author: ANNABELLE Clinton Imber, Justice.

text:
    Andra GAINES v. STATE of Arkansas
    CR 99-88
    8 S.W.3d 547
    Supreme Court of Arkansas
    Opinion delivered January 20, 2000

      Donald A. Forrest, for appellant.

      Mark Pryor, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.
   ANNABELLE Clinton Imber, Justice.

Andra Gaines was convicted of three counts of capital murder and one count of first-degree battery. He was sentenced to three terms of life imprisonment on the capital murder charges, to run concurrently with a twenty-year term on the battery charge. On appeal, he raises seven points for reversal. We affirm.

In 1996, Mr. Gaines lived at the West Memphis Housing Authority project. He and Brenda Davis, who lived nearby at the Imperial Homes complex, had been involved in a romantic relationship for about three years. Although the Imperial Homes complex and the Housing Authority project were separated by a chain-link fence, an opening in the fence allowed access by foot from one complex to another. Each unit at the Imperial Homes complex had four apartments, two upstairs and two downstairs, with an inside stairway providing access to the upstairs apartments.

Testimony at trial established that Mr. Gaines and Ms. Davis had a particularly volatile relationship. He was extremely jealous of her relationships with other men and frequently made threats to harm Ms. Davis. An order of protection that was issued by the chancery court on May 15, 1996, excluded Mr. Gaines from Ms. Davis’s residence based upon her allegations that Mr. Gaines had beaten her. Shortly thereafter, Mr. Gaines was shot in the legs by Ms. Davis’s brother, Eric Davis. On June 9, 1996, a fire suddenly broke out in an apartment that was close to the apartment where Ms. Davis lived. According to Ms. Davis, Mr. Gaines made the following remark to her soon after that fire: “the fire should have came [sic] down a little further.” As a result of the fire, Ms. Davis moved to another upstairs apartment in the complex. Mr. Gaines was a possible suspect in the investigation of the June 9 fire, but no charges were ever filed against him. Mr. Gaines threatened Ms. Davis again on June 14, 1996, when he told her that he was “going to get [her] and [her] brother for everything [they] had did [sic] to him.” About that same time, Delisha Stennett heard Mr. Gaines threaten to line Ms. Davis and her family up against a fence and “have his boys from Little Rock come in and kill them all.”

On June 22, 1996, at approximately 4:30 a.m., a second fire broke out at the Imperial Homes complex. This fire destroyed the two upstairs apartments in the unit where Ms. Davis lived. She attempted to escape through her front door, but the heat from the door knob burned her hand. She then found her way through the smoke to a bedroom window, jumped out of the window, and landed on the ground without injury. The occupants of the other upstairs apartment were not so fortunate. Patrice Hardin discovered the fire in the stairwell after she smelled smoke and opened the door to her apartment. Three young children who were asleep in that apartment died in the fire. Patrice and fourteen-year-old Alicia Warren managed to escape, although Alicia was badly burned. According to a West Memphis Fire Department paramedic, Alicia’s condition was life-threatening because she sustained second- and third-degree burns to thirty-five percent of her body.

Several people had seen Mr. Gaines in the vicinity of Ms. Davis’s apartment during the late evening and early morning hours before the second fire broke out on June 22, 1996. Ms. Davis herself saw him there around 10:30 p.m. the night before the fire as she was preparing to go out for the evening. At around 4:00 a.m. on the morning of the fire, Robert Miller dropped Ms. Davis off at her apartment and saw Mr. Gaines standing near the manager’s building at the Imperial Homes complex.

Darren Foster also saw Mr. Gaines at the Imperial Flomes complex that evening. Mr. Foster was returning home from work at 11:00 p.m. when he first saw Mr. Gaines at the complex. About one hour later, Mr. Foster was on his way to his cousin’s apartment in the Housing Authority project when he encountered Mr. Gaines again. At Mr. Gaines’s request, Mr. Foster walked back to the complex with him, where Mr. Gaines knocked on the door of a downstairs apartment that was directly underneath Ms. Davis’s apartment. Despite Mr. Gaines’s statement that a girl named Sharon lived there, Mr. Foster knew the downstairs apartment was vacant. As they walked away, Mr. Gaines looked up at the upstairs apartments in the unit where Ms. Davis lived. The two men then returned to the project and smoked some marijuana. Mr. Gaines asked Mr. Foster once more to return with him to the complex where Mr. Gaines knocked a second time on the same downstairs apartment door and looked up again at the same upstairs apartments. Mr. Foster eventually parted company with Mr. Gaines at 2:00 a.m. on June 22.

