Flurry v. State

• Decision Date: 04 June 1986
• Docket Number: No. CA,CA
• Parties: Lonnie FLURRY, Appellant, v. STATE of Arkansas, Appellee. CR 85-196.
• Court: Arkansas Court of Appeals

Page 163

711 S.W.2d 163

18 Ark.App. 64

Lonnie FLURRY, Appellant, v. STATE of Arkansas, Appellee.

No. CA CR 85-196.

Court of Appeals of Arkansas,

En Banc.

June 4, 1986.

Rehearing Denied July 2, 1986.

Person & VanWinkle by J. Randolph Shock, Fort Smith, for appellant.

Steve Clark, Atty. Gen. by Connie Griffin, Asst. Atty. Gen., Little Rock, for appellee.

ERNIE E. WRIGHT, Special Judge.

The appellant, Lonnie Flurry, was convicted by a jury on the charge of rape and a sentence of twenty years imprisonment was imposed. Five points for reversal are raised in this appeal.

First, it is argued there was no substantial evidence of forcible compulsion to sustain the conviction. While we reverse on another point, we first review appellant's charge as to the sufficiency of the evidence. Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984).

Ark.Stat.Ann. § 41-1803 (Repl.1977) provides in part:

(1) A person commits rape if he engages in sexual intercourse or deviate sexual activity with another person:

(a) by forcible compulsion; or....

Forcible compulsion is defined in Ark.Stat.Ann. § 41-1801 (Repl.1977) as follows: " 'Forcible compulsion' means physical force, or a threat, express or implied, of death or physical injury to or kidnapping of any person." The prosecuting witness was the daughter of appellant. The rape charge alleged the offense occurred on March 10, 1984. At the time the prosecuting witness was approximately fourteen years and eight months of age and in the tenth grade. She resided in the home of her father, the appellant, and her stepmother. Her younger brother, a stepsister and her stepmother's mother, whom the prosecuting witness referred to as Grandma, also resided in the home. The prosecuting witness testified that on the evening of Saturday, March 10, 1984, her stepmother, stepsister and grandmother went to play bingo. She and her father, whom she referred to as Lonnie, and her younger brother were left at home. Her father told her brother to go to the Sonic and get some malts. She testified that she was already in bed and that when her brother left, her dad came in and started "handling on me and fondling and everything." She stated,

He started rubbing my back and I was trying to act like I was asleep, because I was scared. And--er--and then he turned me over and started taking off my pants and stuff and I said no, and he, goes--er--yeah, he goes to take them off, and, so, he--er--er--he took off my pants and started--er--he started just rubbing all over me and everything, and then he started having intercourse with me.

She testified she did not kick or scream, that she was upset, crying, and told him no.

In Canard v. State, 278 Ark. 372, 646 S.W.2d 3 (1983) the rape victim was the eleven-year-old daughter of the appellant. The witness testified that her father stopped the car on a gravel road and unzipped her pants, took her leg out, unzipped his pants, took his penis out and started raping her. She testified she didn't want to, that she was very much afraid of her father, but he did anyway. She referred to the occurrence as rape, further indicating the occurrence was intercourse against her will. This evidence, coupled with the age of the victim, was held to be sufficient for the jury to conclude that forcible compulsion was present. In that case no issue was raised for failure to instruct on a lesser included offense, an issue discussed below in the present case.

In determining the issue of sufficiency of the evidence, we consider the evidence in the light most favorable to the appellee. Maples v. State, 16 Ark.App. 175, 698 S.W.2d 807 (1985).

The established rule is that corroboration is not required in a rape case. Spencer v. State, 255 Ark. 258, 499 S.W.2d 856 (1973). We hold that the testimony of the prosecuting witness most favorable to the state, if believed by the jury, was sufficient for conviction.

For his second point, appellant argues the court erred in refusing to grant jury instructions on the lesser included offenses of carnal abuse in the third degree and sexual misconduct. Ark.Stat.Ann. § 41-1806 (Repl.1977) provides:

(1) A person commits carnal abuse in the third degree if being twenty (20) years old or older, he engages in sexual intercourse or deviate sexual activity with another person not his spouse who is less than sixteen (16) years old.

(2) Carnal abuse in the third degree is a class A misdemeanor.

