{ "id": 6136114, "name": "Kimberly JENKINS v. STATE of Arkansas", "name_abbreviation": "Jenkins v. State", "decision_date": "1997-12-22", "docket_number": "CA CR 97-98", "first_page": "1", "last_page": "13", "citations": [ { "type": "official", "cite": "60 Ark. App. 1" }, { "type": "parallel", "cite": "959 S.W.2d 57" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "328 Ark. 583", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 50251 ], "weight": 3, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/328/0583-01" ] }, { "cite": "317 Ark. 111", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1443763 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/317/0111-01" ] }, { "cite": "270 Ark. 781", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1709251 ], "weight": 4, "year": 1980, "pin_cites": [ { "page": "786" }, { "page": "369" } ], "opinion_index": 0, "case_paths": [ "/ark/270/0781-01" ] }, { "cite": "319 Ark. 320", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1453584 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/319/0320-01" ] }, { "cite": "36 Ark. App. 133", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138748 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark-app/36/0133-01" ] }, { "cite": "26 Ark. App. 268", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141332 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark-app/26/0268-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-36-102", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1993, "pin_cites": [ { "page": "(a)(2)" } ], "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 5-36-103", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "pin_cites": [ { "page": "(b)(2)(A)" } ], "opinion_index": 0 }, { "cite": "864 S.W.2d 863", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1910470 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/315/0131-01" ] }, { "cite": "315 Ark. App. 131", "category": "reporters:state", "reporter": "Ark. App.", "year": 1993, "opinion_index": 0 }, { "cite": "309 Ark. 503", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1906094 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/309/0503-01" ] }, { "cite": "312 Ark. 158", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1935017 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/312/0158-01" ] }, { "cite": "310 Ark. 119", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1898893 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/310/0119-01" ] }, { "cite": "7 Ark. App. 10", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6135987 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "14" }, { "page": "585" } ], "opinion_index": 1, "case_paths": [ "/ark-app/7/0010-01" ] }, { "cite": "2 Ark. App. 325", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6142258 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "328" }, { "page": "237" } ], "opinion_index": 1, "case_paths": [ "/ark-app/2/0325-01" ] }, { "cite": "272 Ark. 282", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1174923 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "286" }, { "page": "595" } ], "opinion_index": 1, "case_paths": [ "/ark/272/0282-01" ] }, { "cite": "30 Ark. App. 63", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137328 ], "weight": 2, "year": 1990, "opinion_index": 1, "case_paths": [ "/ark-app/30/0063-01" ] }, { "cite": "276 Ark. 203", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1751554 ], "weight": 2, "year": 1982, "opinion_index": 1, "case_paths": [ "/ark/276/0203-01" ] }, { "cite": "267 Ark. 278", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1719810 ], "weight": 4, "year": 1979, "pin_cites": [ { "page": "291" }, { "page": "860" } ], "opinion_index": 1, "case_paths": [ "/ark/267/0278-01" ] }, { "cite": "317 Ark. 111", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1443763 ], "weight": 3, "year": 1994, "opinion_index": 1, "case_paths": [ "/ark/317/0111-01" ] } ], "analysis": { "cardinality": 994, "char_count": 23638, "ocr_confidence": 0.762, "pagerank": { "raw": 1.1429174633049958e-07, "percentile": 0.5794515433139152 }, "sha256": "d5fec584062757975c1f2ac78a7409d9c356671e467a419916cbb206d852b171", "simhash": "1:33c4c861312518fe", "word_count": 3971 }, "last_updated": "2023-07-14T20:03:53.777728+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Pittman, Jennings, Neal, and Meads, JJ., agree." ], "parties": [ "Kimberly JENKINS v. STATE of Arkansas" ], "opinions": [ { "text": "John B. Robbins, Chief Judge.\nAppellant Kimberly Jenkins was convicted by a jury of felony theft by receiving based upon her possession of three \u201cslides\u201d for a sbde bracelet. She was thereafter sentenced to pay a fine of $4,275.00. Ms. Jenkins now appeals, raising four points for reversal.