{ "id": 1912799, "name": "William Bryant WARREN v. STATE of Arkansas", "name_abbreviation": "Warren v. State", "decision_date": "1993-09-20", "docket_number": "CR 92-1053", "first_page": "192", "last_page": "204", "citations": [ { "type": "official", "cite": "314 Ark. 192" }, { "type": "parallel", "cite": "862 S.W.2d 222" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "302 Ark. 498", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1884334 ], "weight": 4, "year": 1990, "pin_cites": [ { "page": "503" }, { "page": "694-95" } ], "opinion_index": 0, "case_paths": [ "/ark/302/0498-01" ] }, { "cite": "111 S. Ct. 144", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1990, "opinion_index": 0 }, { "cite": "297 Ark. 115", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1891340 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "129" }, { "page": "807" } ], "opinion_index": 0, "case_paths": [ "/ark/297/0115-01" ] }, { "cite": "308 Ark. 393", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1904279 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "400" }, { "page": "564" } ], "opinion_index": 0, "case_paths": [ "/ark/308/0393-01" ] }, { "cite": "273 Ark. 1", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8717238 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/ark/273/0001-01" ] }, { "cite": "766 S.W.2d 931", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1889856, 1889948 ], "year": 1989, "pin_cites": [ { "page": "934" } ], "opinion_index": 0, "case_paths": [ "/ark/298/0301-01", "/ark/298/0317-01" ] }, { "cite": "298 Ark. 317", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1889948 ], "year": 1989, "pin_cites": [ { "page": "321" } ], "opinion_index": 0, "case_paths": [ "/ark/298/0317-01" ] }, { "cite": "308 Ark. 672", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1904314 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/308/0672-01" ] }, { "cite": "306 Ark. 181", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1900916 ], "weight": 4, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/306/0181-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-14-103", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "year": 1987, "pin_cites": [ { "page": "(a)(1)" }, { "page": "(a)(1)" } ], "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 5-14-101", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "year": 1987, "pin_cites": [ { "page": "(1)(B)" }, { "parenthetical": "B" } ], "opinion_index": 0 }, { "cite": "304 Ark. 726", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1880859 ], "weight": 4, "year": 1991, "pin_cites": [ { "page": "731" }, { "page": "723" } ], "opinion_index": 0, "case_paths": [ "/ark/304/0726-01" ] }, { "cite": "111 S. Ct. 218", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1990, "opinion_index": 0 }, { "cite": "292 Ark. 421", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1871399 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ark/292/0421-01" ] }, { "cite": "295 Ark. 489", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1893798 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/295/0489-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-10-101", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "pin_cites": [ { "parenthetical": "a" } ], "opinion_index": 0 }, { "cite": "305 Ark. 296", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1916736 ], "weight": 2, "year": 1991, "opinion_index": 2, "case_paths": [ "/ark/305/0296-01" ] }, { "cite": "303 Ark. 236", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1882814 ], "weight": 2, "year": 1990, "opinion_index": 2, "case_paths": [ "/ark/303/0236-01" ] }, { "cite": "306 Ark. 181", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1900916 ], "weight": 2, "year": 1991, "opinion_index": 2, "case_paths": [ "/ark/306/0181-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-14-101", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "pin_cites": [ { "parenthetical": "B" } ], "opinion_index": 2 }, { "cite": "Ark. Code Ann. \u00a7 5-10-101", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "pin_cites": [ { "parenthetical": "a" }, { "parenthetical": "a" } ], "opinion_index": 2 }, { "cite": "Ark. Code Ann. \u00a7 5-14-108", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "pin_cites": [ { "page": "(a)(3)(1987)" } ], "opinion_index": 3 }, { "cite": "271 Ark. 451", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1756112 ], "weight": 2, "year": 1988, "opinion_index": 3, "case_paths": [ "/ark/271/0451-01" ] }, { "cite": "432 U.S. 197", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6178111 ], "year": 1911, "opinion_index": 3, "case_paths": [ "/us/432/0197-01" ] }, { "cite": "421 U.S. 684", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 541415 ], "year": 1975, "opinion_index": 3, "case_paths": [ "/us/421/0684-01" ] }, { "cite": "766 S.W.2d 931", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1889856, 1889948 ], "year": 1989, "opinion_index": 3, "case_paths": [ "/ark/298/0301-01", "/ark/298/0317-01" ] }, { "cite": "298 Ark. 317", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1889948 ], "year": 1989, "opinion_index": 3, "case_paths": [ "/ark/298/0317-01" ] }, { "cite": "308 Ark. 672", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1904314 ], "weight": 2, "year": 1992, "opinion_index": 3, "case_paths": [ "/ark/308/0672-01" ] }, { "cite": "306 Ark. 181", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1900916 ], "weight": 2, "year": 1991, "opinion_index": 3, "case_paths": [ "/ark/306/0181-01" ] } ], "analysis": { "cardinality": 929, "char_count": 24808, "ocr_confidence": 0.902, "pagerank": { "raw": 2.506641860447557e-07, "percentile": 0.8100692356967529 }, "sha256": "f23d1d614ea381b2e4fe65778316f059193aaebe5cda18b2100595c57a842665", "simhash": "1:736ee166e61cf519", "word_count": 4162 }, "last_updated": "2023-07-14T21:22:56.854306+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Glaze, J., concurs.", "Holt, C.J., Dudley and Newbern, JJ., dissent.", "Holt, C.J., joins in this dissent.", "Holt, C.J., joins this dissent." ], "parties": [ "William Bryant WARREN v. STATE of Arkansas" ], "opinions": [ { "text": "Donald L. Corbin, Justice.\nAppellant, William Bryant Warren, appeals a judgment of the Pope County Circuit Court convicting him of capital murder. Appellant was tried by a jury, found guilty, and sentenced to life in prison without parole. Our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a) (2).\nOn appeal, appellant raises four points for reversal.' We find no error in any of these points and affirm the trial court\u2019s judgment of conviction.\nI. Directed Verdict\nAppellant\u2019s first point on appeal is that the trial court erred in denying his motion for a directed verdict because the penetration of the victim\u2019s vagina and rectum by a foreign instrument, which served as the basis for the underlying felony of rape, was also a contributing cause of the victim\u2019s death. Therefore, appellant argues the proof does not support the underlying felony of rape and his conviction for capital murder pursuant to Ark. Code Ann. \u00a7 5-10-101 (a)(2) (Supp. 1991) must be reversed.\nThe Medical Examiner, Dr. Fahmy Malak, testified the victim died from a combination of injuries which included external injuries to the head, face, nose, lips, right breast, elbows, vagina and anus; trauma and fracture of the skull, with damage to the underlying brain; perforation, rupture and bruising of the vagina and perforation of the rectum which resulted in a connection between the vagina and the rectum and loss of about one pint of blood which was found in the pelvis. Additionally, there was evidence the victim was submerged in water. The Medical Examiner concluded the terminal event was drowning and the cause of death was multiple injuries. The Medical Examiner testified that all the wounds could have been caused by the same object, a circular object such as a shovel handle.\nAppellant argues that since the penetrating wounds in the vagina and rectum of the victim were probably made by the same weapon as the wounds to the head and abdomen of the victim, the penetration of the vagina and the rectum was for the purpose of committing murder and not for the purpose of committing rape. Appellant argues, since the penetration of the vagina and anus of the victim caused injuries which contributed to the death of the victim, the penetration is used to support the charge of murder and cannot also be used to support the charge of rape.