*1 of Arkansas v. STATE Newton WHITE Christopher 242 S.W.3d CR 05-1407 of Arkansas Court Supreme 2, 2006 November delivered Opinion Denial of Rehearing Opinion [Supplemental December 14, 2006.*] Dickey JJ., participating. * IMBERand *2 Rosenzweig, appellant. Jeff *3 Gen., Newman, Gen., Beebe, for Ass’t
Mike Brad by: Att’y Att’y appellee. an con This arises from order appeal Jim Gunter, Justice. White, of two counts Newton Christopher
victing appellant, and a of Ark. Code Ann. 5-14- a Y violation Class rape, felony his two from 1999 2002. 2005), biological daughters 103 (Supp. to 420 months in the Arkansas was sentenced Department Appellant order, makes this and of Correction. From brings appeal affirm. five of error. We allegations AAW, and were removed ANW daughters,
Appellant’s home- 2002 because were they from custody April mother, and she never less. DHS a search was conducted care, and saw found. were foster they girls placed 7, 2002, visits. On October Detective Debbie during unsupervised received word that Pam Crews Police Rogers Department Cash, the the child-abuse hotline and foster called girls’ parent, that, father, a AAW came back with after visit their reported blood, she was her underwear saturated and taken old, was was six room. ANW seven AAW emergency years old at the hotline Both the time of girls complained years report. in the area. pain vaginal 2002, McCutcheon, a forensic interviewer On October Janet AAW, Center interviewed who Child Advocacy (CAC), accident. that no one “touched of a bike She stated story
relayed father did not her to a in a that she didn’t like” and that her take way interview, Farst conducted a medical doctor. Dr. Karen Following AAW, and discovered an notch vaginal examination of irregular Dr. Farst noted was of recent sexual abuse. Dr. Farst also “suspicious” ANW, examined who also had a notch that irregular deep, vaginal could also indicate sexual abuse. 11, 2002, was interviewed on December Appellant again 17, 2002,
December and denied in both interviews. any wrongdoing 10, 2003, On Detective Keith Eoff received call from phone June Jan Bennett, a case at the worker of Health and Human Department Services, ANW. came ANW back from visit with regarding with a and she was Bennett vaginal Ms. said that injury, ANW bleeding. wreck, claimed she had a bike but ANW further disclosed to her that her had been father her. On therapist touching June McCutcheon conducted an interview with ANW with the use of dolls. correct ANW told anatomically McCutcheon that her father “had done bad to her.” She on the doll something pointed penis and said that and fatter” and that it “hurt.” appellant’spenis “longer ANW was able father, to describe in detail the sex act with her stating that there was “white stuff” inside her. ANW told McCutcheon that her, her father threatened her that if she told telling anyone, “sky would fall on her house” she would die. When asked if else anyone her, had touched ANW of another foster child spoke and said it after at she was CAC in happened October 2002. McCutcheon later interviewed with the AAW use of ana- interview, correct dolls. In the
tomically AAW revealed that her father her, touched her pee,” had sexual “pee digitally penetrated intercourse, and her to forced oral sex. other perform Throughout interviews, McCutcheon surmised that two girls sexually out with each other and acting foster children with whom they *4 came in contact. 25, 2003, information,
On the State August filed felony 2005, two 26, with counts of and on charging appellant rape, April an amended information was filed to include the felony date of the offenses from 1999 to 2002. filed motion to Appellant pursuant Ark. Code Ann. 16-42-101 1999), the court (Repl. requesting § to admit evidence of AAW’s sexual conduct with a prior child in care, foster her and her sister. The State filed a stepbrother, brief in 18, 15, 2005, on 2005. opposition February On April appellant filed a similar motion to admit evidence of rape-shield sexual conduct of ANW. That same also filed a motion in day, appellant limine to the introduction of prevent evidence. 404(b) 25, 2005, The circuit court conducted a on hearing April and limine, denied the aside, motion in motion to set and rape- 26, shield motion. A trial was conducted on 2005. On April May
599 and was 2005, counts was convicted of two rape appellant held a to months’ 420 imprisonment. sentenced 10, 2005, court the circuit where on new-trial hearing June denied and the verdict appellant’s to overturn jury’s refused his his from now for new trial. brings appeal motion Appellant and sentence. convictions and be reversed his should that convictions Appellant argues raises this case. failed to its Appellant because the State dismissed prove it are to examine but we required last point appeal, argument verdict a motion directed treat an from denial of
first. We
appeal
evidence,
consider
and must
as a
the sufficiency
challenge
in order to
rights against
first
appellant’s
sufficiency challenges
protect
State,
262,
We have said that the uncorroborated
of a
testimony
child
victim is sufficient evidence to sustain a conviction.
