Terry Lee Ward v. State of Arkansas
Annotate this Case
Download PDF
SUPREME COURT OF ARKANSAS
No.
CR06-1327
Opinion Delivered 6-28-07
TERRY LEE WARD,
APPELLANT,
VS.
STATE OF ARKANSAS,
APPEAL FR O M THE PU LASKI
COUNTY CIRCUIT COURT, NO.
CR-2005-4985, HON. JOHN W .
LANGSTON, JUDGE,
APPELLEE,
AFFIRMED.
ROBERT L. BROWN, Associate Justice
On April 26, 2006, Terry Lee Ward, the appellant, was sentenced to life imprisonment
for the rape of an eleven-year-old girl, S.D. S.D. alleged that on August 17, 2004, Ward
sexually assaulted her while she was visiting his recreational vehicle in Jacksonville with her
sister, W.D., and friends. S.D. told her mother about the incident, and on August 23, 2004,
Investigator Dana Dusha of the Crimes Against Children Division of the Arkansas State Police
interviewed S.D. That same day, Investigator Dusha contacted Ward and told him that he
was a suspect in a child molestation case. Investigator Dusha gave him a business card and
asked Ward to call the following day.
At approximately two o’clock a.m. on the morning of August 24, 2004, a deputy from
the Crittenden County Sheriff’s Department and a City of Marion police officer stopped
Ward’s R.V. traveling northbound on Interstate 55 outside of Marion because of a broken
tail light. According to the police officers’ testimony, Ward asked the officers to help him
locate his driver’s license inside the R.V. While looking inside the R.V., the police officers
found Investigator Dusha’s business card. Corporal Mike Middleton of the Arkansas State
Police Criminal Investigation Division then interviewed Ward. After identifying Ward,
Corporal Middleton learned that he was a suspect in a child molestation case in Pulaski
County. Corporal Middleton obtained a search warrant to search the R.V., and during the
search, he found numerous children’s movies and video games. He also found a home
videotape taken of S.D.’s sister, W.D., who was twelve years old at the time. The videotape
showed W.D. getting into and out of the shower in Ward’s R.V. Corporal Middleton, in
addition, found approximately seventy compact disks containing thousands of images of child
pornography. On December 14, 2005, a felony information was filed in Pulaski County
charging Ward with the rape of S.D.
A pre-trial hearing was held on April 24, 2006, regarding the State’s notice of intent
to introduce evidence under Rule 404(b) of the Arkansas Rules of Evidence. The State
sought to introduce at trial the videotape of W.D. getting into and out of the shower as well
as samples of the photographs contained on the compact disks found in Ward’s R.V. The
following morning, before the trial began, the circuit court ruled that the videotape of W.D.
could be admitted during the guilt phase of the trial but that the photographs could not be.
Evidence was presented at the guilt phase of the trial, and the jury returned a verdict
of guilty. During the sentencing phase of the trial, the circuit court allowed the State to
introduce the pornographic photographs that it disallowed during the guilt phase. The jury
returned a sentence of life imprisonment. From this conviction and sentence, Ward appeals.
2
Ward first argues that there was insufficient evidence presented at trial to support his
rape conviction. Specifically, he maintains that there was insufficient evidence to prove that
he actually penetrated S.D. Ward contends that S.D.’s testimony regarding where and how
she was penetrated was mere speculation and conjecture and insufficient as a matter of law.
We first observe that defense counsel moved for a directed verdict of acquittal at the
end of the State’s case on the basis that the State had not met its burden of proof that Ward
actually penetrated S.D. The motion for directed verdict was renewed at the end of all the
evidence on the same grounds. We treat a motion for directed verdict on appeal as a
challenge to the sufficiency of the evidence. See Young v. State, __ Ark. __, __ S.W.3d __
(May 31, 2007). We will affirm the circuit court’s denial of a motion for directed verdict if
there is substantial evidence, either direct or circumstantial, to support the jury’s verdict. See
id. This court has repeatedly defined substantial evidence as “evidence forceful enough to
compel a conclusion one way or the other beyond suspicion or conjecture.” Id. at __, __
S.W.3d at __. Furthermore, “[t]his court views the evidence in the light most favorable to
the verdict, and only evidence supporting the verdict will be considered.” Id.
In rape cases, we have held that there is sufficient evidence to support a conviction if
the victim gives “a full and detailed accounting of the defendant’s actions.” White v. State,
367 Ark. 595, 599, __ S.W.3d __, __ (2006). Uncorroborated testimony of a rape victim is
sufficient evidence to support a conviction. See Gillard v. State, 366 Ark. 217, __ S.W.3d __
(2006). Inconsistencies in the rape victim’s testimony are matters of credibility that are left
for the jury to resolve. See id. The jury may accept or reject testimony as it sees fit. See id.
