author: Tom Glaze, Justice. David Newbern, Justice, Annabelle Clinton Imber, Justice, Ray Thornton, Justice,

text:
    STATE of Arkansas v. Adrian ZAWODNIAK
    CR 96-1503
    946 S.W.2d 936
    Supreme Court of Arkansas
    Opinion delivered June 23, 1997
    [Petition for rehearing denied September 11, 1997.]

      Winston Bryant, Att’y Gen., by: David R. Raupp, Senior Asst. Att’y Gen., for appellant.

      William R. Simpson, Jr., Public Defender, by: Jeffrey A. Weber, for appellee.
   Tom Glaze, Justice.

On May 14, 1995, a Jacksonville police officer was dispatched to check a report that a person was passed out or sleeping in a car parked in front of a restaurant. Upon arriving at the scene, the officer awakened the person identified as Adrian Zawodniak. Zawodniak was subsequently found in possession of methamphetamine, a loaded handgun, and drug paraphernalia. The paraphernalia included a portable scale, a small spoon, and gold tweezers. He was charged with simultaneous possession of drugs and firearms under Ark. Code Ann. § 5-74-106(a) (Repl. 1993), and with possession of drug paraphernalia under Ark. Code Ann. § 5-64-403 (Repl. 1993).

Zawodniak waived a jury trial, and was tried at a bench trial on March 11, 1996. The State called three police officers and a drug chemist who established that when Zawodniak was arrested, he possessed methamphetamine, drug paraphernalia, and a 3.80 Loracin automatic pistol, containing four bullets — one in the chamber. The weapon was found in Zawodniak’s waistband.

Immediately upon the State resting its case, Zawodniak moved for a directed verdict. He claimed the simultaneous-possession statute, § 5-74-106(a), required that, in addition to proving he was in the simultaneous possession of drugs and a firearm, the State must show he was involved in criminal gang or group activity. The trial court agreed with Zawodniak’s interpretation of the statute and granted his motion. The trial court then reduced Zawodniak’s charge and convicted him only of possession of a controlled substance and of drug paraphernalia. The trial court placed Zawodniak on five years’ probation. If convicted of violating § 5-74-106, Zawodniak would have been guilty of a Class Y felony and punishable by a sentence of not less than ten years and not more than forty years, or fife. See Ark. Code Ann. §§ 5-74-106(b), 5-4-104(c)(1), and 5-4-401(a)(l) (Repl. 1993 and Supp. 1995).

The State appeals the trial court’s decision under Rule 3 of the Arkansas Appellate Procedure — Criminal, asserting that the lower court committed error to the State’s prejudice and that the correct and uniform administration of the criminal law requires this court’s review. We agree.

As previously indicated, the State’s appeal focuses on the trial court’s construction of § 5-74-106, which in pertinent part provides as follows:

(a) No person shall unlawfully commit a felony violation of § 5-64-401 (Uniform Controlled Substances Act) or unlawfully attempt, solicit, or conspire to commit a felony violation of § 5-64-401 while in possession of:

(1) A firearm;

* *• *

The State submits that its evidence at trial clearly showed Zawodniak simultaneously possessed drugs and a loaded firearm at the time of his arrest, and that was all that was required under the wording in § 5-74-106(a). However, Zawodniak argues § 5-74-106(a) is a part of the Arkansas Criminal Gang, Organization, or Enterprise Act codified in §§ 5-74-101 -108, and § 5-74-102 of that Act reflects that, to violate § 5-74-106(a), a person must also be shown to have been associated with “gang activity” at the time of the violation.

Zawodniak’s and the trial court’s reading of these statutes is contorted and fails to give the language of § 5-74-106 (a) its plain meaning, as our cases direct. See State v. McLeod, 318 Ark. 781, 888 S.W.2d 639 (1994). This court has also stated that it is very hesitant to interpret a legislative act in a manner contrary to its express language, unless it is clear that a drafting error or omission has circumvented legislative intent. Id. at 786. No error or omission is evident here. In fact, § 5-74-106(a), as we read it, not only serves to deter organized gang and criminal activities, but also seeks the broader purpose to curtail any person’s use of a firearm when that person is involved in the illegal trafficking in or possession of controlled substances. Such interpretation is in keeping with the plain language employed in § 5-74-106(a), and in no way diminishes the General Assembly’s declared intent to combat criminal gang activity. Because the trial court erroneously engrafted an element of proof •— gang activity — not required under § 5-74-106(a), we reverse its ruling that required the State to prove that element.

The State further requests we remand this case for retrial, but Zawodniak rejoins, stating that, when the trial court reduced his charge to possession of a controlled substance, the reduction .resulted in an acquittal of the simultaneous-possession charge. Citing Green v. United States, 355 U.S. 184 (1957), and United States v. Scott, 437 U.S. 82 (1978), he argues any retrial is barred by the Double Jeopardy Clause.

The Supreme Court in Burks v. United States, 437 U.S. 1 (1978), undertook to review its earlier cases involving the Double Jeopardy Clause, and in doing so distinguished between reversals due to trial error and those resulting from evidentiary insufficiency. Id. at 12-18. The Court said that the most reasonable justification for allowing retrial to correct trial error was espoused in United States v. Tateo, 377 U.S. 463 (1964), as follows:

It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction.

The Burks court then concluded by stating the following:

In short, reversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its case. As such, it implies nothing with respect to the guilt or innocence of the defendant. Rather, it is a determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect, e.g., incorrect receipt or rejection of evidence, incorrect instructions, or prosecutorial misconduct. When this occurs, the accused has a strong interest in obtaining a fair readjudication of his guilt free from error, just as society maintains a valid concern for insuring that the guilty are punished. See Note, Double Jeopardy: A New Trial After Appellate Reversal for Insufficient Evidence, 31 U. Chi. L. Rev. 365, 370 (1964).
The same cannot be said when a defendant’s conviction has been overturned due to a failure of proof at trial, in which case the prosecution cannot complain of prejudice, for it has been given one fair opportunity to offer whatever proof it could assemble. Moreover, such an appellate reversal means that the government’s case was so lacking that it should not have been submitted to the jury. Since we necessarily afford absolute finality to a jury’s verdict of acquittal — no matter how erroneous its decision — it is difficult to conceive how society has any greater interest in retrying a defendant when, on review, it is decided as a matter of law that the jury could not properly have returned a verdict of guilty. 437 U.S. at 15-16.

The Scott case relied on here by Zawodniak was decided after Burks, and the Scott court pointed out that one problem in understanding or applying the Double Jeopardy Clause in prior cases was that the United States had no right to 'appeal a criminal case during the first century of the Court’s existence. The Court in Scott pointed out that its growing experience with Government appeals required its re-examination of the rationale of its decisions regarding the Double Jeopardy Clause. Upon making its review, the Court announced that, while the State should not be allowed to make repeated attempts to convict an individual for an offense, the principle underlying double jeopardy cannot be expanded to include situations in which the defendant is responsible for the second prosecution.

The Scott Court further concluded that, where a defendant chooses to avoid conviction, not because of his assertion that the Government has failed to make out a case against him, but because of a legal claim that the Government’s case against him must fail, the defendant by deliberately choosing to seek termination of the trial, suffers no injury cognizable under the Double Jeopardy Clause if the Government is permitted to appeal from such a trial court ruling favoring the defendant. The Court proclaimed, “[T]he Double Jeopardy Clause, which guards against Government oppression, does not relieve a defendant from the consequences of his voluntary choice.” 437 U.S. at 99.

In applying the Double Jeopardy Clause rationale set out in Burks and Scott to the circumstances present here, it is clear that Zawodniak was the one who initiated the legal claim, albeit erroneous, that § 5-74-106(a) contained an element — gang activity — that the State must prove in order to convict him of simultaneous possession. As discussed above, the trial court erred by adopting Zawodniak’s legal argument, and as previously mentioned, the State had the right to appeal the trial court’s decision. The State also correctly points out that the proof it offered at trial indisputably showed that Zawodniak possessed both drugs and a loaded firearm at the time of his arrest, and such evidence was sufficient to convict him of the simultaneous- possession charge under § 5-74-106(a). See Darrough v. State, 322 Ark. 251, 908 S.W.2d 325 (1995).

In sum, Zawodniak received a favorable trial court decision not because the State had failed to prove its case, but because the trial court, at Zawodniak’s instigation, erred in applying erroneous law. In other words, defendant Zawodniak, by deliberately choosing to seek termination of the proceedings against him on a basis unrelated to factual guilt or innocence of the simultaneous-possession charge of which he was accused, suffers no injury cognizable under the Double Jeopardy Clause. See Scott, 437 U.S. at 98-99. With considerable clarity, the Scott court, holding in favor of the government, said as follows:

This is scarcely a picture of an all-powerful state relendessly pursuing a defendant who had either been found not guilty or who had at least insisted on having the issue of guilt submitted to the first trier of fact. It is instead a picture of a defendant who choses to avoid conviction and imprisonment, not because of his assertion that the Government failed to make out a case against him, but because of a legal claim that the Government’s case against him must fail even though it might satisfy the trier of fact that he was guilty beyond a reasonable doubt. (Emphasis added.)

To bar appeal, the trial court’s judgment must be one that indicates that the government’s factual case has faded either as to the statutory elements of the offense charged, or as to the burden shifted to the government when a defendant raises a prima facie defense that, unrebutted, would justify a finding of innocence. 437 U.S. at 87-98. Permitting retrial in this instance is not the sort of oppression at which the Double Jeopardy Clause is directed, but instead simply affords the defendant an opportunity to obtain a fair adjudication of his guilt free from error. See Lockhart v. Nelson, 488 U.S. 33 (1988); see also Parker v. State, 300 Ark. 360, 779 S.W.2d 156 (1989).

For the reasons above, we reverse and remand for further proceedings.

Newbern, J., concurs; Brown, Imber, and Thornton, JJ., concur in part and dissent in part.

