{
  "id": 6141941,
  "name": "Terry Joe COX v. STATE of Arkansas",
  "name_abbreviation": "Cox v. State",
  "decision_date": "2005-12-14",
  "docket_number": "CA CR 05-336",
  "first_page": "419",
  "last_page": "423",
  "citations": [
    {
      "type": "official",
      "cite": "93 Ark. App. 419"
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      "cite": "220 S.W.3d 231"
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    "name_abbreviation": "Ark. Ct. App.",
    "id": 13370,
    "name": "Arkansas Court of Appeals"
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      "cite": "11 Ark. App. 282",
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        {
          "parenthetical": "holding that the circuit court properly allowed the victim's schoolteacher to testify as to the victim's general reputation for truthfulness"
        },
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          "parenthetical": "holding that the circuit court properly allowed the victim's schoolteacher to testify as to the victim's general reputation for truthfulness"
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        {
          "page": "224",
          "parenthetical": "citing Logan v. State, 299 Ark. 255, 773 S.W.2d 419 (1989); Johnson v. State, 292 Ark. 632, 732 S.W.2d 817 (1987); Russell v. State, 289 Ark. 533, 534, 712 S.W.2d 916 (1986)"
        },
        {
          "page": "490",
          "parenthetical": "citing Logan v. State, 299 Ark. 255, 773 S.W.2d 419 (1989); Johnson v. State, 292 Ark. 632, 732 S.W.2d 817 (1987); Russell v. State, 289 Ark. 533, 534, 712 S.W.2d 916 (1986)"
        },
        {
          "page": "224-25"
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        {
          "page": "491"
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          "page": "491"
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      "category": "reporters:state",
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    {
      "cite": "Ark. Code Ann. \u00a7 5-14-101",
      "category": "laws:leg_statute",
      "reporter": "Ark. Code Ann.",
      "year": 2005,
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      "cite": "Ark. Code Ann. \u00a7 5-14-103",
      "category": "laws:leg_statute",
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          "page": "(a)(1)(C)(i)"
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    {
      "cite": "16 Ark. App. 175",
      "category": "reporters:state",
      "reporter": "Ark. App.",
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  "last_updated": "2023-07-14T22:52:25.043286+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Pittman, C.J., and Gladwin, J., agree."
    ],
    "parties": [
      "Terry Joe COX v. STATE of Arkansas"
    ],
    "opinions": [
      {
        "text": "Josephine Linker Hart, Judge.\nA jury found appellant, udge. crime of rape for engaging in sexual intercourse or deviate sexual activity with a person who was less than fourteen years old, and he was sentenced to fifteen years\u2019 imprisonment. On appeal, he argues that (1) the evidence was insufficient to support his conviction; (2) the circuit court erred in allowing a witness for the State, Carmen Neighbors, to testify that the victim was telling the truth during an interview with Neighbors; (3) the circuit court erred in excusing Neighbors after she testified for the State. While we conclude that the evidence was sufficient to support his conviction, we reverse and remand for new trial, because we also hold that the court erred in allowing Neighbors to testify regarding the victim\u2019s credibility.\nBefore addressing appellant\u2019s arguments asserting trial errors, we must first address his challenge to the sufficiency of the evidence. See, e.g., Maples v. State, 16 Ark. App. 175, 698 S.W.2d 807 (1985). A person commits the crime of rape if he \u201cengages in sexual intercourse or deviate sexual activity with another person . . . [w]ho is less that fourteen (14) years of age.\u201d Ark. Code Ann. \u00a7 5-14-103(a)(1)(C)(i) (Supp. 2005). \u201cDeviate sexual activity\u201d is defined in pertinent part as \u201cany act of sexual gratification involving\u201d either the \u201cpenetration, however slight, of the anus or mouth of one person by the penis of another person\u201d or the \u201cpenetration, however slight, of the labia majora or anus of one person by any body member or foreign instrument manipulated by another person.