Adam Huskey v. State of Arkansas

Annotate this Case
ar04-009

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

ADAM HUSKEY

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 04-9

October 27, 2004

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT,

FOURTH DIVISION [CR2003-464]

HONORABLE JOHN W. LANGSTON,

CIRCUIT JUDGE

AFFIRMED

John F. Stroud, Jr., Chief Judge

Appellant, Adam Huskey, was tried by a jury and found guilty of rape in a case involving his stepdaughter, T.B., who was seven years old at the time of the offense. He was sentenced to ten years in the Arkansas Department of Correction. We affirm the conviction.

For his first point of appeal, appellant contends that the evidence was insufficient to support the verdict. In making this argument, appellant acknowledges that "even though the testimony of an alleged victim standing alone is sufficient evidence to support a conviction, such testimony does not, of necessity, compel or mandate that a conviction be upheld on a sufficiency of the evidence argument." He cites no legal authority for this proposition, and his argument is not convincing as it pertains to this case. Appellant's argument essentially challenges the credibility of the victim's testimony.

Our supreme court has repeatedly held that the testimony of a rape victim does not have to be corroborated by other testimony. Sherrill v. State, 329 Ark. 593, 952 S.W.2d 134 (1997). Moreover, the testimony of a child rape victim, showing penetration, need not becorroborated, nor is scientific evidence required. Id. Furthermore, while appellant did not challenge the prosecutor's manner of questioning the child below, he argues on appeal that the "prosecutor clearly manipulated the child in claiming the appellant had placed his penis in her mouth . . . ." Not only is appellant barred from making such an argument for the first time on appeal, McClellan v. State, 81 Ark. App. 361, 101 S.W.3d 864 (2003), but such an argument would be without merit even if the prosecutor could be said to have asked leading questions. Our supreme court has approved the practice of examining a child witness through leading questions as being within the sound discretion of the trial judge, Jackson v. State, 290 Ark. 375, 720 S.W.2d 282 (1986), and appellant has not demonstrated an abuse of that discretion. Finally, our supreme court has made it patently clear that the jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony. McCoy v. State, 354 Ark. 322, 123 S.W.3d 901 (2003).

Here, the victim, T.B., testified that she was eight years old at the time of trial and that appellant used to be married to her mother. She stated that she was in the second grade last year when the incidents occurred. She said that the incidents with appellant happened at home more than once; that appellant would make her play a game where he would blindfold her, pull his pants down, put things such as chocolate syrup, peanut butter, maple syrup, or corn "juice" on his "private," and tell her to taste them. She said that she would have to lick on his private part; that she knew what it was because she could see just a little through the blindfold; and that he would tell her to lick it up and down. T.B. stated that she had never seen a private part before; that it was shaped like an oval; that he would touch her on the back of her head to push her forward; that he made her put his private part in her mouth; and that he told her to suck on it. She testified that he made her play the game more than five times.

T.B. testified that appellant would also touch her on her behind in order to see "if she wiped herself good"; that he would pull her pants and underwear down to her knees; that he would have her bend forward; and that he would lick her. She said that they played the other game more often, sometimes every day; and that they would play it while her mother was at work or at the store. She stated that sometimes she told him that she did not want to play and that when she did, they would not play that day. She said that she did not tell her mother, Stephanie Huskey, at first because she was afraid that appellant would get mad. She stated that she finally told her mother in October of last year because she was mad at appellant; that her mother confronted appellant, who denied it; and that her mother called appellant's sister, Nicole. She said that when Nicole came over, she told Nicole what had happened. T.B. stated that appellant showed her how to play the game in the beginning by using a straw, but that after that it wasn't a straw. She said that she knew it wasn't a straw because she could see it, because it was hairy, and because it felt like skin. She said that when they played the game, he would either be lying down or sitting on her mother's bed. She said that she would be on the floor and that he would be in front of her with his legs open, on either side of her.

We find that T.B.'s testimony alone constitutes substantial evidence to support the verdict, and that appellant has presented no legal authority or argument that would convince us otherwise.

For his second point of appeal, appellant contends that the trial court "erred in admitting 404(b) evidence of the defendant's sexual activity with his wife." He argues that the trial court erred in denying his motion in limine to bar testimony that he and Stephanie had engaged in activity similar to that alleged by T.B., i.e., that Stephanie would lick food products off of his penis. The testimony was elicited during the State's cross-examination of appellant, rather than in direct examination of Stephanie. In making his argument, appellant relies primarily upon Rule 404(b) of the Arkansas Rules of Evidence, but he also relies upon Rule 403.

