{ "id": 6139162, "name": "Roy Edgar HARDCASTLE v. STATE of Arkansas", "name_abbreviation": "Hardcastle v. State", "decision_date": "1988-07-13", "docket_number": "CA CR 87-12", "first_page": "157", "last_page": "176", "citations": [ { "type": "official", "cite": "25 Ark. App. 157" }, { "type": "parallel", "cite": "755 S.W.2d 228" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "472 U.S. 1019", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1512579, 1512548, 1512455, 1512361, 1512271, 1512400, 1512465, 1512562, 1512243, 1512404, 1512532, 1512246, 1512472, 1512538, 1512571, 1512573 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/us/472/1019-11", "/us/472/1019-10", "/us/472/1019-03", "/us/472/1019-08", "/us/472/1019-04", "/us/472/1019-14", "/us/472/1019-09", "/us/472/1019-07", "/us/472/1019-12", "/us/472/1019-02", "/us/472/1019-16", "/us/472/1019-01", "/us/472/1019-05", "/us/472/1019-13", "/us/472/1019-06", "/us/472/1019-15" ] }, { "cite": "281 Ark. 1", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1742378 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/ark/281/0001-01" ] }, { "cite": "8 Ark. App. 165", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139516 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/ark-app/8/0165-01" ] }, { "cite": "272 Ark. 361", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1174878 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/ark/272/0361-01" ] }, { "cite": "17 Ark. App. 37", "category": "reporters:state", "reporter": "Ark. App.", "year": 1986, "opinion_index": 0 }, { "cite": "431 U.S. 783", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 2099 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/us/431/0783-01" ] }, { "cite": "404 U.S. 307", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6172901 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/us/404/0307-01" ] }, { "cite": "282 Ark. 315", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1740849 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/ark/282/0315-01" ] }, { "cite": "277 Ark. 349", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1750257 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/ark/277/0349-01" ] }, { "cite": "8 Ark. App. 120", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138508 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/ark-app/8/0120-01" ] }, { "cite": "286 Ark. 410", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8721491 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "413" } ], "opinion_index": 0, "case_paths": [ "/ark/286/0410-01" ] }, { "cite": "18 Ark. App. 277", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141622 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/ark-app/18/0277-01" ] }, { "cite": "280 Ark. 253", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1744875 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/ark/280/0253-01" ] }, { "cite": "Ark. Code Ann. \u00a7 23-42-102", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "pin_cites": [ { "page": "(4)" } ], "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 23-42-104", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "year": 1987, "pin_cites": [ { "page": "(a)" }, { "page": "(f)" } ], "opinion_index": 0 }, { "cite": "261 Ark. 80", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1678920 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/ark/261/0080-01" ] }, { "cite": "Ark. Code Ann. \u00a7 23-42-212", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "opinion_index": 0 }, { "cite": "270 Ark. 886", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1709168 ], "weight": 3, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/270/0886-01" ] }, { "cite": "17 Ark. App. 34", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6648819 ], "weight": 5, "year": 1985, "opinion_index": 0, "case_paths": [ "/ark-app/17/0034-01" ] }, { "cite": "445 U.S. 905", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1777824, 1777472, 1777443, 1777861, 1777511, 1777512, 1777481, 1777706, 1777619, 1777748, 1777598, 1777848, 1777790 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/us/445/0905-01", "/us/445/0905-04", "/us/445/0905-06", "/us/445/0905-11", "/us/445/0905-07", "/us/445/0905-12", "/us/445/0905-05", "/us/445/0905-03", "/us/445/0905-13", "/us/445/0905-10", "/us/445/0905-09", "/us/445/0905-02", "/us/445/0905-08" ] }, { "cite": "266 Ark. 861", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8723449 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/ark/266/0861-01" ] }, { "cite": "444 U.S. 1079", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11444513, 11444670, 11444488, 11444649, 11444749, 11444847, 11444721, 11444885, 11444789, 11444698, 11444542 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/us/444/1079-02", "/us/444/1079-05", "/us/444/1079-01", "/us/444/1079-04", "/us/444/1079-08", "/us/444/1079-10", "/us/444/1079-07", "/us/444/1079-11", "/us/444/1079-09", "/us/444/1079-06", "/us/444/1079-03" ] }, { "cite": "266 