Abernathy v. State, 2012 Ark. 59

Abernathy filed a pro se Rule 37.1 postconviction petition challenging his 2009 rape convictions; he appeals an order denying relief.
Trial involved two young girls (10 and 11) who testified to digital and penile penetration and other acts by Abernathy at his Greenwood home; a third child testified about a prior Oklahoma incident not prosecuted.
On direct appeal, the Oklahoma incident testimony was challenged and the Arkansas Court of Appeals affirmed.
Rule 37.1 petition asserted multiple claims of ineffective assistance of counsel; the court appointed counsel; after a hearing the petition was denied in a written order.
The postconviction court found: (1) medical-evidence issue lacked prejudice; (2) opening remarks about testifying were tactical and not prejudicial; (3) failure to object to witness credibility testimony was not reviewable under Rule 37.1; (4) evidence concerning a prior false claim against the grandfather would not have been admissible; and (5) rape-shield rules barred admissibility of certain prior conduct evidence.
The Supreme Court of Arkansas affirmed, applying Strickland’s two-prong standard and reviewing the totality of the evidence; it held no reversible error on any challenged point.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Ineffectiveness for not consulting or calling a medical expert	Abernathy asserts prejudice from lack of medical testimony	State contends nurse consultation was adequate and defendant failed to prove prejudice	No reversible error; no prejudice shown
Opening statement implying defendant may not testify	Abernathy argues counsel’s comment misled jury	Counsel’s remarks were tactical and offset by later explanation and instructions	No reversible prejudice; remarks deemed non-prejudicial
Failure to object to witness-credibility question about Oklahoma victim	Abernathy claims ineffective failure to object affected outcome	Issue reviewable but no prejudice shown under Strickland; trial court’s analysis upheld	No prejudice established; overall impact not enough to undermine confidence
Failing to move to admit prior false-claim evidence against grandfather	Abernathy seeks admissibility to challenge crediblity/false-claims	Evidence would be inadmissible under rape-shield rules; no ruling would have aided defense	Evidence not admissible; no reversible error

Bond v. State, 374 Ark. 332 (Ark. 2008) (rape-shield exceptions; prior sexual-conduct evidence and credibility issues)
Williams v. State, 385 S.W.3d 228 (Ark. 2011) (two-prong Strickland standard; totality of the evidence approach)
Payton v. State, 2011 Ark. 217 (Ark. 2011) (clear error standard for postconviction findings)
Hale v. State, 385 S.W.3d 228 (Ark. 2011) (per curiam on Strickland analysis)
Mingbowpha v. State, 2011 Ark. 219 (Ark. 2011) (Rule 37.1 not a substitute for direct appeal; fault in preservation)
Polivka v. State, 362 S.W.3d 918 (Ark. 2010) (prejudice and Strickland analysis; objecting merits)
Woodall v. State, 376 S.W.3d 408 (Ark. 2011) (rape-shield evidence at issue; in camera determinations)
Montgomery v. State, 385 S.W.3d 189 (Ark. 2011) (merits of objections; prejudice required)
Britt v. State, 349 S.W.3d 290 (Ark. 2009) (prejudice required for ineffective assistance)
Sykes v. State, 2011 Ark. 412 (Ark. 2011) (trial tactics or strategy do not qualify for relief absent prejudice)
Hayes v. State, 383 S.W.3d 824 (Ark. 2011) (meritless objections and prejudice assessment)
Dunlap v. State, 2010 Ark. 111 (Ark. 2010) (per curiam on postconviction standards)
Flowers v. State, 370 S.W.3d 370 (Ark. 2010) (per curiam review of postconviction relief)
Miller v. State, 2011 Ark. 114 (Ark. 2011) (affidavits and prejudice showing)