Junior Lee Evans v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

JUNIOR LEE EVANS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 04-978

NOVEMBER 2, 2005

APPEAL FROM THE CARROLL

COUNTY CIRCUIT COURT,

WESTERN DISTRICT

[NO. CR03-48 WD]

HONORABLE ALAN DAVID EPLEY,

JUDGE

AFFIRMED

John B. Robbins, Judge

Appellant Junior Lee Evans appeals his convictions for three counts of sexual assault in the second degree, as found by a jury in Carroll County Circuit Court. On appeal, he raises three allegations of error, asserting that the trial court erred in the following ways: (1) by denying his motion for directed verdict, challenging the sufficiency of the evidence to support the verdicts; (2) by failing to order a mistrial; and (3) by denying his request for a continuance. We affirm.

We first consider the sufficiency of the evidence to convict appellant of the charges of second-degree sexual assault against a six-year-old female relative, JK. In his appellate brief, appellant challenges the sufficiency of the evidence to support the convictions on the basis that JK and her mother were not credible witnesses, shown by inherent conflicts in the testimony.

A motion for a directed verdict is a challenge to the sufficiency of the evidence. Rains v. State, 329 Ark. 607, 953 S.W.2d 48 (1997). In making this determination, we review the evidence in the light most favorable to the State, and consider evidence both properly and improperly admitted. Britt v. State, 334 Ark. 142, 974 S.W.2d 436 (1998). Evidence is sufficient if it is forceful enough to compel a reasonable mind to reach a conclusion and pass beyond suspicion and conjecture. Nance v. State, 323 Ark. 583, 918 S.W.2d 114 (1996). On review, this court neither weighs the evidence nor evaluates the credibility of witnesses. Kirwan v. State, 351 Ark. 603, 96 S.W.3d 724 (2003); Rains v. State, supra. The testimony of the victim of a sexual offense, alone, may suffice to provide substantial evidence to support a conviction, and it need not be corroborated. See, e.g., Laughlin v. State, 316 Ark. 489, 872 S.W.2d 848 (1994). Any inconsistencies in a victim's testimony is a matter of credibility for the jury to resolve. Puckett v. State, 324 Ark. 81, 918 S.W.2d 707 (1996); Burns v. State, 323 Ark. 206, 913 S.W.2d 789 (1996).

A person commits sexual assault in the second degree if the person is eighteen years of age or older and he engages in sexual contact with the sex organs of another person, not the person's spouse, who is less than fourteen years of age. Ark. Code Ann. § 5-14-125(a)(3) (Repl. 2001). "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(9) (Repl. 2001).

In a challenge to the sufficiency of the evidence, a defendant must inform the trial court of the specific basis for the challenge, and arguments not raised at trial will not be addressed for the first time on appeal. See, e.g., Abshure v. State, 79 Ark. App. 317, 87 S.W.3d 822 (2002). Further, parties cannot change the grounds for an objection on appeal,but are bound on appeal by the scope and nature of the objections and arguments presented at trial. Id. See also Morris v. State, __ Ark. App. __, __ S.W.3d __ (April 28, 2004).

Appellant's argument on appeal-that there were inherent inconsistencies in the testimony of both the victim and her mother-is not preserved for appellate review because this is not the argument raised in his motion for directed verdict at trial. See, e.g., Abshure v. State, supra. At the close of the State's case, defense counsel moved for directed verdict arguing that the State failed to present proof of every element of the offense because there was no proof of sexual gratification. That argument has been abandoned on appeal, leaving nothing for us to review. We affirm on this point.

