author: ANDREE LAYTON Roaf, Justice. Robert L. Brown, Justice,

text:
    Stephanie M. BOREN and Kimberley J. Vanbibber v. WORTHEN NATIONAL BANK of Arkansas and Worthen Banking Corporation
    95-930
    921 S.W.2d 934
    Supreme Court of Arkansas
    Opinion delivered May 13, 1996

      The McMath Law Firm, P.A., by: Sandy S. McMath, for appellants.

      Anderson & Kilpatrick, by: Michael E. Aud, for appellees.
   ANDREE LAYTON Roaf, Justice.

This case presents the issue of a bank’s liability for a criminal attack at an automated teller machine (“ATM”). Appellants Stephanie M. Boren and Kimberly J. Vanbib-ber were shot by a robber while Boren, accompanied by Vanbibber, was transacting business at an ATM owned and operated by appel-lees Worthen National Bank of Arkansas and Worthen Banking Corporation (“Worthen”). Boren and Vanbibber sued Worthen for negligence. They appeal from the trial court’s award to the bank of summary judgment as a matter of law. We affirm.

On July 21, 1993, at approximately 9:00 p.m., Boren, a customer of Worthen, drove to an outdoor, drive-through type ATM at a Worthen branch on Baseline Road in Little Rock to make a cash withdrawal. Vanbibber was a passenger in her car. As they were leaving the bank’s premises, two young men who had been hiding behind shrubs and foliage across the street from the ATM approached. One of the men began firing a pistol into the car, wounding both Boren and Vanbibber. At the direction of the gunman, one woman dropped her wallet and the other her purse out the car window and drove away.

Boren sued Worthen for negligence in (1) failing to install the ATM in a secure manner with proper protective devices against robbers; (2) installing the ATM adjacent to a heavily shrubbed area and housing project; (3) failing to remove or to get permission to remove foliage from the danger of robbery at night and during non-business hours; (4) failing to warn banking customers of the danger of robbery at night and during non-business hours; (5) failing to install adequate cameras to monitor the area; (6) failing to illuminate the area with proper lighting; (7) failing to provide security guards; and (8) operating an ATM in an area where the Bank knew or should have known its ATM customers were vulnerable. Other defendants were named, but were dismissed from the action.

Apparently, Vanbibber filed a similar suit, but that complaint is not part of the record for this appeal. On Worthen’s motion, and by agreement of the parties, the Boren and Vanbibber lawsuits were consolidated by the trial court.

Worthen moved for summary judgment and contended that it owed no duty to protect its customers against criminal activity perpetrated by third parties. Worthen admitted during discovery that the Baseline ATM was the first such equipment purchased by the bank, and that it had experienced three incidents of theft, robbery, murder, or attempted murder involving its ATM units since January 1, 1986. One of the three incidents had occurred at the Baseline ATM on May 2, 1993 — less than three months before the occurrence at issue; another incident occurred on November 6, 1993, after the robbery involving Boren.

It appears from the briefs that the trial court first denied the motion; no order of denial is abstracted or in the record. Worthen then filed a motion to reconsider the denial. Boren responded and attached two affidavits in opposition to the motion to reconsider. In the first affidavit, James Baker, who was president of a security firm and a former Dallas, Texas, policeman, opined that the ATM unit in question was not properly installed or monitored to address danger to the bank’s customers and concluded that the bank was negligent. In the second affidavit, Michael Nyberg, State Crime Prevention Coordinator for the Arkansas Crime Information center and Executive Director of the Arkansas Crime Prevention Association, gave his opinion that Baseline Road in Little Rock is the highest violent-crime commercial area in the city. He averred that the danger posed to bank customers was clearly foreseeable.

On reconsideration of the motion, the trial court granted summary judgment. In its letter opinion to counsel, the trial court stated:

Primarily I am most persuaded by the rationale in the cases set forth in Worthen’s original brief and by the Bartley case set out in Worthen’s supplemental brief. It seems that jurisdictions across the country share the same reluctance to reassign the duty of protecting our citizens from violent, non-foreseeable, third-party, criminal acts, from the government to the private sector. While the Bartley case is a landlord-tenant case, the reasoning of Professor Schoskinski, adopted by the court, is equally applicable in the ATM cases.
The language cited by Worthen in its original brief in Page, Cornpropst, and Goldberg, is persuasive. While Mr. McMath has suggested that Worthen had reason to foresee that crime might take place, the language of the brief in that regard is sensible. Crime is everywhere! One is subject to be a victim of violence at virtually every locale, public or private. While some areas are hit more often, there is still no standard to set in place by which the merchant can abide with confidence that the measures taken will ensure the safety of patrons. Certainly, the most capable of police forces in America have not been able to stop crime, or even slow it down, in “high crime” areas.

On appeal, Boren and Vanbibber contend that the trial court erred in two respects. They first assert that the trial court erred in granting the summary judgment in reliance on a landlord-tenant case which is not applicable to a business-premises case where the business invitee, unlike a tenant, never assumes control of the premises. They further assert that the trial court erred in failing to hold Worthen subject to the standard rule of ordinary care, and that the bank failed to take reasonable steps to assure the safety of its patrons.

I. Record and Abstract

We first note certain deficiencies in the record and abstract. Because Vanbibber’s complaint is not included in either the record or the abstract, we are unable to determine whether she was a customer of Worthen, and thus an invitee, or the basis for her cause of action. When essential pleadings are not before us, we affirm the trial court pursuant to Supreme Court Rule 4-2(a)(6). See In Re Estate of Brumley, 323 Ark. 431, 914 S.W.2d 735 (1996). We thus will not consider her appeal.

Moreover, although we reach the merits of Boren’s appeal, the appellants’ failure to abstract any portion of some eleven depositions taken in this lawsuit and referenced only by captions in appellants’ abstract renders them unusable by this court in our analysis of her issues. Although the depositions are part of the record, we have said many times that there is only one record and seven justices. We will not require seven justices to scour one record for material that should have been abstracted. See, e.g., In Re Estate of Brumley, supra; Stroud Corp., Inc. v. Hagler, 317 Ark. 139, 875 S.W.2d 851 (1994).

II. Reliance on Landlord-Tenant Law

Boren first contends that the trial court erred by relying on a landlord-tenant case, Bartley v. Sweetser, 319 Ark. 117, 890 S.W.2d 250 (1994), which upheld the common-law principle that a landlord owes no duty of care to tenants for the criminal acts of other persons. While we agree with Boren that reliance solely on the Bartley v. Sweetser decision would be misplaced, the trial court stated further reasons for his decision to grant summary judgment, including the rationale employed in similar ATM cases from other jurisdictions cited by Worthen in its initial summary-judgment brief. Moreover, the trial court acknowledged that Bartley v. Sweetser was a landlord-tenant case, but stated that it found the following reasoning employed in this case to be equally applicable in an ATM case:

[T]he notion that the act of a third person in committing an intentional tort or crime is a superseding cause of harm to another . . the often times difficult problem of determining foreseeability of criminal acts; the vagueness of the standard which the landlord must meet; the economic consequences of the imposition of the duty; and the conflict with public policy allocating the duty of protecting citizens from criminal acts to the government rather than the private sector.

Although we cannot say that the trial court relied primarily on Bartley v. Sweetser in reconsidering its early denial of summary judgment, Worthen certainly urged that the trial court do so. And, while some of the policy considerations articulated in Bartley v. Sweetser may also be applicable in determining the liability of a business owner for criminal acts committed on its premises by a third party, the analysis will not be. In Bartley v. Sweetser, we in essence recognized and adhered to our long-standing general rule that a landlord is under no legal obligation to a tenant for injuries sustained in common areas, absent a statute or agreement. We held that a landlord likewise had no duty to protect a tenant from criminal acts. This underlying general rule does not apply to injuries sustained by business invitees on business premises, and we agree that the Bartley v. Sweetser decision does not serve as precedent for this case.

III. Duty of Care

Boren next argues that the trial court further erred in failing to hold Worthen subject to the standard negligence rule of ordinary care. She asserts that had the proper standard been applied, there was sufficient evidence that Worthen (1) knew or should have known that the Baseline ATM was extremely dangerous in that it was “conducive to robbery” and (2) refused to adopt accepted industry standards which would have corrected the danger.

She contends that the two criminal attacks at Worthen ATMs between January 1, 1986 and July 21, 1993, including one at the same Baseline ATM three months prior to the attack on her, are evidence of extreme danger, along with the evidence that the Baseline ATM was in a high crime area. The affidavit of Nyberg opined that the Baseline Road commercial strip is the “highest violent crime commercial area in the city of Little Rock,” and that the hazard of an attack by robbers at the Baseline ATM was clearly foreseeable.

As to the failure to take corrective measures, the affidavit of Baker, Boren’s security expert, stated that the Baseline ATM “was not properly installed, monitored, or protected according to accepted safety standards in the banking industry so as to address the foreseeable danger of customers being attacked by robbers.” He further specified that the ATM was in a violent area of the city, virtually isolated on a dark side street, beyond the visibility of motorists, that the lighting was inadequate, and that Worthen had declined to use an instructional video made available to it on ATM safety measures.

For the appropriate standard of care, Boren relies on the Restatement (Second) of Torts concerning premises liability and acts of third persons committed against invitees:

A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to
(a) discover that such acts are being done or are likely to be done, or
(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.

