This opinion is uncorrected and subject to revision before publication in the printed official reporter.
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APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT. NO. CR-12-1590. HONORABLE WILLIAM A. STOREY, JUDGE.
The Mullenix Firm, PLLC, by: D. Ryan Mullenix, for appellant.
Dustin McDaniel, Att'y Gen., by: Karen Virginia Wallace, Ass't Att'y Gen., for appellee.
DAVID M. GLOVER, Judge. VIRDEN and GRUBER, JJ., agree.
DAVID M. GLOVER, Judge
Donnie Fronterhouse was tried by a jury and found guilty of the offenses of arson and residential burglary. The trial court denied his motion for a new trial, and this appeal followed. He raises four points of appeal: 1) in light of the common-law presumption against arson, did the evidence sufficiently establish that Fronterhouse committed arson and residential burglary; 2) did the circuit court err by not allowing Fronterhouse to impeach a witness with her prior convictions involving dishonesty and false statements; 3) should the circuit court have instructed the jury on the common-law presumption against arson; and 4) did a juror's failure to correctly answer questions on a jury questionnaire and during voir dire violate Fronterhouse's rights to an impartial jury and due process under the United States and Arkansas constitutions. We reverse and remand for a new trial, finding error in the trial court's refusal to allow the impeachment evidence. Even though we are reversing and remanding on that basis, because of double-jeopardy considerations, we will also address Fronterhouse's challenge to the sufficiency of the evidence supporting the verdicts. Additionally, because the issue is likely to arise again upon retrial and because Fronterhouse incorporates the presumption into his sufficiency challenge, we will also address his argument that the trial court erred in refusing his proffered instruction on the common-law presumption against arson. We will not, however, address his argument regarding juror misconduct because it is now moot, and it will not arise again upon retrial.
Sufficiency of the evidence
Fronterhouse challenges the sufficiency of the evidence supporting his convictions for arson and residential burglary. Again, because of double-jeopardy concerns, we address his challenge to the sufficiency of the evidence first, before our review of any asserted trial errors. Foshee v. State, 2014 Ark.App. 315. The test we employ to determine the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is that which is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Sullivan v. State, 2012 Ark. 74, 386 S.W.3d 507. We view the evidence in the light most favorable to the appellee, which in this case is the State, and only evidence supporting the verdict is considered. Id. ; Foshee, supra. We do not weigh the evidence presented at trial because that is a matter for the fact-finder, and neither do we assess the credibility of the witnesses. Sullivan, supra. Although it is true that circumstantial evidence is insufficient as a matter of law if it leaves the jury solely to speculation and conjecture, the fact that evidence is circumstantial does not necessarily render it insubstantial. Satterfield v. State, 2014 Ark.App. 633, 448 S.W.3d 211. The law makes no distinction between circumstantial and direct evidence when reviewing for sufficiency of the evidence, and circumstantial evidence is sufficient if it excludes
every other reasonable hypothesis consistent with innocence; whether the evidence excludes every other reasonable hypothesis is left to the jury to determine. Id. The jury, as fact-finder, is free to believe all or part of a witness's testimony and may resolve all questions of conflicting testimony and inconsistent evidence. Id.
Arkansas Code Annotated section 5-38-301 (Repl. 2013) provides in pertinent part that a person " commits arson if he or she [s]tarts a fire or causes an explosion with the purpose of destroying or otherwise damaging . . . an occupiable structure . . . that is the property of another person[.]" In making his argument that his arson conviction under this statute is not supported by substantial evidence, Fronterhouse also relies upon a common-law presumption concerning arson that has been articulated in several Arkansas cases. The State acknowledges that the presumption existed in Arkansas at the time of the July 2012 fire, even though it has since been eliminated by statute. At least as early as 1939, the presumption was explained in the following manner by our supreme court:
There is no presumption that an unexplained fire is of incendiary origin. On the contrary, the presumption is that such fire was caused by an accident, or, at least, that it was not of criminal design. In a prosecution for arson, as in other criminal cases, it is incumbent on the State to prove the corpus delicti, and it is now recognized as the universal rule in the law of arson that in order to establish the corpus delicti it is not only necessary that the State prove the burning of the building [or property] in question, but the evidence must also disclose that it was burned by the wilful act of some person criminally responsible for his acts, and not by natural or accidental causes.
Johnson v. State, 198 Ark. 871, 873, 131 S.W.2d 934, 935. (Overturned by legislative action. See n. 1, this opinion.) This presumption will also be discussed subsequently as it pertains to Fronterhouse's argument that the jury should have been instructed on it.
Fronterhouse also challenges the sufficiency of the evidence supporting his conviction for residential burglary under Arkansas Code Annotated section 5-39-201 (Repl. 2013), which provides in pertinent part that a person " commits residential burglary if he or she enters or remains unlawfully in a residential occupiable structure of another person with the purpose of committing in the residential occupiable structure any offense punishable by imprisonment."
Here, viewing the evidence in the light most favorable to the State and considering only the evidence that supports these verdicts, that evidence shows that Tara Sue Diaz-Ramirez lived in Apartment No. 202 on the second floor of a two-story complex that had eight apartment units on each of the two floors. Tara's friend and neighbor, Tiffany Byers, lived across the hall in the apartment complex. Tara and Fronterhouse had a tumultuous relationship, with him sometimes staying in her apartment at night, although he never had a key or paid rent, and sometimes staying in the open field behind her apartment as well as other places.
On the night of July 6--7, 2012, Tara's apartment burned. Springdale Police Detective Matt Ray testified that he was the lead detective in the case. He received a ...