Weber v. State

William George Edward WEBER v. STATE of
Arkansas

CR 96-706                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered November 11, 1996


1.   Evidence -- rape -- uncorroborated testimony of child rape
     victim sufficient to sustain conviction. -- The uncorroborated
     testimony of a child rape victim is sufficient evidence to
     sustain a conviction.

2.   Criminal law -- admissibility of statement to police --
     totality of circumstances evaluated. -- In considering whether
     a statement made to police was properly admitted, the supreme
     court evaluates the totality of the circumstances and reverses
     only if the trial court's finding was clearly against the
     preponderance of the evidence.

3.   Criminal law -- voluntary statement -- Miranda warning not
     required. -- The Miranda warning is not required unless
     statements made to police were a result of custodial
     interrogation; the Miranda warning is not required for
     voluntary, spontaneous statements; a spontaneous statement is
     admissible because it is not compelled or coerced in any way
     significant under the Fifth Amendment's privilege against
     self-incrimination.

4.   Evidence -- voluntary statement -- trial court did not err in
     refusing to suppress. -- The term "interrogation" under
     Miranda refers not only to express questioning, but also to
     any words or actions on the part of the police (other than
     those normally attendant to arrest and custody) that the
     police should know are reasonably likely to elicit an
     incriminating response from the suspect; where it was
     undisputed that the police officer who was sent to appellant's
     residence posed no express questions to appellant that could
     have elicited his incriminating statement; where it was also
     undisputed that appellant was not subjected to the "functional
     equivalent" of questioning; and where the police officer could
     not have known that his simple greeting was reasonably likely
     to trigger an inculpatory response on appellant's part, it was
     not error for the trial court to refuse to suppress
     appellant's statement.

5.   Evidence -- hearsay -- child victim's written statement merely
     cumulative of evidence admitted without objection. -- Where
     appellant argued that the child victim's written statement
     should not have been received into evidence because his
     counsel had not been furnished a copy of it prior to trial as
     required by his discovery motion and because it was hearsay,
     the supreme court held that any error that may have occurred
     in the admission of the exhibit was harmless; the written
     statement contained the same information to which the child
     victim testified in person at the trial and was, therefore,
     merely cumulative of evidence that was admitted without
     objection.

6.   Evidence -- hearsay -- erroneous admission of hearsay evidence
     not reversed if cumulative. -- When hearsay evidence is
     erroneously admitted, the appellate court will not reverse if
     it is cumulative to other evidence admitted without objection.

7.   Discovery -- evidence not disclosed -- determination of
     reversible discovery violation. -- When evidence is not
     disclosed pursuant to pretrial discovery procedures, the
     burden is on the appellant to establish that the omission was
     sufficient to undermine confidence in the outcome of the
     trial; the key in determining if a reversible discovery
     violation exists is whether the appellant was prejudiced by
     the prosecutor's failure to disclose; absent a showing of
     prejudice, the appellate court will not reverse.

8.   Evidence -- hearsay -- appellant was not prejudiced by
     admission of child victim's written statement. -- Where the
     abstract of the record revealed that the child victim's
     written statement was not different in any significant detail
     from her oral testimony, which was received without objection,
     the supreme court could not say that appellant was prejudiced
     by its admission into evidence.

9.   Criminal law -- lesser included offense -- when offense is not
     lesser included offense. -- An offense is not a lesser
     included offense of another if each crime requires a different
     element of proof.

10.  Criminal law -- lesser included offense -- first-degree sexual
     abuse not lesser included offense of rape in this case. -- The
     supreme court held that first-degree sexual abuse, as it might
     have been proven by the evidence in this case, was not a
     lesser included offense of rape because it contained an
     element (age of the perpetrator) not found in the rape
     statute; therefore, appellant was not entitled to an
     instruction on first-degree sexual abuse under Ark. Code Ann.
      5-1-110(b) (Repl. 1993).  

