text:
    Ramon PHILLIPS, Samuel Phillips, Lue G. Kelley, Johnie Blake, Joseph Phillips, Naomi Murphy, Ruth Harris, Mable Cook, Freddie Windmon, Harvey L. Windmon, Rodella Anderson, Charlie Windmon, Odessa Cook, Betty Ann Windmon, Booker T. Windmon, Hugie Windmon, Jr., Leon A. Phillips, Jr., Dorothy Jean Gilbert, Andrew Phillips, Harvey Lee Phillips, Imogene Dantzler, Jettie Beasley, Charlie Lee Phillips, Ida B. Releford, Pear A. Howse and Katie B. Phillips v. COMMONWEALTH SAVINGS & LOAN ASSOCIATION, Osceola, Arkansas, Lowrance Bros. & Co., and individually C. J. Lowrance III, and C. J. Lowrance IV, and the Resolution Trust Corporation as Conservator of Commonwealth Savings & Loan Association
    91-180
    826 S.W.2d 278
    Supreme Court of Arkansas
    Opinion delivered March 23, 1992

      Richard L. Mays, Melanie L. Marsh-Weaver, and Oscar Fendler, for appellants.

      Ball & Barton, by: Whit Barton, for appellee.
   Tom Glaze, Justice.

Appellants brought a separate chancery court lawsuit to set aside a foreclosure decree which the same court had entered approximately three months earlier in favor of appellee Commonwealth Savings & Loan Association. Commonwealth had sued the estate of Ed Phillips and its co-executors and co-trustees, Leon and Jones Phillips, for defaulting on a promissory note which was secured by eighty acres of land located in Mississippi County that had been owned by Ed Phillips and made a part of a trust created under his will.

In his will, Ed established a trust for the benefit of his wife, Doshie, during her lifetime, and afterwards for the benefit of his nephews, Leon and Jones Phillips, his niece, Betty Phillips Winnmon, his great nephew, James Gates, and their heirs. Ed further devised all of his real estate to Leon and Jones, as co-trustees, directing that all income after taxes be paid annually to Doshie. He named his attorney, Henry Swift, a special trustee for the purpose of arbitrating any dispute arising between Leon and Jones. Upon Doshie’s death, Ed directed all income and proceeds were to be paid equally to Leon, Jones, Betty and James, and on their death the trust was to terminate with the corpus to be apportioned to the “heirs of their bodies” — the appellants in this appeal. Although Ed’s will provided the real estate should be “neither mortgaged nor sold,” the will’s final provision stated as follows:

In the event, and only in the event, my wife should, during her lifetime and after my death, become destitute, then if such condition exists in the opinion of my executors and trustees, the realty hereby bequeathed (sic) to the trust I have established may be mortgaged for her benefit.

Ed’s will was probated in 1960, and in 1977, Leon and Jones were authorized to mortgage the trust’s real estate, finding Doshie was destitute and loan monies were necessary to build her a house for her use and occupancy. In September 1985, Leon and Jones again filed a probate petition to borrow money from Commonwealth against the trust’s real estate, and these proceeds were used to pay off the earlier loan as well as the expenses of Doshie’s illness while residing at a nursing home. Doshie died in December of 1985, and Commonwealth obtained its foreclosure decree on the above-described indebtedness two years later. The trust’s real estate was conveyed by commissioner’s deed to Lowrance Bros. & Co. for $60,000.00, approximately $43,000.00 of which was used to pay Commonwealth’s loan and the balance was set aside for the benefit of the Ed Phillips’ estate.

In this appeal, appellants raise three points for reversal. First, they claim the chancellor erred in refusing to set aside Commonwealth’s foreclosure decree because Commonwealth had failed to obtain personal jurisdiction of all necessary parties. We must disagree.

Commonwealth sought service upon Leon and Jones Phillips under ARCP Rule 4(f) and (j) by mailing them, certified mail, return receipt requested, a copy of the summons, the foreclosure complaint, amended complaint and a warning order to the address they gave on the 1985 loan application. The notice was returned undelivered. By affidavit, Commonwealth’s vice-president averred that Commonwealth had made diligent inquiry, and it believed Leon and Jones were non-residents of Arkansas and their last known address was in Osceola. However, Swift, the special trustee of Ed Phillips’ estate, answered Commonwealth’s complaint, stating Betty Phillips Winnmon and Jones Phillips were deceased and that Jones’s heirs were necessary parties. Swift added that Leon was hospitalized and incompetent. No addresses were set out in Swift’s answer except to say that Leon was a resident of Phillips County. After Swift’s answer, Commonwealth amended its complaint to reflect that there may be additional parties not appearing in the chain of title to the Ed Phillips’ property. It subsequently published a warning order in the Osceola Times under the terms of Rule 4(j), naming Leon and Jones, individually and as co-trustees, and referring to all other interested parties who might claim an interest in Ed Phillips’ eighty-acre estate. The description of the property was included in the warning order as was the caption of the foreclosure pleadings.

Appellants question Commonwealth’s reliance on Rule 4 which requires two-weeks publication of the warning order in the county in which the court is held. They argue that Ark. Code Ann. § 16-58-130(b) and (c) (1987) requires four-weeks publication in the county where the action is brought. Appellants argue § 16-58-130(b) and (c) should control because it specifically provides for constructive service in actions against unknown heirs of a deceased person.

Provisions (f) and (j) of Rule 4 respectively set out in detail the methods to obtain service on defendants whose identifications and whereabouts are unknown and whose service may be obtained by warning order. Those provisions are clearly broad enough to include actions such as those contemplated under § 16-58-130(b) and (c). To the extent § 16-58-130(c) provided a different and longer publication requirement than Rule 4, we hold provision (c) was preempted by Rule 4. Thus, the two-week publication used by Commonwealth .was correct. See Lyons v. Forrest City Machine Works, Inc., 301 Ark. 559, 785 S.W.2d 220 (1990).

Under their first point, appellants also argue Commonwealth never made diligent inquiry as to the whereabouts of Leon Phillips and those appellant-heirs of Jones Phillips and Betty Winnmon, especially in view of the information furnished Commonwealth by Swift’s answer in the foreclosure lawsuit.

Basically, appellants contend the record failed to show proper service of summons on Leon in the foreclosure lawsuit. Nor, they argue, did Commonwealth show it had made diligent inquiry regarding the names and addresses of the heirs of Jones or Betty. The foreclosure decree, however, recites Commonwealth obtained service on these parties pursuant to ARCP Rule 4. In Frazier v. Merrill, 237 Ark. 242, 372 S.W.2d 264 (1963), this court held as follows:

. . . [A] judgment of a court of general jurisdiction cannot be collaterally attacked, unless the record affirmatively shows want of jurisdiction, and every fact not negatived by the record is presumed in support of the judgment of a court of general jurisdiction, and where the record of the court is silent upon the subject, it must be presumed in support of the proceedings that the court inquired into and found the existence offacts authorizing it to render the judgment which it did. (Emphasis in original.)

In sum, it is not enough to say the record failed to show Commonwealth did not make a diligent inquiry as to the appellants’ identities and addresses or as to where Leon was residing. The court in its foreclosure decree reflected service was had in the time and manner required by law, and this court now reviewing the chancery court’s decree presumes, as it must, that the court inquired into and found the existence of the facts authorizing it to render its decree. Again, Swift’s answer in the foreclosure lawsuit never set forth appellants’ names and addresses, and Commonwealth’s action in obtaining service on all necessary parties under Rule 4(f) and (j) is not in conflict with Swift’s pleading. Presumably, Commonwealth acquired no knowledge of the appellants’ names and identities, although it made diligent inquiry to locate them.

Next, the appellants argue the trial court erred in finding the two loans and mortgages then against the trust property were valid. Their argument in part is based on the language of Ed Phillips’ will that restricted the co-trustees’ power to mortgage the trust property only if Doshier became destitute. Appellants offer factual argument on why they believe Doshie was never destitute. The short answer to appellants’ argument here is that the Mississippi County Probate Court decided this issue in its June 20,1977 order authorizing the first mortgage. In that order, the probate court determined it was necessary to mortgage the estate’s real property because under the terms of Ed Phillips’ will, “Doshie is destitute.” While appellants may disagree with the probate court’s 1977 order on this issue, that court acted within its jurisdiction and its order is not now open to collateral attack. See Filk v. Beatty, 298 Ark. 40, 764 S.W.2d 454 (1989).

Appellants also suggest the co-trustees could only mortgage a life interest because Ed Phillips’ will created a fee-tail interest whereby appellants were remaindermen in fee simple. We need not explore this aspect of appellants’ argument since we believe the intent of the testator, Ed Phillips, is clear from reading his will that, foremost, he wanted his wife cared for and towards that end, he established a testamentary trust. He devised all of his real estate to the co-trustees for the purposes set out in his will, and made it plainly understood that the trustees could mortgage the real estate for Doshie’s benefit if she became destitute — which she did. In Ware v. Green, 286 Ark. 268, 691 S.W.2d 167 (1985), this court held that the exercise of a life tenant’s power of sale provided for in the will without reference to judicial determination should be set aside by a court only if exercised in bad faith. Under the Restatement (Second) of Trusts, § 88 (1959), the trustee of an interest inland takes such an estate as is necessary to enable him to perform the trust by the exercise of such powers as are incident to the ownership of the estate. Here, the co-trustees. Leon and Jones, determined that, in their opinion, Doshie was destitute. By order, the probate court confirmed the trustees’ opinion and authorized the mortgaging of the estate’s real property. We find nothing in the record that reflects bad faith on the trustee’s part, and in fact, as previously discussed, the probate court’s order bearing on Doshie’s destitute condition is not now subject to collateral attack.

Finally, appellants argue that the trial court erred in granting summary judgment to Lowrance Bros. & Co. under ARCP Rule 60(c)(2) and (f), thereby determining Lowrance had acquired good faith title to the eighty acres held and mortgaged by the estate. Like in their first point for reversal, appellants claim they had not been properly constructively summoned. They say that neither Commonwealth nor its attorney made a bona fide effort to locate appellants. Because the same law firm represented both Commonwealth and Lowrance, appellants assert the trial court should have imputed to Lowrance Commonwealth’s failure to make a diligent inquiry and to effect proper service. Of course, since we have already held the trial court awarding the foreclosure decree had proper service and jurisdiction of the appellants and other necessary parties, we necessarily find no merit in this argument involving Lowrance.