\u201d Ark. Code Ann. \u00a7 5-14-101(1) (Supp. 2005). In a challenge to the sufficiency of the evidence, we review the evidence in the light most favorable to the State, considering only that evidence that supports the verdict, and we determine whether the verdict is supported by substantial evidence, which is evidence of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Wilson v. State, 320 Ark. 707, 898 S.W.2d 469 (1995).\nAt trial, the nine-year-old victim testified that her step-father, appellant, touched her \u201cin a bad way\u201d on ten occasions beginning when she was six. She stated that on four occasions he made her touch his \u201cweeny\u201d and \u201c[g]o up and down on it.\u201d She further testified that appellant made her \u201c[l]ick his private,\u201d and that this happened \u201ca bunch,\u201d which was more than twice. Also, she stated that appellant made her \u201csuck his weeny, and lick his weeny.\u201d According to her, when he made her put her mouth on his \u201cprivate,\u201d it would \u201c[t]aste salty.\u201d\nAs he did in his motions for a directed verdict, appellant argues that, because the victim\u2019s testimony was inconsistent in certain respects, the evidence was insufficient to support his conviction for rape. We note, however, that the uncorroborated testimony of a rape victim is sufficient to support the verdict, and matters of the credibility of witnesses and conflicts in testimony are issues for the trier of fact to decide. Id. We conclude that there was substantial evidence that appellant committed the crime of rape, as the victim\u2019s testimony established that appellant engaged in deviate sexual activity with her and that she was less than fourteen years old.\nAppellant next argues that the circuit court erred in allowing a witness for the State, Carmen Neighbors, to testify that the victim was telling the truth during an interview with Neighbors. In response, the State argues that the circuit court, in its discretion, properly admitted Neighbors\u2019s testimony because it was about the interview and Neighbors\u2019s role in the investigation, and the jury was still required to make its own determination regarding the victim\u2019s credibility. Further, the State argues that admission of Neighbors\u2019s testimony was permissible because appellant attacked the credibility of the victim in his opening statement. We, however, conclude that the court erred when it allowed Neighbors to testify that the victim\u2019s statement to Neighbors was credible. Accordingly, we reverse and remand for a new trial.\nNeighbors, the Director of the Mercy Child Advocacy Center at St. Joseph Hospital in Hot Springs, testified for the State regarding the interview she conducted with the victim. She stated that she frequently gave expert consultation on child-abuse assessments and was a licensed social worker and a certified forensic interviewer. At the request of the State, the court qualified Neighbors as a certified forensic examiner. The State asked Neighbors if, \u201c[bjased on your interviews in the past and your interviews in this particular case, do you have an opinion as to whether this child is telling the truth?\u201d Appellant objected, stating that \u201cthere\u2019s no way she can know about speculating whether this child is lying or not. He\u2019s trying to bolster her testimony.... He\u2019s also giving character evidence. . . .\u201d The court overruled appellant\u2019s objections. Neighbors testified that she always gives a summary and recommendation in her report and speaks about the credibility of the child. She stated, \u201cI believe the interview tape that the jury has seen to be highly credible.\u201d She believed that it was credible because of the victim\u2019s inappropriate sexual knowledge, of which she then gave examples. She also noted the victim\u2019s body language, which showed that the victim was scared, anxious, nervous, embarrassed, and ashamed. Neighbors concluded, \u201cI believe her to be credible, as credible as any child I\u2019ve believed to be credible.\u201d Later, she testified, \u201cI don\u2019t have a single doubt about her credibility. ...\u201d\nOur supreme court has specifically stated that \u201cit is error for the court to permit an expert, in effect, to testify that the victim of a crime is telling the truth.\u201d Hill v. State, 337 Ark. 219, 224, 988 S.W.2d 487, 490 (1999) (citing Logan v. State, 299 Ark. 255, 773 S.W.2d 419 (1989); Johnson v. State, 292 Ark. 632, 732 S.W.2d 817 (1987); Russell v. State, 289 Ark. 533, 534, 712 S.W.2d 916 (1986)). Here, Neighbors testified repeatedly about the victim\u2019s high credibility. We are compelled to conclude that the court committed error in allowing Neighbors to testify regarding the victim\u2019s credibility.