Flurry v. State

711 S.W.2d 163, 18 Ark. App. 64, 1986 Ark. App. LEXIS 2237

• Court: Court of Appeals of Arkansas
• Decided: June 4, 1986
• Docket: CA CR 85-196
• Status: Published

Opinions

Ernie E. Wright, Special Judge.

The appellant, Lonnie Flurry, was convicted by a jury on the charge of rape and a sentence of twenty years imprisonment was imposed. Five points for reversal are raised in this appeal.

First, it is argued there was no substantial evidence of forcible compulsion to sustain the conviction. While we reverse on another point, we first review appellant’s charge as to the sufficiency of the evidence. Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984).

Ark. Stat. Ann. § 41-1803 (Repl. 1977) provides in part:

(1) A person commits rape if he engages in sexual intercourse or deviate sexual activity with another person:

(a) by forcible compulsion; or ... .

Forcible compulsion is defined in Ark. Stat. Ann. § 41-1801 (Repl. 1977) as follows: “‘Forcible compulsion’ means physical force, or a threat, express or implied, of death or physical injury to or kidnapping of any person.” The prosecuting witness was the daughter of appellant. The rape charge alleged the offense occurred on March 10,1984. At the time the prosecuting witness was approximately fourteen years and eight months of age and in the tenth grade. She resided in the home of her father, the appellant, and her stepmother. Her younger brother, a stepsister and her stepmother’s mother, whom the prosecuting witness referred to as Grandma, also resided in the home. The prosecuting witness testified that on the evening of Saturday, March 10, 1984, her stepmother, stepsister and grandmother went to play bingo. She and her father, whom she referred to as Lonnie, and her younger brother were left at home. Her father told her brother to go to the Sonic and get some malts. She testified that she was already in bed and that when her brother left, her dad came in and started “handling on me and fondling and everything.” She stated,

He started rubbing my back and I was trying to act like I was asleep, because I was scared. And — er—and then he turned me over and started taking off my pants and stuff and I said no, and he, goes — er—yeah, he goes to take them off, and, so, he — er—er—he took off my pants and started — er—he started just rubbing all over me and everything, and then he started having intercourse with me.

She testified she did not kick or scream, that she was upset, crying, and told him no.

In Canard v. State, 278 Ark. 372, 646 S.W.2d 3 (1983) the rape victim was the eleven-year-old daughter of the appellant. The witness testified that her father stopped the car on a gravel road and unzipped her pants, took her leg out, unzipped his pants, took his penis out and started raping her. She testified she didn’t want to, that she was very much afraid of her father, but he did anyway. She referred to the occurrence as rape, further indicating the occurrence was intercourse against her will. This evidence, coupled with the age of the victim, was held to be sufficient for the jury to conclude that forcible compulsion was present. In that case no issue was raised for failure to instruct on a lesser included offense, an issue discussed below in the present case.

In determining the issue of sufficiency of the evidence, we consider the evidence in the light most favorable to the appellee. Maples v. State, 16 Ark. App. 175, 698 S.W.2d 807 (1985).

The established rule is that corroboration is not required in a rape case. Spencer v. State, 255 Ark. 258,499 S.W.2d 856 (1973). We hold that the testimony of the prosecuting witness most favorable to the state, if believed by the jury, was sufficient for conviction.

For his second point, appellant argues the court erred in refusing to grant jury instructions on the lesser included offenses of carnal abuse in the third degree and sexual misconduct. Ark. Stat. Ann. § 41-1806 (Repl. 1977) provides:

(1) A person commits carnal abuse in the third degree if being twenty (20) years old or older, he engages in sexual intercourse or deviate sexual activity with another person not his spouse who is less than sixteen (16) years old.

(2) Carnal abuse in the third degree is a class A misdemeanor.

Ark. Stat. Ann. § 41-1807(1) (Repl. 1977) provides:

A person commits sexual misconduct if he engages in sexual intercourse or deviate sexual activity with another person not his spouse who is less than sixteen (16) years old.

The distinction between sexual misconduct and carnal abuse in the third degree is that the defendant can be convicted of the latter only if he is twenty years old or older, and this age requirement is not an element in the offense of sexual misconduct. It is clear from the record that appellant was more than twenty years old at the time of the alleged offense and that there would be no rational basis for acquitting him of sexual abuse in the third degree and convicting him of the lesser included offense of sexual misconduct.

