{
  "id": 1906035,
  "name": "Bennie L. FRY v. STATE of Arkansas",
  "name_abbreviation": "Fry v. State",
  "decision_date": "1992-05-11",
  "docket_number": "CR 92-86",
  "first_page": "316",
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      "reporter": "Ark. Code Ann.",
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  "analysis": {
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  "last_updated": "2023-07-14T19:13:54.665869+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [],
    "parties": [
      "Bennie L. FRY v. STATE of Arkansas"
    ],
    "opinions": [
      {
        "text": "Steele Hays, Justice.\nThis is an appeal by Bennie L. Fry from a judgment of conviction on two counts of rape. The jury recommended a sentence of forty years on each count, which the trial court approved, ordering the sentences to run consecutively.\nBennie Fry and Mona Fry have one child born of their marriage. Additionally, Mona Fry has three daughters of two previous marriages: Christine McClanahan, Genevieve Morris and Renee Morris. Bennie Fry was charged by information with the rape of Genevieve and Renee \u201con or about June or July, 1989.\u201d The girls were ten and nine respectively when the crimes were alleged to have occurred. Fry asserts three points of error by the trial court, none of which are persuasive.\nFry first contends the trial court erred in not granting his motion for a directed verdict as to the count involving Renee. Renee testified she was living with her mother and stepfather and attending school at Floral in the spring of 1989; that school was out \u201cabout the end of May.\u201d She said \u201calong these days Bennie would put his hand inside my underpants, stick his finger inside of me, between my legs and move it up and down.\u201d She said it happened more than once though not after school was out. Since the information alleged the offenses occurred in June or July, and Renee testified the incidents did not occur after school was out at the end of May, Fry insists he was entitled to a directed verdict. We disagree.\nBy statute and case law it is established that generally the time a crime is alleged to have occurred is not of critical significance unless the date is material to the offense. Arkansas Code Ann. \u00a7 16-85-405(d) (1987); Bonds v. State, 296 Ark. 1, 751 S.W.2d 339 (1988); Kirkham v. City of North Little Rock, 227 Ark. 789, 301 S.W.2d 559 (1957). That is particularly true with sexual crimes against children and infants. Renee Morris\u2019s testimony that school was out \u201caround the end of May\u201d is not a categorical certainty; school may have extended over into June. Moreover, giving that proof a margin of error produces no prejudice to the appellant, whose defense was that the alleged incidents with Renee and Genevieve, as well as Christine, never occurred and were entirely fabricated.\nAppellant also argues that the trial court granted his motion in limine requesting the state be held to proof as stated in the information, specifically regarding the dates of the alleged rape of Renee and Genevieve. We find nothing to chis effect in the abstract. There are two motions in limine, but they pertain to the prospective testimony of Christine. Neither mentions Renee or Genevieve. Ffowever, the Attorney General\u2019s brief observes that the state agreed it would prove \u201cwhat the information alleged\u201d and the trial court ruled the state\u2019s proof would not extend \u201cbeyond July, 1989.\u201d We find nothing in Renee\u2019s testimony that encroaches on that ruling.\nNext, appellant alleges the trial court erred in refusing to give a lesser included instruction on carnal abuse in the third degree. Fie relies on Flurry v. State, 18 Ark. App. 64, 711 S.W.2d 163 (1986). Flurry held there was a rational basis under the proof of that case for an instruction on carnal abuse in the third degree as a lesser included offense to rape. But the Flurry court failed to note there are different elements of proof between the two offenses \u2014 third degree carnal abuse [Ark. Code Ann. \u00a7 5-14-106 (1987)] requires the accused be twenty years of age or above, whereas the crime of rape [Ark. Code Ann. \u00a7 5-14-103 (1987)] has no such element. Moreover, the Flurry case came before this court on petition for review and was reversed. We held there was no rational basis for a lesser included instruction when the defendant denies entirely any sexual encounter with the purported victim. Doby v. State, 290 Ark. 408, 720 S.W.2d 694 (1986). That, of course, was the appellant\u2019s testimony in the case at bar.\nFinally, appellant submits it was error for the trial court to deny his motion to exclude the testimony of Christine McClanahan. Christine, the oldest daughter of Mona Fry, testified that soon after Bennie Fry and her mother married appellant sexually abused her, first by fondling and later by intercourse. The acts began when she was nine. By motion in limine appellant objected to the introduction of this testimony in that its probative value was outweighed by its prejudicial effect. The trial court permitted the testimony while admonishing the jury as to its limited purpose.\nAppellant argues that since Renee and Genevieve both had testified to a pattern of sexual abuse there was no need to call Christine as a witness to show a pattern of behavior. But that decision rests largely with the trial court and we see no reason to disagree. We have held a number of times that under Ark. R. Evid. 404(b) we will allow testimony of similar acts with other children when it tends to show a proclivity to the same behavior. George v. State, 306 Ark. 360, 813 S.W.2d 792 (1991); Free v. State, 293 Ark. 65, 732 S.W.2d 452 (1987); White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986). As the state points out, the incidents involving all three girls began in the proximity of age nine and progressed from fondling to intercourse.\nFinding no error, we affirm the judgment.",
        "type": "majority",
        "author": "Steele Hays, Justice."
      }
    ],
    "attorneys": [
      "Tom Garner, for appellant.",
      "Winston Bryant, Att\u2019y Gen., by: Didi H. Sailings, Asst. Att\u2019y Gen., for appellee."
    ],
    "corrections": "",
    "head_matter": "Bennie L. FRY v. STATE of Arkansas\nCR 92-86\n829 S.W.2d 415\nSupreme Court of Arkansas\nOpinion delivered May 11, 1992\nTom Garner, for appellant.\nWinston Bryant, Att\u2019y Gen., by: Didi H. Sailings, Asst. Att\u2019y Gen., for appellee."
  },
  "file_name": "0316-01",
  "first_page_order": 340,
  "last_page_order": 343
}