Douthitt v. State

Ralph DOUTHITT v. STATE of Arkansas

CR 96-622                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered December 9, 1996


1.   Appeal & error -- abstracting requirement for photographs --
     copies of photos not properly included in abstract. -- The
     supreme court's rule requires, unless waived by the court upon
     motion, that the appellant reproduce a photograph and attach
     it to his abstract whenever that photograph must be examined
     for a clear understanding of the testimony; where the record
     reflected that no such waiver motion was made by appellant,
     and he failed to reproduce the photographs and attach them to
     the abstract, the appellant's abstract was deficient and
     failed to support his suppression motion. 

2.   Appeal & error -- abstract omissions cause considerable
     confusion -- court will not go to record in search of
     prejudicial error. -- Where appellant repeatedly stated that
     he did not abstract certain exhibits or testimony because he
     either believed those portions of the record were irrelevant
     to the issues on appeal or thought he had previously
     abstracted the relevant testimony, and where such abstract
     omissions caused considerable confusion for the justices who
     had no record to help them understand the relevant factual
     questions and omissions, the supreme court did not reach the
     issue raised by appellant; the court will not go to the record
     in search of prejudicial error. 

3.   Constitutional law -- Equal Protection Clause --
     classifications must rest on real differences. -- The Equal
     Protection Clause does not require that all persons be dealt
     with identically; it only requires that classification rest on
     real and not on feigned differences; that the distinctions
     have some relevance to the purpose for which the
     classification is made; and that the treatment be not so
     disparate as to be arbitrary.

4.   Constitutional law -- incest statute does not violate Equal
     Protection Clause -- classifications under statute were not
     arbitrary. -- Appellant's argument that Ark. Code Ann.  5-26-
     202 (1987), the statute governing incest, did not provide for
     equal treatment of relatives by consanguinity and affinity and
     therefore violated the Equal Protection Clause, was without
     merit where the disparate treatment of the statute was not
     shown to be intentional or lacking a rational basis;
     appellant's argument failed to reflect that the
     classifications under  5-26-202 were arbitrary, nor did he
     show that he was subjected to disparate treatment under the
     circumstances; regardless of whether appellant was related to
     the victim by consanguinity or affinity, the State's charges
     against him under the provisions of  5-26-202 were
     effectively be the same.

5.   Evidence -- failure to sever counts not error -- same evidence
     was admissible in each count of sexual abuse. -- Appellant's
     assertion that the trial court erred in failing to sever the
     three rape counts against him from the counts involving incest
     and first degree violation of a minor was meritless; where the
     charge concerns the sexual abuse of a child, evidence of other
     crimes, wrongs, or acts, such as sexual abuse of that child or
     other children, is admissible to show motive, intent, or plan
     pursuant to A.R.E. Rule 404(b); where the same evidence was
     admissible against appellant in each count of sexual abuse,
     the trial court did not abuse its discretion in denying
     severance. 

6.   Evidence -- consent not an issue in incest cases --
     appellant's argument without merit. -- Although the rape-
     shield statute does not apply to incest, the issue of
     admittance of the victim's prior sexual conduct is based upon
     relevancy and is relevant only if sexual intercourse was
     consensual; because consent is never an issue in the crime of
     incest, the trial court was correct in rejecting appellant's
     suggestion that the court erred in failing to sever the rape
     counts from those for incest and violation of a minor.

7.   Evidence -- denial of proffer not error -- no prejudice shown.
     -- Appellant's contention that the trial court's denial of his
     proffer of Department of Human Services records violated his
     right to attack the victim's credibility was without merit;
     the General Assembly clearly intended for unfounded reports by
     the Department of Human Services to be used solely within its
     own confines and further disclosure is prohibited, and second,
     the record revealed the victim testified concerning the
     Department of Human Services investigation, and appellant had
     the opportunity to cross-examine her on this issue; appellant
     showed no prejudice.

8.   Motions -- directed-verdict motion properly denied -- argument
     without merit. -- Appellant's argument that the trial court
     erred in denying his directed-verdict motion because the three
     rape counts were identically worded in the information and did
     not assert the time of each crime was without merit; while it
     is a better and safer practice to include in an information or
     indictment that date on which or the time frame in which an
     offense occurred, it is not necessarily fatal to the
     information or indictment if such data is not included, unless
     time is an essential element of the offense; time is not an
     essential element of rape or incest; in addition, the record
     failed to show appellant requested a bill of particulars,
     therefore, he was procedurally barred from raising the issue.

