Oliver v. State, CA
| Decision Date | 03 April 1985 |
| Docket Number | No. CA,CA |
| Citation | 687 S.W.2d 850,14 Ark.App. 240 |
| Parties | Lonnie OLIVER, Appellant, v. STATE of Arkansas, Appellee. CR 84-135. |
| Court | Arkansas Court of Appeals |
William R. Simpson, Public Defender by Arthur L. Allen, Deputy Public Defender, Little Rock, for appellant.
Steve Clark, Atty. Gen. by Joyce Rayburn Greene, Asst. Atty. Gen., Little Rock, for appellee.
The appellant was convicted in a jury trial of the offense of burglary and was sentenced to five years in the Department of Correction and assessed a fine of $1000.00. We affirm.
Appellant's first argument is that the evidence was insufficient because it did not show intent to commit an act punishable by imprisonment.
A Little Rock policeman testified that in the early morning hours of October 9, 1983, he responded to an alarm call at Stephens School. After finding the doors on the east side of the building locked, he walked around a corner of the building and saw a pair of feet coming out of a window. He stepped back and watched a man, whom he identified as the appellant, climb out the window. The policeman called for the man to halt, but he started running, jumped two fences, raced through the neighborhood, and was finally taken into custody when found hiding on the back porch of a house about three blocks from the school.
The officer testified there was a security light in the area where the man climbed out of the window and that he could be clearly seen. There was testimony by the officer and school personnel that the window was in a room in which desk drawers and file cabinets had been opened, and things had been scattered all over the floor. The window had been broken, the wires to the alarm system had been cut, and a bicycle, identified by appellant's girl friend as belonging to him, was found near the broken window.
Burglary is committed by entering or remaining unlawfully in an occupiable structure of another person with the purpose of committing therein any offense punishable by imprisonment. Ark.Stat.Ann § 41-2002 (Repl.1977). Under Ark.Stat.Ann. § 41-2001(1), a building where people assemble for purposes of education is an occupiable structure regardless of whether it was occupied at the time of the crime. Barksdale v. State, 262 Ark. 271, 555 S.W.2d 948 (1977). However, in Norton v. State, 271 Ark. 451, 609 S.W.2d 1 (1980), the court acknowledged that Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), held that due process requires the prosecution to prove beyond a reasonable doubt every element of the crime charged; and the Norton opinion stated that specific criminal intent and illegal entry are both elements of the crime of burglary, and that existence of the intent cannot be presumed from a mere showing of the illegal entry. In Norton the conviction of burglary was reversed because, "At most, the evidence revealed the appellant was standing inside the doorway of an office building which he had illegally entered and from which nothing was taken." So the appellant contends that since, in the instant case, nothing was taken from the school, there is no evidence that he intended to commit a crime punishable by imprisonment.
We think, however, there is evidence here, not present in Norton, that is sufficient to support a finding of the requisite intent. In Golden v. State, 10 Ark.App. 362, 664 S.W.2d 496 (1984), we said evidence that the appellant had rifled a secretary's desk and removed some Band-Aids after an illegal entry into the building was direct evidence of his intent to commit a misdemeanor theft which is punishable by imprisonment. And in Jimenez v. State, 12 Ark.App. 315, 675 S.W.2d 853 (1984), we held evidence that items had been wrapped in curtains torn from a living room window, and that dishes, glasses and silverware had been wrapped in towels and placed in a large pail was sufficient to support a finding that the appellant, who was arrested inside an unoccupied house he had broken into, intended to commit a theft punishable by imprisonment. The evidence here is somewhat similar to that in Golden and Jimenez.
In addition, in this case, there is evidence that the appellant fled from the police officer and Norton said, "We have consistently suggested that the flight of an accused to avoid arrest is evidence of his felonious intent." Furthermore, the evidence here is sufficient to establish criminal mischief in the second degree, Ark.Stat.Ann. § 41-1907 (Repl.1977), a class B misdemeanor punishable by not more than 90 days imprisonment in the county jail, Ark.Stat.Ann. §§ 41-901 and 41-902 (Repl.1977). Of course, the jury's verdict was based largely upon circumstantial evidence, but it presented a question for the jury to determine. Drew v. State, 8 Ark.App. 120, 648 S.W.2d 836 (1983). On appeal we view the evidence in the light most favorable to the State, Johnson v. State, 7 Ark.App. 172, 646 S.W.2d 22 (1983), and when viewed in that light we find that the verdict is supported by substantial evidence.
