{ "id": 6141495, "name": "Scharel Ann BURLEY v. STATE of Arkansas", "name_abbreviation": "Burley v. State", "decision_date": "2001-10-24", "docket_number": "CA CR 00-1356", "first_page": "311", "last_page": "320", "citations": [ { "type": "official", "cite": "75 Ark. App. 311" }, { "type": "parallel", "cite": "57 S.W.3d 746" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "330 Ark. 171", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 298616 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/330/0171-01" ] }, { "cite": "262 Ark. 7", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1675867 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/ark/262/0007-01" ] }, { "cite": "1 Ark. App. 190", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140579 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/ark-app/1/0190-01" ] }, { "cite": "331 Ark. 326", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1604804 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/331/0326-01" ] }, { "cite": "902 S.W.2d 773", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1449584, 1449600 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/321/0500-01", "/ark/321/0438-01" ] }, { "cite": "321 Ark. 438", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1449600 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/321/0438-01" ] }, { "cite": "343 Ark. 591", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 226503 ], "weight": 4, "year": 2001, "opinion_index": 0, "case_paths": [ "/ark/343/0591-01" ] }, { "cite": "338 Ark. 152", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 243602 ], "weight": 3, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark/338/0152-01" ] }, { "cite": "325 Ark. 96", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 369141 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/325/0096-01" ] }, { "cite": "329 Ark. 513", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 236249 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/329/0513-01" ] }, { "cite": "45 Ark. App. 13", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6653464 ], "weight": 2, "year": 1994, "pin_cites": [ { "parenthetical": "holding that a defendant's improbable explanations of incriminating circumstances are admissible as proof of guilt" }, { "parenthetical": "holding that a defendant's improbable explanations of incriminating circumstances are admissible as proof of guilt" } ], "opinion_index": 0, "case_paths": [ "/ark-app/45/0013-01" ] }, { "cite": "340 Ark. 184", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1365300 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "194" }, { "page": "545" } ], "opinion_index": 0, "case_paths": [ "/ark/340/0184-01" ] }, { "cite": "316 Ark. 182", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1907836 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/316/0182-01" ] }, { "cite": "998 S.W.2d 738", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 243440, 243578 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/ark/338/0507-01", "/ark/338/0515-01" ] }, { "cite": "338 Ark. 515", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 243578 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/ark/338/0515-01" ] }, { "cite": "301 Ark. 235", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1885524 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/301/0235-01" ] }, { "cite": "328 Ark. 241", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 50410 ], "weight": 4, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/328/0241-01" ] }, { "cite": "326 Ark. 34", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 12020206 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/326/0034-01" ] }, { "cite": "337 Ark. 413", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1240967 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark/337/0413-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-10-103", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "pin_cites": [ { "page": "(a)(1)" } ], "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 5-10-102", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1997, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 836, "char_count": 17459, "ocr_confidence": 0.778, "pagerank": { "raw": 5.56316650445818e-08, "percentile": 0.34976595160567275 }, "sha256": "73ac650abe8b3cef22b3bccb5d502bdfe5b4ce89b8ca13ee912c917616ae28c6", "simhash": "1:126084b0556dd39c", "word_count": 2854 }, "last_updated": "2023-07-14T22:52:09.138779+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Pittman and Neal, JJ., agree." ], "parties": [ "Scharel Ann BURLEY v. STATE of Arkansas" ], "opinions": [ { "text": "D. Vaught, Judge.\nAppellant Scharel Ann Burley was convicted of second-degree murder and sentenced by a jury to eighteen years\u2019 imprisonment in the Arkansas Department of Correction. Burley raises two points on appeal. First, she contends that there was insufficient evidence to support the jury verdict. Second, Burley argues that the trial court abused its discretion by allowing the State to introduce evidence of an alleged prior bad act under Rule 404(b) of the Arkansas Rules of Evidence. We reverse and remand on the second point.\nI. Facts\nOn Wednesday, January 12, 2000, Central Emergency Medical Services responded to a 911 call from Prairie Grove, Arkansas. The paramedics arrived at the caller\u2019s home at 8:48 p.m. to assist a baby in distress. Moments after the paramedics arrived, the baby stopped breathing. The child was identified as eighteen-month-old Samuel Sams. Samuel had been vomiting clear liquid and green mucus, and was breathing at a rate of ten breaths per minute. The paramedics began CPR and transported Samuel to Washington Regional Medical Center. He was pronounced dead at 10:47 p.m.