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                  ARKANSAS COURT OF APPEALS
                                     DIVISIONS II & III
                                       No. CR-16-721

                                                  Opinion Delivered: October   18, 2017
EDWARD DARNELL ROGERS
                                                  APPEAL FROM THE PULASKI
                               APPELLANT          COUNTY CIRCUIT COURT,
                                                  FOURTH DIVISION
V.                                                [NO. 60CR-15-390]

STATE OF ARKANSAS
                                                  HONORABLE HERBERT T.
                                  APPELLEE        WRIGHT, JUDGE

                                                  REVERSED AND REMANDED



                                 BART F. VIRDEN, Judge

        A Pulaski County jury found appellant Edward Darnell Rogers guilty of three counts

 of rape and sentenced him as a habitual offender to an aggregate term of forty years in prison.

 On appeal, he argues that the trial court erred in denying his directed-verdict motions and

 abused its discretion in not allowing him to impeach one of the victims with a misdemeanor

 conviction for theft of property. We agree with Rogers’s second point and therefore reverse

 and remand.

                                        I. Trial Testimony

        In 2003 or 2004, Tia Bryant moved to a neighborhood in North Little Rock with

 her five children—four daughters and one adult son. Rogers already lived in that

 neighborhood with his mother. Bryant and Rogers began dating, and Rogers moved into

 Bryant’s home in 2006.
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       The four daughters from oldest to youngest are L.W. (DOB: 6-23-1994), twins

Mi.B. and T.B. (DOB: 6-27-1998), and Ma.B. (DOB: 5-5-2000). All four girls testified

that they thought of Rogers as their father and that he had transported them to school and

after-school events, had cooked for them, had bought them clothes and shoes, and had even

disciplined them. All four girls also testified that Rogers began touching them

inappropriately when they were teens. They each described multiple sexual encounters with

Rogers that involved penetration. They further testified that Rogers had warned them not

to tell anyone about the encounters.

       Tia Bryant stated that her daughters eventually told her what Rogers had done to

them and that she had made Rogers move out in October 2013. He moved four houses

down; he was permitted to keep a key to Bryant’s home; and the children continued to be

around Rogers and his family. Bryant testified that Rogers had apologized and that he had

said that he made a mistake, that it would never happen again, and that he would continue

to support her financially. Bryant said that she gave Rogers the benefit of the doubt and did

not report the rapes until November 2014.

       Rogers testified on his own behalf, along with various family members, friends, and

neighbors. Rogers said that it was his idea to move out of Bryant’s home in 2013 because

someone had been stealing from him and because of the lack of space. Rogers stated that he

continued to see Bryant’s daughters and continued to act as their father figure. He denied

ever having touched them inappropriately and could not understand why they would tell

such lies. According to Rogers, Bryant reported the rape allegations because she was jealous

when she saw him with another woman and because she was probably upset that he could

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no longer continue to support her financially because he was providing for his wife and five

children.

       The jury found Rogers guilty of raping L.W., Mi.B., and Ma.B., but the jury found

him not guilty of raping T.B. The jury sentenced Rogers to twenty years for raping L.W.

and Mi.B. and to forty years for raping Ma.B. 1

                                          II. Discussion

                                         A. Sufficiency

       Because of double-jeopardy concerns, we address Rogers’s challenge to the

sufficiency of the evidence before our review of any asserted trial errors. Foshee v. State,

2014 Ark. App. 315. A directed-verdict motion is a challenge to the sufficiency of the

evidence and requires the movant to apprise the trial court of the specific basis on which

the motion is made. Rounsaville v. State, 372 Ark. 252, 273 S.W.3d 486 (2008). Arguments

not raised at trial will not be addressed for the first time on appeal, and parties cannot change

the grounds for an objection on appeal, but are bound by the scope and nature of the

objections and arguments presented at trial. Id.

       Rogers contends that there was insufficient evidence to support his convictions for

rape because the victims’ testimony was inconsistent; there was no physical evidence of rape;

and there was a one-year delay in reporting the alleged crimes.

