Richard Leon Strong v. State of Arkansas
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SUPREME COURT OF ARKANSAS
No. CR06-1346
RICHARD LEON STRONG,
APPELLANT,
Opinion Delivered February
21, 2008
APPEAL FROM THE GREENE
COUNTY CIRCUIT COURT,
NO. CR-2006-71,
HON. CINDY THYER, JUDGE,
VS.
STATE OF ARKANSAS,
APPELLEE,
AFFIRMED; MOTION
WITHDRAW GRANTED.
TO
ANNABELLE CLINTON IMBER, Associate Justice
Appellant Richard Leon Strong was convicted by a Greene County jury of two counts
of rape and was sentenced to serve two consecutive life sentences. His attorney has filed a
motion to withdraw as counsel and a no-merit brief, in accordance with Anders v. California,
386 U.S. 738 (1967), and Ark. Sup. Ct. R. 4-3(j)(1) (2007). Strong has submitted pro se points
for reversal, pursuant to Ark. Sup. Ct. R. 4-3(j)(2), and the State has responded, pursuant to
Ark. Sup. Ct. R. 4-3(j)(3). Our jurisdiction is in accordance with Ark. Sup. Ct. R. 1-2(a)(2)
(2007), because Strong received sentences of life imprisonment. We find no error in the
court’s rulings below; therefore, we grant Strong’s counsel’s motion to withdraw and affirm
the convictions.
K.M., the alleged victim, was fifteen years old at the time of the charged rapes. She
grew up in the home of Strong and his wife, Thelma “Rose” Strong, after her biological
mother left her in their care. K.M. lived with the Strong family from the time she was an
infant, and, although she was never formally adopted, she considered the Strongs to be her
parents. At the time of the charged rapes, Richard and Rose Strong had recently and
temporarily separated; as a result, K.M. and Rose were staying in the apartment of Bertie
Theodoropoulos, Richard’s mother.
On January 16, 2006, K.M. went to the Paragould Police Department to report that
she had been raped by Strong. She was accompanied by the Strongs’ three biological
daughters, as well as Bertie. K.M. reported two recent incidents of abuse, which formed the
basis of the charges, but testified at trial that the abuse was ongoing and began when she was
approximately six or seven years old. The first of the recent incidents was alleged to have
occurred on January 10, 2006, in a room at the Sunset Motel in Paragould. According to
K.M.’s trial testimony, Strong telephoned Bertie’s apartment that day to ask if he could take
K.M. out to dinner and to a movie. K.M. agreed to eat with him, and, instead of seeing a
movie, the two then shopped briefly at Wal-Mart. Strong then drove to the motel to pick
up the key to the room, which he claimed to have rented in an effort to reunite with Rose.
Strong urged K.M. to spend the night with him at the motel, but she refused. From the
motel, Strong drove to a liquor store, where he purchased some alcohol and also bought a Dr.
Pepper for K.M. The two then returned to the motel and entered the room he had rented.
Each used the restroom separately. When K.M. exited the restroom, Strong had poured the
soda into a glass for her and told her to drink it. K.M. noticed that the soda tasted odd and
observed a white, chunky substance in the bottom of the glass. Strong then forced K.M. to
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have sexual intercourse with him. Afterward, he drove her back to Bertie’s apartment.
Nic Khan, the owner and manager of the Sunset Motel, testified that Strong rented
a room at approximately 10:00 or 11:00 on the night in question. A registration form
showing the rental was admitted into evidence. Rose, who testified for the defense, stated
that she left with Strong after he returned K.M. to Bertie’s apartment that evening. She
testified that they drove to McDonald’s to buy a milkshake for K.M., took the milkshake to
the apartment, went to a liquor store, and finally went to the same room at the Sunset Motel.
Rose stated that the two of them stayed at the motel and talked until early the next morning
about their marital problems, in an attempt to reconcile. According to Rose’s testimony, she
and Strong had sex in the motel room.
The second of the recent incidents was alleged to have occurred at Bertie’s apartment
on the night of January 13, 2006. By this date, Strong was also residing in Bertie’s apartment
with Rose and K.M. At approximately 7:00, Bertie and Rose, along with the Strongs’
daughter Crystal and her boyfriend, left the apartment to spend the evening at a local bar.