\nMs. Jenkins\u2019s first argument is that the evidence was insufficient to support her conviction. Next, she contends that, if we find sufficient evidence to support her conviction, the conviction should be reduced to a misdemeanor. Third, Ms. Jenkins asserts that the prosecuting attorney made improper arguments to the jury such that reversal is mandated. Finally, Ms. Jenkins argues that the trial court erred in refusing to grant a mistrial due to improper impeachment of Ms. Jenkins during the trial. We affirm.\nWhen an appellant challenges the sufficiency of the evidence, we review the sufficiency argument prior to a review of any alleged trial errors. Lukach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992). 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, supra. In determining the sufficiency of the evidence, we review the proof in the fight most favorable to the appellee, considering only the evidence that tends to support the verdict. Brown v. State, 309 Ark. 503, 832 S.W.2d 477 (1992).\nAt the trial in the instant case, Officer Chip Stokes testified on behalf of the State. Officer Stokes stated that he responded to a call from a jewelry store on December 12, 1995. He was informed by the jewelry store owner that Ms. Jenkins was present and was in possession of stolen jewelry. Upon his arrival, Officer Stokes asked Ms. Jenkins how she came into possession of stolen jewelry, and she told him that a friend had purchased it for her from a pawn shop in Dallas, Texas. Ms. Jenkins was then arrested, and according to Officer Stokes she was very cooperative and did not protest. Officer Stokes testified that Ms. Jenkins possessed three \u201cslides\u201d that were stolen and that the slides were valued at $275, $275, and $425.\nJohn David Hawks, part owner of JWC Jewelers, testified next. He stated that, on November 30, 1995, Ms. Jenkins came into his store and was interested in buying some jewelry. She then picked out a bracelet and one slide, and put them on layaway. A few days later, Ms. Jenkins entered the store with two \u201cnice looking slides\u201d and told Mr. Hawks to put those slides on the bracelet instead of the slide that she had originally selected. She explained that she received the two slides from her boyfriend in Texas. Mr. Hawks thought the slides looked familiar, and after checking his inventory he discovered that they had been stolen from the store. A few days later, Ms. Jenkins brought in five more slides and told Mr. Hawks to add them to her bracelet. He told her that he would do so, kept the slides, and called Dayer\u2019s Jewelry and found out that one of these slides had been stolen from that store. When Ms. Jenkins returned to pick up her slide bracelet, both jewelry store owners and the police were waiting for her. According to Mr. Hawks, the two slides that had been stolen from his store retailed for $275 and $270.\nDanny Cook, also part owner of JWC Jewelers, testified that he recognized the jewelry on the bracelet as that which had been stolen from the store. He asked Ms. Jenkins whether she had been in Dayer\u2019s, and she replied that she had not. According to Mr. Cook, when they accused Ms. Jenkins of theft she sat down and stated, \u201cWhat happens now,\u201d and acted as if a \u201cbombshell dropped.\u201d\nTommy Dayer, owner of Dayer\u2019s Jewelry, testified that on or about November 30, 1995, Ms. Jenkins came into his store and wanted to look at some slides. One of these slides was eventually discovered missing, and Mr. Dayer testified that this was one of the slides that Ms. Jenkins had given to Mr. Hawks for attachment to her bracelet. The slide was admitted into evidence, and Mr. Dayer identified it as being the slide that was found to be stolen soon after Ms. Jenkins\u2019s visit to his store. He stated that the slide retailed for $400.\nMs. Jenkins testified on her own behalf and did not deny that the three slides at issue had been stolen. However, she denied stealing them or having any knowledge that they had been stolen. Rather, she indicated that the slides were a Christmas gift from a friend in Dallas, Texas. She acknowledged being at both JWC Jewelers and Dayer\u2019s Jewelers, but said she did not take any of the slides. Ms. Jenkins admitted that in October 1994 she pleaded guilty to misdemeanor shoplifting. Subsequent to that time, she acquired a teaching job in Conway and held that job through the date of her trial.\nMs. Jenkins\u2019s first point on appeal is a challenge to the sufficiency of the evidence. Arkansas Code Annotated section 5-36-106(a)(Repl. 1993) defines theft by receiving, and provides:\nA person commits the offense of theft by receiving if he receives, retains, or disposes of stolen property of another person, knowing that it was stolen or having good reason to believe it was stolen.