Mosley v. State

Tommy Ray MOSLEY v. STATE of Arkansas

CR 95-872                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered February 5, 1996


1.   Evidence -- challenge to sufficiency of -- guidelines. -- In
     a challenge to the sufficiency of the evidence, the court
     reviews the evidence in the light most favorable to the State
     and sustains the judgment of conviction if there is
     substantial evidence to support it; evidence is substantial if
     it is of sufficient force and character to compel reasonable
     minds to reach a conclusion and pass beyond suspicion and
     conjecture; in reviewing the sufficiency of the evidence, only
     evidence that supports the conviction need be considered.

2.   Criminal law -- forcible compulsion defined -- test for
     determining whether there was force. -- "Forcible compulsion"
     is defined as "physical force, express or implied, of death or
     physical injury to or kidnapping of any person," Ark. Code
     Ann.  5-14-101(2) (Repl. 1993); "physical force" is "any
     bodily impact, restraint or confinement, or the threat
     thereof"; the test for determining whether there was force is
     whether the act was against the will of the party upon whom
     the act was committed. 
 
3.   Evidence -- substantial evidence of forcible compulsion --
     victim's testimony alone sufficient to sustain rape
     conviction. -- There was substantial evidence of forcible
     compulsion where the victim's graphic description of the
     incident clearly met the test of showing that the act was
     committed against her will, in addition to the victim's
     testimony, the State offered the testimony of medical
     personnel and an officer, all of whom described the victim's
     injuries and emotional state on the date in question; such
     evidence corroborated the victim's version of the incident;
     indeed, the victim's testimony alone was sufficient to sustain
     the conviction for rape. 

4.   Evidence -- jury determines credibility -- jury clearly
     believed medical testimony. -- The jury is free to believe all
     or part of a witness's testimony; here the jury obviously
     believed the medical testimony and that of the victim over
     appellant's version of the events; the State presented
     sufficient evidence of forcible compulsion.

5.   Discovery -- pertinent rules of discovery discussed --
     prosecutor responsible for providing reports of tests and 
     information concerning his witnesses. -- Under Ark. R. Crim.
     P. 17.1(d), the State is required to disclose to the defense
     any material or information within its knowledge, possession,
     or control which tends to negate the guilt of the defendant;
     Ark. R. Crim. P. 19.2 further imposes a continuing duty to
     disclose this information; under Rule 19.7, if there has been
     a failure to comply, the trial court may order the undisclosed
     evidence excluded, grant a continuance, or enter such order as
     it deems proper under the circumstances; in some situations,
     a recess granted to interview the witness is sufficient to
     cure the failure to comply with the Rules of Criminal
     Procedure; it is the prosecutor's responsibility to provide
     reports of scientific tests and any information or materials
     concerning witnesses he or she intends to call.  

6.   Discovery -- violation of -- key to determining if violation
     is reversible error. -- The key in determining if a reversible
     discovery violation exists is whether the appellant was
     prejudiced by the prosecutor's failure to disclose. 
    
7.   Discovery -- violation occurred -- error was harmless. --
     Where appellant's theory was that the act of sexual
     intercourse had occurred, but it was consensual, the admission
     of testimony, offered to establish the chain of custody of
     appellant's blood and saliva samples used to prove that he
     could have had sexual intercourse with the victim, was
     harmless error; it was in fact consistent with appellant's
     version of what occurred; as appellant has shown no prejudice,
     no reversible discovery violation existed.


     Appeal from Garland Circuit Court; Walter Wright, Judge;
affirmed.
     Daniel D. Becker and Michael E. Harmon, for appellant.
     Winston Bryant, Att'y Gen., by:  Vada Berger, Asst. Att'y
Gen., for appellee.

     Bradley D. Jesson, Chief Justice.02-05-96 *ADVREP2*







TOMMY RAY MOSLEY,
                    APPELLANT,

V.

STATE OF ARKANSAS,
                    APPELLEE,





CR95-872


APPEAL FROM THE GARLAND COUNTY
CIRCUIT COURT (CR94-486)


HONORABLE WALTER WRIGHT
CIRCUIT JUDGE




AFFIRMED.


