{ "id": 3799116, "name": "Vasun BUFORD v. STATE of Arkansas", "name_abbreviation": "Buford v. State", "decision_date": "2006-11-16", "docket_number": "CR 05-1233", "first_page": "87", "last_page": "92", "citations": [ { "type": "official", "cite": "368 Ark. 87" }, { "type": "parallel", "cite": "243 S.W.3d 300" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "363 Ark. 395", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 3558348 ], "weight": 2, "year": 2005, "opinion_index": 0, "case_paths": [ "/ark/363/0395-01" ] }, { "cite": "354 Ark. 187", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 36078 ], "weight": 2, "year": 2003, "opinion_index": 0, "case_paths": [ "/ark/354/0187-01" ] }, { "cite": "333 Ark. 137", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 703778 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/333/0137-01" ] }, { "cite": "289 Ark. 533", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1875432 ], "weight": 6, "year": 1986, "pin_cites": [ { "page": "534" }, { "page": "917" } ], "opinion_index": 0, "case_paths": [ "/ark/289/0533-01" ] }, { "cite": "299 Ark. 255", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1888344 ], "weight": 5, "year": 1989, "pin_cites": [ { "page": "257" }, { "page": "420" } ], "opinion_index": 0, "case_paths": [ "/ark/299/0255-01" ] }, { "cite": "340 Ark. 530", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1365304 ], "weight": 3, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark/340/0530-01" ] }, { "cite": "308 Ark. 622", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1904358 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/308/0622-01" ] }, { "cite": "320 Ark. 552", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1451143 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/320/0552-01" ] }, { "cite": "362 Ark. 279", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 3559665 ], "weight": 2, "year": 2005, "opinion_index": 0, "case_paths": [ "/ark/362/0279-01" ] } ], "analysis": { "cardinality": 589, "char_count": 11159, "ocr_confidence": 0.778, "pagerank": { "raw": 3.357672868440196e-07, "percentile": 0.8750981234813304 }, "sha256": "9a84c54196eaabd5bf89a791c5b4ed23be02d5a9d6c64963789db073cfba3508", "simhash": "1:dc2fcc8e5e79f32e", "word_count": 1862 }, "last_updated": "2023-07-14T15:59:17.047242+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Vasun BUFORD v. STATE of Arkansas" ], "opinions": [ { "text": "Annabelle Clinton Imber, Justice.\nAppellant Vasun Buford was convicted of rape and sentenced to life imprisonment as a habitual offender. Our jurisdiction is therefore proper pursuant to Ark. Sup. Ct. R. l-2(a)(2) (2006). Buford does not challenge the sufficiency of the evidence supporting his conviction, but does raise two points of error on appeal. First, he argues that the circuit court erred in fading to sustain his objection when the prosecutor elicited opinion testimony about the victim\u2019s credibility. Second, Buford contends that the circuit court erred in failing to grant his motion for a new venire at his retrial on the rape charge. Finding no reversible error, we affirm.\nBuford\u2019s first trial ended in a mistrial because of a hung jury. At a pretrial hearing prior to the second trial, Buford\u2019s attorney made a motion for a new venire, arguing that it would be potentially dangerous and prejudicial for Buford to be tried by the same panel. Expressing concerns regarding posttrial publicity, Buford\u2019s attorney noted that excused jurors were not admonished by the court to avoid reading newspapers. Headlines regarding Buford\u2019s previous trial ran in local newspapers for two days, including the prosecutor\u2019s comment that the jury was 11-1 in favor of the State. The circuit court denied Buford\u2019s motion for a new venire, but also excluded those who had served on the jury at the first trial from being called, including the alternate.\nJ.M., the victim, is developmentally disabled and was thirteen years old at the time of the offense. At trial, he testified that he went with a couple of other boys to Buford\u2019s apartment to help him clean. After they left, J.M. returned to the apartment by himself, knocked on the door, and Buford let him in. J.M. then described how Buford perpetrated the crime of rape in graphic detail. Before J.M. ran out of the apartment, Buford threatened to kill him if he told anyone what happened. Two witnesses for the State, B.W. and E.R, ages twelve and eight respectively, testified at trial and corroborated J.M.\u2019s testimony, stating that they observed the incident through a window.