Barnum v. State

2020 Ark. App. 523

614 S.W.3d 453

Durrell BARNUM, Appellant

v.STATE of Arkansas, Appellee

No. CR-20-193

Court of Appeals of Arkansas, DIVISION II.

Opinion Delivered: November 18, 2020

Rehearing Denied January 13, 2021

Lassiter & Cassinelli, by: Michael Kiel Kaiser, for appellant.

Leslie Rutledge, Att'y Gen., by: Adam Jackson, Ass't Att'y Gen., for appellee.

ROBERT J. GLADWIN, Judge

Durrell Barnum appeals his conviction by a Faulkner County jury on one count of rape for which he was sentenced to forty years’ imprisonment in the Arkansas Department of Correction (ADC). Barnum argues that the circuit court (1) erred in denying his motion for directed verdict because there was insufficient evidence of the forcible-compulsion element to support his rape conviction; (2) abused its discretion by denying him a jury instruction on fourth-degree sexual assault; (3) erred in finding that his prior conviction for armed bank robbery was a "serious violent felony offense" for the purpose of sentence enhancement; (4) abused its discretion by refusing to allow him to call Tollece Sutter as an impeachment witness; (5) abused its discretion by denying his motion for a mistrial on the basis of an improper closing argument; (6) erred by permitting the State to make an improper rebuttal-closing argument; and (7) abused its discretion by allowing Dr. Rachel Clingenpeel to testify that the victim's lack of physical injuries was consistent with 95 percent of all pediatric sexual-abuse patients. We affirm.

I. Facts and Procedural History

This appeal arises out of events that took place on the night of March 17, 2018. Then fourteen-year-old J.G. went to sleep on the couch in the living room of her sister's apartment. Later that night, Barnum, who was staying in the same apartment with his girlfriend, Valencia Garner, woke up J.G. by standing over her, saying, "Give me some." J.G. understood that Barnum was demanding sex, and she told him no. J.G. reported that Barnum then pulled down her pants and underwear, vaginally raped her, and eventually flipped her onto her stomach and ejaculated on her buttocks.

J.G. began to feel sharp pains below her stomach, went to use the restroom, and then lay back down on the couch. She later left a note for her sister, Jasmine Hoskins, on her sister's phone explaining that Barnum had raped her. The next morning, J.G. went to her sister's bedroom to get dressed for church. When she bent over to pick up her clothes, the continuing pain below her stomach caused her to cry, which woke Hoskins. At that time, Hoskins read the note and confronted Barnum, who abruptly left the apartment.

Hoskins took J.G. to Arkansas Children's Hospital where a rape-test kit was performed. The sexual assault nurse examiner (SANE), Kristen Bradley, took vaginal, rectal, and oral swabs of J.G. and also swabbed her buttocks. The swabs were sent to the Arkansas State Crime Laboratory (ASCL) for testing. Paul Lawson, a forensic DNA analyst for the ASCL, was able to extract male DNA from the vaginal, rectal, and buttock swabs, but only the rectal swab produced a large enough sample to enable a DNA comparison. Alexa Harrod, another forensic DNA analyst for the ASCL, compared the DNA found on the rectal swab with a sample of Barnum's DNA and determined that they were, by all scientific certainty, a match.

Barnum was originally charged with rape pursuant to Ark. Code Ann. § 5-14-103(a)(3)(A) (Supp. 2019) for engaging in sexual intercourse or deviate sexual activity with someone who was less than fourteen years old. However, because J.G. was fourteen when the rape occurred, the State amended the charge to allege a violation of Ark. Code Ann. § 5-14-103(a)(1) (Supp. 2019) for engaging in sexual intercourse or deviate sexual activity with another person by forcible compulsion.

Just before the jury trial began, Barnum moved in limine to preclude the State's two medical witnesses from opining about the veracity—or lack thereof—of J.G.’s allegations. The prosecutor noted that he did not "anticipate anything being elicited from either medical personnel that will testify that they will give an opinion that [J.G. is] telling the truth based upon her submitting to a rape kit." The circuit court then ruled: "[A]s to the medical people giving their opinion as to the truthfulness of a particular witness, they'll not be allowed to do that. They may, of course, testify as to their findings."

