{ "id": 1455686, "name": "Kenneth BYRUM v. STATE of Arkansas", "name_abbreviation": "Byrum v. State", "decision_date": "1994-09-26", "docket_number": "CR 94-18", "first_page": "87", "last_page": "98", "citations": [ { "type": "official", "cite": "318 Ark. 87" }, { "type": "parallel", "cite": "884 S.W.2d 248" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "Ark. Code Ann. \u00a7 16-91-113", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "313 Ark. 561", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1914637 ], "weight": 4, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/313/0561-01" ] }, { "cite": "316 Ark. 799", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1907837 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/316/0799-01" ] }, { "cite": "316 Ark. 489", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1907763 ], "weight": 4, "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/316/0489-01" ] }, { "cite": "Ark. Code Ann. \u00a7 16-42-101", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1994, "pin_cites": [ { "parenthetical": "the \"Rape Shield Statute\"" } ], "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 5-4-504", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1993, "opinion_index": 0 }, { "cite": "312 Ark. 466", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1935149 ], "weight": 6, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/312/0466-01" ] }, { "cite": "41 Ark. App. 65", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137219 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark-app/41/0065-01" ] }, { "cite": "26 Ark. App. 106", "category": "reporters:state", "reporter": "Ark. App.", "year": 1989, "opinion_index": 0 }, { "cite": "26 Ark. App. 102", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137944 ], "weight": 3, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark-app/26/0102-01" ] }, { "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": "300 Ark. 147", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1886909 ], "weight": 4, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/300/0147-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-4-501", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1993, "opinion_index": 0 }, { "cite": "291 Ark. 4", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1872685 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ark/291/0004-01" ] }, { "cite": "305 Ark. 296", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1916736 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/305/0296-01" ] }, { "cite": "310 Ark. 119", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1898893 ], "weight": 6, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/310/0119-01" ] }, { "cite": "114 S. Ct. 1417", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1994, "opinion_index": 0 }, { "cite": "314 Ark. 257", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1912792 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/314/0257-01" ] }, { "cite": "314 Ark. 343", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1912812 ], "weight": 4, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/314/0343-01" ] } ], "analysis": { "cardinality": 931, "char_count": 20224, "ocr_confidence": 0.885, "pagerank": { "raw": 4.43162268451061e-07, "percentile": 0.920846929685862 }, "sha256": "e4ed61e5e1783996c61443952070e6a278179a019fd40a61a464c2823f792a8e", "simhash": "1:cbaf8026299ed11e", "word_count": 3335 }, "last_updated": "2023-07-14T18:28:16.788487+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Kenneth BYRUM v. STATE of Arkansas" ], "opinions": [ { "text": "Donald L. Corbin, Justice.\nAppellant, Kenneth Byrum, was found guilty by a jury of one count of rape. Appellant was sentenced as an habitual offender with five prior felony offenses to serve a term of imprisonment for life at the Arkansas Department of Correction. Appellant appeals and asserts six points of error. We find no merit and affirm.\nSUFFICIENCY OF THE EVIDENCE\nThe fourth of the six arguments raised by appellant is the trial court erred in denying his motions for directed verdict. We treat a challenge to the denial of a motion for directed verdict as a challenge to the sufficiency of the evidence. Mitchell v. State, 314 Ark. 343, 862 S.W.2d 254 (1993). Preservation of appellant\u2019s right to freedom from double jeopardy requires a review of the sufficiency of the evidence prior to a review of trial errors. Davis v. State, 314 Ark. 257, 863 S.W.2d 259 (1993), cert. denied, 114 S. Ct. 1417 (1994); Lukach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992). Consequently, we consider appellant\u2019s challenge to the sufficiency of the evidence prior to considering his other assignments of trial error.