author: Donald L. Corbin, Justice.

text:
    STATE of Arkansas v. Bryant O’Neal PYLANT
    CR 94-451
    881 S.W.2d 28
    Supreme Court of Arkansas
    Opinion delivered December 12, 1994

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellant.

      James B. Bennett, for appellee.
   Donald L. Corbin, Justice.

Appellant, the State of Arkansas, appeals the order of the Union County Circuit Court denying its motion for a jury trial in its case against appellee, Bryant O’Neal Pylant, on three counts of delivery of a controlled substance (cocaine). In the same order, appellee’s motion for permission to plead guilty to these charges was granted, and his guilty plea was accepted. Sentencing has been delayed. Jurisdiction of this matter is conferred upon this court pursuant to Ark. Sup. Ct. R. 1-2(a)(3). The sole issue presented on appeal, as phrased by the state in its oral argument, is whether the state has an absolute right to a trial by jury in a criminal case. We hold this appeal is procedurally flawed and dismiss it without considering its merits.

The facts pertinent to this appeal began in October 1993 when appellee informed the trial court that he wished to plead guilty to the charges filed against him. The state objected and requested a jury trial. The trial judge instructed appellee to file a written motion on the matter; both sides also filed written arguments in support of their positions. On November 4, 1993, the trial court verbally advised counsel it would grant the defense motion. The state indicated that it desired to appeal the ruling. A motion hearing was held on January 28, 1994 for the purpose of formalizing the record for appeal. At the conclusion of that hearing and in open court, the trial court accepted appellee’s plea of guilty, pronounced him guilty of the counts charged, and ordered a pre-sentence report be prepared with sentencing to occur at a later date. The court’s ensuing written order in the matter from which this appeal is taken was entered on February 25, 1994.

First, we consider the issue of the appealability of the court’s order denying the state’s motion. In its brief, the state argues:

this decision by the Union County Circuit Court to accept appellee Pylant’s pleas of guilty is a final order and, therefore, is appealable because it concludes the controversy at the trial court level with regard to whether appellee Pylant has a right to enter a plea of guilty to the three counts of delivery of cocaine at issue.

In its brief, the state then cites us to court rule and case law holding that a final judgment or decree entered by the trial court is an appealable order. Ark. R. App. P. 2(a)(1); Ellis v. State, 302 Ark. 597, 791 S.W.2d 370 (1990) (defendant’s appeal of the denial of his pretrial motion dismissed because no judgment of conviction had been entered); Turnage v. State, 283 Ark. 242, 675 S.W.2d 625 (1984) (defendant’s appeal of interlocutory order to pay court costs in advance of trial of the case on its merits dismissed); State v. Block, 270 Ark. 671, 606 S.W.2d 362 (1980), cert. denied, 451 U.S. 937 (1981) (state’s appeal of pretrial order dismissing charges permitted). We find this authority unpersuasive on the facts of this case. We have stated that: “A judgment, to be final and appealable, must dismiss the parties from the court and conclude the controversy.” Turnage, 283 Ark. at 243, 675 S.W.2d at 626 (citations omitted). Applying this test to the state’s motion, we conclude the order denying the state’s motion is not a final judgment because it does not dismiss the parties from the court nor conclude the controversy.

At oral argument, the state’s counsel clarified that its argument for its authority to present this appeal relies on Ark. R. App. P. 2(b). Rule 2(b) states “[a]n appeal from any final order also brings up for review any intermediate order involving the merits and necessarily affecting the judgment.” We reject the state’s argument on this issue, noting Rule 2(b) does not apply in this case because the state is not appealing from any final order, but is appealing from an order denying its motion for jury trial, which, implicit in its citation to Rule 2(b), the state admits is an interim order. Indeed no final order has yet been entered in this case because, until sentencing is pronounced, appellee may be permitted under certain circumstances to withdraw his plea with the court’s permission. A.R.Cr.P. Rule 26.1. In any event, aside from issues of finality, the law is well-established that, in general, there is no right to an appeal from a plea of guilty where the appeal constitutes a review of the merits of the plea itself, as in the instant case. Hill v. State, 318 Ark. 408, 887 S.W.2d 275 (1994). The sole exception to this general rule, for conditional pleas made pursuant to A.R.Cr.P. Rule 24.3, is not here applicable.

Finally, even if Rule 2(b) was applicable in this case and the trial court’s interim order denying the state’s motion was appealable on that basis, the state’s appeal would not comply with the requirements of A.R.Cr.P. Rule 36.10(a) governing interlocutory appeals by the state and would be dismissed for that reason.

The appeal is dismissed.

       We note that in its brief and at oral argument, the state also contends the trial court’s acceptance of appellee’s guilty plea was conditional — the condition being the outcome of this appeal — although the court’s February 25, 1994 order makes no reference to any conditional acceptance. Putting aside any consideration of the trial court’s authority to accept a conditional plea in this case, that is, a case which does not comply with A.R.Cr.P. Rule 24.3(b), the state’s contention, if true, serves only to further evidence the fact that no final order has been entered in this case.


source: Caselaw Access Project

license: Public Domain

text:
    Carlie WETHERINGTON v. STATE of Arkansas
    CR 94-710
    889 S.W.2d 34
    Supreme Court of Arkansas
    Opinion delivered December 12, 1994

      Benny M. Tucker, for appellant.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant, Carlie Wetherington, appeals a judgment of the Clark County Circuit Court convicting him of Driving While Intoxicated, Fourth Offense, fining him $ 1,000.00, suspending his driver’s license for three years, and sentencing him to six years in the Arkansas Department of Correction. Jurisdiction of this case was certified to this court by the court of appeals upon appellant’s motion. Appellant asserts three points for reversal. We find no error and affirm.

First, appellant challenges the sufficiency of the evidence and argues the state failed to prove he either operated or was in physical control of a motor vehicle. Arkansas Code Annotated § 5-65-103 (Repl. 1993) declares it unlawful for an intoxicated person to operate or be in actual physical control of a motor vehicle. This statute does not require that law enforcement officers actually witness an intoxicated person driving or exercising control of a vehicle. It is well-settled that the state may prove by circumstantial evidence whether a person operated or was in actual physical control of a vehicle. See, e.g., Azbill v. State, 285 Ark. 98, 685 S.W.2d 162 (1985).

It is also well-settled that circumstantial evidence may constitute substantial evidence to support a jury’s verdict of guilt if the circumstantial evidence rules out every other reasonable hypothesis but the guilt of the accused. Davis v. State, 314 Ark. 257, 863 S.W.2d 259 (1993), cert. denied, 114 S. Ct. 1417 (1994); Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982), cert. denied, 493 U.S. 959 (1989). However, the question of whether the circumstantial evidence indeed excludes every other reasonable hypothesis but the guilt of the accused is a question to be resolved by the finder of fact. Azbill, 285 Ark. 98, 685 S.W.2d 162. Our responsibility, as the reviewing court, is to determine whether the jury verdict is supported by substantial evidence. Id.

Gary Turner testified that he was driving home from church on Wednesday evening, December 15, 1993, when he saw a car parked in a ditch along Highway 26 outside Arkadelphia, Arkansas. He observed that the lights were on and the engine was running. He stated that he turned his car around so his car’s headlights would shine on the parked car. He saw only one person in the car — a body slumped over the steering wheel, with the hands resting on the wheel and the head down, motionless. Turner stated he called the sheriff on his car phone, at which time he saw the person in the car get out, stagger three or four steps, and fall to the ground. Turner testified he exited his car to assist the person and wait for the police. Turner stated the police arrived and assisted the person into the police vehicle. Turner then left the scene. Clark County Deputy Sheriff Rodrick Cooper testified he arrived on the scene and found appellant lying on the ground face up with Turner kneeling beside appellant. Deputy Cooper smelled alcohol on appellant, assisted him into the police vehicle, and arrested appellant for driving while intoxicated (DWI).

This court has held that evidence that an intoxicated person was asleep behind the wheel of a car with the key in the ignition was sufficient to show the person accused was in control of a vehicle. Roberts v. State, 287 Ark. 451, 701 S.W.2d 112 (1985). Similarly, the court of appeals has held that evidence that an intoxicated person was asleep or “passed out” in the front seat of a vehicle with the lights on and motor running was sufficient to show the person was in control of a vehicle. Blakemore v. State, 25 Ark. App. 335, 758 S.W.2d 425 (1988). The foregoing testimony establishes appellant’s hands were on the steering wheel of a vehicle with the motor running and the lights on. Consequently, we have no hesitancy in concluding the foregoing testimony is substantial evidence from which the jury could have concluded appellant was in actual physical control of a vehicle.

Appellant emphasizes that Turner’s testimony conflicts with Deputy Cooper’s testimony on the point of whether the motor was running and the lights were on. In reviewing the sufficiency of the evidence, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the appellee, without weighing it against conflicting evidence that may be favorable to the appellant, and affirm the verdict if it is supported by substantial evidence. Westbrook v. State, 286 Ark. 192, 691 S.W.2d 123, cert. denied, 474 U.S. 1006 (1985). Here, we do not weigh the conflicting evidence, but view the evidence most favorably to the state. There was substantial evidence to support the verdict as appellant was in actual physical control of a motor vehicle.

Second, appellant argues he was denied a fair trial because of the following comment made by the prosecutor during closing argument:

In this case, the law calls for somebody in physical control. You’re in physical control when you’re behind the wheel with the engine running and the lights on. You’re in physical control of that vehicle. The reason we have this law is so people won’t be out there killing our kids —[.] [Emphasis added by appellant.]

Appellant contends this comment was an attempt to inflame the minds of the jurors and appeal to their passions and prejudices. Appellant emphasizes there was no evidence that appellant was out to “kill our kids” as the prosecutor implied; thus, argues appellant, when the court overruled appellant’s objection to the comment, he was denied a fair trial. The state contends the remark of which appellant complains falls well short of any error or prejudice requiring reversal. We agree with the state.