11.  Criminal law -- lesser included offense -- court declined to
     say that first-degree sexual abuse may not be lesser included
     offense in rape in any case. -- The supreme court noted that
     first-degree sexual abuse may be proven by facts other than
     those evident in this case and declined to say that it may not
     be a lesser included offense in rape in any case; the court
     emphasized that its holding was solely that first-degree
     sexual abuse as defined in Ark. Code Ann.  5-5-14-108(a)(3),
     the subsection upon which appellant wanted the trial court to
     instruct the jury, is not a lesser offense included in rape as
     charged in this case pursuant to Ark. Code Ann.  5-14-
     103(a)(3).


     Appeal from Boone Circuit Court, Robert W. McCorkindale, II,
Judge; affirmed.
     Richard R. Parker, Public Defender, for appellant.
     Winston Bryant, Att'y Gen., by:  Sandy Moll, Asst. Att'y Gen.,
for appellee.

     David Newbern, Justice.
     William George Edward Weber was convicted of rape in violation
of Ark. Code Ann.  5-14-103(a)(3) (Repl. 1993) upon evidence that
he engaged in deviate sexual activity with a person less than
fourteen years of age.  He was sentenced to sixty years'
imprisonment as an habitual offender.  The charge arose from
allegations that Mr. Weber engaged in fellatio and other sexual
misconduct with an eight-year-old child.  
     Mr. Weber contends that the evidence was insufficient to
support the conviction and that his motion for a directed verdict
should have been granted.  He also argues that a written statement
made by the victim should not have been admitted into evidence
because it had not been furnished to him by the prosecution prior
to trial and was admitted in violation of the hearsay rule.  In
addition, he argues a statement made to an investigating officer
should not have been admitted into evidence.  He also questions the
Trial Court's refusal to instruct on first-degree sexual abuse as
a lesser included offense.  
     We hold that it was not error to overrule the directed verdict
motion and that the admission of the child's written statement was
harmless because it was cumulative of other evidence.  We also hold
Mr. Weber's statement to the investigating police officer was
admissible because it was spontaneous, and we conclude that first-
degree sexual abuse is not a lesser included offense of rape.  The
judgment is affirmed.

                 1. Sufficiency of the evidence
     The victim testified about instances in which fellatio had
occurred and about an instance in which Mr. Weber placed his finger
in her anus.  The mother of the victim stated Mr. Weber sometimes
stayed overnight at her home and had opportunities to engage in the
conduct alleged.  She knew nothing of it until she came home
unexpectedly on the evening of May 29, 1995, entered a bedroom, and
found her daughter with her pants down and leaning over a bed.  Mr.
Weber came from behind a door looking nervous and said he had been
examining the child for tick bites.  The child said Mr. Weber had
told her he intended to place his penis in her anus, and she then
revealed the other conduct which led to the charge.  The mother
testified that Mr. Weber admitted his acts with the child to her
but said the child "started it."  She testified that, after Mr.
Weber became aware that she had notified the police, he admitted
his guilt and said something like, "I'm busted ain't I?"
     In arguing that the evidence is insufficient, Mr. Weber points
to inconsistencies in the child's and the mother's statements. 
While that argument could have affected the jury's assessment of
the credibility of the witnesses, it does not provide a reason for
us to hold the Trial Court erred in refusing to grant a directed
verdict in favor of Mr. Weber. 
     Mr. Weber argues further that the evidence was insufficient
because a medical report resulting from an emergency room
examination of the child did not indicate that the child had
suffered any physical injuries and showed no physical abnormality.
     The evidence was sufficient that Mr. Weber engaged in deviate
sexual activity with the child.  "Deviate sexual activity" is
defined as

     any act of sexual gratification involving: (A) The

     penetration, however slight, of the anus or mouth of one 

     person by the penis of another person; or (B) 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) (Repl. 1993).
     As we have repeatedly held, "The uncorroborated testimony of
a child rape victim is sufficient evidence to sustain a
conviction."  Caldwell v. State, 319 Ark. 243, 246, 891 S.W.2d 42
(1995).  See Gunter v. State, 313 Ark. 504, 509, 857 S.W.2d 156,
cert. denied __ U.S. __, 114 S. Ct. 391 (1993); Jones v. State, 300
Ark. 565, 566, 780 S.W.2d 556 (1989); Winfrey v. State, 293 Ark.
342, 351, 738 S.W.2d 391 (1987).

