author: Donald L. Corbin, Justice.

text:
    Rodney BUNCH v. STATE of Arkansas
    CR 01-326
    57 S.W.3d 124
    Supreme Court of Arkansas
    Opinion delivered September 20, 2001

      James R. Wallace & Associates, by: Tammy L. Harris, for appellant.

      Mark Pryor, Att’y Gen., by: Michael C. Angel, Ass’t Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant Rodney Bunch was convicted by a jury in the Pulaski County Circuit Court of four counts of aggravated robbery, three counts of theft of property, and one count of first-degree sexual abuse. Appellant was convicted as a habitual offender and sentenced to a term of life imprisonment under the enhanced sentencing statute, codified at Ark. Code Ann. § 5-4-501 (d) (Repl. 1997). Appellant raises the following two points on appeal: (1) that the trial court erred in failing to suppress his custodial statement; and (2) that the sentence enhancement provision of section 5-4-501 (d) is unconstitutional as applied to him. We find no error and affirm.

Appellant’s convictions stem from an armed robbery of Salon MDC in Little Rock that occurred on July 16, 1998. According to witnesses, a man carrying a towel entered the salon and asked for directions to Chenal Parkway. This same man returned approximately ten to fifteen minutes later, wearing a different shirt, a red bandanna over his face, and carrying a gun in his hand. These witnesses later identified Appellant as the robber. After demanding that the people in the salon empty their purses, Appellant ordered the employees and customers to go to a back room in the salon. Appellant held one of the employees back, and while holding a gun to her forehead, ordered her to remove her clothing. He then reached his hand into the victim’s panties, penetrating her vagina with his fingers. Soon after, Appellant fled the salon.

After a witness provided police with a temporary license plate number for the suspect’s car, they were able to develop Appellant as a suspect in the Salon MDC robbery, as well as a string of other local robberies. On August 5, 1998, Detective Todd Armstrong of the Little Rock Police Department left one of his business cards with Appellant’s mother and asked that Appellant contact him. Appellant then contacted police, who informed him that they would like to talk to him about some robberies. After Appellant refused to come to the police station, authorities agreed to meet him at the intersection of Twelfth Street and Fair Park Boulevard. Armstrong, however, proceeded to the address where phone records indicated Appellant was located. After witnessing Appellant leave the house, Armstrong began to follow him. When Armstrong pulled up beside Appellant’s car, he identified himself as a police officer and stated that he wanted to talk with Appellant. Appellant then accelerated, and a high-speed chase ensued for a short time until Appellant eventually slowed down and police pulled him over to the side of the road. At that time, police took Appellant into custody on outstanding traffic warrants.

Following his arrest, Appellant was placed in an interview room where Armstrong and Detective Lynda Keel attempted to question him with regard to the robberies. During this attempted interview, Appellant became belligerent and refused to answer any questions, or even state his name. Police officials then had him transported to the county jail at approximately 4:05 a.m on August 6. At approximately 5:00 p.m. on that same day, Appellant was brought back to police headquarters to again be questioned regarding the string of burglaries. Prior to this interview, Armstrong read Appellant his rights and obtained his signature on the waiver-of-rights form. According to Armstrong, Appellant was cooperative during this interview, and ultimately gave a tape-recorded statement detailing his involvement in the robberies.

Prior to his trial, an omnibus hearing was held to consider several pretrial motions filed by Appellant. In considering Appellant’s motion to suppress his custodial statement, the trial court heard testimony from witnesses of the robbery, police officers involved in the investigation, and Appellant. During this hearing, Armstrong testified that Appellant appeared to understand the rights that were read to him, and did not seem to be under the influence of any drugs or alcohol. He also stated that Appellant never requested counsel during the interview, and denied that Appellant was ever subjected to physical threat or any form of coercion in an attempt to obtain a confession. Armstrong’s testimony was corroborated by Keel. The only evidence offered by Appellant in support of his claim was his own testimony that the officers handcuffed him to a table in the interview room, and then hit him, cursed at him, and spit at him. According to Appellant, he made the incriminating statement because he feared that his life was in imminent danger. After hearing all the testimony and arguments of counsel, the trial court denied Appellant’s motion to suppress.

A jury trial was held on July 27, 2000, during which Appellant renewed his objection to the State’s introduction of his custodial statement, and it was again denied. Appellant also filed a motion to declare section 5-4-501 (d) unconstitutional as it applied to him. This same motion had been filed by Appellant in a prior, unrelated criminal proceeding. Both times, it was denied by the trial court. Appellant was convicted by the jury of aggravated robbery, theft of property, and first-degree sexual abuse and was sentenced to life imprisonment. This appeal followed.

I. Suppression of Custodial Statement

For his first point on appeal, Appellant argues that the trial court erred in failing to suppress his custodial statement. Appellant alleges several different violations in support of suppression of that statement. First, he argues that the police questioned him after he invoked his right to remain silent in violation of Miranda v. Arizona, 384 U.S. 436 (1966). Second, Appellant contends that his statement was not made voluntarily. Finally, Appellant contends that he did not knowingly and intelligently waive his rights under Miranda. Each of Appellant’s arguments is without merit.

The proper standard of review for a motion to suppress was set forth by this court in Wright v. State, 335 Ark. 395, 983 S.W.2d 397 (1998):

In reviewing a trial judge’s ruling on a motion to suppress, we make an independent determination based upon the totahty of the circumstances, viewing the evidence in a light most favorable to the State, and we reverse only if the ruling is clearly against the preponderance of the evidence. Tabor v. State, 333 Ark. 429, 971 S.W.2d 227 (1998). The credibility of witnesses who testify at a suppression hearing about the circumstances surrounding the appellant’s in-custody confession is for the trial judge to determine, and we defer to the superior position of the trial judge in matters of credibility. Id. Conflicts in the testimony are for the trial judge to resolve, and the judge is not required to believe the testimony of any witness, especially that of the accused since he or she is the person most interested in the outcome of the proceedings. Id.

Id. at 403-04, 983 S.W.2d at 401.

1. Right to Remain Silent

The issue of admissibility of statements obtained after a person has previously decided to remain silent was addressed by the United States Supreme Court in Michigan v. Mosley, 423 U.S. 96, 104 (1975), wherein the Court held that the admissibility of such statements “depends under Miranda on whether his ‘right to cut off questioning’ was ‘scrupulously honored.’ ” (Footnote omitted.) The Court explained:

A reasonable and faithful interpretation of the Miranda opinion must rest on the intention of the Court in that case to adopt “fully effective means ... to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored. . . .” 384 U.S., at 479. The critical safeguard identified in the passage at issue is a person’s “right to cut off questioning.” Id., at 474. Through the exercise of his option to terminate questioning he can control the time at which questioning occurs, the subjects discussed, and the duration of the interrogation. The requirement that law enforcement authorities must respect a person’s exercise of that option counteracts the coercive pressures of the custodial setting.

Id. at 103-04.

This court first addressed this issue in Hatley v. State, 289 Ark. 130, 709 S.W.2d 812 (1986), and rejected a literal reading of Miranda that would require “a blanket prohibition against the taking of voluntary statements or a permanent immunity from further interrogation, regardless of the circumstances.” Id. at 133, 709 S.W.2d at 814 (quoting Mosley, 423 U.S. at 102). This court went on to explain:

To “scrupulously honor” the defendant’s “right to cut off questioning” means simply that once the defendant has invoked his right to remain silent, his will to exercise that right will remain undisturbed; there must be no attempt to undermine his will and he must be secure in the knowledge he is under no compulsion to respond to any questions. Such a determination will, of course, depend on the facts in each case relative to the conduct of the police and of the defendant.

Id. at 135, 709 S.W.2d at 815. Recognizing the Mosley court’s distinction between interrogation after a request for counsel and interrogation after refusing to make a statement, this court concluded that as long as there is no evidence of coercion, a statement made voluntarily will be admissible even though a defendant previously refused to answer questions. Id.

Based upon the particular facts of this case, we conclude that there was no evidence to indicate that police failed to “scrupulously honor” Appellant’s “right to cut off questioning.” Police initially attempted to question Appellant following his arrest on August 6, but due to Appellant’s belligerent demeanor and refusal to answer questions, he was transported to the county jail. Approximately twelve hours lapsed before police again attempted to question Appellant. At that time, he was transported back to police headquarters and again placed in an interview room where he was given a meal and a soft drink. Prior to questioning Appellant, Armstrong informed him of his Miranda rights and obtained his signature on a waiver form. According to Armstrong, Appellant was fairly reserved and cooperative during this second interview. Armstrong also stated that at no time did Appellant request an attorney.

The only evidence that Appellant felt compelled to answer questions was his own self-serving testimony that he was subjected to physical threats by the officers. As previously stated, where there is a conflict in the testimony regarding the taking of a custodial statement, it is within the province of the trial court to resolve the issue of the credibility of witnesses. Branscum v. State, 345 Ark. 21, 43 S.W.3d 148 (2001); Wright, 335 Ark. 395, 983 S.W.2d 397. In addition, the trial judge is not required to believe the testimony of any witness, particularly that of the accused since he or she is the person most interested in the outcome of the proceedings. Id.

Finally, the fact that both interrogations focused on the same crime, the armed robbery of Salon MDC, is irrelevant in our analysis of this issue. This court stated in Hatley, 289 Ark. 130, 709 S.W.2d 812, that the Supreme Court’s emphasis on interrogation about a different crime was misplaced. Rather, the primary consideration is the “strict adherence to its dictates of scrupulously honoring the defendant’s right to remain silent.” Id. at 135, 709 S.W.2d at 815. See also Wright, 335 Ark. 395, 983 S.W.2d 397. We therefore conclude that there was no violation of Appellant’s constitutional rights because the police scrupulously honored Appellant’s initial request to remain silent.

