text:
    MONROE AUTO EQUIPMENT COMPANY v. The Honorable Graham PARTLOW, the Honorable Howard Templeton and the Honorable Rice Van Ausdall; Chancellors Second Chancery Circuit
    92-792
    846 S.W.2d 637
    Supreme Court of Arkansas
    Opinion delivered February 1, 1993

      Fulkerson, Todd & Broadaway, P.A., by: Michael Todd and Branch, Thompson and Philhours, by: Robert F. Thompson, for petitioners.

      Winston Bryant, Att’y Gen., by: Sarah Lewis, Asst. Att’y Gen., for respondents.
   Steele Hays, Justice.

This is an original action for a writ of prohibition. Our jurisdiction exists pursuant to Ark. Const, art. 7, §§ 4 and 5. Petitioners are two corporate employers operating in Greene County, Arkansas. Respondents are three chancery judges serving the Second Judicial District of Arkansas, encompassing Greene County. On April 1,1991, respondents issued an administrative order affecting the procedure to be followed by employers remitting child support payments for certain of their employees subject to income withholding. The order reads:

All child support payments made by an employer for an employee under income withholding are ordered to make the checks payable to the custodial parent, those checks are to then be forwarded to the circuit clerk’s office for distribution to the proper person or agency.

Contending the order conflicts with federal and state law, petitioner Monroe Auto Equipment Company filed a petition for quo warranto in this court in July, 1991. That request was denied without prejudice to a later appeal. A similar petition by Darling Store Fixtures was also denied.

Petitioners next filed an action in the Circuit Court of Greene County for declaratory judgment to declare the administrative order void and unenforceable as being in conflict with 42 U.S.C.A. § 666(b)(6)(B) (West 1991) and Ark. Code Ann. §§ 9-14-222(d)(9) and9-14-228(b) (1987). The chancellors answered the complaint through their counsel, the Attorney General. Petitioners then moved for summary judgment and the circuit court granted summary judgment on their behalf. That development prompted two steps by the respondents — they filed notice of appeal to this court and issued a new administrative order essentially indistinguishable from the first. When this action in prohibition was filed we granted a temporary stay of the administrative order and asked the parties to submit their briefs. While that was in progress, respondents filed the record in their appeal from the declaratory judgment and moved to stay the briefing schedule, asserting that the issues in their appeal corresponded with the issues in this action for prohibition. Petitioners concurred in that request and we granted the motion.

Returning to the case at hand, petitioners pose four arguments for prohibition:

I.
The Respondents’ Conduct Constitutes An Impermissible Collateral Attack On The Court’s Judgment.
II.
The Respondents Waived Any Objection To Jurisdiction By Failing To Move to Transfer Or Object To The Circuit Court’s Action.
III.
Jurisdiction To Determine The Legality Of A Local Rule Has Not Been Specifically Assigned Nor Do The Chancery Courts Have Subject Matter Jurisdiction To Issue Local Rules.
IV.
The Petitioners Have No Adequate Remedy To Protect Their Rights In This Context.

We decline to address these arguments, as it appears they are formulated in the pending appeal and can be more appropriately addressed in that action than in this. That being so, it cannot be said there is no other adequate or appropriate remedy but prohibition. Street v. Roberts, 258 Ark. 839, 529 S.W.2d 343 (1975). A writ of prohibition is an extraordinary writ and is granted only when the lower court is wholly without jurisdiction, there are no disputed facts, there is no adequate remedy otherwise, and the writ is clearly warranted. Miller v. Lofton, 279 Ark. 461, 652 S.W.2d 627 (1983); Henderson v. Dudley, 279 Ark. 697, 574 S.W.2d 658 (1978). Our cases suggest that writs of prohibition are prerogative writs, extremely narrow in scope and operation; they are to be used with great caution and forbearance. Wade v. State, 264 Ark. 320, 571 S.W.2d 231 (1978). They should issue only in cases of extreme necessity. Smith v. Burnett, 300 Ky. 249, 188 S.W.2d 840 (1945).

A characteristic of prohibition is that it does not lie as a matter of right but as a matter of sound judicial discretion. Karraz v. Taylor, 259 Ark. 699, 535 S.W.2d 840 (1976). Finally, prohibition is never granted to prevent an inferior tribunal from exercising its jurisdiction erroneously, only where such tribunal is wholly without jurisdiction. Jones v. Coffin, 96 Ark. 332, 131 S.W. 873 (1910).

In light of those settled canons of the law applicable to prohibition, petitioners have not satisfied us that the issuance of this order, whatever might be said of its propriety or validity, affecting the collection of child support, is a usurpation of jurisdiction by the respondents, or that the issues common to these two proceedings are more appropriate to prohibition than to appeal. Accordingly, we deny the writ and dissolve the temporary stay.


source: Caselaw Access Project

author: Tom Glaze, Justice.

license: Public Domain

text:
    Lorene HOLLINGSWORTH and Don Gore v. FIRST NATIONAL BANK AND TRUST COMPANY of Rogers, Arkansas, and James Robert Kelly
    92-435
    846 S.W.2d 176
    Supreme Court of Arkansas
    Opinion delivered February 1, 1993

      Evans & Evans, by: James E. Evans, Jr., for appellants.

      Matthews, Campbell & Rhoads, by: David R. Matthews, for appellees.
   Tom Glaze, Justice.

Appellants, Lorene Hollingsworth and Don Gore, brought this malicious prosecution and tort of outrage case after having prevailed in an earlier federal lawsuit where the appellees claimed appellants had violated the federal “RICO” statutes. In that federal action, appellees alleged the appellants were involved in racketeering activities by laundering illegal funds, committing mail fraud and criminal enterprise, misusing credit card numbers, forging documents and other similar fraudulent conduct. The federal court had allowed the appellees to obtain a prejudgment attachment, but subsequently set it aside. At trial, Gore was granted a directed verdict, but the federal judge allowed Hollingsworth’s case to go to the jury, which returned a verdict in her favor. In filing their complaint in this state action, appellants, among other things, set out the “RICO” allegations the appellees had previously alleged against appellants, stated the appellants had been absolved of those allegations and further asserted the appellees had commenced the federal action maliciously and without probable cause. They also complained appellees were liable for the tort of outrage because appellees’ actions were extreme and outrageous beyond the bounds of decency. Appellees moved under ARCP Rule 12(b)(6) to dismiss appellants’ state action, alleging appellants’ complaint failed to state facts upon which relief can be granted. The trial court agreed, and appellants appeal the trial court’s ruling.

Arkansas has adopted a clear standard to require fact pleading: “ a pleading which sets forth a claim for relief . . . shall contain (1) a statement in ordinary and concise language of facts showing that the pleader is entitled to relief . . .” ARCP Rule 8(a)(1). Rule 12(b)(6) provides for the dismissal of a complaint for “failure to state facts upon which relief can be granted.” This court has stated that these two rules must be read together in testing the sufficiency of the complaint; facts, not mere conclusions, must be alleged. Rabalaias v. Barnett, 284 Ark. 527, 683 S.W.2d 919 (1985). In testing the sufficiency of the complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and pleadings are to be liberally construed. Id; ARCP Rule 8(f).

As mentioned above, appellants seek damages against appellees for malicious prosecution and the tort of outrage. The elements necessary to show the tort of malicious prosecution are the following: 1) a proceeding instituted or continued by the defendant against the plaintiff; 2) termination of the proceeding in favor of the plaintiff; 3) absence of probable cause for the proceedings; 4) malice on part of the defendant; and 5) damages. Miles v. Southern, 297 Ark. 274, 760 S.W.2d 868 (1988). To establish liability for the tort of outrage, the following four elements are needed: 1) the actor intended to inflict emotional distress or knew or should have known that emotional distress was the likely result of his conduct; 2) the conduct was “extreme and outrageous,” was “beyond all possible bounds of decency” and was “utterly intolerable in a civilized community”; 3) the actions of the defendant were the cause of the plaintiffs distress; and 4) the emotional distress sustained by the plaintiff was so severe that no reasonable person could be expected to endure it. Deitsch v. Tillery, 309 Ark. 401, 833 S.W.2d 760 (1992).

Here, appellants’ complaint falls short of pleading a cause of action for malicious prosecution because they failed to plead sufficient facts to show either malice or lack of probable cause. Malice has been defined as “any improper or sinister motive for instituting the suit.” Cordes v. Outdoor Living Center, Inc., 301 Ark. 26, 781 S.W.2d 31 (1989). Probable cause for prosecution must be based upon the existence of facts or credible information that would induce the person of ordinary caution to believe the accused person to be guilty of the crime for which he is charged. Id. Ordinary caution is a standard of reasonableness, which presents an issue for the jury when the proof is in dispute or subject to different interpretations. Id.

In their complaint, the appellants mention no facts bearing on the background for appellees having filed the RICO action. Appellants merely allege they prevailed against appellees’ allegations which is not the same as saying appellees had no probable cause to file the action the first place. Concerning appellant Hollingsworth, the federal court obviously ruled sufficient evidence had been presented to send her case to the jury. Such a ruling itself indicates probable cause accompanied the RICO action that the appellees filed against her. Regardless, the appellants’ merely stating that the appellees’ actions were malicious is not sufficient to meet the pleading requirements under ARCP Rule 8(a)(1). The only facts the appellants set out in the complaint were that Hollingsworth had been served while she was working at a school in front of some of her students and this manner of service was used to embarrass and humiliate her. Again, such an allegation has little to do with whether appellees had probable cause to bring the earlier RICO action against appellants. Likewise, the appellants failed to plead any facts to support their cause of action for tort of outrage besides merely stating in summary fashion that the appellees’ actions were “extreme and outrageous beyond the bounds of decency.” Accordingly, we uphold the trial court’s decision to dismiss appellants’ complaint.

