text:
In The Court of Appeals
Marlon Jermaine Smith, Petitioner,
State of South Carolina, Respondent.
Appeal From Horry County
J. Michael Baxley, Circuit Court Judge
Opinion No. 4938
Heard October 20, 2011 � Filed February 8, 2012�
Appellate Defenders M. Celia Robinson and Breen Stevens, of Columbia, for Petitioner.
Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Senior Assistant Deputy Attorney General Salley Elliott, Assistant Attorney General Christina J. Catoe, all of Columbia, for Respondent.
HUFF, J.: Petitioner, Marlon Jermaine Smith, was convicted of armed robbery and use of a deadly weapon during the commission of a violent crime.� The trial court imposed a sentence of twenty-two years for armed robbery, and a concurrent five-year sentence for the weapon charge.� This court granted certiorari to review petitioner's belated appeal from the denial of his application for post-conviction relief (PCR).� Petitioner asserts the PCR judge erred in denying and dismissing his claims of ineffective assistance of trial counsel because trial counsel failed to (1) adequately communicate with petitioner, (2) interview or present the testimony of witnesses, and (3) advise petitioner to testify in his defense.� We affirm.
Petitioner was charged with armed robbery and use of a deadly weapon during a violent crime stemming from his alleged participation in the robbery of a Best Western Hotel.� The desk clerk at the motel testified that while she was working on October 7, 1998, two men rushed in with guns and took a money bag and a cell phone, along with her purse.� The clerk described one of the men as being about 5'4" or 5'5", and the other as being taller and bigger.� Shortly after reporting the incident, the clerk was taken to another location, and officers separately pulled three individuals from police cars for the clerk to view, placing a spotlight on each.� The clerk did not recognize the first individual, but recognized the second individual by his clothes and build.� When the third individual was brought out, the clerk "knew it was him" from the time she "saw him and heard him."� This person was around 5'4" in height, and she recognized his voice from the robbery.� She was also able to identify him because of his clothes.� The clerk identified petitioner as this third individual, and stated there was no doubt in her mind when she identified him.� When the clerk identified petitioner to the police, she had a strong reaction, crying and attempting to get away by exiting the police car, stating she was afraid he was going to kill her.
After a dispatch was issued concerning the robbery at the Best Western, the police stopped a vehicle that was driven by petitioner and occupied by two passengers.� Petitioner told the police that he was simply giving the two passengers a ride.� One of the passengers, Cohiese Prince, told the police he "did not rob that motel."� When asked what motel he was referring too, Prince became visibly nervous.� The other passenger, a juvenile named Demetris, fled into a nearby wooded area and was subsequently apprehended.� Demetris then led officers to a bush, where he had placed two hand guns and a phone belonging to the motel.� Petitioner, who was also the owner of the car, gave officers permission to search the vehicle.� The officers found a bank bag full of money and the clerk's purse in the trunk of the car.� When asked, petitioner denied that anyone else had been driving the car or had the keys to his car or had been in the trunk of his car that night.� Testimony revealed petitioner was five feet and four inches tall, while Prince was six feet and one inch and Demetris was six feet tall.
Prince, who is petitioner's cousin and who was initially to be tried along with petitioner, pled guilty to this robbery on the morning of the trial.� Prince then testified on petitioner's behalf at the trial claiming he and Demetris committed the armed robbery, and though petitioner drove them to the Best Western, he was unaware that Prince and Demetris planned to rob the motel.� According to Prince, petitioner was supposed to go pick up petitioner's brother from work.� Trial counsel also presented petitioner's brother, John Gause, as a witness.� Gause testified that on the night of the incident, he asked petitioner to pick him up from work, but petitioner never showed.� Although petitioner initially indicated to the court that he wished to testify on his own behalf, petitioner did not, in fact, take the stand, and the defense rested after presenting the testimony of Gause and Prince.
In closing arguments, the defense attacked the eyewitness identification of petitioner by the clerk, noting that the clerk's written statement to police shortly after the incident indicated the two gunmen were both of average height, whereas her testimony on the stand was distinctly different, and further maintained that Prince's testimony supported their defense that petitioner simply gave Prince and Demetris a ride and was unaware of the robbery.� The State argued there were three possible scenarios for the jury to consider: (1) that Prince and Demetris robbed the hotel and petitioner knew nothing about it, (2) that Prince and Demetris robbed the hotel, but petitioner knew about the robbery and was in on the plan, or (3) the clerk properly identified petitioner as one of the two men who robbed her at gunpoint.� The jury convicted petitioner as charged.�������
Following his direct appeal, petitioner filed an application for PCR, which was denied and dismissed by Judge Thomas.� Petitioner thereafter sought review of the denial of PCR pursuant to Austin v. State, 305 S.C. 453, 409 S.E.2d 395 (1991), alleging ineffective assistance of his original PCR counsel in failing to seek review.� Judge Baxley issued a consent order for an Austin review; petitioner submitted a petition for writ of certiorari; and this court subsequently granted the writ of certiorari.�������� �
Petitioner contends the PCR judge improperly denied and dismissed his application, asserting the result of the proceeding and his right to a fair trial were cast in doubt by the ineffective assistance of trial counsel in that trial counsel (1) failed to adequately communicate with him, (2) failed to interview or present the testimony of witnesses, and (3) failed to advise petitioner to testify in his defense.
Under the Sixth Amendment to the United States Constitution, a defendant has the right to the effective assistance of counsel.� Strickland v. Washington, 466 U.S. 668, 684-86 (1984); Lomax v. State, 379 S.C. 93, 100, 665 S.E.2d 164, 167 (2008).� "There is a strong presumption that counsel rendered adequate assistance and exercised reasonable professional judgment in making all significant decisions in the case."� Ard v. Catoe, 372 S.C. 318, 331, 642 S.E.2d 590, 596 (2007).� The burden of proof is on the applicant in a PCR proceeding to prove the allegations in his application.� Id.� "On appeal, the PCR court's ruling should be upheld if it is supported by any evidence of probative value in the record."� Simuel v. State, 390 S.C. 267, 270, 701 S.E.2d 738, 739 (2010).�
To establish a claim of ineffective assistance of counsel, the PCR applicant must prove:� (1) counsel's performance fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defendant's case.� "An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment."� To establish prejudice, the defendant is required "to show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.� A reasonable probability is a probability sufficient to undermine confidence in the outcome."�
Smith v. State, 386 S.C. 562, 565-66, 689 S.E.2d 629, 631 (2010) (citing to and quoting from Strickland, 466 U.S. 668).�
I. Failure to Communicate
In regard to petitioner's allegation that trial counsel failed to adequately consult with him and prepare his case, the PCR judge noted that brevity of time spent in consultation, without more, is insufficient to establish ineffective assistance of counsel, and petitioner failed to point to any specific matters counsel failed to discover, aside from other allegations of ineffective assistance of counsel, for which the court found no merit.
Petitioner contends the PCR court erred in dismissing and denying his application for relief, asserting the result of the proceeding and his right to a fair trial were cast in doubt by the ineffective assistance of trial counsel in that trial counsel failed to adequately communicate with his client.� Petitioner argues that during the hearing, trial counsel confirmed that he met with petitioner only twice, once prior to trial and then again on the day of the trial.� Trial counsel also admitted that he would have had to have discussed discovery with petitioner immediately prior to the trial.� Petitioner also contends trial counsel only took about five to ten minutes to explain to him that he should not testify.� Accordingly, petitioner maintains that as a result of trial counsel's failure to adequately communicate with him, trial counsel was not sufficiently familiar with petitioner's version of events to defend against the armed robbery charge, counsel did not prepare petitioner to testify, petitioner was not prepared to examine Prince in depth, and counsel failed to call petitioner's character witnesses to testify.
We find petitioner failed to demonstrate that trial counsel's preparation and communication with him was inadequate, and further failed to offer any evidence or argument as to how counsel's alleged lack of preparation or communication prejudiced him.� At the PCR hearing, trial counsel testified in regard to his trial preparation that he had a taped statement from Demetris and, even though petitioner's and Prince's defenses were somewhat antagonistic toward each other, he was in contact with Prince's attorney on several occasions and they were able to work together.� He did not inform the Solicitor's office of the possibility that a co-defendant might testify that petitioner did not commit the robbery because it was not until Prince pled guilty that morning that such information arose.� Thus, trial counsel did not anticipate any testimony from Prince.� Trial counsel stated he reviewed the co-defendants' statements prior to trial, spoke with Prince's attorney, discussed the State's plea offer with petitioner, filed for discovery, and reviewed the discovery material with petitioner prior to trial.� Trial counsel also spoke with petitioner's mother concerning petitioner's defense, and arranged for a polygraph examination of petitioner.� He further acknowledged that he reviewed the discovery material with petitioner immediately prior to trial, and that petitioner was able to read the discovery material; he talked with petitioner about the material and made him aware of the State's evidence; petitioner was able to tell counsel his differing version of the facts; and petitioner seemed to understand the material.� Additionally, trial counsel did not feel like he needed a continuance, but felt he was prepared to go to trial.� Further, the record shows the trial judge informed petitioner of his right to testify or not testify, and petitioner agreed with the trial judge that he had discussed this right with trial counsel.� The trial judge then allowed a ten minute break for petitioner to further discuss the matter with counsel.� Finally, petitioner testified at his PCR hearing that there was nothing he could think of that was requested of trial counsel that counsel did not do for petitioner.