rape
375, 378-79,
We now examine this evidence in of the light First, Townsendfactors. no that have these events proof actually occurred. With to the incident regard Kyle, involving Brandy Bruce concluded that between the chil two nothing happened dren. Cara Hinkle stated that AAW admitted that she falsely accused ANW because was mad at her. touching Second, none of these sexual acts resemble the prior closely that these two allegations minor ANW girls. raped her, claimed that had intercourse with but Kyle Bruce Brandy Third, found that claim was unsubstantiated. these alleged sexual acts other minor children are irrelevant to appellant’s Further, sexual intercourse with his children. having his claim that these acts to his defense meritless in that prior go fact light these events took after 1999 to that allegedly time place words, offenses occurred. In other these allegedly prior acts were not to his offenses toward these for rape girls. reasons, we hold that the circuit foregoing court properly excluded the the acts of ANW and AAW with other children.
For his third on appeal, argues point circuit court erred in evidence of (1) an admitting appellant having erection visitation of his children and evi- during supervised (2) dence that he abused his physically daughters. Specifically, appel- that, lant contends under Rule 402 Arkansas Rules Evidence, the was more testimony than prejudicial probative. State that the circuit court responds, arguing admitted evidence that was relevant to the case. Rule 403 of Rules of Arkansas Evidence provides evidence, relevant, if even be excluded if its value is may probative of unfair In substantially outweighed danger prejudice. our standard of for review we have discussing evidentiary rulings, said the trial courts have broad discretion and trial that a reversed will not be of evidence court’s ruling admissibility that discretion. Owensv. absent an abuse of S.W.3d 849 (2005). case, allowed the the circuit court present Wallis, a DHHS former employee, regarding appellant’s Jan his two cheerleading erection while watching girls performing testi- defense counsel’s Wallis objection,
and dance routine. Over White, fied, he an erection. at Mr. had “I turned and looked erection, told that he had an Ms. me Dooley caseworker] [another bench, Mr. White.” From the made me turn and look at circuit court ruled: to come Now what causes woman your
You’vemade record. a man’s Because she’s or because horny in and stare at crotch? to it. will allow it in not directs her attention I somebody she’s why truth of the matter asserted but reason explain in, crotch, let it and I will make that at a man’s so I’m staring going — admission that admonition. *8 The then admonished the court jury, stating:
Now, I to Wallis ladies and am allow Ms. to gentlemen, going as her for the of lady to what other told testify purpose truth did what she did and not for the of Ms.Wallis explaining why then this said but to she took lady explain you why what other are Now we clear on that? whatever action did. the circuit court’s on this issuebecause
We
with
agree
ruling
to Rule
at
falls under the
evidence
issue
pedophile exception
State,
647,
v.
Ark.
This
a
to Rule
court has recognized
“pedophile exception”
of
acts with the
or other
404(b),which allows evidence
similar
same
a
act
children
it is
a
for
helpful
showing proclivity
specific
when
has an
with a
or class of
with whom
defendant
person
persons
Ark.
S.W.3d
intimate
343
36
286
relationship. Berger
that such
rationale
(2001).
recognizing
exception
The
instinct
the accused.
evidence
of
prove
depraved
helps
404(b)
to Rule
is our
Id. The basis of the pedophile exception
children
the notion that evidence of sexual acts with
of
acceptance
shown,
proclivity
as that evidence demonstrates
may
particular
Hernandez,
Ark.
962 S.W.2d
For
or instinct.
756
we
that there be a
pedophile exception
apply,
require
sufficient
between the
to be
degree
similarity
intro
id;
duced and the
sexualconduct
defendant. See
Berger,
413,36
Ark.
