Jenkins v. State

Kimberly JENKINS v. STATE of Arkansas

CA CR 97-98                                        ___ S.W.2d ___

                  Court of Appeals of Arkansas
                         Divisions I &II
               Opinion delivered December 22, 1997


1.   Evidence -- challenge to sufficiency of -- factors on review.
     -- The test for determining the sufficiency of the evidence is
     whether the verdict is supported by substantial evidence,
     direct or circumstantial; substantial evidence is evidence
     forceful enough to compel a conclusion one way or the other
     beyond suspicion or conjecture; in determining the sufficiency
     of the evidence, the appellate court reviews the proof in the
     light most favorable to the appellee, considering only the
     evidence that tends to support the verdict.

2.   Evidence -- jury not required to believe appellant's testimony
     -- conviction supported by substantial evidence. -- Where
     there was evidence presented that appellant viewed the stolen
     slides prior to the time that they were discovered missing,
     and that when confronted at one jewelers she denied ever being
     in the other victim's jewelry store, when in fact she had been
     and later so admitted; the jury was entitled to disbelieve her
     story that a boyfriend gave her the slides as a Christmas
     gift, particularly since she received the slides in early
     December; and although appellant denied stealing the slides or
     having knowledge that they were stolen, the jury was not
     required to believe this testimony; from all the
     circumstances, there was ample evidence from which the jury
     could reasonably conclude that appellant was in possession of
     property that she knew to be stolen.

3.   Appeal & error -- no objection made at trial to jury
     instruction -- argument not preserved for review. -- Where,
     from the abstract presented, it was evident that appellant had
     not objected to the jury instruction at trial, appellant's
     argument was not preserved for review; an argument for
     reversal will not be considered in the absence of a timely
     objection; assignments of error which are unsupported by
     convincing argument or citation to authority will not be
     considered.

4.   Appeal & error -- burden of obtaining ruling concerning
     prosecutor's comments during closing argument on movant --
     unresolved questions and objections are waived. -- The
     appellate court did not address appellant's argument regarding
     various comments made during the prosecutor's closing argument
     because there is no "plain error" rule; the burden of
     obtaining a ruling is on the movant, and unresolved questions
     and objections are waived and may not be relied upon on
     appeal.

5.   Evidence -- question asked by State properly allowed --
     appellant opened door by discussing it on direct examination.
     -- Where on direct examination appellant admitted that she had
     been convicted of misdemeanor shoplifting prior to gaining
     employment as a school teacher, the State's then asking her on
     cross-examination whether she informed the school district
     about the conviction was not objectionable because appellant
     "opened the door" to the question by discussing it on direct
     examination; the appellate court found no error in allowing
     the State to ask the question in dispute.

6.   Mistrial -- extreme remedy -- mistrial not warranted. -- A
     mistrial is an extreme remedy to be used only when it is
     determined that something has occurred that will undoubtedly
     deprive a party of a fair trial; a trial court has wide
     discretion when it comes to a motion for a mistrial; here, 
     the trial court did not abuse its discretion in refusing to
     find that the contested line of questioning by the prosecution
     was improper or prejudiced appellant to such an extent that
     the granting of a mistrial was necessary.


