dissenting.
Arkansas Stat.Ann. § 41-1803(l)(a) (Supp.1985) establishes a single offense, rape, which is committed when by forcible compulsion a person engages in either sexual intercourse or deviate sexual activity with another person. There is only one statutory offense, with two ways of committing it. This is both the plain meaning of the statute and the meaning accorded to it by the Supreme Court of Arkansas. See Cokeley v. State, 288 Ark. 349, 705 S.W.2d 425, cert. denied, 479 U.S. 856, 107 S.Ct. 195, 93 L.Ed.2d 127 (1986).
Although Cokeley was charged with committing rape in only one way — by engaging in sexual intercourse by forcible compulsion — the state’s evidence showed that he committed rape in both of the ways contemplated by the statute. The victim testified that after spending time driving around with a friend, the two went to a residence where they met Cokeley. He offered to give her a ride home, but drove instead to a secluded location, where he beat her, pulled a knife, and threatened to kill her if she did not remove her clothing; he then forced her to perform oral sex and to have intercourse. She testified that Cokeley ejaculated during the oral sex, but she did not know if he ejaculated while having intercourse. The victim leaped from the car and was able to stop passing motorists, one of whom testified the victim was nude and hysterical. They provided her with clothing and took her to the police station, where she fainted.
The victim was examined at a local hospital. Medical evidence indicated that when she arrived she was distraught, crying, and very embarrassed. She had bruises on her face and upper back. A vaginal examination revealed no semen. An examination for traces of semen in her mouth was not done. Tests to determine whether a pubic hair recovered from her vaginal area was Cokeley’s were, inconclusive.
Cokeley’s defense was that he made no threats and applied no force, that he did *922not have sexual intercourse with the victim, and that she voluntarily committed oral sex on him. Clearly there was no element of surprise or lack of notice to Cokeley in the victim’s testimony that Cokeley not only raped her by forcing sexual intercourse upon her but also by forcing her to perform oral sex.
The medical evidence noted above was consistent with the victim’s testimony that she was beaten, but otherwise was inconclusive. Thus the state’s case rested almost entirely on the victim’s testimony; the jury could not find Cokeley guilty of rape unless it believed the victim. As the jury found him so guilty, we can only conclude that it did believe the victim, and there is absolutely no reason to think it did not believe all of the victim’s story, ie., that Cokeley had raped her in both of the ways in which the statute defines the crime of rape. As the Supreme Court of Arkansas found in Cokeley’s direct appeal,
The trial court simply instructed the jury according to the statute that a person commits rape if he engages in sexual intercourse or deviate sexual activity with another person by forcible compulsion and defined the two acts. The evidence supports a finding of guilt of rape by either or both means. The issue in this case is not the manner of the rape, but whether rape by forcible compulsion indeed occurred. There is no argument that there is not substantial evidence to support a finding that Cokeley raped the victim either way. Cokeley was convicted of the crime with which he was charged — rape.
Cokeley, 705 S.W.2d at 427.
These findings of the Supreme Court of Arkansas are entitled to the presumption of correctness afforded to state court findings by 28 U.S.C. § 2254(d) (1988). Considering these findings, it becomes clear that Cokeley was properly convicted and that the variance between the charge on which he went to trial and the trial court’s instruction to the jury did not affect the fundamental fairness of the trial. Given the state of the evidence, a rational jury hardly could have credited the victim’s testimony that Cokeley forced her to perform oral sex yet have discredited her equally plausible testimony that he also forced her, as charged, to submit to sexual intercourse. As I cannot agree that Cokeley was denied due process of law, I respectfully dissent, and would affirm the District Court’s dismissal of Cokeley’s habeas petition.