Evans v. State, CR85-159
| Decision Date | 14 October 1985 |
| Docket Number | No. CR85-159,CR85-159 |
| Citation | 287 Ark. 136,697 S.W.2d 879 |
| Parties | Lonnie EVANS, Appellant, v. STATE of Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
Cecilia Ryker Seay, Fayetteville, for appellant.
Steve Clark, Atty. Gen. by Mary Beth Sudduth, Asst. Atty. Gen., Little Rock, for appellee.
Appellant Lonnie Evans was convicted of breaking or entering and theft. He was fined and sentenced to imprisonment in the Arkansas Department of Correction. Appellant was 17 years old when the crime was committed and the information filed, but had turned 18 before trial. This case was certified to the Supreme Court by the Court of Appeals pursuant to Sup.Ct.R. 29 (1)(c) and 29(4), in order for this court to interpret Ark.Stat.Ann. § 45-420 (Supp.1985) concerning the transfer of juvenile cases where the circuit and juvenile courts have concurrent jurisdiction over a defendant.
The trial court denied appellant's pretrial motion to transfer his case to the juvenile court. We find no error in that portion of the proceedings. Appellant raises several other issues on appeal and we find merit in his contention that the trial court erred by admitting into evidence testimony concerning appellant's alleged involvements in two other criminal matters. Accordingly, we reverse and remand.
Appellant was on trial for breaking or entering and for theft of a wrench set and air hose taken from a truck and the tool box attached to it, owned by Terry Howerton. A substantial amount of the testimony during the course of the trial, however, did not pertain to the Terry Howerton incident, but rather to appellant's alleged involvements in the burglary and theft of tools and auto parts from Smith Wheel Alignment and the passing of hot checks in another city. The appellant was initially charged with committing burglary and theft from Smith Wheel Alignment on the same night that the charges in question occurred, however, these charges were formally dismissed. The hot check charge against appellant was pending in another county. The trial court permitted extensive testimony from the appellant's accomplices and the investigating officer which focused more on appellant's disputed involvement in the Smith burglary than on the charged offense. In addition, the state was permitted to bolster its testimony concerning the Smith burglary through an independent witness who had no knowledge as to the offense charged.
The trial court initially permitted this testimony because it concerned events which occurred during the same night as the incident in question and were thus so intertwined as to be necessary for background and clarification of the Howerton burglary and theft. Admission of the testimony was further justified as showing a motive and common scheme or plan under Ark.Stat.Ann. § 28-1001, Rule 404(b) (Repl.1979), which provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Additional testimony from an accomplice describing appellant's involvement in passing hot checks written by the accomplice, was also ruled admissible based on common motive. The asserted connection between the charged offense and the other offenses is that they were all part of the same plan involving the motive of supplying appellant with tools and money so that he could open an auto shop next door to Smith Wheel Alignment.
It is difficult to summarize the facts of the Howerton and Smith burglaries because of the intermixing of testimony and the varying accounts given by appellant's accomplices.
In essence, the testimony against the appellant was that he and two accomplices were driving around on the night of the crime when they decided to get some gas by syphoning the Howerton truck. When they were unable to get the locked cap off, they instead took the tools from the truck's tool box which is the basis of the present charges. Sometime later that night the Smith burglary occurred. The appellant's involvement in that crime is unclear from the record. Testimony was elicited at length to determine whether appellant participated in the planning of the Smith burglary or whether he was invited to participate; whether he was at the scene or just drove around looking for the police; whether the stolen goods were left at his house; and whether he knew they were stolen. Repeated objections were made by defense counsel that the prosecution was attempting to "bootstrap" the charged offense with evidence of another burglary and that appellant was put in the position of having to defend two crimes. We agree.
In analyzing the admissibility of the testimony about the Smith burglary, it should be noted that the state is entitled to produce evidence to show all of the circumstances connected with the crime, even if other criminal offenses are thereby brought to light. Hobbs v. State, 277 Ark. 271, 641 S.W.2d 9 (1982). In Hobbs, evidence of other crimes came out in the testimony, but only as incidental references that were necessary to determine issues relating to the charged offense. Unlike Hobbs, the state in this instance called witnesses for the sole purpose of establishing that the appellant did in fact commit the other crimes.
In Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954), we thoroughly discussed the purposes and application of the common law equivalent of Rule 404. The court there stated:
We do not permit the State to bolster its appeal to the jury by proof of prior convictions, with their conclusive presumption of verity, and still less is there reason to allow the jury to be prejudiced by mere accusations of earlier misconduct on the part of the defendant. If the accused has committed other crimes, each may be examined separately in a court of law, and punishment may be imposed for those established with the required certainty. In this way alone can we avoid the elements of unfair surprise and undue prejudice that necessarily attend trial by accusation in place of trial upon facts demonstrated beyond a reasonable doubt.
Reference to the Smith burglary should only have been allowed if it was so intertwined factually with the case before the court that exclusion of any reference to it would be confusing to the jury or unnecessarily hamper the state's proof of the charged crime. It cannot be said that, merely because they occurred on the same night and involved items of similar nature, that the state should be allowed to freely bring in all the evidence it could find on the Smith burglary to implicate the appellant. In light of the fact that the charges against the appellant concerning the Smith burglary were dismissed, we see little probative value in the evidence and substantial prejudice. The trial court committed error in admitting these facts into evidence for which the case must be reversed and remanded.
Appellant asserted several other arguments for reversal which we reject but will address as they are likely to arise on retrial. A motion was made by appellant before trial to have his case transferred from circuit court to juvenile court pursuant to Ark.Stat.Ann. § 41-617 (Supp.1985) and § 45-420 (Supp.1985). Section 41-617 gives concurrent jurisdiction to circuit courts and juvenile courts where the defendant was 15 to 17 years of age at the time of the conduct alleged to constitute an offense, and gives the circuit court the power to enter an order waiving jurisdiction in favor of a juvenile court.
The discretion of the circuit court judge in making this decision was limited by a 1981 amendment to section 45-420 which stated that the judge shall hold a hearing to determine whether the case should be transferred and consider only certain factors in the decision. Those factors are:
(a) The seriousness of the offense and whether violence was employed by the juvenile in the commission of the offense.
(b) Whether the offense is...
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