2. Voluntariness of Custodial Statement

Next, we turn to Appellant’s allegation that his statement was not voluntary. The law regarding voluntariness of a confession was set out by this court in Wright, 335 Ark. 395, 983 S.W.2d 397:

A custodial confession is presumptively involuntary and the burden is on the State to show that the waiver and confession was voluntarily made. Clark v. State, 328 Ark. 501, 944 S.W.2d 533 (1997). In examining the voluntariness of confessions, this court makes an independent determination based on the totality of the circumstances, and reverses the trial court only if its decision was clearly erroneous. Kennedy v. State, 325 Ark. 3, 923 S.W.2d 274 (1996). As explained in Mauppin v. State, 309 Ark. 235, 831 S.W.2d 104 (1992), the inquiry into the validity of the defendants waiver has two separate components: whether the waiver was voluntary, and whether the waiver was knowingly and intelligently made. In determining voluntariness, we consider the following factors: age, education, and intelligence of the accused, lack of advice as to his constitutional rights, length of detention, the repeated and prolonged nature of questioning, or the use of physical punishment. Hood v. State, 329 Ark. 21, 947 S.W.2d 328 (1997). Other relevant factors in considering the totality of the circumstances include the statements made by the interrogating officer and the vulnerability of the defendant. Id. In addition, the accused must have a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it in order for his waiver to be knowingly and intelligently made. Esmeyer v. State, 325 Ark. 491, 930 S.W.2d 302 (1996).

Id. at 407-08, 983 S.W.2d at 403 (quoting Davis v. State, 330 Ark. 76, 83-84, 953 S.W.2d 559, 562-63 (1997)).

Here, Armstrong testified that Appellant told him that he had completed the eleventh grade, had received his GED, and could read and write. Armstrong also stated that Appellant, who was calm during the second interrogation, did not appear to be under the influence of any drugs or alcohol. In addition, the second interrogation lasted only twelve minutes.

Appellant testified that he only confessed after being physically abused. This testimony was disputed by both Armstrong and Keel. Appellant also stated that Armstrong did not advise him of his rights until after he had already given his statement. The tape recording of Appellant’s statement, however, indicates that at the beginning of the interview Armstrong asked Appellant if he had been informed of his rights and Appellant responded affirmatively. Moreover, Armstrong inquired at least three separate times if Appellant understood those rights and each time Appellant stated that he did understand them. Again, resolving the credibility of witnesses was a matter within the province of the trial court. See Wright, 335 Ark. 395, 983 S.W.2d 397. Considering the totality of the circumstances, we conclude that Appellant’s custodial statement was given voluntarily.

3. Knowing and Intelligent Waiver

Finally, Appellant contends that his statement should have been suppressed because he did not knowingly and intelligently waive his Miranda rights. Appellant never raised this specific argument below, nor did the trial court ever rule on such an allegation. It is well settled that where an appellant does not advance an argument to the trial court as part of the motion to suppress, we will not consider it for the first time on appeal. See McFerrin v. State, 344 Ark. 671, 42 S.W.3d 529 (2001); Stephens v. State, 342 Ark. 151, 28 S.W.3d 260 (2000), cert. denied, _ U.S. _, 121 S. Ct. 1206 (2001). Accordingly, we affirm the trial court’s ruling to admit Appellant’s statement.

II. Section 5-4-501(d)(1) Unconstitutional

For his final point on appeal, Appellant argues that section 5-4-501 (d)(1) (A) impermissibly conflicts with the provisions of Ark. Code Ann. § 5-4-501 (d)(3) (A) (Repl. 1997), thus depriving him of his constitutional rights. Subsection 5-4-501 (d)(1) (A) calls for the imposition of a fife sentence for a defendant convicted of a specified felony who has been previously convicted of two or more such felonies, while subsection 5-4-501 (d)(3) (A) allows for a statutory sentencing range. Appellant raised this identical argument in a previous appeal stemming from an unrelated criminal conviction. See Bunch v. State, 344 Ark. 730, 43 S.W.3d 132 (2001). We reject Appellant’s argument on this point for the same reasons announced in that previous appeal, and we affirm the trial court’s ruling that the statute is not unconstitutional.

III. 4-3 (h) Review

In accordance with Rule 4-3 (h) of the Arkansas Supreme Court Rules, the transcript of the record before us has been reviewed for adverse rulings objected to by Appellant but not argued on appeal, and no reversible errors were found. Accordingly, the judgment of conviction is affirmed.


source: Caselaw Access Project

author: Annabelle Clinton Imber, Justice.

license: Public Domain

text:
    Charles WHITFIELD v. STATE of Arkansas
    CR 00-1139
    56 S.W.3d 357
    Supreme Court of Arkansas
    Opinion delivered September 20, 2001

      William R. Simpson, Jr., Public Defender, by: Clint Miller, Deputy Public Defender, for appellant.

      Mark Pryor, Att’y Gen., by: Michael C. Angel, Ass’t Att’y Gen., for appellee.
   Annabelle Clinton Imber, Justice.

In February 1999, a jury found Charles Whitfield guilty of four counts of rape, one count of attempted rape, five counts of residential burglary, one count of attempted residential burglary, one count of second-degree battery, and one count of exposure to human immunodeficiency virus. Mr. Whitfield was sentenced to four terms of life imprisonment in the Arkansas Department of Correction for the four counts of rape and to lesser terms for the other crimes, with the sentences to run concurrently. Mr. Whitfield’s only argument on appeal is that the trial court erred in denying his motion for a directed verdict because the DNA evidence, standing alone, did not constitute substantial evidence to identify him as the perpetrator of the crimes. We find no merit in this argument, and we affirm.

I. Standard of Review

A motion for a directed verdict is a challenge to the sufficiency of the evidence to support the verdict. Russey v. State, 336 Ark. 401, 985 S.W.2d 316 (1999). This court will affirm a conviction if there is substantial evidence to support the verdict when viewed in the light most favorable to the State. Engram v. State, 341 Ark. 196, 15 S.W.3d 678 (2000), cert. denied, 531 U.S. 1081 (2001). Substantial evidence is evidence of sufficient force and character as to compel, with reasonable certainty, a conclusion beyond mere speculation or conjecture. Id. Sufficient evidence may be circumstantial or direct. Id. Circumstantial evidence must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Id.

II. Sufficiency of the Evidence

At trial, the State’s expert testified that the probabilities that someone other than Mr. Whitfield committed the rapes were one in 800 billion in the black population. Mr. Whitfield does not challenge the admissibility of the DNA evidence or the validity of the scientific DNA tests performed. His only challenge is that this DNA evidence, with no other corroborating evidence, is not sufficient to identify him as the perpetrator of the crimes.

Before addressing Mr. Whitfield’s sole point on appeal, we first note that DNA profiles have been admissible evidence in Arkansas since 1991. Prater v. State, 307 Ark. 180, 820 S.W.2d 429 (1991). In Prater, we also held that a DNA expert may testify using probability extrapolations based on the DNA profiling. Id. DNA evidence is no longer considered to be novel scientific evidence and has generally been accepted as proof of guilt. Engram v. State, supra. In Burmingham v. State, we affirmed the trial court’s ruling that, in addition to probability statistics, a DNA expert witness could give his opinion as to whether or not the “appellant was the source of the DNA material found on the victim’s vaginal swab.” Burmingham v. State, 342 Ark. 95, 105, 27 S.W.3d 351, 357 (2000).

In Engram, just as in the instant case, the appellant argued that uncorroborated DNA evidence was insufficient as proof of identity to support his conviction. Engram v. State, 341 Ark. 196, 15 S.W.3d 678 (2000). Mr. Engram was found guilty of capital murder and rape. The State’s DNA expert testified that the probability that the semen recovered from the victim belonged to a person other the Mr. Engram was one in 600 trillion. Id. A review of the record did not support Mr. Engram’s assertion that the DNA evidence was the only evidence offered to prove his identity. In addition to the DNA evidence, a state trooper testified that he encountered Mr. Engram at the crime scene on the night of the crime and that Mr. Engram provided an implausible explanation for being there. Id. Circumstantial hair and fiber evidence also linked him to the crime. Id. This court held that the DNA evidence when considered with the additional circumstantial evidence adduced at trial was sufficient to support Mr. Engram’s rape and capital-murder convictions. Id.

Likewise, we have held in other cases that DNA evidence along with other evidence corroborating the identity of the perpetrator was sufficient to support the verdict. See Stewart v. State, 331 Ark. 359, 961 S.W.2d 750 (1999) (DNA profile match along with fingerprint evidence and victim’s identification of defendant as the perpetrator); Russey v. State, 336 Ark. 401, 985 S.W.2d 316 (1999) (DNA evidence and victim’s identification testimony); Wilson v. State, 332 Ark. 7, 962 S.W.2d 805 (1998) (DNA evidence and accomplice’s identification testimony).

In this case, Mr. Whitfield argues, as did the appellant in Engram, that the DNA evidence alone was insufficient to identify him as the perpetrator and was, thus, insufficient to support the verdict. The evidence presented at trial revealed the following facts. From November 1997 through November 1998, Little Rock Police investigated four rapes and an attempted rape that appeared to follow a similar pattern: All five crimes occurred within a few blocks of each other at about the same time in the early morning; the perpetrator wore a mask; the victims, who were all single women, described him as a medium-build, black male; the point of entry was always through a window; a weapon was used; and the perpetrator would tell the victim a wild story.

In the early morning of December 28, 1998, Lasonya Ford Norris was awake, saw a man lurking around her house, and called the police. The police detained Mr. Whitfield near her apartment. At that time, he was wearing what appeared to be a stocking cap. When the police removed the cap to ensure the officers’ safety, they discovered that it was in fact two articles: a cloth similar to a sweatshirt sleeve with eye holes cut into it and a nylon stocking that covered the shirt sleeve. This information was turned over to Detective Julie Eckert who was investigating the series of rapes in the area where Mr. Whitfield was detained. Based on that information, Detective Eckert obtained a search warrant to draw Mr. Whitfield’s blood. He initially objected to the search warrant, but eventually provided a blood sample in early January 1999. Later that month, on January 20, 1999, Mr. Whitfield was apprehended a second time outside Ms. Norris’s apartment, again in response to a prowler call. On April 27, 1999, Mr. Whitfield, who is HIV positive, was charged by information in Pulaski County Circuit Court with the offenses of rape (four counts), attempted rape, residential burglary (six counts), terroristic threatening, second-degree battery, and exposing another person to HIV.

At trial, Melissa Myhand, a forensic biologist with the Arkansas State Crime Laboratory, testified that she performed DNA profiling on Mr. Whitfield’s blood and on semen samples taken from the rape kits of Chandra Brewer, Lenieka Brown, Rita Adams, Shante Nunn, and on a saliva stain from a mask found in the apartment of Lummie Boykins who fought off her attacker. Ms. Myhand testified that in her opinion Mr. Whitfield’s DNA profile matched the DNA profiles of the samples taken from the crime scenes. She also testified that, in each of the five cases, the probability of randomly selecting an individual with the same DNA profile was approximately one in 800 billion in the black population.