Cornelius Franklin saw Mr. Gaines during the early morning hours of June 22 when he made several trips to see Mr. Gaines about purchasing some crack cocaine. During one of those trips, Mr. Franklin heard Mr. Gaines say that he was going “to get that bitch, Brenda Davis, and fuck her up.” When Mr. Franklin went back to see Mr. Gaines for the third time that evening, he asked to purchase the drugs “on credit.” According to Mr. Franklin, Mr. Gaines responded with an offer to give him some dope if Mr. Franklin would go to the store, purchase a dollar’s worth of gas, and bring it back to Mr. Gaines. Mr. Franklin accepted the offer and delivered a dollar’s worth of gas to Mr. Gaines. In return, Mr. Gaines gave Mr. Franklin a $20 rock of crack cocaine. Mr. Franklin’s testimony was corroborated by Linda Green, the mother of one of the victims, who testified that she saw Cornelius Franklin carrying a container of gasoline at approximately 3:00 a.m. on the morning of the fire. Likewise, James Clark testified that between 3:00 a.m. and 4:00 a.m. on the morning of the fire, he saw Mr. Franklin hand Mr. Gaines a container of gasoline, and that ten minutes later the Imperial Homes complex was on fire.

On the morning after the fire, Mr. Gaines checked into a room at a motel and asked to talk with a former girlfriend, Evelyn Simms. He asked her for a telephone book so that he could find the number for the bus station. He also told her that “he had did [sic] something that he knew he was going to have to pay for.” When she asked him if it had anything to do with the children who died in the fire, he merely repeated the following statement seven or eight times: “I’ve made a mistake and I know I’ve got to pay for it.” According to Ms. Simms, her romantic relationship with Mr. Gaines ended in 1995 because he was “too possessive.” Another witness, Vanessa Ann Richmond, testified that she overheard Mr. Gaines say he had “thrown the fire” in the wrong apartment.

A certified fire investigator confirmed that the fire was started in the stairwell outside the apartments with a liquid accelerant that had been ignited by an open flame, such as a match or cigarette lighter. After Patrice Hardin opened the door to her apartment, the fire matriculated upward toward that apartment and the new source of oxygen. The medical examiner concluded that all three children died from smoke and soot inhalation.

Andra Gaines was found guilty by a jury of three counts of capital murder and one count of first-degree battery. He was sentenced by the trial court to serve three terms of fife imprisonment without parole in the Department of Correction, to run concurrently with a twenty-year term on the battery charge. Mr. Gaines now appeals those convictions.

The seven points for reversal raised by Mr. Gaines involve evidentiary rulings by the trial court. On appeal, we will not reverse a trial court’s ruling on the admission of evidence absent an abuse of discretion; nor will we reverse absent a showing of prejudice. Huddleston v. State, 339 Ark. 266, 5 S.W.3d 46 (1999); Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996).

I. Evidence of an Earlier Fire

For his first point on appeal, Mr. Gaines argues that the trial court abused its discretion in allowing evidence of the June 9, 1996 fire and Ms. Davis’s testimony that Mr. Gaines told her “the fire should have came [sic] down a little further,” presumably to her apartment. The State contends that Mr. Gaines’s motion in limine only sought to exclude evidence of the fire itself, and that any objection to testimony about his subsequent statement is not preserved for appellate review.

We will not consider an argument raised for the first time on appeal. McDole v. State, 339 Ark. 391, 6 S.W.3d 74 (1999); McGhee v. State, 330 Ark. 38, 954 S.W.2d 206 (1997). To preserve an argument for appeal, there must be an objection in the trial court that is sufficient to apprise the court of the particular error alleged. Love v. State, 324 Ark. 526, 922 S.W.2d 701 (1996). A party cannot change the grounds for an objection or motion on appeal, but is bound by the scope and nature of the arguments made at trial. Henderson v. State, 329 Ark. 526, 953 S.W.2d 26 (1997).

Prior to trial, Mr. Gaines moved in limine to exclude all evidence concerning the earlier fire that occurred on June 9, 1996. Such evidence would necessarily encompass Mr. Gaines’s remarks to Ms. Davis about the fire. The admissibility of that evidence, including Mr. Gaines’s subsequent statement, is therefore preserved for appellate review.

Mr. Gaines’s first challenge to the admissibility of evidence about the earlier fire is on grounds of relevancy. Arkansas Rule of Evidence 401 defines relevant evidence as:

. . . evidence having any tendency to make the existence of fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

Pursuant to Ark. R. Evid. 402, all relevant evidence is admissible, except as otherwise provided by statute or rule, and evidence which is not relevant is not admissible.