The trial court is given broad discretion to control counsel in closing arguments and this court does not interfere with such discretion absent a manifest abuse of it. Littlepage v. State, 314 Ark. 361, 863 S.W.2d 276 (1993). Remarks made during argument that require reversal are rare and require an appeal to the jurors’ passions. Neff v. State, 287 Ark. 88, 696 S.W.2d 736 (1985). There was no such appeal made in this case. As stated in the emergency clause of Act 549 of 1983, one of the purposes of the DWI Omnibus Act is public safety. This court has recognized that purpose by stating that prosecution for DWI can occur where it is necessary to protect the public interest. Fitch v. State, 313 Ark. 122, 853 S.W.2d 874 (1993). Even though this case was fortunately a single car accident, the potential for public harm still existed. The prosecutor’s remark went to the issue of public safety and was therefore fair argument. The trial court did not err in overruling the objection.

Third, appellant contends the judgment against him is void because the felony information did not conclude with a contra pacem clause, “Against the peace and dignity of the State of Arkansas,” as is required by our state constitution. Ark. Const, art. 7, § 49. The state contends that appellant has waived this argument because it is raised for the first time on appeal. Appellant responds that the lack of a contra pacem clause leaves the circuit court without subject matter jurisdiction, thus this argument may be presented for the first time on appeal.

Appellant cites no binding authority in support of the jurisdictional contention, but does cite Lemons v. State, 4 W. Va. 755 (1870), and Rice v. State, 50 Tenn. 215 (1871), which hold that contra pacem clauses are constitutional rights and requirements, and therefore may be raised for the first time on appeal. We find these authorities unpersuasive. This court has repeatedly held that even constitutional rights are waived on appeal if not argued below. See, e.g., Kittler v. State, 304 Ark. 344, 802 S.W.2d 925 (1991).

This court has repeatedly held that each count of an indictment or information must conclude with a contra pacem clause. See, e.g., Caldwell v. State, 295 Ark. 149, 747 S.W.2d 99 (1988). In Prince v. State, 304 Ark. 692, 805 S.W.2d 46 (1991), cert. denied, 114 S. Ct. 1857 (1994), we reasoned that, pursuant to Ark. Code Ann. § 16-85-705 (1987), the insufficiency of an indictment or information must be challenged prior to trial, and held that appellant Prince had waived his contra pacem clause argument because it was first raised in a post-trial motion. Appellant argues his case is distinguishable from Prince because the information filed against appellant Prince contained a contra pacem clause, but did not conclude each count with such a clause, while the information filed against appellant failed to contain a contra pacem clause at all. The distinction is of no consequence.

This court has stated that a conviction upon a charge not made results in a denial of due process. Hedrick v. State, 292 Ark. 411, 730 S.W.2d 488 (1987); see Hagen v. State, 315 Ark. 20, 864 S.W.2d 856 (1993). This court has also stated that certiorari lies when a circuit court exceeds its jurisdiction when it sentences a criminal defendant to a greater crime than that with which he or she was charged. Switzer v. Golden, 224 Ark. 543, 274 S.W.2d 769 (1955). However, this court has never stated that the inclusion of the contra pacem clause in an indictment or information is a condition precedent to the circuit court’s obtaining subject matter jurisdiction of a case. Rather, as stated in Prince, the inclusion of a contra pacem clause goes to the sufficiency of the charging instrument, and must be raised, prior to trial to be preserved for appellate review. Prince, 304 Ark. 692, 805 S.W.2d 46 (citing Rogers v. State, 289 Ark. 257, 711 S.W.2d 461 (1986)).

We find no error and affirm the judgment.


author: Robert L. Brown, Justice.

text:
    Kenneth GUEBERT v. Ronald B. WILLIAMS and Jill Lynn Williams
    94-492
    889 S.W.2d 30
    Supreme Court of Arkansas
    Opinion delivered December 12, 1994

      Donald R. Roberts, for appellant.

      Wooton & Slegle, P.A., for appellees.
   Robert L. Brown, Justice.

The appellant, Kenneth Guebert, is the representative of an unincorporated property owner’s association for the unplatted Walnut Hill Estates subdivision. He filed a petition for declaratory judgment on behalf of the property owners against the appellees, Ronald B. and Jill Lynn Williams, and seven other defendants (Carl R. Cordell, Irma Lee Cordell, University of Ozarks, Marvin Watts, Barry Burris, Wayne Ayers, and James M. Hall), alleging that a common development plan existed in the unplatted subdivision and that the Williamses and the other defendants had violated that plan by not abiding by certain covenants and restrictions. Guebert specifically alleged that the Williamses had violated one restriction by placing a mobile home on their property and that the other defendants had chosen not to acknowledge the land use restrictions.

The subdivision in question had originally belonged to a partnership, C & W Properties, also described as Cordell Wilson Properties, which subdivided the property and conveyed several lots by deed with land use restrictions contained in those deeds. One of these restrictions prohibited the placement of mobile homes on the premises. The restrictions were either set out in the deeds or attached to the deeds of the subsequent purchasers. However, the restrictions were never recorded as part of a subdivision plat or bill of assurance.

The C & W partnership dissolved and the remaining tracts of land were divided among the three partners. One of the partners, Carl Cordell, who was a defendant in this matter, sold one of the remaining tracts of land to the Williamses without the mobile home restriction in the deed. The Williamses proceeded to put a mobile home on their property. Because of this, Guebert requested that the chancellor enter a declaratory judgment finding that a common development scheme existed and that the tracts sold by deeds without the land use restrictions be subject to that scheme. The Williamses moved for summary judgment, and the chancellor granted the motion and dismissed the Williamses from the action.

The appeal now brought by Guebert is defective. Neither the abstract nor the record reflects that the chancellor took any action with respect to the remaining seven parties named as defendants in Guebert’s lawsuit. Thus, it cannot be determined whether Guebert’s claims against the remaining defendants are still viable. What is clear is that based on what we have before us, the claims against those parties are still pending and have not been dismissed. The chancellor’s order, as a consequence, is not a final judgment in compliance with Arkansas Rule of Civil Procedure 54(b). Furthermore, there is no 54(b) certification in the chancellor’s order. We have stated in no uncertain terms what is required in a Rule 54(b) certification:

Ordinarily, an order granting a motion to dismiss to one party to a lawsuit, which involves multiple parties and multiple claims, is not an appealable order. Arkansas Dep’t of Human Serv. v. Farris, 309 Ark. 575, 832 S.W.2d 482 (1992); Sherman v. G & H Transportation, Inc., 287 Ark. 25, 695 S.W.2d 832 (1985). An appeal from such an order, however, is permissible under Rule 54(b) when the trial court directs the entry of a final judgment as to one or more of the claims or parties and makes express findings that there is no just reason to delay the appeal. Wallner v. McDonald, 308 Ark. 590, 825 S.W.2d 265 (1992). In order to determine that there is no just reason for delay, the trial court must find that a likelihood of hardship or injustice will occur unless there is an immediate appeal and must set forth facts to support its conclusion. Barr v. Richardson, 314 Ark. 294, 862 S.W.2d 253 (1993); Wallner v. McDon ald, supra; Franklin v. OSCA, Inc., 308 Ark. 409, 825 S.W.2d 812 (1992). That factual underpinnings supporting a Rule 54(b) certification may exist in the record is not enough. They must be set out in the trial court’s order. Franklin v. OSCA, Inc., supra.

Davis v. Wausau Ins. Co., 315 Ark. 330, 332, 867 S.W.2d 444, 445-446 (1993); see also Barnhart v. City of Fayetteville, 316 Ark. 742, 875 S.W.2d 79 (1994); Wormald U.S., Inc. v. Cedar Chemical Corp., 316 Ark. 434, 873 S.W.2d 152 (1994).

In sum, claims against seven parties remain, and there was no Rule 54(b) certification in the chancellor’s order. Accordingly, the appeal must be dismissed.

Appeal dismissed.


author: Robert L. Brown,

text:
    George Lemoin RHOADES v. STATE of Arkansas
    CR 93-1096
    888 S.W.2d 654
    Supreme Court of Arkansas
    Opinion delivered December 12, 1994

      Ronald Marc Chaufty and Garnet E. Norwood, for appellant.

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

   Robert L. Brown,

Justice. Appellant George Lemoin Rhoades appeals his capital murder convictions and sentence to life imprisonment without parole. He raises one point for reversal. He asserts that he was arrested without reasonable cause which tainted any subsequent statement he gave to law enforcement officers and the fruits of that statement. The point raised has no merit, and we affirm.

Bobby Friend and his wife, Charlene Friend, were beaten and stabbed to death in the bedroom of their home in DeQueen early Sunday morning on March 22, 1992. Their bodies were found two days later when Bobby Friend failed to report to work, and the DeQueen Police Department was notified. When police officers arrived at the Friend residence during the late afternoon on Tuesday, March 24, 1992, they found, in addition to the bodies, that Charlene Friend’s car was missing and that the living room was in disarray, which suggested a burglary.

Other investigating agencies were called to assist, including the Sevier County Sheriff’s Department and the Arkansas State Police. The following information was garnered before Rhoades’s arrest the following day:

1. Rhoades, then age 18, had been seen in DeQueen on Saturday night, March 21, 1992, in the company of Michael Friend, the victims’ adopted son; Tim Oliver; and Ricky Dawson.

2. Charlene Friend’s car was found in front of William Bacon’s home in Hot Springs where Rhoades was living.

3. It appears that Leslie Chiasson may have told police prior to Rhoades’s arrest that Rhoades had asked him on Saturday night, March 21,1992, in DeQueen whether he wanted to help kill Michael Friend’s mother. Rhoades also stated to Chiasson that someone was going to die that night and made a slashing motion across his throat as he said it. The foster parent of Leslie Chiasson, Shirley Pell, told police something about Leslie’s contact with Rhoades on March 24, 1992 — the night the bodies were found.

4. Investigator Hayes McWhirter of the Arkansas State Police stopped Rhoades and Tim Oliver at about 3:00 a.m. on March 25, 1992, in Hot Springs. The two boys voluntarily went with McWhirter to the Hot Springs Police Department where they made statements after being advised of their Miranda rights. The two statements were not incriminating but differed in their details. The boys were released at approximately 4:00 a.m. that same morning.

