Clark v. State

Annotate this Case

Richard CLARK v. STATE of Arkansas

CR 95-408 ___ S.W.2d ___

Supreme Court of Arkansas
Opinion delivered January 29, 1996

1. Evidence -- evidence of prior, similar bad acts properly
admitted -- pedophile exception to rules applicable. -- The
trial court did not err by admitting evidence of other sexual
acts by the accused with the victim or another child in the
same household; the evidence of other crimes is normally
inadmissible character evidence under Rule 404(b) of the
Arkansas Rules of Evidence; however, such evidence is allowed
under a pedophile exception to show similar acts with the same
child or other children in the same household when it is
helpful in showing a proclivity toward a specific act with a
person or class of persons with whom the accused has an
intimate relationship; such evidence helps to prove the
depraved sexual instinct of the accused; appellant failed to
demonstrate that the trial court's ruling violated Rule
404(b).

2. Evidence -- challenged testimony relevant -- probative value
outweighed prejudicial effect. -- The challenged testimony was
relevant to prove the charge of rape, and its probative value
substantially outweighed its prejudicial effect, thus,
appellant failed to demonstrate that the trial court's ruling
violated Ark. R. Evid. 403.

3. Witnesses -- exceptions to rule requiring exclusion of
witnesses from the courtroom -- witness should have been
excluded. -- Arkansas Rule of Evidence 615 governs the
exclusion of witnesses from the courtroom so that they may not
hear the testimony of other witnesses; the provisions of Rule
615 are mandatory; nonetheless, pursuant to exceptions set
forth in Rule 615 and in Ark. R. Evid. 616, certain persons,
including the victim of the crime, have the right to remain in
the courtroom; appellant did not argue and the record did not
reflect that the family service worker was qualified to remain
in the courtroom under any exception; therefore, she should
have been excluded from the courtroom, and the trial court
erred in ruling otherwise.

4. Witnesses -- error harmless -- no prejudice shown to have
resulted. -- The trial court's error did not require the court
to reverse its judgment because appellant failed to show that
any prejudice resulted; prejudice is not presumed and the
court does not reverse absent a showing of prejudice.

5. Evidence -- purpose of Rule 615 -- appellant did not
demonstrate reversible error. -- The purpose of Rule 615 is to
expose inconsistencies in the testimonies of different
witnesses and "to prevent the possibility of one witness's
shaping his or her testimony to match that given by other
witnesses at trial"; where there was no abstracted evidence of
such conduct as a result of the trial court's erroneous
ruling, appellant failed to demonstrate reversible error.

6. Appeal & error -- appellant failed to object at the earliest
opportunity -- argument not preserved for appeal. -- An
appellant is required to make an objection at the first
opportunity in order to preserve the argument for appeal that
a witness's name was not properly provided under discovery
rules; here appellant did not object to the witness's
testimony until she had taken the stand and answered twenty-
four questions; appellant failed to object at the earliest
opportunity.

7. Appeal & error -- appellant failed to abstract pertinent parts
of the record -- appellate court precluded from considering
certain issues. -- Ark. R. Crim. P. Rule 17.1 provides that,
upon timely request, the state shall disclose to defense
counsel the names and addresses of persons whom the state
intends to call as witnesses; Rule 19.2 provides that the
state's obligation is a continuing one; the abstract, however,
did not show appellant's discovery request to the state, as
required by Rule 17.1, or any witness list appellant received
from the state; it is the duty of the appellant in a criminal
case to abstract such parts of the record that are material to
the point he argues, and his failure to do so precludes the
appellate court from considering issues concerning it.

8. Witnesses -- appellant failed to request time to interview
witness prior to trial, even though he knew she was going to
testify -- appellant failed to request remedies available to
him. -- Where the record demonstrated that appellant was aware
that the service worker was a prospective state's witness,
appellant could have requested time to interview her before
she was called to testify; such a course of action by the
trial court ameliorates the state's failure to comply with
Rule 17.1 so that the accused is not prejudiced;
alternatively, appellant could have requested a continuance
under Ark. R. Crim. P. 19.7; appellant, however, failed to
request either of these remedies.