9.   Appeal & error -- no authority given to support appellant's
     argument -- argument without merit. -- Appellant's claim that
     the trial court erred in denying a mistrial because he was
     compelled to announce to the jury that he did not have any
     witnesses, and that the trial court's ruling caused a comment
     on his decision not to testify, was meritless; not only did
     the record reflect that absolutely no reference to witnesses
     was made during closing, appellant offered no legal authority
     or convincing argument concerning how his remarks constituted
     reversible error.

10.  Appeal & error -- alleged error not abstracted -- issue not
     reached. -- Where appellant's error challenged the State's
     closing remarks, but he failed to abstract those remarks or
     closing argument, the court did not consider the issue on its
     merits.


     Appeal from Independence Circuit Court; John Dan Kemp, Judge;
affirmed.
     Kenneth W. Haynes, for appellant.
     Winston Bryant, Att'y Gen., by:  Sandy Moll, Asst. Att'y Gen.,
for appellee.

     Tom Glaze, Justice.
     Appellant, Ralph Douthitt, was convicted of sixty-one felony
counts for rape, incest and violation of a minor, and was sentenced
to serve 174 years at the Department of Correction.  Douthitt
brings this appeal with eight points for reversal.  For an
understanding of the issues, a short statement of the facts is
necessary.
     On March 28, 1995, Misty Wilson, eighteen years old, confided
in her mother, Tammy Douthitt, that her stepfather, Ralph Douthitt,
had been sexually abusing her since approximately 1988, when she
was eleven years old.  Misty told her mother that over the course
of those years, her stepfather had taken numerous nude photos and
videos of her.  That same evening, Tammy and Misty reported these
prior incidents to Sergeant Jerry Hagar, who was with the
Independence County Sheriff's Department.  Misty told Hagar some of
the photographs and other material might be kept in a metal
ammunition box somewhere in the shop building (garage).  Hagar
asked Tammy if the police could have permission to search her house
and the detached garage adjacent to it that night.  Tammy agreed,
and signed a consent to search form.
     Upon arriving at the Douthitt residence the officers began
their search of the garage, which was unlocked.  Shortly
thereafter, Douthitt arrived at the home and was immediately taken
into custody.  The officers continued their search of the garage,
and discovered a false wall under a cabinet, which concealed a
secret compartment.  Within the secret compartment, the officers
found a locked metal box and a videotape, which was attached
beneath a shelf in the hidden compartment.  The officers removed
the locked metal box and broke the padlock with a screwdriver. 
Inside the box they discovered nude photographs of Misty and
Douthitt's handwritten diary which corroborated what Misty had
previously told Hagar.  After searching the garage, the officers
searched the home, where they found a metal box, photographs of
Misty partially nude, and a two-way mirror from a bedroom that
allowed viewing into the bathroom.
     On April 11, 1995, an arrest warrant was issued for Douthitt
based upon the statements of Misty and the evidence seized during
the search.  On the same day, the State filed its information
against Douthitt, charging him with sixty-three (63) felony counts. 
Counts 1, 2, and 3 each charged Douthitt with rape, a class Y
felony; counts 4 through 33 charged Douthitt with violation of a
minor in the first degree, a class C felony; and counts 34 through
63 charged him with incest, a class C felony.
     Douthitt filed a motion to suppress the evidence seized as a
result of the search of his home and garage.  He also filed a
motion challenging the constitutionality of the State's incest
statute.  Both motions were denied.  
     Douthitt's first point for reversal concerns the trial court's
denial of his suppression motion.  The State's initial response is
that Douthitt's abstract is flagrantly deficient and fails to
support his suppression argument.  We must agree.
      We initially note that, while Douthitt's motion below
appeared to challenge the evidence seized from both the Douthitt's
home and garage, Douthitt's argument focused only on the
expectation of privacy he may have had regarding those items seized
in the garage.  He never seriously argued at trial that his wife,
Tammy, did not have common authority to consent to the officers'
search of their home; nor does Douthitt question that segment of
the search in this appeal.  In fact, Douthitt's argument concedes
both Douthitt and Tammy jointly occupied the home, but Douthitt
asserts no such joint occupancy or possession of the garage
existed, permitting Tammy to consent to its search.
     This court's problem in considering the validity of the
officers' search of the garage arises because Douthitt fails to
adequately abstract the exhibits whereby the members of this court
can determine what evidence was taken from the garage and what was