For the reasons discussed above, we affirm.

       These statutory provisions have since been reconciled by the General Assembly’s enactment of Act 199 of 1991, which amended them to read consistent with Rule 4(j).

       We similarly dispose of appellants’ mention of the statute of uses since we find the argument inapplicable to the will and trust provisions here.


source: Caselaw Access Project

author: Robert L. Brown, Justice.

license: Public Domain

text:
    Billy BROOKS v. STATE of Arkansas
    CR 91-196
    827 S.W.2d 119
    Supreme Court of Arkansas
    Opinion delivered March 23, 1992

      Larry W. Horton, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for for appellee.
   Robert L. Brown, Justice.

On June 14, 1991, the appellant, Billy Brooks, age seventeen, was convicted of aggravated robbery, rape, and kidnapping and sentenced to two terms of life imprisonment plus a term of forty years, respectively. He advances multiple arguments for reversal of his conviction. We hold that his argument regarding double jeopardy and his aggravated robbery conviction has merit, and we reverse that conviction and vacate that life sentence. We affirm his conviction and life sentence for rape and his conviction and forty-year sentence for kidnapping.

On February 28, 1991, at about 6:10 in the evening, the victim, who was co-owner of a grocery store in Malvern, had gone back to her store to get some items for supper. On entering the store, she observed a boy riding a bike nearby and then saw the appellant walking toward her. When she left the store with the groceries, she was accosted by the appellant, who yelled at her and asked where her husband was. She replied that he was at home, whereupon Brooks grabbed her by the arm and neck, placed a knife at her throat, and said, “Don’t lie to me, you damn bitch.” He demanded that she open the grocery store and asked where the money was kept because he wanted money. When she answered that she did not have a key to that door, the appellant stabbed her in the hand, severing an artery and nerve.

The boy on the bicycle told the appellant to leave the victim alone, and the appellant replied that he would kill the boy, too. The woman shouted to the boy to go get help. The appellant again demanded entry into the store, and when the victim answered that she could not unlock the door, he stabbed her a second time. When the victim tried to show that her key did not fit the door, she testified, “. . . he jerked the key out of my hand and just, like he just went beserk, he just started stabbing me.” Her lung was punctured as a result of the stabbing.

The woman was then dragged by the appellant 170 feet behind the store to an unoccupied car, where he told her that he was going to rape her. He removed her clothes from the waist down and pulled his clothes down and penetrated her. Following that, he said that he was going to rape her again. He then said that he was going to taker her out of town. He tried to start the car but to no avail. The police arrived, and he was arrested.

The appellant spent the night in the Hot Spring County jail and in the morning was found in his cell naked and wrapped in toilet paper. He was transported to the Malvern police station where, at about 10:36 a.m., he was given his Miranda warnings. He was given the warnings a second time at 12:23 p.m., and subsequent to the second warnings, he gave a statement that placed him at the crime scene, although he denied committing the crimes for which he was charged. In his statement, he admitted drinking a considerable amount of vodka and taking LSD before the attack on the woman.

At trial on June 14,1991, the appellant moved for a directed verdict on the three charges following the state’s case. The circuit court granted the motion on the aggravated robbery charge on the mistaken belief that aggravated robbery required that something be taken from the victim. At the end of all of the evidence, the court reversed itself and instructed the jury on the aggravated robbery charge. The jury convicted the appellant of aggravated robbery as well as rape and kidnapping and sentenced him to two life terms and forty years.

I. Double Jeopardy

After the state rested and the appellant had moved for a directed verdict on all counts due to the insufficiency of the evidence, the following discussion took place among the circuit court, the prosecutor, and defense counsel:

THE COURT: As to aggravated robbery, I think it should be granted. So, it’s granted as to the offense of Aggravated Robbery.
PROSECUTOR: Your Honor, I don’t think it should be granted as to Aggravated Robbery. The fact that he didn’t complete the robbery, the fact that he told her to open the door, he wanted the money, that constitutes Aggravated Robbery.
THE COURT: That’s just an attempt, isn’t it.
DEFENSE COUNSEL: Just an attempt.
PROSECUTOR: Well, are you going to instruct them on attempted aggravated robbery? It becomes aggravated robbery when you put someone in physical jeopardy.
THE COURT: You also have to take something from them. Otherwise, it’s just aggravated assault.
DEFENSE COUNSEL: Your Honor, I believe that our argument all along has been that battery, first degree is a lesser included of aggravated robbery.
THE COURT: I know what your arguments have been but the question is whether there is evidence that supports submitting the issue of aggravated robbery.
DEFENSE COUNSEL: I don’t believe there is, Your Honor.
PROSECUTOR: I think that if I tell you that I am going, I want your money and point a gun at you, even if I never did anything, I’m guilty of aggravated robbery.
THE COURT: I believe it’s aggravated assault. I don’t think it’s aggravated robbery.
DEFENSE COUNSEL: Motion is granted on that?
THE COURT: The motion is granted on the charge of aggravated robbery.

At the conclusion of all of the evidence, the court reversed itself and this colloquy ensued:

PROSECUTOR: Before the State rests, I want to make sure it’s in the record that the Court has reversed it’s earlier ruling on aggravated robbery.
THE COURT: Right, battery will be a lesser included offense of aggravated robbery.
DEFENSE COUNSEL: Your Honor, we’re going to object to the Court’s reversal of the ruling. The Court rules in favor of the defendant on a directed verdict. That means that there has been a verdict of acquittal by the Court’s order entered and to submit this to the jury at this point in time, constitutes double jeopardy in violation of the United States Constitution.
THE COURT: The Court reverses the ruling. The matter of aggravated robbery may be submitted to the jury.
THE COURT: All right, Mr. Horton, let’s complete our record on the aggravated robbery charge. You made a motion for a directed verdict on the aggravated robbery charge at the close of the State’s case. The Court was under the misunderstanding that aggravated robbery required an actual theft of property and granted the motion at a bench conference where the jury could not hear. The Court was then informed that only attempted theft of property was necessary to constitute aggravated robbery and has reversed that dismissal of the case and reinstated it for the jury’s consideration. The Court simply corrected the error that the Court made, the error of law that the Court made. The jury is not present now. They have not been instructed and I’m going to let you make any further record that you want to on that issue.
DEFENSE COUNSEL: Your Honor, the defense’s position is that the Court has issued a ruling of a directed verdict on the charge of aggravated robbery. A directed verdict is a judgment of acquittal. It is a judgment of acquittal just as if a jury had returned a judgment of acquittal. To now reinstate the charge, is not harmless error. It constitutes a second charge for the same offense and violates the double jeopardy clause of the Constitution of the United States. We ask the jury not be given that instruction, Your Honor.
THE COURT: Denied.

This precise double-jeopardy issue is one of first impression in Arkansas, and we turn to the U.S. Supreme Court and to other jurisdictions for guidance. The Supreme Court has made it clear that a decision that the evidence is legally insufficient to sustain a guilty verdict constitutes an acquittal for purposes of the Double Jeopardy Clause. Smalis v. Pennsylvania; 476 U.S. 140 (1986); Sanabria v. United States, 437 U.S. 54 (1978); Burks v. United States, 437 U.S. 1 (1978); United States v. Martin Linen Supply Co., 430 U.S. 564 (1977).

In Smalis, the Court was presented with an analogous issue to that before us in the present case. The defendant demurred at the end of the state’s case on grounds of insufficient evidence, and the trial court granted the demurrer. The state then sought to appeal, and the Pennsylvania Supreme Court remanded the case to the trial court for trial on the merits. The U.S. Supreme Court reversed, holding that the Double Jeopardy Clause bars a post-conviction appeal. A dismissal for insufficient evidence, such as we have before us in the present case, amounts to an acquittal even when the dismissal is based on an erroneous evidentiary ruling. Sanabria v. United States, supra.

Several jurisdictions have concluded that granting a motion for insufficient evidence on a charge at the close of the state’s case precludes the trial court from reversing that decision and submitting the charge to the jury. See Lowe v. State, 744 P.2d 856 (Kan. 1987); State v. Carney, 374 N.W.2d 59 (Neb. 1985); In the Matter of Dowling, 656 P.2d 497 (Wash. 1983).

In Lowe v. State, the defendant was charged with burglary and misdemeanor theft. The trial court dismissed the theft charge on its own motion. The next day the court reversed its decision, and the trial resumed. The jury found the defendant guilty of theft and acquitted on the burglary charge. On appeal, the Kansas Supreme Court relied on Smalis v. Pennsylvania, supra, and reversed the conviction on the basis that jeopardy attached at the trial and the dismissal constituted an acquittal of the theft charge.

The case of State v. Carney is similar. After the state rested its case for theft, the defense moved for acquittal for failure to make a prima facie case, and the court granted the motion. The state then asked to reopen its case and present additional evidence which the court also granted. The Nebraska Supreme Court held that it was error to permit the state to reopen its case after jeopardy had attached and a resolution of guilt had been made.

In the Matter of Dowling the trial court in a bench trial dismissed a theft charge at the conclusion of the state’s case due to the defendant’s lack of capacity. Four months later, the court reversed itself on a motion for reconsideration. The Washington Supreme Court concluded that the trial court could not later find the defendant guilty of the same crime.

These cases cover varying times when the trial court sought to reverse itself. In Lowe, the decision was the next day but while the trial was on-going. In Carney, the decision to allow the state to reopen its case was almost immediate. In the case before us, the circuit court waited until the conclusion of all evidence to place on the record its decision that it was submitting the robbery charge to the jury.

We hold that the circuit court’s granting of the motion to dismiss constituted a judgment of acquittal on the robbery charge. Accordingly, for the court to submit that charge to the jury at the end of the trial constituted double jeopardy. We are further mindful of the fact that dismissing the robbery charge and then reinstating it at the conclusion of all the evidence could well have curtailed the appellant’s ability to present a full defense to this charge. The prejudice under such circumstances is clear.

The state cites two cases in opposition to our holding today. See State v. Iovino, 514 A.2d 556 (R.I. 1987); People v. District Court, 663 P.2d 616 (Colo. 1983). The cases are distinguishable on their facts. In both instances, the trial court dismissed the greater offenses but continued the trial for lesser included offenses. The court then decided to reinstate the original offenses. That is not the fact situation before us in this case. Moreover, in both cases the appellate court determined that there was no prejudice to the defense waged by the defendant.