9. Evidence -- erroneous admission of hearsay testimonies
rendered harmless -- victim's testimony independently
evidenced her rape. -- The trial court's erroneous admission
of the hearsay testimonies of the two witnesses, 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.

10. Jury -- instruction properly given -- argument without merit.
-- Appellant's argument that the inclusion of the language "or
deviate sexual activity" in the instruction was error because
there was no evidence to support that part of the instruction
was meritless where a physician in the emergency department
of the hospital who examined the victim testified that, in her
opinion, a "a large object" penetrated and entered the
victim's vagina and that nothing in her examination could tell
the court what it was that actually caused the victim's injury
and the victim testified that, when appellant raped her, it
felt like a bottle; on this record, the abstract did not
support the premise for appellant's argument that no evidence
was introduced to support the "deviate sexual activity"
portion of the instruction.

Appeal from Phillips Circuit Court, First Judicial District;
Harvey L. Yates, Judge; affirmed.
Charles E. Halbert, Jr., for appellant.
Winston Bryant, Att'y Gen., by: Brad Newman, Asst. Att'y
Gen., for appellee.

Donald L. Corbin, Justice.*ADVREP2*
1-29-96

RICHARD CLARK,
APPELLANT,

STATE OF ARKANSAS,
APPELLEE,

CR 95-408

APPEAL FROM THE PHILLIPS COUNTY
CIRCUIT COURT, FIRST JUDICIAL
DISTRICT, NO. CR 94-96,
HON. HARVEY L. YATES, JUDGE,

AFFIRMED.

Donald L. Corbin, Justice.

Appellant, Richard Clark, appeals the order of judgment and
commitment, entered October 7, 1994, in the Phillips County Circuit
Court convicting him, by jury trial, of one count of rape and
sentencing him to imprisonment for forty years. Jurisdiction is
properly in this court pursuant to Ark. Sup. Ct. R. 1-2(a)(2).
Appellant asserts five points for reversal. We affirm the trial
court's order.
Appellant does not challenge the sufficiency of the evidence,
so there is no need to recite it in detail. The charge against
appellant was the result of a single incident occurring on the
evening of April 8, 1993, when appellant picked up his daughter,
the victim, then aged ten years, to drive her to his house. The
victim testified that on their way to appellant's house, appellant
stopped the car, told her to get in the back seat, put her "short
pants" on the floor, put his own clothes on the front seat, got in
the back seat with her, lay on top of her while she lay on her
back, and stuck "his private" in "her private." The victim
testified that it felt like a bottle, that she told appellant to
stop, that appellant did this for about an hour, and that she had
to go to the hospital later because appellant had hurt her and she
was bleeding. On April 9, 1993, the victim was treated for a
bleeding vaginal laceration at the emergency room of Arkansas
Children's Hospital in Little Rock and was admitted to its medical
surgical unit. The hospital recommended that the victim receive
mental health counseling, and, subsequently, she did.
Evidence of prior bad acts
Appellant's first assignment of error is the admission of
certain portions of the testimonies of the victim and Donna McKuen,
an Arkansas Department of Human Services family service worker, as
follows. The victim testified that appellant had never "done this"
to her before. When asked whether appellant had "done it" to any
of the other children who lived in his house, the victim replied
affirmatively, and testified that she had seen appellant do the
same thing he had done to her to eight-year-old Kenisha Harris in
his house. Ms. McKuen testified that she had interviewed the
victim on May 3, 1993, and had asked the victim if anyone had done
anything bad to her, and that the victim had answered "yes, my
daddy" and described the circumstances of the April 8, 1993 rape.
Ms. McKuen also testified that, during the same interview, the
victim told her that appellant had "done this to her" four times
before.
Appellant contends these testimonies should have been excluded
pursuant to Ark. R. Evid. 404(b) and 403, respectively, as
character evidence that had no relevance except to show appellant's
propensity to commit the crime charged, and that was unfairly
prejudicial. This argument is meritless.
In Greenlee v. State, 318 Ark. 191, 197, 884 S.W.2d 947, 950
(1994), we reversed Greenlee's conviction for the rape of a five-
year-old girl on other grounds, but stated that the trial court did
not err by admitting evidence of Greenlee's four prior convictions
for sex-related offenses against other minor victims, as follows:
If this case did not pertain to child abuse or
incest, the evidence of other crimes would be
inadmissible character evidence under Rule 404(b) of the
Arkansas Rules of Evidence. However, we allow such
evidence under a pedophile exception to show "similar
acts with the same child or other children in the same
household when it is helpful in showing a `proclivity
toward a specific act with a person or class of persons
with whom the accused has an intimate relationship.'"
Free v. State, 293 Ark. 65, 71, 732 S.W.2d 452, 455
(1987) (quoting White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986)). Appellant committed the prior offenses
against young children, just as he was accused of doing
in this case . . . . We have long held that such
evidence helps to prove the depraved sexual instinct of
the accused. Williams v. State, 103 Ark. 70, 146 S.W. 471 (1912).