5. The crime scene at the Friends’ home was inconsistent with a burglary in that items normally stolen in a burglary were not taken.

6. Michael Friend was arrested in Hot Springs later in the day on March 25, 1992. He was transported to DeQueen where he made a statement implicating Rhoades in the double homicide.

Rhoades was arrested at about 8:30 p.m. in Hot Springs on March 25, 1992, and then transported to the Howard County Jail in Nashville. The next morning which was Wednesday, March 26, 1992, he gave an incriminating statement detailing his participation in the murders to Arkansas State Police Investigator Jerry Reed. Investigator Reed described Rhoades as alert when he gave the statement. The statement reads:

Mike was making plans for about six months to kill his father because he had been so mean to him and his mother. We had planned before we left Hot Springs to kill them both Saturday night. We got the box cutter, the sworn (sic), and a round stick, from my house before we left. Mike went by Matt’s house Saturday night and told him, someone from Little Rock was after us and he needed a weapon. So Matt gave him a brown and black wood baseball bat. When we left the Pizza Hut, I was driving, Mike was in the front, Tim and Ricky were in the back. We drove past the house, turned around and came back by the house and parked about 20 yards past the neighbors house, and walked back to the house. Mike calmed the dogs down by talking to them because he knew them. We all entered the house. Mike was leading the way. I said, “Someone needs to turn the scanner down.” I believe there was some light in the kitchen already on. We then went into the bedroom. Mike was to stand by Mr. Friend, because he wanted to make sure he didn’t have time to get the gun out of the bed. I was to stand beside Mrs. Friend. Tim was to be by Mike and Ricky was to turn the lights on. We all were to make a hissing noise when we were ready. I never made the noise. I started to back out and walked back toward the door, and Mike told me, “To get back over there.” So I did. The light came on and the first thing I did was cut her throat. She sat up and I pushed her back down. She turned over on her stomach. The box cutter had broke. When she raised up she called out Michael’s name. At first, Mike, Tim, and Ricky were all on Mr. Friend beating and sticking him while I was cutting Mrs. Friend. When we got through, Mrs. Friend was still moving so I got the bat and hit her once on the head and back. Before we left Mike said, “We needed to make it look like a robbery.” So he took some money from her purse and his billfold. Approximately $7.00. As we were going out Tim threw the VCR on the floor and I kicked the coffee table over and pushed some tapes off on the floor. We then left. Me and Mike in the Conquest, and Ricky and Tim in my truck. We stopped them once and told them we had to stop for gas. I had picked up the money from the bed when Mike had taken it from the purse and billfold. Ricky then gave me another dollar. We stopped at E-Z Mart. I pumped the gas and Mike went inside to pay and wash his hands. After that we started toward Hot Springs. Somewhere around Dierks, we stopped and threw the sword, the box cutter, and my clothes and gloves out in the woods. We travelled a little bit further and I told Mike, “That Tim and Ricky weren’t as cool as we were so maybe I need to drive my truck with Tim and calm him down, and he could get Ricky with him to calm him down.” The first time she raised up, she grabbed the phone, and I took it away from her, and Ricky hung it up. Ricky was hitting her several times with the bat.

Two motions to suppress this statement were filed by Rhoades before trial. Both raised the absence of probable cause to arrest Rhoades before the statement and violation of his Miranda rights. The trial court denied the motions. The statement by Rhoades and the evidence leading up to his arrest were then introduced by the State during his five-day trial, which commenced on February 16, 1993. Other proof presented included the testimony of Ricky Dawson, who was also charged with the double homicide and who gave a detailed description of the events, and the testimony of Eugene Dinger, a convicted felon, who testified about Rhoades’s description of the murders in prison. Jennifer Horton, age 16, also testified that Rhoades told her about plans to kill Bobby Friend before the murders because he was mean to Michael and that after the murders he said that he “slit the woman’s throat.”

A verdict of guilty on both capital murders was returned, and Rhoades was sentenced to life imprisonment without parole.

Rhoades contends that his arrest was the outgrowth of evidence obtained as a result of Michael Friend’s illegal arrest. See Friend v. State, 315 Ark. 143, 865 S.W.2d 275 (1993). More precisely, Rhoades urges that information exacted from Michael Friend following his illegal arrest could in no wise be part of the reasonable cause leading to his own arrest.

We first observe that there is some confusion as to whether Rhoades was arrested without a warrant on March 25, 1992. Rhoades contends in his brief that there was no arrest warrant and that a bench warrant was not issued until after he was in custody. The record, however, suggests that Lieutenant Mark Thamer of the Hot Springs Police Department was faxed an arrest warrant for Rhoades by State Police Investigator Hayes McWhirter, and following that, he assigned detectives from the department to take Rhoades into custody.

Even if Rhoades’s arrest was warrantless, the State contends that Rhoades has no standing to raise Michael Friend’s tainted statement due to a violation of Friend’s Fourth Amendment rights. See Wong Sun v. United States, 371 U.S. 471 (1962). We will not address the argument of an arrest tainted by Friend’s statement, however, because the argument was not made to the trial court as part of Rhoades’s motions to suppress. The two motions filed sought to suppress Rhoades’s statement on the basis that it resulted from an arrest without “probable cause” and due to Miranda deficiencies. No mention of a tainted statement from Michael Friend is made and no argument to that effect exists in the record. It is well established that we will not address issues raised for the first time on appeal. Hewitt v. State, 317 Ark. 362, 877 S.W.2d 577 (1994); Terry v. State, 309 Ark. 64, 826 S.W.2d 817 (1992).

To the extent that Rhoades is also contending that no reasonable cause existed for his arrest, that argument is patently groundless. The various law enforcement agencies working on this case had ample reason to arrest Rhoades, as is already detailed in this opinion, and though the trial court did not give its reasons for denying the two motions to suppress, a considerable basis existed for doing so.

The record in this case has been reviewed to determine whether other reversible error exists pursuant to Supreme Court Rule 4-3(h).

Affirmed.


author: Per Curiam.

text:
    Craig HILLARD v. STATE of Arkansas
    CR 94-238
    888 S.W.2d 663
    Supreme Court of Arkansas
    Opinion delivered December 12, 1994

      Charles E. Halbert, Jr., for appellant.
    No response.
   Per Curiam.

Charles E. Halbert, Jr., counsel for appellant, has asked permission to file a belated brief. The record was lodged on March 8,1994. On April 8 an extension to June 16 was granted and on June 14 another extension to October 14 was granted. The latter was labeled “final extension.” To date no brief has been filed.

We grant the motion. Because the breach of professional responsibility is clear, a copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Kimberly L. SMITH v. STATE of Arkansas
    CR 94-1300
    888 S.W.2d 663
    Supreme Court of Arkansas
    Opinion delivered December 12, 1994

      P. J. Maddox-Cook, for appellant.
    No response.
   Per Curiam.

Kimberly L. Smith was convicted of first degree murder and is currently serving a forty-year sentence in prison. Her attorney, P. J. Maddox-Cook, failed to give timely notice of appeal. The attorney has acknowledged that it was her responsibility to give a timely notice of appeal and the failure to do so was entirely her fault. Accordingly, we grant the motion for belated appeal and direct that a copy of this order be filed with the Committee on Professional Conduct. See Young v. State, 318 Ark. 235, 884 S.W.2d 591 (1994) & In re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979).


text:
    Jennings and Mitzi OSBORNE v. Arleta POWER, Dick Wallace, Joe H. Smith, Dennis Lucy, Tom Fiser and Catherine Cockrill
    93-1303
    890 S.W.2d 574
    Supreme Court of Arkansas
    Opinion delivered December 16, 1994

      The Perroni Law Firm, P.A., by: Samuel A. Perroni, for appellants.

      Wilson, Engstrom, Corum & Dudley, by: Gary D. Corum, for appellees.
   Per Curiam.

The Osbornes seek a motion for stay of mandate, stating their intentions to file a petition for a writ of certiorari to review this court’s final decree. On December 5, 1994, this court, on de novo review, enjoined the Osbornes from placing a massive Christmas light display on and about their home. Following a comparable situation and case in Louisiana, we specifically directed the Osbornes to reduce substantially (1) the size and extravagance of the display at and about their home so the display will not attract large crowds to the residential neighborhood and (2) the volume of any sound accompanying the display so it is not audible from within the closest homes of neighbors.

The Osbornes’ motion for stay alleges they intend to reassert their defense, rejected here, that the Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb (RFRA), prevents enjoinment of their Christmas lights as a common-law nuisance. They propose to raise the following three points under the RFRA:

(1) whether the RFRA allows a state court to substitute a common-law reasonableness nuisance standard for the compelling interest/least restrictive test prescribed by the RFRA;
(2) whether the interest in preventing traffic congestion is sufficiently compelling to justify enjoining the religious exercise of displaying Christmas lights; and
(3) whether this court’s extremely broad and vaguely-worded injunction satisfies the least-restrictive means test of the RFRA.

As discussed in our December 5 opinion, we view this case as one involving a public and private nuisance, not religious beliefs, and the RFRA is simply not controlling. Nor do we find merit in the Osbornes’ suggestion that the court’s injunction is extremely broad and vaguely worded. This court’s directives as reiterated above are clear and unambiguous and are the same as those applied in Rodrigue v. Copeland, 475 So.2d 1071 (La. 1985), where the parties evidenced no subsequent concerns as to what was meant by the Louisiana Supreme Court. In sum, massive commercial lighting displays generated by commercial transformers are not appropriate in quiet residential neighborhoods and violate express provisions of bills of assurances. We envision little merit in the foregoing points as a basis for an entitlement to certiorari.

For the foregoing reasons, we deny the Osbornes’ motion for stay. We repeat that this court reviewed the cause de novo and enjoined the nuisance. While we believe the immediate injunction is short, concise and readily understandable, the parties may present any good faith inquiries to the chancellor to whom this case has been remanded for enforcement.


author: Jack Holt, Jr., Chief Justice.

text:
    CAMPBELL SOUP COMPANY v. Kathy Jo GATES
    94-340
    889 S.W.2d 750
    Supreme Court of Arkansas
    Opinion delivered December 19, 1994

      Wright, Lindsey & Jennings, by: Roger A. Glasgow and Troy A. Price, for appellant.

