The opinion
Larry D. Vaught, Judge, dissenting. Although I am in agreement with the majority as to the rigid review standard that we must apply to allegations of error flowing from a trial court’s denial of a continuance request, I cannot agree with its ultimate disposition of this case. Therefore, I dissent.
It is well-settled law that whether a motion for continuance should be granted lies within the discretion of the trial judge, and the judge’s decision will not be overturned unless the court abused that discretion by acting arbitrarily or capriciously, Roe v. Dietrich, 310 Ark. 54 , 835 S.W.2d 289 (1992). Further, an appellant must not only demonstrate that the trial court abused its discretion by denying the motion for a continuance but also must show prejudice that amounts to a denial ofjustice. See Cherry v. State, 347 Ark. 606 , 66 S.W.3d 605 (2002). As such, I believe that there was no error in denying Brown’s motion for a continuance because the record does not show arbitrary or capricious action by the trial judge or that Brown was denied justice.
At the outset, I note that the majority makes much ado over Brown’s vigorous pursuit of witness Paladino’s testimony. For purposes of my dissent, I will concede Brown’s diligence in relation to the continuance, despite it being less than perfect — Brown made no attempt to procure (as suggested by the trial court) the video-taped testimony of a seemingly accommodating state-employee witness. Further, I agree with the majority that the trial-court’s continuance denial cannot be affirmed solely on the State’s theory that Paladino’s testimony is cumulative to that offered by the child’s grandmother. Although testimony from the child’s blood-relative of close consanguinity that the child had a history of making false accusations appears to me to be far more damning than the “independent” conclusion that “due to lack of evidence” Paladino made “no report,” it cannot be overlooked that, in addition to being the child’s grandmother, Watson is also the mother of the defendant.
In light of these disclaimers, I concentrate my discussion on the probable effect and the relevance of the absent testimony. First, I note that the affidavit outlining the testimony Paladino would present at trial was not included in Brown’s brief to our court, yet the majority manages to recount the substance of the affidavit in a footnote. Rule 4-2(a)(6) of the Rules of the Arkansas Supreme Court requires that an appellant present us with an abstract of those parts of the record that are necessary to an understanding of the issues presented for decision. Clearly, the burden is on an appellant to bring up a record sufficient to demonstrate reversible error. Cox v. State, 66 Ark. App. 134 , 991 S.W.2d 611 (1999). As our supreme court has succinctly stated, the record on appeal is limited to that which is abstracted. Allen v. State, 326 Ark. 541 , 932 S.W.2d 764 (1996) (reversing the court of appeals and reinstating a conviction where this court had gone to the record to reverse). To the extent the majority relied on the substance of Paladino’s affidavit to support its reversal of Brown’s conviction, it did so in error.
Second, the actual insight that Paladino was prepared to offer relating to the child-victim’s credibility was specious at best. I do not understand how the majority finds resulting prejudice from a witness being denied the opportunity to offer testimony that would likely be inadmissible. Our supreme court has specifically stated that it is error for the court to permit an expert, in effect, to testify that the victim of a crime is telling the truth. Hill v. State, 337 Ark. 219, 224 , 988 S.W.2d 487 (1999). In Logan v. State, 299 Ark. 255 , 773 S.W.2d 419 (1989), our supreme court reversed where it concluded that answers to hypothetical questions resulted in doctors informing the jury that in their opinion the victim was telling the truth. In Johnson v. State, 292 Ark. 632 , 732 S.W.2d 817 (1987), the court stated that a doctor improperly conveyed to the jury his opinion that the victim was telling the truth when the doctor opined that an act had occurred that was detrimental to the victim and that opinion was based only on the victim’s statements to the doctor. Finally, in Russell v. State, 289 Ark. 533 , 712 S.W.2d 916 (1986), the court held that a psychologist improperly testified that a victim’s statements were consistent with a child who had suffered sexual abuse.
Following this line of supreme court cases, in Cox v. State, 93 Ark. App. 419 , 220 S.W.3d 231 (2005), our own court adopted a strict position on an expert offering credibility testimony. In Cox, we said that the child-victim’s testimony alone was sufficient to support the rape conviction, but that the case had to be reversed because the trial court allowed a well-trained social worker to repeatedly testify about the victim’s high level of credibility.
In this case, we know that Paladino was prepared to testify that because the victim’s allegation against Brown contained inconsistencies, “no report” was filed) However, I can find no mention — either in the abstract or the majority opinion — of the actual substance of these “inconsistencies.” It does not matter whether you classify this expert’s potential testimony as either a bald-face conclusion or an “independent” opinion as to the victim’s lack of veracity — it would have been error to allow it into evidence. There is nothing in Paladino’s report (or omitted affidavit) to establish a pattern of perjury or empirical proof (even in minute measure) that the .crime did not occur.
As such, I cannot agree that the trial court acted both arbitrarily and capriciously by refusing to grant Brown’s continuance. The trial court’s ability to control its own calendar is insulated from appellate review — as prescribed in our review standard — except in the most extreme cases of abuse. This is not such a case. Considering the lack of relevance and probable effect of this potential testimony coupled with the extraordinarily high threshold of prejudice Brown had to demonstrate — the majority’s decision to require that this convicted rapist receive a new trial confounds me.
Pittman, C.J., Gladwin and Bird, JJ., join.