{ "id": 6138048, "name": "Paul RANKIN v. STATE OF Arkansas", "name_abbreviation": "Rankin v. State", "decision_date": "1997-04-23", "docket_number": "CA CR 94-278", "first_page": "125", "last_page": "136", "citations": [ { "type": "official", "cite": "57 Ark. App. 125" }, { "type": "parallel", "cite": "942 S.W.2d 867" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "321 Ark. 167", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1449530 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/321/0167-01" ] }, { "cite": "Ark. Code Ann. \u00a7 16-63-402", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "321 Ark. 354", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1449580 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/321/0354-01" ] }, { "cite": "320 Ark. 142", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1451128 ], "weight": 3, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/320/0142-01" ] }, { "cite": "311 Ark. 579", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1896959 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/311/0579-01" ] }, { "cite": "323 Ark. 301", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1445756 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/323/0301-01" ] }, { "cite": "322 Ark. 167", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1447580 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/322/0167-01" ] }, { "cite": "875 S.W.2d 814", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1907745, 1910447 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/316/0753-01", "/ark/315/0658-01" ] }, { "cite": "316 Ark. 753", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1907745 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/316/0753-01" ] }, { "cite": "316 Ark. 731", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1907764 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/316/0731-01" ] }, { "cite": "459 U.S. 91", "category": "reporters:federal", "reporter": "U.S.", "year": 1990, "opinion_index": 0 }, { "cite": "319 Ark. 335", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1453563 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/319/0335-01" ] }, { "cite": "325 Ark. 155", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 369202 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/325/0155-01" ] }, { "cite": "308 Ark. 154", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1904367 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/308/0154-01" ] }, { "cite": "863 S.W.2d 276", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1912743 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/314/0361-01" ] }, { "cite": "324 Ark. 361", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 9160402 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/324/0361-01" ] }, { "cite": "48 Ark. App. 175", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140074 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark-app/48/0175-01" ] }, { "cite": "918 S.W.2d 721", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 6136707, 9158717 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/ark-app/53/0036-01", "/ark/324/0119-01" ] }, { "cite": "53 Ark. App. 36", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136707 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/ark-app/53/0036-01" ] }, { "cite": "318 Ark. 813", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1455904 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/318/0813-01" ] }, { "cite": "322 Ark. 553", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1447538 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/322/0553-01" ] }, { "cite": "325 Ark. 278", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 369160 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/325/0278-01" ] } ], "analysis": { "cardinality": 954, "char_count": 19327, "ocr_confidence": 0.753, "pagerank": { "raw": 3.490240470882002e-07, "percentile": 0.8822257591079634 }, "sha256": "c2d042b4deafab2710db8f12a013c88b0deeed0e1d951269450048fa8913860f", "simhash": "1:8fee4890c1e889f4", "word_count": 3282 }, "last_updated": "2023-07-14T16:10:06.660800+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Pittman and Crabtree, JJ., agree." ], "parties": [ "Paul RANKIN v. STATE OF Arkansas" ], "opinions": [ { "text": "Judith Rogers, Judge.\nThe appellant, Paul Rankin, was charged by information with the offense of first-degree murder in connection with the shooting death of Charlotte Geiger. After a jury trial, appellant was found guilty of second-degree murder and was sentenced to a term of twenty years in prison. Appellant raises four issues for reversal of his conviction. He argues that: (1) the trial court erred in denying his motion for a directed verdict; (2) the trial court erred in denying his motion to suppress evidence seized in a warrantless search; (3) the trial court erred in allowing irrelevant and prejudicial testimony; and (4) the trial court erred in denying appellant\u2019s motion for a recess to allow an expert witness to testify. We find merit in the last issue raised. Consequently, we reverse and remand for a new trial.