      Lightle, Beebe, Raney, Bell & Hudgins, by: A. Watson Bell, for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, Campbell Soup Company, seeks reversal of a judgment in favor of the appellee, Kathy Jo Gates, in a product liability case involving the presence of insect larvae in a Campbell’s packaged food item. Campbell Soup argues that, under the evidence in the case, the trial court erred in (1) instructing the jurors that, with regard to proof of a defective condition, they could infer a defect if they found that in the normal course of events no injury would have occurred in the absence of some defect and (2) refusing to grant its motions for directed verdict. Because the evidence of Campbell’s liability was not substantial enough to warrant the trial court submitting the matter to the jury, we reverse and dismiss the judgment. It is unnecessary for us to consider the question of the jury instruction.

Facts

On November 4, 1991, the appellant, Kathy Jo Gates, and her mother, Mrs. Katharin Ann Gates, went shopping for groceries in the Warehouse Foods store in Searcy, Arkansas. Mrs. Gates purchased ten packages of chicken-flavored Campbell’s Ramen Noodle Soup. The product consisted of dry noodles formed into block-like shapes and sealed, along with flavoring packets, in individually wrapped plastic packages. According to Mrs. Gates, she noticed nothing wrong with the packages.

After they returned home, Mrs. Gates, according to her testimony at trial, took the noodle packages out of the shopping bag, opened three of them, broke up the noodles, poured them into a sauce pan containing boiling water, and added the seasoning. When the noodles were ready, Mrs. Gates served her daughter a bowl. Kathy Jo, having eaten one helping, took a second bowl.

Kathy Jo described what she discovered after having consumed about half of the second bowl as “maggots” or “[ljittle bitty worms with a black head.” She said that “[a] lot” of them were “attached to the noodles.” Kathy Jo stated that some of the vermin “were alive and some were dead” and that she saw some of them “crawling around in the noodles.” After discovering the “worms,” Kathy Jo “screamed and ran to the bathroom throwing up.” According to her testimony, she vomited “about four or five times.” Kathy Jo’s mother, Mrs. Gates, testified that “I’ve bought macaroni and put it in and little bugs would boil to the top and I would throw them out. I’ve never saw anything like this before. . . . They was alive on the plate.”

Mrs. Gates drove her daughter to the White County Memorial Hospital emergency room. On the way, Kathy Jo vomited twice. When she arrived at the hospital, Kathy Jo displayed a plate containing the noodles and insect larvae and requested that her stomach be pumped, but she was advised that “it would be better just [to] throw it up because it wasn’t going to hurt me.”

Upon leaving the hospital after about ten minutes, Mrs. Gates and Kathy Jo, acting on the suggestion of the examining physician, drove to the Warehouse Foods store where they had purchased the noodles. Kathy Jo remained in the car, and Mrs. Gates went in the store, where she spoke with John Lane, the manager, and showed him the insect larvae. Mr. Lane phoned representatives of Associated Grocers and Campbell Soup Company and subsequently removed the Ramen Noodle Soup display. Many of the noodle packages were later opened and inspected, but no evidence of insect larvae was detected, and the product was eventually returned to stock at Warehouse Foods and sold. Campbell Soup Company received no other reports of noodle contamination. The “worms” were later identified as Trogoderm beetle larvae.

On December 1, 1992, Kathy Jo Gates filed a complaint in the White County Circuit Court against Campbell Soup Company and Town and Country Grocers of Fredericktown, Missouri, doing business as Warehouse Foods of Searcy, Arkansas. She alleged negligence on the part of Campbell Soup Company in connection with the production, manufacture, and distribution of the packaging of Campbell’s Ramen Noodle Soup. She further alleged negligence on the part of Warehouse Foods in its failure adequately to test and inspect the Campbell’s Ramen Noodle Soup before distribution and sale. Ms. Gates also alleged a breach of warranty under Ark. Code Ann. § 4-2-315 (Repl. 1991) and a breach of warranty of merchantability under Ark. Code Ann. § 4-2-314 (Repl. 1991) against Campbell Soup Company and Warehouse Foods. The theory of strict liability set forth in Ark. Code Ann. § 4-2-318 (Repl. 1991) was asserted, and damages were sought in the amount of $49,000, including $11,962.71 in medical expenses. Ms. Gates alleged that, as a consequence of the negligence, breach of warranties, and strict liability on the part of Campbell Soup Company and Warehouse Foods, she suffered a relapse and aggravation of a pre-existing eating disorder, which required hospitalization and psychological treatment, experienced weight loss, and received an unfavorable prognosis for the successful treatment of the pre-existing condition.

Warehouse Foods filed an answer and a cross-claim against Campbell Soup Company on December 22, 1992. Campbell Soup Company, in its answer filed on December 30, 1992, adopted all defenses available under the Arkansas Product Liability Act of 1979, codified at Ark. Code Ann. §§ 16-116-101 — 16-116-107 (1987), including the assertions that the product was neither in a defective condition nor unreasonably dangerous when it left the manufacturer’s hands and that any defective condition resulted from subsequent alteration, change, improper storage and maintenance, or abnormal use by Ms. Gates, Warehouse Foods, or an unknown third party.

The suit was tried on August 31, 1993, in the White County Circuit Court. At the close of Ms. Gates’s case, Campbell Soup Company moved for a directed verdict on the grounds that no evidence of fault on the part of Campbell Soup Company had been presented and that there was no basis on which the jury could infer any defect in the product at the time it left the manufacturer’s hands. Counsel for Campbell Soup also pointed that Ms. Gates’s proposed jury instruction on this point was improper because it would permit a jury to infer a defect in a product if they should find that, in the normal course of events, no injury would have occurred in the absence of some defect. The trial court denied the motion, saying, “Common experience tells me that [the issue of whether] it would not have occurred in the absence of a defect is a jury question.” At the close of all the evidence, the trial court denied renewed motions for directed verdict. It refused, however, to allow the case to go to the jury on a negligence theory. Instead, the jury was instructed on breach of warranty and strict liability.

The jury returned a verdict on interrogatories, finding fault on the part of all parties and allocating it at forty percent for Campbell Soup, forty percent for Warehouse Foods, and twenty percent for Kathy Jo Gates. Damages were assessed at $30,000. Judgment was entered jointly and severally against the defendants on September 7, 1993, in the amount of $24,000. Although both defendants filed notices of appeal, Warehouse Foods withdrew its separately filed notice. Satisfaction of judgment with respect to Warehouse Foods was entered on December 7, 1993. Meanwhile, Campbell Soup Company pursued this appeal.

Directed verdict

Campbell Soup Company preserved the issue of sufficiency of the evidence by making a motion for a directed verdiet at the end of Ms. Gates’s case and then renewing it at the close of all the evidence. Ark. R. Civ. R 50(e). In reviewing the denial of a motion for a directed verdict, this court views the evidence in the light most favorable to the party against whom the verdict is sought and gives that evidence its highest probative value, taking into account all reasonable inferences deducible from it. Arkansas Kraft v. Cottrell, 313 Ark. 465, 855 S.W.2d 333 (1993). The motion should be granted only when the evidence is so insubstantial as to require the jury’s verdict for the party to be set aside. Wal-Mart Stores, Inc. v. Kelton, 305 Ark. 173, 806 S.W.2d 373 (1991).

If there is any substantial evidence to support the verdict, this court must affirm the trial court’s denial. Arkansas Kraft v. Cottrell, supra. Substantial evidence is not present where, regarding cause, the jury is merely given a choice of possibilities requiring conjecture or surmise. Id. In other words, a showing of possible causes of an injury, as opposed to probable causes, does not constitiute substantial evidence. Id.

In a product liability case, a plaintiff must prove that the product in question was in a defective condition at the time it left the hands of the particular seller. Yielding v. Chrysler Motor Co., 301 Ark. 271, 783 S.W.2d 353 (1990). An essential element to be established under the strict liability criteria of Ark. Code Ann. § 4-86-102(a) (Repl. 1991) is that “[t]he product was supplied by [the supplier] in a defective condition which rendered it unreasonably dangerous.” In the absence of direct proof that the product is defective because of a manufacturing flaw, the plaintiff must negate the other possible causes of failure of the product for which the defendant would not be responsible in order to raise a reasonable inference that the dangerous condition existed while the product was still in the control of the defendant. Nationwide Rentals Co. v. Carter, 298 Ark. 97, 765 S.W.2d 931 (1989); Higgins v. General Motors Corp., 250 Ark. 551, 465 S.W.2d 898 (1971).

Most of our relevant strict-liability cases are concerned with automobiles, but the general principles are analogous to the present situation. For example, we held in Yielding v. Chrysler Motor Co., supra, that there was no substantial evidence to induce the mind to pass beyond conjecture that a defective transmission clamp which contributed to an accident was flawed when it left the manufacturer’s control. Moreover, we noted that there was evidence that a third party had disassembled the transmission after delivery and prior to the accident. Similarly, in Higgins v. General Motors Corp., supra, a case involving an accident that occurred when an automobile suddenly shot across an intersection when the driver stepped on the accelerator, we held that the evidence regarding defective brake hoses did not “sufficiently negate the possibility that the rupture resulted from normal wear and tear or discount other various contingencies which may have caused the rupture for which the seller could not be held responsible under a theory of strict liability.” 250 Ark. at 556, 465 S.W.2d at 900.

In Williams v. Smart Chevrolet Co., 292 Ark. 376, 383, 730 S.W.2d 479, 483 (1987), a case involving a car door suddenly opening and the plaintiff falling out, we affirmed the trial court’s granting of directed verdicts in favor of Smart Chevrolet Company, the dealer, and General Motors Corporation, the manufacturer, observing that “we cannot say that when a car door suddenly flies open while the car is travelling on a gravel road at 10 miles per hour common experience tells us that it could not have happened absent a [manufacturer’s] defect.” Hence, this court examined the evidence to determine to what extent the plaintiff had negated other causes of the accident and held that the proof neither went beyond suspicion or conjecture nor raised a reasonable inference that the defect was the cause of the accident.

