Lukach v. State

• Decision Date: 29 June 1992
• Docket Number: No. CR,CR
• Parties: John Richard LUKACH, Jr., Appellant, v. STATE of Arkansas, Appellee. 91-279.
• Court: Arkansas Supreme Court

Page 852

835 S.W.2d 852

310 Ark. 119

John Richard LUKACH, Jr., Appellant, v. STATE of Arkansas, Appellee.

No. CR 91-279.

Supreme Court of Arkansas.

June 29, 1992.

[310 Ark. 121] Larry W. Horton, Malvern, for appellant.

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

CORBIN, Justice.

Appellant, John Richard Lukach, Jr., appeals from a judgment of the Hot Spring Circuit Court convicting him of the rapes of his two nieces. The informations charging appellant alleged the girls were aged nine and seven years at the time the rapes were committed during the month of August 1990. After a jury trial on August 14, 1991, appellant was sentenced to two life terms in the Arkansas Department of Correction. He raises five arguments on appeal. All five arguments are without merit. We affirm.

SUFFICIENCY OF THE EVIDENCE

The last of the five arguments raised in appellant's brief is that the trial court erred in denying his motion for directed verdict based on insufficient evidence. We treat a challenge to the denial of a motion for directed verdict as a challenge to the sufficiency of the evidence. Walker v. State, 308 Ark. 498, 825 S.W.2d 822 (1992). Based on the holding in Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), that the double jeopardy clause precludes a second trial when a conviction in a prior trial was reversed solely for lack of evidence, we have determined that preservation of an appellant's right to freedom from double jeopardy requires a review of the sufficiency of the evidence prior to a review of trial errors. Smith v. State, 306 Ark. 483, 815 S.W.2d 922 (1991); Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). Therefore, we consider appellant's last assignment of error, the challenge to the sufficiency of the evidence, prior to considering his other assignments of trial error.

The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict; substantial evidence must be forceful enough to compel a conclusion one way or the other beyond suspicion and conjecture. Gillie v. State, 305 Ark. 296, 808 S.W.2d 320 (1991). On review, it is only necessary for us to ascertain that evidence which is most favorable to appellee and, if there is substantial evidence to support the verdict, we affirm. Id.

As is required, we recite the evidence in the light most favorable to appellee. The nine-year-old victim testified that her Uncle Johnny hurt her and her sister. She stated that appellant entered her bedroom late at night without any clothes on Dr. Greg Loyd, a family practitioner in Malvern, Arkansas, testified that he conducted a physical examination on the nine-year-old victim in August 1990, the time the information alleged the crime was committed and the time that appellant was living in the same home as the two victims. Dr. Loyd determined that the nine-year-old girl had a perforated hymen which was not intact. Although he could not determine the cause of the three to four millimeter tear in her hymen, he testified that a penis could have caused it.

                and put himself into her.  When asked to explain what she meant by that testimony, she stated that "[h]e put his private parts into my private parts."   When asked to explain further, she inquired whether she had "to say the words," and after being instructed to do so, she stated, "[h]e put his dick in my pussy."   She testified that this happened several times in the summer when she lived with her granny, appellant, and Darrell Pilcher.  She also testified that one night she woke up to find appellant with his hands in her panties rubbing up and down;  she testified that appellant put his finger inside of her
                

Darrell Pilcher testified that in 1990 he lived in the same house with appellant, the two victims, and their grandmother. He testified that one night the nine-year-old victim came running to him when he was asleep on the couch and told him appellant had touched her. Pilcher went into her bedroom and found appellant lying in her bed.

The seven-year-old victim testified that when she lived in her granny's house with Uncle Johnny, he hurt her more than once. She explained that "one night he took his pants off and he put some grease on me." She stated that he put the grease on her private between her legs and that he put his private in her private.

We have held many times that the uncorroborated testimony of a victim that the defendant committed the rape is sufficient to uphold that defendant's conviction for rape. See e.g., Curtis v. State, 301 Ark. 208, 783 S.W.2d 47 (1990). Such a holding is based in part on the fact that determining the credibility of the witnesses is a determination that lies within the province of the jury. Urquhart v. State, 273 Ark. 486, 621 S.W.2d 218 (1981). It is the jury's decision whether or not to believe the victim and no corroboration is necessary. Id.