Restatement (Second) of Torts, § 344, pp. 223-224 (1965) (emphasis added). Under comment f to this section, the following commentary is given:

f. Duty to police premises. Since the possessor is not an insurer of the visitor’s safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.

Section 344 and comment f base liability of a business for the intentional acts of third persons on whether that business had reason to know, from past experience or from the character of the business, that there was a likelihood of danger to the safety of any visitor. Criminal acts by third persons against invitees would appear to be included within this standard.

Boren also submits, as precedent, this court’s holding in Keck v. American Employment Agency, Inc., 279 Ark. 294, 652 S.W.2d 2 (1983). She asserts that Keck is authority for the proposition that where a crime victim can show that a defendant breached a duty of care and could reasonably have foreseen that a crime might result from the breach, a jury question of negligence is created. However, Keck is as readily distinguishable from the present case as is Bartley v. Sweetser. Keck was abducted and raped by a person pretending to be a prospective employer. She sued the defendant employment agency which had referred her to the attacker for employment. Keck had been placed with him on the same day he had come to the agency’s office appearing unkempt, and claiming to be an employer. No background check was done even though the agency’s counselors stated that his appearance was bad and that they were shocked by his attire. This court recognized that one is ordinarily not liable for the acts of another unless a special relationship exists between the two, such as master and servant, and that a cause of action for negligence against the employment agency was properly stated because here, such a special relationship was present. We held that the agency had a duty of care arising from its contractual relationship with the prospective employer, its ability to foresee some danger to Keck, and because it had some degree of control over the employers it made available. Clearly, no such special relationship can be shown to exist between a business owner, such as Worthen, and the criminal element at large in any community.

Although the issue before us is one of first impression in Arkansas, we have previously considered the question of liability of business owners for criminal acts committed against their patrons by third parties. Also, other jurisdictions have decided the precise issue presented by Boren — the liability of a bank for an attack on its ATM customer — and this issue has in recent years been the subject of numerous law review articles and other writings.

As a starting point in determining if Worthen has a duty of care in this instance, we first consider whether our earlier holdings dealing with business-premises liability for criminal acts have any application to the instant case. We have previously considered the duty of care owed in this context to patrons of saloons, hotels, places of amusement, and common carriers. In Ind. Park Bus. Club v. Buck, 252 Ark. 513, 479 S.W.2d 842 (1972), a damage award was upheld for a patron shot in an altercation on the premises of a saloon. This court stated that “the weight of authority supports the view that while a tavern keeper is not an insurer of the safety of its patrons, he is under the duty to use reasonable care and vigilance to protect guests or patrons from reasonably foreseeable injury, mistreatment or annoyance at the hands of others.”

In Catlett v. Stewart, 304 Ark. 637, 804 S.W.2d 699 (1991), a damage award was upheld for a guest shot by a hotel employee’s husband. The employee failed to call the police during a dispute on the premises with her husband, whom she knew to be violent. This court recognized that while a hotel is not an insurer of the safety of its guests, it is charged with the duty to take all precautions for their protection that reasonable prudence and ordinary care would suggest, and found that there was evidence to support a finding of negligence. In Twin City Amusement Co. Inc. v. Salater, 237 Ark. 206, 372 S.W.2d 224 (1963), an award of damages was reversed where a patron was struck by a rock thrown at him as he was leaving the grounds of Barton Coliseum after a rock-and-roll concert. The opinion stated that while a proprietor of a theater or other place of amusement has a duty to police the premises and employ enough servants to afford reasonable protection, he is not an insurer of the safety of its patrons. The court characterized the rock-throwing incident as a “sudden, unexpected and unforeseeable affray.”

Finally, we have twice considered the duty of care owed to passengers of common carriers. In Black and White Cab Co. v. Doville, 221 Ark. 66, 251 S.W.2d 1005 (1952), an award of damages to a taxicab passenger was upheld when he was assaulted and beaten by another passenger. The driver of the cab continued on to several destinations during the assault and did not protest, call the police, or do anything to stop the attack. However, in Arkansas Power and Light Co. v. Steinheil, 190 Ark. 470, 80 S.W.2d 921 (1935), this court reversed an award of damages for injuries suffered by a passenger assaulted on a crowded streetcar where the motorman was not informed of the assault until after it took place and the evidence failed to show the motorman could have prevented the assault even if he had observed it. In Doville, supra, the following duty of care was articulated:

[A] carrier owes to its passengers the duty of protection from violence and assaults of other passengers or strangers, so far as this can be done by the exercise of a high degree of care, and will be held responsible for its own or its servant’s negligence when, by the exercise of proper care, the act of violence might have been foreseen and prevented.

(Emphasis added.)

Although we do not consider these cases precedent in the instant case, it is clear that while this court has on several occasions recognized the duty of a business owner to protect its patrons from criminal attacks, we have done so only where the owner or its agent was aware of the danger presented by a particular individual or failed to exercise proper care after an assault had commenced. We must therefore look further for guidance in determining whether Worthen had a duty to protect Boren from criminal attack under the particular circumstances involved in the operation of an unattended ATM facility.

We thus turn to consideration of the cases in which other jurisdictions have decided the issue presented by the attack on Boren. Both Boren and Worthen have cited foreign case law in support of their respective arguments. It is generally recognized that from these and other cases involving criminal attacks on business invitees in general, three tests have evolved for determining whether a duty of care is owed by financial institutions to protect ATM users against the criminal acts of third parties. See generally 3 Premises Liability, Second Edition, § 49:3 et seq. (1995); Gregory W Hoskins, Violent Crimes at ATMs: Analysis of the Liability of Banks and the regulation of Protective Measures, 14 N. Ill. U.L.Rev. 829 (1994). In all three tests, the foreseeability of the criminal act is a crucial element in determining whether a duty is owed.

The first and most basic approach is referred to as the Specific Harm Test. In this approach, foreseeability, and thus liability, is limited to situations where the business owner is aware of the imminent probability of specific harm to its customer. See e.g. Cornpropst v. Sloan, 528 S.W.2d 188 (Tenn. 1975); Page v. American Nat’l Bank & Trust Co., 850 S.W.2d 133 (Tenn. App. 1991); Fuga v. Comerica Bank-Detroit, 509 N.W.2d 778 (Mich. App. 1993). Worthen relies on these cases to support its argument that no duty is owed to a business invitee in the circumstances presented by the attack on Boren. This rule as articulated in Page, supra, provides that there will be no duty upon business owners to guard against criminal acts of a third party unless they “know or have reason to know that acts are occurring or about to occur on the premises that pose imminent probability of harm to an invitee.” Using this approach, it would be virtually impossible to ever hold a financial institution liable for a criminal act occurring at an ATM. Since ATMs are almost always unmanned, the owner would consequendy never be aware of a specific “imminent probability of harm” to an invitee.

The second test is the Prior Similar Incidents Test. Courts that have employed this approach have focused on the existence of prior similar incidents to determine whether a particular crime was foreseeable. The duty to police premises found in the Restatement (Second) of Torts is the underpinning of this approach, See § 344, cmt. f, supra; See also Williams v. First Alabama Bank, 545 So.2d 26 (Ala. 1989); Dyer v. Norstar Bank, N.A., 588 N.Y.S.2d 499 (1992). In this analysis, the similarity, frequency, location, and proximity in time of the prior incidents are the key elements to be considered. Here, Boren has shown that there was an attack at the same ATM three months before she was attacked. However, courts that have employed this approach have required that the prior similar incidents be more numerous. See Golombek v. Marine Midland Bank, N.A., 598 N.Y.2d 891 (1993) (two prior incidents not sufficient to render robbery at night deposit box reasonably foreseeable); Williams, supra, (knowledge of two prior robberies at same bank insufficient to determine that robbery of ATM customer was foreseeable); Nallan v. Helmsley-Spear, Inc., 407 N.E.2d 451 (N.Y. 1980) (notice of 107 reported crimes on the premises in 21 months preceding assault sufficient to establish breach of duty); Taco Bell v. Lannon, 744 P.2d 43 (Colo. 1987) (10 armed robberies in three years preceding incident established that harm to customers was reasonably foreseeable). The rationale of this test is perhaps best expressed in Dyer, supra:

The fact that a person using an ATM might be subject to robbery is conceivable, but conceivability is not the equivalent of foreseeability. To hold defendant liable for plaintiff’s injury [would be] to stretch the concept of foreseeability beyond acceptable limits. (Citations omitted.)

Thus, even if the prior-similar-incidents test is employed, we are not persuaded that one prior incident at the Baseline ATM is sufficient to establish foreseeability. The requirement of numerosity is discussed in Premises Liability, § 49, supra:

For a duty to protect invitees from criminal acts by third persons to arise from prior criminal conduct, the prior crimes must be violent and sufficiently numerous and recent to put the landowner on notice that there is a likelihood of danger. . . .

This treatise further provides: “The foreseeability of criminal liability on premises cannot be predicated on a single previous act of violence.” Id. at § 49.10.

The third and final test is the Totality of the Circumstances Test. This approach to foreseeability is also based on the Restatement (Second) of Torts, however it expands the determination of foreseeability beyond the prior-similar-incidents standard to a consideration of all circumstances surrounding the event. This standard emphasizes the “places or character of the business” language found in the Restatement. See § 344, cmt. f, supra. The analysis thus includes the nature, condition, and location of the premises, in addition to any prior similar incidents, and a duty can be found where no prior criminal attacks have occurred. See Torres v. United States National Bank, 670 P.2d 230 (Or. App. 1983); Isaacs v. Huntington Memorial Hospital, 695 P.2d 653 (Cal. 1985). Courts that employ this standard have found an inherent risk involved in transacting after-hours banking and have painted foreseeability with especially broad strokes, in one instance holding that the robbery of a person using the services of a bank, including an automatic money machine, is clearly foreseeable even where no prior robberies have occurred at that branch. Richard E. Vogel, Institutional Liability For Attacks On ATM Patrons, 4 U. Ill. L. Rev. 1009, 1023 n.141 (1994).

