Hinzman v. State

William HINZMAN v. STATE of Arkansas

CACR 95-128                                        ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division I
                 Opinion delivered May 15, 1996


1.   Motions -- directed verdict -- challenge to sufficiency of
     evidence. -- A motion for a directed verdict is a challenge to
     the sufficiency of the evidence.

2.   Appeal & error -- sufficiency of evidence reviewed first. --
     Preservation of an appellant's right to freedom from double
     jeopardy requires a review of the sufficiency of the evidence
     prior to a review of other trial errors; the test for
     determining the sufficiency of the evidence is whether there
     is substantial evidence to support the jury's verdict.

3.   Evidence -- substantial evidence defined. -- 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.

4.   Evidence -- corpus delicti requirement. -- Unless made in open
     court, a defendant's confession standing alone will not
     support a conviction except where it is accompanied by other
     proof that the offense was committed; this requirement for
     other proof, called the corpus delicti, mandates only that a
     showing be made that the offense occurred, and nothing more.

5.   Evidence -- hearsay -- sufficient to corroborate confession --
     substantial evidence to support conviction. -- Hearsay
     statements, when admitted, are sufficient to corroborate a
     confession; where appellant's wife testified, without
     objection, that her daughter told her that appellant had had
     oral intercourse with her and that appellant had touched her
     chest and had placed his hands inside her pants, the appellate
     court could not conclude that corroboration was lacking, and
     it held that there was substantial evidence to support the
     conviction.

6.   Evidence -- prior inconsistent statements -- extrinsic
     evidence of -- when admissible -- trial court correctly
     refused to allow introduction of stepdaughter's prior
     statements. -- Arkansas Rule of Evidence 613 permits extrinsic
     evidence of prior inconsistent statements of a witness for the
     purpose of impeachment if the witness is afforded the
     opportunity to explain or deny the statement and does not
     admit having made it, and the other party is afforded the
     opportunity to interrogate the witness on that statement; if
     the witness, however, admits making the prior inconsistent
     statement, then extrinsic evidence of that statement is not
     admissible; it has been said that an admitted liar need not be
     proved one; unsworn prior statements made by a witness cannot
     be introduced as substantive evidence in a criminal case to
     prove the truth of the matter asserted therein; therefore, the
     trial court was correct in its ruling that statements
     previously made by appellant's stepdaughter could not be
     introduced into evidence for impeachment purposes because she
     admitted making them; the trial court was also correct in
     recognizing that the statements could not be introduced as
     substantive evidence because neither of them were made under
     oath and were thus hearsay.  

7.   Evidence -- impeachment -- State's use of stepdaughter's prior
     statements exceeded proper bounds. -- The appellate court
     concluded that the State's use of prior statements by
     appellant's stepdaughter exceeded the proper bounds of
     impeachment where, in questioning appellant's stepdaughter,
     the prosecutor quoted from her prior statements line by line,
     in effect reciting them into the record; the appellate court
     concluded that the tactic allowed the State to accomplish
     through the back door that which it could not have achieved
     directly; the statements were not admissible for purposes of
     impeachment because appellant's stepdaughter had admitted
     making them and were not admissible as substantive evidence
     because they were not made under oath; by proceeding in this
     manner, the danger was too great that the jury would accord
     the statements substantive value.

8.   Evidence -- impeachment of party's own witness -- generally
     permitted. -- The impeachment of a party's own witness is
     generally permitted under A.R.E. Rule 607; the answer to the
     question whether the State should have been allowed to impeach
     appellant's stepdaughter by reference to a previous statement
     is governed by A.R.E. Rule 403, which provides for the
     exclusion of relevant evidence if its probative value is
     substantially outweighed by such dangers as prejudice,
     confusion, or waste of time.

9.   Discovery -- duty of State to notify defense of witnesses it
     intends to call. -- Arkansas Rule of Criminal Procedure 17.1
     requires the prosecution to give the names and addresses of
     witnesses it intends to call at trial, and A.R.Cr.P. Rule 19.2
     imposes a continuing duty to disclose this information; the
     required notification must be accomplished in sufficient time
     to permit beneficial use by the defense; the trial court has
     four options under A.R.Cr.P. Rule 19.7 to remedy a violation
     of the rules: permit discovery; exclude the undisclosed
     evidence; grant a continuance; or enter an order as the court
     deems appropriate under the circumstances.

10.  Discovery -- key to whether reversible discovery violation
     exists. -- 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.