This rationale is equally applicable to evidence of other sexual
acts by the accused with the victim or another child in the same
household. See Thompson v. State, 322 Ark. 586, ___ S.W.2d ___
(1995); Jarrett v. State, 310 Ark. 358, 833 S.W.2d 779 (1992); Free
v. State, 293 Ark. 65, 732 S.W.2d 452 (1987). Appellant cites no
authority contradicting this rule of law in the context of a sex-
related offense involving a minor victim. Thus, appellant fails to
demonstrate that the trial court's ruling violated Rule 404(b).
Further, the challenged testimony was relevant to prove the
charge of rape, and its probative value substantially outweighed
its prejudicial effect. Jarrett, 310 Ark. 358, 833 S.W.2d 779;
Free, 293 Ark. 65, 732 S.W.2d 452. Thus, appellant fails to
demonstrate that the trial court's ruling violated Rule 403.
Ark. R. Evid. 615
The victim was permitted, without objection, to testify while
seated at a table placed before the witness stand so that she faced
the jury. As the examining attorney asked the victim each
question, she wrote her response on a piece of paper and the
attorney read the response aloud before proceeding to the next
question. Appellant's second assignment of error is the trial
court's ruling, over appellant's objection pursuant to Ark. R.
Evid. 615, that Ms. McKuen would be permitted to sit with the
victim while the victim testified. The state requested this
seating arrangement to "enable [the victim] to testify better[.]"
The trial court granted the state's request on the conditions that:
(1) if Ms. McKuen was called as a witness by the state, she would
testify prior to the victim, (2) Ms. McKuen would not make
suggestions to the victim during the victim's testimony, and (3)
Ms. McKuen would not be subject to recall by the state.
Rule 615 governs the exclusion of witnesses from the courtroom
so that they may not hear the testimony of other witnesses. The
provisions of Rule 615 are mandatory. King v. State, 322 Ark. 51,
907 S.W.2d 127 (1995). Nonetheless, pursuant to exceptions set
forth in Rule 615 and in Ark. R. Evid. 616, certain persons,
including the victim of the crime, have the right to remain in the
courtroom. Appellant does not argue and the record does not
reflect that Ms. McKuen was qualified to remain in the courtroom
under any exception. Therefore, Ms. McKuen should have been
excluded from the courtroom, id., and the trial court erred in
ruling otherwise.
We do not find, however, that the trial court's error requires
us to reverse its judgment because appellant fails to show that any
prejudice resulted. Prejudice is not presumed and we do not
reverse absent a showing of prejudice. Id.; Wallace v. State, 314
Ark. 247, 862 S.W.2d 235 (1993). Appellant argues, without
authority, that he was prejudiced because Ms. McKuen's presence
made it appear he was trying to intimidate the victim and that the
victim had to have someone with her. The abstract does not support
appellant's assertion, and, in fact, even fails to reflect whether
Ms. McKuen was present in the courtroom during the victim's
testimony. The abstract does show that Ms. McKuen testified prior
to the victim and was not recalled to the stand.
The purpose of Rule 615 is to expose inconsistencies in the
testimonies of different witnesses and "`to prevent the possibility
of one witness's shaping his or her testimony to match that given
by other witnesses at trial.'" King, 322 Ark. 51, 55, 907 S.W.2d 127, 129 (quoting Fite v. Friends of Mayflower, Inc., 13 Ark. App.
213, 682 S.W.2d 457 (1985)). There is no abstracted evidence of
such conduct as a result of the trial court's erroneous ruling. On
this record, we cannot say that appellant has demonstrated
reversible error.
Failure to include Ms. McKuen on witness list
Appellant's third assignment of error is that Ms. McKuen
should not have been permitted to testify because the state failed
to include her name on its witness list, in violation of its
discovery obligation under Ark. R. Crim. P. 17.1 and 19.2. This