David Newbern, Justice,

concurring. The majority correctly holds that “gang activity” is not an essential element of the simultaneous-possession offense created by Ark. Code Ann. § 5-74-106 (Repl. 1993). The Trial Court concluded otherwise and “reduced” the simultaneous-possession charge to a charge of possession of methamphetamine due to the State’s failure to establish that Mr. Zawodniak simultaneously possessed drugs and firearms while engaging in “gang activity.” That was error.

Upon remand, Mr. Zawodniak may be retried consistently with the Double Jeopardy Clause of the United States Constitution. My analysis of the important double-jeopardy question presented in this case differs from that of the majority.

The majority opinion discusses the decisions of the United States Supreme Court in Burks v. United States, 437 U.S. 1 (1978); United States v. Tateo, 377 U.S. 463 (1964); and Lockhart v. Nelson, 488 U.S. 33 (1988), as well as our decision in Parker v. State, 300 Ark. 360, 779 S.W.2d 156 (1989), cert. denied 498 U.S. 883 (1990). These cases stand for the proposition that the Double Jeopardy Clause does not prohibit the State from retrying a defendant who has successfully appealed a conviction and obtained a reversal on the basis of “trial error” as opposed to evidentiary insufficiency.

A critical distinction between this case and the ones mentioned above is that the “error” committed by the Trial Court with respect to the simultaneous-possession charge resulted not in a conviction of Mr. Zawodniak on that charge but in a “reduction” of it to a charge of possession of methamphetamine. The Burks, Tateo, Nelson, and Parker cases do not hold that the Double Jeopardy Clause permits a defendant to be retried for the same offense after a trial court, as the result of error, has “reduced,” dismissed, or granted a directed verdict on the charge, acquitted the defendant, or otherwise terminated the proceedings in the defendant’s favor. In the absence of a conviction that is reversed on the basis of trial error, these cases are inapposite, and authority for our decision in the case at bar must be found elsewhere.

As the majority opinion suggests, such authority lies in the United States Supreme Court’s decision in United States v. Scott, 437 U.S. 82 (1978). The controlling principle from that case is that, where a trial court, at the defendant’s request, terminates the proceedings on legal grounds without acquitting the defendant of the offense charged, the State may appeal the trial court’s decision and retry the defendant if the reviewing court determines that the trial court’s ruling was in error.

In the Scott case, the Supreme Court held that the Double Jeopardy Clause did not bar the Government from appealing the ruling of the District Court that granted the respondent’s motion to dismiss two counts of narcotics distribution on the basis of preindictment delay. The Government’s appeal from the District Court’s ruling had been dismissed by the Sixth Circuit Court of Appeals on the basis of the Double Jeopardy Clause, and the Supreme Court reversed.

The Court acknowledged that a genuine acquittal, “whether based on a jury verdict of not guilty or on a ruling by the court that the evidence is insufficient to convict, may not be appealed and terminates the prosecution when a second trial would be necessitated by reversal.” United States v. Scott, 437 U.S. at 91. The Court also recognized, however, that certain rulings by the Trial Court — such as the District Court’s ruling on the issue of preindictment delay — that terminate the proceedings favorably to the defendant do not constitute acquittals for double-jeopardy purposes and thus do not foreclose an appeal and the possibility of retrial on the same offense. According to the Court, a defendant who does not obtain an acquittal but instead “deliberately choos[es] to seek termination of the proceedings against him on a basis unrelated to factual guilt or innocence of the offense of which he is accused . . . suffers no injury cognizable under the Double Jeopardy Clause if the Government is permitted to appeal from such a ruling of the trial court in favor of the defendant.” Id. at 98-99.

According to one commentator’s view of the Court’s double-jeopardy jurisprudence, “[a]ny resolution that falls within the Supreme Court’s definition of an acquittal becomes an absolute bar to further prosecution. Therefore, determining whether a particular result is an acquittal is crucial.” Ann Bowen Poulin, Double Jeopardy and Judicial Accountability: When Is an Acquittal Not an Acquittal?, 27 Ariz. St. L.J. 953, 970 (1995). Another commentator agrees that the Double Jeopardy Clause, as interpreted in the Scott case, “protects a defendant from a second trial only if he has been acquitted in the first.” James D. Gordon III, Double Jeopardy and Appeal of Dismissals: A Before-and-After Approach, 69 Calif. L. Rev. 863, 872 (1981). See also Jason Wiley Kent, Double Jeopardy: When is an Acquittal an Acquittal?, 20 B.C. L. Rev. 925, 935 (1979)(stating that, under the Scott case, the availability of a double-jeopardy defense following judgment of dismissal “depends on subtle distinctions in the reason for the judgment”).

Our inquiry here is thus broader than the majority opinion suggests it to be. The issue is not merely whether “trial error” occurred below or whether the termination of the first trial occurred at Mr. Zawodniak’s behest. We must resolve the more precise question of whether the Trial Court’s ruling constituted an “acquittal” of the simultaneous-possession charge given the definition of that term announced in the Scott case. We are constrained merely to declare error if we answer the question affirmatively. We may remand for further proceedings, and the State may retry Mr. Zawodniak, if we answer the question in the negative.

According to the Scott decision, a defendant is acquitted and thus protected by the Double Jeopardy Clause from an appeal by the State and the possibility of retrial “only when ‘the ruling of the judge, whatever its label, actually represents a resolution [in the defendant’s favor], correct or not, of some or all of the factual elements of the offense charged.’” United States v. Scott, 437 U.S. at 97, quoting United States v. Martin Linen Supply Co., 430 U.S. 564, 571 (1977). Thus, “in order to bar appeal the trial court’s judgment must be one that indicates that the government’s factual case has failed either as to the statutory elements of the offense charged, or as to the burden shifted to the government when a defendant raises a prima facie defense that, unrebutted, would justify a finding of innocence.” Kent, supra, at 940. Another commentator understands the Scott case as barring “appeal of midtrial dismissals based on factual grounds but not those based on legal grounds.” Gordon, supra, at 876.

In determining whether the Trial Court’s ruling constitutes an acquittal, we are not bound by the “form of the judge’s action” or the manner in which the judge or counsel have characterized the ruling. United States v. Martin Linen Supply Co., 430 U.S. at 571. See United States v. Scott, 437 U.S. at 96, quoting United States v. Jorn, 400 U.S. 450, 478 n.7 (opinion of Harlan, J.)(1971); United States v. Wilson, 420 U.S. 332, 336 (1975); United States v. Sisson, 399 U.S. 267, 270 (1970). But see Sanabria v. United States, 437 U.S. 54, 66 (1978) (“While form is not to be exalted over substance in determining the double jeopardy consequences of a ruling terminating a prosecution, . . . neither is it appropriate entirely to ignore the form of order entered by the trial court . . . .”)(citations omitted).

Although “the line between an acquittal and a non-acquittal is sometimes hard to draw,” Poulin, supra, at 979, and “the question of what constitutes an acquittal has proven difficult to answer,” United States v. Markus, 604 F. Supp. 736, 739 (D. N.J. 1985), aff'd 786 F.2d 1147 (3d Cir. 1986), in this case it seems clear that there was not an acquittal of the offense charged based on failure to prove any of its elements. Rather, the Trial Court in effect nullified the charge because of failure of the State to prove a non-extant element. The Double Jeopardy Clause therefore does not prevent the State from retrying Mr. Zawodniak because the Trial Court did not find that the State failed to prove any of the factual elements of the offense charged.

The result we reach is at odds with our decisions in Brooks v. State, 308 Ark. 660, 827 S.W.2d 119 (1992); State v. Johnson, 317 Ark. 226, 876 S.W.2d 577 (1994); and State v. Young, 315 Ark. 656, 869 S.W.2d 691 (1994). In those cases, however, we failed to consider the definition of “acquittal” espoused by the Supreme Court in the Scott case. The Brooks, Johnson, and Young cases are thus not controlling here.

Mr. Zawodniak has urged that a retrial would violate his double-jeopardy rights under both the United States Constitution and the Arkansas Constitution, but he has neither argued that the latter affords greater protection than the former nor presented us with any other “independent and adequate state ground” on which to decide this case. See Michigan v. Long, 463 U.S. 1032 (1988).

Annabelle Clinton Imber, Justice,

dissenting in part, concurring in part. I agree with the majority that the trial court erroneously construed the simultaneous-possession statute, Ark. Code Ann. § 5-74-106(a), to require proof of gang or other organized criminal activity, a nonexistent element of the offense. However, I depart from the majority’s analysis that simply because the judge committed “trial error,” the Double Jeopardy Clause does not bar a remand of the present case. Instead, Justices Newbern and Thornton frame the correct inquiry — whether the trial court’s ruling acquitted Zawodniak on the simultaneous-possession charge. If in fact Zawodniak was acquitted, then the Double Jeopardy Clause bars a subsequent prosecution. See United States v. Scott, 437 U.S. 82 (1978). Unlike Justice Newbern, my reading of the guiding cases suggests that the trial court’s ruling was an acquittal on the simultaneous-possession charge.

In United States v. Scott, supra, the defendant moved to dismiss a count due to preindictment delay, which the trial court granted. While the Fifth Circuit held that double jeopardy prevented retrial, the United States Supreme Court “granted certiorari to give further consideration to the applicability of the Double Jeopardy Clause to Government appeals from orders granting defense motions to terminate a trial before verdict.” United States v. Scott, supra. The Court reversed the Fifth Circuit, recognizing that two separate lines of cases had developed concerning trials where no final determination of guilt or innocence had been made: i) where the trial court declares a mistrial and ii) where “the trial judge terminates the proceedings favorably to the defendant on a basis not related to factual guilt or innocence.” United States v. Scott, supra.

