Dillard v. State, CA

Decision Date11 February 1987
Docket NumberNo. CA,CA
Citation723 S.W.2d 373,20 Ark.App. 35
PartiesRay DILLARD, Appellant, v. STATE of Arkansas, Appellee. CR 86-137.
CourtArkansas Court of Appeals

Willis V. Lewis, Little Rock, for appellant.

Steve Clark, Atty. Gen. by William Fred Knight, Asst. Atty. Gen., Little Rock, for appellee.

COOPER, Judge.

The appellant in this criminal case was charged with burglary, a violation of Ark.Stat.Ann. § 41-2002 (Repl.1977). After a jury trial, the appellant was convicted of that charge and sentenced to five years in the Arkansas Department of Correction. From that conviction, comes this appeal.

For reversal, the appellant contends that the evidence was insufficient to support a conviction for burglary. In addition, he asserts that the trial court erred in failing to grant his motions for mistrial based on four events connected with the trial of the case: a statement by a prospective juror; a witness's question from which the jury might infer that the appellant had a criminal record; a witness's remark tending to focus attention on the appellant's failure to testify in his own behalf; and the presence of witnesses in the courtroom during opening statements after the defense had invoked A.R.E. Rule 615. We find these arguments to be unpersuasive and we affirm.

Pursuant to Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984), we first consider the sufficiency of the evidence to support the appellant's conviction. In so doing we review the evidence in the light most favorable to the appellee and affirm if the verdict is supported by substantial evidence. Lair v. State, 19 Ark.App. 172, 718 S.W.2d 467 (1986). Substantial evidence is evidence which induces the mind to go beyond mere suspicion or conjecture, and is of sufficient force or character to compel a conclusion one way or the other with reasonable certainty. Harris, 284 Ark. at 252, 681 S.W.2d 334; Jones v. State, 11 Ark.App. 129, 668 S.W.2d 30 (1984).

Arkansas Statutes Annotated § 41-2002(1)(Repl.1977) provides that:

A person commits burglary if he enters or remains unlawfully in an occupiable structure of another person with the purpose of committing therein any offense punishable by imprisonment.

In the case at bar the "offense punishable by imprisonment" upon which the burglary conviction was founded was theft of property. For reversal, the appellant contends that the evidence of intent to commit theft of property was insufficient. We do not agree. Viewed in the light most favorable to the appellee, the evidence shows that Albert Atchley and his family returned to their home to find that a bedroom light, which had been off when they left the house, was then lit. As he entered the house, Mr. Atchley saw that the back door had been removed. Atchley's daughter, Melissa, then noticed that the light that had been on in her room was off. The police were summoned and Deputy Jim Brunson arrived shortly thereafter. Deputy Brunson searched Melissa's room and found the appellant hiding between the wall and the bed, with blankets and covers partially pulled over him. The deputy removed a hunting knife from the appellant's person, then retrieved the appellant's shotgun from under the bed. Brunson testified that he had seen nothing else under the bed at that time, but that it was possible that other objects might have been concealed by the blankets and covers under which the appellant had been hiding. The deputy further stated that he removed the appellant from the house rather quickly, out of a concern that the appellant might be harmed by Mr. Atchley, who was quite irate.

Melissa testified that, soon after the appellant was removed from the Atchley home, she noticed that some of her money and jewelry were missing, and that she found the missing money and jewelry in a little pile under the bed where the appellant had been hiding. She further stated that she had not placed those objects there herself. Mr. Atchley took the items to the sheriff's office the next day.

Intent is not ordinarily capable of proof by direct evidence, and must therefore be inferred from the circumstances. Parris v. State, 270 Ark. 269, 604 S.W.2d 582 (1980). The circumstances in the case at bar are that the missing money and jewelry were found wadded up in a pile under the bed, where the appellant had been hiding when apprehended. Moreover, Melissa stated positively that it was she and not her father who discovered the items under the bed, and that she did not place them there herself. We find these circumstances to be indistinguishable from those presented in Jimenez v. State, 12 Ark.App. 315, 675 S.W.2d 853 (1984), where we held that the requisite intent could be inferred from the fact that items in the burglarized home had been gathered up, as if to be carried off, coupled with the homeowner's testimony that neither he nor his sister had moved them. We thus hold the evidence to be sufficient to support a conviction for burglary.

