Alan D. Tyson v. State of Arkansas

ar05-752

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

ALAN D. TYSON

APPELLANT

V.

STATE OF ARKANSAS APPELLEE

CACR 05-752

February 1, 2006

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT,

FOURTH DIVISION [CR2004-3077]

HONORABLE JOHN W. LANGSTON, CIRCUIT JUDGE

AFFIRMED

David M. Glover, Judge

Appellant, Alan Tyson, was tried by a jury and found guilty of the offense of rape. He was sentenced to sixty years in the Arkansas Department of Correction. He raises two points of appeal: 1) the trial court erred in barring a witness from testifying to her impression of the truthfulness of the victim; and 2) the trial court erred in declining to direct a verdict in appellant's favor due to insufficient evidence of penetration. Finding no error, we affirm.

S.W., the victim in this case, testified that at the time of trial she was eleven years old. She said that one day she was hanging clothes on the line in the backyard when appellant, "Al," grabbed her, put her into the van, which was abandoned in the back yard,

"pulled my clothes down," "pulled his penis out," "got on top of me," "hunched me," "touched me in my private," "in the front," and "it hurt me."

S.W. testified that after appellant left the van, she pulled up her pants and went inside the house to tell her sister, N.W. She said that N.W. "checked her private parts" and that the police were then called. She stated that they then went to the hospital where

the doctors and nurses checked her. She acknowledged telling some people that she made up the story about what Al did to her, but she said that she was telling the truth in the courtroom. The prosecutor specifically asked, "Now, you told us earlier that he put his private part in your private part?" S.W. responded, "Yes."

N.W. testified that she is S.W.'s older sister and that S.W. is five years younger. She said that S.W. was ten in June of 2004 when these events happened. She stated that she, S.W., and several others, including appellant, were living with Tina Sullivan, her aunt, at that time. She stated that on June 16, 2004, Tina called the house looking for Al; that she, N.W., began looking for him to come to the phone; that she went to the back door and called his name; and that he stuck his head out of the van and told her to have Tina call back. She said that Tina called back two times and he finally came to the phone. She stated that S.W. got out of the van right after Al and that S.W. was upset and crying.

N.W. stated that she asked S.W. what was wrong and that S.W. said, "He did something with me." When asked what he did, N.W. said that S.W. told her, "He did it to me." N.W. explained, "We also wiped her. She was bleeding."

On redirect, N.W. testified that S.W. said that appellant "hunched" her. N.W. said that she "took that to mean sex," and that when she asked S.W. what she meant by that, S.W. said, "He did it to me." N.W. said that she asked S.W., "He stuck his finger in you?" and S.W. responded, "Yeah."

Marti Thomas, a resident physician at Arkansas Children's Hospital, testified that she conducted a sexual-assault pelvic exam on S.W. following the incident; that most of the exam was normal; that S.W. had "what we call a notch on her hymen . . . , at the very top, but that can be a normal finding in children." She explained that she was not able to complete the exam because it was very traumatic for S.W., and the guardian did not want them to anesthetize S.W. to complete the exam. She said that she did not find any physical evidence that there had been penetration of S.W., but that was not uncommon.

Sheila Maxwell, an emergency-room nurse, testified that she participated in part of the rape-kit procedure; that she collected S.W.'s underwear; that she was given evidence samples by Dr. Thomas; and that she logged everything and stored it according to set procedures.

Detective Jason Follett of the Little Rock Police Department testified that he was involved in the investigation concerning appellant. He said that during the course of that investigation, he retrieved evidence from the hospital; that he acquired a search warrant and searched the van; and that he obtained a DNA sample from appellant, which he submitted to the crime lab. He also stated that he took a statement from S.W. at Children's Hospital. He said that S.W. told him that appellant's penis touched her bottom; that she could not tell him whether the penis penetrated her anus or vagina; that she told him she was sitting on appellant's lap and that he entered from behind; and that she told him appellant wiped himself and her vagina with a shirt that was already in the van.

