Robert L. Darrall, Jr. v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

MARGARET MEADS, JUDGE

DIVISION II

ROBERT L. DARRALL, JR.

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR00-253

October 25, 2000

APPEAL FROM THE LONOKE COUNTY CIRCUIT COURT

[NO. CR-97-302]

HON. LANCE L. HANSHAW,

CIRCUIT JUDGE

AFFIRMED

Robert Darrall, Jr., was convicted by a Lonoke County jury of the rape of E.Y., and sentenced to twenty years' incarceration in the Arkansas Department of Correction. On appeal, appellant argues (1) that the trial court denied him the right to testify in his own behalf and to present witnesses in his defense by threatening to permit the use of evidence from a prior charge of which he was acquitted; and (2) that there was insufficient evidence presented by the State to support his conviction for rape. We affirm.

E.Y., appellant's former stepdaughter, testified that beginning in 1989 when she was six years old until 1993, appellant abused her sexually. E.Y. did not tell anyone about appellant's abuse until 1997, because appellant threatened her with physical harm and told her that she would only hurt her family if she told.

Appellant contends there is insufficient evidence to support the rape conviction. We are precluded from addressing appellant's insufficient-evidence argument. Appellant did not argue below, as he does now on appeal, that the State failed to present any medical testimony to corroborate E.Y.'s testimony; that E.Y.'s counselor was not called as a witness; that no police officers were called to testify; or that E.Y.'s mother waited until after her divorce from appellant was final to bring charges against him. His directed-verdict motion to the trial court contended only that E.Y. had waited years to disclose the evidence and that there was no proof that he penetrated her. It is well settled that an appellant cannot change his argument on appeal. Hill v. State, 325 Ark. 419, 931 S.W.2d 64 (1996).

Appellant also argues that the trial judge denied him the right to testify on his own behalf and to present witnesses in his defense by threatening to allow evidence from a prior sexual molestation charge of which he was acquitted. In a pretrial hearing, the trial court ruled that the State could not use the testimony of the victim, D.T., in its case-in-chief because appellant had been acquitted and the evidence would be highly prejudicial. However, after the State's case-in-chief and prior to appellant's case, the trial court ruled that if appellant testified or called witnesses who placed evidence of his character into issue, the State might call D.T. to rebut the testimony. Because of this ruling, appellant decided not to testify or to call any witnesses on his behalf.

This argument is also procedurally barred from our consideration. Because appellant did not testify or present any witnesses on his behalf, the State did not present D.T.'s testimony. We believe this is comparable to the situation in Harris v. State, 322 Ark. 167,907 S.W.2d 729 (1995), wherein our supreme court held that in order to raise and preserve for review a claim of improper impeachment with a prior conviction, the defendant must testify. To accomplish the weighing of the prior conviction's probative value against its prejudicial effect, the reviewing court must know the precise nature of the defendant's testimony, which cannot be known when the defendant does not testify. Id. The Harris court further held that when the defendant does not testify, the reviewing court has no way of knowing whether the State would have sought to impeach with the prior conviction, and any possible harm would be wholly speculative. Id. (citing Smith v. State, 300 Ark. 330, 778 S.W.2d 947 (1989)). Moreover, we cannot assume that the trial court's adverse ruling motivated the defendant's decision not to testify. Id.

Although the present case concerns the use of a previous acquittal rather than a prior conviction, we adopt and apply the supreme court's reasoning in Harris. Because appellant did not testify, we cannot know whether the State would have attempted to impeach his character with D.T.'s testimony; therefore, any harm is purely speculative. We will not reverse absent a showing of prejudice, as prejudice is not presumed. Harris, supra.

Affirmed.

Pittman and Hart, JJ., agree.