# Flurry v. State

> Court of Appeals of Arkansas · June 4, 1986 · 18 Ark. App. 64

URL: https://www.frixlaw.com/law-library/cases/6550984

## Case

- **Full name:** Lonnie FLURRY v. STATE of ARKANSAS
- **Court:** Court of Appeals of Arkansas
- **Decided:** June 4, 1986
- **Citations:** 18 Ark. App. 64; 711 S.W.2d 163; 1986 Ark. App. LEXIS 2237
- **Precedential status:** Published
- **Opinion:** Concurrence by Mayfield
- **Judges:** Cooper, Corbin, Mayfield, Wright
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6550984

## Opinion text

Melvin Mayfield, Judge, concurring. As the majority opinion points out, in order for appellant to be guilty of rape in this case, the jury had to find that he engaged in sexual intercourse with his 14-year-old daughter by “physical force, or a threat, express or implied, of death or physical injury.” The only evidence from which such force or threat could be found is the daughter’s testimony that she “resisted,” “cried and told him no,” and “did not consent to the rape.” Although I agree that the jury could infer some threat of physical injury from this testimony, it obviously is not strong evidence of such a threat and surely is only sufficient to make an issue of fact.
The minority of the court seem troubled by the fact that the appellant did not testify that his daughter consented to his advances and suggest that Roberts v. State, 281 Ark. 218 , 663 S.W.2d 178 (1984), is somehow analogous to this case. Roberts, in my view, simply holds that under the evidence in that case the only rational conclusion the jury could reach was that the defendant broke into the house where he left his fingerprints and stole an earring which matched the one left in the house or that he did neither. In the present case, however, the daughter’s own testimony can reasonably be construed as giving consent without any implied threat of physical injury.
Although cases from other jurisdictions are sometimes helpful, a dissenting opinion in this case clearly indicates that other jurisdictions are divided on whether a lesser included instruction should be given when the defense is complete innocence or an alibi. I have not analyzed all the cases cited by the dissent, but it is interesting to note the two from Tennessee. In Judge v. State, 539 S.W.2d 340 (Tenn. Crim. App. 1976), the defendant was charged with burglary and wanted an instruction on a lesser included offense of attempt to commit a felony. His defense was an alibi and the court said the only evidence introduced showed the offense was “fully completed” and, therefore, it was unnecessary to instruct on the lesser included offense. The other Tennessee case, State v. Barker, 642 S.W.2d 735 (Tenn. Crim. App. 1982), presented a similar situation and the court said where the State’s evidence as to the degree of the offense is “uncontradicted” no instructions on lesser included offenses are required.
My very limited research also turned up two interesting cases from other jurisdictions. In State v. Carter, 232 Kan. 124 , 652 P.2d 694 (1982), the court said:
Defendant did not testify at trial. The victim’s own testimony, however, raises a legitimate factual issue as to whether defendant had the capacity to form the specific intent requisite for kidnapping. Accordingly, we conclude the trial court erred in failing to instruct on the lesser included offense of unlawful restraint. The kidnapping conviction therefore must be reversed and remanded for new trial.
And in the case of United States v. Huff, 442 F.2d 885 (D.C. Cir. 1971), the trial court gave a lesser included offense instruction over the defendant’s objection. In affirming the trial court, the appellate court said:
The jury is not confined in its findings to matters that are directly set forth in testimony but may base an inference of lesser offense on a “reconstruction that is fairly inferable” from the evidence, gleaned perhaps by putting together some items from one witness, some from another, and some from the jury’s own experience and sense of probabilities.
I concur in the majority opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6550984. Public record. Not legal advice.