Donovan v State

• Decision Date: 25 October 2000
• Docket Number: 99-1096
• Citation: 32 S.W.3d 1
• Parties: Tom DONOVAN v. STATE of Arkansas CA CR 99-1096 ___ S.W.3d ___ Opinion delivered
• Court: Arkansas Supreme Court

Tom DONOVAN v STATE of Arkansas

CA CR 99-1096 ___ S.W.3d ___

Opinion delivered October 25, 2000

Court of Appeals of Arkansas

Division III

Appeal from Pulaski Circuit Court; Marion Humphrey, Judge; affirmed in part; remanded in part.

1. Motions -- directed verdict -- challenge to sufficiency of evidence. -- A motion for directed verdict is a challenge to the sufficiency of the evidence.

2. Evidence -- sufficiency of -- factors on review. -- The appellate court affirms a criminal conviction if it is supported by substantial evidence; when a defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in the light most favorable to the State; evidence, whether direct or circumstantial, is sufficient to support a conviction if it is forceful enough to compel reasonable minds to reach a conclusion one way or the other; the appellate court does not, however, weigh the evidence presented at trial, as that is a matter for the factfinder; nor will the appellate court weigh the credibility of the witnesses; only the evidence supporting the verdict will be considered.

3. Criminal law -- theft by deception -- substantial evidence to support conviction. -- Where 158 checks were introduced as evidence and appellant raised a question about only three of them; where the victim testified as to which checks were unauthorized; and where four witnesses identified checks introduced by the State as checks appellant gave to them to purchase drugs, the appellate court held that, based on the evidence presented at trial, there was substantial evidence to support appellant's theft-by-deception conviction.

4. Evidence -- other crimes or wrongs -- must be independently relevant. --Evidence that is offered pursuant to Ark. R. Evid. 404(b), which provides for the admission of evidence of other crimes, wrongs, or acts for certain purposes, must be independently relevant.

5. Evidence -- independent relevance -- requirements. -- Evidence is independently relevant if it tends to prove a material point and is not introduced solely to prove that the defendant is a bad person.

6. Evidence -- other crimes or wrongs -- admission or rejection left to trial court's discretion. -- The admission or rejection of evidence under Ark. R. Evid. 404(b) is left to the sound discretion of the trial court, and the appellate court will not reverse absent a showing of manifest abuse.

7. Evidence -- weighing of prejudicial evidence against probative value -- trial court's discretion. -- The trial court has the discretion to determine whether prejudicial evidence substantially outweighs its probative value, and its judgment will be upheld absent a manifest abuse of discretion.

8. Evidence -- other crimes or wrongs -- admission of evidence of appellant's cocaine use was proper to prove motive for theft & unauthorized checks. --The admission of evidence regarding appellant's cocaine use was proper under Ark. R. Evid. 404(b) because it went to prove motive for theft and that the checks in question were unauthorized; although arguably prejudicial, the evidence was highly probative in that it constituted proof of motive and evidence that the checks were unauthorized; the probative value was not substantially outweighed by the danger of unfair prejudice; the appellate court could not say that the trial court abused its discretion in allowing the evidence.

9. Evidence -- evidentiary issues -- broad discretion of trial courts. --Trial courts have broad discretion in deciding evidentiary issues, and those decisions are not reversed absent a clear abuse of discretion.

10. Trial -- mistrial -- extreme remedy. -- A mistrial is an extreme remedy that should be granted only when the error is beyond repair and cannot be corrected by curative relief.

11. Trial -- prejudicial statement -- usually cured by jury admonition. -- An admonition to the jury usually cures a prejudicial statement unless it is so patently inflammatory that justice could not be served by continuing the trial.

12. Trial -- mistrial -- trial court has wide discretion in granting or denying. -- The trial court has wide discretion in granting or denying a motion for a mistrial, and the appellate court will not disturb the court's decision absent an abuse of discretion or manifest prejudice to the movant.

