Rick Wayne Lamie v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

RICK WAYNE LAMIE

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 03-749

JUNE 30, 2004

APPEAL FROM THE SEBASTIAN

COUNTY CIRCUIT COURT

[NO. CR-2002-49-G]

HONORABLE JAMES ROBERT

MARSCHEWSKI, JUDGE

AFFIRMED

John B. Robbins, Judge

Appellant Rick Wayne LaMie was convicted by a Sebastian County Circuit Court jury of first-degree sexual abuse of his stepson, and he was sentenced to six years in the Arkansas Department of Correction. On appeal, appellant argues two bases for reversal: (1) that there is insufficient evidence to support his conviction, and (2) that the trial court abused its discretion in admitting into evidence three photographs depicting homosexual pornography. We hold that sufficient evidence supports the conviction, and we hold that no reversible error occurred in the admission of the photographs.

Appellant first asserts that the evidence presented at trial was insufficient to sustain a conviction. Appellant properly moved for a directed verdict at all necessary points during the trial. A motion for a directed verdict is a challenge to the sufficiency of the evidence. Miles v. State, 350 Ark. 243, 85 S.W.3d 907 (2002); Britt v. State, 344 Ark. 13, 38 S.W.3d 363 (2001). The test for such motions is whether the verdict is supported by substantial

evidence, direct or circumstantial. Miles, supra. Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. Id. On appeal, we review the evidence in the light most favorable to the appellee and consider only the evidence that supports the verdict. Id.

Appellant was accused of sexually abusing his stepson between June 2000 and August 2001. Arkansas Code Annotated section 5-14-108(a)(4) (Repl.1997) defines this crime, stating that "[a] person commits sexual abuse in the first degree if ... [b]eing eighteen (18) years old or older, he engages in sexual contact with a person not his spouse who is less than fourteen (14) years old." "Sexual contact" means any act of sexual gratification involving the touching, directly or through clothing, of the sex organs, buttocks, or anus of a person or the breast of a female. Ark. Code Ann. § 5-14-101(8) (Repl.1997). Section 5-14-108 has since been repealed by Act 1738 of 2001, which became effective August 13, 2001.1

The testimony presented to the jury revealed that appellant was married to June LaMie for approximately three years between January 1999 and April 2002. Appellant's date of birth is May 25, 1963. June had a son, C.T., who was living with them and whose date of birth is January 20, 1988. After the marriage deteriorated and appellant had left the residence, C.T. revealed to his mother that, during the summer of 2000 when C.T. was age twelve, appellant had inappropriately touched him. C.T. explained the incidents in detail in court when he was fourteen years old. C.T. testified that in the first incident, he and appellant were watching television and playing video games; they were both on a bed. C.T. described that appellant rubbed his buttocks and touched his genitals, making contact with his skin. C.T. described another incident that occurred in June 2001 when his mother was out of town. C.T. said that as they watched television in a bedroom, appellant again rubbed his buttocks and touched his genitals. C.T.'s mother testified that she believed her son to be telling the truth. June was the person who suggested that the police look into the home computer because appellant kept the password. During the course of trial, the State introduced into evidence three photographs stored on appellant's computer under "my documents" and "my pictures" that depicted males engaging in explicit sexual acts. Appellant denied the accusations of abuse and expressed disappointment and shock at the allegations. Appellant said he did not know how the images came to be on their home computer. The jury retired to consider the proof in the case and, after submitting several questions to the judge and deliberating for about four hours, returned a guilty verdict. This appeal resulted.

Appellant challenges the sufficiency of the State's proof of sexual abuse, primarily pointing to the potential motives for June and her son to fabricate a story. However, we view the evidence in the light most favorable to the State and leave credibility determinations to the finder of fact. Phillips v. State, 344 Ark. 453, 40 S.W.3d 778 (2001). The trier of fact is free to believe all or part of any witness's testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id. Moreover, a victim's uncorroborated testimony can be sufficient to support a conviction if the statutory elements of the offense are satisfied. Laughlin v. State, 316 Ark. 489, 872 S.W.2d 848 (1994). In the present appeal, the child identified appellant, an adult male, as the perpetrator making physical contact with the child's buttocks and genitals by rubbing them on at least two occasions when the child was under the age of fourteen. The jury was the proper body to determine who was telling the truth, and to determine, if the touching occurred, for what purpose it was done. This evidence is sufficient to sustain the conviction.

