author: Robert L. Brown, Justice. Tom Glaze, Justice,

text:
    Arnell WILLIS, et al. v. Barbara KING, et al.

    02-988
    98 S.W.3d 427
    Supreme Court of Arkansas
    Opinion delivered February 20, 2003

      John W. Walker, P.A., by: John W. Walker, and Terrence Cain, for appellants.

      Rieves, Rubens & Mayton, by: Kent J. Rubens; and Roscopf & Roscopf, P.A., by: Charles B. Roscopf, for appellee Barbara King.

      Mark Pryor, Att’y Gen., by: JejfR. Priebe, Ass’t Att’y Gen., for appellee Arkansas State Board of Election Commissioners: Earnest Brown, Robert Louis Carruthers, Ernest E. Edwards, Toni Phillips, and Sharon Priest.
    L. Ashley Higgins, P.A., by: L. Ashley Higgins, for appellee Phillips County Election Commissioners Joann Smith, Maxine Miller, and Joe White, and Phillips County Clerk Linda White.
   Robert L. Brown, Justice.

Appellant Arnell Willis opposed Appellee ice. King in the race for District 13 Representative to the Arkansas House of Representatives. The Phillips County Election Commissioners certified that Ms. King won the Democratic Preferential Primary for that position by a vote of 2,667 to 2,576. According to a complaint filed by Mr. Willis contesting the election, Ms. King’s margin of victory was secured by serious violations of the Election Code, including persons voting more than once, forged bahots, and manipulation of absentee ballots in Ms. King’s favor. Mr. Willis filed his complaint in timely fashion, but he failed to attach a verification of the facts contained in the complaint within the statutory time limit.

The relevant dates are these: On May 31, 2002, the Phillips County Election Commissioners certified the election returns in the preferential primary, including the results of the King/Willis race. Twenty days later, on June 20, 2002, Mr. Willis filed his complaint contesting the election. Four days after that, on June 24, 2002, Mr. Willis filed an affidavit, verifying the truth of the allegations made in his complaint.

The defendants, now appellees, in the case ■— Ms. King, the Phillips County Election Commissioners, the Phillips County Circuit Clerk, and the Arkansas State Election Commissioners — uniformly moved to dismiss Mr. Willis’s complaint for lack of subject-matter jurisdiction. They asserted that the Election Code required an affidavit verifying the allegations of the complaint be filed within twenty days of the election’s certification and that Mr. Willis was four days late with his verification. The circuit court agreed and dismissed the complaint for lack of subject-matter jurisdiction.

In his appeal from the circuit court’s dismissal order, Mr. Willis contends that he substantially complied with the statutory mandate and that this should suffice. We disagree. Because it lies within the province of this court to interpret a statute, we review a circuit court’s construction of the law de novo. E.g., Hodges v. Huckabee, 338 Ark. 454, 995 S.W.2d 341 (1999). A circuit court’s interpretation of the law will be accepted on appeal, however, unless it is demonstrated to be erroneous. Id.

This case involves statutory construction of Ark. Code Ann. § 7-5-801 (Repl. 2000), the relevant subsections of which read as follows:

(a) A right of action is conferred on any candidate to contest the certification of nomination or the certificate of vote as made by the appropriate officials in any election.
(d) The complaint shall be verified by the affidavit of the contestant to the effect that he believes the statements to be true and shall be filed within twenty (20) days of the certification complained of.

The cardinal rule of statutory construction is to give effect to the legislative will. E.g., Ozark Gas Pipeline Corp. v. Arkansas Pub. Serv. Comm’n, 342 Ark. 591, 29 S.W.3d 730 (2000). When a statute is unambiguous on its face, the court will look to the plain and ordinary meaning of the text, and in such cases, there is no need to resort to the canons of statutory construction. E.g., R.N. v. J.M., 347 Ark. 203, 61 S.W.3d 149 (2001).

A losing candidate in an election has no common-law right or constitutional right to contest the outcome of an election, since the right is purely statutory. See e.g., Brewer v. Fergus 348 Ark. 577, 79 S.W.3d 831 (2002). The deadlines set out in § 7-5-801 quoted above have long been held to be both mandatory and jurisdictional. See, e.g., McCastlain v. Elmore, 340 Ark. 365, 10 S.W.3d 835 (2000) (citing Jenkins v. Bogard, 335 Ark. 334, 980 S.W.2d 270 (1998); Gay v. Brooks, 251 Ark. 565, 473 S.W.2d 441 (1971); Moore v. Childers, 186 Ark. 563, 54 S.W.2d 409 (1932); Gower v. Johnson, 173 Ark. 120, 292 S.W. 382) (1927)). This court stricdy construes jurisdictional requirements in election contests. McCastlain v. Elmore, supra.

Mr. Willis urges this court to hold that a candidate substantially complies with § 7-5-801, when the affidavit is filed within a reasonable time after the twenty-day deadline and when no party is prejudiced by the tardy filing. Mr. Willis asserts in his brief that “[i]t is an open question what degree of compliance satisfies the affidavit requirement of Section 7-5-801 (d)” and argues all cases of this court before 1969 (the effective date of the present § 7-5-801) are not apposite.

Next, Mr. Willis argues that the trial court in McCastlain v. Elmore, supra, upheld the sufficiency of the contestant’s timely-filed jurat, which read “Subscribed and sworn to before me this 2nd day of December, 1998,” and that this supports his contention that substantial compliance is the appropriate standard of review. He offers that this court, on appeal, upheld that jurat sub silentio and that, because the trial court “refused to exalt form over substance” in that case, we should do the same in the case before us. He further claims that the Election Code is designed to discourage frivolous filings, protect the continuity of the administration of government, and uphold the integrity of elected offices. As a final point, he contends that the purpose of the verification is to prevent frivolous contests, not to defeat meritorious contests on hypertechnical grounds.

We turn then to our analysis of § 7-5-801 and its legislative history. Section 7-5-801 is a codification of Act 465 of 1969, but the statutory mandate for timeliness has a significant history in Arkansas. The precursor to § 7-5-801 first took the form of an initiative act in 1917. See Initiative Act No. 1, 1917 Ark. Acts 2287. Initiative Act No. 1 was codified in the Crawford and Moses Digest and read in pertinent part as follows:

A right of action is hereby conferred on any candidate to contest the certification of nomination or the certification of vote as made by the county central committee. The action shall be brought in civil court. . . . The complaint shall be supported by the affidavit of at least ten reputable citizens and shall be filed within ten days of the certification complained of, if the complaint is against the certification in one county, and within twenty days if against the certification in more than one county. The complaint shall be answered within ten days.

Crawford & Moses Digest § 3772 (1921). A statute containing the same language is reported in Pope’s Digest of 1937 at § 4738. That statute was amended by Act 386 of 1947. See Act 386, 1947 Ark. Acts 884 (codified at Ark. Stat. Ann. § 3-245 (1947)). The new act provided that an affidavit of the contestant in lieu of ten reputable citizens be filed and that the deadline be changed from ten days to twenty days. See id. In 1969, the deadline provision was reenacted as part of a reorganization of the Election Code. See Act 465 of 1969, 1969 Ark. Acts 1195. The substance of the deadline provision was unchanged. See id. art. 10 § 1 (codified at Ark. Stat. Ann. § 3-1001 (Supp. 1969)). The statute was later codified in its present form as § 7-5-801. This legislative history is persuasive proof of the fact that the timeliness of election-contest complaints has been an ongoing concern of the General Assembly since at least 1917 and that the verification of the alleged facts has been a mandated component of election-contest complaints.

The General Assembly has also made it abundantly clear that the concern for timely resolution of election contests is not unique to the filing of the complaint but that expedited deadlines and consideration of election contests permeate the Election Code. See Ark. Code Ann. § 7-5-801 (e) (Repl. 2000) (response due within twenty days of the complaint being filed); Ark. Code Ann. § 7-5-810 (Repl. 2000) (seven-day time period for filing an appeal); Ark. Code Ann. § 7-5-802 (Repl. 2000) (requiring the circuit court to “proceed at once” with election cases); Ark. Code Ann. § 7-5-804 (Repl. 2000) (stating it is the duty of the Supreme Court to advance election cases). Nothing in the record or abstract indicates that Mr. Willis ever moved this court to expedite this appeal, which explains why this appeal is being considered in February of 2003 rather than in a more expedited manner. While it is the duty of this court to advance appeals of election contests, it is incumbent on the contestants to bring the matter to this court’s attention by motion. See Ark. Sup. Ct. R. 6-1 (b) (“[T]hat the pleader shall inform the Clerk’s office of the need for an emergency or accelerated hearing by the Court.”). Cf. Dean v. Williams, 339 Ark. 263, 264, 5 S.W.3d 37, 38 (1999) (per curiam) (“[I]n expediting this case we can promptly decide the . . . pressing issues that have been brought to our attention.”) (emphasis supplied). That was not done.

In interpreting § 7-5-801, this court has written that the purpose of the statute is to “furnish a summary remedy and to secure a speedy trial.” McCastlain, 340 Ark. at 368, 10 S.W.3d at 836 (quoting Gower, 173 Ark. at 122, 292 S.W. at 383). We have further emphasized that the Election Code was designed to resolve election disputes expeditiously and to avoid election-contest “fishing expeditions.” McCastlain, 340 Ark. at 369, 10 S.W.3d at 837 (quoting Cartwright v. Carney, 286 Ark. 121, 690 S.W.2d 716 (1985)).

It is patently clear to this court that Mr. Willis failed to comply with the plain terms of § 7-5-801 (d). The unambiguous text of the statute, the legislative history, and our common law foreclose any construction of § 7-5-801 (d) that would allow “substantial compliance” to be our standard of review.

Mr Willis relies on his theory of public policy, but, in point of fact, Mr. Willis’s standard of substantial compliance would create movable deadlines based on the inexact criterion of lack of prejudice. This runs directly contrary to our announced goal and the legislature’s enacted public policy of resolving election contests expeditiously and summarily.