K.M. was left alone in the apartment with Strong and Crystal’s infant daughter. Two of
K.M.’s friends visited but only stayed at the apartment for approximately fifteen to twenty
minutes. Sometime between 10:00 and 10:30, Crystal and her boyfriend arrived at the
apartment to pick up the baby and then left. Shortly thereafter, Strong instructed K.M. to
lock the front door and come into the bedroom. Strong forced K.M. to have sexual
intercourse with him in Bertie’s bed. He then cleaned himself and the area with a sock.
According to Bertie’s trial testimony, she and Rose returned to the apartment at
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approximately 10:30. At that time, K.M. and Strong were alone in the apartment.
K.M. gave the underwear that she wore on the evening of January 13 to the
investigating officer, Detective Rhonda Thomas. In addition, Bertie gave Detective Thomas
the unwashed fitted sheet from her bed and the sock that Strong had allegedly used to clean
himself. Melissa Myhand, forensic DNA analyst at the Arkansas State Crime Laboratory,
testified that, within all scientific certainty, the semen found on both the underwear and the
sock originated from Strong. Epithelial cells found on the sock originated from K.M.
Myhand testified that epithelial cells include skin cells, vaginal fluid, and cells obtained by oral
swabs. No semen was found on the bedsheet.
K.M. was interviewed and examined on January 19, 2006, by Kathy Young, a nurse
practitioner with considerable expertise in the area of sexual abuse of children. Young
testified that her findings were consistent with K.M.’s allegations of sexual abuse. Specifically,
Young noted a high level of estrogen effect, which suggests a long history of sexual abuse.
She also observed an old injury to the hymen that was consistent with penetration at an early
age.
Strong was formally charged in an information filed on February 23, 2006. An
additional charge of incest was included but was dismissed before trial. Following the entry
of judgment on August 17, 2006, Strong filed a timely pro se notice of appeal.
We first turn to the arguments made by Strong’s counsel in the no-merit brief.
Counsel points to six rulings below that were adverse to Strong and explains why none
provide a meritorious ground for reversal of the convictions.
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I. Denial of Strong’s Directed-Verdict Motions
Counsel asserts that Strong’s directed-verdict motions were properly denied. This
ruling is also discussed in Strong’s pro se points for reversal and in the State’s response. Thus,
we will consider those arguments at this time as well. Although this ruling was not the first
addressed by counsel or by Strong, double jeopardy considerations require this court to review
a directed-verdict argument before other points are addressed. See Ramaker v. State, 345 Ark.
225, 46 S.W.3d 519 (2001).
We treat a motion for directed verdict as a challenge to the sufficiency of the evidence.
Cluck v. State, 365 Ark. 166, 226 S.W.3d 780 (2006). This court has repeatedly held that in
reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most
favorable to the State and consider only the evidence that supports the verdict. Id. We affirm
a conviction if substantial evidence exists to support it. Id. Substantial evidence is that which
is of sufficient force and character that it will, with reasonable certainty, compel a conclusion
one way or the other, without resorting to speculation or conjecture. Id.
Furthermore, circumstantial evidence may provide a basis to support a conviction, but
it must be consistent with the defendant’s guilt and inconsistent with any other reasonable
conclusion. Id. Whether the evidence excludes every other hypothesis is left to the jury to
decide. Id. The credibility of witnesses is an issue for the jury and not the court. Id. The
trier of fact is free to believe all or part of any witness’s testimony and may resolve questions
of conflicting testimony and inconsistent evidence. Id.
We conclude that substantial evidence supports Strong’s convictions. He was charged
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with two counts of rape under Ark. Code Ann. § 5-14-103(a)(4)(A)(i) (Repl. 2006 & Supp.
2007): A person commits rape if he or she engages in sexual intercourse or deviate sexual
activity with another person who is less than eighteen years of age and the actor is the victim’s
guardian. Thus, a conviction would require proof that K.M. was less than eighteen years of
age, that Strong was her guardian, and that Strong engaged in sexual intercourse or deviate
sexual activity with her.
