Jimmy Ross Welch v. State of Arkansas

ar04-786

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

CACR04-786

AUGUST 31, 2005

JIMMY ROSS WELCH AN APPEAL FROM THE CLARK

APPELLANT COUNTY CIRCUIT COURT [CR2002-115]

V.

STATE OF ARKANSAS HONORABLE JOHN A. THOMAS, JUDGE

APPELLEE

AFFIRMED

Olly Neal, Judge

A Clark County jury convicted appellant, Jimmy Ross Welch, of one count of sexual indecency with a child and sentenced him to six years' imprisonment and a $4,000 fine. On appeal, appellant advances five points of error; they include that (1) the evidence is insufficient to support his conviction; (2) the trial court erred in admitting the notes retrieved by JM because they were not properly authenticated and their admission was prejudicial; (3) his right to a speedy trial was violated when numerous substantial steps were taken without him during critical stages of his case; (4) the trial court erred in refusing to grant a mistrial due to the prosecutor's impermissible comments during closing arguments on appellant's Fifth Amendment right not to testify; and (5) the trial court erred by placing an exhibit into evidence that was never properly admitted. Finding no error, we affirm.

The events from which the charge arose occurred on June 17, 2002, when Gurdon City Marshall, Don Childres, after receiving several complaints about children being near appellant's home, witnessed twelve year old JM go to appellant's window several times, retrieve some papers, and then leave. Childres followed JM around the block, stopped her, and asked her what she was doing. JM gave Childres some notes and letters that she had received from the home. Thereafter, Childres notified Tim Patterson, a criminal investigator for the Clark County Sheriff's Department. Patterson interviewed JM and her mother. JM testified that what attracted her to appellant's home was a yellow sign in his window with her name on it. Intrigued, she went over to the window and grabbed the note. She noted that she saw appellant's legs and hands when she went to get the notes, but not his face. JM acknowledged that the notes scared her because "[n]obody that old should be saying some of those things to somebody my age, in the first place[.]" Later that day, JM contacted the police again and informed them that there was another note for her at appellant's residence. Childres and Patterson watched as JM went to appellant's residence and retrieved the note. Affixed to the note were pictures of bare-breasted women. Subsequently, the police obtained an arrest warrant, and appellant was thereafter charged and convicted.

Appellant argues first that the evidence was insufficient to convict him of sexual indecency. A person commits sexual indecency with a child if being eighteen years of age or older, he solicits another person who is less than fifteen years of age to engage in sexual intercourse, deviate sexual activity, or sexual conduct. See Ark. Code Ann. § 5-14-110(Supp. 2001). Appellant asserts that the State failed to show that he "solicited" JM or that he was the person who wrote the notes JM took from his window sill. There is no merit in either of these arguments.

The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Heape v. State, ___ Ark. ___, ___ S.W.3d ___ (Sept. 22, 2004). 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. The longstanding rule in the use of circumstantial evidence is that the evidence must exclude every other reasonable hypothesis than that of the guilt of the accused to be substantial, and whether it does so is a question for the fact finder. Id. We do not weigh the evidence presented at trial, as that is a matter for the fact finder; nor will we weigh the credibility of the witnesses. Bush v. State, __ Ark. __, ___ S.W.3d __ (Apr. 6, 2005). On appeal, we review the evidence in the light most favorable to the State and consider only the evidence that supports the verdict. Hall v. State, __ Ark. __, __ S.W.3d __ (Apr. 14, 2005). In Heape v. State, supra, the appellant was charged and convicted of sexual indecency with a child. In that case, our supreme court defined "solicit" as follows:

3. to make petition to: ENTREAT; IMPORTUNE ... ;

esp: to approach with a request or plea (as in selling or begging) ...

4: to move to action...

7: to endeavor to obtain by asking or pleading: plead for...; also to seek eagerly or actively

10: to serve as a temptation.

Id. (citing Webster's Third New International Dictionary 2169 (1993)).

