James Al White v. State of Arkansas
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SUPREME COURT OF ARKANSAS
No.
CR06-1187
Opinion Delivered June
JAMES AL WHITE,
21, 2007
APPELLANT,
APPEAL FROM THE PULASKI COUNTY
CIRCUIT COURT, FORTH DIVISION,
NO. CR04-4080,
HON. JOHN W. LANGSTON, JUDGE,
VS.
STATE OF ARKANSAS,
APPELLEE,
AFFIRMED.
JIM HANNAH, Chief Justice
James Al White was convicted of rape, fourth-degree sexual assault, and exposing
another person to Human Immuno-Deficiency Virus (HIV). He was sentenced to life plus 432
months. White’s counsel on appeal has filed a no-merit brief pursuant to Anders v. California,
386 U.S. 738 (1967), and Ark. Sup. Ct. R. 4-3(j)(1), asserting there is no merit to any
arguments arising from any adverse circuit court rulings. White was provided an opportunity
to review the no-merit brief and has filed a pro se brief alleging points of error. We address
all the issues raised by White’s counsel as well as the issues White raised in his pro se brief.
Because White was sentenced to life in prison, our jurisdiction is pursuant to Ark. Sup. Ct. R.
1-2(a)(2) (2005). We affirm.
Facts
The State alleged and the jury found that in early 2004 White engaged in vaginal-penile
sexual intercourse with his girlfriend’s fifteen-year-old daughter, T.H., and T.H.’s friend,
fifteen-year-old K.J. The jury further found that White was aware that he was HIV infected
at the time, and that he did not inform K.J.1 The jury also found that White was T.H.’s
guardian as that term is defined in the criminal code. Prior to the crimes alleged, White had
characterized his relationship to T.H. as that of father and daughter, and he had attended
functions such as parent-teacher conferences as T.H.’s guardian. T.H. testified that she thought
of White as her stepfather. White was her mother’s boyfriend and moved into T.H.’s home in
1999.
T.H. testified that the sexual relationship with White began in 2001, and that by early
2004, White was having sexual intercourse with her two to three times a week. According to
T.H., in early 2004, White instructed her to ask her friend K.J. if she would have sex with him.
K.J. testified that T.H. approached her at school, asked to come stay at her house, and asked
whether she liked “older guys.” T.H. testified that K.J. came to stay overnight, and that White
asked T.H. and K.J. if they wanted to “make some money.” According to K.J., White
requested that each change into long T-shirts and wear no other clothing. Both T.H. and K.J.
testified that they changed clothes as requested and went to White’s bedroom where they were
requested to perform oral sex on him. Both testified that they refused. According to T.H. and
K.J., White had vaginal-penile sex with each of them.
T.H. testified that K.J. began to talk at school about the sexual encounter she and T.H.
1
White was not charged with exposing T.H. to Human Immuno-Deficiency virus.
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had with White. T.H. testified that when confronted at school by her counselor, she initially
denied the events involving K.J., White, and her because she was scared. She stated that “[h]e
used to threaten us all the time telling us he was going to kill us.” When asked whether White
had said anything about what might happen if she told about the sexual contact, T.H. testified
that, “[h]e always used to tell us that he’ll kill us, or he’ll burn the house down. He would kill
our whole family and stuff like that.”
Sufficiency of the Evidence
White moved to dismiss for insufficiency of the evidence at the close of the State’s
case, at the close of his case, and at the close of all the evidence. Each time his motion was
summarily denied. He alleged at trial that there was a lack of sufficient evidence regarding
rape, specifically that the State failed to prove his status as guardian of T.H. He also alleged
that there was insufficient evidence on the charge of sexual assault in the fourth degree, and
that there was insufficient evidence on the charge of exposing another person to Human
Immuno-Deficiency Virus because he used a condom and did not expose K.J. to HIV.
The test for determining the sufficiency of the evidence is whether the verdict is
supported by substantial evidence, direct or circumstantial. Pratt v. State, 359 Ark. 16, 194
S.W.3d 183 (2004). Substantial evidence is evidence forceful enough to compel the fact-finder
to make a conclusion one way or the other beyond suspicion or conjecture. Id.
When
determining the sufficiency of the evidence, we view the evidence in the light most favorable
to the State, and we will only consider the evidence that supports the verdict. Id.
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A.
Rape
To prove rape under the charge in this case, the State had to prove that White had
sexual intercourse with T.H., that T.H. was less than eighteen years of age, and that White was
her guardian. See Ark. Code Ann. § 5-14-103(a)(4)(A)(i) (Repl. 2006). The State alleged that
White was T.H.’s guardian as that term is defined in the criminal code because White by virtue
of a living arrangement was in an apparent position of power or authority over T.H. See Ark.
Code Ann. § 5-14-101(3) (Repl. 2006).