seized from the home.  For example, Douthitt's abstract refers to
115 exhibits that apparently had been introduced at trial by the
State, but exhibits 29 through 115 reflect no mention as to whether
they were found -- in the garage or in the home.  Douthitt also
submits a somewhat abbreviated abstract of Tammy Douthitt's and
Officers Hagar's and Norman's testimonies at the suppression
hearing, and those testimonies, too, fail to address where most of
the 115 exhibits had been discovered.  Even Douthitt's abstract of
the trial testimony omits reference to most of the exhibits at
issue.
     The 115 exhibits in this case are obviously relevant in
deciding Douthitt's suppression argument, and they are also
important when considering what, if any, prejudice Douthitt may
have sustained by an illegal search of the garage or the locked box
found inside the garage.  Too, we would point out that a metal box
was found in the Douthitt's mobile home and exhibits were
discovered in that box, but Douthitt's abstract fails to specify
which ones.
     While one could argue all the exhibits were relevant to the
suppression motion raised by Douthitt, the posed photographs of
Misty are particularly significant in determining how Douthitt may
have been prejudiced by any invalid search of the garage,
especially if any of those photos were discovered in the Douthitt
home.  This court's rule requires, unless waived by the court upon
motion, that the appellant reproduce a photograph and attach it to
his abstract whenever that photograph must be examined for a clear
understanding of the testimony.  See Ark. Sup. Ct. R. 4-2(a)(6);
Bunn v. State, 320 Ark. 516, 898 S.W.2d 450 (1995).  Here, the
record reflects no such waiver motion was made by Douthitt;
nonetheless, he still chose not to reproduce and attach the
photographs to his abstract.  
     In examining Douthitt's abstract, we see where he repeatedly
stated he did not abstract certain exhibits or testimony because
either he believed those portions of the record were irrelevant to
the issues on appeal or he thought he had previously abstracted the
relevant testimony.  Unfortunately, such abstract omissions have
caused considerable confusion for the justices who had no record to
help them understand the relevant factual questions and omissions
we have discussed hereinabove.  Our rule is clear that, without
proper abstracting, seven justices would be forced to pore through
the sole record of the case on file with the clerk of the supreme
court in search of the error(s) propounded by the defense.  We have
said repeatedly, and our rule so states, that we will not go to the
record in search of prejudicial error.  Britton v. State, 316 Ark.
219, 870 S.W.2d 762 (1994).
     Douthitt's second argument is that Ark. Code Ann.  5-26-202
(1987), the statute governing incest, does not provide for equal
treatment of relatives by consanguinity and affinity and therefore
violates the Equal Protection Clause.  As pointed out by the State,
this court has decided this issue in Camp v. State, 288 Ark. 269,
704 S.W.2d 617 (1986).  In addressing the incest statute, the court
mentioned Camp's argument that that law created a dichotomy of
criminal responsibility between stepchildren and natural children. 
When addressing Camp's suggested dichotomy existing between natural
parents and stepparents, this court further stated the following:
          [W]e are not persuaded that the disparate treatment
     of the statute is not intentional, or that it lacks a
     rational basis.  The commentary to [ 5-26-202] points
     out that stepchildren and adopted children have been
     added to the crime of incest because society is as
     concerned with the integrity of the family, including
     step and adoptive relationships as well as those of blood
     relationships, and sexual activity is equally disruptive,
     whatever the makeup of the family.
     The Camp court, noting the presumption of constitutionality of
the incest statute and in upholding it, quoted from the case of
Schock v. Thomas, Comm'r, 274 Ark. 493, 625 S.W.2d 521 (1981), as
follows:
          The Equal Protection Clause does not require that
     all persons be dealt with identically; it only requires
     that classification rest on real and not on feigned
     differences, that the distinctions have some relevance to
     the purpose for which the classification is made, and
     that the treatment be not so disparate as to be
     arbitrary.
     In sum, Douthitt's argument fails to reflect the
classifications under  5-26-202 are arbitrary.  Nor has he shown
he is subjected to disparate treatment under the circumstances
existing here.  Regardless of whether Douthitt was related to Misty
by consanguinity or affinity, the State's charges against him under
the provisions of  5-26-202 would effectively be the same.
     Douthitt's next point asserts the trial court erred in failing
to sever the three rape counts against him from the counts
involving incest and first-degree violation of a minor.  He submits