Thus, the uncontradicted evidence in the record shows that counsel met with petitioner prior to trial, discussed the discovery materials with him, and provided petitioner the opportunity to explain his version of the events.� Counsel further prepared for the defense by arranging a polygraph examination and meeting with petitioner's mother to discuss the incident and petitioner's defense.� Counsel also consulted with petitioner throughout the two day trial.� Additionally, the record reflects petitioner indicated to the trial court that he had discussed with trial counsel the right to testify, and the trial court thereafter gave petitioner an additional ten minutes to discuss his decision with trial counsel.� The brevity of time spent in consultation with a defendant alone is not indicative of inadequate trial preparation.� Harris v. State, 377 S.C. 66, 75, 659 S.E.2d 140, 145 (2008).� Additionally, petitioner did not offer any evidence of how additional preparation or communication would have resulted in a different outcome.� See Jackson v. State, 329 S.C. 345, 353-54, 495 S.E.2d 768, 772 (1998) (where PCR applicant failed to present any evidence of what counsel could have discovered or what other defenses he would have requested counsel pursue had counsel more fully prepared for the trial, applicant failed to show his counsel's lack of preparation prejudiced him); Skeen v. State, 325 S.C. 210, 214-15, 481 S.E.2d 129, 132 (1997) (finding applicant was not entitled to post-conviction relief where there was no evidence presented at the PCR hearing to show how additional preparation would have had any possible effect on the result of the trial).�
II. Failure to Interview and Present Witnesses
On the issue of failure to call witnesses, the PCR judge held prejudice from trial counsel's failure to interview or call witnesses cannot be shown where the witnesses did not testify at the PCR hearing, and petitioner's mere speculation as to what a witness' testimony would have been could not satisfy his burden of showing prejudice.
Petitioner contends the PCR judge erred in denying and dismissing his application for PCR based on trial counsel's failure to interview his co-defendant or call his character witnesses to testify at trial.� He argues, as a result of Prince's testimony, the State altered its theory of the case, switching from relying on the clerk's identification of petitioner to proposing that petitioner was merely "driving the get-away car" and must have been aware the robbery was taking place.� Petitioner contends, because trial counsel failed to interview Prince prior to trial, he was not prepared for the change in the State's theory and was thus able to perform only a limited examination of Prince and made no attempt to blunt the prosecution's response that Prince and petitioner were "family."� Petitioner further contends trial counsel failed to call petitioner's character witnesses to the stand, even though he had asked counsel to speak with them and they were present in the courtroom at the time of his trial.� Petitioner argues, although these character witnesses did not testify at the PCR hearing, at least one of the character witnesses was present at the PCR hearing.� Petitioner asserts the substance of the character witnesses' testimony should be presumed.
Rule 4.2 of the Rules of Professional Conduct, Rule 407, SCACR provides as follows:
In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.
Thus, trial counsel properly communicated with Prince's attorney during the pre-trial phase.� Further, trial counsel testified at the PCR hearing that just prior to Prince's testimony, once he decided to plead guilty, counsel met with Prince and the solicitor to discuss Prince's statement that petitioner was not involved in the robbery.� All indications were that Prince decided to take a plea agreement at the last minute, and it was not until then that trial counsel was able to learn that Prince would testify petitioner was unaware of the robbery.� Once counsel learned of this change, he called Prince to testify on petitioner's behalf.� Additionally, petitioner failed to present any testimony from Prince at the PCR hearing to establish prejudice from any inadequate questioning of Prince at trial.� Further, there is nothing in the record to indicate that interviewing Prince prior to Prince's guilty plea would have led to any different result.� See Moorehead v. State, 329 S.C. 329, 334, 496 S.E.2d 415, 417 (1998) (holding, where there was nothing in the record to indicate that interviewing the victims would have led to any different result, trial counsel's failure to conduct an independent investigation did not constitute ineffective assistance of counsel, as the allegation was supported only by mere speculation as to the result).����
As well, petitioner failed to present any testimony from the alleged character witnesses at the PCR hearing in order to establish prejudice from the lack of testimony of these witnesses at trial.� Thus, petitioner failed to show trial counsel's actions or inactions resulted in prejudice.� See Bannister v. State, 333 S.C. 298, 303, 509 S.E.2d 807, 809 (1998) (noting our courts have "repeatedly held a PCR applicant must produce the testimony of a favorable witness or otherwise offer the testimony in accordance with the rules of evidence at the PCR hearing in order to establish prejudice from the witness' failure to testify at trial"); Glover v. State, 318 S.C. 496, 499, 458 S.E.2d 538, 540 (1995) (holding a PCR applicant's mere speculation as to what the witnesses' testimony would have been cannot, by itself, satisfy the burden of showing prejudice).�
III. Failure to Advise Petitioner to Testify
Petitioner's PCR application alleged numerous grounds to support his assertion of ineffective assistance of trial counsel but, notably, did not specifically assert counsel was ineffective in advising petitioner not to testify at trial.� Rather, in regard to the presentation of witness testimony, petitioner simply maintained that trial counsel "presented no witnesses on [his] behalf, not even a character witness."� At the PCR hearing, the judge asked PCR counsel to specify what allegations of ineffective assistance were being made so the court would know what allegations had been abandoned.� PCR counsel then outlined the various allegations contained in petitioner's application, again maintaining trial counsel "presented no witnesses on [petitioner's] behalf, not even a character witness," but PCR counsel failed to specifically assert error in trial counsel's advice to petitioner that he not testify.� During the PCR hearing, however, PCR counsel questioned trial counsel as to how many witnesses he called on behalf of petitioner, and trial counsel incorrectly stated he called no defense witnesses, including petitioner.� PCR counsel thereafter asked trial counsel how many witnesses the State called, to which counsel replied that the State had called eleven witnesses, and agreed with PCR counsel that zero witnesses had been called on behalf of petitioner.� However, a review of the trial transcript reveals that the State called nine witnesses to testify before the jury, and trial counsel called two witnesses; petitioner's brother, John Gause, and co-defendant Prince.� Based on this misapprehension that the defense called no witnesses, trial counsel testified that he advised petitioner against testifying at his trial in order to "preserve the last close in this case."� Counsel noted that the clerk's written statement regarding the height description of the two robbers differed from her trial testimony, but he believed he could illustrate that point without having petitioner testify.� Trial counsel also testified he discussed with petitioner the strategy of not calling petitioner to the stand in order to maintain last argument, but also discussed with petitioner "the dangers, the advantages and disadvantages of him testifying." �
Petitioner testified at the hearing that he thought the outcome of his trial would have been different had he been able to tell the jury what happened that night, and one of his bases for a new trial was that trial counsel advised him not to testify.� In his summation to the court, PCR counsel argued that the State called eleven witnesses, while trial counsel called zero witnesses in petitioner's defense.� PCR counsel further maintained, given the way the State had to change gears during the trial, that petitioner "could have shed some light on the fact that maybe it wasn't him," creating doubt for the jury that ultimately convicted petitioner.� Importantly, no one corrected the misapprehension that the defense presented no witnesses and was thereby able to present the last closing argument.
In her order of dismissal, the PCR judge addressed several allegations raised by petitioner, but did not specifically address whether trial counsel was ineffective for advising petitioner not to testify at trial or whether petitioner was prejudiced thereby. �However, the following language was included in the order:
As to any and all allegations which were raised in the application or at the hearing in this matter and not specifically addressed in this Order, this Court finds that the applicant failed to present any evidence regarding such allegations.� Accordingly, this Court finds that the applicant waived such allegations and failed to meet his burden of proof regarding them.�
. . . Therefore, any and all allegations not specifically addressed in this Order are hereby denied and dismissed.
