{ "id": 1451189, "name": "Robert Wayne GATLIN v. STATE of Arkansas", "name_abbreviation": "Gatlin v. State", "decision_date": "1995-03-27", "docket_number": "CR 94-1187", "first_page": "120", "last_page": "127", "citations": [ { "type": "official", "cite": "320 Ark. 120" }, { "type": "parallel", "cite": "895 S.W.2d 526" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "308 Ark. 444", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1904343 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/308/0444-01" ] }, { "cite": "497 U.S. 805", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6219632 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/us/497/0805-01" ] }, { "cite": "314 Ark. 296", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1912791 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/314/0296-01" ] }, { "cite": "317 Ark. 350", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1443815 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/317/0350-01" ] }, { "cite": "310 Ark. 392", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1898903 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/310/0392-01" ] }, { "cite": "475 U.S. 673", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6207521 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/us/475/0673-01" ] }, { "cite": "318 Ark. 603", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1455840 ], "weight": 2, "year": 1994, "pin_cites": [ { "parenthetical": "citing Delaware v. Van Arsdall, 475 U.S. 673 (1986) and Winfrey v. State, 293 Ark. 342, 738 S.W.2d 391 (1987)" }, { "parenthetical": "citing Delaware v. Van Arsdall, 475 U.S. 673 (1986) and Winfrey v. State, 293 Ark. 342, 738 S.W.2d 391 (1987)" } ], "opinion_index": 0, "case_paths": [ "/ark/318/0603-01" ] }, { "cite": "317 Ark. 548", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1443807 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/317/0548-01" ] }, { "cite": "470 U.S. 1085", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11330208, 11329984, 11330983, 11330696, 11330793, 11331149, 11330606, 11330896, 11330321, 11330417, 11330133, 11330041, 11330524 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/us/470/1085-04", "/us/470/1085-01", "/us/470/1085-12", "/us/470/1085-09", "/us/470/1085-10", "/us/470/1085-13", "/us/470/1085-08", "/us/470/1085-11", "/us/470/1085-05", "/us/470/1085-06", "/us/470/1085-03", "/us/470/1085-02", "/us/470/1085-07" ] }, { "cite": "670 S.W.2d 434", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1984, "opinion_index": 0 }, { "cite": "282 Ark. 563", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1740879 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/ark/282/0563-01" ] }, { "cite": "302 Ark. 532", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1884276 ], "weight": 5, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/302/0532-01" ] }, { "cite": "15 Ark. L. Rev. 125", "category": "journals:journal", "reporter": "Ark. L. Rev.", "year": 1960, "opinion_index": 0 }, { "cite": "114 S. Ct. 1316", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1994, "opinion_index": 0 }, { "cite": "314 Ark. 523", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1912803 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/314/0523-01" ] }, { "cite": "303 Ark. 30", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1882732 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/303/0030-01" ] }, { "cite": "293 Ark. 342", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1869807 ], "weight": 6, "year": 1987, "opinion_index": 0, "case_paths": [ "/ark/293/0342-01" ] }, { "cite": "319 Ark. 243", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1453552 ], "weight": 2, "year": 1995, "pin_cites": [ { "parenthetical": "citing Winfrey v. State, 293 Ark. 342, 738 S.W.2d 391 (1987)" }, { "parenthetical": "citing Winfrey v. State, 293 Ark. 342, 738 S.W.2d 391 (1987)" } ], "opinion_index": 0, "case_paths": [ "/ark/319/0243-01" ] }, { "cite": "307 Ark. 180", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1902481 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/307/0180-01" ] }, { "cite": "308 Ark. 539", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1904324 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/308/0539-01" ] }, { "cite": "315 Ark. 602", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1910489 ], "weight": 5, "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/315/0602-01" ] }, { "cite": "302 Ark. 532", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1884276 ], "weight": 2, "year": 1990, "opinion_index": 1, "case_paths": [ "/ark/302/0532-01" ] } ], "analysis": { "cardinality": 646, "char_count": 13011, "ocr_confidence": 0.888, "pagerank": { "raw": 6.124313087469899e-07, "percentile": 0.9559516790361137 }, "sha256": "765f2b21304c34d7384784e236f155259efbf650f1c149a9b530be9c38f9f821", "simhash": "1:53cca4f76ed8dfb1", "word_count": 2121 }, "last_updated": "2023-07-14T17:06:37.743482+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Newbern and Roaf, JJ\u201e concur.", "Roaf, J., joins in this concurrence." ], "parties": [ "Robert Wayne GATLIN v. STATE of Arkansas" ], "opinions": [ { "text": "Donald L. Corbin, Justice.