\nThe test we apply on appeal to determine sufficiency pf the evidence is whether there is substantial evidence to support the verdict, viewing the evidence in the light most favorable to the appellee. Mitchell, 314 Ark. 343, 862 S.W.2d 254; Gillie v. State, 305 Ark. 296, 808 S.W.2d 320 (1991). Substantial evidence must be forceful enough to compel a conclusion one way or the other beyond suspicion and conjecture.\nAs required, we recite the evidence in the light most favorable to appellee. The twelve-year-old victim testified that, at the time of the rape, she lived with her mother, her mother\u2019s friend, Victoria Smith, Ms. Smith\u2019s two teenaged sons, Dwayne and Chad, and Ms. Smith\u2019s boyfriend, Gary Martin, in Martin\u2019s house located outside DeQueen, Arkansas. The victim testified she slept on a mattress in the living room of Martin\u2019s house. The victim testified the thirty-eight-year-old appellant lived \u201cin a little trailer thing in the front yard [of Martin\u2019s house],\u201d and she considered appellant to be a friend of hers and of the other residents of the Martin house.\nThe victim testified that, on the evening of the rape, she and appellant, together with four of the victim\u2019s friends, whose ages ranged from eleven to fifteen years, drove around DeQueen and neighboring areas in Martin\u2019s Ford king cab truck. The victim testified appellant (the driver) was also drinking beer and driving recklessly. The victim testified the entire group drove to the Martin house around 7:00 or 8:00 p.m. and she then asked her mother for permission to ride with appellant to take the other passengers home. The testimony of the other passengers was they were home no later than 9:00 to 9:30 p.m., leaving only the victim and appellant in the Ford truck.\nThe victim testified that, after the other passengers had been dropped off, she began to drive and at appellant\u2019s direction she drove down a dirt road to a place where appellant and some of his friends used to go, pulled off the road, turned off the truck and put it in park. The victim testified appellant then put his hand between her legs and told her \u201call he wanted to do was eat me.\u201d The victim testified she told appellant to leave her alone and appellant replied if the victim did not go along with him, he would kill her. The victim testified appellant pulled her over to his lap, kissed her, undressed her and himself, and then performed oral sex on her. The victim testified appellant then placed her in the back seat of the king cab where she lay on her back, appellant got on top of her, \u201cstuck his penis inside of me,\u201d sucked her breasts and, finally, forced her to simultaneously perform oral sex on him while he performed oral sex on her.\nThe victim testified appellant told her to say they had a flat tire to account for arriving home so late. The victim testified she relayed the flat tire story to her mother upon returning to the Martin house at approximately 10:30 p.m., told Chad Smith what \u201c[appellant] did to me\u201d, took a bath and was asleep on the mattress in the living room about 11:00 p.m. Chad Smith testified the victim told him \u201cKenny raped me\u201d after she returned home that evening.\nThe victim testified she went to school the following morning and reported the rape to her teacher, then to her school counselor, and then to a representative of the State\u2019s Department of Human Services, Child Welfare Division. The testimony of the teacher and school counselor confirmed the victim told them about her rape the evening before.\nDr. Susan Couture, a board-certified physician in the fields of internal medicine and pediatrics, was admitted as an expert witness regarding medical matters. She testified she examined the victim on the day after the rape. She testified her examination revealed a bruise in the lower part of the victim\u2019s back as well as a superficial scratch, a small bruise on her inner thigh, and two tears in the victim\u2019s hymen. She testified her examination was consistent with penetration of the victim \u201cmost likely within 24 to 48 hours\u201d and the results of her examination were consistent with the victim\u2019s statement to her that the victim had been raped the night before.\nWe have repeatedly held the uncorroborated testimony of the rape victim is sufficient to uphold the defendant\u2019s conviction for rape. See, e.g., Lukach, 310 Ark. 119, 835 S.W.2d 852. In this case, the victim testified appellant committed the rape. Although corroboration was not required, the testimony of Dr. Couture and Chad Smith, in fact, corroborated the victim\u2019s testimony.\nOn appeal, appellant raises arguments based on the credibility of the witnesses, including conflicting testimony. We have held many times the determination of these issues is left to the trier of fact. Lukach, 310 Ark. 119, 835 S.W.2d 852; Mann v. State, 291 Ark. 4, 722 S.W.2d 266 (1987). The jury judged the credibility of the victim\u2019s testimony and returned a guilty verdict. The evidence is substantial and therefore sufficient to support the verdict.