However, in the case before us the actions and testimony of the prosecuting witness supplied a rational basis upon which the jury might have acquitted appellant of the offense of rape, which requires proof of forcible compulsion, and convicted him of carnal abuse in the third degree. The testimony of the prosecuting witness included in substance the following: that appellant started having intercourse with her when she was in the eighth grade and that this occurred about twice a week, except when she was having her period; that he treated her like someone special; that on one occasion when her grandmother was not at the house he approached her and she stated, “I said no, and he goes why?, and I said because, I said she’s going to be back, and I don’t want to.” She testified that when she responded to sex with him he was more in favor of letting her have things and have her way; that she told Mr. Self when she was reporting the alleged rape that her daddy did it whether she wanted to or not; that her method of resisting was “I just told him no, that I didn’t want to.” The evidence shows the alleged rape occurred on a Saturday night and the prosecuting witness did not report it until she went to school on the following Monday. The record further shows she did not tell her grandmother, with whom she shared her bedroom and with whom she stated she had a close relationship. There was also evidence that on Sunday following the alleged rape the prosecuting witness was angered because her stepmother and her father refused her permission to attend a baby shower for an unwed fourteen-year-old girl.

The state called a younger brother of the prosecuting witness and he testified his sister told him one time that her dad was messing around with her while the witness was sleeping, and that when he banged his head against the wall, as he often did when sleeping, his dad told her they had better get away from each other because her brother was about to wake up.

Laura Richmond, a cousin and lifelong friend of the victim, was called as a witness by appellant. She testified that in a conversation with the victim she asked her if she had ever thought about changing her story about the case, and she said, “Yes, I’ve thought about it a lot, and, but they told me if I did that I would either have to go back into a foster home, into a foster school for girls or I’d have to go live with my dad.” From the record it is clear that there was more than the “slightest evidence” warranting an instruction on the lesser included charge of carnal abuse in the third degree.

In Clark v. State, 244 Ark. 772,427 S.W.2d 172 (1968), the appellant was charged and convicted for the rape of his nine-year-old stepdaughter. There was evidence the appellant choked and raped the child. She testified she tried to push him off, and tried to get away, and that he hurt her. She further testified she did not tell anybody because she was afraid he would kill her. Upon examination, the doctor found that her hymen had been ruptured and torn and he testified in his opinion the condition was caused by a forcible penetration. The trial court refused to instruct on the lesser included offense of carnal abuse. In a unanimous opinion the Supreme Court reversed, stating, “While the little girl testified to acts constituting rape, the jury could possibly have found, since she did not report it, that she consented.”

The mere fact that a defendant testifies and denies committing the alleged criminal act does not justify refusing to instruct on a lesser included offense when there is evidence providing a rational basis for acquitting the defendant on the offense charged and convicting him of a lesser included offense. Clark v. State, supra; Bongfeldt v. State, 6 Ark. App. 102, 639 S.W.2d 70 (1982).

It is the prerogative of the jury to accept all or any part of the testimony of a witness. In Fike v. State, 255 Ark. 956, 504 S.W.2d 363 (1974), the appellant was convicted of rape. The court held it was error to refuse a requested instruction on the lesser included offense of assault, and pointed out:

[T] he jury has the sole prerogative to accept all or any part of a witness’ testimony whether controverted or not. Therefore, the jury had the absolute right, as the trier of the facts, to evaluate the evidence and consider only whether an unlawful assault was committed ....

In Robinson v. State, 269 Ark. 90, 598 S.W.2d 421 (1980), the appellant was found guilty of capital murder. The trial court had refused appellant’s request for an instruction on second degree murder. In reversing, the court said:

No right has been more zealously protected by this court than the right of an accused to have the jury instructed on lesser offenses included in the more serious offense charged. Caton & Headley v. State, 252 Ark. 420, 479 S.W.2d 537 (1972). Where there is the slightest evidence to warrant such an instruction, we have consistently held that it is error to refuse to give it. King v. State, 117 Ark. 82, 173 S.W. 852 (1915); Walker v. State, 239 Ark. 172, 388 S.W.2d 13 (1965); Westbrook v. State, 265 Ark. 736, 580 S.W.2d 702 (1979). This is so, no matter how strongly the trial judge feels that the evidence weighs in favor of a finding of guilty on the most serious charge. Our strong preference for such an instruction has even induced us to approve giving it over the defendant’s objections. Kurck v. State, 235 Ark. 688, 362 S.W.2d 713 (1962), cert. denied 373 U.S. 910 (1963). Irrespective of a request, however, the court may refuse to give such an instruction when there is absolutely no evidence to support it. Frederick v. State, 258 Ark. 553, 528 S.W.2d 362 (1975).