argument is meritless.
First, an appellant is required to make an objection at the
first opportunity in order to preserve the argument for appeal.
Edwards v. State, 321 Ark. 610, 906 S.W.2d 310 (1995). Appellant
did not object to Ms. McKuen's testimony until she had taken the
stand and answered twenty-four questions. At that point,
Ms. McKuen was testifying as to her May 3, 1993 interview with the
victim. Appellant objected that he had no statements taken by Ms.
McKuen, and, after a brief exchange between the trial court and the
parties' trial counsel regarding this objection, a bench conference
ensued wherein appellant's counsel stated that the state "has got
to let me know [Ms. McKuen] is going to testify." On this record,
we do not find that appellant objected at the earliest opportunity.
Id.
Second, Rule 17.1 provides that, upon timely request, the
state shall disclose to defense counsel the names and addresses of
persons whom the state intends to call as witnesses; Rule 19.2
provides that the state's obligation is a continuing one. The
abstract, however, does not show appellant's discovery request to
the state, as required by Rule 17.1, or any witness list appellant
received from the state. It is the duty of the appellant in a
criminal case to abstract such parts of the record that are
material to the point he argues, and his failure to do so precludes
the appellate court from considering issues concerning it. Manning
v. State, 318 Ark. 1, 883 S.W.2d 455 (1994).
Third, the record demonstrates that appellant was aware that
Ms. McKuen was a prospective state's witness, as follows. An in-
camera conference was conducted immediately prior to Ms. McKuen's
testimony, wherein the trial court considered appellant's Rule 615
objection that we discussed above. During that conference,
appellant's counsel argued that he anticipated Ms. McKuen was going
to be a witness, and, therefore, she could not stay in the
courtroom during the victim's testimony.
Fourth, even assuming the state violated its discovery
obligation by failing to disclose Ms. McKuen as a prospective
witness prior to trial, appellant could have requested time to
interview Ms. McKuen before she was called to testify. Mills v.
State, 322 Ark. 647, ___ S.W.2d. ___ (1995). We have held that
such a course of action by the trial court so ameliorated the
state's failure to comply with Rule 17.1 that the accused was not
prejudiced. Id. Alternatively, appellant could have requested a
continuance. Ark. R. Crim. P. 19.7. Appellant, however, failed to
request either of these remedies.
Hearsay
Appellant's fourth assignment of error is the admission of
those portions of the testimonies of Ms. McKuen and Ms. Carol
Crider reporting the victim's out-of-court statements to them
describing her rape. Ms. Crider was a social worker with the
Arkansas Children's Hospital who interviewed the victim at the
hospital on April 9, 1993.
The trial court ruled these testimonies were admissible 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).
Appellant argues that these testimonies regarding the victim's out-
of-court statements were inadmissible hearsay offered to bolster
the victim's testimony as prior consistent statements.
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.
Jury instruction
The trial court instructed the jury that in order to convict
appellant, the state must prove that he engaged in sexual
intercourse or deviate sexual activity with the victim.
Appellant's fifth assignment of error is the inclusion of the
language "or deviate sexual activity" in the instruction because,
he argues, there was no evidence to support that part of the
instruction. This argument is meritless.
"Sexual intercourse" is defined as "penetration, however,
slight, of a vagina by a penis." Ark. Code Ann. 5-14-101(9)
(Repl. 1993). "Deviate sexual activity" is defined as:
[A]ny 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 vagina
or anus of one person by any body member or foreign
instrument manipulated by another person[.]

