Maples v. State, CA

• Decision Date: 13 November 1985
• Docket Number: No. CA,CA
• Citation: 698 S.W.2d 807,16 Ark.App. 175
• Parties: Marvin MAPLES, Sr., Appellant, v. STATE of Arkansas, Appellee. CR 85-94.
• Court: Arkansas Court of Appeals

Page 807

698 S.W.2d 807

16 Ark.App. 175

Marvin MAPLES, Sr., Appellant, v. STATE of Arkansas, Appellee.

No. CA CR 85-94.

Court of Appeals of Arkansas,

En Banc.

Nov. 13, 1985.

William R. Simpson, Jr., Public Defender by Arthur L. Allen, Deputy Public Defender, Little Rock, for appellant.

Steve Clark, Atty. Gen. by Connie Griffin, Asst. Atty. Gen., Little Rock, for appellee.

CLONINGER, Judge.

The appellant, Marvin Maples, Sr., was charged with criminal attempt to commit first degree murder. The victim was appellant's ex-wife, Elaine Maples. Appellant was convicted by a jury of the lesser included offense of aggravated assault and sentenced to fifteen years in prison.

Appellant contends that there is no substantial evidence to support the jury's verdict. He also contends that the jury's verdict is inconsistent, and that the trial court erred in permitting the State to present character evidence that the victim was a truthful person when appellant had challenged only credibility and not character. We hold that the trial court erred in admitting evidence of Elaine Maples's character and we reverse and remand for a new trial.

In his first point for reversal, appellant contends that there was insufficient evidence to support the jury's verdict.

Although we are reversing the judgment in this case on an evidentiary issue, and remanding for a new trial, we must first review appellant's challenge to the sufficiency of the evidence. In doing so, we disregard other possible trial errors. In Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984), the Arkansas Supreme Court, relying upon Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), stated:

Were we not to make such a review [review the sufficiency issue first], the alternative is to avoid the sufficiency argument by remanding for retrial on the other grounds. But unless the reasons for a new trial are defeated by reviewing the sufficiency first, including the inadmissible evidence, generally the review should be granted. That is what Burks requires.

The Arkansas Supreme Court, in Harris, explained its reasoning in this manner:

Because of unfortuitous errors by the trial court and the defendant's right to object to those errors, the defendant should not be precluded from a review of the sufficiency or, in the alternative forced to gamble entirely on the sufficiency issue by electing to forego all other objections. For an appellate court to avoid the argument by reversing on other grounds would ignore the protection intended by the double jeopardy clause as interpreted in Burks.

In resolving the issue of sufficiency of the evidence in a criminal case, we review the evidence in the light most favorable to the appellee and affirm if there is any substantial evidence to support the verdict. Substantial evidence is evidence that is of sufficient force and character that it will compel a reasonable mind to reach a conclusion one way or the other, but it must force the mind to pass beyond suspicion or conjecture. Honea v. State, 15 Ark.App. 382, 695 S.W.2d 391 (1985).

Most of the evidence in this case was in the form of testimony from the victim, Elaine Maples. She stated that on the evening of February 4, 1984, she and appellant were on their way from Perryville to Little Rock to go dancing. On the way they pulled off on a dirt road near Ferndale, in Pulaski County, and Mrs. Maples left the car momentarily. When she returned, appellant tried to kiss her and she refused. Appellant then drove "up into the mountains," stopped the car again, locked the doors, and climbed on top of her. When she resisted appellant's advances he began slapping her and calling her names. Appellant then pulled out a knife, put it to Mrs. Maples' throat and threatened to "cut her up into little pieces and chunk her into the lake." He later pulled out two guns and told her he was going to blow her head off. After several similar threats, he put the guns away, drove back down to the highway and drove Mrs. Maples back to Perryville.

We find that this evidence is of sufficient force and character to constitute sufficient evidence to support the conviction of appellant for aggravated assault.

Appellant's second point for reversal is closely related to the first. He argues that it was impossible for the jury to find all the elements of aggravated assault after rejecting the charge of attempted murder in the first degree. He contends that this results in there being insufficient evidence to support the jury's verdict. Appellant cites no authority for his position and his argument is not convincing. See Davis v. State, 12 Ark.App. 79, 670 S.W.2d 472 (1984).

In order for the jury to convict appellant for attempted first degree murder, it would have had to find that he acted with a premeditated and deliberated purpose to cause the death of Mrs. Maples. Ark.Stat.Ann. § 41-1502 (Repl.1977). Aggravated assault, Ark.Stat.Ann. § 41-1604 (Repl.1977), is committed when a person purposely engages in conduct that creates a substantial danger of death or serious physical injury under circumstances manifesting extreme indifference to the value of human life. It was permissible for the jury to reject the more serious charge, which would require a finding of the higher degree of culpability than was required of the lesser included offense, and to find appellant guilty of the lesser offense.

In his third argument, appellant urges that the trial judge erred when, over defense objection, he permitted the State to present a character witness to bolster Mrs. Maples's character. Appellant argues that permitting Sheriff Byrd of Perry County to testify as to the reputation of Elaine Maples for truthfulness and honesty before her character had been attacked by the defense was improper. The State maintains that Elaine Maples's character had been attacked during opening statement and on cross examination.

The credibility of any witness, including a defendant, is always an issue, but the character of a witness may only be brought into issue in accordance with the rules of evidence. Uniform Rules of Evidence, Rule 608(a)(2) states that "evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise." In Arkansas there is no ironclad rule of law as to what constitutes an attack on the character of the witness. E. Cleary, McCormick on Evidence, § 49 (3d ed.1984), states that even a "slashing cross examination" may constitute an attack on the character of the witness. He concludes:

A more sensible view is the notion that the judge should consider in each case whether the particular impeachment for inconsistency and the conflict in testimony, or either of them, amounts in net effect to an attack on character for truth and should exercise his discretion accordingly to admit or exclude the character support.

In Collins v. State, 11 Ark.App. 282, 669 S.W.2d 505 (1984), we agreed with this view, and adopted the position that this matter should be left to the trial court's discretion. In Collins, the appellant testified that the eleven-year-old victim of carnal abuse was lying. He said everything she said was a lie and that her grandmother put her up to it. In that case, this court held that the matter was properly left to the trial judge's discretion.

Examination of the record in the instant case, however, does not...