Rufus Antonio Box v. State of Arkansas

ar02-751

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION IV

RUFUS ANTONIO BOX,

APPELLANT

V.

STATE OF ARKANSAS,

APPELLEE

CACR02-751

SEPTEMBER 10, 2003

APPEAL FROM THE NEVADA COUNTY CIRCUIT COURT,

NO. CR99-64-2,

HON. DUNCAN MCRAE CULPEPPER, JUDGE

AFFIRMED

Sam Bird, Judge

Rufus Antonio Box was convicted by a jury of residential burglary and rape. He was sentenced to five years for the residential burglary and fifteen years for the rape. His primary point on appeal is whether the trial court erred by admitting the testimony of a nurse practitioner concerning statements made by the victim. Within this point of appeal, Box makes three contentions. First, he contends that the form of a question posed by the prosecutor was improper. Second, he contends that the nurse practitioner was not qualified to make a medical diagnosis or treatment; thus, he argues her testimony did not qualify under the exception to the hearsay rule found at Arkansas Rule of Evidence 803(4). Finally, he contends that the statements made by the nurse practitioner regarding what the victim told her during the sexual-assault examination had no bearing on diagnosis or treatment; thus, he argues that the exception to the hearsay rule found in Rule 803(4) does not apply in this case. We affirm.

The victim in this case testified at trial that on the night of June 2, 1999, Box forced open the door of her house and raped her.1 She stated that she was at home alone, lying on the couch, and that she "kept hearing a noise." The victim testified that she got up off the couch and went over to make sure the door was locked and that it "just came open," and that Box was on the other side of the door. She further testified that Box eventually pushed the door open and came inside; that she recognized him as a cousin of her boyfriend; that he attempted to disguise his features by wearing a stocking over his head; that he called her by her nickname, "Pooh"; and that he hit her in the face with his fist and pushed her to the floor. There was also testimony by the victim that Box had attempted to tie her up with some type of barbed wire, but had failed; that he penetrated her vagina with his finger, tongue, and penis; that he threatened to kill her if she told anyone; and that he told her he would be watching her house. The victim also stated that during the assault she had bitten Box's tongue; that she was not sure if she had scratched

him; and that she may have hit him with the barbed wire when he was attempting to tie her up with it. Additional testimony by the victim indicated that Box had turned on the light after he was finished raping her, that he had taken the stocking off of his face, and that she had seen his face. The victim identified Box in the courtroom and indicated that, without question, he was the one who raped her. The victim also testified that the morning after the assault she went to the hospital for a sexual-assault exam.

Debbie Garrett, a nurse practitioner trained in sexual-assault examinations, conducted an examination of the victim. Nurse Garrett testified that she gathered forensic evidence from the victim and also noted several abrasions, including a linear fissure in the victim's vagina. Garrett stated that this linear fissure was consistent with sexual assault. The evidence collected by Garrett was turned over to the Arkansas Crime Lab for testing.

Lisa Channel, chief criminalist of the trace evidence section of the Arkansas State Crime Laboratory, testified that a pubic hair found on the victim was microscopically similar to a sample taken from Box. Forensic biology section supervisor Kermit Channel testified that blood found on the victim's shirt was consistent with a sample taken from Box. In fact, Channel testified that the chances of picking someone from the black population, of which Box is a member, that had the same genetic profile as appellant was approximately one in 877 trillion.

The point on appeal in this case turns primarily on the admissibility of evidence claimed by Box to be inadmissible hearsay. A trial court is accorded wide discretion in evidentiary rulings. Flores v. State, 348 Ark. 28, 69 S.W.3d 864 (2002). We will not reverse a trial court's ruling on a hearsay question unless the appellant can demonstrate an abuse of discretion. Id. Pursuant to Rule 801(c) of the Rules of Evidence, "'hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Such testimony is generally inadmissible evidence. See Ark. R. Evid. 802.

Box's first of three contentions is that a question posed by the State to Garrett was in violation of Arkansas Rule of Evidence 803(4). This rule provides:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(4) Statements for Purposes of Medical Diagnosis or Treatment. 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. 

Box notes in his brief that at trial, the State asked, "and what, if you know, did [the victim] tell you what occurred to her?" Box then made a hearsay objection, to which the State responded that it would be "part of the medical history which is part of the evaluation Mrs. Garrett gave." Box argues that the State was clearly seeking to solicit victim testimony through this witness. Box notes specifically that "the State asked succinctly for a recital of what occurred, making no reference to history, diagnosis, treatment or any other medical information." With respect to this statement by Box, we note that there is more to the prosecutor's question than what Box puts forth in his argument. Specifically, the prosecutor engaged in the following colloquoy with Garrett:

Q And, did - as part of the collection of evidence in a sexual assault or rape situation, do you take a history of that individual that is given to you by that

individual?

A Yes, I do.

Q And did you do that for [the victim]?

A Yes.

Q And what, if you know, did [the victim] tell you occurred to her?