\nIn support of his argument, appellant cites cases holding an assault and battery, which caused the death, cannot be used as an underlying felony to support a capital murder charge and burglary cannot be used as an underlying felony to support a capital murder charge when the proof showed the murderer entered the occupied dwelling solely in order to kill those within and not for a separate purpose which would support the burglary charge. Sellers v. State, 295 Ark. 489, 749 S.W.2d 669 (1988); Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987), cert. denied, 111 S. Ct. 218 (1990). Unlike the cases appellant cites, penetration of the victim\u2019s vagina and rectum was not necessarily committed with the same objective as the other blows to. the victims body. While the penetration of the victim\u2019s vagina and rectum with a blunt object caused internal injuries that contributed to the victim\u2019s death, the penetration of the victim\u2019s vagina and rectum was not necessary to cause the victim\u2019s death. An assault and battery is necessary to cause death; and burglary by entering into an occupiable structure is necessary in order to kill the person within. Strawhacker v. State, 304 Ark. 726, 804 S.W.2d 720 (1991). \u201cRape and first degree battery are separate and distinct crimes . . . with different elements of proof. And neither is a crime which can be subsumed under the other.\u201d Strawhacker, 304 Ark. at 731, 804 S.W.2d at 723. Rape by deviate sexual activity, which was the underlying felony in this case, requires the penetration \u201cof the vagina 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)(B) (1987). Penetration of the vagina or anus of a person is not an act which is subsumed by the murder as the penetration is not necessary to cause the death.\nII. Sexual Gratification\nAppellant argues the trial court erred in denying his motion for a directed verdict because there was insufficient proof to support a finding that appellant committed the underlying felony of rape. Specifically, appellant argues the state failed to prove the penetration of the victim\u2019s vagina and anus was done for the purpose of \u201csexual gratification\u201d as required by Ark. Code Ann. \u00a7 5-14-103(a)(1) (1987). The state contends appellant\u2019s argument was not preserved for appellate review because appellant did not specify the basis for his objection in the trial court. At the close of all the evidence, appellant moved for a directed verdict \u201cbased on the fact that there is no showing of a rape.\u201d Appellant stated in his motion that the basis was the state\u2019s failure to prove rape. This was sufficient to apprise the trial court appellant was arguing the state failed to prove the elements of rape. \u201cSexual gratification\u201d is an element of rape. Therefore, appellant\u2019s argument was preserved for appeal.\nAppellant argues the state failed to prove the penetration of the victim\u2019s vagina and anus was done for the purpose of \u201csexual gratification\u201d as required under the statute. Ark. Code Ann. \u00a7 5-14-103(a)(1). Section 5-14-103(a)(1) provides in pertinent part:\nA person commits rape if he engages in sexual intercourse or deviate sexual activity with another person:\nBy forcible compulsion[.]\n\u201cDeviate sexual activity\u201d is defined in pertinent part as:\nany act of sexual gratification involving:\nThe penetration, however slight, of the vagina or anus of one person by any body member or foreign instrument manipulated by another person[.]\nArk. Code Ann. \u00a7 5-14-101 (1)(B) (1987). \u201cSexual gratification\u201d is not defined in the statute, but we have construed the words in accordance with their reasonable and commonly accepted meanings. McGalliard v. State, 306 Ark. 181, 813 S.W.2d 768 (1991).\nWe have held it is not necessary for the state to provide direct proof that an act is done for sexual gratification if it can be assumed that the desire for sexual gratification is a plausible reason for the act. McGalliard v. State, 306 Ark. 181, 813 S.W.2d 768; see also Holbert v. State, 308 Ark. 672, 826 S.W.2d 284 (1992). We have previously stated that \u201cwhen persons, other than physicians or other persons for legitimate medical reasons, insert something in another person\u2019s vagina or anus, it is not necessary that the state provide direct proof that the act was done for sexual gratification.\u201d Williams v. State, 298 Ark. 317, 321, 766 S.W.2d 931, 934 (1989). Appellant argues that our interpretation of \u201csexual gratification\u201d in this manner does not reflect the will of the legislature, which has never defined sexual gratification nor changed the definition of deviate sexual activity despite many opportunities to do so. The legislature has also had several opportunities to define sexual gratification since the Williams case was decided and has not chosen to do so. Therefore, following Williams, McGalliard and Holbert, the state had sufficient proof to support the charge of rape and the trial court did not err in denying appellant\u2019s motion for a directed verdict.