S.W.3d286. Wealso
that therebe an“intimate
require
between the
victim the
relationship”
perpetrator
Ark. at 308,
Hamm,
Here, this evidence arousal while watch appellant’s his a dance routine ing demonstrates girls perform “particular toward his proclivity” particularly two young girls, daughters, the “intimate thereby establishing between the relationship” per Hamm, and the victims. fact petrator supra. appellant got erection, an noticed Wallis and another DHHS further an demonstrates unnatural sexual employee, attraction toward his there is a “sufficient daughters. degree between arousal at his similarity” appellant’s seeing daughters his Hamm, sexual conduct of intercourse them. having supra. Further, because, the evidence was relevant under Rule 403 as the ruled, it demonstrates visitation why girls reasons, thereafter. For these stopped shortly hold that the circuit court did not err Wallis’s by admitting testimony. Second, we will address admissibility abuse of ANW and AAW. testified physical ANW that her father her, her, did that scared hurt and did not make her feel things safe. She also testified that threw her sister wall and against her a She further gave stated that bloody her lip. appellant slapped and hit her. testified Additionally, AAW appellant slapped hand on her mouth. The circuit court admitted put this *9 evidence because it to was relevant the to girls’ submitting appel- lant and the sexual abuse secret. keeping
We with the court’s We have held that agree ruling. evidence of other bad acts be to admissible show the may victim’s fear of State, the accused. v. SeeSullivan 289 Ark. 711 S.W.2d Here, 469 the (1986). of abuse appellant’s physical demonstrates that he instilled fear his and intimidated daughters Therefore, them both and sexual abuse. by we hold that physical the evidence of his abuse was admitted the physical properly by circuit court. argues
For his fourth point appeal, of Donna Williams that the testimony circuit court erred in ruling Center, barred by at Ozark Guidance Shepherd, therapist contends under R. Evid. 503. Ark. Specifically, privilege have his and to the core of defense should that this evidence went that the circuit court argues admitted. the State been response, made communications of excluded testimony privileged asserts that Rule 503. The State to under Shepherd testified to because AAW suffered no AAW prejudice regard about communication. privileged Evidence, which details Rule 503 the Arkansas Rules rules, states: and connected physician-patient privilege and
A has a to refuse to disclose to prevent any patient privilege from his medical records or confidential disclosing other person made or treatment of diagnosis communications for purpose condition, mental or alcohol or including his emotional physical, addiction, himself, or among psychotherapist, drug physician in the or under who are treatment persons diagnosis participating or mem- physician including the direction of psychotherapist, bers of the patient’s family.
Ark. Evid. claimed 503(b). R. privilege may patient, conservator, or of a deceased or guardian personal representative and a has a other from any patient, patient privilege prevent person made for the confidential communications disclosing purpose or of his or emotional condition. Ark. R. treatment mental diagnosis State, Evid. Randleman 310 Ark. S.W.2d 449 503(c); However, Rule does 503(b) grant privilege “any information,” and doc- “communications” between the only patient tor, ones at that. Baker v. confidential S.W.2d 522 (1982).
Rule 503 further provides pertinent part: if not to be
(a)(4) A communication is “confidential” intended further the disclosed to third persons, except persons present consultation, examination, interview, interest of the or patient transmission of the communi- reasonably necessary persons cation, in the diagnosis who are persons participating treatment under the direction of or psychotherapist, physician including family. members the patient’s Id. *10 case, counsel defense made present following at trial:
proffer treated both She or saw [victims]
Defense Counsel: from of 2002 March of period through April up 2003. of time that she During counseled period them, their, uh, with both of when were allegations White, made Mr. she their treatment against changed based on those met with the She plan allegations. girls. talked She with them about the treatment about plan, abuse, them, sex read books to and the told both girls her I think whole she time had them that had they not been abused the father. by After an argument State during argued was barred under Rule 503 and Ark. Code Ann. 2003), 12-12-518 made (Repl. following ruling: on, nurse, All on the she will be right,
The Court: allowed to as to the condition that she found testify Williams, and what did she treat. As to Donna will she be not allowed to as to the communications testify between herself and-the little She will be allowed girls. treatment, as course of testify type situation, treatment she chose administer in this — and she can itBut cannot be based say not why. based on the little allegations because by girls they weren’t them. It will have to be making because of concern DHS or whoever had concerns of child sexual abuse. That’s it. The blocks it. privilege You’ve made record. If I am your are wrong, you covered. We with the court’s for the agree rulings following First, reasons. to AAW’s AAW regard admitted on testimony, cross-examination what told she after the State Shepherd played video of conversation there is no harm Shepherd. because the had excluding Shepherd’s testimony jury already Second, heard it AAW’s through testimony. appellant’s argument that ANW’s statements to were Shepherd as they privileged, were a forensic part On direct investigation, misplaced. examination, testified that the “DHS worker or foster Shepherd involved” in parents sessions that conducted. family
