*1 postconviction of of the denial of range conduct falls within the wide relief. Ma- sel’s assistance, supra. son v. a professional reasonable overcoming claimant has the burden of Affirmed. |inpre by identifying specific acts sumption counsel, which, when or omissions of at the perspective
viewed from counsel’s
time of the cоuld not have been the professional judgment.
result of reasonable
Id.
We hold that evidence of the bond’s
Nance, supra.
Hayes next that his trial failing object
counsel was ineffective for Joseph
to Officer Smith’s with instruction,
out requesting limiting AMI
Crim.2d 202. prior Smith testified about
inconsistent statements Teresa Cole
man after Coleman had testified that
Hayes had not committed the offenses that
he was Hayes’s with. trial coun professional
sel stated in his opinion,
giving AMI Crim.2d 202 at the close of the
trial was requesting more effective than it
during the trial.
Once again, Hayes’s we note that
counsel made a conscious decision not to
request the limiting instruction based on
reasoned, professional judgment. As not- previously, strategy
ed decisions are be-
yond purview of an ineffective-assis- Nance,
tance supra. claim. holdWe alleged error does not support reversal *2 the.pornog-
cient evidence that he viewed (2) pornographic raphy; admitting 404(b) (2013); under Ark. R. Evid. (3) im- admitting pornographic and (2013). under Ark. R. Evid. 403 We ages jurisdiction pursuant of this case assumed (6) l-2(b)(4), (5), Sup.Ct. to Ark. R. and (2013), significant it involves a needing development clаrification or law. We affirm. 4, 2011, Johnston was
On November of his rape with three counts of nine-year-old daughter, then C.J. occurred be- rapes alleged were to have 21, | g2006, September tween December 5, 2011. At C.J. testified that John- raping ston been her since she was years weekly old her during four or five visitation with her which was estab- her divorce. She following parents’ lished rapes occurred several stated each and that during times weekend visit raped vaginally, orally, Johnston her anally. C.J. testified that Johnston had occasionally a but that he used condom her, ejaculated on and she de- typically She scribed the smell of his semen. fur- ther had filmed her testified Johnston “sucking penis” on his and that he had suggestive taken of her in photographs poses. rapes C.J. stated Firm, by: 0. “Bill” James Law William anally painful and that Johnston would James, Jr., for appellant. rape “really her when he was mad” be- he knew that hurt her the most. cause Gen., McDaniel, Att’y by:
Dustin Chris- Gen., Harris, Att’y appellee. tiаn Ass’t C.J., According any- she did not tell one about the abuse because her father HOOFMAN, Justice. CLIFF kill me threatened that “demons would | ^Appellant appeals Johnston him.” stated that Johnston would tell Johnathan vampires three of her that he saw demons or in the from his convictions for counts rape try He sentenced mirror and tо scare her. She testified grand- tell her forty years’ imprisonment finally on each that she decided to count, mother about the abuse after a visit with with all sentences to be served con- Day currently. Johnston her father over Labor weekend appeal, On (1) him when he permit- the circuit erred when she asked would court her, raping replied and he that he did ting stop the State to introduce a from without suffi- not know. C.J. stated that made that he then “pinkie promise” stop prepared report but and Cone contain- again Monday. ing her on that While about 188 of images. Cone indi- normally majority would make C.J. cated that the vast the porno- related, clothes and shower after the change her graphic images were incest *3 her un- rapes, change she decided not to filenames website names water- derwear before she went home that week- “wholefamilyin- marked on them such as feeling had a that she was cest,” end because she permindaughters,” “dads “homein- going rapes. to disclose the C.J. told her cestvideos,” “daughterdestruction.com,” Tuesday, after on grandmother school “trjdncest.com,” and “incestsexcite.net.” she was taken to Arkansas Hos- Children’s images Cone stated that the did not neces- pital, where she underwent a sexual-as- females, sarily underage feature although A sault exam. swab taken from C.J.’s |4or many of the actors were dressed cells, vagina positive sperm tested al- posed in such a manner appear as to though the cells were unable to be DNA young. Cone testified because the |3C.J. typed. The underwear had history Internet search had beеn deleted worn home that weekend was also exam- computer, he did not have any ined, and Johnston’s semen was found in proof that these websites actually had the crotch area. His semen was also found many been visited. He indicated that pairs on four other underwear C.J.’s on a images webpage download auto- seized from Johnston’s home. A forensic matically when the visitor enters a website examination conducted two sexual-assault images report some of the in his major weeks later revealed that had a ads,” appeared to be from “banner which hymen tear in her indicated sexual the user even doеs not have to click on for involving penetrating abuse trauma. image automatically download. Following presented the evidence at tri- argued report pre- al, of all convicted Johnston three pared by Cone should not be admitted into rape forty counts of and sentenced him to images evidenсe because the were not rel- count, years’ imprisonment on each evant to the issue of whether he concurrently. the sentences to be served daughter, they because were also inadmis- judgment and commitment order was 404(b), sible under Ark. R. Evid. and be- 7, 2013, February entered on and Johnston images cause the value of the timely filed a appeal. notice of prejudicial their effect ap
Johnston’s sole
on
under Ark. R. Evid. 403. The circuit court
peal concerns the circuit
images
court’s admission ruled that two of the
believed to be
lap
found
banner ads would be excluded but that the
top computer. At a pretrial hearing
imagеs
on other
were admissible
pursuant
404(b).
issue,
Cone,
Investigator
Chris
with Rule
Johnston filed a motion for
reconsideration,
Against
the Arkansas
Internet Crimes
which was denied
Force,
court,
Task
granted
Children
testified
circuit
and the court
John-
performed a
standing objection
forensic search of Johnston’s
ston’s
to the admission
im
computеr
and that the
of this evidence at trial.
