Gene Thomas Caudle and Jennifer Lynn Dyroff v. State of Arkansas

ar02-489

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

DIVISION IV

CACR02-489

February 5, 2003

GENE THOMAS CAUDLE and AN APPEAL FROM BENTON

JENNIFER LYNN DYROFF COUNTY CIRCUIT COURT

APPELLANTS [CR01-205-2]

V. HON. DAVID S. CLINGER, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

This appeal arose from related convictions of two co-defendants, involving charges of sexual child abuse. A jury convicted appellant Gene Thomas Caudle in Benton County on one count of accomplice to rape, and appellant Jennifer Lynn Dyroff on one count of rape. Both received prison terms. Caudle argues (1) that the trial court erred in refusing to grant him adequate continuance because the State surprised him at trial by eliciting testimony of a previously undisclosed statement allegedly made by Caudle; and (2) that the trial court erred in allowing the State to elicit testimony concerning anal sex not related to the victim because such testimony was more prejudicial than probative under the Arkansas Rules of Evidence. Dyroff argues (1) that the trial court erred in failing to grant her motion for directed verdict; (2) that the trial court abused its discretion in failing to grant her motion for severance of defendants; and (3) that the trial court abused its discretion in permittingcertain testimony concerning other consensual sexual practices because such testimony was irrelevant and substantially more prejudicial than probative. We affirm as to both appellants on all counts.

When G.F., the minor victim in this case, was under the age of fourteen his mother became romantically involved with Caudle. Over the course of that relationship, both adults were eventually part of a religious group that also practiced promiscuous sexual activities. It remained disputed throughout the trial whether sexual activities were considered part of the group's religious doctrine. All witnesses at trial stated that Caudle was the leader of the group. During the recurring sexual escapades at various homes, including at G.F.'s Arkansas home, G.F. occasionally observed what happened. On one occasion in G.F.'s home, the boy walked past the bedroom of his mother, which she apparently shared with Caudle at that time. He saw Caudle and Dyroff engaging in sexual activities. Caudle allegedly invited the boy to come in. The boy stated that Caudle directed Dyroff to perform sexual acts on both himself and G.F., and that she did so. On another occasion, during a Grand Canyon camping trip, Caudle allegedly again told Dyroff to perform sexual acts on G.F. Again, Dyroff complied. It appears that the particular lifestyle of the group eventually came to an end, at least for G.F. and his mother. Church members of the community to which G.F. and his mother later belonged found out about G.F.'s past and the resulting talk gave rise to the charges against Caudle and Dyroff. G.F.'s mother also faced criminal charges that are not relevant for this appeal.

In February 2001, the State charged both appellants with rape of a minor, based onidentical facts. Both cases were eventually combined under the same docket number. Shortly before trial, the State amended its felony information against Caudle from the charge of rape to the charge of accomplice to rape.

Caudle's defense counsel filed a discovery motion on May 10, 2001, requesting any written or recorded statements or the substance of any oral statements made by Caudle or any co-defendant. On September 24, 2001, a three-day jury trial began in Benton County Circuit Court. On the third day of the trial, Caudle testified in his own behalf that he and Dyroff were part of a religious group, but denied that sexual activity was part of that group's required religious practice, or that he ever tried to recruit members. Consequently, the State called a rebuttal witness, Tami McWhorter, G.F.'s half-sister, whose availability as a rebuttal witness the State allegedly did not know of until that morning. Caudle objected, and the State disclosed the substance of McWhorter's anticipated testimony at the bench. Specifically, McWhorter wanted to testify that Caudle tried to recruit her for his cult and that he made statements to the effect that sexual activities were part of the group. In response, Caudle argued that McWhorter should be barred from testifying because her identity had not been disclosed in discovery. The trial court found that the proffered testimony "strictly went to rebuttal" and allowed the State to proceed with their rebuttal witness.

McWhorter subsequently testified as proffered. During her testimony, Caudle renewed his objection, again claiming a Rule 17.1 violation of the criminal procedure discovery rules. Again, the State argued that it had been unaware of McWhorter's identity until shortly before she was called and had previously been unaware of what appellantCaudle had said to her. At that point, Caudle asked for a continuance because of surprise, which the trial court denied, referring to its previous ruling that McWhorter's testimony was true rebuttal.