607 Third, during claims that these statements provided However, Rule the privilege. discovery, thereby eviscerating of that claim the Rules Evidence provides Arkansas “[a] was (1) disclosure which not defeated a compelled by privilege claim the made to without privi- or (2) opportunity erroneously the was claimed do not find where privilege lege.” Here] instances, the three all to the disclosure prosecutor. admitted. have barred not been properly should testimony reasons, its circuit did not err in these we hold that the court For ruling. that the circuit For fifth argues point appeal, witness, Dr. defense the testimony
court erred in excluding Krauft, violation. because of an alleged discovery Specifi- Virginia the Dr. Krauft’s togo contends that observations cally, appellant from that suffered sexual abuse others. heart of his defense his girls its granted The State argues of Dr. Krauft by asserting exclude the testimony motion to rules to the of discovery by failing did not with comply Krauft, Dr. aside from information concerning provide any vitae, the until before trial. curriculum shortly of Criminal Procedure 19.7(a), Arkansas Rule gov- violations, erns pertinent part: discovery provides it is proceedings If at time course (a) any during has to the court that a failed party to attention of brought an an rule or with order issued applicablediscovery comply thereto, order to may permit the court such pursuant party disclosed, not a materials grant discovery inspection previously continuance, from evidence the introducing prohibit party disclosed, it such other order as material not or enter deemsproper under the circumstances. It is the trial discretion to one of
Id. within court’s any employ Rule or one of its own where listed sanctions under 19.7(a) choosing there is a to disclose. Renton S.W.2d failure 171 (1981). case, an and a there was oral written the present proffer Krauft’s Defense counsel of Dr. testimony. provided
proffer before the trial. a curricum vitae Dr. Krauft several days State could not cross- said prepare prosecutor adequately rebuttal witness based informa- examination or arrange upon tion to her the defense. The State given requested circuit court exclude Dr. Krauft’s or order her of her counsel Defense Dr. prepare report findings. produced Krauft’s work rather than a formal The circuit product report. court the State’s motion to exclude Dr. Krauft’s testi- granted from the bench that it mony, ruling would allow defense “to thwart rules of Dr. reduce Krauft’s discovery” by failing ato findings writing. trial, At defense Dr. Krauft’s proffered report *12 #3, which were labeled Defendant’s
findings, Exhibit information, #4, contained redacted and Defendant’s Exhibit which contained the unredacted information. In these Dr. reports, Krauft issue takes with the interviews conducted McCutcheon by and Ozark Guidance. The circuit stated: court
IAs understood Dr. Krauft’s testimony, she out that the pointed folksin her are of the are profession children opinion extremely susceptible influenced the actions being by and words of adults. Now, does need an to tell anybody them I don’t expert that? think fact, so. that is common . knowledge. . . But has she related case, facts this in anything used techniques interview- the children? No. It is ing not related to this case whatsoever .... So I heard nothing here that causes me to believe today is the this type testimony that is needed side. by either Arkansas Rules of Evidence 702 and 703 the admis- govern sion of witnesses. Rule 702 testimony states: expert scientific,technical,
If or other will specialized knowledge assist the trier of fact to understand the evidence or to determine a fact in issue, skill, a witness as an qualified expert by knowledge, experi- ence, education, training, may testify thereto in the form of an or otherwise. opinion
Id.
Rule 703 states:
The facts or data in the case an particular upon which expert an opinion bases or inference be those may or made perceived by known to him at or before If of a hearing. relied type reasonably in field in upon experts particular opinions or forming inferences subject, or data need upon facts not admissible in evidence.
Id. field in a as an particular a witness expert Whether qualifies discretion, will not and we court’s within the trial is a matter of that discretion. absent an abuse such a decision reverse Jackson reasonable If some 197 S.W.3d has that the witness knowledge exists demonstrating basis the evidence is admis- that of ordinary knowledge, subject beyond test admissibility Id. general sible as testimony. expert the trier of fact it will assist is whether expert a fact in or determining the evidence understanding presented Ark. R. Evid. 702. issue.