The defendant’s case fell into the latter category. The dismissal of the first count was based on preindictment delay and not on the sufficiency of the evidence to establish his guilt. The defendant had voluntarily elected to seek termination of his trial on grounds unrelated to guilt or innocence. Fie had not been acquitted on the first count because “a defendant is acquitted only when ‘the ruling of the judge, whatever its label, actually represents a resolution [in the defendant’s favor], correct or not, of some or all of the factual elements of the offense charged.’” United States v. Scott, supra (quoting United States v. Martin Linen Supply Co., 430 U.S. 564 (1977)). In contrast to an acquittal, the dismissal of the charge for preindictment delay merely represented a legal judgment that the defendant, although potentially criminally hable, could not be punished for a supposed constitutional violation. The Scott Court thus concluded that where a “defendant himself seeks to have the trial terminated without any submission to either judge or jury as to his guilt or innocence, an appeal by the Government from his successful effort to do so is not barred. ...” United States v. Scott, supra.

The Court reached an opposite result in Sanabria v. United States, 437 U.S. 54 (1978), handed down the same day as Scott. In Sanabria, the trial court erroneously excluded evidence, leading to a judgment of acquittal on a count due to insufficiency of the evidence. The Sanabria Court held that double jeopardy barred a retrial. While the Government argued that the trial court had merely dismissed a portion of the charge (thus permitting a retrial of that portion) while actually acquitting only on a separate theory of liability, the Court found it impossible to accept this characterization. The Court stated that the “the judgment of acquittal was entered on the entire count and found [defendant] not guilty of the crime. . . without specifying that it did so only with respect to one theory of liability.” The Court instead characterized the trial court’s action as an “erroneous evidentiary ruling,” which led to an acquittal based on insufficient evidence — due to the fact that the trial court found that the indictment’s description of the offense was too narrow to justify the admission of certain evidence. Sanabria v. United States, supra. This judgment of acquittal, “however erroneous,” barred further prosecution on any aspect of the count, given that “when a defendant has been acquitted at trial he may not be retried on the same offense, even if the legal rulings underlying the acquittal were erroneous.” Sanabria v. United States, supra (emphasis added).

In the present case, the trial court concluded that the State’s case was factually insufficient to convict Zawodniak, albeit premised on an erroneous legal ruling. Defense counsel moved for a “directed verdict,” arguing that “the [SJtate has failed to prove that element [of gang or organized criminal activity] and it is required by law to be proven.” The trial court “grant[ed] [Zawodniak’s] motion to reduce this to possession of methamphetamine. And I do so because of the language in what I consider to be a preamble to that whole area passed by the Legislature, looking to their intent, as to deal with gang activity. ...” While the State argued that gang activity was not an element required by the statute, it did address the sufficiency issue as framed by Zawodniak:

[A]lso with this defendant, we have a statement written by him, although there’s — other than that statement, we did not have anyone here as far as what organizations or who else he’s involved. He states in his written statement that he is part of the life and he’s part of this whole particular life-style, the power, the money, the drags, everything. So, I don’t believe this is — if he wanted to fit it into here, we don’t have any idea who else he is, I guess, organizing with. But apparently as far as his statement states he is part of this whole life-style that includes possession and use of methamphetamine and, I guess, carrying of weapons and everything.

The trial court responded to the State’s argument, “as you say, those witnesses are not here today. And the Court still looks then at the particular areas of this case.” In sum, the trial court applied the State’s proof to the simultaneous possession statute, erroneously “added” a non-existent element, and concluded that the State’s evidence was insufficient to convict, resulting in a final determination that the defendant was innocent of the crime charged. At the very least this involved a factual determination, and was more than a purely legal ruling. It was certainly qualitatively different than a defendant “seeking] to have the trial terminated without any submission to either judge or jury as to his guilt or innocence,” as was the dismissal for preindictment delay in Scott. Instead, Zawodniak argued that he was innocent of the crime charged, due to a failure of proof in the State’s case. As such, the present case is far more like the situation presented in Sanabria, where the trial court entered a judgment of acquittal based on an erroneous legal ruling.

Moreover, this court has established a precedent directly on point. In Brooks v. State, 308 Ark. 660, 827 S.W.2d 119 (1992), the trial court granted the appellant’s directed verdict motion on an aggravated robbery charge, on the mistaken assumption that aggravated robbery required that something be taken from the victim. After the close of all evidence, the trial court reversed itself, explaining that its prior ruling was an “error of law.” The reinstated aggravated robbery charge was then submitted to the jury, resulting in a conviction.

Relying on Sanabria, this court reversed the conviction on double jeopardy grounds, holding that the trial court’s dismissal based on insufficient evidence was an acquittal on the aggravated robbery charge. This was true even though the trial court made an erroneous legal ruling effectively “adding” an element to the aggravated robbery statute that did not exist.

Brooks is therefore indistinguishable from the present case. As in Brooks, Zawodniak submitted to the trial court’s final determination as to his guilt or innocence, which was ultimately resolved in favor of the defendant, based on the trial court’s erroneous legal conclusion. That the acquittal was founded on an erroneous legal ruling — that the simultaneous-possession statute required proof of gang activity — is irrelevant for purposes of double jeopardy analysis. See Sanabria v. United States, supra; State v. Johnson, 317 Ark. 226, 876 S.W.2d 577 (1994); State v. Young, 315 Ark. 656, 869 S.W.2d 691 (1994); Brooks v. State, supra; State v. Joshua, 307 Ark. 79, 818 S.W.2d 249 (1991), overruled on other grounds, 310 Ark. 244, 835 S.W.2d 869 (1992). The trial court’s judgment of acquittal based on insufficiency of the evidence, however erroneous, bars any further prosecution on any aspect of the simultaneous-possession charge.

For these reasons, I concur with the majority to reverse the trial court’s ruling that the State was required to prove gang activity under Ark. Code Ann. § 5-74-106(a); however, I respectfully dissent from the majority’s remand for further proceedings. I would reverse and declare error.

Brown and Thornton, JJ., join.

Ray Thornton, Justice,

dissenting in part and concurring in part. While I agree with the majority that the trial court erred in granting a directed verdict acquitting appellee of simultaneous possession of drugs and firearms, I respectfully disagree that appellee can be tried a second time for the same offense. He was put in jeopardy, found guilty of the crime of possession of a controlled substance and possession of drug paraphernalia, and sentence was imposed.

The Double Jeopardy Clause of the Fifth Amendment states: “[N]or shall any person be subject for the same offence [sic] to be twice put in jeopardy of life or limb.” Article 2, § 8, of the Arkansas Constitution provides: “No person. . . shall be twice put in jeopardy of fife or liberty. . . .”

Many of the general principles underlying the Double Jeopardy Clause are analyzed in United States v. DiFrancesco, 449 U.S. 117, (1980), where the Supreme Court notes that the guarantee against double jeopardy has been said

to consist of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.

Around 10:00 in the morning of May 14, 1995, a Jacksonville Police Officer found appellee passed out or sleeping by a pay phone in front of a restaurant. After several attempts to awaken him, he identified himself, and the officer determined that there was an outstanding warrant for his arrest on hot check charges. The officer arrested and handcuffed appellee who volunteered that he had a handgun in his waistband, which the officer recovered, along with some drug paraphernalia, and 0.044 grams of methamphetamine and nicotinamide.

The State filed charges for violation of Ark. Code Ann. § 5-74-106 (Repl. 1993), simultaneous possession of drugs and firearms, and a second charge of violation of Ark. Code Ann. § 5-64-403 (Repl. 1993), possession of drug paraphernalia. Appellee waived his right to a trial by jury, and the trial took place on March 11,1996. After the State rested, appellee moved for a directed verdict because the State failed to prove that he intended to use the gun to protect his drugs, or further his delivery of drugs, specifically stating: “So, Judge what I am saying is that element is lacking and the state has failed to prove that element and it is required by law to be proven. Therefore, I would ask for the charge to be reduced to possession of a controlled substance, methamphetamine. ”

The trial court then granted the motion, basing its decision upon the legislative history of the statute as being related to gang activity, and found the appellee guilty of possession of methamphetamine and guilty of possession of drug paraphernalia. Sentence was imposed for these convictions.

We have previously addressed similar double jeopardy issues. In Strickbine v. State, 201 Ark. 1031, 148 S.W.2d 180 (1941), we held that a determination of guilt in an inferior court on a lesser included charge operates as implied acquittal of the greater offense barring any further proceedings on the greater offense that places the defendant’s life or liberty in jeopardy. It should be noted that we were applying the Arkansas constitutional standard to this review. We have applied the same principle to a DWI second offense, and reversed the judgment of conviction in Hagar v. City of Fort Smith, 317 Ark. 209, 877 S.W.2d 908 (1994).

In Brooks v. State, 308 Ark. 660, 827 S.W.2d 119 (1992), we held that a trial court’s granting of a motion to dismiss constituted a judgment of acquittal on the robbery charge, and that the action of the judge later in the same trial in reversing that ruling and submitting the robbery charge to the jury constituted double jeopardy. To the same effect are our decisions in State v. Johnson, 317 Ark. 226, 876 S.W.2d 577 (1994), and State v. Young, 315 Ark. 656, 869 S.W.2d 691 (1994).

While these decisions clearly reflect the rule that a conviction of a lesser included offense constitutes an acquittal of the greater offense, it is not essential that there be an acquittal in order for jeopardy to attach so that a second trial is prohibited. Wayne R. Lafave and Jerold H. Isreal, Criminal Procedure § 25.1(g)(7), at 1064 (2nd ed. 1992) states the following:

If the jury reaches a verdict of acquittal or the judge grants a judgment of acquittal prior to jury verdict, double jeopardy bars a new trial even if it appears that the acquittal was based on an erroneous interpretation of the law. Included in the concept of an acquittal is the implied acquittal that comes when a jury returns a verdict of guilty on a lesser-included offense and fails to indicate its disposition of the higher charge.

In the case before us, jeopardy attached on the charge of simultaneous possession of drugs and firearms when the first witness was sworn. As stated in United States v. Scott, 437 U.S. 82 (1978), “a defendant once acquitted may not be again subjected to trial without violating the Double Jeopardy Clause.”

