Donald L. Corbin, Justice.
Appellant, William Bryant Warren, appeals a judgment of the Pope County Circuit Court convicting him of capital murder. Appellant was tried by a jury, found guilty, and sentenced to life in prison without parole. Our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a) (2).
On appeal, appellant raises four points for reversal.' We find no error in any of these points and affirm the trial court’s judgment of conviction.
I. Directed Verdict
Appellant’s first point on appeal is that the trial court erred in denying his motion for a directed verdict because the penetration of the victim’s vagina and rectum by a foreign instrument, which served as the basis for the underlying felony of rape, was also a contributing cause of the victim’s death. Therefore, appellant argues the proof does not support the underlying felony of rape and his conviction for capital murder pursuant to Ark. Code Ann. § 5-10-101 (a)(2) (Supp. 1991) must be reversed.
The Medical Examiner, Dr. Fahmy Malak, testified the victim died from a combination of injuries which included external injuries to the head, face, nose, lips, right breast, elbows, vagina and anus; trauma and fracture of the skull, with damage to the underlying brain; perforation, rupture and bruising of the vagina and perforation of the rectum which resulted in a connection between the vagina and the rectum and loss of about one pint of blood which was found in the pelvis. Additionally, there was evidence the victim was submerged in water. The Medical Examiner concluded the terminal event was drowning and the cause of death was multiple injuries. The Medical Examiner testified that all the wounds could have been caused by the same object, a circular object such as a shovel handle.
Appellant argues that since the penetrating wounds in the vagina and rectum of the victim were probably made by the same weapon as the wounds to the head and abdomen of the victim, the penetration of the vagina and the rectum was for the purpose of committing murder and not for the purpose of committing rape. Appellant argues, since the penetration of the vagina and anus of the victim caused injuries which contributed to the death of the victim, the penetration is used to support the charge of murder and cannot also be used to support the charge of rape.
In support of his argument, appellant cites cases holding an assault and battery, which caused the death, cannot be used as an underlying felony to support a capital murder charge and burglary cannot be used as an underlying felony to support a capital murder charge when the proof showed the murderer entered the occupied dwelling solely in order to kill those within and not for a separate purpose which would support the burglary charge. Sellers v. State, 295 Ark. 489, 749 S.W.2d 669 (1988); Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987), cert. denied, 111 S. Ct. 218 (1990). Unlike the cases appellant cites, penetration of the victim’s vagina and rectum was not necessarily committed with the same objective as the other blows to. the victims body. While the penetration of the victim’s vagina and rectum with a blunt object caused internal injuries that contributed to the victim’s death, the penetration of the victim’s vagina and rectum was not necessary to cause the victim’s death. An assault and battery is necessary to cause death; and burglary by entering into an occupiable structure is necessary in order to kill the person within. Strawhacker v. State, 304 Ark. 726, 804 S.W.2d 720 (1991). “Rape and first degree battery are separate and distinct crimes . . . with different elements of proof. And neither is a crime which can be subsumed under the other.” Strawhacker, 304 Ark. at 731, 804 S.W.2d at 723. Rape by deviate sexual activity, which was the underlying felony in this case, requires the penetration “of the vagina or anus of one person by any body member or foreign instrument manipulated by another person.” Ark. Code Ann. § 5-14-101(1)(B) (1987). Penetration of the vagina or anus of a person is not an act which is subsumed by the murder as the penetration is not necessary to cause the death.
II. Sexual Gratification
Appellant argues the trial court erred in denying his motion for a directed verdict because there was insufficient proof to support a finding that appellant committed the underlying felony of rape. Specifically, appellant argues the state failed to prove the penetration of the victim’s vagina and anus was done for the purpose of “sexual gratification” as required by Ark. Code Ann. § 5-14-103(a)(1) (1987). The state contends appellant’s argument was not preserved for appellate review because appellant did not specify the basis for his objection in the trial court. At the close of all the evidence, appellant moved for a directed verdict “based on the fact that there is no showing of a rape.” Appellant stated in his motion that the basis was the state’s failure to prove rape. This was sufficient to apprise the trial court appellant was arguing the state failed to prove the elements of rape. “Sexual gratification” is an element of rape. Therefore, appellant’s argument was preserved for appeal.
Appellant argues the state failed to prove the penetration of the victim’s vagina and anus was done for the purpose of “sexual gratification” as required under the statute. Ark. Code Ann. § 5-14-103(a)(1). Section 5-14-103(a)(1) provides in pertinent part:
A person commits rape if he engages in sexual intercourse or deviate sexual activity with another person:
By forcible compulsion[.]