II. Directed Verdict on Kidnapping and Rape

The appellant is procedurally barred from raising the issue of sufficiency of the evidence as to kidnapping and rape, since he failed to renew his motion at the close of all of the evidence. Our rule of criminal procedure is clear that the failure to challenge the sufficiency of the evidence at both the close of the state’s case and the close of all of the evidence “will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the jury verdict.” Ark. R. Cr. P. 36.21(b). We have affirmed the rule repeatedly in our decisions. See, e.g., Rudd v. State, 308 Ark. 401, 825 S.W.2d 565 (1992). We do so again today.

III. Admissibility of Knife into Evidence

A knife was found between the front seat and console in the car where the attack occurred. The woman told police officers that the knife used against her was thrown “over into the back seat, between the seat.” The appellant cites this inconsistency on the knife’s location as reason for inadmissibility. In addition, the appellant points to the State Crime Lab’s testing of the knife and the fact that the results were inconclusive for blood type. The appellant also considers relevant expert testimony from a state’s witness that he could not testify with any degree of medical certainty that the knife found in the car was the knife used to slash the grocery items held by the victim and the victim herself.

The appellant’s primary argument on this score is that the circuit court abused its discretion in admitting an irrelevant piece of evidence that could not be tied directly to the attack and, further, that the knife unduly prejudiced the jury. We disagree. The knife was found in the car, which was the site of the crime, and the victim was cut by a knife. The instrumentality used to inflict fear is patently relevant to the crimes for which the appellant is charged, all of which include an element of force for perpetration. Whether this was the actual knife used was a matter for the jury to decide, but it was relevant to corroborate the testimony of the victim concerning the stabbings.

We have previously held that the admission of a fish stringer found at the home of the accused similar to that used to tie the hands of a murder victim was admissible as circumstantial evidence of guilt. See Miller v. State, 280 Ark. 551, 660 S.W.2d 163(1983). We hold that under these facts the knife was relevant, and no prejudice resulted to the appellant under our Rules of Evidence. See Ark. R. Evid. 401, 403.

IV. Additional Psychiatric Examination

The appellant next asserts that the psychiatric evaluation performed by a psychiatrist, Dr.William James, at the Southeast Arkansas Mental Health Center was incomplete due primarily to the fact that he did not have the benefit of Brooks’ prior criminal and medical records, including his psychiatric record, in making his evaluation. Dr. James concluded that the appellant had an antisocial personality disorder and suffered from substance abuse but possessed a culpable mental state at the time of the crimes. His report stated:

On the basis of this examination and Mr. Brooks’ comments in the intoxicated state in which he apparently chose to place himself by means of the alcohol and other drug consumption, he may have been unable to conform to the requirements of the law at the time of the alleged conduct. Nevertheless, Mr. Brooks does state in the interview that he is opposed to rape and “don’t believe in that.” Mr. Brooks was, by virtue of his voluntary consumption of intoxicating substances, in a culpable mental state at the time of the offense charged on the basis of the apparently very complex act that he states occurred which involved stabbing Ms. Wright “three or four times” and detaining her forcibly in the automobile, where Mr. Brooks states he was apprehended and arrested.

The circuit court ruled that the psychiatrist had found the appellant sane and had then gone forward and commented on the legal point that even if the appellant was voluntarily intoxicated at the time of the crimes, this was not a defense. The court refused a second evaluation. This decision was correct.

The appellant’s first examination was by a psychiatrist at a regional mental health center which the applicable statute specifically permits. See Ark. Code Ann. § 5-2-305 (1987). Dr. James’s report explicitly refers to the appellant’s history of substance abuse, incarceration for delinquency, and psychiatric problems. We hold that though Dr. James may not have had before him the full medical, psychiatric, and delinquency records of the appellant, his report substantially complies with the requirements of state law as set out in Ark. Code Ann. § 5-2-305(d) 1-4. See Beard v. State, 306 Ark. 546, 816 S.W.2d 860 (1991); see also, Ball v. State, 278 Ark. 423, 646 S.W.2d 693 (1983). The circuit court did not err on this point.

V. Probation Officer Testimony

The appellant also contends that the circuit court was in error in refusing to allow a juvenile probation officer to testify about his past delinquency record. The allegation of error is procedurally barred because the appellant failed to make a proffer at trial of what the probation officer’s testimony would have been. We do not reverse because of asserted error in the circuit court’s exclusion of a witness’s testimony in the absence of a proffer of what the witness’s testimony would have been. Bennett v. State, 307 Ark. 400, 821 S.W.2d 13 (1991); Thompson v. State, 306 Ark. 193, 813 S.W.2d 249 (1991).

VI. Failure to Reveal State’s Witness

The appellant argues that the state was remiss in not listing the name of Arkansas State Trooper Ron Ball on its prospective witness list pursuant to Ark. R. Crim. P. 17.1, and that this was reversible error. The report of the state trooper was received by the appellant prior to trial and during discovery, and he testified to matters contained in that report. The argument fails due to lack of any revealed prejudice to the appellant. See Prince v. State, 304 Ark. 692, 805 S.W.2d 46 (1991); Smith v. State, 303 Ark. 524, 798 S.W.2d 94 (1990).

VII. Use of In-Custodial Statement

After his second Miranda warning, the appellant gave a statement to the Malvern police. He denied committing the crimes and placed the blame on someone else. At the same time, he admitted being at the crime scene and being involved, though he denied stabbing the victim.

The state used the statement to rebut the appellant’s testimony at trial, and the appellant contends that the statement was not knowingly and intelligently made. The appellant focuses particularly on not knowing what the word “coercion” meant in the waiver of rights form, which the appellant signed.

An in-custodial statement may not be used for impeachment purposes if it was coerced. Mincey v. Arizona, 437 U.S. 385 (1978). The burden is on the state to show that an in-custodial statement was made voluntarily, intelligently, and without hope of reward or fear of punishment. Jackson v. State, 284 Ark. 478, 683 S.W.2d 606 (1985). At a hearing on the admissibility of the appellant’s statement, the Malvern police lieutenant and a juvenile court in-take officer who were present when the statement was given testified that no coercion had been employed. As a consequence, the circuit court found no coercion and ruled the statement admissible.

Conflicts in testimony regarding whether a statement is knowingly and intelligently made are for the trial court to resolve. Jackson v. State, supra. Here, we hold that there was no abuse of discretion in admitting the statement into evidence.

VIII. Additional Scientific Testing of State’s Evidence

[10 11] The appellant sought retesting of vaginal swabs from the victim and three knives recovered from the crime scene. These items had been tested by the State Crime Lab, and the results proved inconclusive, neither inculpating nor exonerating the appellant. The appellant presents no convincing basis for more tests, other than the first tests were inconclusive. Furthermore, apart from a broadly based argument, the appellant cites no authority establishing his entitlement to a second series of tests. Without cited authority, we need not address this issue. Ray v. State, 304 Ark. 489, 803 S.W.2d 894 (1991).

IX. Continuance

The appellant moved to continue the trial because the examining psychiatrist, Dr. James, was unavailable to testify at trial. Brooks concedes that a motion for a continuance is a matter entrusted to the sound discretion of the circuit court and that reversal must be predicated on an abuse of discretion. Gillie v. State, 305 Ark. 296, 808 S.W.2d 320 (1991). The appellant, however, failed to file an affidavit pursuant to Ark. Code Ann. § 16-63-402(a) (1987) setting forth, among other things, the facts that the affiant believes the unavailable witness would prove. We have underscored the necessity for this affidavit in justifying a continuance in previous cases. See, e.g., Ray v. State, supra. There was no abuse of discretion on this point.

The objections in the record have been abstracted, and we have further examined the record in accordance with Ark. Sup. Ct. R. 11(f) and have determined that there were no rulings adverse to the appellant which constituted prejudicial error.

Affirmed in part; reversed in part.


text:
    Grady HOLBERT v. STATE of Arkansas
    CR 91-252
    826 S.W.2d 284
    Supreme Court of Arkansas
    Opinion delivered March 23, 1992

      Joe Kelly Hardin, for appellant.

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

The appellant, Grady Holbert, appeals three of five convictions for sexual abuse in the first degree on grounds of insufficient evidence. The appeal is merit-less, and we affirm.

The appellant, age fifty-eight, operated a day-care center with his wife for a period of time which included June 20,1990, to September 25,1990. During these three months, he was charged with committing five counts of sexual abuse against five victims, all of whom were children below the age of fourteen who were kept at the day-care center. As part of the investigation, the appellant was questioned by Chief David R. Hooks of the Sheridan Police Department on September 26,1990. Prior to the questioning, the appellant waived his Miranda rights.

During the interrogation by Chief Hooks, the appellant admitted fondling victim A, age eight, and putting his hand in her pants, touching her vagina, and laying on top of her and rubbing his penis against her. He also admitted touching victim B, age three, “on top of her panties” and “on her vagina.” The appellant then asked for an attorney which rendered the balance of his statement inadmissible.

With regards to victims A and B, two other girls, ages nine and seven, who attended the day-care center and were also victims, testified that they saw him hold the girls with one hand and touch them between the legs with the other. They denied that the touching was accidental. One of the girl witnesses also testified that the appellant touched victim C, who was also three years old, in the same way.

The appellant was tried by jury on July 30,1991, and found guilty of all five counts of sexual abuse. He was sentenced to ten years on each count, to run consecutively for a total sentence of fifty years.

Sexual abuse in the first degree is defined by statute:

(a) A person commits sexual abuse in the first degree if: . . . (3) Being eighteen (18) years old or older, he engages in sexual contact with a person not his spouse who is less than fourteen (14) years old.

Ark. Code Ann. § 5-14-108(a)(3) (1987). Sexual contact is further defined as “any act of sexual gratification involving the touching, directly or through clothing, of the sex organs, or buttocks, or anus of a person or the breast of a female.” Ark. Code Ann. § 5-14-101(8) (1987). The appellant argues that the evidence is insufficient to support the convictions, but we disagree.

Substantial evidence, whether direct or circumstantial, must be of sufficient force that it compels a conclusion with reasonable and material certainty. Prince v. State, 304 Ark. 692, 805 S.W. 2d 46 (1991). In deciding whether there is substantial evidence to support the verdict, we review the evidence in the light most favorable to the appellee, and we need only consider the evidence that supports the verdict of guilt. Prince v. State, supra. Evidence is substantial to support a conviction if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion.and conjecture. Salley v. State, 303 Ark. 278, 796 S.W. 2d 335 (1990).