                     2. Statement to police
     On the evening mentioned above when the child's mother
discovered the child and Mr. Weber in a compromising position, the
mother called the police.  Officer Marc Arnold of the Harrison
Police Department was sent to the residence where he encountered
Mr. Weber outdoors nearby.  Officer Arnold knew only that he was to
investigate a child abuse case, and he had no knowledge that Mr.
Weber was the accused.  Officer Arnold greeted Mr. Weber, and Mr.
Weber's response was "Man, I've really messed up."  The officer
testified he then informed Mr. Weber of his rights and stayed with
him until backup officers arrived.  Officer Arnold then went into
the house and spoke with the mother and child while another officer
stayed outside with Mr. Weber.
     Mr. Weber asserts that his statement should have been
suppressed because it was made in the context of a custodial
interrogation and without the benefit of the warnings required by
Miranda v. Arizona, 384 U.S. 436 (1960).  Mr. Weber further argues
that the State failed to show that he made a voluntary and
intelligent waiver of his right to remain silent.
     In considering whether Mr. Weber's statement was properly
admitted, "we evaluate the totality of the circumstances and
reverse only if the trial court's finding is clearly against the
preponderance of the evidence."  Day v. State, 306 Ark. 520, 525,
816 S.W.2d 852 (1991).  In denying Mr. Weber's suppression motion,
the Trial Court found that Mr. Weber made the incriminating
statement in response to Officer Arnold's greeting or salutation
and that the statement was not elicited by police questioning. 
Although Mr. Weber does not dispute that finding, he insists that
reversal is nonetheless required because (1) he made the statement
before receiving Miranda warnings; (2) he did not feel "free to
leave" and therefore was in police custody at the time he made the
statement; and (3) he may have made the statement while under the
influence of drugs and alcohol.
     Even if those assertions are true, "the important point," in
the words of Justice George Rose Smith, is that Mr. Weber "was not
being interrogated as a suspect, with respect to his possible
guilt, when the statements were made."  Lacy v. State, 271 Ark.
334, 335, 609 S.W.2d 13 (1980).  Although Mr. Weber argues that the
statements made prior to his arrest should be suppressed because he
was not advised of his Miranda rights, the Miranda warning is not
required unless the statements were a result of custodial
interrogation.  The Miranda warning is not required for voluntary,
spontaneous statements.  Ward v. State, 308 Ark. 415, 421, 827 S.W.2d 110 (1992).  A spontaneous statement is admissible because
it is "not compelled or coerced in any way significant under the
Fifth Amendment's privilege against self-incrimination."  Stone v.
State, 321 Ark. 46, 53, 900 S.W.2d 515 (1995).  
     The record leaves no doubt that Officer Arnold was not
interrogating Mr. Weber when he made the incriminating statement. 
According to the United States Supreme Court,

     the term "interrogation" under Miranda refers not only

     to express questioning, but also to any words or actions on 
     
     the part of the police (other than those normally attendant 
     
     to arrest and custody) that the police should know are 

     reasonably likely to elicit an incriminating response from 

     the suspect.


Rhode Island v. Innis, 446 U.S. 291, 301 (1980).  It is undisputed
that Officer Arnold posed no express questions to Mr. Weber that
could have elicited his incriminating statement.  It is also
undisputed that Mr. Weber was not "subjected to the `functional
equivalent' of questioning," as discussed in the Innis case. 
Officer Arnold could not have known that his simple greeting was
reasonably likely to trigger an inculpatory response on the part of
Mr. Weber.  It was not error to refuse to suppress the statement.

