Aaron v. State, CR

• Decision Date: 18 September 1989
• Docket Number: No. CR,CR
• Citation: 775 S.W.2d 894,300 Ark. 13
• Parties: Michael AARON, Appellant, v. STATE of Arkansas, Appellee. 89-58.
• Court: Arkansas Supreme Court

Page 894

775 S.W.2d 894

300 Ark. 13

Michael AARON, Appellant, v. STATE of Arkansas, Appellee.

No. CR 89-58.

Supreme Court of Arkansas.

Sept. 18, 1989.

Priscilla Karen Pope, Fayetteville, for appellant.

David Eberhard, Asst. Atty. Gen., Little Rock, for appellee.

NEWBERN, Justice.

This appeal is from a rape conviction. The appellant, Michael Aaron, was sentenced to life imprisonment. His contentions on appeal are that the evidence was insufficient to support the conviction and that the court erred in refusing to suppress testimony about a document found in Aaron's possession when he was arrested. We affirm because no argument was made in the trial court on the sufficiency of the evidence and because the defense offered the very evidence with respect to which it had earlier sought to suppress testimony.

The victim testified she met Aaron at the Countryland Club at Springdale on the night of May 6, 1988. He told her his name was Mike and that he had been living in California and Illinois but was now living in Arkansas. He asked her to dance and for a ride home. She refused. When she left the club at approximately 1:30 a.m., May 7, 1988, Aaron confronted her at her car, forced her into the car, and raped her in the car following a struggle. She testified that he knocked four of her teeth loose by hitting her in the mouth with his fist. She hurt her shoulder in the struggle, and at one point she was unable to breathe because of blood from her mouth choking her.

The victim worked with the police to make a composite drawing of her attacker. She said she had gotten a good look at him while they were in the club. She noted that he had a tooth missing in the front of his mouth and gave a description which fit Aaron in other details fairly closely as well. She positively identified Aaron at the trial as having been the person who attacked and raped her.

Aaron's defense at the trial included an alibi witness as well as testimony suggesting that someone who saw the victim shortly after the incident allegedly happened did not notice that she looked beaten up. He also attempted to show that one of the police officers who investigated the allegations thought it had been reported at first as something other than a rape and that the victim had not identified Aaron at the first lineup she viewed, although she had identified him at a second lineup.

1. Sufficiency of the evidence

The sufficiency of the evidence was not questioned at the trial. No objection was made on that basis, and there was no motion for a directed verdict. We do not consider arguments made for the first time on appeal. In Hughes v. State, 295 Ark. 121, 746 S.W.2d 557 (1988), we held the failure to raise the issue of insufficiency of the evidence at trial was fatal to an attempt to raise it on appeal. Citing Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980), we pointed out that the only instances in which we will consider possible error not brought to the attention of the trial court, in addition to death penalty cases, are:

(1) where error is made by the trial judge without knowledge of the defense counsel, (2) where the trial court should intervene on its own motion to correct a serious error, and (3) where evidential errors affect a defendant's substantial rights although they were not brought to the court's attention.

None of the exceptions applies here.

2. Suppression of evidence

The state presented the testimony of Officer Clark who arrested Aaron without a warrant while he was investigating the rape allegation. Clark testified he arrested Aaron not for having committed the rape but for having failed to return...