We also observe that Mr. Willis’s cited authority, McCastlain v. Elmore, supra, has no pertinence to the proposition he advances. The question presented in McCastlain was whether the savings statute applied to election cases. The McCastlain court held that it did not, and we specifically declined to address the sufficiency of the plaintiff’s jurat. See McCastlain, 340 Ark. at 368, 10 S.W.3d at 836 (“Because we find merit in Ms. McCastlain’s first assertion of error [the savings statute question], we need not address her second argument [sufficiency of the jurat].”). Mr. Willis argues that the trial court in McCastlain concluded that the language of the jurat was specific enough to satisfy the verification requirement and contends that the language of his verification is much more specific than that of the McCastlain plaintiffs. But a decision on the language of the jurat by a trial court in another case has no precedential value for this court’s decision on timeliness.

As a final point, we turn to the venerable case of Logan v. Russell, 136 Ark. 217, 206 S.W. 131 (1918). In Logan, the parties were rival candidates for the Democratic nomination to the position of county clerk. Logan lost and filed a complaint contesting the election. We said in our rendition of the facts: “The complaint and the accompanying statement of the ten citizens were filed in the office of the clerk of the court within ten days after the result of the primary election was duly certified, but the statement of said citizens was not sworn to until after the expiration of that time.” Logan, 136 Ark. at 219, 206 S.W. at 131. The defendant demurred, and the trial court granted the demurrer. We upheld the trial court’s decision:

“There is, we think, no escape from the conclusion that the language of the statute with reference to time of filing the complaint is mandatory, and not merely directory, and that the same requirement applies to the accompanying affidavits. The plain purpose of the framers of the statute was to require expedition in the commencement and preparation of contests of primary elections, and we do not feel at liberty to disregard the language of the statute or lessen its binding effect by declaring it to be merely directory.”

Id. at 221-222, 206 S.W. at 132-133. The Logan decision is on all fours with the case at hand. We decline the invitation by Mr. Willis to adopt a new standard and to depart from our abundant case law on this point. The circuit court was without subject-matter jurisdiction to hear Mr. Willis’s complaint.

Affirmed.

Glaze, J., concurs.

Tom Glaze, Justice,

concurring. The majority opinion ce, correctly followed this court’s precedent in affirming the trial court’s dismissal of Mr. Arnell Willis’s election-contest complaint. The majority opinion reviews election-contest cases that emphasize that the Election Code was designed to resolve election disputes expeditiously. For these reasons, I am compelled to join the majority’s decision.

What disturbs me are the serious allegations made by Mr. Willis, but, as the result of a procedural bar, he will be unable to offer proof as to their validity. Mr. Willis has alleged that illegal and fraudulent votes were cast for his opponent, Barbara King. He specified the names of persons who voted twice, persons who voted, although they were not registered, and persons who were involved in fraudulent absentee voting. Mr. Willis will not be able to prove these charges in this election-contest proceeding. However, I point out that, while Mr. Willis may not now present his case, the Phillips County Clerk, Linda White, in her answer to Willis’s complaint, admitted that, according to her records, the persons listed in paragraph 6 of the complaint may have voted twice. She also admitted that the ten persons listed in the complaint had voted without being registered. The three Phillips County Board of Election Commissioners made the same admissions. When there are serious allegations of election irregularities and fraud, there should be a remedy available (in addition to a candidate’s election-contest procedures) to investigate and determine if such charges are valid. Too often election contests by candidates are lost due to expedited, complex rules that make up our Election Code. While the Code contains penalties for misdemeanor and felony election offenses, Ark. Code Ann. §§ 7-1-103 and 7-1-104 (Supp. 2001), respectively, such violations are commonly not investigated or charged. The General Assembly should address this problem and provide a remedy that is not burdened with time constraints almost impossible to meet.

The Election Code does provide a remedy set out in Ark. Code Ann. § 7-5-807(a) (Repl. 2000), whereby ten reputable citizens of any county may file a complaint in circuit court within twenty days after the election, alleging that illegal or fraudulent votes were cast. The circuit court judge, if in his opinion there is good ground to believe the charges to be true, shall convene a grand jury. Although the time limitation of twenty days after the election may be too short, the General Assembly could rectify that problem by lengthening the filing deadline and making other revisions which would make the law more effective and available to the voters. Allegations such as the ones being sworn to here should be resolved so that Arkansas voters can be assured that their elections are honest, but, when not, the voters are availed a remedy by which they can root out illegal and fraudulent voting practices.

       Mr. Willis also sued the Phillips County Circuit Clerk, the Phillips County Election Commissioners, and the members of the Arkansas State Board of Election Commissioners individually by name, but he voluntarily dismissed those claims. The State in its brief correctly points out that the name of the state board is “Arkansas State Board of Election Commissioners.”

         Ms. White denied that she did not determine whether the persons voted twice.


source: Caselaw Access Project

author: Jim Hannah, Justice.

license: Public Domain

text:
    Reggie CHAVERS, Mark Chavers, and Chavers Welding & Construction v. EPSCO, INC.
    02-866
    98 S.W.3d 421
    Supreme Court of Arkansas
    Opinion delivered February 20, 2003

      Lyons, Emerson & Cone, P.L.C., by: Scott Emerson, for appellants Reggie and Mark Chavers.

      W. Scott Davidson, for appellee.
   Jim Hannah, Justice.

Appellants Reggie Chavers and Mark Chavers appeal a judgment entered against them by the Craighead County Circuit Court. Reggie and Mark argue that the trial court erred in holding them liable for a company debt based upon partnership by estoppel because the proof was vague and insufficient and there was no detrimental reliance on the part of a creditor. We hold that the trial court was not clearly erroneous in finding liability based upon partnership by estoppel. Accordingly, we affirm.

Gary Chavers operated Chavers Welding and Construction (“CWC”), a construction and welding business, in Jonesboro. Gary’s sons Reggie Chavers and Mark Chavers joined their father in the business after graduating from high school. Gary, Mark, and Reggie maintain that CWC was a sole proprietorship owned by Gary, and that Reggie and Mark served only as CWC employees, not as CWC partners.

Facts

In February 1999, CWC entered into an agreement with Epsco, Inc. (“Epsco”), a staffing service, to provide payroll and employee services for CWC. Initially, Epsco collected payments for its services on a weekly basis, but later, Epsco extended credit to CWC. Melton Clegg, President of Epsco, stated that his decision to extend credit to CWC was based, in part, on his belief that CWC was a partnership.

CWC’s account with Epsco became delinquent, and Epsco filed a complaint against Gary, Reggie, and Mark, individually, and doing business as CWC, to recover payment for the past due account. Gary discharged a portion of his obligation to Epsco due to his filing for bankruptcy. Epsco sought to recover CWC’s remaining debt from Reggie and Mark. After a hearing on March 7, 2002, the trial court issued a letter opinion, finding that Reggie and Mark “represented themselves to [Epsco] as partners in an existing partnership and operated in such a fashion to give creditors in general, and Epsco in particular, the impression that such creditors/potential creditors were doing business with a partnership. . . .” On May 21, 2002, the trial court entered an order stating that Reggie and Mark were partners by estoppel as relates to Epsco. The trial court found that Reggie and Mark were jointly and severally liable for the debt of CWC in the amount of $80,360.92. In addition, the trial court awarded Epsco pre-judgment interest at the rate of six percent, post-judgment interest at the rate of ten percent, and attorney’s fees in the amount of $8,036.92.

Standard of Review

In bench trials, the standard of review on appeal is not whether there is substantial evidence to support the finding of the court, but whether the judge’s findings were clearly erroneous or clearly against the preponderance of the evidence. Ark. R. Civ. P. 52(a) (2002); Reding v. Wagner, 350 Ark. 322, 86 S.W.3d 386 (2002); Shelter Mut. Ins. Co. v. Kennedy, 347 Ark. 184, 60 S.W.3d 458 (2001). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a firm conviction that a mistake has been committed. Sharp v. State, 350 Ark. 529, 88 S.W.3d 348 (2002). Disputed facts and determinations of credibility are within the province of the fact-finder. Sharp, supra; Pre-Paid Solutions, Inc. v. City of Little Rock, 343 Ark. 317, 34 S.W.3d 360 (2001).

Partnership by Estoppel

Arkansas Code Annotated § 4-42-308 (Repl. 2001) [repealed January 1, 2005] provides, in pertinent part:

(1) When a person, by words spoken or written or by conduct, represents himself, or consents to another representing him to any one, as a partner in an existing partnership or with one (1) or more persons not actual partners, he is liable to any person to whom such representation has been made, who has, on the faith of such representation, given credit to the actual or apparent partnership, and if he has made such representation or consented to its being made in a public manner, he is liable to that person, whether the representation has or has not been made or communicated to that person so giving credit by or with the knowledge of the apparent partner making the representation or consenting to it being made.
(a) When a partnership liability results, he is liable as though he were an actual member of .the partnership.

We have long recognized the doctrine of partnership by estoppel. In Olmstead v. Hill, 2 Ark. 346 (1840), the court stated that

they who hold themselves out to the world as partners in business or trade, are to be so regarded quoad creditors and third persons; and the partnership may be established by any evidence showing that they so hold themselves out to the public, and were so regarded by the trading community.

2 Ark. at 354. Further, we have stated that “[partnerships may be proved by circumstantial evidence; and evidence will some times fix a joint liability, where persons are charged as partners, in a suit by a third person, when they are.not, in fact, partners as between themselves.” Humphries v. McCraw, 5 Ark. 61, 64-65 (1843).

In Herman Kahn Co. v. Bowden, 80 Ark. 23, 96 S.W. 126 (1906), the court noted that

[a] person who holds himself out as a partner of a firm is estopped to deny such representation, not only as to those as to whom the representation was directly made, but as to all others who had knowledge of such holding out and in reliance thereon sold goods to the firm. . . .

