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ARKANSAS COURT OF APPEALS DIVISION IV No. CR-13-105

Opinion Delivered November 6, 2013

OTIS GIPSON APPEAL FROM THE PULASKI APPELLANT COUNTY CIRCUIT COURT, SEVENTH DIVISION V. [NO. CR-11-2873]

HONORABLE BARRY SIMS, JUDGE STATE OF ARKANSAS APPELLEE AFFIRMED

KENNETH S. HIXSON, Judge

A jury in Pulaski County Circuit Court found appellant Otis Gipson guilty of raping

his former girlfriend’s two minor daughters, F.T. and S.R., during the time that he lived with

them. For the two counts of rape,1 he was sentenced as a habitual offender to concurrent

thirty-five-year prison sentences. On appeal, appellant challenges two evidentiary rulings,

asserting that the trial court abused its discretion in (1) disallowing defense questions about the

presence of another man’s semen on F.T.’s bed sheet, and (2) permitting the State, during the

sentencing phase, to introduce two prior felonies allegedly committed by the appellant during

the sentencing phase without sufficient foundation. We disagree with appellant’s arguments,

holding that he has not demonstrated reversible error, and affirm.

1 Appellant was accused of raping F.T. on one occasion, November 28, 2008. Appellant was accused of raping S.R. multiples times over the course of three years, between June 2004–June 2007. Appellant does not challenge the sufficiency of the evidence to support the convictions, so we need not set out the testimony that supports the convictions. Cite as

Appellant’s first argument is that the trial court erred in prohibiting defense counsel

from questioning an Arkansas State Crime Laboratory DNA analyst, Morgan Nixon, about

the presence of another man’s semen on F.T.’s bed sheet. At a pretrial hearing, the State

presented a motion in limine, requesting that this evidence be excluded as protected under

the rape-shield statute. The trial court agreed, excluding any mention of another person’s

semen on the bed sheet. Defense counsel was permitted, however, to elicit testimony that

appellant’s DNA was not found on the bed sheet.

During her direct testimony, Nixon testified that the appellant’s DNA was not present

on the victim’s bed sheet. On re-direct, the prosecutor then asked Nixon if the victim’s

DNA was found on the sheet, and Nixon responded that the victim could not be excluded

as a minor contributor of DNA. Defense counsel approached the bench and asserted that by

asking whether the victim’s DNA was present on the bed sheet, the prosecutor “opened the

door” to inquiring about the identity of another person’s DNA in semen on the sheet. The

State resisted that argument, and the trial court ruled that the door had not been opened and

denied the defense request. We affirm the trial court’s ruling.

The purpose of the rape-shield statute is to shield victims of rape or sexual abuse from

the humiliation of having their personal conduct, unrelated to the charges pending, paraded

before the jury and the public when such conduct is irrelevant to the defendant’s guilt.

Stewart v. State,

, __ S.W.3d __. A trial court is vested with wide discretion in

deciding whether evidence is relevant and admissible, and we will not overturn that decision

absent clear error or a manifest abuse of discretion.

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Appellant contends on appeal that the presence of another male’s DNA on the victim’s

bed sheets is relevant to identify the victim’s rapist. While the appellant did argue to the trial

court that the State opened the door for additional DNA questioning, the appellant did not

make the argument that the presence of another male’s DNA on the sheets was relevant to

the identity of the rapist. Since this argument was not raised at the trial level or ruled on, and

parties are bound on appeal to the scope and nature of the arguments raised at trial, this

relevancy argument is not preserved for appeal. Tavron v. State,

,

(2008).

The argument raised at trial was that this inadmissible evidence became admissible

because the State “opened the door.” Larimore v. State,

,

(1994)

(A party may open the door to otherwise inadmissible evidence and thus permit the other

party to “fight fire with fire.”). The trial court ruled, and we agree, that the State’s questions

about F.T.’s DNA did not open the door to asking about another man’s semen. Moreover,

pursuant to the rape-shield statute,

(c)(1), and Ark. R. Evid.

411(c)(1) (2013), if a defendant desires to have such evidence considered for admissibility, a

written motion is required to be submitted to the trial court for its consideration. See Hanlin

v. State,

,

(2004). Appellant did not comply with this directive.

Appellant’s second argument on appeal focuses on the State’s presentation of two prior

felonies in order to support appellant’s status as a habitual offender. The State bears the

burden to prove a defendant’s prior convictions for purposes of the habitual-offender statute.

See Williams v. State,

,

(1990). A prior felony may be proved

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by any evidence that satisfies the trial court beyond a reasonable doubt that the defendant was

convicted or found guilty of the prior felony.

(a) (Repl. 2006).

Examples of satisfactory evidence are a certified copy of the record of a previous conviction;

a certificate of the warden that contains the defendant’s name and fingerprints as those in the

warden’s records; or a certificate of the chief custodian of the United States Department of

Justice.

at subsection (b)(1), (2), and (3). The test on appeal is whether there is substantial

evidence that the defendant was convicted of the felonies in question.

Here, the State sought to offer several felonies, and two of them were certified copies

of judgments from the State of Mississippi: a 2009 conviction for delivery of cocaine and a

1990 conviction for burglary. These contained his full name “Otis Delotis Gipson” but not

his birth date. Appellant asserted that this was insufficient proof that these were appellant’s

convictions, but the trial court disagreed. The trial court excluded other prior felonies that

did not include his middle name or other identifying information. We hold that there was

substantial evidence of appellant’s identity due to his unique full name, “Otis Delotis Gipson,”

used throughout the record in these proceedings, such that it was not error to submit these

two Mississippi convictions as proof of his habitual-offender status. See Leggins v. State,

,

(1980).

Having applied the proper standard of review, we affirm appellant’s convictions.

WALMSLEY and BROWN, JJ., agree.

William R. Simpson, Jr., Public Defender, and Dan Hancock, Deputy Public Defender, by: Margaret Egan, Deputy Public Defender, for appellant. Dustin McDaniel, Att’y Gen., by: Kathryn Henry, Ass’t Att’y Gen., for appellee.

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