With respect to victims A and B, the appellant admitted conduct that constitutes a violation of the statute. In the case of victim C, an eyewitness testified that she saw the appellant “hold her with one hand and grab her between the legs with the other hand.” She had previously described that the area touched in the case of all three victims was “their privates.” Such evidence relating to the victims easily qualifies as substantial enough to support the conviction.

The appellant also contends that no evidence was presented of sexual gratification. We have recently held that we may assume that the appellant had sexual contact with the victim for sexual gratification, and that it is not necessary for the state to prove that he was so motivated. McGalliard v. State, 306 Ark. 181, 813 S.W.2d 768 (1991); Williams v. State, 298 Ark. 317, 766 S.W.2d 931 (1989). We, likewise, hold that the same assumption of sexual gratification may be made in this case, and evidence of that fact is not required.

Affirmed.


author: Per Curiam.

text:
    Willie ATKINS v. STATE of Arkansas
    CR 92-212
    827 S.W.2d 636
    Supreme Court of Arkansas
    Opinion delivered March 23, 1992

      Appellant, pro se.
    No response.
   Per Curiam.

The appellant Willie Atkins was found guilty by a jury of rape and battery in the first degree and sentenced to life and twenty years imprisonment. His appointed attorney Ralph Goza filed a timely notice of appeal on June 18, 1991, but did not tender the record to this court within ninety days of the date of the notice of appeal as required by Rule 5 of the Rules of Appellate Procedure. The clerk informed Mr. Goza that the record would not be lodged, but Goza took no further steps to perfect the appeal. The appellant has now filed a pro se motion for rule on the clerk in which he also seeks appointment of an attorney to represent him.

Criminal Procedure Rule 36.26 provides:

Trial counsel, whether retained or court appointed, shall continue to represent a convicted defendant throughout any appeal to the Arkansas Supreme Court, unless permitted by the trial court or the Arkansas Supreme Court to withdraw in the interest of justice or other sufficient cause.

An attorney may not simply tender the record in a criminal case in an untimely manner and take no further action. As an appellant should not be penalized for his attorney’s failure to tender the record in accordance with the rules of procedure, we grant the pro se motion for rule on the clerk.

Counsel has been directed by Per Curiam Order to appear on Monday, April 6,1992, at 9:00 a.m. to show cause why he should not be held in contempt of this court for failure to perfect the appeal in this case.

The request for appointment of counsel is denied because appellant has not shown that there is any good cause to relieve his appointed attorney of his obligation to represent him on appeal. See Fellows v. State, 307 Ark. 564, 822 S.W.2d 845 (1992). If information is adduced at counsel’s appearance before this court which indicates that counsel cannot provide effective assistance of counsel, appellant’s motion will be reconsidered.

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

Motion for rule on clerk granted; appointment of counsel denied.


text:
    Willie ATKINS v. STATE of Arkansas
    CR 92-212
    827 S.W.2d 637
    Supreme Court of Arkansas
    Opinion delivered March 23, 1992
   Per Curiam.

Appellant’s attorney Ralph Goza is directed to appear before this court at 9:00 a.m. on April 6, 1992, to show cause why he should not be held in contempt of court for failure to perfect the appeal in this case.


text:
    Charles UPTON, Jr. and Susie Upton v. ESTATE OF Charles J. UPTON
    CA 92-73
    828 S.W.2d 827
    Supreme Court of Arkansas
    Opinion delivered March 23, 1992

      L. Ashton Adcock, for appellants.

      William C. Ayers, for appellee.
   Per Curiam.

The appellee, Estate of Charles J. Upton, Jr., deceased, moved to dismiss this appeal on grounds that notice of appeal was not timely filed. An order was entered in this case on June 4, 1991, and that order incorporated by reference a Memorandum Opinion of the probate court filed on May 13, 1991. Following the order, the appellants filed a motion for rehearing on June 14, 1991, and asked for relief under both Ark. R. Civ. P. 59 and Ark. R. Civ. P. 60. With respect to the Rule 59 portion of the motion, the appellants contended that the probate court’s order failed to address whether certain corporate stock should be included in the estate. Alternatively, the appellants asked for correction of the court’s order to reflect that the corporate stock was part of the estate.

On August 2,1991, the probate court wrote an opinion letter clarifying its order to state that the estate owned only one share of the corporate stock. On September 25, 1991, the probate court entered an order nunc pro tunc denying the relief sought by the appellants but clarifying that the estate owned one share of the corporate stock. On October 11, 1991, the appellants filed their notice of appeal from the September 25, 1991, order.

We have previously held that failure of a trial judge to act on a Rule 59 motion within thirty days of its filing is deemed a denial, and thereafter the trial judge loses jurisdiction to act on the motion. Phillips v. Jacobs, 305 Ark. 365, 807 S.W.2d 923 (1991); Deason v. Farmers & Merchants Bank, 299 Ark. 167, 771 S.W.2d 749 (1989). A notice of appeal from that denial must be filed within thirty days of that denial. Ark. R. App. P. 4(a), 4(c). The appellants failed to do this, and with respect to the appeal as it relates to Rule 59 relief, the motion to dismiss is granted.

Rule 4(c) of the Appellate Rules requiring action on a Rule 59 motion within thirty days of filing does not apply to a Rule 60(a) request to correct an order. The appellants did move for a correction of the court’s order to include all of the corporate stock in the estate by motion on June 14,1991. The probate court denied the relief requested by letter dated August 2,1991, and by order dated September 25, 1991, and repeated the finding in its earlier Memorandum Opinion relating to the inclusion of only one share of corporate stock in the estate. Notice of Appeal was then filed within thirty days. Regarding the correction of the court’s order under Ark. R. Civ. P. 60(a), notice of appeal from the September 25, 1991, order was timely filed. See Kindiger v. Huffman, 307 Ark. 465, 821 S.W.2d 33 (1991). This appeal, however, relates only to the corrective or clarifying order entered September 25, 1991, and does not relate to the original order dated June 4,1991. Id. The motion to dismiss the Rule 60 appeal is denied.

The appellee moves to supplement the record to include the probate court’s opinion letter of August 2, 1991. That motion is granted.

Hays, J., would deny motion to dismiss.


author: Jack Holt, Jr., Chief Justice.

text:
    Mary Francis HENRY v. STATE of Arkansas
    CR 91-230
    828 S.W.2d 346
    Supreme Court of Arkansas
    Opinion delivered March 30, 1992

      Arthur Gilmore, Jr., for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, Mary Francis Henry, was convicted of delivery of a controlled substance, possession of a controlled substance with intent to deliver, and conspiracy to deliver a controlled substance for her involvement, along with members of her family, in the sale of cocaine. She was sentenced to a total of thirty-eight years imprisonment and $47,000 in fines. On appeal, Henry raises numerous points of error, none of which have merit, and we affirm.

I. VOIR DIRE

Henry first argues the trial court erred in restricting defense counsel’s questioning of certain venirepersons during voir dire.

The purpose of voir dire is to discover if there is any basis for challenge for cause and to gain knowledge for the intelligent exercise of peremptory challenges. Ark. R. Crim. P. 32.2. The extent and scope of voir dire is generally within the sound discretion of the trial court and, absent a clear abuse of this discretion, we will not reverse. Bryant v. State, 304 Ark. 514, 803 S.W.2d 546 (1991); Johnson v. State, 298 Ark. 617, 770 S.W.2d 128 (1989).

The first two instances in which Henry complains the trial court unduly restricted voir dire examination by the defense involved questions that had already been asked and answered. Defense counsel first inquired, in essence, whether the venirepersons believed Henry must have done something wrong in order to have been brought to trial. The following exchange occurred:

VENIREPERSON MCKINNON: Obviously, there’s evidence against her or they would not have brought us all here. But I don’t know whether she’s guilty or innocent because I haven’t heard the evidence.
DEFENSE COUNSEL: In other words, right now you believe that she has done something wrong, or she wouldn’t be brought to trial here. Is that correct:
VENIREPERSON MCKINNON: That is not what I said. I said that there is evidence against her or she wouldn’t be here. But whether she’s guilty or innocent I don’t know.

At this point, the State objected that the question was improper. The trial court ruled the question was proper but that it had already been asked and answered, in addition to a number of earlier questions posed by defense counsel concerning whether the venirepersons believed in the presumption of innocence and whether they believed the mere filing of charges indicated guilt.

The second instance occurred following a line of questioning as to whether the prospective jurors felt Henry needed to testify to prove her innocence. The trial court sustained the State’s objection to the following additional question posed to venireperson Barr: “. . .But would you, Miss Barr, truthfully expect to hear from her before you entered a verdict of not guilty in order to render a verdict of not guilty?” Henry’s counsel admitted “it was the same question in a different way” and the trial court remarked that the question had been answered, the same question had been asked in different ways, and that some of the questions had previously been addressed in the general voir dire. The trial court was correct in restricting the repetitive questions. There is no abuse of discretion when the trial court curtails protracted voir dire examination. Clay v. State, 262 Ark. 285, 556 S.W.2d 137 (1977).

In a third disputed instance, the trial court sustained the State’s objection to defense counsel’s inquiry of whether the venirepersons were acquainted with people “who don’t trust banks, and don’t put their money in the bank?” Henry argues the question was necessary since the State’s case rested upon large amounts of money seized in her home. We find no abuse of discretion in the trial court’s ruling that the question did not touch upon the qualifications of the venirepersons to serve as impartial jurors.

Two other questions were disallowed as being too speculative. In one, defense counsel asked a potential juror what he would do if another juror made reference, in the jury room, to the fact that Henry did not testify. In another, Henry’s counsel inquired of venireperson Moore whether it would “weigh on [her] conscience ... to find Mrs. Henry not guilty if [Ms. Moore] thought [Henry] was guilty but was not convinced beyond a reasonable doubt?” to which Ms. Moore replied “One more time?” Again, the questions were variations on previous lines of questioning. Moreover, the trial court did not abuse its discretion in restricting questions that were potentially confusing to the prospective jurors. See Johnson v. State, 288 Ark. 101, 702 S.W.2d 2 (1986).

II. EXCUSAL FOR CAUSE

Henry next argues the trial court erred in excusing for cause venireperson Tori Staples. During voir dire examination by the State, Ms. Staples stated that she had gone to school with Henry’s daughter and that when they see each other, they have a conversation. Ms. Staples said if she were to sit as a juror and a verdict was rendered against Henry, it would cause her embarrassment when she encountered Henry’s daughter. She stated it would be difficult for her to sit as an impartial juror.

