Munson v. State

Annotate this Case
James MUNSON v. STATE of Arkansas

CR 97-247                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered January 15, 1998


1.   Appeal & error -- cumulative-error objection not made at trial
     -- argument not considered on appeal. -- An appellant
     asserting a cumulative-error argument must show that there
     were objections to the alleged errors individually and that a
     cumulative-error objection was made to the trial court and a
     ruling obtained; where appellant's abstract did not
     demonstrate that a cumulative-error objection or motion was
     made to the trial court, the supreme court would not consider
     the argument further.

2.   Evidence -- exception to marital privilege under Ark. R. Evid.
     504(d). -- Arkansas Rule of Evidence 504(d) states an
     exception to the marital privilege when "...one spouse is
     charged with a crime against the person or property of ... (3)
     a person residing in the household of either."  

3.   Statutes -- construction of -- court rules similarly
     construed. -- Courts construe their own rules using the same
     means as are used to construe statutes; the fundamental
     principle used in considering the meaning of a statute is to
     construe it just as it reads, giving the words their ordinary
     and usually accepted meaning.    

4.   Statutes -- construction of term "reside" -- definitions
     discussed. -- In statutory construction, it is settled that
     reside is an elastic term to be interpreted in the light of
     the purpose of the statute in which such term is used; reside
     is a term whose statutory meaning depends upon the context and
     purpose of the statute in which it occurs; "reside" has been
     defined as "live, dwell, abide, sojourn, stay, remain, lodge;
     to settle oneself or a thing in a place, to be stationed, to
     remain or stay, to dwell permanently or continuously, to have
     a settled abode for a time, to have one's residence or
     domicile"; sojourning is "something more than travelling, and
     applies to a temporary, as contradistinguished from a
     permanent, residence"; a lodging place is defined as "a place
     of rest for a night or a residence for a time; a temporary
     habitation." 

5.   Evidence -- victim was residing in appellant's house at time
     of incident -- exception to privilege for confidential
     communications applicable. -- In the context of Rule 504, the
     term "residing" applied to the circumstances of the victim in
     this case where she arrived in the appellant's home on July
     31, 1995, and the incident occurred four days later; her
     temporary "residence" with the appellant and his wife
     presented the same opportunity to the appellant that he would
     have had if the victim had intended to remain in the household
     indefinitely; the victim in this instance was "residing" in
     appellant's household at the time of the incident, and thus
     the exception to the privilege for confidential communications
     between husband and wife applied.

6.   Evidence -- admission or rejection of evidence under Ark. R.
     Evid. 404(b) left to trial court's discretion -- rule restated
     as applicable in cases of alleged sexual abuse. -- Admission
     or rejection of evidence under Ark. R. Evid. 404(b) is left to
     the sound discretion of the trial court and will not be
     disturbed absent a manifest abuse of discretion; the rule as
     applied in cases of alleged sexual abuse of a child states
     that when the charge concerns the sexual abuse of a child,
     evidence of other crimes, wrongs, or acts, such as sexual
     abuse of that child or other children, is admissible to show
     motive, intent, or plan pursuant to A.R.E. Rule 404(b).

7.    Appeal & error -- argument made without providing authority -
     - argument not convincing. -- Appellant's argument that the
     testimony should not have been admitted because the
     allegations were never subject to any type of investigation
     was not considered because appellant did not cite any
     authority to support it and the supreme court did not consider
     it to be convincing.   

8.   Evidence -- probativeness of evidence -- incidents of abuse
     similar in act and location. -- Appellant's argument that the
     testimony should not have been admitted because the
     allegations were of acts too remote in time and place and
     because there was no connection between the former stepchild
     and the alleged victim was without merit; although similarity
     and time connections are factors in determining the
     probativeness of the evidence, which must be weighed against
     the possibility of confusing the issues and wasting time, the
     testimony about the earlier incidents of abuse was similar to
     the crime alleged in both the type and location of abuse;
     additionally, appellant cited no authority for his proposition
     that the testimony should not have been admitted because the
     allegations were too remote and there was a lack of a
     "connection" between the accusers.

9.   Evidence -- probative value of evidence must be weighed
     against danger of unfair prejudice -- standard of review. --
     Before testimony of another crime is admitted under Ark. R.
     Evid. 404(b), the probative value of the evidence must be
     weighed against the danger of unfair prejudice; the standard
     of review of a trial court's weighing of probative value
     against unfair prejudice is whether the trial court abused its
     discretion.