3
Ward was convicted under Ark. Code Ann. § 5-14-103(a)(1)(C)(i) (Supp. 2003),
which provides that “[a] person commits rape if he or she engages in sexual intercourse or
deviate sexual activity with another person . . . [w]ho is less than fourteen (14) years of age.”
Deviate sexual activity is defined as “any act of sexual gratification involving . . . [t]he
penetration, however slight, of the anus or mouth of one person by the penis of another
person; or . . . [t]he 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)(A) and (B) (Supp. 2003).
S.D. testified during direct examination that Ward lived in an R.V. and that she, her
sister, W.D., and some of their friends would go to Ward’s R.V. on occasion to play video
games and watch movies. She testified that there were curtained bunk beds in the R.V. and
that each bunk contained a mattress as well as a television set, video games, and a DVD player.
S.D. testified that during the last night she, her sister, W.D., and her friends stayed overnight
with Ward in his R.V., Ward came to her bunk bed where she was playing a video game
alone. When she turned around, he told her to keep playing the game, and she “smartmouthed” him and then continued playing.
S.D. testified that she then felt him touch her in the area that she uses “to go to the rest
room” and that after he touched her, she “twitched.” She testified that he touched her with
his hand, and she felt something go inside of her body, but she wasn’t sure whether it was in
the area where she used to go “number one or number two.” She testified that it hurt “kind
of sort of.” After this, she turned around and saw him moving his shorts to cover up his
4
“mid-section” that he used to go to the rest room. S.D. testified that she had never seen that
part of a man before but that she learned what it was from the nurse at her school. She
testified that she saw part of Ward’s private area while he was putting it back into his shorts.
S.D. further testified that Ward touched her with his private area in the “back part” of her
private area and that she felt him go inside of her body and it hurt “a little bit.” She told him
to “get away”, but she wasn’t sure if he heard her, and when she turned around, he had a very
serious look on his face. She testified that she didn’t believe any of the other children heard
her because the R.V. was very noisy.
On cross examination, S.D. testified that Ward’s “private part” went inside of her, but
not that “far inside” of her and that when she turned around, she saw him “pulling it out,”
but quickly turned around because she did not want to see anything.
W.D.’s testimony confirmed that she and S.D. had gone to Ward’s R.V. and that the
bunk beds where the children would play video games and watch movies were curtained.
She also testified that S.D. had “smart-mouthed” Ward on the night of the alleged rape. In
addition, the videotape of W.D. getting into and out of the shower was shown to the jury,
and W.D. confirmed that she was the individual in the videotape and that she was unaware
that she was being filmed. Finally, there was evidence presented that Ward fled Jacksonville
after learning that he was suspected of sexually assaulting a minor. This court has said that
“[f]light is probative evidence of guilt.” Gillard, 366 Ark. at 221, __ S.W.3d at __.
5
Viewing the evidence in the light most favorable to the verdict and judgment of
conviction and considering only the evidence that supports the judgment, we hold that there
is sufficient evidence to sustain Ward’s conviction for the rape of S.D.
Ward next contends that the circuit court erred in admitting into evidence during the
guilt phase of the trial the videotape of W.D. getting into and out of the shower in Ward’s
R.V. He maintains that this videotape should not have been introduced under the pedophile
exception to Rule 404(b) of the Arkansas Rules of Evidence because Ward’s videotaping of
W.D. does not have a sufficient nexus to the rape allegation. He asserts that the alleged rape
of S.D. would involve physical conduct and not mere voyeurism and that, therefore, the
alleged rape and the videotaping of W.D. are not of sufficient similarity. Moreover, he
contends that the videotape does not demonstrate any “proclivity for a specific act” of sexual
intercourse with a minor and that the admission of the videotape was more prejudicial than
probative.
The State responds that Ward’s argument regarding the admissibility of the videotape
taken of W.D. should not be addressed by this court because it was not preserved for appeal.
The State contends that the circuit court’s ruling on the admissibility of the videotape before
trial was only a conditional ruling and that when the State moved to introduce the videotape
during trial, defense counsel made no objection and thus, failed to preserve his argument for
appeal. We agree.
At a pre-trial hearing on April 24, 2006, defense counsel argued that the videotape of
W.D. was inadmissible. The circuit court ruled from the bench at that hearing: “Counsel,
6
at this point I’m going on just what I’ve been told. And from what I’ve been told, these
matters appear to be admissible.” Defense counsel then requested that the circuit court review
the videotape in camera before the trial.
On the morning of trial, the circuit court again ruled from the bench: “Counsel, based
upon what I’ve been told here, at this point it seems this videotape is admissible and will be
admitted at trial.” During trial, however, when the State moved to introduce the videotape
into evidence, defense counsel said “[n]o objection.”