     Appeal from Faulkner Circuit Court; Andre McNeil, Judge;
affirmed.
     Jeff Rosenzweig and Woodson D. Walker, for appellant.
     Winston Bryant, Att'y Gen., by:  Sandy Moll, Asst. Att'y Gen.,
for appellee.
     John B. Robbins, Chief Judge.
     Appellant Kimberly Jenkins was convicted by a jury of felony
theft by receiving based upon her possession of three "slides" for
a slide bracelet.  She was thereafter sentenced to pay a fine of
$4,275.00.  Ms. Jenkins now appeals, raising four points for
reversal.
     Ms. Jenkins' first argument is that the evidence was
insufficient to support her conviction.  Next, she contends that,
if we find sufficient evidence to support her conviction, the
conviction should be reduced to a misdemeanor.  Third, Ms. Jenkins
asserts that the prosecuting attorney made improper arguments to
the jury such that reversal is mandated.  Finally, Ms. Jenkins
argues that the trial court erred in refusing to grant a mistrial
due to improper impeachment of Ms. Jenkins during the trial.  We
affirm.
     When an appellant challenges the sufficiency of the evidence,
we review the sufficiency argument prior to a review of any alleged
trial errors.  Lukach v. State, 310 Ark. 119, 835 S.W.2d 852
(1992).  The test for determining the sufficiency of the evidence
is whether the verdict is supported by substantial evidence, direct
or circumstantial.  Thomas v. State, 312 Ark. 158, 847 S.W.2d 695
(1993).  Substantial evidence is evidence forceful enough to compel
a conclusion one way or the other beyond suspicion or conjecture. 
Lukach v. State, supra.  In determining the sufficiency of the
evidence, we review the proof in the light most favorable to the
appellee, considering only the evidence that tends to support the
verdict.  Brown v. State, 309 Ark. 503, 832 S.W.2d 477 (1992).
     At the trial in the instant case, Officer Chip Stokes
testified on behalf of the State.  Officer Stokes stated that
he responded to a call from a jewelry store on December 12, 1995. 
He was informed by the jewelry store owner that Ms. Jenkins was
present and was in possession of stolen jewelry.  Upon his arrival,
Officer Stokes asked Ms. Jenkins how she came into possession of
stolen jewelry, and she told him that a friend had purchased it
for her from a pawn shop in Dallas, Texas.  Ms. Jenkins was then
arrested, and according to Officer Stokes she was very cooperative
and did not protest.  Officer Stokes testified that Ms. Jenkins
possessed three "slides" that were stolen and that the slides were
valued at $275, $275, and $425.
     John David Hawks, part owner of JWC Jewelers, testified next. 
He stated that, on November 30, 1995, Ms. Jenkins came into his
store and was interested in buying some jewelry.  She then picked
out a bracelet and one slide, and put them on layaway.  A few days
later, Ms. Jenkins entered the store with two "nice looking slides"
and told Mr. Hawks to put those slides on the bracelet instead of
the slide that she had originally selected.  She explained that she
received the two slides from her boyfriend in Texas.  Mr. Hawks
thought the slides looked familiar, and after checking his
inventory he discovered that they had been stolen from the store. 
A few days later, Ms. Jenkins brought in five more slides and told
Mr. Hawks to add them to her bracelet.  He told her that he would
do so, kept the slides, and called Dayer's Jewelry and found out
that one of these slides had been stolen from that store.  When
Ms. Jenkins returned to pick up her slide bracelet, both jewelry
store owners and the police were waiting for her.  According to
Mr. Hawks, the two slides that had been stolen from his store
retailed for $275 and $270.
     Danny Cook, also part owner of JWC Jewelers, testified that
he recognized the jewelry on the bracelet as that which had been
stolen from the store.  He asked Ms. Jenkins whether she had been
in Dayer's, and she replied that she had not.  According to
Mr. Cook, when they accused Ms. Jenkins of theft she sat down and
stated, "What happens now," and acted as if a "bombshell dropped."
     Tommy Dayer, owner of Dayer's Jewelry, testified that on or
about November 30, 1995, Ms. Jenkins came into his store and wanted
to look at some slides.  One of these slides was eventually
discovered missing, and Mr. Dayer testified that this was one
of the slides that Ms. Jenkins had given to Mr. Hawks for
attachment to her bracelet.  The slide was admitted into evidence,
and Mr. Dayer identified it as being the slide that was found to be
stolen soon after Ms. Jenkins' visit to his store.  He stated that
the slide retailed for $400.
     Ms. Jenkins testified on her own behalf and did not deny that
the three slides at issue had been stolen.  However, she denied
stealing them or having any knowledge that they had been stolen. 
