James McNichols v. State of Arkansas
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NOT DESIGNATED FOR PUBLICATION
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CACR07-1285
Opinion Delivered June
JAMES McNICHOLS
APPELLANT
V.
STATE OF ARKANSAS
18, 2008
APPEAL FROM THE LONOKE
COUNTY CIRCUIT COURT
[NO. 2007-238]
HONORABLE PHILLIP T.
WHITEAKER, JUDGE
APPELLEE
AFFIRMED
JOSEPHINE LINKER HART, Judge
A jury found appellant, James McNichols, guilty of two counts of rape. On appeal, he
argues that (1) the evidence was insufficient to support the convictions; (2) the circuit court
abused its discretion in permitting the State to excessively lead the child-victim; (3) the circuit
court abused its discretion in admitting hearsay evidence in the form of handwritten notes;
(4) the circuit court abused its discretion in denying his motion for a continuance. We affirm.
Appellant challenges the sufficiency of the evidence to support the two rape
convictions. Rape is in part defined as engaging “in sexual intercourse or deviate sexual
activity with another person ... [w]ho is less than fourteen (14) years of age.” Ark. Code Ann.
§ 5-14-103(a)(3)(A) (Supp. 2007). “Deviate sexual activity” is defined in part as “any act of
sexual gratification involving ... [t]he penetration, however slight, of the labia majora or anus
of a person by any body member ....” Ark. Code Ann. § 5-14-101(1)(B) (Repl. 2006).
The seven-year-old victim described at trial two instances when appellant put his finger
inside her “privates” and two instances when appellant put his finger inside her “bottom.”
Appellant asserts that the State failed to prove penetration, as the victim’s testimony regarding
penetration was not reliable, was not forceful enough to pass beyond mere conjecture, was
inconsistent, was obtained almost exclusively through leading questions, did not give a full
and detailed accounting of appellant’s actions, and was not supported by physical evidence.
A rape victim’s testimony, however, may constitute substantial evidence to sustain a
conviction of rape, even when the victim is a child. Gatlin v. State, 320 Ark. 120, 895 S.W.2d
526 (1995). Moreover, the rape victim’s testimony need not be corroborated, nor is scientific
evidence required, and the victim’s testimony describing penetration is enough for a
conviction. Id. Given this standard of review, the victim’s testimony was sufficient evidence
of penetration to support the convictions.
Appellant further contends that the circuit court abused its discretion in permitting the
State to “excessively lead the child witness,” and went “well beyond what would be necessary
to elicit the truth.” At trial, however, appellant did not argue that the leading was “excessive.”
Rather, appellant objected “to the leading nature of these questions.” Thus, the argument was
not raised below and consequently was not preserved for appeal. See, e.g., id. Moreover,
leading questions are allowed if the witness is a very young victim of sexual crimes and if it
appears to the trial judge that such questions are necessary to elicit the testimony. Johnson v.
State, 71 Ark. App. 58, 25 S.W.3d 445 (2000). The circuit court’s decision to allow leading
questions will not be overturned absent an abuse of discretion. Id. Here, the crime was a
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sexual crime, the child’s testimony was necessary to support the charges, and the court noted
the age of the child and the child’s “difficulty testifying due to the sensitive and emotional
nature of the testimony.” Thus, the circuit court did not abuse its discretion in permitting
leading questions.
Appellant further argues that the circuit court abused its discretion when it admitted
handwritten notes taken by a witness, Robin Atwell, who was the child-victim’s babysitter.
According to Atwell, she made the notes during a conversation with the victim after the
victim had a bad dream, awoke, and was crying. Though Atwell did not testify about the
contents of the notes, the notes were admitted into evidence over appellant’s hearsay
objection. On appeal, he asserts that the “introduction of these statements into evidence is an
attempt to corroborate the alleged victim’s testimony at trial by an improper means.”
The Arkansas Supreme Court has previously concluded that the circuit court’s
erroneous admission of hearsay testimony reporting an out-of-court statement of the rape
victim, a minor, was rendered harmless where the rape victim’s own trial testimony
independently evidenced her rape and the rape victim was available at trial for
cross-examination by the appellant. Clark v. State, 323 Ark. 211, 913 S.W.2d 297 (1996).
The same applies here.
Finally, appellant argues that the circuit court abused its discretion in denying
appellant’s pro se motion for a continuance to hire private counsel. On the day of trial,
September 12, 2007, and following jury voir dire, counsel for appellant submitted to the court
appellant’s pro se motion for a continuance. In the typed motion, appellant alleged that he
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had not met with his court-appointed counsel until the two days before trial, that he was not
shown any documentation in the case file and instead had only been shown the two taped
interviews of the victim, that his appointed counsel discussed only the State’s plea offer, and
that counsel did not “contact anyone on the friend/family/contact list that I provided him nor
did he subpoena them to appear on my behalf.” He further wrote that he spoke with a private
attorney on the day before trial, and the attorney advised him that it would take sixty to
ninety days to prepare for trial. Appellant’s counsel disputed these allegations, asserting that
they had met two days before trial and had reviewed what he described as the “crucial”
evidence in the case, and he gave advice and did not just discuss how to “settle” the case.
Further, counsel noted that he met with appellant on August 28 and appellant gave him a list
of “contact people,” but the majority of the persons lived in Kentucky, and he told appellant
that because most of them were out of state, there might be “subpoena problems,” and
appellant needed to contact them and have them there. Counsel further stated that appellant
told him two days before trial that two witnesses would be present at trial. Counsel also noted
that appellant had spoken with “Mr. Hancock” the day before. The State objected to the
motion, noting that it had “gone to great expense to bring in two witnesses from California
and two other witnesses from Indiana for today’s trial.” The court denied the motion.
Appellant asserts on appeal that the circuit court abused its discretion in denying the
motion, as he showed good cause for the continuance and was prejudiced by the denial. The
refusal to grant a continuance in order for the defendant to change attorneys rests within the
discretion of the trial judge, and the decision will not be overturned absent a showing of
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abuse. Edwards v. State, 321 Ark. 610, 906 S.W.2d 310 (1995). If a change of counsel would
require the postponement of trial because of inadequate time for a new attorney to properly
prepare a defendant’s case, the court may consider such factors as the reasons for the change,
whether other counsel has already been identified, whether the defendant has acted diligently
in seeking the change, and whether the denial is likely to result in any prejudice to defendant.
Id.
Appellant, who the record shows was out on bond, asked for a continuance on the day
of trial, although he could have asked for a continuance earlier. Moreover, appellant had been
appointed counsel, and there was no assertion that he had the means to hire or had hired
private counsel, and private counsel was not on record as being present. Furthermore, his
appointed counsel essentially disputed the assertion that he was unprepared, and there was no
explanation as to what these unnamed additional witnesses sought by appellant could have
provided. Against this factual background, the court did not abuse its discretion in denying
the motion for a continuance.
Affirmed.
HEFFLEY and BAKER, JJ., agree.
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