In the instant case, most of the notes were written on large pieces of yellow paper. They contained the name and phone number of a lawn-cutting business. Childres testified that: "[t]he business identified on the back of the papers is a lawn cutting card with Welch's phone number on it. Jimmy Welch maintained a grass cutting business in Gurdon and one time ... he left these cards around town." The notes had several messages on them, including:

1. Please bring something to eat, yourself will do! That's cool. Love ya, Jen

2. Nice clit's do u know of one anywhere send to me for pleasures of desires. Love ya, Jen

3. Like to lick nice clits Need a lick Have one & two even three Love ya, Jen

4. I need something to eat any good ideas have you tell me of it Jen Love ya!

Further, Childres testified that appellant called himself "Jen" when he dressed as a woman. Additionally, Wes Sossamon, a deputy sheriff in Clark County, testified that appellant's prints were found on one of the notes. Thus, there exists sufficient evidence from which a fact finder could determine that the appellant, then fifty-seven, solicited JM, then twelve, to engage in sexual intercourse, deviate sexual activity, or sexual conduct. Therefore, we affirm on this point.

Second, appellant argues that the trial court erred in admitting the notes because they were not properly authenticated. We have consistently held that a trial court's ruling in matters relating to the admission of evidence will not be reversed absent an abuse of discretion. K.N. v. State, __ Ark. ___, ___ S.W.3d __ (Feb. 10, 2005). There was no abuse of discretion.

Rule 901(a) of the Arkansas Rules of Evidence provides: "The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what the proponent claims." Among the examples of authentication which conform with Rule 901, is "[t]estimony of a witness with knowledge that a matter is what it is claimed to be." Columbia Mut. Ins. Co. v. Patterson, 320 Ark. 584, 899 S.W.2d 61 (1995).

Here, the evidence showed that appellant lived alone. JM testified that she picked up the notes from appellant's house and that she, on several of those occasions, saw appellant's hands and feet when she retrieved the notes. Also, there was testimony from Childres and Patterson that they watched JM go to appellant's home and retrieve the notes from appellant's window sill. Thus, the testimony of these witnesses was sufficient to satisfy the requirements of authentication under Rule 901. Hence, finding no abuse of discretion, we affirm on this point.

Third, appellant argues that his right to a speedy trial was violated. He further asserts that his right to be present was also violated because he was not present when most of the continuances were requested and granted. We find no error.

The State has twelve months within which to bring a defendant to trial, unless there are periods of delay that are excluded. Ark. R. Crim. P. 28.3 (2004). The speedy-trial period begins to run on the earlier of the date the defendant is arrested and the date he is charged. Ark. R. Crim. P. 28.2 (2004). Here, appellant was arrested and formally charged on June, 20, 2002. Thus, the speedy trial calculation began on June 20, 2002. Between the date of his arrest and the date of his trial (March 29, 2004), a total of 649 days elapsed. Thus, because appellant has made a prima facie showing of a speedy-trial violation, the State must account for 284 days that exceed the allowable twelve-month period under our speedy-trial rule. See Deasis v. State, ___ Ark. ___, ___ S.W.3d ___ (Jan. 13, 2005) (once a defendant establishes a prima facie case of a speedy trial violation, the State bears the burden of showing that the delay was the result of the defendant's conduct or otherwise justified). We now turn to the periods of time proven by the State to be excludable.

A continuance that is requested by the defendant is an excludable period for speedy-trial purposes. Wilson v. State, __ Ark. __, __ S.W.3d __ (Oct. 27, 2004). Further, under Ark. R. Crim. P. 28.3, some excludable periods relevant to the present case are as follows:

(a) The period of delay resulting from other proceedings concerning the defendant, including but not limited to an examination and hearing on the competency of the defendant and the period during which he is competent to stand trial, hearings on pretrial motions, interlocutory appeals, and trial of other charges against the defendant.

....

(c) The period of delay resulting from a continuance granted at the request of the defendant or his counsel. All continuances granted at the request of the defendant or his counsel shall be to a day certain, and the period of delay shall be from the date the continuance is granted until such subsequent date contained in the order or docket entry granting the continuance.

....

(h) Other periods of delay for good cause.

