Walatha Love v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION DIVISION I

ARKANSAS COURT OF APPEALS

SAM BIRD, JUDGE

WALATHA LOVE,

APPELLANT

V.

STATE OF ARKANSAS,

APPELLEE

CACR00-498

DECEMBER 20, 2000

APPEAL FROM THE CRITTENDEN COUNTY CIRCUIT COURT,

NO. CR97-1101,

HON. DAVID BURNETT,

JUDGE

AFFIRMED

Appellant Walatha Love brings this appeal from a conviction of violation of a minor in the first degree. The State alleged that he had forced sexual intercourse with T.W., a seventeen-year-old student at West Memphis High School, where Love was employed as dean of students. On appeal, he does not challenge the sufficiency of the evidence to convict him, but argues that the court erred by allowing into evidence the testimony of two other West Memphis High School students who claimed that he had acted inappropriately toward them. He argues that the court erred by allowing such evidence of prior bad acts because the acts did not have independent relevance and were improper pursuant to Ark. R. Evid. 403(b). We disagree with Love's arguments, and we affirm.

At the trial, the victim, T.W., testified that at the end of September 1997, while at school, Love approached her from behind and stated, "I can see through your dress. I know what you have on." She said that approximately two weeks later, on October 8, 1997, she

was not feeling well and had forgotten to take her medication for an enlarged heart and for rheumatic fever. She went to the office to call her mother to tell her mother that she had forgotten her medication. Love was in the office at that time and, when T.W. informed him that she could not reach her mother, he offered to take her home to get her medication. On the way to her house, T.W. said Love told her that he had to go the annex, which is where the school kept some of its supplies. She said that eventually Love turned into some apartments, and Love told her that he had to go into one of the apartments to make some phone calls. Love told her to come inside, and she did. He told her to sit down on the couch and she did. He then locked the door to the apartment and stated to her, "You know why you're here." T.W. said that she did not know, and she jumped up, at which time, he grabbed her arm, pulled her down on the couch, and raped her. T.W. said that after the rape, Love stated to her, "It's not going to help if you tell anybody because nobody's going to believe you. You're only going to ruin your reputation. Nobody's going to believe you."

Love then drove T.W. back to school without going to get her medicine. When they returned to the school, T.W. went to ROTC class and sat on the bleachers. Another student saw her crying, and they went to the supply room where she told the student that Love had raped her. Another student, Latasha Motley, also came in the supply room, and T.W. also told her what had happened. T.W. stated that Officer Riley, who was a close friend of Love, came in the room. They were later joined by Love. T.W., Love, and Officer Riley then went to the school office, and on the way, T.W. stated that Love again told her not to tell anybody because it would ruin her reputation. When Officer Riley asked Love why T.W. was crying,Love replied that it was because she was going to have to attend "Saturday School," a form of detention hall.

Although she did not tell her mother what had happened, T.W. did inform another friend of hers, Monica Christian. Christian then told her father, Dwight Lily, who called Bill Kessenger, the superintendent of the school. After the school officials were informed, Loutelious Holmes, the principal of the school, called T.W. into his office and asked her what had happened, and she informed Holmes that Love had taken her to an apartment and raped her. They also asked her if she could identify where the apartment was, and she informed them that she could.

Russell Jones also testified that he was a friend of Love and that he (Jones) had an apartment across the street from the school annex. He testified that at the beginning of October, Love had asked for a key to his apartment because, "he wanted to meet with a couple of guys, and that he wanted to just go over and chill one evening or afternoon." Jones left a key for him in his mailbox. Although Love told Jones that he never used the key, he put the key in an envelope so that no one would "mess with it."

