Lindsey v. State

• Decision Date: 19 December 1994
• Docket Number: No. CR,CR
• Citation: 890 S.W.2d 584,319 Ark. 132
• Parties: Orville LINDSEY, Appellant, v. STATE of Arkansas, Appellee. 94-638.
• Court: Arkansas Supreme Court

Page 584

890 S.W.2d 584

319 Ark. 132

Orville LINDSEY, Appellant, v. STATE of Arkansas, Appellee.

No. CR 94-638.

Supreme Court of Arkansas.

Dec. 19, 1994.

[319 Ark. 134] Robert E. Irwin, Russellville, for appellant.

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

BROWN, Justice.

This appeal is brought from a judgment of conviction for two counts of rape involving a child younger than age 14 for which the appellant, Orville Lindsey, received two life sentences. The victim was Lindsey's daughter, B.L., who was age eight at the time of the offenses. Lindsey raises two points on appeal: (1) the trial court erred in permitting testimony of his daughter's trench foot condition; and (2) the trial court erred in excluding evidence that the victim, B.L., had accused others of raping and sexually molesting her. Neither point warrants a reversal of the judgment, and we, therefore, affirm.

On May 19, 1993, Corporal John Serrette of the Russellville Police Department was dispatched to the home of Roger Dale Mason after being notified of a disturbance there. When he arrived, he found B.L., and after talking to her, it became apparent to him that she was a victim of sexual abuse. B.L. told the police officer that Lindsey had sexually abused her. She was taken to the Russellville Police Department for questioning and then to St. Mary's Hospital in Russellville where she was examined by a pediatrician, Dr. Robin Goodman. B.L.'s hymenal opening was found to be significantly enlarged and in an irregular shape, suggesting repeated penetration. Dr. Goodman also found that she had gonorrhea bacteria in her throat and a severe case of trench foot which results from feet being kept warm, moist, and unclean for a prolonged period of time. Both of B.L.'s feet were afflicted with the Lindsey was arrested on May 21, 1993, and charged with raping B.L. by sexual intercourse and oral sex and with endangering her welfare and the welfare of her six-year-old sister by allowing each to develop the trench foot condition. On the day of the trial, defense counsel for Lindsey orally moved the trial court to allow the testimony of three proposed witnesses who would testify that B.L. had accused other persons of sexual conduct. Lindsey also sought severance of the endangerment charge for purposes of trial. The trial court severed the endangerment charge but initially reserved judgment on whether evidence of B.L.'s trench foot ailment could come in at the trial of the rape charges. The court made the following ruling:

condition and were puffy and swollen with peeling skin and inflammation.

I'll grant your motion with respect to a severance of the endangering the welfare of a minor in the second degree. That's on the Amended Information as Count III. So, that charge will not be considered by this Jury in terms of the factual basis for that charge. It may have some relevance under 404(b). What I'd rather do at this time is to deny your request for motion in limine on that aspect.... I can envision a situation where it might be relevant. You know, if it is an examination--one or more girls taken to the hospital for examination of the basis of what brings us here today and then that condition in Count III was seen and observed by the treating physicians, that could have a basis of some relevance under 404(b); but I'd rather hear how that comes out. I'm not sure how it would come out; but the actual charge itself, I will sever.

After the trial court made this ruling, defense counsel continued to argue that any proof of trench foot would be highly prejudicial and inflammatory and of no probative value. The trial court reiterated that it might have some relevance on the issue of Lindsey's intent. The prosecutor added that the State intended to introduce proof of B.L.'s trench foot as part of her total condition at the time of the doctor's examination and, hence, it was relevant under Ark.R.Evid. 404(b). Defense counsel countered that this was an effort by the State to prove one crime by proof of another crime. The trial court concluded the discussion by denying Lindsey's motion to exclude testimony of B.L.'s trench foot condition.

On the issue of Lindsey's three proposed witnesses who would testify about B.L.'s prior allegations of sexual conduct, the trial court ruled that this testimony was prohibited by the Rape Shield Act and that Lindsey's request for an exception to the Act, orally made on the day of the trial, did not comply with the Act's stated procedures.

Trial commenced and, during the State's direct examination of Dr. Robin Goodman, a question was asked about whether the doctor immediately noticed something about B.L. and her younger sister when they were at the hospital. ¹ Defense counsel objected, and this exchange ensued at the bench:

Defense Counsel: Your Honor, at this point, I wish to object to this question. He's going to ask about the feet; and I don't think it is relevant at this point.