The victims who testified gave the following descriptions of their attacker’s mask: a ski mask with a stocking under it that had one eye cut out; a sweater cap with eyes cut out; a mask and a hood; and a mask with a stocking wrapped around it. When apprehended, Mr. Whitfield was wearing what appeared to be a stocking cap. Upon further investigation, it turned out to be a sweatshirt sleeve with eye holes cut into it, covered by a nylon stocking.

As in the case of Engram v. State, Mr. Whitfield wrongfully asserts that the DNA evidence was the sole proof of his identity as the perpetrator. His assertion seems to ignore other evidence introduced at trial that at least contributes to proof of his identity. First, in response to calls to the police regarding a prowler in the area, Mr. Whitfield was detained twice in the same vicinity where all of the crimes occurred and at the same time of morning that the crimes were committed. Second, when first apprehended, he was wearing a mask that fit the description given by the victims. Third, he fit the general physical description of the perpetrator. Based on the foregoing, and, viewing the evidence in the light most favorable to the State, we hold that the DNA evidence when considered with the additional circumstantial evidence adduced at trial was sufficient evidence to support Mr. Whitfield’s convictions. Thus, we need not decide whether the DNA evidence, standing alone, was sufficient proof of identity to support his convictions.

III. Rule 4-3(h) Compliance

The transcript of the record in this case has been reviewed in accordance with Ark. Sup. Ct. R. 4-3(h) which requires, in cases in which there is a sentence to fife imprisonment or death, that we review all prejudicial errors in accordance with Ark. Code Ann. § 16-91-113(a) (Repl. 1997). None has been found.

Affirmed.


author: Ray Thornton, Justice.

text:
    Kenneth Ray SMITH v. STATE of Arkansas
    CR 00-1201
    55 S.W.3d 251
    Supreme Court of Arkansas
    Opinion delivered September 20, 2001

      William R. Simpson, Jr., Public Defender, by: Pamela A. Epperson, Deputy Public Defender.

      Mark Pryor, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.
   Ray Thornton, Justice.

Appellant, Kenneth Ray Smith, was charged with committing the offenses of breaking or entering the K-Mart store located on Asher Avenue in Little Rock on August 3, 1999, with the purpose of committing a theft, in violation of Ark. Code Ann. § 5-39-202 (Repl. 1997), and theft of property by taking or exercising unauthorized control of a firearm, valued at less than $2500.00, belonging to K-Mart, in violation of Ark. Code Ann. § 5-36-103 (Repl. 1997). On March 8, 2000, appellant was convicted by a jury of breaking or entering, but he was acquitted of the theft of property charge. At the close of the sentencing phase, the jury sentenced appellant, as an habitual offender, to fifteen years in the Arkansas Department of Correction. Appellant now appeals his breaking or entering conviction.

At trial, the State produced a videotape and three witnesses as evidence in its case-in-chief. The videotape, which focuses on a gun display case, is taken in the sporting-goods department of K-Mart. The videotape reveals appellant passing in front of the gun cabinet six times. Appellant is first seen behind the counter in front of the gun case, and, while obscured by a sign on the right side of the screen, he stops briefly in front of the gun case and leaves. He later returns to the front of the counter from a shopping aisle. He walks in front of the counter three more times, looking at the gun case each time. It appears that he passes by the cabinet several times in order to see whether it is locked. Appellant is then seen behind the counter again and leaves. Appellant next appears a sixth time behind the counter. He looks back and forth two or three times, opens the glass door to the display case, removes a gun from the middle of the rack, and leaves to the left of the screen with the gun. In this sequence, the cabinet appears to open easily. Appellant does not appear to manipulate a lock; he merely opens the cabinet door and takes the gun out.

James Dickson, a detective for the Little Rock Police Department, testified that he assisted in the investigation of a breaking or entering and theft of a rifle from K-Mart. He testified that the videotape had been given to the police department by the K-Mart security officer. He further testified that the videotape had been maintained in the property room at the Little Rock Police Department, and that it was in the same or substantially similar condition as when he initially received it.

Cody Porter, a loss-control manager for K-Mart, testified that, on August 3rd or 4th, he was working at the K-Mart on Asher. He testified that his duties include watching the surveillance cameras for shoplifting and watching employees for employee theft. He further testified that K-Mart on Asher sells shotguns that are stored in the sporting goods department in a locked cabinet behind a cash register. He described the cabinet as having sliding glass doors that lock at the bottom with a multiple key. The general public is not allowed access to the cabinet, and an employee who has a key must assist a customer who wants access to a gun. He testified that customers, of course, are not allowed access to the guns without an employee present.

Mr. Porter further testified that a video surveillance camera was set up in the sporting goods department on August 2nd and August 3rd of 1999. The tape had run for approximately twenty-four hours, but no one was watching the video as it was being taped. Mr. Porter testified that he believed the locks had not been checked since August 2, 1999.

On August 4, 1999, Mr. Porter was notified that a gun was missing firm the K-Mart inventory. He then reviewed the videotape of the surveillance of the sporting goods department. The videotape was played at trial during Mr. Porter’s testimony. He testified that appellant was never given permission to open the cabinet. Mr. Porter testified that he believed appellant was able to get the gun cabinet open by prying the glass over the locked case. He determined that the glass had been pried “over the lock case that has the little lock on the bottom.” He further explained that “[t]he glass case was moved out over the lock where it could be entered into.” On cross-examination, Mr. Porter explained that the gun cabinet is always locked unless an employee unlocks it. Once the employee unlocks the case, the key cannot be removed from the lock. On redirect examination, Mr. Porter stated that the lock on the gun cabinet is about waist high, or three to four feet off the ground. He testified that a person would not have to bend down to touch the lock. No employees were present in the sporting goods department at the time to monitor the customers’ actions. Mr. Porter testified that the gun missing from the inventory was a 30.06 rifle.

Alvin Jackson, a Little Rock police officer, testified that he was on duty on August 4, 1999. On that day, he responded to a call from K-Mart to meet with Mr. Porter to review the tape of an alleged theft the day before. Mr. Jackson testified that while he reviewed the tape, he received information that appellant might be present in the store. He made contact with appellant, who was not acting suspicious, was cooperative, and did not attempt to flee. Mr. Jackson testified that appellant, the man whom he apprehended in the store on August 4th, appeared to be the same person in the video surveillance tape.

After the State’s case-in-chief, appellant moved for a directed verdict, arguing that there was no evidence that he unlawfully broke into or entered K-Mart. Appellant also moved for a directed verdict on the theft of property charge. The trial court denied both motions on the grounds that there was evidence that appellant entered the store with the intent to commit a theft. Appellant did not present a case-in-chief. After resting, appellant renewed his earlier directed-verdict motions on the same grounds. The trial court again denied the motions. The jury found appellant guilty of breaking or entering, but not guilty on theft of property. Appellant appeals his conviction of breaking or entering the K-Mart store.

For his sole issue on appeal, appellant argues that the trial court erred in denying his motion for a directed verdict based upon the sufficiency of the evidence. Specifically, he argues that the State failed to introduce substantial evidence to sustain the jury’s verdict finding him guilty of breaking or entering.

A motion for directed verdict is a challenge to the sufficiency of the evidence. Durham v. State, 320 Ark. 689, 899 S.W.2d 470 (1995). 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, 310 Ark. 119, 835 S.W.2d 852 (1992). When a defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in the light most favorable to the State. Dixon v. State, 310 Ark. 460, 470, 839 S.W.2d 173 (1992). Only evidence supporting the verdict will be considered. Moore v. State, 315 Ark. 131, 864 S.W.2d 863 (1993). Circumstantial evidence provides the basis to support a conviction if it is consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Sublett v. State, 337 Ark. 374, 989 S.W.2d 910 (1999). Such a determination is a question of fact for the fact-finder to determine. Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772 (1993).

Viewing the evidence in light most favorable to the State under Dixon, supra, we turn to the question whether there was substantial evidence to sustain appellant’s conviction of breaking or entering the K-Mart store. Arkansas Code Annotated § 5-39-202(a) (Repl. 1997) provides:

5-39-202. Breaking or entering.
(a) A person commits the offense of breaking or entering if for the purpose of committing a theft or felony he enters or breaks into any building, structure, vehicle, vault, safe, cash register, money vending machine, coin-operated amusement or vending machine, product dispenser, money depository, safety deposit box, coin telephone, coin box, fare box on a bus, or other similar container, apparatus, or equipment.

Id. Here, appellant “entered” the store during regular business hours. His photograph, captured by the surveillance camera, is clear and distinct. This evidence was sufficient to support the jury’s determination that he had entered the store.

The remaining question is whether appellant had the “purpose” to commit a theft when he entered K-Mart. A criminal defendant’s intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances of the crime. E.g, Steggall v. State, 340 Ark. 184, 194, 8 S.W.3d 538, 545 (2000). Here, appellant’s purpose to commit a theft is proven by circumstantial evidence. The jury viewed a surveillance tape that shows appellant taking a gun from a gun cabinet in the sporting goods department of K-Mart. This videotape shows appellant approaching the gun cabinet six times, and walking around and behind the counter three times. The surveillance tape shows appellant during his last intrusion behind the counter, as he looked back and forth two or three times, opened the glass door to the display case, removed a gun, and walked away. Based upon the surveillance video of appellant’s actions before and at the time he took the gun from the display case, there was sufficient evidence for the jury to infer that his purpose in entering K-Mart was to commit a theft. This circumstantial evidence of appellant’s culpable mental state constitutes substantial evidence to sustain a guilty verdict. Steggall, supra.

Appellant argues that because he was acquitted of the theft of property charge, he could not have possessed the intent to commit theft in the K-Mart store. However, this argument runs contrary to our case law. The law is clear that “a defendant may not attack his conviction on one count because it is inconsistent with an acquittal on another count. . . . [T]he jury is free to exercise its historic power of lenity if it believes that a conviction on one count would provide sufficient punishment.” McVay v. State, 312 Ark. 73, 77, 847 S.W.2d 28, 30 (1993) (quoting United States v. Romano, 879 F.2d 1056 (2d Cir. 1989)).

We hold that there was substantial evidence to support appellant’s conviction of breaking or entering into the K-Mart store. Accordingly, the trial court’s denial of appellant’s motion for directed verdict is affirmed.