11.  Evidence -- psychotherapist-patient privilege -- confidential
     communication defined. -- Under A.R.E. Rule 503(b), a patient
     has a privilege to refuse to disclose and to prevent any other
     person from disclosing his confidential communications made
     for the purpose of diagnosis or treatment of his physical,
     mental, or emotional condition, among himself, physician or
     psychotherapist, and persons who are participating in the
     diagnosis or treatment under the direction of the physician or
     psychotherapist, including members of the patient's family; a
     communication is "confidential" if it is not intended to be
     disclosed to third persons, except persons present to further
     the interest of the patient, or persons who are participating
     in the diagnosis or treatment under the direction of the
     physician or psychotherapist, including members of the
     patient's family.

12.  Evidence -- psychotherapist-patient privilege -- appellant's
     communications not privileged. -- Where a psychotherapist
     testified that he explained to appellant during counselling
     sessions that he would report his findings to the prosecuting
     attorney's office and the Department of Human Services, and
     stated that he did indeed make reports to both of those
     entities, the appellate court could not say that appellant
     could successfully claim that his communications during those
     sessions were privileged; in addition, the court allowed a
     lengthy continuance, permitted the opportunity for further
     cross-examination, and stated its willingness to strike any
     part of the witnesses's testimony that proved inadmissible;
     the appellate court could not say that the trial court's
     action in refusing to exclude the testimony amounted to an
     abuse of discretion under the circumstances.


     Appeal from Saline Circuit Court; John W. Cole, Judge.

     Meredith Wineland, for appellant.
     Winston Bryant, Att'y Gen., by:  Sandy Moll, Asst. Att'y Gen.,
for appellee.

     Judith Rogers, Judge.*ADVREP*CA4*                  DIVISION I




                                       CACR 95-128
                                        
                                                   May 15, 1996        
                                          

WILLIAM HINZMAN                      AN APPEAL FROM THE CIRCUIT
                 APPELLANT           COURT OF SALINE COUNTY,          
                                     NO. CR 93-404               
VS.
                                     HONORABLE JOHN W. COLE,         
STATE OF ARKANSAS                    CIRCUIT JUDGE
                 APPELLEE
                                     REVERSED AND REMANDED






                         Judith Rogers, Judge.
     