\nCharlotte Geiger, the victim, owned a duplex at 701 North 8th Street in Fort Smith. She lived in one apartment while the other was occupied by James Stevenson. Ms. Geiger also owned a residence at 715 North \u201cG\u201d Street, which was located behind the duplex. It was said that these homes were in a bad neighborhood and that Ms. Geiger was always careful about locking her door.\nThere was testimony that on February 1, 1993, appellant, Mr. Stevenson, and Charles Storey were helping Ms. Geiger make repairs to the \u201cG\u201d Street residence. Mr. Stevenson testified that appellant was intoxicated and that appellant and Ms. Geiger had argued about the way appellant was doing the work. When they finished late in the afternoon, Ms. Geiger went inside her home and Mr. Stevenson and appellant remained outside for a brief time talking. Mr. Stevenson later visited a friend at the bus station and returned to his apartment. At around 6:30, Mr. Stevenson left again to get a friend to come help him with repairs in his apartment. He said that he heard the sound of moaning coming from Ms. Geiger\u2019s apartment when he left. Shortly after Mr. Stevenson and his friend returned, they heard a knock at the door. Mr. Stevenson opened the door to find Ms. Geiger, covered in blood, standing in the hallway separating their apartments. She was taken to the hospital where it was learned that she had been shot twice in the face. She died three days later without identifying her assailant. It was said that her wounds had been caused by .25 caliber bullets.\nThe investigating officers conducted a warrantless search of Ms. Geiger\u2019s apartment after speaking with witnesses at the hospital. During the search, they discovered a large amount of blood on the bed, as well as on the floor, a telephone, and another piece of furniture. There were two shell casings at the foot of the bed and an empty holster was found sitting on a coffee table. There was testimony that appellant had acquired the holster with an X-Cam .25 caliber handgun in a trade with a friend for stereo equipment. There was also testimony that appellant had pawned the holster and gun on November 21, 1992, and that he had retrieved those items from the pawn shop the day of the murder. Despite extensive efforts to locate this weapon, the police were unable to find it.\nAppellant was arrested on the morning of February 2, 1993, as he was walking toward the back door of the \u201cG\u201d Street residence. There were scratches and lacerations on his forehead and hands, and there appeared to be blood on his clothing. In an interview with the police, appellant told the officers that on the day of the murder he had gone to sleep in his bed after working on the house and that he had slept all night. He recalled that he had argued with Ms. Geiger, but he could not remember what had happened in the argument. When asked about his pistol, appellant gave differing accounts of its whereabouts. First, he said that it had been stolen, but he also told them that he had last seen it on a coffee table in Ms. Geiger\u2019s apartment the previous day. The officers testified that throughout the interview appellant responded to questioning by saying that he had either blacked out and could not remember, or that he had no answers to their questions. For instance, when asked if he had shot Ms. Geiger, appellant responded, \u201cI have no answer for that.\u201d When asked to deny that he had shot her, appellant replied, \u201cI have no answer for that as well.\u201d\nAppellant first contends that the trial court erred in denying his motion for a directed verdict. A motion for a directed verdict is a challenge to the sufficiency of the evidence. Bradford v. State, 325 Ark. 278, 927 S.W.2d 329 (1996). In order to preserve this issue on appeal, a defendant must move for a directed verdict at the conclusion of the evidence presented by the prosecution and again at the close of the case; otherwise, any question pertaining to the sufficiency of the evidence to support a jury\u2019s verdict is waived. Ark. R. Crim. P. 33.1. Here, appellant failed to make the required motion after the State had presented rebuttal testimony. Therefore, this issue is not preserved for appeal, and we do not consider it. Heard v. State, 322 Ark. 553, 910 S.W.2d 663 (1995); Christian v. State, 318 Ark. 813, 889 S.W.2d 717 (1994).