                                   Cite as 2015 Ark. App. 688

                   ARKANSAS COURT OF APPEALS
                                         DIVISION IV
                                         No. CR-15-368


                                                    Opinion Delivered   December 2, 2015
ANTONIO BRYLES
                                 APPELLANT          APPEAL FROM THE PULASKI
                                                    COUNTY CIRCUIT COURT, FIRST
                                                    DIVISION [NO. 60CR-11-1509]
V.
                                                    HONORABLE LEON JOHNSON,
                                                    JUDGE
STATE OF ARKANSAS
                                    APPELLEE        AFFIRMED



                             PHILLIP T. WHITEAKER, Judge

         Antonio Bryles was convicted by a Pulaski County jury of one count of rape and was

sentenced by the court to twenty-five years in the Arkansas Department of Correction. He

appeals his conviction, alleging that the trial court erred (1) in failing to excuse two jurors for

cause and (2) in permitting a medical expert to testify that the victim’s injuries were consistent

with penile penetration. We affirm.

         For his first two points on appeal, Bryles argues the trial court erred in denying his

challenges for cause as to two jurors, Juror Blansett and Juror Bussell, because they could not

conclusively state they could be impartial. For the reasons set forth below, Bryles’s argument

fails.

         A brief recitation of the voir dire process is relevant to our determination. During voir

dire, Bryles challenged two jurors, Juror Blansett and Juror Bussell, for cause. The trial court

denied Bryles’s motion as to Juror Blansett and granted his motion as to Juror Bussell. Bryles
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then exercised one of his peremptory challenges to strike Juror Blansett. As a result, neither

of the two challenged jurors was seated on the jury. By the close of voir dire, Bryles had

exhausted all peremptory challenges. Once jury selection was complete, the trial court

inquired if the jury was satisfactory to the parties, and both the State and the defense replied

that it was.

          First, with regard to Juror Bussell, the record reflects that, in fact, the trial court did

excuse Juror Bussell for cause. Thus Bryles’s argument as to that juror is clearly without

merit.

          Second, Juror Blansett was also not seated on the jury. While the trial court did not

strike Juror Blansett for cause as requested by the defense, Bryles exercised one of his

peremptory strikes to remove him from the jury. An argument as to a venire person who was

struck through the exercise of a peremptory challenge by either party is not a claim that may

be raised on appeal. See Jackson v. State, 375 Ark. 321, 290 S.W.3d 574 (2009). The loss of

peremptory challenges cannot be reviewed on appeal. See id. Instead, an appeal of this nature

is focused on those who were actually seated on the jury. Branstetter v. State, 346 Ark. 62, 57

S.W.3d 105 (2001); Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000); Bangs v. State, 338

Ark. 515, 998 S.W.2d 738 (1999); Willis v. State, 334 Ark. 412, 977 S.W.2d 890 (1998).

Because Juror Blansett was not seated on the jury, Bryles presents no cognizable claim for

relief.

          Bryles next argues that the trial court erred in allowing a medical expert, Dr. Farst, to

testify that the victim’s injury was consistent with penile penetration. He claims that this


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testimony was unfairly prejudicial and should have been excluded under Rule 403 of the

Arkansas Rules of Evidence. More specifically, he complains that (1) Dr. Farst could not

testify that the injuries were, in fact, caused by penile penetration and that any opinion to that

effect was simply speculation, and (2) Dr. Farst could not state within a reasonable degree of

medical certainty that the injuries were caused by penile penetration as opposed to some other

penetrating trauma. As a result, he argues that there was little probative value to her

testimony.

       Trial courts have wide discretion in their evidentiary rulings, and there must be an

abuse of discretion, as well as a showing of prejudice, to justify reversal of that decision.

McCoy v. State, 354 Ark. 322, 123 S.W.3d 901 (2003). According to Arkansas Rule of

Evidence 401 (2015), relevant evidence means “evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action more probable

or less probable than it would be without the evidence.” All relevant evidence is admissible,

except as otherwise provided by the rules. Ark. R. Evid. 402 (2015). Under Arkansas Rule

of Evidence 403 (2015), evidence that is otherwise admissible may be excluded “if its

probative value is substantially outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.” With these standards in mind, we now turn to a

review of the evidence.