\nIII. Hearsay Statement\nAppellant argues the trial court erred by excluding hearsay testimony from the victim\u2019s father that the victim had told him she was dating a married man. Appellant contends the information solicited by his question falls under Ark. R. Evid. 804(b)(3) and should have been allowed. Ark. R. Evid. 804(b)(3) provides in pertinent part:\nHearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:\nStatement against interest. A statement which was at the time of its making so far contrary to the declarant\u2019s pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability or to render invalid a claim by him against another or to make him an object of hatred, ridicule, or disgrace, that a reasonable man in his position would not have made the statement unless he believed it to be true.\nAppellant argues that even today for a woman to admit she is dating a married man to another is to subject her to disgrace and ridicule and that a reasonable woman would not say she was dating a married man unless it was true. Appellant argues he was prejudiced by the trial court\u2019s decision because he was unable to argue that the married man might have murdered the victim when she told him she thought she was pregnant.\nWe uphold the trial court\u2019s ruling if it was correct for any reason. Chisum v. State, 273 Ark. 1, 616 S.W.2d 728 (1981). The state argues that the trial court\u2019s ruling can be upheld because the question was beyond the scope of direct examination and was irrelevant. \u201cThe trial judge has considerable discretion in determining the scope of cross-examination\u201d and we do not reverse absent an abuse of that discretion. Bennett v. State, 308 Ark. 393, 400, 825 S.W.2d 560, 564 (1992). Ark. R. Evid. 611 provides in pertinent part:\n(b) Scope of Cross-Examination. Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.\nThe state only asked the victim\u2019s father about his race, the race of his family and his daughter, the victim, during direct examination. Therefore, the question was outside the scope of direct examination as the state contends. It was within the trial court\u2019s discretion to allow appellant\u2019s question, but it was not error for the trial court to refuse to allow the question. Additionally, if appellant had wished to ask the question of the witness, appellant could have called the witness on direct and asked the question. However, appellant chose not to call any witnesses in his defense.\nIV. Photographs\nAs his last point on appeal, appellant argues the trial court erred in admitting photographs of the victim\u2019s autopsy over his objection. Appellant objected to nine photographs which were admitted over his objection. These photographs are reproduced in the appendix along with the photographs which were admitted and to which he did not object. However, in his argument appellant only specifically refers to three photographs which were introduced over his objection. Therefore, we will only address those photographs for which appellant presents an argument on appeal. They are: State\u2019s Exhibit #56, State\u2019s Exhibit #58, and State\u2019s Exhibit #65.\nAppellant claims there were sufficient pictures of the autopsy to which he did not object to show the cause of the victim\u2019s death and it was error to admit the pictures to which he objected because the prejudicial effect of those photographs outweighed the probative value. \u201cThe question of prejudicial effect versus probative value is a matter addressed to the discretion of the trial judge, and on appeal\u201d we do not reverse absent a manifest abuse of that discretion. Bennett v. State, 297 Ark. 115, 129, 759 S.W.2d 799, 807 (1988), cert. denied, 111 S. Ct. 144 (1990). The trial court admitted the photographs only after argument by counsel and review of the photographs during which the trial court determined that the photographs were not repetitious and were needed by Dr. Malak to explain his testimony. We have held that \u201ceven if photographs are inflammatory in the sense that they show human gore repulsive to the jurors, they are admissible within the discretion of the trial judge if they help the jury understand the testimony.\u201d Richmond v. State, 302 Ark. 498, 503, 791 S.W.2d 691, 694-95 (1990). In this case we cannot say that the trial court abused its discretion. Richmond, 302 Ark. 498, 791 S.W.2d 691.