This, in our view, is the only test that would allow Boren to establish that Worthen owed her a duty of care. However, we decline to adopt this approach, as have the majority of jurisdictions that have considered this issue. To do so would result in the imposition of a duty to guard against random criminal acts by third parties, a duty we have heretofore not imposed on any other businesses. We are further persuaded that the policy considerations articulated by the trial court, especially the reluctance to shift responsibility for violent, nonforeseeable, third-party criminal conduct from the government to the private sector, militate against the imposition of this standard. We also cannot say that it would be appropriate as a matter of policy to impose a higher duty on business owners who are willing to provide their services in “high-crime areas” or “near a housing project” — most commonly the areas in which low- and moderate-income residents are to be found.

We hold that two incidents of robbery at Worthen ATMs in the nearly eight years prior to the attack on Boren are not sufficient to impose a duty on Worthen to guard against the criminal acts of a third party.

Affirmed.

Glaze, J., concurs, Corbin and Brown, JJ., dissent, Jesson, C.J., not participating.

Robert L. Brown, Justice,

dissenting. The majority holds as a matter of law that a bank owes no duty to protect its Automated Teller Machine customers against criminal activity, even when it is the bank that has invited those customers onto the premises to do business at those machines. The majority, furthermore, makes its decision without adopting or using any standard for assessing under what circumstances a duty of care might be owed, either for this case or for any case in the future. The upshot of this decision is that a bank need do nothing to protect its customers at ATM’s where crime has already occurred. It need not provide better illumination, more sophisticated cameras, proximity to well-traveled thoroughfares, or elimination of hiding places. It owes no duty of care. Because I believe that under certain circumstances a duty of care does attach in this unique context where money is dispensed out in the open at all hours of the day or night, the issue of whether the bank was negligent should have been submitted to the jury for resolution.

To be sure, a bank’s customer — Boren, in this case — bears a substantial responsibility for her own safety in using an ATM during off-hours. And a jury might well find that a bank is not predomi-nandy liable for injury caused by a criminal at an ATM because the danger was known or obvious. But that is not the point. The point is whether the bank owed any duty to its patrons to act reasonably to minimize criminal activity at the Baseline ATM. I believe that it did and that it cannot completely wash its hands of that duty merely because the danger was criminal in nature.

The facts of this case more than suggest that a climate for crime existed at the Baseline ATM. We have the unique situation of money dispensed outdoors at night without bank employees around for protection. That in itself is a special temptation to the criminal element. We have a previous crime committed at the ATM within three months of the Boren robbery. We have criminal statistics illustrating that this ATM was located in one of the highest violent crime areas of the city. We know that the Baseline ATM was Worthen National Bank’s oldest “drive-through” ATM in Little Rock. A security expert raised questions by affidavit about safety factors at this site such as its location away from well-traveled public roads and the insufficiency of the lighting. Surrounding foliage that provided cover for criminals and the inadequacy of the surveillance cameras were other security lapses raised by Boren. Considering these factors, another robbery like Boren experienced was not merely conceivable, it was likely to occur.

Moreover, the aggregate of all of these circumstances leads to the unavoidable conclusion that the bank was aware that a risk to its patrons existed. A duty of care should follow that knowledge. Other jurisdictions have looked to the totality of the circumstances in deciding whether a duty exists. See Isaacs v. Huntington Memorial Hospital, 695 P.2d 653 (Cal. 1985); Torres v. United States Bank, 670 P.2d 230 (Or. App. 1983); see also Sun Trust Banks, Inc. v. Killebrew, 266 Ga. 109, 464 S.E.2d 207 (1995) (Justice Sears concurring). Justice Sears in her concurring opinion in Killebrew makes the point precisely:

Many of the methods for protecting ATM customers are simple and already in place. They include increased lighting and surveillance, placing ATMs in the front of banks, informing customers regarding self-protection, and providing secured enclosures. In fact, in Georgia, increased lighting and customer education are now mandated by law. Finally, a holding that an operator of an ATM has a duty to provide reasonable protection to its customers is not a holding that a bank is an insurer of its customers. After establishing a duty, an injured customer must still prove that the bank breached that duty and that that breach was the proximate cause of the customer’s injuries.

266 Ga. at 112, 464 S.E.2d at 210.

What apparendy drives the majority to its conclusion is the worry that assessing some duty of care against the bank in this case will open the floodgates to a torrent of litigation against all businesses. That fear is unfounded. This case involves only Automated Teller Machines and the bank’s responsibility to take some action to safeguard its business customers and to minimize criminal activity at that location. The ATM method of doing business cannot equate to that of a convenience store or to other merchandizing establishments. None of those businesses dispenses money out in the open at all hours of the night without people being present. ATM’s, in short, are a unique experiment.

Nor am I persuaded that requiring some protective action by the bank (lighting, cameras, elimination of hiding places) shifts the responsibility to protect against crime from the public to the private sector. It merely requires the bank to be sensitive and sensible with respect to the people with whom it does business. Such protective action falls into the category of pure common sense. And it is essential in this day and age. I have no doubt that customers of the Baseline Road ATM who live in the area would welcome better lighting and cameras and a more secure setting so that they can do business during off-hours with an enhanced sense of safety.

The majority’s argument is that the bank should not be saddled with the burden of protecting against unexpected criminal activity. But criminal activity is a “dangerous instrumentality” that was reasonably anticipated in this context and should have been minimized by some protective action. The Restatement (Second) of Torts clearly supports a duty of care under these circumstances. Restatement (Second) of Torts, § 344, Comment f, pp. 225-226 (1965). Moreover, this court has placed a duty on businesses in other situations where the peril was known to exist, albeit hidden, even when the visitor was on the premises as a mere licensee as opposed to a business invitee. See, e.g., Lively v. Libbey Memorial Physical Medicine Ctr., Inc., 311 Ark. 41, 841 S.W.2d 609 (1992). Perhaps protective action was taken by the bank. But we do not know one way or the other. Thus, it is an issue that should be litigated.

In granting Worthen National Bank’s motion for summary judgment, the trial court invoked Page v. American Nat. Bank & Trust Co., 850 S.W.2d 133 (Tenn. Ct. App. 1991); Cornpropst v. Sloan, 528 S.W.2d 188 (Tenn. 1975); and Goldberg v. Housing Auth. of Newark, 38 N.J. 578, 186 A.2d 291 (1962), in its letter opinion as well as Bartley v. Sweetser, 319 Ark. 117, 890 S.W.2d 250 (1994). That authority is not controlling. The majority opinion appropriately discounts the landlord-tenant case of Bartley v. Sweetser, supra, and further correctly declines to accept or adopt the specific harm test used by the Tennessee Court of Appeals in Page v. American Nat. Bank & Trust Co., supra, and by the Tennessee Supreme Court in Cornpropst v. Sloan, supra. In addition, the 1962 case of Goldberg v. Housing Auth. of Newark, supra, dealt with the duty to provide police protection in a housing project. Not only is that case categorically different from an ATM case, but the precise issue of providing police protection is not before us. The issue in the instant case is whether any duty of care was owed to minimize the potential for a criminal incident.

I believe that a duty was owed, and for that reason I respectfully dissent. Whether the bank satisfied its duty in this case and whether Boren placed herself in a precarious situation that was known and obvious were issues for the jury to resolve.

Corbin, J., joins.


source: Caselaw Access Project

author: Per CURIAM.

license: Public Domain

text:
    Rammie Earl HALL v. STATE of Arkansas
    CR 95-166
    921 S.W.2d 929
    Supreme Court of Arkansas
    Opinion delivered May 13, 1996

      Appellant, Pro Se.

      Winston Bryant, Att’y Gen., by: Clint Miller, Deputy Att’y Gen., Sr. Appellate Advocate for appellee.
   Per CURIAM.

On October 11, 1995, appellant Rammie Earl Hall filed his brief pro se in his appeal from a denial of Rule 37 relief. On January 3, 1996, the State filed its brief and pointed out that Hall had failed to comply with Supreme Court Rule 4-2 (a) (6) in preparing its abstract. Hall then sought permission from this court to substitute a brief for the purpose of correcting the abstract in his brief, and permission was granted by per curiam order on January 16, 1996. On February 26, 1996, Hall filed his new brief.

The State now contends that Hall not only corrected his abstract but rewrote the argument portion in his substituted brief as well and that it has no opportunity to respond to the rewrite. The State asks for permission to strike the rewritten brief completely or, alternatively, that this court only consider the original brief filed by Hall.

We agree with the State that in his substituted brief Hall corrected his abstract and rewrote his argument. Accordingly, we grant the State’s motion as it relates to the argument in the substituted brief.

With respect to the corrected abstract, we direct the Clerk of this court to replace the abstract in Hall’s original brief with the substituted abstract so that the appellant’s brief submitted to this court will contain the substituted abstract and the original argument.

DUDLEY, J., not participating.