\nADMISSIBILITY OF CHAD SMITH\u2019S TESTIMONY UNDER EXCITED UTTERANCE EXCEPTION\nOn direct examination, Chad Smith was allowed to testify the victim told him \u201cKenny raped me.\u201d Appellant argues this statement was inadmissible hearsay not within the excited utterance exception in A.R.E. Rule 803(2). We conclude appellant did not preserve his argument by timely objection at trial, and we are precluded from reviewing this issue on appeal. A.R.E. Rule 103(a).\nA summary of the events at trial pertinent to the introduction of the challenged statement is useful in our review. Chad Smith was called as the State\u2019s second witness, his testimony having been preceded by opening statements of counsel and the testimony of the State\u2019s first witness, Officer Ray Gentry, Sevier County deputy sheriff, regarding his investigation of the rape.\nThe State then called Chad Smith, whereupon counsel for appellant requested a bench conference. A conference followed immediately between counsel for the State, counsel for appellant, and the trial judge. At the bench, counsel for appellant informed the trial court that appellant was unaware the State intended to call Chad Smith since he was listed as a defense witness, but had no objection to the State calling- this witness except that if the State asked the witness about statements made by the victim, appellant objected on hearsay grounds. The following colloquy ensued:\nTHE COURT: It sounds like to me if what [Chad Smith] is going to say is what they said in opening statement that was immediately after this incident that it would be an excited utterance and it would be an exception to the hearsay rule.\nMS. JONES [for defense]: Your Honor, the excited utterance has to fall very close behind \u2014\nMR. WRIGHT [for State]: No. As soon as they got through with the rape they went directly to the house and we\u2019re talking about ten minutes.\nMS. JONES: She didn\u2019t hit the door and run to Chad.\nTHE COURT: I\u2019m going to overrule your objection. ' I believe it is excited utterance based on what I\u2019ve heard about it so far.\nWe conclude this ruling by the trial court was simply a preliminary or qualified ruling on the admissibility of the victim\u2019s out-of-court declaration to Chad Smith, subject to the introduction of evidence sufficient to support a final ruling on the matter. The preliminary nature of the trial court\u2019s ruling is manifested by its timing and its language. At the time the ruling was made, there had been no proffer of Chad Smith\u2019s testimony. The witness had not yet taken the stand, been asked any questions, or given any foundation testimony pertinent to the availability of the excited utterance exception. At that point in the trial, based on statements of counsel, the trial court could only anticipate that Chad Smith\u2019s testimony might include hearsay statements potentially admissible under the excited utterance exception. Accordingly, the trial court specifically framed its ruling in terms of the limited record before it, stating: \u201cI believe it is excited utterance based on what I\u2019ve heard about it so far\u201d (emphasis added).\nOn direct examination of Chad Smith, after concluding its foundation questions, the State then asked the witness what the victim said to him. Appellant did not object to the question, nor did he renew or request a final ruling on his previous objection on this issue. Appellant did not move to strike the hearsay testimony. Based on the foregoing, we conclude appellant failed to make a timely objection at trial to the admission of the challenged statement, thus precluding appellant from raising this issue on appeal.\nSENTENCING AS HABITUAL OFFENDER \u2014 USE OF PRIOR CONVICTION POLK COUNTY CIRCUIT COURT #CR-77-29\nAppellant argues the trial court erred in using his 1977 burglary conviction in the Polk County Circuit Court, Docket #CR-77-29, in determining appellant\u2019s sentence here as an habitual offender pursuant to Ark. Code Ann. \u00a7 5-4-501 (Repl. 1993).\nA prior conviction cannot be used to enhance punishment unless the defendant was represented by counsel or validly waived counsel. Stewart v. State, 300 Ark. 147, 777 S.W.2d 844 (1989). In the event the record of the prior conviction does not show the defendant was represented by counsel, a presumption arises the defendant was denied assistance of counsel and the conviction cannot be used to enhance punishment under our habitual offender provisions. Id. The State has the burden of proving a defendant\u2019s prior conviction. On appeal, the test is whether there is substantial evidence the defendant was previously convicted of the felony in question. Id.