561 S.W.3d 318
Ark.2018Background
- Michael James Friday was convicted by a jury of two counts of rape (sex with a person under 14) based on allegations by A.H. and A.T.; he received life plus 40 years. The third count was dismissed.
- Allegations arose from repeated sexual abuse of A.H. beginning when she was five and of A.T. when she was nine; physical evidence included sperm on sheets matching appellant and a video/texts from appellant. A sexual-assault nurse examiner’s findings were consistent with A.H.’s history.
- The felony informations charged the two rape counts as occurring on or about July 15, 2016; trial occurred June 26–27, 2017.
- At trial, defense moved for directed verdict arguing the State failed to prove victims were under 14; the court denied the motion. Defense also moved in limine to bar referring to witnesses as “victims,” which was denied.
- Other contested rulings: limited cross-examination of lead investigator about his prior employment departure; an alleged but unobjected-to temporary exclusion/exit of a victim’s father during voir dire.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Friday) | Held |
|---|---|---|---|
| Sufficiency of evidence re: victims’ ages | Victim testimony that A.H. was abused from age 5 and A.T. at age 9 is sufficient; uncorroborated victim testimony can sustain conviction | State failed to prove victims were under 14; no birthdates introduced; directed-verdict motion preserved this claim | Affirmed. Viewing evidence in State’s favor, testimony was substantial; no statutory requirement to introduce birthdates; A.T. age argument on specific information date not preserved below |
| Use of term “victim” at trial/voir dire | References reflected prosecution’s theory and officers’ investigative role; not prejudicial here | Use of the word “victim” deprived Friday of presumption of innocence and shifted burden to defendant | Affirmed. Court did not abuse discretion; isolated uses were not prejudicial under facts presented |
| Closure of courtroom during voir dire (public-trial claim) | Any brief exclusion was not objected to and no contemporaneous objection was made so claim not preserved | Closing the courtroom (victim’s father exited) violated Sixth Amendment/public-trial right and requires reversal | Affirmed. Claim not preserved because defense failed to contemporaneously object; court did not reach merits |
| Restriction on cross-exam re: investigator’s prior departure (Rule 608(b)) | The investigator’s departure could impeach credibility; defense was permitted limited questioning but did not proffer the extrinsic evidence | Trial court improperly curtailed inquiry into specific-instance misconduct and excluded evidence without allowing proffer | Affirmed. Defense failed to proffer the document or testimony; substance of alleged misconduct was not apparent from record; issue unpreserved |
Key Cases Cited
- Ward v. State, 370 Ark. 398, 260 S.W.3d 292 (2007) (uncorroborated rape-victim testimony may sustain conviction)
- Cockrell v. State, 2010 Ark. 258, 370 S.W.3d 197 (arguments not raised below are not preserved on appeal)
- Sharp v. State, 51 Ark. 147, 10 S.W. 228 (1889) (trial court’s language calling complainant a “victim” may prejudice defendant; reversible error in murder context)
- Bateman v. State, 2 Ark. App. 339, 621 S.W.2d 232 (1981) (trial court should avoid term “victim”; use of term not reversible where not prejudicial)
- Wilson v. State, 320 Ark. 707, 898 S.W.2d 469 (timing in indictment need only be material; minor deviations tolerated)
- Perkins v. Silver Mountain Sports Club & Spa, LLC, 557 F.3d 1141 (10th Cir. 2009) (proffer allows trial judge to make informed evidentiary ruling and creates record for appeal)
- Fletcher v. State, 2018 Ark. 261, 555 S.W.3d 858 (abuse-of-discretion standard for evidentiary rulings)
- Cokeley v. Lockhart, 951 F.2d 916 (8th Cir. 1991) (material variance between charging instrument and proof can violate due process)