Petitioner asserts the PCR judge erred in denying and dismissing his application for PCR where the result of the proceedings and his right to a fair trial were cast in doubt by ineffective assistance of trial counsel in that trial counsel advised petitioner not to testify in his own defense.� He contends trial counsel acknowledged that petitioner was intelligent enough to testify at trial, and that, in retrospect, putting petitioner on the stand "could have made a difference."� Most importantly, petitioner argues trial counsel's explanation that he made a strategic decision to forgo the benefit of petitioner's testimony in exchange for the right to last argument was objectively unreasonable and established counsel's assistance was ineffective because trial counsel did, in fact, call witnesses to the stand and the defense was not afforded the last argument.� Petitioner maintains that, but for trial counsel's ineffective performance in advising petitioner not to testify in his defense, the result of the proceeding would very likely have been different.�
We agree with the State's contention that this issue is not preserved for review.� It is clear that the PCR court did not rule on petitioner's assertion at the PCR hearing that he was entitled to a new trial based on trial counsel's advice that he not testify.� Additionally, there is no indication in the record that petitioner filed a Rule 59(e) SCRCP, motion to address the matter.� Our supreme court has made it abundantly clear that, where a PCR court fails to set forth findings and the reasons for those findings, the issue is not preserved for appellate review if the petitioner fails to make a Rule 59(e) motion requesting the PCR court make specific findings of fact and conclusions of law on the allegations.� Marlar v. State, 375 S.C. 407, 408-10, 653 S.E.2d 266, 266-67 (2007).� The court in Marlar noted that "[p]ursuant to S.C. Code Ann. � 17-27-80 (2003), the PCR judge must make specific findings of fact and state expressly the conclusions of law relating to each issue presented," and the failure to specifically rule on the issues precludes appellate review of the issues.� Id. �at 408, 653 S.E.2d at 266.� Further, the court in Marlar held language in the PCR court's order similar to that contained in the order at hand - providing that as to any allegations raised in the application or at the hearing not specifically addressed by the PCR order, the PCR court found that the applicant failed to present any evidence regarding such allegations -- did not constitute a sufficient ruling on any issues since it did not set forth specific findings of fact and conclusions of law.� Id. at 409, 653 S.E.2d at 266.� Thus, this language in the order in the present matter is not sufficient to preserve the issue for review.� Accordingly, we hold this issue is not preserved for review, as the PCR court did not rule on the matter and petitioner failed to make a Rule 59(e), SCRCP motion to alter or amend the judgment to include specific findings of fact and conclusions of law.� At any rate, this argument is also not preserved inasmuch as it was not raised to or ruled upon by the PCR judge. �Petitioner did not argue to the PCR court, as he does on appeal, that counsel's advice to forego testifying in order to gain last argument was not objectively reasonable and fell far below the professional standard where counsel did not, in fact, make the last argument.� Indeed, the fact that trial counsel called two witnesses to the stand for the defense and that he was therefore not afforded the last closing argument was never brought to the PCR court's attention.� See Kolle v. State, 386 S.C. 578, 589, 690 S.E.2d 73, 79 (2010) (noting an issue that was neither raised to nor ruled upon by the PCR court is not preserved for appellate review); State v. Freiburger, 366 S.C. 125, 134, 620 S.E.2d 737, 741 (2005) (finding argument advanced on appeal was not raised and ruled on below and therefore was not preserved for review).
Based on the foregoing reasons, the order denying petitioner's PCR application is
PIEPER and LOCKEMY, JJ., concur.


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The Cleveland High School Shooting: Portrait of the Suspect
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Big Boss
Joined: 04 May 2008
Posts: 828
Location: Outer Heaven
Posted: Sat Mar 03, 2012 2:51 am
Post subject: The Cleveland High School Shooting: Portrait of the Suspect
I just ran across this and never knew any such shooting had occurred. Posted here for discussion and analysis.
The Cleveland High School Shooting: Portrait of the Suspect as Teenager
By Christopher Johnston / Cleveland
Friday, Mar. 02, 2012
In hindsight, the poem on T.J. Lane's Facebook page was an apparent omen. But before this week, it had all the originality of every adolescent's angry angst. A touch of goth. A dollop of rebellion. An obsession with mortality. It ends with these lines: "Feel death, not just mocking you. Not just stalking you but inside of you. Wriggle and writhe. Feel smaller beneath my might. Seizure in the Pestilence that is my scythe. Die, all of you."
The teen morbidity became all too manifest in blood at 7:38 a.m. on Monday, Feb. 27, when Thomas "T.J." Lane, 17, walked into the cafeteria at Chardon High School in Ohio and allegedly fired 10 rounds from a Ruger .22 caliber pistol, fatally wounding three students and injuring two others. Authorities believe the weapon may have been taken from a family member, perhaps Lane's grandfather.
(VIDEO: Aftermath of School Shooting in Chardon, Ohio:
In hindsight, it is also easy to see how violence was part of his family. During his infancy, his parents Thomas Lane Jr. and Sara Nolan were reportedly each charged with domestic abuse against each other. Later arrest charges for Thomas Lane Jr. include assaulting a police officer, domestic abuse against another woman who fathered his children and attempted murder. The attempted-murder charge was dropped, but in 2002-03 he served eight months of a four-year sentence for strangling a woman until she lost consciousness, holding her face under running water and bashing her head against a wall.
By the time T.J. Lane was in elementary school, he was living with his maternal grandparents, Jack and Carol Nolan, who had also taken in his older brother Adam Nolan and a sister. But violence followed him there too. Records indicate that police arrested Adam, 19, multiple times for disorderly conduct, theft and other crimes related to his abuse of prescription drugs and heroin, including several overdoses. (Adam apparently was released into the custody of his grandparents who reportedly said they would try to get him treatment.) On Dec. 9, 2009, during his parents' divorce proceedings, Lane and Nolan, then 15 and 16, were arrested for assault, after getting into a fight with an uncle who had gone to the house.
(MORE: Ohio School Shooting: Are Parents to Blame?:
But this is also the young man whose Facebook page featured a picture of himself behind a giant teddy bear with a heart that says, "Be Mine." Heather Sethman, 18, a junior at Chardon High School, was a friend of his on the site. Standing near the gazebo in Chardon Town Square that has become a memorial site for the slain and injured students, she recalls interacting with Lane. "He was fun to talk to on Facebook," she tells TIME. "We also played games like Farmville." "I'm surprised he didn't come to me on Facebook and tell me what was going on," Sethman says. "I just wish he had."
That Lane's reality involved two conflicting dimensions continues to surprise, just as the teddy-bear photo contrasts with another Facebook shot in which he poses bare chested and glaring at the camera. Several neighbors described him as "normal" and "a fine person," who would build snow mounds with his sister, skateboard, ride his bike or swim in the Nolans' inground pool.
One longtime neighbor, Russ Miller of Chardon, told a local news station that the Nolans had done an admirable job raising their grandchildren and that they were "good people" with "good Christian values." He also found Lane to be "an easygoing boy, always had a half smile on his face." Last summer, the teen spent hours helping him cut up a pine tree that had fallen on his property and then refused to take any money. "He was never a problem," Miller said.
(PHOTOS: Columbine 10 Years Later: The Evidence:
Lane told Sethman that he loved camping and hunting. But there were things the young man did not care for. Sethman recalls that he did not share her love of reading, especially the Twilight series of books. He didn't care much for organized athletics, either. On the morning of the shooting, Lane was supposed to catch a bus for the Lake Academy Alternative School in Willoughby, Ohio, a suburb northwest of Chardon, which is approximately 30 miles east of Cleveland. Lake Academy officials declined to comment about Lane, citing privacy. However, the school's mission, according to its website, is to provide students with "positive academic and social life skills." The website also says that students are considered "reluctant learners" and may be struggling with a variety of individual problems, including substance abuse or chemical dependency, anger issues, truancy, difficulties with attention or organization, and mental-health issues.
According to Miller in his televised interview, Lane was attending the technical school because he had had problems with his grades at Chardon High School. Recently, however, he had turned things around. "I understand he is an A or B student, and he was going to graduate early," Miller said. Instead, he may now be tried an adult for the alleged crimes a decision likely to be made on March 19. So far, Lane has been charged with three juvenile counts of aggravated murder, two juvenile counts of attempted murder and one juvenile count of felonious assault. His initial court appearance is planned for March 6.
MORE: Who's Who in the Chardon, Ohio, School-Shooting Tragedy:
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Joined: 10 Aug 2011
Posts: 435
Location: Kent
Posted: Sat Mar 03, 2012 10:36 am
Post subject:
Are these school shootings always the same? There is a pattern but is there always one of the usual factors involved that one generally associates with adults? Have kids attained adulthood quicker in later generations. Are they adults in kids bodies.
The authorities always believe there is more than one shooter. How could one have covered so much ground and have still kept his wits about him or have failed to have gained his moral compass.
Shootings in a cafeteria and at a bus stop.
Authorities initially believed was carried out by more than one gunman, though it was later discovered one student acted alone.
He wasn't shooting around the cafeteria at all. He was directly aiming at the four of them,'
Daniel Parmertor had aspired to be a computer repairman and was shot while waiting for the bus bound for a vocational centre.
There are mixed reports as to whether Lane was enrolled at Chardon High School or whether he was just there while waiting to be transferred to Lake Academy Alternative School.
On their website, the school says it handles students with a variety of issues, including 'substance abuse /chemical dependency, anger issues, mental health issues, truancy, delinquency, difficulties with attention/organisation, and academic deficiencies'.
But what are these mixed reports all about? Why are they mixed? Why, if he was in the process of being moved was he where he was in the cafeteria? Why haven't the media got the report unmixed?
Oh yes, they have wetted our appetite with the story of bullying in school and taken it one step further into the wider issue of mental health and left our imaginations to do the rest. Any reporter worth his pay would go after that mixed report and get it thoroughly investigated and not dropped before getting to the truth. And this is carried out by an adult asking questions of adults.
There should be no mixed reports.
If the school dabbled in mental health issues then who was the theorapist in charge? That is where a story lies.
Kids are still kids and adults are responsible for them. The center of attention should not be this kid but the adults who were in charge of him.
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A state appeals court today overturned a defendant's convictions for a 1999 burglary and theft at basketball star Patrick Ewing's home in Englewood Cliffs because prosecutors went over the line in their closing arguments.
Daniel Gatson (and his five aliases) wasn't convicted until a few years ago. Ewing returned home from a weekend away to find the inside of his home ransacked, his Mercedes Benz and Lincoln Navigator taken along with items worth $80,000, including his Georgetown University NCAA championship ring. Also stolen was a book with the names, addresses and phone numbers for all New York Knicks players and coaches — which may have explained why Connecticut police found someone driving a car registered to an alias of Gatson driving to Herb Williams' house 10 days later.
