Gunter v. State

• Decision Date: 21 June 1993
• Docket Number: No. CR,CR
• Parties: Robert D. GUNTER, Jr., Appellant, v. STATE of Arkansas, Appellee. 92-1222.
• Court: Arkansas Supreme Court

Page 156

857 S.W.2d 156

313 Ark. 504

Robert D. GUNTER, Jr., Appellant, v. STATE of Arkansas, Appellee.

No. CR 92-1222.

Supreme Court of Arkansas.

June 21, 1993.

Christopher O'Hara Carter, Mountain Home, for appellant.

Teena L. White, Asst. Atty. Gen., Little Rock, for appellee.

HAYS, Justice.

Robert D. Gunter, Jr. appeals from his conviction for rape. Gunter testified in his own behalf, admitting that sexual intercourse occurred but maintaining that it was consensual. In Gunter's first trial the jury was unable to agree on a verdict. On retrial, the jury returned a verdict of guilty and sentenced Gunter to a term of forty years in the Department of Correction. None of the six errors ascribed to the trial court are persuasive and, accordingly, we affirm the judgment entered on the conviction.

On June 6, 1991, the prosecutrix and Judy Smyser met for dinner at the Watertree Inn outside of Mountain Home. They knew the waiter, Matthew Bennett, who also worked as a bartender at the Red Fox, a private club at the Holiday Inn. Bennett invited the two women to come there later, which they did.

The events of that evening are partially disputed. The testimony established that when the prosecutrix returned to her seat after dancing, Robert Gunter, the appellant, was sitting in her seat. Apparently, the prosecutrix, Ms. Smyser, Mr. Gunter, and a friend of Gunter's, were sitting at the same table. There is disagreement over the amount of contact Gunter and the prosecutrix had with each other and whether they danced and drank together.

At approximately 1:00 a.m. the bar was closing and the prosecutrix was looking for her car keys. Although Gunter denied it, witnesses testified that he stood by the door and jingled the car keys, which he evidently obtained from her purse while she was dancing. They then walked out to the prosecutrix's van and got into the van with Gunter in the driver's seat. The women testified that they were under the impression that Gunter was going to drive Ms. Smyser to her car and get some cigarettes and then the prosecutrix would drop him off at his house or at the Red Fox. After dropping Ms. Smyser off, and getting cigarettes, Gunter drove down Cranfield Road and went to the Cranfield campgrounds. The prosecutrix testified that at this point Gunter became violent and would not take "no" for an answer. The parties agree that sexual intercourse occurred. However, Gunter insists it was consensual and the prosecutrix contends he pushed her to the back seat and forcibly had oral sex and intercourse with her.

The prosecutrix dropped Gunter off at the Red Fox and drove directly to the Mountain Home Police Department.

Officer Tommy Steen met Deputy Kenneth Grayham and the prosecutrix at the Baxter County Regional Hospital where she answered questions and was examined. Deputy Grayham, Dr. Robert Kerr, the prosecutrix's doctor, and Danette Grayham, a jailer/dispatcher with the sheriff's department who took pictures of the victim, all testified that she was bruised in several places and had a scratch with a bruise around it on her upper arm. Blood was also discovered on the back seat of the van where intercourse admittedly occurred. A warrant was issued for the arrest of Robert Gunter. When the warrant was executed he was found hiding in a closet at the home of his former wife.

I

We first address the argument that the verdict was contrary to the substantial weight of the evidence.

After the State's case, and again at the close, Gunter moved for a dismissal of the charges on the basis that the State failed to meet its burden of proof. The trial court stated that it found the victim's testimony convincing and denied the motion.

On appeal, before considering other assignments of error we determine the sufficiency of evidence, including any proof which should not have been admitted. Scroggins v. State, 312 Ark. 106, 848 S.W.2d 400 (1993). A motion for directed verdict is a challenge to the sufficiency of the evidence. Glick v. State, 275 Ark. 34, 627 S.W.2d 14 (1982). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, whether direct or circumstantial. Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Lukach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992). In determining the sufficiency of the evidence, we review the proof in the light most favorable to the appellee, considering only that evidence which tends to support the verdict. Brown v. State, 309 Ark. 503, 832 S.W.2d 477 (1992).