\nDr. Charles Kokes, a medical examiner with the State Crime Lab, performed the autopsy. The cause of death was determined to be acute peritonitis caused by a tear in the child\u2019s bowel. The tear was caused by an end-cap of a thermometer, measuring about three inches in length. The end-cap was still- inside Samuel at the time of the autopsy. Dr. Kokes testified that peritonitis is associated with severe pain, but is not necessarily fatal. He further testified that the perforation of the rectal wall occurred six to. twenty-four hours prior to Samuel\u2019s death. Dr. Kokes opined that the force necessary to cause this type of tear would be roughly equivalent to pushing the eraser end of a pencil through six sheets of Saran Wrap. The medical examiner ruled Samuel\u2019s death a homicide and concluded that the perforation of his rectum wall by a thermometer cap was \u201cnot an accidental happenstance.\u201d\nAppellant was the child\u2019s caregiver at the time that the emergency call was made. Samuel had been in her care since Saturday, January 8, 2000. She told investigators that Samuel had a fever when she picked him up from his mother\u2019s home on Saturday and that she had taken his temperature each day he had been in her care using a digital ear thermometer. Appellant denied ever using a rectal thermometer on Samuel and stated that although she did own a rectal thermometer, she had not seen it for several months. She also told the investigator that she had called the emergency room when Samuel\u2019s condition began to deteriorate and was told that Samuel would be fine as long as she could keep him hydrated. During the course of the investigation, appellant admitted that Samuel had not left her sight while he was in her charge, and that she was his only caregiver during the time period in question.\nA search of a trash can in appellant\u2019s home produced a clear piece of a thermometer cover that matched the piece found inside of Samuel\u2019s abdominal cavity. The police also found a rectal thermometer on a bookshelf in appellant\u2019s apartment. Paul Williams testified that around Thanksgiving he gave appellant a rectal thermometer that he received during a promotional event held by his employer, Wal-Mart. He further testified that he had seen Samuel the evening prior to his death and that there \u201cwas nothing wrong with him.\u201d However, Williams also testified that the next morning he observed Samuel in a crib and he \u201cwas just laying there like he was dead.\u201d\nBrenda Westphall testified that her son had been in appellant\u2019s care on Sunday, January 9, 2000. She further stated that she borrowed a rectal thermometer from appellant on Sunday when she came to pick up her son. After taking her son\u2019s temperature, she left the thermometer, with both pieces of the protective cover intact, on a nightstand in appellant\u2019s apartment. According to Westphall\u2019s testimony, the following day she noticed that the thermometer had been moved from the nightstand. Two other witnesses testified that they had observed appellant taking Samuel\u2019s temperature using a rectal thermometer. Finally, appellant\u2019s telephone records were subpoenaed and the police found no evidence that appellant had made a call to the emergency room to seek advice on Samuel\u2019s care.\nOn February 18, 2000, appellant was first charged with second-degree murder; however, the information was later amended to first-degree murder. A jury trial was held on August 8-9, 2000. A jury found appellant guilty of murder in the second degree, sentenced her to eighteen years\u2019 imprisonment in the Arkansas Department of Correction, and imposed a $12,000 fine.\nII. Sufficiency of the Evidence\nFirst, appellant challenges the sufficiency of the evidence to support the jury verdict of second-degree murder. Specifically, appellant argues that the State failed to prove that she \u201cknowingly\u201d caused the death of Samuel. In response, the State argues that the issue was not properly preserved for appeal. The State admits that appellant\u2019s motion for a directed verdict as to second-degree murder was properly executed but contends that appellant failed to get a ruling on her motion. In response to appeUant\u2019s directed-verdict motion, the trial court ruled that the State has \u201cmade a prima facie case on the murder in the first-degree charge.\u201d\nAppellant was charged with first-degree murder for \u201cknowingly causing] the death of a person fourteen (14) years of age or younger at the time the murder was committed.\u201d Ark. Code Ann. \u00a7 5-10-102(a) (Repl. 1997). The jury was instructed on first-degree murder, second-degree murder, manslaughter, and negligent homicide. She was convicted of second-degree murder, having \u201cknowingly\u201d caused the death of Samuel \u201cunder circumstances manifesting an extreme indifference to the value of human life.\u201d Ark. Code Ann. \u00a7 5-10-103(a)(1). In Byrd u State, 337 Ark. 413, 992 S.W.2d 759 (1999), our supreme court held that \u201ccausing a death under circumstances manifesting extreme indifference to the value of human life\u201d is not an element of the charge of first-degree murder under section 5-10-102(a), and that in cases implicating these two code sections, second-degree murder is not a lesser-included offense of first-degree murder. Therefore, the State concludes that the objection was left unresolved and was waived as a point for appeal. See Danzie v. State, 326 Ark. 34, 930 S.W.2d 310 (1996).