\nCarman Howell testified as a child-abuse expert based upon her experience as the director of the child-abuse clinic at St. Joseph\u2019s Hospital in Hot Springs, as a forensic interviewer certified by the American Professional Society on the Abuse of Children, and as a former child-abuse investigator for the Arkansas State Police. Buford objected to her testifying as an expert, stating \u201cLast time, they attempted to have her give testimony as to whether or not J.[M.] was telling the truth, and I\u2019m not sure her expertise would allow her to testify to that.\u201d According to Howell, when a child alleges that he or she has been sexually abused, she uses two methods to determine if the child is telling the truth. After developing a rapport with the child, she first has the child define the words \u201ctruth\u201d and \u201clie.\u201d Second, Howell administers the Lyon-Saywitz Truth/Lie Assessment method, which is used throughout the United States to determine if a child knows the difference between the truth and a lie and if he or she understands the consequences of telling the truth and lying. Howell testified that she is also trained to observe the child\u2019s body language to determine whether the child is telling the truth. At trial, the prosecutor asked Howell to give her opinion on whether the victim was telling the truth about the incident at Buford\u2019s apartment. Buford immediately objected, but the circuit court overruled the objection. Howell then responded as follows: \u201cI believe that J.[M.] is telling the truth. I believe that J.[M.] is credible.\u201d When the prosecutor followed up by repeating \u201c[a]nd you believe that \u2014 ,\u201d Howell interjected, \u201cWholeheartedly.\u201d\nUltimately, the jury convicted Buford of rape and sentenced him to life imprisonment. He now appeals that conviction.\n1. Opinion on the credibility of the witness\nFor his first point on appeal, Buford argues that the circuit court erred in failing to sustain his objection when the prosecutor elicited opinion testimony about the victim\u2019s credibility. Specifically, Buford asserts that the circuit court violated Arkansas law by allowing Howell to testify that the victim was telling the truth and was credible. We agree.\nThe decision to admit or exclude evidence is within the sound discretion of the trial court, and we will not reverse the trial court\u2019s decision regarding the admission of evidence absent a manifest abuse of discretion. Rollins v. State, 362 Ark. 279, 208 S.W.3d 215 (2005). The general test for admissibility of expert testimony is whether the testimony will aid the trier of fact in understanding the evidence or in determining a fact in issue. Ark. R. Evid. 702 (2006); Stout v. State, 320 Ark. 552, 898 S.W.2d 457 (1995); Utley v. State, 308 Ark. 622, 826 S.W.2d 268 (1992). An important consideration in determining whether the testimony will aid the trier of fact is whether the situation is beyond,the ability of the trier of fact to understand and draw its own conclusions. Utley v. State, supra.\nIn Hinkston v. State, 340 Ark. 530, 10 S.W.3d 906 (2000), we analyzed the issue of expert testimony on the credibility of a witness. There, Hinkston argued that an expert witness\u2019s testimony was admissible to explain the inconsistencies in his statements to police officers. Id. Reiterating our holding in Utley v. State, supra, we noted that where the introduction of expert testimony would invade the function of the jury or where it does not help the jury, such testimony is not admissible. Hinkston v. State, supra. Further, we noted that expert testimony on the credibility of witnesses is an invasion of the jury\u2019s province. Id. As a result, we found that the circuit court properly found that the testimony would have invaded the province of the jury. Id.\nSimilarly, in Logan v. State, 299 Ark. 255, 773 S.W.2d 419 (1989), the essence of the expert testimony was that the victim was telling the truth. In that case, the State elicited expert testimony by asking hypothetical questions. Id. In noting that it was prejudicial error to admit the testimony, we said, \u201cIt is clear from the hypothetical questions and answers that the [expert witnesses] were informing the jury that in their opinion the victim was telling the truth.\u201d Logan v. State, 299 Ark. at 257, 773 S.W.2d at 420.\nAdditionally, in Russell v. State, 289 Ark. 533, 712 S.W.2d 916 (1986), the appellant argued that the trial court erred in allowing the witness to answer whether the victim\u2019s statements were consistent with sexual abuse because the subject matter was not beyond the common knowledge of the jury. Id. Again, noting the general test for the admissibility of expert testimony, we held that \u201clay jurors were fully competent to determine whether the history given by the victim was consistent with sexual abuse.