Byrum v. State
| Decision Date | 26 September 1994 |
| Docket Number | No. CR,CR |
| Citation | 318 Ark. 87,884 S.W.2d 248 |
| Parties | Kenneth BYRUM, Appellant, v. STATE of Arkansas, Appellee. 94-18. |
| Court | Arkansas Supreme Court |
Sandy Moll, Asst. Atty. Gen., Little Rock, for appellee.
Appellant, Kenneth Byrum, was found guilty by a jury of one count of rape. Appellant was sentenced as an habitual offender with five prior felony offenses to serve a term of imprisonment for life at the Arkansas Department of Correction. Appellant appeals and asserts six points of error. We find no merit and affirm.
The fourth of the six arguments raised by appellant is the trial court erred in denying his motions for directed verdict. We treat a challenge to the denial of a motion for directed verdict as a challenge to the sufficiency of the evidence. Mitchell v. State, 314 Ark. 343, 862 S.W.2d 254 (1993). Preservation of appellant's right to freedom from double jeopardy requires a review of the sufficiency of the evidence prior to a review of trial errors. Davis v. State, 314 Ark. 257, 863 S.W.2d 259 (1993), cert. denied, 511 U.S. 1026, 114 S.Ct. 1417, 128 L.Ed.2d 88 (1994); Lukach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992). Consequently, we consider appellant's challenge to the sufficiency of the evidence prior to considering his other assignments of trial error.
The test we apply on appeal to determine sufficiency of the evidence is whether there is substantial evidence to support the verdict, viewing the evidence in the light most favorable to the appellee. Mitchell, 314 Ark. 343, 862 S.W.2d 254; Gillie v. State, 305 Ark. 296, 808 S.W.2d 320 (1991). Substantial evidence must be forceful enough to compel a conclusion one way or the other beyond suspicion and conjecture.
As required, we recite the evidence in the light most favorable to appellee. The twelve-year-old victim testified that, at the time of the rape, she lived with her mother, her mother's friend, Victoria Smith, Ms. Smith's two teenaged sons, Dwayne and Chad, and Ms. Smith's boyfriend, Gary Martin, in Martin's house located outside DeQueen, Arkansas. The victim testified she slept on a mattress in the living room of Martin's house. The victim testified the thirty-eight-year-old appellant lived "in a little trailer The victim testified that, on the evening of the rape, she and appellant, together with four of the victim's friends, whose ages ranged from eleven to fifteen years, drove around DeQueen and neighboring areas in Martin's Ford king cab truck. The victim testified appellant (the driver) was also drinking beer and driving recklessly. The victim testified the entire group drove to the Martin house around 7:00 or 8:00 p.m. and she then asked her mother for permission to ride with appellant to take the other passengers home. The testimony of the other passengers was they were home no later than 9:00 to 9:30 p.m., leaving only the victim and appellant in the Ford truck.
thing in the front yard [of Martin's house]," and she considered appellant to be a friend of hers and of the other residents of the Martin house.
The victim testified that, after the other passengers had been dropped off, she began to drive and at appellant's direction she drove down a dirt road to a place where appellant and some of his friends used to go, pulled off the road, turned off the truck and put it in park. The victim testified appellant then put his hand between her legs and told her "all he wanted to do was eat me." The victim testified she told appellant to leave her alone and appellant replied if the victim did not go along with him, he would kill her. The victim testified appellant pulled her over to his lap, kissed her, undressed her and himself, and then performed oral sex on her. The victim testified appellant then placed her in the back seat of the king cab where she lay on her back, appellant got on top of her, "stuck his penis inside of me," sucked her breasts and, finally, forced her to simultaneously perform oral sex on him while he performed oral sex on her.
The victim testified appellant told her to say they had a flat tire to account for arriving home so late. The victim testified she relayed the flat tire story to her mother upon returning to the Martin house at approximately 10:30 p.m., told Chad Smith what "[appellant] did to me", took a bath and was asleep on the mattress in the living room about 11:00 p.m. Chad Smith testified the victim told him "Kenny raped me" after she returned home that evening.