Ark. 778", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8722703 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/ark/266/0778-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-36-101", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "pin_cites": [ { "page": "(4)" } ], "opinion_index": 0 }, { "cite": "287 Ark. 468", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1876566 ], "weight": 3, "year": 1985, "opinion_index": 0, "case_paths": [ "/ark/287/0468-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-36-103", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "opinion_index": 0 }, { "cite": "256 Ark. 278", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8719634 ], "weight": 2, "year": 1974, "opinion_index": 0, "case_paths": [ "/ark/256/0278-01" ] }, { "cite": "Ark. Code Ann. \u00a7 23-42-507", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "year": 1987, "opinion_index": 0 }, { "cite": "280 Ark. 372", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1744811 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/ark/280/0372-01" ] }, { "cite": "16 Ark. App. 275", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6658845 ], "weight": 3, "year": 1985, "opinion_index": 0, "case_paths": [ "/ark-app/16/0275-01" ] }, { "cite": "284 Ark. 247", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1878611 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/ark/284/0247-01" ] }, { "cite": "Ark. Code Ann. \u00a7 23-42-105", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 23-42-110", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "opinion_index": 0 } ], "analysis": { "cardinality": 1258, "char_count": 32073, "ocr_confidence": 0.841, "pagerank": { "raw": 2.010871887586138e-07, "percentile": 0.7442254355369753 }, "sha256": "2fc38e61fe64fde8ace71699fe43d76c46310ea121677e440873566acb1840c2", "simhash": "1:3f5e9b0ce12cef92", "word_count": 5287 }, "last_updated": "2023-07-14T22:49:05.220266+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Corbin, C.J., and Cracraft, J., agree." ], "parties": [ "Roy Edgar HARDCASTLE v. STATE of Arkansas" ], "opinions": [ { "text": "James R. Cooper, Judge.\nThe appellant was charged by information with securities fraud, filing a false statement with the Arkansas Securities Commission, and theft of property. After a jury returned a verdict of guilty on all three counts, the appellant was sentenced to eight years for fraud and fined $10,000.00; four years for false filing and fined $6,000.00; and eight years for theft and fined $ 11,000.00. The trial court ordered the prison sentences to run concurrently, and the fines were cumulative.\nThe appellant argues ten points on appeal. We find that the conviction for false filing should be dismissed because the charge was barred by the statute of limitations. The appellant\u2019s convictions are otherwise affirmed.\nThe appellant was charged on February 14, 1985, with making false and misleading statements in violation of Ark. Stat. Ann. \u00a7 67-1250 (Repl. 1980) [Ark. Code Ann. \u00a7 23-42-110 (1987)], in a document filed with the Arkansas Securities Commission. On October 26, 1979, the appellant allegedly caused to be filed with the Commission a claim for exemption for Founder\u2019s Development Corporation which contained false and misleading statements. The Commission\u2019s request for additional information on the dilution factor of the stock was responded to by a letter dated November 6,1979. The Commission then issued a letter acknowledging the filing and compliance with the filing requirements on November 20,1979, and noted that the exemption was effective for one year. The record reveals only one other communication with the Commission: a letter received by the Commission dated December 15, 1980, indicating that Marvin Clausing, M.O.N.E.Y. Makers Ltd., and Herbert Brechtel had invested in Founder\u2019s.\nIt is the appellant\u2019s contention that the charge filed against him in February 1985, alleging that he had filed falsely, was beyond the statute of limitations found in Ark. Stat. Ann. \u00a7 67-1255(i) (Repl. 1980) [Ark. Code Ann. \u00a7 23-42-105(a) (1987)]. That section provides:\nProsecutions for offenses described in this Section must be commenced within the following periods of limitation: (1) Felonies \u2014 five (5) years from the date of the occurrence; (2) Misdemeanors \u2014 one (1) year from date of occurrence. The five year felony and one year misdemeanor period of limitation does not begin to run until after the commission of the last overt act in the furtherance of a scheme or course of conduct.\nThe issue is when the prohibited conduct occurred. The State contends that the letter received on December 15,1980, was the last overt act committed by the appellant or, in the alternative, that the one-year period of time the exemption remained on file constituted a continuing course of conduct. We disagree on both points.