Keith Alan Petras v. State of Arkansas
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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
WENDELL L. GRIFFEN, JUDGE
DIVISION I
CACR05-839
KEITH ALAN PETRAS
APPELLANT
June 28, 2006
AN APPEAL FROM BENTON
COUNTY CIRCUIT COURT
[NO. CR03-1363-1]
V.
HON. TOM J. KEITH, JUDGE
STATE OF ARKANSAS
APPELLEE
AFFIRMED
A Benton County jury found Keith Petras guilty of the rape and incest of his daughter,
Th.P. He appeals from his rape conviction, challenging the sufficiency of the State’s
evidence regarding the element of forcible compulsion. He also argues that the trial court
erred by amending a jury instruction to add a definition of physical force and by refusing an
instruction on specific unanimity. Finally, he contends that the trial court abused its
discretion when it allowed the State to introduce improper character evidence. We attempted
to certify this case to the Arkansas Supreme Court pursuant to Ark. Sup. Ct. R. 1-2(b)(1), as
the need for a specific-unanimity instruction is an issue of first impression in Arkansas.
However, the supreme court denied certification. We affirm appellant’s convictions.
At trial, Th.P. testified that appellant first abused her in 1999 while her family was
living in Lawton, Oklahoma. She was thirteen years old at the time. Th.P. stated that her
mother was at a wedding out of town and that she had asked appellant questions about
“sexual things.” She testified that appellant “decided he had to show me rather than tell me.”
He then touched her breasts and the outside of her vagina. Days later, appellant touched
Th.P.’s vagina and breasts again, but this time, he took her clothes off. Eventually, appellant
escalated to putting his finger inside her vagina. Th.P. stated that the abuse continued when
the family moved to Bentonville, Arkansas, in December 1999, and that it was not
uncommon for appellant to abuse her more than once a week. Appellant would digitally
penetrate Th.P.’s vagina, but did not do anything more at that time. The abuse continued
when the family moved to a different Bentonville residence in October 2000. Th.P. testified
that appellant began removing his clothing and putting her hand around his penis.
Th.P. recounted a specific occasion when appellant abused her. According to her
testimony, while the family was living in the second Bentonville residence, appellant came
into her room late one night. Th.P. was lying on her stomach and was pretending to be
asleep. Appellant came into Th.P.’s room and took off her clothes and his clothes without
saying anything. At first, appellant touched Th.P.’s breasts and digitally penetrated her.
Then, he started rubbing his penis against her vagina. Appellant tried to flip Th.P., but she
refused to move. He then attempted to put his penis inside her vagina, but Th.P. moved her
hips. He eventually penetrated her vagina and made a loud grunting noise. Appellant then
stood up, kissed Th.P. on the forehead, and left the room. Th.P. started crying. Appellant
later returned to her room, put a robe over her, and whispered in her ear, “Save yourself for
your husband.”
Th.P. testified that she never consented to anything her father did; however, she did
not always know that what he was doing was wrong. She noted that she watched a movie,
and after watching the movie, she realized what was going on and learned that it was not
right. Th.P. stated that she often tried to avoid the contact. For example, appellant would
ask if she wanted a back rub, insinuating that he wanted to do something. She would attempt
to think of an excuse, but he would always tell her that whatever she needed to do could wait
until later. Th.P. testified that she felt that she could not object because her dad was a
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disciplinarian and had always made the rules. She also stated that her dad was a military man
who could do pushups with her sitting on his back and could throw her across the room.
On cross-examination, Th.P. stated that the abuse first started in Lawton and that, at
that time, she and appellant were “pretty open about talking about those things.” She
testified that appellant never stated that he was going to kill or beat her, but that she was
afraid that he would do something like that. Th.P. testified that after the incident when she
pretended to be asleep, the abuse stopped.
She stated that her mother found out
approximately a year later, but she recalled telling defense counsel that she was going to tell
her mother about the abuse while she still lived in Lawton. Th.P. testified that appellant had
held her by her throat and against the wall. Her mother came into the hall, and she was afraid
to tell her.
