Marcum v. State

771 S.W.2d 250, 299 Ark. 30, 1989 Ark. LEXIS 270

• Court: Supreme Court of Arkansas
• Decided: May 30, 1989
• Docket: CR 88-196
• Status: Published

Opinions

Steele Hays, Justice.

Appellant Howard Marcum was convicted of rape and first degree sexual abuse for offenses involving his daughters A, aged 13, and B, aged 16. Appellant has appealed from the judgment sentencing him to life and ten years for the crimes. Three points of error are presented: The trial court erred in permitting a social worker to describe a profile of sexually abused children, in allowing a physician to testify that the victim had been sexually active and in limiting defense counsel’s cross-examination. Finding no error, we affirm the judgment entered on the convictions.

The Facts

The facts are summarized in the following narrative: Barbara and Howard Marcum married in 1972. Each had children by prior marriages and the couple had four children of their own. Howard’s work as a welder kept him away at times.

Around the end of 1985, A, who was then ten or eleven, intimated to her mother that her father was sexually abusing her. Barbara confronted Howard and threatened divorce. Howard denied the charges and privately urged the child to tell her mother they were untrue, which she did.

At another time Barbara Marcum discovered that A and her 18 year old half brother, Stacey Hackwith, had been in bed together. The three of them talked about it tearfully, with Barbara stressing that such things were very wrong. Prompted by that discussion A told her mother about having sexual intercourse with her father. Together they addressed Howard who angrily denied the accusations and blamed Barbara for believing them. Barbara told her daughter if the charges were true she would see that something was done about it but if not, much harm could result. Her father told A he could go to jail and the family would break up and again she told her mother she had lied.

Around January 1,1988, B, Howard Marcum’s daughter by an earlier relationship, came to live with the Marcums. She was then sixteen years old and had not seen her father since she was two. On the morning of February 3 Howard Marcum came into B's bedroom and began fondling her breasts and genitals. She resisted these advances and insisted that he leave. He did but later returned and forcibly fondled her again. When B continued to resist he went into a rage and told her to pack her things. When she put her bags in the truck he refused to let her leave and eventually she fled, frightened and crying, to a neighbor’s house where she called her stepmother, who made arrangements for her to stay with a friend. On the following day B reported the events to the police and to Ms. Debbie Palsrud of the Arkansas Department of Human Services. Ms. Palsrud contacted A at school to inquire about her relationship with her father. At that point the child denied any sexual contact with her father.

On February 8, 1988, Howard Marcum was arrested for sexual abuse of B. About a week later Barbara Marcum and her daughter talked again and Barbara pointedly asked for the truth. The child told her that her father had been having sexual intercourse with her regularly since she was seven or eight. Mrs. Marcum called the police and told them her daughter would be coming in to make a statement regarding the matter. This was done within a day or two and additional charges were filed against Howard Marcum. Howard Marcum testified in his own behalf and denied any improprieties with either daughter.

Called by the state, Dr. Thomas J. Simpson testified that he was a board certified gynecologist with twenty-eight years of practice, including extensive experience in rape and sexual abuse. He examined^ on February 22,1988, and took a history from her that her father had been having sex regularly with her over a period of seven years up to and including the previous month. She told him that except for her father she had had sexual relations eight times. He described the opening of the vagina as “very relaxed” and compatible with her having had sexual relations more or less on a long-term basis and not just of “very recent origin.” His findings were, he said, consistent with long-term repeated sexual relations and not just seven or eight times. Asked how he made that distinction, Dr. Simpson answered:

The opening to the birth canal we call the introitus and birth canal. In her case, it’s very relaxed. It admits two to three fingers and the hymenal ring showed evidence of having been penetrated at some point in time where there were tears, but they were old, healed and the amount of relaxation in the opening is certainly more compatible with someone who has had sexual relations on a longer term basis than just a few encounters . . . People who have had sexual relations and marital status over a period of years will be very similar to what we observed with this patient.

Such condition could not, he stated, be attributed to frequent masturbation.

Ms. Palsrud testified about her background, training and experience in the investigation of child abuse. When she was asked if there was a recognizable pattern of behavior by children subjected to sexual abuse, defense counsel objected to her testifying as an expert. The objection was overruled and Ms. Palsrud proceeded to discuss child sexual abuse in general. She said that after interviewing the older child at the police station, she contacted Barbara Marcum about other possible victims and was told she needed to talk to the younger daughter. When she spoke with A at school the child was shocked, confused and angry, and denied any inappropriate contact with her father. Ms. Palsrud said A wanted to know what would happen if she said anything and whether she would have to go to court. Counsel for appellant again objected, this time on the basis of hearsay, and renewed the argument that the witness did not have the qualifications of an expert. The trial judge stated that he had already recognized Ms. Palsrud as expert, but would sustain the objection.

