James Munson v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 04-423

NOT DESIGNATED FOR PUBLICATION

JAMES MUNSON

Appellant

v.

STATE OF ARKANSAS

Appellee

Opinion Delivered June 9, 2005

APPEAL FROM THE CIRCUIT COURT OF FAULKNER COUNTY, CR 1995-609, HON. DAVID LEE REYNOLDS, JUDGE

AFFIRMED

PER CURIAM

In 1996, James Munson was convicted by a jury of first degree violation of a minor and sentenced to fifteen years' imprisonment in the Arkansas Department of Correction. This court affirmed. Munson v. State, 331 Ark. 41, 959 S.W.2d 391 (1998). Munson then filed in the trial court a petition pursuant to Criminal Procedure Rule 37.1 challenging the judgment. The petition was denied, and this court affirmed the order. Munson v. State, CR 99-824 (Ark. May 3, 2001) (per curiam). Subsequently, Munson filed in the trial court a pro se petition pursuant to Act 1780 of the 2001 Acts of Arkansas. On March 1, 2004, the trial court denied the petition without a hearing and Munson now brings this appeal of that order. We affirm.

Act 1780 provides that a writ of habeas corpus can issue based upon new scientific evidence proving a person actually innocent of the offense or offenses for which he or she was convicted. See Ark. Code Ann. §§ 16-112-103(a)(1), and 16-112-201--207 (Supp. 2003); see also Echols v. State, 350 Ark. 42, 44, 84 S.W.3d 424, 426 (2002) (per curiam). A circuit court need not hold a hearing if the petition and the files and records show that a petitioner is not entitled to relief. Ark. Code Ann. § 16-112-205(a) (Supp. 2003).

A number of predicate requirements must be met under Act 1780 before a circuit court can order that testing be done. See Ark. Code Ann. §§ 16-112-201 to -203 (Supp. 2003). A petitioner seeking testing under Act 1780 must first present a prima facie case that identity was an issue at trial. Ark. Code Ann. § 16-112-202(b)(1) (Supp. 2003). Graham v. State, ___ Ark. ___, ___ S.W.3d ___ (June 24, 2004) (per curiam). In its order denying the writ, the trial court found that appellant had failed to allege that identity was an issue. We agree that appellant has failed to make a prima facie case under the statute.

The facts revealed at trial are dispositive of whether identity was an issue. Id. We review the record to make our determination on this point. Orndorff v. State, 355 Ark. 261, 132 S.W.3d 722 (2003) (per curiam).

Appellant's petition alleges only that the test results could be used to challenge the credibility of the victim by showing potential inconsistencies in her statements. He does not point to any possible results that would, as he asserts, provide evidence that could potentially exonerate him. Appellant apparently believes identity was an issue merely because his conviction was based upon witness testimony. This court has found that a victim's testimony alone is sufficient to support a conviction such as this. See Martin v. State, 354 Ark. 289, 119 S.W.3d 504 (2003); Mills v. State, 351 Ark. 523, 95 S.W.3d 796 (2003). An issue of credibility is not necessarily an issue of identity. Here, the appellant admitted at trial that something had happened between him and the victim at the time of the incident; he only contested what had actually occurred. Identity was not an issue at trial, taking into consideration the facts presented. Appellant may not now argue it was, simply by contesting the credibility of the victim.

Further, Ark. Code Ann. § 16-112-202(a)(1) (Supp. 2003) requires that the evidence was not subject to testing because either the technology was not available at the time of trial or the testing was not available as evidence at the time of trial. The evidence that appellant now seeks to test could have been tested and admitted at the time of trial. Deoxyribonucleic acid testing was available prior to the time of appellant's trial, was no longer novel, and may have been admitted as evidence. See Moore v. State, 323 Ark. 529, 915 S.W.2d 284 (1996). At trial, the defense specifically inquired as to whether the testing appellant now requests had been performed. Appellant's request for DNA testing under Act 1780 fails since the technology was available and admissible. See Johnson v. State, 356 Ark. 534, 157 S.W.3d 151 (2004). The record clearly shows appellant was not entitled to relief under Act 1780, and accordingly, we hold that the trial court did not err in denying the petition without a hearing.

Affirmed.