Affirmed.

       Appellant argues that to commit breaking or entering, one must “unlawfully” enter a building with the purpose of committing a theft. This argument is misplaced, as there is no “unlawful” element in Ark. Code Ann. § 5-39-202. The word unlawfully appears in the burglary statute found at Ark. Code Ann. § 5-39-201, which specifically defines burglary in terms of entering or remaining in a structure unlawfully. See Ark. Code Ann. 5-39-201 (Repl. 1997).


author:
Ray Thornton, Justice.
      Tom Glaze, Justice,

text:
    Frank WILLIAMS v. STATE of Arkansas
    CR 99-1221
    56 S.W.3d 360
    Supreme Court of Arkansas
    Opinion delivered September 20, 2001

      Alvin Schay, for appellant.

      Mark Pryor, Att’y Gen., by: James R. Gowen, Ass’t Att’y Gen., for appellee.
   Ray Thornton, Justice.

This is an appeal from a trial court’s denial of a Rule 37 petition. Appellant, Frank

Williams, shot and killed Clyde Spence at his home in Lafayette County. Appellant was charged with breaking or entering, felon in possession of a firearm, theft of property, and capital murder. Fie was sentenced to death by lethal injection on the capital-murder charge. We affirmed appellant’s conviction on his direct appeal in Williams v. State, 321 Ark. 344, 902 S.W.2d 767 (1995), cert. denied, 516 U.S. 1030 (1995). On February 20, 1996, appellant filed a petition for postconviction relief pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure. On March 30, 1999, a hearing was held on appellant’s petition, and on July 23, 1999, the trial court denied the Rule 37 petition. From that order, as well as a supplemental order filed September 25, 2000, appellant brings his appeal. He raises three allegations of error. We find no reversible error and affirm the trial court.

In appellant’s first point on appeal, he argues that the trial court’s order denying his petition for postconviction relief did not comply with the Rule 37.3(c) of the Arkansas Rules of Criminal Procedure. Specifically, appellant contends that the trial court’s July 23, 1999, order did not contain the requisite findings of facts and conclusions of law. Appellant argues that the trial court’s order contained incomplete or conclusory findings in violation of Rule 37. Finally, appellant contends that because the order is invalid we should reverse and remand this case.

The order that appellant challenges is the trial court’s July 23, 1999, order. In that order, the following findings were made:

On the basis of the pleadings and briefs filed in the case, the record of the trial, and the evidence introduced at the hearing on this petition, the court hereby denies postconviction relief.
The petitioner, in his original motion for postconviction relief, alleged several factors for the court’s consideration. In his brief subsequent to the hearing, counsel does not choose to address these factors individually, but considers all points alleged in his original petition to constitute ineffective assistance of counsel.
In denying petitioner’s motion for postconviction relief, the court finds that to prevail as an instance of ineffective assistance of counsel, the petitioner must establish that trial counsel’s conduct was outside the range of reasonable professional assistance and that there is a reasonable probability that, but for counsel’s errors, the outcome' would have been different. Strickland v. Washington, 466 U.S. 668 (1984). The petitioner failed to establish a reasonable probability that, but for counsel’s errors, the outcome would have been different. Therefore, the petition for Rule 37 relief must be denied.

We agree with appellant’s contention that the original order was conclusory and did not meet the requirements of Rule 37. However, on May 25, 2000, the State filed a motion in this court asking us to remand the case to allow the trial court to enter written findings of fact pursuant to Rule 37.5(i) of the Arkansas Rules of Criminal Procedure. That rule states:

If a hearing on the petition is held, the circuit court shall, within sixty (60) days of the conclusion of the hearing, make specific written findings of fact with respect to each factual issue raised by the petition and specific written conclusions of law with respect to each legal issue raised by the petition. If no hearing on the petition is held, the circuit court shall, within one hundred twenty (120) days after the filing of the petition, make specific written findings of fact with respect to each factual issue raised by the petition and specific written conclusions of law with respect to each legal issue raised by the petition. The time within which the circuit court shall make specific written findings of fact and conclusions of law shall be extended by thirty (30) days if the circuit court requests or permits post-hearing briefs.

Id. (emphasis added).

On June 15, 2000, we granted the State’s motion and remanded this case back to the circuit court. On September 25, 2000, the trial court entered a supplemental order denying appellant’s petition. In that order, the trial court made specific factual findings and conclusions of law on each issue raised by appellant in his petition for postconviction relief. We have carefully considered those specific findings of fact and conclusions of law, and find no reversible error. We also note that appellant has not challenged those specific findings of fact and conclusions of law. We hold that the trial court’s supplemental order complies with our rules of criminal procedure, and contains no reversible error as to the first point on appeal. We further conclude that appellant’s allegation of error based upon the defective original order is now moot.

In appellant’s second point on appeal, he argues that the trial court should have granted his petition for postconviction relief because his attorney at trial was ineffective. Specifically, appellant argues that his trial attorney was ineffective because he failed to call various witnesses such as his mother or his sister to testify during the sentencing phase of the trial. Before addressing the merits of appellant’s argument, we note that appellant has failed to proffer the substance of either witnesses’ testimony at any stage of the postconviction proceeding. Thus, it is impossible for either the trial court or this court on review to determine whether appellant’s mother’s testimony or his sister’s testimony would have changed the outcome of the trial, thereby rendering trial counsel’s assistance ineffective. We have held that allegations of ineffective assistance without substantiation do not justify postconviction relief. Johnson v. State, 321 Ark. 117, 900 S.W.2d 940 (1995). Specifically, we have explained that we will not grant postconviction relief for ineffective assistance of counsel in a case where a petitioner fails to show what the omitted testimony was and how it would have changed the outcome. Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000). Additionally, we have noted that to prove ineffectiveness due to failure to secure testimony, our cases require a showing of what would have been presented in the testimony as well as how the outcome would have been changed by it. Johnson, supra. Because appellant has failed to proffer the testimony of his mother or his sister, we cannot review the merits of this issue on appeal. Accordingly, the trial court is affirmed.

In appellant’s final point on appeal, he argues that the Arkansas Death Penalty Statute is unconstitutional. He challenges its constitutionality on several grounds. Specifically, he argues that the statute: (1) has overlapping offenses; (2) limits the jury’s consideration of mitigating evidence during the sentencing phase of the trial; and (3) requires the imposition'' of the death penalty under certain circumstances.

Before addressing appellant’s contentions, we note that appellant was required to raise any constitutional claims in his direct appeal. We have held that even constitutional issues must be raised in the trial court and on direct appeal, rather than in Rule 37 proceedings. Sasser v. State, 338 Ark. 375, 993 S.W.2d 901 (1999). We further note that each constitutional challenge raised by appellant in this case was reviewed and rejected in our recent case, Davis v. State, 345 Ark. 161, 44 S.W.3d 726 (2001).

In appellant’s first constitutional argument, he contends that felony capital murder and premeditated and deliberated murder are identical to and overlap with first-degree felony murder and first-degree murder. We have repeatedly rejected this contention. Davis, supra; Sanders v. State, 317 Ark. 328, 878 S.W.2d 391 (1994); Cromwell v. State, 269 Ark. 104, 598 S.W.2d 733 (1980). In Davis, supra, we considered this “overlapping statute” argument and explained:

In Lee v. State, 327 Ark. 692, 942 S.W.2d 231 (1997), we stated simply that “[w]e have decided this issue adversely to Lee’s position on many occasions, and adhere to these previous holdings.” Id. Similarly, in Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995), we stated that we have discounted this argument on numerous occasions. See Greene v. State, 317 Ark. 350, 878 S.W.2d 384 (1994). Similarly, on this occasion, we adhere to our previous decisions, and we reject this argument. Therefore, any inference that trial counsel was ineffective for failing to raise this point in the direct appeal is meritless.

Davis, supra. Because appellant’s argument in the case now before us is identical to that raised in Davis, supra, Lee, supra, and Nooner, supra, and because the statutory language in question has not changed since our disposition of those cases, we once again reject the argument that the death-penalty statute is unconstitutional, and reject any inference that the failure to raise this issue on direct appeal constituted ineffective assistance of counsel.

Next, appellant argues that the sentencing instructions and the jury verdict forms did not inform the jury that each juror could consider mitigating factors at all times, in violation of Mills v. Maryland, 486 U.S. 367 (1988) and McKoy v. North Carolina, 494 U.S. 433 (1990). Appellant has failed to abstract the trial court’s instructions during the sentencing phase of his trial or the verdict forms completed by the jury. We have held that the failure to abstract a critical document precludes us from considering issues concerning it on appeal. Davis, supra. Because appellant has failed to abstract these documents, and because the record on appeal is confined to that which is abstracted, we cannot consider appellant’s argument on appeal.

Finally, appellant contends that the sentencing scheme is unconstitutional because the word, “shall,” in Ark. Code Ann. § 5-4-603 requires the jury to impose the death penalty on certain findings. We have previously held that Ark. Code Ann. § 5-4-603 does not result in a mandatory death sentence. Davis, supra; see also; Williams v State, 338 Ark. 97, 991 S.W.2d 565 (1999); Hill v. State, 289 Ark. 387, 713 S.W.2d 233 (1986). Once again, because appellant has not provided us with any reason to deviate from precedent, we reject the allegation that the Arkansas Death Penalty Statute is unconstitutional. We further reject any inference that counsel’s failure to raise this issue on direct appeal constituted ineffective assistance of counsel. Finding no reversible error, we affirm the trial court.

Affirmed.

GLAZE, J., concurs.

Tom Glaze, Justice,

concurring. I agree with the majority except its final point is somewhat confusing. In that point, Williams argues the Death Penalty Statute is unconstitutional. The majority rejects Williams’s arguments regarding this constitutional issue, but in doing so, seems to rely in part on the case of Sasser v. State, 338 Ark. 375, 993 S.W.2d 901 (1999). Citing Sasser, the majority opinion relates the rule that even constitutional issues must be raised in the trial court and on direct appeal, rather than in a Rule 37 proceeding. The opinion further suggests Williams failed to raise his constitutional issue at trial, and, therefore, the issue was not preserved.