       Defense counsel made the following directed-verdict motions at trial:


       1
        Rogers was charged with raping L.W. and Mi.B. pursuant to Ark. Code Ann. § 5-
14-103(a)(4)(A)(i) (Supp. 2011 and Repl. 2013), which, among other things, requires the
actor to be the victim’s guardian. Rogers was charged with rape pursuant to section 5-14-
103(a)(3)(A) (Supp. 2011 and Repl. 2013) with respect to Ma.B. because she was less than
fourteen years old.
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       Judge, on the count against Ma.B., State has failed to meet a prima facie case in that
       they’ve failed to show that Edward Rogers engaged in sexual intercourse or deviate
       sexual activity with Ma.B. and that Ma.B. was less than 14 years of age at the time
       of the alleged offense.
       ....
       I’m gonna make the next two motions because they are the same as the [sic] T.B.
       But the State has failed to make a prima facie case that Edward Rogers engaged in
       sexual intercourse or deviate sexual activity with either Mi.B. or L.W., and that
       Mi.B. and L.W. were less than 18 years of age at the time of the alleged offense. And
       that Mr. Rogers was Mi.B.’s or L.W.’s guardian.

       Rogers’s arguments are not preserved for review because they are being raised for

the first time on appeal. Defense counsel below made no mention of credibility, the lack of

physical evidence, or the victims’ delayed reporting; rather, he challenged the elements of

the two rape offenses. In any event, the uncorroborated testimony of a rape victim alone is

sufficient to sustain a conviction. Ward v. State, 370 Ark. 398, 260 S.W.3d 292 (2007). It is

the province of the jury to decide the credibility of witnesses. West v. State, 27 Ark. App.

49, 766 S.W.2d 22 (1989). Scientific evidence is not required, and the victim’s testimony

describing penetration is enough for a conviction. Gatlin v. State, 320 Ark. 120, 895 S.W.2d

526 (1995).

       The victims testified to their ages, to sexual encounters with Rogers involving

penetration, and to the notion that they considered Rogers their father for all practical

purposes. To the extent the victims’ testimony was inconsistent, it was for the jury to resolve

those inconsistencies. Moreover, Dr. Kristen Long testified that it was not unusual to have

no physical findings of rape, and Detective Ashley Noel testified that delayed disclosure is

normal. The testimony of the victims was substantial evidence to support Rogers’s

convictions.


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                                    B. Witness Impeachment

       For the purpose of attacking the credibility of a witness, evidence that he or she has

been convicted of a crime shall be admitted but “only if the crime . . . involved dishonesty

or false statement, regardless of the punishment.” Ark. R. Evid. 609(a)(2). Rogers sought

to impeach L.W. with a prior conviction. 2 The following colloquy occurred:

       [DEFENSE]:            She has a misdemeanor conviction out of 2014 for theft of
                             property. Before I impeach her for that, I want to make sure
                             are y’all objecting on that?

       [PROSECUTOR]:         Yes. It’s a misdemeanor, and it’s over—I mean, it’s over a year
                             old.

       [DEFENSE]:            It’s a misdemeanor, but it’s in the matter that deals with
                             truthfulness.[ 3]

       [PROSECUTOR]:         Actually[,] theft is not. If it was a forgery, or filing a false police
                             report or something like that.




       2
         In response to the dissenting judges, we note that L.W. was the State’s witness on
the stand when defense counsel sought to impeach a witness. It seems only reasonable that
defense counsel would seek to impeach the witness who was accusing his client of rape. To
be fair, Ms. Hackett was also a witness, but to suggest that defense counsel would want to
attack her credibility is illogical because she was later called to the stand by defense counsel
to testify on Rogers’s behalf, and she gave testimony that was favorable to Rogers.
       3
        The terms “truthfulness or untruthfulness” and “dishonesty” in Arkansas Rules of
Evidence 608 and 609(a)(2) are often conflated. In Rhodes v. State, 276 Ark. 203, 634 S.W.2d
107 (1982), our supreme court recognized that its interpretation of Ark. R. Evid. 608(b)
was too broad in Gustafson v. State, 267 Ark. 278, 590 S.W.2d 853 (1979), and modified its
interpretation of the rule to limit the inquiry on cross-examination to “specific instances of
misconduct clearly probative of truthfulness or untruthfulness as distinguished from conduct
probative of dishonesty.” Rhodes, 276 Ark. at 207, 634 S.W.2d at 110. So, while Rule 608
permits admission of specific instances of conduct involving truthfulness or untruthfulness, Rule
609(a)(2) authorizes admission of convictions for crimes involving dishonesty or false
statements.