                Bradley D. Jesson, Chief Justice



     The appellant, Tommy Ray Mosley, was convicted of rape and
sentenced as a habitual offender to life imprisonment.  On appeal,
he argues that the State's evidence was insufficient to satisfy the
forcible compulsion element of rape, and that the trial court erred
in allowing a State's witness to testify at trial when the State
had not complied with the rules of discovery.  We affirm.
     The State elicited the following testimony at trial.  The
victim, Sherry Christian, testified that she went to the Horse Shoe
Bar in Hot Springs around 7:00 p.m.  She was upset over a fight
with her boyfriend.  The appellant, Tommy Ray Mosley, arrived at
the bar around 8:30 p.m.  Sherry and Mosley had met the previous
weekend at a country dance hall, where Mosley had given her his
phone number.  Mosley approached Sherry and asked her why she had
not called him.  The two talked for about fifteen minutes before
Sherry asked Mosley to give a friend, Bill Branch, and her a ride
home.  Mosley agreed, and the three left the bar around 9:00 p.m. 
They drove to the home of Branch's brother, Greg Branch, who was
Sherry's former boyfriend.  Mosley and Sherry stayed at the
residence for approximately fifteen minutes before Sherry stated
that she needed to go meet her babysitter.  After Sherry and Mosley
got in his car, Mosley stated that he needed to go by his sister's
house and get money for gas.  Sherry asked to be let out, but
Mosley told her it would only take a minute and then he would take
her home.  
     Mosley then drove to a remote area.  Sherry again stated she
wanted to go home, but Mosley told her that he would not take her
home "until I get what I'm here for."  She became frightened and
attempted to leave the car.  Mosley grabbed her arm and told her
that he was going to get what he wanted and he was there "to play
games."  Sherry told Mosley that her uncle and others would be
looking for her, but Mosley started trying to grab and kiss her. 
When she scratched Mosley and began pulling his hair, Mosley called
her names and began to choke her until she vomited.  The two struck
each other and pulled each other's hair, and Mosley bit her on the
neck.  When Sherry began vomiting a second time, she told Mosley
she would do whatever he wanted if he would let her out of the car. 
When he did, she began to run.  He grabbed her, and the two
struggled in the dirt.  He dragged her onto the hood of the car and
began choking her.  When Sherry tried to yell for help, Mosley
threatened to kill her.  She then obeyed Mosley's directions to
pull down her shorts and underwear.  While Sherry continued to
fight, Mosley fondled her before putting his penis in her, telling
her that "he was going to do it so hard that he was going to tear
[her] open."  According to Sherry, Mosley "pounded [her] and
pounded [her] as hard as he could" and told her, "Oh, you're going
to like it. You like it. You know you like it."   
     Mosley eventually ordered Sherry to get dressed and to get
back in the car.  As he drove her to her babysitter's house, he
apologized and asked her not to tell anyone what had happened. From
the babysitter's, Sherry went to the hospital for treatment. 
     Marnie Keck, a nurse at the hospital, described Sherry as
being very emotional.  According to Keck, she was dirty and scraped
up, and had a very disheveled appearance.  Keck observed fresh
bruises on her throat and under her left and right eyes, and a very
large bruise over her left eye.  Keck further observed a bite mark
on Sherry's neck, dried blood on both her inner thighs, and dirt on
her legs and abdomen. 
     Dr. Gene Shelby treated Sherry at the hospital.  He testified
that she was very tearful and anxious.  He noticed some bruising to
her face evidencing recent trauma.  In completing a pelvic exam,
Dr. Shelby noted some superficial tears to the opening of her
vagina.  These wounds appeared to be fresh wounds, and were
"completely unrelated" to Sherry's recent delivery of her child. 
In examining the vaginal vault, Dr. Shelby observed a small amount
of clear fluid that was consistent with ejaculation.  Dr. Shelby
concluded that there were "a lot of signs of forced sexual
intercourse."  
     Officer Cory DeArman of the Garland County Sheriff's Office
interviewed Sherry at the hospital.  According to DeArman, Sherry
looked distraught and had been crying.  She had twigs and dirt in
her hair.  DeArman further observed a red mark on Sherry's right
eye and marks on her neck. 
     When Sherry went to the sheriff's office a day later, Officer
Sarah Love photographed the bruises on her face and bite mark on
her neck.  Deputy Sheriff Mike Brown testified that, when Mosley
was arrested and brought to jail on September 2, he observed
scratch marks on Mosley's neck, back, and stomach. 
     At the close of the State's case-in-chief, Mosley moved for a
directed verdict, arguing that the State had failed to prove the
forcible compulsion element of the rape charge.  The trial court
denied the motion, and Mosley testified on his own behalf.  He
admitted to having hit, bitten, and choked Sherry on the date in
question; however, he claimed that he and Sherry "kiss[ed] and
ma[de] up" and engaged in consensual sexual intercourse.  On cross-
examination, Mosley stated that there were several reasons for the
altercation.  First, he was "a little bit" jealous that Sherry
talked to Greg Branch when they were at Branch's house.  He also
stated that he was hurt over problems he was having with his own
girlfriend.  
     At the close of all the evidence, Mosley renewed his motion
for directed verdict on the ground that there was insufficient
evidence of forcible compulsion.  The jury returned a verdict 
finding Mosley guilty as charged.  After hearing evidence of
Mosley's six prior felony convictions, the jury recommended that he
be sentenced to life imprisonment.  The trial court entered
judgment accordingly, and Mosley appeals.