\nAppellant, Robert Wayne Gatlin, appeals an order of the Hot Spring County Circuit Court convicting him of the rape of his nine-year-old daughter and sentencing him to forty years in the Arkansas Department of Correction. Appellant raises two points for reversal of the judgment. We find no error and affirm.\nFirst, appellant argues the trial court erred in denying his motion for directed verdict. Appellant timely moved for a directed verdict on the specific ground that the state had not produced any evidence of penetration. On appeal, appellant acknowledges that the victim testified he put his penis inside her body, but argues this is insufficient evidence for the jury to determine that penetration occurred. Appellant argues there was no medical evidence presented to indicate penetration of the victim occurred, nor was there any testimony by any witness, save the victim, that penetration occurred. This argument is wholly without merit and patently contrary to the law.\nOn appeal from the denial of a motion for directed verdict, we view the evidence in the light most favorable to the party against whom the verdict is sought and affirm if there is substantial evidence to support the verdict. Clark v. State, 315 Ark. 602, 870 S.W.2d 372 (1994). Substantial evidence is evidence of a sufficient force and character to compel a conclusion one way or another, forcing the mind to pass beyond suspicion or conjecture. Id.\nThis court has consistently held that a victim\u2019s testimony may constitute substantial evidence to sustain a conviction of rape. See, e.g., Franklin v. State, 308 Ark. 539, 825 S.W.2d 263 (1992); Prater v. State, 307 Ark. 180, 820 S.W.2d 429 (1991). This is true even when the rape victim is a child. Caldwell v. State, 319 Ark. 243, 891 S.W.2d 42 (1995) (citing Winfrey v. State, 293 Ark. 342, 738 S.W.2d 391 (1987)). More particularly, this court has stated that the testimony of the victim which shows penetration is enough for conviction. Clark, 315 Ark. 602, 870 S.W.2d 372. In addition, this court has consistently held that the rape victim\u2019s testimony need not be corroborated, Winfrey, 293 Ark. 342, 738 S.W.2d 391, nor is scientific evidence required. White v. State, 303 Ark. 30, 792 S.W.2d 867 (1990).\nSection 5-14-103 of the Arkansas Code Annotated of 1987 defines rape as follows: \u201c(a) A person commits rape if he engages in sexual intercourse or deviate sexual activity with another person[.] ... (3) Who is less than fourteen (14) years of age.\u201d Section 5-14-101(9) defines \u201csexual intercourse\u201d as meaning \u201cpenetration, however slight, of a vagina by a penis[.]\u201d Section 5-14-101(1) defines \u201cdeviate sexual activity\u201d as involving, inter alia, \u201c[t]he penetration, however slight, of the anus or mouth of one person by the penis of another person[.]\u201d\nIn the present case, there is substantial evidence that appellant penetrated the victim\u2019s vagina or anus or both with his penis. Indeed, as appellant acknowledges in his brief, the nine-year-old victim testified that her father, appellant, put his penis inside her body. After identifying the penis of a stuffed rabbit, the victim stated that appellant had placed his penis inside her and moved it up and down. The victim testified that appellant put his penis both inside and outside her body, that when he put his penis on the inside of her body it hurt and made her cry, and that appellant told her not to tell anybody. She stated further that appellant \u201cput his penis in my bottom\u201d and \u201churt me real bad.\u201d She stated that he \u201ctouched her in a bad way\u201d a lot of times, sometimes in her bedroom, in her brother\u2019s bedroom, or in the living room.\nThe foregoing testimony by the child victim is substantial evidence of penetration. It is sufficient, standing alone, absent any corroboration, to sustain appellant\u2019s conviction for rape. Fox v. State, 314 Ark. 523, 863 S.W.2d 568 (1993), cert. denied, 114 S. Ct. 1316 (1994). The state correctly points out that corroboration of the victim\u2019s testimony exists in this case. We need not discuss it, however, as corroboration is not required. The trial court did not err in refusing to direct a verdict for appellant.