The charges of capital murder in this case included not only felony murder, but also an allegation that Mr. Gaines caused the deaths of the unintended victims while acting with the premeditated and deliberate purpose of causing the death of Ms. Davis. See Ark. Code Ann. § 5-10-101(4) (Repl. 1997). Thus, evidence having any tendency to establish Mr. Gaines’s intent toward Ms. Davis would be pertinent to the premeditation element of the State’s alternative capital murder charge. There was evidence of domestic violence in Mr. Gaines’s relationship with Ms. Davis before the June 9 fire. An order of protection had been issued in May 1996 based upon Ms. Davis’s allegations that she had been beaten by Mr. Gaines. Moreover, he had been shot in the legs by Ms. Davis’s brother. Under these circumstances, Mr. Gaines’s remark to Ms. Davis that the first fire should have reached her apartment was relevant in establishing his intent toward her. With regard to the fire itself, the State did not attempt to establish that Mr. Gaines committed any crime in connection with the first fire. However, evidence of that earlier fire was also relevant in that it provided the necessary context for Ms. Davis’s testimony regarding the statement Mr. Gaines made to her about the fire on June 9, 1996.

Mr. Gaines also challenges the admissibility of this evidence under Ark. R. Evid. 404(b), which states:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of the 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.

Evidence 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). The admission or rejection of evidence under Rule 404(b) is committed to the sound discretion of the trial court, and this court will not reverse absent a showing of manifest abuse. Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996).

As previously stated, the State did not attempt to establish that Mr. Gaines committed any crime in connection with the June 9, 1996 fire. In any event, evidence that the first fire occurred was independently relevant under Rule 404(b). The first fire was a catalyst for Mr. Gaines’s statement that the fire should have “came [sic] down a little further” to reach Ms. Davis’s apartment, suggesting his desire that she be harmed. Where the purpose of evidence is to disclose a motive for a killing or attempted killing, anything that might have influenced the commission of the act may be shown. McGhee v. State, supra. Evidence of circumstances that explain the act, show a motive, or illustrate the accused’s state of mind, may be independently relevant and admissible. Lee v. State, 327 Ark. 692, 942 S.W.2d 231 (1997). In this case, the first fire might have given Mr. Gaines the idea to harm Ms. Davis by means of fire. Thus, evidence about the earlier fire was not prohibited by Rule 404(b).

Finally, Mr. Gaines asserts that the evidence should have been excluded as unduly prejudicial. Rule 403 of the Arkansas Rules of Evidence states:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading of the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

The trial court has the discretion to determine whether the prejudicial value of the evidence substantially outweighs its probative value, and its judgment will be upheld absent a manifest abuse of discretion. Parker v. State, 333 Ark. 137, 968 S.W.2d 592 (1998). Ms. Davis’s testimony regarding the statement Mr. Gaines made to her as well as evidence about the earlier fire, which provided a context for that statement, were probative of his intent and of a possible plan or scheme. We cannot say that the trial court abused its discretion in ruling that the probative value of that evidence was not substantially outweighed by the danger of unfair prejudice. We affirm on this point.

II. Evidence of Drug Use and Drug Dealing

Mr. Gaines next argues that the trial court abused its discretion when it denied his motion in limine to exclude testimony that he smoked marijuana and sold crack cocaine on the evening of the fire. Specifically, Mr. Gaines asserts that this evidence was not relevant and, alternatively, that any relevance was outweighed by the danger of unfair prejudice. Fie also contends that Rule 404(b) prohibits proof of other crimes such as drug use and drug dealing.

The State again argues that Mr. Gaines has not preserved an argument based on Rule 404(b) because his objections below were premised solely on the admissibility of the evidence under Rules 402 and 403. We disagree. The specific ground of an objection must be stated if the specific ground was not apparent from the context. Ark. R. Evid. 103. While Mr. Gaines’s objection was predicated on the assertion that evidence of the drug use and drug dealing would be more prejudicial than probative, he also argued that the admission of such evidence would require him to defend himself against uncharged crimes. Accordingly, we cannot say that an argument based on Rule 404(b) was not apparent from the context.

