Johnson v. State
| Decision Date | 12 May 1997 |
| Docket Number | No. CR,CR |
| Citation | 944 S.W.2d 115,328 Ark. 526 |
| Parties | Floyd JOHNSON, Appellant, v. STATE of Arkansas, Appellee. 96-1478. |
| Court | Arkansas Supreme Court |
L.D. Gibson, Trumann, for appellant.
Winston Bryant, Attorney General, David R. Raupp, Senior Assistant Attorney General, Little Rock, for appellee.
Appellant Floyd Johnson was convicted by a jury of the rape of a thirteen-year-old female, V.J., and sentenced by the trial court to thirty-five years' imprisonment. He contends that there was insufficient evidence to support his conviction by the jury. He also contends that the court lacked the authority to fix his sentence and that it erroneously deviated from the presumptive sentencing grid when imposing his sentence. None of his arguments have merit, and we affirm his conviction.
We will address his challenge to the sufficiency of the evidence first, as this question is always considered before we decide other points for reversal. Scroggins v. State, 312 Ark. 106, 848 S.W.2d 400 (1993). Here, appellant was charged with raping the thirteen-year-old victim because he put his finger into her vagina. A person commits rape if he engages in deviate sexual activity with a person under fourteen years of age. Ark.Code Ann. § 5-14-103(a)(3) (Repl.1993). At the time of this offense, the statutory definition of deviate sexual activity was "any act of sexual gratification involving the penetration, however slight, of the vagina ... of one person by any body member ... of another person." Ark.Code Ann. § 5-14-101(1)(B) (Repl.1993). The jury was so instructed.
Appellant argues that the evidence was insufficient to establish the required element of vaginal penetration. We can quickly dispose of this argument. The testimony introduced by the State clearly established vaginal penetration, "however slight." V.J. testified that she awoke on the morning in question to find appellant lying next to her with his finger placed inside of her. She testified that his finger felt like a tampon. As the State argued at trial, there is no place for a tampon to be placed other than in the vagina. V.J. testified that she was using tampons; thus, there was no question that she was familiar with how tampons feel and was competent to compare a tampon to appellant's finger.
Evidence is substantial if reasonable minds could convict without resorting to speculation and conjecture. Mings v. State, 318 Ark. 201, 884 S.W.2d 596 (1994). In response to appellant's argument that V.J.'s testimony was the only evidence of vaginal penetration, we reiterate that the testimony of a rape victim alone is sufficient to sustain a conviction if it establishes all of the elements. Laughlin v. State, 316 Ark. 489, 872 S.W.2d 848 (1994); Bishop v. State, 310 Ark. 479, 839 S.W.2d 6 (1992). Reasonable minds could conclude from this victim's testimony, without resorting to speculation or conjecture, that appellant penetrated her vagina with his finger. The proof was sufficient to sustain a conviction for rape.
Appellant next challenges the authority of the trial court to impose his sentence. The pertinent facts are as follows. The jury returned its verdict finding appellant guilty of rape, at around 5:18 p.m. Because of the lateness of the hour, the court called a recess before the jury commenced the sentencing phase. The court reconvened at 9:30 a.m. the next day for the sentencing phase. Appellant offered no testimony at the sentencing phase, and the State presented evidence that appellant had been previously convicted of rape and of sexual solicitation of a child in 1981. After hearing the evidence, the jurors retired to the jury room at 10:25 a.m.
After the jury retired, appellant's counsel brought to the court's attention that there had been an article in the previous day's edition of the Jonesboro Sun regarding a sexual abuse charge against appellant, which involved another victim and which had been severed from this case. The jurors were escorted back into the courtroom at 10:35 a.m. At that time, the court asked if anyone had read the article, and one juror replied that he had. Appellant moved for a mistrial on both the guilt and sentencing phases. The court denied the motion for mistrial on the guilt phase, but found that the sentencing phase had been tainted and stated that the only remedy was for the court to impose sentence.
Appellant made a motion for new trial, in which he argued that the court did not have authority to sentence appellant because of the statutory provisions of Ark.Code Ann. § 5-4-103. He argued that the exception that allows sentencing by the trial court when the jury is unable to reach a verdict only applies to a hung jury. The court denied the motion for a new trial on the basis that the court was authorized to fix punishment when the jury was unable to agree upon the punishment because only eleven jurors remained after one was disqualified.
The trial court was correct. Section 5-4-103 of the Arkansas Code Annotated provides:
(a) If a defendant is charged with a felony and is found guilty of an offense by a jury, the jury shall fix punishment in a separate proceeding as authorized by this chapter.
(b) Except as provided by § § 5-4-601 --- 5-4-605, 5-4-607, and 5-4-608, the court shall fix punishment as authorized by this chapter in any case where:
(1) The defendant pleads guilty to an offense; or
(2) The defendant's guilt is tried by the court; or
(3) The jury fails to agree on punishment; or
(4) The prosecution and the defense agree that the court may fix punishment; or
(5) A jury sentence is found by the trial court or an appellate court to be in excess of the punishment authorized by law.
We have held that the trial court may only fix punishment under the specifically enumerated circumstances as set out in the statute. Richards v. State, 309 Ark. 133, 827 S.W.2d 155 (1992); Tharp v. State, 294 Ark. 615, 745 S.W.2d 612 (1988). Although we have long held that the exceptions that allow sentencing by the trial court do not violate Ark. Const. art. 2, §§ 7, 10, and 21, which guarantee a defendant a right to a jury trial, Froman v. State, 232 Ark. 697, 339 S.W.2d 601 (1960), the trial court's authority to sentence is limited to the exceptions as set out in the statute.
The trial court was correct in determining that the jury could not agree. When it becomes clear that a member of the jury panel cannot be impartial in passing a sentence, the jury cannot agree. Such a situation arose in Clinkscale v. State, 13 Ark.App. 149, 680 S.W.2d 728 (1984), when the trial court passed sentence after the jury had unanimously agreed not to impose a sentence. The jurors informed the trial court that two members of the panel were no longer able to be impartial after one of the defense's witnesses asserted that one of the jurors was a prostitute, and the defendant seconded her remarks. The court of appeals found that the trial court had acted within the bounds of its statutory authority under the exception that allows it to fix punishment when the jury cannot agree.
Recently in Ladwig v. State, 327 Ark. ---, 943 S.W.2d 571 (1997), the trial court correctly imposed sentence when the jury was deadlocked. Eleven jurors voted for a forty-year sentence, and one was holding out for a life sentence. We think that the jury in that case would similarly not have been "able to agree" had the one juror become tainted by prejudicial information, or as in Clinkscale, supra, become incapable of rendering an impartial decision. The statute authorizes the court to fix punishment after the jury has found the defendant guilty, if during the sentencing phase the jury fails to agree on punishment. Ark.Code Ann. § 5-4-103(b)(3). Here, the jury was unable to agree on punishment, and the court exercised its statutory authority to fix punishment.
Appellant's final point is that the trial court erred in departing upward from the presumptive sentence of 312 months and imposing a sentence of 420 months. Under Ark.Code Ann. § 16-90-804, the...
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