One last point needs to be addressed. The court’s order in the present case was silent as to whether the appellants’ complaint was dismissed with or without prejudice. When a complaint is dismissed under Rule 12(b)(6) for failure to state facts upon which relief can be granted, the dismissal should be without prejudice. Ratliff v. Moss, 284 Ark. 16, 678 S.W.2d 369 (1984). The plaintiffs then have the election to either plead further or appeal. Id. In Arkhola Sand & Gravel Co. v. Hutchinson, 291 Ark. 570, 726 S.W.2d 674 (1987), the trial court dismissed the appellant’s complaint without any mention of prejudice to Arkhola. Arkhola then had the election to plead further or appeal. Arkhola appealed, and therefore it waived its right to plead further and the complaint was dismissed with prejudice. Likewise, in the present case the appellants chose to appeal rather than plead further, thus the appellants’ complaint is dismissed with prejudice.


author: Donald L. Corbin, Justice.

text:
    Bryan CAMPBELL v. STATE of Arkansas
    92-455
    846 S.W.2d 639
    Supreme Court of Arkansas
    Opinion delivered February 1, 1993

      William R. Simpson, Jr., Public Defender, by: Tammy Harris, Deputy Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: Clementine Infante, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

On December 31, 1991, appellant, Bryan Campbell, was involuntarily admitted to the Arkansas State Hospital. On January 8, 1992, a petition to involuntarily commit appellant was filed. A hearing was held on January 10, 1992, at which the court held appellant should be committed to the Arkansas State Hospital or Western Arkansas Counseling and Guidance Center for a period not to exceed forty-five (45) days. An order setting forth the court’s holding was filed on January 10, 1992. The court order expired on February 23, 1992. On appeal, appellant argues the court committed error by not dismissing the commitment proceedings against him pursuant to Ark. Code Ann. § 20-47-210 (Repl. 1991) and the court violated his constitutionally vested liberty interest by not dismissing the proceedings against him. We do not address appellant’s second argument as appellant failed to raise this issue below. We do not consider even constitutional issues that are raised for the first time on appeal. Ussery v. State, 308 Ark. 67, 822 S.W.2d 848 (1922). Since this case involves the interpretation of an act of the General Assembly, our jurisdiction is proper pursuant to Ark. Sup. Ct. R. 29(l)(c).

Normally, this case would not be subject to review because it is moot, but appellant asks us to decide the case anyway claiming it “presents a question that is capable of repetition, yet evading review”, DeFunis v. Odegaard, 416 U.S. 312, 318-19 (1974) (quoting Southern Pac. Terminal Co. v. ICC, 219 U.S. 498, 515 (1911)), and cases of this type “tendQ to become moot before litigation can run its course”, Campbell v. State, 300 Ark. 570, 572, 781 S.W.2d 14, 15 (1989), since the commitment periods contained in the applicable statutes are seven (7), forty-five (45), and one hundred eighty (180) days.

We do not ordinarily decide issues which are moot, but “when a case involves the public interest, or tends to become moot before litigation can run its course, or a decision might avert future litigation, we have, with some regularity, refused to permit mootness to become the determinant.” Campbell, 300 Ark. at 572, 781 S.W.2d at 15 (citations omitted). This case “is moot in the sense that we cannot now afford appellant any relief, but it is not moot in the sense that it is important to decide a practical question of great public interest.” Id. As appellant points out, the involuntary commitment statutes provide for only short term involuntary commitment such that most persons committed under these statutes will have been released before their appeals can be decided. Whether a person can be held involuntarily when the petition for involuntary commitment is not filed within the time provided in the statute is a practical question of great public interest. For that reason, we address appellant’s substantive argument.

The following constitutes the chronological development of appellant’s confinement and the court action leading to this appeal.

Tuesday, December 31, 1991 Appellant’s initial confinement 6 p.m.
Wednesday, January 1, 1992 Holiday, excluded by statute
Thursday, January 2, 1992 24 hours/1 day
Friday, January 3, 1992 48 hours/2 days
Saturday, January 4, 1992 excluded by statute
Sunday, January 5, 1992 excluded by statute
Monday, January 6, 1992 72 hours/3 days
Tuesday, January 7, 1992 96 hours/4 days
Wednesday, January 8, 1992 117 3/4 hours/5 days 3:45 p.m. petition filed
Thursday, January 9, 1992 6 days
Friday, January 10, 1992 7 days/45 day commitment order

Appellant argues that section 20-47-210(a)(l) requires that a petition be filed in the probate court of the county in which the person resides or is detained within seventy-two (72) hours of his detention, excluding weekends and holidays, and since the petition was not filed within seventy-two (72) hours, the petition should have been dismissed. We agree.

Section 20-47-210(a)(l) provides in pertinent part:

A petition, as provided in § 20-47-207, shall be filed in the probate court of the county in which the person resides or is detained within seventy-two (72) hours, excluding weekends and holidays, and a hearing, as provided in § 20-47-209(a)(1) shall be held[.] [Emphasis added.]

“[W]e have held that the word ‘shall,’ when used in a statute, means the legislature intended mandatory compliance unless such an interpretation would lead to absurdity.” Baumer v. State, 300 Ark. 160, 163, 777 S.W.2d 847, 849 (1989). The petition should have been filed within seventy-two (72) hours and since the legislature intended mandatory compliance, we find failure to file the petition within seventy-two (72) hours, excluding weekends and holidays, requires dismissal of the petition. Garrett v. Andrews, 294 Ark. 160, 741 S.W.2d 257 (1987), cert. denied sub nom. Andrews v. Adams, 487 U.S. 1219 (1988) (ten day filing limit in election contest jurisdictional, failure to comply requires dismissal). The court lacked jurisdiction to decide the petition, which was filed outside the statutory time limit, and thus erred by committing appellant for a period not to exceed forty-five (45) days. Since the forty-five (45) day period has already run, we cannot remedy this error by ordering appellant to be released, but we do order that the decision of the trial court be reversed and dismissed and record of appellant’s involuntary commitment pursuant to the court’s order be removed from his record at the Arkansas State Hospital.

Reversed and dismissed.


author: Robert L. Brown, Justice.

text:
    Ronnie HAYES a/k/a Ronnie Haynes v. STATE of Arkansas
    CR 92-1163
    846 S.W.2d 182
    Supreme Court of Arkansas
    Opinion delivered February 1, 1993

      William R. Simpson, Jr., Public Defender, by: Thomas B. Devine III, Deputy Public Defender, for appellant.

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

The appellant, Ronnie Hayes a/k/a Ronnie Haynes, appeals from convictions for aggravated robbery and theft of property. His appeal is premised on two grounds: the unreliability of a photo lineup at police headquarters which, he contends, tainted an in-court identification at trial, and the failure of the trial court to reduce the theft charge to a misdemeanor on the basis of the amount proven. We hold that neither point has merit, and we affirm.

On May 5,1991, a person later identified as Haynes entered a Pizza Inn in Little Rock and went to the back of the restaurant with a drawn gun. The manager asked if he could help him, and the man, clad in gray shorts and a gray flannel sweatshirt, announced, “This is a robbery.” He then told Tim Moore, an employee, to open the cash register. When he was unable to do so, a manager trainee, William Blankenship, came over to the register and opened it. The room was illuminated with fluorescent lighting, which allowed both Moore and Blankenship to see the robber’s uncovered face for several minutes. Blankenship later testified that approximately $200 to $300 was taken.

Four days later on May 9,1991, Blankenship saw the person who robbed the restaurant on television and said he became “unglued.” He telephoned the Little Rock Police Department and disclosed the fact that the person on television had been the robber. The following day, May 10, 1991, Blankenship went to police headquarters and viewed a photo spread, from which Blankenship identified Haynes as the culprit. The next day, on May 11, 1991, Moore also viewed a photo lineup and identified Haynes as the man who had robbed the restaurant.

Haynes was charged with aggravated robbery and theft of property and later on was charged as an habitual offender. Subsequently, he moved to suppress any in-court identification by witnesses who had previously identified him “by the use of impermissibly suggestive photo spreads and lineups.” The motion was denied. When it was renewed at trial, together with a motion to reduce the theft of property charge to a misdemeanor, the trial court denied both motions.

At the ensuing jury trial, both Moore and Blankenship identified Haynes as the robber. Haynes was convicted of aggravated robbery and theft of property and was sentenced, as an habitual offender, to concurrent sentences of life (aggravated robbery) and twenty years (theft of property).

Haynes first contends that the trial court erred in failing to suppress the photo spread identifications by witnesses Tim Moore and William Blankenship, which, according to his theory, impermissibly tainted the in-court identifications. We have held that we will not reverse a trial court’s ruling on the admissibility of an in-court identification unless that ruling is clearly erroneous under the totality of the circumstances. Dixon v. State, 310 Ark. 460, 839 S.W.2d 173 (1992). In determining whether an in-court identification is admissible, the court looks first at whether the pretrial identification procedure was unnecessarily suggestive or otherwise constitutionally suspect. Van Pelt v. State, 306 Ark. 624, 816 S.W.2d 607 (1991). It is the appellant’s burden to show that the pretrial identification procedure was suspect. Id.

Reliability is the linchpin in determining the admissibility of identification testimony. Dixon v. State, supra. We do not inject ourselves into the process of determining reliability unless there is a very substantial likelihood of irreparable misidentification. Bishop v. State, 310 Ark. 479, 839 S.W.2d 6 (1992). The following factors are considered in determining reliability: (1) the prior opportunity of the witness to observe the alleged act; (2) the accuracy of the prior description of the accused; (3) any identification of another person prior to the pretrial identification procedure; (4) the level of certainty demonstrated at the confrontation; (5) the failure of the witness to identify the defendant on a prior occasion; and (6) the lapse of time between the alleged act and the pretrial identification procedure. Van Pelt v. State, supra; Bowden v. State, 297 Ark. 160, 761 S.W.2d 148 (1988). Even if the technique is impermissibly suggestive, testimony concerning the identification is admissible if the identification is reliable. Bishop v. State, supra. Finally, the credibility of identification testimony is for the jury to decide. Dixon v. State, supra.

Haynes argues that Moore’s identification was unreliable because he did not give the police a description of the robber immediately after the crime and could not estimate how much time elapsed during the robbery. The appellant also points to an apparent inconsistency in Moore’s testimony and the testimony of a police officer concerning a second officer’s presence during Moore’s examination of the photographs. Further, he contends that Moore’s inability to describe the police officer who showed him the photographs underscores that his identification skills were lacking.

Similarly, Haynes argues that Blankenship’s identification was unreliable because he became “unglued” when he saw the person he believed had robbed the restaurant on television. Then, when he viewed the photo spread at the police station, he stated that he believed that the police officer told him that the person who had been on television was also in the lineup. (The police officer involved disputed that fact.) Also, Blankenship testified that he had poor eyesight, and at a pretrial hearing, he had difficulty identifying the appellant because of his cleaner and better-groomed appearance.