With regard to the merits of Mr. Gaines’s rule 404(b) argument, the general rule is that evidence of other crimes by the accused, not charged in the indictment or information and not a part of the same transaction, is not admissible at the trial of the accused; however, evidence of other crimes is admissible under the res gestae exception to the general rule to establish the facts and circumstances surrounding the alleged commission of the offense. Haynes v. State, 309 Ark. 583, 832 S.W.2d 479 (1992); Young v. State, 269 Ark. 12, 598 S.W.2d 74 (1980). Under the res gestae exception, the State is entitled to introduce evidence showing all circumstances which explain the charged act, show a motive for acting, or illustrate the accused’s state of mind if other criminal offenses are brought to light. Haynes v. State, supra. Specifically, all of the circumstances connected with a particular crime may be shown to put the jury in possession of the entire transaction. Haynes v. State, supra. Where separate incidents comprise one continuing criminal episode or an overall criminal transaction, or are intermingled with the crime actually charged, the evidence is admissible. See Ruiz & Van Denton v. State, 265 Ark. 875, 582 S.W.2d 915 (1989); Thomas v. State, 273 Ark. 50, 615 S.W.2d 361 (1981); Henderson v. State, 284 Ark. 493, 684 S.W.2d 231 (1985). Res gestae testimony and evidence is presumptively admissible. Henderson, supra; Lair v. State, 283 Ark. 237, 675 S.W.2d 361 (1984); Love v. State, 281 Ark. 379, 664 S.W.2d 457 (1984); Hobbs v. State, 277 Ark. 271, 641 S.W.2d 9 (1982).

Darren Foster testified that he and Mr. Gaines smoked marijuana after midnight on the morning of the fire as they went back and forth between the Imperial Homes complex and the West Memphis Housing Authority project. It was during this time that Mr. Gaines repeatedly returned to the area where the intended victim’s apartment was located. Cornelius Franklin testified that he contacted Mr. Gaines that same night to “buy some dope from him.” His drug purchases from Mr. Gaines that evening eventually led to Mr. Gaines making an offer to give Mr. Franklin some dope in exchange for one dollar’s worth of gas. Within a short time after that transaction, the fire broke out. The evidence of drug use and drug dealing was clearly intermingled and contemporaneous with the arson, culminating in the commission of the crimes charged. As such, it was part of the res gestae and admissible as an exception to Rule 404(b). Furthermore, we cannot say that the probative value of this evidence was outweighed by the danger of unfair prejudice. Accordingly, we affirm on this point.

III. Evidence of An Order Of Protection

Mr. Gaines also challenges the trial court’s admission of an ex parte order of protection entered against Mr. Gaines on May 15, 1996. Specifically, he contends that the protection order should have been excluded under Rule 404(b).

As previously stated, Mr. Gaines’s intent toward Ms. Davis was relevant to the premeditation element of the State’s alternative capital murder charge. Intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances surrounding the killing. Starling v. State, 301 Ark. 603, 786 S.W.2d 114 (1990); Parker v. State, 290 Ark. 158, 717 S.W.2d 800 (1986). Threats made by a defendant prior to the time a homicide occurred are admissible to establish motive and ill will, even where they are never communicated to the victim. Starling, supra; Pitts v. State, 273 Ark. 220, 527 S.W.2d 849 (1981); Lang v. State, 258 Ark. 504, 527 S.W.2d 900 (1975).

The State argued below that Mr. Gaines was attempting to kill Brenda Davis when he accidentally killed the children. She testified that she sought a protection order because Mr. Gaines had threatened to kill her and had beaten her. In Starling v. State, supra, we upheld the admission of testimony that the defendant had previously used physical force against the victim, and had recently threatened to kill her. We held that such evidence “clearly tended to show appellant’s motive, intent or plan to kill his wife.” Id. Likewise, Ms. Davis’s testimony in this case about earlier threats and beatings by Mr. Gaines was certainly probative of his motive, intent, or plan to harm her. This evidence was admissible regardless of whether she had sought or obtained a protection order. Evidence of the order itself was merely cumulative because the protection order was based upon admissible evidence of prior threats and beatings. With regard to Mr. Gaines’s complaint that the protection order was issued in an ex parte proceeding, we note that he failed to request a curative instruction that would have explained the difference between ex parte and adversarial proceedings. Under these circumstances, we conclude that the admission of an ex parte order of protection was not an abuse of the trial court’s discretion.

IV Prior Consistent Statement By Cornelius Franklin

Mr. Gaines next argues that the trial court abused its discretion in allowing Essie Franklin to testify about statements made to her by her son, Cornelius Franklin. Specifically, he contends that such testimony was inadmissible hearsay.

Arkansas Rule of Evidence 801(d) provides in relevant part that:

(d) A statement is not hearsay if:

(1) Prior Statement By Witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is . . .
(ii) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive.

When there is an express or implied charge that a witness has fabricated a statement that he is now making under oath, it is then proper, and not hearsay, to show that he made the same statement before the motive for fabrication came into existence. Henderson v. State, 311 Ark. 398, 844 S.W.2d 360 (1993).

