Edward D. Lamb v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

KAREN R. BAKER, JUDGE

DIVISION III

EDWARD D. LAMB

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR01-00738

FEBRUARY 20, 2002

APPEAL FROM THE CHICOT COUNTY CIRCUIT COURT

[NO. CR2000-72-1]

HONORABLE DON EDWARD GLOVER, CIRCUIT JUDGE

AFFIRMED

Appellant, Edward Lamb, was convicted of rape and sexual abuse in the first degree by a jury in Chicot County. He was sentenced to consecutive terms of ten years' imprisonment for the rape conviction and three years' imprisonment for the sexual abuse conviction. Appellant raises four points on appeal. First, appellant argues that there was insufficient evidence to support the rape conviction. Second, appellant argues that the trial court abused its discretion by permitting opinion testimony of a lay witness as to whether behavior exhibited by the alleged child victim was attributable to sexual abuse. Third, the trial court abused its discretion by permitting the introduction of a drawing by the six-year-old victim that contained depictions that were unsupported by the evidence. Fourth, appellant argues that the trial court abused its discretion by permitting the introduction of appellant's statement given to police where the State failed to disclose the statement in a timely manner to appellant's counsel pursuant to Rule 17.1 of the Arkansas Rules of Criminal Procedure. We affirm on all points.

On May 9, 2000, at around 2:30 a.m., appellant's cousin, Shannon Rauls, and his cousin's wife, Lena Rauls were awakened by the sound of appellant beating on the door. Appellant, who appeared to have been beaten, had come to their home following an altercation. He had been drinking, and his car had a flat tire. Appellant asked if he could stay at the Rauls's home for the night. Mr. Rauls allowed him to stay and told him to sleep on the couch in the living room. Mr. Rauls's step-child, B.H., and his wife's niece, A.R., were asleep in B.H.'s bedroom. When Mrs. Rauls woke the following morning, she found appellant asleep in the children's bed wearing only his boxer shorts. Mr. Rauls was not able to wake appellant, so he picked him up, took him outside, and drove him home.

Testimony showed that later that day Mrs. Rauls found B.H. in the back bathroom crying. He told her that he was unable to wipe because "it hurts." He also told his mother that "Bubba1 stuck his fingers in my butt." When Mrs. Rauls examined B.H. she noticed some swelling. She then took B.H. to the emergency room, where he was examined by Dr. Joann Gregory. Dr. Gregory testfied that bruising was evident around B.H.'s rectum. Based upon her examination, Dr. Gregory found evidence of an attempt to penetrate the rectum and injuries consistent with sexual abuse. Moreover, she stated that "there was a good likelihood that there was some penetration, but [she] could not say with certainty," as was true in most abuse situations. The nurse who also examined B.H. testified as to the bruising around the rectum and she spoke of B.H. as being very withdrawn, tearful, and not making much eye contact with anyone.

Since the incident, B.H. has been in counseling. George Adams at Delta Counseling was B.H.'s counselor. He stated, over appellant's objections, that he saw signs of sexual abuse in B.H.during counseling, such as being withdrawn, being aggressive, and having inappropriate sexual knowledge. Although the counseling has made an impact on B.H., Mrs. Rauls testified that she has problems with him "doing sexual stuff at home with his little brothers." Tracy Rauls, A.R.'s mother, testified that her daughter told her of the incident. A.R. told her mother that appellant had touched "her breast and her butt and her front." She has had behavioral problems with A.R. ever since the incident.

At the conclusion of the State's case, appellant moved for a directed verdict on the rape charge asserting that the State had failed to meet its burden of proof that appellant had committed rape. The motion was denied. Appellant renewed his motion at the close of all the evidence, and the motion was again denied.

First, appellant argues that there was insufficient evidence for the rape conviction because the medical expert could not confirm that there was penetration of the minor victim's anus. This court will affirm a conviction if there is substantial evidence to support the verdict when viewed in the light most favorable to the State. Whitfield v. State, 346 Ark. 43, 56 S.W.3d 357 (2001). Substantial evidence is evidence of sufficient force and character as to compel, with reasonable certainty, a conclusion beyond mere speculation or conjecture. Id. Sufficient evidence may be circumstantial or direct. Id. Where the evidence is circumstantial, the appellate court must consider whether the evidence was sufficient to exclude all other reasonable hypotheses. Hughes v. State, 74 Ark. App. 126, 46 S.W.3d 538 (2001).