Rather, she indicated that the slides were a Christmas gift from
a friend in Dallas, Texas.  She acknowledged being at both JWC
Jewelers and Dayer's Jewelers, but said she did not take any of
the slides.  Ms. Jenkins admitted that in October 1994 she pleaded
guilty to misdemeanor shoplifting.  Subsequent to that time, she
acquired a teaching job in Conway and held that job through the
date of her trial.
     Ms. Jenkins' first point on appeal is a challenge to the
sufficiency of the evidence.  Arkansas Code Annotated section 5-36-
106(a) (Repl. 1993) defines theft by receiving, and provides:
     A person commits the offense of theft by receiving if he
     receives, retains, or disposes of stolen property of
     another person, knowing that it was stolen or having good
     reason to believe it was stolen.
Ms. Jenkins submits that, although she was admittedly in possession
of stolen property, there was no substantial evidence that she knew
or had good reason to know that the property was stolen.  She
points out that no one saw her take anything from either store, and
also points to her testimony that the jewelry was received from her
boyfriend as a Christmas present.  Ms. Jenkins asserts that it
would be totally illogical to buy a bracelet from a jewelry store
and then steal slides from the same store and attempt to have them
attach the stolen slides.  Under these facts, she asserts her
conviction was based on speculation and conjecture.
     We find substantial evidence to support Ms. Jenkins'
conviction.  There was evidence presented to show that Ms. Jenkins
viewed the stolen slides prior to the time that they were
discovered missing.  When confronted at JWC Jewelers, there was
evidence that Ms. Jenkins denied ever being in Dayer's store, when
in fact she had been and later so admitted.  The jury was entitled
to disbelieve her story that a boyfriend from Dallas gave her the
slides as a Christmas gift, particularly since she received the
slides in early December.  Although Ms. Jenkins denied stealing the
slides or having knowledge that they were stolen, the jury was not
required to believe this testimony, particularly since Ms. Jenkins
was the person most interested in the outcome of the trial.  See
Moore v. State, 315 Ark. App. 131, 864 S.W.2d 863 (1993).  From all
the circumstances, there was ample evidence from which the jury
could reasonably conclude that Ms. Jenkins was in possession of
property that she knew to be stolen.
     Ms. Jenkins next contends that her conviction should at least
be reduced to a misdemeanor.  She notes that the information
charged her with possession of over $500 worth of stolen property,
and that the jury was instructed to convict her of a felony if the
stolen goods exceeded $200 in value.  In 1995, our legislature
increased the minimum threshold for felony theft from $200 to $500. 
See Ark. Code Ann.  5-36-103(b)(2)(A) (1995 Supp.)  However, the
legislature did not change the minimum felony threshold for theft
by receiving.  Nevertheless, Ms. Jenkins submits that, although not
explicitly stated by the 1995 amendments, the felony threshold for
theft by receiving was also increased due to the language of Ark.
Code Ann.  5-36-102(a)(2) (Repl. 1993).  Arkansas Code Annotated
section 5-36-102(a)(2) (Repl. 1993) provides:
     A criminal charge of theft may be supported by evidence
     that it was committed in any manner that would be theft
     under this chapter, notwithstanding the specification of
     a different manner in the indictment or information,
     subject only to the power of the court to ensure fair
     trial by granting a continuance or other appropriate
     relief where the conduct of the defense would be
     prejudiced by lack of fair notice or by surprise.
Ms. Jenkins argues that the jury should have been instructed that
the offense was a misdemeanor if the value was $500 or less, and
further submits that there was insufficient evidence to prove that
the aggregate value of the three slides exceeded $500.
     From the abstract presented, it is evident that there was no
objection made to the jury instruction now at issue.  It is well
settled that an argument for reversal will not be considered in
the absence of a timely objection.  Pharo v. State, 26 Ark. App.
268, 764 S.W.2d 458 (1989).  Ms. Jenkins contends that no objection
was necessary because this was a "structural error" going to the
heart of the offense.  However, she gives no authority for this
proposition.  We will not consider assignments of error which are
unsupported by convincing argument or citation to authority. 
Womack v. State, 36 Ark. App. 133, 819 S.W.2d 306 (1991).  As a
result of Ms. Jenkins' failure to object, her second point on
appeal has not been preserved for our review.