The defense cross-examined Cornelius Franklin extensively about a possible deal with the prosecution in return for his testimony concerning Mr. Gaines’s actions on June 22, 1996. In its effort to establish that Mr. Franklin’s testimony was motivated by a deal, or his desire for a deal, with the prosecution, the defense also called Mr. Franklin’s attorney, Tom Montgomery, to testify as a witness. Both Mr. Franklin and his attorney denied that he had been promised anything in return for his testimony. Mr. Gaines was clearly challenging Mr. Franklin’s testimony as being recently fabricated or improperly influenced or motivated by desires for a deal with the prosecution. On direct examination by the State, Ms. Franklin testified that her son made the following statement to her before he ever spoke to the police officers: “He told me that Andra had sent him to get some gas. He went, got the gas, brought it back to him; and he left.” Mr. Franklin’s statement to his mother was consistent with his testimony at trial and was made before he had contact with the police or the prosecutors. It was admissible under Rule 801 (d)(1)(h) to rebut the implied charges of recent fabrication or improper influence or motive. We cannot say that the trial court abused its discretion in allowing this testimony by Ms. Franklin.

V. Denial of Mistrial

Mr. Gaines also challenges the trial court’s failure to grant a mistrial on grounds that Ms. Franklin blurted out that her son, Cornelius, told her shortly after the fire that Mr. Gaines started it. Mr. Gaines contends that this was inadmissible hearsay.

A mistrial is a drastic remedy and should be declared only when there has been an error so prejudicial that justice cannot be served by continuing the trial, or when the fundamental fairness of the trial itself has been manifestly affected. Ward v. State, 338 Ark. 619, 1 S.W.3d 1 (1999); McFarland v State, 337 Ark. 386, 989 S.W.2d 899 (1999); Barr v. State, 336 Ark. 220, 984 S.W.2d 792 cert. denied, 120 S.Ct. 334 (1999). The trial court has wide discretion in granting or denying a motion for a mistrial, and absent an abuse of that discretion, the trial court’s decision will not be disturbed on appeal. Ward, supra.

The damaging testimony that prompted a motion for mistrial was Ms. Franklin’s statement that her son Cornelius told her “Andra had killed Linda Green’s kids.” Cornelius Franklin had previously testified, without objection, that he told his mother that “Andra had killed some kids.” We have repeatedly held that prejudice is not presumed and we will not reverse the trial court’s ruling absent a showing of prejudice. Windsor v. State, 338 Ark. 649, 1 S.W.3d 20 (1999); Clark v. State, 323 Ark. 211, 913 S.W.2d 297 (1996). No prejudice results where the evidence erroneously admitted was merely cumulative, and we do not reverse for harmless error in the admission of evidence. See Thompson v. Perkins, 322 Ark. 720, 911 S.W.2d 582 (1995). Even if this testimony by Ms. Franklin was erroneously admitted, no prejudice resulted as it was merely cumulative evidence. Accordingly, we affirm the trial court on this point.

VI. Testimony by Evelyn Simms

In his sixth point on appeal, Mr. Gaines asserts that the trial court erred in allowing Evelyn Simms to testify about statements made by Mr. Gaines the day after the fire. He contends that her testimony was not relevant, did not amount to an admission against interest, and was unfairly prejudicial.

The State suggests that Mr. Gaines abandoned any objection to Ms. Simms’s testimony, with the exception of her testimony about Mr. Gaines being possessive, when his attorney made the following remark at trial:

DEFENSE COUNSEL: I don’t mean that her whole testimony should be precluded. I think either reference to the statements that he was possessive which caused their breakup is the specific portions of her testimony that we object to.

The State nonetheless acknowledges that Mr. Gaines never specifically disavowed any portion of his motion to exclude Ms. Simms’s testimony. Based on this record, we cannot say that Mr. Gaines abandoned any portion of his arguments on the admissibility of Ms. Simms’s testimony.

As previously stated, Ms. Simms testified that Mr. Gaines checked into the motel where she worked and asked her for a telephone book to locate the number for the bus station. During this conversation, he also told her that “he had did [sir] something that he knew he was going to have to pay for.” When she asked him if it had anything to do with the children who died in the fire, he repeated the following statement several times: “I’ve made a mistake and I know I’ve got to pay for it.” Mr. Gaines now claims that he never specifically told Ms. Simms that his “mistake” had something to do with the fire, and that he could have been referring to some other mistake. Such a claim concerning how a defendant’s statement should be interpreted does not go to the admissibility of the statement, but only to its weight, which lies within the province of the jury. See Webb v. State, 327 Ark. 51, 938 S.W.2d 806 (1997); Slocum v. State, 325 Ark. 38, 924 S.W.2d 237 (1996). A party’s own statement that is offered against him is clearly admissible under Ark. R. Evid. 801(d)(2). In considering the evidence as a whole, the jury could have reasonably inferred that Mr. Gaines was referring to the fire and the deaths of the unintended victims when he made the statements to Ms. Simms only hours after the fire. We conclude that the trial court did not abuse its discretion in allowing Ms. Simms’s testimony.