\nThere is no evidence in the record to establish that any of the information in the December 1980 letter was false or misleading. It is clear from the plain language of \u00a7 67-1250 that the filing of a document is criminal only if it contains false or misleading statements. We find that the last overt act which occurred was the letter concerning the dilution factor filed in November 1979. Therefore, the charge filed on February 14, 1985, was beyond the five-year statutory period, and we accordingly reverse and dismiss the appellant\u2019s conviction for filing false and misleading statements.\nBecause we dismiss this charge against the appellant, we will not address it further in connection with the appellant\u2019s remaining arguments.\nTHE SUFFICIENCY OF THE EVIDENCE\nThe appellant challenges the sufficiency of the evidence. In accordance with Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984), we review the sufficiency of the evidence, including any allegedly erroneously admitted evidence, prior to the consideration of other trial errors. In criminal cases, we view the evidence in the light most favorable to the State, and affirm if there is any substantial evidence to support the verdict. Biniores v. State, 16 Ark. App. 275, 701 S.W.2d 385 (1985). Substantial evidence must do more than merely create a suspicion; it must be of sufficient force and character to force the mind beyond mere conjecture and compel a conclusion one way or the other with reasonable certainty. Id. The fact that evidence is circumstantial does not render it insubstantial \u2014 the law makes no distinction between direct evidence of a fact and evidence of circumstances from which a fact may be inferred. Breault v. State, 280 Ark. 372, 659 S.W.2d 176 (1983).\nIn Count I the appellant was charged with fraud or deceit in connection with the offer, purchase, or sale of securities. Arkansas Statutes Annotated \u00a7 67-1235 (Repl. 1980) [Ark. Code Ann. \u00a7 23-42-507 (1987)] provides as follows:\nIt is unlawful for any person, in connection with the offer, sale or purchase of any security, directly or indirectly\n(1) to employ any device, scheme, or artifice to defraud,\n(2) to make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading, or\n(3) to engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person.\nThe persons identified in the bill of particulars as victims in Count I were Herbert Brechtel and Marvin Clausing; both testified at the trial. Clausing testified that he specifically remembered the appellant giving him a \u201cconfidential memorandum\u201d prior to investing, which contained information on Founder\u2019s. Brechtel did not recall the memorandum, but acknowledged his signature on the cover indicating that he had received it. He stated that he had talked with the appellant about investing, that he did not know a lot about investing in stock, and that he relied on what the appellant told him. Brechtel invested $15,000.00 and he received 30,000 shares of Founder\u2019s stock; Clausing purchased 16,000 shares of Founder\u2019s stock for $8,000.00.\nIn the confidential memorandum, P.A. Treadway was listed as a director, as president, and as secretary of Founder\u2019s. The biographical sketch of Treadway stated that she majored in psychology at Kent State University, that she was an \u201cArkansas educator,\u201d and that she had a background in marketing and management. At trial, Treadway testified that she was the appellant\u2019s secretary, that she did not attend Kent State, that she had only been a substitute teacher for a short while, and that the only marketing and managerial experience she had was as manager of a rental company for a short period of time. She also testified that she had signed various documents at various times at the appellant\u2019s request, but that she had never been either an officer or stockholder of Founder\u2019s. Both Clausing and Brechtel stated that, if they had been aware of the true facts of Treadway\u2019s background and status, they would not have invested in Founder\u2019s.\nAt the time Clausing and Brechtel invested, Founder\u2019s was in default on a note it had given M.O.N.E.Y. Makers for the purchase of forty acres of property. Universal Growth, a corporation in which the appellant was the principal stockholder and an officer, had purchased eighty acres of land for approximately $240,000.00 in September 1979. On October 22,1979, Universal entered into a purchaser\u2019s agreement with M.O.N.E.Y. Makers, another business entity in which the appellant was the principal member. This agreement provided that, upon payment of the purchase price of $240,000.00, forty acres of the land owned by Universal would be conveyed to M.O.N.E.Y. Makers. On the same day, M.O.N.E.Y. Makers entered into an identical agreement with Founder\u2019s; the only difference was that the purchase price of the same forty acres was $260,000.00. The end result was that, by passing the land through the different entities, the appellant had artificially inflated the value of the land. Furthermore, by the terms of the various purchase agreements, legal title would not pass until the land was paid for in full. In the event of a default, title would revert to the business entities owned by the appellant. None of these facts were disclosed either to Brechtel or Clausing, and Clausing stated that he was under the impression that his investment was to be used only for improving the land and that there was no money owed on the land itself.\nIt is clear that these facts were material to Founder\u2019s financial condition. We find that this evidence is sufficient to support the jury\u2019s finding that the appellant made untrue statements of material facts and failed to reveal material facts which misled the victims. See Selig v. Novak, 256 Ark. 278, 506 S.W.2d 825 (1974).\nIn Count III, the appellant was charged with theft of property, a violation of Ark. Stat. Ann. \u00a7 41-2203 (Repl. 1977) [Ark. Code Ann. \u00a7 5-36-103 (1987)]. According to \u00a7 41-2203, a person commits theft of property if he knowingly obtains the property of another person, by deception, with the purpose of depriving the owner thereof. The bill of particulars listed seventeen victims, including Clausing and Brechtel, and involved over $79,000.00. There are five volumes of record in this case and hundreds of pages of documents, spread sheets, and financial records. Without going into unnecessary detail, the record shows that the appellant (1) induced investors to invest in one of his several business entities; (2) deposited the money into the appropriate bank account of that business entity; and (3) subsequently withdrew the money and transferred it to another business entity. Generally, as one business entity became financially troubled, the appellant would create another entity, gather investors, then transfer the funds to the troubled entity.\nFor example, Leamon Bush, who was listed in the bill of particulars as a victim in Count III, first invested $5,000.00, and then another $2,250.00, in an entity called Air Base Mini-Rental, which was purported to be a business which purchased equipment, such as lawnmowers, for rental to the public. He stated that he believed his money was going to be used to purchase equipment. However, the record reveals this business never got off the ground; according to Treadway, only a few pieces of equipment were purchased, not nearly enough to operate this type of business. Bush further stated that he was told his investment would also entitle him to an interest in Air Base Mini Storage.\nAccording to the cancelled checks in the record, Bush\u2019s checks were deposited into the Air Base Mini-Rental checking account. The account was opened in August 1981 and closed in October 1982. A check from investor Carol Felix for $5,000.00 was also deposited in this account. The appellant falsely represented to Bush that the total capital contribution in Air Base Mini-Rental was $100,000.00.\nBush stated further that he did not know where his money went. According to the checks written on the Air Base Mini-Rental account, $2,900.00 went to M.O.N.E.Y. Makers and $1,076.25 went to Diversified Land (another of the appellant\u2019s business entities). Later, a $2,900.00 check from Diversified Land was deposited which indicated it was repayment of a loan. There were also checks written which were purportedly for construction costs; however, no construction was done for Air Base Mini-Rental, and apparently the checks were for construction by other business entities. There were also two checks to United Jewelers which totaled $77.58, and a check made out to cash, endorsed by Kroger, which was purported to be for a lawnmower. Out of approximately $12,000.00 invested by Bush and Felix, only a little over $3,000.00 was actually spent on rental equipment.\nEventually, Bush had a falling out with the appellant and Clausing. The appellant told Bush that Air Base Mini-Rental and Air Base Mini Storage were to be merged. Clausing resisted the merger and was ousted from the company; later, the appellant returned Bush\u2019s money to him.\nThe appellant commingled the various investment funds and treated them as his own without regard to the best interests of the investors. John Mallet invested $6,150.00 in Square One Mini Storage on November 1, 1982, and his check was deposited in Square One\u2019s checking account. On November 22, 1982, $6,000.00 was withdrawn from Square One\u2019s account; on the same day $6,000.00 was placed into the account of M & R R.V. and Boat Storage, which at one time was owned entirely by the appellant and his wife. Again, on the same day, $6,000.00 was withdrawn from M & R\u2019s account and $6,000.00 was placed into Diversified Land\u2019s account.