\nPrior to trial, the State provided to appellant\u2019s counsel a copy of the uncorrected Arkansas Department of Correction commitment sheet for the challenged conviction. At trial, during an in-camera hearing held after the culpability stage of this bifurcated proceeding, the State provided to the trial judge and appellant\u2019s counsel a corrected copy of the Arkansas Department of Correction commitment sheet (the correction pertained to a matter not relevant to this discussion), and a copy of the Polk County Circuit Court\u2019s criminal court docket sheet for the challenged conviction. Both copies were certified by the Polk County Circuit Court Clerk\u2019s Office.\nThe copies of the uncorrected and corrected commitment sheet contained a blank space where the defendant\u2019s attorney should have been listed, and showed \u201cGeorge E. Steel, Jr.\u201d as attorney for the State. Both versions of the commitment document indicated the appellant pleaded \u201cguilty\u201d after withdrawing an initial plea of \u201cnot guilty.\u201d\nThe copy of the docket sheet contained a column headed \u201cAttorneys.\u201d In that column, opposite the State\u2019s name was written the name \u201cGeorge Steel, Jr.\u201d and opposite the defendant\u2019s name was written the name \u201cBob Keeter.\u201d At the in-camera hearing, the trial judge inquired as to whether \u201cBob Keeter\u201d was an attorney in Polk County, and appellant\u2019s counsel replied she believed he was.\nAppellant objected to the certified copies of the corrected commitment sheet and the docket sheet because those documents had not been provided to his counsel by the State through discovery prior to trial. This argument is without merit. We recently held, in Heard v. State, 316 Ark. 731, 876 S.W.2d 231 (1994), no error was committed by the trial court when it examined original docket entries for proof of the defendant\u2019s representation by counsel at a prior conviction in sentencing the defendant as an habitual offender where the State had' supplied the defendant with a \u201cpen pack\u201d for each prior conviction which did not reflect the defendant had an attorney in each case. The defendant there objected because the docket entries were not supplied to defense counsel prior to the sentencing phase of trial. We determined that objection to be meritless since the defense had been put on notice the State was going to ask for sentence enhancement because of the prior convictions and should have anticipated the pen pack\u2019s deficiency regarding prior representation being corrected.\nIn his brief, appellant relies upon Tims v. State, 26 Ark. App. 102, 760 S.W.2d 78 (1988), supp. op. on reh\u2019g, 26 Ark. App. 106-A, 770 S.W.2d 211 (1989), and Neville v. State, 41 Ark. App. 65, 848 S.W.2d 947 (1993), and also objected to the documents as ambiguous concerning the prior representation issue. We do not address this argument because it is raised for the first time on appeal. Oliver v. State, 312 Ark. 466, 851 S.W.2d 415 (1993).\nSENTENCING AS HABITUAL OFFENDER \u2014 USE OF PRIOR CONVICTION JOHNSON COUNTY CIRCUIT COURT #CR-76-48\nAppellant next argues the trial court erred in using his 1976 conviction for First Degree Carnal Abuse in the Johnson County Circuit Court, Docket #CR-76-48, in determining his sentence here as an habitual offender. Appellant objects to the form of the certification used by the Johnson County Circuit Clerk for the copy of the trial court\u2019s judgment which was presented as proof of the challenged conviction.\nThe Johnson County certificate form reads as follows:\nCERTIFIED TRUE COPY IS/ (JANE BIRKHAHN) JANE BIRKHAHN, CIRCUIT CLERK, JOHNSON COUNTY, ARK.\nThe Circuit Clerk\u2019s certificate and impressed seal is set forth in the lower left hand corner of a date-stamped \u201cfiled\u201d copy of the trial court\u2019s judgment for the challenged conviction.\nAppellant argues the Johnson County Circuit Clerk\u2019s format is insufficient proof of the conviction because it does not state the copy is a true and correct copy of the original, when the original was filed, or when the certified copy was prepared. Appellant cites no authority for this argument.\nOur statute governing proof of previous convictions for sentencing enhancement provides a previous conviction or finding of guilt of a felony may be proved by any evidence that satisfies the trial court beyond a reasonable doubt the defendant was convicted or found guilty. Ark. Code Ann. \u00a7 5-4-504 (Repl. 1993). Subsection (b) of the statute provides further: \u201c(b) The following are sufficient to support a finding of a prior conviction or finding of guilt: (1) A certified copy of the record of a previous conviction or finding of guilt by a court of record[.]\u201d\nThe Johnson County Circuit Clerk certified the copy of the previous conviction record as a true copy. Therefore, we hold the State sufficiently proved this prior conviction in compliance with section 5-4-504(b)(l).\nRAPE SHIELD STATUTE\nAppellant next argues the trial court erred in refusing to admit evidence of the victim\u2019s prior sexual conduct. We affirm the trial court\u2019s ruling on this issue.