In death penalty cases and under Ark. R. Crim. P. 37.5, this court has required a heightened standard of review of capital cases because the State, under Act 925 of 1997 and Rule 37.5, is provided collateral relief so as “to eliminate the need for multiple federal habeas corpus proceedings in death cases.” Jackson v. State, 343 Ark. 613, 37 S.W.3d 595 (2000). Citing Porter v. State, 339 Ark 15, 2 S.W.3d 73 (1999), the Jackson court further stated, “[w]hile there is no constitutional right to a postconviction proceeding, when the State undertakes the role of providing such, as it has done here, it must comport with due process and be fundamentally fair.” In Echols v. State, 344 Ark. 513, 42 S.W.3d 467 (2001), this court also stated that, in death cases where a Rule 37 petition is denied on procedural grounds, great care should be exercised to assure the denial rests on solid footing. See Echols, 344 Ark. at 520-523, (Glaze, J., dissenting). In sum, Jackson and Rule 37, as amended, have carved out a new exception to its established rule that even constitutional issues must be raised in the trial court and on direct appeal, rather than in Rule 37 proceedings.

Previously, this court’s only exception to the rule regarding when an issue could be considered in Rule 37 proceedings when not raised at trial or on direct appeal was where that error is “structural” or so fundamental as to render the judgment of conviction void and subject to collateral attack. See id. at 383-384; Collins v. State, 324 Ark. 322, 920 S.W.2d 846 (1996) (trial by a jury of fewer than twelve persons where defendant did not waive a twelve-person jury is fundamental error as to render the judgment of conviction void and subject to collateral attack); Travis v. State, 286 Ark. 26, 688 S.W.2d 935 (a judgment obtained in violation of the constitutional provisions against double jeopardy is sufficient to void a conviction). Williams’s constitutional questions in the present case do not raise “structural” errors or issues sufficient to render the sentence and judgment void; nonetheless, while his constitutional issues do not fall within the exception described in Sasser, this court has now decided such constitutional issues in death cases may be considered under Rule 37.5, as amended, and as that rule has recently been interpreted by this court in Jackson and Echols.

       The constitutional issue and arguments here are not structural in nature, but instead are merely subject to judicial review and would render Williams’s conviction void.


author: Jim Hannah, Justice.

text:
    Carl Dale BRANSTETTER v. STATE of Arkansas
    CR 00-1315
    57 S.W.3d 105
    Supreme Court of Arkansas
    Opinion delivered September 20, 2001
    [Petition for rehearing denied October 18,' 2001.]

      Jeff Rosenzweig and J. Blake Hendrix, for appellant.

      Mark Pryor, Att’y Gen., by: Clayton K. Hodges, Ass’t Att’y Gen., for appellee.
   Jim Hannah, Justice.

Appellant Carl Dale Branstetter appeals his conviction of capital murder and sentence of life without parole imposed for causing the death of J.N., the eight-year-old son of LaDonna Murray. Branstetter asserts a number of errors in the trial court require reversal. First, Branstetter argues that there was insufficient evidence to support the jury verdict. Branstetter also argues error in admission of evidence of prior injuries suffered by J.N. and his sister K.N. Branstetter additionally argues error in the trial court’s refusal to admit a statement of J.N.’s mother that partially exonerates him. Branstetter next argues error for failure to find the capital-murder statute void for vagueness in that the term “circumstances manifesting extreme indifference to the value of human life” has been defined by this court in a contradictory fashion in past cases. Branstetter also argues error in rejecting proffered jury instructions. Finally, Branstetter argues error in refusing to reinstate peremptory challenges he alleges he was compelled to use on jurors who should have been excused for cause. He asserts this required him to accept a juror he would have excused had he still had a peremptory challenge. We hold there is no error and affirm.

Facts

In 1998, LaDonna and Eric Murray were married and living in Hot Springs. K.N. and J.N. were living with them. LaDonna and Eric were having marital difficulties, and in August 1998, LaDonna, K.N., and J.N. moved a couple of houses down to live with Branstetter. At this time K.N. was ten years old and J.N. was eight.

K.N. testified that while they were living with Eric Murray, punishment involved grounding and being spanked, but only spanking with the hand. She then testified that when they moved in with Branstetter, he took an active part in the childrens’ punishment and that punishment increased initially to being spanked with a belt, and that later it became more severe. K.N. testified that her mother began to strike her with an open hand and, on at least one occasion, “busted” her lip. She went on to testify that Branstetter also struck her with an open hand but then began using his fist. She stated further that Branstetter would strike both she and J.N. in the face and head. K.N. also testified she saw Branstetter strike J.N. in the stomach.

K.N. was asked about an incident in April of 1999 when J.N. became ill. She had no recollection of J.N. falling from a tree, which was the reason Branstetter gave doctors for the injuries J.N. suffered. She did recall that at that time J.N. had stomach pains so severe he walked bent over. She described him as looking like “the hunchback of Notre Dame.” K.N. stated she was not told how he had been injured.

Dr. Heinemann, a pediatrician, saw J.N. in April 1999 on a scheduled visit to do a check-up for his Attention Deficit Disorder and school behavior. LaDonna gave a history to the nurse that J.N. was there for the check-up and that he had had fever and stomach pain for four days. Dr. Heinemann noticed J.N. appeared to be ill and found he was running a fever. Dr. Heinemann examined J.N. and found he was in great pain. She feared he had a ruptured appendix and described him as “really hurting.” Dr. Heinemann directly admitted J.N. to St. Joseph’s Hospital in Hot Springs. At the hospital, J.N. came under the care of surgeon Dr. Brunner. He reviewed a CT scan and determined J.N. was suffering from an abscess. Preoperatively, Dr. Brunner found a four-to-five-inch bruise above J.N.’s waist on the right. Dr. Brunner testified his history revealed J.N. had been sent to school and sent home due to the injury, that this had gone on for several days despite the severe pain.

Dr. Brunner described J.N. as “frail.” At this time, he only weighed about fifty pounds although he was eight years old. Dr. Brunner performed surgery and determined J.N.’s appendix was not involved, but rather found a hole in the small intestine just below the stomach that was the cause of the infection. He expressed the opinion it takes a very specific force to cause such an injury. He testified that the history he received from Dr. Heinemann was J.N. had fallen from a tree. Dr. Brunner testified the injury required a blow to the stomach such as a punch, and that Branstetter reported J.N. had suffered the injury falling from a tree. Branstter stated he had not seen it happen. Later he told others he had. Dr. Brunner stated falling from a tree would not cause such an injury unless J.N. had fallen on an object such that he suffered a blow similar to a punch. No such history was given.

J.N. improved in the hospital after the surgery, but a fever persisted due to a residual infection from the extensive abscess, which required a second operation. More time was needed to allow the infection to clear. However, before that was achieved, Branstetter and J.N.’s mother insisted he be transferred to Arkansas Children’s Hospital in Little Rock. This was done. After a couple of days at Children’s, J.N. was sent home. K.N. testified J.N. was doing well after he came home.

However, according to K.N., the environment in the home did not improve. In June, she was caught lying and was subjected to blows with a one-by-two-inch board on her rear end. K.N. testified she was struck only by Branstetter and was struck more than ten times. She said her mother was present at the beating but did not intervene. K.N. testified further that the injury from the beating was so severe she could wear no clothing and would lay on her stomach to avoid anything touching the injury. She reported her mother and Branstetter promised to take her to a doctor but did not do so. They did provide salves. When she later received treatment during foster care, the injury was so severe the physician initially thought it was a third-degree burn. Branstetter claimed K.N. received this injury by falling off a go-cart and being dragged. Branstetter attempted to get his neighbor, John Garner, to tell the authorities that K.N. received the injuries to her rear end in this manner.

On June 23, 1999, while K.N. was suffering from this injury, she noticed J.N. standing in front of a wall, something she knew meant he was in trouble. She saw him as she went to the bathroom. K.N. was still in bed with her injury but later went upstairs to watch TV and testified she required assistance from her mother to get up the stairs. Once there, she laid on the floor to be able to watch TV. Branstetter had come home by this time and was seated on the couch with their mother. J.N. was standing in front of Branstetter. K.N. stated she could tell J.N. was in trouble, but she did not know what for. Branstetter was asking him questions. She then saw Branstetter strike J.N. on the head and in the stomach. This was only a few weeks after J.N.’s abdominal surgery when Branstetter was told by doctors the injury was so severe that his recovery was not assured. K.N. then testified that Branstetter then began to strike J. N. again and at this point her mother asked K.N. if she wanted ice cream. She did. Her mother left the room to get the ice cream. K. N. testified that by then J.N. was being struck so hard he was falling to the floor. Each time he was commanded to stand back up. K.N. stated J.N. asked Branstetter to stop, but he did not. Branstetter was continuing to ask questions of J.N. J.N. then began to. scream, and Branstetter began screaming J.N.’s name. K.N. stated that it was about this point J.N. could stand no more. He was unconscious. She believes her mother then tried to take his blood pressure and told her to go downstairs and get dressed. K.N. further stated that at this time, Branstetter continued to yell out J.N.’s name and that he went downstairs and began to scatter tools in the stairwell. Branstetter then called his mother and told her they were taking J.N. to the hospital because he was hurt. Branstetter told K.N. she was to tell the story that J.N. had fallen down the stairs.

Upon arrival at the hospital, J.N. was unconscious. The emergency room doctor intubated him and had a CT scan done. Dr. James Arthur was called in as a neurosurgeon. He found J.N. to be small and stated he appeared to be about six years old instead of eight. Pressure was building within J.N.’s skull, and Dr. Arthur performed surgery to relieve that pressure. He found the brain was swollen in the right temporal region so severely that to try to reduce pressure to acceptable levels he had to remove the right temporal lobe of J.N.’s brain.

J.N.’s pupils were fixed, and there was very little reaction to any stimuli. Dr. Arthur noticed bruising about J.N.’s head and additional bruising on his chest. There was also bruising on his neck. He then found bruises and abrasions on his legs and arms in various stages of healing.

J.N. was put in ICU, where despite the physican’s and nurse’s efforts, the pressure within his skull continued to climb. After twenty-four hours, J.N. was no longer spontaneously breathing. On June 26 they did an EEG and found no brain activity. A second EEG was done on June 27. Again there was no brain activity. Life-support equipment was turned off, and J.N. was declared dead.

Dr. Arthur visited Branstetter’s home after J.N.’s death and viewed the stairs where the fall was reported to have occurred. There were five steps. Dr. Arthur opined the injuries to J.N. were not consistent with such a fall, but rather were consistent with repeated blows to the head.