At another point during the three-day trial, Deecha Mann, a former group member, testified that Jennifer Dyroff and Mann's now-husband, Justin, had engaged in anal intercourse at Caudle's instruction. Caudle objected, claiming that the evidence was not relevant, unduly prejudicial, and improper character evidence. The trial court overruled the objection after the State argued that the testimony was relevant to Caudle's motive and intent-that he directed Dyroff to engage in sexual relations with members of the cult group as part of that group's practice. Caudle allegedly told Dyroff to do this because she was Justin's "teacher."

Counsel for Dyroff moved for severance, once during pretrial motions, and once during witness testimony. The trial court denied both motions. Finally, counsel for Dyroff moved for a directed verdict after the State's case, and again after the defense's case, but not after rebuttal. The trial court denied the motions for directed verdict.

The jury convicted Caudle of one count of accomplice to a rape, class Y felony, and sentenced him to a term of fifteen years in the Arkansas Department of Correction. The jury convicted Dyroff of one count of rape, a class Y felony, sentencing her to a term of ten years' imprisonment. The resulting convictions led to this double appeal.

Dyroff's First Argument: Sufficiency of the Evidence

Dyroff first argues that the trial court erred in denying her motions for directed verdictbecause the minor victim's testimony did not bring her conduct under the necessary scope of the applicable statutory language. A motion for a directed verdict is a challenge to the sufficiency of the evidence. Laster v. State, 76 Ark. App. 324, 64 S.W.3d 800 (2002). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence. Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000). Evidence is substantial if it is of sufficient force that it would compel a conclusion without speculation or conjecture. Rose v. State, 72 Ark. App. 175, 35 S.W.3d 365 (2000). We review the evidence in the light most favorable to the State and only consider the testimony that tends to support the conviction. Conner v. State, 75 Ark. App. 418, 58 S.W.3d 865 (2001). In a jury trial, a party must make a motion for a directed verdict at the close of the evidence offered by the State and at the close of all of the evidence. Ark. R. Crim. P. 33.1(a) (2002). Failure to make the motion as described under Rule 33.1(a) constitutes a waiver of any sufficiency claim. Ark. R. Crim. P. 33.1(c) (2002). We construe Rule 33.1 strictly. Etoch v. State, 343 Ark. 361, 37 S.W.3d 186 (2001). This means that a defendant is obligated to renew her motion for a directed verdict at the close of the State's rebuttal, following the defense's case. King v. State, 338 Ark. 591, 999 S.W.2d 183 (1999).

In the present case, Dyroff moved for a directed verdict after the State's case and after she rested her case. However, the State then proceeded with rebuttal testimony. After the State rested its rebuttal case, Dyroff declined to offer any surrebuttal evidence. Dyroff did not renew her motion for a directed verdict, as required by law. Therefore, we hold that she failed to preserve her sufficiency claim for appellate review and decline to reach the meritsof this argument. We note at this point that counsel for Dyroff conceded this point in oral arguments. Regarding counsel's assertion that the rule requiring the renewal of a motion for directed verdict should be reconsidered, we neither promulgate nor modify rules of procedure. That function is performed by the Arkansas Supreme Court.

Dyroff's Second Argument: Severance

Dyroff next argues that the trial court erred in denying her motion for a severance of defendants pursuant to Ark. R. Crim. P. 22.3(a) and 22.3(b)(i). According to Rule 22.3(a), she argued that statements that were inadmissible against her had been admitted into evidence and that a fair determination of her guilt required that her case be severed. Upon appellate review, we will not disturb a trial court's ruling to grant or deny a severance absent an abuse of discretion. Nichols v. State, 69 Ark. App. 212, 11 S.W.3d 19 (2000). Rule 22.3(a) permits severance when "an out-of-court statement of a codefendant makes reference to [the other co-defendant] but is not admissible against [the other]."