We defer to the jury's determination on the matter of witness credibility. Johnson v. State, 71 Ark. App. 58, 25 S.W.3d 445 (2000). Jurors do not and need not view each fact in isolation, but rather may consider the evidence as a whole. Chrobak v. State, 75 Ark. App. 281, 58 S.W.3d 387 (2001). The jury is entitled to draw any reasonable inference from circumstantial evidence to thesame extent that it can from direct evidence, and it is within the province of the jury to accept or reject testimony as it sees fit and inconsistencies in the testimony of a rape victim are matters of credibility for the jury to resolve. Id.

Arkansas Code Annotated section 5-14-103(a)(1)(C)(i) (Repl. 1997) states that "a person commits rape if he engages in sexual intercourse or deviate sexual activity with another person who is less than fourteen (14) years of age." Further, Arkansas Code Annotated section 5-14-101(1)(B) (Repl. 1997) defines "deviate sexual activity" as "any act of sexual gratification involving the penetration, however slight, of the labia majora or anus of one person by any body member or foreign instrument manipulated by another person."

In this case, testimony showed that the day after appellant spent the night at the Rauls' home, Mrs. Rauls found B.H. in the bathroom crying because he was unable to wipe because his bottom was hurting; Mrs. Rauls testified that when she checked B.H., his bottom was swollen. Moreover, at the emergency room, bruising was confirmed around B.H.'s rectal area by Dr. Gregory. B.H. also testified that "Bubba sticked me in the butt." The supreme court has held that the testimony of a rape victim satisfies the substantial-evidence requirement in a rape case. Prater v. State, 307 Ark. 180, 820 S.W.2d 429 (1991). This is true even when the rape victim is a child. Caldwell v. State, 319 Ark. 243, 891 S.W.2d 42 (1995) (citing Winfrey v. State, 293 Ark. 342, 738 S.W.2d 391 (1987)). More particularly, the testimony of the victim which shows penetration is enough for conviction. Clark v. State, 315 Ark. 602, 870 S.W.2d 372 (1994). In addition, the rape victim's testimony need not be corroborated, Winfrey, supra, nor is scientific evidence required. White v. State, 303 Ark. 30, 792 S.W.2d 867 (1990). Thus, based on the testimony in this case, we hold that there was sufficient evidence to support appellant's rape conviction.

In his second argument on appeal, appellant contends that the trial court abused its discretionby permitting opinion testimony of a lay witness as to whether behavior exhibited by the alleged child victim was attributable to sexual abuse. Qualification of expert witnesses is within the sound discretion of the trial court and will not be reversed absent a showing of abuse. Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996), cert. denied, 520 U.S. 1244 (1997). If there is a reasonable basis to find that the witness has knowledge of a subject beyond that of ordinary knowledge, the witness may be qualified as an expert. Id. (citing Stout v. State, 320 Ark. 552, 898 S.W.2d 457 (1995)). The weakness or strength of an expert's testimony goes toward the weight and credibility to give the testimony and not toward the admissibility of the testimony. Wood v. State, 75 Ark. App. 22, 53 S.W.3d 56 (2001).

While appellant is correct in that the trial court did not formally state that George Adams, B.H.'s counselor, was qualified as an expert, that omission does not constitute error. See Redman v. St. Louis Southwestern Ry. Co., 316 Ark. 636, 873 S.W.2d 542 (1994). In this case, Mr. Adams testified as to his qualifications in that he was two weeks from graduating with a masters in counseling psychology and that he works with Dr. Spellman. Appellant made two objections to Mr. Adams's testimony in that he was not an expert witness. The trial court overruled both of his objections. Further, the trial judge stated that the witness had "more knowledge than the average person along these areas." Thus, while there was no formal statement that the trial judge was recognizing Mr. Adams as an expert, no other conclusion is reasonable. We hold that the trial judge did not abuse his discretion in this respect.

Third, appellant argues that the trial court abused its discretion by permitting the introduction of a drawing by the minor victim which contained certain depictions that were unsupported by the evidence. On this point, the State contends that appellant's abstract is deficient because appellant failed to abstract the drawing of appellant's blood-stained hand in that it was a material portion ofthe record under Arkansas Supreme Court Rule 4-2-(a)(6) (2001). The rule states that:

Whenever a map, plat, photograph or other similar exhibit, which cannot be abstracted in words, must be examined for a clear understanding of the testimony, the appellant shall reproduce the exhibit by photography or other process and attach it to the copies of the abstract filed in the Court and served upon the opposing counsel, unless this requirement is shown to be impracticable and is waived by the Court upon motion. (Adopted by Per Curiam Order dated February 1, 1993.)

