text:
    Bryan Keith RICKS v. STATE of Arkansas
    CR 96-973
    940 S.W.2d 422
    Supreme Court of Arkansas
    Opinion delivered March 10, 1997

      Jerome J. Paddock, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

Bryan Keith Ricks was convicted of four counts of rape. Ark. Code Ann. § 5-14-103 (Repl. 1993). He was sentenced to life imprisonment without parole. The victim testified that Mr. Ricks came into her apartment while she was sleeping. She awakened to find him on top of her. During a period lasting almost two hours he penetrated her genitalia with his penis on more than one occasion, although he could not complete the act due to his inability to achieve an erection. He also penetrated her vaginal labia with his tongue and with his fingers and penetrated her mouth with his penis.

Mr. Ricks does not challenge the sufficiency of the evidence but argues three of the four counts should have been dismissed because all of the penetrations resulted from a single impulse. He also contends there has been a violation of his right to due process of law as the result of a conflict between the statute providing for jury sentencing and the statute providing a mandatory sentence of life without parole for an habitual offender convicted of rape. We find no error and affirm.

Í. Multiple counts

Mr. Ricks contends there was only one continuing act, and thus there should have been a conviction on only one count of rape. To constitute a continuing offense, there must be a continuous act of series of acts set on foot by a single impulse and operated by an unintermittent force. Britt v. State, 261 Ark. 488, 549 S.W.2d 84 (1977). Mr. Ricks argues that the acts charged were not sufficiently separated in time to have been the products of more than one impulse but comprised a continuing course of conduct. He argues his one impulse was “sexual activity” and that the acts which occurred were merely the products of that impulse.

Arkansas Code Ann. § 5-1-110 (Supp. 1995) provides in part:

(a) When the same conduct of a defendant may establish the commission of more than one (1) offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one (1) offense if:
* * *
(5) The conduct constitutes an offense defined as a continuing course of conduct and the defendant’s course of conduct was uninterrupted, unless the law provides that specific periods of such conduct constitute separate offenses.

When the impulse is single, only one charge lies, no matter how long the act may continue. If there are successive impulses, even though all unite in a common course of action, separate charges lie, and the test is whether the prohibition is of the individual acts or the course of action they constitute. If the former, each act is punished separately; if the latter, there can be but one penalty. Rowe v. State, 271 Ark. 20, 607 S.W.2d 657 (1980), cert. denied 450 U.S. 1043 (1981); Britt v. State, supra.

Examples we have given of continuing offenses include offenses such as nonsupport and promotion of prostitution. See Rolark v. State, 299 Ark. 299, 772 S.W.2d 588 (1989). The essence of rape, whether by deviate sexual acts [§ 5-14-101(1)] or by sexual intercourse [§ 5-14-101(9)], is penetration. In Tarry v. State, 289 Ark. 193, 710 S.W.2d 202 (1986), we rejected the argument that rape, consisting of more than one penetration, is a continuing offense. There, the evidence was that the nocturnal intruder into the victim’s bedroom was unable to obtain an erection. He penetrated the victim with his fingers, went to the bathroom and then returned to penetrate her with his penis. Discussing the propriety of the conviction on two counts of rape resulting from that episode, we said:

Rape is not defined as a continuing offense. It may consist of engaging in sexual intercourse or deviate sexual activity with another person by forcible compulsion. [Citation omitted] Rape is a single crime that may be committed in either of two ways. Cokeley v. State, 288 Ark. 349, 705 S.W.2d 425 (1985). Here the prosecutrix testified that she had been raped in two different ways, and the jury so found by separate verdicts. There was not a continuing offense, for the two acts of rape were of a different nature and were separated in point of time. A separate impulse was necessary for the commission of each offense. There were two offenses. See Rowe v. State, 271 Ark. 20, 607 S.W.2d 657 (1980), cert. denied, 450 U.S. 1043 (1981).

Mr. Ricks contends the rationale thus expressed is not controlling because his acts were not separated in time. His argument ignores the victim’s testimony that, in the course of Mr. Ricks’s ten or more attempts to engage her in intercourse, both on the bed and on the floor, they “took a break” when he went to the bathroom, dragging her with him by her neck. It also ignores the three different means by which he penetrated the victim.

Although the Tarry decision emphasized the distinction between rape by sexual intercourse and rape by deviate sexual activity, both proscribed by § 5-14-103, the holding is expanded very little, if any, by our conclusion in this case that if separate penetrations occur as the results of separate impulses, whether accomplished in separate ways or repeated in the same manner, each constitutes an offense. We cannot say it was error in this case to allow the jury to find Mr. Ricks guilty of each of the four offenses charged.

2. The sentence

Although he mentions the Fifth and Fourteenth Amendments to the United States Constitution, Mr. Ricks cites no case authority whatever for his argument that he was deprived of due process of law as the result of the sentence imposed. He cites Ark. Code Ann. § 5-4-103(a) (Repl. 1993) which provides that a jury is to fix the punishment of one found guilty of a felony. He argues § 5-4-103(a) conflicts with Ark. Code Ann. § 5-4-501 (Supp. 1995) which requires that one who has previously been convicted of two or more violent felonies and who is then convicted of rape is to be sentenced to life imprisonment without parole. The contention is that the power of the jury to fix punishment conferred by the first statute is taken away by the second one.

The argument ignores further language of § 5-4-103(a) which states that the jury is to fix punishment “as authorized by this chapter,” meaning Chapter 4 of Title 5. There is no conflict. Nor is there a constitutional right to be sentenced by a jury. Spaziano v. Florida, 468 U.S. 447 (1984); Scherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1988).

3. Rule 4-3(h)

The record of trial has been examined for error in rulings by the Trial Court which were adverse to Mr. Ricks. None have been found.

Affirmed.


source: Caselaw Access Project

author: Donald L. Corbin, Justice.

license: Public Domain

text:
    Michael David RHEA v. STATE of Arkansas
    CR 96-123
    938 S.W.2d 857
    Supreme Court of Arkansas
    Opinion delivered March 10, 1997

      John Joplin, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant, Michael David Rhea, appeals the judgment of conviction of the Sebastian County Circuit Court sentencing him to forty years’ imprisonment, with imposition of twenty-seven years suspended, and ten years’ imprisonment for the respective charges of possession of methamphetamine with intent to deliver, Class Y felony, and possession of marijuana with intent to deliver, Class C felony, as provided in Ark. Code Ann. § 5-64-401 (Supp. 1995). Jurisdiction lies properly within this court pursuant to Ark. Sup. Ct. R. 1-2(a)(2) (as amended by per curiam July 15, 1996).

Appellant was arrested, along with Billy Lowell Hammons, on March 1, 1995, and subsequently charged with the foregoing felony offenses. Both Appellant and Hammons made motions to suppress the evidence seized by police officers on the theory that the arresting officer had effected an illegal seizure of the two men. After a hearing on the matter, the trial court denied both Appellant’s and Hammons’s suppression motions. Following the trial court’s ruling, Appellant and Hammons entered conditional pleas of nolo contendere to the drug offenses, pursuant to A.R.Cr.P. Rule 24.3, and both subsequently appealed the trial court’s ruling.

On appeal, Appellant maintains that the arresting officer effected an illegal seizure of his person and that, as a result, the evidence found during the subsequent search of Appellant and the custodial statement given to police after his arrest must be suppressed as the fruits of an illegal search and seizure. During the suppression hearing below, Appellant did not otherwise challenge the legality or the voluntariness of his custodial statement, nor does he do so on appeal.

The facts of this case have been outlined in great detail in the companion case of Hammons v. State, 327 Ark. 520, 940 S.W.2d 424 (1997). The arguments made on appeal by both Appellant and Hammons are identical, and therefore, based upon our reasoning set forth in the Hammons opinion, we similarly affirm the trial court’s judgment of conviction in this case.


author: Robert L. Brown, Justice.

text:
    Billy Lowell HAMMONS v. STATE of Arkansas
    CR 96-413
    940 S.W.2d 424
    Supreme Court of Arkansas
    Opinion delivered March 10, 1997

      Eddie N. Christian, by: Eddie Christian, Jr., for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

Appellant Billy Lowell Hammons appeals his convictions and sentences for possession of methamphetamine with intent to deliver and possession of marijuana with intent to deliver. He was sentenced to 40 years in prison with 10 years suspended on the first conviction and to 10 years on the second conviction, with the two sentences to run concurrently. He appeals and urges that the trial court erred in refusing to suppress the drugs seized in what he terms was an illegal arrest. We find no error in the trial court’s ruling, and we affirm.

On March 1, 1995, Hammons was arrested for possession of controlled substances. He was charged on March 3, 1995, with possession of methamphetamine and marijuana with intent to deliver and with possession of dilaudid. The dilaudid charge was later nolle prossed. On June 12, 1995, Hammons moved to suppress certain drugs that were seized by a Fort Smith police detective following his March 1, 1995 arrest. At the hearing on Hammons’s motion, Fort Smith Police Detective Dennis Alexander described the events surrounding the arrest. He testified that he received an anonymous call from a woman on February 23, 1995. The caller informed him that a man called “Wild Bill” of Wilburton, Oklahoma, was supplying a number of smaller dealers with methamphetamine in both eastern Oklahoma and western Arkansas. She said these smaller dealers were friends of hers who had been arrested. One was the caller’s roommate, and one was a woman named Shannon Smith. She related to Detective Alexander that “Wild Bill” drove a 70 or 80 model black Corvette, and that he was in his late 30’s or early 40’s, had a slender build, and often wore a mustache and a beard. Detective Alexander testified at the hearing that the caller’s information was rehable because she was “very knowledgeable” about the methamphetamine trade in the area and about people who had been arrested for methamphetamine sales.

