Opinion
CACR08-1215
Opinion Delivered September 2, 2009
Appeal from the Saline County Circuit Court, [No. CR-06-699-3], Honorable Grisham A. Phillips, Judge, Affirmed.
A jury in Saline County found appellant Carlos Andrew Keck guilty of rape, for which he received a twenty-five-year term of imprisonment. For reversal, he contends that the evidence is not sufficient to support the jury's verdict and that the trial court erred by restricting his cross-examination of the victim. We affirm.
We first address appellant's challenge to the sufficiency of the evidence. The record reflects that the victim is appellant's adoptive daughter, J.K., who was seventeen years old at the time of trial. The information charged appellant with the rape of J.K. under the provisions of Arkansas Code Annotated section 5-14-103(a)(4)(A)(i) (Supp. 2007), which states that a person commits rape if he engages in sexual intercourse or deviate sexual activity with another person who is less than eighteen years of age and the actor is the victim's guardian. The term "sexual intercourse" means the penetration, however slight, of the labia majora by a penis. Ark. Code Ann. § 5-14-101(10) (Repl. 2006). The phrase "deviate sexual activity" is defined as any act of sexual gratification involving the penetration, however slight, of the anus or mouth of a person by the penis of another person. Ark. Code Ann. § 5-14-101(1)(A).
The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence. Henson v. State, 2009 Ark. App. 464, 2009 WL 1544272. Substantial evidence is evidence forceful enough to reach a conclusion one way or the other beyond speculation or conjecture. Smith v. State, 352 Ark. 92, 98 S.W.3d 433 (2003). When a defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in the light most favorable to the State, and only evidence supporting the verdict will be considered. Moore v. State, 355 Ark. 657, 144 S.W.3d 260 (2004).
In arguing that the evidence is insufficient, appellant points out that J.K.'s physical examination was normal, and thus he asserts that there is no tangible evidence to corroborate her version of events. Appellant also relies on testimony that he had a low testosterone level, diabetes, and erectile dysfunction and that he and his wife did not have sexual relations in the six months prior to his arrest. J.K., however, gave unequivocal testimony that appellant engaged in acts of sexual intercourse, cunnilingus, or fellatio with her several times a week beginning when she was thirteen or fourteen years old. A rape victim's testimony need not be corroborated nor is scientific evidence required. Brown v. State, 374 Ark. 341, ___ S.W.3d ___ (2008). In fact, a rape victim's testimony alone is sufficient to constitute substantial evidence to support a rape conviction. See Ellis v. State, 364 Ark. 538, 222 S.W.3d 192 (2006). The jury deemed J.K.'s testimony worthy of belief, and the jury's conclusion on credibility is binding on this court. Hull v. State, 96 Ark. App. 280, 241 S.W.3d 302 (2006). We hold that substantial evidence supports appellant's conviction for rape.
Appellant's next argument is that the trial court erred by curtailing his cross-examination of J.K. On direct examination, J.K. testified that she almost lost credit for her junior year in high school because she missed several weeks of school while she was in foster care after appellant's arrest. On cross-examination, appellant sought to contradict this testimony with statements made by J.K. in a blog entry when she was no longer in foster care. In this blog entry, J.K. indicated that her grades were poor and that she might not pass the eleventh grade because she was having too much fun with her friends. The trial court sustained the State's objection to this line of inquiry, ruling that the blog entry did not contradict J.K.'s testimony given on direct examination and that it lacked temporal relevance to the time when J.K. was in foster care.
We review matters concerning the scope of cross-examination under an abuse-of-discretion standard. Rodgers v. State, 360 Ark. 24, 199 S.W.3d 625 (2004). We are also mindful that a trial court has wide latitude to impose reasonable limits on cross-examination based on concerns about, among other things, harassment, prejudice, confusion of issues, the witness's safety, or interrogation that is only marginally relevant. Bowden v. State, 301 Ark. 303, 783 S.W.2d 842 (1990).
When a witness testifies on direct examination that she has not committed collateral acts of misconduct, she opens the door for impeachment by contradiction, and her testimony may be contradicted by extrinsic evidence. Smith v. State, 316 Ark. 407, 872 S.W.2d 843 (1994); Hill v. State, 33 Ark. App. 135, 803 S.W.2d 935 (1991). Here, J.K. testified on direct examination that she almost lost credit for her junior year because being in foster care affected her attendance at school. Appellant sought to discredit that statement by showing that J.K. nearly "flunked out" of school due to a lack of attention to her studies. We must agree with the trial court that J.K.'s statement in the blog entry did not contradict her direct testimony. J.K.'s assertion that she came close to losing credit because of too many absences is not impugned by the statement that she may have made poor grades at some point later in time. Consequently, we find no abuse of discretion in the trial court's ruling. See Keene v. State, 56 Ark. App. 42, 938 S.W.2d 42 (1997) (holding that proposed impeachment evidence did not contradict testimony given on direct examination and thus was rightfully excluded); see also Kellensworth v. State, 275 Ark. 252, 631 S.W.2d 1 (1982).
Even if the trial court erred by restricting appellant's cross-examination, we would not reverse in the absence of prejudice. Keene, supra. Appellant's proposed line of inquiry was of such marginal relevance and so inconsequential that its exclusion could not possibly have resulted in any prejudice. Finally, to the extent that appellant asserts a violation of the right to cross-examine his accuser under the Confrontation Clause, we note that appellant did not raise a confrontation-clause issue at trial. Even a constitutional argument, such as one involving the Confrontation Clause, is waived if it is not presented to the trial court. Green v. State, 365 Ark. 478, 231 S.W.3d 638 (2006).
Affirmed.
KINARD and BAKER, JJ., agree.