     The appellant, William Hinzman, was found guilty of raping his
eleven-year-old step-daughter, M.P., in violation of Ark. Code Ann.
 5-14-103(3) (Repl. 1993).  As a result of the jury's verdict, he
was sentenced to twenty years in the Arkansas Department of
Correction.  Appellant raises three issues in this appeal.  He
contends that:  (1) the trial court erred by permitting improper
impeachment of M.P. with a prior inconsistent statement; (2) the
trial court erred in allowing the testimony of two persons who were
not previously identified as witnesses; and (3) the trial court
erred in denying his motion for a directed verdict because the
State failed to offer adequate proof to corroborate his confes-
sions.  Because we find merit in the first issue raised, we reverse
and remand for a new trial.
     As his third point, appellant contends that the trial court
erred in denying his motion for a directed verdict.  A motion for
a directed verdict is a challenge to the sufficiency of the
evidence.  Young v. State, 321 Ark. 541, 906 S.W.2d 280 (1995). 
Preservation of an appellant's right to freedom from double
jeopardy requires a review of the sufficiency of the evidence prior
to a review of other trial errors.  Passley v. State, 323 Ark. 301,
915 S.W.2d 248 (1996); Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984).  The test for determining the sufficiency of the
evidence is whether there is substantial evidence to support the
jury's verdict.  Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702
(1996).  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.  Mosley v. State, 323 Ark. 244,
914 S.W.2d 731 (1996).
     In August of 1993, M.P. reported to her mother, appellant's
wife, that she was being molested by appellant.  M.P. moved with
her mother out of the home they shared with appellant, and the
local authorities were notified of M.P.'s accusations.  On
September 15, 1993, appellant was interviewed by Lieutenant David
Smith of the Saline County Sheriff's Department.  Appellant gave a
recorded statement in which he confessed to committing acts of
deviate sexual activity with the child.  In summary, he described
incidents of touching, fondling and the mutual performance of oral
sex.  Appellant also admitted that he had shown the child a
sexually explicit video as a demonstration of "what I wanted her to
do."  A transcript of the statement was introduced into evidence by
the State at appellant's trial. 
     Appellant attended two counselling sessions with Dr. William
G. Grambling, the first in the company of his wife, and the second
in the presence of both his wife and M.P.'s natural father, Jim
Price.  At trial, Dr. Grambling testified that at the first session
he explained to appellant and his wife that, although his primary
responsibility was toward the child, he would also work with them,
but that he expected the truth to be told.  He said that he sent
appellant's wife out of the room and that appellant looked at him
and said, "I did it."  He said that appellant's confession was
discussed with his wife when she returned to the room.  Dr.
Grambling also testified that appellant admitted what he had done
in the session attended by Jim Price.  Mr. Price confirmed this in
his testimony.  He said that appellant admitted that he had engaged
in oral intercourse with M.P. on four occasions and that appellant
related that he had educated the child by showing her an "X-rated"
video program.
     Appellant contends that there was no evidence introduced by
the State to corroborate the various confessions made by him.  We
cannot agree.
     Unless made in open court, a defendant's confession standing
alone will not support a conviction except where "accompanied by
other proof that the offense was committed."  Ark. Code Ann.  16-
89-111(d) (1987).  This requirement for other proof, called the
corpus delicti, mandates only that a showing be made that the
offense occurred, and nothing more.  Mills v. State, 322 Ark. 647,
910 S.W.2d 682 (1995).  Hearsay statements, when admitted, are
sufficient to corroborate a confession.  See Johnson v. State, 298
Ark. 617, 770 S.W.2d 128 (1989).  Here, appellant's wife testified,
without objection, that M.P. told her that appellant had "chewed
her out," meaning that appellant had oral intercourse with her. 
Mrs. Hinzman further testified that M.P. reported that appellant
had touched her chest and had placed his hands inside her pants. 
On the basis of this testimony, we cannot conclude that corrobora-
tion was lacking and hold that there was substantial evidence to
support the conviction.
     Prior to trial, M.P. recanted her allegations of abuse.  The
primary thrust of this appeal concerns the dual contentions that
the trial court erred by permitting the State to call M.P. solely
for the purpose of impeaching her testimony and by allowing the
State to outline the substance of those statements during the
impeachment process.  Appellant contends that the probative value
of the State's use of the statements was far outweighed by the
danger of unfair prejudice.  
     The issue arose in this manner.  Appellant filed a motion in
limine informing the court that M.P. had disavowed her accusations
of sexual misconduct perpetrated by appellant.  For this reason, he
asked the court to prohibit the State from calling her as a witness
for the purpose of impeaching her testimony with the prior
statements.  The court addressed the motion in chambers before the
beginning of trial.  After M.P. was provided the opportunity to
consult with an attorney, she told the court that she would testify
that the statements she had made in the past were false.  The trial
court ruled that it would permit the State to call her as a witness
for the purposes of establishing opportunity, timing and identity. 
The court further ruled that, if M.P. denied making the earlier
statements, then it would allow the State to impeach her with her
inconsistent statements.  The court also offered to instruct the
jury that it was to consider the statements only for the purpose of
judging the child's credibility, but not as substantive evidence.
     When M.P. testified before the jury, she said that appellant