Detective Alexander next testified that on March 1, 1995, he received information from Fort Smith Police Detective Wayne Barnett, who had received information from the police dispatcher about a second anonymous call from a female who stated that one of the largest drug suppliers in the area would be at Old Town Grain and Feed, a local bar that sold alcoholic beverages, that evening and that he would be driving a black Corvette. Based on the tip, Detective Alexander and Detective Barnett drove through the area of Old Town three times and did not see the black Corvette. At approximately 11:30 p.m. that night, Detective Alexander, who was now alone and driving a Chevrolet Astro minivan, drove by Old Town and saw a black Corvette backed into a parking spot with two people sitting in the car. The dome light in the Corvette was on, which Detective Alexander testified was significant because he routinely checked cars in parking lots of drinking establishments with dome lights on to assist the State Alcoholic Beverage Commission in policing illegal drug and alcohol consumption in motor vehicles.

Detective Alexander stated that he circled the block and entered the parking lot, which was open to the public. As he pulled within five to ten feet of the Corvette, his headlights illuminated two people in the car. They both looked up and then began “scrambling” inside the car. Detective Alexander explained that they “began reaching down under the seat, turning and twisting as if they were trying to conceal something or put something up.” He could look down inside the car from his vantage point and testified that he saw the driver (later identified as Hammons) reach under his seat and come up with what the police detective believed to be a gun. At that point, Detective Alexander stated that he turned his blue light on to let the two people know that he was a police detective. (On cross-examination Detective Alexander contradicted himself and testified that he turned on his blue light when he saw the “scrambling.”) He drew his pistol, stepped down from the minivan, and ordered the passengers to show their hands. The passenger (later identified as Michael David Rhea) complied, but Hammons had to be told five or six times to show his hands. After reaching under the seat again, Hammons did as he was instructed.

Hammons was ordered to exit the vehicle, and while doing so, he dropped a brown pouch on the ground. The police detective patted Hammons down for weapons and discovered a vial in his right coat pocket that contained an off-white, rock-like substance that he believed to be methamphetamine. He testified that he also found suspicious items on Rhea and in the pouch that Hammons dropped on the ground. Hammons told Detective Alexander that his nickname was “Wild Bill,” and that he was from Wilburton, Oklahoma. A pistol was found in the Corvette under the driver’s seat, with the magazine sitting on the console.

On cross-examination, Hammons’s counsel attacked the reliability of the information received by Detective Alexander from the anonymous caller on February 23, 1995. Hammons’s counsel emphasized that much of the caller’s references to the methamphetamine trade could have been garnered from public records. He also questioned the accuracy of the information that had been relayed to Detective Alexander from the March 1, 1995 anonymous caller and later noted during examination of the police dispatcher that no details regarding name, time, or whether illegal drug transactions would transpire were imparted to the dispatcher.

The trial court denied Hammons’s motion to suppress, and in doing so stated that it was basing its ruling primarily on the police detective’s statement that the grounds for arrest developed on the parking lot where a dome light was on and where the detective saw the occupants “squirming” about in the Corvette, trying to avoid something. The trial court concluded that these actions raised reasonable suspicion for the police detective to at least check out the circumstances. The trial court also concluded that in simply puffing the minivan up to the Corvette, the police detective had not blocked the Corvette’s path, and that Hammons was free to leave. The court further observed that the sighted gun properly played a role in Detective Alexander’s actions. Following this ruling by the trial court, Hammons entered a conditional plea of nolo contendere to the charges pursuant to Ark. R. Crim. P. 24.3 and was sentenced accordingly.

The sole issue on appeal is whether Detective Alexander had grounds to effect a seizure of Hammons under Ark. R. Crim. P. 3.1. In reviewing a trial court’s denial of a motion to suppress, this court makes an independent determination based on the totality of the circumstances and reverses only if the ruling is clearly against the preponderance of the evidence. Evans v. State, 326 Ark. 279, 931 S.W.2d 136 (1996). See also Illinois v. Gates, 462 U.S. 213 (1983).

Rule 3.1 of the Arkansas Rules of Criminal Procedure provides in pertinent part:

A law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct.

Id. This court has defined “reasonable suspicion” as “suspicion based upon facts or circumstances which give rise to more than a bare, imaginary, or purely conjectural suspicion.” Williams v. State, 321 Ark. 344, 348, 902 S.W.2d 767, 769 (1995).

Hammons advances the theory that this was essentially an “informant” case, and that Detective Alexander’s information was insufficient to form the reasonable suspicion necessary under Ark. R. Crim. P. 3.1 for a stop and detention. In making this assertion, he relies on Lambert v. State, 34 Ark. App. 221, 808 S.W.2d 788 (1991). In Lambert, the Arkansas State Police received an anonymous tip from a person in Little Rock that a man named “Jerry” would be leaving the Hot Springs area en route to Little Rock at approximately 3:00 p.m. and would be transporting approximately ten pounds of marijuana in a black truck with “Woodline Motor Freight” written on its side in orange letters. Acting on this information, a state trooper stopped a truck matching this description at approximately 3:50 p.m. The truck was heading from Hot Springs toward Little Rock on Highway 70. The driver identified himself as Jerry Lambert and admitted that he had marijuana in his vehicle.

Lambert’s motion to suppress the marijuana was denied, and he pled guilty to possession of marijuana. On appeal, the Arkansas Court of Appeals reversed the trial court and suppressed the evidence, relying primarily on Alabama v. White, 496 U.S. 325 (1990). The United States Supreme Court refused to suppress the evidence in Alabama v. White but did so because the information collected from the anonymous tip was sufficiently corroborated. The court of appeals in Lambert, however, concluded that there was insufficient corroboration in that case. For example, the court pointed out that there was no verification of the departure point and no certainty that the driver was actually going to Little Rock. The court further made reference to an overall lack of detail in the anonymous call.

In Alabama v. White, supra, police officers received an anonymous tip that Vanessa White would be leaving 235-C Lynwood Terrace Apartments in Montgomery, Alabama, at a particular time in a brown Plymouth Station Wagon with a broken right taillight. The caller stated that White would be in possession of a brown attaché case containing approximately one ounce of cocaine and that she would be headed to the Dobey Motel. The police officers proceeded to the apartment complex, spotted White entering the station wagon, pulled her over just short of the Dobey Motel, and discovered the attaché case. The case contained marijuana, and approximately three milligrams of cocaine were found in White’s purse. White entered a conditional plea of guilty on the narcotics charges after her motion to suppress was denied. The Court of Criminal Appeals of Alabama determined that the officers lacked the reasonable suspicion necessary under Terry v. Ohio, 392 U.S. 1 (1968), and reversed her conviction. The Alabama Supreme Court denied certiorari, but the United States Supreme Court granted certiorari and reversed the intermediate appellate court. The Court acknowledged the general rule that an anonymous tip, standing alone, would not meet the requisite “reasonable suspicion” necessary for a stop under Terry v. Ohio, supra. The Court determined, however, that there was sufficient corroboration of the anonymous tip to uphold the stop, emphasizing that under the totality of the circumstances, the tip had proven to be reliable. The Court noted that the officers found a car matching the description in front of building 235 of the apartment complex and that the caller accurately predicted White’s conduct of heading direcdy to the Dobey Motel.

Hammons argues that in the instant case Detective Alexander made no attempt to investigate, confirm, or corroborate the statements made in the March 1, 1995 anonymous telephone call. He further relies on Meadows v. State, 269 Ark. 380, 602 S.W.2d 636 (1980), for the proposition that his conduct and the conduct of his passenger, Michael Rhea, did not arouse any suspicions. In Meadows, police officers attempted to justify the stop of the defendant and another man for suspicious conduct because they walked quickly past police officers and continued to look back at them. The police accosted the two individuals, asked for their identification, and determined that the defendant had an outstanding felony warrant. After arresting the defendant, the officers found heroin for which he was prosecuted. This court reversed due to the fact that the police officers lacked reasonable suspicion for the stop under Rule 3.1. We stated:

Here the officer’s sole reason for approaching the two men was their conduct in looking back and in quickening their pace upon being followed. That conduct, however, could not possibly suggest that Meadows or Duncan had committed or were about to commit any particular type of felony or misdemeanor, which is necessarily what Rule 3.1 refers to.

Meadows v. State, 269 Ark. at 382-83, 602 S.W.2d at 638 (emphasis in original).

We affirm the trial court’s ruling in the instant case, but we do so based on what developed in the Old Town parking lot, which aroused reasonable suspicion in Detective Alexander sufficient to meet the requirements of Rule 3.1. As an initial matter, we note that this court has stated: “Generally speaking, an officer would indeed be foolish to ignore an anonymous tip. So long as the officer does not invade the privacy and freedom of others, he is free to investigate any police matter in any manner not prohibited by law.” Willett v. State, 298 Ark. 588, 593, 769 S.W.2d 744, 746 (1989), quoting Burks v. State, 293 Ark. 374, 378, 738 S.W.2d 399, 401-02 (1987).

We have no doubt that Detective Alexander was looking for a 70 or 80 model black Corvette in the Old Town area on the night of March 1, 1995. He admits as much. But, in addition, one of the jobs of the Fort Smith Police Department was to investigate “dome light cases” for the potential use of alcohol or illicit drugs in the parking lots of drinking establishments. Detective Alexander testified that he saw the black Corvette with the dome light on. He approached the Corvette on a parking lot open to the public to take a closer look and that is when he saw the two men scrambling and, ultimately, saw the gun in Hammons’s hand. He either activated his blue light when he saw the movement in the Corvette, which included reaching under the front seat, or when he saw what he thought was a gun in Hammons’s hand.