Ti.P., Th.P.’s twin brother, testified that he became aware of the abuse when he
walked in on appellant and Th.P. He was fourteen years old at the time. Ti.P. testified that
he saw Th.P. lying face down on the bed naked and appellant straddled atop her in his
underwear. Shortly after, Th.P. came into his room crying and seeming scared, frantic, and
confused. She told him that appellant put his finger insider her, showed her how to put on
a condom, and inserted his penis inside her anus. Over appellant’s objection, Ti.P. testified
that appellant disciplined him when he was younger, that appellant spanked him when he was
younger, and that he was afraid of appellant. He stated that appellant would pick him and
his siblings up by their necks and put them against the wall. Ti.P. said that he never
disobeyed any of his father’s direct orders for fear of being yelled at or hit.
Amber Collins of the Arkansas State Police Crimes Against Children Division
testified that this case was first reported on October 24, 2003. She first talked to Th.P.’s
mother and Th.P. She spoke to appellant on October 28, 2003, at her office. During the
interview, appellant told Collins that he was not going to contest anything Th.P. said.
3
Appellant gave a full account of the abuse, which was very similar to Th.P.’s trial testimony.
After Collins’s testimony, the State closed its case. Appellant then moved for directed
verdict. On the rape, appellant argued that the State presented insufficient evidence of
forcible compulsion. Specifically, he argued that forcible compulsion required some type of
physical force and that, while Th.P. described appellant as a disciplinarian, he never used any
physical force. The court denied the motion.
Appellant testified that he lived in the home until his arrest on October 31, 2003. He
stated that Th.P.’s mother did not know about the abuse until over a year after the last
incident. Appellant testified that he told his wife after finding a letter written by Th.P. He
acknowledged telling Collins that he was not going to contest anything said by Th.P. On
cross-examination, he stated that he started molesting Th.P. when the family moved to
Bentonville. He admitted showing Th.P. how to put on a condom, but he did not consider
that sexual abuse. He stated that the abuse began because Th.P. had dry skin, which required
ointment. He said that the massages started with clothes on, then with clothes off. He
admitted that he fondled Th.P.’s breasts and touched her vagina.
He also admitted
ejaculating on Th.P. Appellant also recalled the time he penetrated her with his penis. He
testified that Th.P. was on her bed and was either sleeping or pretending to be asleep. He
stated that she asked him to give her a massage and that he knew it might lead to a sexual
session. Appellant testified that he removed his clothes and pressed against her. He denied
penetrating her, but he admitted telling her that he could not teach her anymore and that “it’s
for your husband.”
A Benton County jury found appellant guilty of rape and incest. Appellant was
sentenced to forty years in the Arkansas Department of Correction on the rape count with ten
years suspended and thirty years on the incest count, with the sentences to be served
concurrently.
4
Sufficiency of the Evidence Regarding Rape
Appellant argues that the State presented insufficient evidence of rape.1 He contends
that there was no evidence that the acts committed against Th.P involved forcible
compulsion. A motion for directed verdict is a challenge to the sufficiency of the evidence.
Pinder v. State, 357 Ark. 275, 166 S.W.3d 49 (2004). The test for such motions is whether
the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial
evidence is evidence of sufficient certainty and precision to compel a conclusion one way or
another and pass beyond mere suspicion or conjecture. Id. On appeal, we view the evidence
in the light most favorable to the State and consider only the evidence that supports the
verdict. Id. A rape victim’s testimony need not be corroborated to support a conviction. Id.
A person commits rape if he engages in sexual intercourse or deviate sexual activity
with another person by forcible compulsion. Ark. Code Ann. § 5-14-103(a)(1) (Repl. 1997).2
Forcible compulsion is defined as “physical force or a threat, express or implied, of death of
physical injury to or kidnapping of any person.” Ark. Code Ann. § 5-14-101(2) (Repl. 1997).
Physical force has been further defined as “any bodily impact, restraint or confinement, or
threat thereof.” Pinder, 357 Ark. at 282, 166 S.W.3d at 54. The quantum of force need not
be considered as long as the act is committed against the will of the victim. West v. State,
27 Ark. App. 49, 766 S.W.2d 22 (1989). A victim’s age and relationship to the assailant are
key factors in weighing the sufficiency of the evidence in proving forcible compulsion, and
1
He does not challenge the sufficiency of the evidence to support the incest charge on
appeal.