Anyway, the conviction was overturned today — in part because a detective showed the jury a picture of Gatson wearing an orange prison jump suit for an earlier crime in Morris County. Added to that, which the judges say prejudiced the jury, the prosecutor in his closing argument vouched for the accomplice whose testimony was key to the case (and got him a shorter sentence) by saying that the witness, Alize Bethune, would have a shorter but tougher stay in prison:
"And as I told you, when he goes to prison, he may be followed by the person who he has implicated. Do you think that this is easy to do? Prison's a bad place. It's a very bad place. It has its own rules. And one of them says, don't deal. Don't help law enforcement. He goes down to prison with that on his — you think about that when [defense counsel] says, he just got up there and sang that song just to help himself. Well he helped himself, but . . . ."
That was too far, the appellate judges said:
"There was absolutely no basis to imply to this jury that defendant and Bethune might end up incarcerated in the
same institution. These remarks, moreover, carried the clear inference that defendant was capable of seeking violent retribution against Bethune if the opportunity presented itself. Such an implication only heightened the potential for prejudice from the jury having seen a photograph of defendant in prison garb."


text:
David Brevik
Marvel Heroes shots and video show Jean Grey, Nova and Luke Cage
Marvel Heroes characters Jean Grey, Nova and Luke Cage were unveiled by Gazillion Entertainment last weekend at NYCC.
David Brevik headlines
Marvel Heroes 'is completely free, we'll prove it' - Brevik
Marvel Heroes was initially slated for a 2006 release, but it launch is finally looming on the horizon with the beta phase already accepting registrations. president of Gazillion David Brevik has stressed that he F2P market is confusing, but wants to assure everyone that his game is absolutely free.
Diablo 3 designer apologises for "disrespect" towards franchise creator
Diablo 3 designer Jay Wilson has issued a public apology for his much-shared Facebook comment responding angrily to criticisms of the action RPG.
Diablo 3 used to look like an MMO: Brevik reveals all
Diablo 3 used to look quite different to how it finally appeared, according to Diablo 2 co-creator David Brevik, who was also slammed on Facebook by Diablo 3 developers this week for saying it wasn't the game he would have made. While this is already known, Brevik offers further insight into the game that could […]
Diablo 3 dev responds to Brevik's criticisms: "F**k that loser!"
Diablo 3 game director has responded to criticisms of the game made by Diablo 2 developer David Brevik on Facebook, unleashing a torrent of similar abuse.
Diablo 3 raises "very mixed emotions" in original series creator
Diablo 3 isn't the game David Brevik would have made, or the one fans want, the original Diablo creator has said.
Ex-Blizzard North president David Brevik promoted to president and COO of Gazillion Entertainment
LEGO Universe studio Gazillion Entertainment has announced it has promoted ex-Blizzard North president David Brevik to president and COO.
Ex-Blizzard North exec to lead Gargantuan's Marvel MMO
Ex-president of Blizzard North, David Brevik, will head up Gargantuan Games – part of Gazillion Entertainment – and his first job will be to oversee the development of the Marvel Universe MMO.Blizzard North is best known for the first two games in the revered Diablo series.BigDownload also points out that Brevik will be attending this […]
David Brevik latest
Marvel Heroes shots and video show Jean Grey, Nova and Luke Cage
Diablo 3 designer apologises for "disrespect" towards franchise creator
Diablo 3 dev responds to Brevik's criticisms: "F**k that loser!"
Diablo 3 raises "very mixed emotions" in original series creator
Ex-Blizzard North president David Brevik promoted to president and COO of Gazillion Entertainment


text:
Amman: a city with two faces
A city of fascinating contrasts, Jordan's capital offers incredible modernity side by side with time-honoured tradition. Is it this elusive aspect that gives it so much charm? Its Oriental warmth and glorious past, and its location, just a few kilometres from the Dead Sea? Probably all of the above.
Amman, along with Damascus and Jericho one of the oldest cities in the world, is also one of the most misunderstood in the Middle East. Today, it is difficult to imagine its splendour and influence when it was still called 'Philadelphia' more than 2,000 years ago. It has retained many relics from its glorious past, including its citadel, which sits imperturbably, facing the modern city.
Originally built on seven hills, Amman today has 19, and just as many neighbourhoods. Still expanding, it represents a fairly successful marriage of past and present. If you look at it from the Citadel, you will notice that no street is straight and each constantly rises and falls, slaloming between new buildings, mosques, and numerous sites. The topography is inherited from ancient times and blends beautifully with the urban bustle.
Lower Town, with its cafés, small shops, and souks, is the best place to shop for jewellery, perfumes, fabrics, pottery... the list is long. Further north, in the residential area, a few houses from the 1920s and 30s recall the time of the emirates. This is a prelude to the modern city, which boasts ever more buildings, ultra-design restaurants, and shopping centres, with art galleries alongside.
This architectural diversity is the image of a cosmopolitan city whose population is steadily increasing, following numerous waves of migration. Men and women who flock to the city give new life to this metropolis in constant turmoil. The nightlife and culture is intense, and there is music everywhere. Amman definitely deserves a close look. It has another advantage, too, a very significant one for the tourist: its location allows easy access to the entire country, and thus is a perfect base for visiting some of the most beautiful wonders of the world.
Amman addresses
- See all
- Highlights
- Outings and restaurants
- Accommodation
- Visits and activities
latin bar - trendy
cafe - tea salon
luxury - design
trekking - exploration
heritage - exploration
luxury - charm
remarkable - hot tip


text:
- Overview
- Bayer Group
- About Bayer
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- Inside Information
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|200-day line
|A moving average. A smoothed line derived from the average of the closing prices of a stock over the last 200 days. Used in the technical analysis of securities.
A purchase of all or part of a company so as to obtain ownership of its operating resources and/or to control its business.
Ad hoc statement
German companies listed on a stock exchange are required to inform the public without delay of any fact that might materially affect the price of their stock. These communications, known as "ad hoc" statements, must first be sent to the stock exchanges and BaFin (see below), and then be released to the market via communications media with a broad circulation. The intent is to prevent abuse of insider knowledge and to enhance the transparency of the market. Companies may be fined for failing to issue an ad hoc statement.
Acronym for American Depositary Receipt.
Abbreviation for American Depository Share.
See depreciation
|Analysts (financial analysts) assess financial market information in order to develop forecasts of future stock market developments.
|Annual financial statements
The annual financial statements document a company's financial results for the past fiscal year. In addition to a balance sheet and an income statement, a German corporation listed on a stock exchange must also release information such as a cash flow statement, a segment report, and a statement of changes in equity. The annual financial statements are prepared by the board of management, and are audited by a state-certified independent auditor.
Annual stockholders' meeting
|The supreme governance body of a stock corporation. It is a meeting of all stockholders, convened at least once a year by the board of management. The annual stockholders' meeting decides on the allocation of disposable net income, any changes in capital stock, amendments to the articles of incorporation, and other fundamental matters. It appoints the independent auditors and elects the stockholders' representatives on the supervisory board. Only the annual stockholders' meeting can ratify the actions of the board of management and supervisory board. The notice of the annual stockholders' meeting includes a proposed agenda.
|Articles of incorporation
Contractual basis of a stock corporation stating the company name, headquarters, business purpose, amount of capital stock and further basic rules and regulations.
|Asset deal
|Acquisition of a company by transferring individual assets (and occasionally debts) – rather than shares/equity securities – to the purchaser.
|Authorized capital
|An amount designated to be converted into shares so as to increase the capital stock of a stock corporation. Authorized capital must be approved at a stockholders' meeting by voters representing a majority of the total capital stock and by at least three-fourths of the votes cast. The existence of authorized capital allows the Board of management to perform a capital increase within five years of the authorization's approval.
The "Bundesanstalt für Finanzdienstleistungsaufsicht," Germany's supervisory authority for financial services. It has headquarters in both Bonn and Frankfurt, and was formed by combining the former separate supervisory authorities for the lending, securities and insurance industries. Its mission is to safeguard the functionality, stability and integrity of the entire German financial system. It also has the jobs of protecting customers and investors and enforcing standards of conduct that will maintain confidence in the financial markets (market supervision).
|Balance sheet
A balance sheet is a complete breakdown of a company's assets and liabilities as of a given date, and serves as a measurement of the company's ability to perform. It lines up the company's assets, on one side, against its equity and liabilities, on the other. The balance sheet is included in the annual report, along with other statements like the income statement and the cash flow statement.
|Basis points
|Unit for measuring interest rates. 100 basis points correspond to one percentage point.
|Bear market
A steep general decline in stock prices, usually over a longer period. Opposite of a bull market.
|Bearer share
Transferable share certificate that does not specify the owner of the share. The bearer of the share is entitled to the rights and obligations stated on the share certificate. Bearer shares are the primary form of shares in Germany.
In business, a benchmark is a standard against which to evaluate success. Benchmarking is a method and principle of watching and learning from the best in the field.
Blue chip
A stock-market term for the stocks of large corporations with especially solid asset structures and earnings. The term originally comes from poker – blue poker chips have the highest value.
|Board of management
Also known as managing board or executive board. One of the three governance bodies of a German stock corporation. Its main duties are the day to day management and representation of the company. A board of management may have one or more members, all of whom are appointed by the supervisory board. The supervisory board may appoint one member to chair the board of management. The chairman of the board of management holds a position similar to that of a chief executive officer in the United States.
