*1 the trial court’s we affirm Accordingly, policy. Nationwide recognize favoring Worthey. While and award decision court theory, different decided this case on a trial court right result. ruling if it reached the trial court’s sustains a Co., 843 S.W.2d Garman Bushong v. second conclusion, we Nationwide’s point mention
In
into
allowing
court erred
wherein it
the trial
for reversal
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of Federal
from the Code
report
evidence a
a motor vehicle under
a mini-bike was not
indicated that
Traffic and Motor Vehicle
meaning
the National
terms or
course,
has no
this evidentiary point
Of
Safety Act
1966.
an ambigu
Nationwide’s
contained
policy
relevance on whether
is a
ambiguous
question
an insurance contract
Whether
ity.
Tools, Inc.,
Thus,
the federal
Brown, J., concurs. of Arkansas WARREN STATE Bryant
William 862 S.W.2d CR 92-1053 of Arkansas Court Supreme 20, 1993 delivered Opinion September *2 Firm, Gibbons, P.A., David L. by: Gibbons Law appellant. Gen., Brent Asst. by: Standridge, J. Bryant, Att’y
Winston Gen., for Att’y appellee. William Bryant Corbin, Appellant, L. Justice.
Donald Warren, Circuit Court County a judgment Pope appeals tried a jury, him of murder. convicting capital Our to life in without parole. and sentenced guilty, prison found 1-2(a) (2). Ct. R. to Ark. Sup. jurisdiction pursuant *3 We find four for reversal.' raises appeal, appellant points On trial court’s in these and affirm the no error of points of conviction. judgment
I. Directed Verdict that trial court erred first is the point appeal Appellant’s the his for a directed verdict because penetra- motion denying instrument, a vagina by foreign tion the victim’s and rectum of of was basis for the underlying felony rape, which served as the of the victim’s death. contributing cause a the underlying felony the does support Ark. murder to capital pursuant of and conviction rape 1991) be reversed. Code 5-10-101 must (a)(2) (Supp. Ann. § Malak, Examiner, testified the Dr. Fahmy The Medical which included injuries died a combination of victim from elbows, head, face, nose, breast, injuries lips, right to the external skull, anus; to damage fracture of the vagina and trauma and brain; the and of bruising the underlying perforation, rupture a which resulted in and of the rectum vagina perforation loss and the rectum and of about connection between the vagina the pelvis. Additionally, one of which was found in pint blood in water. submerged there was evidence the victim drowning the terminal event Medical Examiner concluded injuries. death was Medical and the cause of multiple wounds could have been caused Examiner testified that all the such as a shovel handle. object, object the same a circular in the since the wounds Appellant argues penetrating made the same rectum of the victim were vagina probably and victim, and of the as wounds head abdomen weapon of the and the rectum of penetration vagina was for purpose committing murder and not for the of committing purpose rape. argues, since the of the and anus of penetration vagina the victim caused the death injuries contributed to victim, the is used of murder penetration support charge to charge and cannot also be used to of support rape.
In
of his
hold
argument,
cites cases
support
death,
ing an assault and
which caused
be
battery,
cannot
used
charge
as an
a
murder
underlying felony
support
capital
and
cannot be used as
burglary
underlying
an
felony
support
when
charge
murder
showed the murderer
capital
entered the
kill
dwelling solely
order to
those within
occupied
and not for a separate
which would
purpose
burglary
support
Sellers v.
charge.
II. Sexual Gratification argues trial court erred in Appellant denying his motion for a directed verdict because there was insufficient to underlying felony committed the finding that appellant
support to prove the state failed argues of rape. Specifically, was done for the and anus vagina of the victim’s penetration Ann. Ark. Code required by as gratification” of “sexual purpose argu- contends 5-14-103(a)(1) (1987). appellant’s state § for review because appellant was not preserved appellate ment in court. At the for his the trial objection did not the basis specify evidence, directed verdict moved for a close all the showing no of a rape.” Appellant “based the fact that there is failure was the state’s to prove stated in his motion that basis was was the trial court appellant This sufficient rape. apprise “Sexual rape. the state failed to elements arguing prove is element of gratification” rape. appellant’s an for argument preserved appeal. the state failed prove penetration for anus done of “sexual vagina purpose
the victim’s Code 5- the statute. Ark. Ann. gratification” under required § in 5-14-103(a)(1) provides pertinent part: Section 14-103(a)(1). if engages
A
commits
he
sexual
person
rape
another
or deviate sexual
person:
intercourse
forcible
By
compulsion[.]
is
as:
pertinent part
sexual
defined
activity”
“Deviate
involving:
act of sexual
any
gratification
anus
slight,
however
or
penetration,
foreign
member or
instrument
of one person by
body
manipulated by
person[.]