2
The rape statute has been amended to include engaging in sexual intercourse or
deviate sexual activity with another person who is under eighteen years of age when the
actor is the victim’s guardian, regardless of consent. See Act 298 of 2001, codified at
Ark. Code Ann. § 5-14-103(a)(4), (b). However, as appellant correctly notes in his brief,
the substantive law in effect when a crime is allegedly committed controls how a criminal
defendant is charged and tried on the offense. See Young v. State, 287 Ark. 361, 699
S.W.2d 398 (1985).
5
age is an important factor in determining whether the victim consented to intercourse out of
fear of harm. Pinder v. State, supra. Furthermore, when the assailant stands in loco parentis
to a victim, the law regarding force is satisfied with less than a showing of the utmost
physical resistance of which the victim is capable. Id.
Appellant relies in part on Mills v. State, 270 Ark. 141, 603 S.W.2d 416 (1980).
There, the supreme court reversed a conviction for rape by forcible compulsion when the
evidence failed to show that appellant used physical force against the victims. The only
evidence of force in that case was testimony by one of the victims that the appellant
threatened to “kick his butt” if he told anyone. The victim in that case testified that he was
afraid of being killed or beaten up by appellant if he resisted, but the supreme court stated
that there was no evidence that the appellant ever threatened him before he committed the
act. It noted, “Subjective feelings of fear of physical injury by the victim must be based on
some act of the accused that can be reasonably interpreted to warrant such fear.” Id. at 144,
603 S.W.2d at 418.
While the supreme court held that there was insufficient evidence of forcible
compulsion in Mills, such evidence is present here. Th.P. testified that she was scared of her
father because he was a stern disciplinarian. She also testified about her efforts to avoid
penetration by moving her hips during the last time the abuse occurred. While appellant may
not have threatened physical harm while abusing Th.P., he clearly used physical force.
Further, Th.P. explicitly testified that appellant abused her without her consent.
In Griswold v. State, 290 Ark. 79, 716 S.W.2d 767 (1986), the supreme court held the
evidence to be sufficient for a rape conviction when the thirteen-year-old victim told the
appellant not to have intercourse, and the ten-year-old victim testified that the appellant told
her to “do it or else.” Like in Griswold, appellant penetrated Th.P. even though she
attempted to avoid it, either by trying to make excuses or by attempting to avoid the sexual
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contact.
Also, in Dillon v. State, 317 Ark. 384, 877 S.W.2d 915 (1994), the supreme court held
the evidence to be sufficient for a rape conviction when the appellant started squeezing the
victim’s breasts and putting his fingers in her vagina, even though she told the appellant to
leave her alone. The victim testified in that case that she felt like she would not make it
home because she knew that he was a police officer with a weapon, and she feared that he
would kill her. The victim also testified that she told the appellant repeatedly that she had
to pick up her kids from the sitter and that when she tried to get away from appellant, he
would pull her back to him.
Like in Dillon, Th.P. feared what appellant might do. While there was no evidence
that appellant had a weapon, Th.P. testified that appellant was a disciplinarian and afraid to
tell anyone for fear of what he might do to her. After reviewing the evidence and the
applicable case law, we hold that the State presented sufficient evidence of rape by forcible
compulsion.
Amendment of a Model Jury Instruction
Next, appellant argues that the trial court erred when it amended a model jury
instruction to add the definition of “physical force” to the instruction. He contends that the
AMI jury instruction was a correct statement of the law; therefore, no modification of the
language should have been allowed. At the request of the State and over appellant’s
objection, the court instructed the jury:
Forcible compulsion means physical force, or a threat, express or implied, of death
or physical injury to or kidnapping of any person. Physical force means any bodily
impact, restraint or confinement or threat thereof. The quantum of the force need not
be considered as long as the act is committed against the will of the victim.