Upon further questioning, Ms. Staples did state she felt she could act impartially in her consideration of the evidence and apply the law to the facts and evidence; however, she again stated that “as far as serving, I would rather not.” She said the anticipation of embarrassment would cause her problems in sitting as a juror in the case.

A potential juror may be challenged for cause if he or she is actually biased. A venireperson is actually biased if he or she cannot try the case impartially and without prejudice to the substantial rights of the party challenging. Ark. Code Ann. § 16-33-304(b)(2)(A) (1987). This determination lies within the sound discretion of the trial court. See Fleming v. State, 284 Ark. 307, 681 S.W.2d 390 (1984). Ms. Staples’ responses to questions of whether she could try the case impartially were, at best, conflicting, and she clearly stated she would prefer not to be seated on the jury due to her acquaintance with Henry’s daughter. The trial court is in a superior position to assess the demeanor of the prospective jurors, Fleming v. State, supra, and we see no abuse of the trial court’s discretion in excusing Ms. Staples for cause.

III. PRIOR BAD ACTS

For her third allegation, Henry claims the trial court erred in denying her motion in limine to exclude evidence of three prior drug sales involving Henry’s husband and two sons. One of the sales occurred in June 1989, several miles from the Henry residence, and the other two sales, according to Investigator Linda Law, occurred on June 9,1990; one in an oil field near the Henry home and the other at the residence itself. All three incidents occurred within the time frame specified in the criminal information filed against Henry. The 1990 sales occurred only two months before undercover officers filmed Henry taking money from her husband, following a sale outside the Henry’s home, on August 21, 1990.

Henry argues the sales prior to August 21, were inadmissible under A.R.E. Rule 404(b) as they were introduced simply to show Henry’s family members “are bad persons,” and because the evidence was irrelevant and prejudical. We disagree.

The State’s evidence at trial revealed that police had been investigating Henry’s husband, Jeffro Henry, for several years. In a search following the drug sales in June 1990, police discovered large amounts of cash in Mrs. Henry’s purse. In a search of the home following the undercover sale in August, the police again found large amounts of money in Mrs. Henry’s purse and in a bank bag she had in her possession. The latter search was prompted by a videotape of Mr. Henry making a sale outside his home, shortly after which Mrs. Henry was filmed taking from Mr. Henry, money he had just received from the undercover buyer. Large amounts of unexplained deposits, beginning in June 1990, were made by the Henrys to various accounts in different banks. The couple’s financial ledgers were controlled by Mrs. Henry. In statements to the police, Mr. Henry indicated that, during the period from June 1989 to August 1990, he would put the money he received from cocaine sales in his wife’s purse.

We have had little occasion to consider questions of admissibility of evidence under A.R.E. Rule 404(b) in conspiracy cases, as charges of this nature are usually prosecuted at the federal level. Federal courts have commonly held that where evidence of other crimes is offered in a conspiracy case, the proof is not inadmissible under federal Rule 404(b) (which is identical to our Rule 404(b)), since it is not evidence of an “other crime,” but rather “is offered as direct evidence of the fact in issue, not as circumstantial evidence requiring an inference as to the character of the accused.” 22 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure § 5239 at 450 (1978) . This reasoning is persuasive.

The State’s case against Henry was premised on the occurrence of regular drug sales by members of Henry’s family, from which Henry knowingly took and managed the illegal monies. Testimony regarding the sales in 1989 and 1990 were admissible as evidence of that conspiracy. Furthermore, federal courts have consistently held that other acts of the conspirators, though they may have occurred prior to the defendant’s actual entry into the conspiracy or to the dates charged in the information, are admissible as bearing on the existence and purpose of the conspiracy charged. See United States v. Bates, 600 F.2d 505 (1979); United States v. Aguiree Aguirre, 716 F.2d 293 (5th Cir. 1983); United States v. Garbett, 867 F.2d 1132 (8th Cir. 1989).

If we analyze general principles of admissibility under our Rule 404(b), we note that evidence of other crimes will be admitted if 1) it has independent relevance, and 2) its relevance is not substantially outweighed by the danger of unfair prejudice. Price v. State, 268 Ark. 535, 597 S.W.2d 598 (1980). As to whether the evidence is independently relevant, it must be relevant in the sense of tending to prove some material point rather than merely trying to prove the defendant is a criminal. Carter v. State, 295 Ark. 218, 748 S.W.2d 127 (1988). Whether the probative value outweighs the prejudice is a matter left to the sound discretion of the trial judge. Beebe v. State, 301 Ark. 430, 784 S.W.2d 765 (1990).

Again, the evidence of prior 'drug sales by other members of Henry’s family was relevant to show there was in fact an ongoing drug operation and that Henry was part of that operation. Evidence of a conspiracy may be shown by circumstantial evidence, without direct proof of a prior agreement. See King v. State, 271 Ark. 417, 609 S.W.2d 32 (1980). As to potential prejudice, Professors Wright and Graham have suggested that proof of conduct of third persons does not normally support a strong inference of bad character of the accused. “The jury might infer that the defendant has a bad character by virtue of his association with his co-conspirators, but the prejudice is usually less than in cases where it is the defendant’s own acts that are proved.” Federal Practice and Procedure § 5239 at 451, supra.

Under either analysis, we do not find the admissions of the prior drug transactions constituted reversible error.

IV. SEVERANCE

Henry next contends the trial court erred in denying her motion to sever the three charges filed against her: delivery of cocaine, possession with intent to deliver, and conspiracy to deliver cocaine. The trial court allowed the charges to be tried together under Ark. R. Crim. P. 22.2, as they constituted a single plan or scheme.

We will affirm a trial court’s denial of a motion to sever if the offenses at issue were part of a single scheme or plan or if the same body of evidence would be offered to prove each offense. Brown v. State, 304 Ark. 98, 800 S.W.2d 424 (1990). The State’s theory was that, over a fourteen-month period, Henry had conspired with members of her family to sell cocaine. That conspiracy ended on the date she was arrested for possession with intent to deliver, and delivery. The same evidence and witnesses were necessary to prove each of the three charges.

The decision to sever offenses is, again, discretionary with the trial court, see Ferrell v. State, 305 Ark. 511, 810 S.W.2d 29 (1991), and we find no abuse of that discretion here.

V. MISTRIAL

For her fifth point of error, Henry argues the trial court erred in denying her motion for a mistrial based on testimony given by State’s witness Chief Deputy Robert Gorum. Chief Deputy Gorum testified that he had received information concerning Henry’s husband, Jeifro Henry, since 1985, and that he had been investigating Mr. Henry for a long period of time.

Following this testimony, counsel approached the bench and Henry’s attorney requested a mistrial as the testimony mentioned events occurring before the dates listed in the information. The trial court denied the motion but offered to instruct the jury that the time frame at issue began in June 1989. Henry’s counsel declined the offer and did not move to strike the testimony. Furthermore, Henry has not demonstrated how she was prejudiced by the ruling. Under such circumstances, we cannot say the trial court erred in denying the motion for a mistrial. See Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988); Birchett v. State, 294 Ark. 176, 741 S.W.2d 267 (1987).

VI. SUBSTANTIAL EVIDENCE

In her next four arguments for reversal, Henry claims the State failed to prove, beyond a reasonable doubt, that she was an accomplice to the drug sales made by Jeffro Henry; that she possessed cocaine; that she delivered cocaine; and that she conspired with Jeffro Henry to commit the crimes with which she was charged; These arguments constitute challenges to the sufficiency of the evidence; however, we cannot consider them as the issues were not preserved for appellate review.

Henry moved for a directed verdict based on insufficiency of the evidence at the close of the State’s case but failed to renew the motion at the end of all the evidence, as required by Ark. R. Crim. P. 36.21(b). The rule is strictly construed and, therefore, we cannot consider Henry’s arguments. See Collins v. State, 308 Ark. 536, 826 S.W.2d 231 (1992); Cole v. State, 307 Ark. 41, 818 S.W.2d 573 (1991).

VII. CLOSING ARGUMENT

Lastly, Henry maintains the trial court erred in overruling her objection to a statement made by the prosecutor during closing arguments. The prosecuting attorney compared Henry to Jim Baker, “. . . .doing one thing public, and in the background what was he doing? Spending zillions of dollars. That’s what you got here. Think about that folks.”

The trial court noted that the jury had been instructed to “use their common knowledge” and “that the argument of counsel is not evidence.” The court concluded that the jury could “consider and listen to argument and determine that it should be disregarded.” We agree. Although the prosecutor’s reference to the television evangelist may have been improper, it was not the type of commentary on matters or evidence outside the record with which we are usually concerned in closing arguments. See Williams v. State, 294 Ark. 345, 742 S.W.2d 932 (1988); Foster v. State, 294 Ark. 146, 741 S.W.2d 251 (1987); Jeffers v. State, 280 Ark. 458, 658 S.W.2d 869 (1983). Moreover, the jury was properly instructed that “closing remarks of the attorneys are not evidence. . .’’and that “any argument, statements, or remarks of attorneys having no basis in the evidence should be disregarded by you.” This was sufficient to overcome any prejudice to Henry that may have resulted from the prosecutor’s remarks. See Jeffers v. State, supra.

For the foregoing reasons, the verdict and sentence are affirmed.


author: Jack Holt, Jr., Chief Justice. Tom Glaze, Justice, dissenting.

text:
    James C. PLEDGER, Commissioner of Revenues, Department of Finance & Administration, State of Arkansas v. ARKLA, INC.
    91-136
    827 S.W.2d 126
    Supreme Court of Arkansas
    Opinion delivered March 30, 1992
    [Rehearing denied May 4, 1992.]

      Cora L. Gentry, Revenue Legal Counsel, for appellant.

      Blanchard, Walker, O’Quin & Roberts, by: J. Edgerton Pierson, Jr:, and Jack, Lyon & Jones, P.A., by: Eugene G. Sayre, for appellee.

       Corbin, J., would grant rehearing.

   Jack Holt, Jr., Chief Justice.

The main issue in this case concerns the authority of the Department of Finance and Administration for the State of Arkansas (DFA) to tax the natural gas taken by the appellee, Arkla, Inc. (Arkla), from its interstate transmission pipelines located in Arkansas to fuel compressors at its compressor stations and Arkla’s entitlement to an exemption from such a tax.