80 Ark. at 30. In addition, “if the party himself puts out the report that he is a partner, he will be liable to all those selling goods to the firm on the faith and credit of such report.” Id.

When a person holds himself out as a member of partnership, any one dealing with the firm on the faith of such representation is entitled to assume the relation continues until notice of some kind is given of its discontinuance. Watkins v. Moore, 178 Ark. 350, 10 S.W.2d 850 (1928); Gershner v. Scott-Mayer Comm’n Co., 93 Ark. 301, 124 S.W. 722 (1910); Bowden, supra; Brugman v. McGuire, 32 Ark. 733 (1878).

In Firestone Tire & Rubber Co. v. Webb, 207 Ark. 820, 182 S.W.2d 941 (1944), the court wrote:

It is a thoroughly well-settled rule that persons who are not as between themselves partners, or as between whom there is in fact no legal partnership, may nevertheless become subject to the liabilities of partners, either by holding themselves out as partners to the public and the world generally or to particular individuals, or by knowingly or negligently permitting another person to do so. All persons who hold themselves out, or knowingly permit others to hold them out, to the public as partners, although they are not in partnership, become bound as partners to all who deal with them in their apparent relation.
The liability as a partner of a person who holds himself out as a partner, or permits others to do so, is predicated on the doctrine of estoppel and on the policy of the law seeking to prevent frauds on those who lend their money on the apparent credit of those who are held out as partners. One holding himself out as a partner or knowingly permitting himself to be so held out is estopped from denying liability as a partner to one who has extended credit in reliance thereon, although no partnership has in fact existed.

Webb, 207 Ark. at 825 (quoting 40 Am. Jur. 179-80). In Webb, the court held that the appellee was estopped from denying that he was a partner when the “appellant showed that it relied on the truth of the financial statement . . . signed by [the appellee] as a partner, and made shipments on the truth of the statement.” Id. at 824.

In the present case, the trial court cited specific examples of representations made by Reggie and Mark indicating that they were partners of CWC, including correspondence to Epsco, checks written to Epsco, business cards distributed to the public, and credit applications. We will discuss each in turn.

The Faxed Credit References

Epsco argues that Plaintiff’s Exhibit #1, a faxed list of credit references, clearly indicates that Gary was the owner and that Reggie and Mark were partners in the business. The fax lists four credit references, and it includes CWC’s contact information. The contact information lists CWC’s telephone number, fax number, and federal tax number. The last two lines of the contact information state: “Gary Chavers Owner” and “Reggie Chavers and Mark Chavers Partners.”

Kim Baker Adams, an office manager at Epsco, testified that in the beginning ofEpsco’s relationship with CWC, she told Gary that he needed to fill out a credit application. Adams testified that Gary told her that CWC had its own company credit application already typed up, and that he would fax it to her. Adams testified that Plaintiff’s Exhibit #1 was the fax she received from Gary.

Gary testified that he did not know that the list of credit references was faxed to Epsco. In addition, he testified that his signature was not at the bottom of the fax. He testified that his former secretary might have signed his name to the fax; however, he stated that he did not authorize his secretary to sign or fax a list of credit references to Epsco. Moreover, Gary testified that the first time he saw the list of credit references was at the bench trial.

This court gives deference to the superior position of the trial judge to determine the credibility of the witnesses and the weight to be accorded their testimony. Lee v. Daniel, 350 Ark. 466, 91 S.W.3d 464 (2002); Pyle v. Sayers, 344 Ark. 354, 39 S.W.3d 774 (2001). Further, it is within the province of the trier of fact to resolve conflicting testimony. Lee, supra; Myrick v. Myrick, 339 Ark. 1, 2 S.W.3d 60 (1999). Though there was a dispute concerning whether Gary faxed the list to Epsco, the trial court found that Epsco received the faxed credit references from CWC and relied on CWC’s statement that Reggie and Mark were partners. The trial court’s finding is not clearly erroneous.

The Fax Cover Sheet

At trial, Epsco introduced Plaintiff’s Exhibit #2, a fax cover sheet from “Chavers Construction” to Epsco. The fax cover sheet was dated July 19, 2000. The fax cover sheet contained the address, telephone number, and fax number of the business. Listed under this information was “Gary, Reggie, or Mark Chavers.” Epsco argues that Gary, Reggie, and Mark are all listed on the fax cover sheet, and that this indicates that they were holding themselves out to the public as partners of the business. The trial court’s finding that the fax cover sheet indicated that Reggie and Mark were holding themselves out as partners of CWC is not clearly erroneous.

The Epsco Personnel Credit Application

Epsco introduced Plaintiff’s Exhibit #9, a personnel credit application, which was received from CWC. Adams testified that the exhibit represented a completed credit application that she received from CWC. The type of business checked on the credit application is “partnership.” Adams testified that the application showed the company to be a partnership, and that this information was relied upon in extending credit. Clegg testified that he viewed the credit application which indicated that CWC was a partnership, and that his decision to extend credit to CWC was based, in part, on his belief that CWC was a partnership. Gary denied filling out the credit application form.

It was within the trial court’s discretion to find Adams’s and Clegg’s testimony more credible than Gary’s testimony and to determine that Epsco relied on the statement of partnership on the credit application before extending credit to CWC. See, e.g., Lee, supra; Myrick, supra. The trial court’s finding concerning the credit application is not clearly erroneous.

The Checks to Epsco

Epsco argues that Plaintiff’s Exhibit #3 and Plaintiffs Exhibit #11, checks written to Epsco showing the CWC account to be in the name of “Gary A. or Reggie J. Chavers,” indicates that Reggie was holding himself out to be a partner of CWC. Plaintiff’s Exhibit #3 was signed by Gary, and Plaintiffs Exhibit #11 was signed by Reggie. The checks are evidence that Reggie was holding himself out to the public as a partner of CWC, and Epsco could have detrimentally relied on the checks before extending credit to CWC. The trial court was not clearly erroneous in finding that the checks supported a finding of partnership by estoppel.

The Business Card

Epsco introduced Plaintiff’s Exhibit #4, a business card that states “Chavers Welding, Construction & Crane Service.” Listed on the card as “owners” are Gary Chavers and Reggie Chavers. Gary testified that the business cards were printed incorrectly, and that Reggie’s name should not have been included as an owner. He also testified that some of the cards might have been handed out, and that it was possible that he might have given one of the cards to a business listed as one of CWC’s credit references on Plaintiff’s Exhibit #1.

The business card listing Reggie as an owner indicates that Reggie was holding himself out as a partner. As we stated in Watkins, supra, when a person holds himself out as a member of partnership, any one dealing with the firm on the faith of such representation is entitled to assume the relation continues until notice of some kind is given of its discontinuance. There is no indication that Reggie ever informed any person who received a business card that the business relationship listed on the card was incorrect or had been discontinued. The trial court’s finding concerning the business card is not clearly erroneous.

The Dealership Application

Epsco introduced Plaintiff’s Exhibit #5, an application form from “Chavers Welding,” signed by Reggie, seeking a dealership from Sukup Manufacturing. The application, dated January 23, 1997, lists “Gary & Reggie Chavers” as owners of “Chavers Welding.” The application is signed by Reggie. Reggie admits that he signed the dealership application and represented that he was an owner of “Chavers Welding,” but he dismisses his statement of ownership as mere “puffery” on his part. Epsco argues that instead, the application shows that Reggie was holding himself out to the public as being a partner. The trial court’s determination that Reggie’s dealership application supports a finding of partnership by estoppel is not clearly erroneous.

In sum, the trial court was not clearly erroneous in finding that Reggie and Mark held themselves out as partners of CWC and that Epsco detrimentally relied on the existence of the partnership before extending credit to CWC. The appellants argue that even if we find Reggie liable based upon partnership by estoppel, there was scant proof of Mark being liable based upon partnership by estoppel. We disagree. We are aware that some examples of holding out cited in the trial court’s order pertain only to Reggie. However, the representations attributed to both Reggie and Mark are sufficient proof to support the trial court’s finding that both Reggie and Mark are estopped from denying liability to Epsco.

Affirmed.

       Pursuant to Acts 1999, No. 1518, § 1205, beginning January 1, 2005, the Uniform Partnership Act (1996), codified at Ark. Code Ann. § 4-46-101 et seq. governs all partnerships.


text:
    CRAIGHEAD ELECTRIC COOPERATIVE CORPORATION v. CRAIGHEAD COUNTY, Arkansas
    02-812
    98 S.W.3d 414
    Supreme Court of Arkansas
    Opinion delivered February 20, 2003

      Lyons, Emerson & Cone. P.L.C., by: Jim Lyons, for appellant.

      Duncan & Rainwater, P.A., by: Michael Rainwater, for appellee.
   Jim Hannah, Justice.

Craighead Electric Cooperative stice. Cooperative”) appeals summary judgment entered against it by the Craighead County Circuit Court. The Cooperative asserts that material questions of fact precluded entry of summary judgment. We agree.

The Cooperative sued Craighead County (“the County”) alleging that in widening roads, the County encroached upon easements and rights-of-way owned or possessed by the Cooperative, causing the Cooperative damages in costs in moving power lines and poles and in taking of the easements or rights-of-way. The County brought a motion for summary judgment asserting that only the County had a right-of-way in the land used to widen the roads because the County had sixty-foot rights-of-way since entry of a County Court order in 1907. The trial court found that the 1907 Order of the Craighead County Court conveyed to the County a sixty foot right-of-way in the four roads at issue in this case.

Because we hold that the 1907 Order does not purport to convey a property interest to the County, we need not address the issue of whether the 1907 Order could convey a property interest to the County, or whether the Cooperative would have standing to challenge any taking by the 1907 Order. We consequently hold that the issue of whether the Cooperative holds easements or rights-of-way that were encroached upon by the County has not been addressed by the trial court. Thus, a question of material fact remains undetermined by the trial court. Therefore, the summary judgment of the Craighead County Circuit Court must be reversed.

