Armstrong v. State

Decision Date09 March 1994
Docket NumberNo. CA,CA
Citation871 S.W.2d 420,45 Ark.App. 72
PartiesFrancis G. ARMSTRONG, Appellant, v. STATE of Arkansas, Appellee. CR 93-125.
CourtArkansas Court of Appeals

Bill J. Davis, El Dorado, for appellant.

Brad Newman, Asst. Atty. Gen., Little Rock, for appellee.

PITTMAN, Judge.

Francis G. Armstrong appeals from his convictions at a jury trial of arson and burglary, for which he was sentenced to concurrent terms of twelve and seven years, respectively, in the Arkansas Department of Correction. We find sufficient merit in one of appellant's multiple points for appeal to warrant reversal and remand for a new trial.

Appellant first argues that the evidence was insufficient to support the findings of guilt and that the trial court erred in denying his motion for directed verdicts. We do not agree.

Appellant was charged and convicted of burglary and arson in connection with the entry into, and burning of, the home of Percy and Louise Hall. Appellant's motions for directed verdicts, properly made at the close of the State's case and at the close of all the evidence, were challenges to the sufficiency of the evidence. Walker v. State, 308 Ark. 498, 825 S.W.2d 822 (1992). In reviewing the sufficiency of the evidence on appeal, this court views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the State and will affirm if there is any substantial evidence to support the finding of guilt. Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). Substantial evidence is evidence of such force and character that it will, with reasonable and material certainty, compel a conclusion one way or the other. Smith v. State, 308 Ark. 390, 824 S.W.2d 838 (1992). Circumstantial evidence may constitute substantial evidence. Hill v. State, 299 Ark. 327, 773 S.W.2d 424 (1989). While circumstantial evidence must exclude every other reasonable hypothesis consistent with innocence, this becomes a question for the factfinder to determine. Bennett v. State, 308 Ark. 393, 825 S.W.2d 560 (1992).

On December 17, 1991, the home of Percy and Louise Hall was partially burned. Ms. Hall is appellant's former wife. On the morning of the fire, no one had been at home since approximately 7:30. The fire was reported at 10:33 a.m., and the fire truck was en route to the scene by 10:38. An investigation indicated that the fire started at a single source in the bathroom near a wall separating the bathroom and kitchen. Glenn Sligh, an Arkansas State Police investigator, ruled out a nearby water heater as the cause of the fire and opined that the fire was of incendiary origin. The only evidence of burglary was that someone entered the house to start the fire. See Ark.Code Ann. § 5-39-101(1) (1987). Investigator Sligh testified that the bathroom door had been closed. Sligh further testified that closing the door would cause the fire to burn slowly, thus indicating that an arsonist would be allowed to escape before the fire was detected. Sligh collected debris samples and sent them to the Arkansas State Crime Laboratory where they were analyzed by Ann Hoff. Ms. Hoff testified that when she tested the material, she found residue of ethyl alcohol, a fast-burning accelerant.

Danny Joe Armstrong, appellant's twelve-year-old son, testified that appellant had threatened to burn the Halls' house when he learned that his former wife had married Mr. Hall. Danny also testified that a key to the house was kept in a flower bed near the house.

Mary Coon testified that she rented a room in her trailer to appellant in late 1989 or 1990 and that he had told her that he could burn a house without leaving a trace by using alcohol. Ms. Coon testified that appellant offered to burn her trailer in that manner. She also stated that she had heard appellant say that he would like to burn the Halls' house.

Gladys Hudson testified that she saw a tall, lean man wearing dark clothing and a hat walk away from the Halls' house at approximately 9:55 to 10:00 on the morning of the fire. Mrs. Hudson could not identify this individual as appellant.

Fire Chief Troy Alphin testified that the fire truck had already been dispatched to the Hall's property when he arrived at the fire station. He stated that while en route to the fire scene, he met appellant, who was driving in the opposite direction from the Halls' home. He stated that this occurred no later than 11:00 a.m.

Appellant testified that, when Chief Alphin asked him about the fire, he waived his rights and made a statement. He denied setting the fire. He testified that on the morning of the fire he drove to the C & D Grocery for coffee. He testified that he left the store at around 8:45 a.m. Appellant stated that he then drove directly to the home of Ed and Sue Cross, less than a mile away. He testified that he had been at the Crosses' home for thirty to forty minutes when the fire truck passed, and that he stayed there drinking coffee until approximately 11:00 a.m. Appellant testified that the feelings between the Halls and him were bitter, and that his son was under their influence and was not truthful in his testimony.

The Crosses' home is approximately one-half mile from the Halls' home. Sue Cross testified that she thought appellant arrived at her house between 9:30 and 10:00 a.m., but that it could have been as late as 10:15. She testified that he left at approximately 11:00 a.m. She heard the fire truck, which passed between 10:30 and 10:45, and stated that appellant left her home fifteen to twenty minutes later.

