Sidney Harvey v. State of Arkansas

ar04-739

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

CACR04-739

April 27, 2005

SIDNEY HARVEY APPEAL FROM PULASKI COUNTY

APPELLANT CIRCUIT COURT

NO. CR 2003-1749

V.

HONORABLE WILLIAM LUPPEN

STATE OF ARKANSAS SPECIAL JUDGE

APPELLEE AFFIRMED

Andree Layton Roaf, Judge

Sidney Harvey was convicted of kidnapping and rape and sentenced to forty years' imprisonment. On appeal, Harvey argues that the trial court erred in failing to grant his motions for a mistrial and continuance. Harvey also challenges the sufficiency of the evidence supporting his rape and kidnapping convictions. We affirm.

Harvey was charged with kidnapping and raping his former girlfriend, Belinda Rainey, and stood jury trial in Pulaski County Circuit Court. A pretrial hearing was held on March 15, 2004, and Harvey moved for a continuance based on the unavailability of a witness, Officer Tommy Hudson, who had taken Rainey's recorded statement at the police station. A copy of the subpoena does not appear in the addendum; however, from the hearing, it appears that Harvey subpoenaed Hudson on February 27, 2004. Hudson was unable to attend the trial due to a previously planned vacation. Hudson had taken two statements from Rainey. One of the statements was recorded, but not given under oath. A second, shorter statement was given under oath, which basically included the allegations of the crimes and identified Harvey as the perpetrator of the crimes. The trial court denied Harvey's motion for continuance.

The trial proceedings were held on March 16, 2004. Before the trial began, Harvey renewed his motion for a continuance based on Hudson's unavailability and asserted that Hudson had made himself unavailable despite his diligent efforts to get him at the trial. Harvey argued that Hudson's attendance at trial was crucial because he took a lengthy and detailed statement from Rainey and spent quite some time with her; because the statement Hudson collected is inconsistent with statements Rainey made to others and statements Harvey anticipated that she would make during her testimony; and because Hudson's testimony was relevant to Rainey's credibility because he could offer testimony regarding his observations of her demeanor during the statement. The trial court denied Harvey's motion, noting that Hudson would not be able to testify regarding the statements Rainey had made because they were hearsay; that Hudson could not be certain that Rainey would offer inconsistent testimony because she had yet to testify; and that, in the event that Rainey did testify inconsistently, Harvey could impeach her with the sworn statement. Further, the trial court found that credibility was an issue for the jury.

During the trial, the following was established. Harvey and Rainey had been dating for twelve years before the incident. On March 30, 2004, Harvey gave Rainey a letter indicating that their relationship was over. It is undisputed that on April 9, 2004, Harvey arrived at Rainey's home at around 10:30 p.m. According to Rainey, Harvey had called and asked her to meet him outside of her house so that he could return some personal items. Harvey, however, testified that Rainey had phoned and asked him to come over and pick up some pictures that belonged to him. Rainey and Harvey met in front of her home and began talking. Rainey stated that she was sitting sideways in Harvey's car and that her legs were hanging out. When the conversation became heated, Harvey grabbed her by the neck and took off in the car with the car door open and her legs hanging out of the car. When Harvey made a left turn, the car door began to shut and she had to quickly pull her legs into the car to prevent being injured. During the drive to his apartment, Harvey made Rainey wear her seatbelt, forbade her to move her hands, and repeatedly beat her and hit her in the face. Once at his apartment, Harvey marched Rainey upstairs, nudging her in her back. Then, Harvey made her undress, interrogated her, and beat her with a belt. When Rainey could not respond to Harvey's questions because her throat was dry, Harvey permitted Rainey to go to the kitchen to get something to drink. Thereafter, Harvey made her get into his bed, watch a pornographic movie that Rainey thought was recorded from HBO, and then forced her to have sexual intercourse with him. Rainey admitted that she did not tell Harvey to stop or say "No," but stated that she was afraid to do so. She said that Harvey had told her that if she did not cooperate she would not make it back home that night. Rainey said that she cooperated during the sexual intercourse because she feared being beaten again, and that Harvey forced her legs apart and proceeded to have sex with her.

