author: ANDREE LAYTON Roaf, Justice. Robert H. Dudley, Justice, TOM GLAZE, Justice,

text:
    Paul R. PARKER, Petitioner v. Sharon PRIEST, In Her Official Capacity as Secretary of State of the State of Arkansas, Respondent; Mike Wilson, Individually and On Behalf of The Committee to Promote Arkansas, Intervenors
    96-995
    931 S.W.2d 108
    Supreme Court of Arkansas
    Opinion delivered October 21, 1996

      Wright & Burke, by: William Randal Wright, for petitioner.

      Winston Bryant, Att’y Gen., by: Kay J. Jackson DeMailly, Asst. Att’y Gen., for respondent.

      Dover & Dixon, P.A., by: David A. Couch, for intervenors.
   ANDREE LAYTON Roaf, Justice.

This is an original action by the petitioner, Paul Parker, to enjoin the Respondent, Secretary of State, Sharon Priest, from placing on the ballot proposed Amendment 7, which would authorize a state lottery and legalize bingo, raffles, and casino gaming. This court has original jurisdiction over this matter pursuant to Ark. Const, amend. 7 and Ark. S. Ct. R. 6-5. The original action petition is opposed by the respondent, and by the intervenors, Mike Wilson, individually and on behalf of the Committee to Promote Arkansas, who are the sponsors of proposed Amendment 7.

The petition challenges the sufficiency of the ballot tide of the proposed amendment and asserts that it is defective because: 1) it does not disclose that Oaklawn and Southland racetracks are two of the three sites designated in the amendment where casino gaming is authorized; 2) it does not state how four additional sites for casinos will be selected by the General Assembly; 3) it does not inform the voters that the primary purpose of the proposed amendment is to legalize casino gaming at Oaklawn and Southland racetracks or that its passage would grant a monopoly on the combination of parimutuel wagering and casino gaming to these two entities; and 4) the initiative petition filed with the Secretary of State omitted a portion of the ballot title. We hold that the failure to disclose that two of the three designated sites for casino gaming are Oaklawn and Southland racetracks causes the ballot tide to be fatally deficient.

Certain general principles of law for ballot tide cases have been set forth in recent cases decided by this court and are pertinent to this case. See Parker v. Priest et al., No. 96-779 (Ark. S. Ct., Sept. 30, 1996); Christian Civic Action Committee v. McCuen, 318 Ark 241, 884 S.W.2d 605 (1994); Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994); Page v. McCuen, 318 Ark. 342, 884 S.W.2d 951 (1994).

We have said that the majority of voters will read a proposed amendment for the first, and only, time when they read it on the ballot. Christian, supra. Thus, it is crucial that the ballot title not be misleading, and that it disclose enough information so that voters can make “an intelligent choice and be fully aware of the consequences of their vote.” Id. However, it is not this court’s function to “express our view on, or to determine the merits of, a proposed measure — that power is expressly reserved to the people.” Parker, supra. Furthermore, the purpose of the initiative process is not undermined by an initiative “that directly benefits a relative few of the people so long as the benefits to the few are not concealed from the voters.” Id.

The party challenging the ballot title has the burden of proving that it is misleading or insufficient. Christian, supra. The petitioner is not entitled to a “ballot tide that pleases him personally, as we have previously recognized the impossibility of drafting a ballot tide that would suit everyone.” Parker, supra.

We will further be “liberal” when construing the sufficiency of the ballot tide. Bailey, supra. While the ballot title is not required to summarize every aspect of the initiative, it must give the voter “an intelligible idea of the scope and import of the proposed law.” Christian, supra. In other words, the ballot tide must enable the voter to “reach an intelligent and informed decision for or against the proposal and to understand the consequences of his or her vote.” Id.

Finally, although the ballot title need not summarize every aspect of the initiative, if the information is “an essential fact which would give the voter serious grounds for reflection, it must be disclosed.” Bailey, supra. Moreover, “[t]he ballot must be free from any misleading tendency, whether of amplification, or omission, or of fallacy, and it must not be tinged with partisan coloring.” Id.

Proposed Amendment 7 has the following popular name:

AN AMENDMENT TO ESTABLISH A STATEWIDE STATE-RUN LOTTERY, TO PERMIT THE GAME OF BINGO AND RAFFLES TO BE CONDUCTED BY CHARITABLE, NON-PROFIT ORGANIZATIONS, TO AUTHORIZE CASINO GAMING AT TWO SITES IN GARLAND COUNTY AND AT TWO SITES IN CRITTENDEN COUNTY, TO PERMIT THE GENERAL ASSEMBLY TO AUTHORIZE CASINO GAMING AT UP TO FOUR ADDITIONAL SITES; TO ESTABLISH THE ARKANSAS EDUCATION TRUST FUND AND THE ARKANSAS CASINO GAMING COMMISSION.

As to the four sites where casinos will be located in Garland and Crittenden Counties, the ballot title states:

TO AUTHORIZE CASINO GAMING IN GARLAND COUNTY AT TWO SITES, ONE SPECIFICALLY DESCRIBED IN THE AMENDMENT AND ONE TO BE CHOSEN BY THE QUORUM COURT OF GARLAND COUNTY, TO AUTHORIZE CASINO GAMING IN CRITTENDEN COUNTY AT TWO SITES BOTH OF WHICH ARE SPECIFICALLY DESCRIBED IN THE AMENDMENT.

(Emphasis added.) However, Section 3 of the amendment provides that the four chosen sites are: Oaklawn Racetrack in Hot Springs, a site to be selected by the Garland County quorum court, Southland Racetrack in West Memphis, and a specific parcel of land in Crit-tenden county which is legally described. There is no hint in the ballot title that Oaklawn and Southland are two of the three predetermined sites for casino gaming. Certainly, most voters are probably familiar with Oaklawn and Southland and know that these are the only locations in Arkansas where gambling is presently allowed. Furthermore, although some voters will know that these two racetracks are located in Crittenden and Garland Counties, it is clear that the voter will not know from the ballot title that Southland and Oaklawn are two of the three sites specifically designated in the amendment for casino gaming, and that they will therefore benefit greatly from the passage of this measure. The issue is thus whether such information is “an essential fact that would give the voter serious grounds for reflection.” Bailey, supra.

The petitioner relies on Page in support of his argument that the failure to disclose this information causes the amendment to be fatally flawed. In Page, this court rejected a casino amendment because the ballot tide stated only that a casino would be authorized “at a designated site” which would lead the voter to believe that no site had yet been chosen. We explained that this was a fatal defect because:

Before casting their ballots, voters no doubt would pause for reflection if they were aware “the” designated site had already been established in the proposed constitutional measure itself, thereby guaranteeing the site’s owner whatever benefits that would result from the measure’s passage.

Id. (Emphasis added.) However, in this instance the ballot tide clearly tells the voter that three of the four sites have already been chosen. The intervenors, who also sponsored the amendment which was removed from the ballot in 1994 in Page, submit that they have satisfied the standard set forth in Page by disclosing that the three sites have in fact been predetermined.

Although the facts of Page are not direcdy analogous, we find the underlying principle to be relevant. In Page, this court expressed a distaste for hiding from the voter that private interests will direcdy benefit from a measure’s passage. Id. This concern was recendy restated in Parker.

The purpose of the initiative process is not undermined by the presentation to the voters of an issue that direcdy benefits a relative few of the people so long as the benefits to the few were not concealed from the voters.

Parker, supra (Emphasis added.) In this instance, the ballot title for Amendment 7 clearly conceals from the voters the direct benefit to Oakland and Southland, which are significant and important Arkansas gambling interests.

In Finn v. McCuen, 303 Ark. 418, 798 S.W.2d 34 (1990), this court rejected an amendment that would have allowed state lotteries because the ballot tide failed to mention that the amendment designated three people to serve on the State Lottery Commission. We explained:

The electors are being asked to elect at least three people to important positions without being informed in the ballot tide of the names or interests of these prospective board members, they are not even being told that named persons will be on the board.

Id.

Similarly, in Dust v. Rivieria, 277 Ark. 1, 638 S.W.2d 663 (1982), this court rejected an initiative that would have benefited a few private interests but did not disclose this matter to the voting public. In Dust, the ballot tide stated that the amendment would create a Ratepayers Utility Board whose seven members would be appointed by various people in the Executive Department. Id. However, the ballot tide did not mention that board members would be selected to represent specific, private interests, including environmental groups and labor organizations. Id. This court held that:

The voter, who is a residential or small business customer, has a right to know that these interests can direct and control the Board which is supposed to represent and advocate the interests of residential and small business consumers.