Glaze, J., dissents.


author: BRADLEY D. JESSON, Chief Justice.

text:
    Jim SANDERS v. COUNTY of SEBASTIAN, Arkansas, and Bud Harper, in His Official Capacity as Sebastian County Judge
    95-1014
    922 S.W.2d 334
    Supreme Court of Arkansas
    Opinion delivered May 20, 1996

      Oscar Stilley, for appellant.

      Daniel Shue, for appellees.

      Friday, Eldredge & Clark, by: J. Shepherd Russell III, and R. Christopher Lawson, for Association of Arkansas Counties, amicus curiae.
   BRADLEY D. JESSON, Chief Justice.

This appeal concerns a one-cent sales-and-use tax adopted by the majority of Sebastian County voters in a June 21, 1994, special election. Over one year after the election, on June 28, 1995, appellant Jim Sanders filed this illegal-exaction suit against appellees Sebastian County and Sebastian County Judge Bud Harper, claiming that the one-cent tax was in excess of the one-half of one percent permitted by Article 16, § 9, of the Arkansas Constitution. Citing our decision in Foster v. Jefferson County Quorum Court, 321 Ark. 105, 901 S.W.2d 809, supp. op. granting reh’g, 321 Ark. 116-A, 901 S.W.2d 809 (1995), in which we held that Article 16, § 9, applies to ad valorem property taxes, the appellees moved to dismiss appellant’s complaint. Thereafter, appellant amended his complaint to include allegations that the emergency clause in the ordinance calling the election was invalid and that county officials had failed to properly publish the ordinance and had engaged in various acts of election misconduct. The appel-lees moved for summary judgment, and appellant filed a cross-motion for summary judgment. The chancery court granted summary judgment in favor of the appellees. We affirm.

Article 16, § 9

For his first allegation of error, appellant asserts that the chancery court erred in finding that Article 16, § 9, of the Arkansas Constitution has no application to Sebastian County’s one-percent sales-and-use tax. Article 16, § 9, of the Arkansas Constitution reads as follows:

No county shall levy a tax to exceed one-half of one percent for all purposes, but may levy an additional one-half of one percent to pay indebtedness existing at the time of the ratification of this Constitution.

Appellant asks us to overrule Foster v. Jefferson County Quorum Court, supra, in which we were faced with essentially the same questions presented here. In Foster, we explained at length why Article 16, § 9, limits county tax levies to the ad valorem property tax, and does not fix a limit on sales-and-use taxes.

There is a strong presumption of the validity of prior decisions. Thompson v. Sanford, 281 Ark. 365, 663 S.W.2d 932 (1984). While we do have the power to overrule a previous decision, it is necessary, as a matter of public policy, to uphold prior decisions unless a great injury or injustice would result. Independence Fed. Bank v. Payne Webber, 302 Ark. 324, 789 S.W.2d 725 (1990); Thompson v. Sanford, supra. The United States Supreme Court has recognized that adherence to precedent promotes stability, predictability, and respect for judicial authority. Hilton v. S. C. Pub. Rys. Comm’n, 502 U.S. 197 (1991), citing Vasquez v. Hillery, 474 U.S. 254, 265-266 (1986). In this case, the appellant has not given us any convincing authority or reasons why Foster should not be followed. As we decline to overrule Foster, it is unnecessary to reach appellant’s alternative arguments that the chancery court erred in ruling that the tax was levied by the State and not the county, and that the tax was not enacted for all purposes.

Emergency clause

Appellant next claims that the emergency clause of the ordinance calling the special election failed to adequately define an emergency in accordance with Ark. Code Ann. § 14-14-908(c) (1987). In enacting Ordinance No. 94-10, the Sebastian County Quorum Court determined that “there is a great need for immediate improvement of general municipal and county services and for. a source of revenue to finance improvement in such services.” The chancery court ruled that this declaration expressed an emergency, and, alternatively, even if it had not adequately stated an emergency, the invalidity of the emergency clause would have no legal effect upon the vote of the people in the special election. While we affirm the chancery court’s ruling, we do so for a reason somewhat different than the one expressed. Patterson v. Odell, 322 Ark. 394, 909 S.W.2d 648 (1995). In this case, we need not decide whether the emergency clause states a fact that constitutes an emergency because we conclude that no emergency clause was necessary.

The significance of an emergency clause is its effect on the people’s reserved right of referendum. Priest v. Polk, 322 Ark. 673, 912 S.W.2d 902 (1995); Burroughs v. Ingram, 319 Ark. 530, 893 S.W.2d 319 (1995). As a result, the subject of emergency clauses is expressly controlled by Amendment 7 to the Arkansas Constitution. Id. Here, the Sebastian County Quorum Court called a special election to submit the one-cent sales-and-use-tax issue to its voters. It was not enacting law; thus, no emergency clause was required. We explained this point in Chastain v. City of Little Rock, 208 Ark. 142, 185 S.W.2d 95 (1945), where we held that an ordinance passed by the Little Rock City Council ordering the annexation of certain territory to be submitted to the voters was not a measure subject to the referendum provisions of Amendment 7. A referendum would have involved holding an election to determine whether an election should be held, and we said that one election on the principal issue presented by the ordinance was enough. See also Scroggins v. Kerr, 217 Ark. 137, 228 S.W.2d 995 (1950). To hold otherwise

would be to the effect that the electors of the city would have the right to vote at an election upon the question as to whether an election should be held, to which they would vote upon another question, or the same question, at a succeeding election . . . The law does not require a vain thing to be done.

Chastain at 147, quoting Campbell v. City of Eugene, 240 P. 418 (Ore. 1925). See also Swanberg v. Tart, 300 Ark. 304, 778 S.W.2d 931 (1989). In short, because the Sebastian County Quorum Court’s action in calling the special election was not a legislative enactment, an emergency clause was not required.

Appellant also asserts that Ordinance No. 94-10 violated § 14-14-908(b), which states that “[a]n emergency ordinance or amendment shall not levy taxes. . .” We disagree that the ordinance itself levied the tax within the meaning of this statute. Rather, the ordinance was merely the first step in a process authorized by Act 26 of 1981, codified at Ark. Code Ann. § 26-74-201 et seq. (1987 & Supp. 1995), for the collection of the tax. In this case, Ordinance No. 94-10 merely called for an election on the issue. See § 26-74-207. In sum, appellant’s argument is without merit.

Election misconduct

Finally, appellant argues that the chancery court erred in finding that the numerous claims of alleged misconduct by appellees were barred by the statute of limitations. In his complaint, appellant alleged that (1) county officials failed to comply with statutory requirements in publishing notice of the special election; (2) they falsely claimed prior to the election that the tax would last for only ten years, when a “sunset clause” was omitted from the ordinance; and (3) they intentionally delayed mailing 6,000 tax statements until after the election.

We agree that appellant’s claims are barred by the statute of limitations. Arkansas Code Annotated § 26-74-209(c) requires that any person desiring to challenge election results file such a challenge within 30 days after the date of publication of the proclamation. The proclamation of the results of the June 21, 1994, special election was published on June 28, 1994. As appellant did not assert these election-based claims until he filed his amended complaint on July 31, 1995, they are barred.

In his reply brief, appellant complains that the additional record designated by appellees, consisting of appellant’s original complaint and the appellees’s motion to dismiss, was unnecessary. He asks that, regardless of the disposition of this case, the appellees be required to pay the costs of the supplemental transcript. As we are affirming this appeal, we deny appellant’s request in accordance with Ark. Sup. Ct. R. 6-7(a).

Affirmed.

Dudley, J., not participating.


author: DAVID Newbern, Justice.

text:
    Odis Alfred CUPIT v. STATE of Arkansas
    CR 95-455
    920 S.W.2d 852
    Supreme Court of Arkansas
    Opinion delivered May 20, 1996

      Charlie L. Rudd, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   DAVID Newbern, Justice.

Odis Alfred Cupit engaged in sexual misconduct with his two very young granddaughters in 1993. In 1994 he pleaded guilty to and was convicted of five counts of sexual abuse in the first degree. After finding Mr. Cupit guilty, the Trial Court received a pre-sentence report and held a hearing with respect to the sentence. Mr. Cupit asked to be sentenced in accordance with Ark. Code Ann. § 16-90-803 (Supp. 1995), which provides presumptive sentences for felonies committed on or after January 1, 1994. Despite their inapplicability, the Trial Court considered the statutory guidelines. He then departed from them, following the procedure prescribed in Ark. Code Ann. § 16-90-804 (Supp. 1995). Mr. Cupit was sentenced to five years imprisonment for each offense with the sentences to run consecutively. He contends there should have been no departure from the guidelines and the sentences should have been ordered served concurrently. The judgment is affirmed.

Since the enactment requiring bifurcated felony trials, Ark. Code Ann. § 16-97-101 (Repl. 1995), we have clung to our rule generally disallowing appeals in guilty plea cases. See Ark. R. App. P. Crim. 1(a). That rule was restated in Hill v. State, 318 Ark. 408, 887 S.W.2d 275 (1994), but the Court also said it would “review ... nonjurisdictional issues such as the admission of testimony and evidence authorized by this new statute, which arose during the penalty phase of the trial....” (Presumably issues concerning jurisdiction would have been handled in connection with the guilt-innocence phase of the trial.) The following statement appears later in the Hill case opinion: “This position by no means indicates a willingness on our part to review the imposition of sentence simply where the defendant maintains his sentence is excessive, when in fact his sentence is within the range prescribed by statute for the offense in question.”