the three rape counts were alleged to have occurred from 1989
through 1991 and a break in time existed between the other 60
counts that were alleged to have occurred in 1993 through March
1994.  He argues this difference or "break" in time reflects the
rape charges were not a part of a single scheme or plan and should
have been severed.  
     This court has often said that when the charge concerns the
sexual abuse of a child, evidence of other crimes, wrongs, or acts,
such as sexual abuse of that child or other children, is admissible
to show motive, intent, or plan pursuant to A.R.E. Rule 404(b). 
See Lukach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992).  Here,
the same evidence was admissible against Douthitt in each count of
sexual abuse, so the trial court did not abuse its discretion in
denying severance.  See Robinson v. State, 314 Ark. 512, 863 S.W.2d 572 (1993).  Before leaving this point, Douthitt also suggests
error in failure to sever because the rape shield statute precludes
evidence of the victim's prior sexual conduct for purposes of some
of the crimes, but not for others.  He submits that there is no
statute excluding evidence of the victim's prior sexual conduct in
a prosecution for incest, and he was entitled to introduce such
evidence.  In Evans v. State, 317 Ark. 532, 878 S.W.2d 750 (1994),
this court held that, although the rape shield statute does not
apply to incest, the issue of admittance of the victim's prior
sexual conduct is based upon relevancy and is relevant only if
sexual intercourse was consensual.  Consent, however, is never an
issue in the crime of incest.  Id. at 539.  The trial court was
correct in rejecting this argument of Douthitt's, too, when denying
his severance motion.
     In his fourth argument, Douthitt contends that the trial court
erred in denying his proffer of Department of Human Services
records that he asserts contain statements by Misty that she and
Douthitt never had sexual contact.  He argues that the denial of
his proffer violated his right to attack Misty's credibility.  No
reversible error occurred, concerning this point, for two reasons. 
First, this court has held that the General Assembly clearly
intended for unfounded reports by the Department of Human Services
to be used solely within its own confines and further disclosure is
prohibited.  Fox v. State, 314 Ark. 523, 863 S.W.2d 568 (1993). 
Second, the record reveals Misty testified concerning the
Department of Human Services investigation, and Douthitt had the
opportunity to cross-examine her on this issue.  Therefore, he has
shown no prejudice.
     Douthitt's next argument asserts that the trial court erred in
denying his directed-verdict motion.  In this respect, Douthitt
urges that because the three rape counts were identically worded in
the information and did not assert the time of each crime, the jury
was unable to know what proof went with what count.  Again,
Douthitt fails to show a meritorious argument.  First, this court
has held that, while it is a better and safer practice to include
in an information or indictment that date on which or the time
frame in which an offense occurred, it is not necessarily fatal to
the information or indictment if such data is not included, unless
time is an essential element of the offense.  Bonds v. State, 296
Ark. 1, 751 S.W.2d 339 (1988).  The court has held that time is not
an essential element of rape or incest.  Id. at 4.  Second, we also
point out that the record fails to show Douthitt requested a bill
of particulars, therefore, he is procedurally barred from raising
this issue.
     Douthitt's sixth point claims the trial court erred in denying
a mistrial because he was compelled to announce to the jury that he
did not have any witnesses.  He claims the trial court's ruling
caused a comment on his decision not to testify.  This argument is
wholly meritless.  The record shows Douthitt merely stated,
"Defendant rests," after the State concluded its case, and made no
reference to witnesses whatsoever.  Also, Douthitt offers no legal
authority or convincing argument concerning how his remarks
constituted reversible error, and we know of none.  See Dixon v.
State, 260 Ark. 857, 545 S.W.2d 606 (1977).
     Douthitt next urges error because the trial court improperly
allowed the State, in its final argument, to tell the jury that
they could look at Douthitt's handwritten diary, State's Exhibit
24, and track the dates set out therein and match them with the
counts alleged in the information.  He asserts the information is
not evidence and is not available as such to the jury so as to fill
a gap not covered by the evidence.  Because Douthitt's error
challenges the State's closing remarks, but he fails to abstract
those remarks or closing argument, we do not consider this issue on
its merits.  See Harris v. State, 303 Ark. 233, 795 S.W.2d 55
(1990).
     In conclusion, we have carefully considered each point
advanced by Douthitt, and we affirm the trial court's rulings and
decision for the reasons set out hereinabove.