Elliott v. State

379 S.W.3d 101, 2010 Ark. App. 809, 2010 Ark. App. LEXIS 860
CourtCourt of Appeals of Arkansas
DecidedDecember 8, 2010
DocketNo. CA CR 10-185
StatusPublished
Cited by5 cases

This text of 379 S.W.3d 101 (Elliott v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Elliott v. State, 379 S.W.3d 101, 2010 Ark. App. 809, 2010 Ark. App. LEXIS 860 (Ark. Ct. App. 2010).

Opinions

JOHN MAUZY PITTMAN, Judge.

|,Appellant was charged with rape. After a jury trial, he was convicted of that offense and sentenced to twenty-five years’ imprisonment. On appeal, he argues that the evidence is insufficient to support his conviction. He also argues that the trial court erred in permitting the State to interrupt the victim’s testimony after she became unresponsive and to later recall her for further testimony, and in permitting the introduction of an anatomical diagram of a male body on which appellant’s name was written. We affirm.

Appellant was convicted of violating Ark. Code Ann. § 5 — 14—103(a)(3)(A) (Supp.2009), which provides that a person commits rape if he engages in sexual intercourse or deviate sexual activity with another person who is less than fourteen years of age. “Sexual intercourse” means penetration, however slight, of the labia majora by the penis. Ark.Code Ann. § 5-14-101(11) (Supp.2009). “Deviate sexual activity” includes the penetration, 1 ¡.however slight, of the anus or mouth of a person by the penis of another person. Ark.Code Ann. § 5-14-101(l)(A) (Supp.2009).

Appellant challenges only the sufficiency of the evidence to prove the element of penetration. In reviewing the sufficiency of the evidence on appeal from a jury verdict, we view the evidence in the light most favorable to the verdict, considering only the evidence supporting the verdict, to determine whether it is supported by substantial evidence. Kelley v. State, 375 Ark. 483, 292 S.W.3d 297 (2009). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. A rape victim’s uncorroborated testimony describing penetration may constitute substantial evidence to sustain a conviction of rape, even when the victim is a child. Brown v. State, 374 Ark. 341, 288 S.W.3d 226 (2008). It is the function of the jury, and not the reviewing court, to evaluate the credibility of witnesses and to resolve any inconsistencies in the evidence. Id.

It is unfortunately necessary to recite the evidence in some detail. The victim is appellant’s daughter. She was nine years old at the time of trial. Appellant’s eleven-year-old son testified that he and the victim used to live in a house with their father. While they lived there, he said, appellant would make them watch pornographic movies. He testified that he slept in a bedroom with his brother but that the victim slept with appellant in his bed. Once, he said, while they lived with appellant, he stood in the door looking into appellant’s room and saw that appellant and the victim were both naked in appellant’s bed. The victim had |sduct tape on her hands and feet, and appellant was putting his penis on the victim’s vagina. The victim’s brother said that seeing this made him feel bad. He told his mother what he saw.

The victim testified that she and her brothers used to live with appellant. Their mother did not live with them at that time. Appellant, she said, touched her with his penis many times, perhaps more than twenty. She said that, when she lived there, appellant put gray duct tape over her mouth and taped her wrists together behind her. She was naked, looking at the wall. Appellant was behind her, naked, and appellant’s penis was touching her anus.

Candace Kimball, a forensic examiner at the Texarkana Children’s Advocacy Center, testified as an expert and stated, without objection, that she interviewed the victim after the incident, that she found the victim to be believable and not to have been coached, and that the victim named the perpetrator. Vikki Hurst, R.N., testified as an expert sexual-assault nurse-examiner. She stated without objection that, as part of the examination she conducted, the victim stated positively that the abuser’s penis penetrated her mouth and that, although the victim denied that her anus had been penetrated, a reflexive opening of the anus indicative of sexual assault was observed during her physical examination of the victim. Based on her examination, her expert opinion was that the victim had been penetrated orally and anally. On this record, we hold that the jury’s finding of penetration is supported by substantial evidence.

Next, appellant argues that the trial court erred in overruling his objection to permitting the victim’s testimony to be interrupted and suspended during the State’s direct ^examination in open court. After a few preliminary questions regarding her age and qualification as a witness, the nine-year-old victim became unresponsive. The trial court asked her if she would like to take a break and, after the jury was sent out, the State moved to interrupt her testimony and be allowed to recall her to the stand if she was later able to testify. The trial court granted this motion over appellant’s objection and request to immediately cross-examine the victim, noting that nothing had yet been elicited that was damaging to appellant. Appellant now asserts that the trial court abused its discretion in permitting the child to stand down and be recalled without first being immediately subject to cross-examination. We disagree.

The trial court has considerable discretion in regulating the presentation of proof. Arkansas Code Annotated § 16-43-703 (Repl.1999) gives the trial court discretion to allow the reexamination of a witness, and Arkansas Rule of Evidence 611(a)(3) imposes a duty on trial courts to exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence in order to protect witnesses from harassment or undue embarrassment. The witness in this case was a nine-year-old child asked to testify concerning heinous acts perpetrated upon her by her own father. The scope of cross-examination is limited to the subject matter of the direct examination, see Ark. R. Evid. 611(b) (2010), and the victim had at that point given no testimony that was prejudicial to appellant. Appellant was deprived of no right by being restrained from subjecting to immediate cross-examination a child who was already too frightened to testify. The youth and timidity of the witness are | /¡important factors mitigating against a finding of abuse of discretion in such situations, see Hamblin v. State, 268 Ark. 497, 597 S.W.2d 589 (1980), and we hold without hesitation that the trial judge properly employed his discretion in this instance.

Appellant next argues that the trial court erred in allowing into evidence an anatomical chart of a male body with the word “Clayton” written on the chart, asserting that it was inadmissible hearsay and that its probative value was outweighed by the potential for unfair prejudice. We disagree.

The name written on the chart was not hearsay, and it was not inadmissible. It was introduced in conjunction with the testimony of Vicki Hurst. She testified that she was a registered nurse employed as the manager of the Ambulatory Care Unit of St. Michael’s Hospital in Texarkana, and that she was also a certified sexual-assault nurse-examiner. In her latter capacity, she examined the victim on July 21, 2008. The procedure involved taking a systematic and detailed history from the victim, making a thorough head-to-toe assessment, and performing a detailed genital exam looking for trauma.

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Cite This Page — Counsel Stack

Bluebook (online)
379 S.W.3d 101, 2010 Ark. App. 809, 2010 Ark. App. LEXIS 860, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elliott-v-state-arkctapp-2010.