The trial court correctly found that the identifications at the two photo lineups were reliable. Both Moore and Blankenship had the opportunity to observe the appellant, whose face was in plain view under fluorescent lights, at the time of the criminal act. Both witnesses were positive about their photo spread identifications. Indeed, Moore testified that he was able to make an identification in “a matter of seconds,” and Blankenship avowed that he was certain that the person he selected from the photo lineup was the person who robbed him. No other person was identified by the witnesses, and neither Moore nor Blankenship failed to identify the appellant on any prior occasion, although Blankenship did have some hesitancy with identification during a pretrial hearing due to Haynes’s groomed, and therefore changed, appearance. Finally, less than a week passed between the criminal act and the identifications by Moore and Blankenship at the photo lineups.

As for the police officer’s possibly informing Blankenship that the person he saw on television was included in the photo spread, the Arkansas Court of Appeals has held that for the police merely to tell a witness that a suspect is in a lineup is not absolutely impermissible. Freeman v. State, 6 Ark. App. 240, 640 S.W.2d 456 (1982); citing U.S. v. Gambril, 449 F.2d 1148 (D.C. Cir. 1971); see also Forgy v. State, 16 Ark. App. 76, 697 S.W.2d 126 (1985).A witness, reasoned the court of appeals, must realize that he would not be asked to view a lineup if a suspect was not present. Id. What the witness is told may be only one factor to consider in reviewing the total surrounding circumstances. Id. Moreover, this court has treated a similar irregularity as a credibility factor. See Frensley v. State, 291 Ark. 268, 724 S.W.2d 165 (1987). In Frensley, we held that a lineup was not unduly suggestive though the five victims knew a suspect was in custody when they viewed the lineup and made their identifications. That approximates the circumstances in this case where one witness said that he believed he was told the suspect would be in the photo spread.

Under the standards of Van Pelt v. State, supra, we held that the identification of the appellant at trial by both witnesses was reliable and not tainted or otherwise impermissibly affected by the prior photo lineups.

Haynes’s second argument is that the evidence was insufficient to convict him of theft of property because the state offered no evidence of the value of the property stolen other than Blankenship’s general estimate that “approximately two to three hundred dollars” was taken. The appellant contends that the state’s felony charge for theft of property, therefore, failed due to the absence of substantial supporting evidence.

A motion for directed verdict, although lodged at the close of the state’s case, was not made at the conclusion of Haynes’s evidence. Such a failure precludes review by this court, and we have so held repeatedly. See, e.g., Crow v. State, 306 Ark. 411, 814 S.W.2d 909 (1991); Ferrell v. State, 305 Ark. 511, 810 S.W.2d 29 (1991); Andrews v. State, 305 Ark. 262, 807 S.W.2d 917 (1991).

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

Affirmed.


text:
    Ronnie HAYNES v. STATE of Arkansas
    CR 92-1067
    846 S.W.2d 179
    Supreme Court of Arkansas
    Opinion delivered February 1, 1993

      William R. Simpson, Jr., Public Defender, by: Kent C. Krause, Deputy Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

Ronnie Haynes appeals from three felony convictions for rape, robbery, and theft and argues that the prosecutor commented on parole in her closing argument during the penalty phase of the trial. He further contends that the circuit court erred in resentencing him on his Rule 37 petition after his prior felonies had been reversed by this court. We hold that no prejudice occurred, and we affirm.

On June 11,1991, an information was filed charging Haynes with rape, aggravated robbery, and theft of property in connection with a May 3, 1991 attack upon the victim in this case. The information was subsequently amended to add a habitual-offender charge. This matter was tried, and the jury returned a verdict of guilty on all offenses. During the penalty phase of the trial, the prosecutor argued that she was asking the jury for the maximum penalty on all offenses because “we don’t know how long life is, but we do know how long 500 plus years is.” Haynes moved for a mistrial claiming that the prosecutor was commenting on parole. The court denied the motion. The jury thereafter sentenced appellant to two life sentences for rape and robbery, to run consecutively, and a forty-year sentence for theft, to run concurrently. The following events then transpired:

- On June 9, 1992, judgment was entered.
- On June 10, 1992, Haynes filed a pro se motion entitled Motion for a New Trial which was filed pursuant to Rule 37 and which asserted ineffective counsel as the sole ground for relief.
- On June 15, 1992, this court reversed the prior convictions that formed the basis for Haynes’s habitual-offender status. Haynes v. State, 309 Ark. 583, 832 S.W.2d 479 (1992).
- On June 25, 1992, Haynes filed a notice of appeal from his rape, robbery, and theft convictions.
- On July 16, 1992, Haynes filed a Rule 37 Petition seeking to set aside the judgments and dismiss on double jeopardy grounds or, in the alternative, for a new trial.

The Rule 37 Petition filed on July 16,1992, was heard by the circuit court on August 11, 1992, and denied. Haynes was then resentenced by the court and received life imprisonment for rape, twenty years for aggravated robbery, and ten years for theft of property, to run consecutively.

Haynes first contends that the trial court erred in failing to grant his motion for mistrial because the prosecutor referred to parole by implication during her closing argument in the penalty phase. He argues that the fact that the jury returned such a harsh sentence is evidence of the resulting prejudice. His position is further bolstered, he contends, by the fact that the jury, during its deliberations, sent the court a note questioning at what point Haynes would be eligible for parole after receiving a life sentence.

The state raises as a preliminary argument lack of jurisdiction in this court because there was no timely notice of appeal given. Specifically, the state argues that after judgment was entered, Haynes filed a pro se motion for new trial. Prior to the date the motion for new trial was deemed denied, Haynes filed a notice of appeal. Therefore, according to the state, the notice of appeal was ineffective under Ark. R. App. P. 4(c), and no valid appeal was taken.

The state’s argument is without merit. Though styled as pro se motion for new trial, it cannot be seriously contended that the motion was anything other than one for Rule 37 relief. The motion refers to Rule 37 as its authority and all of its allegations concern the collateral issue of ineffective counsel. In determining what a motion is, we look to content and substance — not to titles. Cornett v. Prather, 293 Ark. 108, 737 S.W.2d 159 (1987); see also Chambers v. State, 304 Ark. 663, 803 S.W.2d 932 (1991) (per curiam). Because the motion was not in fact one for a new trial, the notice of appeal filed on June 25, 1992, effectively preserved the issue of the prosecutor’s argument for our review.

Turning to the merits, we have held that neither the trial court nor counsel should comment on parole. See Simmons v. State, 278 Ark. 305, 645 S.W.2d 680 (1983). The rationale for this rule was announced in Andrews v. State, 251 Ark. 279, 472 S.W.2d 86 (1971), where we stated that parole should not be discussed because the jury would be inclined to impose excessive punishment in order to compensate for early release.

The prosecutor’s comment regarding life and five hundred years certainly raises suspicions about the intent behind the remark. Nonetheless, we are not prepared to state with certainty that it was a comment on parole sufficient to invoke the drastic remedy of a mistrial. A mistrial is only granted when there has been an error so prejudicial that justice cannot be served by continuing the trial. See Magar v. State, 308 Ark. 380, 826 S.W.2d 221 (1992); Muhammed v. State, 27 Ark. App. 188, 769 S.W.2d 33 (1989). In such cases, the trial court is granted considerable discretion in determining whether to grant a motion for mistrial, and only when this court determines that the trial court abused its discretion will a decision to deny a motion for mistrial be reversed. Dixon v. State, 310 Ark. 460, S.W.2d (1992).

We note that Haynes argues that the trial court should have given a curative instruction. This argument suggests that a remedy less drastic than a mistrial might have been invoked, yet Haynes did not avail himself of this lesser remedy. It was his burden to request curative relief, and his failure to request a limiting instruction cannot inure to his benefit on appeal. Sullinger v. State, 310 Ark. 690, 840 S.W.2d 797 (1992). Furthermore, if anything, an argument that he was entitled to a curative instruction undermines his argument that the error was so pronounced that only a mistrial could have rectified the situation.

In sum, we cannot say under these facts that the circuit court abused its discretion in refusing to grant a mistrial.

For his second point, Haynes objects to the resentencing by the circuit court pursuant to his Rule 37 petition and argues that he was entitled to dismissal of the charges as double jeopardy or, in the alternative, resentencing by a jury. Rule 37, however, is not properly before the court because an appellant can not simultaneously pursue a direct appeal and Rule 37 relief. Ark. R. Crim. P. 37.2(a); see also Westbrook v. State, 286 Ark. 192, 691 S.W.2d 123 (1985). If a conviction is appealed, the circuit court is not to entertain a Rule 37 proceeding while that appeal is pending. Ark. R. Crim. P. 37.2(a); see also Edwards v. City of Conway, 300 Ark. 135, 777 S.W.2d 583 (1989). The circuit court erred in addressing the Rule 37 petition prematurely, and we will not consider the issue raised in a Rule 37 petition at this juncture.

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

Affirmed.


author: Robert L. Brown, Justice. Robert H. Dudley, Justice.

text:
    The SEBASTIAN COUNTY CHAPTER OF THE AMERICAN RED CROSS v. Wanda WEATHERFORD
    92-403
    846 S.W.2d 641
    Supreme Court of Arkansas
    Opinion delivered February 1, 1993

      Hardin, Jesson, Dawson & Terry, by: Rex M. Terry, for appellant.

      Oscar Stilley, for appellee.
   Robert L. Brown, Justice.

This case concerns the Freedom of Information Act, and the appeal presents a single issue for consideration: whether a ground lease between the City of Fort Smith and the appellant, the Sebastian County Chapter of the American Red Cross, wherein the City charges Red Cross a one-dollar-per-year lease payment, qualifies as support by public funds. The circuit court found that it did. We hold that the finding was clearly erroneous, and we reverse and remand.

At the meeting of the Fort Smith Board of Directors on December 6, 1983, a resolution was adopted authorizing a lease agreement between the City and the Red Cross. The agreement provided that the City would lease a lot to the Red Cross for a period of thirty years with an annual rental fee of one dollar. It further provided that the Red Cross would commence construction of a building for its offices and that the building would revert to the City upon the expiration of the lease.