The State offered the testimony of Latoya Fair and Isasha Dean, both of whom were to testify regarding inappropriate comments Love had made to them while at school. Love objected to the girls' testimony, stating that the testimony was being offered to prove his character and not to prove an independent fact or a common scheme or plan. After listening to the proffered testimony, the judge ruled that the testimony's probative value outweighed any potential prejudice and was admissible because it corroborated not only the victim'stestimony about the location of the event, but it also corroborated the testimony of Jones, who stated that he had loaned a key to his apartment to Love, and the availability of the apartment. The judge stated: "They do have information that is corroborative of other aspects in the case and for that reason, I'm finding that its probative value outweighs any potential prejudice." The judge also gave a cautionary instruction to the jury before Fair and Dean testified, stating that the testimony was not being allowed to prove Love's character or that he acted in conformity therewith.

Dean then testified before the jury that she was a senior at West Memphis High School. She stated that on three occasions Love had taken her out of in-school suspension and told her that her skirts were too short. He then asked her to follow him to his office, pretended to call her mother, and then drove her home to change clothes. She stated that Love would get out of the car, but would get back in when he noticed Dean's mother greeting her at the door. She stated that he also made the remark, concerning her skirts, that "If they're attractive to me, I'm sure they would be tempting to other guys."

Fair testified that she was also a senior at West Memphis High School and knew Love. She stated that Love would frequently stop her in the hallways to speak with her, making her late for class. For her frequent unexcused tardies, she would get detention hall. She said that around the date of the incident with T.W., Love had asked Fair to leave school with him and go to his apartment and have sex with him. She told him no. She asked why he had an apartment if he was married, and he stated that it was "just a place to go and chill out or something."

The jury convicted Love of violation of a minor in the first degree and sentenced him to three years in the Arkansas Department of Correction.

Appellant argues that because the testimony by Fair and Dean did not have independent relevance and because their testimony's probative value was substantially outweighed by the danger of unfair prejudice, the trial court erred in admitting the testimony. In addition, he argues that neither Dean's nor Fair's testimony was relevant to the case at bar because their testimony did nothing to establish T.W.'s allegations. Instead, Love argues that the testimony was being used in an attempt to establish that he is a bad person and that the evidence does not prove any material fact.

Arkansas Rule of Evidence 404(b) states:

(b) Other Crimes, Wrongs or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

The test for establishing motive, intent, or plan as a Rule 404(b) exception is whether the evidence of the other act has independent relevance, Haire v. State, 340 Ark. 11, 8 S.W.3d 468 (2000), thus having a tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. McGehee v. State, 338 Ark. 152, 992 SW.2d 110 (1999). Evidence is indisputably relevant if it proves a material point and is not introduced solely to prove that the defendant is a bad person. Haire v. State, supra. The admission or rejection of evidence pursuant to Ark. R. Evid. 404(b) is left to the sound discretion of the trial court and will notbe disturbed on appeal absent an abuse of discretion. Haire v. State, supra. Correspondingly, the trial court also had discretion to determine whether the prejudicial value of the evidence substantially outweighs its probative value, and we will not reverse absent an abuse of discretion. Gaines v. State, 340 Ark. 99, 8 S.W.3d 547 (2000); McGehee v. State, supra.

The court did not abuse its discretion in finding that the testimony should be allowed into evidence under Ark. R. Evid. 404(b) because the testimony proved that Love had a plan, motive and opportunity. All of the girls testified that they had been in Saturday School or detention hall and, on two occasions, Love had gotten them out of class. Love had also stated to Fair that he had an apartment and asked her to go there to have sex with him. All three of the girls testified that Love had made inappropriate sexual remarks to them. In addition, the statements made by Love to both Fair and Dean occurred in close proximity to the time in which T.W. contends that she was raped by Love. Clearly, this testimony was offered to prove Love's common scheme or plan and not to attack his character.

Also, the court did not abuse its discretion in finding that Dean's and Fair's testimony corroborated the testimony of some of the other witnesses. The victim testified that she was taken by Love to an apartment near the annex and raped. In addition, Jones testified that he had given Love a key to his apartment, which was located across from the school annex. Fair testified that Love had asked her to go to an apartment and have sex with him. She asked why, since he was married, did he have an apartment, and he stated it was just someplace to "chill out."

Based upon the foregoing, the court did not abuse its discretion in allowing into evidence the testimony of Fair and Dean.

Affirmed.

Hart and Griffen, JJ., agree.