\nAs to State\u2019s Exhibit #56, appellant argues that it is simply a distant view of State\u2019s Exhibit #55 to which appellant also objected. Dr. Malak\u2019s testimony regarding State\u2019s Exhibit #56 was as follows:\nExhibit 56 is a photograph of [the victim] as I received her. Exactly as she is I photographed the body. The photograph shows that she was wearing a short-sleeve pullover shirt, multi-colored. The shirt was above the breast area and it shows the foam coming from the nose. It is like shaving cream, if you like, around the \u2014 mushroom-like around the nose. This indicates that she was breathing air when she was placed in water. It shows also the damage \u2014 some damage to the face and the right side of the \u2014 of the head. It also indicates \u2014 there is a number 3-1-6. This is the case number to indicate this is [the victim], the one I did the autopsy upon.\nAs to State\u2019s Exhibit #55, Dr. Malak testified as follows:\nExhibit No. 55 is a front view of [the victim] showing her face and also the number to indicate that this is [the] same body. The photograph shows a tear \u2014 t-e-a-r on the left eye about the angle of the eye, bruise of the eye, bruise of the nose, and the lips, as well as shows also damage to the right side of the head and also shows the pearl earring on the right side.\nThe foam around the victim\u2019s nose referred to in State\u2019s Exhibit #56 has been removed in State\u2019s Exhibit #55. Clearly State\u2019s Exhibit #56 was used by Dr. Malak and shows that the victim was breathing when she was placed in the water. Thus it was helpful to the doctor\u2019s testimony and was not repetitive of State\u2019s Exhibit #55. Appellant objected to the introduction of State\u2019s Exhibits #58 & #65 because he contends they are repetitive of State\u2019s Exhibits #59 & #64. The photographs are all essentially of the same view, but they are not identical. State\u2019s Exhibit #59 is a view of the right side of the head before any blood has been cleaned from the face and before the foam has been cleaned from the nose. According to Dr. Malak\u2019s testimony, State\u2019s Exhibit #59 shows damage to the right temple, blood trickling toward the right ear, and foam around the nose. State\u2019s Exhibit #64 is the same view of the right side of the head, but from slightly farther away and after the blood and foam have been cleaned from the face. According to Dr. Malak, the right side of the head was re-photographed after the blood and foam were cleaned up \u201cto show the nature of the wound; to demonstrate exactly what the injuries are; and it shows also the damage to the nose and to the lips and to her right cheek.\u201d Dr. Malak also testified he thought it was important that this photograph showed one pearl earring and a total of four pierced holes in the ear. State\u2019s Exhibit #58 is a photograph of the right temple after Dr. Malak shaved the hair to show the wound and demonstrates that on the right side of the wound there is a circular wound and on the left side there is a tear extension. Dr. Malak testified that the nature of the wound \u201cindicates the direction of \u2014 of the blow was coming from above down and to the right and the circular nature of the wound indicates a circular object has been used.\u201d State\u2019s Exhibit #65 is a close-up photograph of the wound to the right temple after the area has been cleaned and shaved which, according to Dr. Malak, shows the circular nature of the rounded object which had been thrust in the bone.\nThus, although the photographs are similar, each photograph was used by Dr. Malak during his testimony to show the nature of the victim\u2019s wounds and were helpful to the jury. Therefore, the trial court did not err in allowing the photos to be admitted.\nUnder Ark. Sup. Ct. R. 4-3(h), the record has been reviewed concerning the rulings made against the appellant by the trial judge during the trial, and we find no error. For the reasons stated above, we affirm.\nGlaze, J., concurs.