A debt instrument that entitles the owner to receive repayment of the bond's par value plus interest. Bonds may be issued by governments, banks or companies, and are sold through banks. They enable the bond's issuer to obtain long-term financing by borrowing. The total amount of a bond issue may be divided into segments or "tranches." The most important features of a bond are its maturity (the date when the issuer will repay the principal), its interest rate, and how its interest is paid.
|Abbreviation for Brazil, Russia, India, China. These emerging economies are grouped together in light of the special importance attributed to them based on their growth potential.
|Bull market
A strong general rise in stock prices, usually over a longer period. Opposite of a bear market.
|Abbreviation for compound annual growth rate
|Call option
|The right to purchase shares at a previously set amount (strike price) within a certain period or at a certain time.
Capital expenditure
A long-term investment in operations to expand or improve a company's production infrastructure. Net capital expenditures increase the company's portfolio of capital equipment. Replacement expenditures provide replacements for goods consumed in the production process. Gross capital expenditures are the total of net and replacement expenditures.
Capital gains tax
In Germany, capital gains tax ("Kapitalertragsteuer") is withheld from dividends and interest income. All investment income earned in Germany, and some investment income earned abroad, is subject to this tax. Basically the recipient of the investment income is liable for this tax, but it is withheld by the payer of the respective investment income or by a German bank on the taxpayer's behalf, and is forwarded to the tax office.
|Capital increase
|A way to increase a company's equity. A distinction can be made here between an effective capital increase, in which "fresh" capital is provided to the company from external sources, and a nominal capital increase from corporate funds.
Capital invested
Capital invested comprises the assets on which the company must obtain a return by generating an appropriate cash inflow; in some cases the cost of ultimately reproducing the assets must be earned in addition.
|Capital reserves
The paid-in surplus from the issuance of shares, i.e. the amount by which capital contributions exceed the nominal value of the capital stock.
|Capital stock
The registered capital of a stock corporation. Numerically, it corresponds to the par value of all outstanding shares of stock. In the Bayer AG balance sheet, it is a component of stockholders' equity. The capital stock of Bayer AG, amounting to Euro 2,116,986,388.48, is divided into 826,947,808 no-par registered shares.
|Cash dividend
The portion of the dividend that is actually paid out to stockholders (after deducting corporate income tax) is called the cash dividend.
Cash flow
Key indicator for assessing a company's financial strength; in addition to gross cash flow, the statement of cash flows also reports the cash flow from operating activities (net cash flow), which shows the amount of funds available from operating activities for financing investments, repaying debts or distributing dividends. The cash flows from investing and financing activities are also reported.
|Cash flow statement
A cash flow statement shows a company's cash disbursements and receipts, together with the net cash outflow or inflow, for a given accounting period (see cash flow).
Cash value added (CVA)
This is the difference between the gross cash flow and gross cash flow hurdle. It is therefore the amount by which the gross cash flow exceeds the return and reproduction requirements. If CVA is positive, the investors' return and reproduction requirements have been satisfied and value has been created for the company.
Since 1993, Deutsche Börse AG has been publishing the Composite Dax (CDAX), which contains all of the stocks listed on the General or Prime Standard segment of the Frankfurt Stock Exchange. The CDAX is compiled as both a price index and total return index.
|Certificated securities
|Physical, printed securities.
|CFROI - Cash flow return on investment. The CFROI is the difference between the gross cash flow in the reporting period and the cost of reproducing depletable assets, divided by the capital invested. The CFROI is thus a measure of the return on capital employed in the reporting period.
Chart analysis
Method of analyzing and forecasting prices and interest rates in the financial markets on the basis of historical data.
|Commercial paper program
|Commercial paper (CP) issued under Bayer's program is a short-term, unsecured debt instrument normally issued at a discount and redeemed at nominal value. It is a flexible way of obtaining short-term funding on the capital market. The commercial paper program allows the company to issue commercial paper on both the U.S. and European markets.
|Common stock
|In contrast to preferred stock, common stock always carries voting rights.
Comprehensive Instruments
Comprehensive instruments are used to simplify the safekeeping and administration of securities. A multitude of individual instruments securitized in individual certificates is being pooled in a comprehensive instrument and excludes the delivery of individual papers.
|Conditional capital
|An amount designated to be converted into shares so as to increase the capital stock of a stock corporation. Conditional capital must be approved at a stockholders' meeting by voters representing a majority of the total capital stock and by at least three-fourths of the votes cast. Conditional capital usually arises in connection with convertible bonds and warrant bonds or a stock option program and results in an increase in the capital stock only to the extent that conversion or subscription rights are exercised.
The "consensus" is often considered equivalent to the "market's expectations." It is calculated as the average of analysts' estimates for certain key figures of a company, such as its operating result or earnings per share (EPS).
(1) In the stock market, consolidation is a phase of stabilization in trading prices following phases of substantial fluctuations or jumps.
|Continuing operations
Revenue and earnings reporting for continuing operations pertains only to business operations that are expected to remain in the company's portfolio for the foreseeable future; opposite of discontinued operations.
|Convertible bond
|A bond that can or must be converted into company stock at a pre-determined ratio. Conversion rights, unlike warrants, cannot be traded separately from the bond.
|Core earnings per share (core EPS)
|Earnings per share, plus / minus amortization and impairment losses / impairment loss reversals of intangible assets and impairment losses / impairment loss reversals on property, plant and equipment, plus special charges, minus special gains (other than amortization and impairment losses / impairment loss reversals), plus / minus the related tax effects and the share of the adjustments attributable to noncontrolling interest; this indicator facilitates the comparability of performance over time. It is not defined in the International Financial Reporting Standards.
|Corporate compliance
|Corporate compliance comprises the observance of statutory and company regulations on lawful and responsible conduct.
|Corporate Governance
|Corporate governance comprises the long-term management and oversight of the company in accordance with the principles of responsibility and transparency. The German Corporate Governance Code sets out basic principles for the management and oversight of listed companies.
|Cost of capital
|The yield that a company must generate in order to meet investors' expectations regarding the return on their capital. It is possible to determine the cost of equity
and the cost of debt and then to calculate the weighted average cost of capital (WACC).
|Abbreviation for currency and portfolio adjusted
|Credit default swaps (CDS)
|Credit default swaps are tradable insurance contracts used to hedge against the default of a borrower.
|Credit rating
|An assessment of a debtor's credit standing by rating agencies on the basis of such criteria as total debt, country risk, etc. Of the leading international agencies, the ratings issued by Standard & Poors range from AAA (top rating) to D (debtor in default); Moodys ratings range from Aaa to C. Ratings help investors evaluate the credit risk inherent in fixed-income securities.
|Currency risk
|The potential decline in the value of foreign-currency bank deposits, receivables and securities due to exchange rate fluctuations.
|Cusip no.
|Securities identification number in the United States.
|See cash value added (CVA)
This index, developed in 1988 and encompassing Germany's 30 largest-volume and most actively traded stocks, is the leading index of the German stock exchange company "Deutsche Börse." A company's stock is weighted according to the free float capital stock listed on the exchange. In addition to the DAX®, which also includes Bayer AG, there are a number of other German indexes, such as the MDAX® for companies whose order-book trading volume and market capitalization is less than for companies listed in the DAX®, and the TecDAX® for technology firms.
Delta cash value added (Delta CVA)
Delta CVA is the difference between the CVAs of two consecutive periods. A positive delta CVA shows that a unit has created more value or destroyed less value in the second period than in the first.
Synonym: custody account. Set up by credit institutions to administer securities for their customers. Every customer can deposit securities individually (under special wrapper) or in a collective security deposit bank. The latter option is common practice and more affordable.
A way of reflecting, in a company's balance sheet, the decline in the value of an asset over a specific period of time due to use. In general, "depreciation" is the term used for property, plant and equipment; "amortization" is used for intangible assets. Amongst others there are two principal methods. With straight-line depreciation or amortization, the asset's cost of acquisition or construction is spread uniformly over its anticipated useful life. With the declining-balance method, the carrying amount of an asset is reduced by larger increments at the beginning of the depreciation or amortization period, and by smaller increments later on.
|Directors' Dealings
The "Viertes Finanzmarktförderungsgesetz" became effective as of July 1, 2002. With the keyword "Directors' Dealings" the new notification and publication guidelines (§15a "Wertpapierhandelsgesetz") require an immediate publication of transactions in excess of Euro 25,000 involving securities of the own company untertaken by members of the board and members of the supervisory committee and their spouses, registered partners and first-grade relatives.
|Disclosure obligation
|Requirement to publish business-related data, which can vary depending on the company's legal form and its size. Stock corporations are generally required to publish (consolidated) annual financial statements along with a (Group) management report. Further capital market obligations also exist, such as ad-hoc reporting and the disclosure of directors' dealings.
Discontinued operations
Business operations already divested or earmarked for divestiture in the near future; opposite of continuing operations.
Expanding a company's range of products and services to embrace new areas that are usually related to existing activities.
|Divestment, divestiture
Sale of an asset. The opposite of a capital expenditure or acquisition.
The dividend is the portion of the profits paid out for each share of a stock corporation's stock. The annual stockholders' meeting decides on the amount of the dividend and when and how it will be paid.
|Dow Jones Index
The Dow Jones Industrial Index (DJII), also known as the Dow Jones Industrial Average, is the best-known index on the New York Stock Exchange (NYSE). It is similar to the German DAX index in that it reflects the development of 30 stocks of high importance to the U.S. economy. The DJII has been calculated since 1897 by the Dow Jones & Co. publishing firm. The stocks are weighted according to their absolute prices.
|Earnings per share
|Earnings per share - EPS is calculated by dividing Group net income by the weighted average number of shares as defined in IAS 33.