A person is “seized” for purposes of the Fourth Amendment when “in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Smith v. State, 321 Ark. 580, 585, 906 S.W.2d 302, 305 (1995), quoting United States v. Mendenhall, 446 U.S. 544, 554, reh’g denied, 448 U.S. 908 (1980). Clearly, the mere approach of a police officer to a car parked in a public place does not constitute a seizure. See, e.g., Thompson v. State, 303 Ark. 407, 797 S.W.2d 450 (1990); Phillips v. State, 53 Ark. App. 36, 918 S.W.2d 721 (1996); Adams v. State, 26 Ark. App. 15, 758 S.W.2d 709 (1988).

For example, in Thompson v. State, supra, this court affirmed a conviction for DWI after first stating that the police officer’s mere approach to the parked car did not rise to the level of a seizure for Fourth Amendment purposes. We further observed that a non-seizure encounter was embraced in Ark. R. Crim. P. 2.2(a) as a request for information or for cooperation in a criminal investigation. We noted that in simply approaching the car, the police officer did not “restrain[ ] the liberty of the appellant by means of physical force or a show of authority.” Thompson v. State, 303 Ark. at 410, 797 S.W.2d at 452. See also Phillips v. State, supra (involving an officer’s approach to a van parked in the middle of the road); Adams v. State, supra (involving an approach to a car parked at night in a high school parking lot). Cf. United States v. Kim, 25 F.3d 1426 (9th Cir. 1994)(partial blocking of appellant’s automobile by police car did not foreclose finding of no stop); United States v. Packer, 15 F.3d 654 (7th Cir. 1994)(stop occurred when officers blocked front and rear of automobile and shined lights into appellant’s car); United States v. Encarnacion-Galvez, 964 F.2d 402 (5th Cir. 1992) (no stop occurred when officers made no “display of authority” and did not block appellant’s automobile).

In the instant case, the question of the time of Hammons’s seizure turns on when Detective Alexander showed a display of authority such that a reasonable person would not feel free to leave. We have no doubt that this occurred when the police detective put on his blue fight. On direct examination, the detective’s testimony was clear that he turned on his blue fight after he saw what he thought was a gun. During cross-examination, however, the detective answered that the blue fight was activated when he saw the two men scrambling in the Corvette, which was prior to the time that he saw the gun. These events, of course, transpired in a matter of seconds, and the detective appeared to give two different versions of their sequence. It is probably more believable that Hammons would pull out his pistol before the blue fight came on. But, regardless, what decides this issue is the trial court’s statement that the presence of the gun was a factor in its ruling that the stop passed muster. We read that to mean that the trial court gave credence to Detective Alexander’s rendition of events in his direct examination where he stated that he turned on the blue fight when he thought he saw the pistol. These combined circumstances were enough to raise reasonable suspicions in the detective’s mind about potential criminal activity, including risk to his own personal safety, when the anonymous tips, time, place, and actions by Hammons and Rhea, including pulling out the pistol, are all factored into the equation. Again, actual criminal activity is not the test; it is whether reasonable suspicion of criminal activity exists.

In sum, the two anonymous tips caused Detective Alexander to be in the Old Town vicinity the night of March 1, 1995, and to enter the Old Town parking lot. Though Hammons argues that the police detective was only acting on the March 1, 1995 tip, we believe it is reasonable to assume that both anonymous calls led him to the parking lot on the night in question. We further believe that the information gathered from the tips in conjunction with the hour of the night, the location, the policy of the Fort Smith Police Department to assist ABC efforts, and the Corvette’s dome light being on justified an approach by Detective Alexander for investigative purposes, as contemplated by Ark. R. Crim. P. 2.2. The circumstances clearly warranted further inquiry. Once the two men began to “scramble” and reach under the front seat of their vehicle and once Detective Alexander thought he saw a pistol, this raised reasonable suspicion to warrant a stop and detention under Ark. R. Crim. P. 3.1 as either a potential felonious act or a misdemeanor causing injury by force.

We affirm the trial court’s denial of the motion to suppress. Had this been a case where Detective Alexander stopped, detained, and then arrested Hammons solely on the basis of the anonymous tips, we would reverse the trial court. But it was not. We agree with the trial court that the actions on the Old Town parking lot converted the matter into a situation where a Rule 3.1 stop and detention was appropriate.

Affirmed.


text:
    Danny HONEYCUTT v. CITY of FORT SMITH, George Fisher, in His Capacity as Chairman of the Civil Service Commission of Fort Smith, Arkansas, and Civil Service Commission of Fort Smith, Arkansas
    96-1210
    939 S.W.2d 306
    Supreme Court of Arkansas
    Opinion delivered March 10, 1997

      Sam Sexton, III, for appellant.

      Daily, West, Core, Coffman & Canfield, P.L.L.C., by: Wyman R. Wade, Jr., for appellees.
   Robert L. Brown, Justice.

Appellant Danny Honeycutt appeals a summary judgment against him relating to the denial of a trial and grievance hearing before appellee Civil Service Commission of Fort Smith (Commission) in connection with his ten-day suspension without pay. We agree with the trial court that neither proceeding was required under the facts of this case, and we affirm.

The events leading up to the ten-day suspension are taken from Honeycutt’s testimony before the trial court and other documents introduced at the hearing. On July 30, 1995, Honeycutt, who was a captain with the Fort Smith Police Department, and Reserve Officer Pat Wheeler responded to a disturbance call on Albert Pike Avenue in Fort Smith. The report received was that Charles Gough, Sr., was en route to a residence with a handgun. Fort Smith police officers located Gough, and Honeycutt and Wheeler pulled him over. Honeycutt concluded that Gough was extremely intoxicated and ordered him to get out of the car. Gough opened the car door, whereupon Wheeler reached into the car, and Gough slammed the car door on Wheeler’s hand. Wheeler fell back, and Gough sped away, at which time Honeycutt pulled his revolver and shot at the left rear tire of the retreating vehicle. His shot missed the tire. A pursuit ensued with other police officers from the Fort Smith Police Department joining in the chase. More shots were fired by police officers. Gough drove into Oklahoma and was later arrested by Oklahoma police officers.

On September 1, 1995, a hearing board of the Fort Smith Police Department conducted a review of the conduct of the police officers involved in Gough’s arrest. The board concluded with respect to Honeycutt that there was not sufficient justification for firing his revolver at Gough’s vehicle and further that Honeycutt “could have more aggressively exercised command and control of the high speed pursuit situation which later developed.” The board recommended a ten-day suspension without pay as a disciplinary action, and the Fort Smith Chief of Police concurred.

On September 13, 1995, Honeycutt’s counsel wrote the Commission and requested “a trial and hearing” before the Commission “and before any other administrative body and/or court of law or equity” on Honeycutt’s suspension in accordance with Commission rules and Arkansas statutes. On September 25, 1995, the Chairman of the Commission replied that Commission rules stated that a suspension without pay was not considered to be a reduction in pay and, accordingly, a trial was not required under state statutes or Commission rules. On October 5, 1995, Honeycutt’s counsel wrote the Director of Human Resources for the City of Fort Smith that his initial request was intended to be a request for a grievance hearing under Commission Rule ¶5.05. On October 20, 1995, counsel for the Commission wrote Honeycutt’s attorney that a grievance hearing had been set for November 15, 1995. The letter then continued:

It is the position of the Commission, and a position which seems to be obvious from the Rules, that a request for a grievance hearing under Rule 5:05 cannot be used as a basis to obtain a trial on the disciplinary action which is expressly denied by Rule 5:03. Therefore, the Commission does not intend to grant a trial and review the action of the Chief of Police in discipHning Captain Honeycutt with a ten day suspension without pay.
Without anticipating what might be the basis for Captain Honeycutt’s grievance, the Commission will be available to hear whatever information Captain Honeycutt desires to present regarding his “grievance.” However, the Commission reserves the right to discontinue any effort which is nothing but an effort to obtain a trial and review by the Commission of the disciplinary action taken by the Chief of the Police Department.

On October 25, 1995, Honeycutt sued appellees City of Fort Smith, Commission, and George Fisher, as Chair of the Commission, and prayed that the ten-day suspension without pay be reversed, or, alternatively, for mandamus for a hearing before a neutral body, and for damages. The appellees answered that Honeycutt had failed to exhaust administrative remedies. Because of the Commission’s denial of a trial and because of the filed complaint, Honeycutt’s counsel informed counsel for the Commission that the grievance hearing set for November 15, 1995, was not necessary. The grievance hearing, accordingly, was cancelled. Later, the appellees moved for summary judgment on the grounds that Honeycutt was not entitled to a hearing before the Commission. Honeycutt answered the motion, alleging that the statutes and Commission rules conflicted and adding that, in any case, he was entitled to a hearing on his ten-day suspension under Commission rules and state statutes.

The trial court conducted a hearing on the summary-judgment motion. In doing so, testimony was taken from Honeycutt and documents gathered through discovery were presented. Counsel for the City and Commission objected to the matter “going to trial” at this hearing, but his objection was overruled.

By subsequent order entitled “Summary Judgment of Dismissal,” the trial court granted summary judgment to the City, Commission, and Chairman of the Commission and dismissed the matter with prejudice. In its order, the trial court found that a ten-day suspension without pay was not a reduction in compensation under Commission rules and that this interpretation by the Commission did not run afoul of state statutes. The trial court also found that a grievance hearing had been scheduled by the Commission at Honeycutt’s request but then canceEed at the request of Honeycutt’s counsel.