VII. Cumulative Error

Mr. Gaines’s final point on appeal is an assertion that his conviction should be reversed on the basis of cumulative error. We have considered all assertions of error and concluded that no reversible error occurred in Mr. Gaines’s trial. This court does not recognize the cumulative error doctrine when there is no error to accumulate. Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995).

VIII. Arkansas Supreme Court Rule 4-3 (h)

The transcript of the record in this case has been reviewed in accordance with our Rule 4-3 (h) which requires, in cases in which there is a sentence to life imprisonment or death, that we review all prejudicial errors in accordance with Ark. Code Ann. § 16-91-113(a). None have been found.

Affirmed.


source: Caselaw Access Project

author: ANNABELLE Clinton Imber, Justice. ROBERT L. Brown, Justice,

license: Public Domain

text:
    Henry Jackson SMITH v. STATE of Arkansas
    CR 99-913
    8 S.W.3d 534
    Supreme Court of Arkansas
    Opinion delivered January 20, 2000

      William R. Simpson, Jr., Public Defender, by: Kent C. Krause, Deputy Public Defender, for appellant.

      Mark Pryor, Att’y Gen., by: David R. Raupp, Ass’t Att’y Gen., for appellee.
   ANNABELLE Clinton Imber, Justice.

The appellant, Henry Jackson Smith, was charged with two counts of rape for engaging in sexual intercourse or deviate sexual activity with his son, J.F., and his daughter, T.F., in violation of Ark. Code Ann. § 5-14-103 (Repl. 1997). Both of the victims were under the age of fourteen at the time they were alleged to have been raped by Mr. Smith. After a bench trial, the Pulaski County Circuit Court convicted Mr. Smith on both counts and sentenced him to two concurrent life terms in the Arkansas Department of Correction.

Both victims testified at the bench trial. J.F., age eleven at the time of the trial, testified that Mr. Smith held a gun to his head and then “sticked [sic] his private part into [J.F.’s] behind.” According to J.F., Mr. Smith threatened to kill him, his sister, and his mother if J.F. told anyone about the incident. J.F. also testified that Mr. Smith forced him to “suck his private” about two times a day since he was five or six years old. Furthermore, J.F. testified to an incident in which he saw Mr. Smith, with his pants pulled down, laying on top of his sister, T.F., whose pants were also pulled down. T.F., age ten at the time of the trial, testified that Mr. Smith engaged in sexual intercourse with her “every Saturday or Sunday when mama worked.” She further testified that Mr. Smith put a gun to her head and threatened to kill her, her brother, and her mother if she told her mother about the sexual activity. At the conclusion of her direct examination, T.F. identified Mr. Smith as the person who had raped and sexually abused her.

The State also introduced a taped statement that had been given by Mr. Smith prior to trial. In that statement, he confessed to rubbing T.F.’s clitoris with his index finger and laying on top of her and “hunching her on the stomach,” while they were both naked and he wore a rubber on his penis. He maintained, however, that his penis never touched or penetrated her vagina. Mr. Smith also denied having anal sex with J.F., but acknowledged that he showed J.F. how to masturbate by touching J.F.’s penis and having J.F. touch his penis.

Mr. Smith took the stand in his own defense at the trial and denied sexually penetrating either of his children. He admitted, however, that he had oral sex with T.F., that he had rubbed her vagina with his fingers, and that he had laid on top of her with his penis on her stomach while both were naked and “hunched” on her stomach. Moreover, he admitted showing J.F. how to masturbate. On cross-examination by the State, he denied holding a gun to the children’s heads, but acknowledged that he told T.F. not to tell her mother about the sexual activity. Finally, he admitted using a rubber when he was on top of T.F. “so it wouldn’t make a mess.”