(Emphasis added.) The non-emphasized portion is taken from AMI Crim. 2d 1401 and is
word-for-word from Ark. Code Ann. § 5-14-101(2). The emphasized portion is not part of
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AMI Crim. 2d 1401 but is based on the language from applicable case law. See Pinder v.
State, supra; Wells v. State, supra. The trial court found that a definition of physical force
should be included in the instruction in order for the jury to have a complete statement of the
law.
Non-model jury instructions are to be given only when the trial court finds that the
model instructions do not accurately state the law or do not contain the necessary instruction
on the subject at hand. Jackson v. State, 359 Ark. 297, ___ S.W.3d ___ (2004); see also
Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996) (holding no error in rejecting the
appellant’s proffered instruction, even though that statement was based on language from
case law, when the AMI instruction was a proper statement of the law). Any party that
wishes to challenge the accuracy of an instruction, be it the State or the defendant, must rebut
the presumption of correctness. McCoy v. State, 348 Ark. 239, 74 S.W.3d 599 (2002)
(supplemental opinion upon denial of rehearing). If there is no instruction on a subject upon
which the judge determines the jury should be instructed, an appropriate instruction can be
given. Hutcheson v. State, ___ Ark. App. ___, ___ S.W.3d ___ (Sept. 14, 2005). A court
is not required to give an instruction just because it accurately states the law, particularly if
the instruction is sufficiently covered by those given. Love v. State, 281 Ark. 379, 664
S.W.2d 457 (1984). Furthermore, a trial judge must ordinarily state his reasons when he
modifies an AMI instruction; when he does modify, he is to use simple, brief, and impartial
language that is free from argument. Beasley v. State, 29 Ark. App. 104, 777 S.W.2d 865
(1989).
Appellant relies heavily on Beasley v. State, supra, where we reversed a conviction
for felon in possession of a firearm. There, after the trial court read the standard instruction
for the crime, it added the following non-model language:
“Possess” means to exercise actual dominion, control or management over a tangible
8
object. Neither actual physical possession nor ownership is necessary for a conviction
of possession of a firearm. Possession may be imputed when the contraband is found
in a place which is immediately and exclusively subject to his dominion and control.
Id. at 105–06, 777 S.W.2d at 866. We reversed the appellant’s conviction after concluding
that an instruction telling the jury that actual ownership was not necessary to convict
appellant of the charge was prejudicial. Also cf. Martin v. State, 354 Ark. 289, 119 S.W.3d
504 (2003) (stating in dicta that, in a statutory-rape case, the trial court did not err in failing
to admonish the jury not to consider acts of sexual intercourse after the victim’s fourteenth
birthday when the jury was correctly instructed that only acts of sexual intercourse prior to
the victim’s fourteenth birthday were evidence of rape); Lipscomb v. State, 271 Ark. 337, 609
S.W.2d 15 (1980) (holding no error in the trial court’s refusal to give an instruction that
defined “mental disease or defect” or the word “appreciate” as used in AMI Crim. 4009, an
instruction on the defense of criminal insanity); Gabrion v. State, 73 Ark. App. 170, 42
S.W.3d 572 (2001) (holding no error in the trial court’s refusal to give an instruction that
defined “lewd,” stating that common words with ordinary meanings need not be explained
to the jury).
In response, the State relies on Hutcheson v. State, supra, where this court affirmed
a conviction for rape on an accomplice-liability theory. The appellant, mother of the victim,
argued that the trial court erred in giving a jury instruction regarding a parental duty to
protect children from abuse.3 We held that no error resulted from the additional instruction
3
Relying on Ark. Code Ann. § 9-27-303 (Supp. 2003), the jury was instructed:
A parent has a legal duty to prevent the abuse of her child when the parent knows or
has reasonable cause to know the child is or has been abused. A parent has a legal
duty to take reasonable action to protect her child from abandonment, abuse, sexual
abuse, sexual exploitation, neglect, or parental unfitness where the existence of this
condition was known or should have been known. A parent has a legal duty to
appropriately supervise her child and prevent the child from being left alone at an
inappropriate age or in inappropriate circumstances which put the child in danger.
9
because the jury should have been instructed on a parent’s duty to protect her child.