\nMs. Jenkins submits that, although she was admittedly in possession of stolen property, there was no substantial evidence that she knew or had good reason to know that the property was stolen. She points out that no one saw her take anything from either store, and also points to her testimony that the jewelry was received from her boyfriend as a Christmas present. Ms. Jenkins asserts that it would be totally illogical to buy a bracelet from a jewelry store and then steal slides from the same store and attempt to have them attach the stolen slides. Under these facts, she asserts her conviction was based on speculation and conjecture.\nWe find substantial evidence to support Ms. Jenkins\u2019s conviction. There was evidence presented to show that Ms. Jenkins viewed the stolen slides prior to the time that they were discovered missing. When confronted at JWC Jewelers, there was evidence that Ms. Jenkins denied ever being in Dayer\u2019s store, when in fact she had been and later so admitted. The jury was entitled to disbelieve her story that a boyfriend from Dallas gave her the slides as a Christmas gift, particularly since she received the slides in early December. Although Ms. Jenkins denied stealing the slides or having knowledge that they were stolen, the jury was not required to believe this testimony, particularly since Ms. Jenkins was the person most interested in the outcome of the trial. See Moore v. State, 315 Ark. App. 131, 864 S.W.2d 863 (1993). From all the circumstances, there was ample evidence from which the jury could reasonably conclude that Ms. Jenkins was in possession of property that she knew to be stolen.\nMs. Jenkins next contends that her conviction should at least be reduced to a misdemeanor. She notes that the information charged her with possession of over $500 worth of stolen property, and that the jury was instructed to convict her of a felony if the stolen goods exceeded $200 in value. In 1995, our legislature increased the minimum threshold for felony theft from $200 to $500. See Ark. Code Ann. \u00a7 5-36-103(b)(2)(A) (1995 Supp.) However, the legislature did not change the minimum felony threshold for theft by receiving. Nevertheless, Ms. Jenkins submits that, although not explicitly stated by the 1995 amendments, the felony threshold for theft by receiving was also increased due to the language of Ark. Code Ann. \u00a7 5-36-102(a)(2) (Repl. 1993), which provides:\nA criminal charge of theft may be supported by evidence that it was committed in any manner that would be theft under this chapter, notwithstanding the specification of a different manner in the indictment or information, subject only to the power of the court to ensure fair trial by granting a continuance or other appropriate relief where the conduct of the defense would be prejudiced by lack of fair notice or by surprise.\nMs. Jenkins argues that the jury should have been instructed that the offense was a misdemeanor if the value was $500 or less, and further submits that there was insufficient evidence to prove that the aggregate value of the three slides exceeded $500.\nFrom the abstract presented, it is evident that there was no objection made to the jury instruction now at issue. It is well settled that an argument for reversal will not be considered in the absence of a timely objection. Pharo v. State, 26 Ark. App. 268, 764 S.W.2d 458 (1989). Ms. Jenkins contends that no objection was necessary because this was a \u201cstructural error\u201d going to the heart of the offense. However, she gives no authority for this proposition. We will not consider assignments of error which are unsupported by convincing argument or citation to authority. Womack v. State, 36 Ark. App. 133, 819 S.W.2d 306 (1991). As a result of Ms. Jenkins\u2019s failure to object, her second point on appeal has not been preserved for our review.\nMs. Jenkins\u2019s next contention is that the prosecuting attorney engaged in improper argument that warrants reversal. Ms. Jenkins essentially contends that the prosecutor repeatedly indicated to the jury that Ms. Jenkins was not presumed to be innocent because she was unable to give an adequate explanation for being in possession of stolen property. Ms. Jenkins acknowledges that no objection was made during the prosecutor\u2019s argument, but asserts that none was necessary to preserve this point because the comments were so egregious that the trial court committed plain error in refusing to correct the statements or admonish the jury.