Steven J. Johnson v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

STEVEN J. JOHNSON

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CACR05-804

FEBRUARY 22, 2006

APPEAL FROM THE COLUMBIA COUNTY CIRCUIT COURT

[CR-2003-175]

HONORABLE LARRY CHANDLER, CIRCUIT JUDGE

AFFIRMED

Karen R. Baker, Judge

A Columbia County jury convicted appellant Steven Johnson of the rape of his twelve-year-old daughter and possession of child pornography. The jury sentenced him to an aggregate term of thirteen years in the Arkansas Department of Correction. He makes three allegations of error on appeal: (1) The State violated the speedy-trial rules and therefore the charges against appellant should have been dismissed; (2) The trial court erred in refusing appellant's request for a severance of the two offenses; (3) The trial court erred in allowing the affidavit for the search warrant to be admitted into evidence and published to the jury for the reason that it contained inadmissible hearsay. We find no reversible error and affirm.

Appellant sets forth various and numerous facts in his statement of the case. To more directly address appellant's arguments, we set forth the facts determinative of each allegation of error immediately preceding our analysis of the specific argument. On October 30, 2003, the State of Arkansas filed a two-count criminal information against appellant. The first count alleged that appellant had raped his daughter who was under the age of fourteen, and the second count alleged that between June 14, 2003 and July 26, 2003, appellant committed the offense of pandering or possessing visual or print medium depicting sexually explicit conduct involving a child.

The case was originally scheduled for trial on March 4, 2004. On March 3, 2004 the court entered an order of continuance at the request of the defendant and in that order provided that the period of time from March 4, 2004 through May 6, 2004 would be excludable for purposes of a speedy trial. In addition, the criminal docket notes two other continuances, one on May 6 continued until July 1, 2004, and the other on July 1 continued until September 2, 2004. Appellant acknowledges those time periods as excludable for speedy-trial purposes.

However, appellant challenges the exclusion of a continuance granted on December 2, 2004. On that date, the State filed a motion for continuance for the trial scheduled for December 21, 2004. Significantly, this motion stated that counsel for appellant "has no objection to a continuance." The trial court granted the continuance that same day. That order contains no specific time period excludable for speedy-trial calculations. The court simply stated that "from the matters and representations to the Court and for good cause shown, the Court finds that the Motion should be granted."

The record contains no objection to that motion for a continuance nor any refutation of the motion's statement that appellant's counsel had no objection. On January 24, 2005 appellant filed a motion to dismiss for lack of speedy trial citing the excludable March 4, 2004 through May 6, 2004 and July 1, 2004 through September 2, 2004 periods and asserting that the remaining computable time for speedy-trial limitations totaled 366 days in violation of Rule 28.1 and 28.2(a) of the Arkansas Rules of Criminal Procedure requiring dismissal of the charges against appellant. On January 31, 2005 the trial judge denied appellant's motion to dismiss for lack of speedy trial.

Appellant puts forward a number of reasons to support his argument that the period following the December 2 continuance is not excludable from the speedy-trial calculation; however, we are precluded from addressing them because the argument is not preserved.

A contemporaneous objection to the excluded period is necessary to preserve the argument in a subsequent speedy-trial motion. Gondolfi v. Clinger, 352 Ark. 156, 98 S.W.3d 812 (2003). The time to object is when the trial court makes its ruling, not in a subsequent speedy-trial motion. Dean v. State, 339 Ark. 105, 3 S.W.3d 328 (1999). In Bowen v. State, 73 Ark. App. 240, 42 S.W.3d 579 (2001) our supreme court held that failure to timely object to a continuance of a trial to accommodate availability of a State's witness waived any claim to include that time in a speedy-trial calculation. Ark R. Crim. P. 28.1, 28.2,; id. (holding that failure to object to continuance of trial waived argument that time was not excludable from speedy-trial calculation, even if counsel did not receive notification until after order granting the continuance was signed, in light of defendants' obligation to object to exclusion of time at earliest opportunity after receiving notice, but waited until over year later to do so). See also Lynch v. State, 315 Ark. 47, 863 S.W.2d 834 (1993) (holding that time between defendant's last court appearance, December 6, 1991, and a new trial date of August 14, 1992, could be charged against defendant for speedy trial purposes, where at hearing on March 2, 1992, set for purpose of taking plea, but at which time no plea was given, trial court directed that such time be charged against defendant, and defendant offered no objection).

The reason for requiring a contemporaneous objection is to inform the trial court of the reason for disagreement with its proposed action prior to making its decision or at the time the ruling occurs. Ferguson v. State, 343 Ark. 159, 169, 33 S.W.3d 115, 121-22 (2000). A court grants a continuance only upon a showing of good cause; therefore, the time to object to a lack of good cause is at the time the motion is heard. Id. at 170, 33 S.W.3d at 122 (holding that the time to show good cause, and object to the lack of it, is at the time a motion for an order of nolle prosequi is heard).

This approach applied to a speedy-trial calculation is consistent with the purpose of the speedy-trial rule. As our supreme court has explained, the purpose of the right to a speedy trial is not intended to prevent prejudice to the defendant by the passage of time. Jones v. State, 347 Ark. 455, 463, 65 S.W.3d 402, 407 (2002) (citing United States v. MacDonald, 456 U.S. 1, (1981)) That protection is provided by due process and statutes of limitation. Id. Rather, thepurpose is to minimize the possibility of a lengthy incarceration prior to trial and to shorten the disruption of life caused by arrest and unresolved criminal charges. Id. However, even so, the period of delay must be for good cause shown. Id. A speedy trial is a trial conducted according to fixed rules, regulations, and proceedings of law, free from vexatious, capricious, or oppressive delays manufactured by ministers of justice; and what constitutes a speedy trial must be determined from the varying circumstances of each particular case with reference to the practical and efficient operation of the law. Id. See also Campbell v. State, 265 Ark. 77, 576 S.W.2d 938 (1979); Randall v. State, 249 Ark. 258, 458 S.W.2d 743 (1970); Leggett v. Kirby, 231 Ark. 576, 331 S.W.2d 267 (1960).