Sufficient evidence was offered to compel the fact-finder to make a conclusion one way
or the other beyond suspicion or conjecture that White stood in the position of guardian under
the criminal code, that he had sexual intercourse with her, and that she was fifteen at the time.
T.H. testified to these facts. Evidence of White’s characterization of T.H. as his daughter was
also offered to show that White stood in the position of guardian as defined under the criminal
code. There was substantial evidence offered to support the rape conviction.
B.
Sexual Assault in the Fourth Degree
To prove sexual assault in the fourth degree in this case, the State had to prove that
White was at least twenty years old, that K.J. was less than sixteen years old, and that White
engaged in sexual intercourse with K.J. See Ark. Code Ann. § 5-14-127(a)(1) (Repl. 2006).
K.J. testified that White engaged in vaginal-penile sexual intercourse with her, and that she was
under the age of sixteen. T.H. also testified to the sexual intercourse between White and K.J.
Further, evidence was offered to show that White was at least twenty years old. There was
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substantial evidence offered to support the conviction of sexual assault in the fourth degree.
C.
Credibility
In his directed-verdict motions, White challenged the evidence generally by asserting
that the victims’ testimony was not believable. He further alleged that the victims’ testimony
was inconsistent and contradictory to their earlier statements with respect to both rape and
sexual assault in the fourth degree. The credibility of witnesses is an issue for the jury and not
this court. Jackson v. State, 363 Ark. 311, 214 S.W.3d 232 (2005). The jury is free to believe
all or part of any witness’ testimony and may resolve questions of conflicting testimony and
inconsistent evidence. Williams v. State, 351 Ark. 215, 91 S.W.3d 54 (2002). The testimony
of both T.H. & K.J. established the essential facts that White engaged in penile-vaginal
intercourse with T.H. & K.J., and that they were both fifteen at the time.
D.
Exposing Another to Human Immunodeficiency Virus
To prove the charge of exposing another to Human Immunodeficiency Virus, the State
had to prove that White knew he had tested positive for HIV and that he exposed another by
sexual penetration without having first informed the other person of the presence of HIV. See
Ark. Code Ann. § 5-14-123(b) (Repl. 2006). Relevant to this case, sexual penetration under
this code section means sexual intercourse. Ark. Code Ann. § 5-14-123(c)(1) (Repl. 2006).
K.J. testified that she was fifteen at the time of the offense, that White sexually penetrated her
by having “vaginal sex,” and that she later learned from police that he was HIV positive.
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There was substantial evidence offered to support the conviction of exposing another person
to HIV.
Severance of the HIV Charge
White moved before trial to sever the charge of exposing another to HIV from the other
charges because exposing another to HIV is the “modern day scarlet letter,” an allegation and
disease so inflammatory that the charge had to be severed. The motion was summarily
denied. Pursuant to Ark. R. Crim. P. 22.2(a), where “two (2) or more offenses have been
joined for trial solely on the ground that they are of the same or similar character and they are
not part of a single scheme or plan, the defendant shall have a right to a severance of the
offenses.” We will affirm a trial court’s denial of a motion to sever if the offenses at issue
were part of a single scheme or plan or if the same body of evidence would be offered to prove
each offense. Garner v. State, 355 Ark. 82, 131 S.W.3d 734 (2003). K.J. was exposed to
HIV while White was committing sexual assault in the fourth degree. The act was part of a
single scheme, and the same evidence was offered to prove both crimes. On that basis, the
motion was properly denied. However, White alleges that fairness required severance. Ark.
R. Crim. P. 22.2(b)(i) does allow for severance where before trial “it is deemed appropriate
to promote a fair determination of the defendant’s guilt or innocence of each offence. . . .”
Because the crime of exposing another to HIV occurred in the course of the crime of fourthdegree sexual assault, under Rule 22.2(b)(i), the decision to sever offenses was discretionary
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with the trial court. There was no abuse of discretion in denying the motion to sever.
Disclosure of White’s HIV Status
White filed a motion in limine to exclude testimony by nurse practitioner Drexel Jordan
that White tested positive for HIV three years prior to the trial. Jordan was under subpoena
and ordered to testify about White’s HIV status as allowed under Ark. Code Ann. § 20-15-905
(Repl. 2005). White argues that the federal Health Insurance Portability and Accountability
Act of 1996 (HIPAA) precluded the disclosure by his health care provider. Specifically, he
argues that although the witness may be subpoenaed under statute, the statutes do not provide
that the information may be disclosed over defense objections. The purpose of HIPAA is to
increase privacy surrounding medical records; however, HIPAA at 42 U.S.C. § 1320d-7(b)
(1998), provides that nothing within the Act is to be construed to limit a state’s authority to
investigate crimes. Regulations implementing HIPAA further reinforce the conclusion that
there was no error in allowing Jordan to testify as he did. At 45 C.F.R. § 164.512(f) (2006),
the regulations provide for disclosure for law enforcement purposes, including disclosure
pursuant to process as required by law. Certainly the trial of a person accused of rape is a legal
process qualifying for disclosure. What is at issue in the present case is alleged criminal
conduct.