The record clearly demonstrates that well over 284 days were attributable to appellant or were legally justified. Exclusions of time due to the pending mental health evaluation and the numerous requests for continuances by appellant's counsel account for these days. Moreover, there was no violation of appellant's right to be present. A defendant has the fundamental right to be present at any stage of the criminal proceeding that is critical to the outcome of the trial. See Fisher v. State, 84 Ark. App. 318, 139 S.W.3d 815 (2004). When a significant step in the case is taken in an accused's absence, the case must be reversed if it appears that he has lost an advantage or has been prejudiced by reason of a step taken in his absence; however, where there is no possibility of prejudice, there is no reason for requiring the presence of the defendant. In Matthews v. State, 268 Ark. 484, 598 S.W.2d 58 (1980), our supreme court held that continuances granted at a defendant's attorney's request are excludable from the speedy-trial time, even if the defendant does not approve or is not consulted. In light of the foregoing, there was no possibility of prejudice here; the psychiatric evaluation and the continuances requested by appellant's counsel all inured to his benefit, and appellant has shown no prejudice.

In point four, appellant argues that the trial court erred in denying his motion for a mistrial. At trial, appellant twice requested a mistrial, arguing that the State had improperly commented on appellant's constitutional right not to testify, after the prosecuting attorney stated in his closing argument that:

As the Court has already told you, this is our opportunity to go over the evidence. I'm not here to persuade you. I'm not here to convince you. I'm not here to argue in favor of the State. I'm only here to present the evidence, and that's already been done by the testimony that came from this chair. Now there was no contrary evidence. The defense rested without putting on a case[,]

and that:

A lot of questions asked of Deputy Patterson - well, why didn't you do this? Why didn't you do that? Why didn't you do an investigation? Why didn't you put Jimmy Ross Welch under a lamp and question him for hours and drip water on his head? Deputy Patterson drew a reasonable conclusion from the evidence as presented, the information presented to him, this conversation with the victim, and he said, "Yeah, this is a crime. It needs to be considered by a jury."

A mistrial is an extreme and drastic remedy that will be resorted to only when there has been an error so prejudicial that justice cannot be served by continuing with the trial or when the fundamental fairness of the trial has been manifestly affected. King v. State, ___Ark. ___, ___ S.W.3d ___ (Apr. 14, 2005). The circuit court has wide discretion in granting or denying a mistrial motion, and, absent an abuse of that discretion, the circuit court's decision will not be disturbed on appeal. Id. The bottom line on mistrials is that the incident must be so prejudicial that the trial cannot, in fairness, continue. Elser v. State, 353 Ark. 143, 114 S.W.3d 168 (2003).

The right to testify or remain silent is an absolute and "unfettered" right for a defendant only to exercise; unless justified, the State should not comment in any manner upon that basic right in its closing statement. See Elser v. State, supra. When a prosecutor is alleged to have made an improper comment on a defendant's failure to testify, the appellate court reviews the statements in a two-step process. Jones v. State, 340 Ark. 390, 10 S.W.3d 449 (2000). The court first determines whether the comment itself was an improper comment on the defendant's failure to testify; the basic rule is that a prosecutor may not draw attention to the fact of, or comment on, the defendant's failure to testify. See id. A veiled reference to the defendant's failure to testify is improper as well. Id. Should it be determined that the prosecutor's closing argument did indeed refer to the defendant's choice not to testify, the court then determines whether it can be shown beyond a reasonable doubt that the error did not influence the verdict. Id.

The first comment is like the one found in Richmond v. State, 320 Ark. 566, 899 S.W.2d 64 (1995), where our supreme court held the comment that the evidence was "uncontroverted" to be proper. Here, the State's comment simply implied that the State's evidence remained uncontroverted. Regardless, neither comment improperly drew attention to appellant's failure to testify. Therefore, we affirm as to this point.

In his final assignment of error, appellant argues that the trial court erred by placing an exhibit into evidence that was never properly admitted. At trial, defense counsel requested that JM's statement to the police be marked as Defendant's Exhibit Number 3. It was apparently never introduced into evidence, although the court reporter made the notation in the record that it had been. On November 24, 2004, we granted a motion to remand this case to the trial court to settle the record as it related to Defendant's Exhibit Number 3. On January 6, 2005, the trial court issued an order in which it provided:

Although the Defendant referred to the victim's statement during cross examination of the officers and the cross examination of the victim, it is clear from the record that the victim's statement was not introduced into evidence as an exhibit by the State or the Defendant.

The "Exhibits" sheet used by the Court Reporter indicates that the Defendant's proposed Exhibit No. 3, Interview of Jessica, was not offered and was not admitted into evidence.

Hence, since the record has been settled and it was determined that the exhibit had not been admitted into evidence, there was no error, and this point is moot.

Affirmed.

Gladwin and Baker, JJ., agree.