Even had appellant properly preserved his argument for review, we would affirm. The following is a brief recitation of the evidence presented at trial viewed in the light most favorable to the State. At the time of the alleged conduct, appellant was fifty-nine-years old. All three charges arose from JK's report of episodes of sexual contact by appellant at a family picnic. JK testified at trial that she was presently seven years old and a second-grade student. JK testified that appellant was her great-uncle. The first incident happened when she was laying across some chairs and watching television. JK said that appellant and his wife ("Aunt Liz") walked by her, he leaned over, and he pinched her bottom through her clothing. JK thought her mother saw him pinch her because she started to get up and come toward her, but she was stopped by another relative. Later in the day, JK testified that she came in the kitchen. There was no one else in the room. Appellant then "came over and put me in his lap, and then he started to rub my privates." JK said that after that, she ran to a bedroom and shut the door until she knew it was safe to come out. The third episode happened when JK was in the kitchen on a bench on her back with her knees bent. Appellant walked through, stopped where she was, and "started rubbing my private again...in the sameplace...on the outside of my clothes." Appellant told her that if she said anything or told anyone that he would choke her. JK recalled that she told her mother what happened later that night. JK's mother Shayla testified that she remembered the Memorial Day family barbecue, and she recalled that JK revealed the abuse to her one night in August 2003. Shayla testified that appellant had also fondled her as a child, between her ages of six to ten. Appellant took the stand, denying that he was ever alone with JK that day or that he ever touched her inappropriately. Appellant said it was generally known that he had entered a guilty plea in 1989, and for that reason he made sure he was never alone with any of the children.

Even were we to consider appellant's argument that focuses on the improbability of the allegations and the inconsistencies in the testimony, we would affirm because that function is left to the jury. The jury's duty is to weigh the evidence, and the jury may believe all or only a part of any witness's testimony. Williams v. State, 351 Ark. 215, 91 S.W.3d 54 (2002). The appellate courts are bound by the fact-finder's determination regarding the credibility of the witnesses. Id.; Harmon v. State, 340 Ark. 18, 8 S.W.3d 472 (2000).

The second point raised on appeal argues that the trial court erred in denying him a mistrial because Shayla's testimony about allegations of prior molestation was inadmissible under Ark. R. Evid. 403 and 404. The State responds that this point is also not preserved for appellate review. We must agree with the State because appellant did not move for mistrial. Generally speaking, a trial judge is under no duty to declare a mistrial sua sponte. See, e.g., Lovelady v. State, 326 Ark. 196, 199, 931 S.W.2d 430, 432 (1996). We typically decline to hold that a judge commits reversible error by failing to order a mistrial on his own motion when none was requested. Edwards v. State, 315 Ark. 126, 864 S.W.2d 866 (1993); Meadows v. State, 291 Ark. 105, 722 S.W.2d 584 (1987); Floyd v. State, 278 Ark. 86, 643 S.W.2d 555 (1982). Stated another way, one cannot complain on appeal where one received all of the relief asked for at trial. Rankin v. State, 329 Ark. 379, 948 S.W.2d 397 (1997); Stephens v. State, 328 Ark. 81, 90, 941 S.W.2d 411, 416 (1997).

To the extent that appellant now argues that the trial court abused its discretion in allowing Shayla to testify about "prior bad acts," this argument is likewise not preserved for review. During Shayla's testimony, she stated without objection that appellant had molested and raped her and that he was convicted of incest. Only upon the State's request to admit into evidence a certified copies of the information and the order of probation did appellant object, complaining that the State was attempting to prove that appellant was a bad person. To preserve an issue for appeal, a defendant must object at the first opportunity. Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000); Pyle v. State, 340 Ark. 53, 8 S.W.3d 491 (2000). In addition, appellant admitted that he had a conviction for incest. Thus, appellant could not demonstrate prejudice as Shayla's testimony was cumulative to appellant's testimony. Merely cumulative evidence is not prejudicial. Threadgill v. State, 347 Ark. 986, 69 S.W.3d 423 (2002).

Appellant's final contention on appeal is that the trial court abused its discretion in denying his motion for a continuance. A trial court shall grant a continuance only upon a showing of good cause and only for so long as is necessary, taking into account not only the request or consent of the prosecuting attorney or defense counsel, but also the public interest in prompt disposition of the case. Ark. R. Crim. P. 27.3 (2003). The grant or denial of a motion for continuance is within the sound discretion of the trial court, which will not be reversed absent abuse of discretion amounting to a denial of justice. See Anthony v. State, 339 Ark. 20, 2 S.W.3d 780 (1999).