At trial, Nurse Bradley testified about the full-body examination she performed on J.G. She stated that she did not find any bruising, swelling, cuts, or bleeding on J.G.’s body. She explained that she performed a pelvic exam on J.G. and found no bleeding in the vaginal area; no signs of injury around the vagina; no signs of injury noted to the hymen; and no findings of acute or healed anal/genital trauma. But Nurse Bradley clarified that the absence of physical signs of trauma does not mean that a sexual assault did not occur and that in most cases there is no physical trauma.

Dr. Clingenpeel testified regarding her review of Nurse Bradley's examination of J.G. Dr. Clingenpeel confirmed that "[t]here were not any physical-exam abnormalities that were diagnostic of trauma." Furthermore, Dr. Clingenpeel said, "[S]he had essentially a normal anal/genital exam ... on her evaluation. And that is the case for about ninety-five percent of all pediatric sexual[-]abuse patients that we see." Barnum's counsel objected arguing that this testimony violated the circuit court's pretrial grant of his motion in limine.

The circuit court found the testimony up to that point to be admissible and permitted the prosecutor to continue with the line of questioning. Dr. Clingenpeel then testified that "[i]n the vast majority of cases of child sexual abuse, there are not any physical findings that are diagnostic of trauma" and explained the medical reasons for why the majority of cases do not have any physical findings of trauma. The prosecutor ended the direct examination by asking: "So, it is possible for a rape to occur or a sexual assault to occur and not cause any physical injury whatsoever?" Dr. Clingenpeel responded that it was "not only possible; it is normal and expected."

Testimony indicated that there were numerous people staying in the apartment on the night in question—including a toddler asleep in the living room where the rape allegedly occurred—but no evidence was presented that any of the other occupants heard anything indicating that a forcible rape was occurring. J.G. even called her mentor, Mary Nabholz, to speak with her around 2:00 a.m., yet she never mentioned an allegation of sexual assault. Likewise, there was no evidence presented that Barnum threatened to harm J.G. if she told anyone about their encounter.

At the close of the State's evidence, Barnum moved for a directed verdict on the one count of rape, based on the lack of evidence of forcible compulsion. The State responded that physical force, as would be defined in the rape jury instructions, means any bodily impact, restraint, or confinement. And bodily impact in this case is the act of Barnum's being on top of J.G. when he raped her, and that is enough to survive a motion for directed verdict. The circuit court denied Barnum's motion, stating the nature and extent of any forcible compulsion beyond the prima facie case would be the province of the jury.

During the jury-instruction conference following the close of the case, Barnum argued that the jury should be instructed regarding the lesser-included offense of sexual assault in the fourth degree pursuant to Ark. Code Ann. § 5-10-110(b)(3) (Repl. 2013). The prosecutor argued that sexual assault in the fourth degree required proof of different elements; thus, it was not a lesser-included offense of rape. The circuit court denied Barnum's request to give the lesser-included instruction on that basis, and Barnum proffered his proposed instruction.

Barnum renewed his initial motion for directed verdict at the close of all evidence, which the circuit court again denied. During closing argument, the prosecutor stated:

Again, the defense asked several questions on—"Well, did you bite him? Did you scratch him? Did you scream? Did you call 911?" That's not the legal standard and it's not the moral standard either. How dare he say that she didn't do enough to prevent this.

Barnum's counsel objected, saying, "This is improper argument. It's critical of my client's constitutional right to cross-examine witnesses. The State is now arguing rape according to a moral standard. This is improper, Your Honor." The prosecutor acknowledged the objection saying, "I won't say that word again."

Barnum's counsel then moved for a mistrial, arguing that the prosecutor's statement was "solely designed to inflame the passion of the jury." The circuit court denied Barnum's motion and instructed the jury that the arguments of counsel are not evidence and not to be considered.

Later, during the State's rebuttal closing argument, the prosecutor stated: "In this day and age, you've heard the phrase, ‘You can use your common sense.’ With sexual contact, sexual intercourse, we tell our daughters, we tell our sons, no means no." Barnum's counsel objected, arguing that "no means no" was an inaccurate statement of the law regarding rape by forcible compulsion. The prosecutor responded that "that is the first part of showing forcible compulsion. No means no and to continue after hearing no shows force." The circuit court overruled the objection, and the prosecutor continued with the argument:

We tell our sons and daughters – we teach them no means no. And why do we do that? Because sexual contact is something that is so intimate, so personal, that to violate someone who says no is a crime. To continue to have sex with someone after they say no to something so intimate is criminal in nature.

Barnum was convicted of rape and sentenced to a term of forty years’ imprisonment in the ADC as a habitual offender to be...