\nHolt, C.J., Dudley and Newbern, JJ., dissent.", "type": "majority", "author": "Donald L. Corbin, Justice." }, { "text": "Tom Glaze, Justice,\nconcurring. I join the majority opinion, but concur to its treatment of points one and three, and particularly address appellant\u2019s third argument. In this respect, appellant sought to ask the victim\u2019s father if the victim had previously stated she had been dating another man. Appellant argues such testimony was relevant because the victim had told appellant that she thought she was pregnant. Appellant states this would have allowed him to argue to the jury that when the victim left him, she went to meet this other married man, who, after being told that she thought she was pregnant, killed her. Nothing in the record supports such rank speculation. Certainly, the statement sought to be elicited offered no foundation for such an argument. In sum, the testimony proffered was wholly irrelevant, and the trial court properly excluded it.", "type": "concurrence", "author": "Tom Glaze, Justice," }, { "text": "Robert H. Dudley, Justice,\ndissenting. The difficulty in this case is caused by the formal charge. The State charged appellant with capital felony-murder by killing the victim while \u201cin the course of or furtherance of\u2019 the crime of rape. Ark. Code Ann. \u00a7 5-10-101 (a)(1) (Supp. 1991). The State did not charge appellant with capital murder as the result of causing death with premeditation and deliberation. Ark. Code Ann. \u00a7 5-10-101 (a) (4) (Supp. 1991). Because of the charge filed the State had to prove the underlying felony of rape. There was insufficient evidence to prove that underlying felony, and, accordingly, I dissent from the affirmance of the conviction.\nThe State\u2019s proof was exactly as set out in the majority opinion. Appellant killed the victim by beating her about the head, breasts, abdomen, elbows, vagina, and anus with a blunt circular object one and one-half inches in diameter, something like a shovel handle. At some time during the series of murderous blows, appellant penetrated the victim\u2019s vagina and anus with the circular object. The wounds to the head and abdomen were also penetrating. The majority opinion holds this proof constituted sufficient evidence of rape by deviate sexual activity. I cannot agree.\nDeviate sexual activity is \u201cany act of sexual gratification involving the penetration... of the vagina or anus. . . by a. . . foreign instrument.\u201d Ark. Code Ann. \u00a7 5-14-101 (1)(B) (1987) (emphasis added). It is necessary that the State prove the penetration of the vagina or anus was done for sexual gratification. McGalliard v. State, 306 Ark. 181, 813 S.W.2d 768. (1991). Such proof could have been by either direct or - circumstantial evidence. Here, there was no direct proof. The proof is wholly circumstantial, but the proof is that blows to the head, abdomen, vagina, and anus were all penetrating blows. The penetrating blows to the vagina and anus might have been inflicted for the purpose of sexual gratification, but it is just as likely that they were inflicted for the purpose of murder since all of the blows were administered in the same manner and with the same object.\nCircumstantial evidence may be sufficient to constitute substantial evidence. Hooks v. State, 303 Ark. 236, 795 S.W.2d 56 (1990). However, for circumstantial evidence to constitute sufficient evidence to sustain a conviction, it must be consistent with guilt of the defendant, and inconsistent with any other reasonable conclusion. Gillie v. State, 305 Ark. 296, 808 S. W.2d 320 (1991). The circumstantial evidence of rape in this case in not inconsistent with another reasonable conclusion. Here, it is just as likely that appellant administered the penetrating blows for the purpose of murder as it is that he administered them for the purpose of sexual gratification. Accordingly, in conformity with our long-established case law, I would hold that the State did not offer sufficient circumstantial evidence to convict appellant of killing another while \u201cin the course of or furtherance of\u2019 the crime of rape.\nI dissent.\nHolt, C.J., joins in this dissent.", "type": "dissent", "author": "Robert H. Dudley, Justice," }, { "text": "David Newbern, Justice,\ndissenting. As the majority opinion states, one statutory definition of rape, as charged in this case, is \u201cdeviate sexual activity with another person ... by forcible compulsion.\u201d \u201cDeviate sexual activity\u201d has been defined by the General Assembly as \u201cany act of sexual gratification involving: [t]he penetration, however slight, of the vagina or anus of one person by any body member or foreign instrument manipulated by another person.\u201d Thus, to prove rape in the circumstances of this case, it was necessary for the state to show that Warren penetrated the victim as an act of \u201csexual gratification.\u201d\nThe Court\u2019s opinion concludes, in effect, it is unnecessary that there be proof of sexual gratification, relying on our decisions in Williams v. State, 298 Ark. 317, 766 S.W.2d 931 (1989), McGalliard v. State, 306 Ark. 181, 813 S.W.2d 768 (1991), and Holbert v. State, 308 Ark. 672, 826 S.W.2d 284 (1992). I disagree.