Ark. Code Ann. 5-14-101(1) (Repl. 1993). State's witness,
Dr. Ava Komoroski, a physician in the emergency department of
Arkansas Children's Hospital who examined the victim on April 9,
1993, testified that, in her opinion, a "a large object" penetrated
and entered the victim's vagina. Dr. Komoroski testified that
nothing in her examination could tell the court what it was that
actually caused the victim's injury. The victim testified that,
when appellant raped her, it felt like a bottle. On this record,
we cannot find that the abstract supports the premise for
appellant's argument, that is, that no evidence was introduced to
support the "deviate sexual activity" portion of the instruction.
Affirmed.
DUDLEY and BROWN, JJ., dissent.

RICHARD CLARK,
APPELLANT,

STATE OF ARKANSAS,
APPELLEE.

CR95-408

DISSENTING OPINION.

The majority opinion holds that the trial court erred in
admitting the hearsay testimony of Donna McKuen and Carol Crider
and in refusing to exclude Ms. McKuen from the courtroom after
defendant requested the exclusion of all witnesses under Ark. R.
Evid. 615. However, the majority opinion then holds the errors
were harmless. I agree that the trial court erred in both rulings,
but I cannot agree that the errors were harmless. Accordingly, I
dissent.
The victim, a ten-year-old girl, was understandably affected
by the surroundings in the courtroom, the people confronting her,
and the unpleasant responsibility of testifying that her father had
committed the crime of rape against her. Even so, the record does
not disclose that the State made any attempt to videotape the young
victim's testimony, see Ark. Code Ann. 16-44-203 (1987), or that
the State attempted to introduce the hearsay testimony through Ark.
R. Evid. 803(25). The young victim was so recalcitrant that she
would not answer questions aloud. Instead, she could only write
her responses to questions, and the examining attorney then read
the answers to the jury. Under the circumstances, her direct
testimony in the State's case-in-chief was very limited. It is, in
material part, abstracted as follows:
He picked me up to go to his house on April 8. Nobody
else was with us. We went in his car. When he stopped
the car he told me to get in the backseat. He put my
short pants on the floor. He put his clothes in the
front seat. After I got in the backseat my father got in
the backseat with me. He was on top of me. It was dark
outside. I was laying in the backseat on my back. My
dad stuck his private in my private. It felt like a
bottle. I told him to stop. My father did this to me
about an hour. I had to go to the hospital later because
my dad hurt me. I was bleeding. My dad has never done
this to me before.
Ms. McKuen gave hearsay testimony to many more details. Her
direct testimony in the State's case, in material part, was as
follows:
I asked her if something bad had happened to her and she
said yes ma'am. I asked her if anyone had done anything
bad to her and she said "Yes, my daddy." I asked her if
she ever wanted to see him again and she said "No." I
said I know it is difficult for you to talk about, but
can you tell me what happened and she said "Yes, my daddy
got on top of me." She told me that he took off, and she
said "My short pants," and I asked her if that was all he
took off and she said "My panties." She told me that he
took off his clothes, his pants, and his underwear, and
her exact words were, "He stuck his penis in me." She
did say the word "penis." I asked where did he put his
penis and she said "inside me." I asked her what his
penis looked like and she wouldn't tell me at this point.
She told me later. I asked her where this happened and
she said Postelle. She said Postelle was close to
Marvell. I asked her were they in a house or what and
she said "a car." I asked where did you go after he did
this and she said to his house. I asked who all was
there and she said his wife and his kids and that she
said that she did tell his wife and his wife made no
comment about it. I asked her why she went to the
hospital. She was taken to the hospital in Helena. I
asked her why and she said "Because I was bleeding." I
asked her who transported her to the --
MR. HALBERT: Your Honor, note my continuing
objection to all this.
THE COURT: The Court notes it as continuing.
WITNESS: I asked her who had transported her to the
doctor and she said his wife and my dad and that's all.
When I asked her if he had ever done this to her before,
she stated he did it before. No. She said on the sand
row. I asked her where the sand rows were located and
she said Holly Grove. I asked her if she could remember
how many times this had occurred and she said four. She
said that she had never told anyone. She said it
happened two times in Postelle and in Marvell and on the
sand road. She said his penis was brown and hard. She
said that while he was doing this to her she told him to
quit and he kept on. I then changed the subject and
started talking. I provided all these things to her
counselor.
The hearsay testimony of Ms. McKuen contains critical
testimony that was not given by the victim at trial. Ms. McKuen
additionally testified about her training and that she was
interested in the case because she did not want this crime to
reoccur. Ms. McKuen told the jury that the victim told her that
"he stuck his penis in me" and that his penis was brown and hard.
The victim told the jury that defendant put "his private in my
private," but did not attempt to describe the color or rigidity of
the defendant's penis or other details of the crime. Ms. McKuen
testified that the victim told her "she told him to quit and he
kept on." The victim testified that she "told him to stop." Ms.
McKuen testified that the victim told her the defendant committed
the crime of rape against her on four occasions and gave a location
for each of the four crimes. The victim testified, "My dad has
never done this to me before."
Carol Crider, another social worker, gave the hearsay
testimony that a "physician said that there looked like there may
have been a sexual assault and asked me to go in and talk to the
child and see if I could get any history from her about how she had
been hurt." She testified that the victim told her that the
defendant "put his private in the place where she pees." Ms.
Crider testified that she then showed the victim an anatomically
detailed doll and after she asked additional questions, the victim
pointed to the doll's penis and said it was the doll's "private."
The State claimed that the hearsay testimony was a medical
record, and the trial court apparently allowed it into evidence on
that basis. The majority opinion adequately deals with the error
in the ruling. The only question is whether it was harmless error.
It appears that the errors in admitting the foregoing hearsay
evidence were most likely prejudicial to the defendant. However,
any question about prejudice is answered by the compounding error
in the ruling on Ark. R. Evid. 615.
Defendant moved for the rule when the trial commenced. The
State responded that Ms. KcKuen was not subject to the rule on the
ground that the victim trusted her. The majority opinion holds
that the trial court erred in excluding Ms. McKuen from Rule 615.
I agree. However, the trial court exacerbated the error by
allowing Ms. McKuen to sit at the counsel table after she had
completed her testimony. Ms. McKuen was never required to join the
other witnesses in the witness room. The effect surely was for the
trial court to convey to the jurors an imprimatur of approval of
Ms. McKuen. The ultimate result most likely was that the jurors
gave most favorable consideration to Ms. McKuen's hearsay
testimony. That hearsay testimony was neither inconsequential nor
cumulative: It was significant. Consequently, I cannot agree that
the trial court's errors were harmless.January 29, 1996 *ADVREP2A*