Cone’s
ages in the
Inter
temporary
pretrial
found
at trial was similar to that at the
evidentiary hearing, although
net files of Johnston’s
under the
the State ad-
approx
only thirty-seven
username “Johnathan.” All of the
mitted into evidence
im-
imately
than half
ages,
had been downloaded
less
that it had
span
initially
hearing.
in a nineteen-minute time
on June
relied on at the pretrial
404(b)
above,
pro-
forth
Rule
ter. As set
have broad discre
courts
Circuit
issues,
unless it is
evidentiary
and hibits such
deciding
tion in
in the
admissibility of evi
relevant to an issue
rulings on
their
case,
absent
“mo-
appeal
reversed on
to show the defendant’s
are not
such as
dence
Laswell v.
tive,
plan,
discretion.
preparation,
an abuse of
opportunity,
201,
899
(1986),
the admis
upheld
recounting
in which we
C.J.’s detailed
sympa
sion of evidence of
defendant’s
many years
of rapes
her
there
white-power organization
for a
thies
corroborating
was also
medical and foren-
felony
of his motive to commit
testimony.
sic
Johnston’s
semen was
robbery
of a
murder
the course
found on the crotch
pairs
area
five
money
to obtain
for the
was carried out
underwear,
including
pair
C.J.’s
and to Donovan v.
organization,
following
she had worn home
her Labor
(2000),
Ark.App.
32 S.W.3d
visitation,
which,
Day
testified,
during
she
affirmed the
appeals
which the court
|sJohnston
her
threе times.
404(b) evidence of the
admission of Rule
Further, a vaginal swab from the sexual-
drug
proof
addiction as
of mo
defendant’s
performed
day
assault exam
the next
test-
money in order
tive to steal the victim’s
cells,
positive
sperm
major
ed
and a
narcotics. The State
purchase
more
hymen,
tear
C.J.’s
which
consistеnt
contends that both of these cases demon-
involving penetration,
with sexual abuse
strate that the Rule
evidence was
Thus,
was also found.
there was over-
it
independently relevant because
tended whelming evidence of
guilt
Johnston’s
*5
the
particu-
defendant had
See,
State,
e.g.,
this case.
v.
Spencer
348
explained
lar attribute that
his motive for
(2002)
230,
Ark.
evidence of Johnston’s In addition dissents. HANNAH, Justice, erroneously ad- When the circuit court Chief JIM repugnant, mitted into evidence thе devi- dissenting. titles that pornographic pictures ant and majority, dissent. The respectfully I appellant’s computer, were found on aside the rules of analysis, sweeps without The harm was prejudicial case was over. law of the common and centuries immense. Because the evidence found on apрel- its own decision imposes as it |10not appellant’s computer did constitute rules of evidence “shall guilt. lant’s The daughter, its in admin- fairness be construed 19secure value, best, The marginal. at istration, unjustifiable ex- elimination of admit- circuit court abused its discretion growth delay, promotion pense and ting the evidence. еvidence, law development may be ascertained the end that the truth will not reverse the circuit This court determined.” Ark. proceedings justly to show that the circuit court simply court relevant, Only competent Evid. 102. 389, R. erred. See Wells admitted to ensure that a evidence shall be (stating that this at 430 S.W.3d error). majority a fair trial. The criminal receives court does not reverse for harmless in- not matter whether However, holds it does entirely an this ease is different or irrelevant evidence is intro- competent majority’s decision is based matter. if the evidence of duced at trial because without the inad- premise that even will guilt overwhelming, is the сonviction missible there was more than be affirmed. So much for fundamental evidence, typically characterized sufficient to a fair trial and to a rights “overwhelming,” jury’s to sustain the *6 peers. one’s to there be guilt. verdict and show Can evidence any doubt that this inadmissable pro- Evidence of a criminal defendant’s jury’s affected the decision on its sentence to commit a crime is excluded pensity majority gravely recommendation? Arkansas Rule of Evidence Rule to a of right presumption undermines 404(b) codifies the common-law rule that innocence, a fair right of similar crimes or acts is not peers. right to a one’s independent revealing admissible unless of act it is relevant another similar crime or reasons, I foregoing respectfully For prove crime. commission This case should be reversed and dissent. case, In it is relevant such remanded. repug- point.
on a material Evidence
nant, pornography appel- deviant found on does not constitute evi-
lant’s appellant rape.
dence that committed 404(b) provides examples
Rule of when wrongs similar crimes or “motive,
“may”
op-
be
admissible