After intercourse, Harvey locked his arms and legs around Rainey to keep her from moving. She testified that, in the past when the two had been together sexually, Harvey had never put his arms and legs across her. Once Harvey drifted off to sleep, Rainey extricated herself, gathered her clothes and left his apartment. She stated that she got dressed outside and flagged down a passerby, who gave her a ride home. Rainey's sister-in-law was calling when Rainey arrived home, and Rainey told her what had happened. When Rainey finished talking to her sister-in-law, she did not phone the police immediately, but instead went to see her employer, Sharon Palmer, who lived down the street, to explain why she would not be reporting to work later on that day. Palmer testified that, when Rainey came to see her, she observed bruises on Rainey's body and that she had never seen Rainey cry like she did on that day. After speaking with Palmer, Rainey then called the police.

During cross-examination, a redacted version of Rainey's statement to Officer Hudson was admitted into evidence. Harvey used this statement to point out inconsistencies in Rainey's testimony. Harvey pointed out that Rainey had testified that the door slammed when Harvey turned the corner, but that, in her statement, she stated that the door slammed when Harvey took off in a fishtail motion. Harvey also pointed out that Rainey had testified on direct that, when she and Harvey arrived at his apartment, Harvey nudged her in the back to force her up the stairs, but that, in her statement, Rainey did not mention being nudged to Officer Hudson. Harvey further pointed out that Rainey failed to mention other parts of her testimony during her statement to Officer Hudson, such as the fact that she was permitted to get something to drink while at Harvey's house; that Harvey had put a towel on the bed before ordering Rainey to get in; that she did not mention being kidnapped to Officer Hudson or the good Samaritan who had given her a ride home; and that she did not mention speaking with her sister-in-law after she had arrived back home.

Officer Jackie Parker responded to Rainey's call to police and transported Rainey to University Hospital for a rape examination. Parker noted that Rainey was upset and also observed bruises on her body. Parker took an incident report, which indicated that Harvey had gone to Rainey's home and asked her to accompany him to his apartment; that, when she refused, Harvey forced her into his car and took her to his apartment; that, once at his apartment, Harvey beat and raped her.

Once at the hospital, Angela Duncan examined Rainey. Duncan stated that Rainey had told her that Harvey had come to her home, forced her into his car, and drove around for a period of time while he backhanded her repeatedly; that, when they arrived at his home, he threatened her, forced her to strip, and forced her to watch a "dirty movie" that was recorded from HBO. Duncan observed multiple bruises on Rainey's body, and the pelvic examine revealed exterior vaginal bruising. Regarding the absence of interior vaginal bruising, Duncan testified that it was not unusual that Rainey did not suffer vaginal tearing or bruising during the incident because Rainey is of childbearing age and is currently taking estrogen, which enables the vagina to stretch. Duncan opined that the lack of interior vaginal bruising does not mean that a rape did not occur.

At the close of the State's case-in-chief, Harvey moved for a directed verdict challenging the sufficiency of the evidence supporting the kidnapping charge because, Harvey argued, the State failed to present evidence that Rainey was forced or restrained against her will. Harvey argued that Rained had testified that she voluntarily entered his vehicle; that he never used force against her to get her into the vehicle; and that she voluntarily exited the vehicle when the two arrived at his apartment. Concerning the rape charge, Harvey asserted that the evidence was insufficient because Rainey never refused him nor told him that she did not want to engage in sexual intercourse. The motion was denied.

Harvey testified in his own defense that he arrived at Rainey's house on the evening of April 9 to pick up his pictures. When Rainey came to his car, however, she did not have the pictures and began accusing him of having a relationship with another woman. Harvey said that when he told Rainey he was going home, she did not make any effort to get out of his car, so he pulled off. Harvey explained to Rainey that once he arrived at his home in Sherwood that he would not be returning to Little Rock. According to him, Rainey did not respond. Harvey testified that Rainey hit him on the right side of his face during the drive, and admitted striking Rainey in the face, but said that it was a matter of reflexes after she had struck him. He denied grabbing Rainey by the neck or holding her down during their ride from her house to his apartment.

Once at his home, he and Rainey exited his vehicle and went into his apartment. Harvey denied marching or nudging Rainey up the stairs. He testified that he and Rainey sat in his living room and that Rainey kicked him in the leg. In response, Harvey removed his belt and whipped Rainey, who, according to Harvey, was fully clothed. He stated that he realized that he had injured Rainey and he stopped hitting her and went to his bedroom, leaving Rainey in the living room. He testified that Rainey undressed in the living room and then came into the bedroom and got into bed with him. Harvey said that at no time did he force Rainey to undress or watch a pornographic video. He admitted having sexual intercourse with Rainey but denied that it was by force. He testified that Rainey did not resist him or otherwise indicate that she did not want to have sexual intercourse with him. Afterward, Rainey asked Harvey to take her home, and Harvey did not respond, reiterating that he had told Rainey that he would not be returning to Little Rock once they reached Sherwood. Harvey said that Rainey got out of the bed, got dressed, and that he watched her leave his apartment.

