author: David Newbern, Justice.

text:
    Jerome HERNANDEZ v. STATE of Arkansas
    CR 97-1191
    962 S.W.2d 756
    Supreme Court of Arkansas
    Opinion delivered February 5, 1998

      William R. Simpson, Jr., Public Defender, by: Deborah R. Sailings, Deputy Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: Kelly S. Terry, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

Appellant Jerome Hernandez was convicted of raping his stepdaughter. He was sentenced to life imprisonment. He argues that the Trial Court erred in admitting evidence of a subsequent act of sexual misconduct with a child other than the victim of the alleged rape. We hold that the evidence was properly admitted pursuant to Ark. R. Evid. 404(b) and the pedophile exception recognized by this Court.

The victim testified to these facts. She was approximately two years old when her mother married Mr. Hernandez. When she was six years old and the family was living in Louisiana, Mr. Hernandez took her behind a candy store and told her that he would give her a piece of candy if she did what he told her to do. She agreed. Mr. Hernandez then kissed her and inserted his fingers into her vagina. He removed her pants and his, and then they had “intercourse.” She was afraid and in pain, and she did not tell anyone about the incident.

Around 1986, when she was nine years old, the victim and her family moved to Little Rock. Mr. Hernandez decided she would have a bedroom separate from the sleeping quarters of the other members of the family. He came into her bedroom about midnight approximately every other night. He would undo her pants, place his fingers in her vagina, and kiss her vagina and lips. Mr. Hernandez told her not to say anything about the abuse. She did not tell anyone about the abuse because she was afraid that Mr. Hernandez would hurt her, her mother, or someone else in the home if she did.

The family moved to North Little Rock when she was approximately twelve years old. Again, Mr. Hernandez decided that her bedroom would be separate from the bedrooms of the other family members. Mr. Hernandez came into her bedroom, got on his knees on the side of her bed, took her underwear off, put his fingers into her vagina, and kissed her. Mr. Hernandez did not abuse her as often as he did when she was younger. He came into her bedroom to abuse her two or three times a week compared to every other night as he had done earlier.

Shortly thereafter, while she was still twelve years old, the family moved to another house in North Little Rock. Again, Mr. Hernandez decided that her bedroom would be apart from the other family members’ bedrooms. At this location, Mr. Hernandez sexually abused her on a few occasions, but it ended after she began pushing him away and after she had informed her mother about his conduct. Mr. Hernandez told the victim that he enjoyed what he did to her because little girls had smaller vaginas than older women. Mr. Hernandez offered her money to have sex with him, but she refused.

The other witness for the State testified that she was sexually abused by Mr. Hernandez when she was six years old. Prior to trial, Mr. Hernandez argued that the testimony was not admissible pursuant to Ark. R. Evid. 404(b) and 403. The Trial Court, noting the pedophile exception, admitted the testimony upon finding that the witness’s testimony was relevant and that it survived a Rule 403 analysis.

The witness testified to these facts. She was eleven years old at the time of trial. She had known the victim in this case for five or six years. Their brothers were friends, and she knew the victim’s family and went to their house frequently as they lived in the same neighborhood. She was allowed to spend the night at the Hernandez home. On an evening in 1992, Mr. Hernandez asked her to carry some beer cans for him. He went with her to the garage and shut the door behind him. Mr. Hernandez then put his hand under her bathing suit in front of her vaginal area. On another occasion when she was spending the night at the Hernandez home, she was sleeping on the couch while the victim and her mother were running an errand. She woke up when Mr. Hernandez began touching her with his hand in her “privacy” under her clothes. He showed her a dollar and asked her if she wanted it. She took the money because she thought it was a gift. When he began to “get onto” her, she realized that the money was in exchange for sexual favors, and so she gave it back to him.

Arkansas R. Evid. 404(b) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may however, be admissible for other purposes, such as proof of notice, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

The admission or rejection of evidence under Rule 404(b) is left to the sound discretion of the trial court and will not be disturbed absent a manifest abuse of discretion. Munson v. State, 331 Ark. 41, 959 S.W.2d 391 (1998); Jarrett v. State, 310 Ark. 358, 833 S.W.2d 779 (1992). The list of exceptions set out in the Rule is exemplary and not exhaustive. Mosley v. State, 325 Ark. 469, 929 S.W.2d 693 (1996); White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986). Testimony is admissible pursuant to Rule 404(b) if it is independently relevant to the main issue — relevant in the sense of tending to prove some material point rather than merely to prove that the defendant is a criminal or a bad person. Mosley v. State, supra; Morgan v. State, 308 Ark. 627, 826 S.W.2d 271 (1992). In recognizing the pedophile exception to Rule 404(b), we have approved

allowing evidence of similar acts with the same or other children in the same household when it is helpful in showing a proclivity for a specific act with a person or class of persons with whom the defendant has an intimate relationship.

Mosley v. State, 325 Ark. at 473, 929 S.W.2d at 696, citing Free v. State, 293 Ark. 65, 732 S.W.2d 452 (1987). See Clark v. State, 323 Ark. 211, 913 S.W.2d 297 (1996); Greenlee v. State, 318 Ark. 191, 884 S.W.2d 947 (1994). The rationale for recognizing the exception is that such evidence helps to prove the depraved sexual instinct of the accused. Id.

1. Time interval

Mr. Hernandez raises several arguments to support his position that the witness’s testimony should not have been admitted despite the pedophile exception. First, he argues that the testimony should not have been admitted because the abuses of the two girls occurred some two years apart. Mr. Hernandez’s abuse of the victim ended in 1990 when she was twelve, and the witness testified that she was abused by Mr. Hernandez in 1992.

Since the adoption of Rule 404(b), we have recognized time as a factor in determining the probativeness of evidence of a prior crime. Larimore v. State, 317 Ark. 111, 877 S.W.2d 570 (1994). In several cases involving the pedophile exception, we have admitted evidence of another crime which occurred over a year prior or subsequent to the crime with which the appellant was charged. In Douthitt v. State, 326 Ark. 794, 935 S.W.2d 241 (1996), we upheld a refusal to sever three rape counts from other counts involving incest and first-degree violation of a minor against the appellant when the rape counts were alleged to have occurred from 1989 through 1991 and the other sixty counts were alleged to have occurred in 1993 through March 1994. The appellant argued that the “break” in time reflected that the rape charges were not a part of a single scheme or plan and that the trials therefore should have been severed. We, referring to the pedophile exception, held that the Trial Court did not abuse its discretion in denying severance because the same evidence was admissible against the appellant in each count of sexual abuse.

In Mosley v. State, supra, a case involving a charge of rape of the appellant’s stepdaughter and incest that began when she was fifteen, we held that the Trial Court properly admitted proof that the appellant, eleven years earlier, had pleaded guilty to the crime of carnal abuse of his six-year-old stepdaughter. Referring to the pedophile exception, we noted that the Trial Court considered both the similarity of the prior conviction to the current charges of rape and incest and the stepparental relationship of the appellant with both of the victims and that the Trial Court correctly applied Rule 404(b). Recently, in Munson v. State, supra, we held it was proper to admit a witness’s testimony of sexual abuse that occurred two and a half years prior to the abuse of the victim in the case in view of the similarity of the acts of abuse with each victim.

The passage of two years between the time of the abuse of the victim and the abuse of the witness in this instance is not a sufficient basis for us to hold that there was an abuse of the Trial Court’s discretion in admitting the witness’s testimony.

2. Similarity of acts

Second, Mr. Hernandez argues that the abuse of the victim in this case and the witness’s allegations of abuse are not sufficiently similar to be probative because the victim testified that the abuse involved digital penetration and intercourse whereas the witness only testified that Mr. Hernandez touched her “privacy.” To the contrary, the pedophile exception seems especially applicable in view of the evidence that Mr. Hernandez was attracted to the physical characteristics of young girls and the evidence that Mr. Hernandez attempted to offer both the victim and the witness gifts in exchange for sexual favors. Additionally, the victim testified that Mr. Hernandez began abusing her when she was six years old, and the witness testified that she was abused by Mr. Hernandez when she was the same age. See Fry v. State, 309 Ark. 316, 829 S.W.2d 415 (1992) (affirming the Trial Court’s decision to admit a witness’s testimony of sexual abuse to show a pattern of behavior by the appellant and noting that the abuse began when both the two victims and the witness were approximately nine years old and progressed from fondling to intercourse). The abuse of the victim and the allegations of the witness are sufficiently similar to show Mr. Hernandez’s proclivity toward sexual abuse of young girls.

3. Intimate relationship

Third, Mr. Hernandez argues that the pedophile exception does not apply to the witness’s testimony because, while the victim in the case was Mr. Hernandez’s stepdaughter, there was not an intimate relationship between Mr. Hernandez and the witness. See Mosley v. State, supra (stating “we approved allowing evidence of similar acts with the same or other children in the same household when it is helpful in showing a proclivity for a specific act with a person or class of persons with whom the defendant has an intimate relationship”)(emphasis added). We have not considered what constitutes an intimate relationship for purposes of the pedophile exception. We have, however, not required that the victim or witness permanently live in the same household or be related to the accused. See Munson v. State, supra (holding the Trial Court properly admitted testimony of prior abuse when the victim was visiting the accused and her sister for a week when the abuse occurred). See also Greenlee v. State, supra (holding the Trial Court properly admitted the appellant’s prior convictions for sexual offenses against children who were entrusted to the appellant for babysitting when the victim in the case was also entrusted to the appellant for babysitting care); George v. State, 306 Ark. 360, 813 S.W.2d 792 (1991) (holding the Trial Court properly admitted the appellant’s prior conviction for first degree sexual abuse of an unidentified child when the victim in the case was entrusted to the appellant for babysitting care). “Intimate” is defined as “close in friendship or acquaintance, familiar, near, confidential.” Black’s Law Dictionary 821 (6th ed. 1990). The witness’s relationship with Mr. Hernandez was sufficiently intimate to meet the requirement of the pedophile exception. The witness testified that she knew the Hernandez family and was allowed to spend the night at the home. She also testified that, at the time she was abused by Mr. Hernandez, she was spending the night at the Hernandez home.