Denise Maples, a psychotherapist and counselor, testified that both children suffered from post-traumatic stress disorder and that both had regressed in developmental achievement as a result of being abused. She also testified that T.F. had become enuretic and was forced to take medication for the condition. With regard to J.F., Ms. Maples testified that he was extremely traumatized by the abuse, had repeated nightmares, and had developed an extreme fear of other men who entered his home. J.F. also had to take medication for his condition. According to Ms. Maples, J.F. tended to disassociate at times when he would become traumatized and think about his past abuse. Kay Lynn Franklin, the children’s mother, testified that T.F. tried to climb out of a two-story window as a result of the abuse, and J.F. hid in a closet because he was afraid someone was going to hurt him.

At the beginning of the bench trial, the following colloquy took place between the prosecutor, the defense counsel, and the trial court:

PROSECUTOR: Your Honor, I have one question that I would like — or I guess motion that I would like to ask. The children in this particular case have been traumatized somewhat, and we believe that the presence of the defendant is going to have some problem with them being able to testify. I would ask to simply be able to have them testify with the chair facing outside his line of sight.
The Court: Sure.
PROSECUTOR: In other words, have the chair facing over there.
The Court: I don’t mind that, as long as he’s here and the attorneys and everybody can observe the child. Sure, I don’t have any problem with that.
Defense Counsel: Your Honor, I just would like to object just for Mr. Smith’s benefit, that he should be able to confront them face-to-face.
The Court: I don’t think confronting means sitting face-to-face with them. Confronting them, being they’re in the courtroom, hearing the testimony and seeing them and so forth. That’s what confronting means; not being able to stare them in the face. They’ll be here in the courtroom where he can see them and see them testify. They don’t have to look at him, and there’s nothing wrong in turning the chair over there so they don’t have to look at him.

Mr. Smith now appeals his rape convictions and alleges that the trial court erred in denying him his right to confront J.F. and T.F. face-to-face during the trial without first making specific findings that such an abridgment of the Confrontation Clause in the Sixth Amendment to the United States Constitution and the Arkansas Constitution was necessary to further an important public policy, and that the procedures to determine the reliability of the children’s testimony were still preserved and available.

The Confrontation Clause in the Sixth Amendment to the United States Constitution states: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him. ...” Article 2, section 10, of the Arkansas Constitution repeats that same right of confrontation. We have consistently interpreted both clauses to provide identical rights:

The [S]ixth [A]mendment to the United States Constitution and Art. 2, 10 of the Arkansas Constitution guarantee the right of an accused in a criminal prosecution to be confronted with the witnesses against him. The right of confrontation provides two types of protection for a criminal defendant: the right physically to face those who testify against him and the opportunity to conduct effective cross-examination.

Bowden v. State, 301 Ark. 303, 783 S.W.2d 842 (1990). See also, Winfrey v. State, 293 Ark. 342, 738 S.W.2d 391 (1987); Miller v. State, 269 Ark. 409, 601 S.W.2d 845 (1980). The United States Supreme Court held in Coy v. Iowa, 487 U.S. 1012 (1988), that “the Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact.” Two years later, the Court held that the Confrontation Clause does not guarantee criminal defendants an absolute right to a face-to-face meeting with witnesses against them at trial. Maryland v. Craig, 497 U.S. 836 (1990). The Court further held that the right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation at trial only where the trial court makes a case-specific finding that the denial of such confrontation is necessary to further an important public policy, such as protecting a child witness from trauma, and only where the reliability of the testimony is otherwise assured. Id. Mr. Smith, in his only point on appeal, argues that the trial court erred when if failed to make the findings required by Maryland v. Craig.

The two-part test established in Maryland v. Craig applies only when a criminal defendant has been deprived of his constitutional right to a face-to-face confrontation with the witnesses against him. Id. Consequently, as a threshold matter, we must first decide whether Mr. Smith has been deprived of his constitutional right to a face-to-face confrontation with his accusers.

In Coy v. Iowa, the Court held that the defendants constitutional right to confront the witnesses against him face-to-face was violated when a screen that was authorized by a state statute was placed between the defendant and the witnesses during their testimony. When the screen was in place, the defendant could “dimly perceive” the witnesses, but the witnesses could not see the defendant at all:

The screen at issue was specifically designed to enable the complaining witnesses to avoid viewing [the defendant] as they gave their testimony, and the record indicates that it was successful in this objective. It is difficult to imagine a more obvious or damaging violation of the defendant’s right to a face-to-face encounter.

Coy v. Iowa, supra.

