Calvin LaShawn Campbell v. State of Arkansas

CHIEF JUDGE JOHN F. STROUD, JR.

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

DIVISION II

CALVIN LASHAWN CAMPBELL

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 01-29

January 23, 2002

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT,

FOURTH DIVISION [CR 99-514]

HONORABLE JOHN W.

LANGSTON, CIRCUIT JUDGE

AFFIRMED

Calvin Campbell was convicted by a Pulaski County jury of residential burglary and battery in the first degree with regard to an incident that occurred on December 10, 1998; he was also charged with rape in connection with that incident, but the jury deadlocked on that charge, forcing the trial judge to declare a mistrial. In the second trial on the charge of rape, Campbell was convicted by a jury and sentenced to forty years in the Arkansas Department of Correction.

This no-merit appeal was originally remanded by this court to supplement the record. Campbell v. State, 74 Ark. App. 277, 47 S.W.3d 915 (2001) (supp. op. on denial of reh'g, 53 S.W.3d 48 (2001)). On remand, the record was supplemented with the omitted portions.

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 within thirty days; although appellant did not file any points at the time the case was originally submitted to this court, he did file points after the case was remanded for the record to be supplemented.

There was one ruling during voir dire of the prospective jurors that was adverse to appellant. The prosecutor asked if anyone had a problem sitting in judgment of others for religious or philosophical reasons. One prospective juror said that he ministered to people in correctional facilities and that it would be difficult for him to minister to those people after he had sentenced someone. When questioned further, he stated that it would be difficult for him to be an impartial juror. At that time, the State asked that the prospective juror be excused for cause. Appellant's attorney objected, arguing that the response that it "would be difficult" was not enough to excuse the prospective juror for cause. The trial judge overruled appellant's objection and granted the State's motion to excuse the prospective juror for cause.

This ruling was not in error. In Henry v. State, 309 Ark. 1, 828 S.W.2d 346 (1992), our supreme court affirmed the trial court's dismissal of a venireperson for cause on the basis that the prospective juror was a friend of the defendant's daughter and that it would be an embarrassment for her to see the daughter if she were on the jury and the defendant was convicted. The potential juror stated that "it would be difficult" for her to be an impartial juror. Although she also said that she believed that she could impartially weigh the evidence and apply the law, sitting as a juror on that particular case would cause a problem for her. In upholding the trial court's decision to excuse the potential juror for cause, the supreme court stated:

A potential juror may be challenged for cause if he or she is actually biased. A venireperson is actually biased if he or she cannot try the case impartially and without prejudice to the substantial rights of the party challenging. This determination lies within the sound discretion of the trial court. Ms. Staples' responses to questions of whether she could try the case impartially were, at best, conflicting, and she clearly stated she would prefer not to be seated on the jury due to her acquaintance with Henry's daughter. The trial court is in a superior position to assess the demeanor of the prospective jurors, and we see no abuse of the trial court's discretion in excusing Ms. Staples for cause.

309 Ark. at 5-6, 828 S.W.2d at 349 (citations omitted).

In the case at bar, the prospective juror said it would be difficult for him to be an impartial juror because of his prison ministry. The trial court's determination to remove him for cause was not an abuse of discretion. Furthermore, even if the prospective juror had not been excused for cause, the State could have exercised a peremptory challenge to strike the juror, as the State had not and did not exercise any of its peremptory challenges.

At trial, the victim, Jamie Nelson, testified that on December 10, 1998, she spoke to appellant on the phone between 9 and 10 p.m., and he asked if her boyfriend was home. She said no. After her conversation with appellant, Nelson went to sleep, but she was awakened by a knocking on the front door. She did not get up because she did not want to answer the door that late at night. Nelson then heard glass break, and she found appellant coming up the stairs. She asked him how he got in; he told her that the door was unlocked, but she testified that it was not unlocked.

Appellant asked Nelson, who was nine months pregnant at the time, if she would have sex with him; Nelson told him no. She told him to leave, but he refused. Nelson testified that appellant choked her, threw her down on a chair and then on the bed, they rolled to the floor, and he stabbed her in the face and throat with a knife. She said that he pulled her panties and his pants down, forced her legs open with his knees, and put his penis inside her vagina, but that he did not ejaculate. As she tried to fight him off, he stabbed her in the throat twice more. Nelson said that she then played dead so he would not stab her in the stomach, and appellant left. Nelson then called 911, which dispatched police officers and an ambulance.