Id. Accordingly, this court rejected an initiative that failed to disclose in the ballot tide the direct benefits to a “relatively few” special interests. It is clear that the benefit to specific private interests can indeed be a matter which would give the voter “serious grounds for reflection.” We think that Oaklawn and Southland are such interests and that their identities constitute an essential fact which should have been disclosed, and indeed could have been disclosed, with fewer words than actually utilized in the ballot tide.

In sum, it is clear that the voters are not made aware that, by voting for Amendment 7, they are not simply voting to authorize “two sites” in Garland County and “two sites” in Crittenden County, three of which are “specifically designated in the amendment.” Instead, they are voting to authorize casino gaming “at Oaklawn Race Track in Hot Springs” and at “Southland Race Track in West Memphis.” The failure to disclose this information is a material omission that renders the ballot tide fatally defective. Consequently, we need not consider the remaining issues raised by Parker in his petition.

The petition is granted, and the Secretary of State is enjoined from placing proposed Amendment 7 on the November 5, 1996, general election, or in the alternative, from counting the votes cast on this issue. The mandate shall issue on October 25, 1996, unless a petition for rehearing is filed on or before that date.

Petition granted.

Special Justice Sandra Smith Hochstetter joins this opinion. Dudley, Glaze, and Corbin, JJ., dissent.

BROWN, J., not participating.

Robert H. Dudley, Justice,

dissenting. The ballot title informs the voter that casino gambling would be permitted at four sites, two in Crittenden County and two in Garland County. It informs the voter that the two sites in Crittenden County have already been selected and that the descriptions of those sites are set out in the body of the amendment. It informs the voter that one of the two sites in Garland County has already been selected, and that site is described in the body of the amendment, and that the other remains to be selected by the quorum court of Garland County.

The majority opinion strikes the proposed amendment from the November 5, 1996, general election on the ground that the ballot tide does not notify the voter that the selected site in Garland County is the location of the Oaklawn race track and that one of the selected sites in Crittenden County is the location of the South-land dog race track. The question for this court to weigh is whether those omissions are of essential facts, Finn v. McCuen, 303 Ark. 418, 798 S.W.2d 34 (1990), and whether they would mislead a voter or would give the voter “serious grounds for reflection.” Dust v. Riviere, 277 Ark. 1, 638 S.W.2d 663 (1982). It is not required that the ballot tide contain a synopsis of the proposed amendment, but it should be complete enough to convey an intelligible idea of the scope and import of the proposal. Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994).

A majority of members of this court, after weighing both sides of the argument, have concluded that the omissions are essential and would mislead a voter because the voter would not know that he or she were voting for a casino at the Oaklawn race track and the Southland race track. Granted, it would have been better if the ballot tide disclosed the exact location that would benefit private interests, but what might have been better is not the test for determining whether a ballot tide is misleading. The test is whether the omissions are of essential facts and would mislead a voter, and whether the ballot tide is sufficient to convey an intelligible idea of the import of the proposal.

It is undisputed that the ballot tide fairly discloses that casino gaming would be authorized at four locations, two in Crittenden County and two in Garland County. It is also undisputed that the ballot tide clearly discloses that three of the four proposed locations have already been selected, and, consequendy, a reasonable voter would understand that private, or special, interests would stand to obtain casino locations at three previously selected sites. There simply is no failure to disclose the essential facts that private or special interests stand to obtain casino locations at four locations and that three of those four have already been determined. The essence of the voters concern is whether he or she wants to give private interests the constitutional right to build casinos at two predetermined locations in Crittenden County and two locations in Garland County, with one already determined and one to be determined by the Garland County Quorum Court.

The majority opinion holds that the core of the issue before us involves the specific location of the three predetermined sites and concludes that the failure to give the specific locations of the three sites is something that would mislead the voter. I respectfully suggest that this weighing is not a weighing of the essential issue. It is only when the ballot title fails to disclose an essential fact that we strike the proposal from the ballot. Finn v. McCuen, 303 Ark. 418, 798 S.W.2d 34 (1990). The essential issues that should be weighed in this case are whether a voter would be given sufficient information by the ballot title to decide whether constitutional licenses should be given to build casinos at four locations, with three of those locations having already been selected, and whether the voter would be informed by the ballot tide that private interests stand to obtain these licenses from passage of the proposed amendment. Whether the site is specifically described is not of real consequence to the voter. However, even if the majority should be correct that the specific site should be the issue weighed by this court, the ballot tide provides that the three predetermined tracts are specified in the amendment itself. The ballot title notifies a voter that if he or she wishes to know about the specific location of the three sites upon which casinos would be located, he or she can look in the amendment to find them. The material part of the tide is as follows:

TO AUTHORIZE CASINO GAMING IN GARLAND COUNTY AT TWO SITES, ONE SPECIFICALLY DESCRIBED IN THE AMENDMENT AND ONE TO BE CHOSEN BY THE QUORUM COURT OF GARLAND COUNTY, TO AUTHORIZE CASINO GAMING IN CRITTENDEN COUNTY AT TWO SITES BOTH OF WHICH ARE SPECIFICALLY DESCRIBED IN THE AMENDMENT.

The amendment then provides that one of the locations in Garland County is the Oaklawn race track and that one of the locations in Crittenden County is the Southland race track.

In summary, there is no material omission of an essential issue from the ballot title; it conveys an intelligible idea of the scope and import of the proposed amendment. Therefore, I respectfully dissent.

Corbin, J., joins in this dissent.

TOM GLAZE, Justice,

dissenting. I dissent. Proposed Amendment 7 is only eight (8) pages long and its ballot title comprises 393 words and provides for lottery, bingo, raffles, and casino gambling. There is nothing complex or lengthy about this proposal. In fact, this court finds only one problem with the ballot title of this proposal: It does not specifically mention “Oaklawn” or “South-land” as being the two predesignated sites in Garland and Crit-tenden counties where casino gambling would occur if the proposal is adopted by the people at the November 5 General Election.

I find it incredibly naive on this court’s part to think Arkansas voters would not know Oaklawn and Southland were the designated sites for casino gambling under proposed Amendment 7. I find it even more farfetched for the court to suggest Arkansas voters’ decisions would be affected because Oaklawn’s and South-land’s actual names do not appear in the ballot title.

The ballot tide clearly apprises the voters that two sites, one in Garland County and another in Crittenden County, have already been selected where casino gambling will be authorized. In sum, the voters know by reading the ballot tide that two owners or enterprises — one in Garland County and the other in Crittenden County — will benefit by the passage of proposed Amendment 7. This is not the situation found in Page v. McCuen, 318 Ark. 342, 884 S.W.2d 951 (1994), where we held the ballot-tide reference to “a designated site” misled voters to believe a site for casino gambling was yet to be selected when, in fact, the site and landowner had already been established in the proposed amendment.

Again, the ballot tide here informs all voters that a site in Garland County and in Crittenden County have already been selected, and if it were the intention of the sponsors of proposed Amendment 7 to mislead or hide from Arkansas voters the entities who own those two preselected sites, it has to be the worst-guarded secret in Arkansas. The Oaklawn and Southland names are found not only in other initiative gambling proposals intended to be placed on the General Election ballot, but also their names saturate the advertisements seeking passage of those proposals.

In my view, this court should not remove an initiative measure from the ballot unless it is clear the proposal’s ballot tide will mislead the voters from making an intelligent choice. Our constitution and case law requires this court to be liberal when construing a ballot title’s sufficiency. Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994).

The ballot title here fully discloses that two predesignated sites have been chosen for casino gambling, and to suggest Arkansas voters cannot cast an intelligent vote in these circumstances is insulting, in my view.

Corbin, J., joins this dissent.


source: Caselaw Access Project

author: TOM GLAZE, Justice,

license: Public Domain

text:
    Robert CAPLE v. STATE of Arkansas
    CR 96-799
    931 S.W.2d 138
    Supreme Court of Arkansas
    Dissenting opinion delivered October 21, 1996
   TOM GLAZE, Justice,

dissenting. Appellant Robert Caple’s conviction judgment was entered on May 18, 1995, and his notice of appeal was filed on June 16, 1995. It is now 17 months later, and Caple’s attorneys have not filed a transcript with this court so a briefing schedule can be set. Our court has taken no action to have Caple’s attorneys explain why a record has not been lodged with the supreme court clerk’s office.

This court only became apprised of why this extreme delay occurred when the trial court’s court reporter informed the Attorney General’s office that she had not been formally requested by Caple’s attorney to prepare the transcript. On its own volition, the Attorney General has filed a motion requesting additional time for the court reporter to prepare the transcipt for filing.