The second point on appeal concerns the discretionary decision of the trial judge to permit the State to introduce three computer-generated photographs of males engaging in graphic homosexual activity. Prior to trial, the judge conducted a hearing on the admissibility of the photographs at the State's request. These photos were taken from the hard drive of appellant's computer, and a State Police investigator, Kim Warren, testified that these had to have been actively down-loaded into a file. Warren offered an opinion that of the sixty-six images found on the computer, at least ten photographs were of obviously underage males. She explained that the pictures showed some of the males in pre-puberty or just post-puberty.

The State sought to admit this evidence under Arkansas Rule of Evidence 404(b) as establishing appellant's motive, opportunity, intent, preparation, or plan. Appellant sought to exclude these materials as irrelevant or, even if relevant, more prejudicial than probative. The trial judge ruled that the images were relevant in the State's presentation of motive or intent, and he considered it relevant that the images showed homosexual behavior between males, regardless of whether they were specifically under age eighteen. Attempting to reduce the prejudice to appellant, the trial judge limited the number of photographs to be introduced to three, but he permitted the State to have Warren testify to the total number of images retrieved and to the content of the images. At the beginning of trial, appellant's counsel renewed his motion to exclude the photographs as irrelevant and alternatively more prejudicial than probative. The trial judge adhered to his first ruling, reiterating that he had tried to negate the prejudicial aspect by limiting the number of photographs.

At trial, a Greenwood police detective, Heather McCaslin, testified that June gave her permission to take the home computer, and she recorded web sites either stored on the hard drive or saved to a favorites file on the computer. The names of those sites were "Unique Preteen," "Russian Boys," "Pleasure Boys," "Call Boys," "New Young Boys," and "GayUnderground." McCaslin testified that she turned the computer over to the Arkansas State Police, specifically to Kim Warren. There was no objection to McCaslin's testimony thus far. The detective began to explain more about what was in the web sites when defense counsel objected. The trial judge cautioned the State and instructed the jury to disregard her last response.

Warren took the stand and said that she had been a sex-crime investigator for the State Police for about twelve years. Warren conducted the forensic analysis of the computer and retrieved data from the hard drive. Of the many images retrieved, Warren said that there was male sexual activity in fifteen of them that drew her interest. Warren identified the photographs as three of the images taken from the computer. Warren agreed that she had no way of knowing who accessed these images on the home computer; she could only determine the date that the files were created. The three photographs were introduced into evidence without objection at that time, given the pretrial ruling to admit these three.

Also relevant to this issue was the testimony of C.T. and C.T.'s mother, who both stated that they used the home computer on occasion, but that appellant kept the password. Neither C.T. nor his mother were permitted access until "logged on" by appellant.

We will not reverse a trial court's admission of photographs absent an abuse of discretion. See Stewart v. State, 338 Ark. 608, 999 S.W.2d 684 (1999). Our supreme court has repeatedly stated that when photographs are helpful to explain testimony, they are ordinarily admissible. Barnes v. State, 346 Ark. 91, 55 S.W.3d 271 (2001); Williams v. State, 322 Ark. 38, 907 S.W.2d 120 (1995).

In the present case, investigator Warren testified about the images she was able to retrieve from the computer, and these three images helped to explain her testimony. In addition, the fact that these images were on the computer, access to which was controlled by a password known only to appellant, was circumstantial evidence that, although he was married to the victim's mother, appellant had interest in male-to-male sexuality, and that the touching was for sexual gratification, a relevant fact for the State to prove, rather than by mistake. Therefore, we hold that no reversible error was committed in the finding that these three photographs were relevant to the elements of the crime that the State had the burden to prove.

Appellant also argues that even if the photographs were deemed relevant, they were more prejudicial than probative and that the trial judge clearly erred in finding to the contrary. We disagree and hold that no reversible error occurred. We affirm because the photographs are merely cumulative to the testimony already offered to the jury. Investigator Warren testified about the multitude of images retrieved from the computer and narrowed her investigation to about fifteen that showed explicit male-to-male sexual conduct. The images shown to the jury, limited to three, were cumulative to her earlier admitted testimony. The mere fact that photographs are inflammatory or cumulative is not, standing alone, sufficient reason to exclude them. See Newman v. State, 353 Ark. 258, 106 S.W.3d 438 (2003); Weger v. State, 315 Ark. 555, 869 S.W.2d 688 (1994).

Affirmed.

Pittman and Hart, JJ., agree.

1 The Act created a new offense entitled "sexual assault." Appellant was charged with and convicted of the earlier law on sexual abuse. Appellant makes no challenge to whether he was charged or convicted under the correct law.