Severance rules are intended to promote an expeditious disposition of criminal cases, while not prejudicing individual defendants. Id. Severance is appropriate when it is necessary for a fair determination of the guilt or innocence of a single defendant. Id. The Nichols court gave several factors to consider whether a severance should be granted:

(1) whether the defenses of the defendants are antagonistic; (2) whether it is difficult to segregate the evidence; (3) whether there is a lack of substantial evidence implicating one defendant except for the accusation of the other; (4) whether one defendant could have deprived the other of all peremptory challenges; (5) whether one defendant will be compelled to testify if the other does so; (6) whether one defendant has no prior criminal record and the other has; and (7) whether circumstantial evidence against one defendant appears stronger than against the other.

Id. at 217, 11 S.W.3d at 22.

Dyroff bases her argument concerning severance on three testimonial statements in her brief.1 The first statement, as testified by G.F., concerned Caudle's alleged orchestration of a threesome between himself, Dyroff, and G.F. minor, during which event Caudle asked the boy to join. G.F. further testified that Dyroff performed sexual acts on him following Caudle's suggestion. The second, and related, statement involved Caudle instructing the boy in certain sexual matters and Dyroff's compliance with Caudle's directions. Finally, Dyroff complains of a statement of G.F. alleging that Caudle instructed her to perform sexual acts on G.F. while on a camping trip, and that she complied.

We hold that the three statements do not require severance under Rule 22.3(a). Our supreme court construed that rule to apply primarily to instances in which one co-defendant's confession, which implicates another co-defendant, is admitted into evidence. Holbird v. State, 299 Ark. 245, 771 S.W.2d 775 (1989). The statements in question were part of the res gestae, and thus, they were admissible against Dyroff in a separate trial and do not mandate severance. Res gestae testimony and evidence is presumptively admissible. Bledsoe v. State, 344 Ark. 86, 39 S.W.3d 760 (2001). Under the res gestae exception, all of the circumstances connected with a particular crime may be shown to provide the jury with the context of the entire offense. Id. It was part of the res gestae that Dyroff performed sex acts on the victim under Caudle's direction, who was present. Therefore, Rule 22.3(a)does not entitle her to a severance based on these statements, and the trial court did not err by denying her motion.

Alternatively, Dyroff claims that the trial court ought to have granted her motion for severance because a severance was necessary for a fair adjudication of her guilt, pursuant to Rule 22.3(b)(i). She argues that the second Nichols factor, difficulty in segregating evidence, and the seventh factor, strength of circumstantial evidence against the other defendant, favored severance. However, the court in Nichols addressed a very similar argument. In that case, the appellant claimed that the State's evidence against his co-defendant was stronger. Nichols, supra. This court affirmed because it found that the testimony implicated both defendants and because no prejudice could have resulted because the jury was appropriately instructed to consider the evidence for or against each of them separately, and to render verdicts as if each were being tried separately. Id.

Here, the minor victim testified that both Dyroff and Caudle engaged in sexual activities with him. That allegation implicated both of them. Furthermore, the trial court instructed the jury, just as in Nichols, to consider the evidence against Dyroff and Caudle separately, as though each were being tried separately. Therefore, we hold that the trial court did not abuse its discretion when denying the motion for continuance.

Caudle's First Argument: Denial of Adequate Continuance

Caudle first argues that the trial court erred in refusing to grant an adequate continuance when the State allegedly surprised the defense by eliciting rebuttal testimony of a previously undisclosed statement of Caudle. Generally, the State must disclose allstatements made by a defendant of which the prosecution has knowledge. Ark. R. Crim. P. 17.1(a)(ii) (2002). However, the State need not disclose true rebuttal evidence. Weaver v. State, 56 Ark. App. 104, 939 S.W.2d 316 (1997). Genuine rebuttal evidence consists of evidence offered in reply to new matters, even if the rebuttal evidence overlaps with the evidence presented in the case-in-chief. Id. The evidence must be responsive to that presented by the defense. Id.