“Sexual
(1)(B) (1987).
gratifica-
Ann.
5-14-101
Code
§
statute,
in the
have construed the words
tion” is not defined
and commonly accepted
in accordance with their reasonable
does not reflect the which has never defined legislature, nor gratification the definition of deviate sexual changed to do many legislature so. The has despite opportunities had several to define sexual since opportunities Williams case decided and has not to do chosen so. Williams, Holbert, following McGalliard and had state sufficient to charge of and the support rape court did trial not err denying motion for a directed appellant’s verdict.
III. Statement Hearsay Appellant argues trial court erred by excluding hearsay testimony from the victim’s father that the victim had told him she was a married man. dating contends the Appellant informa- tion solicited by question falls under Ark. R. Evid. 804(b)(3) should have been allowed. Ark. R. Evid. 804(b)(3) provides in pertinent part:
Hearsay Exceptions. The following are excluded by the rule if hearsay the declarant is unavailable as a witness:
Statement A against interest. statement was at the time of its making so far contrary the declarant’s interest, or pecuniary or proprietary so far tended to subject him civil or criminal or liability to render invalid a claim against him or to make an object him hatred, ridicule, or that a disgrace, reasonable man in his position would not have made statement unless he believed it to be true. argues that even for woman to admit today she is
dating a married man to another to subject her to disgrace and ridicule and that a reasonable woman would not she say dating married man unless it was true. Appellant he was prejudiced by the trial court’s decision because he was unable to
198
murdered the victim
might have
the married man
argue she was
thought
pregnant.
him she
when she told
if it
ruling
court’s
was correct
We
the trial
uphold
1,
(b) Scope direct matter of the subject should be limited the affecting credibility and matters examination discretion, in the exercise of may, witness. court on direct into additional matters if permit inquiry examination. race, about his the race of
The state asked the victim’s father only victim, examina- during his his direct daughter, and family Therefore, direct of tion. outside scope question It was within the trial court’s examination as the state contends. it was error for not question, discretion to allow appellant’s if Additionally, to allow the question. trial court refuse witness, had wished to ask the appellant question appellant on and asked the question. could have called witness However, not to call witnesses in his defense. chose Photographs
IV. court As the trial his last on point appeal, victim’s over his admitting erred in photographs autopsy were to nine which objection. objected Appellant photographs are objection. admitted over his These photographs reproduced which were admitted along photographs appendix However, did object. argument to which he were refers to three photographs appellant only specifically will address only introduced over his objection. an argument for which appellant presents those photographs #58, #56, Exhibit State’s Exhibit are: State’s appeal. They State’s Exhibit #65. there sufficient claims were pictures to which he did not to show the cause of the object
autopsy
it
to which
victim’s death and was error
admit
he
pictures
*7
the
effect of those
objected
prejudicial
photographs
because
outweighed the
value. “The
of
question
prejudicial
probative
is a
to
effect versus
value
matter addressed
the
probative
of
trial
and on
we
not
judge,
discretion
the
do
reverse
appeal”
a
abuse of
v.
absent manifest
that discretion. Bennett
799,
115, 129,
denied,
(1988),
Ark.
759 S.W.2d
cert.
111 S.
The
Ct. 144
trial court admitted the photographs only
argument
during
after
counsel and review of the
photographs
trial court determined that the
were not
photographs
and were needed
Dr.
repetitious
by Malak to
his testi
explain
We have held that
if
mony.