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       TRIAL COURT:          I agree.[ 4]

       A person commits theft of property if he or she knowingly takes or exercises

unauthorized control over or makes an unauthorized transfer of an interest in the property

of another person with the purpose of depriving the owner of the property, or obtains the

property of another person by deception or by threat with the purpose of depriving the

owner of the property. Ark. Code Ann. § 5-36-103(a)(1) & (2) (Repl. 2013).

       The Arkansas Supreme Court has interpreted Ark. R. Evid. 609 to include theft of

property as a crime involving dishonesty. See, e.g., Floyd v. State, 278 Ark. 86, 643 S.W.2d

555 (1982) (holding that, because Floyd’s convictions for burglary and theft were crimes

involving dishonesty pursuant to Rule 609, they were admissible without the weighing test);

James v. State, 274 Ark. 162, 622 S.W.2d 669 (1981) (holding that a prior conviction for

theft involved dishonesty pursuant to Rule 609 and that there was no requirement that the

trial court weigh and consider the prejudicial effect). Crimes involving dishonesty and false

statements are regarded as probative of credibility and can be used to impeach a witness’s

credibility. Fronterhouse v. State, 2015 Ark. App. 211, 463 S.W.3d 312. We hold that the

trial court thus erred in excluding L.W.’s prior conviction for impeachment purposes under

Rule 609(a)(2).




       4
        Although it would have been the better practice for the trial court to announce its
ruling by clearly stating either “sustained” or “overruled,” the prosecutor was the last person
to speak before the trial court said, “I agree.” Moreover, the parties were aware that the
trial court had sustained the State’s objection given that defense counsel did not proceed
with his impeachment of L.W. with her 2014 misdemeanor conviction for theft of property.

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       Here, Rogers’s counsel did not proffer a certified copy of L.W.’s 2014 conviction

for theft of property. It is well established that error may not be predicated upon a ruling

that excludes evidence unless both a substantial right of the party is affected and the substance

of the excluded evidence was made known to the trial court by offer of proof or was

apparent from the context within which the questions were asked. Jones v. State, 321 Ark.

649, 907 S.W.2d 672 (1995). In West v. State, 27 Ark. App. 49, 766 S.W.2d 22 (1989), this

court held that it was necessary for the proponent of the evidence to demonstrate that a

conviction for hindering apprehension was a crime involving dishonesty or false statements

because there were six different ways to commit that crime—only one of which involved

giving false information. Because there was no offer of proof as to the factual circumstances,

this court was unable to determine whether the conviction would have been admissible.

       On the other hand, in Fronterhouse, supra, this court held that the trial court erred in

excluding evidence of a witness’s misdemeanor convictions for improper use of evidence of

registration and criminal impersonation because they were admissible for purposes of

impeachment under Rule 609. We distinguished West, supra, and noted that it was not

always necessary to demonstrate the underlying facts giving rise to a conviction in order to

establish that it involved dishonesty or false statements—especially when the definition of

the offense itself clearly demonstrates that dishonesty or a false statement is necessary to be

convicted of the offense.

       Even though a certified copy of L.W.’s conviction was not proffered here, as was

done in Fronterhouse, the record shows that the prosecutor acknowledged that such a

conviction existed. The colloquy demonstrated that it was a 2014 misdemeanor conviction

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for theft of property. Theft of property, by its very definition and as interpreted by our

supreme court, involves an act of dishonesty; therefore, it was not necessary to hear the

underlying facts, and no proffer was required because the substance of the conviction was

made known to the trial court. See Jones, supra.