At the close of Harvey's testimony, the defense rested and renewed its motion for directed verdict. Harvey challenged the kidnapping charge by arguing that there was no evidence of force or restraint. Harvey alternatively argued that if there was minimal evidence of force or restraint, this evidence does not show beyond a reasonable doubt that Rainey was transported by force or restraint against her will. He also argued that there was no evidence of forcible compulsion, thus, he was entitled to a directed verdict on the rape charge. The motions were again denied, and the case was sent to the jury.

After deliberating, the jury returned to the courtroom and presented its verdict forms to the trial court. The trial judge read the following in open court, "We, the jury, find Sidney Harvey guilty of rape. We, the jury, find Sidney Harvey not guilty of kidnapping." The jury foreman then responded, "No, mistake," and another juror also spoke up indicating that a mistake had been made. The jury foreman informed the trial court that the jury had filled out the wrong verdict form. Following a recess, the trial court polled the twelve jury members, who indicated that they agreed with the guilty verdict for rape but disagreed with the not guilty verdict for kidnapping. The trial court gave the jury new verdict forms and sent them back to the jury room to deliberate.

While the jury deliberated a second time, Harvey moved for a mistrial due to the irregularity in the proceedings and the trial court's failure to enter a verdict of not guilty for the kidnapping charge. Harvey argued that jeopardy had attached once the verdict was read in open court. The motion was denied, and the jury returned a guilty verdict on both counts. Harvey brings this appeal.

Harvey challenges the sufficiency of the evidence supporting his rape and kidnapping convictions. Although he raises these arguments as his third and fourth points on appeal, preservation of Harvey's freedom from double jeopardy requires us to examine his sufficiency arguments before addressing trial errors. Brown v. State, 74 Ark. App. 281, 47 S.W.3d 314 (2001). A motion for a directed verdict is a challenge to the sufficiency of the evidence. Walley v. State, 353 Ark. 586, 112 S.W.3d 349 (2003). On appeal from a denial of a motion for directed verdict, the sufficiency of the evidence is tested to determine whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is that evidence which is of sufficient force and character to compel a conclusion one way or the other beyond suspicion or conjecture. Id. Only the evidence supporting the guilty verdict need be considered, and the evidence is viewed in the light most favorable to the State. Id. It is well-settled that matters of credibility are within the sound province of the jury and will not be disturbed on appeal. Johnson v. State, 71 Ark. App. 58, 25 S.W.3d 445 (2000). Further, it is for the jury to resolve matters of inconsistencies in a witness's testimony.

A person commits rape if he engages in sexual intercourse or deviate sexual activity with another person by forcible compulsion. Ark. Code Ann. § 5-14-103 (Supp. 2003); Summerlin v. State, 296 Ark. 347, 756 S.W.2d 908 (1988). "Forcible compulsion" means physical force or a threat, expressed or implied of death or physical injury to or kidnapping of any person. Ark. Code Ann. § 5-14-101 (Supp. 2003). A rape victim's testimony need not be corroborated and is sufficient evidence of the crime. Johnson, supra.

In light of Rainey's testimony, we find that the rape conviction is supported by substantial evidence and that the State proved that Harvey engaged in sexual intercourse by forcible compulsion. Rainey testified that she did not want to have sexual intercourse with Harvey, but did so because she had been beaten, threatened, and was afraid of being beaten again. She stated that Harvey refused to take her home when asked and that he forced her to cooperate by telling her that if she did not she would not make it home. Rainey's testimony alone establishes forcible compulsion, i.e., Harvey's threats and use of physical force against her, and her testimony is sufficient evidence of rape. See Sublet v. State, 337 Ark. 374, 989 S.W.2d 910 (1999) (holding that the State presented sufficient evidence for the jury to conclude that appellant threatened her with death or physical injury and that appellant's actions were against her will where the victim testified that the appellant forced her to have sex with him over a period of years; and that it was not something that she wanted to do, but that she did it because she was afraid of him). Further, Harvey admitted that he beat Rainey, and the State presented evidence of the bruises she sustained over her entire body. Harvey testified that he was apologetic about the beating and that the subsequent sexual encounter was consensual; however, the jury was not required to believe his version of events and was free to believe Rainey's testimony that Harvey had used threats and physical force to compel her to engage in sexual intercourse with him and that she did so against her will. See Sublett, supra.