A North Little Rock police officer, Susan Cole, testified that she responded to a call from Nelson's house on the night in question and found Nelson sitting on the front porch covered in blood. Prior to leaving in the ambulance, Nelson told Officer Cole, "Shawn cut me." Officer Cole later interviewed Nelson at the hospital, at which time Nelson told her that not only had appellant cut her, he had also raped her. Officer Cole made contact withappellant and received permission from him to go into his house to search for evidence; she found a pair of white tennis shoes belonging to appellant that had a smear of blood on the toe of the left shoe.

Although Officer Terry Martin, the other North Little Rock police officer who responded to the call, was unavailable for trial, by agreement of the parties, his testimony from the previous trial was read into the record. When Officer Martin arrived at the scene, he found Nelson sitting on the front porch covered in blood, and she told him that Shawn had broken into her house and stabbed her. Officer Martin testified that a window in the front of the house had been broken out, the furniture in the residence had been turned over, and there was a large amount of blood and blood spatter inside the house. There was a trail of blood from the front door up the stairs to the bedroom and more blood on the bed and the floor next to the bed.

Beverly Lawson, the nurse who examined Nelson at the hospital, testified that Nelson arrived covered in blood and with multiple lacerations, including to her throat. Based on the fact that Nelson told her she had been raped, Lawson prepared a rape kit. No semen was found in the evidence collected in the rape kit. However, employees of the Arkansas State Crime Lab testified that DNA from the blood found on appellant's tennis shoe matched Nelson's DNA.

Appellant took the stand in his own defense and testified that he went to Nelson's house to talk to her boyfriend about a radio and an amp. He said that when he arrived at the house, the door was cracked, so he knocked and went inside. As he went up the stairs, hemet Nelson at the top of the stairs. He said that she "clicked," pulled a knife on him, and tried to cut him. He said that he took the knife away from her, cut her, threw her to the floor, and left. He denied having any sexual contact with Nelson, and he denied raping her. At the close of the State's evidence, appellant moved for a directed verdict on the basis that there was no testimony on the issue of consent; the motion was denied by the trial court. Appellant renewed his motion at the close of all the evidence, and the trial court again denied it.

A motion for a directed verdict is a challenge to the sufficiency of the evidence. Hutcherson v. State, 34 Ark. App. 113, 806 S.W.2d 29 (1991). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Weeks v. State, 64 Ark. App. 1, 977 S.W.2d 241 (1998). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other without resorting to suspicion or conjecture. Id. In determining whether the evidence is substantial to support a conviction, the appellate court views the evidence in the light most favorable to the appellee, only considering the evidence that supports the guilty verdict. Akins v. State, 330 Ark. 228, 955 S.W.2d 483 (1997).

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). "Sexual intercourse" is defined as "penetration, however slight, of the labia majora by a penis." Ark. Code Ann. § 5-14-101(9) (Repl. 1997). The testimony of a rape victim satisfies the substantial-evidence requirement in a rape case. Burmingham v. State, 342 Ark. 95, 27 S.W.3d 351 (2000). In the present case, the victim, Jamie Nelson, testified that appellant asked her to have sex with him and she told him no. She then described how appellant accosted her, stabbed her, forced her legs open with his knees, and put his penis in her vagina. This testimony is sufficient to sustain appellant's conviction for rape; therefore, the trial court was correct in denying his motions for directed verdict.

Appellant's counsel made two other objections during the trial, but he did not obtain a ruling on either of these objections. Matters left unresolved cannot be raised on appeal. Alexander v. State, 335 Ark. 131, 983 S.W.2d 110 (1998).

All four of appellant's pro se points assert ineffective assistance of counsel claims for failure to (1) request a jury instruction, (2) challenge the sufficiency of the evidence, (3) request a continuance, and (4) object to the admission of an incriminating letter into evidence. This court cannot address appellant's arguments because they are being raised for the first time on appeal. 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. Nichols v. State, 69 Ark. App. 212, 11 S.W.3d 19 (2000). 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.

Jennings and Crabtree, JJ., agree.