Facts

The Cooperative sued the County alleging that the County had encroached on easements and rights of way owned or possessed by the Cooperative. More specifically, the Cooperative alleged that the County enlarged roadways without notice, and in some instances with notice, moving road ditches and soil so as to leave Cooperative power poles unsupported, leaning, and otherwise in unsafe conditions that required the Cooperative to move poles and power lines at its own expense. The Cooperative sued for $100,171.20 in compensation for property taken and for costs of moving lines and poles caused by the widening of four specific roadways. The Cooperative further sought declaratory judgment that compensation would be required for future takings by the County and for costs and fees.

The County moved for summary judgment under Ark. R. Civ. P. 56, alleging that the Cooperative had no property rights in the affected easements, nor any equitable right to compensation. The County also argued that the Cooperative decided to move the poles on its own, and that there was no taking.

The trial court granted summary judgment, finding that a 1907 Craighead County Court order conveyed a sixty-foot easement to the County on all the affected roads; therefore, the Cooperative held no interest in the land on which the poles stood. The trial court further found that pursuant to the common-law rule, the Cooperative had to bear its own costs of relocation. The trial court additionally found that if there was an issue of an unconstitutional taking under the 1907 order, the Cooperative lacked standing to raise it; instead the affected landowners had to raise the issue. The Cooperative appeals the summary judgment.

Standard of Review

Summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. Cole v. Laws, 349 Ark. 177, 76 S.W.3d 878 (2002); George v. Jefferson Hosp. Ass’n, Inc., 337 Ark. 206, 987 S.W.2d 710 (1999); Pugh v. Griggs, 327 Ark. 577, 940 S.W.2d 445 (1997). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of its motion leave a material fact unanswered. Id. This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Adams v. Arthur, 333 Ark. 53, 969 S.W.2d 598 (1998); Pugh, supra.

Our review is not limited to the pleadings, as we also focus on the affidavits and other documents filed by the parties. Cole, supra; Wallace v. Broyles, 331 Ark. 58, 961 S.W.2d 712 (1998); Angle v. Alexander, 328 Ark. 714, 945 S.W.2d 933 (1997). After reviewing undisputed facts, summary judgment should be denied if, under the evidence, reasonable men might reach different conclusions from those undisputed facts. Cole, supra; George, supra.

Easements and Rights-of-Way

We note first that the parties use the terms right-of-way and easement interchangeably. A right-of-way is an easement and “right-of-way” is usually the term used to describe the easement itself or the strip of land which is occupied for the easement. Loyd v. Southwest Ark. Util. Corp., 264 Ark. 818, 825, 580 S.W.2d 935 (1979). Also, as the County asserts in citing Arkansas State Highway Commission v. Cordes Motors, Inc., 315 Ark. 285, 867 S.W.2d 178 (1993), a right-of-way or easement in a road may be acquired by prescription. The Cooperative asserts that it holds a right-of-way in the land used by the County to widen the subject roads. The County argues that by way of the 1907 Order, it has a right-of-way in the land used to widen the roads.

The parties agree that the landowners adjoining the roads hold the fee in the land, and that any right to use the land consumed in widening the roads comes by way of an easement or right-of-way. A right-of-way or easement is entitled to all the constitutional protections afforded other property rights. Southwestern Bell Tel. Co. v. Davis, 247 Ark. 381, 385, 445 S.W.2d 505 (1969).

We will first dispense with the argument that the 1907 Order conveyed a right-of-way to the County. The August 17, 1907, Order of the Craighead County Court states:

On this day it is ordered by the Court that all Public Roads established in Craighead County, where the order establishing same fails to state the width, shah be construed to read sixty feet.

The trial court found that this order was effective to confer on the County a right-of-way of sixty feet in the roads in question. By’ its terms the 1907 Order does not attempt to confer an interest in property. The 1907 Order attempts to modify county court orders establishing roads that are silent regarding the width of the road to be established. It goes no further. Therefore, no property right was conveyed by the 1907 Order alone.

The County alleges that even without the 1907 Order, the Cooperative failed to prove below that it held an interest in the land where its poles and power lines were located, that it has no franchise or deed proving ownership, that it has agreements showing entry on to the land was permissive, that it could acquire no easement against the County by adverse possession, and that the common-law rule is utilities pay their own costs of relocation.

The trial court’s order on summary judgment does state that to prevail in the event the 1907 Order was ineffective, the Cooperative had to show that it held an easement by prescription, that the County encroached on that easement, and that the Cooperative suffered damages. However, the trial court found the 1907 Order to be effective and consequently made no determination of what other rights might exist in the easement, whether those rights are held by the County or by the Cooperative. It is also true that the trial court additionally found that applying the common-law rule that utilities pay their own relocation costs meant the Cooperative was responsible for the costs of relocation. The Cooperative challenges this finding, and we agree that application of the common-law rule in Arkansas is limited and not applicable in this case.

Whether the County, the Cooperative, or both possess a right-of-way in the land adjoining the roadway has not been determined below. We note that if the County had a prescriptive right-of-way in the roads as they existed before widening, that right-of-way does not vest in the County the right at a later date to widen or enlarge the prescriptive right except by just compensation to or the permission of the adjoining easement owner or landowner. Davis, supra.

The trial court must determine what rights, if any, both the County and the Cooperative may possess in the land used to widen the subject roads. The Cooperative alleged by way of the Affidavit of Cooperative manager Wayne Honeycutt that the Cooperative has never sought permission to enter the land where its poles and lines are located, and that the Cooperative maintained the poles and lines, and cut tree limbs, trees, and brush in the area where the poles are located. According to Mr. Honeycutt, the use of the land has always been under a claim of right. There is a material question of fact regarding whether the Cooperative has a prescriptive right in the land used to widen the subject roads. Likewise, the County alleges a similar right in the same land.

The evidence shows that the poles and power lines were placed along the subject roads at the latest between 1947 and 1951. There is no evidence that the Cooperative obtained and recorded written easements or that it obtained permission. Some records were provided showing power customers in the last few years have agreed to grant and convey an easement, but no easements were recorded based on these agreements, which likely long post-date any interest by prescription acquired by the Cooperative anyway. The trial court stated in a footnote to its order that the later agreements granting the right to obtain an easement would show entry was now by permission. The agreement was to “grant and convey an easement” or right-of-way, and therefore was an agreement to convey an interest in the property. Such a property interest would be due constitutional protection by the courts. Davis, supra. The agreements do not grant permission to enter onto the property. The language in the agreements cuts against the County and tends to show the entry on the land was not permissive.

The facts in this case are simply that the subject four roads were built at an undetermined earlier date and constructed at that time of undetermined dimensions. The County asserts that it has a prescriptive right in the land used in widening the roads, and that the Cooperative may not acquire an interest in the property by adverse possession because adverse possession is not effective against the County as a part of the State. The parties agree that the Cooperative could not obtain a property interest in the County’s property by adverse possession. This is a correct statement of the law. Arkansas Game and Fish Comm’n v. Lindsey, 292 Ark. 314, 730 S.W.2d 474 (1987). However, the Cooperative does not assert that it has acquired a right-of-way against the County by adverse possession or prescription, but rather that it has acquired that right against the fee holder. This court in Cathey v. Arkansas Power & Light Co., 193 Ark. 92, 95, 97 S.W.2d 624 (1936), stated:

The highway department had a right to condemn or take a right-of-way over appellant’s land. It, however, could not do this without paying him just compensation therefor, and it would have no right to appropriate or take the right-of-way over one’s land for any purpose other than for a highway for the use of the public, and every additional servitude to which the land is subjected entitles the owner to compensation for such additional servitude.

Cathey, 193 Ark. at 95. This court in Cathey, supra further stated:

The condemnation of land for a highway does not deprive the landowner of the fee in the land, but the right-of-way gives the public the right to use it as a highway. The appellee, having erected its poles and wires on appellant’s land, was a trespasser and liable for nominal damages whether there were any actual damages or not.

Cathey, 193 Ark. at 94. This encroachment by the power company constitutes a new servitude. Cathey, supra; Southwestern Bell Tel. Co. v. Biddle, 186 Ark. 294, 298, 54 S.W.2d 57 (1932). See also, Padgett v. Arkansas Power & Light Co., 226 Ark. 409, 413, 290 S.W.2d 426 (1956). The parties agree that the roads, and the poles and power lines, constitute an encumbrance on the property of the adjoining landowners. The trial court must determine who had what rights in the land used in widening the roads. If the Cooperative has property rights in the easements adjoining the subject roads, it may not be ousted from its occupancy of that portion of the street or easement or forced to move or relocate without just compensation for its costs. City of Little Rock v. Ark. La. Gas Co., 261 Ark. 347, 548 S.W.2d 133 (1977). It may turn out that the Cooperative has no such right, but to date, neither the rights of the Cooperative nor the rights of the County have been determined by the trial court.

Common Law and Franchises

The trial court found that the common law requires a utility to bear its own relocation costs where the county widens its roads. The County asserts that under the common-law rule, outside of four exceptions, a utility must bear its own costs of relocation. The County attempts to expand the common-law rule beyond its bounds in Arkansas. The general common-law rule is that a utility must bear its own relocation costs when relocation of equipment is required by public necessity. Southwestern Bell Tel. Co. v. City of Fayetteville., 271 Ark. 630, 634, 609 S.W.2d 914 (1980). It should be noted that in the City of Fayetteville, this court noted that our decisions were departing from the very common-law rule cited by the County. City of Fayetteville, 271 Ark. at 635. It also must be noted that in neither of the cases cited by the County was the utility forced to pay the costs of its relocation. Further, the County’s argument about the common-law rule ignores the Cooperative’s argument it has a property right in a right-of way that would be violated.