In Sanabria v. United States, 437 U.S. 54 (1978), a case handed down on the same day as Scott, supra, the Supreme Court expanded upon the principle as follows:

That “[a] verdict of acquittal . . . [may] not be reviewed . . . without putting [the defendant] twice in jeopardy, and thereby violating the Constitution,” has recently been described as “the most fundamental rule in the history of double jeopardy jurisprudence.” United States v. Martin Linen Supply Co., 430 U.S. 564, 571 (1977), quoting United States v. Ball, 163 U.S. 662, 671 (1896). The fundamental nature of this rule is manifested by its explicit extension to situations where an acquittal is “based upon an egregiously erroneous foundation.” Fong Foo v. United States, 369 U.S. 141, 143 (1962); see Green v. United States, 355 U.S. 184, 188 (1957). In Fong Foo the Court of Appeals held that the District Court had erred in various rulings and lacked power to direct a verdict of acquittal before the government rested its case. We accepted the Court of Appeals’ holding that the District Court had erred, but nevertheless found that the Double Jeopardy Clause was “violated when the Court of Appeals set aside the judgment of acquittal and directed that petitioners be tried again for the same offense.” Fong Foo, 369 U.S. at 143. Thus when a defendant has been acquitted at trial he may not be retried on the same offense, even if the legal rulings underlying the acquittal were erroneous.

Id. at 64.

In Sanabria, there were charges involving horse-betting and numbers violations, in a single gambling business. The defendant was acquitted on the horse-betting charge for insufficient evidence, and the numbers charge was dismissed. The First Circuit determined that the District Court had erred in “dismissing” the numbers theory, and remanded the case so that the defendant could be tried on the numbers charges. The Supreme Court reversed because retrial would violate the Double Jeopardy Clause, stating the following: “The Double Jeopardy Clause is not such a fragile guarantee that ... its limitations [can be avoided] by the simple expedient of dividing a single crime into a series of temporal or spatial units.” Id. at 72 (quoting Brown v. Ohio, 432 U.S. 161, 169 (1977)).

Here, appellee committed one offense. He was found sleeping in a public place with a small quantity of drugs, paraphernalia, and a gun in his possession. Jeopardy attached on the offense of violating the provisions of Ark. Code Ann. § 5-74-106(a), when the first witness was sworn. Upon conclusion of the State’s case, the court determined that a necessary element of proof had not been presented on the question of simultaneous possession, granted a motion to dismiss, and found appellee guilty of possession of drugs and drug paraphernalia.

Appellee was tried and convicted. Certainly jeopardy attached, and his conviction resulted in deprivation of liberty. To send the matter back for a new trial on the offense for which he has already been in jeopardy violates the principles of the prohibition against double jeopardy. We should determine that the trial court committed error in granting the motion to dismiss but that the appellee cannot be retried. There was no appeal from the conviction and the sentence for possession, and of course that conviction and sentence remain fully effective.

It is my view that remanding the case for a new trial violates the prohibition against double jeopardy. We should declare error and reverse.

Brown and Imber, JJ., join.

       While the concurring and a dissenting opinion suggest the result reached here is at odds with Brooks v. State, the situations involved in the two cases are not at all the same. Brooks did not concern trial error; instead, the trial court properly considered the elements of aggravated robbery, and at the end of the state’s case in chief, initially determined the State’s evidence was insufficient to prove the offense. Then, after all the evidence was introduced, the trial court, considering the same elements of aggravated robbery, changed its mind, and held the State proved the defendant’s guilt. In short, no trial error occurred — only a factual finding of guilt transpired which was unquestionably subject to the Double Jeopardy Clause.
      Also, we note that, while the dissenting opinion seems to rely on Sanabria v. United States, 437 U.S. 54 (1978), neither the State, Zawodniak, nor the trial court made mention of that holding as relevant to the circumstances here. We additionally emphasize that Sanabria has been severely critized on the grounds that it met the appeal test of Scott (only legal issues would be before the appellate court, and defendant had himself sought to teminate the first prosecution short of jury verdict), and that it would seem to give the trial court some leeway “to control the double jeopardy consequences of its ruling by choosing the form employed” in terminating the case. LaFave and Israel, III, Criminal Procedure, § 24.3, pgs. 81-82 (1984).


source: Caselaw Access Project

author: Robert L. Brown, Justice.

license: Public Domain

text:
    Gerald SCHENEBECK, Executor of Estate of J. Eric Schenebeck, Deceased v. Dorothy F. SCHENEBECK
    96-1438
    947 S.W.2d 367
    Supreme Court of Arkansas
    Opinion delivered June 23, 1997
    [Petition for rehearing denied September 11, 1997.]

      Pike & Bliss, by: George E. Pike, Jr., and Deborah Pike Bliss, for appellant.

      Wright, Lindsey & Jennings, by: Isaac A. Scott, Jr., Nancy Bel-Ihouse May, and J. Betsy Meacham, for appellee.
   Robert L. Brown, Justice.

This appeal involves the interpretation of a will and a testamentary trust. James Eric Schenebeck died on October 4, 1993, at age 70. His last will and testament was dated April 4, 1991, and in his will he named his son, appellant Gerald Schenebeck, executor of the estate. After Schenebeck’s death, Gerald petitioned to open his probate estate. The petition showed the testator’s surviving spouse to be appellee Dorothy Schenebeck. It further showed the estimated value of real property to exceed $1,000,000 and personal property to exceed $100,000.

Under the will, Gerald was left specific bequests of household goods and furniture, with Dorothy receiving the remaining furnishings in the home. The will also provided that Dorothy could live in the house for one year, although the testator added that it was his request, but not his direction, that she live there longer, if she maintained the property. The will further contained a legacy of $20,000 to Dorothy. Two other children were left legacies of $5,000 each. Gerald was to receive the remainder of the estate.

The will, in addition, created a testamentary trust. The testator ordered his executor to transfer approximately 400 acres of land located on two plots to the trust. The land was used for a fish farm. The two beneficiaries of the trust were Gerald and Dorothy. Gerald was named trustee of the trust. The testator directed that the trustee distribute $36,000 per year to Dorothy from the income of the trust so long as she lived, with the remaining income from the trust going to Gerald. The trust was to terminate at Dorothy’s death, with Gerald receiving the corpus of the trust.

Probate of the estate ensued, and it consisted of a series of squabbles between Gerald and Dorothy. The disputes involved allegations of Dorothy’s auctioning furnishings at the house, Gerald’s failure to file an adequate accounting for the estate, debts and rental owed the estate by Dorothy, Dorothy’s failure to maintain the property, and, of primary importance, the failure of Gerald to pay the $20,000 legacy and the $36,000 annual income from the testamentary trust. Litigation also developed around a 1972 premarital agreement between James Eric Schenebeck and Dorothy, where he agreed to leave a life estate in his property to Dorothy. Dorothy sought to enforce the premarital agreement in chancery court, but her claim was denied.

During the probate of the estate, it came to light that on April 1, 1987, James Eric Schenebeck entered into a 15-year lease of farmland with Gerald where Gerald was to pay $75 an acre as annual rent with incremental increases of five percent every five years. Dorothy signed this lease on April 15, 1991.

On July 3, 1995, matters came to a head with Dorothy’s motion entitled Motion For Proof of Respondent’s Fulfillment of Duties as Trustee and Requirement of Remittance of Income Owed to Petitioner. In the motion, Dorothy asked for payment of the $20,000 legacy, her $36,000 annual income under the testamentary trust, proof that the testamentary trust had been funded, and an accounting of income from the 400 acres, including income from Gerald’s subleases of the leased farmland.

The probate court ordered that Gerald file an inventory for the estate and that estate taxes be paid. Gerald filed the updated accounting and inventory of assets and liabilities as well as the federal estate tax return. In connection with the federal estate tax return and in order to qualify Dorothy’s life interest in the testamentary trust as a Qualified Terminable Interest Trust, Gerald disclaimed all interest in the property and income from the testamentary trust for the balance of Dorothy’s life. Because of Gerald’s disclaimer, Dorothy claimed as hers all of the income from the farmland which formed the res of the testamentary trust, including income from the subleases.

In a motion filed with the probate court, Gerald conceded that he made annual lease payments to the estate for the leased farmland, which totaled $63,000 for 1994 and 1995. Of that lease payment he used $37,434.70 to repair the irrigation system and pay other expenses, leaving Dorothy the balance of $25,565.30. Dorothy complained that these expenses should be borne by Gerald as lessee of the farmland under the lease agreement and not by the testamentary trust.

At a hearing held on May 8, 1996, Gerald admitted that Dorothy had not been paid the $20,000 bequest and testified that the testamentary trust had not been funded because the 400 acres of farmland had not been deeded to the trust. Pie also admitted that he disclaimed his right to trust income so that the estate would get the marital deduction for estate tax purposes. He further agreed that there was no separate accounting for the testamentary trust, since the trust did not yet exist.

The probate court filed a detailed letter opinion followed by an order. The salient points of the order for purposes of this appeal follow:

• Gerald had a conflict of interest in serving as executor, lessee, sublessor, trustee, and remainderman of the trust and should be removed as trustee. It was suggested by the court that a financial institution replace him as trustee.
• Certain repairs to the irrigation pipes and pump were not a proper expense to be charged to the testamentary trust but were the responsibility of Gerald as lessee of the farmland.
• Dorothy was entitled to the full income of the testamentary trust or else the estate would lose the benefit of the marital deduction trust.
• Gerald was directed to pay the $20,000 legacy with eight percent interest from the date that Dorothy’s right to take against the will expired.
• The filed accountings are insufficient with respect to the farmland, and an accountant should be appointed to file a new accounting.

I. Probate Court Jurisdiction

Gerald first contends that the probate court lacked jurisdiction to enter the orders that affect the administration of the testamentary trust. Dorothy responds that the probate court merely undertook the administration of the probate estate, including marshalling assets of the estate, and did not improperly exercise control over the trust because the trust, though created by the will, had yet to be funded.

