Gray v. State

Daniel John GRAY v. STATE of Arkansas

CR 96-341                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered January 27, 1997


1.   Motions -- severance motion -- when waived. -- A defendant's
     failure to renew a severance motion before or at the close of
     all the evidence constitutes a waiver of the issue, even
     though the defendant has been denied a pretrial severance
     motion. 

2.   Motions -- severance motion not properly renewed -- issue
     waived on appeal. -- Where a review of the record reflected
     that appellant failed to renew his severance motion at any
     point during the trial, his failure to renew the severance
     motion resulted in waiver of the issue, which, therefore, was
     not considered on appeal.

3.   Trial -- mistrial exceptional remedy -- factors considered on
     review. -- A mistrial is an exceptional remedy to be used only
     when possible prejudice cannot be removed by an admonition to
     the jury; failure to give an admonition to the jury does not
     constitute prejudicial error where the instruction or
     admonition was not requested below; even if the State's
     questioning regarding the evidence was inappropriate, not
     every such act warrants the declaration of a mistrial; on
     appeal, the court will not disturb the denial of a mistrial
     absent evidence of abuse of discretion by the trial court. 

4.   Trial -- mistrial properly denied -- no abuse of discretion
     found. -- Appellant's complaint that the trial court failed to
     grant a mistrial or even to give an admonition to the jury was
     groundless where a review of the record revealed that
     appellant neither requested the trial court's admonition nor
     sought any sort of curative instruction to the jury in any
     instance; because a mistrial is an "exceptional remedy" used
     only when the prejudice cannot be removed by a jury
     admonition, the supreme court declined to find that the trial
     court abused its discretion in refusing to grant a mistrial.

5.   Evidence -- more required than just general motion for
     directed verdict -- issue not adequately preserved for review.
     -- Although appellant made a motion for a directed verdict
     both at the close of the State's case and at the close of all
     evidence, his motion was that the State had failed to make a
     prima facie case; a motion for a directed verdict must apprise
     the trial court of the specific basis for challenging the
     sufficiency of the evidence; further, if an appellant is
     arguing that the statutory elements of his crime were not
     proved, he must provide the trial court with more than a
     general motion for a directed verdict; because appellant
     failed to provide more than a general motion for a directed
     verdict, the issue was not adequately preserved for review.


     Appeal from Benton Circuit Court; Tom J. Keith, Judge;
affirmed.
     Phillip A. Moon, for appellant.
     Winston Bryant, Att'y Gen., by:  Sandy Moll, Asst. Att'y Gen.,
for appellee.

     Ray Thornton, Justice.
     Appellant Daniel John Gray was convicted and sentenced to the
Arkansas Department of Correction for two life terms, one for each
rape count, and ten years for one count of possessing visual or
print medium depicting sexually explicit conduct involving a child,
terms to run consecutively, in addition to a $10,000 fine.  On
appeal, Mr. Gray claims that the trial court erred in denying his
pretrial severance motion and two motions for mistrial.  He also
challenges the sufficiency of the evidence to convict him of the
rape of his biological daughter, C.H..  We affirm the trial court
on each of these issues.
     Mr. Gray was convicted of raping both C.H., his biological
daughter, and S.S., with whom Gray began his sexual activity while
he was living with S.S.'s mother.  These activities commenced when
S.S. was seven years old and continued until she was eleven.  When
Gray and S.S.'s mother ended their relationship, he moved in with
C.H.'s mother.  C.H. was nine at the time Gray began his sexual
advances toward her, which culminated in rape by deviate sexual
activity.  Both girls testified that his sexual advances with them
began as fondling and then progressed to rape.  In both cases, Gray
lived with the victims' mothers, in the same houses with the child
victims, and had parental control over them.  Gray claims it was
error for the trial court to deny his motion to sever the two rape
charges because there was a break of three months between them.  We
find this claim is procedurally barred.  
     Although Gray filed a pretrial motion on the issue, it was
denied by the trial court, and Gray did not renew the motion or
raise the issue again until this appeal.  In Rockett v. State, 319
Ark. 335, 891 S.W.2d 366 (1995), this court determined that
defendant's failure to renew a severance motion before or at the
close of all the evidence constitutes a waiver of the issue, even
though defendant has been denied a pretrial severance motion.  Id.
at 342-43, 891 S.W.2d  at 370 (citing Ark. R. Crim. P. 22.1(b)).
     Gray does not claim he renewed his motion, and a review of the
record reflects that he failed to renew his severance motion at any
point during the trial.  Gray's failure to renew the severance
motion resulted in the waiver of this issue; therefore, we do not
consider this issue on appeal.
     Gray next argues that the State's repeated questions regarding
photographs and video tape involving persons other than the victims
amounted cumulatively to prejudice requiring reversal in light of
the fact the trial court granted pretrial exclusion of this
evidence through a motion in limine.
     A mistrial is an exceptional remedy to be used only when
possible prejudice cannot be removed by an admonition to the jury. 
Holbird v. State, 299 Ark. 551, 552, 775 S.W.2d 893, 893 (1989). 
This court has stated that failure to give an admonition to the
jury does not constitute prejudicial error where the instruction or
admonition was not requested below.  Brown v. State, 316 Ark. 724,
728, 875 S.W.2d 828, 831 (1994).  Even if the State's questioning
regarding this evidence was inappropriate, not every such act
warrants the declaration of a mistrial.  Porter v. State, 308 Ark.
137, 147, 823 S.W.2d 846, 851 (1992).  On appeal, this court will
not disturb the denial of a mistrial absent evidence of abuse of
discretion by the trial court.  Davis v. State, 325 Ark. 96, 108,
925 S.W.2d 768, 775 (1996).
     On appeal, Gray complains that the trial court failed to grant
a mistrial or even to give an admonition to the jury.  From our
review of the record, Gray neither requested the trial court's
admonition nor sought any sort of curative instruction to the jury
in any instance.  Since a mistrial is an "exceptional remedy" used
only when the prejudice cannot be removed by a jury admonition,
this court declines to find that the trial court abused its
discretion in refusing to grant a mistrial.
     In his last point of appeal, Gray maintains that the State's
evidence was insufficient to convict him of raping his nine year
old biological daughter, C.H., because her mother testified that
C.H. showed no fear of Gray nor did she complain of any wrongful
conduct or advances by him.  Gray also claims that the medical
testimony was inadequate to show that C.H. had been raped. 
     Although Gray made a motion for a directed verdict both at the
close of the State's case and at the close of all evidence, his
motion was that the State failed to make a prima facie case.  We 
require that a motion for a directed verdict apprise the trial
court of the specific basis challenging the sufficiency of the
evidence.  Campbell v. State, 319 Ark. 332, 333, 891 S.W.2d 55, 56
(1995).  Also, if an appellant is arguing that the statutory
elements of his crime were not proved, he must provide the trial
court with more than a general motion for a directed verdict. 
Stewart v. State, 320 Ark. 75, 77, 894 S.W.2d 930, 932 (1995); Webb
v. State, 327 Ark. ___, ___ S.W.2d ___ (January 21, 1997), slip op.
at 9-10.  Because Gray failed to provide more than a general motion
for a directed verdict, this issue has not been adequately
preserved for our review.
     We find no merit in Gray's assignments of error and the trial
court is affirmed.  We have also reviewed the record for
prejudicial error pursuant to Ark. Sup. Ct. R. 4-3 (h) which
requires that we examine the transcript in cases involving a
sentence to death, life imprisonment, or life without parole and
find no such error.
     Affirmed.  
     Corbin, J., not participating.