Robert Byndom v. State of Arkansas

ar05-499

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

ROBERT BYNDOM

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR05-499

FEBRUARY 1, 2006

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. CR04-384]

HON. MARION A. HUMPHREY,

JUDGE

AFFIRMED

Sam Bird, Judge

On October 12, 2004, a jury in the Pulaski County Circuit Court convicted Robert Lamont Byndom of two counts of rape. He was sentenced to two concurrent terms of 240 months in the Arkansas Department of Correction. He now appeals, raising three points for reversal: (1) that there is no substantial evidence to support the jury's verdict; (2) that the trial court should have granted his request for mistrial; and (3) that the State withheld "admittedly potentially" exculpatory evidence. We affirm the convictions.

1. Whether substantial evidence supports the convictions for rape

Under Ark. Code Ann. § 5-14-103(1)(A) (Supp. 2001), a person commits rape if he or she engages in sexual intercourse or deviate sexual activity with another person by forcible compulsion. "Sexual intercourse" is the penetration, however slight, of the labia majora by a penis. Ark. Code Ann. § 5-14-103(9). "Deviate sexual activity" is any act of sexual gratification involving: the penetration, however slight, of the anus or mouth of one person by the penis of another person; or the penetration, however slight, of the labia majora or anus of one person by any body member or foreign instrument manipulated by another person. Ark. Code Ann. § 5-14-101(1).

Forcible compulsion is physical force or a threat, express or implied, of death or physical injury to or kidnapping of any person. Ark. Code Ann. § 5-14-101(2). Physical force means any bodily impact, restraint or confinement, or the threat thereof. Freeman v. State, 331 Ark. 130, 132, 959 S.W.2d 400, 401 (1998). The test used to determine whether there was physical force is whether the act was against the will of the party upon whom the act was committed. Id.

The alleged rapes occurred while Byndom was the live-in boyfriend of Deborah Thomas; her daughter L.P. was the victim. Witnesses at trial included the victim, Thomas, Detective Jennifer Hurd of the Little Rock Police Department, personnel of the Arkansas State Crime Laboratory, and Dr. Misty Nolen, who examined L.P. at Arkansas Children's Hospital. Items from the home were also introduced into evidence: semen was identified on the victim's underwear and two cushion covers from the couch, and Byndom's DNA was found to be consistent with DNA taken from one cover. Other items collected at the home included a bottle of olive oil found behind the living room couch, a hand towel, and a pair of boxer shorts.

The evidence viewed in the light most favorable to the verdict is as follows. L.P., who was nineteen years old at the time of trial, testified that she was nine or ten years old when Byndom came into her life and that he lived with her family for eight years, until May 15, 2003. She said that she thought of him as a father, a role that he fulfilled in the family home. She testified that when she was ten to twelve years old, Byndom began touching her breasts, her behind, and in between her legs. Byndom told her that he had more power than she did and, if she told her mother, he would do something to both of them. L.P. believed him; she was scared and did not tell her mother. Byndom used abusive words and became violent toward her mother, choking her, pushing her, and running her head into walls. He was also violent and abusive toward the rest of the household. He pulled L.P.'s hair out when it had braids, slapped her about twenty-five times, choked her, and rammed her head into a refrigerator.

L.P. testified that the following events began when she was almost thirteen and the family moved to a different home. L.P. shared a bedroom with her sister, and Byndom began sleeping alone on the living room couch. He had sexual contact with L.P. numerous times, such as rubbing his penis "in between" her vagina and "between [her] behind," and feeling and sucking her chest. He put his penis inside of her, and it hurt. He wanted her to go to him on a regular schedule-Wednesdays and Fridays around 2:00 a.m. and no later than 4:00 a.m.-to "do the sex act for him." This also happened on Mondays and "really ... when he wanted it to happen." He put his finger in her during the majority of the sexual encounters. She never wanted "any of this," never wanted to go into the room with him, and asked him to stop.

