Sims v. State
| Decision Date | 20 March 1972 |
| Docket Number | No. 5664,5664 |
| Citation | 252 Ark. 147,477 S.W.2d 825 |
| Parties | Patricia Lea SIMS, Appellant, v. STATE of Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
Tackett, Moore, Dowd & Harrelson, Texarkana, for appellant.
Ray Thronton, Atty. Gen., by Henry Ginger, Deputy Atty. Gen., Little Rock, for appellee.
Patricia Lea Sims, appellant herein, was convicted of two counts of grand larceny (charged in separate informations) and her punishment fixed at imprisonment in the Arkansas Department of Corrections for two years on each charge. The sufficiency of the evidence for conviction is not questioned, but two asserted errors are relied upon for reversal in this court. First, it is asserted that the court erred in permitting the prosecuting attorney to question appellant about a bond forfeiture for an alleged misdemeanor of vagrancy by prostitution, and it is also contended that the court erred in failing to grant a mistrial after the prosecuting attorney mentioned to the jury that he had wanted to introduce testimony of previous thefts of appellant but the trial judge would not permit him to do so. We proceed to a discussion of these points, but in reverse order.
The nature of the second point is explained by a stipulation entered into between the prosecuting attorney and appellee's counsel, Paragraph I reading as follows:
'Immediately after the Defendant, Patricia Lea Sims, testified on direct examination, leaving an inference that she was well acquainted with the prosecuting witnesses and their homes, having visited and worked there on numerous occasions, and that she had never before been accused of theft at those homes, the Prosecuting Attorney called the defense attorney to the Judge's bench, and outside hearing of the Jury, suggested to the Trial Judge that he be permitted to introduce proof that on previous occasions when the Defendant was in those homes items had been missed and recovered at her home, and that the prosecuting witnesses believed that the Defendant had stolen those items; that Trial Court Judge Bobby Steel advised the Prosecuting Attorney that he was not permitted to delve into other alleged thefts by the Defendant even though he was permitted to prove any prior criminal convictions of the Defendant.
The stipulation further reflects that during the final argument before the jury, defendant's counsel stated to the jury that 'If the Defendant was a thief it was strange to know why there had not been any evidence adduced to that effect even though the Defendant had been afforded many opportunities to steal in the past while visiting in the prosecuting witnesses' homes as a babysitter and friend of children of her like age.' This argument was answered by the prosecuting attorney by commenting to the jury:
'That he had wanted to introduce testimony of previous thefts by the Defendant at the homes of the prosecuting witnesses, that he had approached the Trial Judge in the presence of the defense attorneys and asked the Judge to permit him to introduce such testimony; and that the Trial Judge had ruled that the Prosecuting Attorney would not be permitted to introduce any such testimony unless there had been a conviction of the Defendant concerning same.'
Defense counsel objected and moved for a mistrial whereupon the court instructed the jury that the remarks were not admissible and that they should disregard the comments of the prosecuting attorney, and the court further requested that if any member of the jury could not disregard the comments to let it be known by a show of hands. No juror indicated that he could not disregard the remarks; counsel for appellant again moved for a mistrial which the court denied.
We think reversible error was committed, even though the trial court commendably sought to remove any possible prejudice from the minds of the jurors and asked that members of the jury who could not disregard the remarks of the prosecutor should so signify by lifting their hands. We have said that error is presumed to be prejudicial unless it can be clearly shown that it was not. Cabbiness v. State, 241 Ark. 898, 410 S.W.2d 867. Though no juror lifted his hand, we are mindful that at that stage of the trial, a juror would have been most reluctant to indicate that a remark made during argument, about an occurrence not in the record, would have any effect upon his thinking.
At first blush, it would appear that counsel for defendant invited the remarks of the prosecutor but a study of the stipulation reveals that defense counsel said no more than he was perhaps entitled to say. The remark by counsel, as stipulated, was that if Mrs. Sims was a thief, it was strange to know why there had been no evidence introduced to that effect even though opportunities had been afforded when she formerly visited in the homes of the prosecuting witnesses. The only legal evidence that could have been offered during the trial that she was a thief would have been by asking her on cross-examination if she had been convicted of larceny (or if she had committed an act of larceny). This was not done, undoubtedly because the state's attorney knew that there were no such convictions. The evidence that he had sought to offer was that on previous occasions, when appellant was in the homes, items had been missed and recovered at her home, and the prosecuting witnesses believed that she had stolen those items. Of course, none of this evidence was admissible in the current trial, and the learned trial judge so held. The remark by the prosecuting attorney was that he had wanted to introduce testimony of previous thefts; however, the stipulation clearly shows that he had not tried to introduce testimony of previous thefts, but had only desired to introduce testimony of suspicious circumstances that indicated appellant might be guilty of theft. After thorough deliberation, we have reached the conclusion that the court should have granted the motion for a mistrial, and committed error by not doing so.
Relative to the first point mentioned by appellant for reversal, the record reveals the following during the cross-examination of Mrs. Sims:
'Q. Let me ask you this. Have you ever earned any money as a prostitute?
Q. Have you ever been convicted of vagrancy by prostitution?
A. No, I wasn't.
Q. You mean to tell me that on March 17, 1971, you didn't post bond and forfeit that bond in the sum of $159.25 on a charge of vagrancy by prostitution?
A. Yes, sir, I was charged, but I wasn't convicted.
Q. You forfeited a bond. Is that correct?
We do not seem to have passed on the question of whether a bond forfeiture constitutes a conviction in a misdemeanor case, and no cases are cited to us. 1 However there is no necessity to discuss that specific question for it is apparent that the objections made do not reach the question of whether it was proper or improper to question appellant about the bond forfeiture. The objection made by counsel (really not an objection) is only that questions are being asked about matters other than burglary and grand larceny. The second objection was simply a renewal of the first. Of course, it was entirely proper to interrogate Mrs. Sims about previous convictions as a matter of going to the credibility of the witness--but the objection that a bond forfeiture did not constitute a conviction, and appellant was thus only being asked about a charge against her, was not made. We find no merit in this contention.
Because of the error in refusing to grant the mistrial, the judgment is reversed, and the cause remanded.
It is so ordered.
I would affirm this judgment. To begin with, I am of the opinion that the testimony proffered by the prosecuting attorney was admissible in evidence, even though it tended to prove other offenses by appellant. I do not agree with the majority characterization of the proffered testimony as suspicious circumstances only, apparently made because the owners of the lost property believed that their babysitter had stolen their missing property found in her possession. This was more than suspicion; it was evidence of larceny, at the most, and possession of stolen property, at the least. The proffered testimony was sufficient to have made a prima facie case of larceny, and to support a jury verdict. Holcombe v. State, 217 Ark. 407, 230 S.W.2d 487; Lee v. State, 200 Ark. 964, 141 S.W.2d 842; Lee v. State, 200 Ark. 1189, 141 S.W.2d 845; Holland v. State, 198 Ark. 933, 132 S.W.2d 190; Riley v. State, 184 Ark. 227, 42 S.W.2d 15; Dennis v. State, 169 Ark. 505, 275 S.W. 739; McDonald v. State, 165 Ark. 411, 264 S.W. 961; Wiley v. State, 92 Ark. 586, 124 S.W. 249.
That evidence of offenses or acts similar to the one charged may be competent for the purpose of showing knowledge, intent or design is as thoroughly established as the general proposition that other crimes of offenses cannot be shown in evidence against a defendant...
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