       In March 2011, Little Rock police were dispatched to Arkansas Children’s Hospital

with a report of possible sexual assault. The alleged victim, eight-year-old M.P., had been


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brought to the hospital by her mother after M.P. disclosed that Bryles had sexually abused her.

Dr. Karen Farst, a fellowship-trained child-abuse pediatrician, performed a physical

examination of the child. Because M.P. had reported that her genital area and mouth had

been touched by the perpetrator’s genitalia, Dr. Farst conducted a more detailed examination,

concentrating on the genital and anal area of the child. Her examination revealed an

abnormality, or notch, in the child’s hymen consistent with a history of penetrating trauma.

       Prior to trial, Bryles moved to exclude the testimony. At the hearing on the motion,

Dr. Farst testified that the physical exam of M.P. revealed a transection of the hymen at the

7 o’clock position. This indicated that M.P had healed from a previous penetration-type

injury. Dr. Farst could not identify the penetrating trauma, but stated that it was very rare

that this injury would be caused by anything other than sexual assault. On cross-examination,

however, Dr. Farst admitted that it was not possible to determine within a degree of medical

certainty what caused the penetrating injury and that she could not determine the size of the

object used to cause the injury or the frequency that would have caused it.

       At the conclusion of the hearing, counsel for Bryles moved to exclude Dr. Farst’s

testimony because (1) she could not provide an opinion within a reasonable degree of medical

certainty whether the injury was accidental or intentional, and (2) her testimony was

inadmissible under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The State

responded that the testimony need not be based on a “reasonable degree of medical certainty”

standard and that Daubert did not apply because her opinion was not based on a new or novel

theory or methodology. Finally, the State argued that Dr. Farst’s opinion that M.P.’s injury


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was consistent with intentional penetration and with sexual abuse was admissible because,

while it embraced the ultimate issue, it did not mandate a legal conclusion by the jury. The

court, noting that it had discretion in determining whether to allow the evidence, denied the

motion to exclude Dr. Farst’s testimony.

       Based on the court’s ruling, Dr. Farst also testified at trial over the renewed objection

of defense counsel. She testified to the injuries she observed during her examination of M.P.,

including the injury to M.P.’s hymen. She stated that M.P.’s injuries were the result of a

penetrating trauma, as opposed to a blunt-force trauma. She admitted that she could not

identify what had caused the penetration but opined that her injuries were consistent with

having a penis inserted into her vagina.1

       We find no merit to Bryles’s argument that the trial court erred in permitting a medical

expert to testify that the victim’s injuries were consistent with penile penetration. Here, Dr.

Farst merely testified that M.P.’s injury was caused by a penetrating trauma and was consistent

with penetration by a penis into M.P.’s vagina. Existing Arkansas law allows such testimony

because, although it embraces the ultimate issue, it does not mandate a legal conclusion.

Turbyfill v. State, 92 Ark. App. 145, 211 S.W.3d 557 (2005). Clearly, this evidence was

relevant, and we are not persuaded that it was unfairly prejudicial. Here, while Dr. Farst

admitted that other penetrating traumas could have caused M.P.’s injury, such evidence goes

to the weight of her testimony, not the admissibility of it. The trial court considered Dr.

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         M.P. also testified that Bryles would lie with his stomach on top of her and he would
push his “middle part” inside her “private part” and “go in and out.” Bryles testified in his
own defense and denied raping M.P. We will not recite the testimony or other evidence in
detail because Bryles makes no sufficiency argument.

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Farst’s testimony, as well as the arguments of counsel, and determined that the evidence was

admissible. Its doing so was not an abuse of discretion.

       Affirmed.

       VIRDEN and HARRISON , JJ., agree.

       James Law Firm, by: William O. “Bill” James, Jr., for appellant.

       Leslie Rutledge, Att’y Gen., by: Ashley Driver Younger, Ass’t Att’y Gen., for appellee.




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