Cite as 2015 Ark. App. 142
ARKANSAS COURT OF APPEALS
DIVISION I
No. CR-14-851
KIRK ALAN CLARK Opinion Delivered March 4, 2015
APPELLANT
APPEAL FROM THE WASHINGTON
V. COUNTY CIRCUIT COURT
[NO. CR 2014-491-1]
STATE OF ARKANSAS HONORABLE WILLIAM A. STOREY,
APPELLEE JUDGE
REVERSED AND DISMISSED IN
PART; REVERSED AND
REMANDED IN PART
RITA W. GRUBER, Judge
On November 25, 2013, Kirk Alan Clark was arrested for breaking or entering a
vehicle in a parking lot at the University of Arkansas in Fayetteville. After setting an initial
trial date, the circuit court entered an order granting Clark’s motion for a continuance and
resetting trial for March 11, 2014. On the morning of March 11, the jury was dismissed and
an arrest warrant was issued against Clark for failure to appear. The breaking-or-entering and
failure-to-appear charges were subsequently joined for trial. Clark filed a motion to sever
offenses, which the circuit court denied. Clark was tried by a jury and was convicted of both
offenses. He was sentenced as a habitual offender to 180 months’ imprisonment for the
breaking-or-entering charge and to 36 months’ imprisonment for the failure to appear, the
sentences to be served concurrently.
Clark appeals, contending that the circuit court abused its discretion in refusing to
Cite as 2015 Ark. App. 142
grant his motion to sever the failure-to-appear and breaking-or-entering charges for trial;
erred by denying his motions for a directed verdict on each charge; erred in admitting into
evidence State’s Exhibits Nos. 3 and 4 as relevant to failure to appear; and erred in refusing
his proffered jury instruction that State’s Exhibits Nos. 3 and 4 should not be considered as
proof of guilt of failure to appear. We reverse the denial of the motion to sever and remand
for new trial. We reverse and dismiss the conviction for failure to appear, rendering the
remaining points moot.
Denial of Motions for Directed Verdict
In order to protect Clark’s rights against double jeopardy, we consider his sufficiency
arguments before addressing alleged trial errors. Garner v. State, 355 Ark. 82, 131 S.W.3d 734
(2003). Clark contends that the circuit court erred by denying his motions for a directed
verdict on breaking or entering and on failure to appear.
Motions for directed verdict are treated as challenges to the sufficiency of the evidence.
Kelley v. State, 75 Ark. App. 144, 145, 55 S.W.3d 309, 311 (2001). Evidence is sufficient to
support a conviction if the trier of fact can reach a conclusion without having to resort to
speculation or conjecture and is sufficient to compel a conclusion one way or the other. Id.
at 146, 55 S.W.3d at 311. It is not the appellate court’s place to try issues of fact; we simply
review the record for substantial evidence to support the jury’s verdict. Id. When the
sufficiency of the evidence is challenged on appeal, we view the evidence in the light most
favorable to the State and consider only evidence that supports the conviction. Pruitt v. State,
2011 Ark. App. 754, at 3.
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The State’s evidence included testimony by University of Arkansas Police Sgt.
Benjamin Velasco and Cpl. Gabriel Golden, testimony by student Brandon McKenzie, and
Exhibits Nos. 3 and 4. Sgt. Velasco testified that at lunchtime on November 25, 2013, he was
conducting surveillance on campus parking lot No. 56 because of recent lunchtime break-ins
to vehicles there; particularly, someone would reach in to unlock “Jeep type vehicles with soft
tops” after their tops were cut. He observed Clark get off a bus, walk “straight for a
[student’s] Jeep,” open its unlocked door, lean into the Jeep, and begin going through the
console and glove box. Clark had on his person two dingy and battered cell phones and a
knife that, according to Sergeant Velasco, “looked like a little meat cleaver . . . the type you
could use to cut tops off vehicles.” Cpl. Gabriel Golden, who had received a call to come to
the parking lot, testified that Clark had a fixed-blade knife. At the scene, Clark stated to
Sergeant Velasco that “a guy named Bill” had told Clark to get Bill’s phone out of the car.
The Jeep’s owner, Brandon McKenzie, testified at trial that after campus police phoned him
at lunchtime on November 25 to identify property, he saw that his Jeep Wrangler “had been
rifled through.” He testified that he did not keep his cell phone in his vehicle, that nothing
was missing, that he had not given anyone permission to be in his car, and that he did not
know Clark.
State’s Exhibit No. 3, a certified copy of an order for issuance of an arrest warrant for
failure to appear, included the circuit court’s finding that Clark “failed to . . . appear before
the Court as directed” on March 11, 2014. State’s Exhibit No. 4—the March 11, 2014
transcript of proceedings in the breaking-or-entering case—states that Clark failed to appear
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and that the jury was dismissed.