The trial court erred in giving the modified jury instruction. Both the trial court and
the State claimed that the additional instruction made “a complete statement of the law”;
however, AMI Crim. 2d. 1401 was already a correct statement of the law. Pursuant to the
long line of Arkansas case law, the trial court was obligated to read the model instruction
without modification. The additional definition of physical force was unnecessary. See
Misskelley v. State, supra.
However, we affirm because the error in modifying the jury instruction was harmless.
Arkansas appellate courts presume prejudice from the giving of an erroneous instruction,
unless the error is rendered harmless by other factors. Union Pac. R.R. Co. v. Barber, 356
Ark. 268, 149 S.W.3d 325 (2004); Napier v. State, 74 Ark. App. 272, 46 S.W.3d 565 (2001).
While the trial court should not have given the modified model instruction, we consider that
error harmless after considering other factors. The added language did not take away from
the State’s burden of proving forcible compulsion. Further, the harm in giving the additional
language in Beasley is absent here.
In Beasley, the jury was instructed that “actual
possession” was not necessary to find the appellant guilty of the possession charge. Here,
the jury was given a definition of forcible compulsion, modified by an additional definition
of physical force based on applicable case law. The jury was not given an instruction that
would lead a jury to believe that anything less than the statutory definition of forcible
compulsion was necessary to convict appellant. In addition, Th.P. gave very detailed
descriptions of the abuse, many of the details were undisputed by appellant, and there was
overwhelming evidence of forcible compulsion. Accordingly, we hold that the error in
giving the modified instruction was harmless.
Hutcheson, ___ Ark. at ___, ___ S.W.3d at ___.
10
Appellant’s Specific-Unanimity Argument
Next, appellant argues that he was denied his right to a unanimous verdict when the
trial court refused to instruct the jury on the requirement of specific unanimity. Appellant
proffered the following jury instruction at trial:
Keith Alan Petras is charged with the offenses of Rape and Incest. He may be
found guilty if the proof shows beyond a reasonable doubt that he committed any one
or more of such acts, but in order to find the defendant guilty, all jurors must agree
that he committed the same act or acts. It is not necessary that the particular act or
acts committed so agreed upon be stated in the verdict.
In order to prove the defendant guilty, it is necessary for the prosecution to
prove beyond a reasonable doubt the commission of a specific act or acts constituting
Rape and/or Incest within the period alleged. In order to find the defendant guilty,
you must unanimously agree upon the commission of the same specific act or acts
constituting Rape and/or Incest within the period alleged. It is not necessary that the
particular act or acts committed so agreed upon be stated in the verdict.4
Appellant notes that he was charged with only one count of rape and incest and that
the State offered evidence of several incidents over a period of time. Appellant cites cases
from a number of jurisdictions to support the proposition that a jury must be instructed that
they must be unanimous with regard to a particular incident for each count (R.A.S. v. State,
718 So. 2d 117 (Ala. 1998); State v. Arceo, 84 Haw. 1, 928 P.2d 843 (1996); State v. Davis,
4
The State argues that issue was not preserved. However, appellant indisputably
proffered a specific-unanimity instruction that the court rejected. Further, appellant
argued at trial:
Your Honor, with regards to the unanimity instruction, which we are proffering for
the record, the Defense is asking for this instruction for several reasons. One is to
avoid double jeopardy on the part of the defendant; second, to ensure that the jury
focuses on one particular incident, which insures him a unanimous - unanimous
verdict in that one juror may think that Mr. Petras committed rape when he digitally
penetrated his daughter at one time, another juror may feel that he committed rape
or incest when he had intercourse with her. This instruction would ensure that all
jurors agreed on a particular incident with which they’re finding him guilty on both
offenses.
(Emphasis added.) Appellant made a specific argument requiring specific unanimity and
proffered a jury instruction. We do not understand why this issue is not preserved for
appellate review.
11
275 Kan. 107, 61 P.3d 701 (2003); Commonwealth v. Conefrey, 420 Mass. 508, 650 N.E.2d
1268 (1995)). Relying on these cases, he contends that the failure to give his proffered
instruction resulted in a violation of his right to have the State prove each and every element
of the offense against him beyond a reasonable doubt.