Arkla is a Delaware corporation that has its principal places of business in Little Rock, Arkansas, and Shreveport, Louisiana. During the period of January 1, 1976, through February 28, 1987, Arkla was engaged in the business of producing, buying, transporting, and selling natural gas in the states of Arkansas, Louisiana, Kansas, Oklahoma, and Texas. Arkla bought natural gas in these states and transported it through its interstate transmission pipelines to points in those states where the gas was metered for sale to residential, industrial, and commercial customers.

To facilitate the transportation of the natural gas, Arkla maintained compressor stations to pump the gas along the interstate transmission pipeline. Three of these compressor stations are located in Arkansas and are at issue in this case because Arkla diverted some of the natural gas in the interstate pipeline to power the compressors at the stations.

In February 1979, Arkla filed a claim with the DFA for credit of the Arkansas sales tax ($31,222.18) that it had paid from January 1976 through December 1978 on this fuel. The DFA did not respond to Arkla’s claim, whereupon Arkla claimed the credit on its 1980 Arkansas sales tax report. Subsequently, Arkla did not report any state or local taxes attributable to the value of the natural gas consumed as compressor fuel at the three compressor stations.

The DFA audited Arkla’s Arkansas sales tax reports filed for the periods from January 1,1980, through February 28,1987, and proposed deficiency assessments of additional sales tax, penalties, and interest based on its determination that the compressor fuel was taxable.

Arkla protested the DFA’s proposed assessments to the DFA’s Hearing Board, which sustained the assessments. Arkla then paid, under protest, the amounts in controversy and filed this suit for refund in the Pulaski County Chancery Court. From the Special Chancellor’s judgment in favor of Arkla, the DFA appeals and asserts four points of error: 1) that the chancellor erred in finding that Arkla has shown its entitlement to an exemption beyond a reasonable doubt, 2) that the chancellor erred in allowing Arkla to take a credit without a showing that the statutory requirements of the Tax Procedure Act had been met, 3) that the chancellor erred in finding that the penalty assessed by the DFA was without basis, and 4) that the chancellor erred in its award of attorneys’ fees.

We agree that the chancellor erred in finding that Arkla has shown its entitlement to an exemption from the Arkansas Gross Receipts Tax Act of 1941 (Tax Act) beyond a reasonable doubt and reverse and remand.

In Ragland v. Dumas, 292 Ark. 515, 732 S.W.2d 118 (1987), we noted that the standard of review for tax exemption cases is trial de novo on the record, and we will not reverse the chancellor’s findings of fact unless they are clearly erroneous. Further, the party claiming an exemption from taxes has the burden of proving his entitlement beyond a reasonable doubt; tax exemptions must be strictly construed against exemption, and to doubt is to deny the exemption. (Citations omitted.)

Arkansas Code Ann. § 26-52-301 (Supp. 1991) addresses the tax levied under the Tax Act and provides in pertinent part that “[t]here is levied an excise tax of three percent (3 %) upon the gross proceeds or gross receipts derived from all sales to any person of the following: ... 2) Natural or artificial gas . . . .” Ark. Code Ann. § 26-52-103(a)(4) (Supp. 1991) defines the terms “gross proceeds” and “gross receipts” to include “the value of any goods, wares, merchandise, or property withdrawn or used from the established business or from the stock in trade of the established reserves for consumption or use in such business or by any other person.”

Arkla does not assail the nature of the tax, i.e. a sales rather than a use tax; it challenges the State’s authority to enforce such a tax on the basis that 1) U.S. Const, art 1, § 8, cl. 3 (the Commerce Clause) allows Congress to regulate commerce among the several states and thus prohibits the imposition of a sales tax by the State in this instance, and 2) it claims an exemption from the Tax Act under Ark. Code Ann. § 26-52-401(16) (Supp. 1991), which provides that there is specifically exempted from the tax imposed by the Tax Act “[g]ross receipts or gross proceeds derived from sales for resale which the state is prohibited by the Constitution and laws of the United States from taxing or further taxing, or which the state is prohibited by the Arkansas Constitution from taxing or further taxing.”

In Complete Auto Transit, Inc. v. Brady, 430 U.S. 274 (1977), a movement case that held that a state privilege tax on the business of moving goods in interstate commerce is not per se unconstitutional, the United States Supreme Court ruled that a state tax will be sustained against a commerce clause challenge when the tax 1) is applied to an activity with a substantial nexus with the taxing State, 2) is fairly apportioned, 3) does not discriminate against interstate commerce, and 4) is fairly related to the services provided by the State.

Later, the Supreme Court applied the Complete Auto factors, and reinforced its position, in Washington Rev. Dept. v. Stevedoring Assn., 435 U.S. 734 (1978), and determined in that case that the State of Washington’s business and occupation tax did not violate the Commerce Clause by taxing the interstate commerce activity of stevedoring within the state even though it was a direct tax on the privilege of conducting interstate business. The Court noted that “[a] 11 tax burdens do not impermissibly impede interstate commerce. The Commerce Clause balance tips against the tax only when it unfairly burdens commerce by exacting more than a just share from the interstate activity.”

Most recently, the Supreme Court of Utah in Questar Pipeline Co. v. Utah State Tax Comm’n, 817 P.2d 316 (Utah 1991), has held that the tax commission did not violate the commerce clause by applying a use tax to compressor-fuel gas that was diverted from the flowing gas in Questar’s interstate pipeline and consumed in fueling its compressors. Although the only prong of the Complete Auto test that was at issue in that case was the “substantial nexus” point, the court’s analysis of the constitutional issue and prior case law is persuasive:

One of the principle cases upon which Questar [and, in this case, Arkla] relies is Midwestern Gas Transmission Co. v. Wisconsin Dept. of Revenue, 84 Wis.2d 261, 267 N.W.2d 253 (1978). In that case, the taxpayer, a foreign corporation, was an interstate pipeline company that purchased natural gas from outside the state and sold it to customers within the state. The pipeline operations included two compressors located within Wisconsin that, as in this case, took gas from the pipeline stream in order to fuel the compressors. Id. 267 N.W.2d at 253-54. The Midwestern Gas court found that there was not sufficient nexus to justify taxation. Id. at 258. Although at first glance the facts of Midwestern Gas and this case appear similar, we conclude that this court must reach a different result for the following reasons.
First, in declaring the pipeline company’s consumption nontaxable, the Midwestern Gas court relied in part on the “comes to rest” doctrine. See id. at 255-56. That doctrine has subsequently been discredited by the Supreme Court as no longer applicable or relevant under the Complete Auto test. See D.H. Holmes Co. v. McNamara, 486 U.S. 24 (1988). Further, there are some significant factual differences between Midwestern Gas and this case. Here, some of the gas originates within the state of Utah, which was not the case in Midwestern Gas. Also, Questar is not a foreign corporation; its operations are based in Utah. Under the reasoning of National Geographic, Questar’s operations as a whole have a much clearer nexus with the state of Utah than the taxpaper had with Wisconsin in Midwestern Gas.
In this case, Questar is a Utah corporation with corporate offices in the state. It owns and operates an extensive network of pipelines throughout the state and conducts transportation, sales, and storage activities here. Without the activity taxed — the direct diversion of gas from Questar’s pipeline to fuel the compressors — the entire operation would cease to function. We affirm the Commission’s conclusion that Questar, through its activities in conducting the operations of the pipeline and compressors, does have a substantial nexus with the state and the gas used to fuel those compressors is subject to Utah’s use tax ....

Applying the Complete Auto factors and Washington Rev. Dept. v. Stevedoring Assn., supra, rationale to this case, we note that Arkla has presented no facts that would justify invalidation of the sales tax. The obvious nexus between Arkla and the State of Arkansas is supported by the fact that some of the gas in Arkla’s pipeline originates in Arkansas and, although Arkla is a Delaware corporation, one of its two stated principal places of business is in Little Rock, Arkansas. Also, as in Questar, Arkla owns and operates an extensive network of pipelines throughout Arkansas in which it produced, bought, transported, and sold natural gas. Consequently, there is a substantial nexus between Arkla and Arkansas to satisfy the first point of the Complete Auto test.

Next, in determining that the tax is fairly apportioned, we find it significant that the gas at issue is actually consumed in Arkansas; only that gas consumed in the state is subject to the tax, and no other state will tax the withdrawn gas once it is consumed.

In assessing the third factor, we find that Arkla has not shown how the tax at issue discriminates against interstate commerce.

Finally, the State of Arkansas provides numerous services to Arkla, and there is nothing in this record which suggests that Arkla doesn’t avail itself of all of the amenities provided by the State to businesses operating within the state, i.e. police and fire protection, access to roads, etc. Therefore, nothing in the record suggests that the tax is not fairly related to the services and protection provided by the state.

Accordingly, for the foregoing reasons, we find that the elements encompassed in the Complete Auto test have been satisfied, and, consistent with Complete Auto, supra, and Washington Rev. Dept. v. Stevedoring Assn., supra, the imposition of a sales tax on the fuel consumed in Arkla’s compressor stations is not constitutionally impermissible and that Arkla is not entitled to an exemption under section.26-52-401 (16). Consequently, we need not address the DFA’s remaining three arguments, and the judgment of the trial court is reversed and remanded.

Glaze and Corbin, JJ., dissent.

Tom Glaze, Justice, dissenting.

The majority decision raises more questions than it answers. Basically it relies upon the cases of Complete Auto Transit, Inc. v. Brady, 430 U.S. 244 (1977), and Questar Pipeline Co. v. Utah State Tax Comm’n, 817 P.2d 316 (Utah 1991), to reverse the trial court’s holding that Arkansas could not constitutionally impose a sales tax on the fuel consumed in Arkla’s compressor stations.

In reaching its result, the majority opinion fails to mention three cases cited by Arkla that were decided before and after Complete Auto and appear to go contrary to this court’s decision. See Midwestern Gas Transmission Co. v. Wisconsin Department of Revenue, 84 Wis. 2d 261, 267 N.W.2d 253, cert. denied, 439 U.S. 997 (1978), (a case that presented a factual situation similar to the one here and where the Wisconsin Supreme Court held Wisconsin’s attempt to impose a use tax upon natural gas consumed as compressor fuel at the pipeline’s interstate compressor stations in Wisconsin was prohibited by the Commerce Clause); see also similar use tax on compressor fuel cases predating Complete Auto, Texas Gas Transmission Corp. v. Benson, 444 S.W.2d 137 (Tenn. 1969), and Michigan Wisconsin Pipeline Co. v. State, 58 Mich. App. 318, 227 N.W.2d 334 (Mich. App. Div. 2 1975).