“Deviate sexual activity” is defined in pertinent part as:
any act of sexual gratification involving:
The penetration, however slight, of the vagina or anus of one person by any body member or foreign instrument manipulated by another person[.]
Ark. Code Ann. § 5-14-101 (1)(B) (1987). “Sexual gratification” is not defined in the statute, but we have construed the words in accordance with their reasonable and commonly accepted meanings. McGalliard v. State, 306 Ark. 181, 813 S.W.2d 768 (1991).
We have held it is not necessary for the state to provide direct proof that an act is done for sexual gratification if it can be assumed that the desire for sexual gratification is a plausible reason for the act. McGalliard v. State, 306 Ark. 181, 813 S.W.2d 768; see also Holbert v. State, 308 Ark. 672, 826 S.W.2d 284 (1992). We have previously stated that “when persons, other than physicians or other persons for legitimate medical reasons, insert something in another person’s vagina or anus, it is not necessary that the state provide direct proof that the act was done for sexual gratification.” Williams v. State, 298 Ark. 317, 321, 766 S.W.2d 931, 934 (1989).
Free access — add to your briefcase to read the full text and ask questions with AI
Donald L. Corbin, Justice.
Appellant, William Bryant Warren, appeals a judgment of the Pope County Circuit Court convicting him of capital murder. Appellant was tried by a jury, found guilty, and sentenced to life in prison without parole. Our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a) (2).
On appeal, appellant raises four points for reversal.' We find no error in any of these points and affirm the trial court’s judgment of conviction.
I. Directed Verdict
Appellant’s first point on appeal is that the trial court erred in denying his motion for a directed verdict because the penetration of the victim’s vagina and rectum by a foreign instrument, which served as the basis for the underlying felony of rape, was also a contributing cause of the victim’s death. Therefore, appellant argues the proof does not support the underlying felony of rape and his conviction for capital murder pursuant to Ark. Code Ann. § 5-10-101 (a)(2) (Supp. 1991) must be reversed.
The Medical Examiner, Dr. Fahmy Malak, testified the victim died from a combination of injuries which included external injuries to the head, face, nose, lips, right breast, elbows, vagina and anus; trauma and fracture of the skull, with damage to the underlying brain; perforation, rupture and bruising of the vagina and perforation of the rectum which resulted in a connection between the vagina and the rectum and loss of about one pint of blood which was found in the pelvis. Additionally, there was evidence the victim was submerged in water. The Medical Examiner concluded the terminal event was drowning and the cause of death was multiple injuries. The Medical Examiner testified that all the wounds could have been caused by the same object, a circular object such as a shovel handle.
Appellant argues that since the penetrating wounds in the vagina and rectum of the victim were probably made by the same weapon as the wounds to the head and abdomen of the victim, the penetration of the vagina and the rectum was for the purpose of committing murder and not for the purpose of committing rape. Appellant argues, since the penetration of the vagina and anus of the victim caused injuries which contributed to the death of the victim, the penetration is used to support the charge of murder and cannot also be used to support the charge of rape.
In support of his argument, appellant cites cases holding an assault and battery, which caused the death, cannot be used as an underlying felony to support a capital murder charge and burglary cannot be used as an underlying felony to support a capital murder charge when the proof showed the murderer entered the occupied dwelling solely in order to kill those within and not for a separate purpose which would support the burglary charge. Sellers v. State, 295 Ark. 489, 749 S.W.2d 669 (1988); Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987), cert. denied, 111 S. Ct. 218 (1990). Unlike the cases appellant cites, penetration of the victim’s vagina and rectum was not necessarily committed with the same objective as the other blows to. the victims body. While the penetration of the victim’s vagina and rectum with a blunt object caused internal injuries that contributed to the victim’s death, the penetration of the victim’s vagina and rectum was not necessary to cause the victim’s death. An assault and battery is necessary to cause death; and burglary by entering into an occupiable structure is necessary in order to kill the person within. Strawhacker v. State, 304 Ark. 726, 804 S.W.2d 720 (1991). “Rape and first degree battery are separate and distinct crimes . . . with different elements of proof. And neither is a crime which can be subsumed under the other.” Strawhacker, 304 Ark. at 731, 804 S.W.2d at 723. Rape by deviate sexual activity, which was the underlying felony in this case, requires the penetration “of the vagina or anus of one person by any body member or foreign instrument manipulated by another person.” Ark. Code Ann. § 5-14-101(1)(B) (1987). Penetration of the vagina or anus of a person is not an act which is subsumed by the murder as the penetration is not necessary to cause the death.
