Kenneth Lemaster v. State of Arkansas
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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
JUDGE DAVID M. GLOVER
DIVISION I
CACR08-74
December 17, 2008
APPEAL FROM THE LONOKE
COUNTY CIRCUIT COURT
[CR-06-300]
KENNETH LEMASTER
APPELLANT
V.
HONORABLE BARBARA ELMORE,
JUDGE
STATE OF ARKANSAS
APPELLEE
AFFIRMED
Appellant, Kenneth Lemaster, was tried by a jury and found guilty of the offenses
of rape and sexual assault in the second degree, both of which involved the same victim,
appellant’s five-year-old stepdaughter, S.F. At the time of trial, appellant was twenty-eight
years old. He was sentenced to twenty-three years on the rape conviction and ten years
on the sexual-assault conviction.
The trial court ordered the sentences to run
consecutively. We affirm.
Appellant raises five points of appeal, and they all involve evidentiary issues. The
decision to admit or exclude evidence is within the sound discretion of the trial court, and
we will not reverse a trial court's decision regarding the admission of evidence absent a
manifest abuse of discretion. Rollins v. State, 362 Ark. 279, 208 S.W.3d 215 (2005). Nor
will we reverse absent a showing of prejudice, as prejudice is not presumed. Hanlin v.
State, 356 Ark. 516, 157 S.W.3d 181 (2004).
1) Legal Adult Films
For his first point of appeal, appellant contends that the trial court “erred in
allowing the introduction of State’s exhibits 5-10, legal adult films seized from appellant’s
home.” The evidentiary items at issue under this point of appeal are DVDs and DVD
cases of pornographic videos that were retrieved from appellant’s house approximately
seven months after the alleged abuse.
Appellant contends that these items had no
relevance under Rule 401 of the Arkansas Rules of Evidence because they did not tend to
make any fact that was of consequence in the case more or less probable. In addition, he
argues that the prejudicial effect of the exhibits substantially outweighed any probative
value that they might have had, in violation of Rule 403 of the Rules of Evidence.
The exhibits at issue are: 1) Exhibit No. 5, a DVD case for a film entitled, 500
Oral Cum Shots; 2) Exhibit No. 6, a DVD entitled, Guys Who Crave Big Tits; 3) Exhibit
No. 7, a DVD entitled, Beachside Bitches; 4) Exhibit No. 8, a DVD entitled, Leisure Time
Entertainment or Leisure Time Europe; 5) Exhibit No. 9, a DVD case marked, Unusual
Objects; and 6) Exhibit No. 10, a DVD entitled, W.S.C. and Eat Cum.
Michelle Stracener, an investigator with the Lonoke County Sheriff’s Office,
testified that she had reviewed the videos, and, the significance of which will be
hereinafter explained, that there were no police officers (characters) in any of them. She
said that in Nos. 8 and 10, there were two males and one female on a couch.
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She
specifically responded that Ex. No. 5 did not support or dispute the victim’s statements,
and that Ex. Nos. 6 and 7 had nothing to do with what the victim had said.
Appellant argues that these items had absolutely no relevance to the case because,
even though the victim alleged that appellant raped her while playing pornographic
videos, her depiction of what was on the video did not show up in any of the seized
videos, i.e., two men dressed up like police officers, licking a woman on a couch. He
further argues that even if the items could be said to be relevant, their prejudicial impact
outweighed any probative value that they might have had.
We find no abuse of the trial court’s considerable discretion. The victim testified at
trial that she saw “a movie at Kenneth’s house (when a girl put her mouth on a peepee).”
The exhibits were thus relevant because they supported the victim’s testimony that she
viewed pornography with appellant at his house, and they rebutted any contention by
appellant that the victim learned about sexual behavior from pornography seen at someone
else’s house. Moreover, while the exhibits may well have been prejudicial, appellant has
not convinced us that they were unfairly prejudicial.
We therefore find no abuse of
discretion in allowing these items.
2) Other Crimes, Wrongs or Acts
For his second point of appeal, appellant contends that the trial court “erred in
allowing the testimony of Tiffany Ankney, Phillip Raper, Dustin Johnson, and Tina
Waters as 404(b) evidence.” Under this point, appellant contends that the testimony of
Tiffany (his sister, who is two years younger), Phillip (his stepbrother, who is six years
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younger), Dustin (another stepbrother, who is also six years younger), and Tina
(appellant’s stepmother and Dustin’s mother) should not have been allowed pursuant to
Rule 404(b) of the Arkansas Rules of Evidence because the sexual conduct about which
they testified occurred when he was between the ages of ten and fifteen.