When considering a trial court's denial of a motion for continuance that is premised on a lack of time to prepare, the appellate courts review the totality of the circumstances. Wood v. State, 75 Ark. App. 22, 53 S.W.3d 56 (2001). The moving party bears the burden of proving prejudice, and we will not reverse absent a showing of abuse of discretion. Id. Prejudice is demonstrated by showing what an attorney failed to do that could have been done, or what an attorney did that would not have been done, if afforded more time. Id. Additionally, an appellant must not only show prejudice on the part of the trial court, but also that the prejudice amounts to a denial of justice. Murphy v. State, 83 Ark. App. 72, 117 S.W.3d 627 (2003). The State is entitled to amend an information at any time prior to the case being submitted to the jury so long as the amendment does not change the nature or degree of the offense charged or create unfair surprise. Stewart v. State, 338 Ark. 608, 999 S.W.2d 684 (1999).

We examine the chronology of events to apply the preceding statements of law. Appellant was charged initially in November 2003, which alleged that appellant had committed two counts of second-degree sexual assault and one count of third-degree sexual assault:

On or about May 29, 2003, being eighteen years of age or older engages in sexual contact with the sex organs of another person, not the person's spouse, who is less than fourteen years of age and being in a position of trust or authority of the minor, to wit: said defendant rubbed his six year old niece's sex organs[.]

The original charging document comported more closely with an amended version of Ark. Code Ann. § 5-14-125 (Repl. 2003), which did not become effective until July 16, 2003. That amendment added "in a position of trust or authority over the minor" in subsection (a)(4)(A)(iii). However, this information partially comported with the earlier version of this statute because it included the phrase "the sex organs of," which was in the statute after the 2001 legislative session.

The allegedly illegal conduct occurred in May 2003, prior to the effective date of the 2003 Act. The time the offenses are committed determines which law applies to the situation. Smith v. State, 354 Ark. 226, 118 S.W.3d 542 (2003); Holt v. State, 85 Ark. App. 151, 147 S.W.3d 699 (2004).

The State filed an amended information on April 1, 2004, charging appellant with three counts of second-degree sexual assault, stating specifically that:

On or between May 2003 and September 2003, being eighteen years of age or older engage in sexual contact with another person, not the person's spouse, who is less than fourteen years of age, to wit: said defendant engaged in sexual contact with his six year old niece[.]

This charge comports more closely with Ark. Code Ann. § 5-14-125(a)(3) (Repl. 2001).1 A pretrial hearing was conducted on Monday, April 5, 2004, wherein defense counsel objected to the amended information and moved for a continuance, citing unfair surprise and inability to prepare a defense. Appellant's counsel stated that the amendment increased the severity of the third alleged offense, and further that the State had changed the alleged date of the crimes from May 29 to a range of time between May and September. The prosecutor responded that this all arose from one day's conduct, specifically three similar acts occurring at a family barbecue and that the State was not required to provide a specific date. The trial judge found that no prejudice resulted, so he denied the motion for a continuance. On the morning of trial, Wednesday, April 7, 2004, defense counsel renewed the request for a continuance, which was denied.

Viewing the totality of the circumstances, we cannot conclude that the denial of a continuance amounted to a denial of justice. A State cannot, consistently with the DueProcess Clause of the Fourteenth Amendment, convict a defendant for conduct that its criminal statute, as properly interpreted, does not prohibit. Fiore v. White, 531 U.S. 225 (2001); Cousins v. State, 82 Ark. App. 84, 112 S.W.3d 373 (2003). It was proper, and in fact necessary, for the State to amend its information because appellant could not have been convicted under a law not in effect at the time of the alleged crime. Moreover, there was no unfair surprise because appellant was provided the prosecutor's open file, including the underlying facts supporting the arrest warrant, and the prosecutor affirmed that the amendment filed six days prior to trial related to the same investigation of what occurred at the family barbecue. Appellant has failed to demonstrate what his counsel would have done if given more time, and therefore fails to demonstrate prejudice. We hold that the denial of the request for a continuance did not amount to a denial of justice. See Murphy v. State, supra.

Affirmed.

Gladwin and Baker, JJ., agree.

1 This charge erroneously omits the phrase "the sex organs of" from the charge, but appellant made no objection or argument that the charge itself was defective. The jury was instructed with the correct statement of law.