4. Order of events

Fourth, Mr. Hernandez argues that the witness’s testimony should not have been admitted pursuant to the pedophile exception because the testimony describes conduct that occurred subsequent to the offense for which Mr. Hernandez is charged and because the described conduct was not part of a continuing course of conduct perpetrated against the victim in this case. We have upheld the admissibility of sexual misconduct occurring subsequent to the charged conduct. See Douthitt v. State, 326 Ark. 794, 935 S.W.2d 241 (1996) (affirming the Trial Court’s decision not to sever three counts of rape alleged to have occurred from 1989 through 1991 from the counts involving incest and first-degree violation of a minor alleged to have occurred in 1993 through March 1994 because the same evidence was admissible against the appellant in each count of sexual abuse). We have also admitted evidence of subsequent conduct in other cases to prove identity, intent, lack of mistake, and the circumstances connected with the crime. See Bragg v. State, 328 Ark. 613, 946 S.W.2d 654 (1997) (identity and intent or lack of absence or mistake); Collins v. State, 304 Ark. 587, 804 S.W.2d 680 (1991)(circumstances connected with the crime); Parker v. State, 300 Ark. 360, 779 S.W.2d 156 (1989)(intent and circumstances surrounding the crime); Thrash v. State, 291 Ark. 575, 726 S.W.2d 283 (1987)(modus operandi).

Mr. Hernandez cites United States v. Back, 588 F.2d 1283 (9th Cir. 1979) (holding the district court erred in admitting a witness’s testimony of a subsequent rape not because it occurred after the rape for which the appellant was charged but because it was introduced only to prove the criminal disposition of the appellant), and Warren v. State, 59 Ark. App. 155, 954 S.W.2d 298 (1997) (holding the Trial Court improperly admitted additional drug-related evidence seized in a search six months after the appellant was stopped for a traffic violation and arrested for possession of cocaine partially because the limited case law holding subsequent acts admissible under Rule 404(b) was factually distinguishable from the present case).

The pedophile exception allows testimony to show that the perpetrator has a “proclivity” for the sexual abuse of children. Whether the witness testifies that he or she was abused before or after the conduct for which the defendant is charged, the testimony can show that the perpetrator has such a “proclivity.” Unlike the cases cited by Mr. Hernandez, we are not concerned here about a continuing course of conduct or a general criminal proclivity. The basis of the pedophile exception to Rule 404(b) is our acceptance of the notion that evidence of sexual acts with children may be shown as that evidence demonstrates a particular proclivity or instinct.

4. Limits on the evidence; Rule 403

In support of his argument that there must be some “parameters” for the admission of evidence pursuant to the pedophile exception, Mr. Hernandez cites State v. Bird, 854 S.W.2d 807, 809 (Mo. App. W.D. 1993), in which a Missouri Court of Appeals recognized that the Supreme Court of Missouri had recently rejected a version of the pedophile exception because such “a blanket rule . . . may encourage the jury to convict the defendant because of his propensity to commit such crimes without regard to whether he is actually guilty of the crime charged.” Mr. Hernandez also notes that at least one court has recognized that evidence that a defendant committed an illegal sex act against a child is extremely prejudicial. See State v. Montoya, 860 P.2d 202 (N.M. App. 1993).

Arkansas R. Evid. 403 provides the necessary “parameters.” In response to an objection that evidence is unfairly prejudicial, the probative value of the evidence must be weighed against the danger of unfair prejudice. George v. State, 306 Ark. 360, 813 S.W.2d 792 (1991). The standard of review is whether the trial court abused its discretion. Greene v. State, 317 Ark. 350, 878 S.W.2d 350 (1994).

The Trial Court did not err in concluding that the probative value of the evidence outweighed the danger of unfair prejudice in this case because the evidence involves a similar crime against a child of an age similar to that of the victim. Both were in Mr. Hernandez’s care or household at the time that the incidents occurred. See Munson v. State, supra.

5. Rule 4-3(h)

In accordance with Ark. Sup. Ct. R. 4-3(h), the record has been reviewed for erroneous ruhngs prejudicial to Mr. Hernandez, and none has been found.

Affirmed.


source: Caselaw Access Project

author: Donald L. Corbin, Justice.

license: Public Domain

text:
    Darrel Wayne HILL v. STATE of Arkansas
    CR 96-33
    962 S.W.2d 762
    Supreme Court of Arkansas
    Opinion delivered February 5, 1998
    [Petition for rehearing denied March 12, 1998.]

      Montgomery, Adams & Wyatt, PLLC, by: Dale E. Adams, for appellant.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant, Darrel Wayne Hill, appeals the judgment of the Montgomery County Circuit Court resentencing him for one count of capital murder and one count of attempted capital murder. Appellant was tried by a jury and received the death penalty for the 1980 shooting of Donald Teague and E.L. Ward. This court affirmed. Hill v. State, 275 Ark. 71, 628 S.W.2d 284 (1982). This court later affirmed the denial of postconviction relief pursuant to Arkansas Rules of Criminal Procedure Rule 37. Hill v. State, 278 Ark. 194, 644 S.W.2d 282 (1983). Appellant filed a petition for habeas corpus in federal court, where relief was granted in 1993. Hill v. Lockhart, 824 F. Supp. 1327 (E.D. Ark. 1993). The State appealed to the Eighth Circuit Court of Appeals, which affirmed. Hill v. Lockhart, 28 F.3d 832 (8th Cir. 1994). Appellant was granted a resentencing hearing, where after the jury found four aggravating circumstances, and no mitigating circumstances, the jury again sentenced him to death. Jurisdiction is properly in this court pursuant to Ark. Sup. Ct. R. 1-2(a)(2). Appellant asserts six points for reversal. We affirm.

I. Mitigating Circumstances

Appellant’s first assignment of error in the penalty phase is a challenge to the jury’s failure to find any mitigating circumstances. The record reflects that the jury was required to consider three forms when deciding upon the aggravating and mitigating factors before reaching a verdict. The first form dealt with aggravating circumstances. The four-part second form dealt with mitigating circumstances: Subsection (a) listed the mitigating circumstances to be checked only if the jury unanimously agreed that they existed; subsection (b) was checked if some of the jury believed a circumstance existed, but not all of the jury agreed; subsection (c) was a fist of circumstances of which there was some evidence, but no member of the jury believed the circumstance existed; and subsection (d) was checked only if the jury concluded that there was no evidence of mitigating circumstances. The third form was a conclusions form with three written findings that are required in order to impose the death penalty.

During the resentencing trial, the State called one witness, E.L. Ward, who testified about the incident where he was shot and saw Appellant shoot and kill Donald Teague. Appellant provided several witnesses to testify that he had changed and had become a productive person in prison. Appellant argues that, at a minimum, the jury should have at least found that there was evidence of mitigating circumstances, even if they agreed unanimously that it did not exist. Appellant argues that turning one’s life around in prison is a mitigating circumstance recognized by the United States Supreme Court in Skipper v. South Carolina, 476 U.S. 1 (1986). Relying upon Giles v. State, 261 Ark. 413, 549 S.W.2d 479, cert. denied, 434 U.S. 894 (1977), Appellant contends that the jury was not free to arbitrarily disregard reasonable testimony, where other testimony is supportive, and no questions of credibility are to be resolved. Appellant argues that the jury showed that it did not consider the evidence by checking that part of the form stating that it found no evidence of mitigation.

The State responds by relying on Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996), cert. denied, 117 S. Ct. 1853 (1997), and Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1995), cert. denied, 116 S. Ct. 1861 (1996), to show that there was a credibility issue as a result of the State’s cross-examination, and that the jury did not have to believe Appellant’s witnesses. The State argues that even though Appellant could have changed his life in prison, the jury still could have concluded that this change was not a mitigating factor in his crime. We agree.

This court has previously held that “[a] jury is not required to find a mitigating circumstance just because the defendant puts before the jury some evidence that could serve as the basis for finding the mitigating circumstance.” Bowen, 322 Ark. at 497, 911 S.W.2d at 561 (citing Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987), and Hill v. State, 289 Ark. 387, 713 S.W.2d 233 (1986), cert. denied, 479 U.S. 1101, and cert. denied, 484 U.S. 873 (1987)). This court held further that the jury alone determines what weight to give the evidence, and may reject it or accept all or any part of it the jurors believe to be true. Id. (citing Davasher v. State, 308 Ark. 154, 823 S.W.2d 863, cert. denied, 112 S. Ct. 2948 (1992), and Robertson v. State, 304 Ark. 332, 802 S.W.2d 920 (1991)).

In Echols, 326 Ark. 917, 942-43, 936 S.W.2d 509, 520, this court stated:

[O]ur holdings provide that a jury may generally refuse to believe a defendant’s mitigating evidence, but when there is no question about credibility and, when, in addition, objective proof makes a reasonable conclusion inescapable, the jury cannot arbitrarily disregard that proof and refuse to reach that conclusion. Here the jury was faced with neither indisputable credibility nor objective proof that made a reasonable conclusion inescapable. To the contrary, there was substantial evidence of Echols’s history of prior criminal activity.

In that case, the jury found that the codefendant Jason Baldwin had no significant history of criminal activity, but refused to make the same finding for Echols. This court held that such a finding by the jury indicated that the jury carefully weighed the evidence and determined that Echols should not be credited with this mitigating factor. Here, the fact that after consideration, the jury did not regard Appellant’s change as a mitigating factor was not an error, as the jury was free to believe or disbelieve Appellant’s witness.

Furthermore, assuming arguendo that it was error for the jury to disregard Appellant’s evidence of mitigation, such error would clearly be harmless due to the fact that the jury unanimously found that four aggravating circumstances existed, that they outweighed beyond a reasonable doubt any mitigating circumstances found by any juror to exist, and that the aggravating circumstances justified beyond a reasonable doubt a sentence of death. Jones v. State, 329 Ark. 62, 947 S.W.2d 339 (1997). Relying on the holding in Wainwright v. State, 302 Ark. 371, 790 S.W.2d 420 (1990), cert. denied, 499 U.S. 913 (1991), we held in Jones, that “[b]ecause the jury specifically found that five aggravators outweighed beyond a reasonable doubt any mitigating circumstances found by any juror to exist, we conclude that any inconsistencies by the jury in the completing of subsections (b) and (c) of Form Two were harmless error.” Id. at 72-73, 947 S.W.2d at 344.

