James Lloyd Poyner v. State of Arkansas

ar02-493

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

DIVISION II

CACR02-493

April 2, 2003

JAMES LLOYD POYNER AN APPEAL FROM WASHINGTON

APPELLANT COUNTY CIRCUIT COURT

[CR01-1680]

V. HON. WILLIAM A. STOREY, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

James Lloyd Poyner appeals his conviction on a charge of sexual abuse in the first degree by a Washington County jury. Appellant argues in multiple points that the trial court repeatedly abused its discretion in evidentiary rulings. Specifically, appellant challenges that (1) the trial court erred in excluding as irrelevant appellant's evidence of motive and opportunity to induce a false accusation; (2) the trial court erred in excluding as irrelevant appellant's evidence that the alleged victim had no reluctance in reporting sexual assaults; (3) the trial court erred in excluding as irrelevant appellant's evidence that the mother of the alleged victim had a bias against appellant specific to this case; and (4) the trial court erred in excluding as irrelevant appellant's evidence demonstrating the alleged victim's abrupt change of story under intense questioning by a person with motivation and capacity toinduce false testimony. In addition, appellant argues that evidentiary rulings that are ordinarily within the discretion of the trial court are nonetheless erroneous when, singly or cumulatively, they substantially thwart the presentation of an integrated and coherent theory of defense. We hold that the trial court did not abuse its discretion by its rulings. Thus, we affirm.

The alleged victim, K.K., was eleven years of age at the time of the incident. K.K. testified that on the evening of August 11, 2001, she was at her home alone with her cousin-appellant in this case-after her older sister and a friend had left. According to several witnesses, K.K. and appellant were alone in the house ranging between ten to twenty minutes. During that time period, the disputed sexual incident allegedly occurred. The girl stated that afterwards she and appellant looked for her sister and the other friend. K.K. told Marissa Waldrop, the girlfriend of K.K.'s brother, Kevin, nine days after she had been alone with appellant, on August 20, 2001, that appellant had raped her. K.K. repeated the same story to Officer Malachi Samuels and Detective Michael Parks of the Fayetteville Police Department. K.K. testified that appellant pushed her down on the arm of a sofa and raped her. Afterwards, K.K. went into the bathroom and discovered blood around her vagina. According to K.K., appellant wanted her to tell everyone that she had started her period, even though K.K. testified that she had not yet begun to menstruate, and that they should go and find her sister. The next morning she told her mother about her alleged menstruation. Her mother, however, became suspicious. She elicited from K.K. a statement to the effect that appellant had touched her. K.K.'s mother then asked Marissa Waldrop to talk to K.K. Marissa talked to the girl and eventually obtained the statement that appellant had assaulted K.K.

The defense countered with evidence to show that appellant was indeed alone with K.K. for a short period of time, but that he did not touch or assault her. Instead, K.K. allegedly noticed that she was bleeding while she was in the bathroom. Appellant told her to clean up and that they should look for her sister. The defense pointed to testimony appearing to establish that K.K. did not look upset with appellant when appellant and K.K. found her sister. K.K. seemed fine and comfortable with appellant even during a drive to a family reunion the very next day, sitting in the same car with appellant, and while the reunion took place. The defense pointed out that K.K. made no accusation against appellant until nine days later. Apparently in an effort to focus on K.K.'s delay in accusing appellant, counsel for appellant managed to elicit on cross-examination of K.K. that K.K. had been quick to tell about a prior sexual assault on her by Chris Murray, a family acquaintance. Appellant himself testified that K.K. told him about the Murray incident immediately.

Dr. Mark Thomas, medical director of the Children's Safety Center, testified that he examined K.K. with a fifteen-power colposcope and was able to discern "vascular markings" on the girl's hymen and vaginal vestibule not apparent to the unaided eye. Dr. Thomas did not see any notching or other physical change to the hymen. He testified that without the victim's report, he would not have been able to infer that the markings he observed stemmed from a rape, but would have suspected some other sexual abuse. The defense also introduced reports of laboratory tests of K.K.'s clothing, which indicated no DNA materialmatched appellant. Blood stains on appellant's shirt did not come from K.K. Testing of the couch on which the alleged assault had taken place did not reveal any traces of blood or semen.

After a number of evidentiary rulings adverse to appellant, to be discussed in detail below, the jury convicted him, not of rape, but sexual abuse in the first degree.1 From that conviction stems this appeal.

Before discussing the merits of the arguments, we note that appellant's counsel failed to properly include the notice of appeal either in his abstract or in the addendum. Thus, appellant does not comply with the Rules of the Arkansas Supreme Court and Court of Appeals, Rule 4-2(a)(8) (2002). We could order rebriefing pursuant to the Rules of the Arkansas Supreme Court and Court of Appeals, Rule 4-2(b)(3), but do not do so.2

Abuse of Discretion in Evidentiary Rulings

Generally, the admission or rejection of evidence is within the discretion of the trial court, which we do not reverse in the absence of a manifest abuse of that discretion. Flores v. State, 348 Ark. 28, 69 S.W.3d 864 (2002). 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). All relevant evidence is admissible unless another rule keeps it out. Ark. R.Evid. 402.