                 I. Sufficiency of the evidence
     We have recently repeated our guidelines for reviewing
challenges to the sufficiency of the evidence in Pike v. State, 323
Ark. ___, ___ S.W.2d ___ (1995):
     In a challenge to the sufficiency of the evidence, this
     court reviews the evidence in the light most favorable to
     the State and sustains the judgment of conviction if
     there is substantial evidence to support it. Abdullah v.
     State, 301 Ark. 235, 783 S.W.2d 58 (1990).  Evidence is
     substantial if it is of sufficient force and character to
     compel reasonable minds to reach a conclusion and pass
     beyond suspicion conjecture. Williams v. State, 298 Ark.
     484, 768 S.W.2d 539 (1989).  In reviewing the sufficiency
     of the evidence, we need only consider evidence in
     support of the conviction. Id. 

Slip op. at 4, citing Mills v. State, 322 Ark. 647, 654, ___ S.W.2d
___, ___ (1995).  Specifically, Mosley contends that the State
failed to prove an element of the rape charge, namely forcible
compulsion.  Rape is defined in Ark. Code Ann.  5-14-103 (Repl.
1993), in pertinent part, as follows:
          (a) A person commits rape if he engages in sexual
     intercourse or deviate sexual activity with another
     person;

          (1) By forcible compulsion[.]

"Forcible compulsion" is defined as "physical force, express or
implied, of death or physical injury to or kidnapping of any
person." Ark. Code Ann.  5-14-101(2) (Repl. 1993).  We have 
defined "physical force" as "any bodily impact, restraint or
confinement, or the threat thereof."  Dillon v. State. 317 Ark.
384, 877 S.W.2d 915 (1994); citing Strawhacker v. State, 304 Ark.
726, 804 S.W.2d 720 (1991).  The test for determining whether there
was force is whether the act was against the will of the party upon
whom the act was committed.  Caldwell v. State, 319 Ark. 243, 889 S.W.2d 771 (1995); Spencer v. State, 255 Ark. 258, 499 S.W.2d 856
(1973).  
     In this case, there was substantial evidence of forcible
compulsion.  Sherry's graphic description of the incident need not
be repeated.  Indeed, the victim's testimony alone is sufficient to
sustain a conviction for rape. See Laughlin v. State, 316 Ark. 489,
872 S.W.2d 848 (1994).  Her account clearly met the test of showing
that the act was committed against her will.  In addition to the
victim's testimony, the State offered the testimony of Nurse Keck,
Dr. Shelby, and Officer DeArman, all of whom described the victim's
injuries and emotional state on the date in question.  Such
evidence corroborates Sherry's version of the incident.     
     Mosley claims that the State's evidence was insufficient to
prove forcible compulsion because  the victim's injuries could have
been caused either by a "physical fight" she had earlier that night
with her boyfriend, or by the recent delivery of her child. 
However, the victim denied that either she or her boyfriend had hit
the other. Moreover, Dr. Shelby testified that superficial tears to
the victim's vagina were unrelated to the delivery of her child,
and, that, in his opinion, there were "a lot of signs of forced
sexual intercourse."  The jury is free to believe all or part of a
witness's testimony. Pike v. State, supra; State v. Long, 311 Ark.
248, 844 S.W.2d 302 (1992).  The jury obviously believed the
medical testimony and that of the victim over Mosley's version of
the events.  In sum, the State presented sufficient evidence of
forcible compulsion.