Rule 403 of the Arkansas Rules of Evidence provides:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Rule 404 (b) of the Arkansas Rules of Evidence provides:

(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

(Emphasis added.) In matters relating to the admission of evidence under Arkansas Rule of Evidence 404(b), a trial court's ruling is entitled to great weight and will not be reversed absent an abuse of discretion. Cook v. State, 345 Ark. 264, 45 S.W.3d 820 (2001). Evidence offered under Rule 404(b) must be independently relevant, thus having a tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Id. The list of exceptions to inadmissibility in Rule 404(b) is not an exclusive list, but instead, it is representative of the types of circumstances under which evidence of other crimes or wrongs or acts would be relevant and admissible. Id.

The State counters appellant's argument by asserting that the evidence was not offered to show that appellant had a bad character, but rather that he had a proclivity for this particular type of sexual activity, which involved the placement of various food products on his penis. We agree that this evidence fits within the types of exceptions listed in Rule 404(b), and that it has a tendency to make the existence of the similar facts testified to by the child victim more probable than they would be without the evidence. Moreover, we find that the trial court did not abuse its discretion in balancing the evidence under Rule 403 and finding that its probative value outweighed the danger of unfair prejudice. Consequently, we find no abuse of discretion in the trial court's admission of this testimony.

For his third and final point of appeal, appellant contends that the trial court "erred in refusing [to grant him] a continuance so that newly discovered documentary evidence could be authenticated." We find no abuse of the trial court's discretion in denying this request.

A motion for continuance is addressed to the discretion of the trial court and will not be reversed absent an abuse of discretion. Ellison v. State, 354 Ark. 340, 123 S.W.3d 874 (2003). The burden of proving an abuse of discretion due to prejudice resulting from the denial of a continuance is upon the appellant, and the appellant must demonstrate prejudice before this court will consider a trial court's denial of a continuance to be an abuse of discretion. Id. When deciding whether a continuance should be granted, the following factors are to be considered by the trial court: (1) the diligence of the movant; (2) the probable effect of the testimony at trial; (3) the likelihood of procuring the attendance of the witness in the event of a postponement; (4) the filing of an affidavit, stating not only what facts the witness would prove, but also that the appellant believes them to be true. Green v. State, 354 Ark. 210, 118 S.W.3d 563 (2003). Additionally, when a motion for continuance is based on a lack of time to prepare we will consider the totality of the circumstances, and our supreme court has also held that a lack of diligence alone is sufficient cause to deny a continuance. Id.

Here, a typewritten letter was supposedly found on appellant's car approximately eleven days prior to trial. The typewritten "signature" on the letter was that of "Steph," supposedly the victim's mother. Appellant sought additional time in which to have the document fingerprinted to see if any of the mother's fingerprints were discernable, which would help to authenticate the letter and make it admissible at trial. In making his argument to the trial court, appellant explained that the Little Rock Police Department's fingerprint expert had been gone and was not expected back until October 15, 2003. The letter was found September 26 or 27, 2003; the motion for continuance was filed October 6, 2003; and the motion was renewed on October 8, 2003, the first trial date. The trial court denied the continuance both times, but informed the defense that it would be allowed to ask Stephanie if she had made the statements contained in the letter.

Even though the trial court denied appellant's motion for a continuance on this basis, later in the proceedings a week-long recess was ordered for a different reason, with the trial to reconvene on October 15, 2003. On that date, appellant explained to the court that during the recess he had attempted to have the letter fingerprinted; that LRPD fingerprint experts had agreed to do the work if it was approved by the prosecutor; that the prosecutor approved it, but that "yesterday afternoon" he was informed that the LRPD fingerprint experts had been forbidden by their superiors to do a fingerprint analysis because the case had been investigated by the Pulaski County Sheriff's Office and that they could not cross jurisdictional lines without a court order. Noting that appellant was not indigent, the court asked if any attempts had been made to have the fingerprint analysis performed privately, to which appellant responded:

The only fingerprint analysis expert listed in the yellow pages for Little Rock - I called the number listed for them and some lady answered in Spanish and indicated they did not speak English and it was a household phone number and there is no other private fingerprint analysis available in Little Rock or the surrounding area that is listed in the Little Rock phone directory that I was able to locate. That is the first thing I did before I even tried to go through the police department last week.

The request for continuance was denied by implication because the court then called for opening statements.

We find no prejudice in the trial court's denial of appellant's two initial motions for continuance because a week-long continuance was granted for another reason, during which appellant still did not procure the fingerprint evidence. Moreover, based upon the trial court's questioning of appellant's counsel before again denying the request after the week-long recess, we believe that it is entirely possible that the trial court was not convinced that truly diligent efforts were being made to secure the fingerprint information. Consequently, we find no abuse of the trial court's discretion in refusing to grant the continuance.

Affirmed.

Pittman and Crabtree, JJ., agree.