Rudd v. State

Decision Date24 February 1992
Docket NumberNo. CR,CR
Citation308 Ark. 401,825 S.W.2d 565
PartiesJimmy Wayne RUDD, Appellant, v. STATE of Arkansas, Appellee. 92-120.
CourtArkansas Supreme Court

Mikke Connealy Bracey, Blytheville, for appellant.

Catherine Templeton, Asst. Atty. Gen., Little Rock, for appellee.

GLAZE, Justice.

Appellant appeals his conviction of burglary and his revocation of probation for which he received consecutive sentences of twenty-four years and ten years. Because of a number of prior convictions, appellant was sentenced as a habitual offender. Appellant argues the trial court erred in allowing the state to introduce into evidence his prior burglary, theft, breaking or entering and forgery convictions. He also claims the evidence was insufficient to support the burglary charge. As his final point for reversal, he contends the trial court erred in its decision to hold appellant's revocation hearing during an interlude at the burglary trial.

The state's burglary charge against appellant arose from Mrs. Jonnie Rogers' claim that appellant broke into and entered her house. Rogers was appellant's friend and had known him for ten years. At trial, the state presented four witnesses, but its case was largely based upon the testimony of Rogers. She testified that, on March 5, 1990, she agreed that appellant could bring his daughter the next day to visit the Rogers children. Because she had to work, she told appellant to come to her house about 4:00 p.m. Rogers said that she was awakened at about 8:15 a.m. on March 6 by someone knocking on her door. By the time Rogers got up and looked out her window, she saw appellant and his daughter getting into his car to drive away. Rogers returned to bed.

Rogers was awakened an hour later after she heard something hit against the back door that rattled the windows. Rogers thought her husband was attempting to gain entrance into the house because she had failed to awaken and to let him in. Instead, after she heard the back door open and went to the kitchen, she saw appellant standing by the refrigerator. He was standing and looking at a scanner sitting on a table, but he had nothing in his hands. Rogers asked appellant what he was doing there, and appellant responded, saying he had seen "two Burnett boys running from the alley and [he] came in to see what they had taken out of her house." Rogers said that, during the conversation, the appellant pulled off a glove that he had been wearing.

Rogers' neighbors, Willie Blackman and John McCliden, testified as to having seen the appellant at the Rogers' house on the morning of March 6. Blackman first saw appellant with his daughter at 8:00 a.m., but he later saw appellant alone entering the Rogers' front yard and saw him walking west on Poplar Street. McCliden said that he, too, saw appellant when appellant "[came] out from behind the Rogers' house to sit on the Rogers' porch for a few minutes." Officer Barry Miller, who investigated Rogers' complaint, confirmed that the back door to the Rogers' house had been forced open. After Officer Miller's testimony, appellant moved for a directed verdict. The trial court ruled the state had made a prima facie case, and denied appellant's motion.

Appellant then took the stand, and in his testimony, admitted having entered the Rogers' house on March 6, but denied he burglarized it. Basically, he claimed that Rogers either lied or was mistaken in testifying that she had told appellant on March 5th to bring his daughter at 4:00 p.m. the next day. His version was that he was to bring his daughter the next morning. Appellant claims when he first talked to Rogers on the morning of March 6th, Rogers said that she had to check on a job. Appellant said that he would go to town and come back later. He denied having broken into the Rogers' back door when he returned, but instead claimed he saw two people running (apparently from the Rogers' house) and after hollering at them, he saw the screen door to the Rogers' house was wide open. In addition to denying much of Rogers' testimony, appellant denied the versions given by Blackman and McCliden about seeing appellant go west on Poplar Street and observing him sitting on the Rogers' porch.

During the state's cross-examination of appellant, it proffered five prior convictions, contending their admissibility under A.R.E. Rule 404(b). Over appellant's objection, the trial court ruled that, because appellant's defense was based upon mistake, the burglary and theft convictions had independent relevance to show intent and absence of mistake. As a part of its ruling, the trial court further stated that the prejudicial effect in admitting the convictions was outweighed by their probative value. The court further provided the jury with a cautionary instruction directing the evidence of appellant's prior criminal activity was for the limited purpose of establishing motive, opportunity, intention, plan, knowledge or absence of mistake. The trial court also permitted, under A.R.E.Rule 609, the state's impeachment of the appellant by the use of two convictions he received for forgery. At the end of his case, the appellant renewed his motion for directed verdict, which again was denied.

In arguing the state's evidence was insufficient to support a burglary conviction, appellant asserts we must look only at the evidence at the end of the state's case-in-chief when the appellant first moved for directed verdict. He is in error.