\nWe need not address Ms. Jenkins\u2019s argument regarding various comments made during the prosecutor\u2019s closing argument. This court has held that there is no \u201cplain error\u201d rule, but instead has consistently held that the burden of obtaining a ruling is on the movant, and unresolved questions and objections are waived and may not be relied upon on appeal. Aaron v. State, 319 Ark. 320, 891 S.W.2d 364 (1995). Ms. Jenkins cites Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980), for the proposition that it is incumbent upon the trial court to intervene, even without an objection, when a prosecutor makes improper comments to the jury. However, in dicta contained in that opinion, the supreme court merely suggested that the trial court may have a duty to correct such an error through an admonition to the jury or granting of a mistrial. The supreme court noted that such an exception to the contemporary objection rule \u201cis a mere possibility, for it has not yet occurred in any case.\u201d Wicks v. State, 270 Ark. at 786, 606 S.W.2d at 369. We decline to extend this hypothetical exception to the general- rule that an objection is necessary to preserve a point for review, and because no objection was made to the prosecutor\u2019s remarks in the instant case, we fail to reach the merits of Ms. Jenkins\u2019s third contention.\nMs. Jenkins\u2019s remaining assertion is that the trial court erred in refusing to grant a mistrial due to improper impeachment. On cross-examination, the prosecutor asked Ms. Jenkins whether she informed the Conway Public School System of her misdemeanor theft conviction when she applied for a job as a teacher. Ms. Jenkins replied that she did not disclose that information because her employer did not ask about it. After an objection by the defense, the prosecution stated that it was trying to attack Ms. Jenkins\u2019 credibility by showing that she misled her employer in order to get a job. Then, the defense moved for a mistrial and the trial court denied the motion. Ms. Jenkins now argues that the trial court\u2019s ruling was erroneous because the elicited testimony prejudiced the jury to the extent that she was denied a fair trial. Ms. Jenkins notes that the prosecution presented no proof that the Conway School District even asked about any misdemeanor convictions prior to hiring her.\nWe find no error in allowing the State to ask the question in dispute. On direct examination, Ms. Jenkins admitted that she had been convicted of misdemeanor shoplifting prior to gaining employment as a school teacher. The State then asked her on cross-examination whether she informed the school district about the conviction. This question was not objectionable because Ms. Jenkins \u201copened the door\u201d to the question by discussing it on direct examination. See Larimore v. State, 317 Ark. 111, 877 S.W.2d 570 (1994). While we do not know why Ms. Jenkins testified on direct examination about her earlier misdemeanor, it is conceivable that she wanted to display her candor before the court to bolster her credibility. The State could properly then cross-examine her about this testimony and inquire as to whether her candor extended to also telling her employer about the conviction when she was applying for her teaching job. Moreover, any possible prejudice was diminished by the fact that Ms. Jenkins replied that she did not inform the school district about her misdemeanor conviction because the question was not asked when she applied for employment.\nA mistrial is an extreme remedy to be used only when it is determined that something has occurred that will undoubtedly deprive a party of a fair trial. Foreman v. State, 328 Ark. 583, 945 S.W.2d 926 (1997). A trial court has wide discretion when it comes to a motion for a mistrial. Id. In the instant case, we find that the trial court did not abuse its discretion in refusing to find that the contested fine of questioning by the prosecution was improper or prejudiced Ms. Jenkins to such an extent that the granting of a mistrial was necessary.\nAffirmed.\nPittman, Jennings, Neal, and Meads, JJ., agree.", "type": "majority", "author": "John B. Robbins, Chief Judge." }, { "text": "Judith Rogers, Judge,\ndissenting. As her fourth issue on appeal, appellant contends that the trial court erred in refusing to grant a mistrial based on an improper impeachment tactic employed by the deputy prosecutor. My disagreement with the majority view lies in its failure to acknowledge this clear and prejudicial error and in its attempt to excuse it on the basis of invited error.\nOn direct examination, appellant admitted that she had previously pled guilty to the misdemeanor offense of theft of property, or shoplifting. During the State\u2019s cross-examination of appellant, the following transpired:\nDEPUTY PROSECUTOR: And is it true \u2014 is it not true that you were convicted of the crime of theft of property in Pulaski County on October 18, 1994?