Clark argues that the State offered no proof of the purposeful mental state our law
requires to establish breaking or entering. See Ark. Code Ann. § 5-39-202 (a)(1) (Repl. 2013)
(stating that a person commits the offense of breaking or entering “if for the purpose of
committing a theft or felony he or she breaks or enters into any . . . vehicle”). Clark relies
on his own testimony that an individual named Bill asked him to retrieve a cell phone from
the vehicle.
Intent can rarely be proved by direct evidence, but may be inferred from the
circumstances of the crime, and jurors may draw upon common knowledge and experience
to infer intent. Pruitt, 2011 Ark. App. 754, at 4. A jury is permitted to consider and to give
weight to any false and improbable statements made by an accused in explaining suspicious
circumstances; furthermore, it is the responsibility of the jury to weigh the credibility of the
witnesses and to resolve any conflicts or inconsistencies in the evidence. Id.
Viewed in the light most favorable to the State, the evidence reveals that Clark opened
the unlocked door of a Jeep, which did not belong to the person whose phone he claimed he
was retrieving, and rummaged through its contents. Several months later, he did not appear
for his breaking-or-entering trial at 8:30 a.m. This evidence, along with the inference that
can be drawn from the recent pattern of break-ins of similar vehicles in the same parking lot,
constitutes substantial evidence that Clark entered the Jeep with the purpose of committing
a theft. Clark’s account regarding his purpose and the Jeep’s ownership is of no consequence,
as the credibility of testimony was a matter left to the jury. Thus, substantial evidence
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supports the conviction for breaking or entering.
Clark also contends that there was not substantial evidence to support his conviction
for failure to appear. Under Arkansas Code Annotated section 5-54-120(a)(2) (Supp. 2013),
A person commits the offense of failure to appear if he or she fails to appear without
reasonable excuse subsequent to having been:
(1) Cited or summonsed as an accused; or
(2) Lawfully set at liberty upon condition that he or she appear at a specified
time, place, and court.
The test for determining the sufficiency of the evidence is whether the verdict is supported
by substantial evidence, direct or circumstantial. Stewart v. State, 362 Ark. 400, 208 S.W.3d
768 (2005).
Clark argues that insufficient evidence supports his conviction for failure to appear
because the State did not establish that he knew he had to report for trial at 8:30 a.m. and
because his testimony established a reasonable excuse for his tardiness. Regarding notice of
the time for his trial, he points out that the order resetting the case merely gave a date without
a time. Regarding a reasonable excuse for his tardiness, he relies on his own testimony and
that of defense witness Cpl. Doc Fyte, who was working in courthouse security on March 11,
2014. Corporal Fyte testified that he encountered Clark on the elevator around 9:05 a.m. on
March 11; that Clark was hurrying to get to court and told Fyte that he (Clark) was late; that,
on his way, Clark told his sister to alert people at court that he was running late; and that Fyte
made sure Clark got to the court door. Clark testified to the same events. He added that he
had thought trial was at 9:00 a.m.; he drove to the nearby town of Winslow at 5:00 a.m. to
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shower at a friend’s house because he (Clark) had no water; his truck became stuck in the
snow; and he phoned his sister, who was already at court.
We agree with Clark that there was insufficient evidence to show that he knew trial
was set for 8:30 a.m. The State relied on State’s Exhibits No. 3, a certified copy of an order
for issuance of an arrest warrant for failure to appear, and No. 4, a transcript of proceedings
in the breaking-or-entering case on March 11, 2004. Exhibit 3 reads in relevant part:
From the statements of the Prosecuting Attorney, a review of the records applicable
to this case, and the applicable law, the Court finds that:
1. The Defendant had been directed to appear before the Court on this date at
8:30 o’clock a.m., but failed to respond or appear before the Court as directed
....
The transcript, Exhibit No. 4, reflects that Clark “was called three times and has failed to
appear” and that the jury was dismissed at 9:00 a.m. The State presented no further proof that
Clark was informed that the time of his trial was 8:30 a.m.; indeed, the order granting a
continuance and setting trial for March 11, 2014, is conspicuously void of a specified time.
On this record, we are unable to find substantial evidence that Clark was informed of
the specific time of his trial; we therefore need not address his arguments that he had a
reasonable excuse for his tardiness. We hold that the evidence was insufficient to sustain his
conviction for failure to appear. The conviction is reversed.
Motion to Sever
Clark contends that the circuit court abused its discretion by denying his motion to be
tried separately for breaking or entering and for failure to appear. The circuit court orally
announced its reason for denying the motion for severance: “Mr. Clark failed to appear for
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trial back when this case was set for trial. My view is his failure to appear is some evidence of
consciousness of guilt. . . . I don’t feel as though the prejudicial effect of that evidence outweighs
the probative value.” (Emphasis added.) We agree with Mr. Clark that this was not a
permissible reason for joinder of the two offenses and that the trial court abused its discretion
in denying his motion to sever.
