The opinion
James R. Cooper, Judge, dissenting. Although I agree with Judge Corbin’s dissenting opinion, I feel constrained to express my views separately.
I respectfully dissent from the majority opinion because I disagree that there was a rational basis on which the jury could have found the appellant guilty of the lesser included offense of carnal abuse in the third degree. I agree with the majority’s statement of the law, that is, it is error to refuse to give a correct instruction on a lesser included offense when there is testimony furnishing a reasonable basis on which the defendant may be found guilty of the lesser included offense. LeFlore v. State, 17 Ark. App. 117 , 704 S.W.2d 641 (1986); Williams v. State, 17 Ark. App. 53 , 702 S.W.2d 825 (1986); Mallett v. State, 17 Ark. App. 29 , 702 S.W.2d 814 (1986). I simply cannot find any testimony or evidence supporting the majority’s result.
The only basis the majority cites for its conclusion is that the jury possibly could have concluded that, because the victim did not report the rapes for some time, she could have consented. The issue of consent was never raised by the appellant, his defense being a total denial of any kind of sexual activity with the victim. I am totally unwilling to agree that an instruction on the lesser included offense of carnal abuse in the third degree is required in every rape case where the victim, for whatever reason, does not immediately report the sexual assault. That is the practical result of today’s opinion.
The majority cites Clark v. State, 244 Ark. 772 , 427 S.W.2d 172 (1968) for the proposition that it is error for a trial court to refuse to instruct on carnal abuse where the jury could find consent by virtue of the victim’s failure to report the crime. In Clark, the victim testified that she did not report the assault because the appellant threatened to kill her. Even though Clark says what the majority opinion states, each rape case must stand on its own, and I do not agree that the Supreme Court’s holding in Clark mandates the giving of the third degree carnal abuse instruction in the case at bar.
I dissent.