The existence of a public necessity allows the state to exercise its police power. Phillips v. Town of Oak Grove, 333 Ark. 183, 189, 968 S.W.2d 600 (1998). The police power is an attribute of sovereignty and a necessary attribute of every civilized government. It is a general term used to express the particular right of a government which is inherent in every sovereignty. Geirin v. City of Little Rock, 203 Ark. 103, 108, 155 S.W.2d 719 (1941), citing 11 Am. Jur. 245. See also Arkansas County v. Burris, 308 Ark. 490, 496, 825 S.W.2d 590 (1992). However, this court has stated that the police power should not be indiscriminately or unnecessarily used, that the police power of the State is one founded in public necessity, and this necessity must exist in order to justify its exercise. Ark. State Hwy. Comm’n v. Ark. Power & Light Co., 231 Ark. 307, 311, 330 S.W.2d 77 (1959). See also Hand v. H & R Block, Inc., 258 Ark. 774, 528 S.W.2d 916 (1975); Beaty v. Humphrey, 195 Ark. 1008, 1013-1014, 115 S.W.2d 559 (1938). In Arkansas State Highway Commission, a case involving a utility, this court determined that there was no need to use the police power because the authority under which the Highway Commission intended to undertake construction provided that the property and property rights may be acquired by gift, devise, purchase, or condemnation. Ark. Code Ann. § 27-68-108 (Repl. 1994). The road construction at issue was undertaken under this same statute.

The County alleges that case law supports the conclusion that under these facts, the Cooperative must bear its own costs to move the poles and power lines, citing language in Ark. State Hwy. Comm, supra., “But even though the Power Company has the right to maintain its poles on the rights of way, it does not mean that the company could not be compelled to move its facilities so as to not unnecessarily interfere with the use of the streets.” Ark. State Hwy Comm’n, 231 Ark. at 309. The Arkansas State Highway Commission case and the quoted language is cited in the dissent in Southwestern Bell Tel. Co. v. City of Fayetteville, 271 Ark. 630, 636, 609 S.W.2d 914 (1980). However, in Ark. State Hwy. Comm’n, the court was discussing a written franchise granted to the power company by the City of El Dorado, which provided, “provided the streets, alleys, avenues, and sidewalks shall not be unnecessarily and unreasonably impaired or obstructed.” Ark. State Hwy. Comm., 231 Ark. at 310. Arkansas Power & Light Co., supra, also involved a franchise. A review of the briefs, abstracts, and addendums reveals no franchise in the present case. Indeed, the County argues in its brief at page thirteen that the Cooperative has failed to produce a franchise or contract. Whatever rights the Cooperative has neither arise from nor are controlled by a written franchise or contract.

The trial court must determine whether the Cooperative acquired a prescriptive right in the property where the poles and power lines were located. That right is against the landowner as a new servitude on the land. As discussed above, the landowner still holds the fee. The cases distinguish the erection of utilities as distinct and not subservient to any right-ofrway or easement the County may have for construction of a road. The County, however, notes that under Ark. Code Ann. § 18-15-803 (Supp. 2001), the Cooperative may construct its poles and power lines along a public highway. The County goes on to note that Ark. Code Ann. § 18-15-503 does not require that the Cooperative pay for a right-of-way and also does not require that the Cooperative be compensated when it must relocate its poles. This statute sets out the right to acquire a right-of-way. Loyd, supra. However, a right-of-way is not granted by the statute. The Cooperative is claiming the right-of-way by adverse possession as against the landowners.

If the Cooperative has a property interest in the land where the poles and power lines were standing before the subject four roads were widened, then forcing the movement of the poles and power lines may constitute a taking that requires compensation. The common-law rule is not that a utility is required to bear the costs of its own relocation where the county widens a road, but rather the common-law rule is that a utility must bear the costs of its own relocation when relocation of that equipment is required by a public necessity. Southwester Bell Tel. Co., supra.

Reversed and remanded.


text:
    Jimmy Ray HEIKKILA v. STATE of Arkansas
    CR 02-852
    98 S.W.3d 805
    Supreme Court of Arkansas
    Opinion delivered February 20, 2003

      The Jesse Law Firm, P.L.C., by: Mark Alan Jesse, for appellant.

      Mark Pryor, Att’y Gen., by: Clayton K. Hodges, Ass’t Att’y Gen., for appellee.
   Jim Hannah, Justice.

Jimmy Ray Heikkila appeals his conviction and sentence on two counts of incest. He was also convicted of rape, but he does not appeal that conviction. Heikkila alleges that the trial court erred in submitting the incest charges to the jury because he was accused of sexual intercourse or deviate sexual activity with his two nieces to whom he was related by affinity but not by consanguinity. Heikkila asserts that applying the rule that criminal statutes are strictly construed requires the conclusion that the alleged conduct with his nieces was not prohibited under the incest statute because he was not related to his nieces by blood. We hold that the incest statute prohibits sexual intercourse or deviate sexual activity between an uncle and a niece. The language of the statute is clear and makes no mention of affinity or consanguinity. The convictions and sentences are affirmed.

Facts

Heikkila is not related by blood to the two nieces he is accused of engaging in incest. They are the children of Heikkila’s wife’s sister. Both nieces were below the age of sixteen at the time of the incest. The two nieces came to live with Heikkila in 1990 after they had been in foster care for six months following removal from the home of their grandmother. The nieces considered Heikkila and his wife father and mother, calling Heikkila dad and his wife Tia, which is Spanish for aunt. Heikkila was charged with acts of incest and rape beginning in 1990.

Incest

Heikkila argues that the word “niece” in the incest statute, Ark. Code Ann. §5-26-202 (Repl. 1997), refers only to nieces to whom a person is related to by blood. Arkansas’s incest statute provides:

(a) A person commits incest if, being sixteen (16) years of age or older, he purports to marry, has sexual intercourse with, or engages in deviate sexual activity with a person he knows to be:
(1) An ancestor or a descendant; or
(2) A stepchild or adopted child; or
(3) A brother or sister of the whole or half blood; or
(4) An uncle, aunt, nephew, or niece; or
(5) A step grandchild or adopted grandchild.
(b) The relationships referred to in this section shall include blood relationship without regard to legitimacy.
(c) Incest is a Class C felony; however, incest is a Class A felony if the victim is under sixteen (16) years of age and the perpetrator is over twenty-one (21) years of age at the time of the offense.

This court has never interpreted “niece” as it appears in Ark. Code Ann. § 5-26-202. We are therefore required to interpret the incest statute. We strictly construe criminal statutes and resolve any doubts in favor of the defendant. Williams v. State, 347 Ark. 728, 67 S.W.3d 548 (2002); Sansevero v. State, 345 Ark. 307, 45 S.W.3d 840 (2001); Hogar v. State, 341 Ark. 633, 19 S.W.3d 16 (2000). There is no better settled rule in criminal jurisprudence than the rule that criminal statutes must be strictly construed and pursued. Williams, supra. The courts cannot, and should not, by construction or intendment, create offenses under statutes which are not in express terms created by the Legislature. Williams, 347 Ark. at 742. We are without authority to declare an act to come within the criminal laws of this state by implication. Dowell v. State, 283 Ark. 161, 671 S.W.2d 740 (1984). It would violate the accepted canons of interpretation to declare an act to come within the criminal laws of the State merely by implication. Lewis v. State, 220 Ark. 259, 247 S.W.2d 195 (1952) (citing State v. Simmons, 117 Ark. 159, 174 S.W. 238 (1915)). Nothing is taken as intended which is not clearly expressed. Graham v. State, 314 Ark. 152, 861 S.W.2d 299 (1993); Hales v. State, 299 Ark. 93, 771 S.W.2d 285 (1989).

The incest statute prohibits sexual intercourse or deviate sexual activity with five named categories of persons, including “uncle, aunt, nephew or niece.” The word “niece” is not defined in the statute. However, the statute in its express terms creates criminal liability for sexual intercourse or deviate sexual activity with one’s niece. Webster’s defines a niece as a female descendant or relative, a daughter of one’s brother or sister, or a daughter of one’s brother-in-law or sister-in-law. Black’s defines niece as “the daughter of a person’s brother or sister; sometimes understood to include the daughter of a person’s brother-in-law or sister-in-law.” Black’s Law Dictionary 1066 (7th Ed. 1999). Webster’s Third New International Dictionary, 1526 (1993). Both nieces in this case were the daughters of Heikkila’s sister-in-law. When the words used in a statute have a well-defined meaning, and the wording of the statute is clear, we give those words their plain meaning. Boyd v. State, 313 Ark. 171, 853 S.W.2d 263 (1993). Therefore, under the express terms of the statute, the conduct between Heikkila and his nieces was prohibited.

The incest statute protects the integrity of the family. Camp v. State, 288 Ark. 269, 704 S.W.2d 617 (1986). This protection extends to step-relationships as well as blood relationships because sexual activity in step-relationships is equally disruptive of the family as would be sexual activity between blood relations. Camp, supra. Although Heikkila’s relationship to his nieces would not be characterized as a step-uncle, as with a stepfather, Heikkila was not related to his nieces by blood. Where uncle and niece are not related by blood, the relationship is analogous to a step-relationship. Regardless of whether Heikkila was related to his nieces by consanguinity or affinity, the State’s charges against him under Ark. Code Ann. § 5-26-202 would effectively be the same. See e.g. Douhitt v. State, 326 Ark. 794, 935 S.W.2d 241 (1996).

Affirmed.


author:
Jim Hannah, Justice.
      Annabelle Clinton Imber, Justice,

text:
    Dennis James SMITH v. STATE of Arkansas
    CR 01-1132
    98 S.W.3d 433
    Supreme Court of Arkansas
    Opinion delivered February 20, 2003

      G.B. “Bing” Colvin, III, public defender, for appellant.

      Mark Pryor, Att’y Gen., by: Clayton K. Hodges, Ass’t Att’y Gen., for appellee.
   Jim Hannah, Justice.