     Ms. Jenkins' next contention is that the prosecuting attorney
engaged in improper argument that warrants reversal.  Ms. Jenkins
essentially contends that the prosecutor repeatedly indicated to
the jury that Ms. Jenkins was not presumed to be innocent because
she was unable to give an adequate explanation for being in
possession of stolen property.  Ms. Jenkins acknowledges that no
objection was made during the prosecutor's argument, but asserts
that none was necessary to preserve this point because the comments
were so egregious that the trial court committed plain error in
refusing to correct the statements or admonish the jury.
     We need not address Ms. Jenkins' argument regarding various
comments made during the prosecutor's closing argument.  This court
has held that there is no "plain error" rule, but instead has
consistently held that the burden of obtaining a ruling is on the
movant, and unresolved questions and objections are waived and may
not be relied upon on appeal.  Aaron v. State, 319 Ark. 320, 891 S.W.2d 364 (1995).  Ms. Jenkins cites Wicks v. State, 270 Ark. 781,
606 S.W.2d 366 (1980), for the proposition that it is incumbent
upon the trial court to intervene, even without an objection, when
a prosecutor makes improper comments to the jury.  However, in
dicta contained in that opinion, the supreme court merely suggested
that the trial court may have a duty to correct such an error
through an admonition to the jury or granting of a mistrial.  The
supreme court noted that such an exception to the contemporary
objection rule "is a mere possibility, for it has not yet occurred
in any case."  Wicks v. State, 270 Ark. at 786, 606 S.W.2d  at 369. 
We decline to extend this hypothetical exception to the general
rule that an objection is necessary to preserve a point for review,
and because no objection was made to the prosecutor's remarks in
the instant case, we fail to reach the merits of Ms. Jenkins' third
contention.
     Ms. Jenkins' remaining assertion is that the trial court erred
in refusing to grant a mistrial due to improper impeachment.  On
cross-examination, the prosecutor asked Ms. Jenkins whether she
informed the Conway Public School System of her misdemeanor theft
conviction when she applied for a job as a teacher.  Ms. Jenkins
replied that she did not disclose that information because her
employer did not ask about it.  After an objection by the defense,
the prosecution stated that it was trying to attack Ms. Jenkins'
credibility by showing that she misled her employer in order to get
a job.  Then, the defense moved for a mistrial and the trial court
denied the motion.  Ms. Jenkins now argues that the trial court's
ruling was erroneous because the elicited testimony prejudiced
the jury to the extent that she was denied a fair trial. 
Ms. Jenkins notes that the prosecution presented no proof that
the Conway School District even asked about any misdemeanor
convictions prior to hiring her.
     We find no error in allowing the State to ask the question
in dispute.  On direct examination, Ms. Jenkins admitted that she
had been convicted of misdemeanor shoplifting prior to gaining
employment as a school teacher.  The State then asked her on cross-
examination whether she informed the school district about
the conviction.  This question was not objectionable because
Ms. Jenkins "opened the door" to the question by discussing it
on direct examination.  See Larimore v. State, 317 Ark. 111, 877 S.W.2d 570 (1994).  While we do not know why Ms. Jenkins testified
on direct examination about her earlier misdemeanor, it is
conceivable that she wanted to display her candor before the court
to bolster her credibility.  The State could properly then cross-
examine her about this testimony and inquire as to whether her
candor extended to also telling her employer about the conviction
when she was applying for her teaching job.  Moreover, any possible
prejudice was diminished by the fact that Ms. Jenkins replied that
she did not inform the school district about her misdemeanor
conviction because the question was not asked when she applied for
employment.
     A mistrial is an extreme remedy to be used only when it is
determined that something has occurred that will undoubtedly
deprive a party of a fair trial.  Foreman v. State, 328 Ark. 583,
945 S.W.2d 926 (1997).  A trial court has wide discretion when it
comes to a motion for a mistrial.  Id.  In the instant case, we
find that the trial court did not abuse its discretion in refusing
to find that the contested line of questioning by the prosecution
was improper or prejudiced Ms. Jenkins to such an extent that the
granting of a mistrial was necessary.
     Affirmed.
     Pittman, Jennings, Neal, and Meads, JJ., agree.
     Rogers, J., dissents.