\nWhen Mallet purchased his interest in Square One, he was told that the total capital contribution was $164,000.00 and that his money was to be used to complete a new storage building. When Mallet later discovered that he was the only investor, he confronted the appellant and was told that his money had been used in the construction of another building. The appellant offered him a five percent interest in Air Base Mini Storage, without regard to the effect this would have on Air Base\u2019s previous investors.\nWe are not persuaded by the appellant\u2019s defense that he was juggling the accounts because of the effect a bounced check for $5,000.00 had on the business entities. If this was true, it would not have been necessary for the appellant to run the $6,000.00 through four different accounts. Furthermore, reconciling conflicts in the testimony and weighing the evidence are within the province of the jury, and it is the jury\u2019s prerogative to accept such portions of the testimony which it believes to be true and discard that deemed false. Vasquez v. State, 287 Ark. 468, 701 S.W.2d 357 (1985), reh\u2019g denied, 287 Ark. 473A, 702 S.W.2d 411 (1986).\nIt is the appellant\u2019s contention that, since the investors either got their money back or received property in lieu of cash, the State failed to prove that the investors were \u201cdeprived\u201d of their property. In addition to voluntary refunds and settlements, there was evidence that several investors had been reimbursed after filing lawsuits which either were concluded or settled out of court. \u201cDeprived\u201d is defined in Ark. Stat. Ann. \u00a7 41-2201(4) (Repl. 1977) [Ark. Code Ann. \u00a7 5-36-101(4) (1987)] as follows:\n(a) to withhold property or to cause it to be withheld either permanently or under circumstances such that a major portion of its economic value, use, or benefit is appropriated to the actor or lost to the owner; or\n(c) to dispose of property or use it or transfer any interest in it under circumstances that make its restoration unlikely.\nThe evidence clearly establishes that the appellant did not use the funds he received from the investors for the purposes represented to them. Consequently, the investors were deprived of the use and benefit of their property. See Hixson v. State, 266 Ark. 778, 587 S.W.2d 70 (Ark. App. 1979), cert. denied, 444 U.S. 1079 (1980). We hold that there was sufficient evidence to support the verdict as to Counts I and III.\nTHE TESTIMONY CONCERNING AN INJUNCTION\nThe appellant next argues that the trial court erred in allowing Nancy Jones, Assistant Securities Commissioner, to testify about an injunction issued against the appellant in an unrelated case. An order entered in February 1973 temporarily enjoined the appellant and others acting in concert with him from offering or selling securities within the State of Arkansas. In July 1974 an order was entered continuing the injunction. In a 1985 action to which the Commission was not a party, the chancellor found that the injunction had expired.\nAt trial, Ms. Jones testified that, had the department known that the appellant was involved in the 1979 exemption request, the department would not have allowed the exemption because the department had participated in and was aware of the earlier injunction proceeding against him. The appellant argues on appeal that this statement was irrelevant and prejudicial. We disagree.\nArkansas Rules of Evidence Rule 404(b) provides:\nEvidence 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.\nIn Smith v. State, 266 Ark. 861, 587 S.W.2d 50 (Ark. App. 1979), cert. denied 445 U.S. 905 (1979), we stated that evidence of other prior or similar transactions involving the offer and sale of securities is admissible to show habit, practice, or a common scheme, plan, and course of conduct, provided that the previous conduct is not too remote in time from the offense charged and is similar in nature to the offense charged. Remoteness is addressed to the sound discretion of the trial judge, whose determination will be reversed on appeal only when it is clear that the questioned evidence has no connection with the case. Id. The evidence in question was highly relevant to show the appellant\u2019s intent to defraud and, in light of the appellant\u2019s assertions that his actions were the result of his being a \u201cbad businessman,\u201d to show lack of mistake.\nEven if we were to find that the testimony was erroneously admitted into evidence, we would not reverse. This court will not reverse on the basis of nonprejudicial error. Hughes v. State, 17 Ark. App. 34, 702 S.W.2d 817 (1985). In light of the trial court\u2019s restriction of Jones\u2019s testimony concerning the injunction, the appellant\u2019s refusal of the trial court\u2019s offer to admonish the jury, and the presentation of other testimony about the injunction by the appellant, we fail to see any prejudice.