Cite as

Digitally signed by Elizabeth ARKANSAS COURT OF APPEALS Perry Date: 2022.08.04 11:36:57 DIVISION III -05'00' No. CR-19-14 Adobe Acrobat version: 2022.001.20169 Opinion Delivered: October 23, 2019

WILLIE ANTONE MATLOCK APPELLANT APPEAL FROM THE MISSISSIPPI COUNTY CIRCUIT COURT, V. CHICKASAWBA DISTRICT [NO. 47BCR-16-281] STATE OF ARKANSAS APPELLEE HONORABLE RALPH WILSON, JR., JUDGE

AFFIRMED

BART F. VIRDEN, Judge

A Mississippi County jury convicted appellant Willie Antone Matlock of rape, and

he was sentenced to twenty-five years’ imprisonment. Matlock raises three arguments on

appeal: (1) the trial court erred in admitting into evidence the victim’s prior written

statement, (2) the trial court erred in refusing to grant his motion for a continuance because

the victim’s statement had not been provided to the defense through discovery, and (3) the

trial court erred in rejecting a proffered jury instruction on first-degree sexual assault as a

lesser-included offense of rape. We affirm Matlock’s conviction.

I. Admission of Victim’s Prior Written Statement

The victim, S.S., is the daughter of Matlock’s former long-term live-in girlfriend. At

trial, then twelve-year-old S.S. testified that after Matlock had broken up with her mother and moved out of the home, she wrote a letter to her mother and left it on her mother’s

dresser. The note simply read, “I was molested.”

Matlock argues that the trial court erred in admitting S.S.’s prior written statement

into evidence. Trial courts are afforded wide discretion in evidentiary rulings. Swanigan v.

State,

,

. We will not reverse an evidentiary ruling absent

an abuse of discretion.

Abuse of discretion is a high threshold that does not simply require

error in the trial court’s decision but requires that the trial court act improvidently,

thoughtlessly, or without due consideration.

In addition, we will not reverse absent a

showing of prejudice, as prejudice is not presumed.

Specifically, Matlock argues that the trial court erred in admitting S.S.’s statement

because the State failed to establish the chain of custody. The purpose of establishing a chain

of custody is to prevent the introduction of evidence that is not authentic. Harris v. State,

,

(1995). To prove authenticity, the State must demonstrate

a reasonable probability that the evidence has not been altered in any significant manner.

Wilson v. State,

,

(1982) (per curiam). It is not necessary that the

State eliminate every possibility of tampering.

Minor uncertainties in the proof

of chain of custody are matters to be weighed by the jury and do not render evidence

inadmissible as a matter of law.

According to Matlock, there was absolutely no testimony presented as to what had

happened to the note between the time it was allegedly given to police and when it was

admitted into evidence at trial. He also points out that no law enforcement officer testified

regarding its receipt, review, and storage. To allow introduction of physical evidence, it is

2 not necessary that every moment from the time the evidence comes into the possession of

a law enforcement agency until it is introduced at trial be accounted for by every person

who could have conceivably come in contact with the evidence during that period. Garner

v. State,

,

(2003). The proof of the chain of custody for

interchangeable items like drugs or blood needs to be more conclusive. Laswell v. State,

,

.

Here, the note was not an interchangeable item requiring more conclusive proof.

S.S., the author of the note, identified her own handwriting and said that the State’s exhibit

looked “exactly like the note I wrote my mother.” Sunshyne Clay, S.S.’s mother, also

identified the note as the one she had found on her dresser. We cannot say that the trial

court abused its discretion in admitting the note over defense counsel’s objection to lack of

authentication and lack of proof of chain of custody.

Matlock contends for the first time on appeal that the victim’s statement could have

been manufactured after the allegations in order to bolster the case given the lack of physical

evidence. He also suggests a motive for fabrication, stating that Clay was angry at Matlock

for breaking up with her and seeing other women. Because these arguments were not raised

below in connection with the admissibility of the note, we decline to address them.

Threadgill v. State,

,

(2002). Similarly, Matlock argues that the

trial court erred in admitting S.S.’s note because it contained inadmissible hearsay. Matlock

did not raise an objection to hearsay below. In order to preserve a hearsay objection, a

defendant must make a timely, specific objection stating that ground. Winkle v. State,

,

(2008). Matlock’s argument is not preserved for review.

3 II. Denial of Motion for Continuance

The standard of review for alleged error resulting from the denial of a motion for

continuance is abuse of discretion. Green v. State,

,

. When

evidence is not disclosed pursuant to pretrial discovery procedures, the burden is on the

appellant to establish that the omission was sufficient to undermine confidence in the

outcome of the trial. Burton v. State,

,

(1993). The key in

determining if a reversible discovery violation exists is whether the appellant was prejudiced

by the prosecutor’s failure to disclose; absent a showing of prejudice, we will not reverse.

