Willie Banks, Jr. v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

CHIEF JUDGE JOHN F. STROUD, JR.

DIVISION II

WILLIE BANKS, JR.

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 00-805

December 5, 2001

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT, FIRST DIVISION [CR98-2361]

HONORABLE MARION

HUMPHREY, CIRCUIT JUDGE

AFFIRMED

Willie Banks, Jr., was convicted by a Pulaski County jury of rape and sentenced to forty years in the Arkansas Department of Correction. On July 5, 2001, in an unpublished opinion, Banks v. State, CACR 00-805, this court remanded this case to supplement the record to include the portions of the record that were previously omitted. Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Arkansas Rules of the Supreme Court and Court of Appeals, appellant's counsel has filed a motion to withdraw on the grounds that the appeal is without merit. Counsel's motion was accompanied by a brief referring to everything in the record that might arguably support an appeal, including a list of all rulings adverse to appellant made by the trial court on all objections, motions and requests made by either party with an explanation as to why each adverse ruling is not a meritorious ground for reversal. The clerk of this court furnished appellant with a copy of

his counsel's brief and notified him of his right to file pro se points. Appellant has filed points, and the State has filed a brief in response to appellant's pro se points.

We first note that the issue of sufficiency of the evidence is procedurally barred from review by this court. Rule 33.1(a) of the Arkansas Rules of Criminal Procedure provides, "In a jury trial, if a motion for directed verdict is to be made, it shall be made at the close of the evidence offered by the prosecution and at the close of all of the evidence. A motion for directed verdict shall state the specific grounds therefor." Although appellant's counsel made a motion for directed verdict at the close of the State's evidence, he did not renew his motion at the close of all the evidence. Therefore, this point was not preserved for appeal.

Nevertheless, there was sufficient evidence to support appellant's conviction for rape. When the sufficiency of the evidence is challenged, the appellate court considers only that evidence which supports the guilty verdict, and the test is whether there is substantial evidence to support the verdict. Blockman v. State, 69 Ark. App. 192, 11 S.W.3d 562 (2000). Substantial evidence is evidence of such certainty and precision as to compel a conclusion one way or another. Id.

A person commits rape if he engages in sexual intercourse or deviate sexual activity with another person by forcible compulsion. Ark. Code Ann. § 5-14-103(a)(1) (Repl. 1997). "Deviate sexual activity" is defined as "any act of sexual gratification involving the penetration, however slight, of the . . . mouth of one person by the penis of another person; or the penetration, however slight, of the labia majora . . . of one person by any body member or foreign instrument manipulated by another person." Ark. Code Ann. § 5-14-101(1)(B) (Repl. 1997). "Forcible compulsion" is defined as "physical force or a threat,express or implied, of death or physical injury to . . . any person." Ark. Code Ann. § 5-14-101(2) (Repl. 1997).

At trial, the victim testified that on February 12, 1998, while at appellant's brother's house, appellant grabbed her by the hair, threw her against the wall, and began beating her in the face. He threw her on the bed, turned off the lights, and told her to shut up or he would hit her in the head with a pistol. He made her take off her clothes, and then he made her perform oral sex on him. He also attempted to have intercourse with her, but he was unable to maintain an erection. The victim testified that appellant placed his penis, as well as his fingers, in her vagina. Appellant then made the victim perform oral sex again, and he ejaculated in her mouth. The victim spit the semen into a trash can, where it was retrieved by the police. Analysis of the semen indicated that there was a one in six billion chance that the DNA found therein belonged to anyone other than appellant. The testimony of the rape victim satisfies the substantial-evidence requirement in a rape case. Burmingham v. State, 342 Ark. 95, 27 S.W.3d 351 (2000). This evidence constitutes sufficient evidence to support appellant's rape conviction.

There were two pretrial motions that were decided adversely to appellant. The first was a motion by the State for a blood sample from appellant pursuant to Ark. R. Crim. P. 18.1(a)(vii), which was granted by the trial court. Appellant did not object to this request; therefore, he cannot argue for the first time on appeal that the trial court erred in granting the State's request. Hill v. State, 341 Ark. 211, 16 S.W.3d 539 (2000).

Nevertheless, there was no error in granting this motion. The State had DNA evidence retrieved from the crime scene, namely semen, and in order to connect said evidence to appellant, it was necessary to obtain a sample of appellant's DNA by drawing his blood. Our supreme court has held that it is not a violation of appellant's Fifth Amendment right against self-incrimination to order that a sample of blood be taken because the protections of the Fifth Amendment do not extend to demonstrative, physical tests. Moore v. State, 323 Ark. 529, 915 S.W.2d 284 (1996). Likewise, if there is probable cause for taking the blood sample, such a taking does not constitute an unreasonable search and seizure under the Fourth Amendment. See id. In the present case, there was probable cause to draw appellant's blood, as the victim had identified him as the person who had raped her.

The other pretrial motion decided adversely to appellant was the trial court's denial of appellant's request to be allowed to ask the victim about prior sexual contact with him. The trial court granted appellant a pretrial hearing on this issue, at which time appellant called the victim as a witness; the victim denied having any sexual contact with appellant prior to February 12, 1998. Appellant did not take the stand or present any other evidence at this pretrial hearing, and the trial court denied his request to introduce proof of the victim's prior sexual conduct at trial.

