ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

CHIEF JUDGE JOHN F. STROUD, JR.

DIVISION I

CARL BUCHANAN

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 01-1067

September 4, 2002

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT,

SEVENTH DIVISION, [CR-2000-4267]

HONORABLE JOHN B. PLEGGE,

CIRCUIT JUDGE

AFFIRMED

Appellant, Carl Buchanan, was tried by a jury and found guilty of the offense of rape. The victim, P.L., was his stepdaughter, who was under the age of fourteen at the time that he engaged in sexual intercourse with her. He was sentenced to serve forty years in the Arkansas Department of Correction. Appellant raises three points of appeal: 1) that the rape shield statute, as applied here, denied him the opportunity to present relevant testimony; 2) that the trial court erred in admitting an unauthenticated and unsigned letter and then letting the State argue that it was written by appellant and amounted to a confession; 3) that the trial court erred in holding a pretrial conference without appellant's presence. We find no error and therefore affirm.

During the trial, P. L. testified that she was fourteen and that she was born on January 15, 1987. She stated that appellant was her stepfather; that she was four when he married her mother; that they moved to New York soon thereafter and then returned to Arkansas when she was in the fifth grade. She testified that soon after they returned to Arkansas, she and appellant began having sex. She stated that at first "he wasn't putting his penis all the way in me . . . because it was hurting [but] there did come a time when he did put his penis all the way in me." She said that at first they would have sex once a week, on Wednesdays, because that was when her mother had her hair appointment.

P. L. testified that in August of the previous year, on a Wednesday night, she was in her mother and appellant's bedroom, undressed and about to have sex with appellant, with the door locked, when her mother returned home. She said that her mother knocked repeatedly on the door, that appellant ran to the shower, and that she unlocked the door and told her mother that appellant was helping her with her homework. She stated that, after questioning by her mother, she finally wrote a letter to her telling her what had been going on with appellant. The letter was introduced as State's Exhibit No. 1.

Lisa Buchanan, the victim's mother, testified that on August 30, 2000, she returned from the hairdresser earlier than usual. She said that she found her bedroom door locked; that she knocked repeatedly with no one answering; that her daughter finally opened the door; and that appellant was in the room. She stated that he had been in the shower, but that he never took a shower at that time of the day. She said that she asked her daughter what was going on and that P. L. told her she was doing her homework. Ms. Buchanan testified that her computer was not on and that there were no books or papers in the bedroom. She said that when she asked appellant what was going on, he became very angry.

She stated that this incident happened on a Wednesday, that it bothered her the whole week, and that on Sunday she went to P. L.'s room and told her that she needed to ask her something. She said that P. L. gave her a letter, State's Exhibit No. 1. She said that she called appellant and told him to come home. She stated that the day after she confronted appellant, he left her a note on her bedroom dresser, which was where she and appellant left notes to each other. She testified that she recognized the handwriting as appellant's. The note was introduced as State's Exhibit No. 2. She also identified another letter, signed by appellant, as one written by him. It was introduced by the State as Exhibit No. 3 for purposes of handwriting comparison.

Dr. Jerry Jones, director of the programs for children at risk at Arkansas Children's Hospital, testified that he was asked to evaluate P. L. on November 17, 2000; and that he performed a genital examination, which revealed abnormalities that were highly suspicious of past traumatic injury to the hymen. He stated that the injury could have been caused by either an adult or a teenage penis.

Appellant testified that he had never had inappropriate contact with P. L. and that he had never had any sexual relations with her. He denied writing State's Exhibit No. 2, but admitted writing State's Exhibit No. 3. He further stated that he did not know P. L. was in the bedroom on August 30 when he was taking a shower.

The gist of appellant's argument under his first point of appeal is that the trial court erred in allowing the State to use the rape shield statute to prevent appellant from presenting relevant evidence. We find no error.

The rape shield statute provides the following general prohibition:

(b) In any criminal prosecution under § 5-14-101 et seq. or § 5-26-202, or for criminal attempt to commit, criminal solicitation to commit, or criminal conspiracy to commit an offense defined in any of those sections, opinion evidence, reputation evidence, or evidence of specific instances of the victim's prior sexual conduct with the defendant or any other person, evidence of a victim's prior allegations of sexual conduct with the defendant or any other person, which allegations the victim asserts to be true, or evidence offered by the defendant concerning prior allegations of sexual conduct by the victim with the defendant or any other person if the victim denies making the allegations is not admissible by the defendant, either through direct examination of any defense witness or through cross-examination of the victim or other prosecution witness, to attack the credibility of the victim, to prove consent or any other defense, or for any other purpose.