A Drew County jury convicted stice. of three counts of kidnapping, four counts of rape, two counts of attempted capital murder, one count of first-degree battery, and one count of vehicular piracy. He received the maximum sentences on all counts, all to be served consecutively except for the battery conviction, for a total of seven life sentences plus eighty years in the Arkansas Department of Correction. On appeal, Smith raises six points for reversal. We hold that there is no merit to any issue except sufficiency of the evidence on the first-degree battery conviction. The trial court erred in denying the directed-verdict motion where the evidence failed to show that Smith caused serious physical injury as required by Ark. Code Ann. § 5-13-201 (a)(1) (Repl. 1997) or physical injury by means of a firearm as required by Ark. Code Ann. § 5-13 — 201 (a)(7) (Repl. 1997). We modify the sentence on first-degree battery from twenty years’ imprisonment to six years’ imprisonment, the maximum sentence for second-degree battery.

The events leading up to Smith’s convictions began on June 22, 2000, when he robbed a grocery store located in Desha County at gunpoint and took the store’s owner, George Barnes, hostage. Smith drove Barnes in his pickup to a crop-dusting airport near Tillar in Drew County. At the airport, they encountered Wes Lawson, and Smith forced both men to accompany him into the airport office. Judy Quandt, the wife of the crop-dusting pilot, Fred Quandt, was in the office. Smith told Judy to call her husband on the radio and tell him that if he did not come back to the airport, Smith would kill everybody in the office. Smith then ordered all three hostages to take off their clothes. He forced the two men into the bathroom but kept Judy with him. Judy testified that Smith told her to bring up something on her computer, and when she was unable to bring up what he wanted Smith hit her more than once in the head with the butt of a gun.

Upon receiving his wife’s urgent call, Fred Quandt landed his plane at the airport. With the plane’s engines still running, he rushed toward the office wearing a helmet and earplugs, and did not heed or hear an order to “get naked,” whereupon Smith shot him in the stomach. Although seriously injured, Fred was able to escape and eventually recovered. After shooting Fred, Smith ordered Lawson to stand in the front doorway and threatened to shoot him next. Lawson then opened the front door and started running away from the building. During his escape, he sustained a gunshot wound to his arm and side that was not fatal.

Thereafter, Smith took the two remaining hostages into the bathroom, where he raped Judy, forced her to engage in oral sex with him, and forced her to engage in oral sex with Barnes. Over the course of several hours, Smith ordered the hostages to call the FBI, and he spoke by phone with various people while law enforcement officers surrounded the building. Finally, Smith instructed the hostages to put on their clothing. Then, he released Barnes and,, while holding Judy for the purpose of shielding himself, Smith exited the office and was arrested.

Initially, Smith was charged with aggravated robbery, three counts of kidnapping, two counts of attempted capital murder, and two counts of rape. Based on a court-ordered mental evaluation, Smith was found unfit to proceed and committed to the State Hospital on December 4, 2000. On May 8, 2001, the State Hospital declared Smith fit to proceed, and the State amended the information to include three counts of kidnapping, two counts of attempted capital murder, four counts of rape, and one count each of first degree battery, vehicular piracy, and aggravated robbery. The count for the aggravated robbery offense that occurred in Desha County was nolle prossed as a result of an objection to venue. Smith was tried by a Drew County jury and found guilty of all other counts. He was sentenced to seven terms of life imprisonment for four counts of rape and three counts of kidnapping, thirty years for each of the two counts of attempted capital murder, twenty years for first-degree battery and twenty years for vehicular piracy, with all sentences to run consecutively, except the sentence on the first-degree battery conviction.

Smith filed a timely appeal and raises six points for reversal. Three of the points involve challenges to the sufficiency of the evidence and three pertain to alleged discovery violations and procedural error. For double jeopardy reasons, we first consider Smith’s sufficiency-of-the-evidence arguments. Atkinson v. State, 347 Ark. 336, 345, 64 S.W.3d 259, 265 (2002).

A motion for a directed verdict is a challenge to the sufficiency of the evidence. Id. The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. When a defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in the light most favorable to the State, and only evidence supporting the verdict will be considered. Id.

I. Sufficiency of the Evidence Class Y Felony Kidnapping Conviction

Smith’s first point on appeal is that with respect to the kidnapping of Barnes and Judy, he was only guilty of a class B felony because he released those hostages alive and in a safe place. We do not reach the merits of this point because it is not preserved for appellate review. In his directed-verdict motions on the kidnapping charges, Smith failed to specify how the State’s case was deficient as required by Ark. R. Crim. P. 33.1.

Rule 33.1 of the Arkansas Rules of Criminal Procedure provides that

[a] motion for directed verdict or for dismissal based on insufficiency of the evidence must specify the respect in which the evidence is deficient. A motion merely stating that the evidence is insufficient does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense.

Ark. R. Crim. P. 33.1(c) (2002); see, eg., Bowen v. State, 342 Ark. 581, 30 S.W.3d 86 (2000). As to the kidnapping charges, defense counsel merely asserted that the State did not make a prima facie case. Such an assertion does not identify a specific deficiency; rather, it is nothing more than a statement that the evidence is insufficient. Smith’s motions for directed verdict, stating only that the State did not make a prima facia case, but not specifying in what respect the State’s case was deficient, were not specific enough to preserve the issue for appellate review. See Spencer v. State, 348 Ark. 230, 72 S.W.3d 461 (2002).

II. Sufficiency of the Evidence First-Degree Battery Conviction

As his second issue on appeal, Smith argues that he could only be guilty of second-degree battery and not first-degree battery. Smith caused injury to Judy by striking her with the butt of a pistol. When asked what she meant by stating Smith had hit her with the butt of the gun, Judy specifically testified that she was struck by the part of the pistol that Smith was holding in his hand. Based on this conduct, Smith was charged with first-degree battery.

The first-degree battery statute provides, in relevant part, as follows:

(a) A person commits battery in the first degree if:
(1) With the purpose of causing serious physical injury to another person, he causes serious physical injury to any person by means of a deadly weapon; or
‡ ijí sf:
(7) With the purpose of causing physical injury to another person he causes physical injury to any person by means of a firearm.

Ark. Code Ann. § 5-13-201 (Repl. 1997). It is undisputed that Judy was injured when Smith struck her with the butt of the pistol, but the injury does not rise to the level of a serious physical injury as defined by Ark. Code Ann. § 5-1-102(19) (Supp. 2001). Judy testified that she required no stitches.

The issue we are then faced with is whether striking a person with the butt of a pistol constitutes causing an injury to another person by means of a firearm under Ark. Code Ann. § 5-13-201(a)(7). This presents an issue of statutory construction.

We strictly construe criminal statutes and resolve any doubts in favor of the defendant. Williams v. State, 347 Ark. 728, 67 S.W.3d 548 (2002); Sansevero v. State, 345 Ark. 307, 45 S.W.3d 840 (2001); Hagar v. State, 341 Ark. 633, 19 S.W.3d 16 (2000). There is no better settled rule in criminal jurisprudence than that criminal statutes must be strictly construed and pursued. Williams, supra. The courts cannot, and should not, by construction or intendment, create offenses under statutes which are not in express terms created by the Legislature. Williams, 347 Ark. at 742. We are without authority to declare an act to come within the criminal laws of this state by implication. Dowell v. State, 283 Ark. 161, 671 S.W.2d 740 (1984). It would violate the accepted canons of interpretation to declare an act to come within the criminal laws of the State merely by implication. Lewis v. State, 220 Ark. 259, 247 S.W.2d 195 (1952), (citing State v. Simmons, 117 Ark. 159, 174 S.W. 238 ( 1915)). Nothing is taken as intended which is not clearly expressed. Graham v. State, 314 Ark. 152, 861 S.W.2d 299 (1993); Hales v. State, 299 Ark. 93, 771 S.W.2d 285 (1989).

Recognizing we must strictly construe the statute, we next consider within that restriction the basic rule of statutory construction which is to give effect to the intent of the legislature. Short v. State, 349 Ark. 492, 79 S.W.3d 313 (2002). We construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language, and if the language of the statute is plain and unambiguous, and conveys a clear and definite meaning, there is no occasion to resort to rules of statutory interpretation. Id. Additionally, in construing any statute, we place it beside other statutes relevant to the subject matter in question and ascribe meaning and effect to be derived from the whole. Id.

We first note that there is no issue of whether Judy was struck in the head with a firearm. Smith used the pistol to shoot Fred and Lawson. Therefore, there can be no dispute that Smith struck Judy on the head with a firearm. Thus, we need not consider the definition of a firearm. The issue is simply whether striking Judy over the head with a firearm constitutes “physical injury ... by means of a firearm” as required by the first-degree battery statute.

If the words “by means of’ in Ark. Code Ann. § 5-13-201(a)(7), are changed to, “With the purpose of causing physical injury to another person he causes physical injury to another person by ... a firearm,” the State’s argument would be more understandable. There is no doubt that Smith caused physical injury by striking Judy with a firearm. However, the phrase “by means of’ is in the statute and may not be ignored. This court construes a statute so that no word is left void, superfluous, or insignificant; and meaning and effect are given to every word in the statute if possible. Turnbough v. Mammoth Springs Sch. Dist. No. 2, 349 Ark. 341, 78 S.W.3d 89 (2002). To conclude that the conduct in this case constitutes first-degree battery under Ark. Code Ann. § 5-13-201 (a) (7) requires that the court ignore the phrase “by means of.” The phrase “by means of’ must be considered because it alters the meaning of the statute.

Websters defines “by means of’ as “through the agency or instrumentality of.” Webster’s Third New International Dictionary, 307 (1993). The term “by means of a firearm” is found in a number of different types of cases and is not restricted to cases involving a battery. The cases do not construe “by means of a firearm,” directly or by implication, to mean any injury inflicted by a firearm. The cases all use the term “by means of a firearm” where the firearm has been used as a firearm, including shooting, brandishing, or where a firearm is otherwise used to threaten that it will be used as a firearm.