Dr. Steven Erickson performed an autopsy. He testified there was “a whole lot of injury from the level of the knees upward.” As to J.N.’s head, he found a large deep bruise on J.N.’s left jaw, as well as other bruising to the head. Dr. Erickson noted that due to the surgical intervention, he was not able to opine if additional similar injuries might have been masked by the damage of surgery. He examined the remainder of J.N.’s body as well. He found three different areas of significant bruising and injury on J.N.’s neck and collarbone. He found a series of bruising from J.N.’s armpit across his chest, bruising so severe that it reached down through all his tissue to his rib cage. Dr. Erickson also found injuries and abrasions on his right arm, on his left forearm, a three-quarter by nine-sixteenths inch ulceration, and bruising and injuries to his legs that were inconsistent with injuries that might have been received in play. Dr. Erickson finally opined that the injury to the abdomen suffered in April 1999 was not consistent with an accident but rather was consistent with a punch or a kick. He found the injuries to J.N.’s head were consistent with repeated blows and that the death was a homicide resulting from chronic child abuse.

Sufficiency of the Evidence

Branstetter argues there was insufficient evidence to support his conviction and asserts that the trial court erred in denying his motion for a directed verdict. We treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Burmingham v. State, 342 Ark. 95, 27 S.W.3d 351 (2000). This court has repeatedly held that in reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the State and consider only the evidence that supports the verdict. Id.; Wilson v. State, 332 Ark. 7, 962 S.W.2d 805 (1998). We affirm a conviction if substantial evidence exists to support it. Carmichael v. State, 340 Ark. 598, 12 S.W.3d 225 (2000). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without having to resort to speculation or conjecture. Id. Circumstantial evidence may provide the basis to support a conviction, but it must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999).

Branstetter alleges the State faded to show that under circumstances manifesting extreme indifference to the value of human life he knowingly caused J.N.’s death. He alleges that the facts at most show recklessness. The facts show Branstetter brutally beat a frail eight-year-old boy to death. The jury could have reasonably inferred from the evidence that this was not a spanking or discipline action that got out of hand. The boy died because he was repeatedly beaten in the head, beaten so severely that he fell unconscious and then suffered death due to injury to his brain.

The relevant facts in this case begin in August 1998 and show J.N. and K.N. were progressively subjected to ever greater abuse as the months passed. The evidence showed Branstetter was involved in the discipline of J.N. and K.N. The evidence reflects the abuse suffered by J.N. and K.N. increased in intensity until J.N. was punched or kicked so hard that his small intestine was punctured against his spine, and that just a few weeks after J.N. was released from this surgery, Branstetter was punching him in the stomach and head. The injuries to his head were so severe that J.N. suffered death.

The medical evidence showed an underweight eight-year-old boy who had highly suspicious injuries from his shins to the top of his head. Most were bruises, some quite severe, and all injuries were found by the medical examiner to be inconsistent with injuries one would expect to see resulting from play. Rather, the injuries were what would be expected from physical abuse. J.N. was living in Branstetter’s home when he received all of these injuries. Branstetter provided most of the history to doctors both in April and in June. Most of the contact with the hospitals was by Branstetter. Branstetter was present and involved in discussions with doctors in April 1999 regarding J.N.’s abdominal abscess caused by a blow to his stomach. Branstetter was aware it was life threatening, that not all children who suffer such an injury survive. Nevertheless, it was but a few weeks later Branstetter was punching J.N. in the stomach. There can be no viable claim of accident or mistake under these facts. Branstetter additionally admitted to, at the least, participation in beating K.N. which occurred shortly before J.N.’s death. K.N. testified Branstetter was the only person involved in that beating.

According to K.N.’s testimony, while J.N. was standing before Branstetter on June 23, Branstetter was screaming J.N.’s name, and this was shortly followed by Branstetter striking J.N. with such blows to his head that he was thrown to the floor. She further testified that there were additional similar blows to J.N.’s head and that when he fell to the floor, Branstetter commanded J.N. to stand back up. She yet further testified that Branstetter struck J.N. in the stomach. Finally, the evidence showed that it was only when J.N. could no longer stand up and was unconscious that the assault ceased, and that then the screaming continued as Branstetter went downstairs to place tools so as to be able to claim J.N. had fallen down the stairs. Only then did Branstetter take J.N. to the hospital.

There was more than sufficient evidence to support the jury’s conclusion that Branstetter was guilty of capital murder.

Injuries Suffered by J.N. and K.N. Prior to June 23rd

Over objection, the State introduced evidence of prior injuries suffered by both K.N. and J.N. More specifically, evidence was offered to show the before-mentioned beating K.N. suffered shortly before the fatal assault on J.N. Evidence was offered to show Branstetter participated in this beating and that K.N. was beaten with a 1 x 2 inch board. These injuries were still healing when J.N. suffered his fatal injuries.

Additionally, Branstetter complains of admission of the evidence ofJ.N.’s abdominal injury in April 1999, which resulted from a blow so severe that his small intestine was punctured as it was thrust against his spine. J.N. endured horrible pain before he was taken for care, resulting in two surgeries and over a week in the hospital. Finally, there was evidence offered of significant other bruising and injury on J.N.’s body from his knees to the top of his head. The medical examiner testified of a series of bruises on J.N.’s chest so severe they reached all the way down through the tissue to his rib cage, and further of abrasions and scrapes on his arms, and yet further of injuries to his legs that were too atypical and severe to attribute them to normal minor injuries resulting from a child’s play. The medical examiner found chronic child abuse.

Branstetter objected to the evidence of other injuries as character evidence excluded by Ark. R. Evid. 404. The State is not permitted to adduce evidence of other offenses for the purpose of persuading the jury that the accused is a criminal and is therefore likely to be guilty of the crime at issue. Ark. R. Evid. 404(a). See also, Henry v. State, 309 Ark. 1, 828 S.W.2d 346 (1992); Ford v. State, 276 Ark. 98, 633 S.W.2d 3 (1982).

However, that it is evidence of other crimes does not necessarily make it inadmissible character evidence. The evidence may have a tendency to make the existence of a relevant material fact more or less probable. If such evidence of other conduct or offenses is independently relevant in that they tend to prove some material fact, the evidence is admissible. Morgan v. State, 308 Ark. 627, 826 S.W.2d 271 (1992); Henry, supra. Rule 404 acknowledges this in subsection b. Such evidence is not character evidence, and, thus, is not subject to exclusion under Rule 404. If the evidence of prior bad acts is relevant to show that the offense of which Branstetter is accused occurred, then it will not be excluded by Rule 404. Sullivan v. State, 289 Ark. 323, 711 S.W.2d 469 (1986).

In this case, two young children suffered severe life-threatening physical abuse at the hands of someone to whom they had a right to look for care, protection, and nurture. The abuse commenced in August 1998 and was ongoing until the brutal and deadly beating of June 23 that tookJ.N.’s hfe. When asked about these injuries, the explanations by Branstetter were consistent, that they resulted from accidents. Whether the injuries of June 23 were the result of accident was thus put in issue by Branstetter. Intent was also at issue. In previous cases similar to the present case, this court has found that where children are concerned, evidence of physical injuries to other children in the home and even to a child in another home is probative of intent and the absence of mistake or accident. Davis v. State, 325 Ark. 96, 925 S.W.2d 768 (1996); Limber v. State, 264 Ark. 479, 572 S.W.2d 402 (1978). In Davis, the appellant was convicted of capital murder in the death of his girlfriend’s twenty-three-month-old son. On appeal he argued error in the admission of evidence he had earlier beaten and been charged with battery of his former wife’s young daughter. Davis argued the State was attempting to show “method of operation,” which was impermissible under this court’s holding in Diffee v. State, 319 Ark. 669, 894 S.W.2d 564 (1995). This court found Davis’s prior crime was admitted to show absence of mistake or accident, not method of operation, and, therefore, Diffee was inapplicable, and the evidence was admissible.

In the earlier case of Limber, supra, evidence of two broken arms suffered by an older brother of the child who was killed by the appellant was at issue. These injuries were suffered prior to the murder and, again, the claim by appellant was accident. This court held admission of the prior injuries to the brother was not in error because it was relevant to intent and the absence of mistake or accident.

The admission of the evidence was not in error under the holdings in Davis and Limber, supra. It had a tendency to make it more probable the injuries were not the result of an accident or mistake and, thus, the evidence was relevant under Ark. R. Evid. 401. It also bears on intent. The evidence was not offered to show the bad character of Branstetter in an attempt to give the jury reason to believe that Branstetter is the type of person who would commit such an act, but rather was offered to show intent and lack of mistake or accident in the presendy charged crime. The evidence is independently relevant proof of Branstetter’s intent and the absence of mistake or accident in committing the offense. The evidence is admissible under the intent and absence-of-mistake-or-accident exception to Ark. R. Evid. 404(b).

Branstetter further argues that even if the evidence was relevant it was so prejudicial that under Ark. R. Evid. 403, the trial court abused its discretion when it refused to exclude it on that basis. The standard of review is abuse of discretion. Mixon v. State, 330 Ark. 171, 954 S.W.2d 214 (1997). The fact that evidence is prejudicial to a party is not, in itself, reason to exclude evidence. The danger of unfair prejudice must substantially outweigh the probative value of the evidence. Marvel v. Parker, 317 Ark. 232, 878 S.W.2d 364 (1994). Here the trial court gave an instruction that the evidence was not to be considered as evidence of character. The probative value of the evidence in showing intent and a lack of accident or mistake was very great and outweighed the prejudicial effect. There was no abuse of discretion by the trial court in allowing the introduction of this evidence.

Statement of LaDonna Murray

At trial, Branstetter sought to introduce a statement of LaDonna in an attempt to discredit K.N.’s testimony by using the statement in cross-examining K.N. K.N. testified that her mother had not participated in her beating, and LaDonna’s statement indicated she had. Another statement existed wherein LaDonna denied any participation. In the statement Branstetter sought to introduce, LaDonna did not exculpate Branstetter, but rather indicated she had initiated the beating and then Branstetter joined in. Branstetter asserts the trial court erred when it refused to admit this statement. Branstetter argues more specifically that Ark. R. Evid. 804(b)(3) allows admission of this statement as one against interest. One of the requirements of the rule is that the declarant be unavailable. She was. LaDonna refused to testify by availing herself of her Fifth Amendment rights.