“even
are
photographs
inflammatory
in the sense that
show
they
gore
jurors,
human
to the
repulsive
are admissible within the
of the
they
judge
discretion
trial
if they
understand the
help
jury
testimony.” Richmond
498, 503,
791 S.W.2d
694-95
In this
case
Richmond,
say
cannot
that the trial court abused its discretion.
Exhibit 56 is a of as I photograph received [the victim] her. Exactly as she I photographed the The body. shows she photograph wearing was a short-sleeve pull- shirt, over multi-colored. The shirt was above the breast area and shows it the foam from the nose. It coming is like cream, like, shaving if around you the —mushroom-like around the nose. This indicates that she was breathing air when she water. It placed shows also the dam- age the face damage right to and side of the —of —some the head. It also indicates —there is a number 3-1-6. This is the case number to indicate victim], this is Ione [the did the autopsy upon. #55,
As to State’s Exhibit Dr. Malak testified as follows: Exhibit No. 55 is front view of showing [the victim] her face also the number to indicate that this is [the] tear —t-e-a-r on the shows a The body. photograph
same bruise eye, bruise angle eye, about the eye left nose, damage well as shows also lips, earring and also shows the pearl side of the head right right side. referred to in State’s Exhibit around the victim’s nose foam Clearly State’s in State’s Exhibit has been removed #55. #56 Exhibit and shows that the victim was Dr. Malak used #56 the water. Thus it was helpful when she was breathing placed of State’s Exhibit repetitive and was not testimony doctor’s introduction of State’s Exhibits objected #55. are of State’s he contends they repetitive & because #58 #65 & are all essentially Exhibits photographs #64. #59 view, State’s Exhibit is a view are identical. they same #59 *8 been head before blood has cleaned of the side of the right been from nose. face and before the foam has cleaned the from the Exhibit to Dr. State’s shows According testimony, Malak’s #59 ear, the right trickling right to the blood toward damage temple, view of and around nose. State’s Exhibit is the same foam the #64 head, but and after slightly away the side of the from farther right According been from the face. the blood and foam have cleaned Malak, was after Dr. the side of the head right re-photographed “to the nature of the the and foam were cleaned show up blood are; wound; and injuries what the it shows exactly to demonstrate her right nose and to the and to cheek.” damage lips also the to the it this Dr. he was thought important Malak testified and of four earring showed one a total pearl pierced photograph is a right the ear. Exhibit the photograph holes in State’s #58 hair to and Dr. Malak shaved the show wound after temple there is circular right demonstrates that on the side wound side is a tear extension. Dr. Malak wound and the left there the direction testified that the nature of the wound “indicates down to the and coming right of—of the blow was from above and indicates a circular has object the circular nature of wound Exhibit is a close-up photograph been used.” State’s #65 the area has been cleaned and right wound to the after temple Malak, which, shows the nature according shaved to Dr. circular in the which had been thrust bone. object the rounded Thus, similar, are each although photographs during testimony was Dr. to show used Malak photograph and to the jury. victim’s wounds were helpful the nature of the to be allowing the trial court did not err photos admitted. the record reviewed 4-3(h), Ct. R. has been Sup.
Under made the trial concerning rulings against appellant by trial, and we find no error. For the reasons stated judge during above, we affirm. J., concurs.
Glaze, Dudley C.J., JJ., Newbern, dissent. Holt, Glaze, Justice, concurring. I join the majority opinion, Tom three, concur to its treatment of one and points particu- larly address third In this appellant’s argument. respect, appel- lant sought to ask the victim’s if the father victim had previously stated she had been man. dating such Appellant was relevant because victim testimony had told she was thought she states would pregnant. this have him, argue allowed him to when jury that the victim left she man, who, went to other being meet this married after told that she she her. thought pregnant, killed in the record Nothing supports such rank speculation. Certainly, sought statement sum, be elicited no offered foundation such an In argument. irrelevant, testimony and the trial court proffered wholly excluded it. properly Justice,
Robert H. Dudley, dissenting. The difficulty *9 this case is by charge. caused formal The charged State appellant with capital the victim while felony-murder by killing “in the or course of furtherance of’ crime of Ark. Code rape. Ann. (a)(1) 5-10-101 1991). The State did not (Supp. charge § appellant with murder result of capital as the death with causing premeditation and deliberation. Ark. Code Ann. 5-10- § 101(a) (4) 1991). the charge Because of filed the State had (Supp. to prove the underlying rape. There was insufficient felony and, evidence to that felony, I prove underlying accordingly, dissent from the affirmance of the conviction.