                     II. Discovery violation
     For his second point, Mosley claims that the trial court erred
in permitting David Worley, a witness for the State, to testify. 
On the morning of trial, counsel for Mosley learned that the State
had issued subpoenas for Worley and Ralph McMillan.  The State
maintained that these witnesses had taken blood and saliva samples
from Mosley, sealed them, and sent them to the sheriff's office,
which in turn forwarded the samples to the state crime lab.  Thus,
the State contended that their testimony would be limited to
establishing a chain of custody.  The trial court, over Mosley's
objection, ruled that the witnesses could testify, but their
testimony would be limited to establishing a chain of custody.
     McMillan did not testify at trial.  Worley testified that,
while employed as a respiratory therapist and nurse at St. Joseph's
Regional Health Center, he used an Arkansas Sexual Assault Kit to
collect evidence from Mosley.  He further testified that he was
present when Mosley's blood was drawn, put into a test tube, and
placed in a sealed envelope.  Worley also testified that he
collected a saliva sample for Mosley, sealed it in an envelope,
placed the envelope in the evidence kit, and gave it to a deputy
sheriff.  Edward Vollman, a forensic serologist with the state
crime lab, later testified that semen found on Sherry's shorts and
secretions preserved from a vaginal swab were consistent with
secretions by someone with Mosley's blood type.  Thus, Vollman
stated that Mosley could not be excluded as a person who may have
had sexual intercourse with Sherry.
     We have recently reviewed the pertinent rules of discovery in
Mills v. State, supra:
          Under Ark. R. Crim. P. 17.1(d), the State is
     required to disclose to the defense any material or
     information within its knowledge, possession, or control
     which tends to negate the guilt of the defendant.  Ark.
     R. Crim. P. 19.2 further imposes a continuing duty to
     disclose this information. Lewis v. State, 286 Ark. 372,
     691 S.W.2d 864 (1985).  Under Rule 19.7, if there has
     been a failure to comply, the trial court may order the
     undisclosed evidence excluded, grant a continuance, or
     enter such order as it deems proper under the
     circumstances. Id.  In some situations, a recess granted
     to interview the witness is sufficient to cure the
     failure to comply with the Rules of Criminal Procedure.
     Id.; see Dupree v. State, 271 Ark. 50, 607 S.W.2d 356
     (1980); Hughes v. State, 264 Ark. 723, 574 S.W.2d 888
     (1978).

322 Ark. at 656-657.  It is the prosecutor's responsibility to
provide reports of scientific tests and any information or
materials concerning witnesses he or she intends to call.  Ark. R.
Crim. P. 17.1(a)(i), (iv); see also Burton v. State, 314 Ark. 317,
862 S.W.2d 252 (1993).
     In the present case, Mosley filed several motions for
discovery.  The trial court entered at least two discovery orders
in which it directed the attorneys to file a list of witnesses. 
The State provided witness lists to Mosley on September 27, 1994,
and on April 17, 1995.  Neither list included Worley's name. 
Clearly, the State violated the discovery rules and such violation
should not be dismissed lightly.  However, the key in determining
if a reversible discovery violation exists is whether the appellant
was prejudiced by the prosecutor's failure to disclose. Burton v.
State, supra; citing Scroggins v. State, 312 Ark. 106, 848 S.W.2d 400 (1993).    
     In this case, Mosley's theory was that the act of sexual
intercourse had occurred, but it was consensual.  This position was
conveyed to the jury in Mosley's opening statement.  Thus, the
admission of Worley's testimony, offered to establish the chain of
custody of Mosley's blood and saliva samples used to prove that he
could have had sexual intercourse with Sherry, was harmless error. 
It was in fact consistent with Mosley's version of what occurred. 
As Mosley has shown no prejudice, no reversible discovery violation
exists.
     The record has been examined in accordance with  Ark. Sup. Ct.
R. 4-3(h), and no prejudicial error has been found which would
warrant reversal.  
     Affirmed.