Gadberry v. State, No. CA

CourtCourt of Appeals of Arkansas
Writing for the CourtROBBINS; JENNINGS, C.J., and COOPER
Citation877 S.W.2d 941,46 Ark.App. 121
Docket NumberNo. CA
Decision Date15 June 1994
PartiesRobert William GADBERRY, Jr., Appellant, v. STATE of Arkansas, Appellee. CR 93-926.

Page 941

877 S.W.2d 941
46 Ark.App. 121
Robert William GADBERRY, Jr., Appellant,
v.
STATE of Arkansas, Appellee.
No. CA CR 93-926.
Court of Appeals of Arkansas,
Division II.
June 15, 1994.

Page 942

[46 Ark.App. 123] Christopher O'Hara Carter, Flippin, for appellant.

Sandy Moll, Asst. Atty. Gen., Little Rock, for appellee.

ROBBINS, Judge.

On February 4, 1993, appellant Robert Gadberry was found guilty before a jury of sexual abuse in the first degree and was sentenced to five years in the Arkansas Department of Correction. On appeal it is argued that the court erred in: (1) allowing the state to introduce testimony from the criminal investigator concerning statements made by the victim; (2) allowing a social worker to stand next to the victim while she testified; (3) allowing into evidence testimony about other acts allegedly committed by the appellant; (4) denying appellant's motion for a directed verdict; and, (5) allowing two counts of sexual abuse to go before the jury.

The fourth argument raised in appellant's brief is that the trial court erred in denying his motion for a directed verdict based on insufficiency of the evidence. Under the rationale of Lukach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992), we review the sufficiency of the evidence prior to a review of trial errors. In a challenge to the sufficiency of the evidence we must determine whether there is substantial evidence to support the verdict; substantial evidence must be forceful enough to compel a conclusion one way or the other passing beyond suspicion and conjecture. Id. In determining whether there is substantial evidence to support the jury's verdict, it is permissible to consider only that testimony which tends to

Page 943

support the verdict of guilt. Winters v. State, 41 Ark.App. 104, 848 S.W.2d 441 (1993).

In this case appellant was charged with violating Ark.Code Ann. § 5-14-108(a)(3) (1987), which provides:

46 Ark.App. 124] (a) A person commits sexual abuse in the first degree if

* * * * * *

(3) Being eighteen (18) years old or older, he engages in sexual contact with a person not his spouse who is less than fourteen (14) years old.

Arkansas Code Annotated § 5-14-101(8) defines sexual contact as any act of sexual gratification involving the touching, directly or through clothing, of the sex organs, buttocks, or anus of a person or the breast of a female.

The seven-year-old victim in this case testified that appellant touched her on her privates through her clothing. The victim testified that she asked appellant to stop but he would not leave her alone. She further testified that appellant had "tickled" her before, but this touching was different from the tickling.

Jim Carr, a criminal investigator with the Marion County Sheriff's Department, testified that he interviewed the victim after the alleged incidents. Carr testified that the victim stated appellant touched her in her private area on two occasions. When asked what her private area was, the victim indicated to him that it was her crotch area.

During the course of the investigation Investigator Carr took a statement from the appellant after he signed a rights form and initialed beside each listed right. In the statement appellant admitted rubbing the victim's "back part" for a "few minutes." In the statement appellant admitted to touching both the seven-year-old victim and her younger sister on their "private parts." Based on the above, we find that there was sufficient evidence for the jury to convict appellant of sexual abuse in the first degree.

As his first argument appellant contends that "the trial court erred in conducting a hearing pursuant to Rule 804(b)(7) of the Arkansas Rules of Evidence without the child testifying although she was in the courthouse and by not allowing the [appellant] to put on any witnesses concerning the child's truthfulness." Appellant contends that it was error to allow the criminal investigator, Mr. Jim Carr, to testify at trial as to statements made by the victim because the Rule 804(b)(7)(A) hearing was improperly conducted[46 Ark.App. 125] and because Rule 804(b)(7) was inapplicable inasmuch as the child-victim was available and in fact testified at the trial.

The Rule in question, Rule 804(b)(7) of the Arkansas Rules of Evidence, provides:

(b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

* * * * * *

(7) Child hearsay in criminal cases. A statement made by a child under the age of ten (10) years concerning any type of sexual offense against that child, where the Confrontation Clause of the Sixth Amendment of the United States is applicable, provided:

(A) The trial court conducts a hearing outside the presence of the jury, and, with the evidentiary presumption that the statement is unreliable and inadmissible, finds that the statement offered possesses sufficient guarantees of trustworthiness that the truthfulness of the child's statement is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility. The trial court may employ any factor it deems appropriate including, but not limited to those listed below, in deciding whether the statement is sufficiently trustworthy.