In the Weaver case, the defendant was convicted of knowingly exposing another to HIV. Id. Weaver appealed, arguing that the trial court erred by admitting rebuttal testimony of a state investigator concerning Weaver's alleged statement that he would give HIV to everyone he could. Id. The State argued that it had just learned of the statement by Weaver and did not use the statement in its case-in-chief because it had not provided it to appellant in discovery. Id. However, the statement became relevant as rebuttal evidence after Weaver had testified that he allegedly had informed the victim of his HIV-positive status. Id. We agreed because we found the witness's testimony to be true rebuttal because it was responsive to Weaver's testimony to the contrary. Id.

In the present case, we hold that the trial court did not abuse its discretion because Tami McWhorter's testimony was rebuttal. The State offered her testimony to contradict Caudle's testimony that his group did not engage in sexual practices as part of its beliefs and that he did not recruit people. Therefore, there was no duty to disclose McWhorter's identity or substance of her rebuttal. In response, appellant Caudle argues that the trial court still erred because it made no inquiry or finding on the question of discovery violation and itssurrounding circumstances, and that the court took no action to cure the prejudice created by the violation, "even though the violation was evidently inadvertent." For that argument, Caudle relies in his brief on the case of Nelson v. State, 274 Ark. 113, 622 S.W.2d 188 (1981). While it is true that Nelson stands for the proposition that a trial court must take appropriate action to remove any prejudice resulting from the State's failure to comply with pretrial discovery, Caudle's argument ignores that the trial court did indeed inquire into the question of a potential discovery violation. Specifically, the trial court found, after hearing the proffered evidence, that McWhorter's statements were rebuttal. Therefore, the trial court implicitly found that there was no violation of pretrial discovery rules. Nelson only applies where the State violated such discovery rules. Because there was no error in the State's not disclosing the rebuttal testimony, the trial court consequently did not have to make any findings concerning any violations-other than finding that the proffered testimony is true rebuttal and as such admissible-and did not have to grant a continuance based on an alleged violation of the discovery rules.

Thus, the trial court only had to consider general continuance rules. A court "shall grant a continuance only upon a showing of good cause and only for so long as is necessary, taking into account not only the request or consent of the prosecuting attorney or defense counsel, but also the public interest in prompt disposition of the case." Ark. R. Crim. P. 27.3 (2002). To grant or deny a continuance is within the sound discretion of the trial judge, and we do not reverse absent an abuse of discretion amounting to a denial of justice. Barnes v. States, 346 Ark. 91, 55 S.W.3d 271 (2001). The appellant must demonstrate how he wasprejudiced by the denial of a continuance. Id. Where a motion for a continuance is based on a lack of time to prepare, we consider the totality of the circumstances. Id.

Here, the trial court denied Caudle's request for a continuance, but granted a five-minute break. Furthermore, Caudle never advised the trial court what action he would take if given a longer continuance. Caudle also fails to demonstrate prejudice by illustrating to this court what he would have gained by additional time that he did not gain at trial. Barnes v. State, supra.; Anthony v. State, 339 Ark. 20, 2 S.W.3d 780 (1999) (finding no prejudice from denial of continuance where defendant did not specify what was not done that could have been done with additional time where motion for continuance was based on a claim of lack of time to prepare). Therefore, we hold that the trial court did not abuse its discretion in granting a five-minute continuance.

Caudle's Second Argument and Dyroff's Third Argument: Rule 403 Challenge

Caudle and Dyroff next claim that the trial court erred in allowing witness Deecha Mann to testify that Dyroff and Mann's husband, Justin, engaged in anal intercourse at Caudle's instruction. Appellants argue that such evidence was not relevant, unduly prejudicial, and improper character evidence. Rulings on the admissibility of evidence are within the trial court's discretion and will not be disturbed on appeal absent a showing of an abuse of discretion and prejudice. Ayers v. State, 334 Ark. 258, 975 S.W.2d 88 (1998). Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Ark. R. Evid. 401 (2002). To be relevant under Rule 401,evidence need not prove the entire case or even a single issue; however, it must shed light on any fact of consequence to the determination of the action. Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996), cert. denied 520 U.S. 1214 (1997).

