Silverman v. State

974 S.W.2d 484, 63 Ark. App. 94, 1998 Ark. App. LEXIS 603
CourtCourt of Appeals of Arkansas
DecidedSeptember 23, 1998
DocketCA CR 98-52
StatusPublished
Cited by2 cases

This text of 974 S.W.2d 484 (Silverman 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
Silverman v. State, 974 S.W.2d 484, 63 Ark. App. 94, 1998 Ark. App. LEXIS 603 (Ark. Ct. App. 1998).

Opinion

Terry Crabtree, Judge.

Julius Silverman brings the present appeal, a challenge to the sufficiency of the evidence, from a Jefferson County Circuit Court jury trial convicting him of rape. For his points on appeal, Silverman presents two main arguments: first, appellant challenges the reliability of the State’s conclusions as drawn from the DNA results; and second, appellant challenges the method and timeliness of the eyewitness identification used by the State. Finding no merit in these contentions, we affirm the conviction of the trial court.

In October of 1995 the victim was employed as a nurse at the Tucker Women’s Unit under the Department of Correction. For commuting convenience, the victim had moved in with a friend at the Bachelor Officers’ Quarters (BOQ), a dormitory-type residence for employees of the prison. At approximately 6:30 a.m., on October 6, 1995, the victim left the dormitory to drive her roommate to Pine Bluff. Upon returning alone to the BOQ some time around 7:30 a.m., the victim saw appellant, an inmate, relaxing in the lobby area. The victim began a conversation with appellant, during which, he revealed his name and reasons for his presence at the BOQ.1 The victim asked appellant to attend to the ventilation problems she was having in her room and remained in the lobby while he checked. After appellant returned and disclosed the absence of any noticeable irregularities, the victim went to her room, undressed, and began smoking cigarettes. The victim testified that she also checked the lobby and parking lot and, upon not seeing anyone, began to shower.

The victim further testified that an intruder then entered her unlocked dorm room, reached into, and pulled her out of the running shower. The intruder managed to cover his face and force the victim onto her roommate’s bed where he then penetrated her vagina with his penis. While the victim did not appear to form a positive identification of the assailant during the attack, she was able to see his profile and ascertain that he was a black male, taller than she.

After the attack and upon the assailant leaving, the victim dressed and drove herself to the Tucker prison to report what she thought to be an attempted rape.2 There, she told the investigators that the perpetrator’s shirt would be wet since he had pulled her out of the shower. Although the victim did not immediately label appellant as the rapist, she did so during subsequent interviewing with the authorities. The ensuing investigation uncovered a wet Department of Correction guard shirt in one of the BOQ rooms and a pair of wet boxers and wet towels behind the commode in Silverman’s cell.

The victim was later shown a photo lineup from which to attempt to identify the assailant. Though Silverman’s picture was among those she reviewed, the victim was unable to make a positive identification. A year later, during an in-person lineup, the victim identified appellant as the rapist.

At trial, DNA evidence was presented by the State in an attempt to link the appellant to the crime. Both Silverman and the State presented expert testimony on the DNA testing procedures and the resulting conclusions. Although the experts differed as to the weight and accuracy to be accorded the results, both experts agreed that the appellant could not be ruled out as the attacker.

At the close of the State’s case-in-chief, appellant moved for a directed verdict. The motion was denied. The jury found the appellant guilty of rape and sentenced him to ten years in the Arkansas Department of Correction to run concurrently with any sentence the appellant was serving. Appellant challenges both the trial court’s denial of the motion for a directed verdict and the subsequent conviction of rape.

We treat the denial of motions for a directed verdict as a challenge to the sufficiency of the evidence. Johnson v. State, 326 Ark. 3, 929 S.W.2d 707 (1996). Evidence is sufficient to support a conviction if the trier of fact can reach a conclusion without having to resort to speculation or conjecture. Dixon v. State, 310 Ark. 460, 839 S.W.2d 173 (1992). In order for circumstantial evidence to be sufficient, it must exclude every other hypothesis consistent with innocence. Davis v. State, 317 Ark. 592, 879 S.W.2d 439 (1994). Such a determination is a question of fact for the factfinder to determine. Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772 (1993). Finally, when reviewing the sufficiency of the evidence, it is only necessary for an appellate court to ascertain that evidence which is most favorable to appellee, and it is permissible to consider only that evidence which supports the guilty verdict. Johnson, supra (citations omitted).

For his first point, appellant attacks the reliability of the DNA results and their concomitant statistical probabilities. Silverman argues that the testing procedure, used by the State in this case, was unreliable since the underlying DNA samples were mixed. At trial, Silverman presented a DNA expert who had reviewed the State’s results and testified that the State’s deductions were not entirely consistent with the test results. Silverman also presented lab results from a independent DNA laboratory to reveal inconsistencies with the State’s sampling and conclusions. Specifically, appellant challenged the statistical probabilities offered by the State as they related to the results drawn from the tests. While appellant presented evidence at trial bearing on the reliability of the DNA evidence, on appeal, appellant fails to cite any legal authority supporting his position that this evidence is now insufficient.

Reconciling conflicts in the testimony and weighing the evidence are matters within the exclusive province of the jury and the jury’s conclusion on credibility is binding on this court. Ashley v. State, 22 Ark. App. 73, 732 S.W.2d 872 (1987). Jurors are allowed to draw upon their common knowledge and experience in reaching a verdict from the facts directly proved. Id.

In Moore v. State, 323 Ark. 529, 547, 915 S.W.2d 284, 294 (1996), the Arkansas Supreme Court determined that DNA evidence was no longer ‘novel scientific evidence’ and therefore not subject to the preliminary hearing called for in Prater v. State, 307 Ark. 180, 820 S.W.2d 429 (1991). While, in cases involving DNA evidence, the trial court must still make a preliminary inquiry into the reliability of the expert’s methodology, appellant does not raise this issue on appeal nor mention whether such a preliminary inquiry was in fact ever held. Instead, it appears, appellant chose to challenge the reliability of testing at trial. In Moore, the court upheld the trial court’s determination that:

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Related

McBride v. State
257 S.W.3d 914 (Court of Appeals of Arkansas, 2007)
Hull v. State
241 S.W.3d 302 (Court of Appeals of Arkansas, 2006)

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Bluebook (online)
974 S.W.2d 484, 63 Ark. App. 94, 1998 Ark. App. LEXIS 603, Counsel Stack Legal Research, https://law.counselstack.com/opinion/silverman-v-state-arkctapp-1998.