II. Sexual Gratification
Appellant argues the trial court erred in denying his motion for a directed verdict because there was insufficient proof to support a finding that appellant committed the underlying felony of rape. Specifically, appellant argues the state failed to prove the penetration of the victim’s vagina and anus was done for the purpose of “sexual gratification” as required by Ark. Code Ann. § 5-14-103(a)(1) (1987). The state contends appellant’s argument was not preserved for appellate review because appellant did not specify the basis for his objection in the trial court. At the close of all the evidence, appellant moved for a directed verdict “based on the fact that there is no showing of a rape.” Appellant stated in his motion that the basis was the state’s failure to prove rape. This was sufficient to apprise the trial court appellant was arguing the state failed to prove the elements of rape. “Sexual gratification” is an element of rape. Therefore, appellant’s argument was preserved for appeal.
Appellant argues the state failed to prove the penetration of the victim’s vagina and anus was done for the purpose of “sexual gratification” as required under the statute. Ark. Code Ann. § 5-14-103(a)(1). Section 5-14-103(a)(1) provides in pertinent part:
A person commits rape if he engages in sexual intercourse or deviate sexual activity with another person:
By forcible compulsion[.]
“Deviate sexual activity” is defined in pertinent part as:
any act of sexual gratification involving:
The penetration, however slight, of the vagina or anus of one person by any body member or foreign instrument manipulated by another person[.]
Ark. Code Ann. § 5-14-101 (1)(B) (1987). “Sexual gratification” is not defined in the statute, but we have construed the words in accordance with their reasonable and commonly accepted meanings. McGalliard v. State, 306 Ark. 181, 813 S.W.2d 768 (1991).
We have held it is not necessary for the state to provide direct proof that an act is done for sexual gratification if it can be assumed that the desire for sexual gratification is a plausible reason for the act. McGalliard v. State, 306 Ark. 181, 813 S.W.2d 768; see also Holbert v. State, 308 Ark. 672, 826 S.W.2d 284 (1992). We have previously stated that “when persons, other than physicians or other persons for legitimate medical reasons, insert something in another person’s vagina or anus, it is not necessary that the state provide direct proof that the act was done for sexual gratification.” Williams v. State, 298 Ark. 317, 321, 766 S.W.2d 931, 934 (1989). Appellant argues that our interpretation of “sexual gratification” in this manner does not reflect the will of the legislature, which has never defined sexual gratification nor changed the definition of deviate sexual activity despite many opportunities to do so. The legislature has also had several opportunities to define sexual gratification since the Williams case was decided and has not chosen to do so. Therefore, following Williams, McGalliard and Holbert, the state had sufficient proof to support the charge of rape and the trial court did not err in denying appellant’s motion for a directed verdict.
III. Hearsay Statement
Appellant argues the trial court erred by excluding hearsay testimony from the victim’s father that the victim had told him she was dating a married man. Appellant contends the information solicited by his question falls under Ark. R. Evid. 804(b)(3) and should have been allowed. Ark. R. Evid. 804(b)(3) provides in pertinent part:
Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
Statement against interest. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability or to render invalid a claim by him against another or to make him an object of hatred, ridicule, or disgrace, that a reasonable man in his position would not have made the statement unless he believed it to be true.
Appellant argues that even today for a woman to admit she is dating a married man to another is to subject her to disgrace and ridicule and that a reasonable woman would not say she was dating a married man unless it was true. Appellant argues he was prejudiced by the trial court’s decision because he was unable to argue that the married man might have murdered the victim when she told him she thought she was pregnant.
We uphold the trial court’s ruling if it was correct for any reason. Chisum v. State, 273 Ark. 1, 616 S.W.2d 728 (1981). The state argues that the trial court’s ruling can be upheld because the question was beyond the scope of direct examination and was irrelevant. “The trial judge has considerable discretion in determining the scope of cross-examination” and we do not reverse absent an abuse of that discretion. Bennett v. State, 308 Ark. 393, 400, 825 S.W.2d 560, 564 (1992). Ark. R. Evid. 611 provides in pertinent part:
(b) Scope of Cross-Examination. Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.
The state only asked the victim’s father about his race, the race of his family and his daughter, the victim, during direct examination. Therefore, the question was outside the scope of direct examination as the state contends. It was within the trial court’s discretion to allow appellant’s question, but it was not error for the trial court to refuse to allow the question. Additionally, if appellant had wished to ask the question of the witness, appellant could have called the witness on direct and asked the question. However, appellant chose not to call any witnesses in his defense.
IV. Photographs
As his last point on appeal, appellant argues the trial court erred in admitting photographs of the victim’s autopsy over his objection. Appellant objected to nine photographs which were admitted over his objection. These photographs are reproduced in the appendix along with the photographs which were admitted and to which he did not object. However, in his argument appellant only specifically refers to three photographs which were introduced over his objection. Therefore, we will only address those photographs for which appellant presents an argument on appeal. They are: State’s Exhibit #56, State’s Exhibit #58, and State’s Exhibit #65.