10.  Evidence -- probative value of evidence outweighed danger of
     unfair prejudice -- chancellor did not err. -- Upon review,
     the supreme court determined that the trial court did not err
     in concluding that the probative value of the evidence
     outweighed the danger of unfair prejudice because the evidence
     involved a similar crime against a young girl who was of an
     age similar to that of the present victim; both girls were in
     appellant's care at the time that the incidents occurred.

11.  Evidence -- pedophile exception applicable. -- Appellant's
     argument that the pedophile exception was not satisfied
     because the two children did not live in the same household
     was without merit; the supreme court has approved allowing
     evidence of similar acts with the same or other children in
     the same household when it is helpful in showing a proclivity
     for a specific act with a person or class of persons with whom
     the defendant has an intimate relationship; the pedophile
     exception only requires that the victims have lived in the
     same household as the defendant; the exception does not
     require that the victims live together in the same household.

12.  Appeal & error -- no authority cited for argument -- argument
     not convincing. -- Appellant's contention that the testimony
     should not have been admitted because it did not establish
     that he had a proclivity to commit a specific act with a
     person or persons with whom he had an intimate relationship,
     and his contention that the testimony should not have been
     admitted because it did not provide insight into the
     relationship and familiarity of the parties or their
     disposition and antecedent conduct towards each other, was
     without merit; no authority was cited for these two
     contentions, and they were unconvincing because the testimony
     of the former stepchild showed that appellant had a proclivity
     toward sexually assaulting young girls in his care or
     household. 

13.  Evidence -- State has no obligation to reveal to defense
     counsel substance of anticipated testimony by State's
     witnesses -- appellant's argument without merit. --
     Appellant's argument that the trial court erred in admitting
     the former stepchild's testimony about the occasion upon which
     appellant inserted his penis into her vagina because he was
     not informed of the testimony prior to trial was without
     merit; the State has no obligation to reveal to defense
     counsel the substance of the anticipated testimony by State's
     witnesses. 

14.  Appeal & error -- no objection to testimony at trial --
     objection cannot be raised for first time on appeal --
     objections cannot be changed on appeal. -- Appellant's
     argument was not considered where there was no objection to
     the testimony at trial; where defense counsel made a different
     objection at trial, the objection was not reached on appeal;
     parties may not change their grounds for objection on appeal,
     and they are bound by the scope and nature of the objections
     and arguments presented at trial. 


     Appeal from Faulkner Circuit Court; David L. Reynolds, Judge;
affirmed.
     McKeel Law Firm, by:  Agather McKeel and Suphan Law Firm, by: 
Charles V. Suphan, for appellant.
     Winston Bryant, Att'y Gen., by:  Sandy Moll, Asst. Att'y Gen.,
for appellee.

     David Newbern, Justice.
     Appellant James Munson was convicted of violation of a minor
in the first degree and sentenced to fifteen years in prison.  The
jury found that Mr. Munson violated his wifeþs fourteen-year-old
sister who was visiting in the Munsons' home when the crime
occurred.  Mr. Munson asserts a "cumulative error" argument.  We
decline to consider that argument as Mr. Munson's abstract of the
record does not demonstrate that any such argument was made to the
Trial Court.  Mr. Munson also contends that letters written by him
to his wife should have been excluded from evidence on the basis of
the marital privilege, Ark. R. Evid. 504.  We hold that the letters
were admissible as Mr. Munson was charged with committing a crime
against a person who resided in the coupleþs home.  We also reject
Mr. Munson's several arguments concerning admissibility of evidence
of Mr. Munson's earlier abuse of a former female stepchild.

                      1.  Cumulative error
     Mr. Munson argues that the cumulative weight of the
prosecutorþs acts of misconduct, consisting of improper remarks and
a discovery violation, was so prejudicial that he was denied a fair
trial and he was entitled to a mistrial.  An appellant asserting a
cumulative-error argument must show that there were objections to
the alleged errors individually and that a cumulative-error
objection was made to the trial court and a ruling obtained.  Welch
v. State, 330 Ark. 158, 955 S.W.2d 181 (1997).  As Mr. Munson's
abstract does not demonstrate that a cumulative-error objection or
motion was made to the Trial Court, we do not consider the argument
further.

                 2.  Confidential communications
     In the letters that Mr. Munson argues were erroneously
admitted into evidence, Mr. Munson reminded his wife of their
wedding vows, asked for her forgiveness, and stated that he had
made a mistake but that it was not completely his fault.  Mr.
Munson moved to suppress the letters on the basis that they were
privileged communications between husband and wife which were
obtained without Mrs. Munson's consent.  The Trial Court denied the
motion to suppress on the basis of Ark. Code Ann.  5-28-105 (now
codified as  5-28-104 (Repl. 1997)) which states, in relevant
part:

     Any privilege between husband and wife . . . shall not
     constitute grounds for excluding evidence at any
     proceedings regarding adult abuse, sexual abuse, or
     neglect of an endangered or impaired adult, or the cause
     thereof.