However, as noted, LaDonna’s statement only admitted her involvement in the beating and did nothing to exonerate Branstetter. This court very recently discussed a statement against interest that incriminated the declarant but did not entirely exculpate him. Cox v. State, 345 Ark. 391, 47 S.W.3d 244 (2001). In Cox, this court questioned the application of the rule where accomplices are. involved. Under those circumstances, an admission by one does not exculpate the other. This court found the rule inapplicable, and, for the same reasons, it is inapplicable here. LaDonna’s statement did not even attempt to exculpate Branstetter, and, thus, the rule is even less applicable under these facts.

Branstetter also argues that even if Rule 804 is not applicable, this exclusion of evidence constituted a mechanical application of the hearsay rule to defeat his due-process rights and right of confrontation depriving him of the ability to put on a defense. There is no issue as to confrontation and opportunity of cross-examination. What Branstetter complains of is if the statement had been admitted, he could have questioned K.N. as to why she said her mother was not involved when her mother admitted she was. Nothing stopped Branstetter from cross-examining K.N. LaDonna did not testify, so the statement could not be used as a prior inconsistent statement to impeach her. We also note that there is at least one other statement wherein LaDonna denied involvement, which means at trial her statements would have, in effect, nullified each other on this issue, and the statements were untrustworthy. There was no abuse of discretion.

Circumstances Manifesting Extreme Indifference to the Value of Human Life

Branstetter alleges that he was not on notice that brutally beating a frail eight-year-old boy in the head so as to cause his death constituted circumstances manifesting extreme indifference to the value of human life and that, therefore, his conviction should be overturned. Branstetter alleges this court has not consistently defined the term “under circumstances manifesting extreme indifference to the value of human life.” He argues cases wherein this court has discussed that term under other statutes such as DWI.

The capital murder statute provides the required intent, which is “knowingly.” That term is specifically defined in Ark. Code Ann. § 5-2-202(2)(Repl. 1997). Ark. Code Ann. § 5-10-101(a)(9) (Repl. 1997) requires “he knowingly cause the death of a person fourteen (14) years of age or younger. . . .” The questioned phrase adds that for the crime to fit the requirements of capital murder, the knowing act must be committed “under circumstances manifesting extreme indifference to the value of human life.” In the context of capital murder cases this court has already stated, “The words ‘manifesting extreme indifference to the value of human life’ indicate that the perpetrator of capital murder must act with deliberate conduct that culminates in the death of some person.” Davis, supra. See also, Flowers v. State, 342 Ark. 45, 25 S.W.2d 422 (2000); Sanford v. State, 331 Ark. 334, 962 S.W.2d 335 (1998); McGehee v. State, 328 Ark. 404, 943 S.W.2d 585 (1997). Here, there was deliberate conduct that culminated in the death of eight-year-old J.N. Thus, there is no merit to Branstetter’s argument.

Refused Jury Instructions

Branstetter alleges the trial court erred in refusing three jury instructions he provided based upon Ark. Code Ann. § 5-2-605 (Repl. 1997), § 5-2-614 (Repl. 1997), and § 5-2-406 (Repl. 1997). In determining if the trial court erred in refusing an instruction in a criminal trial, the test is whether the omission infects the entire trial such that the resulting conviction violates due process. Conley v. State, 270 Ark. 886, 607 S.W.2d 328 (1980). See also, Cox-Hilstrom v. State, 58 Ark. App. 109, 948 S.W.2d 409 (1997). We also note that a non-model jury instruction should not be given unless the model instruction does not accurately reflect the hew. Jones v. State, 336 Ark. 191, 984 S.W.2d 432 (1999). No such argument is made. On that basis alone the trial court should be affirmed. Even so, there is no merit to the arguments made.

The first statute discusses justification for the use of “reasonable and appropriate force” in discipline. Discipline was not at issue. There is no issue of “reasonable and appropriate force.” Branstetter was being tried for beating J.N. in the head so severely that he lost consciousness and died. Therefore, there was no rational basis for the instruction as offered under these facts, and its rejection was proper.

The second statute discusses recklessness or negligence in forming a belief on the use of force in discipline. As with the first statute, the issue is capital murder, and there is no basis for the instruction under these facts.

Finally, the third statute discusses accomplice liability. This court in Jones, supra, stated this section addresses the situation where two or more defendants are charged and tried together. Such is not the case here, and the instruction was properly refused.

Peremptory Challenges

Branstetter argues the trial court erred in denying a challenge for cause on six jurors. He then alleges that because of this, he was forced to use his peremptory challenges and no longer had one to exercise on juror Bibb, the last juror seated. As to juror Bibb, counsel for Branstetter stated:

We have no cause challenge, and, obviously we’re out of peremptories, so there’s nothing to prohibit Mr. Bibb from being empaneled as a juror.

Thus, there was no claim of cause. This issue was raised and recently discussed by this court in Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000). Therein the appellant argued that because the trial court denied his motion to strike a juror for cause, he was forced to accept a juror he would have otherwise rejected by peremptory challenge. We then stated that the loss of peremptory challenges cannot be reviewed on appeal and that the appeal focuses on the people who were seated on the jury. Ferguson, supra; Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999); Willis v. State, 334 Ark. 412, 977 S.W.2d 890 (1998). Further, to challenge a juror on appeal, appellant must show he exhausted his peremptory challenges and was forced to accept a juror who should have been excused for cause. As noted above, there was no challenge to Mr. Bibb for cause. Not only that, but Branstetter admits there were no grounds for cause. Therefore, this issue is without merit.

4-3 (h) Review

The record in this case has been reviewed for other reversible error in accordance with Ark. Sup. Ct. R. 4-3 (h), and none has been found. For the aforementioned reasons, the judgment of conviction is affirmed.

We affirm.


text:
    Robert Todd BURMINGHAM v. STATE of Arkansas
    CR 00-1424
    57 S.W.3d 118
    Supreme Court of Arkansas
    Opinion delivered September 20, 2001

      John Wesley Hall, for appellant. .

      Mark Pryor, Att’y Gen., by: Clayton K. Hodges, Ass’t Att’y Gen., for appellee.
   Jim Hannah, Justice.

Appellant Robert Todd Burmingham appeals his convictions on four felony counts including rape, aggravated robbery, kidnapping, and residential burglary earning him a life sentence for the rape conviction, forty years for aggravated robbery, twenty years for kidnapping, and twenty years for burglary. Burmingham raises one point on appeal, arguing that his right to a speedy trial was violated. We affirm.

On September 15, 1997, Burmingham was arrested in Cross County for two kidnappings and two rapes that occurred earlier in 1997. After his arrest, Burmingham was charged by criminal information on September 19, 1997, with two of four purported incidents. The original information contained seven counts, with counts 1-3 detailing the events and charges related to one incident in Cross County and counts 4-7 detailing the events and charges related to a second incident also in Cross County. This information was styled in Cross County as Cross CR97-150. The third and fourth incidents were charged separately in Lee County (Lee CR97-81) and Cross County (Cross CR98-2), but these matters have not proceeded to trial. Counts 1-3 of Cross CR97-150 were prosecuted to conviction after a jury trial on November 16, 1998, ending in a guilty verdict on all counts and earning Burmingham eighty years in prison. Burmingham appealed that conviction to this court, and this court affirmed the conviction on September 21, 2000, in Burmingham v. State, 342 Ark. 95, 27 S.W.3d 351 (2000) (“Burmingham 2”). This appeal stems from Burmingham’s conviction on counts 4-7 of Cross CR97-150.

Because Burmingham’s main point on appeal deals with whether he received a speedy trial pursuant to the Arkansas Rules of Criminal Procedure, a timeline of the events leading up to his trial and conviction on April 17, 2000, is necessary. As noted, Burmingham was arrested on this set of charges on September 15, 1997, and the criminal information was filed against him on September 19, 1997. Thus, the speedy-trial clock began running on September 15, 1997. See Ark. R. Crim. P. 28.1(c) and 28.2(a); Smith v. Plegge, 342 Ark. 232, 27 S.W.3d 402 (2000); Osborn v. State, 340 Ark. 444, 11 S.W.3d 528 (2000); Hicks v. State, 340 Ark. 605, 12 S.W.3d 219 (2000).

On November 11, 1997, Burmingham sought and received a continuance to March 16, 1998, in the previously charged Lee County case. On January 6, 1998, the Cross County Circuit Court held a hearing at which Burmingham pleaded “not guilty,” and the State was directed to elect the charges on which it was to proceed first. This hearing was not transcribed. The trial court filed the order from that hearing on January 9, 1998.

On January 14, 1998, Burmingham’s attorney, Wayne Emmons, filed a motion titled “Motion for Continuance of Motion Dates and Trial Date” in which he indicated that due to the massive amounts of discovery involved in the charges in the information, he wanted the State to proceed with one incident first and then try the second incident later. According to the trial court’s statements later at a speedy-trial hearing on this issue, this request stemmed from a conversation counsel and the court had at the January 6, 1998, hearing at which the court directed the State to proceed with only one of the incidents at a time. Following this motion, the prosecutor filed a letter on January 27, 1998, indicating that the State would proceed with counts 1-3 first and then proceed with counts 4-7 afterwards. The record does not contain an order detailing the prosecutor’s decision.

On March 10, 1998, Burmingham filed a “motion to adopt all motions filed in each case” to avoid clerical error and because there were four cases charged during this time and motions were being filed in every case. On March 16, 1998, the trial court granted this motion, and the docket sheets indicate that the court also noted approval of this request on April 28, 1998. On April 27, 1998, Burmingham moved for a continuance of the May 11, 1998, trial date scheduled for counts 1-3, and this was approved that same day. On March 25, 1998, the Lee County Circuit Court granted a continuance in that case.

On May 5, 1998, Burmingham filed a petition for a mental examination, and the trial court ordered the mental examination on May 6, 1998. The mental examination report was filed on July 13, 1998. Over a month later on August 24, 1998, Emmons asked to be relieved as counsel due to health problems, and the court granted that motion on that same day. Attorney Randall Miller was appointed as counsel on August 26, 1998, and he entered his appearance and filed a motion for continuance on August 28, 1998. The motion for continuance was granted on September 10, 1998. Ultimately, trial was held on counts 1-3 from November 16-20, 1998, and Burmingham was convicted on those counts.