In an attempt to bring Arkansas's criminal and civil rules into alignment, we amended A.R.Cr.P.Rule 36.21 to add provision (b). In order to preserve a sufficiency of evidence issue on appeal, that provision requires a defendant, challenging the sufficiency of the evidence, to move for a directed verdict both at the end of the state's case and the close of the entire case. See A.R.Cr.P.Rule 36.21(b) and its Reporter's Note. The appellant, however, poses the question how does he preserve his appeal challenging the sufficiency of evidence issue as the evidence stood at the end of the state's case? 1 Professor LaFave discussed this issue as follows:

... [I]f the motion is made at the conclusion of the prosecution's case and is denied, then the defendant and his counsel must make the tactical decision of whether to put in evidence and thus waive the right to appeal from the previous denial, or to introduce no evidence and preserve that right. Of course, the former course does not bar defendant from again moving for acquittal at the close of all the evidence, but then the court may properly consider evidence damaging to the defendant that may have come out during the presentation of his case.

LaFave and Israel, 3 Criminal Procedure, § 23.6(a) (1984); see also Wright, Federal Practice and Procedure, Criminal 2d, § 463 (1982).

Although we have not addressed this issue in the context of a criminal case, this court has decided it in the case of Willson Safety Products v. Eschenbrenner, 302 Ark. 228, 788 S.W.2d 729 (1990). There, we held that a motion for a directed verdict at the close of the plaintiff's case has as its purpose a procedure for determining whether the plaintiff has met the burden of establishing a prima facie case, with that question to be resolved by the court as a matter of law. In the event the motion is overruled, the defendant may elect to stand on the motion or to go forward with the production of additional evidence, in which case he has waived any further reliance upon the former motion.

In the present case, appellant chose to testify in an effort to explain his reasons for being found inside the Rogers' house. As described above, his version of what occurred on the morning of March 6th conflicted in many respects to the stories given by Rogers, Blackman, McCliden and Officer Miller. In any event, the appellant, by presenting evidence in his defense, waived his former motion for directed verdict, so we decide his challenge to the sufficiency of evidence as the evidence existed at the close of the case when he renewed his motion.

A person commits burglary when he enters or remains unlawfully in an occupiable structure of another person with the purpose of committing therein an offense punishable by imprisonment. Ark.Code Ann. § 5-39-201(a) (1987). The jury must find that the defendant had the purpose to commit a particular offense. Forgy v. State, 302 Ark. 435, 790 S.W.2d 173 (1990). However, if he had such a purpose in mind, it could have also been shown by circumstantial evidence, if any existed, but such evidence must be consistent with the guilt of the defendant and inconsistent with any other reasonable conclusion. Cassell v. State, 273 Ark. 59, 616 S.W.2d 485 (1981). Criminal intent cannot be presumed from the mere showing...

To continue reading

Request your trial
25 cases
  • Davis v. State
    • United States
    • Arkansas Supreme Court
    • October 8, 2009
    ...v. State, 315 Ark. 541, 546, 869 S.W.2d 17, 20 (1994): The reason for the rule is obvious. As we stated in Rudd v. State, 308 Ark. 401, 405, 825 S.W.2d 565, 567 (1992): [A] motion for a directed verdict at the close of the plaintiff's case has as its purpose a procedure for determining whet......
  • Brooks v. State
    • United States
    • Arkansas Supreme Court
    • March 23, 1992
    ...to support the jury verdict." Ark.R.Cr.P. 36.21(b). We have affirmed the rule repeatedly in our decisions. See, e.g., Rudd v. State, 308 Ark. 401, 825 S.W.2d 565 (1992). We do so again III. Admissibility of Knife into Evidence A knife was found between the front seat and console in the car ......
  • Durham v. State
    • United States
    • Arkansas Supreme Court
    • June 5, 1995
    ...274 (1995). It is also true that we have held that a defendant waives the first motion made when he presents a case. Rudd v. State, 308 Ark 401, 825 S.W.2d 565 (1992). It is further true that we have taken pains in this area to assure that the trial court is apprised of the same arguments t......
  • Atkins v. State, CA
    • United States
    • Arkansas Court of Appeals
    • October 14, 1998
    ...as such evidence is consistent with the guilt of the defendant and inconsistent with any other reasonable conclusion. Rudd v. State, 308 Ark. 401, 825 S.W.2d 565 (1992) (citing Cassell v. State, 273 Ark. 59, 616 S.W.2d 485 It is well settled that the flight of an accused to avoid arrest is ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT