Griswold v. State

801 S.W.2d 270, 304 Ark. 168, 1990 Ark. LEXIS 592

• Court: Supreme Court of Arkansas
• Decided: December 17, 1990
• Docket: CR 90-158
• Status: Published

Opinions

Dale Price Justice.

Thomas Lloyd Griswold appeals his conviction of three counts of rape. He was sentenced to three life terms to be served concurrently. The first trial of this mater resulted in a conviction of three counts of rape which was affirmed by this court in Griswold v. State, 290 Ark. 79, 716 S.W.2d 767 (1986). In Griswold v. State, 298 Ark. 397, 768 S.W.2d 35 (1989), we remanded for the trial judge to determine if the appellant was denied effective assistance of counsel. A new trial was ordered, and Griswold now contends the trial court erred in holding that Dr. Beth Griswold could not testify as to the victims’ prior exposure to sexual acts, terminology and fantasies. We affirm.

The appellant was convicted of raping his two nieces, ages thirteen and ten, and his five-year-old stepdaughter. The appellant’s nieces and their mother (the appellant’s sister) were living in the same house with the appellant and his wife. The appellant’s wife had a daughter and two sons by a former marriage who also resided in the house. The rapes of the three girls allegedly occurred while their mothers were working at a poultry plant and the appellant was home alone with the children after school.

The appellant’s nieces subsequently moved into the home of their mother’s brother, Homer Griswold. Homer Griswold was the brother of the appellant and married to Dr. Beth Griswold, a psychologist. The nieces lived with Homer and Beth Griswold for approximately one year. At his trial, the appellant attempted to show through Dr. Griswold’s testimony that the children were thoroughly familiar with sexual acts, terminology and fantasies at an early age. The prosecutor’s objection to this line of questioning on the basis of relevancy was sustained by the trial court. The discussion of the ruling was moved into chambers, where it was learned the appellant intended to have Dr. Griswold testify to statements allegedly made to her by her nieces. The girls’ statements consisted of their exposure to sexual liaisons between their mother and several men and overhearing profane language used during those instances. The appellant argued Dr. Griswold’s testimony was relevant because the jury need to know how the victims acquired their knowledge of sexual matters at such a young age. The trial court determined the proffered testimony of Dr. Griswold was collateral, irrelevant, and had no bearing on the elements of the alleged rapes. The court stated that “it is immaterial where they [the victims] may have gained knowledge of sexual acts.”

Griswold appeals the above ruling, arguing this testimony was relevant, and the trial court’s failure to allow it led to conjecture by the jury that the victims learned all they knew about sexual acts from the appellant. We find no merit to this argument. A.R.E. Rule 401 states:

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

A.R.E. Rule 402 states “[e]vidence which is not relevant is not admissible.” A ruling on relevancy is discretionary, and the trial court’s decision will not be reversed unless an abuse of discretion is found. Kellensworth v. State, 278 Ark. 261, 644 S.W.2d 933 (1983). The proffered testimony of Dr. Griswold had no bearing on the question of the appellant’s guilt. How, when and from whom the victims acquired their knowledge of sexual matters did not make it more or less likely that the appellant committed rape. The trial court did not abuse its discretion in its ruling on this testimony. In addition, the proffered testimony of Dr. Griswold was properly excludable as hearsay. A.R.E. Rule 802; Ward v. State, 293 Ark. 88, 733 S.W.2d 728 (1987).

The Arkansas Supreme Court and Court of Appeals Rule 11 (f) requires that the appellant abstract all objections decided adversely to him in the trial court, together with such parts of the record which are needed for an understanding of the objection when the sentence is death or life imprisonment. The attorney general is to make certain that all objections have been abstracted and brief all points argued by the appellant as well as any other points that appear to involve prejudicial error. Neither party has complied with Rule 11(f), and in order to save the time which would be required to have the case rebriefed, we have examined the record and found no meritorious objections decided adversely to Griswold and no prejudicial error.

Affirmed.

Holt, C.J., Dudley and Newbern, JJ., dissent.