Smallwood v. State, CR
| Decision Date | 09 December 1996 |
| Docket Number | No. CR,CR |
| Citation | 935 S.W.2d 530,326 Ark. 813 |
| Parties | Xavier SMALLWOOD, Appellant, v. STATE of Arkansas, Appellee. 96-575. |
| Court | Arkansas Supreme Court |
Scott S. Freydl, Hope, for Appellant.
Sandy Moll, Asst. Atty. General, Little Rock, for Appellee.
Xavier Smallwood was convicted by a jury of rape and burglary which were committed when he was fifteen years of age. He was sentenced to forty years' imprisonment for the rape, and ten years' imprisonment for the burglary. On appeal, Smallwood alleges that there is insufficient evidence to support his convictions, that the State should have been prohibited from questioning him about prior misconduct, and that he should have been sentenced to concurrent, not consecutive, terms. We affirm.
On the morning of December 15, 1994, the victim returned home from working the night shift. As she entered the bedroom, Smallwood jumped out from behind the door, placed a butcher knife to her throat, and demanded that she remove her clothing. Smallwood threatened to kill her when she refused. The woman agreed to remover her clothing if she could first use the bathroom. While in the bathroom, she attempted to call her parents on a cordless telephone, but apparently Smallwood had cut the telephone line. Smallwood forced the woman into the bedroom, and again demanded that she remove her clothing. The victim begged Smallwood to use a condom so that she would not get AIDS or become pregnant. Smallwood used a condom provided by the victim and raped her twice.
After the rape, Smallwood told the victim that he had tried to talk to her before but she would not speak to him, and that he was already in trouble for a prior burglary. Smallwood showed the victim where he had broken a porch window and cut a screen to obtain entry into her home. As he left the victim's home, Smallwood threatened to rape her again and kill her family if she told anyone about the incident. Smallwood left on a bicycle and took the butcher knife with him.
The victim immediately called her family, and her mother notified the police. The victim described Smallwood and the clothes he was wearing to the police. The victim also described the knife taken by Smallwood as her rusty butcher knife with "Old Hickory" written on the handle.
The police suspected Smallwood from the victim's description, and located him within a few hours, hiding in the woods behind his home and wearing the clothing described by the victim. In addition, the police found a butcher knife inscribed with the words "Old Hickory" lying on the table inside his house. At the time of his arrest, Smallwood told officers that he had consensual sex with the victim. The victim identified Smallwood as her attacker during a photo line-up and at trial.
Smallwood testified at trial and admitted to having sexual relations with the victim on December 15, but claimed that the two had been engaged in a consensual sexual relationship for about two years. Smallwood further alleged that the victim brought charges against him only because he told her that she was getting fat and that he intended to end their relationship. Finally, Smallwood claimed that the knife belonged to his mother and that he last saw it the day before the incident.
At trial, defense witnesses testified that Smallwood was a cousin of the victim's husband, from whom she was separated, and that Smallwood and the victim knew each other. Smallwood's mother testified that she had gone to school with the victim, and that the victim knew Smallwood when he was a baby, but that Smallwood had moved to Illinois when he was about ten years old. However, the victim denied having a consensual sexual relationship with Smallwood and testified that she had never seen him prior to December 15.
The jury found Smallwood guilty of both crimes and sentenced him to ten years imprisonment for burglary and forty years for rape. The judge denied Smallwood's request for concurrent terms, and ordered the sentences to be serve consecutively.
Smallwood first argues that there is insufficient evidence to support his convictions for rape and burglary. At the close of the State's case, Smallwood said: "Judge, may I let the record reflect that I move for a directed verdict at the end of the State's case?" The court denied the motion. At the close of all evidence, Smallwood renewed his motion by stating: "Will the Court let the record reflect that my motion is renewed?" Again, the motion was denied.
A motion for directed verdict is treated as a challenge to the sufficiency of the evidence and requires the movant to apprise the trial court of the specific basis on which the motion is made. Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995). This court has said on numerous occasions that since the adoption of the Ark. R.Crim. P. 36.21(b), a general motion is insufficient to preserve a defendant's argument that the statutory elements of the crime were not proven. Id. Because he failed to properly preserve the issue, Smallwood is procedurally barred from challenging the sufficiency of the evidence on appeal. Whitney v. State, 326 Ark. 206, 930 S.W.2d 343 (1996).
Smallwood next argues that the trial judge erred by allowing into evidence testimony regarding his burglary conviction, involvement with drugs, theft of automobiles, propensity towards violence, and participation in gang activity.
It is well-settled under Arkansas law, that when a criminal defendant takes the stand in his own behalf his credibility becomes an issue, and the State may, under certain circumstances, test that credibility by asking the defendant about prior misconduct and criminal activity. Gustafson v. State, 267 Ark. 278, 590 S.W.2d 853 (1979). Pursuant to Ark. R. Evid. 608(b), the State may ask a criminal defendant about prior acts of misconduct, regardless of whether such conduct is criminal, if the act is clearly probative of the defendant's character for truthfulness. Ark. R. Evid 608(b); Laughlin v. State, 316 Ark. 489, 872 S.W.2d 848 (1994). In addition, the State may ask the defendant about any prior felony convictions, regardless of whether the crime involves an element of untruthfulness. Ark. R. Evid. 609.
In order to properly preserve these issues for appeal, the defendant must timely object at the first opportunity. Hill v. State, 285 Ark. 77, 685 S.W.2d 495 (1985). In addition, the defendant must renew his objection each time he is questioned about the matter. Walker v. State, 301 Ark. 218, 783 S.W.2d 44 (1990). Finally, the defendant may not object if he has "opened the door" by discussing the matter during direct examination. Larimore v. State, 317 Ark. 111, 877 S.W.2d 570 (1994); Dillon v. State, 317 Ark. 384, 877 S.W.2d 915 (1994).
During cross-examination, the State questioned Smallwood extensively about his burglary conviction, and an incident in which he threatened to shoot his mother, without objection by defense counsel. Hence, Smallwood's failure to timely object is a waiver of these issues on appeal. Hill, supra. When the State then began to ask Smallwood about his prior involvement in drug sales, the following exchanged occurred:
The trial court overruled the objection. The defense counsel waited until after Smallwood had answered, and the State asked the question a second time before he objected. By failing to object at the first opportunity, Smallwood waived his right to contest on appeal the questions regarding his prior drug sales. Hill, supra.
Furthermore, Smallwood later admitted during cross-examination to membership in a gang that was involved in selling drugs and stealing cars while he was in Illinois, and to making a statement that he would shoot anyone who threatened him. Once again, his counsel's failure to object to the questions precludes review of the issues on appeal. Hill, supra.
Moreover, on direct examination Smallwood opened the door to any questions about his propensity towards violence during the following exchange:
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