Richard Scott Tucker v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

SAM BIRD, JUDGE

DIVISION II

RICHARD SCOTT TUCKER,

APPELLANT

V.

STATE OF ARKANSAS,

APPELLEE

CACR02-629

MARCH 5, 2003

APPEAL FROM THE YELL COUNTY CIRCUIT COURT, NO. DISTRICT, NO. CR2001-189,

HON. PAUL DANIELSON, JUDGE

AFFIRMED

A jury convicted the appellant, Richard Scott Tucker, of raping his twenty-two-month-old daughter and sentenced him to ten years in the Arkansas Department of Correction. Tucker raises two points on appeal. First, he contends that the State's proof of sexual gratification, as required by the rape statute, was insufficient. Second, he contends that the trial court abused its discretion in refusing to allow him to reopen the suppression hearing and raise new issues upon the appointment of new counsel. We find no error and affirm.

On the evening of April 19, 2001, Tucker took his twenty-two-month-old daughter to the emergency room of the hospital at Dardanelle, due to vaginal bleeding. He accused his wife, from whom he was getting a divorce and with whom he was involved in a custody

battle over his daughter, of having caused the bleeding.1 An officer of the Russellville Police Department met Tucker at the emergency room. Tucker informed the officer that he had picked up his daughter from his estranged wife and that he was in the process of giving her a bath when he noticed bleeding from her vaginal area.

The officer called Tucker the next day and asked him to come to the police station and talk about the case. Tucker complied and gave a detailed, tape-recorded statement, this time admitting that he had briefly inserted his right "pinky" finger into his daughter's vagina, up to the second knuckle. Tucker was then turned over to the Yell County Sheriff's Department because the offense had taken place in Yell County.

Tucker gave another detailed, tape-recorded statement to a Yell County officer. In that statement, Tucker stated that as he was preparing to give his daughter a bath, he was "looking her over real good." He stated that when he touched her, she "wiggled into me instead of away from me." Tucker added that his daughter was wiggling and moving into his finger. Later in his statement, Tucker told the officer that he had intentionally "licked his finger" and stuck it into his daughter's vagina and that he did so "to make it look worse" for the purpose of calling attention to what he perceived as continued mistreatment of his daughter by his estranged wife.

At the trial the State called Dr. William Scott, a physician at the Dardanelle Hospital, who testified that he had conducted the physical examination of Tucker's daughter on theday she was brought into the emergency room. He testified that his examination revealed that Tucker's daughter had a swollen and inflamed genital area and that she appeared traumatized. He said that her condition was consistent with someone having inserted a finger into her vagina. Dr. Scott further testified that Tucker had told him that approximately two and a half hours after getting his daughter from her mother, that he started to change her and noticed "blood all over her privates." According to Dr. Scott, Tucker never mentioned that he had stuck his finger into his daughter's vagina.

For his first point, Tucker contends that the State's proof of sexual gratification, as required by the rape statute, was insufficient. The relevant portion of the Rape Statute found in Arkansas Code Annotated section 5-14-103 (Repl. 1997) reads as follows:

(a) A person commits rape if he engages in sexual intercourse or deviate sexual activity with another person:

. . . .

(4) Who is less than fourteen (14) years of age. . . . .

The definition of "deviate sexual activity" is found at Arkansas Code Annotated section 5-14-101 (Repl. 1997) and reads as follows:

(1) "Deviate sexual activity" means any act of sexual gratification involving:

(B) The penetration, however slight, of the labia majora or anus of one person by any body member or foreign instrument manipulated by another person; . . . .

After the State rested its case, Tucker moved for a directed verdict on the basis that the State did not prove that he committed the act of placing his finger in his daughter'svagina for "sexual gratification." The court denied his motion. After resting his case, Tucker again moved for directed verdict on the same grounds, and again the court denied the motion.

This court treats a directed-verdict motion as a challenge to the sufficiency of the evidence. Williams v. State, 346 Ark. 304, 57 S.W.3d 706 (2001). The evidence is viewed most favorable to the State and the case is affirmed if the court finds substantial evidence. Id. Substantial evidence is that which is forceful enough to compel reasonable minds to reach a conclusion one way or the other. Id.

