Weaver v. State

Pierre WEAVER v. STATE of Arkansas

CA CR 96-360                                       ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division I
               Opinion delivered February 26, 1997


1.   Appeal & error -- arguments raised for first time on appeal
     not considered -- trial court must have had opportunity to
     consider argument. -- The appellate court will not consider
     arguments that are raised for the first time on appeal; to be
     preserved on appeal, an objection must be made to the trial
     court with sufficient clarity that the trial court has a fair
     opportunity to discern and consider the argument; here,
     appellant did not make clear to the trial court the basis for
     his objection to the evidence that the victim was HIV
     positive; the trial court did not have a fair opportunity to
     discern and consider the argument, and the appellate court
     would not consider it on appeal. 

2.   Evidence -- introduction of evidence that incriminates someone
     other than defendant -- when admissible. -- Evidence tending
     to show that someone other than the defendant committed the
     crime charged may be introduced, but such evidence is
     inadmissible unless it points directly to the guilt of the
     third party; evidence that does no more than create an
     inference or conjecture regarding another's guilt is
     inadmissible; evidence of mere motive or opportunity to commit
     the crime in another person, without more, will not suffice to
     raise a reasonable doubt about a defendant's guilt; there must
     be direct or circumstantial evidence linking the third person
     to the actual perpetration of the crime.

3.   Evidence -- nexus linking third parties with elements of
     offense lacking -- trial court properly refused to allow
     appellant to ask questions concerning victim's past sexual
     encounters. -- Where appellant did not proffer any evidence
     that the suspected sexual partners of the victim had the virus
     or that the victim contracted the virus by anything other than
     the relationship that she had with appellant, the nexus
     linking the third parties with the elements of the offense was
     lacking; therefore, the trial court properly refused to allow
     appellant to ask questions concerning the victim's past sexual
     encounters.

4.   Evidence -- rebuttal evidence defined -- true rebuttal
     evidence not required to be disclosed to defense. -- Genuine
     rebuttal evidence consists of evidence offered in reply to new
     matters; evidence can still be categorized as genuine rebuttal
     evidence even if it overlaps with the evidence-in-chief;
     however, the evidence must be responsive to that which is
     presented by the defense; the prosecuting attorney is
     required, upon a timely request, to disclose to a defendant
     all statements made by the defendant of which the prosecuting
     attorney has knowledge, but the State need not disclose true
     rebuttal evidence.

5.   Evidence -- testimony offered to rebut appellant's testimony -
     - testimony properly admitted as rebuttal testimony. --
     Appellant's contention that the trial court erred by admitting
     the rebuttal testimony of the investigator for the health
     department was without merit where the testimony was offered
     to rebut the testimony of appellant that he had told the
     victim that he had tested positive for HIV; the witness's
     testimony went to the intent of appellant not to tell anyone
     that he had the virus in order to expose them to it; it was
     proper rebuttal testimony and admissible. 


     Appeal from Sebastian Circuit Court; Don Langston, Judge;
affirmed.
     James R. Marschewski, for appellant.
     Winston Bryant, Att'y Gen., by:  Sandy Moll, Asst. Att'y Gen.,
for appellee.
     Terry Crabtree, Judge.
     Appellant was convicted of exposing another to human
immunodeficiency virus (HIV) in violation of Ark. Code Ann.  5-14-
123 (Repl. 1993) and was sentenced to thirty years in the Arkansas
Department of Correction.  He asserts three issues on appeal,
contending that the trial court erred by allowing the State to
introduce evidence that the victim had tested positive for HIV;
that the trial court erred in limiting his cross-examination of the
victim regarding other sexual contacts; and that the trial court
erred in allowing certain rebuttal testimony.  We affirm.
      On August 13, 1993, appellant was listed as a contact for HIV
and was tested for the virus at the Sebastian County Health
Department at the request of Gary Wicke, an investigator for the
Health Department.  The test returned positive for HIV, and
appellant was notified on August 26, 1993.  Wicke advised appellant
that according to Arkansas law, if he chose to have sexual
intercourse, he must first inform his partner that he was HIV
positive.  Appellant wanted another test, and the Health Department
tested him again that day.  The results of the second test were
also positive.  
     Appellant's first assignment of error is that the trial court
erred by allowing the State to introduce evidence that the victim
was HIV positive.  Appellant argues that the evidence was
irrelevant and that its prejudicial value outweighed any possible
probative value.  However, appellant, who was acting pro se during
this part of the trial, failed to preserve this point for appeal. 
At trial, appellant objected when the State began to question the
witness who had participated in testing the victim for HIV as to
the results of the victim's test.  The following occurred:
     Mr. Weaver:    I object.

     Mr. Tabor:     -- the September of 1994.

     Mr. Weaver:    I object.

     The Court:     Overruled.

     Mr. Weaver:    Do I need to state the basis why, sir?

     The Court:     Yes, sir.  State it.

     Mr. Weaver:    Okay.  Your Honor, we contend that the
                    aspects that [the victim] is HIV positive
                    --

     Mr. Tabor:     I'm sorry?

     The Court:     Well, I don't know what his objection is,
                    really.   

     Mr. Weaver:    We contend that that the fact that [the
                    victim] is positive, she's been exposed,
                    this is not infection as been exposed, and
                    that test result indicates that she is
                    positive.  This is no exposure.

     The Court:     Objection is overruled.