Here, the jury found that four aggravating circumstances existed beyond a reasonable doubt: (1) that the defendant previously committed another felony, an element of which was the use or threat of violence to another person or creating a substantial risk of death or serious physical injury to another person; (2) that the defendant knowingly created a great risk of death to a person other than the victim; (3) that the defendant committed the capital murder for the purpose of avoiding or preventing an arrest; and (4) that the defendant committed the capital murder for pecuniary gain. The jury did not, however, find any mitigating factors. This court has previously conducted a harmless-error analysis when the jury has made an error regarding mitigating circumstances although no error was made by the jury regarding aggravating circumstances. Jones, 329 Ark. at 71, 947 S.W.2d at 344. Even if we were to assume that some of the jurors did conclude that the evidence of Appellant’s change constituted a mitigating circumstance, it is clear that the jury unanimously concluded that four aggravating circumstances existed, and that these aggravators outweighed beyond a reasonable doubt any mitigating circumstances found by any juror to exist. Nothing in the forms indicated to the jury that a mitigating circumstance must have been found unanimously before it could be considered in the weighing process. See Pickens v. State, 301 Ark. 244, 783 S.W.2d 341, cert. denied, 497 U.S. 1011 (1990), and cert. denied, 500 U.S. 929 (1991). Additionally, the jury found that the aggravating circumstances justified beyond a reasonable doubt a sentence of death. Moreover, the jury was instructed that, only after it had carefully considered these three statutory findings on the conclusions form, it shall sentence Appellant to death. Each juror signed the verdict form sentencing Appellant to death, and each juror indicated orally that he or she had voted for the death penalty.

II. Double Jeopardy /Collateral Estoppel

Appellant asserts that because the first jury did not find that the aggravating factor of pecuniary gain existed, the State was precluded by double jeopardy and collateral estoppel from seeking the death penalty based on that aggravating factor in the resentencing. Appellant relies on Bullington v. Missouri, 451 U.S. 430 (1981), to support his argument. His reliance is misplaced, however, because the facts present in Bullington are distinguishable from those of the present case.

In Bullington, the Court was faced with the issue of whether a criminal defendant who had been acquitted of the death penalty-under a bifurcated sentencing proceeding and had his conviction reversed on appeal could then be found guilty on retrial and sentenced to death under the same bifurcated sentencing scheme consistent with the double-jeopardy clause of the Fifth and Fourteenth Amendments. The Court noted that Missouri criminal procedure required the state to prove additional facts beyond a reasonable doubt in a separate proceeding in order to justify the sentence, and that because Bullington had been acquitted of the death penalty in such a proceeding in the original trial, he could not again be exposed to a sentence for which he had been acquitted.

Here, Appellant has not had a jury find him innocent of the death penalty. To the contrary, Appellant was sentenced to death during the first trial. See Ford v. Wilson, 327 Ark. 243, 939 S.W.2d 258 (1997). Appellant even concedes that res judicata is not applicable as the State is not precluded from seeking the death penalty again. Nonetheless, Appellant asserts that the doctrine of collateral estoppel is applicable, as this case involves the relitigation of a particular issue.

In Fletcher v. State, 318 Ark. 298, 884 S.W.2d 623 (1994), we acknowledged that the United States Supreme Court had accorded constitutional dimensions to collateral estoppel by incorporating it into the Fifth Amendment bar against double jeopardy. See Ashe v. Swenson, 397 U.S. 436 (1970). Collateral estoppel provides that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. Edwards v. State, 328 Ark. 394, 943 S.W.2d 600 (1997). This court has required proof of the following elements in order to establish collateral estoppel: (1) the issue sought to be precluded must be the same as that involved in the prior litigation; (2) the issue must have been actually litigated; (3) the issue must have been determined by a final and valid judgment; and (4) the determination must have been essential to the judgment. Id.

Here, the determination by the first jury disregarding pecuniary gain was not essential to the judgment for the death penalty. The finding of an aggravating circumstance is not a separate verdict but is a “standard” to guide the jury in its selection of punishment. Poland v. Arizona, 476 U.S. 147 (1986). The failure to find any particular aggravating factor does not preclude the death penalty or “acquit” a defendant. Id. at 156. While the first jury may have rejected the pecuniary gain aggravator, it did not acquit Appellant. Therefore the second jury could consider that factor. We further agree with the State that even if the jury in this case wrongly considered the pecuniary gain aggravator, Appellant is not entitled to a resentencing. Under Ark. Code Ann. § 5-4-603(d) (Repl. 1997), this court conducts a harmless-error review if the jury finds no mitigating factors. This section provides:

(d) On appellate review of a death sentence, if the Arkansas Supreme Court finds that the jury erred in finding the existence of any aggravating circumstance or circumstances for any reason and if the jury found no mitigating circumstances, the Arkansas Supreme Court shall conduct a harmless error review of the defendant’s death sentence. The Arkansas Supreme Court shall conduct this harmless error review by:
(1) Determining that the remaining aggravating circumstance or circumstances exist beyond a reasonable doubt; and
(2) Determining that the remaining aggravating circumstance or circumstances justify a sentence of death beyond a reasonable doubt.

Thus, even if the jury should not have considered the pecuniary gain factor, it found three other aggravating factors existed beyond a reasonable doubt to support its verdict.

III. Cruel and Unusual Punishment

Appellant asserts that it is cruel and unusual punishment to sentence him to death after sitting on death row for over fifteen years, especially when the delay cannot be attributed to him. Recently in Echols, 326 Ark. at 982, 936 S.W.2d at 543, we rejected the defendant’s argument that the death penalty itself was cruel and unusual punishment and stated that both this court and the United States Supreme Court have held that the death penalty is not cruel and unusual punishment. Pulley v. Harris, 465 U.S. 37 (1984); Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772 (1993); Henderson v. State, 311 Ark. 398, 844 S.W.2d 360 (1993).

The United States Supreme Court has held that it is a mandatory safeguard of the Eighth Amendment for the sentencing body to be allowed to consider any mitigating factor that is relevant to the particular offender’s case. California v. Brown, 479 U.S. 538 (1987). In the present case, the defense was allowed during the sentencing phase to introduce any relevant mitigating evidence concerning the character or history of the offender or the circumstances of the offense. Appellant argues that the testimony of his witnesses revealed how he had changed and had a positive effect on the people around him on death row.

Appellant relies on State v. Richmond, 886 P.2d 1329 (Ariz. 1994), for his contention that the length of time waiting to be executed is cruel and unusual because it is equivalent to “torture” and “lingering death” within the meaning of prohibited punishment found in In re Kemmler, 136 U.S. 436 (1890). The Richmond case involved a man who had been on death row for over twenty years. The Supreme Court of Arizona reduced his sentence to life in prison after reweighing the aggravating and mitigating factors in his case. Appellant refers to the cited authority of reviews and books in Richmond as evidence that long-term- confinement on death row causes psychological pain. Richmond, 886 P.2d at 1333.

We find it significant that the testimony presented in this case did not reveal any prejudice or psychological pain that Appellant now implies he suffers as a result of the delay. See Janecka v. State, 937 S.W.2d 456, 475-76 (Tx. Crim. App. 1996), cert. denied, 118 S. Ct. 86 (1997). We agree with the State’s characterization that the very nature of capital litigation in both state and federal courts suggests that delay in resentencing to death is the product of evolving standards of decency which inures to the defendant’s benefit. See White v. Johnson, 79 F.3d 432 (5th Cir. 1996), cert. denied, 117 S. Ct. 275 (1997); McKenzie v. Day, 57 F.3d 1493 (9th Cir.), cert. denied, 514 U.S. 1104 (1995). In sum, we know of no reason why we should now hold that the imposition of the death penalty is cruel and unusual punishment merely because there has been an extended passage of time between the crime and the punishment.

IV. Change of Venue

Appellant argues that the trial court abused its discretion in denying his motion for change of venue. Appellant filed a motion to change the venue in the original case, and the denial was affirmed on appeal. Hill v. State, 275 Ark. 71, 628 S.W.2d 284 (1982); Hill v. Lockhart, 28 F.3d 832. In the resentencing, Appellant was to be resentenced according to Arkansas law. Arkansas Code Annotated § 5-4-616(a)(1) (Repl. 1997) provides that if the appellate court finds error in the sentencing, it may set aside the sentence of death and remand the case to the trial court in the jurisdiction in which the defendant was originally sentenced. Also, this court has not viewed a vacating or voiding of a state conviction for trial error as allowing a defendant freedom from the criminal charge or proper determinations of venue. Ford, 327 Ark. 243, 939 S.W.2d 258. Initiating a retrial places the defendant in the same position as he was in before the trial began. See Ford v. Norris, 67 F.3d 162 (8th Cir. 1995).

In Bell v. State, 324 Ark. 258, 920 S.W.2d 821 (1996), Bell argued that the fact that a number of the veniremen were excused because they could not be impartial was reason to conclude a fair trial could not be obtained. The trial court, however, emphasized that the chief reason why the remaining veniremen were excused from duty was because of their beliefs regarding the death penalty, not pretrial publicity. This court held that voir dire of the jury provides adequate safeguards against pretrial publicity, and there can be no error in the denial of a change of venue if an examination of the jury selection shows that an impartial jury was selected and that each juror stated that he or she could give the defendant a fair trial and follow the instructions of the court.

A motion for a change of venue is not subject to reversal except for an abuse of discretion. Hill, 275 Ark. 71, 628 S.W.2d 284. Here, twelve jurors were seated who indicated they could make an impartial decision based solely on the evidence. We agree with the State that even if the jurors were not qualified to sit, Appellant was not forced to exhaust all of his peremptory challenges to try to secure a fair and impartial jury. Appellant did not demonstrate sufficient prejudice and waived any objection after concurring in the makeup of the jury. There was no error by the trial court in denying the motion for a change of venue.

V. Pretrial Statement

Appellant contends that the failure of the State to provide a statement of its primary witness, E.L. Ward, constitutes reversible error. Pursuant to Ark. Code Ann. § 16-89-115 (1987), the State must furnish a copy of a signed statement or a taped statement made to an agent of the State to the defense after the witness has testified. It is clear that the State provided information received from Ward to Appellant’s former defense counsel for use in the first trial where Ward also testified. Subsequently, the verdict was “supported by overwhelming evidence of guilt.” Hill, 275 Ark. at 79, 628 S.W.2d at 288.