\nAlthough the State has offered a technically sound argument, we hold that the trial court\u2019s response to appellant\u2019s motion for directed verdict, which found sufficient evidence to go forward on the crime charged, adequately preserved her motion on the other charges. Therefore, we will consider the sufficiency of the evidence on appeal.\nA motion for directed verdict is a challenge to the sufficiency of the evidence. The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Substantial evidence is evidence that is of sufficient certainty and precision to compel a conclusion one way or another. Ladwig v. State, 328 Ark. 241, 943 S.W.2d 571 (1997). In a challenge to the sufficiency of the evidence, the appellate court reviews the evidence in the light most favorable to the State, and sustains a judgment of conviction if there is substantial evidence to support it. Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990). Circumstantial evidence may provide the basis to support a conviction, but it must be consistent with the defendant\u2019s guilt and inconsistent with any other reasonable conclusion. Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999).\nIn her argument, appellant offers various purportedly exculpatory facts to be weighed against evidence presented at trial by the State. This court, however, views only the evidence that is most favorable to the jury\u2019s verdict and does not weigh it against other conflicting proof favorable to the accused. Hendrickson v. State, 316 Ark. 182, 871 S.W.2d 362 (1994). The jury is permitted to consider \u201cevidence of cover-up as proof of a purposeful mental state.\u201d Steggall v. State, 340 Ark. 184, 194, 8 S.W.3d 538, 545 (2000); See also Paige v. State, 45 Ark. App. 13, 870 S.W.2d 771 (1994) (holding that a defendant\u2019s improbable explanations of incriminating circumstances are admissible as proof of guilt).\nHere, the evidence was sufficient to establish that appellant knowingly caused Samuel\u2019s death. Appellant inserted a thermometer and its three-inch cap into Samuel\u2019s rectum with such extraordinary force that she must have known that the result could be serious injury or death. The medical testimony of the physician who examined Samuel presented evidence of maltreatment, particularly his description of the blunt force required to tear the child\u2019s bowel, and his conclusion that this act was \u201cnot an accidental happenstance.\u201d The autopsy studies indicated that the life-threatening injury occurred six to twenty-four hours prior to Samuel\u2019s death, during the time in which appellant was the only care-giver of the child, and she admitted that Samuel had not left her sight during this time period. The medical examiner further testified that peritonitis is not necessarily fatal; therefore, appellant\u2019s refusal to seek medical attention after Samuel began a steady decline in health is further evidence that she manifested an extreme indifference to the value of Samuel\u2019s fife. Finally, appellant\u2019s statements that she had not used a rectal thermometer on Samuel and that she misplaced her rectal thermometer months before the incident are improbable explanations of incriminating circumstances and are contrary to the physical evidence and testimony presented by the State at trial.\nAccording to Arkansas Code Annotated \u00a7 5-2-202 (Repl. 1993), a person acts knowingly with respect to a result of his conduct when he is aware that it is practically certain that his conduct will cause such a result. Ladwig v. State, 328 Ark. 241, 943 S.W.2d 571 (1997). A jury need not lay aside its common sense in evaluating the ordinary affairs of life, and it may infer a defendant\u2019s guilt from improbable explanations of incriminating conduct. See, e.g., Goff v. State, 329 Ark. 513, 953 S.W.2d 38 (1997); Davis v. State, 325 Ark. 96, 925 S.W.2d 768 (1996). The evidence was sufficient to show that appellant forcefully inserted an object into Samuel\u2019s rectum knowing that the result could be serious injury or death. Therefore, the motion for directed verdict was properly denied.\nIll Rule 404(b)\nAppellant next argues that the trial court erred in its denial of her motion in limine, based on Ark. R. Evid. 404(b), to exclude from evidence an allegation of abuse made against appellant in October of 1999. The trial court allowed testimony from Detective Shawn Juhl of the Fayetteville Police Department that he had investigated a battery committed against a three-year-old child, Chelsea Sams. The battery consisted of several bruises on the child\u2019s buttocks and \u201ca mark that looked like it had been made with something other than a hand.\u201d Detective Juhl testified that after interviewing the child and the child\u2019s grandmother he concluded that appellant had committed the battery. Appellant denied the allegation. On November 22, 1999, Juhl sent the file to the Fayetteville prosecutor\u2019s office; however, contrary to Juhl\u2019s recommendation, no warrant was issued. After Juhl\u2019s testimony, the trial court issued the appropriate 404(b) instruction:\nMembers of the jury, you are instructed that evidence of other alleged crimes, wrongs or acts of Scharel Ann Burley may not be considered to prove the character of Scharel Ann Burley in order to show that she acted in conformity therewith. This evidence is not to be considered to establish a particular trait of character that she may have nor is it to be considered to show that she acted similarly or accordingly on the day of the incident. The evidence is merely offered as evidence of motive, opportunity, intent, knowledge, absence of mistake or accident. Whether any other alleged crimes or wrongs or acts have been committed is for you to determine.