Edward Walton v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, JUDGE

DIVISION IV

EDWARD WALTON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 01-750

APRIL 3, 2002

APPEAL FROM THE CRITTENDEN COUNTY CIRCUIT COURT

[NOS. CR-91-111, CR-91-658]

HONORABLE DAVID N. LASER,

CIRCUIT JUDGE

AFFIRMED

Appellant Edward Walton pleaded guilty to felony theft and possession of cocaine on October 21, 1991. He received ten years' probation for the theft charge and a ten-year suspended imposition of sentence for the possession charge. On March 19, 2001, the State filed a revocation petition alleging, among other things, that Mr. Walton violated his conditions by committing the offenses of rape, fleeing, and resisting arrest. After a hearing, the trial court found by a preponderance of the evidence that Mr. Walton committed each of the above offenses. As a result, it revoked his probation and suspended imposition of sentence, and sentenced him to two concurrent eight-year prison terms.1

Mr. Walton now appeals from the order revoking his probation and suspended imposition of sentence. For reversal, he argues that the trial court erred in failing to dismiss the testimony of the rape victim because it was impeached by her prior inconsistent statement given to the police. We find no error and affirm.

At the revocation hearing, the victim, C.A., testified for the State. She stated that Mr. Walton is married to her sister and that she spent the night at their house on January 12, 2001. C.A. testified that there were many people at the house on that night and that she did not know most of them.

At about midnight, C.A. and Lorenzo Brown went into one of the bedrooms and had sex. C.A. testified that she went to sleep around 2:00 a.m., and that Mr. Brown left sometime thereafter.

According to C.A., later in the morning she was awakened when someone touched her. She stated that she was lying with her back turned toward the person and assumed it was Mr. Brown. She testified that the person touched her private area for about two or three minutes, and then inserted his penis. At that time, she realized that it was not Mr. Brown because his penis was a different size. As to what happened next, C.A. testified:

When I realized this, I jerked and when I jerked, he moved. Once he moved, I turned around and he tried to leave the room. He looked me in the face and I was able to see him. It was Edward Walton. I did not know what to do so I went and knocked the blind down and it was daylight. I got a clear view of who he was. Then I went into the front room and there was somebody lying on the couch. I asked where [Mr. Brown] was and he said that he was gone.

C.A. stated that she went into her sister's bedroom and told her about the rape. According to C.A., Mr. Walton was present but "did not try to defend himself or anything, he just stood there." C.A.'s sister paged their mother, and she came to the house along with the police. Before the police arrived, Mr. Walton fled.

Officer Charles Noles of the West Memphis Police Department testified that he went to Mr. Walton's residence to serve a felony arrest warrant. After knocking on the door, he heard an individual running inside the residence, and after several minutes of knocking Mr. Walton was observed looking out a window through some blinds. Officer Noles, along with other police officers, gained entry into the house. Upon searching they found Mr. Walton hiding in the attic, covered with insulation.

C.A.'s sister testified for the defense. She maintained that while C.A. told her that Mr. Walton touched her, she never said that he raped her. C.A.'s sister did not believe that Mr. Walton committed the rape because he never got out of bed on the early morning at issue.

Mr. Walton testified on his own behalf and denied touching or raping the victim. He stated that when he left the house on the morning at issue there were no police present, and that he left because C.A. was screaming at him. He explained that he hid in the attic because "I always run when I see the police."

During the defense's case, the defense introduced a statement made by C.A. to the police, and the statement was admitted into evidence. The statement was similar to her testimony; however, the statement given to the police varied from her testimony in that shetold the police her encounter with Mr. Walton lasted fifteen to twenty minutes, as opposed to two or three minutes.

For reversal, Mr. Walton argues that the trial court should not have considered C.A.'s testimony because it was not credible and was inconsistent with her prior statement to the police. He cites Rule 613 of the Arkansas Rules of Evidence, which provides in pertinent part:

(b) Extrinsic Evidence of Prior Inconsistent Statement of Witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in Rule 801(d)(2).

Mr. Walton also cites Roseby v. State, 329 Ark. 524, 953 S.W.2d 32 (1997), where the supreme court held that an "inconsistent statement," as used in Ark. R. Evid. 613, is not limited to those statements in which diametrically opposite assertions have been made; a witness's prior statement is admissible whenever a reasonable person could infer on comparing the whole effect of the two statements that they have been produced by inconsistent beliefs. Mr. Walton asserts that, in the instant case, the prior statement to the police was an "inconsistent statement" under Rule 613 because it varied substantially from C.A.'s testimony as to the time that elapsed during the incident. For this reason, Mr. Walton argues that C.A.'s testimony should have been dismissed. Alternatively, he argues that the trial court should have recalled C.A. as a witness to explain the discrepancies in her accounts of the rape.

Mr. Walton's argument on appeal is not preserved for review. To preserve an argument for appeal, there must be an objection in the trial court that is sufficient to apprise the court of the particular error alleged. Elliott v. State, 342 Ark. 237, 27 S.W.3d 432 (2000). At no time during the hearing did Mr. Walton object to C.A.'s testimony, nor did he make a request to strike it. His alternative argument is also being raised for the first time as he did not ask to recall C.A. as a witness to explain the differences in her testimony and statement to the police. Therefore, we are unable to reach the merits of this appeal.

We note, however, that even had Mr. Walton's argument been preserved, it is entirely misplaced. Rule 613(b) governs the admissibility of extrinsic evidence of a witness's prior inconsistent statement, and not admissibility of the witness's testimony. See Kennedy v. State, 344 Ark. 433, 42 S.W.3d 407 (2001); Byrd v. State, 337 Ark. 413, 992 S.W.2d 759 (1999); Roseby v. State, supra. Mr. Walton cites no authority, and we know of none, to support the proposition that the admission of a prior inconsistent statement is cause for the trial court to disregard or strike testimony. In this case C.A.'s prior inconsistent statement went to the weight, but not the admissibility, of her testimony. As for the merits of Mr. Walton's assertion that C.A. should have been recalled to testify after her prior inconsistent statement was admitted, he has provided no supporting authority or convincing argument. We have long held that assignments of error unsupported by convincing argument or authority will not be considered on appeal. Bain v. State, 56 Ark. App. 7, 937 S.W.2d 670 (1997).

Affirmed.

Hart and Baker, JJ., agree.

1 In his brief, appellant asserts that his suspended imposition of sentence was earlier revoked on January 25, 1995, and that his current revocation and eight-year prison term relate only to revocation of his probation. However, the record does not reflect any earlier revocation, and the order being appealed from specifically revokes both hisprobation and suspended imposition of sentence.