\nAs his second point on appeal, appellant argues that the trial court erred in denying his motion to suppress evidence seized in the search of Ms. Geiger\u2019s apartment. The State contends, as was argued below, that appellant lacks standing to protest the search of Ms. Geiger\u2019s home. In reviewing a trial court\u2019s denial of a motion to suppress evidence, we make an independent determination based on the totality of the circumstances and reverse the trial court\u2019s ruling only if it is clearly against the preponderance of the evidence. Phillips v. State, 53 Ark. App. 36, 918 S.W.2d 721 (1996).\nAt the suppression hearing, evidence was introduced revealing that Ms. Geiger was the sole owner of the duplex at 701 North 8th Street. It was also disclosed that the relationship between appellant and Ms. Geiger was that of \u201cboyfriend and girlfriend\u201d and that appellant had stayed at Ms. Geiger\u2019s apartment. Prescriptions and medicine bottles bearing appellant\u2019s name were found in the apartment. On the rights form appellant executed before being interviewed by the police, he recorded his address as 701 North 8th Street.\nEvidence was also admitted showing that appellant had listed his address as 715 North \u201cG\u201d Street on transaction records that appellant had filled out and signed at a pawn shop on November 21, 1992, and February 1, 1993. Also, a computer printout from the pawn shop was introduced showing appellant\u2019s pawning activity over a three-month period. The printout shows appellant\u2019s address as 715 North \u201cG\u201d Street. The trial court also heard the testimony of the officers who had interviewed appellant. One officer testified that appellant said that \u201che remembered working at his house\u201d on the day of the murder and that afterwards he laid down on the bed in his room and went to sleep. The officer stated that he had not seen appellant asleep in Ms. Geiger\u2019s apartment at the time of the search, and he agreed that, if appellant had been telling the truth, he was sleeping in a room in another residence.\nThe protection of the Fourth Amendment guarantees the right of people to be secure against unreasonable searches and seizures. Bernal v. State, 48 Ark. App. 175, 892 S.W.2d 537 (1995). The rights secured by the Fourth Amendment are personal in nature. Littlepage v. State, 324 Ark. 361, 863 S.W.2d 276 (1993). Thus, a defendant must have standing before he can challenge a search on Fourth Amendment grounds. Bernal v. State, supra. A person\u2019s Fourth Amendment rights are not violated by the introduction of damaging evidence secured by a search of a third person\u2019s premises or property. Davasher v. State, 308 Ark. 154, 823 S.W.2d 863 (1992). The pertinent inquiry regarding standing to challenge a search is whether a defendant manifested a subjective expectation of privacy in the area searched and whether society is prepared to recognize that expectation as reasonable. McCoy v. State, 325 Ark. 155, 925 S.W.2d 391 (1996). It is well settled that a proponent of a motion to suppress bears the burden of establishing that his Fourth Amendment rights have been violated. Rockett v. State, 319 Ark. 335, 891 S.W.2d 366 (1995). This court will not reach the constitutionality of a search where a defendant has failed to show that he had a legitimate expectation of privacy in the object of the search. Littlepage v. State, supra.\nBased on the foregoing evidence introduced at the hearing, we hold that appellant failed to establish a legitimate expectation of privacy in Ms. Geiger\u2019s residence. The evidence suggests that appellant lived in the house on \u201cG\u201d Street and that he may have occasionally stayed with Ms. Geiger in her apartment. However, the mere fact that he frequently stayed there does not in and of itself give rise to a reasonable expectation of privacy. Davasher v. State, supra. Appellant did not own the premises, and absent from the record is any indication that appellant maintained control over Ms. Geiger\u2019s apartment. Id. We are aware of the Supreme Court\u2019s opinion in Minnesota v. Olson, 459 U.S. 91 (1990), where the Court pronounced a perse rule that an accused\u2019s status as an overnight guest is, alone, enough to show that he had an expectation of privacy in the home that society is prepared to recognize as reasonable. See also Heard v. State, 316 Ark. 731, 876 S.W.2d 231 (1994). Even so, there was no showing that appellant had been an overnight guest at the time the search occurred. See Marshall v. State, 316 Ark. 753, 875 S.W.2d 814 (1994). Considering the totality of the circumstances, we cannot say that the trial court\u2019s decision is clearly against the preponderance of the evidence.