Both victims testified that appellant committed the rapes. The jury judged the credibility of the victims' testimonies and returned a guilty verdict. The evidence is substantial and therefore sufficient to support the verdict.

MOTION TO SEVER

Appellant alleges the trial court erred in denying his numerous motions, made both prior to trial and during trial, to sever the cases against both victims. Appellant relies on A.R.Cr.P. Rule 22.2(a) and argues he was entitled to a severance as the two cases were joined solely because they were of the same or similar character and were not part of a single scheme or plan. He also relies on A.R.Cr.P. Rule 22.2(b)(ii) and argues he was denied a fair determination of his guilt or innocence of each offense.

Granting or refusing a severance is a matter within the discretion of the trial court. Fisher v. State, 290 Ark. 490, 720 S.W.2d 900 (1986). We have held that where the facts necessary to prove the offenses would almost all be required in each trial if a severance were granted and the evidence would be used in both trials to prove a plan, scheme, motive or state of mind, there was no abuse of discretion in refusing to sever the cases. Henry v. State, 278 Ark. 478, 647 S.W.2d 419, cert. denied, 464 U.S. 835, 104 S.Ct. 121, 78 L.Ed.2d 119 (1983). We have also held that evidence of sexual abuse with children other than the victim is admissible to show motive, intent, or plan pursuant to A.R.E. Rule 404(b). Morgan v. State, 308 Ark. 627, 826 S.W.2d 271 (1992). Thus, as the facts necessary to prove these offenses would be required in both trials and as each of the girls' testimonies would be admissible in the trial of the other's rape to show appellant's intent, motive, or common

scheme or plan, the trial court did not abuse its discretion in refusing to sever the two cases.

MISTRIAL OR CONTINUANCE--YOUNGER VICTIM

With respect to the rape of the seven-year-old victim, appellant argues the trial court erred in denying his motion for mistrial or, in the alternative, motion for continuance based on the state's failure to comply with discovery. The evidence that appellant alleges was not disclosed to him is a medical examination of the younger victim and a taped interview of her with a social worker. Both the interview and medical examination were conducted in Atlanta, Georgia, in August of 1990, when the younger victim went there to live with her paternal grandmother, Alice Roden.

Appellant asserts that although he made a discovery request of all scientific evidence, he first learned this evidence existed when the seven-year-old victim revealed its existence on cross-examination. When asked if she had ever been examined by a doctor for what she alleged her Uncle Johnny did to her, she responded "[y]es, sir.... When I was in Atlanta." At the conclusion of the girl's testimony, appellant moved for a mistrial, severance, and continuance on the basis that the medical evidence could exculpate him. Ms. Roden then testified in an in camera hearing that the seven-year-old girl had been examined by a doctor in Atlanta at the request of a Fulton County, Georgia, social worker because of allegations of sexual abuse against "her younger son." Ms. Roden also testified that the seven-year-old girl had been interviewed on video tape by a social worker in Atlanta and that she thought the taped interview was sent to a social worker in Arkansas.

Appellant argues on appeal that knowledge of the existence of both pieces of evidence, the medical examination and the taped interview, were imputed to the state. Thus, when the state did not supply this evidence to appellant pursuant to his discovery requests, the state did not comply with the requirements of A.R.Cr.P. Rule 17.3(a) to use due diligence and good faith to obtain and supply appellant with this evidence. Therefore, argues appellant, he was entitled to a mistrial, or at the very least a continuance in order to obtain the evidence in question.

A.R.Cr.P. Rule 17.3 states as follows:

(a) The prosecuting attorney shall use diligent, good faith efforts to obtain material in the possession of other governmental personnel which would be discoverable if in the possession or control of the prosecuting attorney, upon timely request and designation of material or information by defense counsel.

(b) If the prosecuting attorney's efforts are unsuccessful, the court shall issue suitable subpoenas or orders to cause such material to be made available to defense counsel where the material or other governmental personnel are subject to the jurisdiction of the court.

A review of the transcript reveals that the prosecutor had no knowledge of this evidence prior to the time appellant learned of it. However, appellant relies on Dumond v. State, 290 Ark. 595, 721 S.W.2d 663 (1986), Lewis v. State, 286 Ark. 372, 691 S.W.2d 864 (1985), and Dever v. State, 14 Ark.App. 107, 685 S.W.2d 518 (1985), for the argument that knowledge of this evidence is imputed to the state. The cases relied on by appellant involved evidence...