\nJURY INSTRUCTIONS\nThe appellant makes several arguments regarding various instructions given to the jury by the court, and several instructions offered by the appellant and refused by the court. We note at the outset that there are no model instructions in the AMCI for securities fraud. In determining whether the trial court erred in refusing an instruction in a criminal case, the test is whether the omission infects the entire trial so that the resulting conviction violates due process. Conley v. State, 270 Ark. 886, 607 S.W.2d 328 (1980). Just because an offered instruction contains a correct statement of the law does not mean that it is error for a trial court to refuse to give it. Id.\nThe first instruction that the appellant contends was erroneously given is the court\u2019s instruction number 10. This instruction tracks the language found in the Arkansas Securities Act, states the purpose of the Act, and discusses generally disclosures, registration, and exemptions. The last paragraph states:\nThe anti-fraud provisions of the Arkansas Securities Act, which is charged to have been violated in this case, have the purpose of controlling and remeding [sic] schemes to defraud. The particular section of the law charged in this case was designed to protect the investors by requiring full and truthful disclosures of important facts regarding the character of a security and to prevent investors from being victimized by fraud.\nThe instruction proffered by the appellant is nearly identical with the exception of language added to the end which states \u201cthe Act does not authorize the Arkansas Securities Department to pass upon the merits of the securities\u2019 proposal to be offered.\u201d However, this language, which the appellant wishes to add, is misleading. The \u201cconfidential memorandum\u201d which was received by Clausing and Brechtel was filed by the appellant with his request for an exemption. Although Ark. Stat. Ann. \u00a7 67-1251 (Repl. 1980) [Ark. Code Ann. \u00a7 23-42-212 (1987)] states that registration of a security does not indicate that the Commission has made any recommendation or passed on the merits of the security, Ark. Stat. Ann. \u00a7 67-1248(c) (Repl. 1980) [\u00a7 23-42-505(a)] does authorize the Commissioner to deny or revoke any exemption.\nThe appellant next argues about an instruction regarding the alleged fraud in the offer and sale of the securities. The court instructed:\nRoy Hardcastle is charged with the offense of securities fraud in the offer, sale, or purchase of Founder\u2019s Development stock as charged in Count I. To sustain this charge the State must prove beyond a reasonable doubt that Roy Hardcastle knowingly violated Section I of the Arkansas Securities Act which provides:\nIt is unlawful for any person, in connection with the offer, sale or purchase of an security to directly or indirectly\u2014\n(1) to employ any device, scheme or artifice to defraud, or\n(2) to make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made in light of the circumstances under which they are made, not misleading, or\n(3) to engage in any act, practice, or course of business which operates or would operate as a fraud or deceit on any person.\nThe court then instructed the jury on the definition of \u201cknowingly\u201d as found in AMCI2203-P. It is the appellant\u2019s contention that the phrase \u201cthat the defendant acted knowingly and with the intent to defraud,\u201d should have been included in the instruction.\nThe instruction given by the court essentially tracks the statute, Ark. Stat. Ann. \u00a7 67-1235 (Repl. 1980) [Ark. Code Ann. \u00a723-42-507 (1987)]. This section does not specify any intent necessary for conviction of the crime of securities fraud. If the statute defining an offense does not describe a culpable mental state, culpability is nonetheless required and is established if a person acts purposely, knowingly, or recklessly. See Martin v. State, 261 Ark. 80, 547 S.W.2d 81 (1977). Arkansas Statutes Annotated \u00a7 67-1255(a) (Repl. 1980) [Ark. Code Ann. \u00a7 23-42-104(a) (1987)] provides:\nAny person who knowingly violates Section 1 [\u00a7 67-1235] of this Act [\u00a7\u00a7 67-1235-67-1262] shall be guilty of the offense of \u201csecurities fraud\u201d.\n\u201cKnowingly\u201d shall be defined as set forth in the Arkansas Criminal Code. Ark. Stat. Ann. \u00a7 67-1255(j) (Repl. 1980) [Ark. Code Ann. \u00a7 23-42-104(f) (1987)]. Furthermore, fraud is not limited to common-law deceit under the Act. Ark. Stat. Ann. \u00a7 67-1247(d) (Repl. 1980) [Ark. Code Ann. \u00a7 23-42-102(4) (1987)]. We find that the instruction given was adequate, a correct statement of the law, and fully covered the requisite mental state of the appellant. Blaney v. State, 280 Ark. 253, 657 S.W.2d 531 (1983).\nSEVERANCE OF COUNTS I AND III\nThe appellant contends that Counts I and III are unrelated; that the facts were not connected; and that it was prejudicial for the trial court to deny his motion to sever. We disagree.