The State’s as set proof exactly out in the majority killed opinion. the victim her about the by beating head, breasts, abdomen, elbows, vagina, and anus with a blunt diameter, circular object one and one-half inches in something time the series murderous during a shovel handle. At some like with blows, the victim’s and anus vagina penetrated appellant were The to the head and abdomen wounds object. circular constituted The holds this majority opinion proof penetrating. I deviate cannot activity. evidence of rape by sufficient agree. is of sexual “any
Deviate sexual act . . . vagina of the or anus. a. . involving penetration... (1)(B) (1987) Ark. Code Ann. 5-14-101 instrument.” foreign § State added). prove It is that (emphasis gratification. of the or anus done for sexual vagina penetration 181, 813 State, 768.(1991). 306 Ark. S.W.2d McGalliard - been either direct or circumstantial could have Such Here, is there was no proof. proof wholly evidence. head, circumstantial, abdomen, is that blows to the anus blows. The penetrating were all vagina, penetrating inflicted might and anus have been for the blows gratification, likely of sexual but it is as just they purpose of murder of the blows were inflicted for the since all were purpose object. manner and with the same the same administered be may Circumstantial evidence sufficient constitute 236, 795 evidence. Hooks v. 303 Ark. S.W.2d substantial However, for circumstantial evidence constitute conviction, it must be consistent sufficient evidence to sustain defendant, and with other with inconsistent guilt 296, 808 S. conclusion. Gillie v. W.2d reasonable evidence of in this case in not circumstantial rape Here, it isjust with reasonable conclusion. as inconsistent blows penetrating administered for the likely of murder it that he administered them for the purpose gratification. conformity of sexual Accordingly, purpose law, I would hold that the State did not long-established our case evidence to convict offer sufficient circumstantial of’ “in the course of or furtherance killing another while of rape. crime
I dissent. C.J.,
Holt, dissent. joins in this *10 Justice, As the dissenting. majority Newbern, David states, one definition of as in this statutory charged opinion rape, case, is “deviate sexual with another ... person forcible “Deviate sexual has been defined activity” compulsion.” the General act of sexual Assembly “any or anus involving: slight, vagina however penetration, [t]he of one member or instrument by any body foreign person Thus, manipulated by person.” prove rape case, circumstances of this it was for the state to show necessary that Warren the victim as an act of “sexual penetrated gratification.” concludes, effect,
The Court’s
it is
opinion
unnecessary
that there be
on our
gratification,
sexual
decisions
relying
State,
in Williams v.
S.W.2d
(1989),
298 Ark.
State,
181, 813
McGalliard v.
(1991),
S.W.2d 768
Holbert v.
308 Ark.
In the Williams Williams sought relief post-conviction on the that his ground was ineffective. See Ark. R. Crim. lawyer 37. argued P. He his should lawyer have the suffi- challenged of the evidence ciency used to convict Williams of The rape. that, against evidence Williams was during an attack on a woman dated, he had once he had in her We placed fingers vagina. that the issue in an from a explained denial of appeal post- evidence, conviction relief is whether there is no matter how slight, to the conviction. We made support this statement: fact is plain that when other than persons, physicians
or other
reasons,
persons
legitimate medical
insert
something
anus,
in another
or
it is not
person’s
that the state
provide
that the act
was done for
gratification.
[Emphasis supplied.]
In
view we
my
were not
that there need
saying
be no proof
whatever, but that circumstantial evidence would suffice. As the
General
has made sexual
Assembly
gratification an element of
offense,
the definition of the
of course we cannot
it.
disregard State must
each and
prove
element of the
every
offense
beyond
reasonable doubt. To do otherwise would be a violation of the Due
Process Clause of the Fourteenth Amendment. See
Mullaney
York,
Wilbur,
I dissent. respectfully
Holt, C.J., this dissent. joins