Offenses “may be joined” in one indictment when they “are of the same or similar
character, even if not part of a single scheme or plan; or . . . are based on the same conduct
or on a series of acts connected together or constituting parts of a single scheme or plan.”
Ark. R. Crim. P. 21.1 (2014). As for severance of offenses,
(a) Whenever two (2) or more offenses have been joined for trial solely on the ground
that they are of the same or similar character and they are not part of a single scheme
or plan, the defendant shall have a right to a severance of the offenses.
(b) The court, on application of the prosecuting attorney, or on application of the
defendant other than under subsection (a), shall grant a severance of offenses:
(i) if before trial, it is deemed appropriate to promote a fair determination of the
defendant’s guilt or innocence of each offense . . . .
Ark. R. Crim. P. 22.2 (2014).
Whether to grant a severance is “to be determined by the trial court on a case-by-case
basis in the light of all the attendant circumstances.” Williams v. State, 304 Ark. 279, 283, 801
S.W.2d 296, 298 (1990). Whether to grant or deny a motion for severance of offenses lies
within the circuit court’s discretion, a decision that the appellate court will not reverse absent
an abuse of discretion. Turner v. State, 2011 Ark. 111, 380 S.W.3d 400.
Clark argues that severance was warranted under Rule 22.2 because the offenses of
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breaking or entering and the failure to appear for trial—which occurred months apart and
involved different witnesses—were not part of a single scheme or plan, and because a fair
determination of guilt could not be had with joinder. He also argues that forcing him to try
the cases together was more prejudicial than probative and should have been excluded under
Ark. R. Evid. 403. Finally, noting his pretrial intention to testify only on the failure-to-
appear charge, he argues that taking the stand forced him to be a witness against himself on
the breaking-or-entering charge—violating his constitutional right not to do so.
The State rejects Clark’s arguments. It additionally asserts that, just as evidence of
failure to appear was admissible to prove consciousness of guilt of breaking or entering, so was
evidence of breaking or entering admissible to prove that his failure to appear was proof of
“a pending charge or disposition of a felony charge either before or after a determination of
guilt of the charge.” See Ark. Code Ann. § 5-54-120(b)(1) (Supp. 2013). It also asserts that
the public interest in avoiding duplicitous proceedings weighed heavily in this case, where an
empaneled jury had previously been dismissed to try Clark for breaking or entering because
he failed to appear on that date. See Clay v. State, 318 Ark. 550, 555, 886 S.W.2d 608, 611
(1994) (noting the public’s interest in avoiding duplicitous, time-consuming trials in which
the same factual and legal issues are litigated).
We have long recognized that evidence of other crimes or acts may be admissible as
proof of conduct designed to obstruct justice or avoid punishment for a crime, or as
circumstantial evidence of consciousness of guilt and guilt itself. Hunt v. State, 2015 Ark. App.
53, at 2 (citations omitted). In the present case, however, the trial court improperly denied
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Clark’s motion to sever offenses simply upon finding that his failure to appear was “evidence
of consciousness of his guilt.” This was not a permissible basis for refusing the severance of
offenses under Arkansas Rule of Criminal Procedure 22.2, and it improperly prevented a fair
determination of guilt on the individual offenses.
We hold that the circuit court abused its discretion by denying Clark’s motion to sever
the offenses for trial. Based upon this holding, the conviction for breaking or entering is
reversed and remanded to the trial court for further proceedings. Because the conviction for
failure to appear is reversed and dismissed, as discussed earlier in our opinion, double jeopardy
prevents remand on that offense.
Admission of Exhibits into Evidence and Clark’s Proffered Jury Instruction
Clark contends that the circuit court abused its discretion by admitting State’s Exhibit
3, the order for issuance of an arrest warrant for failure to appear, and State’s Exhibit No. 4,
the record of the proceedings on March 11, 2014. He also contends that the circuit court
erred by refusing to submit his proffered nonmodel jury instruction limiting the exhibits:
A transcript and order of a previous court setting has been introduced by the State as
State’s Exhibits 3 and 4. The transcript has words from the Court saying “he has failed
to appear.” These exhibits may not be considered as proof of defendant[’s] guilt of the
charge of failure to appear.
We have reversed Clark’s conviction for failure to appear because there was not substantial
evidence to support the conviction. Therefore, the admission of these two exhibits and the
proffered jury instruction regarding them are moot issues that need not be addressed.
Reversed and dismissed in part; reversed and remanded in part.
VIRDEN and GLOVER, JJ., agree.
Charlene Davidson Henry, for appellant.
Dustin McDaniel, Att’y Gen., by: Lauren Heil, Ass’t Att’y Gen., for appellee.
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