On January 8, 1992, the appellee, Wanda Weatherford, directed a request to the Red Cross, seeking an opportunity to “inspect and copy all non-privileged documents” in its possession. The Red Cross denied the request, and Weatherford filed a petition for disclosure under the Arkansas Freedom of Information Act on the basis that the lease constituted public funding. She also contended that the American Red Cross received federal funding, but no proof of that fact was presented to the circuit court.

The Red Cross answered and asserted that the building was constructed on the leased property at its own expense and that at the expiration of the lease term the building and improvements would become the property of the City. The Red Cross also emphasized that it was not a public agency or an organization “wholly or partially supported by public funds or expending public funds” within the meaning of Ark. Code Ann. § 25-19-103 (Repl. 1992). Further, the Red Cross contended that Weather-ford was using the FOIA as a replacement for discovery related to a civil action it had pending against certain Red Cross officials.

At a subsequent hearing, the parties stipulated that, standing alone, $1.00 per year would be less than a reasonable rental value for the leased property. Also at the hearing, reference to a 1979 appraisal was introduced establishing the value of three lots, one-half of which constitutes the leased land in question, at $62,500. Counsel for Red Cross argued that the lease was an arms-length transaction in that the City would ultimately gain the constructed Red Cross building valued at $60,000 in 1983 and the public had the use of the conference room in the building. He also argued that the one-dollar-per-year rental payment did not qualify as support by public funds. Following the hearing, the circuit court entered an order in which it first recognized that the lease required the Red Cross to build a building and that the public might obtain substantial benefit from the lease. The court then found that the fair market value of the leased property was “substantially more than $1 per year” and that the lease constituted a partial support by public funds, or an expenditure of public funds under § 25-19-103. Accordingly, the court ordered the Red Cross to open its non-exempt records for inspection pursuant to the FOIA.

The Arkansas Freedom of Information Act, Ark. Code Ann. § 25-19-101 —25-19-107 (Repl. 1992), was originally enacted as Act 93 of 1967. The legislative intent behind the FOIA is stated at Ark. Code Ann. § 25-19-102 (Repl. 1992):

It is vital in a democratic society that public business be performed in an open and public manner so that the electors shall be advised of the performance of public officials and of the decisions that are reached in public activity and in making public policy. Toward this end, this chapter is adopted, making it possible for them, or their representatives to learn and to report fully the activities of their public officials.

We have stated repeatedly that the FOIA should be liberally construed in order to accomplish the Act’s laudable purposes. See, e.g., Bryant v. Mars, 309 Ark. 480, 830 S.W.2d 869 (1992); City of Fayetteville v. Edmark, 304 Ark. 179, 801 S.W.2d 275 (1990); North Central Assoc. of Colleges & Schools v. Troutt Bros. Inc., 261 Ark. 379, 548 S.W.2d 825 (1977); Laman v. McCord, 245 Ark. 401, 432 S.W.2d 753 (1968). We have also remarked that we are aware of the need for a balancing of interests to give effect to the intent of the General Assembly, and we do so with a common sense approach. Bryant v. Mars, supra; Simmons First Nat’l Bank v. Liberty Mut. Ins. Co., 282 Ark. 194, 667 S.W.2d 648 (1984).

The FOIA opens to inspection and copying “all public records.” Ark. Code Ann. § 25-19-105(a) (Repl. 1992). As defined by Ark. Code Ann. § 25-19-103(1) (Repl. 1992), “public records” means writings and other documentation “required by law to be kept or otherwise kept, and which constitute a record of the performance of lack of performance of official functions which are or should be carried out by a public official or employee, a governmental agency, or any other agency wholly or partially supported by public funds or expending public funds.” (Emphasis supplied.)

The issue in this appeal has been narrowly drawn by the parties and the circuit court, that is, what constitutes support by public funds? We focus first on the term “public funds,” which is not defined in the FOIA. The definition given in Black’s Law Dictionary, 6th ed. (1990), is “Moneys belonging to government, or any department of it, in hands of public official.” Case law cited by Black’s in support of this definition is relevant to the present case. See Droste v. Kerner, 217 N.E.2d 73 (Ill. 1966). In Droste,a taxpayer attacked the Illinois legislature’s conveyance of land submerged beneath Lake Michigan to U.S. Steel on the basis of a statute that prohibited the “disbursement” of “public funds” and “public moneys” by state officials. The Illinois Supreme Court affirmed the trial court and rejected the taxpayer’s attempt to translate 194.6 acres of land into “public funds.” The court concluded that “the legislature could not have contemplated real estate when it referred to public funds, nor may this court torture the meaning of the words employed to arrive at that result.” 217 N.E.2d at 78-79.

This court has dealt with several instances in which private entities have received public funds, and in those cases we have applied the FOIA. See City of Fayetteville v. Edmark, supra; North Central Ass’n of Colleges & Schools v. Troutt Bros, Inc., supra; Rehab. Hospital Services Corp. v. Delta-Hills Health Systems, Agency, Inc., 285 Ark. 397, 687 S.W.2d 840 (1985). In City of Fayetteville v. Edmark, supra, outside attorneys were employed and paid by the City for their work. Records in their possession were held to be subject to FOIA disclosure, in part because they had been hired in lieu of the city attorney and paid with public funds.

An earlier case, North Central Ass’n of Colleges & Schools v. Troutt Bros, Inc., supra, involved a suit over the exclusion of a reporter from a state meeting of the North Central Association of Colleges and Schools, an organization that sets educational standards and policies for colleges and secondary schools. Dues from the Arkansas schools supported the NCA. Although the association was a private, nonprofit corporation, a factor stressed by this court in applying the FOIA was that over 90% of the money contributed by Arkansas schools to the NCA was public money.

In still another case, the Delta-Hills Health Systems Agency, Inc. had been created under federal law to assist the Arkansas State Health Planning and Development Agency in the regional review of certain proposed changes in health care. Rehab Hospital Services Corp. v. Delta-Hills Health Systems Agency, Inc., 285 Ark. 397, 400, 687 S.W.2d 840, 842 (1985). The primary source of funding for the Delta-Hills HSA was the federal government, which we held to be public funding. Because of this, we concluded that Delta-Hills HSA, though a private, nonprofit corporation, was subject to the FOIA.

All of these cases dealt with direct public funding of some sort as the catalyst for the application of the FOIA. None of these cases expanded the term “public funds” to embrace an indirect benefit conveyed by government upon a private organization.

In the present case, we are mindful that under the Lease Agreement the City will at some point fall heir to the Red Cross building and, thus, receive the benefit of this improvement and that in the interim the public has use of the Red Cross conference room. However, we do not decide this case on that basis. The plain language of the FOIA confirms that the General Assembly intended that direct public funding be required. As previously noted, the FOIA applies to private entities “supported wholly or in part by public funds.” Had the General Assembly intended to extend the FOIA to private organizations that receive any form of government assistance or subsidy, no matter how indirect, it would not have used the words “supported ... by public funds” to describe the nature of support necessary to trigger the Act.

Refusal to read indirect government benefits or subsidies into the term “public funds” is not at odds with a liberal construction of the FOIA. Were we to construe “public funds” to include an entirely separate and new category of government support, we would be amending the FOIA to expand its application significantly. For example, the Arkansas Code contains statutes designed as incentives to induce businesses to locate in the state. Arguably, the use of such devices for industrial development or other purposes constitutes indirect public support. Did the General Assembly, without saying so, intend the application of the FOIA to all private organizations which receive some government benefit, no matter how minor? We think not.

We, therefore, adopt a common sense approach, as we did in Bryant v. Mars, supra, and give the term “public funds” its plain and ordinary meaning which is best evidenced by Black’s Law Dictionary and the definition “moneys belonging to government.” Here, no payment of government moneys was made to the Red Cross and the concomitant application of the FOIA should not transpire. In deciding as we do, we resist the temptation to legislate judicially. See Ragland v. Yeargan, 288 Ark. 81, 702 S.W.2d 23 (1986). We do, however, recognize that all records pertaining to the Lease Agreement between the City and the Red Cross were available to Weatherford through an FOIA request to the City.

Reversed and remanded for an order consistent with this opinion.

Dudley, J., dissents.

Robert H. Dudley, Justice.

The plaintiff-appellee, Wanda Weatherford, filed a request of the defendant-appellant, Sebastian County Chapter of the American Red Cross, to “inspect and copy all non-privileged documents” in its possession. The request was filed under the authority of the Arkansas Freedom of Information Act. The local chapter denied the request. The plaintiff-appellee field suit in circuit court for the information.

The Arkansas Freedom of Information Act gives a citizen the right of access to public records. Ark. Code Ann. § 25-19-105 (1987). “Public records” are the records of any organization that is “wholly or partially supported by public funds.” Ark. Code Ann. § 25-19-103 (1) (1987) (emphasis added).

The trial court held that the local chapter received a subsidy from the City of Fort Smith, and, since it was partially supported by public funds, the chapter was under an obligation to disclose its non-privileged records. The majority opinion reverses the trial court’s ruling and, for all practical purposes, dismisses the request.

In 1983, the City of Fort Smith leased a lot to the Sebastian County Chapter of the American Red Cross for thirty years for one dollar per year. It is undisputed that the fair rental value of the lot is substantially more than one dollar per year. Thus, it is without dispute that the City has been and will continue to partially support the local chapter of the Red Cross. The majority opinion holds that the partial support provided by the City is not in the form of public funds because it is only an “indirect benefit,” and it is not “money.”

The subsidy given to the local chapter is not an “indirect benefit.” It is direct. Nothing more need be said.

The majority opinion construes the statutory phrase “public funds” to exclude a governmental subsidy by rental value. The majority opinion does so by holding that the phrase “wholly or partially supported by public funds” means wholly or partially supported by “moneys belonging to the government.”

Without question, the word “public” is inclusive of government property. The only question is whether the word “funds” includes a subsidy by rental value. The answer to the question is found in our rules of statutory interpretation. The primary goal in the interpretation of statutes is to determine and to give effect to the intent of the General Assembly. Sanders v. State, 310 Ark. 630, 839 S.W.2d 518 (1992). In determining that intent we give words their usual and ordinary meaning. Bob Cole Bail Bonds, Inc. v. Howard, 307 Ark. 242, 819 S.W.2d 684 (1991). Finally, we have stated repeatedly that the Freedom of Information Act should be liberally construed in order to accomplish the act’s laudable purpose. See, e.g., Bryant v. Mars, 304 Ark. 179, 801 S.W.2d 275 (1990). An examination of the facts of this case in the light of the above rules of construction reveals the fault in the majority opinion.