The Arkansas Constitution provides that probate courts have “exclusive original jurisdiction in matters relative to the probate of wills, the estates of deceased persons, executors, administrators, guardians, and persons of unsound mind.” Ark. Const, art. 7, § 34. Although probate courts clearly have jurisdiction over the probate of a will, the construction, interpretation, and operation of trusts are matters that lie within the jurisdiction of chancery courts. Thomas v. Arkansas Dep’t of Human Servs., 319 Ark. 782, 894 S.W.2d 584 (1995); Anna Flippin Long Trust v. Holk, 315 Ark. 112, 864 S.W.2d 869 (1993). The probate court also has authority to order distribution of assets of the probate estate to a trust. See Ark. Code Ann. § 28-1-104 (1987). However, a probate court has no jurisdiction to administer a trust created by a wiH. Clement v. Larkey, 314 Ark. 488-A, 863 S.W.2d 578 (1993); Alexander v. Alexander, 262 Ark. 612, 561 S.W.2d 59 (1978). Chancery courts, on the other hand, have no jurisdiction to probate a will or distribute an estate. Gaylor v. Gaylor, 224 Ark. 644, 275 S.W.2d 644 (1955). In sum, the probate court has no authority to make certain that the parties comply with the terms of a testamentary trust beyond the normal process of probating the will and overseeing the distribution of assets. In Alexander v. Alexander, supra, for example, this court held that the probate court lacked jurisdiction to order that all future sales and dispositions of the trust property must have the assent of all the beneficiaries — “if it was an attempt [by the probate court] to administer the trust.”

Bearing these principles in mind, we turn to Gerald’s specific claims that the probate court lacked jurisdiction or, alternatively, erred in ruling as it did with respect to certain aspects of its order. We review probate cases de novo on appeal, and the probate court will not be reversed unless the court’s findings are clearly erroneous. Wells v. Estate of Wells, 325 Ark. 16, 922 S.W.2d 715 (1996). Due deference is given to the trial judge’s position to ascertain the credibility of the witnesses. Id.

Prorated rental payment.

Gerald first argues that the trial court erred in making him pay an extra $15,435 for prorated rent due the estate under his lease for the farmland in 1993. He contends that he had already made his lease payment for the entire year, that is, from April 1, 1993 to March 31, 1994, and that he owed nothing more to the estate after James Eric Schenebeck’s death on October 4, 1993. Dorothy answers that the record does not support Gerald’s claim of payment, and, thus, there is no proof that he made it. Without proof, the probate court correctly ruled as it did, according to Dorothy.

The testamentary trust was created but not funded, and the probate court was simply collecting the assets of the estate and distributing them to the proper entity when it ordered the prorated rental payment to be paid into a special account established for the benefit of trust beneficiaries. See Ark. Code Ann. § 28-1-104 (1987). We do not perceive this action as constituting administration of the testamentary trust. Hence, jurisdiction over the rent payment owed to the estate lay in probate court, and the probate court had the authority to enforce collection of it. Without proof that a prorated payment was a duplication of rent already paid, the probate court was correct in its ruling.

Increase in rental payments.

Gerald next argues that the trial court lacked jurisdiction to order an increase in Gerald’s rent payments. He essentially maintains that the testamentary trust is clear that he was to receive all income from the farmland in excess of his annual lease payment to the estate under the rental agreement. He contends that his disclaimer of income in the testamentary trust did not affect the lease arrangement and that the income from the trust property would include nothing more than the landlord’s interest in the trust property and not the tenant’s. Dorothy responds that Gerald’s disclaimer prevents him from accepting any portion of the income generated from the lease and subleases of the trust farmland.

The essence of this issue concerns payment of income from the testamentary trust to competing beneficiaries and the effect of Gerald’s disclaimer on the income distribution. We have no hesitancy in concluding that this action fell into the category of trust administration, which lies wholly within the jurisdiction of the chancery court. Clement v. Larkey, supra. We hold that the probate court lacked jurisdiction to decide distribution of trust income as between Gerald and Dorothy.

Payment of irrigation costs.

Gerald contends that he had the authority as trustee to incur the expenses for farm maintenance without the need to seek probate court approval, when the action was in the best interest of the estate. He states that the extra expenses associated with dividing larger fish ponds on the farmland into smaller ones was commensurate with what had happened prior to his father’s death. Dorothy responds that Gerald, as lessee, was responsible for repair expenses under the terms of the lease agreement.

The lease agreement provided: “It shall be the responsibility of the Lessee [Gerald] to maintain all constructed and reconstructed fish ponds and farm levees, as well as the constructed and reconstructed stand pipes and well pumps in as good a condition as furnished to Lessee . . . .” The probate court ruled that it was a breach of fiduciary duty for Gerald as trustee to credit these irrigation repair costs against trust income rather than as costs that should be borne by Gerald as lessee. The probate court did find that one expense for a well was properly assigned to the trust under the terms of the lease.

Again, the testamentary trust had yet to be funded at the time of the probate court’s ruling. Nonetheless, the probate court was without jurisdiction to determine proper costs attributable to the trust and whether Gerald had breached his fiduciary duty as trustee of that trust. Had the probate court decided this point based on Gerald’s role as executor of the estate, it probably would have passed muster. But the court did not and manifesdy intruded upon the domain of chancery court when it determined what was an appropriate trust expense and whether the trustee had breached his fiduciary role. We reverse the probate court on this point as well for lack of jurisdiction.

Removal of trustee.

Gerald claims for his final jurisdictional point that the probate court erred in removing him as trustee because he had not breached his fiduciary duty. Our holding here is a corollary to the last point raised. The probate court had no jurisdiction to remove a trustee of a testamentary trust from his duties, even though the trust, at that juncture, had yet to be funded. This is a matter that rests solely within the judgment and discretion of chancery court. Again, had the probate court limited its ruling to the removal of the executor, there most likely would have been no infringement on the chancery’s jurisdiction. See Ark. Code Ann. § 28-48-105 (1987) (allowing for removal of personal representative when estate is mismanaged or where a duty remains unperformed). We reverse the probate court on this point.

II. 120,000 Legacy

For his last point, Gerald claims that the estate should not be saddled with an eight percent interest payment, or, alternatively, should be assessed less of an interest payment than what was ordered by the probate court. The crux of Gerald’s argument is that the estate asserted various offsetting claims against Dorothy and the legacy, and, as a result, there could be no accrual of interest because the amount owed for the legacy was uncertain.

Under the Arkansas Probate Code, general legacies bear interest at the rate of six percent or the then prevailing legal rate, beginning 15 months after commencement of probate administration. Ark. Code Ann. § 28-53-112(a) (1987). Specific devises of property, however, only include income or increments accruing to the property while in the hands of the personal representative. Ark. Code Ann. § 28-53-112(b) (1987). No interest provision is included by statute for specific legacies, and we have recognized that specific legacies ordinarily do not bear interest. Bransford v. Jones, 284 Ark. 121, 679 S.W.2d 798 (1984), citing Atkinson, Law on Wills (2d ed. 1953). The issue then is whether the $20,000 legacy in this case was a general or specific legacy.

The treatise, Page on the Law of Wills, has this to say about the distinction between specific and general legacies: 6 William J. Bowe & Douglas H. Parker, Page on the Law of Wills § 48.5, at 17-19 (3d ed. 1962). See also Thomas E. Atkinson, Handbook of the Law of Wills § 132, at 732-34 (2d ed. 1953). Here, the $20,000 legacy was not tied to a precise source but was payable out of the estate generally. We conclude that it constitutes a general legacy. Because we can discern no proof of the then prevailing legal rate of interest from the record in this case, interest should accumulate at the rate of six percent, with accrual beginning 15 months after the date of commencement of probate administration. Ark. Code Ann. § 28-53-112(a) (1987).

A legacy which is payable in money may be specific if it is not payable out of the estate generally, but if it is a fund or a particular thing which is described with sufficient accuracy, and if the legacy can be satisfied only by the payment of such fund. A gift of money which is deposited in a specific bank, or a gift of cash on hand or in the bank, is a specific legacy. A gift of a specific fund, or a gift of the proceeds of specific property, or of a sum of money payable only out of such proceeds, and not out of the estate generally, is a specific legacy as distinguished on the one hand from a general legacy and from a demonstrative legacy on the other hand.

Gerald, as executor, did claim various offsets against the $20,000 legacy for debts owed by Dorothy to the estate. The probate court appeared to allow offsets for attorneys fees and the cost of replacing locks on the house. Nevertheless, the probate court ordered Gerald to pay the full $20,000 legacy plus interest. Under these facts, we consider the amount of the legacy to be sufficiently certain to accrue interest in accordance with § 28-53-112(a). Any claims by the estate against Dorothy should be handled as separate matters.

III. Conclusion

The order of the probate court on the points raised in this appeal is affirmed in part and reversed in part, and we remand with directions to transfer the claims affecting administration of the testamentary trust to chancery court in accordance with this opinion. We further reverse the probate court on the assessment of an eight percent interest rate and direct that the appropriate interest rate to be applied in this case is six percent as set forth in § 28-53-112(a).

Affirmed in part. Reversed in part and remanded.


author: Annabelle Clinton Imber, Justice.

text:
    BOATMEN'S NATIONAL BANK of Arkansas v. Hon. John COLE, Judge, et al.
    96-887
    947 S.W.2d 362
    Supreme Court of Arkansas
    Opinion delivered June 23, 1997

      Allen Law Firm, by: H. William Allen, for petitioner.

      Morgan Welch & Associates, by: Donald K. Campbell, III, for respondents.
   Annabelle Clinton Imber, Justice.

Pursuant to Ark. Sup. Ct. R. l-2(a)(6), Petitioner Boatmen’s National Bank of Arkansas, Inc., has filed a petition for a writ of prohibition alleging that venue for the underlying action does not lie in the Saline County circuit court. We deny the writ for the reasons stated below.

Respondent Fleming Electric, Inc., filed a complaint and an amended complaint in Saline County circuit court, substantially alleging as follows. Fleming, an Arkansas corporation located in Saline County, established a number of checking accounts at various times with Worthen National Bank of Arkansas (and therefore its successor in interest, Boatmen’s). In 1990, Fleming hired Respondent Alicia Ives, a resident of Saline County, to handle its accounts payable. In 1992, Ives was designated as Fleming’s chief financial officer. Fleming notified Boatmen’s that Ives had authority to request information concerning Fleming’s accounts.