Appellant claims there were sufficient pictures of the autopsy to which he did not object to show the cause of the victim’s death and it was error to admit the pictures to which he objected because the prejudicial effect of those photographs outweighed the probative value. “The question of prejudicial effect versus probative value is a matter addressed to the discretion of the trial judge, and on appeal” we do not reverse absent a manifest abuse of that discretion. Bennett v. State, 297 Ark. 115, 129, 759 S.W.2d 799, 807 (1988), cert. denied, 111 S. Ct. 144 (1990). The trial court admitted the photographs only after argument by counsel and review of the photographs during which the trial court determined that the photographs were not repetitious and were needed by Dr. Malak to explain his testimony. We have held that “even if photographs are inflammatory in the sense that they show human gore repulsive to the jurors, they are admissible within the discretion of the trial judge if they help the jury understand the testimony.” Richmond v. State, 302 Ark. 498, 503, 791 S.W.2d 691, 694-95 (1990). In this case we cannot say that the trial court abused its discretion. Richmond, 302 Ark. 498, 791 S.W.2d 691.
As to State’s Exhibit #56, appellant argues that it is simply a distant view of State’s Exhibit #55 to which appellant also objected. Dr. Malak’s testimony regarding State’s Exhibit #56 was as follows:
Exhibit 56 is a photograph of [the victim] as I received her. Exactly as she is I photographed the body. The photograph shows that she was wearing a short-sleeve pullover shirt, multi-colored. The shirt was above the breast area and it shows the foam coming from the nose. It is like shaving cream, if you like, around the — mushroom-like around the nose. This indicates that she was breathing air when she was placed in water. It shows also the damage — some damage to the face and the right side of the — of the head. It also indicates — there is a number 3-1-6. This is the case number to indicate this is [the victim], the one I did the autopsy upon.
As to State’s Exhibit #55, Dr. Malak testified as follows:
Exhibit No. 55 is a front view of [the victim] showing her face and also the number to indicate that this is [the] same body. The photograph shows a tear — t-e-a-r on the left eye about the angle of the eye, bruise of the eye, bruise of the nose, and the lips, as well as shows also damage to the right side of the head and also shows the pearl earring on the right side.
The foam around the victim’s nose referred to in State’s Exhibit #56 has been removed in State’s Exhibit #55. Clearly State’s Exhibit #56 was used by Dr. Malak and shows that the victim was breathing when she was placed in the water. Thus it was helpful to the doctor’s testimony and was not repetitive of State’s Exhibit #55. Appellant objected to the introduction of State’s Exhibits #58 & #65 because he contends they are repetitive of State’s Exhibits #59 & #64. The photographs are all essentially of the same view, but they are not identical. State’s Exhibit #59 is a view of the right side of the head before any blood has been cleaned from the face and before the foam has been cleaned from the nose. According to Dr. Malak’s testimony, State’s Exhibit #59 shows damage to the right temple, blood trickling toward the right ear, and foam around the nose. State’s Exhibit #64 is the same view of the right side of the head, but from slightly farther away and after the blood and foam have been cleaned from the face. According to Dr. Malak, the right side of the head was re-photographed after the blood and foam were cleaned up “to show the nature of the wound; to demonstrate exactly what the injuries are; and it shows also the damage to the nose and to the lips and to her right cheek.” Dr. Malak also testified he thought it was important that this photograph showed one pearl earring and a total of four pierced holes in the ear. State’s Exhibit #58 is a photograph of the right temple after Dr. Malak shaved the hair to show the wound and demonstrates that on the right side of the wound there is a circular wound and on the left side there is a tear extension. Dr. Malak testified that the nature of the wound “indicates the direction of — of the blow was coming from above down and to the right and the circular nature of the wound indicates a circular object has been used.” State’s Exhibit #65 is a close-up photograph of the wound to the right temple after the area has been cleaned and shaved which, according to Dr. Malak, shows the circular nature of the rounded object which had been thrust in the bone.
Thus, although the photographs are similar, each photograph was used by Dr. Malak during his testimony to show the nature of the victim’s wounds and were helpful to the jury. Therefore, the trial court did not err in allowing the photos to be admitted.
Under Ark. Sup. Ct. R. 4-3(h), the record has been reviewed concerning the rulings made against the appellant by the trial judge during the trial, and we find no error. For the reasons stated above, we affirm.
Glaze, J., concurs. Holt, C.J., Dudley and Newbern, JJ., dissent.