The statute was thus apparently interpreted by the Trial Court as
presenting an exception to the privilege in cases of abuse of a
minor as well as abuse of an adult.  
     We need not decide whether the statute was properly
interpreted because Ark. R. Evid. 504(d) states an exception to the
marital privilege when "...one spouse is charged with a crime
against the person or property of ... (3) a person residing in the
household of either."  The evidence showed that the victim was
visiting in the Munsons' home for one week.  The question becomes
whether she was "residing" there when the offense charged allegedly
occurred.                                                    
Courts construe their own rules using the same means as are used to
construe statutes.  Gannett River Pub. v. Arkansas Dis. & Disab.,
304 Ark. 244, 801 S.W.2d 292 (1990).  The fundamental principle
used in considering the meaning of a statute is to construe it just
as it reads, giving the words their ordinary and usually accepted
meaning.  Boston v. State, 330 Ark. 99, 952 S.W.2d 671 (1997); Rush
v. State, 324 Ark. 147, 919 S.W.2d 933 (1996).       
  
     In statutory construction, it is settled that 'reside' is
     an elastic term to be interpreted in the light of the
     purpose of the statute in which such term is used;
     'reside' is a term whose statutory meaning depends upon
     the context and purpose of the statute in which it
     occurs. 
                                                                  
In Re National Discount Corporation, 196 F. Supp. 766, 769
(W.D.S.C. 1961).
     Black's Law Dictionary 1308 (6th ed. 1990) defines "reside" as
follows:                                                        
     Live, dwell, abide, sojourn, stay, remain, lodge.  To settle
     oneself or a thing in a place, to be stationed, to remain or
     stay, to dwell permanently or continuously, to have a settled
     abode for a time, to have one's residence or domicile; . . . 
                                                                  
þSojourningþ is defined as þsomething more than þtravelling,þ and
applies to a temporary, as contradistinguished from a permanent,
residence.þ Blackþs Law Dictionary 1391 (6th ed. 1990).  A þlodging
placeþ is defined as þ[a] place of rest for a night or a residence
for a time; a temporary habitation.þ Blackþs Law Dictionary 941 (6th
ed. 1990).
     In the context of Rule 504, the term "residing" applies to the
circumstances of the victim in this case.  She arrived in the
Munsons' home on July 31, 1995, and the incident occurred four days
later.  Her temporary "residence" with the Munsons presented the
same opportunity to Mr. Munson he would have had if the victim had
intended to remain in the household indefinitely.  
     We hold that the victim in this instance was "residing" in Mr.
Munson's household at the time of the incident, and thus the
exception to the privilege for confidential communications between
husband and wife applies.

         3.  Evidentiary rulings and discovery violation
     Prior to marrying the sister of the victim in this case, Mr.
Munson was married to another woman who had a daughter who thus
became Mr. Munson's step-daughter.  He argues that the Trial Court
erred in denying his motion to suppress the testimony of the former
step-daughter who testified that she was sexually assaulted and
physically abused by Mr. Munson.  
     At a pre-trial hearing, the Trial Court, citing the pedophile
exception, denied Mr. Munsonþs motion to suppress testimony related
to the alleged prior sexual assault.  At trial, Mr. Munson renewed
his motion to suppress the testimony of the former step-child, and
the Trial Court reaffirmed its earlier ruling on the admissibility
of the testimony.  
     The former step-child, who was fourteen years old at the time
of trial, testified that on March 7, 1993, when she was ten years
old Mr. Munson sexually assaulted her by inserting his finger into
her vagina.  At the time that incident occurred, Mr. Munson was
married to the child's mother.  The child testified that she did
not tell her mother about the incident until two days after it
occurred because she did not want Mr. Munson to hurt her.  She
testified that she thought that he would hurt her because he had
slapped her and her brothers on prior occasions.  The deputy
prosecutor asked:  þHe had slapped you on other occasions, is that
what you mean?  Other than the time in the bedroom ... was there
ever any other times that the defendant did anything to you?þ  She
responded in the affirmative, and the deputy prosecutor asked her
to tell the jury about the incident.  At that point, Mr. Munson
objected on the grounds that allegations of other instances should
have been discovered to him if such incidents were to be the
subject of examination.  The State responded that the defense was
made aware of the witness and could have interviewed her.  The
Trial Court overruled the objection.  The child then testified
that, on another occasion when she and Mr. Munson were alone in a
boat, he sexually assaulted her by inserting his penis into her
vagina.  She further testified that she did not tell anyone about
this incident until she told the deputy prosecutor two days before
trial.  At the bench, the deputy prosecutor told the Trial Court
that the second incident was not initially disclosed to defense
counsel in discovery but that defense counsel was informed of it
once the prosecutor learned of it.