Byndom left notes for her on the nights before he wanted her to come into the living room. She was not allowed to wear anything he had bought. He would wake her by throwing water on her, throwing pillows or wet towels at her, or turning the heat up to ninety degrees. Her mother, who had a medical problem and suffered seizures, did not get up because heat was a cause of the seizures. L.P. was punished physically by Byndom and sometimes things were taken away.

If she did not "participate" by rubbing him or doing whatever he wanted, he would stop, get up, turn on all the lights, get a long extension cord, and then whip her if she did not cooperate. She was beaten with the double-wrapped cord if she did not please him in a sexual way or go into the room at all. She was beaten so many times that she did not know how often it was. Once, he told her that he would have to give her thirty licks with her clothes off because she told him she did not have to do the sexual encounters; another time, he cut her leg when he hit her. The whippings did not start before they had the sexual encounters, which she estimated had happened approximately three hundred and twelve times. Photographs of bruises on her legs were introduced into evidence.

When L.P. told Byndom she did not want to do it anymore, he told her it was payment for all that he had done for her. He would not allow her to go to parties or spend nights away, telling her that she had to be with him. He set all rules in the household, saying that he was the one taking control. She was allowed to go to school but had to come straight home.

L.P. was very afraid: Byndom always told her what he could do to her mother and how he could kill her. In November 2002 L.P. got between Byndom and her mother when an argument was about to become physical. Byndom ordered L.P. to tell her mother what he and L.P. had been doing, and she replied that she wanted her mother to know anyway because she wanted it to stop. Byndom then told her mother that he and L.P. had been having sex. Her mother had each of them promise not to do it again, but she did nothing else and Byndom told L.P. that it was okay as long as her mother did not know or come in.

The "rule" was that L.P. had to wear something when she walked into the living room in case someone saw her, but then she had to take off everything except her bra. Byndom always put olive oil behind the couch. He would come into the living room, where she was sitting on the couch without her clothes, and he would take off his pajamas and take one leg out of his boxers. He always pulled out when ready to ejaculate, and he would ejaculate on an already-used face towel or rolled-up tissue. They would be on the cushions of the couch, with the pillows on the floor. This went on for years, including the period from the time her mother found out about it in November 2002 until May 14, 2003. It made no difference if she wanted him to stop, and at some point she gave up trying.

L.P. testified that in the early hours of May 15, 2003, Byndom turned the heater to ninety degrees to wake her because it was time for her to do a sexual favor for him. That night, he wanted her "to participate" by touching and tongue-kissing him. She kept telling him that she did not want to kiss him, and he got mad, telling her that she "was fixing to get a whipping." He kissed her and put olive oil in his hand, rubbing it "between her vagina" and on his penis. Next, he put the tip of his penis "between her vagina," and pushed a little bit until he was partially inside. She screamed, "Ouch," and jumped back, but he threw a couch pillow over her head and told her to cover her face so she would not wake her mother. He also put his fingers inside of her that night.

L.P. testified that she was in bed the next morning when her mother asked her to go to Wrightsville to take groceries to Byndom's grandmother. After first objecting, Byndom allowed them to go. Kathy and Cassandra Byndom, Byndom's aunt and cousin, also made the trip, with Kathy driving because Thomas did not drive. The women talked after dropping off the groceries, and Kathy asked L.P. if Byndom had been touching her in a sexual manner. L.P. replied that he had, and Kathy said that they needed to go to the police. Cassandra went home and another cousin, Talisha, drove them to the police station. Detective Hurd interviewed L.P., and Thomas was in the room when L.P. gave her statement. L.P. was then taken to Arkansas Children's Hospital and examined.

Deborah Thomas also testified. She corroborated her daughter's testimony that in November 2002 Byndom told Thomas of the sexual encounters. She corroborated the testimony that she and L.P. were physically abused by Byndom, adding that he had threatened to shoot Thomas with his gun and to hit her with a bat. She said that the threats started right after she found out about the sexual abuse of her daughter. She said that after 2:30 a.m on the night of May 15, 2003, she heard Byndom coming down the hall. He went straight to the air control, and she felt the heat come up and heard L.P.'s door open. Thomas knew that L.P. was in the living room with Byndom, but Thomas was afraid to go in and see what was going on. Early the next morning she telephoned Kathy Byndom, saying that she was ready to press charges. After the examination at Children's Hospital and after both L.P. and Thomas gave statements to police, they accompanied police to their home, where evidence was collected.