The State was unable to provide this purported statement given by Ward to Appellant for the second time. While Appellant made a motion for mistrial and a motion to strike Ward’s testimony, Appellant did not request a continuance to locate the purported statement, and Appellant did not call any witnesses to dispute Ward’s testimony. Furthermore, counsel for Appellant admitted at the resentencing that he had not had a chance to see or talk to Ward before the hearing. The record reflects that the State provided witnesses’ addresses to Appellant before the hearing.

Under section 5-4-616, all exhibits, admitted evidence, and transcripts of the testimony of the previous trial are admissible in the resentencing. This statute was complied with as the State provided the record of the first trial to the defense. There was no previous statement made by Ward admitted into evidence in the first trial. Appellant argues that there was no record made in the first trial about the purported statement as the trial court did not allow cross-examination of Ward on this subject. The State argued below that the record in the first trial revealed that defense counsel’s cross-examination of Ward, which was objected to and sustained by the trial court, was in regard to the identification of Appellant. There is no question in the resentencing hearing that Appellant was identified as having committed the crimes. The resentencing was for the purpose of establishing the aggravating and mitigating factors and sentencing Appellant accordingly.

If it was error, it was harmless for several reasons. In keeping with Rush v. State, 252 Ark. 814, 481 S.W.2d 696 (1972), the trial court made an inquiry as to the whereabouts of the purported statement. The trial court inquired of the State as to whether any diligent effort had been made to locate the information. The State had complied with section 16-89-115 by providing the purported statement to defense counsel at the first trial. This section does not compel a continuing obligation for the State to produce the documents. Appellant did not request a continuance in order to obtain the information from the former defense counsel. Appellant did not call any witnesses to refute Ward’s testimony. Appellant has not demonstrated any prejudice through any inconsistency of Ward’s testimony, nor has he shown whether the purported statement was a signed written statement or a taped statement made to an agent of the State as required by the definition of “statement” in section 16-89-115 before the State must provide it to defense counsel. The information provided by the State in the first trial could have been a mere oral statement made to police. The State put on the best evidence with the direct testimony of Ward and the purported statement was not found after diligent efforts to locate it. Appellant’s guilt had been established before this hearing and any error was harmless.

VI. Right of Allocution

Appellant argues that the trial court should have granted him the right of allocution before the jury had begun to deliberate on his sentence. We disagree.

Arkansas Code Annotated § 16-90-106(b) (1987) provides that the accused, upon sentencing, shall have an opportunity to show any cause why sentence should not be pronounced. The total failure to afford a convicted defendant the right to state any legal reason why judgment should not be pronounced is reversible error. Neff v. State, 287 Ark. 88, 696 S.W.2d 736 (1985). When raised on direct appeal after a proper objection in the trial court, the statute is satisfied if the court affords the defendant his right of allocution at the time judgment is pronounced. Id. As Appellant was invited to speak during the sentencing proceeding, he suffered no prejudice. Upon a review of the entire sentencing procedure, we are of the view that no prejudicial error as to allocution has been demonstrated.

VII. Rule 4-3(h)

The transcript of the record in this case has been reviewed in accordance with Arkansas Supreme Court Rule 4-3 (h), which requires, in cases in which there is a sentence of life imprisonment or death, that we review all prejudicial errors in accordance with Ark. Code Ann. § 16-91-113(a) (1987). No errors have been found.

Affirmed.


author: Robert L. Brown, Justice.

text:
    Edward Sarbia REGALADO v. STATE of Arkansas
    CR 97-1206
    961 S.W.2d 739
    Supreme Court of Arkansas
    Opinion delivered February 5, 1998

      Baim, Gunti, Mouser, DeSimone & Robinson, by: Greg N. Robinson, for appellant.

      Winston Bryant, Att’y Gen., by: Kelly Terry, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

The appellant, Edward Sarbia Regalado, was convicted of the first-degree murder of his wife, Gloria Regalado, and was sentenced to fife in prison. He raises only one point on appeal — that the trial court erred in allowing evidence of Regalado’s incarceration and escape. We hold that the evidence was admissible and that the prejudice from this testimony did not substantially outweigh its probative value. We affirm.

Prior to March 19, 1995, the date that Gloria Regalado’s body was found, Regalado had been incarcerated in a federal halfway, house in Monroe, Louisiana, called the City of Faith. According to officials at the City of Faith, Regalado signed out at 6:00 a.m. on March 18, 1995, to go to Premiere Plaza, an office budding, where he worked on the maintenance crew. He was due back at 6:30 p.m. The security supervisor explained at trial that Regalado did not return to the halfway house that night.

A case manager at City of Faith testified that Regalado had been placed on restrictive status after a December 31, 1994 visit with his wife, which resulted in a complaint that he assaulted her. The case manager also testified that Regalado received divorce papers from Gloria Regalado in January 1995 and that he was very angry about the increased restrictions on his freedom.

Stephen Nappier testified that on March 18, 1995, Regalado contacted him and asked whether he would take him to Lake Village to celebrate his son’s birthday. Nappier testified that he picked Regalado up at the Premiere Plaza in Monroe that date at about 4:00 p.m. and drove to Lake Village. He testified that he dropped Regalado off at a house he assumed belonged to his wife and children at about 6:30 p.m. Regalado told him that he would not need a ride back.

Eddie Regalado, Jr., who turned sixteen on March 19, 1995, testified that the relationship between his parents was characterized by much screaming and arguing. He testified that when his father arrived home on March 18, 1995, he found Gloria and forced her into a car and drove away. Eddie never saw his mother alive again. Eddie also testified that early in March 1995, he saw his father choking his mother and saying: “I’ll kill you, bitch.”

Chicot County Sheriff Floyd White testified that Gloria Regalado’s body was found on March 19, 1995, south of Lake Village near some railroad tracks. The cause of death was subsequently determined to be a gunshot wound to the head with strangulation and a stab wound to the face being contributing factors. Gloria Regalado had numerous bruises and abrasions on her body. Sheriff White testified that his office had investigated prior incidents between Gloria Regalado and her husband. He testified that in October 1994, he and then Sheriff Sam Smith were approached by Gloria Regalado, who appeared scared and in fear of her life. She told them that if she was to be killed, they should look to her husband as the culprit. Sheriff White also testified that in the course of investigating drug cases, he suspected that Gloria Regalado was involved in the use and sale of drugs. He further opined that Gloria Regalado had been used as a confidential informant by the Drug Task Force on more than one occasion.

Sheriffs Deputy Edward Gilbert testified that after Gloria Regalado’s body was found, a warrant was issued for Edward Regalado’s arrest. Deputy Gilbert entered Regalado’s name and a description of a white 1989 Chrysler New Yorker bearing Louisiana tags into the National Crime Information Center computer (NCIC). He stated that on March 22, 1995, his department was informed that Regalado had been taken into custody by the Mobile County Sheriffs Department in Alabama.

Sheriffs Deputy Alton Neidhardt of the Mobile County, Alabama Sheriffs Department testified that on March 22, 1995, he discovered Regalado sleeping behind the wheel of his car at about 1:00 a.m. He testified that when he approached and asked for identification, he saw a razor blade between Regalado’s legs, which Regalado explained he was going to use to remove a corn from his foot. After Deputy Neidhardt checked with NCIC, he learned that Regalado was wanted for escape in Louisiana and murder in Arkansas.

Don Williams, a longtime friend of Regalado, testified that he received three to five phone calls from him on the night of either March 19 or March 20, 1995. Sounding upset and nervous, Regalado asked Williams to call the Lake Village Police Department to determine whether his family was all right. He also asked Williams to call his sons’ uncle and check on his two boys. Regalado purportedly told Williams that he was not going back to the halfway house and that he was looking for Gloria Regalado’s boyfriend. When Williams asked him about his wife and the fact he was wanted for murder, he responded: “[W]ell, I’ve ended the relationship with Gloria. I’ve ended it.”

Debbie Grisham, a friend of Gloria Regalado, testified that the victim was having an affair with Chris Floriani during the summer of 1994. She testified that during visits from Regalado in October and November 1994, Gloria Regalado told her she felt like a caged animal, and that she witnessed him grab her. When he was asking about Floriani and the victim would not respond, he said: “[Ojne shot and you won’t lie anymore.” She admitted that Gloria Regalado smoked crack cocaine.

The defense presented testimony that Gloria Regalado had bought and used cocaine and that once, two men pulled guns on her during an attempted buy in Lake Village because she owed them money. The theory of the defense was that Gloria Regalado was murdered in connection with her drug trafficking.

Regalado’s sole argument on appeal is that the trial court committed reversible error by allowing the State to present evidence that he was incarcerated at the City of Faith and escaped. The trial court ruled that the evidence was admissible under both Arkansas Rules of Evidence 403 and 404(b). Regalado now contends that this evidence was introduced to place him in an unfavorable light and was unduly prejudicial. Moreover, according to Regalado, evidence of his incarceration was not necessary for the State to prove its case. We disagree.

a. Rule 404(b)

Rule 404(b) of the Arkansas Rules of Evidence provides:

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

Ark. R. Evid. 404(b).

This court has recognized that the list of exceptions to inadmissibility under Rule 404(b) is not an exclusive list but represents examples where such crimes, wrongs, or acts would be relevant and admissible. Lindsey v. State, 319 Ark. 132, 890 S.W.2d 584 (1994) (plurality opinion). In Lindsey, it was explained:

[I]f the introduction of testimony of other crimes, wrongs, or acts is “independently relevant to the main issue — relevant in the sense of tending to prove some material point rather than merely to prove that the defendant is a criminal — then evidence of that conduct may be admissible with a cautionary instruction by the court.” White v. State, 290 Ark. 130, 140, 717 S.W.2d 784, 789 (1986), quoting Alford v. State, 223 Ark. 330, 334, 266 S.W.2d 804, 806 (1954); see also Price v. State, 268 Ark. 535, 597 S.W.2d 598 (1980). Thus, if evidence of another crime, wrong, or act is relevant to show that the offense of which the appellant is accused actually occurred and is not introduced merely to prove bad character, it will not be excluded. Sullivan v. State, 289 Ark. 323, 711 S.W.2d 469 (1986).