Legislative Intent

Under the rationale of the majority opinion, if a governmental entity gives a $1,000 bill to another organization, that other organization must disclose its relevant records. However, if the governmental entity gives millions in value to subsidize another organization, that organization does not have to disclose its relevant records. These exempt subsidies might be in the form of goods or labor or services, or in the form of a check or warrant or draft or bond, or in the form of a conveyance or lease of either personal or real property — anything so long as it is not “money.” Such a rationale is not at all in keeping with the legislative intent.

The Usual And Ordinary Meaning of Words

If one were to ask an ordinary person, “Where do you keep your funds?”, the answer might be, “In the bank,” or it might be, “Partly in stocks, partly in bonds, some real estate, and some cash.” Funds in the bank are only a credit. A credit is not money. Having one’s funds in stocks and bonds would also be having one’s funds in something other than money. “Funds” is the plural of “fund.” Fund means a quantity of material resources maintained or available as a source of supply. Websters International Dictionary 920 (3d ed. 1961). On the other hand the word “money” has a more limited definition. Money means a medium of exchange. Websters International Dictionary 1458 (3d ed. 1961); See also Quinn-Moore v. Lambert, 272 Ark. 324, 614 S.W.2d 230 (1981). The dollar is the monetary unit that constitutes the medium of exchange in the United States. Thus, the majority opinion limits the meaning of the phrase “partially supported by public funds,” to partially supported by United States dollars. In short, the majority opinion does not give the word “funds” its usual and ordinary meaning.

Construction To Accomplish Act’s Purpose

In this case the City, over the period of the lease, has given and will give to the local chapter the fair rental value of the lot that exceeds one dollar per year. The amount of this gift is monetarily determinable. It is a subsidy that causes a depletion of the public funds just as certainly as if the subsidy were by dollar bills. A construction that gives meaning to the laudable purposes of the Act would require disclosure by an organization that is partially supported by public services, or goods, or property, just as surely as it does one supported by public dollars.

Accordingly, I dissent.

       At oral argument before this court, counsel for Red Cross also acknowledged that the Red Cross was receiving what amounted to an indirect benefit from the City by virtue of the one-dollar-per-year lease payment.


author: Per Curiam.

text:
    Frank GIACONA v. STATE of Arkansas
    CR 92-1202
    846 S.W.2d 185
    Supreme Court of Arkansas
    Opinion delivered February 1, 1993

      Craig Lambert, for appellant.

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

Appellant was convicted of a felony. He filed a motion for a new trial. The trial court did not rule on the motion within thirty days, and appellant did not give a notice of appeal at that time. Some months later the trial court denied the motion, and appellant gave notice of appeal within thirty days of the ruling. The court of appeals dismissed the appeal for failure to give a timely notice of appeal. Giacona v. State, 39 Ark. App. 101, 839 S.W.2d 228 (1992). Appellant has filed a petition for review in this court.

We deny the petition for review, but take this opportunity to repeat that Arkansas Rule of Appellate Procedure 4(c) applies to criminal cases. It provides that when post-trial motions are filed, the time for appeal runs from the entry of the order granting or denying the motion, provided “that if the trial court neither grants nor denies the motion within thirty (30) days of its filing, the motion will be deemed denied as of the 30th day." (Emphasis added.)


author: Jack Holt, Jr., Justice.

text:
    Mark TURBYFILL v. STATE of Arkansas
    CR 92-1263
    846 S.W.2d 646
    Supreme Court of Arkansas
    Opinion delivered February 8, 1993

      Grisham A. Phillips, for petitioner.

      Winston Bryant, Att’y. Gen., by: Catherine Templeton, Asst. Att’y Gen., for respondent.
   Jack Holt, Jr., Justice.

This is a petition for writ of

prohibition filed on behalf of Mark Turbyfill, a defendant charged with felony theft of property, seeking to prevent his trial from taking place. We' grant the writ.

With the filing of the charge against Turbyfill, the one year time period for a speedy trial began on July 22, 1991. Ark. R. Crim. P. 28.2(a). The state then had twelve months to bring Turbyfill to trial assuming there were no excludable periods under Ark. R. Crim. P. 28.3, or by July 21,1992. Ark. R. Crim. P. 28.1. Turbyfill argues that the resetting of the trial from its original date of June 30, 1992, to July 27, 1992, without appropriate orders or docket entries, violates the speedy trial rule because it falls outside the one year period to perfect trial. We agree.

The dates pertinent to the “speedy trial” issue are as follows:

July 22, 1991 Felony Theft of Property Charges Filed
March 19, 1992 Letter from Judge Cole setting original trial date for June 30, 1992
July 20, 1992 Letter from Judge Cole resetting trial date to July 27, 1992
July 23, 1992 Turbyfill’s Motion to Dismiss on speedy trial grounds
July 28, 1992 Order dated July 27 filed tolling time for speedy trial from July 27, 1992, until disposition of Motion to Dismiss and for reasonable time thereafter
October 20, 1992 Order filed denying Motion to Dismiss and setting trial for December 29, 1992

The parties entered of record the following stipulations:

1. On July 22,1991, the State of Arkansas filed felony theft of property charges against Mark Turbyfill under the above style. Mr. Turbyfill entered a not guilty plea in the presence of his attorney on August 3, 1991.
2. This case was first set for trial on June 30,1992. The defendant and his attorney appeared in the Circuit Court of Saline County, Arkansas, at 9 a.m., on June 30, 1992, ready for trial. On that date, that is, June 30,1992, the case of State of Arkansas v. Carl Meny was in progress, and continued through the next day, Wednesday, July 1,1992. On the morning of June 30,1992, when the defendant and his attorney appeared ready for trial, the case of State of Arkansas v. Mark Turbyfill, CR91 -246, was not called, no motion for a continuance was filed by the State, and neither the defendant nor his attorney was notified prior to that date of any continuance, conflict in scheduling, or request for continuance. No docket entry or order was entered at that time reflecting the removal of State of Arkansas v. Mark Turbyfill, CR91-246, from the trial docket. The Turbyfill case was reset for trial on July 27, 1992. The defendant filed a Motion to Dismiss for lack of a speedy trial on July 23, 1992. At no time between the filing of the charges on July 22, 1991, and the date of the filing of the Motion to dismiss for lack of a speedy trial, that is, July 23, 1992, did the defendant request a continuance.

These stipulations fulfill our requirement that Turbyfill show that he was not brought to trial within our one year limit, at which time the burden of proof shifted to the State to prove that the delay in bringing the defendant to trial was for good cause or was legally justified. Novak v. State, 294 Ark. 120, 741 S.W.2d 243 (1987); Williams v. State, 290 Ark. 286, 718 S.W.2d 935 (1986), cert. denied, 481 U.S. 1068 (1987).

On July 23, Turbyfill filed a Motion to Dismiss on speedy trial grounds. The trial court responded on October 20 with the following findings:

1. The changes [sic] were filed on July 22, 1991. Therefore the speedy trial time was at least through July 21, 1992.
2. This case was set for jury trial on June 30, 1992. This case was continued because another criminal case (State v. Meny) began on June 29, 1992 and did not end until July 1, 1992. Therefore, the delay was legally justified.
3. No order was entered or docket entry made in the present case noting the continuance. Both docket entries and judgments and trial records were made in State v. Meny showing the dates of that trial. The defendant in this case stipulates he was aware of the reason for the delay at the time of the delay. Therefore, an adequate official record of delay was made.
4. This case was re-set for trial on July 27, 1992. Therefore, the resetting was diligent and without undue delay. The lapse of time is justified.
Motion to dismiss is denied. The case is set for jury trial on December 29, 1992 at 9:00 a.m.

This Court will not grant a writ of prohibition unless it is clearly warranted. Leach v. State, 303 Ark. 309, 311, 796 S.W.2d 837, 838 (1990). Prohibition is an extraordinary writ and is never issued to prohibit a trial court from erroneously exercising its jurisdiction, only where it is proposing to act in excess of its jurisdiction. Id. at 312, 796 S.W.2d at 838 (quoting Abernathy v. Patterson, 295 Ark. 551, 750 S.W.2d 406 (1988)). Arkansas R. Crim. P. 28.1 is jurisdictional inasmuch as it requires a defendant to be brought to trial within twelve months or be absolutely discharged pursuant to Ark. R. Crim. P. 30.1(a). Callender v. State, 263 Ark. 217, 219, 563 S.W.2d 467, 468 (1978). Further, a writ of prohibition is proper to prevent a court from exercising a power not authorized by law, and there is no other remedy available. Id. See Glover v. State, 307 Ark. 1, 817 S.W.2d 409 (1991) (writ of prohibition granted where defendant’s right to speedy trial was violated).

We agree with Turbyfill that no proper continuance indicating the reasons for the delay was granted by the trial court at the original trial date and, under the facts of this case, his reliance on Hicks v. State, 305 Ark. 393, 808 S.W.2d 348 (1991), is well placed.

In Hicks, the trial court waited eight days after deciding to continue the case to note the continuance on its docket. In finding the trial court’s order untimely and contrary to the intent of Ark. R. Crim. P. 28.3(b) and 28.3(i), we stressed that, “a trial court should enter written orders or make docket notations at the time continuances are granted to detail the reasons for the continuances and to specify, to a day certain, the time covered by such excluded periods.” Hicks, 305 Ark. at 397, 808 S.W.2d at 351 (alternation in original). See McConaughy v. State, 301 Ark. 446, 784 S.W.2d 768 (1990); Cox v. State, 299 Ark. 312, 772 S.W.2d 336 (1989).

Here, the trial court’s error was even more serious.

The record before us does not provide any information as to the whereabouts of the judge assigned to this case on June 30, the date set for Turbyfill’s trial. At most, it appears that the Saline County .Circuit Court room was being utilized by another judge, who was serving on special assignment for the State of Arkansas v. Carl Meny, and that the Meny trial concluded July 1. Obviously, the trial judge to whom this case was assigned could have made appropriate docket entries either before the Meny trial reconvened on June 30 or at a recess in that trial. At the least, the trial court could have commenced Turbyfill’s trial on July 2, after the conclusion of the Meny trial, or, on that date made appropriate docket entries giving reasons for the delay and a date certain for a new trial. For the trial court to wait some twenty-eight days after Turbyfill appeared for trial before making any docket entry whatsoever does not satisfy the requirements of Ark. R. Crim. P. 28.3 and Hicks.