The victim testified she went to school the following morning and reported the rape to her teacher, then to her school counselor, and then to a representative of the State's Department of Human Services, Child Welfare Division. The testimony of the teacher and school counselor confirmed the victim told them about her rape the evening before.
Dr. Susan Couture, a board-certified physician in the fields of internal medicine and pediatrics, was admitted as an expert witness regarding medical matters. She testified she examined the victim on the day after the rape. She testified her examination revealed a bruise in the lower part of the victim's back as well as a superficial scratch, a small bruise on her inner thigh, and two tears in the victim's hymen. She testified her examination was consistent with penetration of the victim "most likely within 24 to 48 hours" and the results of her examination were consistent with the victim's statement to her that the victim had been raped the night before.
We have repeatedly held the uncorroborated testimony of the rape victim is sufficient to uphold the defendant's conviction for rape. See, e.g., Lukach, 310 Ark. 119, 835 S.W.2d 852. In this case, the victim testified appellant committed the rape. Although corroboration was not required, the testimony of Dr. Couture and Chad Smith, in fact, corroborated the victim's testimony.
On appeal, appellant raises arguments based on the credibility of the witnesses, including conflicting testimony. We have held many times the determination of these issues is left to the trier of fact. Lukach, 310 Ark. 119, 835 S.W.2d 852; Mann v. State, 291 Ark. 4, 722 S.W.2d 266 (1987). The jury judged the credibility of the victim's testimony and returned a guilty verdict. The evidence is substantial and therefore sufficient to support the verdict.
On direct examination, Chad Smith was allowed to testify the victim told him "Kenny A summary of the events at trial pertinent to the introduction of the challenged statement is useful in our review. Chad Smith was called as the State's second witness, his testimony having been preceded by opening statements of counsel and the testimony of the State's first witness, Officer Ray Gentry, Sevier County deputy sheriff, regarding his investigation of the rape.
raped me." Appellant argues this statement was inadmissible hearsay not within the excited utterance exception in A.R.E. Rule 803(2). We conclude appellant did not preserve his argument by timely objection at trial, and we are precluded from reviewing this issue on appeal. A.R.E. Rule 103(a)
The State then called Chad Smith, whereupon counsel for appellant requested a bench conference. A conference followed immediately between counsel for the State, counsel for appellant, and the trial judge. At the bench, counsel for appellant informed the trial court that appellant was unaware the State intended to call Chad Smith since he was listed as a defense witness, but had no objection to the State calling this witness except that if the State asked the witness about statements made by the victim, appellant objected on hearsay grounds. The following colloquy ensued:
THE COURT: It sounds like to me if what [Chad Smith] is going to say is what they said in opening statement that was immediately after this incident that it would be an excited utterance and it would be an exception to the hearsay rule.
MS. JONES [for defense]: Your Honor, the excited utterance has to fall very close behind--
MR. WRIGHT [for State]: No. As soon as they got through with the rape they went directly to the house and we're talking about ten minutes.
We conclude this ruling by the trial court was simply a preliminary or qualified ruling on the admissibility of the victim's out-of-court declaration to Chad Smith, subject to the introduction of evidence sufficient to support a final ruling on the matter. The preliminary nature of the trial court's ruling is manifested by its timing and its language. At the time the ruling was made, there had been no proffer of Chad Smith's testimony. The witness had not yet taken the stand, been asked any questions, or given any foundation testimony pertinent to the availability of the excited utterance exception. At that point in the trial, based on statements of counsel, the trial court could only anticipate that Chad Smith's testimony might include hearsay statements potentially admissible under the excited utterance exception. Accordingly, the trial court specifically framed its ruling in terms of the limited record before it, stating: "I believe it is excited utterance based on what I've heard about it so far " (emphasis added).
On direct examination of Chad Smith, after concluding its foundation questions, the State then asked the witness what the victim said to him. Appellant did not object to the question, nor did he renew or request a final ruling on his previous objection on this issue. Appellant did not move to strike the hearsay testimony. Based on the foregoing, we conclude appellant failed to make a timely objection at trial to the admission of the challenged statement, thus precluding...
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