Lindsey v. State, 319 Ark. at 138, 890 S.W.2d at 587.

We hold that the evidence of Regalado’s incarceration at the halfway house and escape was probative of his motive, plan, and intent to murder his wife. Cf. Ford v. State, 276 Ark. 98, 633 S.W.2d 3 (1982) (allowing proof of escape as evidence to establish the appellant’s motive to murder a state trooper); State v. Oxford, 791 S.W.2d 396 (Mo. 1990) (allowing evidence of escape to establish motive for murdering two persons and taking their vehicle). Indeed, his escape with only 72 days left to serve appears to have been motivated by the fact that he sought an encounter with his wife, spurred on by jealousy. Thus, it had independent relevance and was not introduced purely to show that Regalado was a criminal. Moreover, Regalado could have asked for an instruction to the jury limiting consideration of this evidence solely to motive, plan, and intent, but he failed to do so. The trial court correctly allowed this evidence under the Rule 404(b) exceptions.

b. Rule 403.

We further affirm the trial court’s ruling under Rule 403 because the evidence about the halfway house and Regalado’s escape was relevant and not unduly prejudicial. Relevant evidence may still be excluded under Rule 403, if its probative value is substantially outweighed by the danger of unfair prejudice. Bragg v. State, 328 Ark. 613, 946 S.W.2d 654 (1997); Lindsey v. State, supra; Larimore v. State, 317 Ark. 111, 877 S.W.2d 570 (1994). A trial court’s decision in this regard will not be reversed absent a manifest abuse of discretion. Id.

In the case at hand, the escape evidence is an essential part of the facts surrounding the murder. In a similar case, when faced with the question of whether the jury should have been informed that the defendant escaped from a Florida prison hours before the victim was found murdered, the Louisiana Court of Appeal stated:

[The defendant’s] escape in Florida occurred approximately ten to eleven hours before he met the victim. The instant offense did not occur in a vacuum. The defendant’s escape led to the commission of this offense and, without this evidence, “the complete story of the crime could not be told.”

State v. McGuire, 577 So.2d 1120, 1123-24 (La. App. 1 Cir. 1991) (citations omitted). The court went on to hold that the Florida escape was admissible because (1) it proved motive and intent, and (2) it was an integral part of the subsequent murder and robbery of the victim. Id.

This court has also held that all of the circumstances connected with a particular crime may be shown at trial, even if those circumstances would constitute a separate crime. See, e.g., Collins v. State, 304 Ark. 587, 804 S.W.2d 680 (1991); Henderson v. State, 284 Ark. 493, 684 S.W.2d 231 (1985). In Henderson, we said: “[S]eparate and isolated crimes or facts may be shown to fully illustrate the circumstances connected with the charge being tried. When acts are intermingled and contemporaneous with one another, they may be proven as a part of the whole criminal scheme.” Henderson, 284 Ark. at 497, 684 S.W.2d at 233 (citations omitted). Though some prejudice may have attached to the fact that Regalado escaped from a halfway house, the probative value of this evidence easily outweighed it. Furthermore, without the evidence of incarceration at the halfway house and the escape, there would have been confusion on the jury’s part and unanswered questions such as why was Regalado separated from his wife and living in Louisiana and why was Louisiana searching for Regalado in addition to Arkansas.

Regalado’s chief argument is that the evidence of his incarceration was not necessary for his conviction in light of other evidence establishing his commission of the crime. This court, though, has held that the State is entitled to prove its case as conclusively as it can. Harris v. State, 265 Ark. 517, 580 S.W.2d 453 (1979). We perceive no manifest abuse of discretion in allowing this evidence at trial.

The record has been reviewed for other reversible error pursuant to Sup. Ct. R. 4-3(h), and none has been found.

Affirmed.


author: Annabelle Clinton Imber, Justice.

text:
    Damond SANFORD v. STATE of Arkansas
    CR 96-908
    962 S.W.2d 335
    Supreme Court of Arkansas
    Opinion delivered February 5, 1998
    [Petition for rehearing denied March 12, 1998.]

      William M. Howard, Jr., for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   Annabelle Clinton Imber, Justice.

A jury convicted Damond Sanford of capital murder, residential burglary, rape, and theft of property and sentenced him to death. On appeal, Sanford raises five arguments for reversal. We affirm.

On January 9, 1995, Ocie Gary received a telephone call from her close friend, Minnie Ward, around 9:30 in the morning. Ward was an eighty-five-year-old woman who lived alone in Eudora. During their conversation, Ward told Gary that she saw a boy walking across the field behind her house and approaching her back door. Ward told Gary that she would call her back after “I see what he going to say this time.” That was the last time anyone ever spoke to Minnie Ward.

Around 8:30 p.m., Ward’s slain body was discovered in the hallway by her back door. She had been shot twice and raped. The glass to the outer storm door had been shattered and there were three bullet holes in the screen. The inner, wooden door was locked and there were no signs of a forced entry. The police retrieved one .38 bullet from the door frame, and two .38 bullets from Ward’s body. Ward’s purse was found on the floor in her kitchen which was near the back door. Ricky Tolliver later testified that his mother typically hung her purse on the bedroom doorknob, and that she did not leave it on the floor.

The next day, January 10, 1995, Earlene McQuay, the defendant’s sister, found a .44 Smith and Wesson handgun hidden in a paper bag on the top shelf of her closet. Ricky Tolliver later identified the gun as belonging to the victim. Tolliver explained that Ward kept the 100-year-old gun with her at all times, and that she even slept with it under her pillow and placed it in the chair beside her while she was awake. During the trial, David Palmer testified that he saw a gun in Sanford’s coat pocket around 4:00 p.m. on the day of the murder.

After finding the gun in her closet, McQuay questioned Sanford, her sixteen-year-old brother, about the murder. Sanford admitted that he killed Ward, and then he threatened to kill McQuay, her boyfriend, and her children if she told anyone about the crime. McQuay later reported this information to the police. During a subsequent search, the police discovered a live .38 round hidden behind Sanford’s headboard.

The following day, January 11, 1995, Sanford agreed to take a lie detector test. After signing a Miranda waiver form, Sanford made the following confession which was handwritten by Officer Howell:

Damond Sanford states that he went over to Minnie Ward’s house around 10:00 or 11:00 and went in to burglarize the house. States that he knocked on the door. She came in. He saw a gun on the dresser. States he brought a gun to the house, a .380. When he made a step into the house, he started shooting. He opened the screen door. She opened the other door. He states that as soon as he walked in he started shooting. He states that he shot approximately three times. She had a gun in her hand and that’s why I started shooting. She had a purse on her dresser. He grabbed the purse and got twenty-five dollars ($25.00) out of the purse. He states that he then ran out the door. He states that he thinks he shot her in the hand. He states that he threw the gun in the pond by his house after he left her house. He then went to his friend’s and they went to Greenville. I am making this statement without any threats, rewards, or promises.

Officer Howell read the statement aloud to Sanford who made a few corrections before signing it. Officer Howell then asked Sanford about the rape, and Sanford made the following statement which was added to his signed confession:

And he states that after he shot her the first time, he had sex with her. Then he killed her.

Officer Howell read the added statement to Sanford, who verified its accuracy and signed the statement a second time. Based on this evidence, the jury found Sanford guilty of theft of property, residential burglary, rape, and capital murder.

I. Sifficiency of the Evidence

For his first argument on appeal, Sanford challenges the sufficiency of the evidence to support each of his convictions. As we have stated numerous times, the test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict. Burris v. State, 330 Ark. 66, 954 S.W.2d 209 (1997); Williams v. State, 329 Ark. 8, 946 S.W.2d 678 (1997). Substantial evidence is direct or circumstantial evidence that is forceful enough to compel a conclusion one way or another and which goes beyond mere speculation or conjecture. Green v. State, 330 Ark. 458, 956 S.W.2d 849 (1997); Burris, supra. In making this determination, we review the evidence in the light most favorable to the State, and consider evidence both properly and improperly admitted. Green, supra; Burris, supra.

A. Theft of Property

First, Sanford contends that there was insufficient evidence to support the theft conviction because the State failed to prove that he took any of the victim’s property as required by Ark. Code Ann. § 5-36-103(a)(1) (Repl. 1997). We conclude that Sanford’s contention is contrary to the evidence adduced at trial for several reasons. First, Sanford admitted that he took twenty-five dollars from the victim’s purse. Moreover, the victim’s son, Ricky Tolliver, identified the .44 Smith and Wesson found in McQuay’s apartment as belonging to his mother. Tolliver also explained that his mother did not usually keep her purse on the floor near the back door. Finally, David Palmer saw a gun in Sanford’s coat pocket on the day of the murder. Because there was sufficient evidence that Sanford took money and a weapon from Ward’s home, we affirm Sanford’s theft conviction.

B. Residential Burglary

Sanford next claims that we must reverse his conviction of residential burglary because the State failed to prove that he entered Ward’s home with the purpose of committing an offense punishable by imprisonment as required by Ark. Code Ann. § 5-39-201(a)(1) (Repl. 1997). The most persuasive evidence of Sanford’s intention was his statement to the police that “he went over to Minnie Ward’s around 10:00 or 11:00 and went in to burglarize the house.” Moreover, Sanford told Officer Howell that he broke into Ward’s home so that he could steal money to buy a Rottweiler. Accordingly, we affirm Sanford’s conviction of residential burglary because there was sufficient evidence that he entered Ward’s home for the purpose of taking her property.

C. Rape

Third, Sanford argues that his rape conviction must be reversed because the State failed to prove that Ward was alive when she was sexually assaulted. We have never specifically determined whether the victim must be alive in order for a sexual assault to constitute rape under Ark. Code Ann. § 5-14-103 (Repl. 1997). See Roderick v. State, 288 Ark. 360, 705 S.W.2d 433 (1986). This determination, however, is not necessary because there was sufficient evidence that Ward was alive at the time she was sexually assaulted.

First and foremost, Sanford admitted to the police that: “he shot her the first time, he had sex with her. Then he killed her.” This evidence was corroborated by the following statements contained in the autopsy report which was admitted into evidence without objection pursuant to Ark. Code Ann. § 12-12-313 (Repl. 1995):

The direction of travel [of the first bullet] was front to back, downward, and left to right.
The direction of travel [of the second bullet] was left to right, front to back, and upward.

