Rudy Mammedaty v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

TERRY CRABTREE, JUDGE

DIVISION III

RUDY MAMMEDATY

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 01-10

JUNE 27, 2001

APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT

[NO. CR 2000-10-G]

HONORABLE JAMES ROBERT MARSCHEWSKI, CIRCUIT JUDGE

AFFIRMED

This is a no-merit case. A jury sitting in the Sebastian County Circuit Court convicted the appellant, Rudy Mammedaty, of rape and sentenced him to forty years in the Arkansas Department of Correction. Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Arkansas Rules of the Supreme Court and Court of Appeals, appellant's counsel has filed a motion to withdraw on the grounds that the appeal is without merit. Counsel's motion was accompanied by a brief referring to everything in the record that might arguably support an appeal, together with a list of objections made by appellant and ruled on by the court, and a statement of the reasons why counsel considers there to be nothing in the record which will actually support the appeal. The clerk of this court furnished appellant with a copy of his counsel's brief and notified him of his right to file a pro se list of points for reversal. Appellant has not filed such a list.

The circuit court made six rulings that were adverse to appellant. Appellant moved for a

directed verdict at the close of the State's case and at the close of all the evidence; the trial courtdenied the motion. A motion for a directed verdict is a challenge to the sufficiency of the evidence. Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence that is of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. Id. On appeal, we view the evidence in the light most favorable to the State, considering only that evidence that supports the verdict. Id. With this standard in mind, we discuss the evidence supporting the rape charge.

On January 19, 2000, while rearranging a dresser drawer, Dana Mammedaty, appellant's wife, located several nude photographs of appellant's adopted daughter and stepdaughter. Appellant's adopted daughter is also Dana Mammedaty's biological daughter. Appellant's stepdaughter resulted from appellant's previous marriage. Dana Mammedaty contacted the local sheriff's office upon her discovery. The sheriff's office interviewed appellant's adopted daughter, B.M., and she related that appellant engaged in sexual intercourse with her. A law-enforcement officer also interviewed appellant who admitted to possessing the photographs of the nude children, fondling the two girls, and penetrating B.M. with his fingers. At trial, both girls testified as to appellant's sexual contact with them, and the State introduced into evidence the photographs of the girls posing nude.

Arkansas Code Annotated §5-14-103(a)(4) (Repl. 1997) states, "A person commits rape if he engages in sexual intercourse or deviate sexual activity with another person. . . who is less than fourteen years of age." The State proved that at the time the alleged incidents occurred, B.M. was under the age of fourteen, and that appellant engaged in sexual intercourse and deviate sexual activity with the B.M. At trial, the State introduced appellant's statement wherein he admitted toa law-enforcement officer that he, "went inside [B.M.] with [his] fingers, just a short time." In addition to appellant's statement, B.M. testified, "[appellant] would rub me [with his penis] and stick his fingers inside of me." B.M. further offered testimony that "[appellant] put his penis inside of me." Based upon the victim's testimony and appellant's statement, we find sufficient evidence to affirm appellant's conviction for rape.

Appellant made a motion to suppress his statement made at the sheriff's office. A second adverse ruling occurred when the trial court determined that appellant's taped statement to Deputy Creek was admissible. On January 19, 2000, after Deputy Creek interviewed B.M. and reviewed the photographs discovered by Dana Mammedaty, Deputy Creek asked another law-enforcement officer to make contact with appellant at his place of employment. Appellant was asked to visit the Sebastian County Sheriff's Office to meet with Deputy Creek. Later that day, appellant drove himself to the sheriff's office. Upon arrival at the sheriff's office, Deputy Creek mirandized appellant. Creek related that appellant was able to read and write and that appellant signed the "rights form." Creek testified that after giving appellant his Miranda rights in written form, he began taping appellant's statement. Deputy Creek further testified that the two discussed the photographs, and appellant admitted to taking the photographs of the two girls. During the statement, appellant admitted that he fondled B.M while they were both naked, rubbed B.M. between her legs with his penis, and penetrated her with his fingers. At the conclusion of the statement, appellant indicated that law-enforcement officers had not threatened him or made him any promises to elicit his statement.

Appellant testified at the suppression hearing that upon Deputy Creek showing him the photographs, Creek stated, "you're in trouble," and that it would be in appellant's best interest to talk. Appellant further testified that he thought he was going to get to go home after he made hisstatement and that he would not be placed under arrest. The trial court held that appellant gave the statement freely and voluntarily, that appellant was properly advised of his rights, and that no promises were made to him.