Sexual abuse in the first degree is a Class C felony, Ark. Code Ann. § 5-14-108 (Repl. 1993), which calls for a sentence range of not less than three years nor more than ten years imprisonment. Ark. Code Ann. § 5-4-401 (Repl. 1993). Mr. Cupit was sentenced to five years’ imprisonment on each count. That is within the statutory range. In view of Mr. Cupit’s plea of guilty, we decline to review his contention that the sentences given for the separate counts are excessive. We decline to review the decision to run the sentences consecutively because no objection was made to the Trial Court in that respect, Halbrook v. State, 319 Ark. 350, 891 S.W.2d 379 (1995); Walker v. State, 303 Ark. 401, 797 S.W.2d 447 (1990), and because the argument amounts to no more than an additional contention that the sentence was excessive.

Affirmed.

Dudley, J., not participating.


author: Tom Glaze, Justice.

text:
    Larry Dale BAXTER v. STATE of Arkansas
    CR 93-1098
    922 S.W.2d 682
    Supreme Court of Arkansas
    Opinion delivered May 20, 1996
    [Petition for rehearing denied June 24, 1996.]

      A. Wayne Davis, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.

      Dudley, J., not participating.

   Tom Glaze, Justice.

Appellant Larry Baxter was charged with possession of a controlled substance with intent to deliver, criminal conspiracy to deliver a controlled substance, and with being a habitual offender. A jury found Baxter guilty of the criminal conspiracy charge, and he was sentenced as a habitual offender to fifty years’ imprisonment.

Baxter first argues his conviction should be overturned because his arrest was illegal and his statements given law enforcement officers were poisonous fruits of the unlawful arrest and should have been suppressed by the trial court. See Wong Sun v. United States, 371 U.S. 471 (1963).

In reviewing the trial court’s denial of a suppression motion, this court makes an independent examination based on the totality of the circumstances, and reverses only if the trial court’s ruling was clearly against the preponderance of the evidence. Hudson v. State, 316 Ark. 360, 872 S.W.2d 68 (1994). All presumptions are favorable to the trial court’s ruling on the legality of the arrest, and the burden is on the appellant to demonstrate error. Id. In assessing the existence of probable cause, our review is liberal rather than strict, and is guided by the rule that probable cause to arrest without a warrant does not require the degree of proof sufficient to sustain a conviction. Id. And finally, we must look to the officers’ knowledge at the moment of arrest to determine whether probable cause exists. Friend v. State, 315 Ark. 143, 865 S.W.2d 275 (1993).

Under Ark. R. Crim. P. 4.1, a law enforcement officer may arrest a person without a warrant if the officer has reasonable cause to believe that person has committed a felony. In the present case, an informant told Officer Mike Davis that William Mumford would be returning to Little Rock from Texas on the evening of January 29, 1992, with a quantity of cocaine in his vehicle. Davis and other officers set up surveillance at Mumford’s residence, and when Mumford arrived, the officers confronted him with the information they had received. After advising Mumford of his rights, Mumford admitted he was carrying cocaine, and the officers found three ounces in his car.

The same informant who had told the officers about Mumford also related that Mumford and Baxter had sold cocaine at a nightclub located in a certain Little Rock shopping center. Upon the officers’ relating that information to Mumford, Mumford admitted he and Baxter had been involved in the purchasing of cocaine from a Texas man named Chip Diffenbacher. Mumford said that he had purchased the cocaine for Baxter, and had paid $800.00 an ounce.

On the same evening of his arrest, Mumford agreed to call Baxter, and in doing so, Mumford arranged to meet Baxter at the Little Rock shopping center where the two had allegedly sold cocaine. Prior to meeting Baxter, Mumford was wired with a microphone, but the microphone only conveyed static during Mumford’s meeting and conversation with Baxter. The officers arrested Baxter after Baxter acquired some plastic sandwich bags at a K-Mart store, and, with Mumford, had entered a video store in the center. Although later denied by Baxter, the officers testified that, both before and after his arrest, Baxter expressed he wanted to turn state’s evidence and provide information on cocaine trafficking between Texas and Little Rock. Baxter stated that, while he knew why he was being arrested, he could not be charged because he had not picked up any cocaine. Baxter later provided names of persons who were selling cocaine in the Litde Rock area, and admitted that he and Mumford had worked together since 1990. He said that he and Mumford would pick up cocaine in Texas from Chip Dif-fenbacher, but Mumford had picked up most of the cocaine. These were the statements Baxter sought to suppress.

Taking a liberal view of the circumstances in this case and giving all favorable presumptions to the trial court’s ruling on the legality of Baxter’s arrest, we hold the officers had, under the terms of Ark. R. Crim. P. 4.1, reasonable cause to believe that, at the time of his arrest, Baxter had committed a felony. The officers had informant information implicating both Mumford and Baxter in the trafficking of cocaine. Acting on that information, the officers arrested Mumford, who then admitted to all the allegations that had been made by the informant, including Mumford’s having worked with Baxter in the purchase and sale of cocaine.

Armed with what proved to be recent, trustworthy information from an informant plus Mumford’s statements, the officers asked Mumford to contact and arrange a meeting with Baxter. Mumford had no problem doing so, and in fact, Baxter met with Mumford the day after Mumford returned from Texas. We conclude these facts and circumstances were trustworthy and sufficient enough to permit a person of reasonable caution to believe Baxter and Mumford had worked together in the trafficking of drugs. See Hudson v. State, 316 Ark. 360, 872 S.W.2d 68 (1994); Friend v. State, 315 Ark. 143, 865 S.W.2d 275 (1993). Consequently, we uphold the trial court’s ruling denying Baxter’s suppression motion.

In his second point for reversal, Baxter argues his conviction for conspiracy to possess cocaine with intent to deliver is not supported by sufficient evidence. The state points out that Baxter failed to preserve this issue for review. We must agree.

At the end of the state’s case, Baxter moved for a directed verdict. Defense counsel stated as follows:

“Your Honor, at this time, I want to renew all previous motions I’ve made. In particular, I want to also move for a directed verdict of acquittal, particularly as to — number one, as to count one. You’ve now heard the testimony of Mr. Mumford and this — we’ve got two counts: count one, possession with intent to deliver, and then we have count two is the conspiracy.”

Counsel then argued the first count. If there was any doubt as to what defense counsel intended to encompass within his directed verdict motion, that doubt was resolved by his cautionary remarks to the trial court, “Your Honor, they’ve (the state) got the conspiracy case. Let’s go — let’s keep this case clean and go to the jury on a conspiracy. . . .”

We note that, at the close of all evidence, Baxter did move for a directed verdict on the conspiracy count, but this court has held that, to preserve the sufficiency of evidence issue, Baxter was required to move for a directed verdict at both the close of the state’s case and at the end of the whole case. Hayes v. State, 312 Ark. 349, 849 S.W.2d 501 (1993). This court has stated that the movant of a directed-verdict motion must apprise the trial court of the specific basis on which the motion is made. Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995). Here, Baxter failed to include the conspiracy count in his directed verdict motion at the close of the state’s case, and his attempt to include that basis at the end of all evidence was untimely.

Baxter’s next argument is that the trial court erred in allowing the enhancement of his sentence under the Habitual Offenders Act, Ark. Code Ann. § § 5-4-501-504 (1987 and Supp. 1995). He asserts his two prior criminal cases were expunged under Act 346 of 1975, and because no adjudication of guilt is had under that Act, his two prior cases should not have been for enhancement purposes. Under § 5-4-501, a defendant who has previously been convicted or found guilty of other felonies may have his sentence enhanced upon conviction.

Baxter’s argument is meritless because the record reflects he was found guilty by a jury to the crimes of aggravated robbery and theft. He was sentenced to terms of imprisonment of five and three years respectively. In addition, the record shows that, after his adjudication of guilt, the trial court entered a conviction judgment committing Baxter to the Arkansas Department of Correction. After Baxter completed his sentence and was discharged by the Board of Pardons and Paroles, the trial court then entered an order expunging his conviction and sealed the robbery and theft crimes, making them only available to law enforcement and judicial officials.

Although Baxter points to the earlier judgment of convictions which notes he was sentenced under the provisions of Act 346 of 1975, those provisions were not followed or utilized. Under Act 346, codified at § 16-93-303(a)(l), an accused enters a plea of guilty or nolo contendere prior to an adjudication of guilt, the circuit court, without entering a judgment of guilt and with the consent of the defendant, may defer further proceedings and place him on probation for a period of not less than one year, under such terms and conditions as may be set by the court. Obviously, Act 346 was not utilized in Baxter’s prior cases even though the conviction judgment entered made passing reference to that Act. In sum, Baxter’s argument here simply is not supported by the record, and therefore we affirm on this point.

Baxter next contends the trial court erred in submitting to the jury a verdict form containing the wrong sentence range. The sentencing range given was that for a habitual offender convicted of a Class A felony — a term of not less than six years nor more than fifty years. See Ark. Code Ann. § 5-4-501(a)(2) (Repl. 1993 and Supp. 1995). Baxter asserts the object of his crime of conspiracy was an unclassified felony, and under Ark. Code Ann. § 5-3-404(5), he should have been punished for a Class A misdemeanor, which requires a sentence not to exceed one year. Ark. Code Ann. § 5-4-401(b)(1) (Repl. 1993 and Supp. 1995). Baxter is mistaken in classifying his criminal conspiracy.