Matlock argues that the trial court erred in denying his motion for a continuance

because the State failed to produce S.S.’s statement during discovery and that the denial

prevented him from hiring a handwriting expert and subpoenaing S.S.’s school records to

compare the handwriting. He contends that there is no evidence, other than statements of

counsel, that the defense received a copy of the statement prior to trial.

S.S.’s note was introduced into evidence on the first day of trial over defense

counsel’s objections, and Matlock did not move for a continuance until the second day of

trial. We agree with the State that Matlock’s motion for a continuance was not timely made.

In any event, the trial court ruled that there had been no discovery violation. The trial court

specifically believed the prosecutor, who stated that the case file containing the note had

been mailed to defense counsel on November 9, 2016, and that it had also been provided

via Dropbox on June 11, 2018. Under these circumstances, we cannot say that the trial

court abused its discretion in denying the motion for a continuance.

4 III. Rejection of Proffered Jury Instruction

The jury was instructed that there were three separate ways to find Matlock guilty

of rape. A person commits rape if he or she engages in sexual intercourse or deviate sexual

activity with another person (1) by forcible compulsion, or (2) who is less than fourteen

years of age, or (3) who is a minor and the actor is the victim’s guardian.

(a)(1), (3)(A) & (4)(A)(i) (Supp. 2017). Matlock requested that the jury be

instructed on first-degree sexual assault. A person commits sexual assault in the first degree

if the person engages in sexual intercourse or deviate sexual activity with a minor who is

not the actor’s spouse and the actor is a person in a position of trust or authority over the

victim.

(a)(1)(C). The trial court refused the proffered jury

instruction, ruling that first-degree sexual assault is not a lesser-included offense of rape. It

is reversible error to refuse to give an instruction on a lesser offense when the instruction is

supported by even the slightest evidence. Britt v. State,

,

(2001).

We will affirm a trial court’s decision to exclude an instruction on a lesser offense only if

there is not a rational basis for giving the instruction.

Matlock asserts that first-degree sexual assault is a lesser-included offense of rape

because it may be established by proof of the same or less than all the elements required to

establish the commission of rape. See

(b)(1) (Repl. 2013).

Although the jury did not indicate on which one of the three scenarios it based its guilty

verdict, Matlock asserts that sexual assault in the first degree is a lesser-included offense of

guardian rape. “Guardian” includes anyone who, by virtue of a living arrangement, is placed

in an apparent position of power or authority over a minor.

(3).

5 Matlock argues that the only difference between the elements is that the third element of

sexual assault in the first degree requires proof that at the time of the alleged deviate sexual

activity, the victim was not the appellant’s spouse.

Matlock asserts, without citation to authority, that “proof that someone is the

victim’s guardian necessarily also proves that the person is not the victim’s spouse. A person

can’t be the victim’s spouse and the victim’s guardian at the same time as they are mutually

exclusive.” The qualifications of a guardian are set out in

(Supp. 2017). There is no such limitation as suggested by Matlock. See also Rogers v. Ritchie,

,

. Alternatively, Matlock argues that proof of the

nonmarriage of the alleged perpetrator and the victim is an implied element of guardian

rape. For this proposition, he cites authority from a foreign jurisdiction, State v. Stockwell,

(Wash. 2007), and State v. Bailey,

(Wash. Ct. App. 1988). We

decline Matlock’s request to treat proof of nonmarriage as an implied element of guardian

rape.

As Matlock concedes, first-degree sexual assault contains an additional element that

guardian rape does not—proof that the minor is not the actor’s spouse—so it is not a lesser-

included offense. Webb v. State,

(holding that second-degree sexual assault is

not a lesser-included offense of rape under section 5-14-103(a)(3) because it included

additional elements, including the age of the perpetrator); Joyner v. State,

,

(holding that second-degree sexual assault is not a lesser-included offense of

rape under section 5-14-103(a)(3)(A) because it requires proof of two elements that rape

does not—the defendant’s age and marital status with respect to the victim). We hold that

6 the trial court did not abuse its discretion in refusing Matlock’s proffered jury instruction

because first-degree sexual assault under

(a)(1)(C) is not a lesser-

included offense of rape under

(a)(4)(A)(i).

Even if first-degree sexual assault were a lesser-included offense, there would be no

rational basis on which to allow the jury instruction because Matlock claimed that he was

innocent of the allegations. Martin v. State,

,

, 472–

73 (1994) (“Where the appellant relies on the defense of complete denial[,] there is no

rational basis for giving instructions on lesser-included offenses and the trial court is correct

to refuse such instructions.”).

Affirmed.

SWITZER and VAUGHT, JJ., agree.

Richard Rhodes, for appellant.

Leslie Rutledge, Att’y Gen., by: Michael L. Yarbrough, Ass’t Att’y Gen., for appellee.

7