Gatlin v. State
895 S.W.2d 526
Ark.
1995
Check Treatment

*1 its upon for reversal depend other points Because Southern’s need not reach those 60(b) argument, prevailing above, Therefore, we affirm the reasons arguments. additional the trial court’s decision. of Arkansas GATLIN v. STATE Wayne

Robert CR 94-1187 Court of

Supreme March delivered Opinion *2 Hardin, Kelly Joe for appellant. Gen., Moll, Asst. Bryant, by: Sandy Att’y Att’y

Winston Gen., appellee. Gatlin, Wayne L. Robert Appellant, Justice. Corbin, Donald Circuit Court con- an order the Hot Spring County

appeals and sen- nine-year-old daughter him of of his victing *3 of Cor- forty years him to in the Arkansas tencing Department of the judgment. rection. raises two reversal Appellant points no error and We find affirm.

First, denying trial erred in his court appellant argues for directed moved for a directed timely motion verdict. Appellant that the had not specific produced verdict on state ground acknowledges evidence of On any penetration. appeal, appellant body, victim but testified he his inside put penis for the determine that this is insufficient evidence to argues jury medical evi- argues occurred. there was no penetration Appellant occurred, dence indicate of the victim presented penetration victim, witness, there testimony by any nor was save merit occurred. is without penetration argument wholly contrary the law. patently the denial of a motion for directed appeal from

verdict, we view the in the light evidence most favorable if there sought whom the verdict is and affirm party against State, evidence v. 315 substantial verdict. Clark support 602, evidence Ark. 870 S.W.2d 372 Substantial evidence is one way of a force and character to a conclusion compel sufficient another, or con forcing beyond or the mind to pass suspicion Id. jecture. victim’s tes consistently

This court has held that a convic timony may constitute substantial to sustain See, State, 539, e.g., tion Franklin v. Ark. 825 S.W.2d of 308 rape. State, 180, (1992); v. Prater 307 Ark. 820 S.W.2d 429 is a child. This is true even when the victim Caldwell rape State, 243, (1995) Winfrey (citing 319 Ark. 342, (1987)). More particularly, this court has victim which shows stated that the Clark, 602, penetration enough for conviction. addition, S.W.2d 372. this court held that the consistently has corroborated, Winfrey, need not be rape 391, 738 S.W.2d nor is scientific evidence required. White v. Code

Section 5-14-103 of Annotated of 1987 “(a) A defines as follows: commits if he person rape engages in sexual intercourse or deviate sexual with activity another per- (3) (14) than ... Who is fourteen years age.” less Sec- son[.] 5-14-101(9) tion “sexual meaning defines intercourse” as “pen- etration, however of a aby slight, vagina penis[.]” Section 5-14-101(1) defines “deviate sexual activity” involving, as inter alia, however penetration, mouth slight, anus or “[t]he one person by of another penis person[.]” case,

In the present there is substantial evidence that appel- lant penetrated vagina or anus or both with his penis. Indeed, brief, appellant acknowledges his the nine-year-old father, victim testified that her put his inside her appellant, penis rabbit, After body. penis of a identifying stuffed stated that appellant had his inside her placed penis and moved up down. victim testified that appellant put penis *4 both and inside outside her that when he body, on put penis his the inside her hurt her body it and made cry, and that appel- lant told her not to tell anybody. She stated further that appel- lant his in bottom” “hurt “put penis my and me real bad.” She times, stated in “touched her a bad way” lot of some- bedroom, bedroom, times in her brother’s or in living room. the child foregoing testimony victim is sub sufficient, alone,

stantial evidence of It is penetration. standing corroboration, absent any sustain appellant’s conviction for (1993), rape. Fox v. cert. denied, 114 S. Ct. 1316 The state out correctly points corroboration of the victim’s exists this case. it, however, We need not discuss as corroboration is not required. a verdict for appel- The trial court did not err in to direct refusing lant. reversal, the trial argues

As his second point appellant grand- of the victim’s court erred in admitting hearsay mother, and of the Wanda Jean Lightner, mother appellant’s Light- David step-grandfather appellant’s stepfather, that, after the the morning ner. The both testified Lightners where out of the bunk Lightners climbing top witnessed appellant them, while the victim told lay appellant sleeping, in her pee pee.” present, appellant “put pee pee Lightners responded both testified that appellant “Mother, what are you doing statement do know by saying, you after rul- to me?” The trial court admitted the foregoing in front of ing imcamera that that was said anything was ádmissible. were inad- contends the testimonies appeal, appellant were

missible The state that the testimonies responds Rule to A.R.E. admissible as an 801(d)(2)(ii). admission adoptive pursuant law allows that Arkansas Appellant acknowledges admission, Barnhart, an Statements Made adoptive citing Ralph Court, (1960-61), but contends the Out 15 Ark. L. Rev. 125 rule in Arkansas that trial court’s is based on a ruling peculiar “does not exist in books.” 801(d)(2)(h) Evidence of the Arkansas Rules of that a if it offered against

states statement is not and is a statement of which the has manifested his party party or belief in truth. This court has stated adoption previously that, before an admission pur 801(d)(2)(h), find that sufficient suant to Rule a trial court must rea foundational can jury facts have been introducéd so infer that the heard and understood sonably party-opponent circumstances, statement, that, under the the statement was that, such if the did not believe party-opponent true, Morris normally respond. would party-opponent (1990). Once a foundation laid, whether party- has been is for the to determine jury in the statement. Id. or opponent adopted acquiesced *5 case, indicates appellant the the present was made. was when the present victim’s out-of-court

