Cole v. State
| Decision Date | 28 October 1991 |
| Docket Number | No. CR,CR |
| Citation | 307 Ark. 41,818 S.W.2d 573 |
| Parties | John Antonio COLE aka Tony Cole, Appellant, v. STATE of Arkansas, Appellee. 90-305. |
| Court | Arkansas Supreme Court |
Gil Dudley, Asst. Atty. Gen., Little Rock, for appellee.
On August 28, 1990, the appellant, John Antonio Cole aka Tony Cole, was convicted of rape and carnal abuse in the second degree and sentenced as an habitual offender to forty years and ten years, respectively, in the Arkansas Department of Correction with the sentences to be served consecutively.
Cole alleges six points of error on appeal: 1) that the trial court erred in denying his motion for a directed verdict on the charge of rape, 2) that the evidence on the element of forcible compulsion was insufficient to support a conviction of rape, 3) that the trial court erred in denying his motion to suppress the introduction of evidence of HSV2 testing as the resulting prejudice outweighed its probative value in violation of A.R.E. 403, 4) that the trial court erred in admitting hearsay testimony that was not admissible as an excited utterance exception under A.R.E. 803(2), 5) that the trial court improperly applied the state of mind exception to the hearsay rule under A.R.E. 803(3), and 6) that the trial court improperly permitted the introduction of hearsay testimony because it was not offered to rebut an implied charge of recent fabrication.
Cole asserts in his first and second points of error that the trial court erred in denying his motion for a directed verdict on the charge of rape and that the evidence on the element of forcible compulsion was insufficient to support a conviction of rape. However, he did not make a motion for a directed verdict at the close of the case.
Arkansas R.Crim.P. 36.21(b) provides:
Failure to Question the Sufficiency of the Evidence. When there has been a trial by jury, the failure of a defendant to move for a directed verdict at the conclusion of the evidence presented by the prosecution and at the close of the case because of insufficiency of the evidence will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the jury verdict.
The sufficiency of the evidence issues raised in points 1 and 2 were thus waived by Cole's failure to move for a directed verdict at the close of the case, and we decline to consider these issues on appeal. Andrews v. State, 305 Ark. 262, 807 S.W.2d 917 (1991) ().
As a third point, Cole argues that the trial court erred in denying his motion to suppress the introduction of evidence of HSV2 testing as the resulting prejudice outweighed its probative value in violation of A.R.E. 403. Rule 403 states that "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."
The balancing of probative value against prejudice is a matter left to the sound discretion of the trial judge, and his decision Although the established rule is that corroboration is not required in a rape case, Lackey v. State, 283 Ark. 150, 671 S.W.2d 757 (1984), we held in Brewer v. State, 269 Ark. 185, 599 S.W.2d 141 (1980), that the trial court properly allowed articles of the defendant's clothing to be introduced into evidence together with testimony that there were human bloodstains on the clothing where this evidence tended to corroborate the testimony of the rape victim, the police officers, and the medical examiner.
on such a matter will not be reversed absent a manifest abuse of that discretion. Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988).
In this case, Cole emphasizes the inconclusive nature of the HSV2 (genital herpes) test results. However, Dr. Michael Young testified that Cole's HSV2 antibody IGG tested positive and that "[b]ased on the lab reports that I saw, and having not examined him [when he had herpes lesions], I can say that probably, he had HSV2 some time in the past."
Dr. Young further testified that the victim had been a patient of his for two and one half years. In October 1989, he had examined the victim during her annual physical checkup, and she had not exhibited any symptoms of the disease. The incident occurred later that month, on October 22, and Dr. Young examined the victim again as a result of the victim's allegation. Based on his examination of the victim, her medical history, and positive HSV2 test results at that time, he determined that the victim had contracted genital herpes around the end of October 1989. As in Brewer v. State, supra, this evidence tended to corroborate the testimony of the rape victim, whose credibility had been placed into question by Cole, and the trial court's admission of this evidence was not a manifest abuse of discretion.
In his fourth point of error, Cole contends that the trial court erred in admitting hearsay testimony that was not admissible as an excited utterance exception under Rule 803(2). That rule provides that
We have recently held, in Smith v. State, 303 Ark. 524, 798 S.W.2d 94 (1990), that where a three-year old declarant witnessed the brutal murder of his aunt, was returned home by the murderer about three hours later before his mother got home, slept fitfully and cried and screamed during the night, and made the statement when he first fully awoke the next morning, and where the declarant was crying and frightened when he told his mother what had happened, the trial court did not err in ruling that the child's statement to his mother, and later to police, was admissible as an excited utterance under Rule 803(2). In that case, we listed numerous citations from other jurisdictions that expanded the time interval between an exciting event and an out-of-court statement when the declarant is a child and recognized the considerations summarized in United States v. Iron Shell, 633 F.2d 77 (8th Cir.1980):
The lapse of time between the startling event and the out-of-court statement although relevant is not dispositive in the application of 803(2). Nor is it controlling that the [declarant's] statement was made in response to an inquiry. Rather, these are factors which the trial court must weigh in determining whether the offered testimony is within the 803(2) exception. Other factors to consider include the age of the declarant, the physical and mental condition of the declarant, the characteristics of the event and the subject matter of the statements. In order to find that 803(2) applies, it must appear that the declarant's condition at the time was such that the statement was spontaneous, excited or impulsive, rather than the product of reflection and deliberation. [Citations omitted.]
Here, the mentally retarded twenty-three-year-old victim was described by Dr. Young as having the mental capacity of a six or seven year old child. The victim's The victim lived in a home for adults with mental disabilities, and the incident occurred on a Sunday afternoon in the victim's room at the home. The following morning in class, the victim began talking very loudly to herself about the incident. Her teacher "whisked" her out of the classroom and took her to the program coordinator, who noted that she was frightened and upset. The administrator for the home was also informed of the incident. The victim told the three women at that time that Cole had told her not to tell that he had come into her room and wanted to play tricks. All three of the women testified that the victim was upset and excited when she told them of the incident.
teacher credited her with academic skills of an eight to eleven year old child. Thus, we have no problem in applying the rationale of our holding in Smith v. State, supra, to the facts of this case.
At that time, the three women were not aware that the victim had been physically abused by Cole. It was not until Thursday night that the victim burst into the program coordinator's office and excitedly told her the rest of the story that Cole had placed his penis inside her buttocks and "taken her temperature." However, the emotional condition of the victim is unknown during the interval from her initial reporting of the incident on Monday until the following Thursday, four days after the incident.
The program coordinator testified as follows:
Q What did [the victim] tell you that Wednesday night?
A Thursday night. This was my night at the home. She told me basically, the same story she had on Monday, but she began to tell what I believe is the rest of the story. She indicated that there had been some genital contact. That she was told not to tell. That it hurt. I asked her if she asked him to stop and she said, 'I did, but he just kept on.'
Given the mental faculties of the victim and her excited and upset condition on the morning following the incident when she first spoke of the incident, we find that the three women's testimony about what the victim told them on Monday morning comes within the excited utterance exception to the hearsay rule encompassed in Rule 803(2).
We do not, however, stretch the exception to cover the victim's statements made on Thursday. In Smith v. State, supra, we noted that ...
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