\nThe admissibility of a rape victim\u2019s prior sexual conduct is determined pursuant to the procedures set forth in Ark. Code Ann. \u00a7 16-42-101 (Repl. 1994) (the \u201cRape Shield Statute\u201d), and is discretionary with the trial court. Laughlin v. State, 316 Ark. 489, 872 S.W.2d 848 (1994). In evaluating the admissibility of such evidence under the statute, the trial court determines whether the probative value of the evidence outweighs its inflammatory nature. Drymon v. State, 316 Ark. 799, 875 S.W.2d 73 (1994). The trial court is given a great deal of discretion in ruling whether prior sexual conduct of a prosecuting witness is relevant, and we do not overturn its decision unless it constituted clear error or a manifest abuse of discretion. Id.; Gaines v. State, 313 Ark. 561, 855 S.W.2d 956 (1993).\nIn accordance with section 16-42-101(c), appellant filed a written motion on May 28, 1993 for an in-camera hearing to consider the admissibility of \u201crelevant evidence of the victim\u2019s prior sexual conduct for the purpose of showing motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, lack of truthfulness, and contradiction in statements.\u201d This motion was heard in chambers on the day of the trial prior to the trial\u2019s commencement. No witnesses were called by appellant and no documents were offered. In short, no proffer of the \u201crelevant evidence\u201d was made. Hence it is impossible for us to consider the admissibility of this evidence on appeal. Gaines, 313 Ark. 561, 855 S.W.2d 956. We note appellant did not object to and does not appeal any issue relating to the adequacy of the in-camera hearing. Thus, that issue is not before us. Laughlin, 316 Ark. 489, 872 S.W.2d 848.\nMOTION FOR CONTINUANCE\nAppellant\u2019s final argument is the trial court should have granted a continuance. Appellant\u2019s motion for continuance was filed on June 1, 1993, two days prior to the trial date, and heard at an in-camera proceeding held on the morning of the trial. On appeal, appellant argues the motion for continuance should have been granted to permit appellant additional time to review a thirteen-page statement given by the victim to Ms. Marsteen Harris, a criminal investigator with the Arkansas State Police, and to review certain tape recordings mentioned in the statement.\nA review of the transcript of the in-camera hearing on the motion identifies the thirteen-page statement as that given by the victim during an interview conducted by Ms. Harris on May 28, 1993. The transcript also reveals a copy of the statement was provided to appellant\u2019s counsel on June 2, 1993.\nThe burden is on the movant to show good cause for a continuance. A.R.Cr.P. Rule 27.3. The motion for continuance is addressed to the trial court\u2019s sound discretion. Oliver v. State, 312 Ark. 466, 851 S.W.2d. 415. The trial court\u2019s exercise of its discretion will not be reversed absent a showing of clear abuse of discretion; the burden of proving prejudice and an abuse of discretion belongs to the appellant. Id. Among the factors the trial court should consider in determining whether a continuance should be granted are the diligence of the movant and the probable effect and the relevance of the testimony at trial. Id.\nWe conclude appellant has failed to carry his burden to show prejudice in this matter. Appellant was provided with a copy of the thirteen-page statement on the day prior to the trial date. Moreover, the victim testified at the trial, and appellant made frequent references to the interview with Ms. Harris on cross-examination of the victim. With respect to the tape recordings, we observe they were never mentioned at trial and appellant fails to identify the nature and content of the tapes, and, therefore, to demonstrate any prejudice resulting from his failure to review them prior to trial. Finally, we note appellant agreed to the immediate trial date at the bond reduction hearing conducted three weeks prior to the trial date without conditioning that consent on the availability of further discovery from the victim or any other witness.\nIn accordance with Ark. Sup. Ct. R. 4-3(h) and Ark. Code Ann. \u00a7 16-91-113(a) (1987), we have examined the record and determined there were no rulings prejudicial to appellant.\nAffirmed.", "type": "majority", "author": "Donald L. Corbin, Justice." } ], "attorneys": [ "LaJeana Jones, for appellant.", "Winston Bryant, Att\u2019y Gen., by: Sandy Moll, Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Kenneth BYRUM v. STATE of Arkansas\nCR 94-18\n884 S.W.2d 248\nSupreme Court of Arkansas\nOpinion delivered September 26, 1994\nLaJeana Jones, for appellant.\nWinston Bryant, Att\u2019y Gen., by: Sandy Moll, Asst. Att\u2019y Gen., for appellee." }, "file_name": "0087-01", "first_page_order": 117, "last_page_order": 128 }