Subsection (b)(2) of the rule further provides that this court may address the issue of a flagrantly deficient abstract on its own and affirm the judgment for noncompliance with the rule. Coney v. State, 319 Ark. 709, 894 S.W.2d 583 (1995). However, we find that the actual drawing was not absolutely necessary for a clear understanding of appellant's objection at trial; thus, we proceed to the merits of appellant's third point on appeal.

Appellant specifically argues that the drawing was irrelevant and its probative value was outweighed by the danger of unfair prejudice, causing speculation on the part of the jury. This arguments is based upon Arkansas Rules of Evidence 401 and 403 (2001). Rule 401 states that relevant evidence is any evidence having the tendency to make the existence of a material fact more probable or less probable than it would be without the evidence. Under Rule 403, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Determining the relevancy of evidence and the probative value of that evidence against the unfair prejudice pursuant to Arkansas Rule of Evidence 403 is within the trial court's discretion, the exercise of which will not be reversed on appeal absent a manifest abuse of that discretion. Lewis v. State, 73 Ark. App. 417, 44 S.W.3d 759 (2001).

We hold that trial court did not err in admitting the drawing of appellant's blood-stained hand into evidence. Here, even though it is essential that all material parts of the record be abstracted, see Coney, supra., B.H.'s drawing was not necessary for a clear understanding of theobjection leading to this point on appeal. According to the abstract, B.H. clearly articulated the nature of the drawing and what it illustrated in relation to the incident on May 9, 2000. Thus, B.H.'s testimony was sufficient, and we hold that the trial judge did not abuse his discretion in admitting the drawing into evidence.

Even were we to determine that the trial judge committed error by admitting the drawing into evidence, when the evidence of guilt is overwhelming and the error is slight, we will declare the error harmless and affirm. See Lewis, supra. Here, both children testified as to the events on May 9, 2000, and Dr. Gregory testified as to the physical evidence found on B.H. during his examination in the emergency room. Moreover, the mothers of both of the children testified as to the behavioral impact the event has had on the two children. Mr. Adams testified as well to certain behavior by B.H. which indicated that sexual abuse had occurred. The evidence of guilt is overwhelming in this case, and had the admission of the drawing been error it would have been harmless.

Fourth, appellant argues that the trial court abused its discretion by permitting the introduction of appellant's statement given to police when the State failed to disclose the statement in a timely manner to appellant's counsel pursuant to Rule 17.1 of the Arkansas Rules of Criminal Procedure. The State argues that appellant's abstract is inadequate in that appellant failed to abstract the entire statement. However, we find that appellant's abstract was not inadequate in that the objectionable portion of the statement was contained in the abstract through the testimony of Arkansas State Police Investigator Joe L. Wright. Thus, we will address the merits of appellant's fourth point on appeal.

Under the plain language of Rule 17.1(a)(ii) (2001), this evidence should have been provided to appellant because the statement came within the knowledge of the prosecuting attorney after timely discovery requests had been made. See Caldwell v. State, 319 Ark. 243, 891 S.W.2d 42 (1995). However, the State asserts that it was not aware of the statement until the morning of appellant's trial. Arkansas Rule of Criminal Procedure 19.7(a) (2001) states that:

If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or with an order issued pursuant thereto, the court may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, prohibit the party from introducing in evidence the material not disclosed, or enter such other order as it deems proper under the circumstances.

Here, the trial court granted a continuance from that afternoon until the following morning in order for appellant to have the chance to address the issue. We cannot say that amounted to an abuse of discretion. Our supreme court held that there was no abuse of discretion where information was disclosed by the victim on the stand, the appellee had only learned of the testimony the night before trial, and the trial court granted a recess until the following morning in order for appellant to have extra time to prepare for cross-examination of the witness. See Caldwell, supra. Thus, the trial judge did not abuse his discretion in granting a continuance. Moreover, appellant cannot demonstrate prejudice. Appellant denied culpability for the crimes in the statement and his assertion that his trial tactics might have changed or that he might have entered a plea of guilty had his counsel been aware of the statement is not sufficient to demonstrate prejudice. It is incumbent on the appellant to demonstrate actual prejudice from an asserted discovery violation. Johninson v. State, 317 Ark. 431, 878 S.W.2d 727 (1994).

Affirmed.

Robbins and Neal, JJ., agree.

1 Appellant was known as "Bubba" to B.H. and his family.