For example, in Rawls v. State, 260 Ark. 430, 541 S.W.2d 298 (1976), Rawls was convicted and sentenced for second-degree murder committed by means of a firearm. Rawls shot R.C. Edwards fourteen times with a rifle. In addition, both Taylor v. State, 77 Ark. App. 144, 72 S.W.3d 882 (2002), and Maxwell v. State, 73 Ark. App. 45, 41 S.W.3d 402 (2001), include the term “by means of a firearm,” and the injuries were injuries caused by bullets.

Cases from other states containing the term “by means of a firearm” do not differ. In State v. Rivera, 74 Conn. App. 129, 810 A.2d 824 (2002), the appellant shot someone in the abdomen. In Sallahdin v. Gibson, 275 F.3d 1211 (10th Cir. 2002), the victim was killed by shooting. In People v. Cook, 91 Cal. App. 4th 910, 111 Cal. Rptr. 2d 204 (2001), the California Court of Appeals stated, “Consequently, when murder is alleged to have been committed by means of a firearm, it cannot be so committed without also committing an assault with a firearm.” Cook, 91 Cal. App. 4th at 920. In other words, “by means of a firearm” means use of a firearm as a firearm, not as a club. In Bowers v. State, 2 P.3d 1215 (Alaska 2000) the criminal defendant was convicted of assault by means of a firearm when he fired a rifle in the air.

The clear intent of Ark. Code Ann. § 5-13-201 (a) (7) is to criminalize and treat as battery in the first-degree any physical injury caused by use of a firearm as a firearm because of the inherent potentially deadly character of the discharge of a firearm. It is not intended to include an injury such as clubbing. That is covered by Ark. Code Ann. § 5-13-201(a)(l) (Repl. 1997) where there is serious physical injury, or by Ark. Code Ann. §5-13-202(a)(1) where there is physical injury, as in this case.

It is not the mere presence of the firearm or its use as a club that elevates the crime to first-degree battery. Under Ark. Code Ann. § 16-90-120 (1987), a person convicted of a felony where he or she employed a firearm as a means of committing or escaping from the felony may be subjected to an additional period of confinement. This statute is not at issue in this case.

The plain and ordinary meaning of “by means of a firearm” is that the firearm be used as a firearm. To conclude otherwise is to ignore the rules of statutory construction.

When the proof offered supports a conviction on a lesser included offense but not the offense the accused was convicted of, we may reduce the punishment to the maximum for the lesser included offense, or reduce it to the minimum for the lesser offense or something in between, depending on the circumstances. Bishop v. State, 294 Ark. 303, 742 S.W.2d 911 (1988); Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977). In this case we find that it is appropriate to reduce the sentence from twenty years imprisonment, the maximum for first-degree battery, to six years, the maximum sentence for second degree battery. The trial court ordered the original sentence on first degree battery to run concurrently. The modified sentence will also run concurrently.

Ill, Sufficiency of the Evidence Vehicular Piracy Conviction

Smith’s third point on appeal is that the State failed to meet its burden of proving the elements of vehicular piracy because he never gained control of the aircraft. The circuit court found that Fred’s actions in returning to the airport and landing the plane were not voluntary, but were the result of compulsion.

“A person commits vehicular piracy if, without lawful authority, he seizes or exercises control, by force or threat of violence, over [a]ny aircraft occupied by an unconsenting person ____” Ark. Code Ann. § 5-ll-105(a)(l) (Repl. 1997). The statute does not require that the threat of violence be directed toward Fred. It only requires that the threat be sufficient to exercise control over the aircraft such that a person becomes an unconsenting occupant of the aircraft.

In this case, it is undisputed that Smith was threatening to kill everyone at the airport office if Fred refused to return to the airport and land the plane. Thus, because Smith exercised control over the aircraft through a threat of violence to the Fred’s wife and others, Fred became an unconsenting occupant of the plane. Therefore, the circuit court did not err in denying Smith’s motion for a directed verdict on this count.

As to the other points raised on appeal, Smith asserts his convictions should be reversed because of two discovery violations and the sentencing phase of his trial should be reversed because of a procedural error. Specifically, he contends that (1) the circuit court erred in denying his motion for a continuance based on the voluminous discovery presented within ten days of trial; (2) the circuit court erred in allowing the State to present witnesses without providing him with a witness list; and (3) the circuit court erred in not allowing him to argue during the sentencing phase that the sentences would run consecutively rather than concurrently.

IV. Continuance for Investigation of a Phone-Call List

While Smith frames this argument as an error based on the denial of a continuance requested in response to “voluminous discovery within ten days of trial,” his only argument concerns a list of people identified in confidential telephone bills. He contends that the circuit court’s ruling prejudiced his ability to contact the people on the list for evidence of paranoia to support his mental-defect defense. The trial court denied a continuance, noting that Smith had the fist for six days prior to trial and that he had not brought any specific item to the court’s attention that would justify a continuance.

Arkansas Rule of Criminal Procedure 17.1 provides in part:

(d) Subject to the provisions of Rule 19.4, the prosecuting attorney shall, promptly upon discovering the matter, disclose to defense counsel any material or information within his knowledge, possession, or control, which tends to negate the guilt of the defendant as to the offense charged or would tend to reduce the punishment therefor.

Ark. R. Crim. P. 17.1(d) (2002). The prosecutor must disclose information in sufficient time to permit the defense to make beneficial use of it, and withholding significant evidence that denies the defendant a fair trial is reversible error. Howard v. State, 348 Ark. 471, 79 S.W.3d 273 (2002), cert. denied 537 U.S. 1051 (2002). However, a defendant cannot rely upon discovery as a total substitute for his own investigation. Id.

The threshold question is whether there was a discovery violation. Upon receipt of the telephone records, the State prompdy provided Smith’s counsel with the list of names and phone numbers of twenty-five people and tape recordings of many of the calls. Because the State met its obligation to promptly provide the information to defense counsel, there was no discovery violation. The question then becomes whether the trial court erred in denying Smith’s motion for a continuance.

We review the grant or denial of a motion for continuance under an abuse of discretion standard. Ware v. State, 348 Ark. 181, 75 S.W.3d 165 (2002). An appellant must not only demonstrate that the trial court abused its discretion by denying the motion for a continuance, but also show prejudice that amounts to a denial of justice. Id. When a motion for continuance is based on a lack of time to prepare, this court considers the totality of the circumstances. Id.

The defense had six days to investigate twenty-five telephone calls, many of which were tape recorded. Smith’s counsel did not direct the trial court’s attention to any particular call or calls that warranted a continuance. On appeal, Smith merely speculates that one of the persons on the list might have been able to testify in support of his affirmative defense of mental incompetence. Furthermore, Smith cannot rely upon discovery as a substitute for his own investigation. He was aware that phone calls were made from the airport, and the information could have been obtained through his own investigation. Under these circumstances, we cannot say that the trial court abused its discretion in denying a continuance. We affirm the trial court on this point as well.

V. The State’s Discovery Obligations Providing a Witness List

Next, Smith asserts that the court erred in denying his motion to prohibit any of the State’s witnesses from testifying because no witness Hst was provided by the prosecutor when there were over 150 potential witnesses identified in the prosecutor’s file. The State responds that Smith never made a specific request for a witness list, but instead relied on the general provisions of Ark. R. Crim. P. 17.1. Because the prosecuting attorney’s office maintained an open-file policy, the State contends that it satisfied the discovery requirements.

Rule 17.1 of the Arkansas Rules of Criminal Procedure provides for the discovery of the names and addresses of persons the State plans to call as witnesses: “[T]he prosecuting attorney shall disclose to defense counsel, upon timely request, . . . the names and addresses of persons whom the prosecuting attorney intends to call as witnesses at any hearing or at trial . . . .” Ark. R. Crim. P. 17.1 (a)(i) (2002). Rule 17.2 permits a prosecuting attorney to fulfill his or her discovery obligations through the use of an open-file policy. Ark. R. Crim. P. 17.2 (2002). If a prosecutor’s office intends to fulfill its discovery obligations by relying upon an open-file policy, it must make every practicable effort to ensure that the information and records contained in the file are complete and that the documents employed at trial are identical to the material available to the defense in the open file. Robinson v. State, 317 Ark. 512, 879 S.W.2d 419 (1994). In order to obtain a reversal of a criminal conviction on the basis of a discovery violation, the appellant must make a showing of prejudice. Id. In the event of a discovery violation, the choice of an appropriate sanction is within the trial court’s discretion. Howard v. State, supra.

On June 23, 2000, Smith made a motion for discovery based on Rules 17.1, 17.3, and 17.4. The language generally followed the wording of the rules and requested “[t]he names and addresses of persons the Prosecuting Attorney intends to call as a witness at any hearing or at trial and a short, plain statement of their anticipated testimony . . . However, at no time before the day of trial on July 17, 2001, did Smith make any further requests for a witness list, either by independent motion or at any of the four additional hearings held after the initial hearing. At all times, Smith had access to the State’s case file and had been provided with copies of the investigative reports from which the State would select its witnesses. Smith made no objections to the State fulfilling its discovery obligations through an open-file policy until the day of trial, and then he requested only the extreme remedy of prohibiting all of the State’s witnesses from testifying. He did not request a continuance or any lesser sanction for the alleged discovery violation. The trial court did not abuse its discretion in denying Smith’s eleventh-hour motion to strike all of the State’s witnesses.