Tiffany testified that when she was approximately ten to thirteen years of age and
appellant was twelve to fifteen, he attempted to perform vaginal sex with her and had her
perform oral sex on him. Phillip testified that he performed oral sex on appellant two
times. Dustin testified that when he was six or seven years old and appellant was twelve,
that he performed oral sex on appellant one time. Tina testified that on one occasion she
saw Dustin kneeling on the floor in front of appellant with appellant standing up with his
hand on his zipper. She saw no sexual conduct or nudity.
Rule 404(b) of the Arkansas Rules of Evidence provides:
Rule 404. Character evidence not admissible to prove conduct, exceptions
(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.) Appellant contends that the challenged testimony does not fall within
any of the listed exceptions nor does it satisfy the pedophile exception because appellant
was between ten and fifteen years of age when the alleged conduct occurred. That is, he
was not an adult performing such acts on a child — he was a child himself. Appellant
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relies upon Efird v. State, 102 Ark. App. 110, ____ S.W.3d ____ (2008), in making his argument.
The State counters appellant’s argument by contending that these four individuals’
testimony was relevant because it showed that appellant made the victim in this case
perform the same type of conduct, forcing her to fellate him, that he had required of his
younger siblings and that it therefore falls within the listed exceptions of Rule 404(b), for
example, “motive,” showing appellant’s desire for sexual gratification by oral sex from a
young child, and “knowledge and opportunity,” showing that appellant took advantage of
opportunities when he was alone with the five-year-old victim in the instant case to force
her to fellate him as he had done with his younger siblings. We agree.
Also, while Efird dealt primarily with the pedophile exception to Rule 404(b), to
the extent that it is applicable to the listed exceptions within the rule, it is distinguishable
from the facts presented here. Briefly, in Efird, the challenged prior conduct involved the
appellant and one other—his half-brother, who was one year younger.
Our court
contrasted the prior conduct with the charged offense as follows:
In the instant case, Mr. Efird’s sexual acts with his half-brother that occurred
seventeen years ago were too dissimilar in character and temporally removed from
the crimes charged to come under any exception to Rule 404(b), including the
“pedophile exception,” and only went to prove appellant's bad character.[fn1] The
testimony of Doug Efird [the half-brother] showed that while he and appellant
were adolescents of between twelve to fourteen years of age, they engaged in
genital touching and oral sex while sharing the same bedroom. Doug could not
remember whether or not he participated voluntarily. By contrast, the current
charges allege that Mr. Efird, as an adult and father figure with an intimate
relationship with H.M., repeatedly forced anal sex on H.M. when she was four to
eight years of age. H.M. testified that Mr. Efird never touched her on her “private
area in the front” and never put his penis in her mouth. And unlike the prior
incident with appellant’s half-brother, there was evidence that appellant threatened
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H.M. and told her not to tell anyone. Given the contrasting circumstances of the
charged crimes and alleged prior conduct, we cannot say that the acts between
appellant and his half-brother demonstrated any proclivity or instinct relevant to
determining Mr. Efird's guilt in the present case. Such evidence was erroneously
admitted and should have been excluded under Rule 404(b).
Id. at ____, ____ S.W.3d at ____.
Here, the challenged prior conduct involved three younger siblings, only one of
which—his sister— was substantially the same age. Appellant’s half-brothers were both six
years younger than he.
Moreover, both the prior conduct and the charged offenses
involved the younger child performing oral sex on appellant.
While it was entirely
plausible for the prior conduct in Efird to be categorized as mutual sexual exploration
between two willing participants, and thus not relevant to the charged offenses, that
simply cannot be said of the testimony presented in the instant case.
Moreover, because we conclude that this evidence falls within the listed exceptions
to Rule 404(b), it is unnecessary to consider whether the evidence also satisfies the
pedophile exception. Finally, to the extent that appellant raises a due-process argument in
this appeal, we do not address it because it was not raised below.
3) Testimony Concerning the Victim’s Behavior
For his third point of appeal, appellant contends that the trial court “erred in
allowing Sharon Fortner and Alberta Sanders to testify about [the victim’s] behaviors.” He
argues that the trial court abused its discretion when it allowed the victim’s mother,
Sharon Fortner, and her babysitter, Alberta Sanders, to testify about sexualized conduct
exhibited by the victim. For example, there was testimony that the child would “strike
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sexual poses in the bathtub”; that she would lie in her bed with her legs spread, “holding
her privates”; that she “licked the privates” of a Barbie doll; that she pulled her pants
down and “shook her bottom”; and that she stuck a stick between her legs and asked a
little boy “to suck her peepee.” Appellant argues that the testimony was not relevant, but
that even if it were, its prejudicial impact outweighed its probative value and should have
been excluded under Rule 403.