Arkansas Code Annotated section 16-42-101, commonly known as the rape-shield statute, provides that evidence of a victim's prior sexual conduct is inadmissible at trial except where the trial court, at an in camera hearing, makes a written determination that suchevidence is relevant to a fact in issue and that its probative value outweighs its inflammatory or prejudicial nature; the trial court is vested with a great deal of discretion in ruling whether the victim's prior sexual conduct is relevant, and such a decision will not be overturned unless there is a manifest abuse of discretion. Graydon v. State, 329 Ark. 596, 953 S.W.2d 45 (1997). It cannot be said that the trial court's denial of appellant's motion was an abuse of discretion. In this case, the victim denied having any prior sexual relationship with appellant; therefore, appellant's inquiry was simply not relevant.

The only other ruling during the trial that was adverse to appellant occurred during the direct examination of State's witness Dr. Teresa Clark. The prosecuting attorney asked Dr. Clark if the victim had indicated whether appellant had attempted vaginal penetration. Dr. Clark referred to the nurse's note to see what the victim had told the nurse, and appellant's counsel objected to hearsay. The trial court overruled the objection. This ruling was not in error. Rule 803(4) of the Arkansas Rules of Evidence provides that "statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensation, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment" are not excluded by the hearsay rule. Furthermore, the testimony was merely cumulative, as the victim had already testified that appellant had attempted to penetrate her vagina with his penis by using his fingers. Evidence that is merely cumulative or repetitious of other evidence admitted without objection cannot be prejudicial. Eliott v. State, 342 Ark. 237, 27 S.W.3d 432 (2000).

Appellant raises several issues in his pro se points on appeal. His points on appeal, as we understand them, are (1) that his trial counsel was ineffective because an Anders brief was filed instead of an appeal on the merits; (2) that he was not given the DNA test results until the day of the trial, and his trial counsel was ineffective for failing to obtain such test results prior to trial and failing to ask for a mistrial due to the fact the test results were not given to appellant; (3) that the entire record was not transcribed for his appeal; (4) that the prosecutor stated that appellant's witness, Billy Banks, was also a criminal; (5) that another public defender represented appellant during the "picking of the jury" and closing argument; she excused people that appellant wanted on the jury; and she was not prepared to represent him; and (6) that appellant's appellate counsel was ineffective because he filed a no-merit brief and because he would not file an ineffective-assistance-of-counsel motion against appellant's trial counsel.

With regard to the ineffective-assistance-of-counsel arguments, there is no indication that appellant raised these arguments below, and these arguments cannot be addressed for the first time on appeal. Nichols v. State, 69 Ark. App. 212, 11 S.W.3d 19 (2000). In order for a defendant to argue ineffective assistance of counsel on direct appeal, he must first have presented the claim to the lower court either during the trial or in a motion for new trial. Id.

Appellant also contends that he was not given the results of his DNA test until the day of trial. Even if this is true, appellant made no objection to the introduction of the DNA evidence at trial. An argument is not preserved for appeal unless there has been an objection in the trial court. Marshall v. State, 342 Ark. 172, 27 S.W.3d 392 (2000).

Appellant also complains that the entire record was not transcribed for his appeal. In Campbell v. State, 74 Ark. App. 277, 47 S.W.3d 915 (2001), this court held that a complete record is necessary with an Anders brief in order for the court to conduct a full examination of the record. Although the initial record filed in this case did not include voir dire, opening statements, or closing arguments, a supplemental record, filed September 25, 2001, provided the parts of the record that were previously omitted. A careful examination of these portions of the supplemental record by this court indicate that there were no additional rulings, motions, or requests adverse to appellant.

Appellant contends that the prosecutor stated that appellant's witness, Billy Banks, was also a criminal. We cannot find this statement in the record. What we did find was that the State asked Billy Banks about his prior felony conviction for theft by receiving. This argument is not preserved for appeal because there was no objection in the trial court. See Marshall v. State, supra. Nevertheless, such a question was not improper. Rule 609(a) of the Arkansas Rules of Evidence provides, in pertinent part, "For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted but only if the crime was punishable by . . . imprisonment in excess of one (1) year . . . and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party or a witness." In the present case, Billy Banks admitted that he had been convicted of theft by receiving in 1996 and had received a five-year sentence.

Appellant's last point of appeal is that Tjuana Byrd, another public defender, assisted his trial counsel, Steve Abed, and that she represented him during the "picking of the jury"and closing argument and excused people that he wanted on the jury. An examination of the record indicates that Mr. Abed represented appellant during jury selection. While it is true that Ms. Byrd made the closing argument for appellant, such is not reversible error. To the extent that appellant considers the closing argument to have been ineffective assistance of counsel, that argument was not made to the trial court and will not be addressed here. Nichols, supra.

From a review of the record and the brief presented to this court, appellant's counsel has complied with the requirements of Rule 4-3(j) of the Arkansas Rules of the Supreme Court and the Court of Appeals, and the appeal is without merit. Counsel's motion to be relieved is granted and appellant's judgment of conviction is affirmed.

Affirmed.

Griffen, J., agrees.

Pittman, J. concurs.