I. Order of the Trial Court

We first address our concern with the order of the trial court, though this precise matter has not been raised as an issue in this appeal. Although the order is styled Summary Judgment of Dismissal, the trial court received testimony from Honeycutt at the summary-judgment hearing, and by doing so, went beyond the pleadings, discovery, and affidavits in reaching its decision. See Ark. R. Civ. P. 56(c). Thus, the court converted the matter from a proceeding for summary judgment to a bench trial on the question of whether Honeycutt was afforded his procedural rights before the Commission. See Godwin v. Churchman, 305 Ark. 520, 810 S.W.2d 34 (1991). The trial court then entered judgment in favor of the appeEees, though it was styled inconsistently as both a summary judgment and a dismissal. We have stated in the past that we wiE look to the wording of an order or judgment to determine its essence. DeHart v. State, 312 Ark. 323, 849 S.W.2d 497 (1993); Magness v. McIntire, 305 Ark. 503, 808 S.W.2d 783 (1991). Here, the judgment was not an order of summary judgment for the reasons already stated. We conclude that the judgment foEowed a bench trial, though the appeEees declined to offer testimony, and was dispositive of the issue of whether Honeycutt was denied a trial or hearing under state statutes or Commission rides. We wiE treat the judgment as such.

II. Right to Trial

For his first issue, Honeycutt contends that the Civil Service Code affords him a right to a trial before the Commission when the disciplinary action is a ten-day suspension without pay. He cites us to Ark. Code Ann. §§ 14-51-301 and 308 (1987 & Supp. 1995), as authority for his position. We disagree with his reading of those statutes.

Our civil service statutes do provide that Commission rules must allow for a trial when a firefighter or police officer is discharged or reduced in rank or compensation and when that person denies the reasons for the disciplinary action and demands a trial. See Ark. Code Ann. § 14-51-301 (b)(ll)(B) (1987 & Supp. 1995). Section 14-51-301, though, does not require Commission rules to include a trial for ten-day disciplinary suspensions. The civil service statutes further provide that civil service employees may request a trial before the Commission because of discharge. Ark. Code Ann. § 14-51-308(b)(l) (1987 & Supp. 1995). But no specific right to a trial before the Commission is granted in § 14-51-308, when a ten-day disciplinary suspension is the issue. We note in this regard that both § 14-51-301 and § 14-51-308 make reference to suspensions, but, again, neither statute confers upon a civil service employee the right to a trial when a suspension is the disciplinary penalty involved.

Honeycutt, however, argues that he is entitled to a trial under § 14-51-301(b)(ll) because his ten-day suspension without pay equates to a reduction in compensation for which trials are allowed. We first note on this point that Commission rules specifically state “a suspension without pay shall not be considered a reduction in pay.” Rules of the Fort Smith Civil Service Commission ¶5:03. In addition, both § 14-51-301 and § 14-51-308 use the terms “suspension” and “reduction in compensation” separately and not in a synonymous vein. We also agree with the appellees that a civil servant, following a brief suspension, may return to the same pay while a reduction in compensation contemplates just what it says — a reduced amount of compensation while on the job. See also Loftus v. City of Carbondale, 195 Pa. Super. 52, 169 A.2d 581 (1961), rev’d on other grounds, Loftus v. City of Carbondale, 405 Pa. 276, 175 A.2d 85 (1961). Finally, a suspension without pay means no pay, which is the antithesis to a sanction where existing pay is reduced.

We, therefore, find no statutory basis or support in the Commission rules or our caselaw for Honeycutt’s position that a ten-day suspension carries with it the right to a trial before the Commission.

II. Grievance Hearing

For his second point, Honeycutt complains that he was denied a grievance hearing which he was entitled to under ¶5:05 of the Commission rules. That rule specifically allows that a civil servant “who has grievance relating to the matters covered by these rules” may present the grievance in writing to the Commission and request a hearing on it. A ten-day suspension for disciplinary reasons is clearly a matter covered by the Commission rules.

We first are confronted with the question of how a grievance hearing before the Commission differs from a trial before the Commission. It is obvious from his correspondence that counsel for Honeycutt recognized that there is a distinction between the two proceedings, although it is equally obvious that Honeycutt’s counsel refers to a trial and grievance hearing interchangeably in his briefs on appeal. The Commission’s counsel made it clear that Honeycutt could not use a grievance hearing as a means for obtaining a trial and as a device for a review of the Police Chiefs decision to discipline Honeycutt with a suspension. But contrary to Honeycutt’s representation on appeal, counsel for the Commission did not say Honeycutt was foreclosed from presenting evidence at a grievance hearing. Indeed, counsel wrote in his October 20, 1995 letter: “[T]he Commission will be available to hear whatever information Captain Honeycutt desires to present regarding his ‘grievance.’”

In our judgment, Honeycutt cannot decline to have a grievance hearing and then proclaim that he was denied one. Honeycutt elected to file suit and forego his right to a grievance hearing. As a result, it is virtually impossible for this court to know precisely what was denied him or what avenues for presenting proof would have been available to him at a grievance hearing. A grievance hearing in other contexts is a procedure for the informal resolution of disputes over employee policies. See, e.g., Ark. Code Ann. § 6-17-208 (Repl. 1993) (grievance procedure for school district employees). Thus, we take the grievance procedure available to Honeycutt to embrace a public airing of concerns over a department decision but without the formality of an adversary proceeding associated with a trial. We hold that the trial court was not in error in finding that Honeycutt voluntarily relinquished his right to a grievance hearing, which was a right known to him at the time he relinquished it. See Smith v. Walt Bennett Ford, Inc., 314 Ark. 591, 864 S.W.2d 817 (1993). We further conclude that Honeycutt has not clearly shown this court how he was prejudiced by the Commission’s position that he was entitled to a grievance hearing but not to a trial.

Because we hold that Honeycutt was not entitled to a trial and that he waived a grievance hearing before the Commission, there is no need to address his final point that this court should order a trial before “an unbiased administrative body.”

Affirmed.


author: Per Curiam.

text:
    Ricky Lee FRANKLIN v. STATE of Arkansas
    CR 96-996
    939 S.W.2d 837
    Supreme Court of Arkansas
    Opinion delivered March 10, 1997

      Appellant, pro se.

    No response.
   Per Curiam.

In 1992, Ricky Lee Franklin was found guilty by a jury of two counts of burglary and sentenced to an aggregate sentence of forty years’ imprisonment. We affirmed. Franklin v. State, 318 Ark. 99, 884 S.W.2d 246 (1994). He subsequently filed a pro se petition pursuant to Criminal Procedure Rule 37 in the trial court seeking to vacate the judgment. A hearing was held on the petition at which petitioner Franklin was represented by appointed counsel, Edgar R. Thompson. The petition was denied, and the record has been lodged in this court on appeal. Mr. Thompson has filed the appellant’s brief. Appellant does not approve of the brief filed by counsel and asks by motion that a new attorney be appointed or, in the alternative, that the record of the Rule 37 hearing be forwarded to him so that he may prepare a pro se brief.

There is no right to counsel in a postconviction proceeding. Pennsylvania v. Finley, 481 U.S. 551 (1987). As a result, when the trial court appointed Mr. Thompson to represent appellant at the hearing on the Rule 37 petition, it was merely exercising its discretion pursuant to Rule 37.3(b). Petitioner filed a motion asking that Mr. Thompson be relieved as counsel, which was denied, but he did not decline to be represented by an attorney. He does not contend, and the record does not disclose, that he ever asked the circuit court to permit him to proceed pro se as he could have done.

Appellant accepted representation by an attorney, and the fact that he is dissatisfied with counsel’s efforts does not entitle him to appointment of a different attorney. Even on direct appeal of a judgment, an appellant does not enjoy the absolute right to counsel of his choosing. Clements v. State, 306 Ark. 596, 817 S.W.2d 194 (1991). We will not tolerate a situation wherein an appellant competes with his attorney to be heard in an appeal. As appellant chose to accept the appointment of counsel, this court will not dismiss counsel now or permit the appellant to file a supplemental brief.

Motion denied.


text:
    Kevin Wayne HALE v. STATE of Arkansas
    CR 97-192
    938 S.W.2d 857
    Supreme Court of Arkansas
    Opinion delivered March 10, 1997

      A. Wayne Davis, for appellant.
    No response.
   Per Curiam.

Kevin Wayne Hale, by his attorney, has filed a motion for a rule on the clerk.

His attorney, A. Wayne Davis, admits in his motion that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Sherry Marie HALE v. STATE of Arkansas
    CR 97-191
    938 S.W.2d 858
    Supreme Court of Arkansas
    Opinion delivered March 10, 1997

      A. Wayne Davis, for appellant.
    No response.
   Per Curiam.

Sherry Marie Hale, by her attorney, has filed a motion for a rule on the clerk.

Her attorney, A. Wayne Davis, admits in his motion that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Francis J. HART and Other Benton County Taxpayers Similarly Situated v. BENTON COUNTY; Bruce Rutherford, County Judge of Benton County, Arkansas; Quorum Court Members, Robert “Dodie” Evans, William R. Fortune, Leon E. Lynch, Cary Anderson, Tim Summers, Mary Baggett, Earl Femmer, Margaret “Marge” Wolf, Sheryll A. Harbaugh, Clyde C. Cummings, Charles Bilby, Jeff Moser, Anne Miners; Benton County Treasurer; Gloria Spring-Peterson; and State of Arkansas
    96-1255
    938 S.W.2d 856
    Supreme Court of Arkansas
    Opinion delivered March 10, 1997

      Oscar Stilley, for appellant.
    No response.
   Per Curiam.