The remaining witnesses presented by the State testified about the collection of evidence and the chain of custody. In particular, Jane Parsons, a forensic biologist at the crime laboratory, testified that she found semen in the crotch of the underwear that S.W. was wearing and also on one of the upholstery cuttings from the van. On cross-examination, she stated that she did not find semen on a gray, long-sleeved shirt. In addition, Melissa Myhand, also a forensic biologist with the crime lab, testified that she received a known blood sample from appellant, a known blood sample from S.W., and two items where semen had been identified, i.e., the underwear and the upholstery cuttings. She said that the results of her examination showed that the DNA extracted from the upholstery was that of appellant, within scientific certainty. She said that the results of her examination of the underwear showed a mixture of DNA from more than one individual and that the victim and appellant could not be excluded as contributors to this mixture.

As part of appellant's case, Dr. Molly Gathright, a resident physician with the UAMS Department of Psychiatry, testified that she was seeing S.W.; that she spoke with S.W. about the allegations of sexual misconduct; and that S.W. told her that her sister threatened that she would hit her and beat her up if she did not tell her aunt, Tina Sullivan, that she had been raped by appellant, her thirty-year-old male cousin. She acknowledged that S.W. only spoke to her about the incident after the aunt brought it up, but explained that Ms. Sullivan was not in the room when S.W. told her.

Bertha Hudson, S.W.'s "auntie," testified that S.W. told her that N.W. "made her tell that story on that man." Clarice Adams, day-care director, testified that S.W. told her that she was raped; that when questioned by Clarice, S.W. asked, "Well, what does rape mean?"; that S.W. was not nervous or upset when she told her; that she was laughing; and that S.W. said "no," when asked if appellant touched her on any of her body parts.

Appellant testified and denied ever having sex with S.W. in the van or otherwise. He said that his DNA was found in the van because he had sex in it with a woman named Carmen, but he had no explanation as to why DNA that closely matched his was found in S.W.'s underwear.

Although appellant raises his sufficiency argument as his second point of appeal, preservation of his freedom from double jeopardy requires us to examine his sufficiency argument before addressing trial errors. George v. State, 84 Ark. App. 275, 140 S.W.3d 492 (2003). A motion for a directed verdict is a challenge to the sufficiency of the evidence. Id. On appeal from a denial of a motion for directed verdict, the sufficiency of the evidence is tested to determine whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is that evidence which is of sufficient force and character to compel a conclusion one way or the other beyond suspicion or conjecture. Id. Only the evidence supporting the guilty verdict need be considered, and the evidence is viewed in the light most favorable to the State. Id. It is well settled that matters of credibility are within the sound province of the jury and will not be disturbed on appeal. Benson v. State, 357 Ark. 43, 160 S.W.3d 341 (2004). Further, it is for the jury to resolve matters of inconsistencies in the testimony of a rape victim. Id.

According to Arkansas Code Annotated section 5-14-103 (Supp. 2005):

(a)(1) A person commits rape if he or she engages in sexual intercourse or deviate sexual activity with another person:

. . . .

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

According to Arkansas Code Annotated section 5-14-101 (Supp. 2005):

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

(A) The penetration, however slight, of the anus or mouth of one person by the penis of another person; or

(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[.]

(Emphasis added.) "Sexual intercourse" means penetration, however slight, of the labia majora by a penis. Id. (Emphasis added.)

Viewing the evidence that supports the verdict in the light most favorable to the State, we have concluded that the State presented sufficient evidence of penetration to support the verdict.

For his remaining point, appellant contends that the trial court erred in preventing Dr. Molly Gathright from testifying about her opinion regarding S.W.'s truthfulness in recanting to Dr. Gathright her allegations about appellant. The following discussion occurred during Dr. Gathright's testimony regarding appellant's attempt to have her testify in this regard:

Defense Counsel: That's correct. Okay. And as a part of your job do you interpret whether or not a person is being honest with you or - Well, do you interpret that?

The prosecutor asked to approach the bench and objected to appellant pursuing that line of questioning. In response to the State's objection, defense counsel responded: "We're impeaching the witness and her truthful - [S.W.]'s truthfulness is at issue just by her own testimony. She [Dr. Gathright] has an expert opinion about whether or not S.W. is being truthful to her at that time, and I think that goes to impeachment and supports her statement." The trial court sustained the State's objection.