\nAs his second point for reversal, appellant argues the trial court erred in admitting hearsay testimonies of the victim\u2019s grandmother and appellant\u2019s mother, Wanda Jean Lightner, and of the victim\u2019s step-grandfather and appellant\u2019s stepfather, David Lightner. The Lightners both testified that, on the morning after the Lightners witnessed appellant climbing out of the top bunk where the victim lay sleeping, the victim told them, while appellant was present, that appellant \u201cput his pee pee in her pee pee.\u201d The Lightners both testified that appellant responded to the victim\u2019s statement by saying, \u201cMother, do you know what you are doing to me?\u201d The trial court admitted the foregoing testimony after ruling imcamera that anything that was said in front of appellant was \u00e1dmissible.\nOn appeal, appellant contends the testimonies were inadmissible hearsay. The state responds that the testimonies were admissible as an adoptive admission pursuant to A.R.E. Rule 801(d)(2)(ii). Appellant acknowledges that Arkansas law allows an adoptive admission, citing Ralph Barnhart, Statements Made Out of Court, 15 Ark. L. Rev. 125 (1960-61), but contends the trial court\u2019s ruling is based on a peculiar rule in Arkansas that \u201cdoes not exist in any books.\u201d\nRule 801(d)(2)(h) of the Arkansas Rules of Evidence states that a statement is not hearsay if it is offered against a party and is a statement of which the party has manifested his adoption or belief in its truth. This court has previously stated that, before admitting evidence as an adoptive admission pursuant to Rule 801(d)(2)(h), a trial court must find that sufficient foundational facts have been introduc\u00e9d so that the jury can reasonably infer that the party-opponent heard and understood the statement, and that, under the circumstances, the statement was such that, if the party-opponent did not believe the statement to be true, the party-opponent would normally respond. Morris v. State, 302 Ark. 532, 792 S.W.2d 288 (1990). Once a foundation has been laid, it is for the jury to determine whether the party-opponent adopted or acquiesced in the statement. Id.\nIn the present case, the testimony indicates appellant was present when the victim\u2019s out-of-court statement was made. However, the trial court erred in ending its analysis at that point. Before admitting testimony as an adoptive admission, a trial court must find that the requisite foundational facts have been introduced. Morris, 302 Ark. 532, 792 S.W.2d 288. Here, the state failed to produce foundational facts showing that appellant\u2019s response to the victim\u2019s statement manifested his acquiescence thereto. In our view, \u201cMother, do you know what you are doing to me?\u201d does not indicate appellant adopted the victim\u2019s statement as his own or that he believed in its truth. Therefore, the trial court erred in admitting the Lightners\u2019 hearsay testimonies.\nAlternatively, the state contends that the error in admitting the hearsay was not prejudicial and therefore harmless. This court does not presume prejudice when error is alleged. Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), cert. denied, 470 U.S. 1085 (1985). Rather, it is appellant\u2019s burden to produce a record that demonstrates prejudice occurred. Id. This court has repeatedly held that an appellant must show prejudice because we do not reverse for harmless error. Wilson v. State, 317 Ark. 548, 878 S.W.2d 755 (1994).\nAppellant objected to the Lightners\u2019 testimonies on the basis of hearsay. On appeal, he makes a general citation to Rule 802 of the Arkansas Rules of Evidence and contends the testimonies were clearly hearsay and used only to bolster and reinforce the victim\u2019s statements. Trial error, even involving the Confrontation Clause, is subject to a harmless error analysis. Watson v. State, 318 Ark. 603, 887 S.W.2d 518 (1994) (citing Delaware v. Van Arsdall, 475 U.S. 673 (1986) and Winfrey v. State, 293 Ark. 342, 738 S.W.2d 391 (1987)). However, appellant did not raise any constitutional objection, either below or on appeal, and has therefore waived any constitutional argument. Killcrease v. State, 310 Ark. 392, 836 S.W.2d 380 (1992). Thus, for purposes of our harmless error analysis, we need not be concerned with the constitutional standard of harmlessness beyond a reasonable doubt. Greene v. State, 317 Ark. 350, 878 S.W.2d 384 (1994).