       Although the erroneous denial of a defendant’s opportunity to impeach a witness is

subject to a harmless-error analysis, Swinford v. State, 85 Ark. App. 326, 154 S.W.3d 262

(2004), to conclude that a constitutional error is harmless and does not mandate a reversal,

our appellate courts must conclude beyond a reasonable doubt that the error did not

contribute to the verdict. Id. While the evidence was legally sufficient to support a

conclusion that Rogers raped Mi.B. and Ma.B., we are not entirely convinced that the jury

would have believed their testimony had Rogers been permitted to impeach L.W. with her

prior conviction. Because of the similarity of the sexual acts among these then teen-aged

siblings who lived with Rogers and thought of him as their father, 5 we cannot say that

L.W.’s testimony had no bearing on whether the jury believed Mi.B. and Ma.B. For these

reasons, we reverse Rogers’s three rape convictions and remand for a new trial or further

proceedings.

       Reversed and remanded.

       GLOVER, HIXSON, and BROWN, JJ., agree.



       5
       L.W.’s testimony was relevant to proving the charges involving her sisters. Under
the pedophile exception to Arkansas Rule of Evidence 404(b), our supreme court has
approved allowing evidence of the defendant’s similar acts with the same or other children
when it is helpful to show a proclivity for a specific act with a person or class of persons
with whom the defendant has an intimate relationship. Kelley v. State, 2009 Ark. 389, 327
S.W.3d 373.
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       GLADWIN and WHITEAKER, JJ., dissent.

       ROBERT J. GLADWIN, Judge, dissenting.              I agree with the majority that

substantial evidence supports appellant’s conviction. However, I respectfully dissent from

the holding that reversed the trial court for failing to allow appellant to impeach L.W. The

issue was not preserved for review due to appellant’s failure to proffer adequate evidence of

L.W.’s conviction.

       When there is no offer of proof as to the factual circumstances involved in the

conviction, the court may be unable to determine whether the conviction should be

admissible as one involving dishonesty or false statements. West v. State, 27 Ark. App. 49,

766 S.W.2d 22 (1989). Here the colloquy is insufficient to be an offer of proof. The

appellant is not clear as to who had the conviction. The following is the exchange between

defense counsel and L.W. immediately prior to the quote in the majority opinion.

       QUESTION: Did you ever tell Comel Hackett that nothing ever happened to you,
                 that the rape didn’t occur?

       ANSWER:       No.

       QUESTION: You sure?

       ANSWER:       I’m positive.

       QUESTION: And you worked with Comel at Target, correct?

       ANSWER:       Correct.

       MR. BLAIR: Judge, may we approach for a second?

       COURT:        You may.

       MR. BLAIR: She has a misdemeanor conviction . . . .

From this exchange, it is unclear whether counsel is referring to Comel Hackett or to L.W.
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“She” is an inadequate identification of who has the conviction.

       The appellant also failed to adequately proffer the conviction. The simple statement

that “she has a conviction out of 2014 for theft of property” is not a proffer. A judgment

and sentencing order from the convicting court is evidence of the conviction. These

documents are public records and easily obtainable to be used as a proffer of evidence.

       Finally, even if one considered this exchange a proffer by the defense and an

objection by the State, the trial court did not rule on the objection. Trial courts either

sustain or overrule objections. The court stating, “I agree,” does not adequately rule on the

objection. One must obtain a ruling to preserve a point for appeal. Ashley v. State, 358

Ark. 414, 191 S.W.3d 520 (2004). The majority chooses to read more into this colloquy

than is actually there.

       Simply stated, appellant asked no questions to establish the underlying facts of the

conviction, failed to present the conviction to the court, and made no record whatsoever

for this court to determine whether the conviction would have been admissible. See Ark.

R. Evid. 103(a)(2) (2016). Without this threshold evidence, an analysis of Arkansas Rules

of Evidence 609 or 608 is unnecessary.

       WHITEAKER, J., joins.

       Hancock Law Firm, by: Sharon Kiel, for appellant.

       Leslie Rutledge, Att’y Gen., by: Karen Virginia Wallace, Ass’t Att’y Gen., for appellee.




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