McKinnon v. State, CR

• Decision Date: 23 September 1985
• Docket Number: No. CR,CR
• Parties: Russell Hillman McKINNON, Appellant, v. STATE of Arkansas, Appellee. 85-81.
• Court: Arkansas Supreme Court

Page 826

695 S.W.2d 826

287 Ark. 1

Russell Hillman McKINNON, Appellant, v. STATE of Arkansas, Appellee.

No. CR 85-81.

Supreme Court of Arkansas.

Sept. 23, 1985.

Tucker & Thrailkill by Patricia A. Tucker, Mena, for appellant.

Steve Clark, Atty. Gen. by Connie Griffin, Asst. Atty. Gen., Little Rock, for appellee.

GEORGE ROSE SMITH, Justice.

The appellant was convicted of rape and was sentenced as an habitual offender to imprisonment for 40 years. The sufficiency of the State's proof is not questioned, it having been shown that McKinnon had engaged by forcible compulsion in deviate sexual activity with a girl (who was eleven years old at the time). Two points for reversal are argued.

First, it is insisted that the prosecution should not have been allowed to cross-examine McKinnon about his past use of aliases. He admitted that he had used the name Steve Owens to conceal his whereabouts from his wife. He implied that he had used other aliases, by stating that if he had used a name close to Ralph Hillman, he didn't remember it.

Uniform Evidence Rule 608 provides that specific instances of misconduct, if probative of truthfulness or untruthfulness, may be inquired into on cross-examination. We have construed this to mean a lack of veracity rather than dishonesty in general. Rhodes v. State, 276 Ark. 203, 634 S.W.2d 107 (1982). The federal courts, in construing the similar federal rule, hold that cross-examination about the use of false names or identities is permissible to show a lack of truthfulness. United States v. Mansaw, 714 F.2d 785 (8th Cir.1983), cert. denied 464 U.S. 964, 104 S.Ct. 403, 434, 78 L.Ed.2d 343, United States v. Reid, 634 F.2d 469 (9th Cir.1980). cert. denied 454 U.S. 829, 102 S.Ct. 123, 70 L.Ed.2d 105 (1981). As was said in a case before the adoption of the federal rules of evidence: "If a man lie about his own name, might he not tell other lies?" Lyda v. United States, 321 F.2d 788 (9th Cir.1963). We agree with those decisions.

Second, the trial judge instructed the jury on rape (AMCI 1803), carnal abuse in the first degree (AMCI 1804), and sexual abuse in the first degree (AMCI 1808), which are all felonies. It is argued that the lesser included misdemeanors of carnal abuse in the third degree (AMCI 1806) and sexual misconduct (AMCI 1807) should also have been submitted, because there was evidence from which the jury might have found McKinnon guilty of either of those misdemeanors.

We might dispose of this argument by simply saying that no prejudice has been shown, because we have frequently held that when the jury convicts a defendant of a serious offense, here rape, rather than a less serious included offense, here first-degree carnal abuse, about which the jury was also instructed, the court's refusal to submit a third offense that is included but is even less serious than the other two cannot be prejudicial. Sherron v. State, 285 Ark. 8, 684 S.W.2d 247 (1985); Outler v. State, 154 Ark. 598, 243 S.W. 851 (1922); Jones v. State, 102 Ark. 195, 143 S.W. 907 (1912). This case falls within that principle.

On the merits, however, counsel is mistaken in arguing that the evidence would have justified the trial court in submitting to the jury the misdemeanors of third-degree carnal abuse and sexual misconduct. The court submitted the...