Ark.Stat.Ann. § 41-1807(1) (Repl.1977) provides:

A person commits sexual misconduct if he engages in sexual intercourse or deviate sexual activity with another person not his spouse who is less than sixteen (16) years old.

The distinction between sexual misconduct and carnal abuse in the third degree is that the defendant can be convicted of the latter only if he is twenty years old or older, and this age requirement is not an element in the offense of sexual misconduct. It is clear from the record that appellant was more than twenty years old at the time of the alleged offense and that there would be no rational basis for acquitting him of sexual abuse in the third degree and convicting him of the lesser included offense of sexual misconduct.

However, in the case before us the actions and testimony of the prosecuting witness supplied a rational basis upon which the jury might have acquitted appellant of the offense of rape, which requires proof of forcible compulsion, and convicted him of carnal abuse in the third degree. The testimony of the prosecuting witness included in substance the following: that appellant started having intercourse with her when she was in the eighth grade and that this occurred about twice a week, except when she was having her period; that he treated her like someone special; that on one occasion when her grandmother was not at the house he approached her and she stated, "I said no, and he goes why?, and I said because, I said she's going to be back, and I don't want to." She testified that when she responded to sex with him he was more in favor of letting her have things and have her way; that she told Mr. Self when she was reporting the alleged rape that her daddy did it whether she wanted to or not; that her method of resisting was "I just told him no, that I didn't want to." The evidence shows the alleged rape occurred on a Saturday night and the prosecuting witness did not report it until she went to school on the following Monday. The record further shows she did not tell her grandmother, with whom she shared her bedroom and with whom she stated she had a close relationship. There was also evidence that on Sunday following the alleged rape the prosecuting witness was angered because her stepmother and her father refused her permission to attend a baby shower for an unwed fourteen-year-old girl.

The state called a younger brother of the prosecuting witness and he testified his sister told him one time that her dad was messing around with her while the witness was sleeping, and that when he banged his head against the wall, as he often did when sleeping, his dad told her they had better get away from each other because her brother was about to wake up.

Laura Richmond, a cousin and lifelong friend of the victim, was called as a witness by appellant. She testified that in a conversation with the victim she asked her if she had ever thought about changing her story about the case, and she said, "Yes, I've thought about it a lot, and, but they told me if I did that I would either have to go back into a foster home, into a foster school for girls or I'd have to go live with my dad." From the record it is clear that there was more than the "slightest evidence" warranting an instruction on the lesser included charge of carnal abuse in the third degree.

In Clark v. State, 244 Ark. 772, 427 S.W.2d 172 (1968), the appellant was charged and convicted for the rape of his nine-year-old stepdaughter. There was evidence the appellant choked and raped the child. She testified she tried to push him off, and tried to get away, and that he hurt her. She further testified she did not tell anybody because she was afraid he would kill her. Upon examination, the doctor found that her hymen had been ruptured and torn and he testified in his opinion the condition was caused by a forcible penetration. The trial court refused to instruct on the lesser included offense of carnal abuse. In a unanimous opinion the Supreme Court reversed, stating, "While the little girl testified to acts constituting rape, the jury could possibly have found, since she did not report it, that she consented."

The mere fact that a defendant testifies and denies committing the alleged criminal act does not justify refusing to instruct on a lesser included offense when there is evidence providing a rational basis for acquitting the defendant on the offense charged and convicting him of a lesser included offense. Clark v. State, supra; Bongfeldt v. State, 6 Ark.App. 102, 639 S.W.2d 70 (1982).

It is the prerogative of the jury to accept all or any part of the testimony of a witness. In Fike v. State, 255 Ark. 956, 504 S.W.2d 363 (1974), the appellant was convicted of rape. The court held it was error to refuse a requested instruction on the lesser included offense of assault, and pointed out:

[T]he jury has the sole prerogative to accept all or any part of a witness' testimony whether controverted or not. Therefore, the jury had the absolute right, as the trier of the facts, to evaluate the evidence and consider only whether an unlawful assault was committed....

In Robinson v. State, 269 Ark. 90, 598 S.W.2d 421 (1980), the appellant was found guilty of capital murder. The trial court had refused appellant's request for an instruction on second degree murder. In reversing, the court said:

No right has been more zealously protected by this court than the right of an accused to have the jury instructed on lesser offenses included in the more serious offense charged....