Also, the Questar decision cited by the majority is not embraced by Arkla or the state. In fact, the state recognizes the weakness of Questar, stating that “if [this] court chooses to follow the rationale of the Utah Supreme Court in the Questar decision, legal and factual distinctions between the cases should be clearly outlined.” The majority opinion ignores the state’s request.

The state’s point in distancing itself from Questar is, like the three cases cited above by Arkla, the Utah decision involved a use tax, not a sales tax. Why the distinction? The state is aware of Arkansas law, Ark. Code Ann. § 26-53-106 (Supp. 1991), and this court’s decisions construing it. That statute provides in pertinent part as follows:

(a) There is levied and there shall be collected from every person in this state a tax or excise for the privilege of storing, using, distributing, or consuming within this state any article of tangible personal property purchased for storage, use, distribution, or consumption in this state at the rate of three percent (3 %) of the sales price of the property.
(b) This tax will not apply with respect to the storage, use, distribution, or consumption of any article of tangible personal property purchased, produced, or manufactured outside this state until the transportation of the article has finally come to rest within this state or until the article has become commingled with the general mass of property of this state. (Emphasis added.)

In interpreting the foregoing statute, we have said that if the goods have not “come to rest” within the state, they are still in the stream of interstate commerce, and a tax may not be levied. Martin v. Riverside Furniture Co., 292 Ark. 399, 730 S.W.2d 483 (1987).

In the present case, the evidence stands unrefuted that the fuel involved has not (and would never) “come to rest." Being cognizant of this fact, the state is aware it is unable under Arkansas law to levy a tax on Arkla’s fuel unless it can do so under a theory other than one pertaining to use tax. Consequently, it contends the Arkla fuel is subject to Arkansas’s sales tax, which does not necessarily depend upon the fuel coming to rest in this state.

The state argues the standard in a sales tax case is “did the sale occur in Arkansas?” It then suggests that, under Ark. Code Ann. § 26-52-103(a)(4) (Supp. 1991), the sale here occurred when Arkla withdrew its gas from its pipeline for its own consumption. The state cites Georgia Pacific Corp. v. Larey, Commr., 242 Ark. 428, 413 S.W.2d 868 (1967), and theorizes that, while no actual transfer or sale is made by Arkla to a buyer, Arkla, in withdrawing the small amount of fuel here, is actually transferring that fuel from “Arkla the Interstate Shipper” to “Arkla the Consumer of Natural Gas.”

The state’s argument is ingenious, but ignores the record in this case. At each compressor station along Arkla’s interstate transmission line, Arkla diverts a small amount of natural gas from the gas in transit and burns that gas only to power the compressors that work to continue the gas in route to destinations in other states. Arkansas cases such as Georgia Pacific are authority for imposing a sales tax on property withdrawn from a company’s stock when the withdrawn property is utilized for the company’s own personal use. Again, the evidence reflects that the small amount of fuel diverted for compressor purposes is constantly flowing and is consumed within no more than three minutes of its being diverted from the mass of gas being transported in the interstate transmission pipeline. The compressor fuel is not withdrawn for Arkla’s personal or domestic use. The diverted gas is never metered in Arkansas or regulated by the Arkansas Public Service Commission. Instead, such gas is regulated and controlled entirely by the Federal Energy Regulatory Commission.

In conclusion, the majority opinion attempts to sidestep the issue bearing on the state’s authority under Arkansas law to impose a tax by stating Arkla never assailed the nature of the tax, i.e., sales versus use. In making such statements, the majority court conveniently ignores the state’s own argument which is predicated upon the fact that it imposed a sales rather than a use tax on Arkla’s compressor fuel. As mentioned above, the state, in view of the evidence presented in this case, cannot justify a use tax under Arkansas law because the fuel had never “come to rest” within the state. For this and other reasons, the state insisted below, and in this appeal, that the nature of the tax imposed is significant. To reiterate, the state emphasized that, if this court relies upon Utah’s Questar case, (which the majority cites), the court should clearly outline why. The state’s reason for making such a request is because the court in Questar appeared to justify the Utah tax as a use tax on compressor-fuel gas, which differs significantly from the sales tax theory the state asserts here.

The state wishes to accept the result reached in the Questar decision, but it cites not one case involving compressor-fuel where a court has upheld a tax, as a sales tax, on such fuel. The Questar case reaches the result the state here seeks, but the use tax rationale that underpins that decision creates other potential problems for the state which I have already described above.

I agree with the majority opinion that the Commerce Clause does not necessarily forbid a state from imposing a tax on interstate activity. However, that is not the threshold issue in this case. Under the facts and Arkansas law here, Arkansas clearly is unauthorized to impose a sales or use tax. The state’s characterization of Arkla’s burning of its compressor fuel as a withdrawal, transfer, or sale falls short of the requirements and express purposes of Arkansas’s Gross Receipts Law, § 26-52-103(a) (4). Nor can a use tax be assessed when the fuel in question has never come to rest in this state. The decision reached by the trial court is correct and should be affirmed.

For the foregoing reasons, I respectfully dissent.

Corbin, J., joins this dissent.

       The recent case of Tennessee Gas Pipeline Co. v. Marx, 90-CC-1253 (Miss. February 5, 1992) (decided after the present case was submitted and argued on appeal), upheld Mississippi’s imposition of a use and excise tax on compressor fuel that was used by the Tennessee Company for the same purposes and in the same manner Arkla used its compressor fuel, viz., to propel natural gas through an interstate pipeline. This Mississippi decision seems to be consistent with the Questar holding.


author: Robert H. Dudley, Justice.

text:
    Chris McDANIEL v. STATE of Arkansas
    CR 91-266
    826 S.W.2d 286
    Supreme Court of Arkansas
    Opinion delivered March 30, 1992
    [Rehearing denied May 4, 1992.]

      Jeff Duty, for petitioner.

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

      Appellant’s petition denied; appellee’s petition moot.

   Robert H. Dudley, Justice.

Appellant was stopped by a Rogers policeman for driving while intoxicated and for making an improper change of lane on a roadway. The officer issued citations for both offenses. See A.R.Cr.P. Rule 5.2. Neither an information nor an indictment was subsequently issued. Appellant was found guilty in municipal court and appealed to circuit court. His trial is set, and he seeks a writ of prohibition to prevent the circuit court from trying him for the offenses because, he argues, the citations were void and he is not charged with an offense. We decline to issue the writ.

A.R.Cr.P. Rule 5.2 gives “law enforcement officers” the authority to issue citations. A.R.Cr.P. Rule 1.6 defines law enforcement officers as “any person vested [by statute] with a duty to maintain public order or make arrests for offenses.” Appellant contends that Act 846 of the Regular Session of 1989, codified as Ark. Code Ann. § 16-81-106 (Supp. 1991), gave authority to certain law enforcement officers to make arrests, but Act 44 of the Third Extraordinary Session of 1989, codified as Ark. Code Ann. § 12-9-108(a) (Supp. 1991), repealed the authority of law enforcement officers to make arrests. His argument concludes that since law enforcement officers cannot make arrests they cannot issue citations, and therefore, the citations in these cases are void, and the circuit court has never acquired personal jurisdiction over him.

Act 846 of the Regular Session of 1989, Ark. Code Ann. § 16-81-106 (Supp. 1991), gave the authority to make arrests to certified law enforcement officers and other specified persons such as special agents of the Federal Bureau of Investigation. Later, Act 44 of the Third Extraordinary Session of 1989, Ark. Code Ann. § 12-9-108(a) (Supp. 1991), was enacted, and it provides that actions taken by law enforcement officers who are not certified “shall not be held invalid merely because of the failure to meet the standards and qualifications [for certification].” It is true that Acts 846 and 44 of 1989 are repugnant in that Act 846 provides that only certified law enforcement officers have the authority to make arrests, while Act 44 provides that it does not matter whether officers are certified in order to make a valid arrest. However, that limited difference did not repeal the authority of law enforcement officers to make arrests.

In summary, the General Assembly has not abrogated the authority of law enforcement officers to make arrests. A law officer who is vested with the authority to make arrests can issue citations. Therefore, the citation issued in this case was not void, and we will not issue the writ of prohibition.

Writ denied.


author: David Newbern, Justice. Donald L. Corbin, Justice,

text:
    Robert Christian WALKER v. STATE of Arkansas
    CR 91-228
    827 S.W.2d 637
    Supreme Court of Arkansas
    Opinion delivered March 30, 1992
    [Rehearing denied April 20, 1992.]

      Jeff Rosenzweig and William C. McArthur, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

The appellant, Robert Christian Walker, was charged in Pulaski Circuit Court with first degree murder. He was convicted of the lesser included offense of manslaughter and sentenced to ten years imprisonment. Walker was 14 years old when the offense was committed. He argues manslaughter is an offense of which only a juvenile court has jurisdiction to convict and punish a person his age. We hold the Circuit Court acquired jurisdiction upon the filing of the first degree murder charge, and it retained jurisdiction to convict and sentence for the lesser included offense.

Prior to trial, Walker’s motion to transfer the charge to juvenile court was denied. On interlocutory appeal, that decision was affirmed. Walker v. State, 304 Ark. 393, 803 S.W.2d 502 (1991).

On June 25,1990, Walker and three friends were swimming at a pond near Jacksonville. Two other boys, Bubba Rains and Aaron Lyman, were also at the pond hunting snakes. Rains was carrying a 410 gauge shotgun, and Lyman a .22 caliber rifle.

Walker approached Lyman and asked to use his rifle. Lyman handed the rifle to him, and Walker shot into the pond. Testimony conflicts as to what happened thereafter. Lyman said Walker cocked the gun and aimed it at Edward Cooper who was fishing with his family some 532 feet from where the boys were standing, saying “I’m going to shoot me a nigger.” Chris Sinkey, Walker’s best friend, told Walker the gun would probably not shoot that far. Walker said “It probably won’t,” and he fired. The bullet hit Cooper and killed him.

Kurt Breeden and John Parkinson were present. They testified they did not see Walker cock the gun or aim it at Cooper. Sinkey stated that when Lyman gave the gun to Walker, Lyman told Walker only one bullet remained in it. Sinkey believed the shooting was accidential as Walker thought there was only one bullet left. Sinkey also said that he, Sinkey, uttered the racial slur.