Appellant contends that his son's testimony was not worthy of belief because he was "under the complete control" of the Halls, who had bitter feelings toward appellant. He discounts Ms. Coon's testimony because she "obvious[ly]" did not like appellant and was a friend to the Halls. He also argues that there was no direct evidence that he was closer than one-half mile from the Halls' home, and points out that his version of his whereabouts was corroborated by Ms. Cross.

Under our standard of review, we do not weigh the evidence favorable to the State against that favorable to an accused. Tiller v. State, 42 Ark.App. 64, 854 S.W.2d 730 (1993). The credibility of the witnesses and the weight to be given to their testimony are matters solely within the province of the jury. Atkins v. State, 310 Ark. 295, 836 S.W.2d 367 (1992). Moreover, the jury is free to accept those portions of the testimony that it finds worthy of belief and reject those portions deemed false. Brown v. State, 278 Ark. 604, 648 S.W.2d 67 (1983). On appeal, it is permissible to consider only that proof that tends to support the finding of guilt. Tiller v. State, supra.

From our review of the record, we cannot conclude that the trial court erred in denying appellant's motions for directed verdicts. Clearly, the expert testimony that the fire was of incendiary origin and the evidence that someone had entered the house in order to start the fire was sufficient to support the findings that burglary and arson had been committed. We also conclude that the issue of appellant's responsibility for the crimes was properly submitted to the jury in light of the circumstantial evidence in this case, including the threats appellant made to his son and Mary Coon; appellant's offer to burn Ms. Coon's trailer by using alcohol; evidence that ethyl alcohol was used as an accelerant in this case; evidence that the fire burned slowly at first, causing a delay in its being detected and reported; and the improbability of appellant's testimony that he drove directly from the grocery store to the Crosses' home less than one mile away, and his resulting unexplained location and activities for a crucial period of time, when one considers appellant's testimony that he left the store at 8:45 and Ms. Cross's testimony that he did not arrive at her home until between 9:30 and 10:15.

At trial, the State moved in limine to prohibit appellant from introducing evidence of earlier fire losses experienced by Percy Hall. Appellant proffered Hall's testimony. Hall admitted that the 1991 fire for which appellant was being tried was the third residential fire that he (Hall) had suffered in the last seven years. Although he denied having set any of the fires, he admitted that a former girlfriend had given a statement implicating him in one of them. Hall also admitted that he had tried to implicate appellant in one of the two prior fires. Hall stated that he was insured for the first two fire losses. He stated that he had no insurance on the last structure, but admitted that his wife collected $3,100.00 under a policy covering her personal belongings. Finding that appellant had no evidence that Hall had set the previous fires, the trial court held the proffered evidence irrelevant and granted the State's motion in limine.

Appellant argues that proof of Hall's three residential fires within seven years was clearly relevant to the issues in this case and could have served to create in the jury a reasonable doubt as to appellant's guilt. We agree and reverse and remand on this point.

Rule 401 of the Arkansas Rules of Evidence provides that relevant evidence is evidence having any tendency to make the existence of any fact of consequence more probable or less probable than it would be without the evidence. Rule 403 provides that, although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Determining the relevance of evidence and gauging its probative value against unfair prejudice are matters within the trial court's discretion, the exercise of which will not be reversed on appeal in the absence of abuse. Smith v. State, 33 Ark.App. 37, 801 S.W.2d 655 (1990).

We agree with the State and the trial court that there was no direct evidence that Hall deliberately set the previous fires. Nevertheless, it...

To continue reading

Request your trial
3 cases
  • Davidson v. State
    • United States
    • Alabama Court of Criminal Appeals
    • August 28, 1998
    ...for conviction. See, e.g., Dunnaway v. State, 479 So.2d 1331 (Ala.Cr.App.1985). The present case is similar to Armstrong v. State, 45 Ark.App. 72, 871 S.W.2d 420 (1994), wherein the court upheld the appellant's conviction for arson on circumstantial evidence. In Armstrong, there was strong ......
  • Kinzalow v. State
    • United States
    • Arkansas Court of Appeals
    • August 27, 2003
    ...reasonable hypothesis consistent with innocence, this becomes a question for the fact finder to determine. Armstrong v. State, 45 Ark. App. 72, 76, 871 S.W.2d 420, 423 (1994). Also, constructive possession may be imputed when the contraband is found in a place that is either accessible to t......
  • Brown v. State, CA
    • United States
    • Arkansas Court of Appeals
    • June 5, 1996
    ...discretion, the exercise of which will not be reversed on appeal absent a showing of an abuse of that discretion. Armstrong v. State, 45 Ark.App. 72, 871 S.W.2d 420 (1994). Here, the appellant's statement was relevant to the circumstances surrounding the crime and was probative of his inten......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT