Ward v. State, CA

• Decision Date: 11 May 1983
• Docket Number: No. CA,CA
• Citation: 8 Ark.App. 209,649 S.W.2d 849
• Parties: John Andrew WARD, Appellant, v. STATE of Arkansas, Appellee. CR 82-186.
• Court: Arkansas Court of Appeals

Page 849

649 S.W.2d 849

8 Ark.App. 209

John Andrew WARD, Appellant, v. STATE of Arkansas, Appellee.

No. CA CR 82-186.

Court of Appeals of Arkansas.

May 11, 1983.

Ken Cook, Deputy Public Defender, West Memphis, for appellant.

Steve Clark, Atty. Gen. by Velda P. West, Asst. Atty. Gen., Little Rock, for appellee.

CORBIN, Judge.

Appellant, John Andrew Ward, was charged by information with the offenses of burglary and theft of property. He was also charged with being an habitual criminal. A Crittenden County Circuit Court jury found him guilty and assessed punishment for a term of thirty years in the Arkansas Department of Correction for the offense of burglary and ten years for the offense of theft of property with the sentences to run concurrently. We affirm.

The only question presented by this appeal is whether the evidence is sufficient to sustain a conviction of burglary. Appellant relies on the case of Norton v. State, 271 Ark. 451, 609 S.W.2d 1 (1980), for the proposition that "the prosecution must prove each and every element of the offense of burglary beyond a reasonable doubt and cannot shift to the defendant the burden of explaining his illegal entry by merely establishing it." This ruling was founded on the decision of Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), wherein the U.S. Supreme Court invalidated a Maine homicide statute which implied malice aforethought in any criminal prosecution of an intentional homicide unless the defendant established by the preponderance of the evidence that the homicide was committed in the heat of passion. The Arkansas Supreme Court quoted from Patterson v. New York, 432 U.S. 197, 215, 97 S.Ct. 2319, 2329, 53 L.Ed.2d 281 (1977), a case which was decided subsequent to Mullaney, supra, as follows:

Mullaney surely held that a State must prove every ingredient of an offense beyond a reasonable doubt, and that it may not shift the burden of proof to the defendant by presuming that ingredient upon proof of the other elements of the offense.... Such shifting of the burden of persuasion with respect to a fact which the State deems so important that it must be either proved or presumed is impermissible under the Due Process Clause.

The Arkansas Supreme Court then ruled that "the well established principles enumerated by the United States Supreme Court in Patterson and Mullaney are controlling upon us today. Accordingly, we hold a specific criminal intent, which is an essential element of the crime of burglary, cannot be presumed from a mere showing of illegal entry of an occupiable structure."

We think it is important to note that Justice Mays distinguished the Court's decision in Norton, supra, from that of Grays v. State, 264 Ark. 564, 572 S.W.2d 847 (1978), as follows:

We are not unmindful that our decision in Grays v. State, 264 Ark. 564, 572 S.W.2d 847 (1978), may suggest that the specific intent requirement of burglary may be presumed from the unexplained illegal entry of an occupiable structure. In Grays, however, the defendant fled, eluding the police officers, when his presence was discovered in the occupiable structure. We have consistently suggested that the flight of an accused to avoid arrest is evidence of his felonious intent.

Thus, the issue squarely before us is whether or not reasonable minds could, after finding from the evidence that a person was in possession of recently burglarized property, infer beyond a reasonable doubt that that person made an unauthorized entry of the structure from which the property was taken with an intent to commit a theft or felony.

If the State had established appellant's guilt solely on the basis of his possession of recently burglarized property, reversal would be mandated. However, the State may demonstrate by additional empirical evidence that a presumed fact is more likely than not to flow from the proven fact on which it is made to depend. For example, before a jury can be instructed that if it finds one proven fact, i.e., possession of property recently stolen in a burglary, the inference must be one which reasonable minds beyond a reasonable doubt could draw from the proven fact.

