James Dowden, Sr. v. State of Arkansas

ar02-913

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JUDGE KAREN R. BAKER

DIVISION I

JAMES DOWDEN, SR.

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CACR02-913

APRIL 2, 2003

APPEAL FROM THE MARION COUNTY CIRCUIT COURT

[CR-01-28]

HONORABLE ROBERT MCCORKINDALE II, CIRCUIT JUDGE

REVERSED AND REMANDED

Appellant, James Dowden, Sr., was convicted of sexual abuse in the first degree and violation of a minor in the second degree in a bench trial in Marion County Circuit Court. He was sentenced to six years on each charge to run concurrently, with three years suspended on the sexual abuse charge and six years suspended on the violation of a minor charge. He has two arguments on appeal. First, appellant argues that he was denied the right to a trial by jury and, therefore, his convictions should be reversed. Second, appellant argues that the State failed to prove the necessary elements of forcible compulsion and, therefore, his conviction for sexual abuse in the first degree should be reversed and dismissed. We reverse and remand.

Appellant's daughter testified at trial that her father sexually abused her. Specifically, she testified that in April 1999, her father came into her room and got into bed beside her. She stated that he put his hands "where they shouldn't have been, on my chest and everything." He put his

hands underneath her clothing. He also "touched the lower part, the bottom, down there. The private part." She stated that he was touching her "with his private part. He was rubbing it." After telling him to stop, appellant eventually left her room. She also testified that on another occasion, when appellant had picked her up at a friend's house, he asked her to sit on his lap. She stated that his pants were down at the time.

David Timby, an employee of the Arkansas State Police as a civilian investigator in the Family Protection Unit, testified that he interviewed appellant in regard to the sexual abuse allegations. He stated that appellant initially denied having inappropriate contact with his daughter; however, appellant later admitted "to fondling his daughter on the breast in the vaginal area, skin to skin."

Appellant testified on his own behalf. While admitting that at the time the allegations were made that he had a drinking problem, he denied ever sexually abusing his daughter. He specifically denied getting into bed with her and having sexual contact with her in April 1999. He stated that he used to wrestle with his daughter, and "I might have touched her on other places."

Preservation of Davis's right against double jeopardy requires that we consider the challenge to the sufficiency of the evidence before we consider alleged trial error even though the issue was not presented as the first issue on appeal. Davis v. State, 350 Ark. 22, 79 S.W.3d 273 (2002) (citing Price v. State, 347 Ark. 708, 66 S.W.3d 653 (2002); King v. State, 323 Ark. 671, 916 S.W.2d 732 (1996)). Arkansas Rule of Criminal Procedure 33.1(b) (2002) states that:

In a nonjury trial, if a motion for dismissal is to be made, it shall be made at the close of all of the evidence. The motion for dismissal shall state the specific grounds therefor. If the defendant moved for dismissal at the conclusion of the prosecution's evidence, then the motion must be renewed at the close of all of the evidence.

Further, subsection (c) states that:

The failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required in subsections (a) and (b) above will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the verdict or judgment. A motion for directed verdict or for dismissal based on insufficiency of the evidence must specify the respect in which the evidence is deficient. A motion merely stating that the evidence is insufficient does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense. A renewal at the close of all of the evidence of a previous motion for directed verdict or for dismissal preserves the issue of insufficient evidence for appeal.

Appellant herein failed to preserve his argument in two respects. First, appellant failed to make a motion specific enough to preserve the issue. Second, appellant failed to renew his motion at the close of all the evidence.

At the close of the State's case, appellant's counsel made the following motion:

Your Honor, at this time the defendant would move for a directed verdict of not guilty. The State's burden is a high burden, it's proof beyond a reasonable doubt. There appears to be all sorts of doubt about the events that occurred and I'd ask the Court to rule the State has not met it's burden of proof.

The trial judge denied the motion. At the conclusion of the evidence, the following dialogue occurred:

PROSECUTOR: That's all I have, Your Honor.

THE COURT: You may stand down. Is there anything else?

DEFENSE: No further witnesses for the defendant, Your Honor.

PROSECUTOR: Nothing for the State, Your Honor.

. . .

THE COURT: Okay. Is there anything else?

PROSECUTOR: I believe not, Your Honor.

THE COURT: Based on the testimony here, the Court finds beyond a reasonable doubt that the defendant is guilty as charged. . .

A directed-verdict motion must apprise the court of the specific basis on which the motion is made. See Spencer v. State, 348 Ark. 230, 72 S.W.3d 461 (2002). This court has also held that a motion for directed verdict must be renewed at the close of all of the evidence. See Donihoo v. State, 325 Ark. 483, 931 S.W.2d 69 (1996). Clearly, appellant failed to preserve this argument for our review because his motion for directed verdict was a general motion, and it was not renewed at the close of all of the evidence. Thus, we do not address the merits of this argument.

Appellant also argues that he was denied the right to a trial by jury and, therefore, his convictions should be reversed. The State concedes error on this point. The Arkansas Constitution provides that an accused in a circuit court case has a right to a trial by jury and that the right shall remain inviolate unless waived by the parties in the manner prescribed by law. Ark. Const. art. 2, § 7 and § 10. The manner prescribed by law is set out in Arkansas Rules of Criminal Procedure 31.1 - 31.3. In order for a defendant to waive his right to a jury trial, he must do so personally either in writing or in open court and the waiver must be assented to by the prosecutor and approved by the court. Ark. R. Crim. P. 31.1, 31.2. A criminal defendant bears no burden of demanding a trial by jury and the contemporaneous objection rule is inapplicable to the failure to afford a trial by jury. Reaser v. State, 47 Ark. App. 7, 883 S.W.2d 851 (1994) (citing Duty v. State, 45 Ark. App. 1, 871 S.W.2d 400 (1994)).

In Calnan v. State, 310 Ark. 744, 749, 841 S.W.2d 593, 596 (1992), our supreme court stated:

In every criminal trial where there is a right to trial by jury, the court should proceed as if a jury were to be used unless waiver takes place in accordance with the law. . . . The burden is on the trial court to assure that, if there is to be a waiver of the right to jury trial in a criminal case, it be done in accordance with the Rule by which we have implemented our Constitution.

In Winkle v. State, 310 Ark. 713, 841 S.W.2d 589 (1992), the supreme court reversed the appellant'sconvictions and held that he was entitled to a jury trial even though the appellant and his attorney received written notice that his case had been set for non-jury trial and at trial neither the appellant nor his counsel requested a jury trial or objected to proceeding without a jury. The right to a trial by jury is not subject to forfeiture for failure to comply with procedural rules and the law providing the manner of the waiver is designed to assure that the jury trial right is not forfeited by inaction on the part of the defendant. Winkle, supra; Calnan, supra.

In the present case, the record does not reveal a written waiver of appellant's right to a jury trial, nor does it indicate that appellant waived such right during open court proceedings. The record does indicate that appellant's counsel and the prosecutor agreed that the case would be tried without a jury, and the case was set to be tried without a jury on February 4, 2001. However, appellant was not present when this agreement was presented to the trial judge. Consequently, we must reverse and remand this case for a new trial.

Gladwin and Neal, JJ., agree.