\nAPPELLANT: I already said yes when Mr. Davis brought it out.\nDEPUTY PROSECUTOR: Did you \u2014 did you provide this information to [the] Conway Public School System when you applied for your job?\nAPPELLANT: No, I didn\u2019t. Everyone has skele-tons in a closet and things that they don\u2019t want to come out, and Conway Public Schools didn\u2019t ask me about it.\nDEPUTY PROSECUTOR: Conway Public Schools didn\u2019t ask you about it? Okay. So there wasn\u2019t anything on your application for employment here \u2014\nDEFENSE COUNSEL: Your honor, that has nothing to do with this\u2014 that\u2019s irrelevant. We\u2019re talking about a misdemeanor.\nTHE COURT: Where are you going counselor?\nDEPUTY PROSECUTOR: I\u2019m questioning the credibility of this witness, your honor, that she would have filled out an application for employment and let mis \u2014 misled her employer as to her prior convictions for crime.\nDEFENSE COUNSEL: And that\u2019s garbage, your Honor. She\u2019s allowed to impeach with a prior conviction only to the tune of asking her. The fact it\u2019s a misdemeanor is not required on any application, and that\u2019s just trying to prejudice the jury with garbage, and I \u2014 I resent it, and I think it\u2019s improper. I am going to ask for a mistrial because of it. She knows it\u2019s improper.\nDEPUTY PROSECUTOR: State would object, your honor. There are no such grounds for a mistrial at this point.\nTHE COURT: I wasn\u2019t even considering that. I was considering whether or not this is something that the jury could consider.\nI think you have asked the question, the witness has answered it, and I think you need to move on.\nDEPUTY PROSECUTOR: Okay. My last question was did she provide \u2014 I\u2019m not sure what her answer was now. Did you provide this information to the Conway Public School System?\nDEFENSE COUNSEL: I\u2019m objecting, your honor. That\u2019s not required to be asked. There\u2019s no requirement that that be fisted on a misdemeanor, so it\u2019s an improper question.\nTHE COURT: I think the witness has answered it. There was no requirement.\nBy the deputy prosecutor\u2019s own admission, this fine of inquiry was pursued in an effort to impeach appellant\u2019s credibility by implying that she had misled her employer by failing to divulge her previous conviction on her application for employment. Questions asked a defendant about his or her previous misconduct for the purpose of attacking credibility are governed by Rule 608(b) of the Arkansas Rules of Evidence. It provides:\nSpecific instances of the conduct of a witness for the purpose of attacking or supporting his credibility . . . may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness concerning his character for truthfulness or untruthfulness.\nIn Gustafson v. State, 267 Ark. 278, 590 S.W.2d 853 (1979), the supreme court observed that this rule marked a change in Arkansas law in that, before it was adopted, questioning was allowed concerning most any kind of misconduct. It was held that the rule was intended to restrict the use of such evidence, and recognizing the \u201chighly prejudicial\u201d nature of such information, the court set out the following three-part test governing its application: (1) the question must be asked in good faith; (2) the probative value must outweigh its prejudicial effect; and (3) the prior conduct must relate to the witness\u2019s truthfulness. The latter prong of the test has since been taken to mean a lack of veracity rather than dishonesty in general. Rhodes v. State, 276 Ark. 203, 634 S.W.2d 107 (1982); Urquhart v. State, 30 Ark. App. 63, 782 S.W.2d 591 (1990).\nApplying the test here, while it can be said that the prosecution\u2019s question, implying deception, related to the issue of truthfulness, it can hardly be said that the first and second prongs of the test were satisfied. Good faith was utterly lacking since the record demonstrates that appellant was not asked to divulge this information. And, because she was not asked to disclose this conviction, her failure to do so does not reflect poorly on her capacity for truthfulness; therefore, the inquiry was wholly without probative value. The prosecutor\u2019s effort to impeach appellant\u2019s credibility by insinuating that she had deceived her employer was thus absolutely improper.\nThe prejudicial effect of this error cannot be minimized. The mere asking of this improper question elicited a prejudicial response from appellant about hiding \u201cskeletons in a closet.