The motion for disqualification or recusal of Supreme Court justices filed by appellants, Francis J. Hart, and other Benton County Taxpayers similiary situated, is denied. Appellants also request a hearing “[i]f the Justices choose not to recuse without a hearing.” We find appellants’ request for a hearing after denial of the motion to be inconsistent. The purpose of a hearing is to consider the merits of a motion before making a decision. Therefore, appellants’ request for a hearing “if the Justices choose not to recuse” is denied on grounds of mootness.


text:
    Doyle MASSONGILL v. COUNTY of SCOTT, Arkansas; Booster Hawkins, In His Capacity as Scott County Judge; The Scott County Quorum Court; and Jimmy Helen Storms, Billy Wayne Wagner, Tom Garrison, Randy Godfrey, Lloyd Hattabaugh, Joyce Holleman, Terry McMellon, Johnny Faye Owens, and Dwayne Wadkins, Individually and In Their Representative Capacities as Members of the Scott County Quorum Court
    96-922
    938 S.W.2d 856
    Supreme Court of Arkansas
    Opinion delivered March 10, 1997

      Oscar Stilley, for appellant.
    No response.
   Per Curiam.

The motion for disqualification or recusal of Supreme Court justices filed by appellant Doyle Massongill is denied. Appellant also requests a hearing “[i]f the Justices choose not to recuse without a hearing.” We find appellant’s request for a hearing after denial of the motion to be inconsistent. The purpose of a hearing is to consider the merits of a motion before making a decision. Therefore, appellant’s request for a hearing “if the Justices choose not to recuse” is denied on grounds of mootness.


text:
    Excel WARREN v. STATE of Arkansas
    CR 97-166
    938 S.W.2d 857
    Supreme Court of Arkansas
    Opinion delivered March 10, 1997

      Zimmery Crutcher, for appellant.
    No response.
   Per Curiam.

Petitioner, Excel Warren, by his attorney, Zimmery Crutcher, has filed a motion for rule on the clerk or alternatively a motion for dismissal. Appellant received a guilty verdict on July 3, 1996, and filed a notice of appeal on July 18, 1996. However, judgment was not entered until December 18, 1996. The clerk refused to accept the record in this case on January 16, 1997, because the judgment was filed after the notice of appeal. Under our rules the notice of appeal was of no effect. Ark. R. App. P. 4; Kelly v. Kelly, 310 Ark. 244, 835 S.W.2d 249 (1991).

We will treat petitioner’s motion as one for a belated appeal and will grant the motion upon counsel’s admission of error in failing to perfect the appeal. See eg., Tarry v. State, 288 Ark. 172, 702 S.W.2d 804 (1986). Here, the attorney does not admit fault on his part, but instead implies fault on behalf of the State (or perhaps some unnamed third party). We have held that a statement that it was someone else’s fault or no one’s fault will not suffice. Clark v. State. 289 Ark. 382, 711 S.W.2d 162 (1986). Therefore, the motions must be denied.

The appellant’s attorney shall file within thirty days from the date of this per curiam a motion and affidavit in this case accepting full responsibility for not timely filing the notice of appeal. Upon filing same, the motion will be granted and a copy of the opinion will be forwarded to the Committee on Professional Conduct.


text:
    IN RE: CONTEMPT OF COUNSEL, George Stephens, Steve Kirk, and Ralph Blagg
    CR 96-799
    938 S.W.2d 859
    Supreme Court of Arkansas
    Opinion delivered March 12, 1997
   Per Curiam.

On February 17, 1997, we issued an order for attorneys George Stephens, Steve Kirk, Ralph Blagg, and Mel A. Jackson to appear and show cause why any one or all of them should not be held in contempt of court for failure to perfect the appeal in this case. Defendant Robert Caple was convicted on May 18, 1995, and almost twenty-two months later, no transcript has been filed in his appeal.

For his part, Mel A. Jackson accepted responsibility and offered his sincere apologies. Stephens, Kirk, and Blagg deny responsibility by pleading not guilty, and request a hearing. Therefore, we appoint the Honorable Jack Holt, Jr., as a master to conduct the hearing. After the hearing, we direct the master to make his findings of fact, and file them with the court. Upon receiving the master’s findings, we will decide whether counsel should be held in contempt. Until then, we reserve imposing punishment against Mr. Jackson.


author: W.H.“Dub” Arnold, Chief Justice.

text:
    Frank CARDER v. Bruce BURROW
    96-828
    940 S.W.2d 429
    Supreme Court of Arkansas
    Opinion delivered March 17, 1997

      Hatfield & Lassiter, by: Richard F. Hatfield, for appellant.

      The Rose Law Firm, A Professional Association, by: Herbert C. Rule, III and Kathryn Bennett Perkins, for appellee.
   W.H.“Dub” Arnold, Chief Justice.

This case involves the question of whether a transaction between Appellant Frank Carder and Corporate Furnishings, Inc. (of which Appellee Bruce Burrow was an organizer and president), is a security within the definition in the Arkansas Securities Act, Ark. Code Ann. § 23-42-102. Appellant Carder filed suit claiming that the transaction was an unauthorized sale of a security, and, thus, he was entitled to recovery pursuant to the Arkansas Securities Act. The trial court dismissed the action upon a finding that the transaction was not the sale of a security but instead a commercial loan.

Corporate Furnishings, Inc. (hereinafter “CFI”), was incorporated in January 1989 by Appellee Bruce Burrow and others with the purpose of buying used office furniture for resale. George Carder III, son of Appellant Carder, subsequently became a forty-seven percent stockholder.

On behalf of CFI, George Carder offered Appellant Carder the opportunity for Appellant Carder to purchase stock. Appellant Carder refused the offer to become a stockholder, and he testified that he offered to loan CFI money instead of purchasing stock because of the added protection that he would obtain as a secured creditor. Appellant Carder then made a loan to CFI, and a promissory note was executed by CFI. Pursuant to the note, the initial loan sum was $100,000 with the option of additional advances; the terms required CFI to pay accrued interest quarterly and pay one-fourth (1/4) of the outstanding principal annually. The interest rate on the initial loan and all subsequent loans was to be calculated at a rate of five percent per annum above the federal discount rate calculated at the time of each loan — the maximum rate allowed by Arkansas law. The loan was collateralized by all of the furniture, fixtures, equipment, and inventories owned at that time or in the future by CFI; a UCC security agreement was filed.

In 1992, CFI defaulted; Appellant Carder filed suit for recovery of the sum transferred to CFI with interest at six percent per annum plus attorney’s fees pursuant to Ark. Code Ann. § 23-42-106(a)(1). The trial court determined that it was Appellant Carder’s intention that this loan be a “floor plan” loan, with which he was familiar through his dealings in the automobile industry.

Appellant Carder treated money paid to him by CFI as interest income on his tax returns and testified that he characterized the transactions as “floor plan financing.” The circuit court further found that Appellant Carder was a sophisticated investor with experience in a broad range of business and loan transactions and that Appellant Carder had access to information regarding CFI’s financial performance as well as the status of its inventory through his son, a major stockholder.

Additionally, the trial court found that the note was not a part of a broad scale public offering by CFI. Also, the circuit court noted that most of CFI’s venture capital came from several loans, some of which were repaid with the proceeds of the loan from Appellant Carder.

Under Ark. Code Ann. § 23-42-106(a)(l), any person who offers or sells a security in violation of the Arkansas Securities Act is liable to the person buying the security either in law or equity. In order for a claimant to recover pursuant to this section, the transaction in question must be a security as defined by the Arkansas Securities Act. Ark. Code Ann. § 23-42-102(12)(A) defines “security” as follows:

“Security” means any note; stock; treasury-stock; bond; debenture; evidence of indebtedness; certificate of interest or participation in any profit-sharing agreements; collateral-trust certificate; preorganization certificate or subscription; transferable share; investment contract; variable annuity contract; voting-trust certificate; certificate of deposit for a security; certificate of interest or participation in an oil, gas, or mining title or lease or in payments out of production under such a title or lease; or, in general, any interest or instrument commonly known as a “security” or any certificate of interest or participation, temporary or interim certificate for, guarantee of, or warrant or right to subscribe to or purchase, any of the foregoing.

(Emphasis supplied.) Section 23-42-102(12)(B)(i) further provides that the terms “sale” or “sell” do not include any bona fide pledge or loan.

In Schultz v. Rector-Phillips-Morse, Inc., 261 Ark. 769, 552 S.W.2d 4, 8 (1977), we chose to utilize a flexible approach when interpreting the definition of “security.” Because the statutory definition is extremely broad and can encompass most commercial transactions, we determined that not all “notes” should be considered securities; however, we emphasized that the definition should not be too narrowly construed or it could be inapplicable to transactions of the nature which the Act was adopted to prevent. This approach was adopted so that the Arkansas Securities Act could “encompass the endless succession of new and innovative or old and tired promotional schemes, where the promoters, by design seek to risk the money or property of others in their venture.” Id. at 8. Further, we noted that the Arkansas Securities Act was promulgated to protect investors, so a broad and flexible definition should govern which transactions constitute securities under this section. Id.

Noting that shrewd promoters could label transactions with key words to avoid impheating this statute, we determined that the name of a particular transaction or offering was not a decisive factor; we stated, “regardless of labels, the Arkansas Securities Act was designed to protect both investors in common stock and those persons who in substance are the investors in the disguised business venture of another.” Id.