Appellee argues appellant’s request for an instruction on the lesser included offenses was inconsistent with his own testimony in which he denied any sexual activity with the prosecuting witness occurring, and cites Roberts v. State, 281 Ark. 218, 663 S.W.2d 178 (1984). In that case the appellant was charged and convicted of burglary and theft of property. On appeal he contended the court erred in refusing to instruct the jury on the offense of theft of property by receiving. The evidence established scrapes and pry marks appeared on a window of the home that was burglarized. Appellant’s fingerprints appeared on that window. There was other testimony that an earring worn in appellant’s ear was identical to a distinctive matching earring that was not stolen. The appellant called three alibi witnesses to establish that he had committed no theft and that he had been in possession of the matching earring for several years. Under this evidence the court concluded there was no rational basis for acquitting the appellant of the offense charged and convicting him of the lesser included offense of theft by receiving. The court said, “We agree with the trial court’s rationale that, under the facts of this case, the instruction of theft by receiving was not justified.” The evidence in Roberts is not analogous to the evidence in the case before us.

We hold that the evidence clearly required the giving of an instruction on the lesser included offense of carnal abuse in the third degree. The evidence presents a rational basis upon which the jury might have found appellant not guilty of the offense charged, but guilty of carnal abuse in the third degree.

For his third point appellant argues the court erred in refusing to allow appellant to introduce or cross examine on the basis of a taped telephone conversation between the victim and her stepmother that occurred several months after the alleged rape.

The prosecutor made a motion in limine based on the Rape Shield Statute, Ark. Stat. Ann. § 41-1810.1 (Repl. 1977), to preclude appellant from offering or cross examining on the basis of the taped telephone conversation, which included some references to sexual conduct of the victim some time after the alleged rape. The court granted the motion on the basis of the Rape Shield Statute. The Rape Shield Statute explicitly prohibits the admission of evidence of a rape victim’s “prior sexual conduct” by direct examination or through cross examination of the victim or other witnesses to attack the credibility of the victim or to prove consent or any other defense. Ark. Stat. Ann. § 41-1810.2 (Repl. 1977) provides that upon written motion filed by the defendant, the court, after an in camera hearing, may admit such evidence if the relevancy of the evidence is first determined, and if it is determined that the probative value of the evidence outweighs its inflammatory or prejudicial nature. Upon such a determination the statute requires the court to make a written order stating what evidence, if any, may be introduced by the defendant and the nature of the questions that may be permitted in accordance with the applicable rules of evidence.

The statute on its face does not deal with matters that may have occurred subsequent to the alleged offense and we hold that it was error to grant the state’s motion in limine. Camp v. State, 270 Ark. 835, 606 S.W.2d 573 (1980). There may well have been other valid grounds for excluding evidence of the taped telephone conversation, but other grounds are not argued before us, and we do not address them.

For his fourth point appellant argues the court erred in refusing to review in camera the appellant’s proffered evidence of the taped conversation between the victim and her stepmother. As we hold the Rape Shield Statute is not applicable and reverse and remand on other grounds, it follows that appellant has not been prejudiced for any failure of the court to review the proffered evidence in camera.

In appellant’s final point he argues that since the rule excluding witnesses had been invoked the court erred in allowing the state to use a rebuttal witness who had sat in the courtroom during the trial. The prosecutor advised the court that he did not know earlier that the witness would be called. As we are reversing and remanding and this issue will not likely arise upon retrial, we do not address the point. Hill v. State, 253 Ark. 512,487 S.W.2d 624 (1972); Norris v. State, 259 Ark. 755, 536 S.W.2d 298 (1976).

Reversed and remanded.

Cooper and Corbin, JJ., dissent. Mayfield, J., concurs.