In the present case, there is no dispute that Trogoderm beetle larvae were found among the noodle packets purchased by Mrs. Gates. Still, the mere fact that the larvae were present in the packaged and prepared product is simply not enough to assign liability to the manufacturer. It must be shown that the product was in a defective condition at the time it left the care, custody, and control of Campbell Soup. Ms. Gates and her mother testified that live and dead insect larvae were found among the cooked noodles, arguing, in effect, that the mere fact of their presence is sufficient to hold Campbell Soup Company strictly liable for the contamination. Yet no other testimony established a direct link to Campbell Soup Company apart from identifying it as the manufacturer.

Indeed, Robert B. Callaway, a research microbiologist employed by the National Food Processors Association, who identified the vermin as Trogoderm beetle larvae and was familiar with the Ramen noodle manufacturing process, testified that the noodles are steamed for thirty-two seconds at 212 degrees Fahrenheit, folded into blocks, then deep fried for thirty-two seconds at 330 degrees Fahrenheit, cooled for about 100 seconds at about 100 degrees Fahrenheit, and then immediately packaged. The larvae, Mr. Calloway stated, would not be able to survive either the steaming process or the deep frying as they cannot survive temperatures exceeding 140 degrees Fahrenheit. He testified that he examined an unopened package with two small entry holes of the Trogoderm larvae stage that contained five cast Trogoderm skins. The larvae, the witness noted, can get into such a package in less than an hour if the package is in close proximity to beetle infestation. Such testimony, of course, is properly subject to evaluation by the jury in its deliberations and is not, in any event, critical to our decision on appeal.

Instead, the key factor is the objective chronology of the manufacture, shipment, distribution, and sale of the particular packets of noodles infested with insect larvae. The following dates and events are of crucial importance:

September 21, 1991 — the product was manufactured in a Campbell Soup Company plant in Industry, California.
September 23-26, 1991 — the product was shipped on pallets via trucks by a distributor (not named as a party to the tort action) to storage sites in Lima, Ohio; Paris, Texas; and Bronsanik, Louisiana.
October 29, 1991 — Warehouse Foods of Searcy, Arkansas, received the cases of Ramen noodles from its supplier, Associated Grocers of Springfield, Missouri.
November 4, 1991 — Mrs. Gates purchased ten packages of the product from Warehouse Foods and prepared the noodles.

Simply put, Ms. Gates did not produce substantial evidence that the insect larvae were present in the noodles when the package left the Campbell Soup Company plant. More than a month elapsed between the dates of manufacture and purchase, during which period the product was transported by unnamed carriers from the plant in California to an intermediate storage site and then to the distributor in Missouri, who delivered it to Warehouse Foods in Searcy, where it was in stock for approximately one week prior to November 4, 1991. The larvae could have entered the packages at any point beyond manufacture — i.e., during shipment, storage, or display on the shelves of the grocery store. (Our standard of review of the denial of directed verdict motions requires us to discount the possibility that the packages could have become infested under the consumer’s control.)

The evidence presented by Ms. Gates in her effort to assign liability to Campbell Soup Company was, simply put, not substantial enough to negate the existence of other possibilities of sources of contamination and therefore requires the setting aside of the jury’s verdict. We hold that the trial court should have granted Campbell Soup Company’s motions for directed verdict.

Reversed and dismissed.


author: Robert H. Dudley, Justice.

text:
    Jerry K. ALLRED and Karen K. Allred, Husband and Wife v. Shannon DEMUTH
    93-1011
    890 S.W.2d 578
    Supreme Court of Arkansas
    Opinion delivered December 19, 1994
    [Rehearing denied January 23, 1995.]

      Raymond C. Smith, P.A., for appellants.

      Charles E. Hanks, for appellee.

      Roaf, J., not participating.

   Robert H. Dudley, Justice.

Shannon Demuth filed suit against Jerry and Karen Allred for fraudulently concealing structural defects in a home she purchased from them. The jury returned a plaintiff’s verdict in the amounts of $50,000 compensatory damages and $24,000 punitive damages. The defendants appeal. We affirm.

The defendants first argue that the evidence is insufficient to support the verdict. Our standard of review in determining sufficiency of the evidence is well settled: (1) The evidence is viewed in a light most favorable to appellee; (2) the jury’s finding will be upheld if there is any substantial evidence to support it; and (3) substantial evidence is that of sufficient force and character to induce the mind of the factfinder past speculation and conjecture. Derrick v. Mexico Chiquito, Inc., 307 Ark. 217, 819 S.W.2d 4 (1991).

In order to prove the tort of fraud, the plaintiff was required to prove (1) a false representation of a material fact; (2) knowledge or belief on the part of the defendants that the representation was false; (3) an intent to induce the plaintiff to act or to refrain from acting in reliance on the misrepresentation; (4) justifiable reliance upon representation on the part of the plaintiffs in taking action or refraining from it; and (5) resulting damages. M.F.A. v. Keller, 274 Ark. 281, 623 S.W.2d 841 (1981). An inference of fraud may be drawn by circumstantial evidence just as with any other fact. Moore Ford Co. v. Smith, 270 Ark. 340, 604 S.W.2d 943 (1980). While fraud may be established by circumstantial evidence, the circumstances must be so strong and well connected as to clearly show fraud. Interstate Freeway Serv., Inc. v. Houser, 310 Ark. 302, 835 S.W.2d 872 (1992).

Plaintiff offered evidence to show that defendants bought the home before construction was complete; that they were the first occupants of the home; that they were in exclusive possession and control of the home until they sold it to plaintiff in 1986; that defendants did not disclose to plaintiff that the house had any problems; that plaintiff inspected the house and could not see any defects; that in 1988 both new and old cracks were discovered in the interior and exterior of the home, in the foundation, and in the driveway; that the movement of the foundation had been so great that one could have heard the house moving; that the structural defects would have begun showing up within one year of construction; that the cracks had been covered and patched with caulk and painted over in a color that hid them; that the caulking and painting was not a part of the construction; that the caulking and painting could serve only a cosmetic purpose by hiding the cracks; and that it would cost $50,000 to repair the home. From this proof and its reasonable inferences, the jury could have concluded that the cracks occurred when defendants lived in the house; that the cracks were caulked, sealed, and painted in order to conceal them; that defendants concealed the cracks in order to induce someone to purchase the home; and that plaintiff purchased the home and consequently suffered damages. In sum, the proof was sufficient to establish the tort of fraud.

Defendant Jerry Allred denied knowing of the problems or concealing them, but it was within the jury’s province to believe or disbelieve his testimony, and to determine the weight, if any, to accord it. Druckenmiller v. Cluff, 316 Ark. 517, 873 S.W.2d 526 (1994).

Defendants next contend that the trial court erred in giving an instruction on punitive damages because the plaintiff did not specifically request such damages in her testimony. The contention is without merit. An instruction on punitive damages may be given when the evidence shows that a party likely “knew or ought to have known, in the light of the surrounding circumstances, that his conduct would naturally or probably result in injury and that he continued such conduct in reckless disregard of the consequences from which malice could be inferred.” Dongary Holstein Leasing, Inc. v. Covington, 293 Ark. 112, 116, 732 S.W.2d 465, 467 (1987). A plaintiff is entitled to the instruction when the pleadings ask for punitive damages and evidence is introduced showing deliberate misrepresentation or deceit. City NatT Bank v. Goodwin, 301 Ark. 182, 783 S.W.2d 335 (1990).

The defendants’ next point of appeal involves the amount of the verdicts. The jury returned separate verdicts finding Jerry Allred liable for $25,000 compensatory damages and $12,000 punitive damages, and finding Karen Allred liable for $25,000 compensatory damages and $12,000 punitive damages. The trial court entered a judgment against both defendants, jointly and severally, for $50,000 compensatory damages and $24,000 punitive damages. In this point of appeal, the defendants argue that the trial court should have entered only one judgment for $25,000 and $12,000.

There was testimony that the damages amounted to $50,000. The jury was instructed to decide each defendant’s liability as if it were a separate lawsuit. There were separate verdicts finding each defendant equally liable. In determining that the total damages were $50,000 the trial court correctly followed our case of C & L Trucking, Inc. v. Allen, 285 Ark. 243, 686 S.W.2d 399 (1985). Additionally, a joint tortfeasor is one of “two or more persons jointly or severally liable in tort for the same injury to person or property. . . .” Ark. Code Ann. § 16-61-201 (1987) (emphasis added); see also W. M. Bashlin Co. v. Smith, 211 Ark. 406, 643 S.W.2d 536 (1982). It is undisputed that defendants were being sued jointly and severally for the same fraud and damage. A jury may apportion liability among joint tortfeasors, but this is only for the purpose of contribution and indemnity among the tortfeasors and does not affect the rights of a plaintiff to recover the whole amount from each. Ark. Code Ann. § 16-61-202(4) (1987). The apportioned awards are still to be aggregated. Allen, 285 Ark. at 248, 686 S.W.2d at 402. Finally, the general rule is that joint tortfeasors may be jointly and severally liable for punitive damages. Missouri Pac. R.R. Co. v. Arkansas Sheriff’s Boys’ Ranch, 280 Ark. 53, 655 S.W.2d 389 (1983).

The defendants’ final point of appeal involves a ruling made during closing argument. Karen Allred did not testify at trial. In closing plaintiff’s counsel argued, “You would think [Karen’s] testimony was vital to [defendants’] case, wouldn’t you? You think she might have been afraid of committing perjury?” Defendants’ counsel objected, and the trial court overruled the objection. Defendants assign the ruling as error.

The failure of a party to testify in a civil case about facts peculiarly within his or her knowledge is a circumstance which may be looked upon with suspicion by a trier of fact. May v. Barg & Co., 276 Ark. 199, 633 S.W.2d 376 (1982). The failure to testify gives rise to the presumption that the testimony would have been against the party’s interest. Starns v. Andre, 243 Ark. 712, 421 S.W.2d 616 (1967). Counsel may argue every plausible inference which could be drawn from the testimony. Abraham v. State, 274 Ark. 506, 625 S.W.2d 518 (1981). A trial court has wide discretion in controlling, supervising, and determining the propriety of counsels’ arguments, and an appellate court will not reverse absent a showing of manifest abuse. Brown v. State, 316 Ark. 724, 875 S.W.2d 828 (1994); Wal-mart Stores, Inc. v. Yarbrough, 284 Ark. 345, 681 S.W.2d 359 (1984).