Ark. Code Ann. § 16-42-101 (b) (Repl. 1999). Despite this general prohibition, however, subsection (c) of the statute provides a procedure by which such evidence may be examined by the trial court to determine whether it is relevant and whether it should be admitted as evidence at trial:

(c) Notwithstanding the prohibition contained in subsection (b) of this section, evidence directly pertaining to the act upon which the prosecution is based or evidence of the victim's prior sexual conduct with the defendant or any other person may be admitted at the trial if the relevancy of the evidence is determined in the following manner:

(1) A written motion shall be filed by the defendant with the court at any time prior to the time the defense rests stating that the defendant has an offer of relevant evidence prohibited by subsection (b) of this section and the purpose for which the evidence is believed relevant;

(2)(A) A hearing on the motion shall be held in camera no later than three (3) days before the trial is scheduled to begin, or at such later time as the court may for good cause permit.

(B) A written record shall be made of the in camera hearing and shall be furnished to the Arkansas Supreme Court on appeal.

(C) If, following the hearing, the court determines that the offered proof is relevant to a fact in issue, and that its probative value outweighs its inflammatory or prejudicial nature, the court shall make a written order stating what evidence, if any, may be introduced by the defendant and the nature of the questions to be permitted in accordance with the applicable rules of evidence; and

(3)(A) If the court determines that some or all of the offered proof is relevant to a fact in issue, the victim shall be told of the court's order and given the opportunity to consult in private with the prosecuting attorney.

(B) If the prosecuting attorney is satisfied that the order substantially prejudices the prosecution of the case, an interlocutory appeal on behalf of the state may be taken in accordance with Rule 36.10 (a) and (c), Arkansas Rules of Criminal Procedure.

(C) Further proceedings in the trial court shall be stayed pending determination of the appeal. However, a decision by the Arkansas Supreme Court sustaining in its entirety the order appealed shall not bar further proceedings against the defendant on the charge.

Appellant contends on appeal that "he was not allowed to put on any evidence that the sex could have been with someone else." However, he did not follow the statutory procedure for determining the admissibility of such evidence. In fact, he did not even file a written motion as required by the statute. Consequently, this issue was not properly preserved for appeal and therefore we do not address it. See, e.g., Bradley v. State, 327 Ark. 6, 937 S.W.2d 628 (1997).

Under his second point of appeal, appellant contends that the trial court erred in allowing the introduction of the letter purportedly written by him to Lisa Buchanan, State's Exhibit No. 2. Appellant argues that the trial court should have employed a Rule 403 balancing test and determined that the exhibit was unfairly prejudicial. We find no error.

First, appellant made no mention of Rule 403 during either the pretrial conference or the actual introduction of the evidence at trial. Where the specific objection raised on appeal was not made at trial, it is not preserved for our review. Davis v. State, 330 Ark. 501, 956 S.W.2d 163 (1997); Woods v. State, 323 Ark. 605, 916 S.W.2d 728 (1996).

Moreover, Rule 901 of the Arkansas Rules of Evidence provides generally that authentication or identification is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims and that testimony from a witness with knowledge and nonexpert opinion testimony on handwriting can satisfy the requirement. In Pointer v. State, 248 Ark. 710, 454 S.W.2d 91 (1970), co-workers' identifications of handwriting were sufficient where they had worked in the same office with the defendant for several years and were thoroughly familiar with his handwriting. Here, Ms. Buchanan testified that she was familiar with appellant's handwriting because she had been married to him for seven years, that the letter was left in a place where he normally left letters for her, and that she recognized the handwriting to be his. We find that her handwriting identification was sufficient to satisfy the requirements of Rule 901.

For his final point of appeal, appellant contends that the trial court erred in holding a pretrial conference without his presence because "a hearing in camera on the admissibility of evidence is a critical stage of trial for which appellant has a right to be present." He cites no authority for this specific position, and his general arguments with respect to the Sixth Amendment are not persuasive. Moreover, although evidentiary issues were discussed in the pretrial conference, the judge did not rule on any of them. Rather, he postponed hisrulings, preferring instead to wait until they came up during trial. Appellant was present at trial. Furthermore, the prosecutor specifically asked appellant's trial counsel at the end of the pretrial conference if he waived his client's appearance at the conference, to which the trial counsel responded that he did. See Davis v. State, 246 Ark. 838, 440 S.W.2d 344 (1969) (where appellant contended that the trial court erred in excluding him and/or permitting his absence during conferences in chambers between the court and counsel, supreme court explained that all rulings made as a result of in-chamber hearings were again made in open court before the jury, except in those instances when counsel for appellant specifically requested such rulings be made in chambers and not before the jury; under these circumstances, court found that if any error was committed, it was waived by appellant and his counsel).

Affirmed.

Hart and Robbins, JJ., agree.