Clark v. State ( 1996 )

Donald L. Corbin, Justice.

Appellant, Richard Clark, appeals the order of judgment and commitment, entered October 7, 1994, in the Phillips County Circuit Court convicting him, by jury trial, of one count of rape and sentencing him to imprisonment for forty years. Jurisdiction is properly in this court pursuant to Ark. Sup. Ct. R. 1-2(a)(2). Appellant asserts five points for reversal. We affirm the trial court’s order.

Appellant does not challenge the sufficiency of the evidence, so there is no need to recite it in detail. The charge against appellant was the result of a single incident occurring on the evening of April 8, 1993, when appellant picked up his daughter, the victim, then aged ten years, to drive her to his house. The victim testified that on their way to appellant’s house, appellant stopped the car, told her to get in the back seat, put her “short pants” on the floor, put his own clothes on the front seat, got in the back seat with her, lay on top of her while she lay on her back, and stuck “his private” in “her private.” The victim testified that it felt like a bottle, that she told appellant to stop, that appellant did this for about an hour, and that she had to go to the hospital later because appellant had hurt her and she was bleeding. On April 9, 1993, the victim was treated for a bleeding vaginal laceration at the emergency room of Arkansas Children’s Hospital in Little Rock and was admitted to its medical surgical unit. The hospital recommended that the victim receive mental health counseling, and, subsequently, she did.

Evidence of prior bad acts

Appellant’s first assignment of error is the admission of certain portions of the testimonies of the victim and Donna McKuen, an Arkansas Department of Human Services family service worker, as follows. The victim testified that appellant had never “done this” to her before. When asked whether appellant had “done it” to any of the other children who lived in his house, the victim replied affirmatively, and testified that she had seen appellant do the same thing he had done to her to eight-year-old Kenisha Harris in his house. Ms. McKuen testified that she had interviewed the victim on May 3, 1993, and had asked the victim if anyone had done anything bad to her, and that the victim had answered “yes, my daddy” and described the circumstances of the April 8, 1993 rape. Ms. McKuen also testified that, during the same interview, the victim told her that appellant had “done this to her” four times before.

Appellant contends these testimonies should have been excluded pursuant to Ark. R. Evid. 404(b) and 403, respectively, as character evidence that had no relevance except to show appellant’s propensity to commit the crime charged, and that was unfairly prejudicial. This argument is meritless.

In Greenlee v. State, 318 Ark. 191, 197, 884 S.W.2d 947, 950 (1994), we reversed Greenlee’s conviction for the rape of a five-year-old girl on other grounds, but stated that the trial court did not err by admitting evidence of Greenlee’s four prior convictions for sex-related offenses against other minor victims, as follows:

If this case did not pertain to child abuse or incest, the evidence of other crimes would be inadmissible character evidence under Rule 404(b) of the Arkansas Rules of Evidence. However, we allow such evidence under a pedophile exception to show “similar acts with the same child or other children in the same household when it is helpful in showing a ‘proclivity toward a specific act with a person or class of persons with whom the accused has an intimate relationship.’ ” Free v. State, 293 Ark. 65, 71, 732 S.W.2d 452, 455 (1987) (quoting White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986)). Appellant committed the prior offenses against young children, just as he was accused of doing in this case .... We have long held that such evidence helps to prove the depraved sexual instinct of the accused. Williams v. State, 103 Ark. 70, 146 S.W. 471 (1912).

This rationale is equally applicable to evidence of other sexual acts by the accused with the victim or another child in the same household. See Thompson v. State, 322 Ark. 586, 910 S.W.2d 694 (1995); Jarrett v. State, 310 Ark. 358, 833 S.W.2d 779 (1992); Free v. State, 293 Ark. 65, 732 S.W.2d 452 (1987). Appellant cites no authority contradicting this rule of law in the context of a sex-related offense involving a minor victim. Thus, appellant fails to demonstrate that the trial court’s ruling violated Rule 404(b).