We have held in rape cases that a victim’s uncorroborated testimony is sufficient to
support a conviction if the statutory elements of the offense are satisfied. Pinder v. State, 357
Ark. 275, 166 S.W.3d 49 (2004). Even when an appellant denies all of the allegations or
contradicts the victim’s testimony, the jury is free to disbelieve the appellant’s self-serving
testimony and believe the victim’s testimony instead. Id. K.M.’s testimony that she was
fifteen years of age at the time of the two charged rapes, that she grew up in Strong’s home
and considered him her father, and that Strong engaged in sexual intercourse with her is
sufficient to support the rape convictions.
Moreover, K.M.’s testimony was corroborated by other reliable evidence. The
forensic DNA analyst’s testimony that the semen found on the sock and the underwear
matched the DNA sample provided by Strong, along with the nurse practitioner’s testimony
that K.M.’s injuries were consistent with sexual abuse, provide proof beyond K.M.’s
testimony. Additionally, other witnesses, such as Bertie Theodoropoulos and Nic Khan,
testified as to Strong’s opportunities to engage in sexual intercourse with K.M. Clearly, the
evidence supporting Strong’s convictions is substantial.
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The directed-verdict motions made at trial were premised on the argument that the
State failed to prove forcible compulsion. However, proof of forcible compulsion is not
required when the victim is less than eighteen years of age and the actor is the victim’s
guardian. Ark. Code Ann. § 5-14-103(a)(4)(A)(i). Therefore, that motion was properly
denied. In his pro se points for reversal, Strong argues that the evidence was generally
insufficient. He points out that he offered an explanation as to why his semen was found on
the sock and the underwear.1 However, as we have stated, the jury was free to disregard
Strong’s testimony. Pinder v. State, supra. Strong also notes that the State did not provide
medical reports showing K.M.’s injuries, but it is clear that such proof was not required in this
situation. K.M.’s uncorroborated testimony would have been sufficient, and the testimony
of the nurse practitioner as to K.M.’s injuries further supports the jury’s determination. Id.
Thus, we conclude that the circuit court did not err in denying Strong’s motions for a
directed verdict. An appeal of these rulings would be wholly without merit.
II. Denial of Strong’s Motion in Limine to Exclude Reference to Prior Conviction
Strong filed a motion in limine to exclude any testimony regarding his criminal record.
The circuit court denied this motion, noting that the only prior conviction at issue was a
felony-theft conviction within the ten-year time limitation. The court ruled that, pursuant
1
According to Strong, on the evening of January 13, K.M. entered Bertie’s bedroom to
find him masturbating. He testified that he quickly retrieved the sock from a nearby dirty-clothes
basket to cover and clean himself. He also testified that he must have picked up the underwear as
well, although, at the time, he was not necessarily aware of what articles of clothing he used.
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to Ark. R. Evid. 609 (2007), Strong’s testifying would put his credibility at issue and would
thus permit the introduction of such a conviction. In light of our abuse-of-discretion standard
for review of evidentiary rulings, we conclude that the circuit court did not err.
Rule 609 provides, in pertinent part:
For the purpose of attacking the credibility of a witness, evidence that he has
been convicted of a crime shall be admitted but only if the crime (1) was
punishable by death or imprisonment in excess of one [1] year under the law
under which he was convicted, and the court determines that the probative
value of admitting this evidence outweighs its prejudicial effect to a party or a
witness, or (2) involved dishonesty or false statement, regardless of the
punishment.
Ark. R. Evid. 609(a). The rule also states that evidence of a conviction is inadmissible if more
than ten years have elapsed “since the date of the conviction or of the release of the witness
from the confinement imposed for that conviction, whichever is the later date.” Ark. R.
Evid. 609(b). We have upheld the use of this rule for purposes of impeachment of defendants
who testify and have stated that a defendant who takes the witness stand in his or her own
behalf places his or her credibility in issue. Thomas v. State, 315 Ark. 518, 868 S.W.2d 85
(1994).
The evidence admitted here was a judgment and commitment order, dated May 19,
1999, showing that Strong was convicted of one count of felony theft of property and
sentenced to thirty-six months’ imprisonment. It was obviously introduced to attack Strong’s
credibility as a witness, as it was introduced at a time when counsel for the State was
questioning Strong about whether he had told the truth on direct examination. In addition,
Strong’s defense was a general denial, which made his credibility a central issue. The
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conviction clearly falls within the ten-year time limitation imposed by Ark. R. Evid. 609(b);
while the date of Strong’s release from confinement for the conviction is unknown, it
obviously would have been sometime between 1999 and 2006, the date of the jury trial in the
case at bar.
