Samples v. State

James R. Cooper, Judge, concurring. Although I agree with the majority’s holding that there is substantial evidence to support a finding that the appellant was at least 18 years of age at the time of the offense, I do not agree that such a finding need be based on the evidence submission form, which purports only to be a receipt for the victim’s underwear upon delivery thereof to the State Crime Laboratory. Instead, I would join the third group of jurisdictions mentioned in State In Interest of A.N., 630 A.2d 1183 (N.J. Super. 1993), and hold that the appellant’s physical appearance could be considered as proof of age and that, taken together, the appellant’s physical appearance and the evidence submission form constitute substantial evidence of the appellant’s age.

Adopting this approach would be consistent with prior Arkansas practice. In Gurley v. State, 179 Ark. 1149 , 20 S.W.2d 886 (1929), the Arkansas Supreme Court held that proof of age could be provided by the jury’s observation of the defendant in court, in addition to testimony regarding the length of a witness’s acquaintance with the defendant.

Therefore, while I agree with the result obtained by the majority, I would rest the decision upon the principle that age may be proven in many different ways, including the appearance of the defendant to the jury. Clark v. State, 246 Ark. 876 , 440 S.W.2d 205 (1969) (Fogleman, J., concurring).

I concur.