Turbyfill’s right to a speedy trial was violated. We grant the writ of prohibition.


author: Robert H. Dudley, Justice.

text:
    Jay STRING d/b/a Quality and Satisfactory Drywall Finish v. J.K. KAZI d/b/a J/Kazi Construction Company
    92-826
    846 S.W.2d 649
    Supreme Court of Arkansas
    Opinion delivered February 8, 1993

      Robert F. Meurer, for appellant.

      Zachary P. Muncy, for appellee.
   Robert H. Dudley, Justice.

The plaintiff filed this suit on January 22,1992, and service of process was had on January 27, 1992. On February 19, 1992, the defendant filed an answer and counterclaim that is in the nature of a set-off. On February 21, 1992, the trial court granted a default judgment for the full amount of damages prayed. The defendant moved to have the default judgment set aside, and the plaintiff moved to strike the counterclaim. On April 17,1992, which was within ninety days of the default judgment, the trial court refused to set aside the default judgment as to liability, but did set it aside as to damages and refused to strike the counterclaim. The defendant seeks to appeal, even though the issue of damages and the counterclaim remain to be tried before there can be a final order.

We have frequently held that we will not decide the merits of an appeal when the order appealed from is not a final order. Sevenprop Assocs. v. Harrison, 295 Ark. 5, 746 S.W.2d 51 (1988); Tapp v. Fowler, 288 Ark. 70, 702 S.W.2d 17 (1986); McIlroy Bank and Trusty. Zuber, 275 Ark. 345, 629 S.W.2d 304 (1982). In each of these cases we stated that in order for a judgment to be appealable, it must dismiss the parties or conclude their rights to the subject matter in controversy.

Appeal dismissed.

Hays and Corbin, JJ., dissent.


author: Steele Hays, Justice.

text:
    Sherry EARNEY v. Sybil Estelle SHARP
    92-886
    646 S.W.2d 649
    Supreme Court of Arkansas
    Opinion delivered February 8, 1993
    [Rehearing denied March 15, 1993.]

      Malcolm R. Smith, P.A., for appellant.

      Wright, Lindsey & Jennings, by: Glen W. Sharp, for appellee.
   Steele Hays, Justice.

This is a second appeal and, like the first, involves the sufficiency of the proof of attestation of a will. When the case came before us initially, we held the probate judge had erred in admitting a will to probate without the testimony of two attesting witnesses. See in the Matter of the Estate of Sharp, 306 Ark. 268, 810 S.W.2d 952 (1991). The order was reversed and the case was remanded to the probate court for further proceedings.

On remand, the proponents of the will, over the objection of the contestants, undertook to present further evidence of attestation and the probate judge admitted the proof and again accepted the will for probate. The contestants have appealed, arguing the law of the case. Because we must sustain that contention the order is reversed and the action remanded.

Our opinion in the first appeal states that although three witnesses testified concerning the proffered will, one stood to benefit under the will. Another did not recognize the signature of the purported testator and had no recollection concerning the manner of its signing. Thus, only one of the three met the requirements of Ark. Code Ann. § 28-40-117(a) (1987).

Ordinarily in that situation the disposition would be a reversal and dismissal of the action. But this was a probate case and the matter was necessarily remanded for a continuation of proceedings affecting the administration of the estate of the decedent or, for that matter, the possibility that a different will would be proffered. The two appeals of Standridge v. Standridge, a probate case found at 298 Ark. 494, 769 S.W.2d 12 (1989) and at 304 Ark. 364, 803 S.W.2d 496 (1991), provide an apt illustration. In the first appeal, the validity of a marriage between Andy and Carroll Standridge was the issue. That dispute was resolved by the decision of this court in Standridge I and, under the doctrine of the law of the case, was not open to further development on remand. This was explained in Standridge II:

Whatever was before this Court, and is disposed of, is considered as finally settled. The inferior court is bound by the judgment or decree as the law of the case, and must carry it into execution according to the mandate. The inferior court cannot vary it for any other purpose than execution. It can give no other or further relief as to any matter decided by the Supreme Court, even where there is an error apparent; or in any manner intermeddle with it further to execute the mandate, and settle such matters as have been remanded, not adjudicated by the Supreme Court. [Emphasis in original.]

In Sharp I nothing in the language of that opinion suggests the issue of attestation was not fully developed or that additional evidence concerning the will was contemplated. The import of the opinion, tacit but nonetheless implicit in the holding itself, was that there had been a failure of proof on behalf of the proffered will. That being so, the law of the case applies and the decision is final. Milsap v. Holland 186 Ark. 895, 56 S.W.2d 578 (1933).

Reversed and remanded for further proceedings relative to the estate of Glenn W. Sharp, deceased.


author: David Newbern, Justice.

text:
    Edward SANDERS v. STATE of Arkansas
    CR 92-191
    846 S.W.2d 651
    Supreme Court of Arkansas
    Opinion delivered February 8, 1993

      Larry W. Horton, for appellant.

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

This is an appeal of a conviction for driving while intoxicated (DWI). The appellant, Edward Sanders, argues that one may not be convicted of DWI while operating a vehicle on a private roadway. We affirm the conviction.

Sanders was traveling on a private road owned by International Paper in Hot Spring County when he ran off the road into a ditch. A passing citizen called a wrecker and the Hot Spring County Sheriff s Department. Sheriff Cook arrived shortly thereafter and placed Sanders under arrest for DWI.

Sanders was convicted in Malvern Municipal Court, and he appealed to Hot Spring County Circuit Court. In a motion to dismiss he contended that, as DWI is a “traffic offense,” it cannot be committed on private property. The Trial Court denied the motion, holding that one who operates or is in control of a vehicle on a private roadway open to the public may be guilty of DWI.

The State concedes that DWI is a traffic offense, and we have so held. In Robinson v. Sutterfield, 302 Ark. 7, 786 S.W.2d 572 (1990), we wrote:

The term “traffic offense” refers to a violation of a law regulating the operation of a vehicle upon a roadway. The offense “driving while under the influence of intoxicants” is a violation of a law regulating the operation of a vehicle upon a roadway. Thus, “driving while under the influence” is a traffic offense.

Our reason for considering the issue there was to determine whether a juvenile court could have jurisdiction of a traffic offense. We held that it could not because the statutes setting out the jurisdiction of the municipal court did not provide for it. In Weatherford v. State, 286 Ark. 376, 692 S.W.2d 605 (1985), we referred to DWI as a “misdemeanor traffic offense;” however, the question whether it was a “traffic offense” was not at issue.

While we described “traffic offense” in the Robinson case as one involving use of a roadway, we said nothing to limit “traffic offenses” to only those involving use of a roadway, and we certainly did not limit the term to offenses committed on a public roadway. Nor does it follow that, because DWI is a traffic offense, it cannot be committed on private property. Arkansas Code Ann. § 5-65-103(a) (1987) states, “It is unlawful . . . for any person who is intoxicated to operate or be in actual physical control of a motor vehicle.” It contains no location or geographic element, and we cannot read it to add as an element of DWI that the accused have operated or had control of a vehicle on a public highway. Absent such a provision, we note that Ark. Code Ann. § 5-l-104(a) (1987) provides that one may be convicted of violation of a law in this State if the proscribed conduct occurs in this State.

In support of his argument that a traffic offense may not be committed on private property, Sanders relies exclusively on our Court of Appeals’ decision in Hartson v. City of Pine Bluff, 270 Ark. 748, 606 S.W.2d 149 (Ark. App. 1980), which is easily distinguishable. Hartson was convicted of failure to yield the right of way as the result of an accident which occurred in a private parking lot. The Court of Appeals reversed and dismissed the conviction, holding Hartson had not violated the Statute.

The Court of Appeals recognized that a Statute, now codified as Ark. Code Ann. § 27-49-211 (1987), defines “right of way” as “The privilege of the immediate use of the highway.” As Hartson was on a private parking lot, not a highway, she could not have failed to yield to a person who had the privilege of the immediate use of the highway. The Hartson case holds that a person cannot be convicted of failure to yield the right of way unless the right of way is acquired by use of a public highway. It does not imply, as Sanders would suggest, that a traffic offense cannot be committed on private property.

The cases considering the question whether DWI may be committed on private property are collected in an annotation entitled, “Applicability, to Operation of Motor Vehicles on Private Property, of Legislation Making Drunken Driving a Criminal Offense,” 29 ALR3d 938 (1970). The text and supplement cite cases from 21 states which have statutes, like § 5-65-103(a), which make no reference to “highway,” “public roadway,” etc. In each of them it was held that the offense could be committed on private property. No case to the contrary is cited, and we know of none. Language from the Minnesota Supreme Court seems appropriate:

It would be absurd to say that a person driving or operating a motor vehicle while intoxicated or under the influence of intoxicating liquor or narcotic drugs was not guilty of a violation of the statute under consideration merely because at the moment such person was stopped or apprehended he happened to be either on or near a private roadway instead of on a public street or highway, because no one can say when such a person, while in a confused or befuddled state of mind as a result of his or her condition, will leave the private road and pursue a mad, zigzagging course down a public highway or street, with the resulting damage and horrors so frequently reported.

State v. Carroll, 225 Minn. 384, 31 N.W.2d 44 (1948).

Affirmed.


text:
    UNION NATIONAL BANK of Little Rock v. Kemal KUTAIT
    92-246
    846 S.W.2d 652
    Supreme Court of Arkansas
    Opinion delivered February 8, 1993
    [Rehearing denied March 15, 1993.]

      Shults, Ray & Kurrus, by: Thomas Ray, for appellant.

      Cearley Law Firm, by: Robert M. Cearley, Jr:, and Owings Law Firm, by: Steven A. Owings, for appellee.
   David Newbern, Justice.

This is an abuse of process case. It was brought by the appellee, Dr. Kemal Kutait, against the appellant, Union National Bank of Little Rock (the Bank). Dr. Kutait alleged the Bank was liable for malicious prosecution as well as abuse of process due to its unjustified action against him for $5 million alleging improprieties and dishonesty in a business relationship. The Trial Court directed a verdict on the malicious prosecution aspect of the claim, finding that the Bank’s action against Dr. Kutait was, although unsuccessful, commenced with probable cause. The abuse of process claim was tried, and a jury found in favor of Dr. Kutait. The Bank contends the evidence does not support an abuse of process judgment as there was no “process” issued subsequent to the complaint it filed against Dr. Kutait. We agree with the Bank’s argument, and thus we must reverse and dismiss the case.