Dr. Misty Nolen testified that she had examined L.P. in May 2003 at Children's Hospital. The exam revealed "loop sized bruises on her left leg and right arm" consistent with classic "extension cord or cord type of injury" and revealed less hymenal tissue than could be expected in a seventeen-year-old who was not sexually active. Dr. Nolen concluded that the exam was consistent with L.P.'s complaints of physical and sexual abuse.

Detective Hurd testified that she accompanied L.P. and Thomas to their home after they were interviewed at the police station. Entry was gained by breaking a window because Thomas had no key, the house appeared as if it had been secured, and the front door had a screwdriver jammed in it. Physical evidence was collected at the house: the boxer shorts, towel, couch cushions and cushion covers, and olive oil bottle. Personnel from the state crime lab testified as to the testing procedure on these items and as to the results, set forth earlier in this opinion.

Repeating to this court the arguments made in his motions for a directed verdict, Byndom asserts on appeal that the evidence at trial could as easily have led to a conclusion of consensual sex as to rape by forcible compulsion. He argues that L.P.'s testimony was so inherently contradictory and so wildly confused as to be unworthy of belief, with discrepancies well beyond the usual minor inconsistencies left for jurors to resolve. He also argues that the physical evidence does nothing to support the charge. He asserts that the victim was above the legal age of consent in Arkansas and that no relationship of trust and authority was proven.

The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Martin v. State, 354 Ark. 289, 119 S.W.3d 504 (2003). Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id. On appeal, the evidence is viewed in the light most favorable to the State, considering only that evidence that supports the verdict. Id. The testimony of the victim alone may constitute substantial evidence to support a rape conviction. Id.

The testimony of L.P. repeatedly presented a scenario of sexual encounters that occurred because of Byndom's insistence, threats, and use of physical abuse, despite L.P.'s protests and desire that the activity stop. We do not agree that resolution of inconsistencies in the testimony was beyond the jury's ability, and we would affirm the convictions on L.P.'s testimony alone. Furthermore, corroboration of her testimony exists in the physical evidence, Dr. Nolen's testimony, and Thomas's testimony about physical abuse, Byndom's telling her of the sexual encounters in November 2002, and her knowledge of events when L.P. was awakened on the night of May 15, 2003, by Byndom. We hold that substantial evidence supports the convictions for forcible rape.

2. Whether the trial court abused its discretion in denying Byndom's motion for mistrial

Deborah Thomas stated during cross-examination that she left Byndom on July 12, 2004. She further explained:

I stopped loving him July 12, 2004. I left because he was locked up. I made my mistake going back and seeing him. Trying to make it look like it was me and my daughter's fault. We had all made a mistake. I talked to him on the phone. He was mad at me because I wasn't ... making it up to the jail cell on time.

Byndom moved for a mistrial on the basis that he had been prejudiced by the jury's knowing that he was incarcerated. The trial court denied the motion. On appeal Byndom contends that the trial court abused its discretion in denying his motion.

The trial court is granted a wide latitude of discretion in granting or denying a motion for mistrial, and the decision of the trial court will not be reversed except for an abuse of that discretion or manifest prejudice to the complaining party. See Hamilton v. State, 348 Ark. 532, 74 S.W.3d 615 (2002); Bennett v. State, 284 Ark. 87, 679 S.W.2d 202 (1984). A cautionary instruction or admonishment to the jury can make harmless any prejudice that might occur from an inadvertent reference to a prior conviction. Hamilton, supra. An important factor in the analysis by the trial and appellate courts is whether the prosecutor deliberately induced a prejudicial response. Id. Although some prejudice is typically present where mention of an appellant's prior incarceration is made, an admonition to the jury usually cures the prejudicial statement unless it is so patently inflammatory that justice could not be served by continuing the trial. Id. at 542, 74 S.W.3d at 621.

