Fariss v. State, CR

Citation303 Ark. 541,798 S.W.2d 103
Decision Date05 November 1990
Docket NumberNo. CR,CR
PartiesJoe D. FARISS, Appellant, v. STATE of Arkansas, Appellee. 90-90.
CourtSupreme Court of Arkansas

Thomas A. Martin, Jasper, for appellant.

Sandra Bailey Moll, Asst. Atty. Gen., Little Rock, for appellee.

PRICE, Justice.

The issue in this case is whether the double jeopardy rights of the appellant will be violated if he is required to stand trial for incest. Appellant also relies upon res judicata and collateral estoppel as a bar to his prosecution. We hold that jeopardy did not attach by virtue of the prior civil proceeding and the doctrines of res judicata and collateral estoppel do not preclude his prosecution. Accordingly, we affirm the denial of the appellant's motion to dismiss.

The appellant was charged by information alleging that on or about September 26, 1989, he committed incest with his adopted daughter in violation of Ark.Code Ann. § 5-26-202 (1987). The appellant filed a motion to dismiss the information prior to trial, attaching a copy of an order entered by the juvenile division of the chancery court in a case styled "Arkansas Department of Human Services v. Versalee Fariss, Mother, and Joe Fariss, Father of Cynthia Fariss." The order provided that the Arkansas Department of Human Services (ADHS) had failed to prove by a preponderance of the evidence its allegations of dependent-neglect, including specific allegations of sexual abuse. This order is the only evidence of the prior proceeding provided us by the appellant. The record here contains a statement by the prosecuting attorney at the pretrial hearing to the effect that the facts and circumstances from the dependent-neglect proceeding were those from which the criminal charge arose. An order was entered by the trial court denying the appellant's motion to dismiss, determining that the prior civil adjudication did not collaterally estop or bar by reason of res judicata the state from prosecuting the appellant for incest. The appellant contends the trial court erred in refusing to apply res judicata and collateral estoppel to the final order of the court in the dependent-neglect proceeding.

In Jones v. State, 230 Ark. 18, 320 S.W.2d 645 (1959), we held an order denying a motion to dismiss an information based upon double jeopardy is an appealable decision.

The Fifth Amendment guarantee against double jeopardy is enforceable against the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). However, where there is no threat of either multiple punishment or successive prosecutions, the double jeopardy clause is not offended. United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975). Jeopardy denotes risk and is traditionally associated with a criminal prosecution. See Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975). It has been held that the risk to which the double jeopardy clause refers is not present in proceedings that are not "essentially criminal." Helvering v. Mitchell, 303 U.S. 391, 58 S.Ct. 630, 82 L.Ed. 917 (1938). Stated another way, the risk to which the term jeopardy refers is that traditionally associated with "actions intended to authorize criminal punishment to vindicate public justice." United States ex rel. Marcus v. Hess, 317 U.S. 537, 63 S.Ct. 379, 87 L.Ed. 443 (1943).

In the case at bar the appellant, his wife and daughter were parties to a civil proceeding brought by ADHS to determine whether the appellant's adopted daughter was dependent-neglected. The order provided that the minor child was not dependent-neglect within the meaning of Arkansas law but that she should not be returned to the home of her parents. A dependent-neglect adjudication is a hearing to determine whether allegations in a petition are substantiated by the proof, Ark.Code Ann. § 9-27-303(5) (Supp.1989), and its thrust is the protection of a juvenile who is at substantial risk of serious harm. We disagree with the appellant's argument on appeal that his prosecution for incest is barred by the dependent-neglect proceeding inasmuch as the appellant simply was not threatened with multiple punishments and, therefore, the double jeopardy clause is not offended.

The appellant has couched his argument in terms of res judicata and collateral estoppel. Res judicata through the doctrines of merger or bar precludes relitigation of a cause of action. See Smith v. Roane, 284 Ark. 568, 683 S.W.2d 935 (1985). We stated in Swofford v. Stafford, 295 Ark. 433, 748 S.W.2d 660 (1988), that:

The claim preclusion part of the doctrine of res judicata bars relitigation of a subsequent suit when (1) the first suit resulted in a judgment on the merits; (2) the first suit was based upon proper jurisdiction; (3) the first suit was fully contested in good faith; (4) both suits involve the same claim or cause of action which was litigated or could have been litigated but was not; and (5) both suits involve the same parties or their privies. Bailey v. Harris Brake Fire Protection Dist., 287 Ark. 268, 697 S.W.2d 916 (1985).

We disagree with the appellant's contention that these five elements are present in the case before us. We cannot say that both suits involve the same claim or cause of action since the appellant has not provided us with a transcript of the dependent-neglect proceeding, and we are not convinced that both actions involve the same parties or their privies. Accordingly, the appellant's prosecution for incest is not barred by the claimpreclusion part of the doctrine of res judicata.

Collateral estoppel bars relitigation between parties of issues actually determined at a previous trial. In the landmark decision of Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), the United States Supreme Court accorded collateral estoppel constitutional dimension by incorporating it into the Fifth Amendment against double jeopardy. The Court held:

Where a previous judgment of acquittal was based upon a general verdict ... [the rule of collateral estoppel] requires a court to 'examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from...

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16 cases
  • Lawrence v. State
    • United States
    • Arkansas Court of Appeals
    • July 8, 1992
    ...that are not "essentially criminal." Helvering v. Mitchell, 303 U.S. 391, 58 S.Ct. 630, 82 L.Ed. 917 (1938); see also Fariss v. State, 303 Ark. 541, 798 S.W.2d 103 (1990). The Supreme Court has observed that probation revocation, like parole revocation, is not a stage of a criminal prosecut......
  • Sherman v. State, CR
    • United States
    • Arkansas Supreme Court
    • September 30, 1996
    ...431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977); Smith v. State, 307 Ark. 542, 821 S.W.2d 774 (1992) (citing Fariss v. State, 303 Ark. 541, 798 S.W.2d 103 (1990) and Jones v. State, 230 Ark. 18, 320 S.W.2d 645 (1959)). Appellant argues that because the motion to dismiss was amenable to i......
  • Hobbs v. State
    • United States
    • Arkansas Court of Appeals
    • October 6, 1993
    ...public justice." United States ex rel. Marcus v. Hess, 317 U.S. 537, 63 S.Ct. 379, 87 L.Ed. 443 (1943). Fariss v. State, 303 Ark. 541, 543-44, 798 S.W.2d 103, 104 (1990). The State contends that the double jeopardy argument was not preserved for appeal because appellant failed to get a defi......
  • Beeman v. Stafford
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • August 1, 1995
    ...majority view of those states that have addressed the issue. See, e.g., Joiner v. State 500 So.2d 81 (Ala.Crim.App.1986); Fariss v. State, 798 S.W.2d 103 (Ark.1990); People v. Percifull, 12 Cal.Rptr.2d 331 (Cal.Ct.App.1992); State v. Powell, 819 P.2d 561 (Idaho 1991); Gregory v. Commonwealt......
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