The Bank’s suit against Dr. Kutait was filed August 7,1987, asserting (1) breach of a contract of guaranty on a loan to Leird Church Furniture Manufacturing Co. (Leird); (2) fraud; (3) intentional tortious interference with a guaranty contract between the Bank and the Economic Development Administration (EDA); (4) intentional interference with loan agreements between the Bank and Leird; and (5) breach of Dr. Kutait’s duty as a director of Leird.

In 1981 the Bank loaned money to Dr. Kutait’s brother, Ed Kutait, to start Leird, a furniture manufacturing business. Dr. Kutait guaranteed a portion of the loan and served on Leird’s board of directors. Conflicts arose between the Bank and Ed Kutait. Leird filed for bankruptcy in 1984. At that time Ed Kutait and others were suing the Bank in a federal court for $ 15 million in damages upon various allegations, including fraud, arising out of their business relationship.

During the federal litigation the Bank deposed Dr. Kutait and learned that he was supporting his brother financially. The 1987 suit was filed shortly after the deposition. The Bank’s claims against Dr. Kutait were all arguably time barred or lacking in a factual basis. Dr. Kutait contended the claims accusing him of dishonesty and deceit caused distress which was exacerbated by the $5 million in damages sought in the suit. His counsel sought to have the case dismissed for lack of a sound legal basis. During the process of negotiations counsel for the Bank allegedly suggested it would dismiss the suit if Dr. Kutait would influence his brother to drop his federal court claim against the Bank.

Dr. Kutait refused to attempt to influence his brother. On August 25, 1988, shortly before trial the Bank dropped its claim against Dr. Kutait by taking a voluntary nonsuit. The Bank could have refiled its claim against Dr. Kutait within one year, but it did not do so. Dr. Kutait filed this malicious prosecution and abuse of process action two months after the federal court jury returned a verdict for Ed Kutait against the Bank in excess of $5 million. He sought compensatory and punitive damages arguing that the institution of the 1987 lawsuit was without probable cause.

At the trial, testimony was presented supporting the allegation that the Bank’s counsel said the suit against Dr. Kutait would be dropped if he used his influence to get his brother to drop his federal court claim.

The Bank raises several arguments. We need only address the first of them, i.e., that the Court erred in refusing to grant its motion for a directed verdict on the abuse of process claim.

Abuse of process

The nature of abuse of process was considered in Smith & McAdams Inc. v. Nelson, 255 Ark. 641, 501 S.W.2d 769 (1973). We quoted with approval from W. Prosser, Law of Torts § 121 (4th Ed. 1971), three requirements to sustain an abuse of process action. There must be:

(1) a legal procedure set in motion in proper form, even with probable cause, and even with ultimate success, but, (2) perverted to accomplish an ulterior purpose for which it was not designed, and (3) a wilful act in the use of process not proper in the regular conduct of the proceeding.

In that case and others we have determined that abuse of process is somewhat in the nature of extortion or coercion. The key is improper use of process after issuance, even when issuance has been properly obtained. In the Smith & McAdams, Inc., case we stated, “The test of process abuse is not whether the process was originally issued with malice and without probable cause. The remedy in that situation would be an action for malicious prosecution which was asserted in the case at bar.” In Cordes v. Outdoor Living Ctr., Inc., 301 Ark. 26, 781 S.W.2d 31 (1989), we reiterated that it does not matter, when considering abuse of process, whether the legal procedure set in motion was indeed founded upon probable cause because the second requirement is that the procedure must have been perfected to accomplish an ulterior purpose for which it was not designed.

The Bank argues that the evidence presented failed to support all the elements of the claim. We agree there was no “process” abused subsequent to the initiation of the action and, therefore, the third of the elements of the claim failed. The only process issued in the 1987 suit was the summons which accompanied the complaint served on Dr. Kutait. It was the fact of the filing of the lawsuit against him which formed the basis for Dr. Kutait’s complaint and not a specific abusive use of any “process” like the issuance of summons, serving of an arrest warrant, or improper actions in the process used to obtain discovery.

In each of our prior cases we have had some specific act of this nature to consider in determining that the elements of abuse of process were met, and we have not extended the tort to include the filing of a vexatious action. See, e.g., Culpepper v. Smith, 302 Ark. 558, 792 S.W.2d 293 (1990) [arrest warrant]; Cordes, supra [arrest warrant]; Peterson v. Worthen Bank, 296 Ark. 201, 753 S.W.2d 278 (1988) [writs of garnishment]; Smith & McAdams, Inc. v. Nelson, 255 Ark. 641, 501 S.W.2d 769 (1973) [arrest warrant]; Lewis v. Burdine, 240 Ark. 821, 402 S.W.2d 398 (1966) [writ of garnishment]; and Baxley v. Laster, 82 Ark. 236, 101 S.W. 77 (1907) [writs of garnishment].

In Farm Service Cooperative v. Goshen Farms, 267 Ark. 324, 590 S.W.2d 861 (1979), we specifically rejected a claim that the filing of a vexatious lawsuit was sufficient to establish the action. We noted with approval a description of abuse of process as “a narrow tort,” and we made it clear that evidence of filing of vexatious litigation is not sufficient. In this case, we cannot even say we are dealing with a vexatious action as the Trial Court found it was filed with probable cause and that finding has not been questioned on appeal.

Dr. Kutait urges an expansion of our definition of abuse of process to include the filing of parallel litigation to accomplish an ulterior coercive purpose. He cites a variety of cases from other jurisdictions generally supportive of his position that the filing of litigation for a perverse purpose is sufficient process. The Bank counters with citations from other jurisdictions which hold to the contrary and reject the mere filing of litigation as satisfying the requirements for abuse of process.

We need not resort to the law in other jurisdictions as the opinion and holding in the Farm Service Cooperative case provide ample guidance. To sustain an abuse of process claim, there must have been issuance of process subsequent to initiation of suit, and the additional process must have been utilized for a coercive or improper purpose. While that may seem a mechanical sort of rule, this case demonstrates the wisdom of it. Were we to hold that the filing of the action satisfied the “process” requirement we would put ourselves in the position of holding that one may be liable for the filing of an action with probable cause. Even if the Bank had an ulterior motive for suing Dr. Kutait, and even if that motive had been improper, we would not wish to say that any citizen is precluded from bringing an action when there is probable cause to do so. Abuse of process issued thereafter is a different matter, and that did not occur here.

Reversed and dismissed.


author: Tom Glaze, Justice. Steele Hays, Justice,

text:
    Barry AARON v. STATE of Arkansas
    CR 92-356
    846 S.W.2d 655
    Supreme Court of Arkansas
    Opinion delivered February 8, 1993

      James E. Davis, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant was convicted of kidnapping and rape and sentenced to respective terms of forty years and life imprisonment to be served consecutively. He raises four points for reversal and one has merit. We consider that point first.

Appellant argues the trial court erred by overruling appellant’s objections to five separate comments made by the prosecutor during closing argument that appellant submits referred to his having failed to testify. The trial court also denied appellant’s request for mistrial after the prosecutor’s argument. The text of the prosecutor’s reported comments is as follows:

Ladies and gentlemen, there’s not been one word of testimony that this young lady ever agreed or consented to have sex with that defendant.
***
There’s no doubt and no, and no dispute from the testimony and the evidence that Karol Whitecotton never consented to sexual intercourse with this defendant.
***
Karol Whitecotton testified to it and there’s been no evidence to refute what she said sexual intercourse occurred.
***
There’s no dispute that he had sexual intercourse.
***
You heard Karol Whitecotton’s testimony again that the defendant told her if she didn’t cooperate that he’d have to kill her. There’s been no testimony to rebut that or no testimony inconsistent with that.
***

The law is settled that a direct comment by the government on a defendant’s failure to testify violates the fifth amendment privilege against self-incrimination. Griffin v. California, 380 U.S. 609 (1965). However, in Adams v. State, 263 Ark. 536, 566 S.W.2d 387 (1978), this court reviewed past cases and recognized its difficulty in determining the extent and latitude a prosecuting attorney is permitted in arguing to the jury the posture of the state’s case or in summarizing the evidence when a defendant has failed to take the witness stand. Speaking to this point, the Adams court said as follows:

We do not consider the statement “There has been absolutely no testimony to contradict that” as a prejudicial comment upon appellant-defendant’s failure to testify, inasmuch as counsel for appellant-defendant, indeed, was afforded the opportunity to cross-examine all of the state’s witnesses for the purpose of developing any inconsistencies or contradictions. Therefore, if counsel for appellant-defendant discovered no contradictions in the state’s case, indeed, the prosecuting attorney had every right to call the jury’s attention that there existed no contradictions in the state’s case. We cannot visualize any valid objection to a remark of this nature when it cannot be construed as calculated to call a jury’s attention to the fact that a defendant has failed to take the witness stand.

After the foregoing discussion, the court reversed the trial court’s ruling denying a mistrial. It then concluded that the prosecutor’s comments before it, namely, “To convict him (the defendant) you don’t have to disbelieve any part of their case, because what did the defense, how many witnesses did the defense put on for your consideration?” can be characterized only as calling to the jury’s attention that Adams had not taken the witness stand to testify.

The court’s decision in Bailey v. State, 287 Ark. 183, 697 S.W.2d 110 (1985), relied heavily on the Adams holding when it found Bailey’s fifth amendment privilege had been violated by the prosecutor’s remarks. There, the prosecuting witness testified Bailey took her to his motel room, bound her and raped her several times over a twenty-four-hour period. Two other women testified they saw Bailey and the prosecuting witness near the motel. One said that Bailey and the alleged victim were arm-in-arm and the other said that nothing out of the ordinary occurred. In his closing argument, the prosecutor said, “The only thing that we’ve heard here today about which (sic) occurred in that room is from [the prosecuting witness]. She’s the only person. These two ladies that were called, they weren’t in that room.” In reversing and holding these remarks by the prosecutor were grounds for a mistrial, the Bailey court reasoned that, by saying, “The only thing that we’ve heard today about what happened in that room is from the prosecuting witness,” he must have been referring to Bailey’s failure to testify. No evidence showed the other women had been in the room.