The appellant also urges several points for reversal based upon the trial court's refusal to grant a mistrial at various stages of the proceeding. The first of these points arises out of the statement by a prospective juror at voir dire that he could "save the court a lot of time" and that he once "had a personal confrontation with" the appellant. This prospective juror was excused for cause upon the defense attorney's motion. After the jury had been selected, the appellant requested a mistrial. It is argued that the prospective juror's statement prejudiced the rest of the jurors against the appellant, and that the trial court erred in refusing to grant a mistrial.

We first note that the appellant failed to preserve for appeal any error that might have resulted from the prospective juror's statement. An argument for reversal will not be considered in the absence of an appropriate objection in the trial court. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). To be considered appropriate, an objection must be made at the first opportunity. Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981). The record shows that the appellant in the instant case failed to make a timely objection, for he allowed twenty-four prospective jurors to be voir-dired between the time of the allegedly prejudicial statement and his motion for a mistrial. Moreover, we would reach the same result even if the appellant had preserved this issue for review. The impartiality of a jury is a question addressed to the sound discretion of the trial court, and the appellant must demonstrate a manifest abuse of that discretion to warrant reversal. McFarland v. State, 284 Ark. 533, 684 S.W.2d 233 (1985). Here, the prospective juror's statement that he could "save the court a lot of time" was ambiguous, and seems, in the context of the full record, to mean that the prospective juror knew he could not be impartial toward the appellant because of their prior confrontation: seen in this light, the statement meant only that the questions propounded to the previous potential juror need not be asked, thus "saving time" for the court. Finally, the jurors ultimately selected all stated that they were able to give the appellant a fair and impartial trial. Given these circumstances we do not think that the trial court manifestly abused its discretion in denying the appellant's motion for mistrial.

The appellant also asserts that the trial court erroneously refused to grant a mistrial where the appellant's attorney invoked A.R.E. Rule 615, but the witnesses were not sequestered until the conclusion of the attorneys' opening statements.

Rule 615 provides, in pertinent part, that

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses....

Arkansas Statutes Annotated § 28-1001 (Repl.1979), A.R.E. Rule 615. While we agree with the appellant that the Rule is mandatory when requested by one or both of the parties, Morton v. Wiley, 271 Ark. 319, 609 S.W.2d 322 (1980), we are unable to determine from the record before us that the Rule was in fact requested prior to the close of opening statements. We do not reverse the trial judge on facts outside the record. Harvey v. Castleberry, 258 Ark. 722, 529 S.W.2d 324 (1975). The only affirmative showing of a request to invoke the Rule was a request by the appellant's attorney...

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22 cases
  • Pharo v. State
    • United States
    • Arkansas Court of Appeals
    • January 24, 1990
    ...objection in the trial court. To be considered appropriate, an objection must be made at the first opportunity. Dillard v. State, 20 Ark.App. 35, 723 S.W.2d 373 (1987). The objection must be timely, affording the trial court an opportunity to correct the asserted error. Clark v. State, 26 A......
  • Menard v. City of Carlisle
    • United States
    • Arkansas Supreme Court
    • June 8, 1992
    ...was said. The trial court, apparently relying on an interpretation of A.R.E. Rule 615 by the court of appeals in Dillard v. State, 20 Ark.App. 35, 723 S.W.2d 373 (1987), denied the motion and refused to exclude the other witnesses. The appellant made no arguments below about the validity of......
  • Spivey v. State, CA
    • United States
    • Arkansas Court of Appeals
    • September 28, 1988
    ...of a timely, clear, and specific objection in the trial court. Horn v. State, 282 Ark. 75, 665 S.W.2d 880 (1984); Dillard v. State, 20 Ark.App. 35, 723 S.W.2d 373 (1987). It is clear that the speedy trial issue was never raised in the trial court, and may not be raised for the first time on......
  • Kinzalow v. State
    • United States
    • Arkansas Court of Appeals
    • August 27, 2003
    ...if the conviction is supported by substantial evidence. Smith v. State, 34 Ark. App. 150, 806 S.W.2d 391 (1991); Dillard v. State, 20 Ark. App. 35, 723 S.W.2d 373 (1987). Substantial evidence has been defined as evidence of sufficient force and character that will, with reasonable and mater......
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