Under Ark. Code Ann. § 5-3-404(1) (Repl. 1993), a criminal conspiracy is a Class A felony if an object of the conspiracy is commission of capital murder, treason, or a Class Y felony. (Emphasis added.) Here, the object of Baxter’s and Mumford’s conspiracy was to purchase and possess cocaine with the intent to deliver it — a Class Y felony under the penalty section of the Uniform Controlled Substances Act. See Ark. Code Ann. § 5-64-401 (Repl. 1993 and Supp. 1995). Accordingly, the verdict containing the habitual sentencing range for a Class A felony was correct.

Finally, Baxter argues his sentence compared to Mumford’s is disproportional and constitutes cruel and unusual punishment. We first point out that the record fails to reflect Mumford’s sentence, and this court may not take judicial notice of the record in a separate case. Smith v. State, 307 Ark. 223, 818 S.W.2d 945 (1991). We also note that, in rejecting this argument below, the trial court explained that the evidence supported the theory that Baxter was the main perpetrator of the crime, and Baxter used Mumford to commit it. In any event, this court has clearly held that the sentence received by a codefendant is not relevant to the appellant’s guilt, innocence, or punishment. Robinson v. State, 278 Ark. 516, 648 S.W.2d 444 (1983).

Because we find no merit in Baxter’s five points on appeal, we affirm.

Dudley, J., not participating.


author: ANDREE LAYTON Roaf, Justice.

text:
    OFFICE of CHILD SUPPORT ENFORCEMENT v. Jimmy Frank OLIVER
    96-203
    921 S.W.2d 602
    Supreme Court of Arkansas
    Opinion delivered May 20, 1996

      Greg L. Mitchell, for appellant.
    No response.
   ANDREE LAYTON Roaf, Justice.

The appellant, Office of Child Support Enforcement (“OCSE”) appeals from an order establishing arrearage in child support owed by the appellee, Jimmy Frank Oliver, Jr. (“Oliver”). OCSE asserts that the trial court erred in 1) allowing Oliver to orally raise the affirmative defense of statute of limitations in the hearing held to establish the arrearage and 2) applying a five-year statute of limitations against its claim for arrear-age. As the ruling by the Chancellor does not constitute a final appealable order, we dismiss the appeal.

Oliver and his wife were divorced in 1978. The decree provided that Oliver would pay $28.50 per week in child support. The minor child was 15 months at the time of the divorce. On April 10, 1995, two months before the minor child turned eighteen, OCSE filed a motion for citation, asserting that Oliver owed $7,725.75 in delinquent support accrued since the entry of the divorce decree. Oliver filed no written response, but appeared pro se at a hearing on the motion held on June 7, 1995. In the hearing, Oliver stated that he thought the claim for arrearage was too old and that it was “beyond the legal time to do this.” The chancellor subsequently found that he could, on his own motion, raise the statute of limitations and determined that the applicable statute of limitations would bar the arrearage accrued prior to five years before the filing of the motion by OCSE on April 10, 1990. On November 10, 1995, the chancellor entered an Order Establishing Arrearage, in which he found that the amount of child support arrearage was not in controversy, and that five years prior to the filing of the motion for citation was the only period of time for which an arrearage may be assessed against Oliver. The order disposed of all of the additional relief requested by OCSE in its motion, but did not fix the amount of the arrearage. The order provided that OCSE should certify within two weeks the arrearage which accrued between April 10, 1990, and June 7, 1995, the date of the hearing, so that judgment could be entered.

OCSE filed its notice of appeal from this order on November 15, 1995. Neither the abstract, nor the record shows that a judgment has ever been entered establishing the amount of the arrear-age. Although a docket entry in the record indicates that at a further hearing conducted on January 1, 1996, OCSE and Oliver agreed on the arrearage due pursuant to the trial court’s order, the docket sheet does not show the entry of judgment following this hearing.

We have long held that the record must disclose a final adjudication of the matter in controversy between the parties for this court to have jurisdiction. State v. Morrison, 318 Ark. 563, 885 S.W.2d 900 (1994). For a judgment to be final and appealable, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. Tucker v. Lake View School District No. 25, 323 Ark. 693, 917 S.W.2d 530 (1996); Kelly v. Kelly, 310 Ark. 244, 835 S.W.2d 869 (1992); Jackson v. Yowell, 307 Ark. 222, 818 S.W.2d 950 (1991). To be final, an order must not only decide the rights of the parties, but also put the court’s directive into execution, ending the litigation or a separable part of it. Kilgore v. Viner, 293 Ark. 187, 736 S.W.2d 1 (1987). See also Bonner v. Sikes, 20 Ark. App. 209, 727 S.W.2d 144 (1987).

Here, the order establishing arrearage did not finally resolve the amount of the arrearage owed by Oliver or end the litigation concerning the claim for arrearage. An order that adjudicates fewer than all of the claims of the parties does not terminate the action. Ark. R. Civ. P. 54 (b); Morrison, supra. Accordingly, we dismiss this appeal.

Appeal dismissed.

Dudley, J., not participating.


author: Per Curiam.

text:
    Mark BARNETT v. CITY OF DARDANELLE
    CR 96-538
    920 S.W.2d 855
    Supreme Court of Arkansas
    Opinion delivered May 20, 1996

      Dale W. Finley, for appellant.
    No response.
   Per Curiam.

Appellant Mark Barnett, by his attorney, Dale W. Finley, has filed for a rule on the clerk. Barnett was found guilty in Yell County Municipal Court, Dardanelle Division, of speeding, minor in possession of alcohol, and driving while intoxicated — first offense. He appealed these convictions to the Yell County Circuit Court. On January 10, 1996, the circuit court dismissed the appeal and remanded the matter to the Dardanelle Municipal Court for disposition.

On January 30, 1996, Barnett timely filed his notice of appeal to this court from the circuit court’s January 10, 1996 order dismissing his appeal. The ninety-day period for filing the record expired on April 30, 1996. However, the record was not filed by that date but rather was tendered on May 6, 1996. Barnett’s attorney admits that the failure to file the record in time was 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 our Per Curiam opinion dated February 5, 1979, In re: Belated Appeals in Criminal Cases, 265 Ark. 964; see also Martin v. City of Searcy, 322 Ark. 562, 909 S.W.2d 652 (1995). A copy of this opinion -will be forwarded to the Committee on Professional Conduct.

Dudley, J., not participating.


text:
    Randolph George HICKS v. STATE of Arkansas
    CR 96-482
    921 S.W.2d 604
    Supreme Court of Arkansas
    Opinion delivered May 20, 1996

      Wayne Emmons and Chandler Law Firm, by: Edward Witt Chandler, for appellant.
    No response.
   Per Curiam.

Appellant, Randolph George Hicks, by his attorneys, has filed a motion for rule on the clerk. His attorneys, Wayne Emmons of Hardy, Arkansas, and Edward Witt Chandler, who was admitted to practice in Arkansas by comity pursuant to Rule XIV of the Rules Governing Admission to the Bar, state by motion that they were notified by the Clerk of this court that the record could not be filed because the notice of appeal was filed late. Appellant’s attorneys state by motion that they disagree that the notice of appeal was late.

In a Baxter County jury trial held on December 4 and 5, 1995, appellant, Randolph George Hicks, was convicted of two counts of delivery of methamphetamine, one count of possession of methamphetamine with intent to deliver, and one count of possession of drug paraphernalia. He was sentenced consecutively on each count, resulting in a cumulative sentence of ninety-five years’ imprisonment. Appellant’s counsel filed a motion for new trial on December 11, 1995, but the motion was filed before the judgment and commitment order was entered on December 14, 1995. The motion for new trial was therefore untimely and ineffective. Webster v. State, 320 Ark. 393, 896 S.W.2d 890 (1995) (per curiam). Appellant’s counsel amended the motion for new trial on December 20, 1995, asserting additional grounds for the motion. The amended motion related back to the date of filing of the original motion. Oliver v. State, 322 Ark. 8, 907 S.W.2d 706 (1995). The trial court did not rule on the motion for new trial. On January 19, 1996, appellant’s counsel filed a notice of appeal from the judgment “entered against him on December 5, 1995.” Although appellant’s jury trial concluded on December 5, 1995, the judgment was not entered for purposes of appeal until it was filed of record with the Baxter County Circuit Clerk on December 14, 1995. Ark. R. App. P. 4(e) (1995). Because the motion for new trial was ineffective and because the notice of appeal was filed more than thirty days after the judgment was entered, the notice of appeal was also of no effect. Webster, 320 Ark. 393, 896 S.W.2d 890.

Because appellant’s counsel have not admitted responsibility for filing the notice of appeal untimely, we deny appellant’s motion. See In re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam). This court has held that it will treat a motion for rule on the clerk as a motion for belated appeal and grant the motion when counsel admits that the notice of appeal was not timely filed due to an error on his part. See, e.g., Brown v. State, 321 Ark. 282, 900 S.W.2d 954 (1995) (per curiam). Here, the attorneys do not admit fault. Instead, they state by motion that they witnessed the prosecutor hand the judgment to the circuit clerk at the conclusion of the trial. 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) (per curiam). Therefore, appellant’s motion must be denied.

Appellant’s attorneys shall file within thirty days from the date of this per curiam a motion and affidavit in this case accepting foil responsibility for not timely filing the notice of appeal and upon filing same, or if other good cause is shown, the motion will be granted and a copy of the opinion will be forwarded to the Committee on Professional Conduct.