     This court will not consider arguments that are raised for the
first time on appeal.  Nix v. State, 54 Ark. App. 302, 925 S.W.2d 802 (1996).  "[T]o be preserved on appeal, an objection must be
made to the trial court with sufficient clarity that the trial
court has a fair opportunity to discern and consider the argument." 
Abernathy v. State, 278 Ark. 250, 251, 644 S.W.2d 590, 591 (1983)
(citations omitted).  Appellant did not make clear to the trial
court the basis for his objection to the evidence that the victim
was HIV positive.  The arguments that appellant raises on appeal,
that the evidence was irrelevant and unfairly prejudicial, are not
deducible from the above-quoted objection.  Therefore, the trial
court did not have "a fair opportunity to discern and consider the
argument," Abernathy, supra, and we will not consider it on appeal. 
     For his second assignment of error, appellant contends that
the trial court erred in limiting his cross-examination of the
victim regarding other sexual partners.  Appellant argues that the
State opened the door to evidence of other sources from which the
victim could have contracted the virus by presenting the testimony
that the victim was HIV positive.  In Zinger v. State, 313 Ark. 70,
852 S.W.2d 320 (1993), the supreme court rejected the appellant's
argument that the trial court should have allowed evidence of a
similar murder to show that the same person could have committed
the murder of which the appellants were accused.  The court stated:
          To address this issue, we must consider under what
     circumstances evidence incriminating others is relevant
     to prove a defendant did not commit the crime charged. 
     In Killian v. State, 184 Ark. 239, 42 S.W.2d 12 (1931),
     and West v. State, 255 Ark. 668, 501 S.W.2d 771 (1973),
     the defendants attempted to introduce testimony that
     other parties had been charged with the offense for which
     they were being tried.  In each case, we upheld the Trial
     Court's refusal to allow the testimony because there was
     no evidence showing the other party was guilty.

          Addressing this precise issue, the Supreme Court of
     North Carolina stated:

               A defendant may introduce evidence tending to
          show that someone other than the defendant
          committed the crime charged, but such evidence is
          inadmissible unless it points directly to the guilt
          of the third party. Evidence which does no more
          than create an inference or conjecture as to
          another's guilt is inadmissible.   

     State v. Wilson, 367 S.E.2d 589 (N.C. 1988).  The Supreme
     Court of California has recognized that a defendant has
     the right to present evidence of third party culpability
     but stated:

               [T]he rule does not require that any
          evidence, however remote, must be admitted to
          show a third party's possible culpability . .
          . [E]vidence of mere motive or opportunity to
          commit the crime in another person, without
          more, will not suffice to raise a reasonable
          doubt about a defendant's guilt: there must be
          direct or circumstantial evidence linking the
          third person to the actual perpetration of the
          crime.

     People v. Kaurish, 802 P.2d 278 (Cal. 1990).

Id. at 75-76, 852 S.W.2d  at 323.  
     The number of sexual partners of the victim would only be
relevant if appellant could show that one or more had HIV and that
the victim was exposed to it through them or that the victim knew
they had HIV and disregarded the dangers associated with having
sexual intercourse with them.  However, appellant did not proffer
any evidence that the suspected sexual partners of the victim did
have the virus or that the victim contracted the virus by anything
other than the relationship she had with appellant.  The nexus
linking the third parties with the elements of the offense was
lacking.  Therefore, the trial court properly refused to allow
appellant to ask questions concerning the victim's past sexual
encounters.
     For his last assertion of error, appellant contends the trial
court erred by admitting the rebuttal testimony of Gary Wicke, the
investigator for the Sebastian County Health Department.  At the
close of appellant's case, in which appellant testified that he
told the victim that he was HIV positive prior to having sexual
intercourse with her, the State informed the trial court that it
wished to recall Gary Wicke to testify that appellant had stated to
him that if he was truly positive, he would give HIV to everyone he
could. The State explained that it had just learned of the
statement by appellant and did not use the statement in its case-
in-chief because it had not provided it to appellant in discovery. 
The State contended that the testimony became relevant after
appellant testified that he told the victim he had tested positive
for HIV and that the testimony of Gary Wicke would refute his
testimony.  
     The trial court did not err in admitting the testimony of Gary
Wicke as rebuttal testimony.  The prosecuting attorney is required,
upon a timely request, to disclose to a defendant all statements
made by the defendant of which the prosecuting attorney has
knowledge.  Ark. R. Crim. P. 17.1(a)(ii).  However, the State need
not disclose true rebuttal evidence.  Pyle v. State, 314 Ark. 165,
862 S.W.2d 823 (1993).  In Pyle, the supreme court explained
rebuttal evidence:
     The answer lies in whether Heflin was properly a rebuttal
     witness.  If so, the state was not required to disclose
     him before trial.  Asher v. State, 303 Ark. 202, 795 S.W.2d 350 (1990); Weaver v. State, 290 Ark. 556, 720 S.W.2d 905 (1986).  Also, the scope of his testimony in
     that event is given wide latitude, and it will not be
     restricted merely because it could have been presented on
     direct. Birchett v. State, 289 Ark. 16, 708 S.W.2d 625
     (1986).  

          The definition of rebuttal evidence found in
     Birchett v. State is instructive.  We wrote that genuine
     rebuttal evidence "consists of evidence offered in reply
     to new matters."  Id. at 20.  We said that evidence can
     still be categorized as genuine rebuttal evidence even if
     it overlaps with the evidence in chief.  However, the
     evidence must be responsive to that which is presented by
     the defense.  Id. at 19.

Id. at 178-79, 862 S.W.2d  at 830.  
     Gary Wicke's testimony was offered to rebut the testimony of
appellant that he had told the victim that he had tested positive
for HIV.  Gary Wicke's testimony went to the intent of appellant
not to tell anyone that he had the virus in order to expose them to
it.  It was proper rebuttal testimony and admissible.
     Affirmed.
     Pittman and Rogers, JJ., agree.