Burmingham’s next significant motion was filed on May 5, 1999, in the Lee County case wherein he asked for a continuance of the trial date in that case. The docket sheet indicates that the motion was granted, and the case was continued to August 30, 1999, with a pretrial hearing set for July 30, 1999. On the remaining counts 4-7 in Cross County, Burmingham filed a motion for continuance of that case on July 14, 1999, and it was granted by the court that same day. The first trial was held on counts 4-7 beginning September 14-16, 1999, when a mistrial was declared on September 16, 1999. Prior to trial, Burmingham’s counsel filed a motion for dismissal due to a speedy-trial violation, and the court heard and denied this motion on September 14, 1999.

Finally, the second trial was held in this case on counts 4-7 beginning April 17, 2000. Again, prior to trial, defense counsel moved to dismiss the case due to a speedy-trial violation, and the court heard arguments from counsel prior to the jury’s deliberations during the punishment phase of trial. The record reveals that the trial court ruled that he was very familiar with the proceedings in the matter, having presided over the cases from the beginning, and the court recalled that Emmons requested that the charges be separated by the State because of his inability to prepare for the entire case at once. The court further attributed the time to the defendant because the severance was for his benefit and at his request, and the court further found that because Emmons filed the “motion to adopt all motions from other cases,” all continuances requested in those cases also were applied in this case. The judgment and commitment order was entered on May 5, 2000. Burmingham filed his notice of appeal from this conviction on May 23, 2000.

On appeal, Burmingham argues that the trial court erred in not dismissing counts 4-7 because he was denied a speedy trial on these severed counts. Burmingham notes that the trial on these counts was held two years after he was charged, so the burden shifts to the State to justify the delay. Burmingham argues that the severance of the multiple unrelated counts from those involved in Burmingham I does not act to toll the running of the speedy-trial time limits under Rule 28.3(a)’s “trials of other charges against the defendant.” Burmingham contends that, nothing in the record shows that he specifically asked for counts 4-7 to be included in the original motion for continuance filed on January 14, 1998. Burmingham argues that the case of Weaver v. State, 313 Ark. 55, 852 S.W.2d 130 (1993), stands for the proposition that when a defendant is charged with multiple counts and a motion for severance is granted, the State must try him within one year on all of the counts. Burmingham further notes that the State’s reliance on Cash v. State, 40 Ark. App. 40, 842 S.W.2d 440 (1992), and Lewis v. State, 307 Ark. 260, 819 S.W.2d 689 (1991), is unavailing as they predate Weaver and can be confined to their facts. Burmingham argues that at least 541 days passed before he was tried on the matter. Furthermore, Burmingham argues that even including the continuances in Burmingham I, he was tried outside of the one-year time period required to meet the speedy-trial requirements.

The State responds by making alternative arguments. First, the State argues that Burmingham failed to make even a prima facie showing of a violation because under Rule 28.2(c), he was brought to trial within twelve months of the mistrial on counts 4-7, thus keeping him within the time for speedy trial. See Dean v. State, 339 Ark. 105, 3 S.W.3d 328 (1999). Alternatively, the State argues that should the court not consider September 17, 1999, as the date from which to begin counting, Burmingham was still brought to trial within the twelve-month period of includable days. The State notes that Burmingham was arrested on September 15, 1997, and tried for the first time on September 14, 1999, creating a surplus of 364 days over the twelve-month time limit for which the State must account. By the State’s calculations, either 380 days or 378 days can be excluded from the time, thus bringing the trial in just under the required amount. The State argues that the Weaver case is distinguishable from Lewis and Cash, and that Lewis and Cash are factually similar to this case on the issue of severance and speedy trial. In addition, the State argues that because Burmingham filed a motion, which was granted, to “adopt” all motions in each case, every motion for continuance filed in each case serves to continue the other cases, resulting in more than sufficient excludable time.

The basic rule regarding speedy trial is that any defendant in circuit court who is not brought to trial within twelve months from the date of his arrest is entitled to have the charges dismissed with an absolute bar to prosecution. See Ark. R. Crim. P. 28.1(c) and 28.2(a); Smith, supra, Osborn, supra; Hicks, supra. When a defendant is not brought to trial within a twelve-month period, the State has the burden of showing the delay was legally justified. Webb v. Ford, 340 Ark. 281, 9 S.W.3d 504 (2000). Once the defendant has made a prima facie showing of a violation of Rule 28.1, the State bears the burden of showing that there has been no violation, in that some of the time comprising the one-year period provided in the rule is to be excluded as “legally justified.” Jones v. State, 329 Ark. 603, 951 S.W.2d 308 (1997). It is generally recognized that a defendant does not have to bring himself to trial and is not required to bang on the courthouse door in order to preserve his right to a speedy trial. Id. The burden is on the courts and the prosecutors to see that trials are held in a timely fashion. Id. Under Rule 28.2 of the Arkansas Rules of Criminal Procedure, the speedy-trial period commences to run “without demand by the defendant.” Id. See also, Gwin v. State, 340 Ark. 302, 9 S.W.3d 501 (2000). Ark. R. Crim. P. 28.3(a) excludes from the speedy-trial calculation the delay resulting from an examination and hearing on a defendant’s competency. See also, Morgan v. State, 333 Ark. 294, 971 S.W.2d 219 (1998). The period of time from the date an exam is ordered to the report’s file date is properly excludable for speedy-trial purposes. Id. See also, Brawley v. State, 306 Ark. 609, 612-13, 816 S.W.2d 598 (1991). Rule 28.3 of the Arkansas Rules of Criminal Procedure provides in relevant part that:

the following periods shall be excluded in computing the time for trial. Such periods shall be set forth by the court in a written order or docket entry, but it shall not be necessary for the court to make the determination until the defendant has moved to enforce his right to a speedy trial pursuant to Rule 28 unless it is specifically provided to the contrary below. The number of days of the excluded period or periods shall be added to the time applicable to the defendant as set forth in Rules 28.1 and 28.2 to determine the limitations and consequences applicable to the defendant.
* * *
(c) The period of delay resulting from a continuance granted at the request of the defendant or his counsel. All continuances granted at the request of the defendant or his counsel shall be to a day certain, and the period of delay shall be from the date the continuance is granted until such subsequent date contained in the order or docket entry granting the continuance.

The court observes that when a case is delayed by the accused and that delaying act is memorialized by a record taken at the time it occurred, that record may be sufficient to count as excluded time attributable to the defendant. Id. (citing McConaughy v. State, 301 Ark. 446, 784 S.W.2d 768 (1990)). However, the trial court’s failure to comply with Rule 28.3 does not result in automatic reversal. For instance, in Goston v. State, 326 Ark. 106, 930 S.W.2d 332 (1996), the trial court did make some docket entries attributing a given time period to the appellant for speedy-trial purposes. However, the trial court correctly charged other delays to the defendant without a written order or notation, given that “the record clearly demonstrates that these [delays] were attributable to [the appellant] or were legally justified.” Id., 326 Ark. at 111. In short, where the delay is caused by the defendant, this court has demonstrated a willingness to exclude the time when there is at least some contemporaneous record of the proceedings reflecting the delaying act.

Furthermore, Rule 28.2(c) provides that when a defendant is to be retried following a mistrial, “the time for trial shall commence running from the date of the mistrial . . .” which has been interpreted by this court to mean that the twelve-month period for speedy trial shall commence running from the date of mistrial. See Dean, supra; Odom v. State, 311 Ark. 576, 845 S.W.2d 524 (1993). Pursuant to these cases, the twelve-month “counter” starts running anew after a mistrial has been declared. As such, the time after the mistrial, which totals less than twelve months, does not count in the speedy-trial calculation and has no bearing on this appeal.

However, by the State’s own calculation, Burmingham’s first trial on counts 4-7 occurred 364 days after the twelve-month period for speedy trial passed. As such, in order to prevail, the State must show that more than 364 days of delay were attributable to Burmingham between September 15, 1997, when he was arrested, and September 14, 1999, when the first trial started.

We agree with the State that Burmingham’s trial was held well within the time for speedy trial based on the motions for continuance filed by Birmingham in this and his other cases and counted against him pursuant to his “motion to adopt all motions” granted on March 16, 1998. Because this motion was granted, every motion for continuance granted in every other case can and must be counted against Burmingham. Furthermore, because we reach this determination based on the motions to continue, we do not address the parties’ arguments regarding the effect of the severance of the charges in the Cross CR97-150 felony information.

As the State argues, the premise in Hicks, supra, should apply to these facts as well. In Hicks, a defendant’s speedy-trial motion was denied when this court found that his “adoption” of his co-defendant’s motions, including motions for continuances, acted to toll the running of the speedy-trial time limitations. Pursuant to this rule, all continuances granted at the request of the defendant, regardless of the case in which they are granted, apply to each case. The reasoning for this is clear —■ after filing such a motion, a defendant cannot pick and choose which motions he would like to apply when he has specifically moved for them all to apply.

By applying the above dates, it is clear that more than 364 days can be excluded from the speedy-trial calculation. First, on November 10, 1997, Burmingham’s motion for continuance until March 16, 1998, was granted that day in the Lee County case. This delay accounts for 126 days. On April 28, 1998, the trial court granted Burmingham’s motion for continuance on counts 1-3 in the Cross County case pursuant to Burmingham’s motion filed April 27, 1998. This continuance lasted at least until August 28, 1998, when Burmingham’s new attorney filed a new motion for continuance in Burmingham I. This time accounts for 122 days. On September 10, 1998, Burmingham’s motion for continuance in Burmingham I was granted until trial on November 16, 1998. This accounts for 66 days. On February 16, 1999, Burmingham’s motion for continuance in the Lee County case was granted through the trial date set for May 1999, when Burmingham’s new attorney again filed a motion for continuance in that case, which was granted on May 4, 1999. This period accounts for 76 days. Finally, Burmingham’s motion for continuance in this case was granted on July 14, 1999, through the start of the first trial beginning September 14, 1999. This totals 51 days.

Overall, these delays in each case account for 441 days of excludable time, well over the necessary 364 days for which the State needed to account. Thus, there was no speedy-trial violation in this case, and Burmingham’s conviction is affirmed.

Rule 4-3(h)

The transcript of the record in this case has been reviewed in accordance with Ark. Sup. Ct. R. 4-3(h) which requires, in cases in which there is a sentence to life imprisonment or death, that we review all prejudicial errors in accordance with Ark. Code Ann. § 16-91-113(a) (Repl. 1997). None have been found.

Affirmed.