Thus, contrary to Box's argument, it is clear that the State did make reference to the history of the victim. Furthermore, Box admits in his appeal that no precedent can be provided to support this contention. We will not consider arguments that are not supported by citation to authority or convincing argument, and it is not apparent without further research that the argument is well taken. See Wooten v. State, 351 Ark. 241, 91 S.W.3d 63 (2002); Kelly v. State, 350 Ark. 238, 85 S.W.3d 893 (2002).

Box's second contention is that Garrett does not qualify for the medical-diagnosis exception under Arkansas Rule of Evidence 803(4). Specifically, Box argues that since Garrett was not a physician, then she was not eligible to diagnose or treat patients, thus she was not able to testify under this exception. Our supreme court faced a similar situation in Vann v. State, 309 Ark. 303, 831 S.W.2d 126 (1992). In Vann, our supreme court opined that it would be proper to allow 803(4) testimony to come from a nurse. Id., 309 Ark. 303, 308, 831 S.W.2d 126, 129 (1992). Thus, we hold that Box's argument that Nurse Garrett was not qualified to testify under Arkansas Rule of Evidence 803(4), simply because she is a nurse and not a doctor, is without merit.

The third and final contention by Box is that Garrett improperly testified as to statements made by the victim during the sexual-assault examination that had no bearing on diagnosis or treatment; thus, he argues that the exception to the hearsay rule found in Rule 803(4) does not apply in this case. To support this contention, Box first argues that it was error to allow Nurse Garrett to testify that at the time of the sexual-assault examination, the victim identified Box as her assailant.

Our supreme court in Flores v. State, 348 Ark. 28, 69 S.W.3d 864 (2002), stated the following:

Only in the special situation of sexual or physical abuse of a child has the rule of excluding the identification of the perpetrator been modified. Again, it is the Eighth Circuit Court of Appeals that has outlined this child-abuse exception in the leading case on the matter. See United States v. Renville, 779 F.2d 430 (8th Cir.1985).

348 Ark. 28, 42, 69 S.W.3d 864, 873. The victim in the present case was not a child, and the State concedes error on this point.

Additionally, to support this last contention, Box argues that it was error to allow Garrett to testify as to other things the victim had told her during the examination. Specifically, Garrett testified to the following regarding what the victim told her:

She told me - she gave me the name of her assailant. There was one assailant. His name was Tony Box. She told me that she was at home, approximately, 12:30 that morning and he broke into her home. "He started hitting me; pushed me to the floor," and started beating her because she was screaming. He told her that his brother sent him to take care of his job. He kissed on her and [the victim] states that she bit his tongue. He beat her again, told her to enjoy it. He put his finger in her vagina. Then he put his fingers in his mouth. He put his penis in the vagina and "got me wet." Not sure if he used a condom. He told her he would kill her if she told. She went to her boyfriend's grandmother's house and called the police that morning.

Box concedes in his appeal that the victim repeated most of the statements quoted above. After a review of the record, we agree that the victim did provide essentially the same testimony as did Nurse Garrett.

While Box's arguments in support of his third contention are well taken, it is not necessary for this court to address whether or not the above quoted testimony of Garrett's was erroneously admitted. See Clark v. State, 323 Ark. 211, 219, 913 S.W.2d 297, 301 (1996); Gatlin v. State, 320 Ark. 120, 125, 895 S.W.2d 526, 530 (1995). In Clark, the testimony of two witnesses was in question. Supra, 323 Ark. 211, 218-19, 913 S.W.2d 297,301 (1996). The two witnesses were an Arkansas Department of Human Services family service worker and a social worker at Arkansas Children's Hospital. Id. Both witnesses were allowed to testify about the victim's out- of-court statements to them describing her rape. Id. The trial court allowed both of these witnesses to testify "after the state characterized them as medical history, an apparent allusion to the hearsay exception for statements made for purposes of medical diagnosis or treatment under Ark. R. Evid. 803(4)." Id. In Clark, our supreme court stated:

Citing Gatlin v. State, 320 Ark. 120, 895 S.W.2d 526 (1995), the state correctly points out that, on the facts of this case, it is unnecessary to consider whether the trial court's ruling was erroneous. In Gatlin, we held that the trial court's erroneous admission of the hearsay testimonies of two family members, which reported an out-of-court statement of the rape victim, a minor, was rendered harmless where the rape victim's own trial testimony independently evidenced her rape and the rape victim was available at trial for cross-examination by the appellant. In light of the victim's trial testimony and availability for cross-examination by appellant, this point of the appeal is governed by Gatlin.

323 Ark. 211, 219, 913 S.W.2d 297, 301 (1996).

Just as in Clark and in Gatlin, in the present case we have the victim who independently testified as to the circumstances surrounding her rape, and she was available at trial for cross-examination. Therefore, if there was indeed error committed, it was harmless.

Affirmed.

Stroud, C.J., and Vaught, J., agree.

1 Box abstracted only the portions of the trial proceedings that related to his points on appeal; however, this court may go to the record to affirm. See Robinson v. State, 49 Ark. App. 58, 896 S.W.2d 442 (1995).