On appeal, the appellate court reviews voluntariness of confessions by making an independent determination based upon the totality of the circumstances, and reverses the trial court only if its decision was clearly erroneous. Williams v. State, 338 Ark. 97, 991 S.W.2d 565 (1999). We believe that the trial court properly allowed appellant's statement into evidence based upon Deputy Creek's testimony that appellant was properly mirandized and that appellant was not threatened or promised anything in exchange for his statement.

Defense counsel made a motion to suppress the photographs of the two minor children posing nude. The trial court denied the motion and allowed the photographs of appellant's adopted daughter and stepdaughter into evidence. Dana Mammedaty discovered these photographs in a pair of appellant's shorts that were stored in a dresser drawer. The photographs depicted the young girls in sexually explicit poses. At the hearing, the trial court allowed the photographs into evidence under Ark. R. Evid. 404(b), "because of the nature of the pictures and the nature of the crime and the fact that the crime is alleging an infant, a young child, and its also an indication of a sibling, a person in the home." In addition, the trial judge found the photographs admissible for purposes of showing motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, pursuant to Rule 404(b).

The admission or rejection of evidence under Rule 404(b) is left to the sound discretion of the trial court and will not be disturbed absent a manifest abuse of discretion. Munson v. State, 331 Ark. 41, 959 S.W.2d 947 (1994). Our courts have long recognized a "pedophile exception," to the exclusion of inadmissible bad acts and bad-character evidence. Hyatt v. State, 63 Ark. App. 114,975 S.W.2d 433 (1998). This exception allows proof of similar acts with the same child or other children in the same household as an accused when it is helpful in showing a proclivity toward a specific act with a person or class of persons with whom the accused has an intimate relationship. Id. Such evidence not only helps to prove the depraved sexual instinct of the accused, but is also admissible to show the familiarity of the parties and the antecedent conduct toward one another and to corroborate the testimony of the victim. Id. From our review of the evidence, we cannot conclude that the trial court abused its discretion in admitting the photographs into evidence.

During a pretrial hearing, appellant made a motion to quash the information or make it conform to the proof of the case. Defense counsel argued that because the State alleged that appellant had sexual relations with his adopted daughter, that the proper charge should be incest. The trial court denied the request. Arkansas Code Annotated §5-26-202(a)(2) (Repl. 1997) states, "A person commits incest if being sixteen years of age or older. . . has sexual intercourse with, or engages in deviate sexual activity with a person he knows to be a step child or adopted child." The facts in this case indicate that appellant violated the statutory provision for both incest and rape. In Williams v. State, 11 Ark. App. 11, 665 S.W.2d 299 (1984), our court related that rape and incest are offenses of a different class, where an act may violate more than one statute, and the conduct could support a conviction for either offense but not both. Therefore, the trial court did not err in allowing the State to choose which offense, rape or incest, it would prosecute appellant for committing.

Defense counsel objected to the admission of a condom into evidence, however the trial court allowed it. Dana Mammedaty discovered the condom along with the photographs of the nude children. Defense counsel argued that the condom was not relevant evidence as there was not testimony that appellant ever wore the condom. We will not reverse a trial court's ruling onadmission of evidence absent an abuse of discretion; nor will we reverse absent a showing of prejudice. Gaines v. State, 340 Ark. 99, 8 S.W.3d 547 (2000). Because the condom was located in close proximity to the photographs, we cannot say that the trial court abused its discretion in admitting it to evidence.

Another adverse ruling took place when Dana Mammedaty testified during cross-examination. Defense counsel asked her about an incident that occurred at her sibling's house. At this time, the State asked to voir dire the witness outside the presence of the jury, and the trial court allowed it. The witness testified that her sister caught her son with B.M. in a "situation [that] was not good." Dana Mammedaty further testified that her nephew would pinch B.M. on the bottom and touch her inappropriately. After hearing this testimony, the trial court held that the testimony would not be allowed into evidence. The trial court found that the testimony was irrelevant, hearsay, and proscribed by the Rape Shield Act. Again, we will not reverse a trial court's ruling on admission of evidence absent an abuse of discretion; nor will we reverse absent a showing of prejudice. Gaines, supra. We do not believe that the trial court abused its discretion in finding this testimony to be irrelevant. Nor do we believe that appellant was prejudiced by this.

From a review of the record and the brief presented to this court, we find that appellant's counsel has complied with the requirements of Rule 4-3(j) of the Arkansas Rules of the Supreme Court and Court of Appeals, and that the appeal is without merit. Counsel's motion to be relieved is granted, and appellant's judgment of conviction is affirmed.

Robbins and Griffen, JJ., agree.