Appeal from Sebastian Circuit Court; Don Langston, Judge; reversed and dismissed in part, and affirmed in part.
1. CRIMINAL LAW - CONSPIRACY PROSECUTION - INCONSISTENT VERDICTS SEPARATE TRIALS. - The general rule has been that convictions of only one defendant in a conspiracy prosecution will not be upheld when all the other alleged conspirators have been acquitted or similarly disposed of; however, Arkansas adopted the present code in 1975, and joined a substantial minority of jurisdictions, which provide it is no defense that the co-conspirators have been either acquitted or convicted of a different offense.
2. CRIMINAL LAW - CONSPIRACY - INCONSISTENT VERDICTS IN JOINT TRIAL NOT PERMITTED. - Where appellant was convicted of conspiracy but his sole alleged co-conspirator was acquitted of conspiracy charges in a joint trial with appellant, the verdicts were inconsistent, and the conspiracy conviction was reversed on appeal.
3. EVIDENCE - EVIDENCE ADMISSIBLE TO SHOW CULPABLE MENTAL STATE AND FLIGHT TO AVOID ARREST OR TRIAL. - Evidence of a second arrest of appellant where appellant was caught trying to leave the house through the back door after his wife had answered the front door and asked the police to wait, was admissible to show appellant's culpable mental state, and flight to avoid arrest or trial is admissible as a circumstance in corroboration of evidence tending to establish guilt.
4. APPEAL & ERROR - ISSUES RAISED FOR THE FIRST TIME ON APPEAL WILL NOT BE CONSIDERED. - Issues raised for the first time on appeal will not be considered.
5. TRIAL - ARGUMENTS OF COUNSEL - TRIAL COURT HAS WIDE DISCRETION. - The trial court has wide discretion in controlling the arguments of counsel.
The opinion of the court was delivered by: Tom Glaze, Justice.
Appellants, father and son, were [293 Ark Page 542]
charged with attempted kidnapping and conspiracy to commit kidnapping. They were tried jointly before a jury. Ronald Yedrysek, the father, was found guilty on both counts and sentenced to thirty years and fifteen years, respectively, terms to be served consecutively. His son, Jerry, was found guilty of attempted kidnapping, but was acquitted on the conspiracy charge. On appeal, appellant Ronald Yedrysek raises two points for reversal: 1) the court erred in refusing to set aside his conviction for conspiracy to commit kidnapping when his son and sole co-conspirator was acquitted of conspiracy to commit kidnapping; and 2) the court erred in allowing irrelevant, inflammatory testimony of a police officer into evidence.
On appeal, Ronald repeats the argument he made at trial, that where there are only two alleged co-conspirators, it is legally impossible to find one guilty of the conspiracy and acquit the other. He acknowledges the holding in Shamlin v. State, 19 Ark. App. 165, 718 S.W.2d 462 (1986), wherein the court, citing Ark. Stat. Ann. 41-713(2)(c) (Repl. 1977), found no merit in petitioner's argument that his conviction for conspiracy was erroneous because his codefendant was subsequently acquitted. Ronald urges his case is distinguishable because only he and his son were charged with conspiracy, and they were tried jointly.
 The general rule has been that conviction of only one defendant in a conspiracy prosecution will not be upheld when all the other alleged conspirators have been acquitted or similarly disposed of. 2 W. LaFave and A. Scott, Substantive Criminal Law 6.5; Annot., 19 A.L.R. 4th 192 (1983). In pre-code cases, Arkansas adhered to the general rule. Gordon v. McLearn, 123 Ark. 496, 185 S.W. 803 (1916); State v. Smith, 117 Ark. 384, 175 S.W. 392 (1915); Cumnock v. State, 87 Ark. 34, 112 S.W. 147 (1908). However, Arkansas adopted our present code in 1975, and joined a substantial minority of jurisdictions, which provide it is no defense that the co-conspirators have been either acquitted or convicted of a different offense. Ark. Stat. Ann. 41-713(2)(c) (Repl. 1977); see 2 W. LaFave, supra, at 115. The rationale for allowing an inconsistent disposition or verdict is as follows: "[I]t recognizes that inequalities in the administration of the law are to some extent inevitable, that they may reflect unavoidable differences in proof, and that, in any event, they are a lesser evil than granting immunity to one criminal because justice [293 Ark Page 543]
may have miscarried in dealing with another." Model Penal Code 5.03 explanatory note at 402 (Official Draft and Revised Comments 1985).
Nevertheless, neither the law nor the commentaries support inconsistent verdicts in the case of a joint trial, where no others are alleged to have been involved. 2 W. LaFave, supra; Model Penal Code, supra. Other jurisdictions, which otherwise allow inconsistent verdicts in Separate trials, have recognized the vitality of the rule of consistency in joint trials. See People v. Nunez, 183 Cal.App.3d. 214, 228 Cal.Rptr. 64 (1986); Marquiz v. People, 726 P.2d 1105 (Colo. 1986); Smith v. State, 250 Ga. 264, 297 S.E.2d 273 (1982); Minniefield v. State, 512 N.E.2d 1103 (Ind. 1987); Gardner v. State, 286 Md. 520, 408 A.2d 1317 (1979); Commonwealth v. Cerveny, 387 Mass. 280, 439 N.E.2d 754 (1982); People v. Anderson, 418 Mich. 31, 340 N.W.2d 634 (1983); State v. Hawkins, 178 N. J. Super. 321, 428 A.2d 1322 (1981); Commonwealth v. Byrd, 490 Pa. 544, 417 A.2d 173 (1980); State v. Valladares, 99 Wn.2d 663, 664 P.2d 508 (1983).
The Washington case, State v. Valladares, contains almost identical facts to the case at hand. There, two defendants were charged with conspiracy to deliver a controlled substance. They were tried jointly, and Valladares was found guilty on the conspiracy charge, but his sole alleged conspirator was acquitted. Like our criminal statutes, Washington state's code provides that it is not a defense to a charge of criminal conspiracy that the person with whom the accused is alleged to have conspired has been acquitted. That ...