\nIn the Williams case, Williams sought post-conviction relief on the ground that his lawyer was ineffective. See Ark. R. Crim. P. 37. He argued his lawyer should have challenged the sufficiency of the evidence used to convict Williams of rape. The evidence against Williams was that, during an attack on a woman he had once dated, he had placed his fingers in her vagina. We explained that the issue in an appeal from a denial of post-conviction relief is whether there is any evidence, no matter how slight, to support the conviction. We made this statement:\nThe plain fact is that when persons, other than physicians or other persons for legitimate medical reasons, insert something in another person\u2019s vagina or anus, it is not necessary that the state provide direct proof that the act was done for sexual gratification. [Emphasis supplied.]\nIn my view we were not saying that there need be no proof whatever, but that circumstantial evidence would suffice. As the General Assembly has made sexual gratification an element of the definition of the offense, of course we cannot disregard it. The State must prove each and every element of the offense beyond a reasonable doubt. To do otherwise would be a violation of the Due Process Clause of the Fourteenth Amendment. See Mullaney v. Wilbur, 421 U.S. 684 (1975); Patterson v. New York, 432 U.S. 197 (1911); Norton v. State, 271 Ark. 451, 609 S.W.2d 1 (1988).\nIn the McGalliard case, we were dealing with a conviction of first degree sexual abuse, Ark. Code Ann. \u00a7 5-14-108(a)(3)(1987), which also requires a finding of sexual gratification. We rejected McGalliard\u2019s contention that the requirement of finding sexual gratification made the Statute vague. We pointed out the dictionary definition of \u201csexual\u201d and that of \u201cgratification\u201d and said \u201c[w]hen construed in accordance with their reasonable and commonly accepted meaning and with the specific acts described in section 5-14-101(8) [defining \u201csexual contact\u201d], the words leave no doubt as to what behavior is prohibited under the statute.\u201d We then dealt with McGalliard\u2019s claim that the evidence was insufficient and found evidence of sexual gratification in the victim\u2019s testimony that McGalliard had touched her \u201cbetween my legs. . . (indicating) right there in the middle ... my private parts.\u201d\nIn the Holbert case, we again reviewed a conviction of sexual abuse in the first degree. The events giving rise to the charge occurred at a day care center. Witnesses, who were some of the child victims, testified they observed Holbert holding other girls and touching them between their legs in a manner that was not accidental. In another instance a witness testified that Holbert had touched the victims in their \u201cprivates.\u201d\nIn both the McGalliard and Holbert cases we cited the language quoted above from the Williams case for the proposition that there need be no direct evidence of sexual gratification, and that was correct. It is incorrect, however, to rely on it in this case in which there is no evidence whatever of sexual gratification. In all three of these earlier cases relied upon by the Court\u2019s opinion there was strong evidence of physical touchings, not involving an instrument, which could easily have been perceived by the fact finders as done for sexual gratification as we defined it in the McGalliard decision. I find no such evidence here.\nAs long as the General Assembly defines rape by deviate sexual activity as including sexual gratification on the part of the perpetrator, however ill advised that may be, I cannot ignore the requirement and vote to affirm a conviction when there is no such evidence, direct or circumstantial.\nI respectfully dissent.\nHolt, C.J., joins this dissent.", "type": "dissent", "author": "David Newbern, Justice," } ], "attorneys": [ "Gibbons Law Firm, P.A., by: David L. Gibbons, for appellant.", "Winston Bryant, Att\u2019y Gen., by: J. Brent Standridge, Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "William Bryant WARREN v. STATE of Arkansas\nCR 92-1053\n862 S.W.2d 222\nSupreme Court of Arkansas\nOpinion delivered September 20, 1993\nGibbons Law Firm, P.A., by: David L. Gibbons, for appellant.\nWinston Bryant, Att\u2019y Gen., by: J. Brent Standridge, Asst. Att\u2019y Gen., for appellee." }, "file_name": "0192-01", "first_page_order": 218, "last_page_order": 230 }