I

The Trial Court Erred In Allowing Testimony Of The Social Worker, Stating That The History Given By The Victim Was Consistent With The Profile Of Sexual Abuse Victims.

The only objections before the trial court to the testimony of Ms. Palsrud was on the basis of hearsay and to her qualifications as an expert. The argument on appeal, however, is that it was error to permit Ms. Palsrud to testify that the history given by A was consistent with the profile of sexual abuse victims. Appellant cites the case of Russell v. State, 289 Ark. 533, 712 S.W.2d 916 (1986), where it was held to be error for a psychologist to testify that the history given by a victim was consistent with sexual abuse of a child, the reason being that no opinion of an expert was needed, inasmuch as the matter was not beyond the common knowledge and comprehension of the jury. We found, however, that because there was overwhelming evidence of guilt, the error was harmless.

We need not decide whether the facts of this case were such that an opinion of an expert might have been more useful to the jury, or whether, as in Russell, the error was harmless, because appellate review of evidentiary rulings of the trial court is limited to the specific legal issue raised by the objection of trial counsel and it is well settled that an appellant may not object in the trial court on one ground and argue another ground on appeal. Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986).

II

The Trial Court Erred In Allowing Testimony By A Medical Doctor Stating That The Victim Had Been Sexually Active For A Number Of Years.

Appellant maintains that it was error to permit Dr. Simpson to testify that A had been sexually active. If such evidence were offered by the defense, it is clear that its introduction would be subject to the rape shield statute requiring the defendant to make a timely motion in writing and to establish admissibility in accordance with the statute. Ark. Code Ann. § 16-42-101 (c) (10) (1987). Fields v. State, 281 Ark. 43, 661 S.W.2d 359 (1983); Duncan v. State, 263 Ark. 242, 565 S.W.2d 1 (1978). But the rape shield statute applies to evidence offered by the defense and thus a different problem arises when such evidence is offered by the state.

Appellant relies solely on Brewer v. State, 269 Ark. 185, 599 S.W.2d 141 (1980). But the cases are palpably distinguishable. In Brewer, the appellant was convicted of rape and kidnapping. The proof was that the victim and her boyfriend stopped at a service station. When the boyfriend went to the restroom, the appellant, armed with a pistol, got in the car and ordered the victim to drive away. The appellant directed her to a secluded area where she was raped. The appellant then took the wheel but was soon apprehended when he stopped at a traffic light. The victim sustained lacerations to the hymenal ring which were bleeding when she was examined following the assault. There was blood on the appellant’s clothing and on the back seat of the car. Appellant’s version was that the victim had asked him for directions, and when she could not understand him he offered to drive her to the location. He claimed he had only been in the car some three blocks when stopped by the police. While questioning the victim on direct examination the prosecutor elicited from her that she had never had sexual intercourse previously. Appellant moved for a mistrial which was refused and the refusal was cited on appeal as reversible error. The argument was rejected in this language:

It makes no difference whatsoever whether the victim of rape was a virgin or a prostitute. The offense of rape is committed if the person engages in sexual intercourse or deviate sexual activity with another person by forcible compulsion. Therefore, prior sexual conduct has no relevancy to the issue in question. We do not think the prejudice was so great as to call for a mistrial, and we think the court acted properly in continuing the trial after admonishing the jury to disregard the improper question and answer.

In the context of the Brewer case that was undoubtedly correct — whether the victim was or was not a virgin was irrelevant to any disputed issue of fact. Appellant and the victim were total strangers to each other and the victim’s sexual history was entirely beyond the scope of the trial.

It does not follow, however, that such evidence is invariably irrelevant. When a female at the very threshold of puberty maintains that her father has been having sexual intercourse with her on a regular basis, sometimes as often as two or three times a week since early childhood, medical evidence that the child demonstrates physical characteristics consistent with prolonged sexual activity has an unmistakable relevance to the factual issue.