\nWe conclude the error in this case is harmless. As we have determined, the victim\u2019s out-of-court statement that her father \u201cput his pee pee in her pee pee,\u201d was hearsay erroneously admitted at trial. However, the victim stated on direct examination that appellant had raped her numerous times prior to the incident that generated the Lightners\u2019 hearsay testimonies. Thus, the victim\u2019s own testimony evidenced her rape by appellant, independent of her challenged hearsay statement to the Lightners, and thereby provided competent evidence rendering harmless the error caused by admission of the hearsay. Cloird v. State, 314 Ark. 296, 862 S.W.2d 211 (1993). Moreover, we emphasize that although the hearsay declarant, the victim, testified at trial and was subject to cross-examination by appellant, he chose to forego his opportunity to pursue the issue of statements the victim made to the Lightners. The danger of unreliability inherent in hearsay testimony is alleviated by the opportunity to cross-examine the declarant. Idaho v. Wright, 497 U.S. 805 (1990). This court has held that the Confrontation Clause is not violated by the admission of additional hearsay statements made by a declarant when that declarant testifies at trial and is subject to cross-examination. Watson v. State, 308 Ark. 444, 825 S.W.2d 569 (1992). Thus, the availability of the declarant for cross-examination also rendered harmless the error caused by the admission of the hearsay.\nIn summary, the substance of the challenged testimonies were admitted without error during the victim\u2019s direct examination and appellant did not take advantage of the victim\u2019s availability for cross-examination on the hearsay statements. Appellant has therefore failed to demonstrate prejudice and the error in admitting the hearsay was harmless.\nThe judgment of conviction is affirmed.\nNewbern and Roaf, JJ\u201e concur.", "type": "majority", "author": "Donald L. Corbin, Justice." }, { "text": "David Newbern, Justice,\nconcurring. The majority opinion is correct to a point. I write to express my reservations about the discussion of adoptive admission and harmless error.\nThe majority opinion recognizes the error in the Trial Court\u2019s conclusion that any statement uttered in the presence of the accused is not hearsay. It also seems to recognize that an adoptive admission may occur through the silence of the accused in the face of an accusation to which he should have responded. It then shifts, however, and it seems to base its ultimate conclusion on the statement the accused made to his mother rather than his silence, which Mr. Lightner described as \u201cdumbfounded,\u201d after hearing the accusation of his daughter, the victim. The emphasis here should be on that silence and failure to respond to the accusation.\nThe majority opinion points out that a statement, such as that uttered by the daughter, and evidence of the accused\u2019s silence in the face of that statement become admissible upon the showing of \u201cfoundational facts.\u201d Morris v. State, 302 Ark. 532, 792 S.W.2d 288 (1990). The decision to be made by the Trial Court is whether the statement in question is the sort to which a response would be expected if it were not true.\nWhen the hearsay objection was made, the question before the Trial Court was whether Mr. and Mrs. Lightner\u2019s statements could be received, not for the truth of the matter asserted by the declarant (their granddaughter), but as a foundation for permitting testimony that the accused did not respond to it.\nThe ruling of the Trial Court admitting the evidence was correct, although he gave the wrong reason. The statement made by the child was without doubt of the sort to which the accused should have made a response if he considered it untrue. His silence constituted an adoptive admission. I would hold the evidence admissible on that basis.\nMr. Gatlin was on trial for a particular offense of rape to which his daughter\u2019s statement and his silence in the face of it were relevant. I would not hold it was harmless error to admit those items of evidence on the basis of the daughter\u2019s statement that similar things had occurred on other occasions. Had admission of the daughter\u2019s statement and evidence of Mr. Gatlin\u2019s silence been error, it would not have been harmless.\nRoaf, J., joins in this concurrence.", "type": "concurrence", "author": "David Newbern, Justice," } ], "attorneys": [ "Joe Kelly Hardin, for appellant.", "Winston Bryant, Att\u2019y Gen., by: Sandy Moll, Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Robert Wayne GATLIN v. STATE of Arkansas\nCR 94-1187\n895 S.W.2d 526\nSupreme Court of Arkansas\nOpinion delivered March 27, 1995\nJoe Kelly Hardin, for appellant.\nWinston Bryant, Att\u2019y Gen., by: Sandy Moll, Asst. Att\u2019y Gen., for appellee." }, "file_name": "0120-01", "first_page_order": 144, "last_page_order": 151 }