\nAppellant next challenges the trial court\u2019s ruling permitting the State to elicit testimony from Bruce Garner regarding a conversation he had with appellant. Over appellant\u2019s objection, Mr. Garner testified that he, appellant, and John Murry were drinking beer one night three weeks before the murder. He said they were all fairly intoxicated and started talking about how easy it was to get away with committing crimes, especially the crime of murder. Mr. Garner testified that appellant commented that \u201call you really had to do was not let there be any witnesses, destroy the weapon, and whatever evidence there was, and just never admit to anything and you\u2019d get away with it.\u201d Garner added that, to get rid of the weapon, appellant said to \u201ctake the shortest route to the river and throw it in.\u201d Appellant contends that this testimony was not relevant and that any probative value it may have had was outweighed by the danger of unfair prejudice.\nRule 401 of the Arkansas Rules of Evidence defines \u201crelevant evidence\u201d as evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Evidentiary matters regarding the admissibility of evidence are left to the sound discretion of the trial court and rulings in this regard will not be reversed absent an abuse of discretion. Harris v. State, 322 Ark. 167, 907 S.W.2d 729 (1995). Rule 403 allows a trial court to exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice. This weighing is also a matter left to the trial court\u2019s sound discretion and will not be reversed absent a showing of manifest abuse. Passley v. State, 323 Ark. 301, 915 S.W.2d 248 (1996).\nThe statements attributed to appellant bear a close relation to the facts surrounding the murder. There were no witnesses; the murder weapon was never located; and the evidence demonstrated that appellant was evasive in his responses to questioning by the police. In this respect, the testimony is not unlike that at issue in Brenk v. State, 311 Ark. 579, 847 S.W.2d 1 (1993). There, the appellant was convicted of murdering his wife whose torso was found in a cooler floating in a lake. The court found no abuse of discretion when the trial court admitted the testimony of the appellant\u2019s ex-wife, who testified that appellant had threatened to kill her and had told her that he would cut her body into pieces so that she would never be found. It was held that the testimony was admissible under Rule 404(b) to show intent, plan and identity. The conversation in this case was said to have occurred only three weeks before the murder. Given the distinct correlation between the statements made by appellant and the evidence presented at trial, we can find no abuse of discretion in the trial court\u2019s rulings that the testimony was relevant and that its probative value exceeded any danger of unfair prejudice.\nAppellant\u2019s remaining argument is that the trial court erred in denying his request for a brief recess to allow the testimony of an expert witness who was in transit. We agree.\nAppellant\u2019s clothing, which appeared to be bloodstained, was sent to the State Crime Lab for testing. Edward Vollman, a serol-ogist there, testified at trial on behalf of the defense that there was human blood on appellant\u2019s shirt. He stated that he had performed other tests on the shirt but that the results were inconclusive. He could not determine the type of the blood because there was an insufficient amount of material for testing. He also identified human blood on appellant\u2019s sweater. He could not state that the blood found on these articles of clothing belonged to either appellant or Ms. Geiger. At the direction of the Fort Smith Police Department, he submitted samples of what little blood remained on the clothes to the lab of the Federal Bureau of Investigation in Washington, D.C., for DNA testing.\nAfter the State rested its case, appellant advised the court that in addition to other witnesses he intended to call a Mr. Dedmon who apparently was not in attendance. The deputy prosecuting attorney noted that it was his understanding that Mr. Dedmon was coming from Washington, D.C.; that he had made a great effort to be at trial; and that the State had no objection to any ruling the court might make regarding this witness. The prosecution also offered to enter into a stipulation, if necessary. At 9:48 a.m., appellant\u2019s counsel informed the court that Mr. Dedmon had not yet arrived, and he requested a brief recess. The court remarked that the testimony of this witness would be cumulative. However, the deputy prosecutor advised the court that the DNA testing revealed that the identifiable blood from the samples came from the appellant, and not Ms. Geiger. The court then stated its preference that the parties agree to a stipulation of the witness\u2019s testimony rather than cause a delay of trial. Ten minutes later, appellant\u2019s counsel stated that Mr. Dedmon\u2019s plane was on time and was due to arrive at 11:00 a.m., and he again moved for a continuance. The trial court denied the motion after counsel eschewed the prosecution\u2019s offer to stipulate the witness\u2019s proposed testimony. Mr. Dedmon\u2019s report was admitted into evidence, and appellant made a proffer of Mr. Dedmon\u2019s testimony that the blood on appellant\u2019s shirt was not that of the victim, but that it had characteristics of appellant\u2019s blood.