There is no evidence here of any vexatious, capricious, or oppressive delays manufactured by the ministers of justice. Because appellant did nothing to refute the State's statement that he had no objection to the continuance, nor notified the trial court that he did in fact object to it, he cannot now pursue it as reversible error. Accordingly, we affirm on that point.

Similarly, appellant failed to preserve for appellate review his challenge to the denial of his motion for severance. He specifically argues that the two offenses are unrelated because none of the pornographic material at trial depicted the rape victim and the evidence indicated only that appellant downloaded pornography from the internet five months before the rape and one month after the rape. He argues that the trial court erred in denying defendant's request for a severance because there was "no evidence the child pornography depicted the alleged rape victim or was in some way a part of the alleged rape."

The argument does not address evidence that appellant showed the victim pornographic videos on his computer or testimony of appellant's commentary to the victim that a particular video depicted a twelve-year-old girl engaging in sexual acts with a fifty-year-old man. We understand appellant's assertion that the "only similarity between the two crimes which this Defendant is alleged to have committed is that they are both sex crimes of varying degrees" to be based upon the lack of evidence that the specific pornographic material introduced at trial was the same pornographic evidence shown to the victim prior to the rape.

However, this argument is not preserved for our review because appellant did not renew his pretrial motion for severance at any point during the trial. If a pretrial motion for severance was overruled, an appellant may renew the motion on the same grounds before or at the close of all the evidence. Ark. R. Crim. P. 22.1(b). Severance is waived by failure to renew the motion,and that waiver precludes appellate review. Ware v. State, 348 Ark. 181, 193-94, 5 S.W.3d 165, 172 (2002). Therefore, we affirm on this point as well.

Finally, appellant asserts that the trial court erred in allowing the affidavit for search warrant to be admitted into evidence and published to the jury for the reason that it contained inadmissible hearsay. The affidavit was admitted into evidence during the testimony of a criminal investigator with the Columbia County Sheriff's Department, Truman Young. Appellant objected early in the investigator's testimony on the basis of hearsay. The judge overruled that objection and admitted evidence of the process followed by the investigator in obtaining information regarding the allegations. This testimony was somewhat extensive because the rape occurred in Arkansas during appellant's summer visitation with the victim, but the child resided in Georgia where the initial interviews with the victim took place. This resulted in the focus of the early investigative process being based upon the reports of law enforcement in Georgia.

During Investagator Young's testimony, he explained that he compiled a probable cause affidavit based upon the statement furnished to him by the investigator in White County, Georgia. The warrant for arrest was received into evidence without objection as State's Exhibit No. 1. Following the admission of the arrest warrant, the investigator described the process he undertook to obtain a search warrant. This process included the compilation of an affidavit for a search warrant, drawn largely from the affidavit for arrest. Prior to the submission of the affidavit, the investigator testified at length regarding the compilation of information and the execution of the search. This testimony included the fact that the warrant permitted the officer to seize the computer, computer hardware, disk, hard drive, and pornographic materials. The prosecutor questioned the investigator asking specifically what he did "armed with the affidavit and the search warrant." During this line of questioning, a joint exhibit depicting the layout of appellant's residence, prepared by appellant, was entered into evidence. This led to the investigator's description of turning on the computer, finding a file under the name of the victim,opening it to see scantily clad young girls, and his determination that this was enough to seize the computer without reviewing the entire contents of the computer. The inventory from the seizure included video tapes as well as other items.

Following this line of questioning, the prosecutor offered as State's Exhibit 2, the affidavit for the search warrant, the search warrant, and the search warrant return. At that point, appellant objected to the affidavit asserting it contained hearsay and was therefore inadmissible. He stated that he had no objection to the affidavit being used to refresh the investigator's memory, but that the affidavit contained statements from other people and those people could testify for themselves. The court overruled the objection stating that the affidavit was offered to show that the court authorized the actions that were taken, also noting that there was no attack on the search itself.

On appeal, appellant argues that the only possible purpose for actual introduction of the affidavit for search warrant was to buttress the State's case.

A trial court is accorded wide discretion in evidentiary rulings, and its ruling on a hearsay question will not be reversed unless the appellant can demonstrate an abuse of discretion. Peterson v. State, 349 Ark. 195, 76 S.W.3d 845 (2002). Abuse of discretion is a high threshold that does not simply require error in the trial court's decision, but requires that the trial court acted improvidently, thoughtlessly, or without due consideration. Threadgill v. State, 347 Ark. 986, 69 S.W.3d 423 (2002). Moreover, we do not presume that prejudice results from an evidentiary error, and thus, we will not reverse a trial court's ruling unless the appellant demonstrates prejudice. Gaines v. State, 340 Ark. 99, 8 S.W.3d 547 (2000).

Appellant has demonstrated no prejudice in this case. Here, the victim testified that appellant had shown the victim a pornographic video and the mother of the victim testified that appellant had habitually viewed pornography during the course of the marriage with the victim's mother. While both witnesses included other details in their testimony, the evidence complainedof in the affidavit was testified to in open court by the people providing the information for the affidavit. Therefore, appellant can demonstrate no prejudice.

Accordingly, we find no reversible error and affirm.

Griffen and Vaught, JJ., agree.