                Judith Rogers, Judge, dissenting.
     
     As her fourth issue on appeal, appellant contends that the
trial court erred in refusing to grant a mistrial based on an
improper impeachment tactic employed by the deputy prosecutor.  My
disagreement with the majority view lies in its failure to
acknowledge this clear and prejudicial error and in its attempt to
excuse it on the basis of invited error.   
     On direct examination, appellant admitted that she had
previously pled guilty to the misdemeanor offense of theft of
property, or shoplifting.  During the State's cross-examination of
appellant, the following transpired:
DEPUTY PROSECUTOR:  And is it true -- is it
not true that you were convicted of the crime
of theft of property in Pulaski County on
October 18, 1994?

APPELLANT:  I already said yes when Mr. Davis
brought it out.

DEPUTY PROSECUTOR:  Did you -- did you provide
this information to [the] Conway Public School
System when you applied for your job?

APPELLANT:  No, I didn't.  Everyone has skele-
tons in a closet and things that they don't
want to come out, and Conway Public Schools
didn't ask me about it.

DEPUTY PROSECUTOR:  Conway Public Schools
didn't ask you about it?  Okay.  So there
wasn't anything on your application for em-
ployment here --

DEFENSE COUNSEL:  Your honor, that has nothing
to do with this-- that's irrelevant.  We're
talking about a misdemeanor.

THE COURT:  Where are you going counselor?

DEPUTY PROSECUTOR:  I'm questioning the credi-
bility of this witness, your honor, that she
would have filled out an application for
employment and let mis--misled her employer as
to her prior convictions for crime.

DEFENSE COUNSEL:  And that's garbage, your
Honor.  She's allowed to impeach with a prior
conviction only to the tune of asking her. 
The fact it's a misdemeanor is not required on
any application, and that's just trying to
prejudice the jury with garbage, and I -- I
resent it, and I think it's improper.  I am
going to ask for a mistrial because of it. She
knows it's improper.

DEPUTY PROSECUTOR:  State would object, your
honor.  There are no such grounds for a mis-
trial at this point.

THE COURT:  I wasn't even considering that.  I
was considering whether or not this is some-
thing that the jury could consider.  I think
you have asked the question, the witness has
answered it, and I think you need to move on.

DEPUTY PROSECUTOR:  Okay.  My last question
was did she provide--I'm not sure what her
answer was now.  Did you provide this informa-
tion to the Conway Public School System?

DEFENSE COUNSEL:  I'm objecting, your honor. 
That's not required to be asked.  There's no
requirement that that be listed on a misde-
meanor, so it's an improper question.