\nAt 11:40 a.m., the State had presented testimony in rebuttal, the jury had been instructed, and the attorneys had made their closing arguments. The court sent the jury to lunch for an hour before beginning its deliberations. At 11:50, appellant\u2019s counsel informed the court that Mr. Dedmon had arrived and was in the courtroom. Counsel asked the court to either permit the witness to testify or grant a mistrial. The trial court declined to reconsider its ruling.\nIt is well settled that a motion for a continuance is addressed to the sound discretion of the trial court, and a decision will not be reversed absent an abuse of discretion amounting to a denial of justice. Wilson v. State, 320 Ark. 142, 895 S.W.2d 524 (1995). The appellant bears the burden of proving that the trial court\u2019s denial of a motion for continuance was an abuse of discretion, and that burden entails a showing of prejudice. Id.\nMotions for continuance are governed in part by Rule 27.3 of the Arkansas Rules of Criminal Procedure, which provides:\nThe court shall grant a continuance only upon a showing of good cause and only for so long as is necessary, taking into account not only the request or consent of the prosecuting attorney or defense counsel, but also the public interest in prompt disposition of the case.\nThe supreme court has outlined several factors to be considered by a trial court in deciding a continuance motion:\n(1) the diligence of the movant; (2) the probable effect of the testimony at trial; (3) the likelihood of procuring the attendance of the witness in the event of a postponement; and (4) the filing of an affidavit, stating not only what facts the witness would prove, but also that the appellant believes them to be true.\nHill v. State, 321 Ark. 354, 902 S.W.2d 229 (1995).\nHere, the appellant was accused of first-degree murder. The case mounted by the State was built entirely on circumstantial evidence. The State elicited testimony concerning the copious amount of blood on the victim and the furnishings in her apartment. It was also stressed that appellant\u2019s clothes had bloodstains on them at the time of his arrest. It was thus crucial for the defense to dispel any notion that the victim was the source of this blood. We are also in agreement with appellant that under these circumstances a bare stipulation is not a genuine substitute for the live testimony of a witness who is prepared to give pivotal testimony. In sum, we cannot say that no prejudice resulted from the trial court\u2019s ruling. We also perceive no lack of diligence on the part of appellant, and the delay requested was only for a short period of time. We thus conclude that the trial court abused its discretion by refusing appellant\u2019s request for a brief recess.\nWe are not unmindful of the State\u2019s contention that appellant failed to meet the statutory requirement of filing an affidavit showing what facts the affiant believes the witness will prove and that the affiant believes these facts to be true. The supreme court has consistently interpreted Ark. Code Ann. \u00a7 16-63-402(a) (1987) as mandating an affidavit to justify a continuance due to a missing witness when the State objects to the continuance. Wilson v. State, supra. Here, however, the State did not object to a continuance; therefore, appellant\u2019s failure to submit an affidavit is not fatal to his argument.\nWe need also mention appellant\u2019s argument that the trial court\u2019s ruling denied him the right to call witnesses as guaranteed by the Sixth Amendment. Since we have found error in the trial court\u2019s decision on other grounds, we do not consider the merits of appellant\u2019s constitutional argument. Foreman v. State, 321 Ark. 167, 901 S.W.2d 802 (1995).\nReversed and remanded.\nPittman and Crabtree, JJ., agree.", "type": "majority", "author": "Judith Rogers, Judge." } ], "attorneys": [ "John Joplin, for appellant.", "Winston Bryant, Att\u2019y Gen., by: J. Brent Standridge, Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Paul RANKIN v. STATE OF Arkansas\nCA CR 94-278\n942 S.W.2d 867\nCourt of Appeals of Arkansas Division I\nOpinion delivered April 23, 1997\nJohn Joplin, for appellant.\nWinston Bryant, Att\u2019y Gen., by: J. Brent Standridge, Asst. Att\u2019y Gen., for appellee." }, "file_name": "0125-01", "first_page_order": 161, "last_page_order": 172 }