\nWhen offenses are based on the same conduct or on a series of acts connected together or constituting parts of a single plan or scheme, they may be joined for trial, but the decision to join or sever offenses is within the discretion of the trial court, and the appellate court will not reverse absent an abuse of discretion. Rubio v. State, 18 Ark. App. 277, 715 S.W.2d 214 (1986); A.R.Cr.P. Rule 21.1(b). The offense alleged in Count I was the use of false and misleading statements to procure the sales of the securities. Clausing and Brechtel and their involvement with Founder\u2019s were the basis of the charge in Count I, and they were also listed as victims in Count III. The charges in Count III resulted from the appellant\u2019s commingling of bank accounts that belonged to Founder\u2019s as well as to the business entities in Count III. We find no abuse of discretion and affirm the trial court\u2019s finding that the acts involved constituted a continuing course of conduct. A.R.Cr.P. Rule 21.1(b).\nTHE MOTION TO DISMISS\nThe appellant argues that the trial court erred in refusing to dismiss the charges in Count III because the felony information did not describe an offense, and because the alleged acts of theft were security transactions.\nAn information is not defective if it \u201csufficiently apprises the individual of the specific crime with which he is charged to the extent necessary to enable him to prepare for his defense.\u201d Richard v. State, 286 Ark. 410, 413, 691 S.W.2d 872 (1985). An information will not be affected by any defect which does not tend to prejudice the substantial rights of the defendant on the merits. Drew v. State, 8 Ark. App. 120, 648 S.W.2d 836 (1983).\nThe appellant\u2019s attack on the information is merely an exercise in semantics. The information stated that the appellant, \u201cthrough on or about the 31st day of December, 1983, did with the purpose of depriving the true owners of their property, take unauthorized control over property of a value in excess of $2,500.00, by deception, such being the property of another.\u201d It is the appellant\u2019s argument that the words \u201cby deception\u201d should have been deleted from the information.\nThe appellant received both a bill of particulars and a supplemental bill of particulars. The appellant\u2019s attorney stated that he did not object to the content of the information, and that his objection was \u201clegal.\u201d We simply fail to discern any prejudice to the appellant because the prosecutor included additional language which more fully described the offense.\nThe appellant also argues that the trial court should have dismissed the information because the \u201cfacts\u201d described a securities transaction and not theft of property. We find no error because there is no provision in our law which permits a criminal charge to be dismissed, prior to trial, because the facts that may be presented do not amount to criminal conduct, although a case may be dismissed if the charge does not state a criminal offense under the law. State v. Jamison, 277 Ark. 349, 641 S.W.2d 719 (1982). The jury was the factfinder, and, until the evidence had been presented to them, there was no basis to dismiss the information for the reason the appellant argues.\nDELAY BY PROSECUTOR IN FILING THE INFORMATION\nThe Securities Commission began an investigation of the appellant in April 1982. The first felony information was filed on February 14, 1985, and the amended information was filed on July 18, 1985. In 1984, the appellant defended several civil actions involving the same transactions which are at issue in this case. The appellant contends that the three-year-period between the initiation of the investigation by the Commission and the filing of the information was an unreasonable delay.\nIn April 1982, the Commission appointed Steve Bennett to investigate these cases. He testified that he did little with the case and that he left the Commission in June 1983. Nancy Jones was appointed to investigate in October 1983. She testified that her investigation did not begin as a criminal investigation and that she did not remember when the investigation became a criminal one. She testified further that the Commission does not have the authority to prosecute, and that once it was determined that criminal acts had taken place, the case was referred to the prosecuting attorney\u2019s office.\nThe prosecution cannot delay the filing of charges in order to gain a tactical advantage over the accused. Bliss v. State, 282 Ark. 315, 668 S.W.2d 936 (1984). Furthermore, the prosecution cannot delay if the delay causes substantial prejudice to the appellant\u2019s right to a fair trial. United States v. Marion, 404 U.S. 307 (1971). However, a prosecutor may delay action until he is satisfied that the charges should be brought and can be proven. United States v. Lovasco, 431 U.S. 783 (1977).