Beginning in - August of 1994, Ives allegedly presented a Fleming check to Boatmen’s, payable to Respondent L.C. Brock and bearing the forged signature of C. Ann Fleming, Fleming’s president and chief executive officer. Boatmen’s paid the $3,258.00 check despite having the actual signature of C. Ann Fleming on file. This check represented the first in a continuing course of alleged check forgeries that would continue through July of 1995. In September of 1994, Ives presented Boatmen’s with a letter bearing C. Ann Fleming’s forged signature, purporting to give Ives unlimited authority over all Fleming accounts. Fleming alleges that Boatmen’s had a duty to inquire to C. Ann or Loren Fleming in an attempt to confirm the letter, which it failed to do. Following September 1, 1994, Fleming alleges numerous instances where Ives forged the signature of C. Ann Fleming on Fleming checks, causing Boatmen’s to debit various Fleming accounts and to make various deposits or transfers into accounts not owned by Fleming. Boatmen’s allegedly paid these checks “despite the forged signature and despite the fact that the actual (and distinctly different) signature of C. Ann Fleming was on file with [Boatmen’s] at the time.” Some of the checks bearing the forged signatures were payable to Brock while others were payable to corporations, partnerships, or proprietorships owned by Ives and/ or Respondent Matthew Carman, a resident of Pulaski County.

Ives also allegedly made various transfers and deposits into a “forged” Fleming checking account that Ives created at Boatmen’s without authorization. At the time Ives opened this account, Fleming alleges that Boatmen’s did not require any corporate resolution authorizing its creation. After the creation of the forged Fleming account, Ives orally transferred funds from legitimate Fleming accounts into the forged Fleming account.

Ives eventually presented Boatmen’s with a forged Fleming resolution bearing Ives’s signature and the forged signature of C. Ann Fleming, purporting to authorize the creation of the forged Fleming checking account. Fleming further alleges that at various times Ives orally requested that Boatmen’s transfer Fleming funds into the forged Fleming checking account, and that Boatmen’s also allowed Ives to orally transfer funds from the forged account into accounts owned by entities other than Fleming. Fleming also contends that Boatmen’s permitted the placement of Fleming deposits in the forged account, despite its knowledge that Fleming normally placed its deposits into a designated “deposit” account. Ives additionally drew several checks on the forged Fleming account using the forged signature of C. Ann Fleming. These checks were made payable to L.C. Brock and various entities owned by Ives and Carman.

Fleming’s amended complaint alleges causes of action against Boatmen’s for negligence, conversion, breach of contract, breach of warranty, breach of fiduciary duty, and constructive fraud. On the negligence count, Fleming specifically alleges that Boatmen’s improperly disbursed funds credited to or payable to Fleming, and that it failed to act with due care in debiting and fading to credit Fleming’s account. Fleming also sued Ives for conversion, breach of fiduciary duty, and breach of warranty. The complaint contains an allegation that the defendants should be held joindy and severally liable.

Boatmen’s, a resident of Pulaski County, moved to dismiss the complaint for lack of venue. The trial court denied this motion, finding that venue was proper “due to the simultaneous or ‘successive’ tortious conduct of the various defendants in this suit which resulted in a single injury to [Fleming.]” The trial court also found that Fleming’s “well-pleaded” claim of constructive fraud against Boatmen’s established venue. Boatmen’s seeks a writ of prohibition from this court, arguing that venue does not he with the Saline County circuit court.

We have often stated that a writ of prohibition will issue only when the trial court completely lacks jurisdiction and there is no other way to stop the proceedings. See, e.g., Ford v. Wilson, 327 Ark. 243, 939 S.W.2d 258 (1997); Nucor Holding Corp. v. Rinkines, 326 Ark. 217, 931 S.W.2d 426 (1996). While venue is a procedural matter, rather than an issue of jurisdiction, this court has historically issued the writ when venue is improper as to a party. See Steve Standridge Ins., Inc. v. Langston, 321 Ark. 331, 900 S.W.2d 955 (1995). In doing so, we have characterized the venue issue “as one of jurisdiction of the person, the improper assertion of which, in that instance, justifies issuance of a writ of prohibition.” Id. (citing Prairie Implement Co., Inc. v. Circuit Ct., 311 Ark. 200, 844 S.W.2d 299 (1992) (explaining this court’s tradition of issuing writ of prohibition where venue is improper)). In deciding whether prohibition will lie, we confine our review to the pleadings. Wise Co., Inc. v. Clay Circuit, 315 Ark. 333, 869 S.W.2d 6 (1993).

Arkansas Code Annotated § 16-60-116(a) (1987), the “catch-all” venue provision, reads as follows:

(a) Every other action may be brought in any county in which the defendant, or one (1) of several defendants, resides or is summoned.

Additionally, this court has added a so-called “gloss” to this venue statute — when venue is appropriate as to one defendant, then it is only proper as to co-defendants who are jointly liable with the resident defendant. See Steve Standrige Ins., Inc. v. Langston, 321 Ark. 331, 900 S.W.2d 955 (1995). Therefore, we must decide whether Fleming has alleged joint liability as between Boatmen’s and Ives, the resident defendant.

It is of no consequence that Fleming has failed to allege that Boatmen’s and Ives acted together in causing it harm. Arkansas has long since abolished the requirement that joint tortfeasors act in concert to result in joint and several liability. See, e.g., Wymer v. Dedman, 233 Ark. 854, 350 S.W.2d 169 (1961). Rather, we have said that joint and several liability is determined by impact; where there is a single injury, it is irrelevant that the acts of the individual defendants would not have caused the ultimate result. McGraw v. Weeks, 326 Ark. 285, 930 S.W.2d 365 (1996). Stated another way, “where concurrent negligent acts result in a single injury, each tortfeasor is jointly and severally liable, and a plaintiff can institute an action against any or all tortfeasors, individually or jointly.” Woodward v. Blythe, 249 Ark. 793, 462 S.W.2d 205 (1971).

While Boatmen’s might concede the above-recited definition of joint liability, it nonetheless argues that the principle has no application in the present case due to the character of the alleged tortious conduct found in Fleming’s complaint. Against Boatmen’s, Fleming’s allegations involve the bank’s negligence, while the allegations against Ives sound in intentional tort. Therefore, the question presented is whether for purposes of venue under Ark. Code Ann. § 16-60-116(a), multiple defendants may be held jointly liable where the plaintiff claims that the nonresident defendant is liable for negligent conduct and the resident defendant is liable for intentional tortious conduct.

Neither party cites us an Arkansas case directly answering the question. Boatmen’s relies on a line of cases beginning with Barr v. Cockrill, 224 Ark. 570, 275 S.W.2d 6 (1955), where a receiver for an insurance exchange sued to recover assessments against a number of policyholders on their individual policies. The receiver filed suit against all of the policyholders in Pulaski County, yet only a few of the defendants resided there. The receiver asserted proper venue on a theory of joint liability.

On a petition for writ of prohibition to this court, we held that venue did not lie as to the nonresident policyholders. The Barr court held that they did not share joint liability with the resident policyholders. The court explained that “[w]e use the term ‘jointly liable’ in the sense that there must be a common liability of the defendants on the same cause of action.” Id. In examining the complaint, the court reasoned that it only alleged several liability and that separate judgments were sought against each policyholder on different debts.

A related case cited by Boatmen’s is Junction City Sch. Dist. v. Alphin, 313 Ark. 456, 855 S.W.2d 316 (1993), where teachers in a Union County school district sued their district alleging that it distributed an increase in revenue to certified personnel in violation of a statute, and sued the state department of education for failing to terminate state aid to the district when it failed to comply with the statute. The lawsuit was filed in Pulaski County, and the district moved to dismiss for lack of venue. The trial court denied the motion and the teachers obtained a judgment against the district and the department.

On appeal, this court reversed the judgment against the district for lack of venue. The issue framed by the court was “whether joint liability was alleged against the School District and the Department.” Relying in part on Barr, supra, the court answered the question in the negative. The court emphasized that the remedies requested from each defendant were different. While the teachers requested damages against the district, they requested “a directive that state aid be terminated due to violation of the statute” against the department. Given that the two requested remedies were exclusive as to each defendant, liability could not be considered “joint” — the district could not terminate state aid, while the department was not liable for damages. This was separate liability arising out of the same circumstance, but was not joint liability.

Boatmen’s also relies on Steve Standridge Ins., Inc. v. Langston, 321 Ark. 331, 900 S.W.2d 955 (1995), a prohibition case where the owners of a destroyed airplane sued their insurance carrier alleging coverage, and brought a negligence action against the insurance agency who procured their policy. The lawsuit was brought in the county where the carrier was served. The insurance agency, which resided in a different county, petitioned for a writ of prohibition alleging that venue was improper.

The airplane owners contended that venue was proper as to both defendants under a theory of joint liability, but this court rejected the argument finding that “there was no allegation of joint liability.” Steve Standridge, supra. Noting the added “gloss” on the catch-all venue statute, we quoted from Barr, supra, and its explanation of joint liability as common liability on “the same cause of action.” While the claims in Steve Standridge arose out of the same occurrence or transaction, they were not joint liability claims, and stated different causes of action: a breach-of-contract claim against the insurance carrier and a negligence action against the insurance agency.

Boatmen’s relies on Barr and its progeny to argue that it cannot be jointly liable with Ives given that Fleming’s theory of recovery is not based on the “same cause of action,” i.e., negligence and intentional tort. However, we do not read Barr to mandate such an interpretation of joint liability on the alleged facts of the present case. Barr’s explanation of joint liability was easily understandable where the plaintiff there sued individual policyholders on their individual insurance contracts. Since recovery was sought on individual debts and contracts, there was no common liability on the same cause of action. Likewise, in Alphin, supra, the plaintiffs sought different and exclusive remedies from each defendant, while in Steve Standridge, supra, the plaintiff sued one defendant in contract and the other in tort.