Affirmed.


author: Steele Hays, Justice. David Newbern, Justice,

text:
    CARROLL ELECTRIC COOPERATIVE CORPORATION v. Joe BENSON and Amelia Benson
    94-593
    889 S.W.2d 756
    Supreme Court of Arkansas
    Opinion delivered December 19, 1994

      Everett, Mars & Stills, by: David D. Stills and John C. Everett, for appellant.

      James N. McCord, for appellees.
   Steele Hays, Justice.

This is the second appeal regarding whether appellant Carroll Electric Cooperative Corporation (Carroll Electric) had a right pursuant to a 1962 easement to extend existing power lines across property of the appellees Joe and Amelia Benson (Bensons). In Carroll Elec. Coop. Corp. v. Benson, 312 Ark. 183, 848 S.W.2d 413 (1993), we held the trial court erred in determining that Carroll Electric could not extend its power line under a 1962 easement but remanded to the trial court for a determination of the reasonableness of the route chosen for the line as well as for further proceedings consistent with the opinion. On remand, the chancellor concluded the overhead power line in its present location was not reasonable and directed the power line be placed underground. We find the chancellor erred in directing the power line be placed underground.

The facts, as outlined in Carroll I, supra, are as follows:

On May 12, 1962, the appellees’ predecessor in title, Arrow Land Company, Inc., granted Carroll Electric the following described right-of-way easement:

KNOW ALL MEN BY THESE PRESENTS, that we Arrow Land Company, Inc. . . .do hereby grant unto the Carroll Electric Cooperative Corporation . . . the right to enter upon the lands of the undersigned . . . and to place, construct, operate, repair, maintain, convert to higher or lower voltage, to extend lines for other service upon the above lands and to extend lines from services on this land to and for service to other property and services beyond the above described lands, [and replace thereon, in, under or upon all streets, roads, highways abutting said lands] and overhead or underground electric transmission or distribution line or cable, such overhead lines or underground cable to serve as distribution or transmission line or both and to excavate, to cut, and trim trees and shrubbery to the extent necessary to lay cable and to keep clean said electric lines or cable, and to cut down from time to time all dead, weak or dangerous trees that are tall enough to strike wires in falling.
The undersigned agree that all poles, wires, and other facilities, including any main service entrance equipment, installed on the above described lands at the Cooperative’s expense shall remain the property of the Cooperative, removable at the option of the Cooperative upon termination of service to or on said lands.
In granting this easement, it is understood that all pole locations, only a single pole and appurtenances will be used, and that the location of the poles will be such as to form the least possible interference to farm operations, so long as it does not materially increase the cost of construction. [Emphasis added.]

Three years later, in 1965, this property, Pointe Clear Heights Subdivision, was platted. In 1967, in accordance with this right-of-way easement, Carroll Electric constructed an overhead electric line into the center of the Bensons’ property to serve the residence now owned by the Ben-sons.

The Bensons filed this lawsuit on June 29, 1992 after Carroll Electric entered their land and cut down numerous large trees to clearcut a path for the construction of an overhead electric transmission line on the west side of their property to provide electric power to a residence on property in Pointe Clear Heights Subdivision owned by Mr. Larry Cox. Carroll Electric placed several tall poles within the clearcut path in preparation for stringing the overhead transmission line across the Bensons’ property. Carroll Electric did not confer with the Bensons prior to cutting the path or placing poles nor did it give the Bensons an opportunity to “delimit” (lay out the boundary of) the easement. The Bensons approached the electric company and offered to permit underground wiring but the company refused.

The Bensons filed a complaint in Benton County Chancery Court requesting a preliminary as well as a permanent injunction enjoining Carroll Electric from further constructing overhead transmission lines across their property. The chancery court granted the preliminary injunction. Thereafter, the Bensons amended their complaint to ask for a mandatory injunction ordering Carroll Electric to remove all new poles and new overhead electric lines placed on the clearcut path across their property. Both sides filed motions for summary judgment, and the matter was submitted to the court. After considering the stipulated exhibits and facts, the chancellor granted the Bensons’ countermotion for summary judgment.

On remand, the chancellor concluded the question for the court is: “Is the location of the right-of-way selected by Carroll reasonable to both the dominant and servient estates, considering the condition of the place, the purpose for which it was intended and the acts of the grantee.” The chancellor found when all the facts are considered “equity demands I must come to the conclusion that the overhead powerline in its present location is not reasonable.” However, he concluded the present route is a reasonable route for an underground power line.

Appellant Carroll Electric contends this Court remanded the case solely for a “determination of the reasonableness of the route chosen for the line.” Consequently, Carroll Electric submits the trial court erred when it balanced the equities between the parties and ruled on the rights of the Bensons to delimit the easement. Specifically, the appellant focuses on a sentence in the chancellor’s order where he states: “[t]he real argument between the parties is whether Carroll Electric should be required to place the powerline underground and pay for it.”

It is well established that, upon remand, a chancery court has no power to enter any decree except that directed by the Supreme Court, and it has no power to change or extend the mandate of the Supreme Court. Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979). The directions of the Supreme Court upon reversal and remand in an equity case are the law of the case and the guide for the lower court in entering the decree. Id.

In Carroll I, we found “Carroll Electric was within its rights to extend this electric line across the west side of the Bensons’ property to service the Cox property.” However, immediately following that conclusion, we wrote:

Although Carroll Electric is entitled to extend its power lines pursuant to the existing 1962 easement, this right-of-way easement entitles both the grantee and the grantor to a convenient, reasonable, and accessible way. Fulcher v. Dierks Lumber & Coal Co., 164 Ark. 261, 261 S.W. 645 (1924). The location of the undefined right-of-way must be reasonable to both the dominant and servient estates, considering the condition of the place, the purposes for which it was intended, and the acts of the grantee. Id. Further, the owner of the servient estate has the right to delimit the easement. Id. .. .

A review of the abstract reveals that the parties attempted to stipulate as to the reasonableness of the exact route but ultimately agreed with each other and with the court that this issue should be reserved depending upon the trial court’s decision regarding the status of the easement. As the trial court made no further findings in this regard, we remand this issue to the trial court as well as for further proceedings consistent with this opinion.

We remanded the case to the trial court for a determination of the reasonableness of the route. In determining whether the route was reasonable for both the grantee and grantor, we find the chancellor properly examined the impact of the route. This included the relative hardships on the two parties — the balancing of the equities. Also, we recognized in Carroll I that the owner of the servient estate has the right to delimit the easement, thus the Bensons’ right to delimit is a factor to be considered in determining the reasonableness of the route.

However, the chancellor exceeded our mandate and decision by dictating the power line must be placed underground. Any questions regarding the validity and the terms of the 1962 lease agreement were conclusively decided. In Carroll I, we upheld the validity of the 1962 easement agreement and held the line extension is clearly permitted. The 1962 easement explicitly provides for “overhead or underground electric transmission or distribution line or cable.” Thus, Carroll Electric has the right to use either overhead or underground power lines. According to the terms of the agreement, it is their decision.

The chancellor concluded the Bensons have the “right to delimit in the vertical plan and therefore reasonably demand that the powerline be placed underground along the route selected by Carroll’'’ (Emphasis supplied.) In Fulcher, supra, the Court, in discussing a “floating” easement, stated:

Where such right-of-way is reserved, or expressly granted and not defined, the owner of the servient estate, in the first instance, has the right to delimit it, and, in the event of his failure to do so, it may be selected by the grantee of the easement; but, in either case, the location must be a reasonable one, taking into consideration the interest and convenience of both the dominant and servient estates.

(Emphasis supplied.) In the instant case, the terms of the easement, i.e. an easement for underground or overhead electrical lines, were defined. The portion of the easement which is undefined is the specific route on which the lines will cross the Ben-sons’ property.

As to that issue, the “right-of-way easement entitles both the grantee and the grantor to a convenient, reasonable, and accessible way.” Carroll I. The role of the chancellor must be to ascertain whether the selected route is a convenient, reasonable, and accessible way for both the grantee and grantor. If the route selected by Carroll Electric does not satisfy these requirements, the chancellor must ascertain a satisfactory route across the Ben-sons’ property because Carroll Electric is entitled to extend its line across the west side of the Bensons’ property under the 1962 easement. Carroll I.

In a comparable case, Ark. Valley Elec. Coop. Corp. v. Brinks, 240 Ark. 381, 400 S.W.2d 278 (1966), this Court relied upon Fulcher, supra, to comment in dicta that a trial court would have been justified in determining the location of a right-of-way. Appellant Arkansas Valley Electric Cooperative Corporation held a 100 foot wide easement across the Brinks’ property; however, the location of the right-of-way was not described in the written agreement. The trial court found there was a “meeting of the minds” as to the definite location of the right-of-way. However, we stated the trial court would have been justified in placing the right-of-way on the north side of the property because the property owners’ damages would be greater if the right-of-way ran through or near the middle of their property. In addition, we noted there was no showing that the appellant would be seriously damaged if the line was on the north side.

In sum, Carroll Electric is entitled to extend its line across the west side of the Bensons’ property under the 1962 easement. Carroll I. Further, the 1962 easement explicitly allows Carroll Electric to use overhead power lines. Thus, the chancellor simply must ascertain the definite location of a route across the Ben-sons’ property which is a convenient, reasonable, and accessible way for both the grantee and grantor.

Reversed and remanded.

Newbern and Brown, JJ., dissent.

David Newbern, Justice,

dissenting. As the majority opinion points out, an underground route is contemplated by the 1962 easement. Nothing in the opinion suggests there is any restriction preventing such a route. The Chancellor did as we directed in our earlier opinion and chose what appeared to him to be the most reasonable route under the circumstances.

I respectfully dissent.

Brown, J., joins in this dissent.

