Townsend v. State, CR

• Citation: 308 Ark. 266,824 S.W.2d 821
• Decision Date: 10 February 1992
• Docket Number: No. CR,CR
• Parties: Rodney Earl TOWNSEND and Tonda Ray Baker, Appellants, v. STATE of Arkansas, Appellee. 91-275.
• Court: Supreme Court of Arkansas

Page 821

824 S.W.2d 821

308 Ark. 266

Rodney Earl TOWNSEND and Tonda Ray Baker, Appellants, v. STATE of Arkansas, Appellee.

No. CR 91-275.

Supreme Court of Arkansas.

Feb. 10, 1992.

William R. Simpson, Public Defender, Lewellyn J. Marcjuk, Deputy Public Defender, Little Rock, for appellants.

Teena L. White, Asst. Atty. Gen., Little Rock, for appellee.

HOLT, Chief Justice.

The appellants, Rodney Earl Townsend and Tonda Ray Baker, were convicted of breaking or entering, for which they were sentenced to six years imprisonment, and theft of property, for which they were sentenced to fifteen years imprisonment. The sentences are to run consecutively. The case was certified to this court from the court of appeals, as it involves interpretation of our statute on breaking or entering.

Townsend and Baker raise four points of error on appeal: 1) the evidence was insufficient to support a conviction for either appellant; 2) the trial court erred in requiring Townsend to wear leg irons in the presence of the jury; 3) the trial court erred in denying appellants' proffered AMCI definition of "occupiable structure;" and 4) the trial court erred in denying We must first determine the appellants' sufficiency argument, even though we reverse on other grounds. See Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). We will also consider appellants' contentions concerning their proffered jury instruction, as the issue may arise on retrial.

appellants' [308 Ark. 268] motion for a mistrial. We find merit in appellants' second argument and reverse and remand for new trial.

SUFFICIENCY OF THE EVIDENCE

Townsend and Baker made timely motions for directed verdict, both at the close of the State's case and at the end of their own case-in-chief. They argue the evidence was insufficient to support the convictions and that our breaking or entering statute does not specifically cover the breaking or entering of a fence, as defined under that statute's use of the word, "structure." We disagree with both contentions.

Ark.Code Ann. § 5-39-202(a) (1987) states:

A person commits the offense of breaking or entering if for the purpose of committing a theft or felony he enters or breaks into any building, structure, vehicle, vault, safe, cash register, money vending machine, product dispenser, money depository, safety deposit box, coin telephone, coin box, or other similar container, apparatus, or equipment.

(Emphasis added.) Our criminal code does not define the term "structure," it only provides the specifics of the term "occupiable structure," which is included in the greater offense of burglary. See Ark.Code Ann. § 5-39-201 (1987). Black's Law Dictionary (5th Ed.1979) defines "structure" as "any construction, or any production or piece of work artificially built up or composed of parts joined together in some definite manner." That same authority defines "fence" as "a hedge, structure, or partition, erected for the purpose of inclosing a piece of land...." (Emphasis added.) In light of these definitions and our statutory definition of breaking or entering, which broadly includes anything from buildings to coin boxes, we have no hesitancy in holding that a fence comes within the meaning of the word "structure", as that term is used in the statute.

As to the evidence, itself, we find ample support in the record to uphold both convictions.

The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict. Substantial evidence must be forceful enough to compel a conclusion one way or another beyond suspicion and conjecture. On review, it is only necessary to ascertain that evidence which is most favorable to the appellee and, if there is substantial evidence to support the verdict, the finding must be affirmed. Gillie v. State, 305 Ark. 296, 808 S.W.2d 320 (1991).

Around midnight, on August 18, 1990, Mr. Howard Dale was awakened by the barking of his German Shepherds and went to his front porch where he observed a white Chevrolet pickup truck stop in front of his house on Colonel Glenn Road. Mr. Dale saw two black males emerge from the truck; one of them tall and wearing a red shirt, and the other short, wearing a brown or green shirt. The truck then left. The two men crossed the street and walked south along a fence surrounding Aimco Wholesale. Mr. Dale observed the fence shaking and, in a few minutes, saw the men enter the fence and go onto the Aimco property. He then observed the men pulling a trailer loaded with two all-terrain vehicles through a hole in the fence. After they pulled the trailer through the fence, the men walked along the outside of the fence and crossed the street. Mr. Dale was in his backyard at this time, observing the parties through bushes. Mr. Dale testified that while the parties were standing there, a deputy's car came by and the men crept into the ditch until the deputy passed. A minute or two later, the white truck came back and picked them up. Mr. Dale dialed 911 and reported a break-in when the men first entered the fence.