EBIT - Earnings before interest and taxes. Income after income taxes, plus income taxes, plus financial result; EBIT is not defined in the International Financial Reporting Standards.
|EBIT before special items
|EBIT plus special charges, minus special gains; this indicator is not defined in the International Financial Reporting Standards.
EBITDA - Earnings before interest, taxes, depreciation and amortization. EBIT plus the amortization of intangible assets and the depreciation of property, plant and equipment, plus impairment losses and minus impairment loss reversals, recognized in profit or loss during the reporting period; this indicator is not defined in the International Financial Reporting Standards.
|EBITDA before special items
|EBITDA plus special charges, minus special gains; this indicator is not defined in the International Financial Reporting Standards.
|EBITDA margin before special items
The EBITDA margin before special items is calculated by dividing EBITDA before special items by sales. This indicator is not defined in the International Financial Reporting Standards.
Electronic trading
Forwarding orders for the sale or purchase of securities through a central computer network. Whereas, in traditional trading, brokers are responsible for coordinating supply and demand, in electronic trading this task is performed by a central computer.
|Emerging markets
Collective term for the (securities) markets of the young, developing economies of Latin America, Asia and Africa.
Employee stock
Stock issued to a company's employees, usually on preferred terms. The goal is to give the employees an individual, direct stake in the company's success, and also in its business risks.
EMTN and multi-currency EMTN program
The multi-currency European Medium Term Notes (EMTN) program is a documentation platform that enables Bayer to raise capital by quickly issuing debt on the global capital market. Maturities, currencies and conditions can be very flexibly designed.
Earnings per share (see above).
In contrast to liabilities – the other main item on the same side of the statement of financial position – equity is a combination of the funds raised by a company's owners to finance it, and generated profits retained by the company. Equity – unlike debt capital – is generally available to the company for an unlimited period.
|Euro Stoxx 50
|Stock index intended to reflect developments across industry sectors in the countries of the European Monetary Union. The index contains 50 blue-chip stocks from 14 countries and is the basis for other Euro Stoxx 50 sub-indices. It is weighted on the basis of the component stocks' free-float market capitalization, subject to a maximum weighting of 10%.
|Exchange-traded fund (ETF)
|An investment fund, usually passively managed, that is traded on the stock exchange. Capital is invested in proportion to the composition of an index rather than on the basis of securities analyses, resulting in notably lower administration costs.
|Exceptional items
|Non-recurring items of an unusual nature.
|Fiscal year
The period for which a company's annual financial statements must be prepared. A fiscal year can never be more than twelve months.
|Floor trading
A term for securities trading on an actual trading "floor" of a stock exchange building where the brokers are present in person, in contrast to computer trading.
Foreign exchange
Claims for payments in foreign currencies traded on foreign stock exchanges, usually in the form of assets held in foreign banks or bills of exchange or checks payable abroad; banknotes and coins denominated in foreign currencies are not considered to be foreign exchange.
|Forward contract
|A forward contract, like a futures contract, allows the holder to buy or sell a specific type of asset at a specific time at a given price. Unlike a futures contract, however, a forward contract is not traded on the stock exchange.
Free float
The percentage of a corporation's stock that is not held by large, long-term stockholders.
|FTSE 100 Index
The most important of the London Stock Exchange's share indexes. It includes the U.K.'s principal financial and industrial stocks, weighted according to their market capitalization.
|Futures contract
|A futures contract is an exchange-traded contract in which the base value, quantity and quality, delivery date and price of the asset to be provided in the future are determined at the signing of the contract. Unlike a warrant, a futures contract certifies not a right but a future obligation.
|Fx & p adj.
|Abbreviation for currency- and portfolio-adjusted
|German Stock Corporation Act
|The Stock Corporation Act specifies the legal basis for corporations with share-based ownership structures. In Germany, these may be either a stock corporation (German: Aktiengesellschaft - AG) or a partnership limited by shares (German: Kommanditgesellschaft auf Aktien - KGaA).
Gross cash flow
Income after income taxes, plus income taxes, plus financial result, minus income taxes paid or accrued, plus depreciation, amortization and impairment losses, minus impairment loss reversals, plus / minus changes in pension provisions, minus gains / plus losses on retirements of noncurrent assets, minus gains from the remeasurement of already held assets in step acquisitions; the change in pension provisions includes the elimination of noncash components of EBIT. It also contains benefit payments during the year. This indicator is not defined in the International Financial Reporting Standards.
Gross cash flow hurdle
The GCF hurdle is the gross cash flow that needs to be generated to satisfy investors' return and reproduction requirements.
Group, corporate group
A grouping of legally independent enterprises by way of intermeshing financial ownership (equity interests) to form a single economic unit under a single management.
Holding company
A holding company is an "umbrella" company that manages or administers a number of other companies in which it holds interests. The companies it manages are still legally independent, but as a rule a holding company has a controlling influence in all strategic issues and is responsible for such matters as the efficient management of the entire corporate group. A holding company itself does not sell goods or services.
|Hybrid bond
A hybrid bond is a corporate bond with equity-equivalent properties, usually with either no maturity date or a very long maturity. Due to its subordination, it has a lower likelihood of repayment than a normal bond in the event of issuer bankruptcy.
The International Accounting Standards, adopted by the International Accounting Standards Board (IASB), an independent, privately financed committee founded in London in 1973. International Accounting Standards remain in effect under IFRS (International Financial Reporting Standards), whose application has been mandatory in Europe since 2005. Bayer AG has been preparing its consolidated financial statements according to IAS and IFRS respectively since 1994.
|Abbreviation for International Accounting Standards Board. The IASB is the publisher of the International Financial Reporting Standards (IFRS).
International Financial Reporting Standards: since 2005, the basis for preparing the consolidated financial statements of all European companies listed on a stock exchange. The objective of the underlying E.U. Regulation was to achieve improved transparency and a better comparability of financial reporting in the EU.
|Impairments are non-scheduled, downward valuation adjustments made to reflect unforeseen declines in the value of assets. Depreciation and amortization, on the other hand, are scheduled adjustments.
|Impairment loss
|An expense that reduces the carrying amount of an asset to a lower fair value beyond any scheduled amortization or depreciation.
|Income before/after taxes
Reported profits for an accounting period before or after the deduction of income taxes. Income before taxes offers greater comparability with the results of previous years and with those of other companies.
|Income statement
The income statement compares expenses and income for a given period, usually a quarter or a fiscal year. If total income exceeds total expenses, the company has earned a profit. If expenses exceed income, the company shows a loss.
A term for people who have special ("inside") information about a business event, for example because of their professional position. Using that information for one's own advantage in securities transactions is illegal.
|Intangible assets
|Non-physical assets that are recognized in the statement of financial position. Includes items such as acquired goodwill, patents, technologies and trademarks.
|Interest is the compensation a lender requires for temporarily providing capital to a borrower. The rate of interest charged depends on a number of factors, such as the yield curve and the borrower's credit rating.
|Intraday trading
The buying and selling of a position (currencies, securities etc. ) within one day. Intraday trading is mainly done by professional investors as a way of quickly reacting to changes in the values of securities during the trading day.
Making capital available on a long-term basis to maintain, expand and improve the economic means of production. Net investment is the addition to existing assets. Reinvestment is the replacement of assets depleted by the production process. Gross investment is the total of net investment and reinvestment.
|Investment fund
|Investors' assets pooled by an investment management company.
|Investment management company
|Also known as investment companies or investment trusts, such entities invest the money provided to them by investors according to set principles and goals.
|An individual or institution that commits capital to the market with the expectation of return. A distinction is often made between private investors, who invest as individuals, and institutional investors. Strategic and financial investors are also differentiated according to their respective investment goals.
Investor Relations
Investor relations (IR) is the deliberate, strategic fostering of the relationship between a company and the individual members of the financial community. The concept comprises all measures and decisions aimed at maintaining productive relations with existing stockholders and attracting new potential equity providers. They center on a comprehensive, consistent and timely exchange of information between the company and the financial markets. Important investor relations tools include investor conferences, corporate presentations to analysts and investors in the world's major financial centers ("road shows"), presentations on specialist topics or R&D, visits to the company by investors, one-on-one discussions with them and an IR website customized to the needs of the financial community.
short for the U.S. term "initial public offering", a corporation's first offering of stock to the public.
Abbreviation for: "International securities identification number". Shares, bonds, investment certificates and option bonds listed on German stock exchanges are identified via a 6-digit international securities identification number (ISIN). Bayer's ISIN is DE000BAY0017
|The release of new securities, especially stocks and bonds.
|Issue price
|Price at which shares are issued by stock corporations within the scope of a capital increase or IPO.
|Joint venture
An entity founded by two or more legally independent companies for the purpose of carrying out projects together. In most cases, each of the parties to a joint
Letter of intent
A nonbinding declaration of intention between a buyer and a seller. A letter of intent confirms that both sides are in negotiations to sign a contract. A letter of intent will often form the basis for that contract, but does not in itself establish any legal entitlements.