Here, counsel should have prepared defense in advance them to the State well Dr. Krauft’s findings given could its cross-examination that the State of the trial so prepare Moreover, was correct the circuit court witness. rebuttal any more did not anything that Dr. Krauft’s provide findings noting #4, Dr. Exhibits In Defendant’s #3 than common knowledge. the children lead that she claimed that Krauft stated McCutcheon “had a and then As story.” with her questions noted, have conducted how she would Dr. Krauft failed to suggest court was the circuit interviews of these children. witness was necessary. that an correct determining expert review, that the circuit court our standard of we hold Based upon we affirm on this *13 err in its on this issue. did not ruling Accordingly, point.
Affirmed.
Imber, J., participating. DENIAL OF REHEARING OPINION ON SUPPLEMENTAL 14, 2006 DECEMBER for Rosenzweig, appellant. Jeff Beebe, Gen., Newman, Mike Gen., Brad Ass’t Att’y by: for Att’y appellee. Newton Appellant, Christopher Jim Gunter, Justice.
White, was convicted on two counts of
a classY
rape,
felony
and a violation of Ark. Code Ann.
5-14-103
his
(Supp. 2005),
two
We affirmed the
biological daughters.
convictions in White v.
15,2006,
242 S.W.3d240 (2006). On November
filed a
for
appellant
petition
that this
rehearing,
court failed to
alleging
address his
argument
statute as
rape-shield
to these
applied
facts is
particular
unconstitutional because it
him from
prevented
a defense.
presenting
also filed a
Appellant
motion for
stay
mandate in order to
for a writ of
petition
certiorari in the United
States
Court on
Supreme
November
2006. On November
2006, the State filed a
response
appellant’s petition
rehearing.
We deny
for the
appellant’s petition
following
First,
reasons.
fails to call to our
attention any “specific
errors of law or fact that the
opinion
contain.” Ark.
thought
Second,
Ct. R.
Sup.
2-3(g)
failed to
his
develop
constitutional
briefs,
in his
argument
he
appeal.
argued
the circuit court’s
to exclude
ruling
404(b)
violated his
constitutional
right
defense. For this
present
proposition,
cited in
United States
particular
Court cases
Supreme
*14
of Chambersv.
Alaska,
611
two,
which involved
admissibility
discussed more fully
point
he never
argument
but
developed
testimony,”
“prejudicial
we will
held that
his brief. We have
in that
repeatedly
portion
one,
if the
constitutional
even a
not consider an argument,
cites no
authority
makes no convincing argument
it,
research that the
without further
and it is not apparent
support
See,
v.
taken.
Talbert
is well
e.g.,
argument
262,
We further note brief, because, are “inter- in his they as suggests posite be excluded mean that irrelevant evidence may only preted White, held in after under shield.” We supra, applying rape Townsend, Ark. 233 S.W.3d enunciated in v. factors State case, the facts of this that the circuit court (2006), Thus, we abide excluded the evidence as irrelevant. 404(b) in our holding opinion. reasons,
For the foregoing deny appellant’s petition and we his motion for of the mandate to allow stay rehearing, grant of certiorari with the United States him to file a for writ petition Court. Supreme JJ., participating. Dickey,
Imber of Arkansas William SMITH STATE Greg CR 06-512 242 S.W.3d253 Court of Arkansas
Supreme 2, 2006 delivered November Opinion denied December 14, 2006.] [Rehearing notes filed a rape-shield AAW, to introduce evidence seeking only pertaining Janu- Fíowever, 2005. motion ary rape-shield ANW pertaining addendum, is found and we will both analyze rape-shield motions. statute under which the rape-shield circuit court has to admit evidence of authority sexual conduct is found at prior Ark. Code Ann. which 16-42-101(b), provides pertinent part: § (b) In criminal under any 5-14-101 et prosecution or seq. 5-26-202, commit, or for criminal criminal attempt solicitation § to commit, or criminal to commit an offensedefined conspiracy sections, evidence, evidence, of those any opinion or reputation evidence of specificinstances of the victim’sprior sexual conduct defendantor other any evidence of a victim’s person, allegations sexual conduct with the defendant any other true, the victim assertsto person, allegations or evidence offered by defendant concerning prior of sexual allegations conduct by victim with the defendant or other if the any person victim denies making is not allegations admissible