In Smith v. State, 266 Ark. 861, 587 S.W.2d 50, 52 (Ark. App. 1979), the Arkansas Court of Appeals noted that the obvious purpose of the Securities Act is to “protect the general public.” This protection promotes full disclosure of important information to investors, a policy which the U.S. Supreme Court has determined as the general public policy behind all such securities acts. Id. citing, S.E.C. v. Ralston Purina Co., 346 U.S. 1999 (1953).

The Court of Appeals in Smith utilized a five-element test in its analysis of whether the transaction before them was a security. These five elements are as follows: (a) The investment of money or money’s worth; (b) in a venture; (c) the expectation of some benefit to the investor as a result of the investment; (d) the contribution towards the risk capital of the venture; and (e) the absence of direct control over the investment or policy. Id.

Pursuant to the Smith factors, investors must expect some “benefit,” or profit, from the transaction. The Eighth Circuit Court of Appeals, in First Financial Federal Savings & Loan Association v. E.F. Hutton Mortgage Corp., 834 F.2d 685 (8th Cir. 1987), examined the Arkansas Securities Act and determined that a fixed rate of interest payable at fixed times did not constitute the “expectation of benefit” needed to make a note a security because it did not give the holder “an opportunity for either capital appreciation or participation in the earnings” of the company. Id. at 689. The court of appeals further stated that “we do not believe that a fixed rate of return is an ‘expectation of benefit to the investor’ as contemplated by the Arkansas Court of Appeals in Smith v. State.” Id.

In Grand Prairie Savings and Loan Association, Stuttgart v. Worthern Bank and Trust Co., 298 Ark. 542, 769 S.W.2d 20 (1989), we applied the Smith test and upheld the trial court finding that loan participation by banks were not securities under the Arkansas Securities Act. We determined that

The definition section . . .clearly indicates that the term “security” as used in the Act should be construed in its ordinary sense ‘unless the context otherwise requires." The purpose of the Act is clearly remedial and is intended to prevent fraudulent practices and activities from becoming a burden upon unsophisticated investors and the general public.”

Id. at 22. See also, Cook v. Wills, 305 Ark. 442, 808 S.W.2d 758 (1991) (applying the Smith test, stocks from a new entity formed by merging two businesses were found to be securities).

The trial judge was correct in examining all of the factors involved in the execution of this transaction in determining that the transaction between Appellant Carder and CFI was an ordinary secured commercial loan between two parties, not the sale of a security as defined in the Arkansas Securities Act. We conclude that there was sufficient evidence for the trial court to rule that the transaction was an isolated commercial loan and not the sale of a security.

Specifically, Appellant Carder did invest money in CFI which was used to fund its operations and was used as “risk capital.” Appellant Carder expected to profit from the transaction through the receipt of the highest interest rate permissible by Arkansas law; however, the loan rate was not dependent upon earnings of the corporation, and payment of the loan was expected regardless of company profitability. There was no expectation to “profit” from this transaction as if it were an investment; the loan was accounted for in Carder’s books as an account receivable and on his income tax return as “interest income” instead of dividends. According to the trial court, Appellant Carder was “anything but an unsophisticated investor”; he owned several companies, served as an officer in several corporations, and utilized “floor plan” loans on many occasions through his automobile dealership. Appellant Carder initially was given the offer to become a stockholder and refused this offer, making a conscious choice to instead offer a commercial loan to CFI.

This transaction was not part of a broad solicitation for investments by CFI. There were no allegations of fraud nor was this a situation involving a scheme devised to deceive uninformed investors.

Accordingly, the trial court was correct in concluding that this was not the sale of a security as defined by the Arkansas Securities Act.

Affirmed.

Brown, J., not participating.


author:
Tom Glaze, Justice.
      Donald L. Corbin, Justice,

text:
    Robert Harrold KINKEAD and Joyce Kinkead, His Wife, Appellants v. Carol Ann Kinkead SPILLERS and Jeannine Lea Kinkead Mathis, Appellees; Boatmen’s National Bank of Arkansas, Intervenor
    96-1433
    940 S.W.2d 437
    Supreme Court of Arkansas
    Opinion delivered March 17, 1997

      Joyce Kinkead, for appellant/pro se.

      Tommy E. Smith, for appellees.

      Sandra Elizabeth Jackson, for intervenor.
   Tom Glaze, Justice.

On September 27, 1994, appellees Carol Kinkead Spillers and Jeannine Kinkead Stroud filed a petition for partition. They along with their brothers Harold and Robert had obtained a one-fourth interest in the property. Harold died, leaving his one-fourth interest to Carol and Jeannine, so that the sisters each owned a three-eighths interest in the property at the time the partition action was filed. Carol and Jeannine requested that the property be sold, but Robert wanted the property to be divided in kind. Robert’s wife, Joyce, having a dower interest, was made a party to the action.

The chancellor appointed three commissioners, who reported that the property could not be partitioned in kind. On December 27, 1995, the chancellor confirmed the commissioners’ report and directed the property sold. The bid offered by Carol and Jeannine was the highest at $155,000, and on May 31, 1996, the chancellor entered an order confirming the sale and directed the chancery clerk to execute a commissioner’s deed. Robert objected, challenging the chancellor’s jurisdiction. He also questioned the sale price, claiming the market value of the property was $350,000. On June 23, 1996, Robert filed a notice of appeal from the May 31, 1996 order.

Also, on May 31, 1996, Boatmen’s National Bank of Arkansas moved to intervene, alleging it had an interest in the property through mortgages and a November 1, 1993 judgment against Robert and his wife in the amount of $49,812. See Kinkead v. Union Nat’l Bank, 51 Ark. App. 4, 907 S.W.2d 154 (1995). Boatmen’s asserted it had served a writ of garnishment on the chancery clerk for Robert’s share of the proceeds from the sale. Robert responded by challenging Boatmen’s standing. He argued Boatmen’s had no title or possession of the property, and the lien was insufficient to give it standing. Boatmen’s replied, claiming that, if its judgment against Robert was not satisfied by his share of the proceeds, its Hen on the property would be lost when the sale to Carol and Jeannine was completed. Boatmen’s further argued that the existing parties, Robert, Joyce, Carol, and Jeannine, had a common interest to avoid Boatmen’s judgment, and its Hen interest was left unprotected if Boatmen’s was not allowed to intervene. Boatmen’s urged it should be permitted to intervene, so it could protect its Hen as the Hen relates to both the property and the sale proceeds.

A hearing was held on the pending issues, and on August 5, 1996, the chanceHor entered her order, aHowing Boatmen’s intervention, directing distribution of the sale proceeds, and setting an appeal bond amount. Robert filed an amended notice of appeal to include the August 5, 1996 order. On September 10, 1996, the chancellor entered an order approving the commissioner’s deed to Carol and Jeannine and directing payment of expenses. Further, the chancellor ordered the $35,222.07 due to Robert as his share of the proceeds to be held “pending further orders.” Robert did not appeal from this order.

Now before this court is Boatmen’s motion to dismiss Robert’s appeal; Boatmen’s argues Robert’s notice and amended notice are not from final, appealable orders. Boatmen’s cites the cases of Bell v. Wilson, 298 Ark. 415, 768 S.W.2d 23 (1989), and Magness v. Commerce Bank, 42 Ark. App. 72, 853 S.W.2d 890 (1993), for the proposition that Robert'filed his appeal prematurely and should have filed from the court’s order approving the deed entered on September 10, 1996. Robert counters by arguing the Bell and Magness decisions involved partitions in kind, but in situations where partitions are by sale, the court need not enter a later order approving the commissioner’s deed. See Ark. Code Ann. §§ 18-60-416 -417 and 18-60-422 (1987). Alternatively, Boatmen’s urges that its claims and interests have not been decided, nor does any court order mention any facts that would allow a piecemeal appeal under ARCP Rule 54(b). For this added reason, Boatmen’s submits that the orders from which Robert appealed were not final and appealable. We agree.

The case of Martin v. National Bank of Commerce, 316 Ark. 83, 870 S.W.2d 738 (1994), is controlling here. In Martin, the chancellor granted Cynthia Martin what appeared to be an uncontested divorce and, upon doing so, the chancellor distributed the parties’ marital property. The husband, George, later moved to set aside the decree, alleging fraud on Cynthia’s part. George’s aunt by marriage, Alpha Brown, claimed an interest in the Martins’ property, and after learning of the divorce, Ms. Brown moved to intervene in the divorce action. Brown’s intervention was granted. The chancellor later denied George’s motion and George appealed from that ruling. George never challenged the chancellor’s ruling granting Ms. Brown’s intervention, nor did the chancellor dispose of Brown’s claim as required under ARCP Rule 54(b). Consequently, this court held no final, appealable order had been entered, and dismissed George Martin’s appeal.

Here, Robert does not contest the lower court’s decision allowing Boatmen’s intervention, and while there was discussion of Boatmen’s lien claim at the July 16, 1996 hearing, the record is far from clear that the chancellor ever disposed of it. In her August 5, 1996 order following the hearing, the chancellor, in granting Boatmen’s intervention, mentioned that Boatmen’s attorney announced that the Bank would release any lien it has on the subject property upon receipt of Robert’s sale proceeds, but the chancellor never ruled on the lien issue. Boatmen’s argues in its motion to dismiss Robert’s appeal that the chancellor reserved her ruling on the issue, but Robert submits the chancellor declined to rule on Boatmen’s lien claim because it was collateral to the issues raised in the Kinkeads’ dispute. Robert admits some quandary over the chancellor’s September 10, 1996 order which reflects a questionable amount of sale proceeds to be held for Robert and puzzling verbiage that his share shall be held “until further orders of the court.” Robert claims he never received notice of the entry of the September 10 order, nor does he believe Boatmen’s knew of its entry.