\nIn reaching our holding, we are mindful of the State\u2019s alternative rationale for affirming on this point. Citing Rule 608(a) of the Arkansas Rules of Evidence, the State argues that admission of Neighbors\u2019s testimony was permissible because appellant attacked the credibility of the victim in his opening statement. We observe, however, that Rule 608(a) allows the credibility of a witness to be \u201csupported by evidence in the form of opinion or reputation,\u201d but \u201cthe evidence may refer only to character for truthfulness or untruthfulness.\u201d Here, Neighbors\u2019s testimony did not fall within the strictures of Rule 608(a), as it was not limited to the victim\u2019s \u201ccharacter for truthfulness.\u201d See Collins v. State, 11 Ark. App. 282, 669 S.W.2d 505 (1984) (holding that the circuit court properly allowed the victim\u2019s schoolteacher to testify as to the victim\u2019s general reputation for truthfulness).\nFinally, we cannot say that the evidence was so overwhelming and the error so slight so as to constitute harmless error as in Russell. The evidence supporting appellant\u2019s conviction consisted only of the victim\u2019s testimony at trial and her statements to third parties, and the outcome of the trial necessarily turned upon the victim\u2019s credibility. Thus, we are compelled to reverse and remand for new trial.\nAppellant also argues that the court erred in excusing Neighbors as a witness after she testified for the State, as he also subpoenaed Neighbors. He states that, while testifying about drawings she made during her interview with Neighbors, the victim identified certain marks on the drawings as bug bites, and he argues that, because the court erroneously excused Neighbors, he could not recall Neighbors to the stand to testify that the victim never said anything to Neighbors about bug bites. Because on retrial appellant will have the opportunity to examine Neighbors on this matter, we do not address his argument on appeal, as the asserted error is not likely to recur.\nReversed and remanded.\nPittman, C.J., and Gladwin, J., agree.\nIn Logan, our supreme court reversed where it concluded that answers to hypothetical questions resulted in the doctors informing the jury that in their opinion the victim was telling the truth. InJohnson, the court stated that a doctor improperly conveyed to the jury his opinion that the victim was telling truth when the doctor opined that an act had occurred that was detrimental to the victim and that opinion was based only on the victim\u2019s statements to the doctor. And in Russell, the court held that a psychologist improperly testified that a victim\u2019s statements were consistent with a child who had suffered sexual abuse.\nWe note that in Hill, a Department of Human Services caseworker testified regarding the criteria used by the Department in evaluating a child\u2019s statement when sexual abuse had been alleged, and the court held that the testimony was \u201cvalid evidence of the Department\u2019s procedures in general, and, in specific, constituted evidence of the procedures followed in this case by the Department in its investigation.\u201d Hill, 337 Ark. at 224-25, 988 S.W.2d at 491. The court concluded that the caseworker \u201ctestified as a fact witness about the Department\u2019s guidelines employed in this and similar cases to determine whether a child\u2019s allegations warrant an investigation.\u201d Hill, 337 Ark. at 225, 988 S.W.2d at 491. The court further noted that upon Hill\u2019s objection, the circuit court responded that \u201cthe jury was entitled to understand the State\u2019s interview and investigation techniques,\u201d and that \u201cthe witness would have to stop short of bolstering the children\u2019s testimony.\u201d Id. The case at bar, however, is distinguishable from Hill. Here, rather than Neighbors only providing information regarding the guidelines employed to determine whether the victim\u2019s allegations warranted an investigation, she instead provided bolstering testimony.",
        "type": "majority",
        "author": "Josephine Linker Hart, Judge."
      }
    ],
    "attorneys": [
      "Gregory Crain, for appellant.",
      "Mike Beebe, Arkansas Attorney General, by: Nicana Corinne Sherman, Assistant Attorney General, for appellee."
    ],
    "corrections": "",
    "head_matter": "Terry Joe COX v. STATE of Arkansas\nCA CR 05-336\n220 S.W.3d 231\nCourt of Appeals of Arkansas\nOpinion delivered December 14, 2005\nGregory Crain, for appellant.\nMike Beebe, Arkansas Attorney General, by: Nicana Corinne Sherman, Assistant Attorney General, for appellee."
  },
  "file_name": "0419-01",
  "first_page_order": 445,
  "last_page_order": 449
}