While the Attorney General’s offer to assure Caple’s transcript is filed in this court is a magnanimous one, it is the responsibility of Caple’s attorneys, not the state, to perfect this appeal. Accordingly, this court should issue an order to request Caple’s attorneys to show cause why no transcript has been filed.

Dudley and Brown, JJ., join this dissent.

         Reporter’s note: The per curiam opinion in this case was not published.


author: Per Curiam.

text:
    Michael Leonard JONES v. STATE of Arkansas
    CR 96-1192
    929 S.W.2d 722
    Supreme Court of Arkansas
    Opinion delivered October 21, 1996

      Charles A. Potter, for appellant.
   Per Curiam.

Appellant Michael Leonard Jones, by his attorney, has filed for a rule on the clerk. His attorney, Charles A. Potter, admits that the failure to file the record in time was due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979)(per curiam). A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    David LIVELY v. STATE of Arkansas
    CR 96-438
    930 S.W.2d 339
    Supreme Court of Arkansas
    Opinion delivered October 21, 1996
    Petitioner, pro se.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for respondent.
   Per Curiam.

The petitioner, David Lively, has filed a pro se petition for a writ of prohibition to prevent a trial on felony hot-check charges that were filed in Faulkner County Circuit Court on April 26, 1993. Twenty-six months after the filing of the information, on July 10, 1995, Lively moved to dismiss the charges on speedy-trial grounds. After no action was taken on his motion, Lively petitioned this court for a writ of mandamus. The petition became moot when the Trial Court denied the motion to dismiss in an order that was entered on February 28, 1996. Lively v. Hon. David Reynolds, Judge, CR96-22 (March 11, 1996). We find that the State has not met its burden of proof to explain its failure to bring Lively to trial within twelve months of the date the charges were filed, as required by A.R.Cr.P. Rule 28.1, and we grant the writ.

At the time the information was filed, Lively was incarcerated pursuant to a first-degree battery conviction in Pulaski County. A docket entry shows that on the date of the filing of the information, an arrest warrant was issued. The warrant was apparently never served, and there is no indication that anything further was done to bring Lively to trial. The Trial Court’s order denying Lively’s motion to dismiss consists of the following two sentences: “On this day comes the matter of the request of the Defendant, David Lively, for Motion to Dismiss the above-styled cause. The Court finds that the warrant in this case has not been served and the petition is without merit and is hereby denied.”

A defendant charged with an offense and incarcerated pursuant to a conviction for another offense shall be entitled to have the charge dismissed if not brought to trial within twelve months from the time the charge is filed or the time of arrest, whichever occurs first. Ark. R. Crim. P. 28.1(b) and 28.2(b). Since twenty-six months passed from the date the information was filed until the date Lively filed his motion to dismiss, he presented a prima facie case that the speedy-trial rule was violated. The burden then shifted to the State to explain the delay. Duncan v. Wright, 318 Ark. 153, 883 S.W.2d 834 (1994).

There is no indication in the record that there was a hearing on the motion to dismiss, nor is there any indication that the State filed a responsive pleading in the Trial Court. The only explanation for the delay appears in the State’s response to this petition, where it argues that the twenty-six month period is excludable pursuant to A.R.Cr.P. Rule 28.3(e), which provides in pertinent part:

The following periods shall be excluded in computing the time for trial:
(e) The period of delay resulting from the absence or unavailability of the defendant. A defendant shall be considered absent when his whereabouts are unknown....

According to the State, Lively’s whereabouts were unknown because there is no way the Faulkner County Prosecutor could have known that Lively was serving time in a state prison on charges that originated in Pulaski County. In his reply brief, Lively argues that the period is not excludable because there is no proof that there was an attempt to serve the warrant. We agree.

In Duncan v. Wright, supra, the State argued that the period of delay in bringing Duncan to trial on hot-check charges was excludable under Rule 28.3(e). The State contended that Duncan’s whereabouts could not be ascertained because he used an alias, but did not offer any proof that the Sheriff attempted to serve the arrest warrant. We identified the lack of any proof of an attempt to arrest as the threshold issue in the case. We found it illogical that Duncan’s alias thwarted an arrest that was never attempted. Accordingly, we granted the writ of prohibition.

Duncan v. Wright is controlling in this case. The State has not offered any proof that the Sheriff attempted to serve the arrest warrant on the hot-check charges.

The writ of prohibition is granted.


author: PER CURIAM.

text:
    Paul R. PARKER v. Sharon PRIEST, In Her Official Capacity of Secretary of State of the State of Arkansas
    96-1072
    930 S.W.2d 383
    Supreme Court of Arkansas
    Opinion delivered October 21, 1996

      William Randal Wright, for petitioner.

      Winston Bryant, Att’y Gen., by: M. Wade Hodge, Asst. Att’y Gen., for respondent.
   PER CURIAM.

Petitioner Paul R. Parker filed his original action petition against respondent Sharon Priest in her capacity as Secretary of State. Petitioner sought an injunction from placing Proposed Amendment 8 to the Arkansas Constitution on the ballot for the November 5, 1996 General Election and from counting any ballots that might be cast prior to that injunction. Proposed Amendment 8 bears the popular name:

AN AMENDMENT TO AUTHORIZE A STATE LOTTERY, CHARITABLE BINGO AND RAFFLES, AND CASINO GAMBLING AT CERTAIN APPROVED SITES AND UNDER CERTAIN APPROVED CONDITIONS; CREATING THE ARKANSAS LOTTERY AND CASINO GAMBLING COMMISSION TO REGULATE SUCH ACTIVITIES; AND EXEMPTING CERTAIN FOOD ITEMS FROM SALES TAX.

Petitioner challenges the sufficiency of the popular name and ballot tide on the basis of length, complexity, and misleading tendency due to serious omissions. Because we have delivered the opinion of this court in Scott v. Priest, 326 Ark. 328, 932 S.W.2d 746 (1996), granting the petition to enjoin the placement of Proposed Amendment 8 on the November 5, 1996 general election ballot, the issues raised in this petition are moot. The petition, therefore, is dismissed.


text:
    Warren Tom STEPHENS v. STATE of Arkansas
    CR 95-1098
    929 S.W.2d 722
    Supreme Court of Arkansas
    Opinion delivered October 21, 1996

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   Per Curiam.

This is the second time that the State has moved to direct the appellant to comply with Supreme Court Rules 4-3(g) and 4-3(h). The State first filed a motion to comply on April 30, 1996, and the appellant filed a corrected brief on July 30, 1996. The State now complains that over 20 rulings adverse to the appellant have still not been abstracted. We further note that since the transcript was filed in this matter on October 19, 1995, the appellant has been granted several extensions of time to file his brief, two of which were granted after this court’s first order directing compliance with Rules 4-3 (g) and 4-3 (h).

We direct that the appellant file his brief in compliance with Supreme Court Rules 4-3 (g) and 4-3 (h) within 30 days from the date of this order. No further extensions will be granted to the appellant in this case.


author: Robert H. Dudley, Justice. David Newbern, Justice.

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. Roland A. BARKER, Jr., and Barbara Barker, and Union State Bank, Mortgagee
    96-227
    931 S.W.2d 138
    Supreme Court of Arkansas
    Opinion delivered October 28, 1996

      Robert L. Wilson, Chief Counsel and Barbara A. Griffin, Staff Attorney, for appellant.

      Ronald L. Griggs, for appellees.
   Robert H. Dudley, Justice.

In January 1994, the Arkansas State Highway Commission condemned .47 acre in fee, along with the access routes, belonging to Roland and Barbara Barker and Union State Bank, mortgagee, in order to widen Highway 167 to three lanes south of El Dorado. The condemned land was a part of a 10.16-acre tract purchased by the Barkers in 1992 for $20,000. A little over seven acres of the tract were timberland and not suitable for industrial or commercial use, and three acres were suitable for commercial or industrial use. The .47 acre condemned is in the three acres that are suitable for commercial or industrial use. Before the taking, the Barkers constructed a metal building in the northeast corner of the three acres. The .47 acre is between the metal building and the highway. At the time of the taking, the Commission deposited with the court the amount it estimated to be just compensation, $1,450. The Barkers denied that $1,450 was just compensation and asked for adequate compensation. Ultimately, a jury returned a verdict for $15,100. The Commission appeals. We reverse and remand for a new trial.

