Nickolaus Hampton v. State of Arkansas

ar04-362

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

CACR04-362

February 23, 2005

NICKOLAUS HAMPTON AN APPEAL FROM PULASKI

APPELLANT COUNTY CIRCUIT COURT

[CR03-634]

V. HON. CHRIS PIAZZA, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Wendell L. Griffen, Judge

Nickolaus Hampton appeals from his conviction for rape by forcible compulsion and argues that the trial court erroneously admitted evidence about a co-defendant's actions after Hampton left the area where the alleged rape occurred. He also argues that the trial court erroneously denied his motion for a continuance made for the purposes of locating another witness. We hold that the evidence concerning what transpired between the victim and Hampton's co-defendant was admissible because it was res gestae proof of the crimes for which Hampton and the co-defendant were charged. We also hold that the trial court did not abuse its discretion when it denied Hampton's continuance motion. Therefore, we affirm.1

Hampton and co-defendant Montee Lambert were charged with raping and kidnapping the victim, H.N., who was eighteen at the time of the crime. Lambert was also charged with attempted murder in the first degree.2 Hampton made a pretrial motion in limine, arguing:

Next, Your Honor, is the Motion in Limine to exclude all evidence from the point in this case where [H.N] ran from the car. As the Court is aware, there's three, there are co-defendants in this. Mr. Hampton is charged with the rape, kidnapping; Mr. Lambert is charged with rape, kidnapping, and attempted murder. Just a general overview of the case, the State is alleging that both of the Defendants picked up [H.N.], drove to this gas station, forced in the car, drove into the gas station and stole the beer, drove from the gas station back to these apartments, sat in the back of the apartments for a short time, and then the rape occurred, allegedly occurred, and sometime during this period, Mr. Hampton got out of the vehicle and went to the apartment of a friend of his, Chad Rogers. At that time, there's, there's a diversion of statements, but one statement from Mr. Hampton is that he stayed in that apartment; the other statement, I think, is going to be that he went back to the car, but either case, at that point, [H.N.] leaves the vehicle, and leaves the vehicle and runs to her apartment. Mr. Lambert is accused of following her to the apartment and that's where the alleged attempted murder occurs. Mr. Hampton hasn't been charged with any of that, he's only been charged with what occurred behind, what occurred on 65th and Butler and what occurred behind the apartments. We'd ask that none of that other evidence from the time she left the vehicle on be allowed to be introduced against Mr. Hampton.

The court denied the motion in limine, stating that Lambert's actions may be evidence to show that the sex was less than consensual.

H.N. testified at trial that on December 24, 2002, at approximately 2:00 a.m., she left her apartment to find a pay phone. Before reaching the pay phone, Lambert and Hampton forced her into the backseat of Lambert's car. Lambert was driving very fast, while Hampton was in the passenger seat. They drove to a gas station, where Lambert nearly hit a pole in the front of the store. Lambert and Hampton entered the store while H.N. stayed in the car. There is conflicting testimony about whether H.N. was free to leave, but H.N. testified that she did not run because she was frightened and did not know what to do. Lambert and Hampton stayed in the store for ten to fifteen minutes. The two ran out of the store with some beer and got into the car. Lambert drove in reverse as he left the gas station, allegedly because someone was attempting to get his license plate number.

H.N. testified that after leaving the gas station, Lambert drove back to southwest Little Rock, and that during the drive, Hampton and Lambert forced her to drink beer. They eventually stopped at the rear of the apartment complex where H.N. lived. Lambert threatened to beat up her boyfriend and then punched her in the face. After punching her a second time, Lambert climbed to the back seat with H.N. and told her to take off her clothes. Hampton was still in the front seat. Lambert hit H.N. several times, began pulling on her hair, and forced H.N. to perform oral sex on him while Hampton watched. After Lambert asked him if he wanted to join in, Hampton climbed into the back seat and forced anal and oral sex. At one point, Lambert hit H.N. in the back of her ear with a wrench and Lambert forced vaginal sex. Hampton then left the car and went to an apartment later identified as the apartment of Hampton's friend, Chad Rogers. Lambert told H.N. to get out of the car and go to Roger's apartment. While Lambert was pulling up his pants, H.N. ran and tried to get help. When she ran past the laundry room, she started screaming.

At this point in H.N.'s testimony, Hampton renewed his previous motion in limine to exclude evidence of events after he had left the car. The trial court denied the renewed motion, and H.N. continued with her testimony. She testified that Lambert chased and eventually caught her before he tripped and fell. H.N. tried to jump over him and run back to her apartment, but Lambert grabbed her leg and pulled her down. She grabbed the rail in order to try to prevent him from dragging her to the back of the apartments. Lambert punched her in the face and forced her to release her grip on the rail. He then grabbed her by the throat and forced her face into a brick wall. At one point, he let her go. She ran, and he choked and punched her again. Two people, Frank and Felecia Furlough, were standing on the stairs, begging Lambert to leave the victim alone. Lambert started kicking H.N. and claimed that she stole money from him before he eventually ran away, and the Furloughs called for help.