Our review of the record reflects confusion exists concerning Boatmen’s hen claim. Obviously, its Hen cannot be protected by any of the Kinkead parties, as has been suggested by Robert. Robert’s share of the sale proceeds, as now determined, is insufficient to satisfy Boatmen’s judgment, and Carol’s and Jeannine’s common interest is to take the property free and clear of Boatmen’s Hen. Boatmen’s claim is not merely coHateral to the Kinkeads’ claims and should be decided when disposing of the Kinkeads’ dispute.

We conclude that, based upon the confused state of the record before us, the only disposition that can be made is to dismiss this cause for failure to comply with the dictates of Rule 54(b). Because the record reflects the chanceHor has not, as yet, entered a final order in this matter, we agree with Robert’s alternative plea that his appeal should be dismissed without prejudice.

Corbin, J., dissents.

Donald L. Corbin, Justice,

dissenting. Although I do agree with the majority that neither the August 5, 1996 order nor the September 9 or 10, 1996 order actually states that Boatmen’s is entitled to the Appellants’ proceeds from the sale of the land, I believe the chancellor’s order of August 5 says everything except that and, thus, I dissent. I believe that between the written order of August 5 and the chancellor’s spoken rulings from the bench during the hearing on July 16, 1996, that it was understood that Boatmen’s had a valid judgment lien on Appellants’ portion of the real property and that it was entitled to the proceeds of the sale of Appellants’ share of the land.

Additionally, I believe, contrary to the majority opinion, that the issue surrounding Boatmen’s judgment lien was collateral to the action before the chancellor, which was an action in partition. An order may nonetheless be final for purposes of appeal provided that the only matters remaining in the trial court are collateral to or independent of the merits of the action or otherwise not an integral part of the action. This court has defined “collateral action” as “action that does not make any direct step toward final disposition of the merits of a case, will not be merged in the final judgment, is not an ingredient of the cause of action, and does not require consideration with the main cause of action.” Marsh & McLennan of Arkansas v. Herget, 321 Ark. 180, 184, 900 S.W.2d 195, 198 (1995) (quoting Pledger v. Bosnick, 306 Ark. 45, 50, 811 S.W.2d 286, 290 (1991), cert. denied, 113 S. Ct. 3034 (1993), reversed on other grounds, State v. Staton, 325 Ark. 341, 925 S.W.2d 804 (1996)). Such collateral and ministerial orders need not be final for purposes of Arkansas Rule of Civil Procedure 54 nor Arkansas Rule of Appellate Procedure 2. Pledger, 306 Ark. 45, 811 S.W.2d 286. Also to be considered when determining whether a judgment is final is whether the order appealed from otherwise terminates the action as it was requested by the moving parties in the complaint on the issue of the suit. Id.

Applying the definition of “collateral action” set out above, it would appear that Boatmen’s claim of a judgment Hen on the property owned by Appellants, which was sold pursuant to Appellees’ action in partition, would be collateral to the subject of the controversy, which was the partition of the land itself. Boatmen’s claim is independent to the merits of the action, as it concerned only the distribution of the proceeds of the partition sale. The claim certainly does not appear to be integral to the merits of the case, and this is evidenced by the chancellor’s ruling during the hearing in which Boatmen’s was allowed to intervene. The chancellor stated that Boatmen’s claim really did not have anything to do with the merits of the lawsuit. The chancellor noted further that she had already decided everything that needed to be decided in the action for partition before Boatmen’s intervened in the action.

The majority reasons that because the proceeds of Appellants’ share of the land would not satisfy Boatmen’s claim, Boatmen’s was thus a necessary party entitled to intervene in order to protect its right to enforce the remaining amount of the judgment against the purchasers of the land, Appellees. This is an interesting interpretation in light of the fact that the August 5 order entered by the chancellor reflects:

4. Intervenor by and through its attorney announced at the hearing that it would release any Hen it has on the subject property (so that the purchasers at the sale may take the property free and clear of any judgment hen) upon intervenor[’s] receipt of the proceeds to which [Appellants] would have been entitled had there been no hen.

Apparently, Boatmen’s had previously agreed that it would accept AppeHants’ proceeds from their portion of the property sold as satisfaction of its judgment against AppeHants, at least as far as the AppeHees-purchasers were concerned. Arguably, Boatmen’s would stfll retain its Hen against AppeHants on that portion of the judgment that remained unsatisfied, as the judgment Hen was against aH property owned by AppeHants within Pulaski County, Arkansas.

In sum, it appears to me, as it did initiaHy to the chanceUor, that Boatmen’s claim is coUateral to the subject matter of the suit, which was the partition sale of the land. This is especiaHy apparent since the bank did not intervene until after the property had been sold, and the action in partition had been completed. Moreover, it was not necessary for Boatmen’s to intervene in the partition action in order to protect its judgment against Appellants.

For the stated reasons, I respectfully dissent.

       For clarity and ease of writing, we hereafter refer sometimes to Robert only when Joyce also is included.


author: Tom Glaze, Justice. David Newbern, Justice,

text:
    Johnny WRIGHT v. STATE of Arkansas
    CR 96-1133
    940 S.W.2d 432
    Supreme Court of Arkansas
    Opinion delivered March 17, 1997
    [Petition for rehearing denied April 14, 1997.]

      Paul M. Herrod and Sandra Trawick Berry, for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant Johnny Wright was found guilty by a jury of possession with intent to deli ver methamphetamine, simultaneous possession of drugs and firearms, possession of drug paraphernalia, and possession with intent to deliver marijuana. For these convictions, Wright received two fife imprisonment terms, and ten and three-year prison terms, all to run consecutively. Wright appeals these convictions, raising three points for reversal. Two points go to the admissibility and sufficiency of the evidence, and so we first detail the relevant facts resulting in Wright’s arrest, charges, and convictions.

On December 30, 1995, at about 9:00 p.m., Wright was driving a new extended-cab pickup on Highway 270 outside Sheridan when State Police Officer Ronald Casey saw that Wright’s pickup had no registration plate. Casey stopped Wright, and immediately afterwards, Wright exited his pickup. Wright produced his driver’s license, but when asked for vehicle identification papers, Wright had no bill of sale, and could only produce a purchase order from Teeter’s Chevrolet of Malvern. Wright also could furnish no proof of liability insurance.

Being near Wright, Casey smelled a faint odor of alcohol, and when he asked if Wright had been drinking, Wright said that he had had one drink earlier. Officer Casey did not arrest Wright for drinking, but instead, he proceeded to Wright’s vehicle to compare the purchase order’s Vehicle Identification Number (VIN) to the VIN on the truck. That is when Officer Casey saw Bobby Dixon, who was a passenger in the truck. Casey knew Dixon and had arrested him on several prior occasions. At this point, Casey decided that he would obtain Dixon’s birth date and run a check for possible outstanding warrants. In doing so, Casey opened the passenger door, asked Dixon to exit and further asked Dixon if he had been drinking. Dixon said he had and picked up a beer can, stating, “I was drinking this.” Casey set the beer can back on the pickup’s floorboard, and as he did, noticed a glass of whiskey beside the beer can.

After seeing the whiskey, Casey further observed a chrome-plated pistol lying behind the whiskey glass. At this point, Casey suspected both Wright and Dixon had violated Arkansas’s intoxication laws. In further investigation, Casey found a .32 derringer under the passenger seat, a Lorsin .380, and then Wright subsequently told Casey that a Bursa .380 was in a shoulder holster in the driver’s side pocket of the truck.

After Casey found the three weapons, a deputy sheriff arrived as backup. Casey then gave the weapons to the deputy and the deputy stayed with Wright and Dixon while Casey checked the pickup for other alcohol or weapons. He located a 1.75 liter bottle of whiskey and a green canvas bag. Upon opening the bag, Casey smelled methamphetamine. The bag also contained computerized weighing scales and a plastic bag of marijuana. The officers then handcuffed Wright and Dixon, and took them to the sheriffs office where they were later charged. While Wright duly moved for a directed verdict at trial and continues his challenge of the sufficiency of the State’s evidence on appeal, his primary argument is that the trial court erred in failing to grant his motion to suppress. Obviously, if the officers’ testimonies and the evidence they found in the search of Wright’s pickup were properly admissible at trial, the State offered more than substantial evidence to support Wright’s convictions. Thus, we turn to Wright’s suppression issue.

When Wright failed to present Officer Casey with vehicle registration papers, it was permissible for the officer to check the pickup’s VIN which could be seen through the windshield on the driver’s side of the truck. See New York v. Class, 475 U.S. 106 (1986) (Court upheld search when officers made traffic stop and in checking VIN, opened the car door and saw a concealed weapon). It was in conducting his VIN investigation that Casey saw passenger Dixon, whom Casey had arrested on past occasions. As the officer’s attention was temporarily diverted towards Dixon, he went to Dixon’s passenger door, opened it, asked Dixon to step out, and requested identification.

Under Ark. R. Crim. P. 2.2(a), Officer Casey was permitted to request Dixon’s cooperation in the investigation or prevention of crime. However, Wright argues that, when Casey approached Dixon’s passenger door, he had no information that Dixon was involved in a felony or misdemeanor or that Dixon was doing anything wrong. Even so, when checking out whether Wright had proper ownership or registration documents, Casey’s concern heightened upon seeing Dixon — a person he had arrested on prior occasions — and sensed the need to obtain a background check on him. Nonetheless, Officer Casey had not, at this stage, completed his traffic stop investigation of Wright.