The Commission timely filed a motion in limine asking the court to prohibit, among other things, the introduction of evidence proving the cost to cure damages to the residual property, if the cost was in excess of the decrease in the market value of the property taken and if the cost constituted a substantial betterment to the property. In its motion the Commission specifically alleged that the Barkers’ appraisal report contained two estimates, one for $6,800 and one for $7,875, which when averaged was $7,300, for installation of a circular drive on the residual tract. An additional $3,000 was added for maintenance of the circular driveway, which brought the total betterments to $10,300. The Commission pointed out that, before the taking, the tract had sixteen feet of unpaved driveways that provided access to the highway and that the Commission’s construction plans, filed with the court, required it to replace the unpaved driveways with two forty-foot asphalt driveways. Finally, the Commission alleged that if the utility of the residual property was diminished by the taking, that loss constituted the element of damage, and not the cost of a circular driveway, which was a betterment and which cost far more than the loss to the remaining property, especially when the Commission intended to replace sixteen-feet-wide unpaved driveways with forty-feet paved driveways. On appeal, the Commission contends that the trial court erred in allowing evidence of the $10,300 loss to be introduced. The Barkers do not contend that evidence of the cost to cure damages was admissible, but rather they respond that the Commission is “simply mistaken that testimony was offered as costs to cure damages which constitute a betterment on the residual property.” We hold the trial court erred in allowing the evidence.

A landowner who has his land condemned is entitled to just compensation. City of El Dorado v. Scruggs, 113 Ark. 239, 168 S.W. 846 (1914). However, this does not mean that a landowner is entitled to be unjusdy enriched at the expense of the public purse. See United States v. 158.24 Acres of Land, 696 F.2d 559, 564 (8th Cir.1982). There are three recognized formulas for measuring just compensation in partial-taking cases: (1) the value of the part taken; (2) the value of the part taken plus the damages to the remainder; (3) the before- and after-value rule. Young v. Arkansas State Highway Comm’n, 242 Ark. 812, 415 S.W.2d 575 (1967); see also Arkansas State Highway Comm’n v. Jones, 256 Ark. 40, 505 S.W.2d 210 (1974). In Young, we wrote that “the difference between the market value of the whole tract before the taking, and the market value of that part which remains after the taking, less any enhancement peculiar to the lands” has long been the measure of damages in partial-taking cases. 242 Ark. at 814, 415 S.W.2d at 576-77.

In the present case, the Barkers’ real-estate-appraisal witness, Peter Emig, testified that the .47 acre taken did not have a “single highest and best use,” but rather “that which was a part of the taking had a commercial/industrial type use because of elevation and proximity to the highway.” Emig testified that he used three approaches in determining the before-taking value: the cost approach; the market approach; and the income approach. He testified that, in this case, the market approach was the best indicator of value. Using the market approach, he determined that the before-taking value was $105,000. He also testified that the market approach was the best indicator of value after the taking, and that value was $89,900, leaving a difference of $15,100. The trial court allowed his appraisal report in evidence. In his report, the witness used three comparable sales to determine after-taking value, but from each of the three comparable sales he deducted “$10,300 for the drive installation and maintenance.” Thus, Emig deducted the $10,300 cost and maintenance of the circular drive in order to reach the after-taking value. Because of this error, we reverse and remand for a new trial.

We now address the remaining points of appeal that will likely arise upon retrial. The Barkers, in cross-examination of a Commission employee, asked about an appraisal of a nearby tract. The Commission objected because the tract had not been used by either party as a comparable sale, and thus it was not relevant. The Commission additionally objected because the appraisal was prepared for the Commission’s condemnation offer on the other tract, and offers to buy are not competent evidence of the market value. The trial court erroneously overruled the objections. The appraisal of the nearby tract, prepared by a witness not present at trial, was prepared for determination of the amount to be deposited by the Commission for the taking of the other tract. Even if the court deposit made by a condemnor might be considered a “sale,” a point we do not decide, a sale made by a condemnor is not deemed a voluntary transaction. “[S]ales to one having the right of eminent domain do not ordinarily fall in the category of voluntary sales in the ordinary course of business and, consequently, are not fair criteria of value for purposes of comparable sales in determining the just compensation due in eminent domain actions.” Arkansas State Highway Comm’n v. First Pyramid Life Ins. Co., 265 Ark. 417, 424, 579 S.W.2d 587, 591, reh’g denied (1979). In Yonts v. Public Service Co. of Arkansas, 179 Ark. 695, 17 S.W.2d 886 (1929), we explained:

“What the party condemning has paid for other property is incompetent. Such sales are not a fair criterion of the value, for the reason that they are in the nature of a compromise. They are affected by an element which does not enter into similar transactions made in the ordinary course of business. The one party may force a sale at such a price as may be fixed by the tribunal appointed by law. In most cases the same party must have the particular property, even if it costs more than its true value. The fear of one party or the other to take the risk of legal proceedings ordinarily results in the one party paying more or the other taking less than is considered to be the fair market value of the property. For these reasons, such sales do not seem to be competent evidence of the value in any case, whether in a proceeding by the same condemning party, or other cases.” Lewis on Eminent Domain (3 Ed.) vol. 2, § 667.

Id. at 698-99, 17 S.W.2d at 887.

The Commission also contends that the trial court erred in not striking Roland Barker’s testimony about value of the tract condemned because he failed to state any reasonable ground for his opinion. Upon retrial, Barker may be able to state better grounds for his opinion, since he has lived in the area for fifty years and since he and his wife recendy purchased the tract involved. Because the same proof may not develop upon retrial, we do not address the argument. Missouri Pac. R.R. Co. v. Arkansas Sheriff’s Boys’ Ranch, 280 Ark. 53, 655 S.W.2d 389 (1983).

The Commission asks us to reverse this case with instructions for remittitur to the amount of $1,450, the amount of its appraisal and the amount of its deposit. We decline to order remittitur and instead order a new trial. We have examined both the landowners’ and the Commission’s proof of values and have concluded that the appropriate amount of damages is still of such question that an order of remittitur is not appropriate. One factor causing a question is that the Commission’s proof determined the values as of the date of taking, January 1994, but the landowners’ appraiser valued the property as of April 14, 1995, over fifteen months after the taking. The measure of damages in partial-taking cases is the difference between the market value of the whole tract before the taking and the market value of that part which remains after the taking, less any enhancements peculiar to the lands. Young v. Arkansas State Highway Comm’n, 242 Ark. 812, 415 S.W.2d 575 (1967). Here, the testimony showed that a $10,000 concrete slab was poured on the landowners’ three-acre commercial land in the intervening fifteen months and that the landowners’ proof took that expenditure into consideration. We do not know if there were other such enhancements or betterments and thus are unable to determine an appropriate amount of remittitur.

Reversed and remanded.

Newbern and Corbin, JJ., dissent.

David Newbern, Justice.

The point on which the majority opinion bases reversal of the jury’s verdict and the Trial Court’s judgment is the inclusion in Mr. Emig’s appraisal of the $10,300 figure relating to the need for a circular driveway on the Barkers’ property.

According to Mr. Emig’s appraisal report and his testimony, he settled on the market value approach to evaluation of the Barkers’ property before and after the taking. A part of the loss of market value, he testified, is loss in utility of the property.

Mr. Emig figured the after-taking value of the Barkers’ land on the basis of comparable sales. To the value of the land taken, he added value for other land that would remain in the Barkers’ tract as well as for improvements on the tract. He subtracted the $10,300, which amounted to the cost and maintenance of a circular drive.

Mr. Emig’s testimony indicated that, prior to the taking, trucks had been able to enter the property and unload large items using fork lifts at the business entrance but that after the taking they would no longer be able to do so. The circular drive would be needed to permit that use to continue. Although he used the cost approach to determine that aspect of the reduction in the property’s market value, I see nothing exceptionable about it.

The fact that the Highway Department planned to widen the sixteen-foot-wide gravel-covered culvert entrances to the property to forty-foot ones covered with asphalt was not shown to affect the problem of the reduction in utility, which Mr. Emig said would occur as a result of the taking of the land right at the front of the Barkers’ business. I would affirm the judgment based on the jury’s verdict.

I respectfully dissent.

Corbin, J., joins.


author: ROBERT H. Dudley, Justice.

text:
    Ross BALL and Ramona Ball v. Charles E. FOEHNER III, Attorney at Law,d/b/a Foehner and Associates, and George H. Bailey, Attorney at Law
    95-1251
    931 S.W.2d 142
    Supreme Court of Arkansas
    Opinion delivered October 28, 1996

      Hartsjield, Almand, & Grisham, by: Larry J. Hartsjield, for ] appellants.