The present motion for rule on the clerk is denied.

DUDLEY, J., not participating.


author: PER CURIAM.

text:
    Leroy King McCOY v. STATE of Arkansas
    CR 96-514
    921 S.W.2d 605
    Supreme Court of Arkansas
    Opinion delivered May 20, 1996

      R. Brent Crews, for appellant.
    No response.
   PER CURIAM.

The appellant, Leroy King McCoy, has filed a motion for rule on the clerk. His attorney, R. Brent Crews, filed a timely notice of appeal. While appellant apparently retained another attorney, Mr. Crews failed to ask to be relieved as counsel. He admits that he was required to do so, see Young v. State, 318 Ark. 235, 884 S.W.2d 591 (1994), and that the failure to timely file the record was 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). A copy of this opinion will be forwarded to the Committee on Professional Conduct.

Dudley, J., not participating.


text:
    Steve Sinatra MOORE v. STATE of Arkansas
    CR 94-1183
    921 S.W.2d 606
    Supreme Court of Arkansas
    Opinion delivered May 20, 1996

      Appellant, pro se.
    No response.
   PER CURIAM.

Petitioner Steve Sinatra Moore was found guilty by a jury of engaging in a continuing criminal enterprise (CCE) and sentenced to forty years’ imprisonment. A fine of $5,000.00 was also imposed. We affirmed the judgment on direct appeal and reversed and remanded the case on cross-appeal, directing that the trial court reinstate the jury’s verdict and sentence for the five predicate offenses of the CCE conviction which it had set aside. Moore v. State, 321 Ark. 249, 903 S.W.2d 154 (1995).

Petitioner Moore, who contends that he is indigent, now seeks pursuant to the Freedom of Information Act a photocopy at public expense of the briefs filed on direct appeal. He gives no reason for the request.

We first note that Ark. Code Ann. § 25-19-101 et seq, the Freedom of Information Act, does not require a court to provide free-of-charge a copy of material on file with the court. A petitioner is not entitled to photocopying at public expense unless he demonstrates some compelling need for specific documentary evidence to support an allegation contained in a petition for post-conviction relief. See Austin v. State, 287 Ark. 256, 697 S.W.2d 914 (1985); see Chavez v. Sigler, 438 F.2d 890 (8th Cir.1971); see also United States v. Losing, 601 F.2d 351 (8th Cir. 1979). Indigency alone does not entide a petitioner to photocopying at public public expense. Washington v. State, 270 Ark. 840, 606 S.W.2d 365 (1980). The petitioner here has offered nothing to demonstrate that photocopies of material on file with this court should be provided to him at no cost.

It should be noted that when an appeal has been lodged in this court, the appeal transcript and other material filed on appeal remain permanendy on file with the clerk of the supreme court. Persons may review a transcript and other material in the clerk’s office and photocopy all or portions of it. An incarcerated person desiring a photocopy of an item on file may write this court and request that the copy be mailed to the prison. All persons, including prisoners, must bear the cost of photocopying. Austin v. State, supra.

Motion denied.

Dudley, J., not participating.


text:
    Dinzel NORMAN v. STATE of Arkansas
    CR 95-361
    921 S.W.2d 605
    Supreme Court of Arkansas
    Opinion delivered May 20, 1996

      George Stone, for appellant.
    No response.
   Per Curiam.

Appellant’s counsel, George Stone, has been the object of our attention in this case on several occasions. On April 24, 1995, we gave Stone thirty days to accept responsibility for the late filing of the transcript in this cause. When he failed to do so, we ordered him to appear on February 26, 1996, at 9:00 a.m., to show cause why he should not be held in contempt for his failure to comply with our April 24 order. While Stone appeared late at the February 26 hearing, Stone did respond and said that he would have the record and brief tendered in this case by March 23, 1996. Because of this assurance, the court, on March 18, 1996, denied appellant’s pro se motion to dismiss counsel and for reappointment of new counsel. On March 25, 1996, Stone moved for additional time to file a brief because his law license was suspended on March 8, 1996, for a deficiency in continuing legal education. We granted that continuance when he stated his CLE deficiency would be satisfied on March 29, 1996. Fie was ordered to have his brief filed on May 6, 1996. He has failed yet again to meet his deadline. Appellant’s motion disqualifying counsel George Stone is now granted and John F. Greenhaw is appointed as new counsel in this appeal, and the clerk of the court shall set a briefing schedule.

By the same order, George Stone is directed to appear before this court on Tuesday, May 28, 1996, at 9:00 a.m., and show cause why he should not be held in contempt of this court for failure to comply with this court’s prior orders as set forth hereinabove.

A copy of this opinion shall be forwarded forthwith to the Committee on Professional Conduct.

DUDLEY, J., not participating.


text:
    William Wesley SKIVER v. STATE of Arkansas
    CR 96-527
    920 S.W.2d 854
    Supreme Court of Arkansas
    Opinion delivered May 20, 1996

      Jon A. Williams, for appellant.
    No response.
   PER CURIAM.

William Wesley Skiver, by his attorney, Jon A. Williams, has filed a motion for a rule on the clerk. His attorney admits by 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.

Dudley, J., not participating.


text:
    Marcus HOOD v. STATE of Arkansas
    CR 96-103
    920 S.W.2d 853
    Supreme Court of Arkansas
    Opinion delivered May 20, 1996

      Michael D. Ray, for appellant.
    No response.
   Per Curiam.

Appellant requests an extension of time to supplement the transcript and file a brief. He has filed a partial transcript, but seeks to complete the record which he states omits the following:

(1) The February 7, 1995 suppression hearing, the court’s ruling, and the testimony or evidence bearing on the alleged coercive nature of the police in obtaining appellant’s confession.

(2) The court’s side-bar conference regarding the appellant’s objection to the state’s question to Officer William Setterman, “[W]ere you or did you recover anything of an evidentiary value in the investigation of Shorty Williamson’s Service Station in Hamburg?”

We grant appellant’s motion and remand this matter to settle the record, but in doing so, we point out that the foregoing omissions appear to be matters that can be easily resolved. First, if no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best means available, including his recollection. The statement shall be served on the appellee (here the state), who may serve objections or proposed amendments thereto within ten days after service upon it. Thereupon the statement and any objections or proposed amendments shall be submitted to the trial court for settlement and approval and as settled and approved shall be included by the clerk of the court in the record on appeal. Ark. R. App. P. 6(d); see also Crafton v. State, 274 Ark. 319, 624 S.W.2d 440 (1981); Fountain v. State, 269 Ark. 454, 601 S.W.2d 862 (1980).

Second, if any difference arises as to whether the record truly discloses what occurred in the trial court, the difference shall be submitted to and settled by that court and the record made to conform to the truth. If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipulation, or the trial court, either before or after the record is transmitted to the appellate court, or the appellate court on proper suggestion, or on its own initiative, may direct that the omission or misstatement shall be corrected, and if necessary, that a supplemental record be certified and transmitted. All other questions as to form and content of the record shall be presented to the appellate court. Ark. R. App. P. 6(e).

Keeping the foregoing rules in mind, the parties should be able to reconstruct the witnesses’ testimony given at the February 7 suppression hearing. In addition, appellant’s concern over the trial bench conference seems to be resolvable, since from appellant’s own motion, it appears Officer Setterman apparently was permitted to testify to finding a .357 handgun and five shells, and Setterman’s testimony was confirmed by Officer Tommy Breedlove. Appellant objected, stating the state was heading into the same direction which appellant objected to earlier. The record reveals no hint of a bench conference, but only the court’s on-record remarks, “Would the attorneys approach, momentarily. Until I know where he’s going, I’m going to overrule your objection.”

From our reading of the existing record, what, if anything, might be missing should be easily provided and setded upon remand. Therefore, we remand this cause with the foregoing instructions and direct that the record, as reconstructed and settled, be filed with this court’s clerk within thirty-five days, at which time the clerk will set the briefing schedule.

Dudley, J., not participating.

       We note witnesses were thoroughly questioned at trial, and testified to suppression-related matters.


text:
    Charles Lee WHITFIELD v. STATE of Arkansas
    CR 96-522
    920 S.W.2d 855
    Supreme Court of Arkansas
    Opinion delivered May 20, 1996

      Mikke Connealy, for appellant.
    No response.
   Per CURIAM.

Appellant, Charles Lee Whitfield, by his attorney, Mikke Connealy, has filed a motion for rule on the clerk. His attorney admits that the transcript was tendered late due to an error on her part.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See per curiam order dated February 5, 1979. In re: Belated Appeals in Criminal Cases, 265 Ark. 964; Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981).

A copy of this opinion will be forwarded to the Committee on Professional Conduct.

Dudley, J., not participating.


author: Bradley D. Jesson, Chief Justice.

text:
    Myrtle CLEVELAND, et al. v. ESTATE of Ezra E. STARK, Deceased
    96-152
    923 S.W.2d 857
    Supreme Court of Arkansas
    Opinion delivered May 28, 1996

      Tiner & Hunter, for appellants.

      Deloss McKnight, for appellee.
   Bradley D. Jesson, Chief Justice.

This appeal arises from the probate judge’s order distributing the proceeds of the estate of Ezra Stark. Mr. Stark died testate on December 21, 1993. Due to deficiencies in the appellants’ abstract, we are unable to reach the argument presented on appeal. We therefore affirm the probate judge’s ruling.