Liabilities are obligations to third parties that represent a financial charge. In contrast to provisions, the future payment of liabilities – in terms of their existence, amount and timing – is assured. Liabilities comprise current liabilities such as those to suppliers, and noncurrent liabilities such as bonds.
|Life sciences
|Field of activities comprising particularly health care and agriculture. At Bayer we develop new molecules for use in innovative products and solutions to improve the health of humans, animals and plants.
|(1) A company's ability to pay its debts (bills, payments of principal, etc.) on time.
(2) In the case of securities, liquidity depends on the number of units of a security currently in circulation, and on the number of market participants who are willing to buy or sell such paper. If a security is liquid, supply and demand are great enough that a transaction – the purchase and sale of the security – can be arranged at any time.
|The quoting of prices for a corporate security on a stock exchange. To be listed, a company must meet certain stock market segment specific accounting, capitalization and disclosure requirements e.g. ad hoc statements. The stock exchange's admissions board decides whether a company can be listed for trading, upon application from a bank and after examining a "listing prospectus."
Abbreviation for mergers and acquisitions.
|Abbreviation for marketing and sales.
A term for the difference between the cost and the market price of a commodity or service. "Margin" may also mean the difference between debit and credit interest. In the market practice called "arbitrage," margin is the difference in price between two different trading forums.
|Market capitalization
The market value of a company listed on a stock exchange. Market capitalization is calculated by multiplying the number of shares of a company's stock times the stock's current trading price.
Market quotation
Share price officially quoted on the stock exchange, determined by supply and demand and expressed per share unit. The stock market quotation depends, besides national economic factors, on share price determinants like a stock corporation's earnings situation and future perspectives.
Moody's is one of the two best-known and most important rating agencies; the other is Standard & Poors.
|MSCI World Index
|A stock index published each trading day by the U.S. investment house Morgan Stanley Capital International. It measures the global development of the stock market. The base date of the index is January 1, 1970. It includes round about 1,600 companies in more than 20 countries.
short for National Association of Securities Dealers´ Automated Quotations system. The NASDAQ is an electronic price information and trading system for stocks, especially of young companies, outside of the NYSE. Operated by the National Association of Securities Dealers, it has been steadily expanding since 1980.
Net cash flow
The net cash flow is the cash flow from operating activities as defined in IAS 7.
Net financial debt
Net financial debt is generally calculated by comparing debt against credit balances. At Bayer it is calculated as the total of all financial debt, less cash, cash equivalents, current financial assets and receivables from financial derivative transactions (interest-rate and foreign exchange hedges).
Net income (net loss)
Net income or loss is a corporation's profit or loss after taxes and after minority stockholders' interests. It is reported in the income statement.
|No-par stock
Each share of a no-par stock represent a certain proportion (e.g. 1/1000) of a company's capital stock without having an actual nominal or "par" value. No-par stocks are very common in the United States, the United Kingdom and Canada. See Stock types.
|Non-operating result
Synonym: Financial result. The non-operating result comprises items such as net interest expense, income from investments in affiliated companies and other financial income and expenses. It is shown separately in the income statement below the operating result.
The abbreviation for the New York Stock Exchange, often referred to indirectly as Wall Street or the "Big Board."
The right (not the obligation) to buy or sell stock within a certain period or on a certain date for a price agreed upon in advance (the "strike" price). The option has a notional value if the strike price is lower than the stock's going trading price. If the going trading price is below the strike price, the option has no value.
Securities or investment funds that perform better than the market average are said to "outperform" the market.
|Over the counter (OTC)
At Bayer, OTC (over-the-counter) medicines are those obtainable without a prescription. In finance, OTC represents trade between financial market participants outside of an organized exchange. OTC transactions are nevertheless subject to securities trading laws.
Pension fund
An institution with legal capacity that manages an occupational pension plan for one or more employers funded by members' contributions.
(1) The movements of a security's value. Performance is assessed on the basis of price changes, dividend payments and preemptive (subscription) rights in the case of capital increases. It is stated as a percentage of a base value on a certain date.
A company's pipeline comprises all products currently under development or awaiting market launch.
In a financial context, a portfolio is a general term for the body of assets owned. In addition to securities, a portfolio may also include properties and real estate, for example. The aim of portfolio management is generally to diversify the investment risk. This is commonly achieved by investing in different asset classes. The portfolio of an investment fund is the composition of its securities account or the combined total of its investment instruments (stocks, bonds, derivatives etc.).
Preemptive right
A stockholder's right to purchase new stock, proportionally to existing shareholdings, when the company increases its capital, so that the stockholder's relative stake in the capital stock remains the same.
|Preferred stock
|Stock on which higher dividends are paid than on common stock but which does not carry voting rights.
|When securities are issued, the premium is the difference between the issue price and nominal amount. In the case of new stock issues, the premium is recognized in equity in the statement of financial position under the item "capital reserves."
Price/cash flow ratio
The price/cash flow ratio is the ratio of the share price to gross cash flow per share. It shows how long it would take for the company's cash flow to cover the share price.
Price/EPS ratio
This is the ratio of the current share price to earnings per share (EPS). A high price/EPS ratio indicates that the market assigns a high value to the stock in the expectation of future earnings growth.
|Prime Standard
|Segment of the Frankfurt Stock Exchange with the highest transparency standards. Admission to the Prime Standard segment is a requirement for inclusion in the DAX®-Index, for example.
Property, plant and equipment
The term for the physical assets of a company that are used on a continuing basis, including land, buildings, technical equipment and machinery, fixtures and furnishings, and so forth.
Provisions – sometimes known also as allowances or accruals – are recorded for liabilities, whose existence, amounts or due dates are uncertain. An accounting item is formed for these potential amounts so that future expenditures can be allocated to the periods when they were actually incurred from an economic perspective. Provisions are established for such charges as taxes and pensions.
Public relations (PR)
The provision of information by a company to the general public about the company, its markets, business trends etc. in order to maintain public confidence.
|Purchase price allocation (PPA)
The PPA refers to the process used in accounting for a corporate acquisition (business combination) whereby the components of the purchase price for either the shares (share deal) or for the assets and liabilities (asset deal) of the acquired entity are allocated among the acquired assets and assumed liabilities.
|Put option
The right to sell shares at a previously set amount (strike price) within a certain period or at a certain time.
Quarterly report
An interim financial report issued by a corporation for each quarter of a year.
Abbreviation for Research & Development. Activities connected with developing new products and services.
|A notable increase in the market price(s) of a stock or stocks.
|Real-time quotes
|Stock prices that are immediately displayed and continually updated. Some providers charge a fee for access to real-time quotes.
Registered share
Shares dedicated to a certain person that is registered in the company's registrar.
Equity above and beyond a company's nominal liable capital. German law distinguishes between capital reserves (capital contributed to the company from outside) and retained earnings (reserves built up from earnings the company generates itself).
Retained earnings
Net profits kept within a business after dividends have been paid.
The yield on capital employed, in percent. There are at least two ways of calculating returns:
Return on capital employed
Acronym: ROCE. This figure measures the return on capital employed in percent. There are two ways of calculating returns:
Return on equity
Acronym: ROE. Ratio of earnings (net income excluding minority interests) to net asset value. The ROE indicates a company's earnings situation and is comparable to interest on a financial investment.
Return on sales, operating margin
The ratio of a company's profits - either before or after taxes - to its sales volume for the same period, expressed as a percentage.
Acronym: REX-P. Index that mirrors the development of the German government bond market.
|Abbreviation for return on capital employed. The percentage return on the capital employed is one way to measure a company's overall profitability.
This index, developed in 1957 by Standard & Poor's Company, comprises 500 U.S. stocks from 10 different industries. In contrast to the Dow Jones Industrial Index, the S&P 500 is weighted according to the market capitalization of the component companies.
|Safe Harbour
In the context of the publication of forward-looking information and projections, U.S. securities laws provide a "safe harbor" or "disclaimer" shielding companies from liability for forward-looking statements in some cases. Generally, a forward-looking statement will not give rise to liability if either
|Abbreviation for the U.S. Securities and Exchange Commission, the supervisory authority for securities trading in the United States.
A security is a certificate that represents an ownership right. The ownership right cannot be asserted without the security. Stocks, notes, mortgage bonds, corporate and government bonds, and investment certificates are all examples of securities.
|Securities prospectus
|A written summary of information about a particular security and the risks associated with it. Companies are required to publish a prospectus prior to a stock exchange listing or certain types of capital increase.
A unit of stock, which is the equity ownership in a corporation. The bearers or owners of shares of stock - the shareholders or stockholders - are not creditors of the corporation but co-owners of it. They have certain rights, such as voting rights at the stockholders' meeting and subscription rights to new stock. They have no legal entitlement to a dividend, but if a dividend is declared it must be distributed among them in proportion to the number of shares held.
|Share deal
|The acquisition of a company by purchasing a majority of the shares.
Share price/ Stock Price/ Trade Price
The price of a stock on a stock exchange, determined as a function of supply and demand.
|A person owning shares in a stock corporation.
|Shareholder value
|A management concept that aims to maximize benefits to a company's stockholders. The emphasis is on increasing enterprise value or the value of the stock.
Special item
|One-time items of income or expense.
|Spot rate
|Prices fixed for securities that only have one price quoted per trading day (single price quotation) or for continuously quoted securities that do not meet the set minimum trading quantity.