Further, the challenged testimony was relevant to prove the charge of rape, and its probative value substantially outweighed its prejudicial effect. Jarrett, 310 Ark. 358, 833 S.W.2d 779; Free, 293 Ark. 65, 732 S.W.2d 452. Thus, appellant fails to demonstrate that the trial court’s ruling violated Rule 403.

Ark. R. Evid. 615

The victim was permitted, without objection, to testify while seated at a table placed before the witness stand so that she faced the jury. As the examining attorney asked the victim each question, she wrote her response on a piece of paper and the attorney read the response aloud before proceeding to the next question. Appellant’s second assignment of error is the trial court’s ruling, over appellant’s objection pursuant to Ark. R. Evid. 615, that Ms. McKuen would be permitted to sit with the victim while the victim testified. The state requested this seating arrangement to “enable [the victim] to testify betterf.]” The trial court granted the state’s request on the conditions that: (1) if Ms. McKuen was called as a witness by the state, she would testify prior to the victim, (2) Ms. McKuen would not make suggestions to the victim during the victim’s testimony, and (3) Ms. McKuen would not be subject to recall by the state.

Rule 615 governs the exclusion of witnesses from the courtroom so that they may not hear the testimony of other witnesses. The provisions of Rule 615 are mandatory. King v. State, 322 Ark. 51, 907 S.W.2d 127 (1995). Nonetheless, pursuant to exceptions set forth in Rule 615 and in Ark. R. Evid. 616, certain persons, including the victim of the crime, have the right to remain in the courtroom. Appellant does not argue and the record does not reflect that Ms. McKuen was qualified to remain in the courtroom under any exception. Therefore, Ms. McKuen should have been excluded from the courtroom, id., and the trial court erred in ruling otherwise.

We do not find, however, that the trial court’s error requires us to reverse its judgment because appellant fails to show that any prejudice resulted. Prejudice is not presumed and we do not reverse absent a showing of prejudice. Id.; Wallace v. State, 314 Ark. 247, 862 S.W.2d 235 (1993). Appellant argues, without authority, that he was prejudiced because Ms. McKuen’s presence made it appear he was trying to intimidate the victim and that the victim had to have someone with her. The abstract does not support appellant’s assertion, and, in fact, even fails to reflect whether Ms. McKuen was present in the courtroom during the victim’s testimony. The abstract does show that Ms. McKuen testified prior to the victim and was not recalled to the stand.

The purpose of Rule 615 is to expose inconsistencies in the testimonies of different witnesses and “ ‘to prevent the possibility of one witness’s shaping his or her testimony to match that given by other witnesses at trial.’ ” King, 322 Ark. 51, 55, 907 S.W.2d 127, 129 (quoting Fite v. Friends of Mayflower, Inc., 13 Ark. App. 213, 682 S.W.2d 457 (1985)). There is no abstracted evidence of such conduct as a result of the trial court’s erroneous ruling. On this record, we cannot say that appellant has demonstrated reversible error.

Failure to include Ms. McKuen on witness list

Appellant’s third assignment of error is that Ms. McKuen should not have been permitted to testify because the state failed to include her name on its witness list, in violation of its discovery obligation under Ark. R. Crim. P. 17.1 and 19.2. This argument is meritless.

First, an appellant is required to make an objection at the first opportunity in order to preserve the argument for appeal. Edwards v. State, 321 Ark. 610, 906 S.W.2d 310 (1995). Appellant did not object to Ms. McKuen’s testimony until she had taken the stand and answered twenty-four questions. At that point, Ms. McKuen was testifying as to her May 3, 1993 interview with the victim. Appellant objected that he had no statements taken by Ms. McKuen, and, after a brief exchange between the trial court and the parties’ trial counsel regarding this objection, a bench conference ensued wherein appellant’s counsel stated that the state “has got to let me know [Ms. McKuen] is going to testify.” On this record, we do not find that appellant objected at the earliest opportunity. Id.