      Wright, Lindsey &Jennings, by: Bettina E. Brownstein and Don S. McKinney and Matthews, Sanders, Liles & Sayes, by: Roy Gene Sanders, for appellees.
   ROBERT H. Dudley, Justice.

This is a legal malpractice action. Ross and Ramona Ball are the parents of Jeremy, who was born prematurely at Doctors Hospital in Little Rock on December 16, 1989, and was given the drug Theophylline. On December 29, 1989, he began to have unusual symptoms. Now he is partially blind, mentally retarded, and has cerebral palsy. In August of 1990, the Balls retained George Bailey, a Litde Rock attorney, to investigate the advisability of a medical negligence action. In February 1991, Bailey asked Charles Foehner, a St. Louis attorney, to assist him in obtaining expert witnesses. Nine months later, on November 12, 1991, the Balls entered into a written contract with Bailey which provided, in pertinent part, that Bailey would represent the Balls “as natural parents, natural guardians, and Guardians of the Estate of Jeremy Ball” against “Neonatology-Cardiology Associates, P.A., Dr. Gregory A. Franklin, Dr. Richard M. Nestrud, Dr. Ricardo Sotomora, Doctors Hospital, and all others including pharmaceutical manufacturers and distributors.”

On November 10, 1991, Bailey sent a notice of intent to sue to Neonatology-Cardiology Associates, P.A., Dr. Gregory A. Franklin, Dr. Richard M. Nestrud, Dr. Ricardo Sotomora, Doctors Hospital, and HCA Health Services of Midwest, Inc., the corporation that manages Doctors Hospital. The notice stated that both the Balls and Jeremy would claim all compensatory damages.

On March 10, 1992, which was more than two years after the drug was administered, Bailey filed the underlying medical malpractice suit in circuit court. It was removed to federal district court. Doctors Hospital moved for partial summary judgment on the Balls’ claims for parents’ damages on the ground that the parents’ action was barred by the two-year statute of limitations. After a lengthy discussion of the types of claims that are recoverable by children and the types of claims that are recoverable by parents for the children’s injuries and the different applications of the medical malpractice statute of limitations for parents and children, the federal district court ruled that the parents’ claims were time-barred and entered an order granting the hospital’s motion for partial summary judgment on July 15, 1993. Trial was set on Jeremy’s claims.

Before the deadline to appeal the district judge’s ruling passed, the parties entered into mediation. On October 25, 1993, the Probate Court of Pulaski County issued an order approving a settlement of “the tort claim of Jeremy Ball.” The order provided that “Jeremy Ball, by his natural guardians and next friends, Ramona and Ross Ball,” agreed to “settle all claims and all causes of action against the Defendants [in exchange for the recited consideration]” and agreed to “file and serve a dismissal, with prejudice, of all claims and causes of action asserted and assertable” in the case. On November 8, 1993, settlement was reached. Doctors Hospital’s insurance carrier paid a lump sum of $1,000,097 and agreed to make future payments of slightly more than $5,000,000, for a total, structured settlement of $6,200,000. In the written settlement agreement the “plaintiff” released Doctors Hospital from all future claims in consideration of the payments to the Balls as co-guardians of Jeremy Ball’s estate. The named “plaintiff” in the agreement was “Jeremy Ball, by and through his court-appointed guardians, Ross Ball and Ramona Ball.” The agreement stated that the Balls, as co-guardians, had “been authorized and directed by [the Pulaski County Probate Court] to execute all documents necessary to consummate the settlement of their individual claims and the claims of Jeremy Ball.” The settlement agreement stated that all of the parties assented to the case pending in federal district court being dismissed with prejudice.

A few weeks later, the Balls contacted their present attorney and filed this legal malpractice action against Bailey and Foehner in the Circuit Court of Pulaski County. The complaint alleged that Bailey and Foehner negligently failed to file the parents’ cause of action within the period of limitations, and that, as a result, the Balls lost their recovery as parents. The Balls filed a motion for partial summary judgment in which they stated that Bailey and Foehner claimed the settlement was of both the parents’ claim and Jeremy’s claim, but that there was no genuine issue of material fact with respect to that issue because they had settled only Jeremy’s claim. In response, Bailey and Foehner contended that there was a genuine issue of material fact about the scope of settlement. The trial court ruled that there were matters in the record placing in dispute the question of whether the settlement was to cover all claims, including those of the parents. The case went to trial. The Balls contended that the settlement did not include the parents’ claims because those claims were dismissed with prejudice by the federal district court. Bailey and Foehner contended that the federal district court’s order granting summary judgment was not a final order because it could have been appealed; they also contended that the Balls’ claims were included in the settlement. An attorney for Doctors Hospital testified that the settlement included the Balls’ claim. After a trial lasting several days, the jury answered “yes” to the first interrogatory, which read:

Do you find from a preponderance of the evidence that there was a settlement of the individual claims of Ross and Ramona Ball included in the settlement which occurred on October 13, 1993?

In so answering the first interrogatory, the jury rendered a defendant’s verdict. The jury did not answer the remaining interrogatories about negligence and damages.

The Balls appeal and in their opening brief contend that the trial court “erred in denying the plaintiffs’ motion for partial summary judgment on the issue that Ross Ball and Ramona Ball had settled their personal claims against Doctor’s Hospital.” Bailey and Foehner respond that the denial of a motion for summary judgment is not reviewable. The response is correct. We have often written that the denial of a motion for summary judgment is not reviewable on appeal. McElroy v. Grisham, 306 Ark. 4, 810 S.W.2d 933 (1991); Rick’s Pro Dive ’N Ski Shop v. Jennings-Lemon, 304 Ark. 671, 803 S.W.2d 934 (1991); Malone & Hyde, Inc. v. West & Co. of LA, Inc., 300 Ark. 435, 780 S.W.2d 13 (1989). Such review is not available even after a trial on the merits. Rick’s Pro Dive ’N Ski Shop, 304 Ark. at 672, 803 S.W.2d at 935; Henslee v. Kennedy, 262 Ark. 198, 555 S.W.2d 937 (1977); American Physicians Ins. Co. v. Hruska, 244 Ark. 1176, 428 S.W.2d 622 (1968); Widmer v. Ft. Smith Vehicle & Mach. Co., 244 Ark. 971, 429 S.W.2d 63 (1968). The rationale for this basic rule is that “a final judgment should be tested upon the record as it exists at the time it is rendered, rather than at the time the motion for summary judgment is denied, since further evidence may be supplied at trial.” Rick’s Pro Dive ’N Ski Shop, 304 Ark. at 673, 803 S.W.2d at 935.

In their reply brief, the Balls “concede that the Arkansas Supreme Court has stated that the denial of a motion for summary judgment is not reviewable on appeal,” but even so, they argue that “the error on which appellants base their argument is subject to review.” As authority, they cite the case of Henslee v. Kennedy, 262 Ark. 198, 555 S.W.2d 937 (1977). That case does not support their argument.

A review of the original briefs filed in Henslee reveals that the plaintiffs filed suit against the defendants, who answered and filed a counterclaim. The defendant-counterclaimants propounded two requests for admissions of fact. The plaintiffs responded by denying both requests for admissions, but the notary public’s affidavit under the denials provided only “subscribed and sworn to before me.” It did not state the contents of a subscription or the contents of an oath. The defendants filed a motion for summary judgment on the ground that the requests for admissions should be deemed admitted because the notary did not properly “verify” the denials as required by statute. The trial court denied the motion for summary judgment. Then, at trial, the defendant-counterclaimants moved the trial court to declare the requests admitted and to preclude the plaintiffs from offering testimony contradicting the admissions. The trial court denied the motion. On appeal, the defendant-counterclaimants argued that the trial court erred in denying the motion for summary judgment, but, in the same argument, contended that the trial court additionally erred because “[t]he appellants, during trial, moved the Court to declare the requests admitted and to preclude appellant from offering testimony contradicting the requests.” With those facts, we refused to address the denial of the motion for summary judgment on the counterclaim, but addressed the merits of the counterclaim. We wrote:

There are certain preliminary points we must address before reaching the merits of appellants’ counterclaim. Appellants contend that the chancellor erred in denying their motion for summary judgment on the counterclaim. The denial of a motion for summary judgment is not subject to review even after final judgment in a suit. Widmer v. Ft. Smith Vehicle & Machinery Corp., 244 Ark. 971, 429 S.W.2d 63; Deposit Guaranty Nat. Bank v. River Valley Co., Inc., 247 Ark. 226, 444 S.W.2d 880; Williams v. Varner, 253 Ark. 412, 486 S.W.2d 79. However, the alleged error on which appellants base their argument is subject to review: that is, that the trial court erred in finding that appellees’ answers to requests for admission were sufficiently verified; therefore, the matters requested were admitted.