From this description of Ward’s injuries, the jury could have inferred that the two shots were fired at different times and from substantially different angles. Hence, the jury could have reasonably assumed that Ward was shot the first time while she was standing upright, raped, and then shot the second time while she was lying on the floor. Finally, the coroner estimated that Ward died between 11:00 a.m. and 1:30 p.m which is several hours after Ward ended her telephone conversation with Gary to greet the visitor approaching her back door. Because there was sufficient evidence that Ward was alive at the time of the sexual assault, we affirm Sanford’s rape conviction.

D. Capital Murder

Finally, Sanford was convicted of capital murder under Ark. Code Ann. § 5-10-101(a)() (Repl. 1997), which states in relevant part that a person is guilty of capital murder if he or she:

Acting alone or with one (1) or more other persons, . . . commits or attempts to commit rape, . . . burglary, ... or escape in the first degree, and in the course of and in furtherance of the felony, or in immediate flight therefrom, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life.

On appeal, Sanford raises two challenges to this conviction. First, Sanford argues that we must reverse because the State failed to prove the underlying felony of either rape or burglary. As previously discussed, we conclude that there is sufficient evidence to support both of those convictions.

Next, Sanford contends that the State faded to prove that he killed Ward “under circumstances manifesting extreme indifference to the value of human life” as required by the statute. We have previously defined “extreme indifference” as deliberate conduct that culminates in the death of another person. McGehee v. State, 328 Ark. 404, 943 S.W.2d 585 (1997); Davis v. State, 325 Ark. 96, 925 S.W.2d 768 (1996). Moreover, we have clarified that intent may be inferred from the type of weapon used; the manner of use; and the nature, extent, and location of the trauma suffered by the victim. Hill v. State, 325 Ark. 419, 931 S.W.2d 64 (1996).

In this case, there was evidence that the victim was shot twice in the upper abdomen by a .38 handgun. Sanford told the police that he shot three times as soon as he stepped into Ward’s home. Finally, Sanford told his sister, Earlene McQuay, that he killed Ward. Because there was sufficient evidence that Sanford acted with extreme indifference to the value of Ward’s life, we affirm his conviction of capital murder.

E. Credibility

In addition to his specific challenges to each offense, Sanford contends that the State failed to prove its case because he testified at trial that Mingo Kennedy shot Ward, stole her property, and then forced him to have sex with the victim. We, however, have previously held that it is the sole province of the jury to determine the credibility of the witnesses, and that they may choose to believe the State’s version of the facts over the defendant’s. Mulkey v. State, 330 Ark. 113, 952 S.W.2d 149 (1997); Hicks v. State, 327 Ark. 652, 941 S.W.2d387 (1997); Jones v. State, 326 Ark. 61, 931 S.W.2d 83 (1996). Thus, we hold that there was sufficient evidence to support each of Sanford’s convictions despite his contention that the crimes were committed by a third party.

II. Motion to Suppress

For his second argument on appeal, Sanford claims that the trial court erred when it denied his motion to suppress his January 11, 1995 confession. Specifically, Sanford contends that: 1) his confession was involuntary because it was obtained by the use of false promises, and 2) that his youth and low IQ prevented him from making a knowing and intelligent waiver of his Miranda rights. These are two distinct issues requiring separate analysis. Wofford v. State, 330 Ark. 8, 952 S.W.2d 646 (1997); Humphrey v. State, 327 Ark. 753, 940 S.W.2d 860 (1997).

A. Confession

First, Sanford contends that his confession was involuntary. Hence, the issue on appeal is whether Sanford’s confession was “the product of a free and deliberate choice rather than intimidation, coercion, or deception.” Wofford, supra; Humphrey, supra. In making this determination, we review the totality of the circumstances, and reverse the trial court only if its decision was clearly erroneous. Davis v. State, 330 Ark. 76, 953 S.W.2d 559 (1997); Humphrey, supra. In this regard, the relevant factors are the age, education, and intelligence of the accused; the lack of advice as to his constitutional rights; the length of detention; the repeated and prolonged nature of questioning; and the use of mental or physical punishment. Davis, supra; Wofford, supra; Humphrey, supra.

Sanford argues that his confession was involuntary because it was obtained by false promises. Sanford is correct that a confession obtained by false promises of leniency is invalid. Humphrey, supra; Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996), cert. denied, 117 S. Ct. 246 (1997); Key v. State, 325 Ark. 73, 923 S.W.2d 865 (1997). During the suppression hearing, Sanford’s father testified that his son told him immediately after the confession that Officer Howell told him to “fuck the system” by pretending that he was crazy, and that Officer Howell promised him that he could go home as soon as “he got it over with.” In contrast, Officer Howell denied making any such statements to Sanford. When there is conflicting evidence regarding whether the police made false promises, the issue becomes one of credibility to be determined by the trial court. Humphrey, supra; Misskel ley, supra; Key, supra. In this case, the trial court concluded that Officer Howell did not make the alleged statements to Sanford, and we cannot say that the court’s ruling was clearly erroneous.

In reviewing the remaining relevant factors, we acknowledge that the interview with Officer Howell was not unduly long and occurred at a reasonable time of the day. There was also no evidence that the police denied any of Sanford’s requests, or that Sanford was under the influence of drugs or alcohol at the time of his statement. Moreover, at the time of the questioning Officer Howell was wearing street clothing and did not have a badge or gun. Finally, Officer Howell declared that he was gentle with Sanford and did not use any threats or coercion to obtain his statement. Based on the totality of the circumstances surrounding Sanford’s confession, we cannot say that the trial court’s conclusion that the statement was voluntary was clearly erroneous. Accordingly, we affirm on this point.

B. Waiver

Next, Sanford argues that his confession must be suppressed because he did not knowingly and intelligently waive his Miranda rights. Here, the relevant inquiry is whether Sanford waived his rights “with the full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” State v. Bell, 329 Ark. 422, 948 S.W.2d 557 (1997); Humphrey, supra. We make this determination by reviewing the totality of the circumstances surrounding the waiver which include the age, experience, education, background, and intelligence of the defendant. Hart v. State, 312 Ark. 600, 852 S.W.2d 312 (1993); Mauppin v. State, 309 Ark. 235, 831 S.W.2d 104 (1992).

First, Sanford contends that his waiver was not knowingly or intelligently made because he was only sixteen years old at the time of his statement. We, however, have previously held that defendants younger than Sanford were capable of giving a knowing and intelligent waiver. See, e.g., Oliver v. State, 322 Ark. 8, 907 S.W.2d 706 (1995) (fifteen year old); Douglas v. State, 286 Ark. 296, 692 S.W.2d 217 (1985) (fifteen year old).

Sanford also argues that his waiver was invalid due to his low IQ. During the suppression hearing, Dr. Stevens, a clinical psychologist, testified that Sanford was “mildy mentally retarded” with a “verbal IQ of 70, a non-verbal IQ of 66, and a full-scale IQ of 67.” We, however, have previously held that a low IQ, standing alone, does not mean that a suspect is incapable of waiving his rights. Misskelley, supra; Oliver, supra. Moreover, Dr. Stevens conceded that Sanford understood “some aspects of probably every statement” on the waiver form, and Dr. Stevens was unable to quantify the amount of the form that Sanford was incapable of understanding.

Officer Howell testified that he read each statement on the waiver form to Sanford who responded “yes” and signed his full name to the waiver of each right and again at the bottom of the form. Sanford appeared to understand his rights and did not ask any questions about the form. We also find persuasive the fact that Sanford executed a similar waiver form the day before the confession, and that there was evidence that Sanford’s father was present during the execution of both waiver forms. The parent’s presence, although not required, has previously been found to be a significant factor. Misskelley, supra; Oliver, supra. Moreover, the State established that Sanford had been adjudicated a delinquent on two prior occasions. A juvenile’s familiarity with the criminal justice system is also a relevant factor when determining whether the waiver of his rights was knowingly and intelligently made. Bell, supra; Misskelley, supra.

Based on the totality of these circumstances, we cannot say that the trial court clearly erred when it found that Sanford knowingly and intelligently waived his Miranda rights before he confessed to killing Ms. Ward. Accordingly, we affirm the trial court’s denial of Sanford’s motion to suppress his confession.

III. Motion to Transfer to Juvenile Court

Next, Sanford appeals the trial court’s denial of his motion to transfer the case to juvenile court. Before addressing the merits, we note that the State contends that this issue is procedurally barred because the denial of a motion to transfer to juvenile court must be raised in an interlocutory appeal, instead of upon direct appeal. In Hamilton v. State, 320 Ark. 346, 896 S.W.2d 877 (1995), we held that:

for criminal prosecutions commenced after the finality of this opinion (May 1, 1995), an appeal from an order granting or denying transfer of a case from one court to another having jurisdiction over juvenile matters must be considered by way of interlocutory appeal, and an appeal from such an order after a judgment of conviction in circuit court is untimely and will not be considered.

Because this case was commenced before May 1, 1995, the procedural bar annunciated in Hamilton does not apply.

Turning to the merits, it is clear that a trial court’s decision to try the juvenile as an adult must be supported by clear and convincing evidence, Ark. Code Ann. § 9-27-318(f) (Supp. 1997), and we will not reverse the court’s determination unless it is clearly erroneous. Thompson v. State, 330 Ark. 746, 958 S.W.2d 1 (1997); Fleetwood v. State, 329 Ark. 327, 947 S.W.2d 387 (1997). A trial court’s decision must be based on the following factors:

(1) The seriousness of the offense, and whether violence was employed by the juvenile in the commission of the offense;
(2) Whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that the juvenile is beyond rehabilitation under existing rehabilitation programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts; and
(3) The prior history, character traits, mental maturity, and any other factor which reflects upon the juvenile’s prospects for rehabilitation.

Ark. Code Ann. § 9-27-318(e) (Supp. 1997). Although the court must consider all of these factors, it is not required to give them equal weight. Thompson, supra; Fleetwood, supra.