RICHARD CLARK,
APPELLANT,

STATE OF ARKANSAS,
APPELLEE.

CR95-408

DISSENTING OPINION.

Robert H. Dudley, Justice.

RICHARD CLARK,
APPELLANT,

STATE OF ARKANSAS,
APPELLEE,

CR 95-408

APPEAL FROM THE PHILLIPS COUNTY
CIRCUIT COURT,
NO. CR 94-96,
HON. HARVEY L. YATES, JUDGE,

DISSENTING OPINION.

Robert L. Brown, Justice.

I join Justice Dudley's dissent on the issue of error in
permitting Donna McKuen to give hearsay testimony of what the ten-
year-old victim told her. The reason I join is that the testimony
of Ms. McKuen went beyond the testimony of the young victim.
Accordingly, it could not be deemed merely cumulative and,
therefore, harmless error. See, e.g., Caldwell v. State, 319 Ark.
243, 891 S.W.2d 42 (1995). Moreover, this is not a case comparable
to Gatlin v. State, 320 Ark. 120, 895 S.W.2d 526 (1995), where we
concluded that the hearsay testimony of two family members was
harmless error because the victim took the stand and was subject to
cross-examination by the defendant. In the instant case, the
Gatlin doctrine would require defense counsel to cross-examine the
victims on matters to which only Ms. McKuen testified. To require
the defendant to cross-examine a 10-year-old victim on Ms. McKuen's
testimony places the defense in an untenable situation. This was
reversible error.
I do not agree with Justice Dudley's dissent, however, that
allowing Ms. McKuen to sit at the counsel table with the young
victim while the victim testified was reversible error. After the
victim testified, the trial was adjourned until the following day.
Nothing in the record suggests that either the victim or Ms. McKuen
was present in the courtroom after the victim's testimony.
Allowing Ms. McKuen to sit with the 10-year-old girl during
her testimony was a matter of discretion for the trial court. I
cannot say that the trial court abused its discretion by allowing
this to occur when the victim was of tender years and obviously
intimidated and frightened by the criminal process.

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