Hampton, testifying in his own defense, denied the rape and kidnapping charges. According to his testimony, Lambert picked him up at approximately noon on December 23. The two had been drinking for part of the day. They went to a friend's apartment at 9:00 p.m. They drove to get gas at 1:00 a.m. before returning to the apartment complex, where they parked on the right side of H.N.'s building. Hampton testified that Lambert went to the back of the building, returned with H.N., and told him that H.N. was going with them. Hampton stated that Lambert did not force her into the car. They left the apartments and went to the gas station. Lambert and Hampton got out of the car, and they talked to the store clerk and another woman before entering the store. After Hampton got a pack of cigarettes and Lambert got some beer, Lambert and Hampton left the store.3 Hampton denied that they stole the beer. Rather, he explained that they ran out of the store because Lambert was having car trouble, and they did not want to push-start the car.

They drove back to the apartment complex and pulled behind an apartment building. Hampton testified that the three talked and drank beer. He denied forcing H.N. to drink. Lambert climbed into the back seat, sat next to the victim, and asked her to undress. The two then began to have sex. Lambert asked Hampton if he wanted to join, and H.N. started performing oral sex on Hampton. Hampton testified that he did not force her to do anything she did not want to do. Hampton felt uncomfortable in the car, so he left to ask a friend if the three could go into his apartment. When he got back to the car, Lambert and H.N. were gone.

Hampton recalled an interview with Detective Laura Pritchett. He told her that Lambert had hit H.N., but he clarified that it was not a punch or hit to the face. He stated that it was a "sexual blow, hitting her on the bottom." He said that Lambert never struck the victim in a violent way.

The jury returned a guilty verdict on the rape charge; however, the trial court declared a mistrial on the kidnapping charge after the jury stated that they were hopelessly deadlocked and could not come to a final decision. After hearing further testimony, the jury sentenced Hampton to twenty-five years in the Arkansas Department of Correction. The kidnapping charge was later nolle prossed. This appeal followed.

Hampton first argues that the trial court erred in admitting evidence of Lambert's actions against H.N., including photographs of her injuries, after Hampton left the scene. He argues that the evidence is irrelevant or, alternatively, that the evidence is unduly prejudicial.

We do not reverse a trial court's decision on an evidentiary matter absent an abuse of discretion or a showing of prejudice. Barrett v. State, 354 Ark. 187, 119 S.W.3d 485 (2003); Gaines v. State, 340 Ark. 99, 8 S.W.3d 547 (2000). Relevant evidence is defined as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of any action more probable or less probable than it would be without the evidence." Ark. R. Evid. 401 (2004); Barrett v. State, supra. Any evidence that is not relevant is inadmissible. Ark. R. Evid. 402 (2004); Barrett v. State, supra. Moreover, Rule 403 of the Arkansas Rules of Evidence (2004) allows for the exclusion of relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice. The mere fact that the evidence is prejudicial is insufficient to exclude evidence; the prejudice must be unfair, and it must substantially outweigh the probative value of the evidence. Marvel v. Parker, 317 Ark. 232, 878 S.W.2d 364 (1994).

Both Hampton and the State agree that evidence of other crimes by the accused, not charged in the criminal information and not part of the same transaction, is generally inadmissible. See Gaines v. State, supra. However, evidence of other crimes may be admissible as res gestae evidence. Our supreme court has explained:

Under the res gestae exception, the State is entitled to introduce evidence showing all circumstances, which explain the charged act, showing a motive for acting, or illustrate the accused's state of mind if other criminal offenses are brought to light. Specifically, all of the circumstances connected with a particular crime may be shown to put the jury in possession of the entire transaction.

Id. at 110, 8 S.W.3d at 554 (citing Haynes v. State, 309 Ark. 583, 832 S.W.2d 479 (1992)). Res gestae evidence is presumptively admissible. Id.

Lambert's actions fall under this exception. Hampton testified that H.N. voluntarily had sex with Lambert and him and that she was free to go at any time. Evidence that Lambert attempted to prevent H.N. from escaping or from getting help was relevant to show that she was not with the defendants voluntarily. That evidence was very important in light of Hampton's assertion that the sex was consensual and given the charge of kidnapping.

Hampton cites three cases to support his argument, but none are on point. First, he cites McCoy v. State, 270 Ark. 145, 603 S.W.2d 418 (1980), where the appellant was convicted of possession of marijuana and PCP. The court allowed evidence that the appellant swallowed several foil packets of heroin while in custody. The supreme court reversed the conviction, stating that the testimony was prejudicial and of little probative value because there was no trace of heroin found in the appellant's system after doctors pumped his stomach. The evidence was inadmissible, not because it was evidence of an uncharged crime, but because there was no evidence that the appellant possessed heroin at all. In this case, Lambert's actions are, in themselves, evidence of the charged crimes.