\nThe only prejudice alleged by the appellant is that his resources were exhausted from the defense of the civil actions, and thus he was not \u201cat his best\u201d to defend the criminal action. We think that the delay in filing this complicated case has been sufficiently explained, that the prosecution neither sought nor obtained any tactical advantage, and that there was no prejudice to the appellant.\nTHE TRANSFER OF THE CASE\nThis case was originally assigned to the Pulaski County Circuit Court, First Division. On motion of the prosecutor the case was transferred to the Fifth Division. The reason given was that the prosecutor, Jim Neal, had been transferred to Fifth Division. The appellant objected, stating that he did not think that Mr. Neal was going to actually try the case because of a conflict of interest, and that the transfer would cause another delay. The trial judge stated that he was granting the transfer because the lawyers were being frequently changed, that the parties had hesitated and delayed, that too much time had been spent on the case already, and that they should \u201cget somebody that understands it and knows what they\u2019re doing.\u201d\nThe appellant alleges that he was prejudiced because the transfer caused unreasonable delay. The trial in First Division was scheduled to begin in December 1985. The trial began in Fifth Division on June 30, 1986, which was, as the State points out, within the eighteen months mandated by Arkansas law on speedy trials. A.R.Cr.P. Rule 28.1.\nThe appellant, although stating that the delay prejudiced him, does not state specifically how he was prejudiced, and this Court will not reverse because of an alleged error unless actual prejudice is shown. Hughes v. State, 17 Ark. App. 34, 702 S.W.2d 817 (1985), reh\u2019g denied, 17 Ark. App. 37-A, 705 S.W.2d 455 (1986). Furthermore, from the remarks in the record, the trial judge was obviously frustrated with the delays and felt that a transfer would expedite matters.\nThe appellant also argues that the transfer violated his fifth, sixth, and fourteenth amendment rights to a fair and speedy trial. However, the appellant did not offer an objection to the trial court based on these constitutional rights, and we will not address issues raised for the first time on appeal. Wilson v. State, 272 Ark. 361, 614 S.W.2d 663 (1981).\nEXCLUSION OF A VENIREMAN\nDuring jury selection, one of the potential jury members told the trial court that she would have a problem considering the full range of penalties because she \u201cknew some people who had been there\u201d (in prison). After continued questioning by the court and the prosecutor, the potential juror again stated that she did not know if she could consider the full sentencing range provided by Arkansas law for the offenses with which the appellant was charged. She was stricken for cause, and the appellant argues that the court erred in doing so.\nThe question of a juror\u2019s qualifications lies within the sound discretion of the trial judge. Miller v. State, 8 Ark. App. 165, 649 S.W.2d407 (1983).Itis proper to excuse for cause a juror who cannot consider the possible range of sentences. Allen v. State, 281 Ark. 1, 660 S.W.2d 922 (1983), cert. denied, 472 U.S. 1019 (1985). We find no abuse of discretion in excluding this juror for cause.\nMOTION FOR A NEW TRIAL\nThe appellant\u2019s last argument is that the trial court erred in denying his motion for a new trial. During the trial, one of the jurors was seen talking to an attorney who represented an insurance company against which the appellant had filed a claim. The appellant states that the insurance claim was related to his criminal case. However, the appellant concedes that there was no harm, and asserts only that it created a prejudicial situation. Because the appellant withdrew the argument in his reply brief and because he concedes that there was no harm, we will not address this argument.\nWe reverse and dismiss the appellant\u2019s conviction for filing false and misleading statements with the Commission because the charges were brought beyond the statute of limitations; the appellant\u2019s convictions for securities fraud and theft of property are affirmed.\nAffirmed in part and reversed and dismissed in part.\nCorbin, C.J., and Cracraft, J., agree.", "type": "majority", "author": "James R. Cooper, Judge." } ], "attorneys": [ "Jacoway, Sherman & Pence, by: William F. Sherman, for appellant.", "Steve Clark, Att\u2019y Gen., by: Leslie M. Powell, Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Roy Edgar HARDCASTLE v. STATE of Arkansas\nCA CR 87-12\n755 S.W.2d 228\nCourt of Appeals of Arkansas Division I\nOpinion delivered July 13, 1988\n[Rehearing denied August 24, 1988.]\nJacoway, Sherman & Pence, by: William F. Sherman, for appellant.\nSteve Clark, Att\u2019y Gen., by: Leslie M. Powell, Asst. Att\u2019y Gen., for appellee." }, "file_name": "0157-01", "first_page_order": 185, "last_page_order": 204 }