\nEvidence offered under Rule 404(b) must be independently relevant, thus having a tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. McGehee v. State, 338 Ark. 152, 992 S.W.2d 110 (1999). Arkansas Rule of Evidence 404(b) states:\nOther 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.\nThe list of exceptions to inadmissibility in Rule 404(b) is not an exclusive list, but instead, it is representative of the types of circumstances under which evidence of other crimes or wrongs or acts would be relevant and admissible. Williams v. State, 343 Ark. 591, 36 S.W.3d 324 (2001). The test for admission of prior bad acts under Rule 404(b) is whether the evidence offered has independent relevance to a fact of consequence in the case. Id. Also, there must be a degree of similarity between the prior bad act and the present crime. To be probative, the prior criminal act must require an intent similar to that required by the charged crime, Sasser v. State, 321 Ark. 438, 902 S.W.2d 773 (1995). Finally, if the evidence of a prior bad act is independently relevant to the main issue, rather than merely to prove that the defendant is a criminal, then the evidence of that conduct may be admissible with a cautionary instruction by the court. Regalado v. State, 331 Ark. 326, 961 S.W.2d 739 (1998).\nAppellant asserts that the detective\u2019s testimony should not have been admitted into evidence because (1) there is no evidence that the abuse described was a \u201cprior bad act\u201d of appellant, (2) the State failed to prove that the evidence was used to prove anything other than the bad character of appellant, (3) the evidence is not independently relevant, and (4) the danger of unfair prejudice substantially outweighs the probative value of the evidence. The State concedes that evidence of appellant\u2019s prior misconduct would be inadmissible to show only that she was a bad person who should be convicted, but it contends that was not the purposes of the questioning. The conduct inquired about was admissible, the State contends, under Rule 404(b) as proof of motive, intent, preparation, or plan. Specifically, the State argues that appellant failed to seek proper medical attention for Samuel because she was the subject of an investigation of child abuse perpetrated on another child, and that seeking medical care for Samuel could result in more allegations of abuse.\nFirst, we consider if the described abuse allegation was indeed a \u201cbad act.\u201d In this case the only testimony, or tangible evidence, of a prior bad act was an opinion offered by Detective Juhl. There is nothing here but an unsubstantiated allegation. Rule 404(b) cannot apply without proof of an actual act being committed. See Harper v. State, 1 Ark. App. 190, 614 S.W.2d 237 (1981). An investigator\u2019s conclusion of wrongdoing, without anything more, does not amount to an \u201cact\u201d for purposes of Rule 404(b). We, therefore, hold that the trial court\u2019s decision to allow Detective Juhl\u2019s testimony regarding his investigation of appellant was improper. We cannot say that this testimony had no prejudicial effect. McIntosh v. State, 262 Ark. 7, 552 S.W.2d 649 (1977).\nSecond, we are not convinced that the evidence of appellant\u2019s alleged misconduct, even if it amounted to an act, is relevant. Rule 404(b) requires a degree of similarity between the prior bad act and the present crime. Williams, supra. The current case involves a puncture wound to a child\u2019s bowel, and the allegations of prior misconduct involved a single incident of bruising a child\u2019s buttocks. If the evidence does not have a tendency to make the existence of any consequential fact more or less probable than it would be without the evidence, the evidence is not admissible under Rule 404(b). McGehee, supra. We fail to see a relationship between the two events that is strong enough to justify an independent relevance for admission.\nThird, even if the evidence were relevant, it must be admissible under Rule 403, which requires that its probative value be substantially outweighed by the danger of unfair prejudice. Ark. R. Evid. 403. Evidence of an alleged prior bad act has litde or no probative value; therefore, any resulting unfair prejudice, tips the balance. The evidence revealed by Detective Juhl\u2019s testimony was clearly more prejudicial than probative. We, therefore, conclude that the trial judge abused his discretion by admitting the testimony into evidence. Mixon v. State, 330 Ark. 171, 954 S.W.2d 214 (1997).\nReversed and remanded for a new trial.\nPittman and Neal, JJ., agree.", "type": "majority", "author": "D. Vaught, Judge." } ], "attorneys": [ "Mason Law Firm, PLC, by: Jeffrey W. Hatfield, for appellant.", "Mark Pryor, Att\u2019y Gen., by: Michael C. Angel, Ass\u2019t Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Scharel Ann BURLEY v. STATE of Arkansas\nCA CR 00-1356\n57 S.W.3d 746\nCourt of Appeals of Arkansas Division IV\nOpinion delivered October 24, 2001\nMason Law Firm, PLC, by: Jeffrey W. Hatfield, for appellant.\nMark Pryor, Att\u2019y Gen., by: Michael C. Angel, Ass\u2019t Att\u2019y Gen., for appellee." }, "file_name": "0311-01", "first_page_order": 339, "last_page_order": 348 }