Furthermore, felony theft of property was punishable by imprisonment in excess of one
year under the law under which Strong was convicted. Finally, we conclude that the circuit
court did not err in finding that the probative value of admitting this conviction outweighed
any prejudicial effect. We have stated that the circuit court has considerable discretion in
determining whether the probative value of a prior conviction outweighs its prejudicial effect,
and that decision will not be reversed absent abuse. Thomas v. State, supra. We have also
recognized that admissibility under Ark. R. Evid. 609 must be decided on a case-by-case basis.
Id. Factors to be considered in the determination include: (1) the impeachment value of the
prior crime; (2) the date of the conviction and the witness’s subsequent history; (3) the
similarity between the prior conviction and the crime charged; (4) the importance of the
defendant’s testimony; and (5) the centrality of the credibility issue. Id. (citing Sims v. State,
27 Ark. App. 46, 766 S.W.2d 20 (1989)). Here, the prior conviction was relatively recent,
the prior crime and the crime charged were dissimilar, and the issue of Strong’s credibility was
central, as previously noted. See Sims v. State, supra. Therefore, we conclude that the circuit
court did not abuse its discretion in admitting this conviction for purposes of impeachment,
and an appeal of this ruling would be meritless.
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III. Denial of Strong’s Motion In Limine to Exclude Reference to Sexual Acts Perpetrated Against
Others
Strong filed a motion in limine to exclude any testimony about sexual acts or statements
done or made by him other than the incidents charged. Specifically, this included “statements
by people, [other] than the alleged victim in this case, that Richard Strong has touched them
in a sexual manner, attempted to do so, or made statements to them of a sexual nature.” The
circuit court granted the motion with respect to statements made by Strong but denied the
motion with respect to acts perpetrated by Strong, pursuant to Ark. R. Evid. 404(b) (2007)
and the “pedophile exception” articulated and recognized by this court. Shavonia Strong, one
of Strong’s biological daughters, testified that, on two occasions when she was approximately
eight or nine years old, her father attempted inappropriate sexual behavior with her. The
admission or rejection of evidence under Ark. R. Evid. 404(b) is left to the sound discretion
of the trial court and will not be disturbed absent a manifest abuse of discretion. Flanery v.
State, 362 Ark. 311, 208 S.W.3d 187 (2005).
According to Ark. R. Evid. 404(b), “[e]vidence 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.” Such evidence is permissible for various other purposes, “such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident.” Ark. R. Evid. 404(b). This court has recognized a “pedophile exception” to this
rule, whereby we have approved allowing evidence of similar acts with the same or other
children when it is helpful in showing a proclivity for a specific act with a person or class of
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persons with whom the defendant has an intimate relationship. Flanery v. State, supra. The
rationale for recognizing this exception is that such evidence helps to prove the depraved
sexual instinct of the accused. Id. For the pedophile exception to apply, we require that there
be a sufficient degree of similarity between the evidence to be introduced and the sexual
conduct of the defendant. White v. State, 367 Ark. 595, ___ S.W.3d ___ (2006). We also
require that there be an “intimate relationship” between the perpetrator and the victim of the
prior act. Id.
Shavonia Strong’s testimony falls squarely under the pedophile exception to Rule
404(b). The relationship between her and her father was clearly an intimate one. See id. The
conduct about which she testified was sufficiently similar to the charged conduct to warrant
application of the exception. Shavonia testified that her father tried to “rub against” her with
his penis and that he did this while on top of her on a bed in his room. While this conduct
is not identical to that alleged by K.M., we also note that both Shavonia and K.M. were under
Strong’s care at the time of the abuse. K.M. viewed Strong as her father. Furthermore, both
girls were between the ages of six and nine at the time of the start of the abuse. In Flanery v.