Appellant's evidence of motive and opportunity to induce a false accusation

Appellant argues that the trial court's evidentiary rulings precluded him from developing his theory that a family dispute existed at the time of the alleged incident. Specifically, appellant claims that Marissa Waldrop-claimed to be responsible for bringing out K.K.'s ultimate accusations against appellant-had a motive based on that dispute and opportunity to influence K.K. to obtain a false accusation against appellant. It appears that appellant belonged to a part of the family that was at odds with Marissa and K.K.'s immediate family. Appellant's immediate family had intervened in a custody fight between K.K.'s brother, Kevin, and his wife. Marissa, on the other hand, was Kevin's subsequent girlfriend. Appellant proffered testimony to show that Marissa and K.K.'s mother had a motive to cause harm to appellant and his family. Appellant bolsters this claim by the fact that K.K. changed her story and began to accuse appellant only after intensive questioning by her mother and Marissa. The trial court received the proffer of the testimony twice and rejected it twice as being irrelevant and prejudicial. Both proffers occurred during testimony of appellant, when counsel for the defense attempted twice to elicit appellant's statements regarding Marissa's "bone to pick" with his side of the family. The proffer was as follows:

Now, I want to make clear for the record what my evidence is on this point and where I'm going. [Appellant's] mother is prepared to testify that she and Marissa [Waldrop] got into a spit fight over [appellant's] sister and Kevin [K.K.'s brother] and Marissa and Kevin's wife and their children [;] . . . [appellant's] sister Tandra was over at Kevin's and Marissa's house babysitting when she discovered that there was a plot between Kevin and his girlfriend Marissa to hijack Kevin's children which he has with [his] wife. At that time they separated and that's when Marissa found out that Tandra had told Kevin's wife that, about their plot to grab the children. They threwher, this fifteen year old child, out on the street and then [appellant's mother] had a specific agreement with Kevin and Marissa about that she was going to baby-sit those children, she was supposed to stay there, was supposed to protect her, not keep her-let her out of the house and they threw her out of the house and then the child called her mother who came to get her and when she found her there out at the EZ Mart and so the mother went over to Kevin and Marissa's house and asked what was going on and why they had thrown her daughter out and there in an ensuing argument between Marissa and [appellant's mother] about how mad Marissa was at Tandra for exposing this messing with the custody and said by God she would get even with [appellant's mother] and Tandra for the fact that Tandra had interfered in this custody fight and I believe that, that is strong motivation and Marissa is-strong motivation for Marissa and Marissa is the one who was with the child, we heard from the testimony when she told, this whole story came out about what supposedly had happened and it was the first time this story ever came out is under the intense cross-examination as Marissa will verify when she testifies of this, when she was intensely cross-examining that child. So to my mind that creates both motive and opportunity to influence the child. Now, my client says that he didn't do it and the issue is whether or not he didn't do it and the child is lying, the child is either making it up out of whole cloth or she's influenced by somebody and that I'm going to present evidence that Marissa had both motive and the opportunity to influence the child.

The trial court responded by calling this stream of proffer a "convoluted recitation of events" which the jury probably could not follow, which calls for speculation, and which is either not relevant or its relevance is outweighed by any prejudicial effect.

The State argues on appeal only that the proffer established that the testimony was irrelevant. The State does not argue that the proffered evidence's probative value somehow outweighed its prejudicial effect.

We hold that the trial court did not abuse its discretion by excluding the proffered evidence. At the outset, we note that while the proffered testimony indeed was hard to follow, the proffer certainly contains elements tending to point toward a possible bias of Marissa against appellant's family, as well as a motive and opportunity "to get even" with appellant's family. The proffer mentions that Marissa was Kevin's girlfriend, involved inKevin's custody fight with his wife. The proffer explains that Marissa was mad at appellant's sister for telling on her and that Marissa swore to "get even" with appellant's sister and mother. The proffer also made clear that Marissa thus had a motivation to induce K.K. to make a false accusation against appellant and that Marissa had an opportunity to do so when she was alone with K.K., inquiring into what had happened between K.K. and appellant.

However, the proffer sought to elicit that evidence from the wrong witness. The proffer occurred with appellant sitting in the witness stand, not Marissa Waldrop or K.K. Apart from potential hearsay problems not argued by the State, allowing appellant to testify about Marissa's alleged bias would have created the task of cross-examining appellant as a witness about the motivation of someone else. Defense counsel had the opportunity to cross-examine K.K. to show that her accusations resulted from coaching by Marissa. Defense counsel also had the opportunity to impeach Marissa Waldrop's testimony on the basis of alleged bias, but chose not to do so. Finally, defense counsel could have elicited testimony from K.K.'s mother regarding whether or not the mother had any share in such possible bias. The trial court did not abuse its discretion.

