Gipson v. State

Cite as 2013 Ark. App. 651
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CR-13-105
Opinion Delivered November 6, 2013
OTIS GIPSON APPEAL FROM THE PULASKI
APPELLANT COUNTY CIRCUIT COURT,
SEVENTH DIVISION
V. [NO. CR-11-2873]
HONORABLE BARRY SIMS, JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED
KENNETH S. HIXSON, Judge
A jury in Pulaski County Circuit Court found appellant Otis Gipson guilty of raping
his former girlfriend’s two minor daughters, F.T. and S.R., during the time that he lived with
them. For the two counts of rape,1 he was sentenced as a habitual offender to concurrent
thirty-five-year prison sentences. On appeal, appellant challenges two evidentiary rulings,
asserting that the trial court abused its discretion in (1) disallowing defense questions about the
presence of another man’s semen on F.T.’s bed sheet, and (2) permitting the State, during the
sentencing phase, to introduce two prior felonies allegedly committed by the appellant during
the sentencing phase without sufficient foundation. We disagree with appellant’s arguments,
holding that he has not demonstrated reversible error, and affirm.
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Appellant was accused of raping F.T. on one occasion, November 28, 2008.
Appellant was accused of raping S.R. multiples times over the course of three years, between
June 2004–June 2007. Appellant does not challenge the sufficiency of the evidence to support
the convictions, so we need not set out the testimony that supports the convictions.
Cite as 2013 Ark. App. 651
Appellant’s first argument is that the trial court erred in prohibiting defense counsel
from questioning an Arkansas State Crime Laboratory DNA analyst, Morgan Nixon, about
the presence of another man’s semen on F.T.’s bed sheet. At a pretrial hearing, the State
presented a motion in limine, requesting that this evidence be excluded as protected under
the rape-shield statute. The trial court agreed, excluding any mention of another person’s
semen on the bed sheet. Defense counsel was permitted, however, to elicit testimony that
appellant’s DNA was not found on the bed sheet.
During her direct testimony, Nixon testified that the appellant’s DNA was not present
on the victim’s bed sheet. On re-direct, the prosecutor then asked Nixon if the victim’s
DNA was found on the sheet, and Nixon responded that the victim could not be excluded
as a minor contributor of DNA. Defense counsel approached the bench and asserted that by
asking whether the victim’s DNA was present on the bed sheet, the prosecutor “opened the
door” to inquiring about the identity of another person’s DNA in semen on the sheet. The
State resisted that argument, and the trial court ruled that the door had not been opened and
denied the defense request. We affirm the trial court’s ruling.
The purpose of the rape-shield statute is to shield victims of rape or sexual abuse from
the humiliation of having their personal conduct, unrelated to the charges pending, paraded
before the jury and the public when such conduct is irrelevant to the defendant’s guilt.
Stewart v. State, 2012 Ark. 349, __ S.W.3d __. A trial court is vested with wide discretion in
deciding whether evidence is relevant and admissible, and we will not overturn that decision
absent clear error or a manifest abuse of discretion. Id.
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Appellant contends on appeal that the presence of another male’s DNA on the victim’s
bed sheets is relevant to identify the victim’s rapist. While the appellant did argue to the trial
court that the State opened the door for additional DNA questioning, the appellant did not
make the argument that the presence of another male’s DNA on the sheets was relevant to
the identity of the rapist. Since this argument was not raised at the trial level or ruled on, and
parties are bound on appeal to the scope and nature of the arguments raised at trial, this
relevancy argument is not preserved for appeal. Tavron v. State, 372 Ark. 229, 273 S.W.3d
501 (2008).
The argument raised at trial was that this inadmissible evidence became admissible
because the State “opened the door.” Larimore v. State, 317 Ark. 111, 877 S.W.2d 570 (1994)
(A party may open the door to otherwise inadmissible evidence and thus permit the other
party to “fight fire with fire.”). The trial court ruled, and we agree, that the State’s questions
about F.T.’s DNA did not open the door to asking about another man’s semen. Moreover,
pursuant to the rape-shield statute, Ark. Code Ann. § 16-42-101(c)(1), and Ark. R. Evid.
411(c)(1) (2013), if a defendant desires to have such evidence considered for admissibility, a
written motion is required to be submitted to the trial court for its consideration. See Hanlin
v. State, 356 Ark. 516, 157 S.W.3d 181 (2004). Appellant did not comply with this directive.
Appellant’s second argument on appeal focuses on the State’s presentation of two prior
felonies in order to support appellant’s status as a habitual offender. The State bears the
burden to prove a defendant’s prior convictions for purposes of the habitual-offender statute.
See Williams v. State, 304 Ark. 279, 801 S.W.2d 296 (1990). A prior felony may be proved
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Cite as 2013 Ark. App. 651
by any evidence that satisfies the trial court beyond a reasonable doubt that the defendant was
convicted or found guilty of the prior felony. Ark. Code Ann. § 5-4-504(a) (Repl. 2006).
Examples of satisfactory evidence are a certified copy of the record of a previous conviction;
a certificate of the warden that contains the defendant’s name and fingerprints as those in the
warden’s records; or a certificate of the chief custodian of the United States Department of
Justice. Id. at subsection (b)(1), (2), and (3). The test on appeal is whether there is substantial
evidence that the defendant was convicted of the felonies in question. Williams, supra.
Here, the State sought to offer several felonies, and two of them were certified copies
of judgments from the State of Mississippi: a 2009 conviction for delivery of cocaine and a
1990 conviction for burglary. These contained his full name “Otis Delotis Gipson” but not
his birth date. Appellant asserted that this was insufficient proof that these were appellant’s
convictions, but the trial court disagreed. The trial court excluded other prior felonies that
did not include his middle name or other identifying information. We hold that there was
substantial evidence of appellant’s identity due to his unique full name, “Otis Delotis Gipson,”
used throughout the record in these proceedings, such that it was not error to submit these
two Mississippi convictions as proof of his habitual-offender status. See Leggins v. State, 271
Ark. 616, 609 S.W.2d 76 (1980).
Having applied the proper standard of review, we affirm appellant’s convictions.
WALMSLEY and BROWN, JJ., agree.
William R. Simpson, Jr., Public Defender, and Dan Hancock, Deputy Public Defender,
by: Margaret Egan, Deputy Public Defender, for appellant.
Dustin McDaniel, Att’y Gen., by: Kathryn Henry, Ass’t Att’y Gen., for appellee.
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