Avery v. State, CA

• Decision Date: 05 June 1985
• Docket Number: No. CA,CA
• Parties: Jerry D. AVERY, Appellant, v. STATE of Arkansas, Appellee. CR 84-196.
• Court: Arkansas Court of Appeals

Page 732

690 S.W.2d 732

15 Ark.App. 134

Jerry D. AVERY, Appellant, v. STATE of Arkansas, Appellee.

No. CA CR 84-196.

Court of Appeals of Arkansas En Banc.

June 5, 1985.

Rehearing Denied July 3, 1985.

John F. Gibson, Jr., Monticello, for appellant.

Steve Clark, Atty. Gen. by Clint Miller, Asst. Atty. Gen., Little Rock, for appellee.

CLONINGER, Judge.

Appellant was sentenced to a term of five years imprisonment on the charge of theft of property, seven years on burglary, to run concurrently, and eighteen years for attempted rape. Appellant raises three points for reversal. We find none of his arguments persuasive, and we affirm the judgment of the trial court.

Testimony at trial revealed that on the night of July 18, 1983, Verita Hairston, on returning to her mobile home, noticed a blue Ford automobile parked directly opposite the end of her trailer. When she went outside shortly afterward to retrieve some articles from her car, she observed that the unfamiliar automobile was still parked near her house. She saw no one and went back inside the mobile home.

As she was putting some towels away in the bathroom Hairston heard a voice at the window. Looking up, she saw someone standing against the bathroom window. She slapped a towel against the window and said, "Get away!" The person at the window responded in a deep male voice with an obscenity. Hairston then turned off the light, shut the bathroom door, and looked out the window to see where he had gone. After about a minute of silence she heard her dog sniffing in the bedroom. She looked through the crack at the base of the bathroom door and saw through the space a man's feet in a pair of socks. One sock had a hole in the toe.

Hairston held the door shut and asked, "What do you want?" The intruder replied, "I just want to make love to you. I just want to make love to you. Just come out here and let me make love to you, and I will not hurt you." Fearing that she would be raped, Hairston quickly opened the bathroom window, escaped, and ran screaming for help to a neighbor's trailer. Once safely inside, she phoned the police, who arrived shortly afterward.

The blue Ford was still parked outside Hairston's trailer when she and the police entered the mobile home to look for the suspect. By the time they walked outside after inspecting the house, the car was gone. As Hairston and the officers stood in front of the trailer discussing the incident, the automobile drove by. The policemen noted the license number and, after reporting it, received information that the vehicle was registered in appellant's name. While the officers were still present, the car drove by a second time. A neighbor appeared and told the police that she had seen someone get out of a ditch and get into the automobile. The officers gave chase and arrested appellant, who had in his possession a gun which had been stolen from the Hairston trailer.

In his first argument, appellant contends that the trial court erred in overruling his motion for a mistrial following testimony by a police officer that appellant stated he had come into Hairston's neighborhood for the purpose of buying "dope." At trial, appellant's attorney objected to the statement on the grounds that the implication of his client in unrelated criminal activity was prejudicial. The court instructed the jury to disregard any testimony concerning any alleged attempt by appellant to obtain drugs. Simultaneously, the court overruled a motion for a mistrial.

The granting of a mistrial is a drastic remedy and should be resorted to only when justice cannot be served by continuing with the trial and when no other method exists by which the prejudice may be removed. King v. State, 9 Ark.App. 295, 658 S.W.2d 434 (1983). The trial judge is vested with considerable discretion in acting on motions for mistrial because of his superior position to determine the possibility of prejudice. Drew v. State, 8 Ark.App. 120, 648 S.W.2d 836 (1983). The judge's exercise of that discretion will not be reversed in the absence of manifest abuse. Id. When an objection is made by counsel and is sustained and followed by an admonition from the presiding judge to the jury, the prejudicial statement is cured. Id. In the present case, where the objection by appellant's attorney to the testimony of the police officer was promptly followed by a judicial admonition, we do not think the prejudice was so great as to call for a mistrial. Brewer v. State, 269 Ark. 185, 599 S.W.2d 141 (1980).