125 However, point. the trial at that ending analysis court erred admission, trial court Before as an admitting have been intro- must find foundational facts requisite Morris, 532, Here, the duced. 302 288. state Ark. 792 S.W.2d failed to foundational produce showing appellant’s facts statement manifested his response acquiescence view, “Mother, thereto. In our know what are you doing do you to me?” does not indicate the victim’s state- appellant adopted Therefore, ment as his own or its truth. believed in trial erred in court admitting Lightners’ hearsay testimonies. the state error in

Alternatively, contends that the was not and harm therefore prejudicial less. court does not when prejudice alleged. This error presume State, 563, denied, (1984), Berna v. 670 S.W.2d 434 cert. Rather, (1985). 470 U.S. 1085 burden to produce is appellant’s a record that demonstrates Id. court has prejudice occurred. held that an repeatedly prejudice must show because appellant State, 548, do not reverse for harmless error. v. Ark. Wilson Lightners’ Appellant objected to basis of he makes a appeal, general citation 802 of Rules of and Evidence contends tes were clearly hearsay only timonies and used to bolster rein error, force the victim’s even statements. Trial the Con involving Clause, frontation to a subject analysis. harmless error Watson State, 603, (1994) 887 S.W.2d 518 Delaware (citing Arsdall, State, (1986) v. Van 475 U.S. 673 Winfrey 342, However, (1987)). Ark. 738 S.W.2d 391 did not appellant raise any objection, constitutional either below or on appeal, has therefore waived any argument. constitutional Killcrease v. Thus, for purposes of our harmless analysis, error we need not be concerned with the constitutional standard of beyond harmlessness a reasonable doubt. Greene v.

We conclude error in this case is harmless. As determined, we have her out-of-court statement that father “put pee pee pee pee,” hearsay erroneously However, admitted at trial. on direct examina stated tion had raped her numerous times prior *6 Thus, testimonies. Lightners’ hearsay that the incident generated inde- by evidenced appellant, the victim’s own challenged Lightners, of her hearsay pendent the harmless rendering thereby provided competent State, 314 of Cloird v. hearsay. caused admission the error by Moreover, emphasize declarant, victim, trial and the the testified at hearsay although forego to chose subject by appellant, to cross-examination the the victim made to issue of statements pursue his opportunity hearsay of inherent in danger unreliability the The Lightners. to the the to by cross-examine opportunity alleviated court has 497 U.S. 805 Wright, declarant. Idaho admis- not violated the by held that the Confrontation Clause is made when hearsay by statements declarant sion of additional at trial to subject that declarant testifies and is cross-examination. Thus, Watson ren- declarant cross-examination also the of the for availability hearsay. error caused the admission of the by dered harmless challenged the substance of the summary, error the victim’s direct examina- during were admitted without did not take victim’s avail- advantage tion and hearsay on the statements. ability Appel- cross-examination error failed to demonstrate and the prejudice lant has therefore was harmless. in The affirmed. of conviction is judgment JJ„ concur. Roaf, Newbern Justice, The concurring. majority opinion Newbern, David I write to about the my is correct reservations express point. harmless discussion admission and error. Trial Court’s recognizes The the error majority opinion in the presence conclusion that statement uttered It also that an recognize adop- accused not seems tive admission occur the silence the accused may through have It face of to which he should responded. an accusation shifts, however, conclu- then to base its ultimate seems rather than on the statement the accused made to his mother sion “dumbfounded,” silence, Mr. Lightner which described accusation of his the victim. hearing daughter, after emphasis here and failure should silence to respond accusation. statement, that a such as majority opinion out points uttered evidence of the silence daughter, and accused’s *7 in the face of become show- upon statement admissible ing “foundational facts.” Morris v. by decision to made the Trial Court

is whether the statement in a sort to which question response would be expected if it were not true. made,

When the hearsay before objection question was the Trial Court whether Mr. and Mrs. was statements Lightner’s received, could be not for the truth of the matter asserted by (their declarant but as foundation granddaughter), permit- ting testimony that accused did not to it. respond of the ruling Trial Court the evidence correct, although he reason. The gave the statement made wrong child was without doubt of the sort which the accused should have made if he considered it untrue. response His silence constituted an I adoptive admission. would hold the evi- dence admissible on that basis.

Mr. Gatlin was on trial for a offense particular which his statement daughter’s and his silence the face of it were relevant. I would not hold it was harmless error admit those items evidence on daughter’s the basis that similar things had occurred on other occasions. Had admis- sion of the daughter’s statement and evidence of Mr. Gatlin’s error, silence been not been would have harmless. Roaf, J., joins this concurrence.