\u201d Russell v. State, 289 Ark. at 534, 712 S.W.2d at 917. As a result, this court concluded that the circuit court erred in admitting the testimony, but the State\u2019s case against the defendant was so strong, the error was not of consequence and no prejudice resulted. Id.\nIn the instant case, the testimony failed the general test of admissibility \u2014 whether it would aid the trier of fact in understanding the evidence or in determining a fact in issue. The lay jurors were fully competent to determine whether J.M. was telling the truth. There is no doubt that the elicited testimony invaded the province of the jury because the type of testimony at issue is not the kind that is beyond the ability of the trier of fact to understand and draw its own conclusions. Indeed, the jury alone determines the credibility of the witnesses and apportions the weight to be given to the evidence. Parker v. State, 333 Ark. 137, 968 S.W.2d 592 (1998). As a result, we conclude that the circuit court erred in admitting the challenged testimony.\nEven when a circuit court errs in admitting evidence, we have held that when the evidence of guilt is overwhelming and the error is slight, we can declare that the error was harmless and affirm the conviction. Barrett v. State, 354 Ark. 187, 119 S.W.3d 485 (2003); Russell v. State, supra. To determine if the error is slight, we can look to see if the defendant was prejudiced. Barrett v. State, supra. Although we have concluded that the circuit court erred in admitting the testimony of the expert witness, we further conclude that the error was slight. It is well settled that uncorroborated testimony of a rape victim is sufficient to support a conviction. Williams v. State, 363 Ark. 395, 214 S.W.3d 829 (2005). Here, testimony elicited at trial provided graphic details of the rape. J.M. testified that Buford raped him, and independent eyewitness testimony corroborated J.M.\u2019s description of what Buford did to him. Thus, any prejudice resulting from the circuit court\u2019s error was minimal and, in light of the independent eyewitness testimony, the error was slight. In other words, the evidence of Buford\u2019s guilt is overwhelming, and the error is slight. We therefore declare that the circuit court\u2019s error in admitting opinion testimony on the victim\u2019s credibility was harmless.\n2. The venire\nFor his second point on appeal, Buford argues that the circuit court erred in failing to grant his motion for a new venire at his retrial on the rape charge. Citing the Sixth Amendment to the United States Constitution and the Arkansas Constitution, he claims that the posttrial publicity, mainly the prosecutor\u2019s comment regarding the jury vote, violated his right to a fair trial and an impartial jury at his second trial.\nWe have held many times that arguments not raised at trial will not be addressed for the first time on appeal. Hinkston v. State, supra. Parties cannot change the grounds for an objection on appeal, but are bound by the scope and nature of their objections as presented at trial. Id. At trial, Buford never argued that his constitutional rights under the Sixth Amendment to the United States Constitution and the Arkansas Constitution were violated when the circuit court denied his motion for a new venire. We do not consider arguments, even constitutional ones, raised for the first time on appeal. Hinkston v. State, supra. Because this argument is not preserved for appellate review, we are precluded from addressing it.\n3. Rule 4-3(h)\nIn compliance with Ark. Sup. Ct. R. 4-3(h) (2006), an examination of the transcript has been made and there are no reversible errors on any rulings adverse to Buford.\nAffirmed.\nRule 702 of the Arkansas Rules of Evidence states, \u201cIf scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.\u201d", "type": "majority", "author": "Annabelle Clinton Imber, Justice." } ], "attorneys": [ "Alvin Schay, for appellant.", "Mike Beebe, Att\u2019y Gen., by: Brad Newman, Ass\u2019t Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Vasun BUFORD v. STATE of Arkansas\nCR 05-1233\n243 S.W.3d 300\nSupreme Court of Arkansas\nOpinion delivered November 16, 2006\nAlvin Schay, for appellant.\nMike Beebe, Att\u2019y Gen., by: Brad Newman, Ass\u2019t Att\u2019y Gen., for appellee." }, "file_name": "0087-01", "first_page_order": 113, "last_page_order": 118 }