Bayless v. State

935 S.W.2d 534, 326 Ark. 869, 1996 Ark. LEXIS 686
CourtSupreme Court of Arkansas
DecidedDecember 16, 1996
DocketCR 96-920
StatusPublished
Cited by4 cases

This text of 935 S.W.2d 534 (Bayless v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bayless v. State, 935 S.W.2d 534, 326 Ark. 869, 1996 Ark. LEXIS 686 (Ark. 1996).

Opinion

David NEWBERN, Justice.

Debra Bayless, the appellant, was charged as an habitual offender in the Arkansas County Circuit Court with five counts of theft of property. Ark. Code Ann. §§ 5-36-103(a)(2); 5-4-501 (Repl. 1993). At the conclusion of the State’s case-in-chief, the Trial Court dismissed one of the counts upon Ms. Bayless’s motion for directed verdict. The jury returned guilty verdicts on the remaining counts, and Ms. Bayless was sentenced to a prison term of sixty years and a fine of $8,000. On appeal, Ms. Bayless contends that her conviction should be reversed because (1) the State was permitted to introduce the testimony of her former husband, Ricky Bayless, in violation of Ark. R. Evid. 615; and (2) the State was permitted to introduce the testimony of Mr. Bayless and a bank employee, as well as a subpoenaed bank statement, despite the State’s failure to disclose the evidence in response to a request made pursuant to Ark. R. Crim. P. 17.1. We affirm the conviction because Ms. Bayless’s arguments are either meritless or barred on procedural grounds.

The abstract reveals that Ricky and Debra Bayless were employed by the Lone Tree Cemetery in Stuttgart shortly after their marriage in November 1993. Mr. Bayless served as a caretaker, and Ms. Bayless worked in an office on the grounds. Although the Baylesses soon separated, they continued to operate a business at the cemetery known as D & R Monument, which sold cemetery monuments and grave stones. Ms. Bayless ran the business out of the cemetery office. She would receive orders and payments from interested customers and forward the orders to a manufacturer in Georgia known as the Worley Monument Company.

Ms. Bayless was charged with theft after a number of her customers complained to the local prosecutor that they had given checks to Ms. Bayless payable to D & R Monument for monuments they did not receive. The State attempted to show at trial that Ms. Bayless had taken her customers’ checks by deceit, with the purpose of depriving her customers of their money, and with no intention of providing them with the monuments they ordered. The testimony given by the complaining witnesses during the State’s casein-chief established that, from January to April 1995, Ms. Bayless received the customers’ monument orders and checks in amounts ranging from $218 to $1,430; that Ms. Bayless endorsed the checks and cashed or deposited them, typically on the day the checks were written; that the customers received neither monuments nor refunds; and that they attempted to inquire with Ms. Bayless and had difficulty locating her. In addition, the State introduced the complaining witnesses’ receipts and cancelled checks. This was the extent of the State’s case-in-chief.

Ms. Bayless’s case-in-chief consisted of her testimony and the exhibits she introduced. Although Ms. Bayless acknowledged receiving monument orders from the complaining customers and admitted to taking their checks, she denied taking the checks with the intent to deceive. She maintained that she forwarded the orders to the Worley Monument Company in Georgia but explained that the monuments were not delivered because D & R Monument had not made sufficient payments on the invoices. According to Ms. Bayless, it was Mr. Bayless’s responsibility to pay the business’s bills, and she testified that she had made the customers’ checks available for that purpose by depositing them in D & R Monument’s account at Farmers and Merchants Bank or by cashing the checks and giving the cash to Mr. Bayless. Ms. Bayless acknowledged that she was authorized to write checks on D & R Monument’s account, but she insisted that she could not pay any bills, including those owed to the Worley Monument Company, with D & R Monument funds unless she obtained Mr. Bayless’s permission.

Ms. Bayless testified that most of the debt owed by D & R Monument to the Worley company remains unpaid. She indicated, however, that she made a $500 payment "with a cashier’s check that she claimed to have purchased with her own money on April 13, 1995. On cross-examination, Ms. Bayless admitted that this was the same date on which she cashed a check for approximately $700 written by Nellie Mayfield, one of the complaining customers. Ms. Bayless insisted, however, that she gave the cash to Mr. Bayless.

Upon further cross-examination, Ms. Bayless denied depositing any of her customers’ checks in her personal account. The prosecutor specifically asked Ms. Bayless whether, on January 30, 1995, she deposited into the savings account she shared with her boyfriend, Jeffrey Rose, any portion of the $1,430 check that was payable to D & R Monument and written on January 30 by Ida Mae Gaither, one of the complaining customers. Ms. Bayless answered in the negative and asserted that the Gaither check was deposited into the D & R Monument business account on January 30, 1995.

The prosecutor then showed Ms. Bayless the cancelled check written by Ms. Gaither, as well as a bank statement on the Bayless-Rose savings account. After examining the documents, Ms. Bayless acknowledged that the bank statement revealed a large deposit in the account on January 30, 1995, and that the Bayless-Rose account number — not the D & R Monument account number — appeared on the back of Ms. Gaither’s cancelled check. Ms. Bayless’s explanation for the account activity on January 30 was that Mr. Rose had deposited his pay check. Ms. Bayless further suggested that the appearance of the Bayless-Rose account number on the back of the Gaither check was due to an error on the part of the bank. Defense counsel did not object to the prosecutor’s use of the bank statement in the course of cross-examining Ms. Bayless.

The State then offered what it asserted was rebuttal evidence. The State first called Mary Shelton, an employee of the Farmers and Merchants Bank. Defense counsel objected to Ms. Shelton because the State had not disclosed her name as required by Rule 17.1. The State responded that Ms. Shelton was a rebuttal witness and that it had no obligation to furnish the names of rebuttal witnesses in discovery. Defense counsel did not challenge that assertion, and the Trial Court permitted Ms. Shelton to testify.

The prosecutor showed Ms. Shelton the bank statement on the Bayless-Rose savings account. Defense counsel requested a sidebar conference, and the prosecutor revealed that he had obtained the bank statement on the morning of trial but that he had subpoenaed the statement four or five days prior to trial. Defense counsel objected to the prosecutor using the statement because it had not been furnished. The prosecutor again claimed that he had no obligation to disclose the bank statement because it was rebuttal evidence. Defense counsel maintained that the bank statement was not genuine rebuttal evidence because it had been subpoenaed well before trial and because the prosecutor, by his own admission, anticipated using it at trial. The Trial Court allowed the prosecutor to use the bank statement in the course of questioning Ms. Shelton and to introduce the statement into evidence over defense counsel’s objection.

Ms. Shelton examined the bank statement on the stand and testified that a deposit of $1200 was made in the Bayless-Rose savings account on January 30, 1995. Ms. Shelton also examined the cancelled check for $1,430 written by Ms. Gaither and testified that the account number stamped on the back of the check was the number of the Bayless-Rose savings account. Ms.

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Bluebook (online)
935 S.W.2d 534, 326 Ark. 869, 1996 Ark. LEXIS 686, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bayless-v-state-ark-1996.