Ezra Stark executed his will in 1986. He bequeathed his property to his wife, Elizabeth Stark. However, the will provided that, should Elizabeth predecease him, his property would go to his heirs and his wife’s heirs, “share and share alike.” Mrs. Stark indeed predeceased her husband thereby activating the alternative disposition. On the date of Mr. Stark’s death, there were in existence thirty-six heirs of Mr. Stark and three heirs of Mrs. Stark.

The probate judge interpreted the “share and share alike” provision of the will to mean that one-half of the estate would be shared among Mrs. Stark’s heirs and one-half of the estate would be shared among Mr. Stark’s heirs. The estate’s value at the time of distribution was approximately $44,000.00. The practical effect of the court’s ruling is that the thirty-six heirs of Mr. Stark would divide about $22,000.00 while the three heirs of Mrs. Stark would divide the same amount. The heirs of Mr. Stark appeal from the court’s ruling and argue that each individual should have received an equal share of the estate.

The abstract does not reflect that the appellants’ argument was made to the probate judge. The record on appeal is limited to that which is abstracted. Midgett v. State, 316 Ark. 553, 873 S.W.2d 165 (1994). The abstract must show that the appellant has preserved his argument for the purposes of appeal. Yates v. State, 301 Ark. 424, 785 S.W.2d 199 (1990). When an appellant does not include in his abstract the basis for his argument made at the trial level, we will not reach the issue on appeal. Stone v. State, 321 Ark. 46, 900 S.W.2d 515 (1995); Williams v. State, 320 Ark. 211, 895 S.W.2d 913 (1995); Sanson v. Pullum, 273 Ark. 325, 619 S.W.2d 641 (1981). See generally Kratzke v. Nestle-Beich, Inc., 307 Ark. 158, 817 S.W.2d 889 (1991); Whitlock v. Smith, 297 Ark. 399, 762 S.W.2d 782 (1989).

We are also concerned that the abstract of the will does not reflect the will in its entirety. Since we are asked to interpret the language of the will, and since our review is de novo, it is critical that we be furnished with the precise language used in the will. It is a practical impossibility for seven justices to examine a single transcript filed with this court, and we will not do so. In the Matter of the Estate of Brumley, 323 Ark. 431, 914 S.W.2d 735 (1996).

Affirmed.

Dudley, J., not participating.

       The abstract is unclear on the number of Mrs. Stark’s heirs. It appears there may have been four instead of three. However, this point is not crucial to our discussion of the case.


text:
    Dr. Eldin C. JEWELL v. ARKANSAS STATE BOARD of DENTAL EXAMINERS
    95-1262
    921 S.W.2d 950
    Supreme Court of Arkansas
    Opinion delivered May 28, 1996
    [Petition for rehearing denied July 1, 1996.]

      Appellant, pro se.

      William H. Trice, III, for appellee.

      Dudley, J., not participating.

   Bradley D. Jesson, Chief Justice.

The appellant, Dr. Eldin C. Jewell, appeals from a decision of the Pulaski County Circuit Court affirming the decision of appellee Arkansas State Board of Dental Examiners (“Dental Board”), which suspended Dr. Jewell’s license to practice dentistry for two years.

Dr. Jewell raises four points for reversal that we are unable to address because of his flagrantly deficient abstract. Ark. Sup. Ct. R. 4-2(a)(6). The transcript of the proceedings before the trial court contains 113 pages. The transcript of the proceedings before the Dental Board is included as an exhibit to the trial record and consists of an additional 86 pages. Dr. Jewell’s abstract, however, is only two pages in length. His abstract merely contains a letter order of the trial court dated August 2, 1995. It does not contain a summary of the pleadings, a summary of the hearings before either the Dental Board or the trial court, the order appealed from, or the notice of appeal.

We have often held that a summary of the pleadings and the judgment appealed from are the bare essentials of an abstract. D. Hawkins, Inc. v. Schumacher, 322 Ark. 437, 909 S.W.2d 640 (1995); Bohannon v. Arkansas State Bd. of Nursing, 320 Ark. 169, 895 S.W.2d 923 (1995); see also Winters v. Elders, 324 Ark. 246, 920 S.W.2d 833 (1996). The reason underlying our abstracting rule is basic — there is only one transcript, there are seven judges on this court, and it is impossible for each of the seven judges to examine the one transcript. Winters v. Elders, supra; Bunn v. State, 320 Ark. 516, 898 S.W.2d 450 (1995); Franklin v. State, 318 Ark. 99, 884 S.W.2d 246 (1994); Dixon v. State, 314 Ark. 378, 863 S.W.2d 282 (1993).

Dr. Jewell has filed his own appellate briefs and is proceeding pro se on appeal. We hold pro se litigants to the same requirements to which we hold attorneys. Perry v. State, 287 Ark. 384, 699 S.W.2d 739 (1985); Weston v. State, 265 Ark. 58, 576 S.W.2d 705 (1979). Because Dr. Jewell’s abstract is flagrantly deficient under our rules, we must affirm his appeal without reaching the merits.

Affirmed.

Dudley, J., not participating.


author: TOM Glaze, Justice.

text:
    Richard GREENE v. STATE of Arkansas
    CR 96-102
    921 S.W.2d 951
    Supreme Court of Arkansas
    Opinion delivered May 28, 1996

      Constance G. Grayson, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Neuman, Asst. Att’y Gen. and Rinda Baker, Law Student Admitted to Practice Pursuant to Rule XV (E)(1)(b), for appellee.
   TOM Glaze, Justice.

Appellant Richard Greene’s appeal involves two prior drug convictions. The first one, case CR90-586, was entered on April 24, 1991, wherein he received a ten-year probation sentence, conditioned upon future good behavior and other conditions. The second one, case CR92-548, was entered on May 24, 1992, wherein he was convicted of selling and delivering cocaine on October 10, 1991, and given a ten-year suspended sentence conditioned, again, upon good behavior and other conditions.

On January 19, 1993, the state filed a petition to revoke Greene’s probation in case 90-586 based upon his drug conviction in 92-548. The state amended its revocation on February 6, 1995 to add another cocaine charge whereby the state claimed Greene possessed cocaine on June 25, 1994. The state filed another revocation petition in case 92-548 based upon the June 25, 1994 cocaine charge.

On October 3, 1995, the trial court held a hearing on both of the state’s pending revocation petitions in cases 90-586 and 92-548, and the judge found Greene violated his respective probationary and suspension conditions. After the trial court made its finding, it sentenced Greene to forty years in case 90-586 and ten years in 92-548, the terms to run concurrently.

We first consider Greene’s claim that the trial court erred in allowing Officer David Holland to relate irrelevant testimony which was highly prejudicial. Holland testified that, on June 25, 1994, he and Officer Lawrence Vaughn were dispatched to the 300 block of South 9th Street in West Memphis. Holland said, “I was familiar with the area, and can describe the residence I was dispatched to.” In reference to his being in the area in the past, he further stated, “It is a white frame house with a wooden fence around it, [and] I have been in that house before.” Greene interposed a relevance objection which the trial judge overruled. Holland then related that he had been inside the house on prior occasions to assist the narcotics unit in serving search warrants.

Holland testified further that upon arrival at the house just described, he and Vaughn saw Greene standing outside the fence surrounding the house. Greene started walking back through the fence to the house when Holland ordered Greene to stop. Although the officers were in uniform and a marked car, Greene ran away with the officers in pursuit. Vaughn caught Greene and made a security frisk after seeing a bulge in Greene’s pocket. Vaughn found $270 in cash along with a rock-like substance. When asked what the “rock” was, Greene moved backward and in struggling with Greene, Vaughn dropped the rock in a gravel drive and Greene ran away again. The officer again captured Greene, and found two more smaller rock-like substances in his pocket which were later tested positive as being cocaine. The original “rock” was never found.

Greene argues Holland’s initial testimony describing the house where Greene was first located was unrelated to the state’s allegations that Greene was dealing in drugs. He claims that, even if criminal activity had taken place inside the residence in the past, the state showed no evidence that Greene was in any way connected with any such prior drug activity.

Greene’s argument overlooks several points. First, Holland’s and Vaughn’s testimonies only described the area and house where Greene was found as a high drug-crime area. We believe this testimony was relevant for this purpose. Second, Vaughn’s unobjected-to testimony clearly established Greene possessed cocaine when he was arrested on June 25, 1994, and this evidence was sufficient, alone, for the trial judge to conclude that Greene violated the terms of his prior probation and suspension conditions. Third, we also point out that the state’s revocation petition in case 90-586 did not rely only on the June 25, 1994 drug charge, but also specified Greene’s conviction in 92-548 as being a ground for revoking Greene’s probation. Again, Greene’s conviction in case 92-548 was, itself, sufficient to revoke his probation in the earlier 90-586 case.

In conclusion, Greene claims the state’s evidence bearing on the June 25, 1994 charge was insufficient to show he violated the terms and conditions of his probation and suspension sentences in cases 90-586 and 92-548. We need not repeat the evidence already set out hereinabove. Suffice it to say, the state’s evidence was more than sufficient to prove by a preponderance of evidence that Greene violated his conditions of probation and suspension. See Lemons v. State, 310 Ark. 381, 836 S.W.2d 861 (1992); see also Strickland v. State, 322 Ark. 312, 909 S.W.2d 318 (1995), and Igwe v. State, 312 Ark. 220, 849 S.W.2d 462 (1993).

Dudley, J., not participating.