The State counters appellant’s argument by contending that the testimony from the
mother and babysitter explained the events surrounding the victim’s disclosure of
appellant’s alleged conduct and provided additional support for the actions that were
subsequently taken of reporting the rape to law enforcement officials. We agree. As our
supreme court explained in Gaines v. State, 340 Ark. 99, 110, 8 S.W.3d 547, 554 (2000):
Under the res gestae exception, the State is entitled to introduce evidence
showing all circumstances which explain the charged act, show a motive for
acting, or illustrate the accused’s state of mind if other criminal offenses are
brought to light. Haynes v. State, supra. Specifically, all of the circumstances
connected with a particular crime may be shown to put the jury in
possession of the entire transaction. Haynes v. State, supra. Where separate
incidents comprise one continuing criminal episode or an overall criminal
transaction, or are intermingled with the crime actually charged, the
evidence is admissible. See Ruiz & Van Denton v. State, 265 Ark. 875, 582
S.W.2d 915 (1989); Thomas v. State, 273 Ark. 50, 615 S.W.2d 361 (1981);
Henderson v. State, 284 Ark. 493, 684 S.W.2d 231 (1985). Res gestae
testimony and evidence is presumptively admissible. Henderson, supra; Lair v.
State, 283 Ark. 237, 675 S.W.2d 361 (1984); Love v. State, 281 Ark. 379,
664 S.W.2d 457 (1984); Hobbs v. State, 277 Ark. 271, 641 S.W.2d 9 (1982).
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We find no abuse of discretion in the trial court’s allowance of this testimony because it
put the jury in possession of the entire transaction, explaining how appellant’s conduct was
first brought to the attention of these two women.
4) Therapist’s Testimony
For his fourth point of appeal, appellant contends that the trial court “erred in
allowing Denise Maples to testify.” Ms. Maples was the victim’s therapist. As part of
appellant’s discovery requests, he asked for any reports or statements of experts made in
connection with the particular case and the results of physical or mental examinations and
experiments or comparisons. The request was subsequently amended to make clear that
the information was sought regardless of whether it was intended to be used at trial or not.
No such information was provided to appellant, and when the State called Ms. Maples to
testify, appellant sought to exclude her testimony pursuant to Rules 17.1 and 19.7 of the
Arkansas Rules of Criminal Procedure. In particular, Rule 19.7 provides:
Rule 19.7. Failure to comply: sanctions.
(a) If at any time during the course of the proceedings it is brought to the attention
of the court that a party has failed to comply with an applicable discovery rule or
with an order issued pursuant thereto, the court may order such party to permit the
discovery or inspection of materials not previously disclosed, grant a continuance, prohibit the
party from introducing in evidence the material not disclosed, or enter such other order as it
deems proper under the circumstances.
(b) Wilful violation by counsel or a defendant of an applicable discovery rule or an
order issued pursuant thereto may subject counsel or a defendant to appropriate
sanctions by the court.
(Emphasis added.)
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The State counters that Ms. Maples was not presented as an expert; rather, her
testimony was offered solely as the victim’s therapist to present the victim’s statements that
were made during therapy, and, furthermore, that any testimony that might be
characterized as “expert” testimony was solicited by appellant, not the State. In addition,
after Ms. Maples testified, the trial court ordered that the records in question be faxed to
the court for review.
The sanctions set forth in Rule 19.7 are not limited to the
exclusion of challenged evidence.
We find no abuse of the trial court’s discretion in
allowing Ms. Maples to testify, and we agree that the “expert” portion of her testimony
was solicited by appellant. Under the doctrine of invited error, we have held that one
cannot be heard to complain of that error for which he was responsible. Wyles v. State,
357 Ark. 530, 182 S.W.3d 142 (2004). Finally, in making his argument, appellant offers
us no explanation as to how he was unfairly prejudiced by the therapist’s testimony.
5) Babysitter’s Testimony
For his final point of appeal, appellant contends that the trial court “erred in
allowing hearsay evidence of [the victim] through Alberta Sanders.” He argues that the
trial court abused its discretion in allowing the babysitter to testify about what the victim
told her when the victim reported what appellant had done to her. We do not address the
merits of this point because a ruling was not obtained on the objection and, therefore, it
was not properly preserved for our review. It is incumbent upon an appellant to obtain a
ruling from the trial court in order to preserve an argument for appeal. Otis v. State, 364
Ark. 151, 217 S.W.3d 839 (2005).
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Affirmed.
P ITTMAN, C.J., and G LADWIN, J., agree.
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