Recently, the Supreme Court held that an officer making a traffic stop may order passengers to get out of the car pending completion of the stop. Maryland v. Wilson,_U.S._, 117 S.Ct. 882 (Feb. 19, 1997). The Court duly noted that, in Pennsylvania v. Mimms, 434 U.S. 106 (1977), it had already ruled that a police officer may as a matter of course order the driver of a lawfully stopped car to exit his vehicle. The Wilson Court extended the Mimms rule to passengers, reasoning that, while there is not the same basis for ordering the passengers out of the car as there is for ordering the driver out, the additional intrusion on the passengers is minimal.

Here, when Dixon departed the vehicle, he admitted drinking beer and handed Casey the beer can. When Casey merely replaced the can on the floorboard of the truck, he inadvertently viewed the glass of whiskey and immediately behind it, he saw a chrome-plated pistol. At that point, Casey said he reasonably suspected Wright and Dixon had violated Arkansas’s public-intoxication misdemeanor laws.

In determining the admissibility of the alcohol and other items found inside the pickup, we find guidance from this court’s decision in Stout v. State, 320 Ark. 552, 898 S.W.2d 457 (1995), where the court set out the plain-view exception to the general requirement of a search warrant. The Stout court stated the search-warrant exception is established when it is shown: (1) the initial intrusion was lawful; (2) the discovery of the evidence was inadvertent; and (3) the incriminating nature of the evidence was immediately apparent. Those requirements were shown here.

We would also point out that Ark. R. Crim. P. 3.1 provides that a law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person whom he reasonably suspects is committing, has committed, or is about to commit a felony or misdemeanor involving danger of forcible injury to persons. While this court has not been called upon to decide if a possible DWI offense falls within the language of Rule 3.1, our Court of Appeals has held, and we believe correctly, that a DWI violation carries with it the danger of forcible injury to others. See Nottingham v. State, 29 Ark. App. 95, 778 S.W.2d 629 (1989).

Again, Wright suggests that, even if Casey had cause to detain Dixon, Wright should have been free to go after Wright produced his purchase order documents. Such a position is merit-less for two reasons. First, as mentioned earlier, Officer Casey’s investigation concerning Wright had not been completed before or at the time Casey encountered Dixon, who promptly caused the beer and whiskey to be revealed. Second, the glass of whiskey sighted by Casey had been within the reach and control of Wright when he occupied the driver’s seat of the pickup, and this evidence, along with the alcohol odor Casey smelled on Wright moments earlier, was sufficient to put Wright in constructive possession of the whiskey. See Cerda v. State, 303 Ark. 241, 795 S.W.2d 358 (1990). This evidence was sufficient to give Officer Casey reasonable cause to believe Wright may have violated Arkansas’s DWI laws. See Ark. Code Ann. § 5-65-103 (Repl. 1993).

Once Officer Casey was lawfully aware that the pickup driven by Wright contained things that were subject to seizure, he was permitted, without a search warrant, to search and seize those things discovered in the course of the vehicular search. See Ark. R. Cr. P. 14.1(a). While Casey’s backup officer lawfully detained both Wright and Dixon behind the truck, it was permissible for Casey to continue his search of the truck for more alcohol and weapons. Containers, such as the green canvas bag in this case, found within the passenger compartment of the car may be searched whether they are open or closed. See Stout v. State, 320 Ark. 552, 898 S.W.2d 457 (1995); see also New York v. Belton, 453 U.S. 454 (1981). For the reasons discussed, we hold the trial court was correct in denying Wright’s motion to suppress. We also con-elude that the evidence resulting from the vehicle’s search and testimony of the officers were more than sufficient to affirm Wright’s conviction. Before leaving this point, we note Wright’s argument that less than an ounce of marijuana was found in the canvas bag, and the evidence was insufficient to support the conviction for possession of marijuana with intent to deliver. We need only cite Hendrickson v. State, 316 Ark. 182, 871 S.W.2d 362 (1994), where this court held that, in cases where less than the presumptive amount was found in possession of the accused, but other proof of intent to deliver was present, the appellant’s conviction for possession with intent to deliver was proper. See also Conley v. State, 308 Ark. 70, 821 S.W.2d 783 (1992).

Wright’s final point is that the trial court erred in allowing State’s witness, Tommy Livingston, to testify on rebuttal. He argues Livingston’s name was not disclosed prior to trial and that some of Livingston’s testimony included matters prohibited by Rule 404(b) of the Arkansas Rules of Evidence.

In his defense, Wright planned to call witness Bill Welch who would testify that, unbeknownst to Wright, Welch had placed the canvas bag in Wright’s pickup prior to Officer Casey’s traffic stop. Welch’s explanation was that a friend had given him money to take the bag containing six or seven joints of marijuana to Hot Springs. Welch’s story was that he later examined the bag, smelled methamphetamine, and planned to return it to his friend. But in the meantime, Welch drove to Wright’s shop, and because people were inside, Welch placed the bag in Wright’s new pickup. He later discovered that Wright left in his truck. In sum, Welch’s story is that when Wright was stopped by Officer Casey, Wright was unaware of the bag and methamphetamine in it.

At trial, the State said it had learned the day before that Livingston would testify and contradict Welch’s story. The State said that Livingston would claim he had heard Welch say that Welch was offered $25,000 to take the “fall” for Wright. The State suggested that Livingston’s testimony may be more than rebuttal, and asked the trial judge if the State would be allowed to reopen its case-in-chief. Wright rejoined that Livingston’s name had not been disclosed and that the State’s request should be denied. He also complained that Livingston’s testimony bearing on other criminal acts or wrongs should be excluded as well.

The trial judge declined to make any rulings until he heard Welch’s actual testimony. However, neither the State nor Wright renewed their motions or objections after Welch testified, so the judge was never asked for a ruling. This court has previously held that there is no “plain error” rule, but instead has consistently held that the burden of obtaining a ruling is on the movant, and unresolved questions and objections are waived and may not be relied upon on appeal. Aaron v. State, 319 Ark. 320, 891 S.W.2d 364 (1995).

We do point out that, during Livingston’s testimony, Wright did make a relevancy objection to Livingston’s remark, “We had went and got some dope, me and Welch, in California, around Los Angeles. And we brought it back to Willow.” Livingston’s statement, however, clearly rebutted Welch’s direct testimony, denying that Welch had been “in any way connected with this drug running operation with Tommy Livingston.” The State’s evidence in this respect was responsive to that presented by the defense, and the trial court in no way abused its discretion in overruling Wright’s objection on this point.

In accordance with Ark. Sup. Ct. R. 4-3(h), the record has been examined and there are no other points that involve prejudicial error.

Newbern, J., concurs.

David Newbern, Justice,

concurring. The stop of Johnny Wright’s vehicle had solely to do with the failure to display a license plate. Officer Casey testified at the suppression hearing that he had observed no erratic operation of the vehicle, and even after he smelled alcohol on Mr. Wright’s breath, he did not believe “no way” that Mr. Wright was under the influence of alcohol.

Bobby Dixon had no standing to challenge the search of Mr. Wright’s truck, Dixon v. State, 327 Ark. 105 (1997), but Mr. Wright did. It should be pointed out that, while the Supreme Court in Maryland v. Wilson,_U.S._, 117 S.Ct. 882 (Feb. 19, 1997), approved ordering a passenger from a car, it did not go so far as to authorize a police officer to open a vehicle door in the circumstances presented there and here. Officer Casey testified he had no suspicion whatever that Mr. Dixon was committing a crime when he opened the door. It could thus be said that opening the door to the truck constituted a “search” without reasonable suspicion of criminal activity or probable cause to search.

In view of the apparent purpose of the officer to facilitate Mr. Dixon’s exit from the truck, after issuing a lawful order for him to do so, I am willing to apply the rule of Michigan v. Long, 463 U.S. 1032 (1983). The Supreme Court’s holding in that case, applied to the facts now before us, permitted Officer Casey, once he had a plain view of the pistol inside the truck, to conduct a “protective search” of the areas inside the vehicle. Fie was permitted to search the canvas bag, to which the occupants of the truck could have had immediate access upon re-entering the vehicle and which could have contained a weapon.

The search that followed cannot be justified on the basis of suspicion of driving while intoxicated, due to the lack of any such suspicion. Officer Casey, however, after opening the vehicle door and viewing the beer can and the glass of whiskey, could well have had probable cause to believe that Mr. Wright was guilty of drinking in public and that the vehicle contained evidence of that crime.

At a suppression hearing, Officer Casey testified (as abstracted) that, after opening the door to the truck and seeing the open beer can handed to him by Mr. Dixon and seeing the glass of whiskey, Mr. Dixon “was under suspicion for alcoholic beverage open container in a vehicle under State Statute 5-71-212.”

The offense is defined in Ark. Code Ann. § 5-71-212(c) (Repl. 1993) as consumption of “any alcoholic beverages in any public place, on any highway, or street, or . . . upon any vehicle commonly used for transportation of passengers . . . .” As the officer had probable cause to believe that Mr. Wright’s truck, as well as the canvas bag, contained evidence that Mr. Wright and Mr. Dixon had violated the public drinking law, it was appropriate for the officer to search the truck and the bag and seize the items he discovered.

Although my reasons for affirmance vary somewhat from those of the majority, I concur in the result.