State, supra, we upheld the use of the pedophile exception despite the fact that the prior
conduct was not identical to the charged conduct. We pointed out that the victim and the
witness were similar in age when the abuse happened and that both were living in the
appellant’s home and viewed him as a father figure. Id. In light of such precedent, we cannot
say that the degree of similarity between the prior conduct and the charged conduct was
insufficient.
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Clearly, this evidence was helpful in showing a proclivity toward a specific act with a
person or class of persons with whom Strong had an intimate relationship. See id. Shavonia’s
testimony helped to prove Strong’s depraved sexual instinct. See id. Therefore, the circuit
court did not abuse its discretion in denying Strong’s motion and permitting this testimony,
and an appeal of this ruling would be without merit. Likewise, Ark. R. Evid. 403 (2007)
provides no ground for reversal. The circuit court did not abuse its discretion in concluding
that the probative value of Shavonia’s testimony outweighed the danger of unfair prejudice,
because the evidence involved a similar crime against a child of an age similar to that of K.M.,
and both were in Strong’s care at the time of the abuse. See Hernandez v. State, 331 Ark. 301,
962 S.W.2d 756 (1998).
IV. Denial of Strong’s Motion in Limine to Exclude Certain Testimony by Medical Personnel
Strong moved to prohibit testimony by social workers, law enforcement officers, and
medical personnel regarding acts that constitute sexual or child abuse and physical traits that
indicate sexual or child abuse. The circuit court granted the motion with respect to social
workers and law enforcement officers. However, the court permitted testimony from medical
personnel (specifically, nurse practitioner Kathy Young) regarding injuries that are consistent
with force or are otherwise consistent with sexual abuse and observations supporting the
allegations of sexual abuse.
In Jennings v. State, 289 Ark. 39, 709 S.W.2d 69 (1986), the appellant, convicted of the
rape of his stepdaughter, argued that the circuit court erred in permitting the testimony of the
examining doctor. The doctor’s testimony included observations of an old, well-healed scar
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around the hymen, distension of the vaginal opening, and a small amount of white discharge,
all of which were consistent with penetration by an adult penis on more than one occasion.
Id. We upheld the circuit court’s ruling, noting that the doctor’s opinion was not the ultimate
issue to be decided, that being the appellant’s guilt. Id. We also cited Ark. R. Evid. 704
(2007), which provides that testimony in the form of an opinion or inference otherwise
admissible is not objectionable because it embraces an ultimate issue to be decided by the trier
of fact. Id.
The nurse practitioner’s testimony in the instant case very nearly mirrors the medical
testimony allowed in Jennings. Kathy Young testified that she observed an old injury to
K.M.’s hymen, which would have been consistent with penetration at an early age. She also
testified to the high level of estrogen effect, which was indicative of a long history of abuse.
Pursuant to Rule 704, Young’s testimony was not objectionable merely because it embraced
the ultimate issue to be decided by the jury, that being Strong’s guilt. Therefore, the circuit
court did not abuse its discretion in permitting this testimony, and the ruling is not a
meritorious ground for reversal.
V. Denial of Strong’s Objection to Certain Testimony by the Nurse Practitioner
During the nurse practitioner’s testimony regarding her interview of K.M., she noted
that K.M. had reported only the most recent occurrences of abuse. Nurse Young explained
that child victims of sexual abuse often report only the most recent in a series of incidents, due
to having blocked out the memories of earlier occurrences as a way of coping. Strong
objected to this testimony on the basis that it was beyond Young’s area of expertise, but the
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circuit court allowed the testimony to proceed.
Arkansas Rule of Evidence 702 (2007) provides that a witness qualified as an expert by
knowledge, skill, experience, training, or education may testify in the form of an opinion or
otherwise if scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue. Young was qualified as an expert by
virtue of her extensive education, training, and practice as a nurse practitioner specializing in
sexual abuse of children. She testified that she had earned bachelor’s, master’s, post-master’s,
and doctoral degrees in nursing, that she was a college professor in the field of nursing and also
taught sexual assault nurse examiner courses, and that she had performed over two-thousand
sexual-abuse examinations on children.
Young testified that she had also received a
considerable amount of training in the area of interviewing child victims of sexual abuse. The
specialized knowledge on which Young based her opinion would have been of assistance to
the jury in their understanding of her testimony. Considering Young’s extensive education
and training, we cannot say that this particular testimony was beyond her expertise.