In this case there was evidence that Sanford was involved in a capital murder, which undoubtedly is a crime of a serious and violent nature. This alone is a sufficient reason to affirm the trial court’s ruling. Thompson, supra; Sims v. State, 329 Ark. 350, 947 S.W.2d 376 (1997). Furthermore, the State established that Sanford had previously been adjudicated a delinquent for placing tacks in the road, and for stealing and destroying a truck. Sanford was placed on probation for both offenses, and was on probation for the latter offense on the day of the murder. These additional facts support the trial court’s conclusion that Sanford was beyond rehabilitation in the juvenile system. For these reasons, we affirm the trial court’s denial of Sanford’s motion to transfer his case to juvenile court.

IV. Hearsay

For his fourth argument on appeal, Sanford contends that the trial court committed reversible error when it allowed two alleged hearsay statements to be admitted into evidence. We will not reverse a trial court’s ruling on a hearsay question unless the appellant can demonstrate an abuse of discretion. Goff v. State, 329 Ark. 513, 953 S.W.2d 38 (1997); Bragg v. State, 328 Ark. 613, 946 S.W.2d 654 (1997).

First, Sanford challenges a portion of Ocie Gary’s testimony regarding her telephone conversation with the victim on the day of the murder. Specifically, Gary testified that Ward said she saw a boy walking across a field to her house. It is well settled that an alleged hearsay statement is admissible under Ark. R. Evid. 803(1), if it is a statement “describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.” Brown v. State, 320 Ark. 201, 895 S.W.2d 909 (1995); Davis v. State, 317 Ark. 592, 879 S.W.2d 439 (1994). Ward’s description was made contemporaneously with her observation. Accordingly, we hold that the trial court did not abuse its discretion when it allowed Gary’s statement into evidence.

Next, Sanford claims that the trial court erred when it allowed Earlene McQuay to testify that her daughter told her that Sanford had a gun. The trial court held that the daughter’s statement was not hearsay because it was offered to show why McQuay searched her house and not to prove the truth of the matter asserted — that Sanford had a gun. The trial court did not abuse its discretion in making this ruling because we have held on several occasions that an out-of-court statement is not hearsay under Ark. R. Evid. 801(c) if it is offered to show the basis for the witness’s action. Bragg, supra; Martin v. State, 316 Ark. 715, 875 S.W.2d 81 (1994); Dandridge v. State, 292 Ark. 40, 727 S.W.2d 851 (1987). Accordingly, we affirm the trial court’s ruling on both of these evidentiary issues.

V. Batson Challenges

For his last argument on appeal, Sanford claims that the State improperly used its peremptory challenges to exclude three African-Americans from the jury in violation of the Equal Protection Clause of the Fourteenth Amendment as construed in Batson v. Kentucky, 476 U.S. 79 (1986). In Purkett v. Elem, 514 U.S. 765 (1995) (per curiam), the United States Supreme Court held that the following three-step analysis should be applied when analyzing a Batson challenge. First, the party objecting to the use of the peremptory challenge must make a prima facie case of racial discrimination. Id. Second, the burden of production, not persuasion, shifts to the striking party to come forward with a race-neutral explanation for removing the juror. Id. In Purkett, the Court clarified that at this stage the explanation does not have to be “persuasive, or even plausible.” Id. Instead, the relevant inquiry in step two is:

“the facial validity of the [striking party’s] explanation. Unless a discriminatory intent is inherent in the [striking party’s] explanation, the reason offered will be deemed race neutral.”

Id. (quoting Hernandez v. New York, 500 U.S. 352 (1991) (plurality opinion)). Finally, during the third step, the opponent of the strike bears the ultimate burden of persuading the trial judge that the race-neutral reason offered by the striking party is merely a pretext for purposeful discrimination. Id.

As we have previously noted, the trial court is in a superior position to make these determinations because it has the opportunity to observe the parties and determine their credibility. Accordingly, we will reverse a trial court’s ruling on a Batson challenge only when its findings are clearly against the preponderance of the evidence. Green v. State, 330 Ark. 458, 956 S.W.2d 849 (1997); Roseby v. State, 329 Ark. 554, 953 S.W.2d 32 (1997); Sonny v. Batch Motor Co., 328 Ark. 321, 944 S.W.2d 87 (1997).

On appeal, Sanford argues that the trial court erred when it denied his Batson challenges to the State’s use of peremptory-strikes to exclude the following three African-Americans from the jury: Elsie Marshall, Marcus Martin, and Brenda Donald. The State explained that it struck Ms. Marshall because she suffered from high blood pressure and blackouts. The State further justified its striké by explaining that it did not strike Rose Harris, who was also an African-American who suffered from heart problems, because Harris’s heart condition was not aggravated by stressful situations as was Ms. Marshall’s. The trial court concluded that the State’s race-neutral explanation for striking Ms. Marshall was not a pretext for purposeful discrimination.

Next, the State explained that it struck Marcus Martin because he had previously been charged with a crime in Eudora. Although the case against Mr. Martin was dismissed, the State feared that he might have some animosity towards the State. The court concluded that the State’s explanation was not a pretext, and we have previously affirmed cases where a party struck a juror because the juror or the juror’s family members were involved in criminal cases. See, e.g., Jackson v. State, 330 Ark. 126, 954 S.W.2d 894 (1997).

Finally, Sanford raised a Batson challenge to the State’s use of a peremptory challenge to strike Brenda Donald. During voir dire, Ms. Donald declared four times that she was morally opposed to the death penalty, but she ultimately conceded that she could sign a death verdict because it was the law. The State later used a peremptory challenge to strike Ms. Donald because “she was the only one of the twelve that said she does not believe in the death penalty.” In Green, supra, we held that the State could use a peremptory challenge to strike a juror who was morally opposed to the death penalty even though the State could not strike the juror for cause because he declared that he could consider the death penalty under certain circumstances. As in Green, Ms. Donald’s responses did not prevent her from being death qualified, but did indicate her propensity towards rendering a life sentence instead of the death penalty.

As previously mentioned, the trial court was in a superior position to observe the credibility of the jurors and the attorneys during the challenges to each juror. In this case, the court concluded that the State’s race-neutral explanations for striking Elsie Marshall, Marcus Martin, and Brenda Donald were not pretexts for purposeful discrimination. We also find persuasive the fact three African-Americans were ultimately seated on the jury. Because we cannot say that the trial court’s rulings were clearly against the preponderance of the evidence, we affirm the court’s decision to allow the State to strike all three jurors.

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

In accordance with Supreme Court Rule 4-3 (h), the record of trial has been examined for error in rulings by the trial court which were adverse to Sanford. None have been found.

Affirmed.

       The parties and the court skipped step one during which Sanford was suppose to establish a prima facie case of racial discrimination, and proceeded to steps two and three. We have previously held that this renders moot the issue of whether the first step was satisfied. Roseby v. State, 329 Ark. 554, 953 S.W.2d 32 (1997); Sonny v. Balch Motor Co., 328 Ark. 321, 944 S.W.2d 87 (1997).


author: Ray Thornton, Justice.

text:
    Derrick Lynell HARRIS v. STATE of Arkansas
    CR 97-582
    961 S.W.2d 737
    Supreme Court of Arkansas
    Opinion delivered February 5, 1998

      John L. Kearny, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   Ray Thornton, Justice.

Appellant Derrick Harris was charged in the February 19, 1996, shooting death of Jimmy Gathings, a Monticello used-car dealer. At the time of the incident, appellant was fifteen years old. Appellant was charged as an accomplice to capital murder and aggravated robbery. The State alleged that, while committing or attempting to commit robbery and in the course and in furtherance of that offense, appellant caused the death of Mr. Gathings under circumstances that manifested extreme indifference to human life.

At trial, the State called several witnesses, including two witnesses, Albert Lambert, Jr., and Jerry Majors, who each testified that he saw two men leaving the victim’s office immediately after hearing shots. Both witnesses identified appellant as one of these two men, and they testified that appellant was carrying a gun when they saw him leaving.

The jury convicted appellant of both charges. The trial court fixed appellant’s sentence at life imprisonment without parole for the capital-murder conviction, and merged the aggravated-robbery conviction with it. From these convictions, appellant brings this appeal.

On appeal, appellant raises a single point of error. He claims that the trial court erred in denying his motion for directed verdict. Appellant alleges that the State’s evidence, particularly the testimony of Albert Lambert, Jerry Majors, and the victim’s nephew, was so conflicting that it was insufficient to sustain a jury verdict of guilty. We hold that the evidence was sufficient to go to the jury, and we affirm.

We treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Passley v. State, 323 Ark. 301, 305, 915 S.W.2d 248, 250 (1996). In reviewing a denial of a motion for a directed verdict, we review the evidence in the light most favorable to the State, and it is permissible to consider only the evidence that supports the verdict. Id. Our test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict. Wilson v. State, 320 Ark. 707, 709, 898 S.W.2d 469, 470 (1996). Evidence, whether direct or circumstantial, is substantial if it is of sufficient force that it would compel a conclusion one way or the other beyond speculation and conjecture. Id. We will affirm if there is any substantial evidence to support the verdict. Id.

Looking at the testimony of the State’s two eyewitnesses, Mr. Lambert and Mr. Majors, each witness testified unequivocally that, after hearing “pow” or “banging” sounds, he saw appellant leave the victim’s office with a gun at his side. Appellant contends that these witnesses were biased and unreliable and that their testimony should be discounted; however, the jury clearly did not believe appellant’s version of the facts. Appellant points to inconsistencies in the testimony on such issues as whether Mr. Majors saw him come out of the building or around the building; however, neither witness wavered in his identification of appellant.

We do not attempt to weigh the evidence or pass on the credibility of witnesses. That duty is left to the trier of fact. Mann v. State, 291 Ark. 4, 7-8, 722 S.W.2d 266, 268 (1987). In Rawls v. State, 327 Ark. 34, 937 S.W.2d 637 (1997), the appellant similarly moved for a directed verdict at the end of the State’s evidence on the basis of inconsistencies and deficiencies in the proof. We specifically stated that inconsistent testimony does not render proof insufficient as a matter of law. Id. at 36, 937 S.W.2d at 638. We further stated that one eyewitness’s testimony is sufficient to sustain a conviction. Id. Resolution of issues of credibility and conflicting versions of facts rests with the trier of fact. Wilson, 320 Ark. at 709, 898 S.W.2d at 470.

