allen told her that he and his wife Brittany had a fight concerning his communicating with another woman. He reported that Brittany got upset and aggressively grabbed his phone. He then tried to retrieve his phone and accidentally hit Brittany in the face. The State then called Dr. Edward Gardner to testify, and Allen's attorney objected to the testimony. Allen argued that the State had failed to disclose Dr. Gardner as a witness. Allen acknowledged that he had received medical records concerning Brittany's injuries but stated that they were not Dr. Gardner's records. The State responded that Dr. Gardner's records had been in the case file since March or April 2017. The court overruled Allen's objection and permitted Dr. Gardner to testify. Dr. Gardner testified that he is an ear, nose, and throat doctor and that he saw Brittany in the emergency room with a fractured cheekbone. He explained that Brittany could not open her mouth and that she was in pain. He stated that he performed surgery on Brittany to repair the fracture and that without the surgery, the injury would have affected her ability to have a normal life. Kim Doney testified that she is the assistant jail administrator at the Lonoke County Sheriff's Office. She explained that she can access recordings of inmate phone calls by entering an inmate's name or the telephone number that had been dialed. She stated that the State provided her with a telephone number along with dates and times and that she located recordings of the calls placed to that number. She noted that the inmate associated with the calls was Jeremiah Eds but that the calls were made while Allen was housed at the Lonoke Detention Center. The State then moved to introduce the recordings. Allen objected, stating that the State could not introduce the recordings until they were properly authenticated. The State asserted that Allen self-identified himself in the phone call. The court admitted the recordings. In the recordings, the male and female refer to each other as "Shaun" and "Brittany." The female asks the male for his email address, and he responds, "Shaunallen22." The female further discusses her broken jaw. She states that she cannot eat and that she needs surgery to place a steel rod and plate to repair the injury. The male apologizes for his actions and explains that he is addicted to drugs. The female responds that the drugs caused him to be a "mean, violent person." Brittany then testified that Allen is her husband and that they have been married for nine years. She explained that she and Allen had fought over his communicating with another woman. She stated that she yelled, threw his phone at him, hit him in the chest, and grabbed his genitals. She stated that, in response, he hit her in the face. Brittany testified that she did not inform the police about her aggressive behavior toward Allen and that she may have said "some things that [she] didn't mean" to Officer Mauk. She explained that she had surgery to repair her cheekbone and that Shaun had apologized for his actions. After the State rested, Allen moved to dismiss the second-degree-domestic-battery charge. He argued that the testimony showed that Brittany initiated the altercation and that he acted in self-defense. The court denied the motion. Allen did not present any evidence. Thereafter, the court found him guilty of second-degree domestic battery and sentenced him to forty months' imprisonment followed by twelve months' suspended imposition of sentence. Allen timely appealed. We first address Allen's argument that the circuit court erred by denying his motion to dismiss. A motion to dismiss, which is identical to a motion for a directed verdict in a jury trial, is a challenge to the sufficiency of the evidence. Green v. State , 79 Ark. App. 297, 87 S.W.3d 814 (2002). When the sufficiency of the evidence is challenged on appeal from a criminal conviction, we consider only that proof that supports the conviction. Singleton-Harris v. State , 2014 Ark. App. 436, 439 S.W.3d 720. We view that evidence and all reasonable inferences deducible therefrom in the light most favorable to the State. Vines v. State , 2018 Ark. App. 496, 562 S.W.3d 246. We will affirm if the finding of guilt is supported by substantial evidence. Id. Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Clayton v. State , 2011 Ark. App. 692, 2011 WL 5563189. The jury is free to believe all or part of a witness's testimony, and we do not weigh the credibility of witnesses on appeal because that is a job for the fact-finder and not the appellate court. Sizemore v. State , 2015 Ark. App. 295, 462 S.W.3d 364. In this case, Allen argues that there is insufficient evidence to support his conviction of second-degree domestic battery because the evidence showed that Brittany was the aggressor and that he accidentally hit her while defending himself. He points out that Brittany testified that she threw his phone, hit him in the chest, and grabbed his genitals. A person commits second-degree domestic battery if with the purpose of causing physical injury to a family or household member, the person causes serious physical injury to a family or household member. Ark. Code Ann. § 5-26-304(a)(1) (Repl. 2013). "A person acts purposely with respect to his or her conduct or a result of his or her conduct when it is the person's conscious object to engage in conduct of that nature or to cause the result." Ark. Code Ann. § 5-2-202(1). The defense of justification, because it is a matter of a defendant's intent, is a question of fact to be decided by the trier of fact. Brown v. State , 2011 Ark. App. 150, 381 S.W.3d 175. We hold that substantial evidence supports Allen's conviction of second-degree domestic battery. Even though Brittany testified at trial that she initiated the fight with Allen, the evidence showed that she did not initially report her aggressive conduct to Officer Mauk, that she was nervous and scared when she reported the incident, that Allen apologized to Brittany for his actions, and that Brittany suffered serious injuries to her face. Accordingly, we affirm on this point. Allen next argues that the circuit court erred in admitting into evidence the phone recordings because the State failed to authenticate the recordings pursuant to Arkansas Rule of Evidence 901 (2018). He points out that the State did not offer voice-identification testimony pursuant to Rule 901(b)(5). He further points out that the State