The State grounds its argument of non-preservation on Byrum v. State, 318 Ark. 87,
884 S.W.2d 248 (1994). In that case, the prosecutor sought to introduce the testimony of a
witness, and when that witness was called to the stand, defense counsel requested a sidebar
conference. At that conference, defense counsel informed the circuit court that if the
prosecutor asked the witness about statements made by the victim, defense counsel objected
based on hearsay grounds. The prosecutor answered that the witness’s testimony would be
admissible under the excited utterance exception to the hearsay rule. The circuit court ruled:
“I believe it is excited utterance based on what I’ve heard about it so far.” Id. at 93, 884
S.W.2d at 252.
On direct examination of the witness, after the trial resumed, the prosecutor asked the
witness what the victim had said, and defense counsel did not object, did not request a final
ruling on his previous objection, and did not move to strike the hearsay testimony. This
court held that the circuit court’s ruling during the bench conference was only a preliminary
or qualified ruling, and because defense counsel failed to object to the testimony at trial, his
7
argument was not preserved for appeal. See Byrum, supra; see also Alexander v. State, 335 Ark.
131, 983 S.W.2d 110 (1998) (issue was not preserved for appeal where defense counsel
objected to witness’s testimony prior to trial and circuit court gave a preliminary ruling, but
when witness testified at trial, defense counsel made no objection).
Similarly, the circuit court’s pre-trial rulings in the instant case were preliminary, as the
circuit court said “at this point I’m going on just what I’ve been told” and “based upon what
I’ve been told here, at this point it seems this videotape is admissible. . . .” Because defense
counsel did not object when the State sought to introduce the videotape at trial, the objection
was waived. See also Baker v. State, 334 Ark. 330, 974 S.W.2d 474 (1998) (holding that even
if defense counsel initially makes a proper objection, he or she must renew that objection
when the State attempts to introduce that evidence); Mills v. State, 321 Ark. 621, 906 S.W.2d
674 (1995) (objection must be contemporaneous with the alleged error, and if defense counsel
objects to a question on the basis of hearsay, defense counsel must renew his objection if the
same or a similar question is later asked or the initial objection is waived). We affirm on this
point due to failure to preserve this issue for appeal.
For his next point, Ward argues that the pornographic photographs seized from his
R.V. should not have been admitted during the sentencing phase of the trial. He insists that
at the time of trial, he had not been convicted of any criminal offense regarding the
photographs and that the photographs were not allowed during the guilt phase of his trial
because they did not fit within the pedophile exception to Rule 404(b). He asserts that this
8
reasoning should apply equally to the sentencing phase. Ward contends that the prejudicial
impact of the photographs outweighed any probative value they might have had.
Though not raised by the State, it appears that Ward’s argument regarding the
admissibility of pornographic photographs seized from his R.V. during the sentencing phase
of his trial is not preserved for appeal for the same reason discussed above.1 During a sidebar
conference at trial before the sentencing phase began, the prosecutor requested that he be
allowed to introduce a representative portion of the pornographic photographs that were
seized from Ward’s R.V. Defense counsel objected. After a short recess, the circuit court
ruled: “Based upon that, I have reviewed 16-97-103 of the Arkansas Code. And based upon
that and some of the cases thereunder, this would be admissible.”
Next, during the actual sentencing phase of the trial, the prosecution moved to
introduce the photographs, and it appears, although it is not altogether clear, that defense
counsel again said “[n]o objection, Your Honor.” 2 Even if defense counsel did not say, “no
objection,” it is clear that he raised no objection to the introduction of the photographs.
Based on Baker, supra, and Mills, supra discussed above, because defense counsel did not object
when the State moved to introduce the pornographic photographs during the sentencing
1
Though not argued by the State, Ward acknowledges in his brief that it is unclear
whether defense counsel objected properly to the admission of the photographs so as to
preserve the issue for appeal.
2
There appears to be a mistake in the record. During the sentencing phase of the trial,
the State, through Mr. Jones, the prosecutor in this case, moved for introduction of the
photographs. The record then indicates that Mr. Jones said “[n]o objection, Your Honor.”
This suggests a mistake in the record. The record should have indicated that Mr. Nelson, the
defense counsel, was the one who actually said “[n]o objection, Your Honor.”
9
phase of trial, Ward’s argument is not preserved for appeal and will not be addressed by this
court.
In accordance with Rule 4-3(h) of the Arkansas Supreme Court Rules and Ark. Code
Ann. § 16-91-113, the record has been reviewed for all objections, motions, and requests
made by either party, which were decided adversely to Ward, and no prejudicial error has
been found.
Affirmed.
IMBER, J., not participating.
10
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.