Further, Ark. Code Ann. § 20-15-905 (Repl. 2005) permits the prosecuting attorney to
subpoena information to enforce Ark. Code Ann. §5-14-123 (exposing another to Human
Immuno-Deficiency Virus), the crime charged, but limits disclosure to “the courts to enforce
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this section.” Use of the information in this case was limited to use in the courts to enforce the
code section as required. There was no error in admitting Jordan’s testimony on White’s HIV
status.
Motion for Continuance
White moved on the day of trial for a continuance to have time to locate school
counselor Wanda Keith, who White asserted would testify that when confronted in her office
about the events giving rise to White’s prosecution, T.H. denied that they had taken place.
White argued that Keith had actively avoided service of process and that her testimony was
needed in the cross-examination of T.H. The trial court denied the motion, finding Keith was
not a necessary witness because T.H. admitted that when confronted by Keith she denied the
events. To prevail in arguing for reversal on denial of a motion for a continuance, a criminal
defendant must show prejudice that amounts to a denial of justice. Stenhouse v. State, 362
Ark. 480, 209 S.W.3d 352 (2005). Here, White failed to show that Keith’s testimony was
anything but cumulative. This conclusion is reinforced by counsel’s argument at trial that Keith
was needed in the event that T.H. backtracked on her admission that she initially denied the
events took place. It was not asserted that Keith would offer any testimony distinct from that
offered by T.H., and there was nothing to stop counsel from raising the issue again at trial if
T.H had recanted. “The omission of cumulative evidence does not deprive the defense of vital
evidence.” Simpson v. State, 355 Ark. 294, 300, 138 S.W.3d 671, 674 (2003). There was no
error in denying the motion for continuance.
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Redaction of Portion of Telephone Conversation
White moved before trial for redaction of a statement in transcripts of his in-jail
telephone calls to T.H’s mother Donna Neasley. On the phone, White stated that “[w]hen I
told you that the last time, I came back home, didn’t I?” This statement White complains of
was part of the following statement and should be considered in context. “Well, that’s what
I’m trying to do, and if you work with me, you’ll see what I’m saying. There’s nothing going
to happen. When I told you that the last time and I came back home, didn’t I?” White argued
evidence of what he said in this statement was inadmissible under Ark. R. Evid. 404(b) as a
reference to a prior trial of White for rape of T.H. that resulted in a mistrial and no retrial. The
circuit court concluded: “I can’t see how anyone could take this as an allegation of any
previous allegations against him.” The circuit court ruled in essence that there was no Rule
404(b) issue because the statement to be redacted would not cause the jury to be aware that
there was an alleged prior similar crime. We agree. There was no abuse of discretion.
Reference to Oral Sex
Both T.H. and K.J. testified that when they entered White’s bedroom, he requested that
they perform oral sex on him. White argued that reference to his request for oral sex would
be “improper” and that the testimony should be limited to the acts underlying the charges,
which were “vaginal, penile sex.” The testimony of T.H. and K.J. showed that they entered
the bedroom, that the request for oral sex was immediately made, and that vaginal-penile sex
immediately followed. The sequence of events was such an inseparable whole that the State
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was entitled to show all that occurred from the moment that T.H. and K.J. entered the bedroom
up to and including the sexual intercourse White had with T.H. and K.J.. See Thessing v.
State, 365 Ark. 384, ___S.W.3d ___ (2006). There was no abuse of discretion.
Other Sexual Contact with T.H.
White moved before trial to exclude any evidence of other sexual acts with T.H. than
those charged. The motion was denied. Under this court’s case law, evidence of similar acts
with the same or other children is admissible. Swift v. State, 363 Ark. 496, 877 S.W.2d 941
(2005). White alleged that the evidence was inadmissible under Ark. R. Evid. 404(b). T.H.
testified at trial that in early 2004 White was having sex with her two to three times a week.
These prior acts are similar acts with the same child and are admissible. There was no abuse
of discretion.
Limiting Instruction
White alleges that the trial court erred in failing to give a limiting instruction under Rule
404(b) when evidence of prior sexual conduct with T.H. was admitted. When an appellant
contends that the failure to give a cautionary or limiting instruction at trial constitutes reversible
error, the failure to request the instruction precludes reversal based on that claim. Kennedy
v. State, 344 Ark. 433, 42 S.W.3d 407 (2001). White did not request a limiting instruction at
trial and is precluded form raising the issue on appeal. Issues may not be raised for the first
time on appeal. Ramaker v. State, 345 Ark. 225, 46 S.W.3d 519 (2001).
Ark. Sup. Ct. R. 4-3(h)
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Pursuant to Ark. Sup. Ct. R. 4-3(h), the record has been examined for all objections,
motions, and requests made by either party that were decided adversely to appellant, and no
prejudicial error has been found.
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