Next, Hampton cites Berry v. State, 290 Ark. 223, 718 S.W.2d 447 (1986), where the appellant was convicted of being an accomplice to capital murder. In that case, the supreme court found that the trial court erred in admitting six gory color photographs of the victim's face. The supreme court found that the probative value of those photographs was limited to the cause and nature of the death, which could have been easily accomplished by pictures showing the crime scene and injury to the victim. Admissibility turned on the graphic nature of the photographs. Had they been less shocking, the conviction would have likely been affirmed. The photographs in this case simply showed the severity of her injuries, which once again was probative on whether H.N. was voluntarily with the defendants and consented to perform sexual acts with them.

Finally, Hampton cites Moser v. State, 226 Ark. 200, 583 S.W.2d 15 (1979), where the appellant was convicted of possession of marijuana. The trial court erroneously admitted evidence that the appellant sold marijuana eighteen months prior to the date he was charged with possession. In that case, the appellant's prior bad act did not show the appellant's intent. In this case, Lambert's actions were properly offered to show intent insofar as Lambert and Hampton were charged based on the same course of conduct. Accordingly, we hold that the trial court properly admitted evidence of Lambert's actions because it was res gestae evidence that tended to disprove Hampton's consent defense.

Next, Hampton argues that the trial court erroneously denied his motion for continuance. He contends that had the motion been granted he could have found an independent witness, Katherine Bond, who could have testified that H.N. made no attempt to leave when they were at the gas station. Hampton also asserts that Bond's testimony would have supported his argument that the sex was consensual. At the pretrial conference, Hampton told the court that he hired a private investigator to locate Bond and that her family members felt that they could locate her with more time. The trial court, in denying the motion, noted that the State had stipulated to the admissibility of the videotape and that no one knew what Bond would say because no one had ever talked to her.

The decision to grant or deny a motion for continuance is within the sound discretion of the trial court and should not be reversed absent an abuse of that discretion. Dodson v. State, ___ Ark. ___, ___ S.W.3d ___ (Sept. 16, 2004). Rule 27.3 of the Arkansas Rules of Criminal Procedure (2004) states: "The court shall grant a continuance only upon a showing of good cause and only for so long as necessary, taking into account not only the request or consent of the prosecuting attorney or defense counsel." In addition, Ark. Code Ann. § 16-63-402(a) (1987) provides:

A motion to postpone a trial on account of the absence of evidence shall, if required by the opposite party, be made only upon affidavit showing the materiality of the evidence expected to be obtained and that due diligence has been used to obtain it. If the motion is for an absent witness, the affidavit must show what facts the affiant believes the witness will prove and not merely show the effect of the facts in evidence, that the affiant himself believes them to be true and that the witness is not absent by the consent, connivance, or procurement of the party asking the postponement.

This statute has been consistently applied as requiring an affidavit in order to justify a continuance due to a missing witness. See Clark v. State, ___ Ark. ___, ___ S.W.3d ___ (Sept. 23, 2004); Cloird v. State, 314 Ark. 296, 862 S.W.2d 211 (1993). The denial of a motion for a continuance when the movant fails to substantially comply with § 16-63-402(a) is not an abuse of discretion, and the burden is on the appellant to show that prejudice and abuse of discretion in denying the continuance. Clark v. State, supra. When deciding whether or not to grant a continuance, the trial court should consider (1) the diligence of the movant; (2) the probable effect of the testimony at trial; (3) the likelihood of procuring the attendance of the witness in the event of a postponement; and (4) the filing of an affidavit, stating not only what facts the witness would prove, but also that the appellant believes them to be true. Id.

Hampton informed the trial court of the steps he took in attempting to find Bond. However, there is no affidavit in the record showing the steps that he took to locate the witness, and nothing showing that he knew the specific nature of Bond's testimony. Further, Hampton fails to show how he was prejudiced by Bond's absence with regard to the rape charge. The videotape was viewed by the jury. And even if the jury believed that H.N. was in the car of her own volition, her presence in the car did not detract from her allegations of rape. Her testimony alone is sufficient to support the rape conviction. See Wilson v. State, 320 Ark. 707, 898 S.W.2d 469 (1995). As for the kidnapping charge, Hampton cannot show prejudice. He was never convicted of that crime. Accordingly, the trial court did not abuse its discretion in denying Hampton's motion for continuance.

Affirmed.

Robbins and Roaf, JJ., agree.

1 In both of his arguments, Hampton claims that he was denied a fair trial, as guaranteed by the Fourteenth Amendment of the United States Constitution and Article 2, section 8 of the Arkansas Constitution. Both times, he merely makes the assertion and cites case law without making a factual or legal argument. It is well-settled that we do not address such blanket assertions. Kelly v. State, 350 Ark. 238, 85 S.W.3d 893 (2002).

2 Hampton and Lambert were also charged with theft of property, but that charge was nolle prossed. Lambert was tried separately two days later and was acquitted of all charges.

3 There was a videotape from the gas station played for the jury. The videotape is not part of the record because Hampton neglected to enter the tape into evidence.