Here, Thomas's testimony did not concern Byndom's arrest on any prior conviction or incarceration, and it was Byndom himself who elicited the testimony. Byndom made no request for a cautionary instruction or other admonition, and we agree with the State that the testimony was not so patently inflammable that a mistrial was required. Thus, we find no error in the trial court's denial of the motion for a mistrial.

3. Whether the State violated the Fourteenth Amendment and Ark. R. Crim. P. 17.1 by withholding exculpatory evidence

Byndom asserts that the State violated his due-process rights under the Fourteenth Amendment and Ark. R. Crim. P. 17.1 by submitting to the state crime lab only those pieces of evidence thought to be inculpatory, thus violating the prosecutor's duty to disclose all evidence known to be exculpatory and to preserve evidence that might play a role in the accused's defense. As he did in his motion for directed verdict, Byndom points to testimony by State's witnesses that some items seized from the home were potentially exculpatory but that no further testing was ordered. He refers to the hand towel and pair of boxer shorts allegedly used at the time of the last reported rape, arguing that the balance could have been tipped toward his side by evidence of "the lack of bodily fluids that the complaining witness stoutly affirmed that the authorities would find."

Rule 17.1(c) of Ark. R. Crim. P. requires the prosecuting attorney, upon timely request, to disclose and permit inspection and testing of any relevant material regarding specific searches and seizures. Rule 17.1(d) states that the prosecutor shall, promptly upon discovering the matter, disclose to defense counsel any material or information within his knowledge, possession, or control, which tends to negate the guilt of the defendant as to the offense charged.

The appellant in Lee v. State, 327 Ark. 692, 942 S.W.2d 231 (1997), a capital murder case, asserted that he was deprived of constitutional due process rights by the State's failure to preserve enough of a blood sample so that he could conduct his own testing. The supreme court disagreed, explaining:

We addressed a similar claim in Wenzel v. State, 306 Ark. 527, 815 S.W.2d 938 (1991). In Wenzel, a rape case, the defendant argued that his due process rights were violated when FBI technicians consumed all of the semen samples found on the victims' vaginal swabs. We emphasized that the State's duty to preserve evidence is limited to that which "might be expected to play a significant role in the suspect's defense," and that the "evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." Wenzel, 306 Ark. at 532-3, 815 S.W.2d 938, quoting California v. Trombetta, 467 U.S. 479, 488-9, 104 S. Ct. 2528, 2533-34, 81 L. Ed. 2d 413 (1984).

Id. at 700, 942 S.W.2d at 235.

The State cannot be held responsible for a defendant's failure to investigate the evidence, nor is a defendant entitled to rely on discovery alone as a substitute for thorough investigation. Stephens v. State, 342 Ark. 151, 28 S.W.3d 260 (2000). In State v. Pulaski County Circuit Court, 316 Ark. 514, 872 S.W.2d 414 (1994), the supreme court reversed the trial court's order that the State have DNA testing performed on blood, saliva, and semen samples that were under the control of the state crime laboratory and possibly exculpatory for the defendants. The supreme court wrote:

[T]he United States Supreme Court has determined that the defendant's right to a fair trial as embraced within the Due Process Clause is not violated "when the police fail to use a particular investigatory tool." Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988). This court has specifically said that the State is not obligated to perform certain scientific tests, noting that a defendant cannot rely upon the State's discovery as a substitute for his or her own investigation. Dumond v. State, 290 Ark. 595, 721 S.W.2d 663 (1986). While a prosecuting attorney clearly has a duty to disclose all pertinent tests on tangible items pursuant to Ark. R. Crim. P. 17.1, the prosecutor is not required to make certain scientific tests on all materials seized. Thomerson v. State, 274 Ark. 17, 621 S.W.2d 690 (1981).

Id. at 516, 872 S.W.2d at 416. Likewise, in the present case Byndom had no right to have the State prepare his case for him, and his failure to seek testing is not the fault of the State.

Affirmed.

Hart and Neal, JJ., agree.