Pulaski County Deputy Sheriff Mike Kesterson testified he drove by Aimco Wholesale at approximately 12:40 a.m. He After refueling his car, Deputy Kesterson returned to Aimco Wholesale, whereupon police officers were holding three men in their squad cars. Deputy Kesterson identified Baker as the man he saw standing by the ditch and another man, Michael Raglin, as the driver of the truck.

saw a black male wearing a red shirt and shorts standing on the side of the road, dusting his hands. He came within three feet of the man, as he passed by. Continuing on, Deputy Kesterson saw a white truck parked in a farmer's supply store lot (which is in the area near Aimco) with the engine running. The driver of the truck, a black male, saw the police car, turned his headlights on, and fell in behind Deputy Kesterson at the stop sign. The officer turned west and the truck turned and continued east. Deputy Kesterson was [308 Ark. 270] running low on fuel so he radioed the police department to convey his "suspicions," but was told that another unit was "headed that way."

Officer Robert Lusk testified that he responded to a call about 12:55 a.m., regarding a burglary in progress at Aimco Wholesale. Based on the information he received, Officer Lusk followed a white pickup truck travelling east on Colonel Glenn Road and, a few blocks later, pulled the truck over. The driver got out of the truck and identified himself as Michael Raglin. The two passengers identified themselves as appellants, Townsend and Baker. Baker was wearing a red shirt and shorts and Townsend was wearing a brown t-shirt.

The owner of Aimco Wholesale, Mr. Don Thompson, testified the property is completely enclosed by a fence and that when he left on the evening of August 17, the gates were closed and locked.

At trial, Baker and Michael Raglin denied the charges and testified Raglin and Townsend were driving Baker to some apartments in the area, when they were pulled over by the police.

The credibility of witnesses lies within the province of the jury. Prater v. State, 307 Ark. 180, 820 S.W.2d 429 (1991). Furthermore, circumstantial evidence may be sufficient to sustain a conviction provided where circumstantial evidence alone is relied upon, it indicates the accused's guilt and excludes every other reasonable hypothesis. Black v. State, 306 Ark. 394, 814 S.W.2d 905 (1991).

We find the evidence here, though largely circumstantial, was sufficient to sustain the convictions.

RESTRAINTS

The appellants next argue the trial court erred in requiring Townsend to wear leg restraints in the presence of the jury. We agree, and reverse on this basis.

Prior to trial, the bailiff of the court stated he had heard, secondhand, from one of the deputies, that Townsend stated he would flee if given the opportunity. The bailiff wished to place Townsend in leg irons. Townsend's attorney objected, stating Townsend was currently in the penitentiary on a parole violation stemming from a prior burglary conviction, a non-violent offense, and that Townsend had shown no dangerous propensities. Earlier, Townsend had been allowed to walk down the hallway, unrestrained, without incident.

The trial court overruled the objection, stating it was not willing to take the risk, and that "we always live in danger of some inmate getting a female hostage. We'd just be stymied because we couldn't do anything." The trial court stated another option would be to place six or seven police officers around the courtroom, which would be even more obstrusive. The trial court further denied Townsend's attorney's request that the courtroom be cleared before Townsend was brought in wearing the restraints or, in the alternative, that Townsend not be restrained until the jury left on break, following voir dire. The trial court conceded that it had made such an allowance in the past, but refused to do so here. The trial court did offer to instruct the jury to disregard the restraints for purposes of determining guilt or innocence.

Townsend was escorted into the courtroom, through the front door and wearing the leg irons, after the jury was seated. A second request, that Townsend be allowed It is not prejudicial, per se, when the defendant is brought into a courtroom handcuffed (or, in this case, legcuffed), Hill v. State, 285 Ark. 77, 685 S.W.2d 495 (1985), and a trial court may take such reasonable steps as are necessary to maintain order. See Ark.R.Crim.P. 33.1. However, almost without exception, our prior decisions, in which we have upheld the use of restraints, have involved defendants charged with violent offenses or who have engaged in disruptive behavior, or attempted escape. See e.g. Hill v. State, supra (rape, aggravated robbery, and kidnapping); Gillie v. State, 305 Ark. 296, 808 S.W.2d 320 (1991) (capital felony murder); Terry v. State, 303 Ark. 270, 796 S.W.2d 332 (1990) (aggravated robbery); Johnson...