had never touched her in an inappropriate manner, and she denied
that he had ever engaged in oral sex with her.  M.P. admitted that
she had previously reported that appellant had done those things,
but she said that her statements were not true.  She explained that
she had falsely accused the appellant in anger over being punished
for having told a lie.  The trial court refused the State's request
to introduce into evidence the separate statements M.P. had made to
Officer Smith and a caseworker from the Saline County Department of
Human Services.  Over appellant's multiple objections, the court
permitted the State to question M.P. in detail and with specificity
regarding the statements she had made.
     In deciding this issue, we observe a few general principles. 
Rule 613 of the Arkansas Rules of Evidence permits extrinsic
evidence of prior inconsistent statements of a witness for the
purpose of impeachment if the witness is afforded the opportunity
to explain or deny the statement, and does not admit having made
it, and the other party is afforded the opportunity to interrogate
the witness on that statement.  Harris v. State, 36 Ark. App. 120,
819 S.W.2d 30 (1991); see also Chisum v. State, 273 Ark. 1, 616 S.W.2d 728 (1981).  If the witness, however, admits making the
prior inconsistent statement, then extrinsic evidence of that
statement is not admissible.  It has been said that an admitted
liar need not be proved one.  Gross v. State, 8 Ark. App. 241, 650 S.W.2d 603 (1983).  See also Ford v. State, 296 Ark. 8, 753 S.W.2d 258 (1988).  Also, unsworn prior statements made by a witness
cannot be introduced as substantive evidence in a criminal case to
prove the truth of the matter asserted therein.  Ark. R. Evid.
801(d)(1)(i); Lewis v. State, 41 Ark. App. 89, 848 S.W.2d 955
(1993).  See also Smith v. State, 279 Ark. 68, 648 S.W.2d 490
(1983).  Therefore, the trial court was correct in its ruling that
the statements previously made by M.P. could not be introduced into
evidence for impeachment purposes since she admitted making them. 
The trial court was also correct in recognizing that the statements
could not be introduced as substantive evidence since neither of
them were made under oath, and were thus hearsay.  
     As authority for his argument, appellant places much emphasis
on our decision in Gross v. State, supra.  In that case, the
prosecution knew, as it did here, that its witness, who had once
implicated both himself and the appellant in the commission of a
crime, would not testify in accordance with his earlier statement. 
The statement itself was not admitted into evidence, nor did the
police officers who recorded the statement testify regarding it. 
However, the prosecution had been allowed to question the witness
about the particulars of his prior inconsistent statement.  In
reversing, we held that the resolution of the issue was controlled
by Rule 403 of the Arkansas Rules of Evidence, and we were
persuaded that any advantage the prosecution may have gained by
discrediting the witness was exceeded by the risk of prejudice
resulting from disclosing to the jury the content of the statement. 
     In Gross v. State, we relied heavily on the decision in
Roberts v. State, 278 Ark. 550, 648 S.W.2d 44 (1983).  There, the
witness first professed to have witnessed the murder of his mother
by his father.  In two subsequent accounts, the witness retracted
that statement and gave a differing version of the events he had
observed, which were less incriminating of his father.  Although
the witness fully admitted making the prior inconsistent statement,
the trial court allowed the prosecution to introduce the complete
text of the statement through another witness.  On appeal, the
court found error in that ruling.  The court also addressed the
question of whether the State could impeach its own witness by use
of the prior inconsistent statement.  The court held that such
impeachment was permitted if the probative value on the issue of
impeachment outweighs the prejudicial effect arising from the
danger that the jury will give substantive effect to the prior
inconsistent statement.  The court concluded that, under the
circumstances of that case, it was error to have allowed the State
to ask the witness about the prior inconsistent statement.  The
court further observed:
   The State argues that asking Richard about
his prior inconsistent statements was for
impeachment purposes, but it was really a mere
subterfuge.  The only conceivable reason that
the State could have for impeaching its own
witness was to bring before the jury hearsay
information not admissible as substantive
evidence, hoping that the jury would accord it
substantive value although it was clearly
inadmissible as such under Rule 801(d)(1)(i). 
In this instance the danger of convicting the
defendant on unsworn testimony is too great;
the limiting instruction to the jury directing
them to consider the prior inconsistent state-
ment for impeachment only was not a sufficient
safeguard.
Id. at 552, 648 S.W.2d  at 46. 
     In a subsequent decision, Pemberton v. State, 292 Ark. 405,
730 S.W.2d 889 (1987), a witness for the State gave testimony which
was contrary to an earlier statement she had made.  The trial court
initially ruled that the State could not ask her about the prior
statement, but later allowed such questioning in light of questions
asked by the defense on cross-examination.  On appeal, the
appellant argued that the decision in Roberts v. State, supra,
disallowed any reference whatsoever to the prior inconsistent
statement.  The supreme court disagreed, holding that under the
attendant circumstances, the questioning of the witness was not
unduly prejudicial.  In discussing Roberts, the court said:
   Whatever the unfair prejudice may have been
in that case, we do not find it here.  The
ruling in the Roberts case that the prior
statement itself could not be quoted into
evidence as part of the impeachment process
was consistent with prior Arkansas cases, and
indicated that the adoption of A.R.E. 613 had
not presaged any change in that respect. 
However, if we meant to say there that the
fact that a reference to, rather than a quota-