In the instant case, any inconsistencies in the witnesses’ testimony went to their credibility, and we will not invade the province of the jury in weighing their credibility. We conclude that the testimony of Mr. Majors and that of Mr. Lambert provided evidence of sufficient force to pass beyond speculation and conjecture, and therefore constituted substantial evidence to support the capital-murder and aggravated-robbery convictions.

Appellant raises the issue of sufficiency with regard to other pieces of evidence in his argument; however, we need only determine whether there was any substantial evidence to support the verdict. Having concluded that the foregoing evidence was sufficient, we affirm the trial court’s decision.

In compliance with Ark. Sup. Ct. R. 4-3(h), the record has been examined for all objections, motions, and requests made by either party that were decided adversely to appellant, and no error has been found.

Affirmed.


author: Per Curiam.

text:
    Michael Shane DIGGS v. STATE of Arkansas
    CR 97-1566
    958 S.W.2d 303
    Supreme Court of Arkansas
    Opinion delivered February 5, 1998

      John F. Gibson, Jr., for appellant.
    No response.
   Per Curiam.

Appellant Michael Shane Diggs, by his attorney, has filed a motion for rule on the clerk.

On May 29, 1997, the Drew County Circuit Court entered a judgment convicting appellant of burglary and theft of property. On May 30, 1997, appellant filed a motion for new trial. Appellant’s notice of appeal from the judgment of conviction was filed on June 25, 1997. Appellant’s attorney failed to file a notice of appeal after the motion for new trial was deemed denied on June 30, 1997.

Although the notice of appeal from the judgment of conviction was filed in a timely manner, appellant’s attorney, John F. Gibson, Jr., admits that a notice of appeal from the denial of appellant’s motion for new trial was not filed in a timely manner due to a mistake on his part.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion, which we will treat as a motion for belated appeal. See Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981); In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

The motion for belated appeal is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Altricia MUHAMMAD v. STATE of Arkansas
    CR 97-1048
    958 S.W.2d 304
    Supreme Court of Arkansas
    Opinion delivered February 5, 1998

      Appellant, pro se.
    No response.
   Per Curiam.

On September 9, 1997, the movant, Altricia Muhammad, moved this court pro se for a rule on the clerk. In the motion, she referred to her indigency status and prayed that this court “docket” her appeal and appoint counsel to represent her. By per curiam order dated December 11, 1997, we granted her motion for rule on the clerk and declared that it was trial counsel’s obligation to perfect the appeal. We directed that trial counsel appear before us and show cause why he should not be held in contempt for his delay in doing so. Trial counsel pled guilty to contempt and was fined.

Muhammad now has filed a motion seeking clarification of her indigency status and her appeal. In support of her motion, she has filed an affidavit to proceed informa pauperis.

Muhammad’s affidavit meets our criteria for indigency status, and we declare her to be indigent for purposes of this appeal. With respect to her appeal, we treat her request that her appeal proceed as a petition for writ of certiorari to the court reporter, and we grant the writ and direct that the court reporter prepare a transcript of the trial in this case for appeal and that the record in this case be filed with the clerk of this court within 60 days from the date of this per curiam order. An appropriate briefing schedule will then be set by the clerk of this court.


author: W.H. “Dub” Arnold, Chief Justice.

text:
    Sammy Earl STEWART v. STATE of Arkansas
    CR 97-942
    961 S.W.2d 750
    Supreme Court of Arkansas
    Opinion delivered February 12, 1998

      Irwin Law Firm, by: Robert E. Irwin, for appellant.

      Winston Bryant, Att’y Gen., by: C. Joseph Cordi, Jr., Asst. Att’y Gen., for appellee.
   W.H. “Dub” Arnold, Chief Justice.

The appellant, Sammy Earl Stewart, was convicted of the rape, aggravated robbery, and theft of property of a Russellville woman for which he was sentenced to concurrent prison terms of sixty years, forty years, and five years, respectively. On appeal, he argues that the State’s evidence was insufficient to satisfy the penetration element of rape or to identify him as the perpetrator of the crimes. Because we conclude that neither argument has merit, we affirm the trial court’s judgment.

The State elicited the following testimony at trial. On the evening of April 9, 1996, the forty-nine-year-old victim was at home in bed when she was awakened by a crashing sound. When she sat up, she saw a man standing at- the end of her bed. She turned on the light and recognized the man because he had been to her front door earlier that evening asking to mow her lawn. The man ordered the victim to turn off the light, then held a knife to her throat and demanded money.

After dragging the victim out of bed and into her living room, the man, still holding the knife to her throat, told her that he was going to rape her. He threw her on the couch and got on top of her. When the man removed the knife away from the victim’s throat long enough to pull his pants down, she grabbed for the knife and cut her hand. Threatening to kill the victim if she called police, the man pushed her panties to one side without removing them. According to the victim, the man did not have an erection, but just “smushed it in.” According to the victim, there was no doubt in her mind that the man penetrated her. While in the living room, the appellant told the victim that he wanted some jewelry and inquired about her video cassette recorder. Eventually, she managed to escape and ran to a neighbor’s house to call police. When the appellant returned to the residence with police, she noticed that her videocassette recorder and several rings were missing.

Police developed the appellant as a suspect in the case. On April 16, 1996, the victim identified the appellant and two or three others as suspects from an album containing photographs of approximately 170 males. Later that day, she identified the appellant and another man in a lineup as resembling her attacker. On a later date, when the victim had the opportunity to observe the appellant and hear his voice, she identified the appellant as her assailant. The victim identified the appellant again at trial, stating that “it was the same man, no doubt.”

In a statement given to Russellville Police Officer David Davis, the appellant initially denied that he had ever been to the victim’s residence. However, he subsequently admitted that he had gone to the victim’s house with another person who intended to break in. According to Officer Davis, the appellant claimed that he did not go inside because he thought that someone was there.

Following a rape-kit examination that was performed on the victim, the victim’s panties and vaginal swabs, both of which contained semen, were submitted to the State Crime Lab for testing. The State’s expert who performed the DNA analysis testified that the probability of the victim’s attacker being someone other that the appellant was one in fifteen thousand.

A latent print taken from the victim’s back door, determined by police as the perpetrator’s point of entry, was also submitted to the State Crime Lab for analysis. Comparing this print to a fingerprint card bearing the appellant’s prints, the State’s fingerprint examiner testified that the impression left on the victim’s back door was the appellant’s left palm print.

At the close of the State’s case in chief, the appellant moved for a directed verdict, arguing that the State failed to prove both the penetration element of the rape charge and that he was the person who committed the crimes charged. Following the trial court’s denial of the motion, the appellant testified on his own behalf, claiming that police had conspired against him and that he did not leave his house on the night of the rape. The appellant also presented the testimony of his mother and grandmother, both of whom testified as alibi witnesses. At the close of all the evidence, the appellant renewed his motion for directed verdict. The trial court again denied the motion. The case was submitted to the jury, which returned a verdict finding the appellant guilty of all charges.

We have recently reviewed our guidelines for reviewing challenges to the sufficiency of the evidence in Green v. State, 330 Ark. 458, 466-7, 956 S.W.2d 849, 853 (1997), quoting McGehee v. State, 328 Ark. 404, 410, 943 S.W.2d 585, 588 (1997):

Motions for directed verdict are treated as challenges to the sufficiency of the evidence. Johnson v. State, 326 Ark. 3, 929 S.W.2d 707 (1996); Penn v. State, 319 Ark. 739, 894 S.W.2d 597 (1995). When a defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in the light most favorable to the state. Dixon v. State, 310 Ark. 460, 470, 839 S.W.2d 173 (1992). Evidence is sufficient to support a conviction if the trier of fact can reach a conclusion without having to resort to speculation or conjecture. Id. Substantial evidence is that which is forceful enough to compel reasonable minds to reach a conclusion one way or the other. Id. Only evidence supporting the verdict will be considered. Moore v. State, 315 Ark. 131, 864 S.W.2d 863 (1993).

Specifically, the appellant contends that his rape conviction should be reversed because the State failed to prove penetration. As defined in Ark. Code Ann. § 5-14-103(a)(1) (Repl. 1997), a person commits the offense of rape “if he engages in sexual intercourse or deviate sexual activity with another person . . . [b]y forcibile compulsion.” “Sexual intercourse” is defined in Ark. Code Ann. § 5-14-101(9) (Repl. 1997) as the “penetration, however slight, of the labia majora by a penis.”

The appellant maintains that there was insufficient evidence of penetration because a nurse who examined and questioned the victim after the incident initially wrote in her notes that the victim did not think that her attacker penetrated her. However, the victim testified at trial that the appellant “smushed it in” and that there was no doubt in her mind that he penetrated her. As we have held many times, the uncorroborated testimony of a rape victim is sufficient to support a conviction. Davis v. State, 330 Ark. 501, 956 S.W.2d 163 (1997); Johnson v. State, 328 Ark. 526, 944 S.W.2d 115 (1997). Moreover, any inconsistencies that may have been presented in the testimony were for the jury to resolve. Cope v. State, 293 Ark. 524, 739 S.W.2d 533 (1987). In support of the victim’s testimony, the state offered testimony of a DNA expert that the vaginal swab taken from the victim’s rape examination matched the DNA in appellant’s blood. Thus, we conclude that the evidence was sufficient to sustain the appellant’s conviction for rape.

The appellant further contends that the State’s proof that he was the person who committed the crimes was insufficient. The victim testified at trial that there was no doubt in her mind that the appellant was her assailant. We have held that the uncorroborated testimony of one state’s witness is sufficient to sustain the appellant’s convictions. See Galvin v. State, 323 Ark. 125, 912 S.W.2d 232 (1996). Nevertheless, the State produced evidence that appellant’s left palm print was found on the back door of the victim’s residence. We have held that fingerprints can constitute evidence that is sufficient to sustain a conviction. Lee v. State, 326 Ark. 229, 931 S.W.2d 433 (1996). Moreover, the DNA on the vaginal swab taken from the victim’s rape examination matched the DNA in appellant’s blood. In sum, the State’s identification evidence was more than sufficient to sustain the appellant’s convictions.

Based on the foregoing, we affirm the trial court’s judgment.