Our supreme court previously has taken note that it is difficult to define "sexual gratification." In Farmer v. State, 341 Ark. 220, 15 S.W.3d 674 (2000), the court stated:

[I]t is difficult to know for certain in this day and age what is sexually gratifying to another person. Indeed, short of a confession or physical evidence, sexual gratification, like intent, is rarely capable of proof by direct evidence and must usually be inferred from the circumstances. See, e.g., Gaines v. State, 340 Ark. 99, 8 S.W.3d 547 (2000); Green v. State, 330 Ark. 458, 956 S.W.2d 849 (1997). ... Likewise, it was within the exclusive province of the jury to determine the weight and value of her testimony. Williams v. State, 338 Ark. 178, 992 S.W.2d 89 (1999). Accordingly, viewing the evidence in the light most favorable to the State, as we are required to do, we conclude that there is substantial evidence to support Appellant's rape conviction. See Jones v. State, 340 Ark. 390, 10 S.W.3d 449 (2000).

Farmer v. State, 341 Ark. 220, 224-25, 15 S.W.3d 674, 677 (2000).

Furthermore, in Warren v. State, 314 Ark. 192, 862 S.W.2d 222 (1993), our supreme court stated:

We have previously stated that "when persons, other than physicians or other persons for legitimate medical reasons, insert something in another person's vagina or anus, it is not necessary that the state provide direct proof that the act was done for sexual gratification." Williams v. State, 298 Ark. 317, 321, 766 S.W.2d 931, 934 (1989).

Warren v. State, 314 Ark. 192, 196-97, 862 S.W.2d 222, 225 (1993).

The appellant in this case gave no less than three different versions of how this injury could have occurred to his daughter. Eventually, in his final statement, Tucker stated that when he touched his daughter, that "she wiggled into [him] instead of away from [him]." Later in that same statement, Tucker told the officer that he had intentionally "licked his finger" and stuck it into his daughter's vagina and that he did so "to make it look worse" for the purpose of calling attention to what he perceived as continued mistreatment of his daughter by his estranged wife.

As stated in Warren, when persons, other than physicians or other persons for legitimate medical reasons, insert something in another person's vagina, it is not necessary that the State provide direct proof that the act was done for sexual gratification. Warren v. State, supra. Accordingly, viewing the evidence in the light most favorable to the State, as we are required to do, we conclude that there is substantial evidence to support Tucker's rape conviction. See Williams v. State, supra.

We make note of the fact that Tucker takes exception to the "unfortunate" language in Warren. He cites the dissent by Justice Newbern and two other justices in Warren, and adds that the court in Warren runs counter to the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Nonetheless, this court cannot overrule decisions of the supreme court, but is obligated to follow them.

For his second point, Tucker contends that the trial court abused its discretion in refusing to allow him to reopen the suppression hearing and raise new issues upon theappointment of new counsel. Tucker argues that pursuant to Arkansas Rule of Criminal Procedure 16.2 (c)(2002), the trial court should have, "as the interests of justice require," granted his motion to reopen the suppression hearing. Before trial, Tucker moved to reopen the suppression hearing to inquire as to whether or not the Russellville Police Officer complied with Arkansas Rule of Criminal Procedure 2.3 when the officer asked him to come to the police station and talk about the case. Specifically, he argues that he should have been permitted to reopen the hearing to question whether the officer had advised Tucker that he was free to leave the station at any time. The trial court denied his motion.

Rule 2.3 of the Arkansas Rules of Criminal Procedure (2002) states:

If a law enforcement officer acting pursuant to this rule requests any person to come to or remain at a police station, prosecuting attorney's office or other similar place, he shall take such steps as are reasonable to make clear that there is no legal obligation to comply with such a request.

At trial, before introduction of the statement that Tucker sought to suppress, he renewed his previously made objection and the court again denied it. Thereafter, Tucker's defense counsel cross-examined the Russellville police officer regarding the taking of Tucker's statement. Upon questioning, the officer testified that he told Tucker he was always free to leave the police station, even after being advised of his rights. Moreover, Tucker's counsel questioned the officer as to why he had not brought up this fact in prior hearings and the officer replied that he had never been asked that question. Thus, Tucker had his questions regarding Rule 2.3 answered at trial.

Therefore, since defense counsel was able, during the trial, to fully inquire as to theofficer's compliance with Rule 2.3, any harm that could have resulted from the trial court's denial of the motion to reopen the suppression hearing was cured and no prejudice resulted. When error is alleged, prejudice must be shown because we do not reverse for harmless error. Phillips v. State, 40 Ark. App. 19, 840 S.W.2d 808 (1992). In the absence of prejudice, the issue is without merit. Tucker was not prejudiced since he ultimately was able to address the specific point he wanted to address in the suppression hearing. Therefore, we affirm on both points.

Affirmed.

Robbins and Griffen, JJ., agree.

1 Tucker had previously made several complaints to the police and the Department of Human Services against his estranged wife, alleging that his daughter was being abused.