Therefore, the circuit court did not abuse its discretion in overruling Strong’s objection to
Young’s testimony about coping mechanisms exhibited by child victims of sexual abuse. This
ruling does not provide a meritorious ground for reversal.
VI. Denial of Strong’s Objection to Admission of Evidence of Attempted Drug Overdoses
Strong’s counsel objected on the basis of relevance when counsel for the State inquired
as to how many times Strong had attempted to overdose on drugs since the time he was made
aware of K.M.’s allegations against him. The circuit court allowed the questioning as tending
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to show knowledge of guilt. A ruling on the relevancy of evidence is discretionary and will
not be reversed unless the trial court abused its discretion. Clay v. State, 318 Ark. 122, 883
S.W.2d 822 (1994).
It is well settled that the acts, conduct, and declarations of an accused before or after
the crime may furnish necessary corroboration. MacKool v. State, 365 Ark. 416, 231 S.W.3d
676 (2006). We have held that flight following the commission of an offense is a factor that
may be considered with other evidence in determining probable guilt and may be considered
as corroboration of evidence tending to establish guilt. Chapman v. State, 343 Ark. 643, 38
S.W.3d 305 (2001). We have also held that evidence of an accused’s refusal to submit to a
chemical test can be properly admitted as circumstantial evidence showing a knowledge or
consciousness of guilt. Medlock v. State, 332 Ark. 106, 964 S.W.2d 196 (1998). Finally, we
have held that an escape from incarceration is similarly admissible as circumstantial evidence
of guilt. Clay v. State, supra.
This court, however, has never directly addressed the question of whether evidence
of suicide attempts is admissible to show guilt or consciousness of guilt. In MacKool v. State,
supra, the appellant argued that evidence that he had cut his wrists after giving a statement
could not be considered as corroborative of his guilt, because there was another reasonable
explanation as to why he cut his wrists. Yet, the appellant did not argue that the evidence was
inadmissible. Id. This court held that, once it was admitted, the evidence and the significance
to be attached to it were matters exclusively within the province of the jury. Id. We noted
in the MacKool case that many jurisdictions have held that evidence of an accused’s attempted
15
suicide is admissible as probative of consciousness of guilt. Id. Examples include California
and Delaware, which both adhere to a broad rule allowing for the admissibility of evidence
of any conduct of a defendant subsequent to the commission of the crime and tending to
show consciousness of guilt. People v. Butler, 12 Cal. App. 3d 189, 90 Cal. Rptr. 497 (1970);
McKinney v. State, 466 A.2d 356 (Del. 1983). In People v. Butler, supra, the California court
noted that there is no requirement for the admissibility of evidence of a suicide attempt that
consciousness of guilt be the only logical explanation. Florida courts have upheld jury
instructions stating that a defendant’s attempted suicide may be considered as an indication of
a desire to evade prosecution and as an inference of guilt. Walker v. State, 483 So. 2d 791 (Fla.
Dist. Ct. App. 1986). See also Aldridge v. State, 229 Ga. App. 544, 494 S.E.2d 368 (1997); State
v. Hargraves, 62 Idaho 8, 107 P.2d 854 (1940); People v. Campbell, 126 Ill. App. 3d 1028, 467
N.E.2d 1112 (1984); State v. Mitchell, 450 N.W.2d 828 (Iowa 1990); Commonwealth v. Sheriff,
425 Mass. 186, 680 N.E.2d 75 (1997); State v. Painter, 329 Mo. 314, 44 S.W.2d 79 (1931);
State v. Campbell, 146 Mont. 251, 405 P.2d 978 (1965); State v. Plunkett, 62 Nev. 258, 149
P.2d 101 (1944); State v. Brown, 128 N.H. 606, 517 A.2d 831 (1986); State v. Mann, 132 N.J.
410, 625 A.2d 1102 (1993); State v. Blancett, 24 N.M. 433, 174 P. 207 (1918); State v. Hunt,
305 N.C. 238, 287 S.E.2d 818 (1982); Commonwealth v. Giacobbe, 341 Pa. 187, 19 A.2d 71
(1941); State v. White, 649 S.W.2d 598 (Tenn. Crim. App. 1982); State v. Onorato, 171 Vt.