13. Trial -- mistrial -- trial court did not abuse discretion in denying where trial court cautioned jury. -- Where the trial court, having sustained appellant's objection to the prosecutor's "golden rule" argument but having denied a motion for mistrial, cautioned the jury that they were not to receive an argument as placing themselves in a particular position but rather to limit themselves to a consideration of what had been presented at trial; and where the trial court gave the standard jury instruction that remarks made during arguments by the attorneys were not evidence and should be disregarded, the appellate court could not say that the trial court abused its discretion by denying the motion for mistrial on the basis of the prosecutor's remark.

14. Trial -- no ruling on motion for mistrial -- any prosecutorial impropriety expunged by jury admonition. -- Where appellant's counsel lodged a timely objection to a statement made by the prosecutor during closing argument, contending that the prosecutor had changed the burden of proof; where the trial court admonished the jury; and where, according to appellant's abstract, the trial court never made a ruling on appellant's motion for mistrial, nor did appellant request a ruling, the appellate court concluded that if any impropriety occurred, it was expunged by the admonition.

15. Trial -- jury admonition -- failure to give not prejudicial error when not requested. -- The trial court's failure to give an admonition to the jury is not prejudicial error where the instruction or admonition was not requested at trial.

16. Evidence -- prejudice not presumed -- no reversal absent showing of prejudice. -- Prejudice is not presumed, and the appellate court will not reverse absent a showing of prejudice.

17. Appeal & error -- no objection below -- argument barred on appeal. --Where an appellant does not make an objection below, he cannot raise the argument on appeal.

18. Trial -- mistrial -- trial court did not abuse discretion in denying where appellant was aware of evidence State intended to prove at trial. -- Where appellant was aware of the evidence that the State intended to prove at trial, including appellant's deposit of a number of unauthorized checks into his law firm account, and where appellant was also aware that a representative of the bank where appellant maintained his law firm's account would testify that appellant made these deposits, the appellate court could not say that the trial court abused its discretion in denying appellant's motion for mistrial.

19. Trial -- mistrial -- appellant failed to show prejudice in witness's statement. -- Where appellant moved for a mistrial, contending that a witness's statement was prejudicial because it introduced prejudicial material about appellant when she had not been asked any question about him, the appellate court concluded that appellant failed to demonstrate how he was prejudiced; prejudice is not presumed, and the appellate court will not reverse absent a showing of prejudice.

20. Trial -- mistrial -- trial court did not abuse discretion in admitting evidence of appellant's use of crack cocaine. -- Because the appellate court found that the trial court did not abuse its discretion in admitting evidence of appellant's crack cocaine use, it could not say that the trial court abused its discretion in denying the motion for mistrial based on the same argument.

21. Motions -- timeliness -- motions & objections waived unless made at time objectionable matter is brought to jury's attention. -- Motions and objections must be made at the time the objectionable matter is brought to the jury's attention, or they are otherwise waived.

22. Trial -- mistrial -- issue not addressed where motion was untimely. --Where one of appellant's motions for mistrial was untimely, the issue could not be addressed on appeal.

23. Trial -- mistrial -- trial court did not abuse discretion in denying where appellant opened door to evidence. -- Where, even if he had preserved a mistrial issue for appeal, appellant had opened the door to the admission of the evidence in question, the appellate court could not say that the trial court abused its discretion by denying the motion for mistrial.

24. Trial -- mistrial -- trial court did not abuse discretion in refusing to grant where appellant did not assert prejudice & admonition was given. --Because appellant did not assert any prejudice regarding the prosecutor's cross-examination of appellant and because an admonition regarding a specific question was given by the trial court, the appellate court could not say that the trial court abused its discretion in refusing to grant a mistrial.

25. Trial -- mistrial -- issue not addressed where trial court made no ruling.-- Where the trial court sustained appellant's objection to a question concerning the termination of his employment but did not make a ruling on appellant's motion for mistrial, the appellate court could not address the argument on appeal.

26. Trial -- mistrial -- issue not addressed where individual motions had been discussed. -- Where appellant appealed the final motion for mistrial made at the close of evidence, renewing prior motions, the appellate court did not address the argument because each motion had been discussed.

27. Evidence -- other crimes or wrongs -- admissible with cautionary instruction to prove material point. -- Generally, evidence of other crimes, wrongs, or acts is not admissible merely to prove the bad character of the defendant and to show that his actions conformed to that character; if, however, the evidence is relevant to the main issue of ...