The State makes multiple arguments. First, the State argues that the jury received an
instruction that all twelve of them had to agree on the verdicts, and argues that such an
instruction was sufficient. Second, the State argues that appellant did not use language that
was simple and brief. Finally, the State argues that specific unanimity is unnecessary in a
case of continuing sexual conduct.
We agree with the State that the trial court did not err when it rejected appellant’s
requested specific-unanimity instruction; however, we do not embrace the State’s position
that specific unanimity is unnecessary because the case involved continuing sexual conduct.
The State’s argument ignores our well-settled case law stating that rape is not a continuing
offense. Rains v. State, 329 Ark. 607, 953 S.W.2d 48 (1997). Where multiple acts of rape
involving conduct occur at different points in time, there is no continuing offense because
a separate impulse must necessarily be proved for the commission of each offense. Id.;
Anderson v. State, ___ Ark. App. ___, ___ S.W.3d ___ (Dec. 14, 2005).
Rather, we hold that no specific-unanimity instruction was necessary because the trial
court properly instructed the jury that the prosecution was obligated to prove each element
of every offense beyond a reasonable doubt and that all twelve jurors had to agree on the
verdicts. That was a clear, concise, and accurate statement of the law. Each incident that
the jury received proof about was a factor in its verdict.
Furthermore, we reject appellant’s specific-unanimity argument because the law
generally does not provide for jury verdicts in criminal cases to be issued upon
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interrogatories. The following encyclopedia entry is instructive:
No criminal defendant has a right to have a special issue submitted except in a capital
case. The use of jury interrogatories in criminal trials is not by itself impermissible,
but rather is generally disfavored. Special interrogatories tend to dilute the jury’s
exclusive and ultimate responsibility for determining guilt or innocence, and may
impermissibly catechize, color, or coerce the jury’s decisionmaking. Indeed, some
courts have held that statutes permitting answers to interrogatories to control a
general verdict are inapplicable to criminal cases, for the reason that their application
would constitute an impairment of the right to trial by jury. In such a case the trial
court may refuse to submit the questions, but if submitted, the answers are immaterial
and not controlling.
75B Am. Jur. 2d Trials § 1865 (emphasis added) (footnote references omitted).
The specific-unanimity instruction proposed by appellant would have obligated the
jury to engage in a de facto interrogatory process in order to arrive at the required generalunanimous verdict. The longstanding policy of American jurisprudence is to interfere with
jury deliberations as little as possible. Juries are presumed to follow the instructions given
to them by the court. State v. Robbins, 342 Ark. 262, 27 S.W.3d 419 (2000); Logan v. State,
300 Ark. 35, 776 S.W.2d 341 (1989). Once the jury deliberates and renders its verdict,
Arkansas law protects those deliberations by rendering inadmissible as evidence any
statements made during the course of jury deliberations or inquiries into the emotions or
mental processes influencing the jury in reaching its verdict. Ark. R. Evid. 606(b); Davis
v. State, 330 Ark. 501, 956 S.W.2d 163 (1997); see also Ashby v. State, 271 Ark. 239, 607
S.W.2d 675 (1980) (affirming the refusal to set aside a jury verdict despite comment made
by a juror that the defendant could be released early factored into its sentencing decision).
By proposing a specific-unanimity instruction, appellant sought to require that the
jury deliberate on every specific allegation of abuse and unanimously agree that the State
proved every element of the crime regarding any specific allegation before reaching a
general verdict. We see no justification in Arkansas law for imposing such a deliberative
13
process upon jurors. Indeed, the process countenanced by appellant’s specific-unanimity
instruction would essentially dictate how jurors would deliberate in cases where multiple
incidents have been proven in support of a single criminal charge. Our regard for the
exclusive power of the jury to reason its way to reaching a verdict leads us to conclude that
the specific-unanimity instruction was both unnecessary and inappropriate.
Finally, our conclusion that the trial court properly rejected appellant’s specificunanimity instruction appears in accord with the decision in Clayton v. State, 191 Ark. 1070,
89 S.W.2d 732 (1935), where our supreme court affirmed the death sentences for the
defendant based upon a verdict that read: “We, the jury, find the defendant, Jim X.
