Clifton v. State

• Decision Date: 12 May 1986
• Docket Number: No. CR,CR
• Citation: Clifton v. State, 289 Ark. 63, 709 S.W.2d 63 (Ark. 1986)
• Parties: Daniel Price CLIFTON, Appellant, v. STATE of Arkansas, Appellee. 85-216.
• Court: Arkansas Supreme Court

Page 63

709 S.W.2d 63

289 Ark. 63

Daniel Price CLIFTON, Appellant, v. STATE of Arkansas, Appellee.

No. CR 85-216.

Supreme Court of Arkansas.

May 12, 1986.

William R. Simpson, Jr., Public Defender by Donald K. Campbell, III, Asst. Public Defender, Little Rock, for appellant.

Steve Clark, Atty. Gen. by Mary Beth Sudduth, Asst. Atty. Gen., Little Rock, for appellee.

NEWBERN, Justice.

The appellant was convicted of rape and attempted rape and was sentenced to sixty and twenty years imprisonment, respectively, for these offenses. He appeals from the attempted rape conviction on the ground that the nine-year-old prosecuting witness was incompetent to testify. We affirm.

The rape conviction resulted primarily from the testimony of seven-year-old Shirley Bryans who told the jury about being at home on the morning in question with the appellant, her sister Ritha, and a brother who was playing outdoors. Shirley testified that Ritha, then aged eight (nine at the time of trial) was being kept in the bathroom by the appellant as punishment for having tormented a kitten. The appellant lived with Shirley, Ritha, their brother, and their mother who was temporarily away from the home. Shirley testified as to how the appellant raped her on that morning and how she told her mother of the incident when the mother returned to the home. Shirley was examined by a doctor who found evidence of recent vaginal penetration.

At an omnibus hearing, Ritha, the nine-year-old, at first said she did not know the difference between telling the truth and telling a lie but then, after some coaxing with examples, said she did know the difference and that she knew she would be punished for lying. She testified that "Daniel P. Clifton" locked her in the bathroom and, after moving her from the bathroom to the closet and back a time or two, came into the bathroom and "stuck his penis down my throat."

At the trial both girls gave substantially the same testimony as at the omnibus hearing except Ritha said the appellant "tried" to stick his penis down her throat. The physician's report, which was entered as a joint exhibit, stated that Ritha had told the doctor that the appellant had not succeeded in placing his penis in Ritha's mouth.

On cross examination at the trial Ritha said she had not liked the appellant both before and after the incident. He had punished her and she had wanted to get even with him. She then said that she had changed her mind and did not want to get even.

The appellant argues that it was only after Ritha was led to the answers the prosecutor wanted to hear that the court ruled she was competent. He contends her use of...