Appellant made no proffer of the testimony that he expected to elicit from Dr. Gathright, and the substance of her testimony was not apparent from the context. Rule 103(a)(2) of the Arkansas Rules of Evidence provides:

(2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

To challenge a ruling excluding evidence, an appellant must proffer the excluded evidence so that the appellate court can review the decision, unless the substance of the evidence is apparent from the context. Swadley v. Krugler, 67 Ark. App. 297, 999 S.W.2d 209 (1999). Here, as is clear from the previously quoted portion of Dr. Gathright's testimony, it is not "apparent from the context within which questions were asked," and there was no proffer. Therefore, this issue was not properly preserved for our review.

In addition, even if we were to address the merits of this point, we would find no error. Where the introduction of expert testimony would invade the function of the jury or where it does not help the jury, it is not admissible. Hinkston v. State, 340 Ark. 530, 10 S.W.3d 906 (2000). One of the functions of the jury is to determine the credibility of witnesses. Id. Expert testimony on the credibility of witnesses is an invasion of the jury's province. Id. The standard of review for a trial court's ruling on the admissibility of expert testimony is abuse of discretion. Id.

In Cox v. State, ____ Ark. App. ____, ____ S.W.3d ____ (Dec. 14, 2005), a similar fact situation was involved except that it was the State trying to introduce opinion testimony regarding a child victim's truthfulness. The trial court in that case allowed the testimony and our court reversed, explaining:

Neighbors, the Director of the Mercy Child Advocacy Center at St. Joseph Hospital in Hot Springs, testified for the State regarding the interview she conducted with the victim. She stated that she frequently gave expert consultation on child-abuse assessments and was a licensed social worker and a certified forensic interviewer. At the request of the State, the court qualified Neighbors as a certified forensic examiner. The State asked Neighbors if, "[b]ased on your interviews in the past and your interviews in this particular case, do you have an opinion as to whether this child is telling the truth?" Appellant objected, stating that "there's no way she can know about speculating whether this child is lying or not. He's trying to bolster her testimony .... He's also giving character evidence...." The court overruled appellant's objections. Neighbors testified that she always gives a summary and recommendation in her report and speaks about the credibility of the child. She stated, "I believe the interview tape that the jury has seen to be highly credible." She believed that it was credible because of the victim's inappropriate sexual knowledge, of which she then gave examples. She also noted the victim's body language, which showed that the victim was scared, anxious, nervous, embarrassed, and ashamed. Neighbors concluded, "I believe her to be credible, as credible as any child I've believed to be credible." Later, she testified, "I don't have a single doubt about her credibility ...." Our supreme court has specifically stated that "it is error for the court to permit an expert, in effect, to testify that the victim of a crime is telling the truth." [Citations omitted.] Here, Neighbors testified repeatedly about the victim's high credibility. We are compelled to conclude that the court committed error in allowing Neighbors to testify regarding the victim's credibility.

Id. at _______, ______ S.W.3d at ______.

Appellant attempts to distinguish the instant situation from cases where expert testimony was determined to invade the province of the jury. That is, he argues that Dr. Gathright witnessed S.W.'s recantation of her allegations against appellant and, therefore, Dr. Gathright had "first-hand knowledge of the victim's demeanor, tone, and all-around presentation...." As noted by the State, however, appellant did not ask Dr. Gathright about the victim's tone and demeanor, and, as mentioned previously, neither did he proffer such a line of inquiry with the doctor. In addition, the "expert" in the Cox case, supra, also had "first-hand" knowledge of the victim from personal interviews, and that fact was clearly not convincing.

As an alternative sub-point within this point of appeal, appellant attempts to make a Sixth-Amendment argument, contending that the exclusion of Dr. Gathright's testimony in this regard denied him his right to put on a defense. The problem with the argument is that he did not raise it below. Consequently, he did not preserve the issue for this court's review. Hatchell v. Wren, ____ Ark. ____, ____ S.W.3d ____ (June 30, 2005).

Affirmed.

Pittman, C.J., and Roaf, J., agree.