Bryan v. State, CR

• Decision Date: 03 February 1986
• Docket Number: No. CR,CR
• Citation: Bryan v. State, 288 Ark. 125, 702 S.W.2d 785 (Ark. 1986)
• Parties: Desmond BRYAN, Appellant, v. STATE of Arkansas, Appellee. 85-165.
• Court: Arkansas Supreme Court

Page 785

702 S.W.2d 785

288 Ark. 125

Desmond BRYAN, Appellant, v.STATE of Arkansas, Appellee.

No. CR 85-165.

Supreme Court of Arkansas.

Feb. 3, 1986.

Atchley, Russell, Waldrop & Hlavinka by John R. Mercy, Texarkana, for appellant.

Steve Clark, Atty. Gen. by Joel O. Huggins, Asst. Atty. Gen., Little Rock, for appellee.

GEORGE ROSE SMITH, Justice.

The appellant, Desmond Bryan, now aged 67, was charged with rape in that he had engaged in deviate sexual activity with a six-year-old boy.Ark.Stat.Ann. § 41-1803(1)(c)(Repl.1977).The jury found Bryan guilty and imposed a life sentence.Three points for reversal are argued.

The only evidence introduced by Bryan's court-appointed trial counsel was a report of a psychological evaluation of Bryan made in September, 1984, three months after the offense.The examining psychologist stated in his report that Bryan was vague about the various charges of sexual misconduct that had resulted in his being in prison for 11 years.It is argued that the trial court should have excluded that reference to prior offenses, even though defense counsel offered the report and made no such request.Not only was the asserted error invited by the defense, doubtless in the belief that the reference was offset by the rest of the evaluation; it was not the trial judge's responsibility to censor the five-page report before it was admitted, by stipulation.

A second argument questions the sufficiency of the evidence.For several weeks before the day of the offense the child's parents had allowed him to associate with Bryan.On that day the parents were alerted by a stranger to the possibility of misconduct by Bryan.The father ran to Bryan's nearby residence and entered the back door without knocking.Upon a bed by the door the child was lying on his back with his pants down to his knees.The father at first testified that Bryan was performing oral sex on the boy, and when the door opened "he started to raise up and ... as he got his head about this far from what he was doing, he took his hand and wiped his mouth across like this."When the witness was then asked if he could see whether Bryan's mouth was actually in contact with the child's penis, he could only say that the best picture he had in his mind was that Bryan's mouth was about two inches above it and was in the motion of coming up.

That evidence is sufficient to support the conviction for rape by deviate sexual activity, which must under the statute have involved a...