Harvey also argues that the kidnapping conviction is not supported by substantial evidence and that the evidence did not demonstrate that Rainey was restrained because she never attempted to exit the vehicle. A person commits the offense of kidnapping if, without consent, he restrains another person so as to interfere substantially with her liberty with the purpose of inflicting physical injury upon her or of engaging in sexual intercourse, deviate sexual activity, or sexual contact with her. Ark. Code Ann. § 5-11-102(a)(4) (Repl. 1997); Summerlin, supra. When the restraint exceeds that normally incidental to the crime of rape, the defendant is also subject to prosecution for kidnapping. Summerlin, supra. Where a rapist continues to remove a victim from the point of initial contact after the victim expressed a desire to return to the agreed-upon destination, he is also guilty of kidnapping. See id. The fact that the victim may have entered the rapist's car voluntarily does not prevent the victim from revoking her consent once it is apparent that her assailant is not taking her to the agreed-upon location. Id.

In the instant case, Rainey testified that she voluntarily sat in Harvey's car when he came by to give her the personal items she had left at his home. When the conversation became heated, Rainey testified that she attempted to exit the vehicle, but Harvey grabbed her as he took off down the street. It is clear that Rainey had revoked her consent at this moment, and Harvey's restraint of her began. Rainey testified that, while in the car, she was beaten and forced to wear her seatbelt with her hands in her lap, and that each time she attempted to move her hands, Harvey would strike her in the face. The two drove around for thirty minutes, until they reached his apartment, where Harvey refused to take Rainey home and continued to beat and threaten her. These threats and physical force constitute restraint without consent and greatly exceeded the restraint incident to the subsequent rape.

Harvey also argues that the trial court abused its discretion by finding that the jury had not acquitted him of the kidnapping charge; and alternatively, that the trial court abused its discretion by failing to grant a mistrial. Harvey argues that when the jury's verdict, which was signed and read in open court, indicated that he had been found "not guilty" of the kidnapping charge, at that point, he had been acquitted of that charge. He further argues that resubmission of the case to the jury following his acquittal amounted to double jeopardy and constituted a manifest abuse of discretion by the trial judge. Harvey also asserts that, in the interest of justice, a mistrial should have been granted due to the unusual circumstances of this case.

A mistrial is a drastic remedy and resort is to be made to it only in cases where prejudice cannot otherwise be removed. Barnum v. State, 268 Ark. 141, 594 S.W.2d 229 (1980). The trial court has broad latitude of discretion in deciding whether to grant a mistrial. Id. The trial court's exercise of discretion will not be disturbed on appeal in the absence of abuse or manifest prejudice. Id. The declaration of a mistrial is appropriate only if justice cannot be served by a continuation of the trial. Id.

The Double Jeopardy Clauses of the United States and Arkansas Constitutions protect criminal defendants from (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. Cothren v. State, 344 Ark. 697, 42 S.W.3d 543 (2001). The finality of a verdict of acquittal is the most fundamental aspect of double-jeopardy jurisprudence. Penn v. State, 57 Ark. App. 333, 945 S.W.2d 397 (1997). However, a judgment is not valid until entered of record. See Bradford v. State, 351 Ark. 394, 94 S.W.3d 904 (2003). Thus, a judgment entered in open court is not controlling until entered or filed of record. See id. The mere reading of the jury's verdict in open court does not constitute an acquittal.

Further, a jury's verdict may be amended before it is entered of record, before the jury has separated, and after a poll of each juror reveals that each understands the effect of the verdict. Barnum v. State, 268 Ark. 141, 594 S.W.2d 229 (1980) (affirming the trial court's denial of the appellant's motion for mistrial where the trial court allowed the jury to reconsider an ambiguous verdict). It is well-settled that a jury may amend its verdict to conform to its findings before it has been entered of record and the jury discharged. Id. (citing Hamer v. State, 104 Ark. 606, 150 S.W. 142 (1912)). In fact, our supreme court has held that it is error to refuse a jury permission to retire and reconsider their verdict, where on hearing it read in court, they inform the trial court that the verdict read is not their verdict. Saxon v. Foster, 69 Ark. 626, 65 S.W. 425 (1901).