      The bracketed segment was omitted inadvertently from the opinion.


author: Steele Hays, Justice.

text:
    William and Roberta COOPRIDER v. SECURITY BANK
    94-179
    890 S.W.2d 240
    Supreme Court of Arkansas
    Opinion delivered December 19, 1994
    [Rehearing denied January 23, 1995.]

      Donald J. Adams, for appellants.

      Walker, Campbell, Campbell & Crawford, by: Gail Inman Campbell, for appellee.

      Roaf, J., not participating.

   Steele Hays, Justice.

This is a usury case. William and Roberta Cooprider, prevailed on their claim below that they had been charged a usurious interest rate by Security Bank, appellee. However, the Chancellor assessed no penalties against the bank and the Coopriders appeal. We affirm the trial court.

The loan in question was originally executed on April 21, 1989, for $78,500.00 and secured by real and personal property. The interest rate was 12%, the legal rate allowed at that time. One of the conditions for the loan obligated the Coopriders to purchase title insurance.

When the debt matured at the end of twelve months, the loan was renewed by a note executed on April 23, 1990, for $74,755.96, at 12% interest. The federal discount rate had been lowered by that time and the bank was unsure whether it could charge the 12% rate of the original loan, or was limited to the current rate of 10 1/2%.

The loan officer, Judith Meek, testified that Mr. Cooprider signed the renewal note but objected to the interest rate of 12%. According to Meek, because of the confusion on the rate, the bank decided to be cautious and lower the rate to 10 1/2%. She testified that Mr. Cooprider was never charged the 12% rate because the bank entered a 10 1/2 percent rate in its computer. As each payment was made, the computer deducted only the legal interest rate of 10 1/2 percent and applied the remainder of the payment to principal.

The Coopriders defaulted on the note and the bank brought suit. The Coopriders counterclaimed contending that under the usury provision of the Arkansas Constitution, art. 9, § 13, the charge for title insurance on the original note rendered the rate usurious and the rate on the renewal note was itself usurious. The chancellor held the title insurance premium did not render the loan usurious, but that the renewal note was usurious. However the chancellor declined to assess a penalty against the bank.

Appellants first argue the trial court erred in holding the title insurance factor did not render the note usurious. Payment of the premium went to Boone County Abstract Company and the charge for the premium was listed as one of the closing costs appellants were required to pay. Appellants claim the $215.00 charge must be added to the maximum rate of interest already charged, and when it is, the interest rate is usurious. We disagree.

The charge for title insurance or title examination (in earlier cases) has traditionally been considered one of several legitimate charges by a lender that are not treated as a cloak for usury. Richardson v. Shattuck, 57 Ark. 347, 21 S.W.2d 478 (1893) (title examination); Matthews v. Georgia State Savings Assn., 132 Ark. 219, 200 S.W. 30 (1918) (title examination); Brown v. Fertz, 189 Ark. 411, 72 S.W.2d 765 (1934) (title examination); Winston v. Personal Finance Co., 220 Ark. 580, 249 S.W.2d 315 (1952) (title examination or insurance payments to third parties); Harris v. Guaranty Financial Corp., 244 Ark. 218, 424 S.W.2d 355 (1968) (title insurance); United-Bilt Homes v. Teague, 245 Ark. 132, 432 S.W.2d 1 (1968) (title insurance); Lockhart v. GMAC, 252 Ark. 878, 482 S.W.2d 350 (1972) (title insurance); Arkansas Farm Products v. Ford Motor Credit, 267 Ark. 653, 590 S.W.2d 48 (1979) (title insurance); Johnson v. Federal National Mortgage Assn., 271 Ark. 588, 609 S.W.2d 60 (1980) (title insurance).

These costs are not invariably excluded but have been traditionally upheld if they are reasonable, made in good faith and are paid to a third party for something appropriate to establishing or protecting the lender’s security. Lockhart v. GMAC, supra. The burden of proof is upon the one asserting the defense of usury and the defense must be proved by clear and convincing evidence. Johnson v. Federal National Mortgage, supra.

Appellants have not met that burden of proof. There is no dispute that the premiums were paid to a third party, and no proof or argument was made below as to the reasonableness of the charge or the bank’s good faith. The chancellor’s ruling on this point is affirmed.

Second, appellants argue the chancellor erred by not imposing a penalty against the bank. The chancellor found the renewal note usurious because the terms of the loan agreement itself were usurious. Appellants rely on Dillon v. Resolution Trust Corp., 306 Ark. 173, 811 S.W.2d 765 (1991). In Dillon, we said the test of whether the note is usurious is judged as of the time the note was made. Appellants earnestly insist that language must govern in this case. But, as always, it must be read in context, and in Dillon it is clear that by both the terms of the note and the allocation of payments made pursuant to the note, a usurious rate of interest was being collected from the borrower. That did not occur in this case.

The chancellor found the constitutional provision governing usury did not provide for a penalty in this case. That provision states:

All such contracts having a rate of interest in excess of the maximum lawful rate shall be void as to the unpaid interest. A person who has paid interest in excess of the maximum lawful rate may recover, within the time provided by law, twice the amount of interest paid. [Our emphasis.]

Article 9, § 13, Arkansas Constitution.

The appellants requested double recovery for the interest “paid” on the renewal note, i.e., as per the rate stated in the loan agreement. The chancellor disagreed and stated in his decree: “The evidence is clear that the only amount which was paid was in fact at the lawful rate.” We believe that was correct.

The plain meaning of the language requires payment of excess interest in order to recover twice the amount paid. Here the bank applied appellants’ payment to only the legal rate of interest and the remainder to the principal. Therefore no interest was paid in excess of the maximum rate.

Affirmed.

Dudley, J., concurs.


author: Steele Hays, Justice. Jack Holt, Jr., Chief Justice,

text:
    Billy Ray JOHNSON v. STATE of Arkansas
    CR 94-615
    889 S.W.2d 764
    Supreme Court of Arkansas
    Opinion delivered December 19, 1994

      Appellant, pro se.

      Winston Bryant, Att’y Gen., by: Clementine Infante, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

This case is before us on review of a decision by the Arkansas Court of Appeals, following our granting of the state’s petition for certiorari. We accepted review because the en banc court of appeals’ vote to deny a rehearing was three-to-three and the case requires resolution for the correct and uniform administration of the criminal law. A single point on review is presented by the State — whether the trial court was correct in refusing to suppress evidence obtained during an investigatory stop of appellant Billy Ray Johnson’s vehicle. We conclude that the trial court ruled correctly and we affirm.

On March 2, 1994, the court of appeals handed down an unpublished decision in Johnson v. State, No. CACR 93-497, in which a three-member panel reversed Billy Ray Johnson’s conviction on a charge of possession of methamphetamine with intent to deliver, on the premise that the trial court should have granted his motion to suppress evidence because the investigatory stop of his vehicle and the subsequent search and seizure were predicated on an anonymous tip. Johnson had entered a conditional guilty plea, contingent on the outcome of his appeal of the trial court’s denial of the motion to suppress, pursuant to A.R.Cr.P. Rule 24.3(b).

The state requested a rehearing, which was denied by a three-to-three division of the court of appeals sitting en banc. See Johnson v. State, 46 Ark. App. 67, 876 S.W.2d 607 (1994). The state filed a petition for certiorari, citing Ferguson v. Order of United Commercial Travelers of America, 307 Ark. 452, 821 S.W.2d 30 (1991). In that case we held that:

We have traditionally granted certiorari for the review of tie-vote court of appeals’ decisions that affirm a judgment of the trial court. This was the first case in which we were asked to grant certiorari because of a tie vote denying rehearing. We concluded that the same policy should be applicable in both situations and granted certiorari.

307 Ark. at 453, 821 S.W.2d at 31.

This court granted the petition for certiorari on June 6, 1994. When we review a three-to-three decision of the court of appeals under Ark. Sup. Ct. R. l-2(f), we consider the case as though it had originally been filed in this court. Maloy v. Stuttgart Memorial Hospital, 316 Ark. 447, 872 S.W.2d 401 (1994).

The facts presented to the trial court, with all presumptions favorable to the trial court’s ruling, Friend v. State, 315 Ark. 143, 865 S.W.2d 275 (1993), are these: Officer Terry Grizzle had twenty-one years service with the Fort Smith Police Department, fourteen years in narcotics. He testified the department received an anonymous call advising that Billy Ray Johnson and Angela Highsmith were in a particular unit of the Stonewall Jackson Inn in Fort Smith selling crank (amphetamine and methamphetamine), using a blue van to make deliveries. Officers Grizzle, Howard and Sullivan immediately set up surveillance and when Johnson and Highsmith came out of the motel and drove off in the van, the officers made an investigative stop. Johnson readily agreed to a search of the van and a quantity of hidden crank was discovered. Grizzle had known Johnson for a number of years and had a rapport with him. He knew Johnson to have previous drug arrests and convictions. Officer Howard’s testimony was that both Johnson and Highsmith had been arrested before for drug violations and the officers had received information within the past ninety days “off and on” that Johnson was involved with other individuals in drug sales. In this review we engage in all reasonable presumptions consistent with the ruling of the trial court. Hudson v. State, 316 Ark. 360, 872 S.W.2d 68 (1994).

The question before this court is: Was the trial court clearly wrong in deciding that the foregoing circumstances in their entirety were sufficient to arouse in trained police officers a reasonable suspicion of criminal activity? We believe that, given the totality of the circumstances, an investigative stop is precisely what should be expected of police officers. The search in this case was indisputably consented to by Billy Ray Johnson, hence, we are dealing with a mere stop, the least intrusive interference known to law enforcement. See 3 La Fave, Search and Seizure, § 9.3(e) at 486 (1987). Where the felonies or threats to the public safety are concerned, the government’s interest in solving the crime and promptly detaining the suspect outweighs the individual’s right to be free from a brief stop and detention. United States v. Hensley, 469 U.S. 221 (1985).