Transfer of the shares held by minority stockholders in a stock corporation to the majority stockholder in return for a compensation payment. In Germany, a majority stockholder with an interest of 95 percent can request a squeeze-out. When a stock corporation is merged with a parent stock corporation, a squeeze-out can take place if the majority interest is 90 percent or greater.
Stakeholder value
A management approach that aims to generate value for everyone affected by a company's policies – including the employees and society in general. The stakeholder value approach acknowledges the concern that if management adopts a one-sided focus on building value for stockholders only (shareholder value), it may in fact undermine the real economic basis for success. For example, a short-term focus on the stock's trading price might jeopardize employees' long-term confidence in management. However, stockholder value and stakeholder value do not necessarily conflict with one another.
|Standard & Poors
Standard & Poor's is one of the two best-known and most important rating agencies; the other is Moody´s.
|Statement of financial position
|The statement of financial position – still sometimes known as the balance sheet – is a complete breakdown of a company's assets, equity and liabilities as of a given date, and serves as a measurement of the company's performance. It distinguishes between the allocation of funds (assets) and the source of funds (equity and liabilities) and thereby provides an overview of the company's financing structure. The statement of financial position forms part of a company's annual financial statements along with other schedules such as the income statement and the cash flow statement.
In Germany, two types of companies issue stock: the stock corporation, or "Aktiengesellschaft" (abbreviated AG) and the "partnership limited by shares," or "Kommanditgesellschaft auf Aktien" (abbreviated KGaA). Stock is divided into individual units called "shares." The bearer or owner of a share of stock (called a shareholder or stockholder) owns a portion of the company's share capital or "capital stock," defined either as a percentage of that capital (a "theoretical" or "notional" value) or as a specific amount stated on the face of the stock certificate (a "par" value). Stockholders have a number of fundamental rights, including the right to participate and vote at stockholders' meetings, the right to receive a portion of the company's profits (a "dividend"), and the first right of refusal (known as a preemptive right or subscription right) if the company issues new stock.
Stock analysis
The study of share performance for the purpose of making long- or short-term investments. The analyst applies specific criteria in an attempt to predict future performance of the stock price on the basis of past and present data. While fundamental analysis focuses on the financial data relating to the company itself and the markets in which it operates, technical analysis is concerned mainly with trends in the stock price and turnover. The principal stages in stock analysis are generally considered to be:
Stock corporation
A company whose stock is divided up into individual shares. Stock corporations often have a great many stockholders, many of whom may hold only small stakes. Such companies are said to be "widely held". Each stockholder's liability is limited to the value of the stock he or she owns. If a stock corporation is listed on a stock exchange, its stockholders can sell their shares on the exchange whenever they like, by way of a bank. German stock corporations have three principal governance bodies: the board of management, the supervisory board, and the annual stockholders' meeting. To protect stockholders' interests, German stock corporations must meet certain disclosure requirements. For example, they must publish their financial statements each year and announce business events that may have a material effect on the price of their stock.
|Stock index
Stock indices measure the price or value development of multiple stocks. The stocks included in each index are weighted according to certain criteria, such as their market capitalization. Indices can either be price indices (such as the FAZ index), which only takes the stock prices themselves into account, or total return indices (such as the DAX, which also include dividends and subscription rights from capital increases in its calculations. A total return index therefore provides insight on the overall value development of the included stocks. The development of the individual stocks is often compared to the index as a whole when making performance comparisons.
|Stock market
|The market for securities, currencies, commodities and derivatives. The market is embodied in individual institutions known as exchanges. The world's largest stock exchange is the New York Stock Exchange on Wall Street. In Germany, the highest volume of trading takes place in Frankfurt, but there are also regional stock exchanges in Düsseldorf, Stuttgart, Hamburg, Hanover, Berlin and Munich. For years, conventional floor trading has been losing ground to electronic trading systems like the Frankfurt Stock Exchange's XETRA.
|Stock price/ Share price/ Trade price
|The price of a stock on a stock exchange, determined as a function of supply and demand.
|Stock types
|German stocks are generally categorized on the basis of several criteria:
(1) According to how the company's capital stock is divided up:
a) Shares with a specific par value
b) "No-par" shares worth a certain fraction (such as 1/1000) of the capital stock (a theoretical or "notional" value).
(2) According to how ownership can be transferred:
a) "Bearer" shares may be transferred by a simple agreement and transfer of ownership.
b) "Registered" shares are recorded in the company's register of stockholders, and their sale must be memorialized with a transfer notation.
c) "Restricted" registered shares cannot be transferred without the consent of the company's board of management.
(3) According to the rights associated with the stock:
a) "Common" stock endows the owner with all rights as provided under Germany's Stock Corporation Act (the "Aktiengesetz").
b) "Preferred" stock usually does not entitle the owner to voting rights, but does entitle the stockholder to higher dividends or other preferential rights.
The capital stock of Bayer AG is represented by common stock only. All shares are no-par registered shares.
|Stockholder value
|See shareholder value
|Stockholders' Newsletter
|A publication, normally issued three times a year, in which Bayer provides an interim report on the Group's business performance for the first, second and third quarter, respectively, together with a selection of topical news items about corporate activities. In spring of the following year the company then issues the Annual Report for the entire fiscal year.
|Stockholders´ equity
|See equity
|When a company is to be newly listed on the stock exchange, potential investors can subscribe for shares once the issue price range has been set. In this process, each potential investor is required to indicate the number of shares he/she is willing to buy and at what maximum price.
|Subscription right
|See preemptive right
|Supervisory board
|Together with the board of management and the annual stockholders' meeting, the supervisory board is one of the three legally required governance bodies of a German stock corporation. Its duties include overseeing the company's management. A person cannot be a member of both the supervisory board and the board of management. Members of the supervisory board need not be stockholders of the corporation they supervise. The size of the supervisory board is defined by law and depends on the number of employees. Half of the 20 members of Bayer's supervisory board are elected by the stockholders, and half are elected by the employees. The stockholder representatives are elected by the annual stockholders' meeting, while the employees elect their representatives indirectly through electors.
|Syndicated credit facility
|Credit line agreed with a group of banks. Generally used for extensive financing requirements, such as when making an acquisition, to increase the available liquidity reserves or as security for the issuance of debt instruments. The credit facility can be utilized and repaid flexibly, either in full or in portions, during its term.
|Synergy is the positive effect that results from the combining of two companies or corporate units or from collaboration between them.
A portion of a securities issue that is carried out not all at once, but in several segments at different dates, and possibly at different interest rates or – in the case of international bonds - in different currencies.
Abbreviation for United States Generally Accepted Accounting Principles. These principles are published by the Financial Accounting Standards Board (FASB) and recognized by the SEC. Like the IFRS, they are also of international significance.
Venture Capital
Equity provided by specialized venture capital companies or funds to start-up companies, e.g. in high-tech sectors, that are unable to finance their own growth.
A measure of the relative extent of fluctuation of stock prices. If a stock's price fluctuates widely, the stock is said to be very volatile. Higher volatility means a higher risk for investors.
|Voting right
Right conferred upon shareholders to participate in decisions at the Annual Shareholders' Meeting (usually one vote per share). Every shareholder can transfer his or her voting right to his or her security deposit bank or another shareholder-meeting participant per proxy.
|Wall Street
see NYSE
A warrant certifies the right (not the obligation), to purchase (call option) or sell (put option) shares within a certain period or at a certain time for a previously agreed amount (strike price). If the strike price for a call option (put option) is lower (higher) than the current share price, the option has an intrinsic value. In addition to the intrinsic value, an option also has a fair value because its intrinsic value may increase over the remaining term.
|Warrant bond
|Security that represents a combination of a conventional bond and a stock option (call option). Along with the right to receive payments of interest and principal, the owner of a warrant bond also has the right to purchase shares at fixed conditions within a set period. The bond runs until maturity whether or not the option is exercised.
|Weighted average cost of capital (WACC)
The weighted average cost of capital (WACC) represents the return expected by investors on the capital invested in the company. It is computed as a weighted average of the cost of equity and debt. The cost of equity is derived from capital market information and represents the return expected by stockholders, while the cost of debt represents the conditions at which the company can borrow money over the long term.
|Withholding tax
|A tax on employment or investment income that is deducted by the payer of the income on the recipient's behalf and paid over directly to the tax authorities. For example, capital gains tax is a withholding tax that is paid directly by the financial institution rather than the investor.
|German abbreviation for Wertpapierkennummer. Shares, bonds, investment certificates and warrants listed in Germany can be clearly identified by this six-figure security code number. The WKN for Bayer shares is BAY001.
Working capital
Working capital is the difference between short-term current assets and short-term liabilities. It is calculated by deducting short-term liabilities from current assets (excluding cash and cash equivalents). In financial accounting, the change in working capital is one of the variables used to assess a company's financial health. The objective of working capital management is to reduce working capital by minimizing the "financing gap" caused by the time lapse between the disbursement of funds (= payment for necessary raw materials) and the receipt of funds for the finished product.
See impairment
Acronym for Exchange Electronic Trading, a computerized securities trading system. The 30 DAX blue chips, the 70 MDAX shares, other select stock, equity warrants and a number of government bonds are traded on Xetra. Xetra replaced the former IBIS system for the German equity market on November 28, 1997.
|Market segment of Deutsche Börse for exchange-traded funds.