Prosecutor: Your Honor, it's been testified about seeing it that night. It's the same examination and it will all go into the mix; and I think the Jury is entitled to hear about that.

Defense Counsel: I don't think it has any probative value on the rape at all.

Prosecutor: It's the physical condition of the child and it goes to this man, absence of mistake, and the manner in which this man treated his children.

The Court: I think I've ruled on that on your motion in limine earlier. I'll stand by that ruling. I'll overrule your objection.

Dr. Goodman was then questioned about B.L.'s trench foot malady which the doctor described:

Basically in [B.L.'s] case both of her feet were very swollen. The skin, especially the skin under her toes and up near the balls of her feet were almost white because Prior to Dr. Goodman's testimony, Kent Tallent, a Pope-Yell County SCAN employee, was called by the State as a witness and testified. Defense counsel explored on cross-examination whether the State Department of Human Services had placed custody of B.L. with Lindsey because he was a fit parent. On redirect examination, the State continued to explore Lindsey's fitness as a parent as did defense counsel on recross-examination.

they were so puffy and swollen. The skin was starting to peel off from around the toes and on the balls of the feet. The surrounding skin was very red which would mean it was very inflamed; and it was very tender when you touched the skin around these areas.

Lindsey was found guilty by the jury and sentenced to two life terms in prison, to be served concurrently.

I. RULE 404(b)

Lindsey first contends that the trial court erred in allowing Dr. Goodman to testify about B.L.'s trench foot illness because it was irrelevant to the trial on the rape charges and prejudiced his case. Lindsey further urges that the error was particularly egregious because the trial court had severed the endangerment charge involving B.L.'s case of trench foot for trial. The State counters with several theories: (1) B.L.'s trench foot was part of the res gestae of the case; (2) under Ark.R.Evid. 404(b) proof of trench foot was relevant to the issue of Lindsey's intent or tendency to abuse B.L.; and (3) defense counsel opened the door on the issue of whether Lindsey was a fit parent, thereby allowing testimony of B.L.'s trench foot.

We begin with the observation that trial courts have broad discretion in deciding evidentiary issues, and their decisions are not reversed absent an abuse of discretion. Larimore v. State, 317 Ark. 111, 877 S.W.2d 570 (1994); Terry v. State, 309 Ark. 64, 826 S.W.2d 817 (1992); State v. Massery, 302 Ark. 447, 790 S.W.2d 175 (1990).

In the instant case, we are dealing with the admissibility of a wrong or act, apart from the specific rape offenses, which involved the neglect of B.L. to such an extent that she developed a severe case of trench foot. As a general proposition, proof of other crimes, wrongs, or acts is not admissible under our Rules of Evidence merely to prove the bad character of the defendant and to show that his actions conformed to that character. Ark.R.Evid. 404(b). Rule 404(b), however, does recognize exceptions to the general rule:

(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

This court has recognized that the list of exceptions to inadmissibility under Rule 404(b) is not an exclusive list but rather represents examples of the types of circumstances where evidence of other crimes or wrongs or acts would be relevant and admissible. Thrash v. State, 291 Ark. 575, 726 S.W.2d 283 (1987); White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986); see also Strong, McCormick on Evidence, § 190, p. 345 (4th Ed.1992).

We have further made it clear that if the introduction of testimony of other crimes, wrongs, or acts is "independently relevant to the main issue--relevant in the sense of tending to prove some material point rather than merely to prove that the defendant is a criminal--then evidence of that conduct may be admissible with a proper cautionary instruction by the court." White v. State, 290 Ark. 130, 140, 717 S.W.2d 784, 789 (1986), quoting Alford v. State, 223 Ark. 330, 334, 266 S.W.2d 804, 806 (1954); see also Price v. State, 268 Ark. 535, 597 S.W.2d 598 (1980). Thus, if the evidence of another crime, wrong, or act is relevant to show that the offense of which the appellant is accused actually occurred and is not introduced merely to prove bad character, it will not be excluded. Sullivan v. State, 289 Ark. 323, 711 S.W.2d 469 (1986). In White v. State, supra, we concluded that the trial court correctly ruled that the testimony regarding a prior beating of the victim, his wife,...