The landmark case dealing with investigative stops is Terry v. Ohio, 392 U.S. 1 (1968). Terry had appealed a conviction for carrying a concealed weapon. He was observed by a detective about 2:30 one afternoon. The officer’s interest in Terry and two companions was aroused because they walked back and forth in a particular block peering in a store window and then conferring at the corner. The officer became suspicious and believed the men were “casing” the store for a robbery. He approached the men, identified himself as a police officer, and asked for their names; he was not acquainted with any of the three by name or sight and had received no information concerning them from any source. When the men “mumbled something” in response to his question the officer grabbed Terry, “spun him around” to frisk him and found a pistol in his overcoat pocket. The Supreme Court of the United States affirmed a decision of the Supreme Court of Ohio that the revolver was properly admitted in evidence, holding that the- officer had reasonable grounds to believe that Terry was armed and dangerous and that his behavior justified an investigative stop. The court noted that the suspects had gone through a series of acts, while innocent in themselves, when taken together warranted further investigation. And while the officer could not rely entirely on his intuition, he could draw on his experience in observing people under a variety of circumstances.

The Arkansas Court of Appeals has recognized that judicial oversight in this area involves a balancing of the nature and extent of the intrusion against the attendant governmental interest. Miller v. State, 21 Ark. App. 10 (1987). Moreover, citing Terry, supra, and Sibron v. New York, 392 U.S. 40 (1968), the Court of Appeals has noted that a stop is “a far lesser intrusion than a frisk,” as occurred in Terry v. Ohio, supra. Leopold v. State, 15 Ark. App. 292, 692 S.W.2d 780 (1985). Building on that rationale, it seems that the stop in Terry v. Ohio, based solely on the act of gazing into store windows, arguably what they were designed for, with no prior criminal history known to the officer, more than validates an investigatory stop in this case based on direct information, albeit anonymous, of drug dealing by an individual known to the police to have a history of felony drug convictions and arrests. Unless the officers must entirely disregard the anonymous report of the alleged activity by Johnson and Highsmith, the totality of their information palpably arouses a reasonable suspicion. If an anonymous report can, with other circumstances, equate with probable cause, as in Illinois v. Gates, 462 U.S. 213 (1982), surely it can equate with reasonable suspicion, given the circumstances of this case. We conclude the police action in this case was based on a reasonable suspicion and was a permissible intrusion by means of an investigative stop. Alabama v. White, 496 U.S. 325 (1990); Lambert v. State, 34 Ark. App. 227, 808 S.W.2d 788 (1991).

The remarks of the Supreme Court in Adams v. Williams, 407 U.S. 143 (1972) are apropos to the case at hand:

The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be more reasonable in light of the facts known to the officer at the time.

For the reasons stated, the findings of the trial court were not clearly erroneous and, accordingly, the judgment appealed from is affirmed.

Holt, C.J., Dudley and Newbern, JJ., dissent.

Jack Holt, Jr., Chief Justice,

dissenting. I must respectfully dissent from the majority opinion. Because this case is so strongly fact-driven, it is necessary to set forth the circumstances leading to Billy Ray Johnson’s arrest at some length.

On October 6, 1992, the Fort Smith Police Department received a telephone call from an unknown informant. The caller stated that Billy Ray Johnson and a companion, Angela High-smith, were selling crank (the street name for amphetamine and methamphetamine) in Room 56 at the Stonewall Jackson Inn. The anonymous tipster also described a blue van in the motel parking lot near the room. There was no indication of how the unidentified caller came into possession of the information.

Virginia Ross, a police department secretary who took the call, verbally notified Sergeant Steven Howard, who then relayed the information to Sergeant Terry Grizzle. Sergeants Howard and Grizzle, along with Detective Patricia Sullivan, immediately drove in an unmarked car to the motel parking lot, where they found the blue van and observed Highsmith leave a motel room and enter the van on the driver’s side. A few minutes later, the Narcotics Unit officers saw Johnson leave a motel room and get into the van on the passenger’s side. (No evidence appeared of record concerning the motel room number.) The two suspects then left the parking lot, and the officers called for a marked police car to stop them, without, however, giving a particular reason.

At the hearing on Johnson’s motion to suppress evidence, Sergeant Grizzle explained that the traffic stop was ordered because of the anonymous tip the police department had received. When the Narcotics Unit officers arrived, the patrol officer already had both Johnson and Highsmith out of the van. Johnson gave Sergeant Grizzle permission to search the van, and Detective Sullivan proceeded to examine the interior. In the meantime, the officers learned that Highsmith’s driver’s license had been suspended and that there were several warrants outstanding on her. At that point, Highsmith was placed under arrest.

In the course of her search of the vehicle, Detective Sullivan discovered a clear plastic bowl with a snap-on lid containing an off-white, chunky, powdery substance that Sergeant Grizzle recognized as methamphetamine — an identification subsequently confirmed by testing. Johnson and Highsmith were then arrested on drug charges.

Following a hearing, conducted on November 4, 1992, on Johnson’s motion to suppress the seized contraband, the circuit court ruled that the officers had a sufficient basis for the investigatory stop and therefore found the evidence admissible. On January 15, 1993, Johnson entered a conditional plea of guilty to the Class Y felony of possession of amphetamine with intent to deliver, reserving the right to appeal the outcome of the hearing on his motion to suppress the seized evidence. The circuit court entered judgment on January 21,1993, sentencing Johnson to twenty years imprisonment, with ten years suspended. The majority opinion describes the route by which the case reached this court.

In its brief, the State argues that the anonymous informant had provided the police with specific information about Johnson’s activities and that the officers had past experience with him. The combination of past and present knowledge, the State contends, was sufficient to constitute reasonable suspicion warranting the investigatory stop of the van.

Under Ark. R. Crim. P. 3.1, a law enforcement officer may, in the lawful performance of his duties, “stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit... a felony.. . .” (Emphasis added.) This rule incorporates the holding of the United States Supreme Court in Terry v. Ohio, 392 U.S. 1 (1968).

“Reasonable suspicion” is defined in Ark. R. Crim. P. 2.1 as:

a suspicion based on facts or circumstances which of themselves do not give rise to the probable cause requisite to justify a lawful arrest, but which give rise to more than a bare suspicion; that is, a suspicion that is reasonable as opposed to an imaginary or purely conjectural suspicion.

Reasonable suspicion entails a consideration of the totality of the circumstances and the existence of particularized, specific reasons for a belief that a person may be engaged in criminal activity. Stout v. State, 304 Ark. 610, 804 S.W.2d 686 (1991).

In a case dealing with an anonymous telephone tip, the United States Supreme Court, in Alabama v. White, 496 U.S. 325 (1990), placed special emphasis on independent corroboration by the police of information supplied by the unknown informant. The Court stressed, in particular, the value of predictions made by the informant regarding future actions of third parties because they “demonstrated inside information — a special familiarity with respondent’s affair.” 496 U.S. at 332.

During direct examination at the hearing on the motion to suppress, Sergeant Grizzle noted that the police had previously “received information about Mr. Johnson that he was actually and actively dealing methamphetamine, and foreign amphetamine, crank, in Fort Smith and the surrounding area.” He averred that he and Johnson “have been involved with each other, so to speak, for the last four or five years” and that he had “been involved with arresting court procedures on Mr. Johnson on several different occasions.” Without specifying a time frame, Sergeant Grizzle, on cross-examination, stated that “[w]e had been getting information on Billy Ray for quite some time.”

On direct examination, Sergeant Howard explained that part of the basis for police suspicion of Johnson was attributable to the fact that “[bjoth Mr. Johnson and Ms. Highsmith had been arrested before for drug violations, and then we also had current intelligence that they were both involved once again in the dis: tribution of amphetamines.” He commented that “[apparently Sergeant Grizzle and Billy Ray Johnson have known each other off and on for a number of years, and they seemed to have the best rapport with each other. . . .”

During cross-examination at the hearing, Sergeant Howard conceded that the information which served as a justification for the investigatory stop was an anonymous tip and that the informant’s reliability was problematic:

Q: Was the reason for the stop because of the suspected, because of the information that you had received from your secretary?
A: Yes, sir.
Q: Now, normally, you classify individuals as reliable confidential informants or just, I guess, anonymous tips. This was an anonymous tip?
A: Yes, sir.
Q: So, you couldn’t get a search warrant.
A: I’m sure we probably couldn’t have. I’m saying I’m sure we couldn’t have. It was not attempted, so I —
Q: This individual, you had no reason to believe they were reliable?
A: I wouldn’t have tried to get a search warrant. I’ll put it that way.

When asked to describe what he meant by his earlier statement that the police department had “current intelligence,” Sergeant Howard responded that:

I would say within the past ninety days we had been off and on receiving information that Mr. Johnson was involved with Benny Roam, with several individuals in that area, some Sharp boys, a gentleman named Smithson, another boy from down in — I mean, just off and on —and some of this information was from what I would consider reliable informants.

At best, one can only assume that the police surmised that these “individuals” were engaged “just off and on” in some sort of unlawful activity. It is significant that Sergeant Howard conceded that the information did not specify whether Johnson and the others were “hanging out together” or whether drugs were involved or whether a confidential informant had made a drug purchase. Although invited to respond in a specific manner, the most he could say, somewhat vaguely, was that “the information was that they were involved.”

Thus, what the police had available was an anonymous telephone tip of uncertain reliability and information that may have been as much as three months old. To focus, as the majority does, upon knowledge of past arrests extending back over a period of years or indefinite information provided “within the past ninety days” is to ignore the requirements relating to anonymous tips. Sergeant Howard admitted that the information was not sufficiently reliable to enable the police to obtain a search warrant. Further, no prediction was offered by the unknown tipster about Johnson’s future behavior. Obviously missing, then, was any sort of special familiarity with Johnson’s affairs. See Alabama v. White, supra.

While reasonable suspicion is on a lower rung of certitude than probable cause, Tillman v. State, 275 Ark. 275, 630 S.W.2d 5 (1982), cert. denied, 459 U.S. 1201 (1983), a threshold still must be crossed to justify an investigatory stop and search. Simply put, the State, with its anonymous tip and imprecise, presumptively stale corroborative information, failed to cross the threshold of reasonable suspicion.

I would, therefore, reverse the judgment of the circuit court.

Dudley and Newbern, JJ„ join in this dissent.