tion of, a prior inconsistent statement was
unfairly prejudicial because it came in the
form of the state's impeachment of its own
witness, we failed to take account of A.R.E.
607.  That rule makes it clear that there no
longer is a general prohibition against such
impeachment.
Pemberton v. State, at 408-409, 730 S.W.2d  at 891. (emphasis
supplied) (citations omitted).
     With these decisions in mind, we conclude that the State's use
of the statements exceeded the parameters of proper impeachment. 
In questioning M.P., the prosecutor quoted from the statements,
line by line, in effect reciting the statements into the record. 
We must agree with appellant that this tactic allowed the State to
accomplish through the back door that which it could not have
achieved directly.  As stated above, the statements were not
admissible for purposes of impeachment since M.P. had admitted
making them, and the statements were not admissible as substantive
evidence because they were not made under oath.  By proceeding in
this manner, the danger was too great that the jury would accord
the statements substantive value.
     Whether or not the State should have been allowed to impeach
M.P. by reference to the previous statement is another issue.  As
pointed out by the supreme court in Pemberton v. State, supra, the
impeachment of a party's own witness is generally permitted under
Rule 607 of the Arkansas Rules of Evidence.  See also Chisum v.
State, 273 Ark. 1, 616 S.W.2d 728 (1981).  In accordance with that
decision, and the opinions in Roberts v. State, supra, and Gross v.
State, supra, the answer to this question is governed by Rule 403
of the Rules of Evidence.  Since we are reversing this case because
the State exceeded the bounds of permissible impeachment, we
address this question only to the extent that it may arise on
retrial.  Since the complexion of the case will likely be different
on remand, we are not willing to decide at this time whether
impeachment of the witness will be permitted, and instead we leave
it for the trial court to determine, in its discretion, whether the
risk of unfair prejudice will outweigh the probative value of
impeachment.
     As his last issue, appellant argues that the trial court erred
by not excluding the testimony of Dr. Grambling and Jim Price, who
were called by the State in light of M.P.'s disaffirmance of her
previous statements.  Appellant objected and requested a continu-
ance, alleging a discovery violation because neither of them had
been listed by the State as potential witnesses.  The court allowed
the State to present their testimony and initially denied appel-
lant's request for a continuance, but the court later altered its
ruling by granting a three-week continuance after the witnesses had
been examined.  In granting the continuance, the trial court stated
that it was doing so "out of an abundance of caution," but that it
did not feel that appellant had been surprised or prejudiced by the
witnesses's testimony.  The court also stated that he would permit
appellant further cross-examination of the witnesses and later,
when trial resumed, the court stated that it would strike any part
of the witnesses's testimony which appellant showed to be objec-
tionable.      
     Rule 17.1 of the Rules of Criminal Procedure requires the
prosecution to give the names and addresses of witnesses it intends
to call at trial, and Rule 19.2 imposes a continuing duty to
disclose this information.  The required notification must be
accomplished in sufficient time to permit beneficial use by the
defense.  Robinson v. State, 317 Ark. 407, 878 S.W.2d 405 (1994). 
The trial court has four options under Rule 19.7 to remedy a
violation of the rules:  permit discovery, exclude the undisclosed
evidence, grant a continuance, or enter an order as the court deems
appropriate under the circumstances.  Nooner v. State, 322 Ark. 87,
907 S.W.2d 677 (1995).  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, 862 S.W.2d 252 (1993).
     Appellant's claim of prejudice is based on the argument that
the witnesses' testimony was privileged under Rule 503 of the Rules
of Civil Procedure, which sets out the psychotherapist-patient
privilege.  Appellant's claim of prejudice is misplaced in that the
record reflects that the communications made by appellant in the
counselling sessions were not "confidential."
     Rule 503(b) provides:
A patient has a privilege to refuse to dis-
close and to prevent any other person from
disclosing his ... confidential communications
made for the purpose of diagnosis or treatment
of his physical, mental or emotional condi-
tion, including alcohol or drug addiction,
among himself, physician or psychotherapist,
and persons who are participating in the
diagnosis or treatment under the direction of
the physician or psychotherapist, including
members of the patient's family.
A communication is "confidential" if it is not intended to be
disclosed to third persons, except persons present to further the
interest of the patient, or persons who are participating in the
diagnosis or treatment under the direction of the physician or
psychotherapist, including members of the patient's family.  Ark.
R. Evid. 503(a)(4).   
     Dr. Grambling testified that he explained to appellant that he
would report his findings to the prosecuting attorney's office and
the Department of Human Services, and said that he did indeed make
reports to both of those entities.  Thus, it cannot be said that
appellant can successfully claim that his communications during
those sessions were privileged.  In addition, the court allowed a
lengthy continuance, permitted the opportunity for further cross-
examination and stated its willingness to strike any part of the
witnesses's testimony that proved inadmissible.  Although we agree
with appellant that the better course would have been for the court
to have allowed a continuance before the witnesses testified, we
cannot say that the court's action amounted to an abuse of
discretion under these circumstances.  See Caldwell v. State, 319
Ark. 243, 891 S.W.2d 42 (1995).
     Reversed and remanded.
     Pittman and Cooper, JJ., agree.