None of these cases addresses the situation alleged in the present case, where the tortious conduct of multiple defendants has combined to produce a single and indivisible injury, albeit on different theories of tort recovery. The Restatement (Second) of Torts § 875 (1979), provides that:

Each of two or more persons whose tortious conduct is a legal cause of a single and indivisible harm to the injured party is subject to liability to the injured party for the entire harm.

(Emphasis added.) Fleming alleges that “ [t] he acts and omissions of each of the defendants. . . as alleged herein. . . combined and concurred, proximately caused [sic] indivisible injury to the plaintiff.” Thus, it is one of Fleming’s theories that but for the failure of Boatmen’s to exercise ordinary care with respect to Fleming accounts, Ives would not have been able to carry out her embezzlement scheme. In other words, Fleming alleges that Boatmen’s negligence is a legal cause of the harm it suffered. While the intentional or criminal act of a third party may be a superseding cause of harm to another, such issues of legal or proximate causation are ill-suited for analysis at this stage of the proceedings, where our review is confined to the pleadings.

For example, in Keck v. American Employment Agency, Inc., 279 Ark. 294, 652 S.W.2d 2 (1983), the plaintiff sued the employment agency that directed her to a prospective employer who raped her. The trial court granted the employment agency a directed verdict, finding no substantial evidence of negligence. This court reversed, holding that a jury question of negligence existed given that the plaintiff had properly stated a negligence claim based on the agency’s duty of care and a breach of that duty. While the criminal act of the third party might have relieved the agency of liability, the Keck court observed that “[t]he Restatement of Torts recognizes by two rules that simply because a third person commits a crime, that does not always exonerate one who created the situation which allowed the crime to occur.” Id. (citing Restatement (Second) of Torts §§ 448-49 (1965)). Similarly, in Franco v. Bunyard, 261 Ark. 144, 547 S.W.2d 91 (1977), cert. denied, 434 U.S. 835 (1977), we held that a question of fact existed as to the foreseeability of harm created when a gun dealer negligently sold a gun to an individual who shot and killed the plaintiffs decedent.

Guidance can also be found in Arkansas law pertaining to contribution. Arkansas’s version of the Uniform Contribution Among Tortfeasors Act defines “joint tortfeasors” as follows:

two (2) or more persons jointly or severally liable in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them.

Ark. Code Ann. § 16-61-201 (1987). Furthermore, Ark. Code Ann. § 16-61-202(4) (1987) allows for the consideration of the “relative degrees of fault” of joint tortfeasors where an equal distribution would be inequitable. Therefore, when the jury is faced with joint tortfeasors hable in different degrees of fault, it may apportion fault accordingly.

Illustrative is Erkins v. Case Power & Equip. Co., 164 F.R.D. 31 (D.N.J. 1995), a case involving the New Jersey Joint Tortfeasors Contribution Act. In Erkins the plaintiff, whose decedent was killed in a construction accident, brought a products-liability suit against the manufacturer of a backhoe. The manufacturer alleged that the accident was due to the decedent’s negligence, but additionally sought contribution from contractors that had hired the decedent’s employer based on their negligence in failing to conduct safety meetings. The manufacturer thus sought leave to file a third-party complaint against the contractors.

The contractors argued that impleader was inappropriate because the manufacturer’s third-party negligence claims were separate and distinct from the plaintiffs strict products-liability claim. However, the federal district court refused to construe the New Jersey contribution statute so narrowly. In examining the statute’s definition of joint liability, the Erkins court observed that “the parties must act together in committing the wrong, or their acts, if independent of each other, must unite in a single injury.” Id. All three parties were potentially liable, the manufacturer in strict products liability, and the contractors for negligence. The court further found that the contribution statute “contain[ed] no requirement that joint tortfeasors be liable in tort under the same theories of liability.” Furthermore, Fed. R. Civ. P. 14 allowed a defendant to seek contribution in a single action, rather than instituting a second action after an initial determination of liability:

That the joint tortfeasors’ conduct gives rise to liability under two entirely different theories does not foreclose a third-party claim for contribution, nor does the fact that the plaintiff has failed to sue either of the putative third-party defendants under any theory of recovery.

Id. Given that New Jersey law allowed contribution among parties held liable under different theories of liability, the Erkins court granted the manufacturer’s motion for leave to file a third-party complaint.

While the present case does not yet involve a claim for contribution, the rationale presented in Erkins is persuasive. The fact that Boatmen’s and Ives are allegedly liable on different theories of tort recovery does not preclude a finding of joint liability in tort. This is because their negligent and intentional acts have allegedly combined to produce a single injury. Based on these alleged facts, we find that Fleming’s complaint alleges joint liability as between Boatmen’s and Ives, and hold that venue properly lies as to Boatmen’s in Saline County under Ark. Code Ann. § 16-60-116(a). We therefore deny the writ of prohibition.

Because we deny the writ on joint-liability grounds, we do not reach the sufficiency of Fleming’s constructive-fraud allegation. Additionally, we decline to address the merits of Boatmen’s claim that various provisions of the Uniform Commercial Code have displaced Fleming’s negligence claim, and that the UCC’s liability scheme precludes any potential joint liability between Ives and Boatmen’s. Such a determination would be premature at this stage of the proceedings, where we merely examine the pleadings for allegations to support venue.

Writ denied.

       Fleming’s complaint names both Worthen and Boatmen’s at various times. For ease of reference, we shall simply refer to Boatmen’s.


text:
    STATE of Arkansas v. Leon Jackson RICE
    CR 97-301
    947 S.W.2d 3
    Supreme Court of Arkansas
    Opinion delivered June 23, 1997

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellant.

      William R. Simpson, Jr., Public Defender, by: Deborah R. Sailings, Deputy Public Defender, for appellee.
   Annabelle Clinton Imber, Justice.

The State has appealed the trial court’s dismissal, on double jeopardy grounds, of a felony charge and a revocation petition. We dismiss the appeal involving the revocation petition, and reverse and remand finding that the trial court erroneously dismissed the felony charge.

On July 16, 1995, Leon Jackson Rice was pulled over during a traffic stop. The investigating officer arrested Rice for possession of a controlled substance. On August 31, 1995, the State filed a civil in rem forfeiture action against Rice’s seized vehicle pursuant to Ark. Code Ann. § 5-64-505(a)(6) (Repl. 1993). The case was filed in Pulaski County circuit court and styled “State of Arkansas, Petitioner, vs. One 1985 Chevrolet Caprice VIN #IN69JAJ111615, Defendant, Leon Rice, Potential Claimant.” On January 26, 1996, the State obtained a default judgment in the forfeiture action.

On September 26, 1995, the State filed an information against Rice charging him with possession of a controlled substance with intent to deliver. On November 28, 1995, the State filed an amended petition for revocation alleging that Rice violated the terms of his prior probationary sentence due to his drug possession.

Rice filed a motion to dismiss the charge and the revocation petition on double jeopardy grounds, arguing that the civil forfeiture of his vehicle was punishment barring further criminal prosecution. The trial court granted the motion to dismiss, and the State now appeals the order, arguing that the trial court erroneously determined that double jeopardy barred the prosecution and revocation.

Í. Appellate Jurisdiction Appeal from Dismissal of Petition for Revocation.

Rice essentially concedes the merits of the case, but instead argues that this court lacks jurisdiction to entertain the State’s appeal. Arkansas Rule of Appellate Procedure — Criminal 3(b) (formerly codified as Ark. R. Crim. P. 36.10(b)) allows the State to appeal following a felony or misdemeanor prosecution. Additionally, the attorney general must inspect the record and be satisfied that error has prejudiced the State, and that the correct and uniform administration of the criminal law requires our review. Ark. R. App. P. — Crim. 3(c). Pursuant to the rule, this court accepts appeals by the State “when our holding will set a precedent that would be important to the correct and uniform administration of justice.” State v. Townsend, 314 Ark. 427, 863 S.W.2d 288 (1993).

Rice independently asserts that even if the State may appeal from the dismissal of the felony charge, it may not appeal the dismissal of the revocation petition given that it is not an appeal “following either a misdemeanor or felony prosecution” as required by Ark. R. App. P. — Crim. 3(b). Rice cites to State v. Hurst, 296 Ark. 132, 752 S.W.2d 749 (1988), where this court plainly held that the State may not appeal from the dismissal of a petition to revoke a felon’s probation under Rule 36.10. We agree that Hurst is controlling and dismiss the State’s appeal from the dismissal of the revocation petition.

2. Appellate Jurisdiction Appeal from Dismissal of Possession of Controlled Substance Charge.

We have accepted State’s appeals generally involving double jeopardy issues. See, e.g., State v. Thornton, 306 Ark. 402, 815 S.W.2d 386 (1991); State v. McMullen, 302 Ark. 252, 789 S.W.2d 715 (1990); compare with State v. Banks, 322 Ark. 344, 909 S.W.2d 634 (1995) (dismissing State’s appeal where federal statute at issue declared unconstitutional). We find that the State’s appeal involving the dismissal of the felony charge implicates the correct and uniform administration of the criminal law and requires our review. It is true that subsequent to the trial court’s ruling from the bench (but before the entry of the actual order of dismissal nunc pro tunc), United States v. Ursery, 116 S. Ct. 2135 (1996) and Sims v. State, 326 Ark. 296, 930 S.W.2d 381 (1996) were handed down and definitively resolved whether a civil in rem forfeiture constitutes punishment for purposes of double jeopardy. However, despite the fact that we have established a precedent, reaching the merits of this case will result in a un form application of the criminal law. See State v. Dennis, 318 Ark. 80, 883 S.W.2d 811 (1994) (acceptance of State’s appeal despite existing precedent in order to establish uniform application of sentencing law). Moreover, in Sims v. State, 326 Ark. 296, 930 S.W.2d 381 (1996), we could not say that the General Assembly clearly indicated that forfeiture under Ark. Code Ann. § 5-64-505 was always civil in nature. Because of this, the Sims court had to “examine the manner in which the statute was applied” to the facts of the particular case. Id. Therefore, while Sims is authority for finding that civil forfeiture under Ark. Code Ann. § 5-64-505 is not punishment for double jeopardy purposes, the analysis also hinges on how the statute was applied in the particular case. Thus, acceptance of this appeal fosters the correct and uniform application of the law by proceeding with an analysis of Ark. Code Ann. § 5-64-505 as applied in this case.