In rape cases, the requirement of substantial evidence is satisfied by the rape victim's testimony. Bishop v. State, 310 Ark. 479, 839 S.W.2d 6 (1992). We have held the testimony of the victim which shows penetration is enough for conviction, and such testimony need not be corroborated to be sufficient. Davis v. State, 308 Ark. 481, 825 S.W.2d 584 (1992).

The testimony of the prosecutrix alone provides substantial evidence to support the conviction. She elaborated on the events at the Red Fox, where Gunter and his friend began sitting at their table. At closing time she was unable to find her car keys, but after a few minutes, Gunter, who was standing by the door, held up her keys and jingled them. The prosecutrix, Ms. Smyser, Mr. Gunter, and Gunter's friend walked out to the prosecutrix's van. The friend left but Gunter insisted on getting into the van with the two women.

The prosecutrix testified that she was under the impression that Gunter was going to take her to get cigarettes and come back to the Red Fox, but after they dropped Ms. Smyser off and got the cigarettes he drove to the Cranfield campgrounds. She told Gunter that she needed to go home and check on her daughter and take her medicine but he threw her in the back of the van, got on top of her and held her down with one arm while he took her pants and underwear off with the other. She stated she begged him to stop and not to hurt her. She testified that the appellant then forced her to have oral sex with him, attempted to have anal sex but was unable to complete the act, and then had vaginal sex. She stated that none of these acts were done with her consent.

Deputy Grayham, Dr. Robert Kerr, the prosecutrix's doctor, and Danette Grayham, a jailer/dispatcher with the Baxter County Sheriff's Department, all described bruises on the arm, back, inner thigh and legs of the prosecutrix. There was also blood on the seat in the back of the van which would be consistent with the bleeding from a cut which was described as being on the arm of the prosecutrix.

There were minor conflicts in the testimony of some of the witnesses, but where witness credibility is involved, wide discretion is given to the fact-finder which has the opportunity to observe the witnesses. See Hollamon v. State, 312 Ark. 48, 846 S.W.2d 663 (1993); Lowe v. State, 309 Ark. 463, 830 S.W.2d 864 (1992). Therefore, the evidence was sufficient to support the jury's verdict.

II

Gunter argues the trial court erred in failing to grant his request to examine the victim's medical records relating to her osteoporosis and mitral valve prolapse conditions. He claims that because Gunter intended to testify in his own behalf and to call her physician to testify concerning her alleged weakened condition, her ability to bruise easily, and the medication she was taking, he is entitled to her medical records under his constitutional right to confront his accusers under the Sixth Amendment to the United States Constitution and Article 2, Section 10 of the Arkansas Constitution. He claims that such records were necessary and relevant to the preparation of his defense.

The right of confrontation provides two types of protection for defendants in criminal cases: the right to face those who testify against them and the opportunity to conduct effective cross-examination. See George v. State, 306 Ark. 360, 813 S.W.2d 792 (1991); Bowden v. State, 301 Ark. 303, 783 S.W.2d 842 (1990).

Here, the trial court merely denied Gunter's objection to the introduction of medical testimony offered by the State in the testimony of Dr. Robert Kerr, which in no way implicates Gunter's Sixth Amendment right of confrontation. Dr. Kerr's name was on the witness list and, from the previous trial, Gunter was aware of the nature of Dr. Kerr's testimony. Gunter could have deposed the doctor before trial. He could have had a doctor examine Dr Kerr's responses and testify at trial regarding the prosecutrix's medical condition. Gunter was also free to cross-examine the prosecutrix and Dr. Kerr at trial.

Additionally, while Gunter moved to compel discovery of the prosecutrix's medical and psychological records prior to the first trial, we find no indication that that motion was renewed prior to the second trial. During the second trial counsel for appellant referred to the motion in connection with his objection to a question to Dr. Kerr concerning the prosecutrix's physical strength and capacity to resist an assault. In the course of that objection, counsel renewed the motion to discover such records, but that came near the end of the State's case, and certainly it was not incumbent on the trial court to consider a pretrial discovery motion at that late stage in the proceedings.

Finally, appellant has made no showing as to how the prosecutrix's medical and psychological records would be relevant in determining whether she was forcibly raped.

III

A third argument, the trial court erred in allowing the victim to testify as to the psychological effects of the crime without first affording Gunter with access to her psychological records, is similar to the previous argument.

Gunter contends that due to the prosecutrix's testimony regarding her psychological condition, he should have had access to her psychological records. He points to...