In this case, the reading of the jury's erroneous verdict of acquittal did not constitute an acquittal because the judgment had not been entered of record. Bradford, supra. Thus, the trial court's decision to allow the jury to reconsider its verdict did not violate the Double Jeopardy Clause because Harvey was not subjected to a second prosecution following an acquittal. Rather, the jury was merely permitted to reconsider and amend its verdict, long recognized by our appellate courts as permissible conduct. Hamer, supra. Moreover, the jury indicated, upon being polled, that the verdict as initially read did not reflect their intentions. It would have been erroneous for the trial court to refuse the jury permission to correct the verdict after they indicated that the verdict as read did not reflect their intent. Saxon, supra. Accordingly, the trial court did not abuse its discretion in failing to grant Harvey's motion for mistrial. Barnum, supra.

For his final point on appeal, Harvey argues that the trial court erred in failing to grant his motion for continuance. A trial court shall grant a motion for continuance only upon a showing of good cause and only for so long as is necessary. Green v. State, 354 Ark. 210, 128 S.W.2d 563 (2003). The law is well established that the granting or denial of a motion for continuance is within the sound discretion of the trial court, and that court's decision will not be reversed absent an abuse of discretion amounting to a denial of justice. Id. When deciding whether a continuance should be granted, the trial court should consider the following factors: (1) the diligence of the movant; (2) the probable effect of the testimony at trial; (3) the likelihood of procuring the witness's attendance in the event of postponement; and (4) the filing of an affidavit, stating not only what facts the witness would prove, but also that the appellant believes them to be true. Id. Additionally, the appellant must show prejudice from the denial of a motion for continuance. Id.

Harvey argues that he has satisfied all of the Green factors. He first argues that he complied with the requirement of Ark. Code Ann. § 16-63-402(a) that a motion to postpone trial due to absence of a witness shall be accompanied by an affidavit demonstrating the facts the affiant believes the witness will prove and that the witness is not absent due to the affiant's consent or connivance. Additionally, Harvey asserts that due diligence has been established by the issuance of a subpoena for Hudson and the filing of the affidavit in compliance with Ark. Code Ann. § 16-63-402(a). Harvey also argues that it must be presumed that Hudson would have been available in the event of a postponement as he was only unavailable because he was on a preplanned vacation. Lastly, he asserts that the probable effect of Hudson's testimony at trial was uncertain, but that Hudson's testimony would have provided the jury with another witness who could either confirm or deny the veracity of Rainey's statements in more detail than any other witness who testified at trial. Harvey offers multiple theories under which Hudson's testimony should have been admitted into evidence,1 but more succinctly, Harvey argues that Hudson's testimony was clearly admissible to establish that Rainey was not a credible witness, and the trial court's failure to grant the continuance severely prejudiced his case.

We do not agree with Harvey's arguments. We first note that Harvey did file an affidavit, and presumably Hudson's appearance at trial was likely in the event of a postponement. However, any attempt to elicit from Hudson specific details regarding the statements Rainey made during her account of the rape should have been considered hearsay and inadmissible. A victim's report to a third party that the rape occurred is generally admissible. Urquhart v. State, 273 Ark. 406, 621 S.W.2d 218 (1981). However, details of a rape victim's report to a third party are not admissible. Id. In this case, however, Harvey and the State stipulated to the admission of Rainey's detailed statement made to Hudson, and the statement was published to the jury. In light of the admission of the statement, Harvey cannot demonstrate prejudice because he was able to get into evidence the statements Rainey made to Hudson during the interview. Furthermore, Harvey was able to use the admitted statement in his effort to impeach Rainey. During his cross-examination, Harvey pointed out several inconsistencies between the testimony Rainey had given on direct examination and the statement she gave to Hudson. Harvey argued that Hudson's testimony was needed to impeach Rainey's credibility should she offer inconsistent testimony. However, he was allowed to impeach her credibility by using the prior statement on cross-examination. Accordingly, we find no merit to Harvey's argument that he was prejudiced by the trial court's failure to grant a continuance.

Affirmed.

Neal and Crabtree, JJ., agree.

1 Harvey asserts that (1) all relevant evidence is admissible and matters affecting the credibility of a witness are always relevant and admissible; (2) that statements by sex offense victims made to third parties are admissible under any one of three theories, including: (i) the victim's "complaint of rape," (ii) an excited utterance, and (iii) a "prior consistent statement" made by the victim so long as the victim is present at trial, subject to cross-examination, and the victim's credibility has been impeached, and introduction of the otherwise complies with the ruled of evidence; and (3) Ark. R. Evid. 801(d)(1) provides that testimony regarding a rape victim's statements is not hearsay if the declarant testifies at trial and is subject to cross-examination concerning the statement and the statement is consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.