Appellant's second argument is that a mistrial should have been granted because of a remark made during the prosecuting attorney's closing argument.
This is a matter that has been carefully considered in a number of cases. In Phillips v. State, 12 Ark.App. 319, 676 S.W.2d 753 (1984), we recognized that a prosecuting attorney's comment on the failure of the accused to testify violates the privilege against self-incrimination granted by the fifth amendment to the United States Constitution. See Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965) and United States v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983). Phillips also discussed the Arkansas cases dealing with this issue and there is no need to reiterate that discussion here. The sum of the matter is that the prosecutor may not make any direct reference to the failure of the accused to testify but may argue the weight of the evidence and state that the testimony of a witness is uncontradicted; however, undue repetition of the fact that the evidence is uncontradicted or the use of language calculated to call the jury's attention to the failure of the accused to testify, will cause a mistrial or reversal. See Moore v. State, 244 Ark. 1197, 1209, 429 S.W.2d 122 (1968) and Hall, The Bounds of Prosecutorial Summation in Arkansas, 28 Ark.Law Rev. 55 (1974).
In this case the prosecutor said in his closing argument:
As we told you in voir dire and we went through this quite a bit and all during the trial we've got two elements that we've got to prove. Three if you count the defendant being there and Officer Cullison said that was him. So let's make a little triangle here for the defendant and set him aside over here because Officer Cullison's testimony is unrefuted.
Counsel for appellant interrupted and at the bench, out of the jury's hearing, he objected on the basis that the prosecutor had made a comment on the defendant's not testifying, and counsel asked for a mistrial. The prosecutor responded by saying that the testimony of the officer was that he saw the defendant and that defense counsel could have asked on cross-examination whether Officer Cullison was mistaken about defendant's identity, but he did not. The prosecutor told the court that what he had said was a comment on defense counsel's cross-examination of the officer and the officer's testimony rather than on defendant's failure to testify.
We said in Phillips: "The prosecutor must be able to argue the weight of the evidence, including the fact that the witness' testimony was consistent and uncontradicted." And the Arkansas Supreme Court said in Perry v. State, 277 Ark. 357, 372, 642 S.W.2d 865 (1982):
We are not in a position to know how the statement was delivered, with what inflections and emphasis, and are not able to see how the jury perceived it. The trial court has a broad latitude of discretion in supervising and controlling arguments of counsel and its decisions are not subject to reversal unless there is manifest abuse of that discretion.
In our case the trial judge saw and heard the whole occurrence. The record shows that after the jury argument was completed, the judge went into chambers and listened to the tape of this matter. He obviously gave it careful consideration and we cannot say he erred in refusing to grant a mistrial.
The final argument made by appellant is that the court erred in refusing to allow the jury to take the written jury instructions into the jury room during its deliberations.
The record shows that after the jury had been instructed and closing arguments had been made, the court went into chambers with the attorneys to listen to the tape of the closing argument in order to pass upon the appellant's motion for mistrial as has been discussed above. After denying the motion for mistrial, the record discloses the following exchange between the court and counsel:
If the State has no objection to it I will provide all of the instructions then to the jury.
[PROSECUTING ATTORNEY:]
Can we tear off the second part or--I am concerned about the one on the criminal trespass.
Also on my instruction on breaking and entering that was just some cursory notes that I had made.
[DEFENSE ATTORNEY:]
I don't know that they need the penalty instructions since they have the verdict forms.
I am going to change my mind. I am not giving them the instructions unless they request and then I will give them all of them.
[PROSECUTING ATTORNEY:]
In the meantime we can get some other ones up here changing or get a copy of criminal trespass as given.
Right. We can cut that paragraph off of here if you want to.
[DEFENSE ATTORNEY:]
Your Honor, that is over my objections that you are not going to give the jury the instructions.
All right. Bring the jury back in.
The appellant calls attention to Rule 33.3 of the Rules of Criminal Procedure which provides...
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