Campbell v. State
2017 Ark. App. 59
Ark. Ct. App.2017Background
- Frank P. Campbell (appellant) was convicted of two counts of second-degree sexual assault and one count of sexual indecency with a child based on allegations by two teenage stepdaughters (NB and EB).
- One charge of sexual indecency arose from appellant sending EB an explicit fictional story depicting sexual activity between a stepfather and stepdaughter; appellant admitted sending one story and admitted sending a second story via his iPhone (the second was introduced at trial).
- The trial court admitted: a DVD of appellant’s police interview, testimony about deleted electronic messages, and the content of the stories/messages (one original story was lost; EB testified to its contents).
- Appellant moved for directed verdict generally on insufficiency grounds at the close of the State’s case (challenging three counts as duplicative; the court dismissed duplicates and denied the motion as to one indecency count) and renewed a general insufficiency motion at the close of all evidence but did not specify the element of solicitation until the appeal.
- On appeal appellant argued (1) the admission of the DVD, messages, and stories was an evidentiary abuse of discretion, and (2) insufficient evidence to prove he "solicited" EB (element of sexual indecency with a child).
- The Arkansas Court of Appeals affirmed the convictions, holding (a) evidentiary rulings were within the trial court’s discretion and not prejudicial, and (b) the specific insufficiency challenge to solicitation was not preserved for appellate review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of DVD-recorded police interview | State: DVD permissible to place appellant’s admissions in context; interviewer’s questions not offered for truth | Campbell: DVD contains hearsay beyond his statements (interviewer questions, visuals, sounds) | Admission not an abuse of discretion; questions/context not hearsay; no demonstrated prejudice |
| Admissibility of testimony about lost/deleted electronic messages and story contents | State: originals lost/destroyed so Rule 1004 permits other evidence of contents | Campbell: without originals, testimony on closely related controlling issue is inadmissible; hearsay | Trial court properly admitted EB’s testimony under Rule 1004(1); no bad-faith loss and much was non-hearsay or a party admission |
| Whether messages/stories were hearsay | State: testimony used to show how EB obtained story and sender identity, not to prove truth of fiction | Campbell: contents are hearsay used to prove solicitation | Court: statements not offered for truth; one story was admission by party opponent; no abuse of discretion |
| Sufficiency of evidence on element of solicitation for sexual indecency with a child | State: evidence (stories, messages, admissions, context) sufficient to support solicitation | Campbell: story did not request EB to do anything sexual, so no solicitation | Not preserved for appeal—defendant failed to make a specific directed-verdict motion identifying the solicitation element; point waived |
Key Cases Cited
- Dillon v. State, 317 Ark. 384, 877 S.W.2d 915 (discussing necessity of sufficiency review to protect double jeopardy)
- Cluck v. State, 365 Ark. 166, 226 S.W.3d 780 (standard for reviewing evidence in the light most favorable to the State)
- Maxwell v. State, 373 Ark. 553, 285 S.W.3d 195 (requirement that directed-verdict motions specify grounds)
- Pratt v. State, 359 Ark. 16, 194 S.W.3d 183 (strict construction of preservation rules)
- Hawkins v. State, 348 Ark. 384, 72 S.W.3d 493 (abuse-of-discretion standard for evidentiary rulings)
- Nelson v. State, 365 Ark. 314, 229 S.W.3d 35 (no reversal absent error plus prejudice in evidentiary rulings)
- Buchanan v. State, 315 Ark. 227, 866 S.W.2d 395 (statements not offered for truth are not hearsay)
- Dirickson v. State, 104 Ark. App. 273, 291 S.W.3d 198 (contextual questions not hearsay; officer statements as context)
- Taylor v. State, 88 Ark. App. 269, 197 S.W.3d 31 (physical objects and visual/sensory aspects are not hearsay)
- Efurd v. State, 334 Ark. 596, 976 S.W.2d 928 (Rule 1004 application when originals lost/destroyed)
- Smith v. State, 286 Ark. 247, 691 S.W.2d 154 (admission of other evidence of contents where originals unavailable)