VI. Closing Argument Consecutive Sentencing

For his final point on appeal, Smith asks this court to hold that the trial court erred in sustaining the State’s objection to his closing argument regarding the matter of consecutive sentences. Smith contends he was only arguing the law as set out in Ark. Code Ann. § 5-4-403 (Supp. 2001). The trial court is given broad discretion to control counsel in closing arguments, and this court does not interfere with that discretion absent a manifest abuse of discretion. Leaks v. State, 339 Ark. 348, 5 S.W.3d 448 (1999) (citing Noel v. State, 331 Ark. 79, 960 S.W.2d 439 (1998); Lee v. State, 326 Ark. 529, 932 S.W.2d 756 (1996)). It is the trial court’s duty to maintain control of the trial and to prohibit counsel from making improper arguments. Leaks v. State, supra (citing Peebles v. State, 305 Ark. 338, 808 S.W.2d 331 (1991)).

During the closing arguments, the State asked the jury to give Smith life sentences rather than sentences for a term of years because he would not have to serve an entire term-of-years sentence before being eligible for parole. Defense counsel then made statements to the jury about consecutive sentences, and the State voiced its objection. The colloquy between defense counsel, the prosecutor, and the trial court was as follows:

Defense Counsel: But if you really, really, really want to punish Dennis Smith, and you want each one of these people out here to know that Dennis Smith is going to remember what he did to them, let me suggest that you do this: Don’t give him life because he’ll be in there for the rest of his life on what he considers just one episode. And he won’t ever think again about these people out here (Indicating).
Let me suggest that you do this: On each kidnapping charge and on each rape charge, he’s got to do seventy percent of any years that you give him. And let me suggest that you do this: You give him thirty years on each one of those involving Mrs. Quandt, Mr. Quandt, and the kidnapping of Wes Lawson, and the kidnapping of George Barnes. And he’s got to do twenty-one years of each one of those sentences before he starts the next. . . .
Prosecutor: Your Honor, I’m going to object to that. Consecutive and concurrent is the Court’s choice and it is not automatic. And I object to the suggestion to this jury that it is.
The Court: I’ll sustain that objection.
Defense Counsel: Well, Your Honor, it’s a possibility. And I submit to the court that the Court’s got every right to stack them and that’s proper argument.
The Court: I don’t think it is proper argument. I think it goes beyond the law that has been given to the jury, and I’ll sustain the objection.
Defense Counsel: Is the Court saying that he’s not going to stack any of these charges?
The Court: No. I’m saying that it’s not a jury consideration. It’s my decision. It’s improper argument on the law that’s been given to this jury. So I sustain the objection.

The power to determine whether multiple' sentences are to run consecutively or concurrently is established by statute:

(a) When multiple sentences of imprisonment are imposed on a defendant convicted of more than one (1) offense, ... the sentences shall run concurrently unless, upon recommendation of the jury or the court’s own motion, the court orders the sentences to run consecutively.
* * * *
(d) The court is not bound by recommendations of the jury concerning sentencing options under this section.

Ark. Code Ann. § 5-4-403(a), (d) (Supp. 2001). The decision to impose consecutive or concurrent sentences lies solely within the province of the trial judge, and the appellant assumes a heavy burden of showing that the trial judge failed to give due consideration in the exercise of that discretion. Smallwood v. State, 326 Ark. 813, 935 S.W.2d 530 (1996) (citing Love v. State, 324 Ark. 526, 922 S.W.2d 701 (1996)).

Defense counsel’s statement to the jury — “he’s got to do twenty-one years of each one of those sentences before he starts the next” — was not a correct statement of the law because it clearly suggests that multiple sentences automatically run consecutively. Even defense counsel stated to the trial judge that consecutive sentences were only a possibility. Yet, there was no offer to restate the argument so that it would represent an accurate statement of the law. As noted above, the trial judge has the responsibility to prohibit counsel from making improper arguments. Leaks v. State, supra. Because defense counsel’s argument to the jury was not a correct statement of the law, the trial court did not err in sustaining the State’s objection.

For the foregoing reasons, the convictions and sentences are affirmed, excepting first-degree battery, which is modified as stated above. The record has been reviewed for other reversible error, as required by Supreme Court Rule 4-3 (h), and none has been found.

Affirmed as modified.

Glaze, Imber, and Thornton, JJ., concurring in part and dissenting in part.

Annabelle Clinton Imber, Justice,

concurring in part; dissenting cepart. , agree with the majority, except I would affirm on all points. The first-degree battery statute clearly encompasses Mr. Smith’s conduct in striking Mrs. Quandt repeatedly on the head with the butt of his gun.

The relevant portion of the first-degree battery statute provides as follows: “(a) A person commits battery in the first degree if . . . [w]ith the purpose of causing physical injury to another person he causes physical injury to any person by means of a firearm.” Ark. Code Ann. § 5-13-201 (a)(7) (Repl. 1997). The second-degree battery statute provides, in relevant part, that “[a] person commits battery in the second degree if . . . [w]ith the purpose ofcausing physical injury to another person, he causes physical injury to any person by means of a deadly weapon other than a firearm . . . .” Ark. Code Ann. § 5-13-202(a)(2) (Supp. 2001). The Arkansas Criminal Code specifically defines the term “firearm:

“Firearm” means any device designed, made, or adapted to expel a projectile by the action of an explosive or any device readily convertible to that use, including such a device that is not loaded or lacks a clip or other component to render it immediately operable, and components that can readily be assembled into such a device;

Ark. Code Ann. § 5-1-102(6) (Supp. 2001) (emphasis added). Likewise, “deadly weapon” is defined as:

(A) A firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious physical injury; or
(B) Anything that in the manner of its use or intended use is capable of causing death or serious physical injury

Ark. Code Ann. § 5-1-102(4) (Supp. 2001). Mr. Smith claims, and the majority agrees, that under the above-cited statutory provisions, he did not commit first-degree battery because he did not cause physical injury by shooting a firearm and, thus, did not cause physical injury by means of a firearm as required by section 5-13-201(a)(7). He concludes by stating that he used a “deadly weapon other than a firearm” and, therefore, was only guilty of second-degree battery.

The General Assembly amended the original criminal code to specify that the use of a firearm in the commission of a battery would be a factor that distinguishes first-degree battery from second-degree battery. See Ark. Stat. Ann. §§ 41-1601, 41-1602 (Repl. 1977). In construing section 5-13-201(a)(7) just as it reads, giving the words their ordinary and usually accepted meaning in common language, it is clear that the statute does not qualify the means by which a firearm is used to cause injury. If the General Assembly had meant to limit the offense to shooting a firearm, it could have said so, as it has in other provisions of the criminal code. See Ark. Code Ann. § 5 — 13—310(a)(1) (Repl. 1997) (“[a] person commits a terroristic act when . . . [h]e shoots at ... an object with the purpose to cause injury.”); Ark. Code Ann. § 5-74-107(a)(l) (Repl. 1997) (“[a] person commits unlawful discharge of a firearm from a vehicle in the first degree if he knowingly discharges a firearm from a vehicle and thereby causes death or serious physical injury . . . .”). More importantly, the statutory definition of firearm includes guns that are not immediately operable. Ark. Code Ann. § 5-1-102(6). Thus, because a gun need not be operable to be a firearm, physical injury by means of a firearm is not limited to the shooting of a firearm.

The majority states that we need not consider the statutory definition of firearm, and then proceeds to conclude that the-phrase “by means of a firearm” means the use of a firearm as a firearm. I fail to understand how such a conclusion can be reached without reference to the statutory definition of a firearm, which includes “a device that is not . . . immediately operable . . . .” Ark. Code Ann. § 5-1-102(6). In other words, the majority’s interpretation of the phrase “by means of a firearm” simply defies common sense. On the one hand, a firearm must be used as a firearm; but, on the other hand, the statutory definition of “firearm” is irrelevant. In short, the majority ignores the statutory definition of “firearm.”

For the above-stated reasons, I must conclude that Mr. Smith’s actions in striking Mrs. Quandt with the butt of a gun constitute first-degree battery within the plain meaning of Ark. Code Ann. § 5-13-201 (a) (7). The trial court did not err in denying Mr. Smith’s motion for directed verdict on the charge of first-degree battery.

Glaze and Thornton, JJ., join.

       The aggravated robbery charge was refiled in Desha County Circuit Court and is the subject of a separate appeal in case number 02-895. This conviction was affirmed in Smith v. State, 351 Ark. 468, 95 S.W.3d 801 (2003).

       We note Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999), a case where a victim was struck in die head with a firearm in her bedroom, dragged outside by her foot, and put in a truck where she was then struck in the face several times causing her head to strike the back glass of the truck cab. The perpetrator then placed a shirt around the victim’s head to stop the bleeding and later applied paper towels and a “toboggan” when the victim bled through the shirt. Her surgeon characterized her injuries as “serious physical injuries.” Bangs, 338 Ark. at 521.
      Thus, naturally, serious physical injury may be inflicted by using a firearm as a club, however, in Bangs, the prosecutor charged first-degree battery under Ark. Code Ann. §5-13-201(a)(3), which provides:
      (3) He causes serious physical injury to another person under circumstances manifesting extreme indifference to the value of human life. . .
      In the present case, Smith was not charged under Ark. Code Ann. §5-13-201(a)(3), rather he was charged under Ark. Code Ann. §5-13-201(a)(7).

       This is analogous to the proof required in. cases of rape by forcible compulsion. Ark. Code Ann. § 5-14-103(a)(l)(A) (Supp. 2001). See Jones v. State, 348 Ark. 619, 74 S.W.3d 663 (2002) (finding substantial evidence where the perpetrator threatened the victim’s children and roommate).

       The State explained to the circuit court that, for various reasons, it had difficulty obtaining the list of phone calls.

       Although Smith contended below that he did not have access to the proper equipment to play microcassette tapes, he does not make that argument on appeal. According to the prosecutor, the public defender’s office representing Smith at trial and on appeal had provided the prosecutor’s office with a microcassette tape recorder.

       Smith argues in his appellate brief that the trial court should have given him a continuance to interview the State’s witnesses following receipt of a witness list. However, he made no such request below so the issue is not preserved for appellate review.