Court of Appeals of Arkansas
Whitman v. State
2008 WL 1962242 (Ark.App.,2008)
Appellant was tried by a jury and found guilty of four counts of cruelty to animals concerning four Arabian horses. She was sentenced to one year's probation and charged a total of $4000 in fines, i.e., $1000 per horse. On appeal, appellant raised a sufficiency of the evidence challenge and a Rule 404(b) challenge to the admission of testimony and pictures concerning the condition of appellant's dogs and her house. The court found the photographic evidence was admissible for purposes other than to prove appellant's character, e.g., to show her knowledge of neglect of animals within her house, and thereby the absence of mistake or accident concerning the horses that lived outside.
Opinion of the Court:
NOTICE: NOT DESIGNATED FOR PUBLICATION. SEE REVISED SUPREME COURT RULE 5-2.
*1 Appellant, Susan Whitman, was tried by a jury and found guilty of four counts of cruelty to animals concerning four Arabian horses. She was sentenced to one year's probation and charged a total of $4000 in fines, i.e., $1000 per horse. In her appeal to this court, she contends 1) that the trial court erred in denying her motion for a directed verdict because there was insufficient evidence to support her conviction; 2) that the trial court abused its discretion in allowing the introduction of evidence showing the condition of her dogs and her house; 3) that, with respect to that same evidence, the trial court abused its discretion in allowing its introduction because its probative value was outweighed by its prejudicial impact under Rule 403 of the Arkansas Rules of Evidence; and 4) that the trial court abused its discretion in instructing the jury that it was for them to decide whether any other crimes, wrongs, or acts had been committed. We affirm.
Suficiency of the evidence
Under this point of appeal, appellant contends that the trial court erred in denying her motion for directed verdict because the State failed to meet its burden of proof. Appellant made her motion for directed verdict at the close of the State's case: “Your Honor, I would move for a directed verdict in that the State has not proven beyond a reasonable doubt all of the elements of the offense. That's it. .... Insufficient evidence.” No motion was made at the close of all of the evidence. Rule 33.1(a) of the Arkansas Rules of Criminal Procedure provides: “(a) In a jury trial, if a motion for directed verdict is to be made, it shall be made at the close of the evidence offered by the prosecution and at the close of all of the evidence. A motion for directed verdict shall state the specific grounds therefor.” Subsection (c) of the rule provides:
(c) The failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required in subsections (a) and (b) above will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the verdict or judgment. A motion for directed verdict or for dismissal based on insufficiency of the evidence must specify the respect in which the evidence is deficient. A motion merely stating that the evidence is insuficient does not preserve for appeal issues relating to a specific deficiency such as insuficient proof on the elements of the offense. A renewal at the close of all of the evidence of a previous motion for directed verdict or for dismissal preserves the issue of insufficient evidence for appeal. If for any reason a motion or a renewed motion at the close of all of the evidence for directed verdict or for dismissal is not ruled upon, it is deemed denied for purposes of obtaining appellate review on the question of the sufficiency of the evidence.
(Emphasis added.) Not only did appellant not renew the motion at the close of all of the evidence, the motion that was made was very general. Therefore, this issue was not properly preserved for our review.
Arkansas Rules of Evidence 404(b) and 403
*2 Over appellant's objections, the trial court allowed the State to introduce testimony and pictures concerning the condition of appellant's dogs and her house. Appellant objected to the evidence based upon Rules 404(b) and Rule 403 of the Arkansas Rules of Evidence. Because the same evidence is involved, these points can best be discussed together. The standard of review on admission of evidence is abuse of discretion. Bull Motor Co. v. Murphy, --- Ark.App. ----, --- S.W.3d ---- (Dec. 19, 2007).
Rule 404(b) provides:
(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Rule 403 provides:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
With respect to Rule 404(b), the State argues that “evidence of the poor condition of the appellant's house from the keeping of over two dozen dogs was especially relevant of her knowledge that animals on her property were neglected. Moreover, the sheriff's testimony and the exhibits were certainly res gestae of the circumstances found at her property.” We agree. The evidence was admissible for purposes other than to prove appellant's character, e.g., to show her knowledge of neglect of animals within her house, and thereby the absence of mistake or accident concerning the horses that lived outside. Also, in Hunter v. State, 62 Ark.App. 275, 970 S.W.2d 323 (1998), our court explained:
All of the circumstances of a particular crime (here, resisting arrest) are part of the res gestae of the crime, and all of the circumstances connected with a particular crime may be shown to put the jury in possession of the entire transaction. Harper v. State, 17 Ark.App. 237, 707 S.W.2d 332 (1986).
Res gestae are the surrounding facts of a transaction, explanatory of an act, or showing a motive for acting. They are proper to be submitted to a jury, provided they can be established by competent means, sanctioned by law, and afford any fair presumption or inference as to the question in dispute.... [C]ircumstances and declarations which were contemporaneous with the main fact under consideration or so nearly related to it as to illustrate its character and the state of mind, sentiments or dispositions of the actors are parts of the res gestae.
With respect to Rule 403, the introduction of this evidence was not unfairly prejudicial to appellant. Accordingly, we find no abuse of the trial court's discretion in allowing this evidence. Moreover, even if we were to decide that the trial court abused its discretion in the introduction of this evidence, any such error would be harmless beyond a reasonable doubt in light of the extensive veterinary evidence presented by the State concerning the condition of the four horses.
*3 Appellant's argument challenging this jury instruction was not made below. Consequently, it is not preserved for our review.
BIRD and GRIFFEN, JJ., agree.