\u201d The question should never have been asked, and appellant should not have been placed in the position of defending her actions in response to an improper question. And, it cannot be said with confidence that the jury was not left with the impression that appellant had purposely hidden this information from her prospective employer, a school district no less, or that the jury did not accept the prosecution\u2019s intimation that the conviction should have been disclosed and that the failure to do so was misleading and deceitful. Appellant\u2019s credibility was vital to her defense, and it is clear that her credibility suffered as a result of the prosecution\u2019s misguided efforts.\nNevertheless, the majority reasons that no harm resulted because of her response that she was not required to divulge this information. However, as indicated above, the prejudice to appellant was palpable. Moreover, our case law recognizes the prejudicial nature of this kind of inquiry and suggests that the prejudicial effect is not necessarily reduced by a negative answer. In Gustafson, supra, the court observed:\nWe were also mistaken in Cox if we left the impression that a negative answer to an improper question results in no prejudicial error. There is no doubt that such a question harms a defendant\u2019s case. When it is proper, about a type of misconduct that is relevant, it is allowed only because it is relevant to the determination of the credibility of the defendant. But to say that a negative answer always removes the prejudice in every case goes too far.\nGustafson v. State, 267 Ark. at 291, 590 S.W.2d at 860. \u201cThe prejudicial effect of such questions is not remedied by the fact that they were answered in the negative. As was made clear in Gustaf-son, \u2018There is no doubt that such a question harms a defendant\u2019s case.\u2019\u201d Cameron v. State, 272 Ark. 282, 286, 613 S.W.2d 593, 595 (1981). \u201cWhen answered negatively, no evidence of misconduct has been produced, but a prejudicial question may have been asked.\u201d Spicer v. State, 2 Ark. App. 325, 328, 621 S.W.2d 235, 237 (1981). \u201cSince specific acts of misconduct may not be proved by extrinsic evidence, Gustafson teaches that a prosecutor hazards a reversal when he asks about prior misconduct and does not get an answer of probative value as to the witness\u2019s truthfulness or untruthfulness.\u201d Summerlin v. State, 7 Ark. App. 10, 14, 643 S.W.2d 582, 585 (1982). Given the inherent potential for prejudice flowing from this type of impeachment, the Gustafson court even issued a warning that prosecutors would be well advised to procure a ruling from the trial court prior to launching into this sort of inquiry before a jury. Based on the facts of this case and the foregoing authorities, I believe that the trial court abused its discretion in failing to grant appellant\u2019s motion for a mistrial.\nFinally, I disagree with the majority\u2019s view that appellant somehow \u201copened the door\u201d to the question by discussing the conviction on direct examination. True, it is generally recognized that otherwise inadmissible testimony may be offered when one party has opened the door for another party to offer it. Larimore v. State, 317 Ark. 111, 877 S.W.2d 570 (1994). This is referred to as \u201cfighting fire with fire,\u201d and it is permitted when a defendant has been untruthful about a former crime or has brought otherwise inadmissible character evidence which the State may then rebut. Id. But this case does not involve such an act by appellant. Under the rules of evidence, appellant was not required to reveal a prior misdemeanor conviction for theft of property; nor could the State have brought it up on cross-examination. Ark. R. Evid. 608; Ark. R. Evid. 609. Her confession of it was thus a fortuitous occurrence for the State. But by admitting it, she said nothing untruthful and made no misrepresentation for the State to rebut. There was simply no fire to be extinguished by her admission, and it makes no sense to conclude that her admission of it provided the State with an opportunity to engage in improper impeachment. In fact, a similar conclusion was reached in Larimore v. State, supra, curiously enough the case cited by the majority to support its view.\nI respectfully dissent.", "type": "dissent", "author": "Judith Rogers, Judge," } ], "attorneys": [ "Jeff Rosenzweig and Woodson D. Walker, for appellant.", "Winston Bryant, Att\u2019y Gen., by: Sandy Moll, Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Kimberly JENKINS v. STATE of Arkansas\nCA CR 97-98\n959 S.W.2d 57\nCourt of Appeals of Arkansas Divisions I and II\nOpinion delivered December 22, 1997\nJeff Rosenzweig and Woodson D. Walker, for appellant.\nWinston Bryant, Att\u2019y Gen., by: Sandy Moll, Asst. Att\u2019y Gen., for appellee." }, "file_name": "0001-01", "first_page_order": 23, "last_page_order": 35 }