Second, Rule 17.1 provides that, upon timely request, the state shall disclose to defense counsel the names and addresses of persons whom the state intends to call as witnesses; Rule 19.2 provides that the state’s obligation is a continuing one. The abstract, however, does not show appellant’s discovery request to the state, as required by Rule 17.1, or any witness list appellant received from the state. It is the duty of the appellant in a criminal case to abstract such parts of the record that are material to the point he argues, and his failure to do so precludes the appellate court from considering issues concerning it. Manning v. State, 318 Ark. 1, 883 S.W.2d 455 (1994).

Third, the record demonstrates that appellant was aware that Ms. McKuen was a prospective state’s witness, as follows. An in-camera conference was conducted immediately prior to Ms. McKuen’s testimony, wherein the trial court considered appellant’s Rule 615 objection that we discussed above. During that conference, appellant’s counsel argued that he anticipated Ms. McKuen was going to be a witness, and, therefore, she could not stay in the courtroom during the victim’s testimony.

Fourth, even assuming the state violated its discovery obligation by failing to disclose Ms. McKuen as a prospective witness prior to trial, appellant could have requested time to interview Ms. McKuen before she was called to testify. Mills v. State, 322 Ark. 647, 910 S.W.2d. 682 (1995). We have held that such a course of action by the trial court so ameliorated the state’s failure to comply with Rule 17.1 that the accused was not prejudiced. Id. Alternatively, appellant could have requested a continuance. Ark. R. Crim. P. 19.7. Appellant, however, failed to request either of these remedies.

Hearsay

Appellant’s fourth assignment of error is the admission of those portions of the testimonies of Ms. McKuen and Ms. Carol Crider reporting the victim’s out-of-court statements to them describing her rape. Ms. Crider was a social worker with the Arkansas Children’s Hospital who interviewed the victim at the hospital on April 9, 1993.

The trial court ruled these testimonies were admissible after the state characterized them as medical history, an apparent allusion to the hearsay exception for statements made for purposes of medical diagnosis or treatment under Ark. R. Evid. 803(4). Appellant argues that these testimonies regarding the victim’s out-of-court statements were inadmissible hearsay offered to bolster the victim’s testimony as prior consistent statements.

Citing Gatlin v. State, 320 Ark. 120, 895 S.W.2d 526 (1995), the state correctly points out that, on the facts of this case, it is unnecessary to consider whether the trial court’s ruling was erroneous. In Gatlin, we held that the trial court’s erroneous admission of the hearsay testimonies of two family members, which reported an out-of-court statement of the rape victim, a minor, was rendered harmless where the rape victim’s own trial testimony independently evidenced her rape and the rape victim was available at trial for cross-examination by the appellant. In light of the victim’s trial testimony and availability for cross-examination by appellant, this point of the appeal is governed by Gatlin.

Jury instruction

The trial court instructed the jury that in order to convict appellant, the state must prove that he engaged in sexual intercourse or deviate sexual activity with the victim. Appellant’s fifth assignment of error is the inclusion of the language “or deviate sexual activity” in the instruction because, he argues, there was no evidence to support that part of the instruction. This argument is meritless.

“Sexual intercourse” is defined as “penetration, however, slight, of a vagina by a penis.” Ark. Code Ann. § 5-14-101(9) (Repl. 1993). “Deviate sexual activity” is defined as:

[A]ny act of sexual gratification involving:

(A) The penetration, however slight, of the anus or mouth of one person by the penis of another person; or

(B) The penetration, however slight, of the vagina or anus of one person by any body member or foreign instrument manipulated by another person[.]

Ark. Code Ann. § 5-14-101(1) (Repl. 1993). State’s witness, Dr. Ava Komoroski, a physician in the emergency department of Arkansas Children’s Hospital who examined the victim on April 9, 1993, testified that, in her opinion, a “a large object” penetrated and entered the victim’s vagina. Dr. Komoroski testified that nothing in her examination could tell the court what it was that actually caused the victim’s injury. The victim testified that, when appellant raped her, it felt like a bottle. On this record, we cannot find that the abstract supports the premise for appellant’s argument, that is, that no evidence was introduced to support the “deviate sexual activity” portion of the instruction.

Affirmed.

Dudley and Brown, JJ., dissent.