Michael Lamont Thomas v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN E. JENNINGS, JUDGE

DIVISION II

CACR 00-643

January 23, 2002

MICHAEL LAMONT THOMAS AN APPEAL FROM PULASKI

APPELLANT COUNTY CIRCUIT COURT

VS.

HONORABLE JOHN B. PLEGGE,

STATE OF ARKANSAS CIRCUIT JUDGE

APPELLEE

AFFIRMED

Michael Lamont Thomas was found guilty by a Pulaski County jury of rape, for which he was sentenced as an habitual offender to a term of forty years in prison. Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals, appellant's counsel filed a motion to withdraw on the grounds that the appeal was without merit. In an unpublished opinion, we remanded for the record to be supplemented to include voir dire, and opening and closing statements. Thomas v. State, CACR 00-643 (July 5, 2001). In a later unpublished opinion, we granted counsel's motion to supple-

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ment the record, but we denied counsel's request to stand on his original brief. Thomas v. State, CACR 00-643 (September 26, 2001). Counsel has now filed a substituted brief referring to everything in the record that might arguably support an appeal. All objections, motions, and requests made by appellant and denied by the court have been abstracted. The clerk of this court furnished appellant with a copy of his counsel's brief and notified him of his right to file a pro se list of points within thirty days. Appellant has filed such a brief.

At trial, S.B., the thirteen-year-old daughter of appellant's estranged girlfriend, testified that on July 7, 1999, appellant made her get into his van and that he drove her to her mother's home after stopping by his brother's house. She said that appellant asked her several times if she wanted to have sex. She said no, but he took her into her mother's room and forced himself on her. She immediately told family members what had happened and she was taken to Children's Hospital for an examination, where a rape kit was taken. Semen was found on a vaginal swab. It was identified as being consistent with appellant's DNA.

The trial court denied appellant's motions for a directed verdict. We treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Branscum v. State, 345 Ark. 21, 43 S.W.3d 148 (2001). However, appellant did not specify in what respect he considered the evidence insufficient; therefore, this issue was not preserved for appeal. Ark. R. Crim. P. 33.1(c). Even so, we could not say there is no substantial evidence to support the guilty verdict. The testimony of a rape victim alone satisfies the substantial evidence requirement in a rape case. Burmingham v. State, 342 Ark. 95, 27 S.W.3d 351 (2000).

Before trial, the court granted the State's motion to prohibit appellant from eliciting testimony concerning the child's sexual experiences. It was said that the child had once stated that she had been having sex since she was eleven and that she had been intimate with three persons. The court ruled the evidence inadmissible, but said that it might be introduced if the State opened the door for such testimony. The ruling was correct, as this kind of testimony is barred by the rape-shield statute, found at Ark. Code Ann. § 16-42-101 (Repl. 1999). The purpose of this statute is to shield victims of rape or sexual abuse from the humiliation of having their personal conduct, unrelated to the charges pending, paraded before the jury and the public when suchconduct is irrelevant to the defendant's guilt. State v. Babbs, 334 Ark. 105, 971 S.W.2d 774 (1998).

Preliminarily, defense counsel refused to stipulate to the chain of custody of the rape kit and blood sample taken from appellant. Counsel, however, made no objection on this ground when the exhibits were admitted. So, there was no adverse ruling upon which to base an argument on appeal.

During voir dire, counsel asked to excuse for cause a juror who said that she would "try" to be fair. The trial judge then asked several questions of the juror, who ultimately agreed that she would try to be fair and impartial, and to render a verdict based on the facts and the law. In his brief, counsel maintains that the court did not specifically rule on counsel's request to excuse the juror. We agree that the point was waived. The failure to obtain a ruling on an issue precludes review of that issue on appeal. See Jackson v. State, 334 Ark. 406, 976 S.W.2d 370 (1998).

Also during voir dire, defense counsel asked the jurors their opinion about the science of DNA. Counsel commented that "only a few years back folks were saying that the earth was flat." The trial court sustained the State's objection to this commentary. The extent and scope of voir dire examination are matters lying within the sound discretion of the trial court, which will not be reversed on appeal absent an abuse of discretion. Clark v. State,328 Ark. 501, 944 S.W.2d 533 (1997). We find no abuse of discre tion in not permitting counsel to compare scientific opinion regarding DNA with once-held opinions concerning the shape of the earth.

Also at trial, appellant reserved opening statement until after the State rested its case. During it, the court interrupted appellant's counsel and admonished him for making what sounded more like closing argument, as he was arguing to the jury that the victim's testimony was not credible. Trial courts have wide discretion in the supervision of opening statements and will not be reversed on appeal unless a manifest abuse of discretion is shown. Petty v. State, 245 Ark. 808, 434 S.W.2d 602 (1968). No abuse of discretion was shown here.

During the State's closing rebuttal argument, the trial court overruled appellant's objection to the prosecutor's statements concerning how old the victim looked. The prosecutor said that the child did not look to be twenty-one, or 102, but that she looked her age. The court did not abuse its discretion. In his closing argument, appellant repeatedly questioned the State's evidence as to the victim's age. The prosecutor's comments were merely responsive to those made first by the appellant and were thus not improper. See Bethel and Wallace v. State, 180 Ark. 290, 21 S.W.2d 176 (1929).

At sentencing, the State asked that appellant's sentence be served consecutively to a sentence appellant was to serve on a parole revocation. The court did not rule on this point. Even so, by law, the sentences are to be served consecutively. See Ark. Code Ann. § 16-93-607(e)(1) (1987).

We turn now to appellant's list of points. Appellant contends that the victim and her mother told the prosecutor that the allegation of rape was a lie. Appellant contends that he was prejudiced by the prosecutor not allowing the mother to testify. He also argues that, had this information been revealed, the outcome of trial would have been different. In support of his argument, he has filed with his list of points affidavits of the mother and the victim stating that it was all a lie. These matters are being raised for the first time on appeal. Our law is well established that arguments not raised at trial will not be considered on appeal. Hutcherson v. State, 74 Ark. App. 72, 47 S.W.3d 267 (2001).

Appellant also argues that the trial court erred in allowing the prosecutor to stipulate into evidence the rape kit without allowing the appellant to cross-examine the officer concerning the chain of custody. He suggests that the evidence was tampered with. He also contends that his cross-examination of the witness wasrestricted by the trial court. These issues are also being raised for the first time on appeal, and we do not address them.

From our review of the record and the briefs presented to this court, we find compliance with Rule 4-3(j) of the Rules of the Arkansas Supreme Court and the Court of Appeals, and conclude that the appeal is without merit. Accordingly, counsel's motion to be relieved is granted, and the judgment of conviction is affirmed.

Affirmed.

Stroud, C.J., and Crabtree, J., agree.