Rolax v. State

George Howard, Jr., Judge. The appellant was found guilty of the offense of “Theft of Property” - Ark. Stat. Ann § 41-2203 (Repl. 1977) — having a value in excess of $100.00, by the court, sitting without a jury, and appellant was sentenced to the Department of Correction for a term of three years. Section 41-2203, in relevant part, provides: (1) A person commits theft of property if he: (a) knowingly takes or exercises unauthorized control over . . . the property of another person, with the purpose of depriving the owner thereof; (b) Theft of property if a class C felony if: (i) the value of the property is less than $2500 but more than $100;. . . On June 2, 1979, between 11:00 a.m. and 12:00 p.m. o’clock, an employee of M. M. Cohn Company, Robert Jackson, observed appellant leaving a conference area of the advertising department, located on the fourth floor. The employee approached appellant and asked why appellant was in the area since it was not open to the general public. Appellant stated that he had visited the store, the day before, seeking employment; that he had talked to an employee in the personnel department, which is located on the fifth floor, about a janitorial position and was told to return the following day; and that he had, while using the elevator, inadvertently gotten off on the wrong floor. Upon entering the room that appellant had just exited, Mr. Jackson discovered a shopping bag on the floor containing merchandise from the retail department on the first floor — a man’s three piece suit and three pairs of women’s shoes. It is conceded that Robert Jackson, Cohn’s employee, did not observe appellant in possession of the merchandise; and as a matter of fact, Mr. Jackson testified that when he first saw appellant, appellant was approximately 20 to 25 feet from where the shopping bag was located. Mr. Jackson testified, however, that he had been in the same area approximately three minutes before he observed appellant and that he did not see the shopping bag at that time. The manager of Cohn’s was immediately summoned to the area by Mr. Jackson. Upon hearing appellant’s explanation for being on the fourth floor, the manager checked with the personnel office and was advised that there was no application for employment on file for appellant. For reversal, appellant had tendered the following points: 1. There was no substantial evidence to prove appellant committed theft of property. 2. The trial court erred in failing to follow statutory procedures for consideration of sentencing of appellant under the youthful offender Alternative Service Act of 1975. 3. The trial court erred in allowing the state to refer in closing argument to a prior conviction of appellant not presented in evidence during trial. We are persuaded that appellant’s first ground for reversal has merit and we, accordingly, reverse appellant’s conviction. The State assumes a heavy burden when circumstantial evidence alone is relied upon for a criminal conviction. It is plain that before such evidence may be deemed adequate to support a conviction, the evidence must exclude every other reasonable hypothesis consistent with the defendant’s innocence. Henley v. State, 255 Ark. 863, 503 S.W. 2d 478 (1974); Jones v. State, 246 Ark. 1057, 441 S.W. 2d 458 (1969). It is also equally plain that the evidence must be something more than bare suspicion; it must be of a material nature and tends to connect the defendant with the crime. When a defendant’s guilt is predicated on conjecture and speculation, the evidence is insufficient to sustain his conviction. Upton v. State, 257 Ark. 424, 516 S.W. 2d 904 (1974); Jones v. State, supra. Close scrutiny of the evidence in this proceeding dictates a finding that the evidence falls short of the standard that must be met in order to sustain appellant’s conviction. As has already been noted, there is no evidence showing that appellant was ever in actual possession of the. shopping bag containing the merchandise. There is no proof that anyone else — including the employees of Cohn’s who, according to Mr. Jackson, readily had access to the fourth floor and the conference area — had not visited the area. While the manager testified that he was told that there was no application for employment on file for appellant, appellant’s testimony was that an employee in the personnel department, the day before, simply advised him to return the following day when appellant inquired about employment. This bit of evidence is pivotal and tends to corroborate appellant’s testimony that he had visited the personnel office the previous day, Friday, for Mr. Jackson testified that the personnal office is generally closed on Saturdays and that he did not know whether the personnal office was opened on the' day in question or not. However, the manager testified that he went to the personnel office, upon hearing appellant’s explanation, to see if appellant had an application on file and was advised that there was no application. It seems clear that the evidence supports a finding that the office was open and appellant was endeavoring to comply with the instructions he had received the previous day. While appellant’s conviction is being reversed on his first point for reversal, we deem it advisable to mention briefly his contention that the trial court erred in allowing the State to refer in closing argument to a prior conviction of appellant not presented in evidence during the trial. In Williams v. State, 259 Ark. 667, 535 S.W. 2d 842 (1976), the Arkansas Supreme Court made the following relevant comment: ”. . . Closing arguments must be confined to questions in issue, the evidence introduced and all reasonable inferences and deductions which can be drawn therefrom. . . . Whenever,, trial counsel argues matters that áre beyond the record and states facts or makes assertions hot supported )z>y any evidence that are prejudicial/ to /the opposite party, there is clearly error. .. . , “When objection is made, the presiding judge should appropriately reprimand counsel and instruct the jury not to consider the statement, and in short, do everything possible to see that the verdict of the jury is neither produced nor influenced by such argument .... The failure to sustain a proper objection to argument of matters not disclosed by the record is serious error, because it gives the appearance that the improper argument has not only the sanction but the endorsement of the court . . . .”1 Appellant argues convincingly: “The prejudicial effect from the State’s closing comment was apparent from the final conclusion in the trial court’s opinion that it ‘was not convinced he [the appellant] was not there for the purpose of stealing . . .’, even though the actual evidence showing theft by appellant was very weak. The failure of the trial court to disregard this incompetent evidence was an error affecting the substantial right of appellant to have a fair trial, and should be noticed by this court, notwithstanding the absence of a proper objection by defense counsel. ...” It must be remembered that under American Jurisprudence, every defendant who stands before the bar of a trial court, irregardless of how shocking or offense his conduct might have been, enjoys the presumption of innocence which may not be compromised or reduced to a mere formality. Our Supreme Court in articulating the fundamental nature of this right said in Williams v. State, supra: “The presumption of innocence is so strong that it serves an accused as evidence in his favor throughout the trial and entitles him to an acquittal unless the state adduces evidence which convinces the jury beyond a reasonable doubt that he is guilty of the crime charged. ... It is a fundamental right in the American system antedating any constitution and an essential of due process of law. ... It alone puts in issue the truth and credibility of all of the evidence offered against an accused. . . ,”2 Inasmuch as we have determined that the evidence introduced during the trial was insufficient to sustain appellant’s conviction, we reverse and dismiss this action. See: Polland v. State, 264 Ark. 753, 574 S.W. 2d 656 (1978); Burks v. U.S., 437 U.S. 1 (1978); Greene v. Massey, 437 U.S. 19 (1978). Reversed and dismissed. Hays, J., dissents. Footnotes [1] In Hickey v. State, 263 Ark. 809, 569 S.W. 2d 64 (1978), the Supreme Court stated: We submit that because a case is tried before a trial judge without the aid and assistance of a jury, this does not, in the least, reduce the proceedings to an informal setting where the principles of law and justice are disregarded or perverted. [2] In State v. Lawrence, 246 Ark. 644, 439 S.W. 2d 819 (1969), the Arkansas Supreme Court made the following pertinent comment: Since the errors asserted on this appeal are apparent on the face of the record, no objection, exceptions or motion for new trial was required before they could be reviewed here. See Also: Rule 103(a)(1), Arkansas’ Uniform Rules of Evidence.