While we find no cases of our own touching directly on this subject, cases from other jurisdictions offer some guidance. The sexual history of the victim is frequently said to be irrelevant in rape and sexual abuse, however, the recitation of the rule is often framed in equivocal language such as, “usually,” or “generally.” In Fields v. State, supra, for example, this court stated that it was not “relevant per se.” In State v. Garcia, 673 P.2d 955 (Ariz. 1983), the court held that testimony by a physician that the victim stated to him that she had never had sexual intercourse before the alleged rape had relevance to show that sexual intercourse had occurred on the night in question. In People v. Johnson, 671 P.2d 1917 (Colo. App. 1983), the court held it was not err or for the physician and victim to testify that the victim was a virgin, reasoning that while the Colorado rape shield statute presumes such evidence to be irrelevant, the statute does not specifically prohibit the victim from testifying to the absence of prior sexual activity. In Forrester v. State, 440 N.E.2d 475 (Ind. 1982), a physician testified about the condition of the victim’s external genitalia and that her hymen was recently torn. The defendant argued that this proof was inadmissible because it permitted the jury to infer virginity. The court rejected this challenge, pointing out that the rape shield statute was designed to shield the victim, not the accused. In State v. Singleton, 691 P.2d 67 (N.M. App. 1984), testimony by the victim that she pleaded with the defendant not to rape her because she was a virgin was held to be harmless error. In Jenkins v. State, 274 S.E.2d 618 (C.A. Ga. 1980), the court rejected an argument by appellant that the trial court should have declared a mistrial when a physician testified the victim was a virgin, holding that the evidence was relevant under the circumstances of the case. See also Darrow v. State, 451 So.2d 394 (Cr.App. Ala. 1984), State v. Puyatt, 315 S.E.2d 574 (W. Va. 1984), and Oswald v. State, 715 P.2d 276 (Ala. App. 1986).

Furthermore, we have previously held that this specific type of evidence is relevant. “[W]e will allow such testimony to show similar acts with the same child or other children in the same household when it is helpful in showing ‘a proclivity toward a specific act with a person or class of persons with whom the accused has an intimate relationship.’ ” Free v. State, 293 Ark. 65, 732 S.W.2d 452 (1987), quoting from White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986).

We conclude that in the context of this case the testimony of Dr. Simpson was relevant and, therefore, its admissibility is governed by A.R.E. Rule 402 and 403. These rules provide that all relevant evidence is admissible unless its probative value is substantially outweighed by the danger of unfair prejudice. The trial court made that determination in this case by weighing those considerations and deciding that the medical proof offered by the state was not substantially outweighed by the danger of unfair prejudice, at the same time he elected to permit the defendant to counteract that evidence by proof of the sexual history of the victim which would ordinarily have been barred by the rape shield statute. We cannot say that handling of the issue was wrong or that the discretion applicable to evidentiary rulings of the trial court was abused.

Ill

The Trial Court Erred In Limiting Defense Counsel’s Cross-Examination Of Purported Rape Victim To Incidents Of Masturbation And Sexual Activity With Two Other Persons.

Pursuant to the rape shield statute, Ark. Code Ann. § 16-42-101 (1987), the appellant moved to permit the introduction of evidence of prior sexual activity between the prosecutrix and other persons to rebut proof by the state of her sexual maturity. The defense proposed to prove masturbation by A and acts of sexual intercourse between A and Stacey Hackwith, her half brother, and with another individual. At a pretrial hearing the trial court held that the defense would be permitted to offer this proof. When questioned on direct and on cross-examination A denied the accusations of masturbation but testified with evident candor that she had had intercourse on a single occasion with Stacey Hackwith and on a daily basis for exactly one week with an unnamed boyfriend.

On appeal the appellant contends he should not have been restricted to the foregoing incidents, that he should have been permitted to offer additional proof. We must reject the argument because we find no proffer in the record of the evidence which the appellant proposed to introduce. Whether an appellant is a defendant making a tender under the rape shield statute, or a litigant in general, there must be a proffer in order to obtain a reversal on the basis of a wrongful exclusion of evidence. We have often said we will not reverse a case for another trial only to find that the appellant could not produce the evidence he maintains was wrongly rejected in the first trial, or that such proof is lacking in substance. He must, in other words, demonstrate that he was prejudiced by the exclusion of available evidence. Duncan v. State, 263 Ark. 242, 565 S.W.2d 1 (1978); Hill v. State, 250 Ark. 812, 467 S.W.2d 179 (1971).

For the reasons stated, the judgment is affirmed.

Hickman, J., concurs.