Walker testified that Lyman told him there was only one bullet in the gun. Walker then stated:

So I shot it, and then afterwards Chris Sinkey said look at those niggers down there. He said let’s shoot us a nigger. And I didn’t think anything about it, and I just had the gun sitting beside my waist, and I pointed it in that direction and shot the — pulled the trigger. And it went off, and when it went off, I dropped the gun.

Walker said he did not cock the gun before shooting and he did not think the gun was loaded when he fired it the second time. Walker also denied uttering the racial slur.

Expert marksman, Mike Vowell testified that, given the distance and prevailing weather conditions, if Walker had aimed directly at Cooper he would have missed. To hit Cooper, the gun would have to have been aimed over the victim’s head.

The jury was instructed on murder in the first degree, murder in the second degree, manslaughter, and negligent homicide. After the jury found Walker guilty of manslaughter, he moved to transfer the case to juvenile court for sentencing because the Circuit Court lacked jurisdiction to sentence him for the offense. The motion was denied.

1. Juvenile court Statute

Walker relies on Ark. Code Ann. § 9-27-318 (Supp. 1991) which provides in pertinent part:

(a) Waiver of juvenile court jurisdiction and transfer to a circuit court is not available when a case involves a juvenile:
* * *
(3) Age fourteen (14) years or age fifteen (15) years and the alleged act, if committed by an adult, would constitute a misdemeanor or a felony, other than those felonies specifically enumerated in subdivision (b)(1) of this section.
(b)(1) When a case involved a juvenile age fourteen (14) or fifteen (15) at the time the alleged delinquent act occurred, the prosecuting attorney has the discretion to file charges in circuit court for an alleged act which constitutes capital murder, murder in the first degree, murder in the second degree, kidnapping in the first degree, aggravated robbery, rape, or battery in the first degree.

The Statute clearly prohibits charging a juvenile with a non-enumerated offense in a circuit court. In Banks v. State, 306 Ark. 273, 813 S.W.2d 257 (1991), the prosecutor charged a juvenile with three non-enumerated offenses in a circuit court. We held charges of offenses not listed in § 9-27-318(b)( 1) should have been dismissed for lack of jurisdiction. In this case the prosecutor filed a first degree murder charge against Walker in the Circuit Court as permitted by the Statute. We must decide whether the Circuit Court lost jurisdiction when the jury failed to convict Walker of an offense which the Statute authorized to be charged in the Circuit Court.

2. Jurisdiction rules

Jurisdiction is determined from pleadings. McKinney v. City of El Dorado, 308 Ark. 284, 824 S.W.2d 826 (1992); Department of Human Services v. Crunkleton, 303 Ark. 21, 791 S.W.2d 704 (1990). As it was permissible for the prosecutor to charge first degree murder in the Circuit Court, that Court acquired jurisdiction of the subject matter when the charge was filed.

a. Majority rule

While we have not addressed the problem presented in this case, courts in other states have. The law in all but one of those states in which decisions on this question have been made is that, once a general jurisdiction court acquires jurisdiction of a juvenile, it may convict and sentence the juvenile for a lesser included offense which could not have been tried by that court in the first instance. People v. Davenport, 43 Colo. App. 41, 602 P.2d 871 (1979); Gray v. State, 6 Md. App. 677, 253 A.2d 395 (1969); Williams v. State, 459 So. 2d 777 (Miss. 1984); Dicus v. Second Judicial Dist. Court, Etc., 97 Nev. 273, 625 P.2d 1175 (1981). See also Worthy v. State, 253 Ga. 661, 324 S.E.2d 431 (1985), in which the Georgia Supreme Court held, contrary to our decision in Banks v. State, supra, that a “related” lesser offense alleged to have been committed by a juvenile, and of which the general jurisdiction court lacked initial jurisdiction, could be considered by it along with charges of which the court had jurisdiction.

Typical of these cases is language from Gray v. State, supra. A juvenile was indicted for murder and pleaded guilty to manslaughter in Circuit Court. Manslaughter by a juvenile was not within the Circuit Court’s jurisdiction. The Maryland Special Court of Appeals stated “once a court lawfully acquires jurisdiction over the person and the subject matter of the litigation, subsequent events will not deprive the court of its jurisdiction, although had they existed at the time, they may have initially precluded the court’s jurisdiction.” We cited that language with approval in Hartman v. Hartman, Admr., 228 Ark. 692, 309 S.W.2d 737 (1958).

b. The Massachusetts rule

The Supreme Judicial Court of Massachusetts took a different tack in Metcalf v. Commonwealth, 156 N.E.2d 649 (Mass. 1959). The Court agreed with the appellant, Metcalf, that the Superior Court which had tried him for first degree murder had no authority to punish him for the lesser included offense of second degree murder to which he pleaded guilty. The Court stated that a petition could thereafter be filed in a district court having jurisdiction of juveniles which could punish him after finding him delinquent. The Court suggested that the finding of delinquency would be “pro forma” and would be based upon the Superior Court’s determination, by acceptance of the plea, that Metcalf had committed an offense.

The decision by the Massachusetts Court was made after considering the acknowledged general rule that jurisdiction is determined at the outset of the proceeding. The rationale of the Court had two stated bases. The Court distinguished delinquency proceedings from criminal proceedings, apparently to avoid the clear double jeopardy implications of its proposal that Metcalf be subjected to punishment in delinquency proceedings after having been tried in a superior court. Reliance was also placed on the language of the Massachusetts Statute which limited the Superior Court’s jurisdiction to serious offenses “committed” by the juvenile. Once it was determined that Metcalf had not “committed” first degree murder, then jurisdiction was lost. The decision was thus, in effect, that jurisdiction was determined by the result of the case rather than from the pleadings. The Court clearly rejected the majority position.

Neither of these bases can be used here. Much has changed in the treatment of juvenile offenders since 1959, including recognition of their constitutional rights in juvenile proceedings. In Re Gault, 387 U.S. 1 (1967). We can conceive of no possibility of subjecting Walker to the power of another court without offending his right not to be placed twice in jeopardy. In addition, we are directly precluded from ordering transfer of this case by Ark. Code Ann. § 9-27-319 (1987) which provides: “No juvenile who has been tried for a violation of the criminal laws of this state shall be later subjected to a delinquency proceeding arising out of the facts which formed the basis of the criminal charges.”

While the solution reached by the Massachusetts Court has the merit of carrying out the legislative intent that a juvenile found to have committed any offense other than those intended to receive “adult” punishment be punished through a delinquency proceeding rather than a criminal one, we cannot adopt it. The Statute with which we must deal does not permit the leeway the Massachusetts Court found. Counsel for Walker agreed in oral argument that, although he would very much like us to do it, this Court has no statutory authority whatever to order transfer of this case to a chancery court having jurisdiction of juvenile offenses, and he could cite no basis for our exercising “inherent authority” to do it. Again, our General Assembly has not based court assignment in juvenile cases upon the nature of the offense “committed” but upon what the prosecutor chooses to charge.

3. Legislative intent

In Gray v. State, supra, the Court of Special Appeals of Maryland was faced with a situation in which its circuit courts had exclusive jurisdiction of crimes punishable by death or life imprisonment, and juvenile courts were thus excluded from trying such cases. Gray was convicted of manslaughter after a trial on an indictment of a capital charge. After citing cases developing the majority rule on retention of jurisdiction, the Court discussed legislative intent as follows:

The Circuit Court clearly had original, exclusive jurisdiction over the appellant on the capital charge which was contained in the indictment and we do not believe that the Legislature intended, after a full trial on the capital charge, to have such proceedings declared a nullity where a verdict of second degree murder or manslaughter is returned. We hold that in view of the statutory form of indictment here employed, under which the lower court lawfully acquired jurisdiction of the appellant on a capital offense, it did not lose jurisdiction over the appellant, in this instance, by the jury’s return of a verdict of manslaughter which was a lesser offense included in the statutory form of indictment. Accordingly we find no merit in the appellant’s contention that the lower court was without jurisdiction to enter the judgments of manslaughter.

In its consideration of a problem like the one presented here, the Mississippi Supreme Court wrote:

We think the sounder rule has been stated and followed in those states holding that once jurisdiction is acquired, it is not lost by accepting a plea to a lesser-included offense or conviction for a lesser-included offense, even though such offenses would not originally confer jurisdiction in the circuit court. It would be a mockery of the law and justice to hold that when a juvenile is indicted for murder that the circuit court must proceed with a trial on the murder charge, or lose jurisdiction, if a plea or conviction for a lesser-include offense occurs. In the present case, the circuit judge could have imposed a fine and jail sentence, or could have suspended the entire sentence. His powers are almost the same as those conferred upon the Youth Court.

Williams v. State, 459 So.2d 777 (Miss. 1984). We note that our circuit judges also have the power to reduce a sentence which has been imposed by a jury. Ark. Code Ann. § 16-90-107(e) (1987).

4. Conclusion

Given the legislative scheme for jurisdiction of juveniles in this State, the majority rule on retention of jurisdiction once it is established, which we have followed in civil cases, and the rationales expressed by this Court and the others cited, we hold the Circuit Court was not without jurisdiction to convict and sentence Walker for manslaughter.

In closing, we address Walker’s contention that, if a circuit court is allowed to convict and sentence a juvenile of an offense which could not have been charged there independently, prosecutors will overcharge defendants for the purpose of defeating the jurisdiction of juvenile courts. This argument ignores the responsibility of a prosecutor to “refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.” Model Rule of Professional Conduct 3.8(a). We have been given no reason to conclude that prosecutors will attempt to flout the jurisdiction of the juvenile divisions of chancery courts. Even if one of them were so disposed, we doubt he or she would be willing to run the risk of being found guilty of an ethical violation under the Rule.

Affirmed.

Corbin, J., dissents.

Holt, C.J., not participating.

Donald L. Corbin, Justice,

dissenting. The majority has a sound legal foundation for the position that the court takes. I dissent because I believe the result we reach goes against the strong public policy envisioned at the time of the proposal and the acceptance of the new juvenile court system by the people of the State of Arkansas.

I would follow the Massachusetts rule mentioned in the majority opinion. I would do so for reasons of strong public policy. I admit that this is judicial activism, but the situation deserves this attention unless we are to make a mockery out of our juvenile court system.