The undisputed facts in this case are that the trial court allowed the child witnesses to testify while sitting in a witness chair that faced “outside of [Mr. Smith’s] line of sight.” The trial court noted that the witnesses did not have to look at Mr. Smith, but that they would be in the courtroom where Mr. Smith, the attorneys, and the trier of fact could see and hear them testify. Although the witness chair was positioned so that the witnesses did not have to look at Mr. Smith while they testified, the record reflects that they were not precluded from doing so. This is evidenced by the undisputed fact that T.F. identified Mr. Smith during her testimony as the person who raped her. During her direct examination, the prosecutor asked T.F. if she could “point at him and tell us if you see the person in here that did this to you? Could you point at him for us?” The record then indicates that T.F. “[p]ointed at defendant.” The witnesses in this case were therefore not physically prevented from looking at Mr. Smith. In contrast, the witnesses were physically blocked from seeing the defendant by a one-way screen in Coy v. Iowa, and by a one-way closed-circuit television in Maryland v. Craig. Here, the witnesses were able to look at Mr. Smith if they chose to do so, as shown by T.F.’s in-court identification of Mr. Smith. Nor were they required by the Confrontation Clause to look at Mr. Smith: “The Confrontation Clause does not, of course, compel the witness to fix his eyes upon the defendant; he may studiously look elsewhere, but the trier of fact will draw its own conclusions.” Coy v. Iowa, supra. (Emphasis added.)

Based on the undisputed facts in this case, we conclude that nothing prevented the witnesses from hearing or seeing Mr. Smith and nothing prevented Mr. Smith, the attorneys, and the trier of fact from hearing or seeing the witnesses as they testified against him. We therefore hold that Mr. Smith has failed to establish as an initial matter that there has been a deprivation of his constitutional right to a face-to-face confrontation with the witnesses against him.

Our holding is supported by cases from other jurisdictions. For example, in People v. Sharp, 36 Cal. Rptr. 2d 117 (Cal. Ct. App. 1994), the California Court of Appeals held that the defendant was not deprived of his constitutional right to confront witnesses when the prosecutor positioned herself in the courtroom so that the child victim, Tammy G., did not have to look at the defendant while testifying about his acts of sexual molestation.

Similarly, in State v. Utah, 806 P.2d 204 (Utah Ct. App. 1991), the defendant claimed that his constitutional right of confrontation was denied when his daughter, the victim, was seated out of his direct line of sight during her testimony. The defendant and his counsel were seated at the table customarily assigned to the prosecution, in order to remove the witness from the defendant’s direct line of sight. Id. The Utah Court of Appeals rejected the defendant’s claim that his confrontation rights were denied based upon the following conclusion: “We find no constitutional requirement that an accused be able to establish eye contact with a witness who is looking straight ahead.” Id. Finally, the Indiana Court of Appeals held that there was no Confrontation Clause violation in placing the witness chair at a slight angle toward the jury and away from the accused. Stanger v. State, 545 N.E.2d 1105, 1112-14 (Ind. App. 1989), overruled on other grounds, Smith v. State, 689 N.E.2d 1238 (Ind. 1997). The court stated:

Where, as here, the method of eliciting testimony permits jury, witness, and defendant all to see and hear each other and possesses the added virtue of actually facilitating the truthfinding function at the trial, positioning the witness away from the defendant is but a reasonable limitation on the defendant’s interest in physical confrontation. As the Court noted with respect to cross-examination, confrontation does not mean in whatever way and to whatever extent a defendant might wish.

Id. (citations omitted). See also, Brandon v. State, 839 P.2d 400 (Alaska Ct. App. 1992) (defendant’s right to confrontation not infringed by child testifying from small chair and table in courtroom rather than witness stand).

For his only point on appeal, Mr. Smith argues that the trial court erred when it failed to make the specific findings required by Maryland v. Craig. That argument, however, makes an assumption that Mr. Smith has been deprived of his constitutional right to a face-to-face confrontation at trial. In light of our holding that Mr. Smith has failed to establish as an initial matter the presence of such a constitutional deprivation, we need not reach the merits of his sole argument on appeal.

Affirmed.

BROWN, J., concurs.

ROBERT L. Brown, Justice,

concurring. I do not disagree with the legal reasoning of the majority opinion in any respect. My problem is I do not believe Smith has presented this court with sufficient information to make a merits determination on the Confrontation Clause. What does “outside his [Smith’s] line of sight” mean? How was the courtroom configured with respect to Smith and the child witnesses? Did the child witnesses have their backs to Smith or were they at an angle? None of this is clear from the record presented to this court, and it was Smith’s obligation to make it clear for our review.

I would affirm based on Smith’s failure to present this court with a record of what occurred so that we can make an intelligent decision. See Tarry v. State, 289 Ark. 193, 710 S.W.2d 202 (1986). Without that record, we can only speculate about how Smith and the child witnesses were positioned and whether the Confrontation Clause was implicated in any respect.