                    3. The written statement
     A counsellor who worked with the victim asked that she write 
about the events with Mr. Weber.  The child prepared such a 
statement, and the prosecution offered it as evidence at the 
trial.  It was received as an exhibit.  Mr. Weber argues the
written statement should not have been received into evidence
because his counsel had not been furnished a copy of it prior to
trial as required by his discovery motion and because it is
hearsay.  Ark. R. Evid. 801, 802.  
     Any error that may have occurred in the admission of the
exhibit was harmless.  As abstracted by Mr. Weber, the written
statement contained the same information to which the child victim
testified in person at the trial.  The written statement was,
therefore, merely cumulative of evidence that was admitted without
objection.
     When hearsay evidence is erroneously admitted, we will not
reverse if it is "cumulative to other evidence admitted without
objection."  Zufari v. Architecture Plus, 323 Ark. 411, 420-21, 914 S.W.2d 756 (1996).  See Luedemann v. Wade, 323 Ark. 161, 913 S.W.2d 773 (1996); Griffin v. State, 322 Ark. 206, 909 S.W.2d 625 (1995). 
See also Williams v. Southwestern Bell Tel. Co., 319 Ark. 626, 631,
893 S.W.2d 770 (1995).
     The same is true with respect to evidence that may not have
been provided to the defendant in violation of the State's
obligation under Ark. R. Crim. P. 17.1(a)(v).  There was a dispute
between Mr. Weber's counsel and the prosecutor over whether the
statement had been in the prosecutor's file which had been open to
inspection by the defense.  Even if we were to assume that the
State had improperly failed to provide the statement to the
defense, we would affirm in this instance.

     When evidence is not disclosed pursuant to pretrial 

     discovery procedures, the burden is on the appellant to 

     establish that the omission was sufficient to undermine     

     confidence in the outcome of the trial....  The key in 

     determining if a reversible discovery violation exists is 

     whether the appellant was prejudiced by the prosecutor's 

     failure to disclose; absent a showing of prejudice, we will 
     
     not reverse.


Burton v. State, 314 Ark. 317, 319, 862 S.W.2d 252 (1993).
     In view of the fact that the abstract of the record reveals
that the written statement was not different in any significant
detail from the oral testimony of the victim, which was received
without objection, we cannot say that Mr. Weber was prejudiced by
its admission into evidence.