did not properly authenticate the recordings under Rule 901(b)(6) because the State did not establish to whom the telephone number was assigned. The decision to admit or exclude evidence is within the sound discretion of the circuit court, and we will not reverse that decision absent a manifest abuse of discretion. Laswell v. State , 2012 Ark. 201, 404 S.W.3d 818. The abuse-of-discretion standard is a high threshold that does not simply require error in the circuit court's decision, but requires that the circuit court act improvidently, thoughtlessly, or without due consideration. Grant v. State , 357 Ark. 91, 161 S.W.3d 785 (2004). Arkansas Rule of Evidence 901 states as follows: Requirement of authentication or identification. (a) General Provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. (b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule: .... (4) Distinctive Characteristics and the Like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances. (5) Voice Identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker. (6) Telephone Conversations. Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if (i) in the case of a person, circumstances, including self-identification, show the person answering to be the one called, or (ii) in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone. Ark. R. Evid. 901(a), (b)(4)-(6). Authentication requirements are satisfied if the circuit court, in its discretion, concludes that the evidence presented is genuine and, in reasonable probability, has not been tampered with or altered in any significant manner. Davis v. State , 350 Ark. 22, 86 S.W.3d 872 (2002) ; Guydon v. State , 344 Ark. 251, 39 S.W.3d 767 (2001). In this case, we hold that the circuit court did not abuse its discretion in admitting the phone recordings. Allen misunderstands the requirements of authentication under Rule 901. Subsections (5) and (6) of Rule 901 are nonexhaustive examples of authentication or identification for purposes of illustration. Authentication is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. See Ark. R. Evid. 901(a). Here, Doney testified that the calls were made from the Lonoke County Detention Center while Allen was housed there. The individuals in the recordings reference each other as "Shaun" and "Brittany," and the male states that his email address is "shaunallen22." Moreover, the individuals in the recordings discuss the female's facial injury, which is consistent with the testimony concerning Brittany's injury. Accordingly, we hold that the circuit court did not abuse its discretion in admitting the recordings. Allen next argues that the circuit court erred by allowing Dr. Gardner to testify in violation of Arkansas Rules of Criminal Procedure 17.1 and 19.2. He asserts that the State did not disclose Dr. Gardner on its witness list and that his records did not appear in the discovery file that he obtained from the State. He claims that he was prejudiced by Dr. Gardner's testimony because it established that Brittany's injury was a "serious physical injury." Rule 17.1 of the Arkansas Rules of Criminal Procedure provides for the discovery of the names and addresses of persons the State plans to call as witnesses: "[T]he prosecuting attorney shall disclose to defense counsel, upon timely request, ... the names and addresses of persons whom the prosecuting attorney intends to call as witnesses at any hearing or at trial." Ark. R. Crim. P. 17.1(a)(i). Rule 17.2 permits a prosecuting attorney to fulfill discovery obligations through the use of an open-file policy. Ark. R. Crim. P. 17.2 (2018). If a prosecutor's office intends to fulfill its discovery obligations by relying on an open-file policy, it must make every practicable effort to ensure that the information and records contained in the file are complete and that the documents employed at trial are identical to the material available to the defense in the open file. Smith v. State , 352 Ark. 92, 98 S.W.3d 433 (2003). Rule 19.2 imposes upon a party a continuing duty to disclose, after compliance with the rules of discovery, if it discovers additional material or information comprehended by a previous request to disclose. In order to obtain a reversal of a criminal conviction on the basis of a discovery violation, the appellant must make a showing of prejudice. Id. In this case, even assuming that the State failed to properly disclose Dr. Gardner as a witness, we hold that Allen has not established prejudice. The State presented other evidence that Brittany suffered a serious physical injury. Specifically, Brittany testified at trial that she had surgery as a result of her injury. In the phone recording, Brittany stated that she could not eat and needed a steel rod and plate to repair her jaw. Further, Officer Mauk testified that when Brittany reported the incident, she had an injury to the left side of her face and that she had "limited mouth movements." Accordingly, we hold that Allen cannot establish prejudice as a result of Dr. Gardner's testimony, and thus he cannot establish a reversible error. We therefore affirm his conviction. Affirmed. Virden and Hixson, JJ., agree. At trial, the State stated that it did not call Brittany to authenticate the recordings because it believed that she would recant on the stand. The State asserts that Allen's sufficiency argument is not preserved for our review because he did not renew his motion to dismiss after the defense rested. We disagree. Rule 33.1(b) of the Arkansas Rules of Criminal Procedure provides that in a bench trial, if a motion for directed verdict is to be made, it shall be made at the close of the evidence offered by the prosecution and at the close of all the evidence. Ark. R. Crim. P. 33.1(b). However, renewal of a directed-verdict motion is not required to preserve a sufficiency challenge on appeal when the defense rests without presenting any evidence. Patton v. State , 2010 Ark. App. 453, 2010 WL 2103509. Here, Allen rested his case without presenting any evidence. "Serious physical injury" means physical injury that creates a substantial risk of death or that causes protracted disfigurement, protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ. Ark. Code Ann. § 5-1-102 (21). Expert medical testimony is not required to prove serious physical injury, as the finder of fact may use its common knowledge to determine whether such injury occurred. Hughes v. State , 2015 Ark. App. 378, 467 S.W.3d 170.