Appellant's evidence that K.K. had no reluctance in reporting sexual assaults

Appellant argues that the trial court erred in limiting the testimony of K.K.'s mother regarding the victim's reporting of inappropriate sexual contact by Chris Murray. Appellant attempted to contrast the prompt reporting of the Murray incident with the delayed reporting of the incident involving himself. However, the record demonstrates that appellant hadample chance to make that point. Appellant cross-examined K.K., who told the jury that she reported the Murray incident shortly after it happened but that she told her mother about the incident with appellant several days later. Appellant testified that K.K. reported the Murray incident to him immediately after it had happened. Additionally, K.K.'s sister testified that K.K. did not report the incident with appellant until nine days later. So did Marissa Waldrop.

Under Ark. R. Evid. 403, a trial court may exclude cumulative evidence. See also Lenoir v. State, 77 Ark. App. 250, 72 S.W.3d 899 (2002). Through other testimony, appellant established the time frame as well as the fact that K.K. reported the Murray incident faster. Therefore, we hold that the trial court did not abuse its discretion by its decision.

Appellant's evidence that K.K.'s mother had a bias against him specific to this case

Appellant argues that the trial court erred in excluding as irrelevant his evidence that the mother of K.K. had a bias against appellant. His theory appears to be that K.K.'s mother wanted to protect Chris Murray, the perpetrator of the earlier assault on K.K., and that she wanted to direct her animosity against appellant, not Murray. Therefore, appellant called K.K.'s mother on the stand and proceeded to question her about a letter that she had written concerning the incidents involving Chris Murray and appellant. When the State objected on relevancy grounds and the trial court sustained that objection, appellant proffered testimony and the letter. However, appellant then dropped any questioning regarding possible bias that K.K.'s mother might have as a witness, even though proof of bias is relevant. Pryor v. State,71 Ark. App. 87, 27 S.W.3d 440 (2000) (quoting United States v. Abel, 469 U.S. 45 (1984)). As such, we are now faced with the mere possibility of prejudice, but do not have before us a demonstration of prejudice-which we need to reverse. See Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984). Accordingly, we find no error on that point.

Appellant's Evidence Demonstrating K.K.'s Abrupt Change of Story Under Intense

Questioning by a Person with Motivation and Capacity to Induce False Testimony

Appellant claims that the trial court erred in excluding as irrelevant his evidence purportedly demonstrating K.K.'s abrupt change of story under intense questioning by Marissa, a person with motivation and capacity to induce false testimony. In addition, appellant claims that the evidence, a letter written by Marissa, constitutes evidence of a prior inconsistent statement of K.K. To prove that point, counsel for appellant began to question Marissa during direct examination concerning what appellant calls an "affidavit" written by Marissa. Notably, the State correctly points out that the document does not bear any indications of being an affidavit, but only contains a dated narrative, signed by Marissa Waldrop, of what appears to be statements received from K.K. There is no indication that K.K. ever saw the document or affirmed it as being what she told Marissa.

Arkansas Rule of Evidence 613(b) states that extrinsic evidence of a prior inconsistent statement remains inadmissible unless the witness has "an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon." Under Rule 613(b), extrinsic evidence is admissible, therefore, for purposes of impeachment. Threadgill v. State, 347 Ark. 986, 69 S.W.3d 423 (2002). If the witness, however, admits making the prior inconsistent statement, then extrinsic evidence of that statement is nolonger admissible. Id. When appellant questioned K.K. at trial, he did not elicit testimony that K.K. had given a statement, nor did K.K. have an opportunity to explain the circumstances of what she had said. In addition, there was no dispute that K.K. initially gave a different statement to her family. Therefore, we hold that appellant failed to lay a proper foundation for impeachment under Rule 613(b) regarding the proffered document.

Evidentiary Rulings Substantially Thwarting Defense's Theory of the Case

Finally, appellant contends that the evidentiary rulings made by the trial court cumulatively resulted in his inability to present a defense. In order to uphold a cumulative-error argument on appeal, appellant must show that there were objections to the alleged errors individually, that a cumulative-error objection was raised at trial, and that a ruling was obtained. Robinson v. State, 348 Ark. 280, 72 S.W.3d 827 (2002). We find no such cumulative-error objection in the record. Therefore, we decline to address this issue.

Affirmed.

Stroud, C.J., and Roaf, J., agree.

1 The State amended its felony information from an initial charge of rape to sexual abuse in the first degree on February 8, 2002.

2 It appears from the record on file that appellant filed a notice of appeal on February 21, 2002, following a judgment and commitment order entered February 12, 2002. Thus, the notice of appeal is timely.