577, 762 A.2d 858 (2000).
Although we have not yet adopted a similar rule, we cannot say that the circuit court
erred in permitting testimony regarding Strong’s overdose attempts. In light of the case law
16
from other jurisdictions, as well as our holdings regarding flight, refusal to submit to testing,
and escape from incarceration, we cannot say that the circuit court abused its discretion.
We now turn to the seventeen pro se points for reversal articulated by Strong. They
are as follows:
1. The circuit court erred in allowing counsel for the State, during closing arguments
of the sentencing phase, to discuss the low cure rates of sex offenders.
2. Life sentences may not be ordered to run consecutively.
3. The “Arkansas child hearsay exception regarding sexual offenses, abuse, or incest”
is unconstitutional.
4. The circuit court erred in prohibiting certain evidence pursuant to the rape-shield
statute.
5. Strong’s attorney failed to give prior notice of defense witnesses.
6. The circuit court should have suppressed Strong’s statement made to police.
7. “Evidentiary questions” (a list of case citations only)
8. The representation provided to Strong by his attorney was ineffective.
9. Strong was denied his constitutional right to counsel because the jury was not
instructed that he could not be found guilty unless all elements of the charged offense
were proven beyond a reasonable doubt.
10. The circuit court should have taken judicial notice of the textbooks authored by
Kathy Young.
11. Luminol testing should have been performed to prove that the blood found on
17
the bedsheet originated from one of Bertie’s pets.
12. Strong’s attorney failed to preserve issues for appeal.
13. “Impeachment of witnesses” (citation only)
14. The circuit court erred in allowing counsel for the State, during closing arguments
of the sentencing phase, to discuss consecutive sentences.
15. Strong’s statement should have been suppressed because he was medicated at the
time it was given.
16. The fact that Rose Strong was contradicted by other evidence did not constitute
an attack upon her character for truthfulness.
17. “Orders of prior commitments” (citations only)
It is well settled that an appellant must raise and make an argument at trial in order to
preserve it for appeal. Raymond v. State, 354 Ark. 157, 118 S.W.3d 567 (2003). This is true
even when the issue raised is constitutional in nature. Id. If a particular theory was not
presented at trial, the theory will not be reached on appeal. Id. Moreover, an appellant must
obtain a ruling on his or her argument to preserve the matter for this court’s review. Id. The
burden of providing a record sufficient to demonstrate error is upon the appellant. Id.
None of Strong’s seventeen points is properly preserved for our review. His counsel
objected to the State’s playing the tape of his statement, but that objection was on the basis
of improper procedure, as the State had not attempted to introduce the statement during its
case in chief and instead sought to introduce it through a rebuttal witness. Also, after the State
played the tape for impeachment purposes, Strong’s counsel moved that it be admitted into
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evidence. Therefore, Strong’s arguments on this point, as well as all other arguments, are not
preserved. Furthermore, most of Strong’s arguments are unsupported by explanation and
citation to authority. We will not consider an argument, even a constitutional one, when the
appellant presents no citation to authority or convincing argument in its support and it is not
apparent without further research that the argument is well taken. Weatherford v. State, 352
Ark. 324, 101 S.W.3d 227 (2003). For these reasons, we must decline to address Strong’s pro
se arguments in support of the reversal of his convictions.
Rule 4-3(h) Review
Finally, in compliance with Ark. Sup. Ct. R. 4-3(h) (2007), the record has been
examined for all objections, motions, and requests made by either party that were decided
adversely to Strong, and no prejudicial error has been found. See Doss v. State, 351 Ark. 667,
97 S.W.3d 413 (2003). We note that several rulings adverse to Strong were not addressed by
Strong’s counsel in his no-merit brief: the grant of the State’s motion to permit the taking of
hair and buccal swab samples, the grant of the State’s motion in limine to exclude portions of
Rose’s testimony, the sustaining of the State’s several objections on the grounds of hearsay,
relevance, and speculation, and the overruling of Strong’s objection to the State’s use of his
taped statement to impeach his testimony. Nonetheless, these rulings do not provide a
meritorious ground for reversal.
Affirmed; motion to withdraw granted.
19
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