Henslee, 262 Ark. at 203, 555 S.W.2d at 939 (emphasis added).

In sum, in Henslee, we reviewed the ruling made by the trial court during the trial on the merits of the counterclaim. We did not review the denial of the motion for summary judgment. In fact, we have often cited Henslee for the proposition that the denial of a motion for summary judgment is not subject to review, even after final judgment in a suit. See Elliott v. Hurst, 307 Ark. 134, 817 S.W.2d 877 (1991); Rick’s Pro Dive ‘N Ski Shop, 304 Ark. 671, 803 S.W.2d 934 (1991); Tillotson v. Farmers Ins. Co., 276 Ark. 450, 637 S.W.2d 541 (1982); and Sharp Co. v. Northeast Ark. Planning & Consulting Co., 275 Ark. 172, 628 S.W.2d 559 (1982). The court of appeals has cited the case for the same proposition. See State Farm Fire & Casualty Co. v. Amos, 32 Ark. App. 164, 798 S.W.2d 440 (1990). If we were to review the underlying basis of the denial of a motion for summary judgment, as urged by the Balls, it would make meaningless the setded law that we will not review a denial of a motion for summary judgment.

The denial of a motion for summary judgment is not reviewable on appeal; correspondingly, the Balls’ first point for reversal is not reviewable. Since the Balls do not appeal from a ruling about the sufficiency of the evidence, we make no determination of the sufficiency of the evidence.

We need not address the Balls’ next four points for reversal because, when the jury found that the Balls’ claims were setded, it did not consider evidence of negligence. The four points involve evidentiary rulings about negligence, and, even if erroneous, they would not have affected the verdict. We will not reverse in a case in which a ruling would not have affected the verdict. National Bank of Commerce v. Beavers, 304 Ark. 81, 802 S.W.2d 164 (1990).

The Balls’ final point for reversal involves Foehner’s “testimonial misconduct”; again, we do not reach the issue. The Balls received all the relief they asked on Foehner’s alleged misconduct. They received favorable rulings each time this issue was raised at trial. A party cannot appeal from a favorable ruling. Myers v. State, 317 Ark. 70, 876 S.W2.d 246 (1994). In addition, we have often explained that, except for rare instances not material to this case, we only reverse a trial court for making a ruling that constituted prejudicial error. Arkansas Dep’t of Human Servs. v. Harris, 322 Ark. 465, 910 S.W.2d 221 (1995). Here, the Balls do not allege that the trial court made an erroneous ruling. Rather, they contend on appeal that the trial court should have given more relief than they asked. It is a basic rule of appellate procedure that a party cannot change arguments on appeal. Luedemann v. Wade, 323 Ark. 161, 913 S.W.2d 773 (1996).

Affirmed.


author: Robert H. Dudley, Justice.

text:
    Christopher SANDERS v. STATE of Arkansas
    96-484
    932 S.W.2d 315
    Supreme Court of Arkansas
    Opinion delivered October 28, 1996

      Val P. Price, for appellant.

      Winston Bryant, Att’y Gen., by: Vada Berger, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

This is an interlocutory appeal by Christopher Sanders from the circuit court’s denial of his motion to transfer the charges against him to juvenile court. Sanders was charged on May 1, 1995, with aggravated assault and terroristic threatening in the first degree. The affidavits for warrants of arrest provide that Sanders “put a knife to the throat of Michael Ray and threatened to kill him. Michael is nine years old, and his brother and sister witnessed this. Chris has also kicked Michael on different occasions leaving bruises on his legs.” Sanders filed his motion to transfer on September 15, 1995, in which he alleged that he was born on February 12, 1978, was seventeen years old, and there were no other charges pending against him. The only witness at the hearing on the motion to transfer was Sanders’s mother, Becky Sanders. She testified that Sanders had been in juvenile court in August 1994 for a problem on a school bus and pleaded guilty to those charges. She testified that Sanders was placed under house arrest for six months, and the sentencing judge stated that if Sanders stayed out of trouble, his record would be “clean” at the conclusion of his sentence.

The trial judge asked whether the State had anything to offer about the seriousness of the offense. The deputy prosecuting attorney responded that the victim was committed to Arkansas Children’s Hospital for an evaluation after the incident. The trial judge asked what type of knife was allegedly used. The deputy prosecuting attorney answered that she thought that the knife used in the alleged crime was a kitchen knife, but she was not sure why she thought that. The deputy prosecuting attorney stated that Sanders had a juvenile record, but she did not know about the school bus incident. She explained that an officer had been trying to get the juvenile records but had been unable to do so. The deputy prosecuting attorney informed the trial court that a possible rape charge against Sanders was being investigated.

The trial judge denied the motion to transfer. In ruling from the bench, the trial judge stated that in making his decision he was to consider the three factors set forth in Ark. Code Ann. § 9-27-318(e) (Supp. 1995). He stated that he had only scant information about Sanders’s prior history, character traits, mental maturity, and other relevant factors. He then noted the incident on the school bus, but stated that there was no evidence that this offense was part of a repetitive pattern.

With regard to the seriousness of the offense and whether violence was employed, the trial judge stated that the offense itself was serious. He stated that the charges dealt with creating substantial danger of death or serious physical injury and threatening to cause death or serious physical injury and, therefore, were serious. With regard to violence, the trial judge stated that the court could only base its decision on the information and the attached affidavits and that the information and attached affidavits recited that Sanders employed violence by placing a knife to the throat of the victim and threatening to kill him. The trial judge stated that he did not know what type of knife was used, the circumstances, “or anything else related to the seriousness of the offense.” He stated that the question came down to whether the seriousness and violence established a need for this case to be tried in circuit court. The trial judge also considered the fact that appellant was seventeen at the time of the hearing and would be eighteen in approximately four months. He concluded:

The Court is going to deny the motion to transfer to Juvenile Court. This is an extremely close case, and if not for the defendant’s age and the proximity to turning eighteen, the Court likely would have transferred this to Juvenile Court without more information, but based on the defendant’s age and the seriousness of the offenses, at least the alleged seriousness of the offenses, the Court will deny the motion to transfer to Juvenile Court.

Sanders argues that the trial court erred in denying the motion to transfer because the alleged weapon was not shown to be inherently dangerous. He further asserts that terroristic threatening is not obviously violent. He contends that the incident on the bus for which he was placed under house arrest should not be considered as an adjudicated offense and that the State did not present evidence of prior offenses or convictions. He points out that the trial court specifically found that the current offense is not part of a repetitive pattern. Finally, he asserts that the trial court erroneously considered his age in denying the motion to transfer.

Sanders is charged with aggravated assault and terroristic threatening in the first degree. A person commits aggravated assault if, “under circumstances manifesting extreme indifference to the value of human life, he purposely engages in conduct that creates a substantial danger of death or serious physical injury to another person.” Ark. Code Ann. § 5-13-204(a) (Repl. 1993). Aggravated assault is a Class D felony. Ark. Code Ann. § 5-13-204(b). The applicable code section on terroristic threatening provides that a person commits terroristic threatening in the first degree if, “[w]ith the purpose of terrorizing another person, he threatens to cause death or serious physical injury or substantial property damage to another person.” Ark. Code Ann. § 5-13-301 (Supp. 1995). Terror-istic threatening in the first degree is a Class D felony. Ark. Code Ann. § 5-13-301(a)(2). The State could properly file the charges against appellant in circuit court pursuant to Ark. Code Ann. § 9-27-318 (b)(1) (Supp. 1995) because appellant was sixteen years old at the time of the alleged offense and he was being charged with conduct that, “if committed by an adult, would be [a] felony.” Ark. Code Ann. § 9-27-318 (b)(1).

In determining whether to retain jurisdiction, the trial court must consider:

(1) The seriousness of the offense, and whether violence was employed by the juvenile in the commission of the offense;
(2) Whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that the juvenile is beyond rehabilitation under existing rehabilitation programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts; and
(3) The prior history, character traits, mental maturity, and any other factor which reflects upon the juvenile’s prospects for rehabilitation.

Ark. Code Ann. § 9-27-318(e)(1) — (3) (Supp. 1995).