THE COURT:  I think the witness has answered
it.  There was no requirement. 
By the deputy prosecutor's own admission, this line of inquiry was
pursued in an effort to impeach appellant's credibility by implying
that she had misled her employer by failing to divulge her previous
conviction on her application for employment.  Questions asked a
defendant about his or her previous misconduct for the purpose of
attacking credibility are governed by Rule 608(b) of the Arkansas
Rules of Evidence.  It provides:
Specific instances of the conduct of a witness
for the purpose of attacking or supporting his
credibility ... may not be proved by extrinsic
evidence.  They may, however, in the discre-
tion of the court, if probative of truthful-
ness or untruthfulness, be inquired into on
cross-examination of the witness concerning
his character for truthfulness or untruthful-
ness.
In Gustafson v. State, 267 Ark. 278, 590 S.W.2d 853 (1979), the
supreme court observed that this rule marked a change in Arkansas
law in that, before it was adopted, questioning was allowed
concerning most any kind of misconduct.  It was held that the rule
was intended to restrict the use of such evidence, and recognizing
the "highly prejudicial" nature of such information, the court set
out the following three-part test governing its application:  (1)
the question must be asked in good faith; (2) the probative value
must outweigh its prejudicial effect; and (3) the prior conduct
must relate to the witness's truthfulness.  The latter prong of the
test has since been taken to mean a lack of veracity rather than
dishonesty in general.  Rhodes v. State, 276 Ark. 203, 634 S.W.2d 107 (1982); Urquhart v. State, 30 Ark. App. 63, 782 S.W.2d 591
(1990). 
     Applying the test here, while it can be said that the
prosecution's question, implying deception, related to the issue of
truthfulness, it can hardly be said that the first and second
prongs of the test were satisfied.  Good faith was utterly lacking
since the record demonstrates that appellant was not asked to
divulge this information.  And, because she was not asked to
disclose this conviction, her failure to do so does not reflect
poorly on her capacity for truthfulness; therefore, the inquiry was
wholly without probative value.  The prosecutor's effort to impeach
appellant's credibility by insinuating that she had deceived her
employer was thus absolutely improper.
     The prejudicial effect of this error cannot be minimized.  The
mere asking of this improper question elicited a prejudicial
response from appellant about hiding "skeletons in a closet."  The
question should never have been asked, and appellant should not
have been placed in the position of defending her actions in
response to an improper question.  And, it cannot be said with
confidence that the jury was not left with the impression that
appellant had purposely hidden this information from her prospec-
tive employer, a school district no less, or that the jury did not
accept the prosecution's intimation that the conviction should have
been disclosed and that the failure to do so was misleading and
deceitful.  Appellant's credibility was vital to her defense, and
it is clear that her credibility suffered as a result of the
prosecution's misguided efforts.
     Nevertheless, the majority reasons that no harm resulted
because of her response that she was not required to divulge this
information.  However, as indicated above, the prejudice to
appellant was palpable.  Moreover, our case law recognizes the
prejudicial nature of this kind of inquiry and suggests that the
prejudicial effect is not necessarily reduced by a negative answer. 
In Gustafson, supra, the court observed:
We were also mistaken in Cox if we left the
impression that a negative answer to an im-
proper question results in no prejudicial
error.  There is no doubt that such a question
harms a defendant's case.  When it is proper,
about a type of misconduct that is relevant,
it is allowed only because it is relevant to
the determination of the credibility of the
defendant.  But to say that a negative answer
always removes the prejudice in every case
goes too far.
Gustafson v. State, 267 Ark. at 291, 590 S.W.2d  at 860.  "The
prejudicial effect of such questions is not remedied by the fact
that they were answered in the negative.  As was made clear in
Gustafson, 'There is no doubt that such a question harms a defen-
dant's case.'"  Cameron v. State, 272 Ark. 282, 286, 613 S.W.2d 593, 595 (1981).  "When answered negatively, no evidence of
misconduct has been produced, but a prejudicial question may have
been asked."  Spicer v. State, 2 Ark. App. 325, 328, 621 S.W.2d 235, 237 (1981).  "Since specific acts of misconduct may not be
proved by extrinsic evidence, Gustafson teaches that a prosecutor
hazards a reversal when he asks about prior misconduct and does not
get an answer of probative value as to the witness's truthfulness
or untruthfulness."  Summerlin v. State, 7 Ark. App. 10, 14, 643 S.W.2d 582, 585 (1982).  Given the inherent potential for prejudice
flowing from this type of impeachment, the Gustafson court even
issued a warning that prosecutors would be well advised to procure
a ruling from the trial court prior to launching into this sort of
inquiry before a jury.  Based on the facts of this case and the
foregoing authorities, I believe that the trial court abused its
discretion in failing to grant appellant's motion for a mistrial.
     Finally, I disagree with the majority's view that appellant
somehow "opened the door" to the question by discussing the
conviction on direct examination.  True, it is generally recognized
that otherwise inadmissible testimony may be offered when one party
has opened the door for another party to offer it.  Larimore v.
State, 317 Ark. 111, 877 S.W.2d 570 (1994).  This is referred to as
"fighting fire with fire," and it is permitted when a defendant has
been untruthful about a former crime or has brought otherwise
inadmissible character evidence which the State may then rebut. 
Id.  But this case does not involve such an act by appellant. 
Under the rules of evidence, appellant was not required to reveal
a prior misdemeanor conviction for theft of property; nor could the
State have brought it up on cross-examination.  Ark. R. Evid. 608;
Ark. R. Evid. 609.  Her confession of it was thus a fortuitous
occurrence for the State.  But by admitting it, she said nothing
untruthful and made no misrepresentation for the State to rebut. 
There was simply no fire to be extinguished by her admission, and
it makes no sense to conclude that her admission of it provided the
State with an opportunity to engage in improper impeachment.  In
fact, a similar conclusion was reached in Larimore v. State, supra,
curiously enough the case cited by the majority to support its
view.
     I respectfully dissent.