Under Ark. R. Evid. 403, it is within the province of the trial court to determine whether the probative value of evidence is substantially outweighed by the danger of unfair prejudice. We do not reverse such a determination absent a showing of manifest abuse of discretion. Bohanan v. State, 324 Ark. 158, 919 S.W.2d 198 (1996). Evidence of other crimes, wrongs, or acts are generally inadmissible to prove the character of a person in order to show that he or she acted in conformity with that character, but may be admissible for other purposes, such as proof of motive or intent. Ark. R. Evid. 404(b) (2002). Again, a trial court has broad discretion to admit or reject evidence under Rule 404(b). Arnett v. State, 342 Ark. 66, 27 S.W.3d 721 (2000). If evidence is independently relevant, then it is admissible under Rule 404(b). Cook v. State, 345 Ark. 264, 45 S.W.3d 820 (2001).

In the present case, the State's theory was that Dyroff engaged in sexual relations with G.F. at Caudle's command, as part of a religious cult to which they all belonged. In support of that theory, the prosecution had Deecha Mann testify that she and her now-husband, Justin, were members of the same cult as Caudle and Dyroff. Mann stated that Caudle instructed Dyroff to have anal sex with Justin Mann because he wanted Justin to know about it and because Dyroff was "his teacher." Upon the defense counsel's objection, the State argued that the testimony was relevant to Caudle's motive and intent-that he directed Dyroff to engage in sexual relations with members of the group as part of that group'spractice. The trial court overruled Caudle's objection.

Appellants argue that there was not sufficient similarity between the anal intercourse and the alleged sexual contacts with the minor victim. They rely on Akins v. State, 330 Ark. 228, 955 S.W.2d 483 (1997), a case holding that where the facts of the other wrongful act are too dissimilar to those of the offense charged, testimony of the 404(b) act is inadmissible to establish motive or intent. In that case, the supreme court distinguished between two different occurrences of rape, where both modi operandi of the rapists in question appeared to differ considerably. Id. Appellants attempt to distinguish the anal intercourse between Mann and Dyroff accordingly. While it is true that there is a difference between the consensual anal intercourse and the sexual abuse of G.F.-allegations not involving anal intercourse-appellants overlook what the State truly aimed to prove. The State did not want to prove that Caudle or anyone else had anal intercourse with the victim. Instead, the State offered this testimony to prove that Caudle issued commands of a general sexual nature and that members of the cult, particularly Dyroff, obeyed him, in order to prove Caudle's accomplice liability pursuant to Ark. Code Ann. §§ 5-2-402-403 (Repl. 1997) concerning Dyroff's sexual involvement with G.F.

We hold that there are sufficient similarities between the Mann-Dyroff anal-intercourse "command" and the G.F.-Dyroff sexual-activities "commands" so that the Mann testimony was neither irrelevant nor unduly prejudicial because it went to prove Caudle's motive or intent. When the purpose of evidence is to show motive, anything and everything that might have influenced the commission of the act may, as a rule, be shown. Burley v.State, 348 Ark. 422, 73 S.W.3d 600 (2002). Also, evidence of other sexual acts is admissible when it tends to show a proclivity towards a specific act with a person or class of persons with whom the accused has an intimate relationship. Spencer v. State, 348 Ark. 230, 72 S.W.3d 461 (2002). In the present case, Mann's testimony referred to Dyroff's act of engaging in sexual activity with members of the religious group-persons with whom she had an intimate (religious) relationship. See Butler v. State, 349 Ark. 252, 82 S.W.3d 152 (2002) (affirming trial court's decision to permit testimony by other victims describing acts of sexual abuse committed by defendant, their minister, under Rule 404(b)). Thus, we cannot conclude that the trial court abused its discretion when it ruled that the probative value of such testimony did not substantially outweigh the danger of unfair prejudice.

Affirmed.

Stroud, C.J., and Hart, J., agree.

1 Appellant Dyroff objected to and moved below concerning more than three statements, but by failing to rely on them in her argument on appeal, she has abandoned any claim of error with respect to them. Echols v. State, 344 Ark. 513, 42 S.W.3d 467 (2001).