In the instant case, the State put on additional empirical evidence. It may well have been circumstantial evidence; however, a jury is quite capable of sifting through the evidence to arrive at the truth. All of the elements of an offense may be shown by circumstantial evidence. Smith v. State, 264 Ark. 874, 575 S.W.2d 677 (1979). Evidence that is circumstantial is not insubstantial. The law makes no distinction between direct evidence and evidence of circumstances from which the fact may be inferred. Williams v. State, 258 Ark. 207, 523 S.W.2d 377 (1975). When circumstantial evidence rises above suspicion and is properly connected, and, when, viewing that evidence in the light most favorable to the State, the jury is not left to speculation and conjecture alone in arriving at its conclusion, it is basically a question for the jury to determine whether the evidence excludes every other reasonable hypothesis. It is only every other reasonable hypothesis, not every hypothesis, that must be excluded by the evidence. Upton v. State, 257 Ark. 424, 516 S.W.2d 904 (1974).

The reasonable doubt standard is the proper standard at the trial court level but it is not the proper standard on appeal. This point was recently clarified in Cassell v. State, 273 Ark. 59, 616 S.W.2d 485 (1981), where the Court stated:

... although the jury should be instructed, as it was here, that circumstantial evidence must be consistent with the guilt of the defendant and inconsistent with any other conclusion, AMCI 106, that is not the standard by which we review the evidence. Our responsibility is to determine whether the verdict is supported by substantial evidence, which means whether the jury could have reached its conclusion without having to resort to speculation or conjecture. Brown v. State, 258 Ark. 360, 524 S.W.2d 616 (1975); Abbott v. State, 256 Ark. 558, 561-562, 508 S.W.2d 733 (1974). The jury must be convinced of the accused's guilt beyond a reasonable doubt, but we, not having had the advantage of seeing and hearing the witnesses, are guided by the substantial evidence rule. Graves & Parham v. State, 236 Ark. 936, 370 S.W.2d 806 (1963). (Emphasis added).

Substantial evidence has been defined as evidence which is of sufficient force and character that it will with reasonable and material certainty and precision, compel a conclusion one way or the other; it must pass beyond suspicion and conjecture. Pickens v. State, 6 Ark.App. 58, 638 S.W.2d 682 (1982). We find that the evidence adduced at trial in the instant case, when viewed in the light most favorable to the State, rises above mere suspicion and conjecture.

The evidence most favorable to the State discloses that sometime between 5:00 p.m. on Friday, February 5, 1982 and Monday morning, February 8, 1982, the bandroom at Wonder Junior High School in West Memphis, Arkansas, was broken into. Several musical instruments were stolen. Sergeant Moss of the Memphis Police Department testified that he was called to Moore's Pawnshop on Monday morning, February 8, 1982. He asked appellant for credentials or proof of ownership of the musical instruments which appellant was attempting to pawn. Appellant first stated that he belonged to a band which had disbanded and that the instruments belonged to him. Sergeant Moss allowed appellant to go to his automobile to retrieve his credentials. Appellant got in his automobile and sped away by going in the wrong direction down a one-way street. Sergeant Moss was able to get a partial license number of the automobile and reported it to the West Memphis Police Department. The police later found the automobile in which appellant fled at appellant's home with the license tag removed. Sergeant Moss identified photos of both appellant and the automobile. Officer Mike Carter of the West Memphis Police Department arrested appellant and testified as to appellant's responses during interrogation. Officer Carter testified that appellant advised him that he had not gone to Moore's Pawnshop in Memphis, Tennessee, on February 8, 1982, to pawn musical instruments. He stated that appellant told him he was at work on February 8, 1982. However, the payroll clerk of appellant's employer testified that appellant was not at work on February 6, 7, or 8. The prosecution established that three of the four instruments which appellant attempted to pawn had serial numbers matching those stolen from the bandroom at Wonder Junior High School.

Moreover, appellant testified at trial that he had in fact attempted to pawn the musical instruments at Moore's Pawnshop in Memphis on the...