3. Section 5-64-505 Forfeiture Action Double Jeopardy Analysis.

In Sims v. State, 326 Ark. 296, 930 S.W.2d 381 (1996), we considered whether the appellant’s prior conviction for possession of controlled substances with intent to deliver barred a subsequent § 5-64-505 forfeiture action brought against the $8,603.19 in the possession of the appellant at the time of his arrest. Relying on a two-part analytical framework reaffirmed by the United States Supreme Court in United States v. Ursery, 116 S. Ct. 2135 (1996), the Sims court determined that the forfeiture action was not “punishment” under the Double Jeopardy Clause.

We first examined whether the General Assembly intended for proceedings under Ark. Code Ann. § 5-64-505 to be criminal or civil. While the statute was generally remedial, some subsections had the “markings” of a criminal sanction. Thus, “we [could] not say that the General Assembly has clearly indicated that all parts of the statute provide civil, and not criminal, sanctions.” Sims v. State, supra, (emphasis in original). As a result of this finding, the Sims court had to examine how the statute was applied in the particular case. The lawsuit was filed under the in rem provisions of the statute, and was filed against the appellant’s money. Additionally, the rules of civil procedure governed the burden of proof, which was on the claimant. The statute as applied thus had “none of the ma[r]kings of punishment” and was applied as a civil sanction.

Next, the Sims court examined whether there was the “clearest proof” required to show that the forfeiture proceedings under Ark. Code Ann. § 5-64-505 were so punitive in form and effect so as to render them criminal. The court found no such evidence:

Forfeiture proceedings against property used to commit drug violations encourages owners to take care of property and ensures that it is not used in the drug trade. Forfeiture of property prevents illegal uses by imposing an economic penalty, thereby rendering illegal behavior unprofitable. Finally, to the extent that the statute applies to the proceeds of illegal drug activity, it serves the additional nonpunitive goal of ensuring that persons do not profit from their illegal acts. See United States v. Ursery, 116 S. Ct. at 2149.

Sims v. State, supra. The Sims court concluded its analysis and held that the in rem civil forfeiture was not punishment for purposes of the Double Jeopardy Clause.

In the present case, as in Sims, there is little evidence suggesting that the forfeiture proceeding against Rice’s vehicle was so punitive in form and effect so as to render the proceeding criminal. Moreover, the statute, as applied, was not used as a criminal penalty. The State brought the action under the in rem portion of the statute, and the action was brought against Rice’s vehicle. In sum, the forfeiture action was civil in nature and did not constitute “punishment” for purposes of double jeopardy. Therefore, the trial court erred in concluding that the forfeiture barred Rice’s subsequent prosecution on the possession charge.

Because we conclude that the trial court erred in dismissing the felony charge, we address Rice’s contention that the Double Jeopardy Clause bars a remand of the case. Clearly, the trial court’s dismissal of the charge on double jeopardy grounds was not an acquittal on that charge. See United States v. Scott, 437 U.S. 82 (1978). Moreover, this court has previously reversed and remanded where the trial court erroneously dismissed charges on double jeopardy grounds. See State v. McMullen, supra. Accordingly, we reverse the trial court’s order dismissing the charge of possession of a controlled substance with intent to distribute and remand for further proceedings consistent with this opinion.

Dismissed in part; reversed and remanded in part.

       One of Rice’s jurisdictional arguments is that the trial court had discretion to grant the dismissals given that at least two federal circuits had held that civil in rem forfeiture could constitute punishment for purposes of double jeopardy analysis. However, in United States v. Ursery, 116 S. Ct. 2135 (1996) the Supreme Court simply reversed these rulings and setded the law, holding that the Sixth and Ninth Circuit Courts of Appeals had deviated from a “long line of precedent” reflecting the Court’s “traditional understanding that civil forfeiture does not constitute punishment for the purpose of the Double Jeopardy Clause.” The present case bears no resemblance to a situation where a change m law might implicate the prohibition against ex post facto laws. See Mauppin v. State, 309 Ark. 235, 831 S.W.2d 104 (1992).


author: Ray Thornton, Justice.

text:
    ALUMINUM COMPANY of AMERICA v. Richard A. WEISS, Director, Arkansas Department of Finance and Administration
    97-258
    946 S.W.2d 695
    Supreme Court of Arkansas
    Opinion delivered June 23, 1997

      Mitchell, Williams, Selig, Gates & Woodyard P.L.L.C., by: Marcella J. Taylor and Marsha Talley, for appellant.

      Kenneth R. Williams, for appellee.
   Ray Thornton, Justice.

Beginning in August 1990, Aluminum Company of America, appellant, leased heavy equipment to mitigate environmental damages resulting from mining operations that it had conducted for many years until mining ended in 1990. ALCOA brings this appeal from an Arkansas Department of Finance and Administration decision that denied the company a refund of $61,196.50 paid by appellant as gross receipts taxes on the amounts paid in leasing that equipment. ALCOA claims that it is entitled to an exemption from gross receipts taxes for the lease of equipment used to prevent or reduce pollution, in accordance with the provisions of Ark. Code Ann. § 26-52-402(a) (3) (Supp. 1995).

ALCOA filed a complaint in chancery court, appealing the DF&A decision, and after hearing arguments on cross motions for summary judgment, the chancery court granted DF&A’s motion for summary judgment. ALCOA brings its appeal to this court from that chancery court order, arguing that the trial court erred in (1) its construction of the pollution-control exemption; (2) in considering arguments from DF&A that were not presented at the agency level; and (3) in finding that DF&A’s decision to deny the exemption was not arbitrary and capricious. We review tax exemption cases de novo upon the record and we will not reverse the chancellor’s findings unless they are clearly erroneous. Martin v. Riverside Furniture Corp., 292 Ark. 399, 730 S.W.2d 483 (1987). We have decided that the denial of the exemption by DF&A was based upon a correct interpretation of the statute, and that the trial court agreed with that result; therefore it is not necessary to reach the remaining arguments.

DF&A informed ALCOA of the denial of payment of the requested tax refund, stating:

With respect to ALCOA’s claim for refund of sales tax accrued and reported on rentals of equipment from J.A. Riggs, the Department has determined that the rental of tractor scrapers, a backhoe, a tractor and a dozer are not exempt from tax under the “pollution control” exemption (Ark. Code Ann. § 26-52-402(a)(3)). This equipment was used in completing a post-mining reclamation project and was not used to reduce pollution from actual mining operations.

In denying the tax refund, DF&A reasoned that the leased equipment was not exempt from taxation pursuant to Ark. Code Ann. § 26-52-402(a)(3) because it was used in a post-mining reclamation project rather than to reduce pollution from ongoing mining operations. The statute provides exemptions from gross receipts taxes including the following:

Gross receipts or gross proceeds derived from the sale of tangible personal property consisting of machinery and equipment required by state law or regulations to be installed and utilized by manufacturing and processing plants or facilities in this state to prevent or reduce air or water pollution or contamination which might otherwise result from the operation of the plant or facility.

Id. § 26-52-402(a)(3).

The legislative intent is articulated as follows:

It is the intent of this section to exempt only such machinery and equipment as shall be utilized direcdy in the actual manufacturing or processing operations at any time from the initial stage where actual manufacturing or processing begins through the completion of the finished article of commerce and the packaging of the finished end product. The term “directly” as used in this act is to limit the exemption to only machinery and equipment used in actual production during processing, fabricating, or assembling raw materials or semifinished materials into the form in which such personal property is to be sold in the commercial market.

Ark. Code Ann. § 26-52-402(c)(l).

Agency interpretations of a statute, while not conclusive, are highly persuasive. In Re Sugarloaf Mining Co., 310 Ark. 772, 840 S.W.2d 172 (1992). The first rule in interpreting a statute is to construe it just as it reads by giving words their ordinary and usually accepted meaning. Board of Trustees v. Stodola, 328 Ark. 194, 942 S.W.2d 255 (1997).

The exemption provided by the statute is applicable to machinery or equipment installed to mitigate pollution resulting from the continuing operation of the plant or facility. In Heath v. Research-Cottrell, Inc., 258 Ark. 813, 529 S.W.2d 336 (1975), we held that a cooling tower used by the taxpayer was exempt as pollution control equipment because it was used to remove heat, as a pollutant, from water, before the water was discharged into the environment. The cooling tower was used in the operation of the facility and was also installed. By contrast, we have determined that the exemption does not apply to monitoring equipment, however useful, that does not mitigate environmental pollution. Southern Steel & Wire Co. v. Wooten, 276 Ark. 37, 631 S.W.2d 835 (1982).

Tax exemption provisions must be strictly construed against exemption, and if there is any doubt concerning its application, the exemption must be denied. Martin v. Riverside Furniture Corp., 292 Ark. 399, 730 S.W.2d 483 (1987). It is the taxpayer’s burden to establish an entitlement to an exemption from taxation beyond a reasonable doubt. Pledger v. Baldor Int’l Inc., 309 Ark. 30, 827 S.W.2d 646 (1992); Heath v. Research-Cottrell, Inc., 258 Ark. at 816, 529 S.W.2d at 337. A strong presumption operates in favor of the taxing power. Ragland v. General Tire & Rubber Co., 297 Ark. 394, 763 S.W.2d 70 (1989).

We find that the interpretation by DF&A is based on the plain language of the statute. The language of Ark. Code Ann. § 26-52-402(b)(3) bases the exemption from taxes upon a requirement that pollution-control equipment be installed and used to prevent or reduce air or water pollution that results from the operation of a plant or facility. We agree with DF&A’s determination that the statutory exemption does not apply to appellant’s lease of equipment for a reclamation project.

ALCOA has not established that it is entitled to the exemption beyond a reasonable doubt, and because a tax-exemption provision must be strictly construed against the exemption, we affirm.

Affirmed.