                   4. Lesser included offense
     Mr. Weber argues the Trial Court erred in refusing to instruct
the jury on the offense of first-degree sexual abuse, Ark. Code
Ann.  5-14-108(a)(3)(Repl. 1993), as a lesser included offense of
rape.
     A defendant is entitled to an instruction on a lesser included
offense if two conditions are satisfied.  First, the proffered
instruction must truly cover a lesser included offense.  "An
offense is so included if: (1) It is established by proof of the
same or less than all the elements required to establish the
commission of the offense charged; ...."  Ark. Code Ann.  5-1-
110(b)(Repl. 1993).  As we said in Cozzaglio v. State, 289 Ark. 33,
38, 709 S.W.2d 70 (1986), an offense is not a lesser included
offense of another if "[e]ach crime requires a different element of
proof."
     The second condition is that there must be "a rational basis
for a verdict acquitting the defendant of the offense charged and
convicting him of the included offense."   5-1-110(c).  We need
not consider the rational basis requirement because we have
concluded that first-degree sexual abuse, as it might have been
proven in this case, and as Mr. Weber asked that it be described to
the jury by his proffered instruction, contains an element not
included in rape, and thus it is not a lesser offense included in
the offense charged.
     In considering Mr. Weber's contention, it is necessary to
compare the elements of the offense charged with those of first-
degree sexual abuse.  As stated above, Mr. Weber was charged with
rape based on the provision that, "A person commits rape if he 
engages in ... deviate sexual activity with another person: ... (3)
Who is less than fourteen (14) years of age."   5-14-103(a)(3).  
     The elements of first-degree sexual abuse that might have
applied in this case are described as follows:  "A person commits 
sexual abuse in the first degree if: ... (3) Being eighteen (18)
years old or older, he engages in sexual contact with a person not
his spouse who is less than fourteen (14) years old."  Ark. Code
Ann.  5-14-108(a)(3) (Repl. 1993). "Sexual contact" is defined as
"any act of sexual gratification involving the touching, directly
or through clothing, of the sex organs, or buttocks, or anus of a
person or the breast of a female."   5-14-101(8).   
     We have no case in which the Court has held that first-degree
sexual abuse is, or is not, a lesser offense included in rape.  We
have, however, held that rape does not include certain degrees of
carnal abuse because, unlike the rape provision, the carnal abuse
statutes permit conviction only if the defendant is a certain age. 
See Ark. Code Ann.  5-14-104(a)(Repl. 1993)(stating accused must
be "under the age of eighteen (18) years" to commit first-degree
carnal abuse); 5-14-106(a)(stating accused must be "twenty (20)
years old or older" to commit third-degree carnal abuse).  Because
the carnal abuse statutes contain an element not included in the
rape statute (i.e., the accused's age requirement), we have
concluded that certain degrees of carnal abuse are not included in
the offense of rape.  Bonds v. State, 310 Ark. 541, 543-44, 837 S.W.2d 881 (1992); Leshe v. State, 304 Ark. 442, 448, 803 S.W.2d 522 (1991); Kester v. State, 303 Ark. 303, 308, 797 S.W.2d 704
(1990); Sullivan v. State, 289 Ark. 323, 328-30, 711 S.W.2d 469
(1986).
     By clear analogy to the carnal abuse cases, we hold that
first-degree sexual abuse, as it might have been proven by the
evidence in this case, is not a lesser included offense of rape
because it contains an element (age of the perpetrator) not found
in the rape statute.  Therefore, Mr. Weber was not entitled to an
instruction on first-degree sexual abuse under Ark. Code Ann.  5-
1-110(b) (Repl. 1993).  
     Before leaving this subject, we must point out that in obiter
dicta we and the Court of Appeals have said from time to time that
first-degree sexual abuse is a lesser included offense of rape.  We
said it in Bonds v. State, supra, and in at least four other cases. 
See Langley v. State, 315 Ark. 472, 473, 868 S.W.2d 81
(1994)(stating, where defendant was charged with rape, that "the
trial court correctly charged the jury on the lesser included
offense of sexual abuse"); Curtis v. State, 279 Ark. 64, 65, 648 S.W.2d 487 (1983)("The jury also found the appellant not guilty of
rape but guilty of the lesser included offense of sexual abuse in
the first degree...."); Beed v. State, 271 Ark. 526, 547, 609 S.W.2d 898 (1980)(where defendant was charged with rape and Trial
Court failed to instruct on first-degree sexual abuse, Supreme
Court affirmed because there was no rational basis for the
instruction; the Court did not dispute the contention that sexual
abuse was included in rape); Speer v. State, 18 Ark. App. 1, 8, 708 S.W.2d 94 (1986)(stating first-degree sexual abuse is a lesser
included offense of attempted rape but that "sexual abuse in the
first degree is proven by a finding of the same or less than all of
the elements of rape").
     We note that first-degree sexual abuse may be proven by facts
other than those evident in this case, and we decline to say that
it may not be a lesser included offense in rape in any case.  Our
holding in this instance is solely that first-degree sexual abuse
as defined in  5-5-14-108(a)(3), the subsection upon which Mr.
Weber wanted the Trial Court to instruct the jury, is not a lesser
offense included in rape as charged here pursuant to  5-14-
103(a)(3).
     Affirmed.