In deciding as we have in Adams and Bailey, the court has adopted a test like the one definitively set out and followed by the 7th Circuit Court of Appeals in Freeman v. Lane, 962 F.2d 1252 (7th Cir. 1992), which states the rule as follows:

Our cases have recognized that a prosecutor may not comment concerning the uncontradicted nature of the evidence when “it is highly unlikely that anyone other than the defendant could rebut the evidence.” United States v. DiCaro, 852 F.2d 259, 263 (7th Cir. 1988). In this situation “when a prosecutor refers to testimony as uncontradicted where the defendant has elected not to testify and when he is the only person able to dispute the testimony, such reference necessarily focuses the jury’s attention on the defendant’s failure to testify and constitutes error.” United States v. Buege, 578 F.2d 187, 188 (7th Cir.), cert. denied, 439 U.S. 871, 99 S.Ct. 203, 58 L.Ed.2d 183 (1978). (Emphasis added.) (A similar rule has been adopted in the First, Fifth and Tenth Circuits; see Ruiz v. United States, 365 F.2d 103 (10th Cir. 1966); Desmond v. United States, 345 F.2d 225 (1st Cir. 1965); Garcia v. United States, 315 F.2d 133 (5th Cir. 1963), cert. denied, 375 U.S. 855 (1963); see also Note, Criminal Procedure Veiled Reference to Failure of Defendant to Testify Constitutes Reversible Error, 8 UALR L.J. 747 (1985)).

In the present case, the appellant and his victim were alone in his truck when he purportedly raped her. Thus, the prosecutor’s comments that there is no evidence that the victim ever consented to have sex with the appellant necessarily focused on and called the jury’s attention to appellant’s failure to testify because it was highly unlikely that anyone other than appellant could refute such evidence. The same can also be said regarding the prosector’s remark that no testimony was offered to rebut the prosecutrix’s testimony that if she did not cooperate, appellant would kill her. Accordingly, we reverse on this point.

The second issue argued by appellant is the trial court should have granted a mistrial when the prosecutor in his closing argument said, “The victim was telling the truth.” Appellant’s counsel objected to this remark, and the trial court sustained the objection. The trial court further instructed the jury that it was the province of the jury to determine the facts. Despite the trial court’s ruling and admonishment, appellant asked for a mistrial which was promptly denied. We have held that a mistrial will only be declared if any possible prejudice cannot be removed with an admonition to the jury. Ashley v. State, 310 Ark. 575, 840 S.W.2d 793 (1992). We hold the trial court’s admonition was sufficient and the trial court did not abuse its discretion in denying appellant’s motion.

In his third argument, appellant urges the trial court erred in submitting the kidnapping charge to the jury because the evidence or restraint needed for kidnapping did not exceed that normally associated with rape. Under the facts of this case, a person commits the offense of kidnapping if, without consent, he restrains another person so as to interfere substantially with his liberty with the purpose of: inflicting physical injury upon him, or of engaging in sexual intercourse, deviate sexual activity, or sexual conduct with him. Ark. Code Ann. § 5-11-102(a)(4) (1987). The court has stated that only when the restraint exceeds that normally incidental to the crime that the rapist should be also subject to prosecution for kidnapping. The purpose of the restraint may be inferred from circumstantial evidence. Fairchild v. State, 305 Ark. 406, 808 S.W.2d 743 (1991).

Here, appellant met the prosecuting witness and her two teenage friends in a street on Halloween night when appellant was dressed in costume, scaring children by swinging an axe with fake blood on it. The teenagers agreed to accompany him to a haunted house. Instead, appellant stopped at two liquor stores before driving to a field. While parked in the field, appellant threatened the teenagers with a knife and asked the two teenage girls to take off their clothes. He then said that he was merely trying to scare them and began driving around. The teenagers kept telling the appellant that they needed to go home. When appellant stopped his vehicle again two of the teenagers jumped out, but he hung onto the prosecutrix’s arm so she could not escape. Appellant drove to a desolate dirt road where the prosecutrix said the appellant raped her. The prosecutrix testified that after the rape occurred appellant threatened to kill her, but she placated appellant by telling him she hated her mother and she might want to marry him. Appellant drove back into town and stopped twice for gasoline. At the first stop, he saw the prosecutrix trying to get help, and he jumped into the vehicle, pulled her hair and told her to shut up. At the second stop, the prosecutrix managed to escape and obtain help. Clearly, these facts show sufficient evidence of restraint to exceed the restraint necessary to prove the crime of rape. See Lewis v. State, 295 Ark. 499, 749 S.W.2d 672 (1988); Jones v. State 290 Ark. 113, 717 S.W.2d 200 (1986); cf. Shaw v. State, 304 Ark. 381, 802 S.W.2d 468 (1991).

In his final point, appellant recognizes this court has decided cases holding that a person can be convicted of both rape and kidnapping based upon the same criminal episode. Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980); Conley v. State, 270 Ark. 886, 607 S.W.2d 328 (1980). He argues, however, if a person employs no more than the minimum restraint that normally accompanies rape, it constitutes double jeopardy to punish him also for kidnapping. As discussed above, we conclude the restraint employed by appellant exceeded that required in the commission of rape. Therefore, appellant’s argument is without merit.

We affirm on all arguments but point one, which requires us to reverse and remand for a new trial. Pursuant to Ark. Sup. Ct. R. 11(f), we have examined the record and find no other rulings constituting prejudicial error.

Hays and Corbin, JJ., dissent.

Steele Hays, Justice,

dissenting. It is unfortunate that the

majority has passed up an opportunity to alleviate the uncertainty left in the wake of Bailey v. State, 287 Ark. 183, 697 S.W.2d 110 (1985), of which it has been said, “The court’s reasoning and decision in Bailey are flawed in two significant respects and represent a marked departure from its prior holdings.” 8 UALR Law Journal 746, 752 (1985).

Without specifying the offending words, the majority lists five excerpts from the remarks of the prosecutor during closing argument. Two of them (No.’s 3 and 4 in the numerical order of listing) can be readily disposed of as immaterial, if not entirely appropriate to the proof and admitted implicitly by the defense. A forensic serologist testified to multiple testing procedures reflecting the presence of motile sperm in the victim’s vaginal canal. In fact, the defensive strategy throughout was based on the victim’s age, sixteen, and that intercourse was consensual.

As to the remaining three excerpts, the majority does not specify what the prosecutor said that should not have been said. But the sum and substance, as readers can judge for themselves, is that the evidence or testimony that the victim did not consent to sexual intercourse is “not disputed” or is “unrefuted.”

The rationale for the holding in this case is built on Bailey v. State, supra, and Adams v. State, 263 Ark. 536, 566 S. W.2d 387 (1978), on which the Bailey majority “heavily relied” (see the majority opinion). Oddly enough, Adams tells us it is perfectly permissible for the prosecutor to say “there has been absolutely no testimony to contradict that” and the prosecuting attorney “had every right to call to the jury’s attention that there existed no contradictions in the state’s case. We cannot visualize any valid objection to a remark of this nature when it cannot be construed as calculated to call a jury’s attention to the fact that a defendant has failed to take the witness stand.”

The offending words in Adams were, “How many witnesses did the defense put on for your consideration?” Of course, nothing in that vein was said in this case. The majority sees that as comparable to what was said in Bailey, i.e., “The only thing we’ve heard today about what happened in that room is from the prosecuting witness.” Again, where is the comparable language in this case?

The Aaron majority does attempt to give some degree of guidance to the bench and bar by adopting the formula approved in United States v. DiCaro, 852 F.2d 259, 263 (7th Cir. 1988) to the effect that when a defendant elects not to testify and when he is the only person able to dispute the testimony of the state, the prosecutor may not focus the jury’s attention on the defendant’s failure to testify.

The DiCaro formula may be useful in some cases, but it will hardly serve in all cases, as the comments must be viewed in context of the entire case. See 3 LaFave, Criminal Procedure § 23.4 n.32.1 (Supp. 1991). So it is in the case before us, where the defensive strategy, though calling no witnesses, was aimed at creating an inference that the victim consented. In opening statement counsel for the appellant twice told the jury that inasmuch as the victim was sixteen years old, no crime occurred if she consented to sexual intercourse. The clear and focused aim of counsel’s cross examination was to emphasize that the victim and her two friends were on a lark, drinking Vodka, suggesting the victim wanted to leave her companions, while urging the appellant to take her to Louisiana to get married. The prosecutor’s remarks in closing were made in direct response to that strategy:

Mr. Davis had said that if Karol Whitecotton consented to sexual intercourse no crime occurred. That’s an issue. Again that applies to the offense of rape. Judge has instructed you that in deciding the issues you should consider the testimony of the witnesses and the exhibits received in evidence. Ladies and gentlemen, there’s not been one exhibit and there’s not been one word of testimony that this young lady ever agreed or consented to have sex with that defendant.

In accord, United States v. Kubitsky, 469 F.2d 1253 (1st Cir. 1972), where the court found the prosecutor’s comments proper and stated: “ Since the prosecutor found himself in a situation where there are no defense witnesses at all, it was difficult to comment upon the case without at least indirectly touching upon that fact.”

In short, I doubt that this decision provides any clearer standard than did Bailey, or that it is possible to formulate an objective guide for what constitutes a “veiled reference,” as this case and many others demonstrate. As the majority is searching elsewhere for guidance, it should look at the case of People v. Hunter, 464 N.E.2d 659 (Ill. App. 1 Dist. 1984) which is in line with the comments in Adams and our previous cases:

The prosecution may, however, refer to the fact that the testimony of the State’s witnesses is uncontradicted even though the defendant would be the only person who could have contradicted it (citations), for this involves no more than an accurate summary of the evidence. It is only when the “thrust [of the argument] is the defendant’s nonappearance rather than the strength of the State’s case” that commentary on the uncontradicted nature of the evidence is deemed improper. . . .or where the evidence in fact was not uncontradicted, but the prosecutor stated that ‘‘there was no defense in this case” (e.g., People v. Escobar). [My emphasis.]

I suggest that is a considerably better standard than we are left with since Bailey and I commend it to the majority in lieu of what is now offered.

Corbin, J., joins in this dissent.

       The Bailey majority gave lip service to that same formula yet disregarded the fact that the victim testified that Bailey’s brother, Willie Foreman, was in the motel room during the time she was held against her will.