Armstrong v. State, CA

• Decision Date: 05 July 1984
• Docket Number: No. CA,CA
• Citation: 12 Ark.App. 143,671 S.W.2d 772
• Parties: Mary E. ARMSTRONG, Appellant, v. STATE of Arkansas, Appellee. CR 83-174.
• Court: Arkansas Court of Appeals

Page 772

671 S.W.2d 772

12 Ark.App. 143

Mary E. ARMSTRONG, Appellant, v. STATE of Arkansas, Appellee.

No. CA CR 83-174.

Court of Appeals of Arkansas,

Division I.

July 5, 1984.

Rehearing Denied Aug. 22, 1984.

McMath Law Firm, P.A. by Sandy McMath and Charles R. Hicks, P.A., Little Rock, for appellant.

Steve Clark, Atty. Gen. by Michael E. Wheeler, Asst. Atty. Gen., Little Rock, for appellee.

COOPER, Judge.

In this criminal case, the appellant was charged with theft of property by deception in violation of Ark.Stat.Ann. § 41-2203 (Repl.1977). After a trial by jury, she was convicted and sentenced to four years in the Arkansas Department of Correction and a fine of $5,000.00. From that decision comes this appeal.

The appellant was employed as the commercial bookkeeper at the Montgomery Ward store in Little Rock. During the time she was employed in this capacity, it came to the attention of another employee that there was a discrepency in the cash register used by the appellant. An investigation ensued and resulted in the charges of theft being filed against the appellant.

The appellant argues that the trial court erred in failing to grant her motion for a directed verdict at the close of the State's case. Her grounds for the directed verdict were that the State had failed to eliminate every other reasonable hypothesis for the alleged theft. The appellant relies on Green v. State, 269 Ark. 953, 601 S.W.2d 273 (Ark.App.1980), for the proposition that the appellant's conviction cannot be sustained where the State failed to exclude every reasonable possibility that someone other than the appellant had the opportunity to have taken the money. We cannot agree with the appellant that the State failed in meeting its burden of proof. The State introduced evidence that showed the appellant had manipulated company records to conceal cash shortages. Although she was not observed taking the money or manipulating the records, the evidence presented was certainly adequate to present a jury question.

The appellant's second point for reversal deals with the trial court's rulings concerning expert testimony. Dr. Douglas Stevens testified concerning his examination of the appellant and the results of several tests which dealt with her mental capacity and mathematical abilities. The defense then called a certified public accountant, Mr. Rick Ruffin, and sought to elicit testimony from him that, based on Dr. Stevens testimony, and the nature of the embezzlement scheme, the appellant would not have been able to carry out the scheme. The trial court limited Mr. Ruffin's testimony to stating the level of accounting or mathematical ability which he believed an individual would need to possess to successfully engage in the type scheme the appellant was charged with. The trial court noted that Mr. Ruffin's proposed testimony would invade the province of the jury. We hold that the trial court correctly limited Mr. Ruffin's testimony.

In Ethridge v. State, 9 Ark.App. 111, 654 S.W.2d 595 (1983), this Court dealt with this issue and held that when the jury can just as easily determine the fact question in issue from the opinion testimony before it, it is improper for an expert witness to, in effect, tell the jury which result to reach. Here, the situation is similar. Mr. Ruffin was...