In Lammers v. State, 324 Ark. 222, 920 S.W.2d 7 (1996), we wrote:

The law regarding motions to transfer to juvenile court is well established:

A defendant seeking a transfer has the burden of proof to show a transfer is warranted under Ark. Code Ann. § 9-27-318(e). Ring v. State, 320 Ark. 128, 894 S.W.2d 944 (1995); Davis v. State, 319 Ark. 613, 893 S.W.2d 768 (1995). “If he or she meets the burden, then the transfer is made unless there is clear and convincing countervailing evidence to support a finding that the juvenile should remain in circuit court.” Bradley v. State, 306 Ark. 621, 623, 816 S.W.2d 605, 606 (1991); Ark. Code Ann. § 9-27-318(f) (Repl. 1993). “ ‘Clear and convincing evidence’ has been defined by this Court as ‘that degree of proof which will produce in the trier of fact a firm conviction as to the allegation sought to be established.’ ” Cobbins v. State, 306 Ark. 447, 450, 816 S.W.2d 161, 163 (1991) (citation omitted).
The trial court is not required to give equal weight to each of the statutory factors. Ring v. State, 320 Ark. 128, 894 S.W.2d 944 (1995). “Moreover, proof need not be introduced against the juvenile on each factor.” Davis v. State, 319 Ark. at 616, 893 S.W.2d at 769. “We have often stated that the serious and violent nature of an offense is a sufficient basis for denying a motion to transfer and trying a juvenile as an adult.” Sims v. State, 320 Ark. 528, 536, 900 S.W.2d 508, 513 (1995) (citing Davis v. State, 319 Ark. 613, 893 S.W.2d 678 (1995)). No element of violence beyond that required to commit the crime is necessary under Ark. Code Ann. § 9-27-318(e)(1). See Slay v. State, 309 Ark. 507, 832 S.W.2d 217 (1992), a case in which the underlying crime was rape and we wrote, “Cobbins cannot be read to require that an added element of violence must be shown under § 9-27-318(e)(l), and we believe it would be a perverted interpretation to construe that provision in such a manner.” Id. at 511, 832 S.W.2d 219. However, that a crime is serious without the use of violence “is not a factor sufficient in and of itself for a circuit court to retain jurisdiction of a juvenile.” Sebastian v. State, 318 Ark. 494, 498, 885 S.W.2d 882, 885 (1994).
Cole v. State, 323 Ark. 136, 141, 913 S.W.2d 779, 781-82 (1996) (quoting Holmes v. State, 322 Ark. 574, 911 S.W.2d 256 (1995)). An information can constitute sufficient evidence to establish that the defendant is charged with a serious and violent crime. Davis v. State, 319 Ark. 613, 893 S.W.2d 768 (1995); Walker v. State, 304 Ark. 393, 803 S.W.2d 502, reh’g denied 304 Ark. 402-A, 805 S.W.2d 80 (1991). This court applies the clearly erroneous standard in reviewing the trial court’s denial of a motion to transfer. Sims v. State, 320 Ark. 528, 900 S.W.2d 508 (1995).

Id. at 223-24, 920 S.W.2d at 8-9.

In Holmes v. State, 322 Ark. 574, 911 S.W.2d 256 (1995), the appellant, who was charged with aggravated robbery, appealed the denial of his motion to transfer to juvenile court. The trial judge had stated that, in his opinion, robbing an individual at gun point is a violent act, even when the gun is not fired and no one is assaulted or battered. This court affirmed, stating that the violent nature of the crime was a sufficient basis to deny the motion to transfer, but that there were also other factors appropriately relied upon by the trial court in denying the motion. We discussed the cases of Johnson v. State, 317 Ark. 521, 878 S.W.2d 758 (1994); Williams v. State, 313 Ark. 451, 856 S.W.2d 4 (1993); and Johnson v. State, 307 Ark. 525, 823 S.W.2d 440 (1992), in which this court addressed the sufficency of the violent nature of the offense to support the denial of the motion to transfer, in reaching its conclusion.

In Butler v. State, 324 Ark. 476, 922 S.W.2d 685 (1996), this court affirmed the trial court’s denial of a motion to transfer as it pertained to three charges of aggravated robbery. In the first two robberies, the defendant or an accomplice allegedly employed guns in robbing a pizza deliveryman. In the third robbery, the defendant or his accomplice used a rock or a brick to threaten a deliveryman. The court referred to the rock or brick as a “weapon.” We stated that the use of violence in the commission of a serious offense was sufficient “in and of itself” for a trial court to deny a motion to transfer. We said:

Because the remaining charges against appellant consist of three counts of aggravated robbery, Class Y felony, the most serious level of offense in the State of Arkansas, and because violence was employed via appellant’s use of deadly weapons to cause a threat of death or serious physical injury to the victims, we cannot say that the denial of transfer as to the three counts of aggravated robbery was clearly erroneous.

Id. at 484-85, 922 S.W.2d at 690.

In the present case, appellant is charged with aggravated assault and terroristic threatening. The affidavits for warrants of arrest allege that appellant “put a knife to the throat of Michael Ray and threatened to kill him.” The affidavits which the trial judge considered may have constituted inadmissible hearsay; however, there was no objection to them, and hearsay admitted without objection may constitute substantial evidence to support a ruling. Clemmons v. State, 303 Ark. 265, 795 S.W.2d 927 (1990).

Under the reasoning of our cases cited above, the offenses with which Sanders is charged are of a serious and violent nature, even though it is not alleged that Sanders actually physically injured the victim. Aggravated assault is a crime of violence. It is purposely engaging in conduct that “creates a substantial danger of death or serious physical injury to another person” under circumstances manifesting an extreme indifference to the value of human life. See Ark. Code Ann. § 5-13-204(a). Terroristic threatening while holding a knife to the victim’s throat is a crime of violence.

The trial court determined that the alleged offenses were serious and of a violent nature, and it did not clearly err in making this determination. Moreover, there was another factor supporting the denial of the motion. The court considered the fact that Sanders was seventeen at the time of hearing, but would be eighteen in approximately four months. In Hansen v. State, 323 Ark. 407, 914 S.W.2d 737 (1996), we affirmed the denial of a motion to transfer in a case in which the defendant, who was charged with statutory rape, was already eighteen at the time of the hearing on the motion. We wrote:

Moreover, as the trial court noted, commitment to a juvenile facility is not available for a young person older than 18. We have previously held that the chance for rehabilitation within the Division of Youth Services is nonexistent when a commitment cannot be had for a young person older than 18. See, e.g., Sims v. State, 320 Ark. 528, 900 S.W.2d 508 (1995); Hogan v. State, supra.
We are cognizant of the fact that by Act 1261 of 1995 the General Assembly extended commitment time for juveniles beyond age 18 under certain circumstances:
(d) Commitment shall not exceed the eighteenth birthday of a youth, unless the Department of Human Services’ State Institutional System Board determines that an adequate facility or facilities are available for youths eighteen (18) years of age or older.
Ark. Code Ann. § 9-28-208(d) (Supp. 1995). Section 9-28-208(d), however, presupposes that the youth has already been committed at the time he or she turns 18 and allows for that commitment to continue. That is not the situation in the case before us. Under these circumstances, we cannot say that the decision of the trial court was clearly erroneous in denying the transfer.

Id. at 410-11, 914 S.W.2d at 739.

For the above reasons we affirm the trial court’s ruling denying the motion to transfer. Even so, in our decisional conference, this case was a catalyst for discussion on the need to review our past interpretation of parts of the juvenile code. This case exemplifies the fact that, under our current interpretations of the code, prosecuting attorneys can file a serious charge against a juvenile in circuit court and do nothing more. It may be that there is no substantial evidence to support the charge, and a transfer may be denied. In this case the trial judge was apparently frustrated by a total lack of proof by the State. He even inquired whether the knife alleged to have been used was a butter knife or a butcher knife, and the State did not know. This type of proceeding was not envisioned by the drafters of the juvenile code, and we did not intend for our interpretations to do away with the need for a meaningful hearing. As a result, we issue a caveat that in juvenile transfer cases tried after this date, we will consider anew our interpretation of the juvenile code when the issues are fully developed and briefed.

Affirmed.


author: David Newbern, Justice.

text:
    John Christopher PEELER v. STATE of Arkansas
    CR 96-605
    932 S.W.2d 312
    Supreme Court of Arkansas
    Opinion delivered October 28, 1996

      William C. McArthur, for appellant.

      Winston Bryant, Att’y Gen., by: Vada Berger, Asst. Att’y Gen. for appellee.
   David Newbern, Justice.

John Christopher Peeler was convicted of capital murder for having killed Chris Cummings. Mr. Peeler was referred to at the trial as “Chris Peeler.” Chris Cummings disappeared in 1992. Amy Blankenship was Mr. Peeler’s fifteen-year-old girlfriend at that time. She became Amy Peeler when she married Mr. Peeler on her sixteenth birthday in 1993. At Chris Peeler’s trial, which took place in 1996, Amy Peeler testified about her role in kidnapping Mr. Cummings prior to the murder. Mr. Peeler contends that, as Amy Peeler was his alleged accomplice, corroborating evidence sufficient to demonstrate that the crime was committed and that he was connected with it was required and that it was not forthcoming. His second point is that the Trial Court erred in'refusing his request for a mistrial when a witness testified he thought Mr. Peeler was “guilty.” We hold the evidence corroborating Ms. Peeler’s testimony was sufficient and that any prejudice resulting from the testimony which gave rise to the mistrial motion was not such as to require reversal. We affirm the judgment in which Mr. Peeler was sentenced to life imprisonment without parole.

On the evening of December 19, 1992, Chris Cummings, a tenth-grade student, told his parents that he was going to watch a movie with “Amy” and that he would be back later. Chris did not return. The next day his parents instigated a search and notified police authorities. His picture was circulated on flyers and on milk cartons to no avail. Investigators recovered neither his body nor any physical evidence that could reveal what happened to him.

In December 1994, the police received a call from a friend of Amy Peeler who said Amy had revealed that her husband, Chris Peeler, killed Chris Cummings because Cummings had raped her. The police arrested Amy Peeler, and she gave them a statement, repeated at Chris Peeler’s trial, implicating her husband in the murder of Chris Cummings.

Mr. Peeler was arrested and charged with kidnapping and capital murder. The State waived the death penalty, and the case proceeded to trial. Chris Cummings’s father testified that on the evening of Saturday, December 19, 1992, Chris Cummings was given permission to go out to watch a movie with a girl named Amy who had called their home that evening. He stated that Chris Cummings had not previously run away and had always returned home within fifteen minutes of his curfew.

Amy Peeler testified that Chris Cummings had been a classmate and friend. She testified they passed notes and talked during their school lunch periods but did not date because she was going out with Chris Peeler. She was asked on direct examination to tell of an incident involving Chris Cummings that occurred in her father’s home in November 1994. (The question apparently was meant to refer to November 1992.) She responded that Chris Cummings came to her and her father’s home and raped her when her father was away. For a time she told no one of the incident except Chris Peeler and his mother, Cindy Sheridan.

According to Amy’s testimony, Chris Peeler, who was then her boyfriend and who had returned to Arkansas at Christmas time from Marine Corps boot camp in California, listened on another line while she called Chris Cummings and asked why he had raped her. Chris Cummings made a remark during the phone conversation confirming that the event had occurred. Chris Peeler then had Amy set up a meeting at Sawyer’s Grocery Store. Amy drove to the rear of the store at about 10 p.m., after the store had closed, with Chris Peeler hiding in the rear floorboard of the car. When Chris Cummings entered the vehicle, Chris Peeler jumped him, tied him up, and put him in the trunk. Amy testified that Chris Peeler then took her home. The next day he told her that he had killed Chris Cummings and that it “took forever for him to die.” Amy stated that Chris Peeler told her he took the body to a place near Scott and dumped it in the water. Chris Peeler’s grandparents owned property near Scott where they fished and with which he was familiar. Arkansas River backwater and slough areas are nearby.

Amy Peeler testified that, after marrying Chris Peeler in June 1993, she lived with him for a year and a half but left him because she could not go on “living a lie,” knowing what he had done.

Chris Peeler’s mother, Cindy Sheridan, a witness for the State, testified her son asked her, “Mom, do you know the boy that raped Amy?” and that when she responded affirmatively he said he “took care of it.” She said she asked what he had done and he stated that he “had taken the boy out to the swamp out to Scott and did him in."

Randy Alford, Chris Peeler’s uncle, testified that Chris Peeler told him that he killed somebody named Chris because that person had raped Amy.

Gloria Denton testified that on the nineteenth or twentieth of December, 1992, she was living on Old River Road in Scott. She identified Mr. Peeler as a person who came to her house during that time and asked to use her phone because his car was stuck in her field.

Selena Johnson testified that Mr. Peeler, while at a party, stated that he had committed the perfect murder.

Mr. Peeler made timely motions for a directed verdict on the ground the State had failed to present evidence that a homicide had occurred and had failed to corroborate the accomplice testimony of Amy Peeler. The motions were denied.

Í. Sufficiency of the evidence

A motion for directed verdict is a challenge to the sufficiency of the evidence. Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995); Evans v. State, 317 Ark. 449, 878 S.W.2d 409 (1994). The test is whether the verdict is supported by substantial evidence, direct or circumstantial. Evans v. State, supra; Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993). Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another. Evans v. State, supra; Coleman v. State, 314 Ark. 143, 860 S.W.2d 747 (1993). We review the evidence in the light most favorable to the appellee. Id.

Mr. Peeler contends a verdict should have been directed in his favor because the State failed to produce enough evidence to corroborate Amy Peeler’s testimony.

A conviction cannot be had in any case of felony upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof.

Ark Code Ann. § 16-89-111 (e)(1) (1987). The corroboration must be sufficient standing alone to establish the commission of the offense and to connect the defendant with it. Hogue v. State, 323 Ark. 515, 915 S.W.2d 276 (1996); Daniels v. State, 308 Ark. 53, 821 S.W.2d 778 (1992). The test for corroborating evidence is whether, if the testimony of the accomplice were totally eliminated from the case, the other evidence independently establishes the crime and tends to connect the accused with its commission. Meeks v. State, 317 Ark. 411, 878 S.W.2d 403 (1994); Daniels v. State, supra. Circumstantial evidence qualifies as corroborating evidence but it, too, must be substantial. Id. Corroborating evidence need not, however, be so substantial in and of itself to sustain a conviction. Id. See also Rhodes v. State, 280 Ark. 156, 655 S.W.2d 421 (1983).

The primary evidence presented to corroborate the testimony of Amy Peeler was the testimony of Mr. Peeler’s mother and uncle. Both testified that Mr. Peeler admitted the murder. That evidence independently establishes the crime and tends to connect the accused with its commission.

2. Motion for mistrial

Mr. Alford, Chris Peeler’s uncle, when questioned as to why he was testifying against Chris, stated, “I believe he’s guilty.” Counsel moved for a mistrial on the ground that the question and answer were improper. He contended the remark expressed a conclusion reserved to the jury and was highly prejudicial and could not be cured by an admonition to the jury. The prosecutor stated it had not been her intention to elicit the response Mr. Alford made to her question. The mistrial motion was overruled, but the Trial Court offered to admonish the jury to disregard the testimony. Counsel declined the offer. Mr. Peeler contends it was error not to grant the motion.

“A mistrial is a drastic remedy which should only be used when there has been an error so prejudicial that justice cannot be served by continuing the trial or when the fundamental fairness of the trial itself has been manifestly affected.” Puckett v. State, 324 Ark. 81, 918 S.W.2d 707 (1996). See also Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995); Richmond v. State, 302 Ark. 498, 791 S.W.2d 691 (1990). A trial court has wide discretion in granting or denying a motion for a mistrial, and absent an abuse, the decision will not be disturbed. Stewart v. State, supra; King v. State, 298 Ark. 476, 769 S.W.2d 407 (1989). A mistrial will be granted only where any possible prejudice cannot be removed by an admonition to the jury. Trull v. State, 322 Ark. 157, 908 S.W.2d 83 (1995); Furlough v. State, 314 Ark. 146, 861 S.W.2d 297 (1993).

Prior to asking the question, the prosecutor noted that Mr. Alford was a “reluctant witness,” and Mr. Alford confirmed it. Although the open-ended, follow-up question asked of Mr. Alford as to why he had agreed to testify may have sought a response of questionable relevance, we cannot gainsay the prosecutor’s remark, after the mistrial motion was made, to the effect that she had not sought Mr. Alford’s opinion with respect to the guilt or innocence of the accused. Finally, we regard the problem as one which could have been cured by an admonition to the jury. See Weaver v. State, 324 Ark. 290, 920 S.W.2d 491 (1996); Boyd v. State, 318 Ark. 799, 889 S.W.2d 20 (1994). Mr. Peeler’s counsel refused the Trial Court’s offer to admonish the jury on the ground that it would only call more attention to the statement. In these circumstances, we hold no error occurred.

3. Arkansas Supreme Court Rule 4-3 (h)

The record has been reviewed for any error resulting from rulings prejudicial to Mr. Peeler, and none have been found.

Affirmed.