Appellant argues in his second point for reversal that the trial court erred in overruling his motion for a directed verdict. He claims that no substantial evidence was introduced at trial to prove that he attempted to rape Hairston. Only when no fact issue exists is a directed verdict proper. On appeal, we view the evidence in the light most favorable to the appellee, and we affirm the judgment if there is substantial evidence to support the jury's verdict. Wilson v. State, 10 Ark.App. 176, 662 S.W.2d 204 (1983). Substantial evidence is that evidence that is of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other. It must force or induce the mind to pass beyond a suspicion or conjecture. Jones v. State, 11 Ark.App. 129, 668 S.W.2d 30 (1984).

We believe that appellee presented substantial evidence at trial to justify the jury's finding of guilt on the charge of attempted rape. Rape is defined at Ark.Stat.Ann. § 41-1803(1)(a) (Repl.1977) as sexual intercourse or deviate sexual activity with another person by forcible compulsion. Under Ark.Stat.Ann. § 41-701(2) (Repl.1977), in order to prove attempted rape, the State is required to prove that a person "purposely engages in conduct that constitutes a substantial step in a course of conduct intended or known to cause such a result" [i.e., rape]. Appellant's actions and words clearly constituted a substantial step toward accomplishing the rape of Verita Hairston. A man who has stood at a woman's bathroom window uttering obscenities and has entered her house uninvited, saying, "Just come out here and let me make love to you, and I will not hurt you," certainly has engaged in conduct that could lead a jury to determine, with reasonable and material certainty and precision, that he was intent upon sexual intercourse with her by forcible compulsion. The trial court properly denied appellant's motion for a directed verdict.

Appellant urges in his third point for reversal that the trial court erred in refusing to permit him to cross-examine a police officer with respect to any prior statements that Hairston may have made. The record, however, shows that, while he sustained the prosecutor's objection to appellant's attorney's questioning the officer about the victim's earlier statements, the judge added that the lawyer could ask such questions later in the trial for the purpose of impeachment. Appellant's attorney evidently chose not to pursue the subject later, despite his opportunity to do so when the policeman was called on rebuttal and when Hairston herself took the witness stand. Moreover, appellant's counsel neglected to make known to the trial court the substance of the anticipated evidence by proffer under the requirements of Rule 103(a)(2), Uniform Rules of Evidence, Ark.Stat.Ann. § 28-1001 (Repl.1979). Under these circumstances, we find no error on the judge's part.

Affirmed.

MAYFIELD and COOPER, JJ., dissent.

CRACRAFT, C.J., concurs.

CRACRAFT, Chief Judge, concurring.

I concur with the opinion of the majority.

It was argued in conference that sentencing the appellant on both the attempted rape and burglary convictions was reversible error under Ark.Stat.Ann. § 41-105 (Repl.1977). The majority opinion does not address that issue because our examination of the abstract and record discloses that the issue was never raised in the trial court and it was not argued in the briefs. The first suggestion of that issue was made by counsel in his rebuttal statements during oral argument. The majority follows the well established rule that a timely and appropriate objection must be made to preserve an issue on appeal. The court has also made it clear that this rule applies even to constitutional issues and has specifically applied it where a timely objection was not made to the sentences on multiple charges in Robinson v. State, 278 Ark. 516, 648 S.W.2d 444 (1983) and Rowe v. State, 271 Ark. 20, 607 S.W.2d 657 (1980). I would also adhere to the well established rule that we do not consider arguments which are not briefed.

The majority did not address that issue for those reasons. However, as it is discussed in a dissenting opinion I would state my view that the provisions of Ark.Stat.Ann. § 41-105 (Repl.1977) have no application to this case. In certain circumstances that section prohibits multiple sentences where the same conduct results in more than one offense. An accused may be convicted and sentenced for only one offense arising out of the same conduct when one of the offenses is necessarily included in the other. It provides that one offense is included in the other if it must be established by proof of the same or less than all of the same elements required to establish the commission of the offense charged. The purpose of the statute is to allow a conviction of a lesser included offense when the accused is not convicted of the greater charge and to prohibit sentencing for both. Akins v. State 278 Ark. 180, 644 S.W.2d 273 (1983).

In the felony murder cases the court has not permitted a sentence for both the capital murder and the underlying felony for the reason that it is necessary to prove each and every element of the underlying felony in order to obtain the capital felony murder conviction. The underlying felonies are therefore lesser included offenses in these cases. Wilson v. State 277 Ark. 219, 640 S.W.2d 440 (1982).

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