Caruthers, guilty as charged in the indictment, and fix his punishment at death by
electrocution.” That verdict was upheld as sufficient on appeal against the contention that
because the indictment for rape included several separate offenses, a particular offense
should have been found. The court stated that the jury’s verdict was definite and certain
because it had sentenced the appellant to death, which it could not have done for any of the
other offenses. Admittedly, the defendant in Clayton was not making what we consider a
specific-unanimity argument and did not request a specific-unanimity instruction. However,
it appears that appellant’s requested instruction in the present case would have obligated the
jury to engage in an exercise similar to that held unnecessary in Clayton.
If a defendant wishes to challenge the contention that a reasonable jury could not
unanimously find him guilty of the crime charged, then the proper method for challenging
the sufficiency of the evidence is by a motion for directed verdict. See Pinder v. State,
supra. If the evidence is insufficient, no jury instruction or special interrogatories can cure
that error. Accord Craig v. State, 70 Ark. App. 71, 14 S.W.3d 893 (2000) (holding that an
appellant is not procedurally barred from attacking the denial of the motion to dismiss a first-
14
degree felony-murder charge if he fails to proffer special interrogatories or a different firstdegree murder instruction).
Appellant’s 404(b) Argument
Finally, appellant argues that the trial court abused its discretion when it allowed the
State to introduce improper character evidence related to him to show that he acted in
conformity with those bad character traits when he allegedly committed the offenses of rape
and incest. Specifically, appellant argues that Ti.P.’s testimony that he (appellant) was
violent around the house should have been excluded as improper character evidence.
Rule 404(b) of the Arkansas Rules of Evidence (2005) states:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of
a person in order to show that he acted in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.
The admission or rejection of evidence under Rule 404(b) is left to the sound
discretion of the trial court, and we will not reverse absent a showing of manifest abuse or
a showing of prejudice. Swift v. State, ___ Ark. ___, ___ S.W.3d ___ (Oct. 13, 2005);
Hanlin v. State, 356 Ark. 516, 157 S.W.3d 181 (2004). Evidence offered pursuant to Rule
404(b) must be independently relevant. Holt v. State, 85 Ark. App. 308, 151 S.W.3d 1
(2004). Evidence is independently relevant if it tends to prove a material point and is not
introduced solely to prove that the defendant is a bad person. Id. However, even if
independently relevant, evidence of other crimes may still be excluded under Rule 403 if the
probative value of that evidence is substantially outweighed by the danger of unfair prejudice
to the defendant. Id.
We hold that no error resulted from the admission of Ti.P.’s character testimony.
Such evidence is relevant to the mental state of Th.P. and supports her testimony that she had
reason to believe that her father would harm her if she did not let him abuse her. Further, had
15
the court erred in admitting Ti.P.’s character testimony, such error would be harmless.
Where evidence of guilt is overwhelming and the error slight, we can declare the error
harmless and affirm. Proctor v. State, 349 Ark. 648, 79 S.W.3d 370 (2002); Lewis v. State,
74 Ark. App. 61, 48 S.W.3d 535 (2001).
Here, with the exception of Ti.P.’s testimony that appellant spanked the children, his
testimony about how he feared appellant and how appellant was a disciplinarian was similar
to Th.P.’s testimony, which was admitted without objection. This, along with Th.P.’s graphic
testimony of the abuse, is overwhelming evidence of appellant’s guilt in comparison to any
error that may have occurred by admitting Ti.P.’s testimony.
Affirmed.
P ITTMAN, C.J., agrees.
H ART, J., concurs.
J OSEPHINE L INKER H ART, Judge, concurring. While I agree with the disposition
reached in our majority opinion, I do not join the discussion regarding jury verdicts in
criminal cases issued on interrogatories, which is found in the portion of the opinion subtitled
“Appellant’s Specific-Unanimity Argument.” There is no issue relating to jury interrogatories
before us, and because the discussion is dicta, this case should not be considered as having
precedential value should this issue ever arise in a future case.
16
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