Appellant was convicted of the crime of incest in violation of Ark. Stat. Ann. § 41-2403 (Repl. 1977) in Johnson County Circuit Court. The jury sentenced him to five years in the Department of Corrections. From that conviction comes this appeal.
As error, appellant argues that the trial court’s reference to the complaining witness as the “victim” was prejudicial, and that the court erred in failing to grant a mistrial in response to appellant’s motion.
The question on appeal is whether the trial court abused his discretion in failing to grant a mistrial under these circumstances. Chaviers v. State, 267 Ark. 6, 588 S.W. 2d 434 (1979). A mistrial is an extreme remedy which should be utilized only as a last resort. Price v. State, 268 Ark. 535, 597 S.W. 2d 598 (1980). It is clear that the verdict of the jury should not be biased or affected by expressed opinions of the trial court. [Sharp v. State, 51 Ark. 147, 10 S.W. 228 (1889); West v. State, 255 Ark. 668, 501 S.W. 2d 771 (1973)], but we must look at the totality of the circumstances in determining whether or not the remark was so prejudicial that a mistrial should have been granted [Peals v. State, 266 Ark. 410, 584 S.W. 2d 1 (1979); Vassar v. State, 75 Ark. 373, 87 S.W. 635 (1905)]. In this case, the trial court should not have referred to the prosecuting witness as the “victim,” but from a review of the record it is clear that the court was simply attempting to identify her for purposes of questioning the jury panel as to whether or not they were acquainted with her. Certainly, the court could have referred to her as the alleged victim and that would not have been error. Under all the circumstances, we do not view that comment by the trial court as prejudicial even though the term should not have been used. Penton v. State, 194 Ark. 503, 109 S.W. 2d 131 (1937); Newberry v. State, 261 Ark. 648, 551 S.W. 2d 199 (1977).
In addition, we note that no objection was made at the time the court made the reference, and in fact the motion for mistrial came only after the jury had been selected and sworn. During the course of voir dire, the prosecuting attorney referred to the complaining witness as the “victim” and no objection was registered either at that time or in the motion for mistrial. If there was error, it was either waived or was harmless and therefore we affirm.
Affirmed.
Mayfield, C.J., and Glaze and Corbin, JJ., dissent.