1. The spontaneity of the statement.

2. The lack of time to fabricate.

3. The consistency and repetition of the statement and whether the child has recanted the statement.

4. The mental state of the child.

5. The competency of the child to testify.

6. The child's use of terminology unexpected of a child of similar age.

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7. The lack of a motive by the child to fabricate the statement.

[46 Ark.App. 126] 8. The lack of bias by the child.

9. Whether it is an embarrassing event the child would not normally relate.

10. The credibility of the person testifying to the statement.

11. Suggestiveness created by leading questions.

12. Whether an adult with custody or control of the child may bear a grudge against the accused offender, and may attempt to...

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4 practice notes
  • People v. Whitman, No. 04CA1428.
    • United States
    • Colorado Court of Appeals of Colorado
    • November 29, 2007
    ...during the witness's testimony. These persons may include foster parents, close relatives, and social workers. Gadberry v. State, 46 Ark.App. 121, 128, 877 S.W.2d 941, 945 (1994) (social worker); Boatright v. State, 192 Ga. App. 112, 115, 385 S.E.2d 298, 301 (1989)(foster parent); State v. ......
  • Brown v. State, No. CA CR 05-33.
    • United States
    • Arkansas Court of Appeals
    • June 14, 2006
    ...children, should be able to testify in an atmosphere free from potential humiliation or intimidation. The State cites Gadberry v. State, 46 Ark.App. 121, 129, 877 S.W.2d 941, 945-46 (1994) and its summary of cases demonstrating special consideration of child victims who testify in court. We......
  • Radford v. State, CACR08-666 (Ark. App. 6/24/2009), CACR08-666.
    • United States
    • Court of Appeals of Arkansas
    • June 24, 2009
    ...Evid. 804(a)(3). Further, "[i]f a witness has only a partial recollection, the witness may be partially unavailable." Gadberry v. State, 46 Ark. App. 121, 127, 877 S.W.2d 941, 944 Here we must describe the record in some detail. At a pretrial hearing, the parties argued about the introducti......
  • Hill v. State, No. CR
    • United States
    • Supreme Court of Arkansas
    • April 13, 1999
    ...in DHS custody at the time of trial, and the child had the right to have his representative there under Rule 616. Gadberry v. State, 46 Ark.App. 121, 877 S.W.2d 941 (1994). Conspicuously absent from appellant's brief is any discussion of Rule 616's applicability to the facts of this case. N......
4 cases
  • People v. Whitman, No. 04CA1428.
    • United States
    • Colorado Court of Appeals of Colorado
    • November 29, 2007
    ...during the witness's testimony. These persons may include foster parents, close relatives, and social workers. Gadberry v. State, 46 Ark.App. 121, 128, 877 S.W.2d 941, 945 (1994) (social worker); Boatright v. State, 192 Ga. App. 112, 115, 385 S.E.2d 298, 301 (1989)(foster parent); State v. ......
  • Brown v. State, No. CA CR 05-33.
    • United States
    • Arkansas Court of Appeals
    • June 14, 2006
    ...children, should be able to testify in an atmosphere free from potential humiliation or intimidation. The State cites Gadberry v. State, 46 Ark.App. 121, 129, 877 S.W.2d 941, 945-46 (1994) and its summary of cases demonstrating special consideration of child victims who testify in court. We......
  • Radford v. State, CACR08-666 (Ark. App. 6/24/2009), CACR08-666.
    • United States
    • Court of Appeals of Arkansas
    • June 24, 2009
    ...Evid. 804(a)(3). Further, "[i]f a witness has only a partial recollection, the witness may be partially unavailable." Gadberry v. State, 46 Ark. App. 121, 127, 877 S.W.2d 941, 944 Here we must describe the record in some detail. At a pretrial hearing, the parties argued about the introducti......
  • Hill v. State, No. CR
    • United States
    • Supreme Court of Arkansas
    • April 13, 1999
    ...in DHS custody at the time of trial, and the child had the right to have his representative there under Rule 616. Gadberry v. State, 46 Ark.App. 121, 877 S.W.2d 941 (1994). Conspicuously absent from appellant's brief is any discussion of Rule 616's applicability to the facts of this case. N......

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