                         a.  Rule 404(b)
     The admission or rejection of evidence under Ark. R. Evid.
404(b) is left to the sound discretion of the trial court and will
not be disturbed absent a manifest abuse of discretion. Jarrett v.
State, 310 Ark. 358, 833 S.W.2d 779 (1992).  Most recently, in
Douthitt v. State, 326 Ark. 794, 800, 800, 935 S.W.2d 241, 244
(1996), we restated the rule as applied in cases of alleged sexual
abuse of a child as follows: þThis court has often said that when
the charge concerns the sexual abuse of a child, evidence of other
crimes, wrongs, or acts, such as sexual abuse of that child or
other children, is admissible to show motive, intent, or plan
pursuant to A.R.E. Rule 404(b).þ  
     Mr. Munson raises several arguments to support his contention
that the testimony of the former stepchild should not have been
admitted.  First, he argues that the testimony should not have been
admitted because the allegations were never subject to any type of
investigation; however, we do not consider this argument because
Mr. Munson does not cite any authority to support it, see Polk v.
State, 329 Ark. 174, 947 S.W.2d 758 (1997), and we do not consider
it to be convincing.   
     Second, Mr. Munson argues that the testimony should not have
been admitted because the allegations were of acts too remote in
time and place and because there was no connection between the
former stepchild and the alleged victim in this case.  He cites
Larimore v. State, 317 Ark. 111, 124, 877 S.W.2d 570 (1994), where
we considered whether the Trial Court erred in refusing to admit
testimony that a particular young man, who was seen on the morning
of the murder, had been caught entering the victimþs home and
taking her property and had attempted to break into her home on
another occasion.  Those incidents occurred several months before
the murder.  We wrote that þ[s]imilarity and time connections are
factors in determining the probativeness of the evidence, which
must be weighed against the possibility of confusing the issues and
wasting time.  Some courts have said that there should be a
sufficient nexus between the evidence and the possibility of
another person's guilt and that this evidence should do more than
create a mere suspicion.þ Id. at 124.  Although the charge in the
case was murder, there was no evidence of theft or burglary, and
there was no evidence that the young man had acted violently toward
the victim. Id. at 125.  We upheld the exclusion of the evidence. 

     This case can be distinguished from the Larimore case because
the testimony is about earlier incidents similar to the crime
alleged here.  The later violation of the former step-child
occurred on March 7, 1993, when she was ten years old and Mr.
Munson placed his finger inside her vagina.  The crime against the
victim in this case allegedly occurred on August 4, 1995, when she
was fourteen, and Mr. Munson inserted his finger and tongue in her
vagina.  Additionally, both of the incidents occurred when the
victims were in Mr. Munsonþs home or in his care.  Mr. Munson cites
no authority for his proposition that the testimony should not have
been admitted because the allegations were too remote and there was
a lack of a "connection" between the accusers.  
     In Clay v. State, 318 Ark. 550, 886 S.W.2d 608 (1994), we held
it was error to deny a motion to sever five alleged sex offenses
against minor girls.  As one of the factors cited for reversal, we
noted that the alleged offenses occurred at different locations. 
We did not hold that evidence of one or more of the alleged
offenses could not be used in the prosecution of one or more of the
other offenses.  We do not agree that that decision is controlling
of the issue here having to do with admissibility of evidence.
     Third, Mr. Munson, citing Ark. R. Evid. 403, argues that the
testimony should have been excluded because its probative value is
substantially outweighed by the danger of unfair prejudice.  Before
testimony of another crime is admitted under Ark. R. Evid. 404(b),
the probative value of the evidence must be weighed against the
danger of unfair prejudice.  George v. State, 306 Ark. 360, 813 S.W.2d 792 (1991) (citing Ark. R. Evid. 403). The standard of
review of a trial courtþs weighing of probative value against
unfair prejudice is whether the trial court abused its discretion. 
Greene v. State, 317 Ark. 350, 878 S.W.2d 350(1994).   The Trial
Court did not err in concluding that the probative value of the
evidence outweighed the danger of unfair prejudice because the
evidence involves a similar crime against a young girl who was of
an age similar to that of the victim in this case.  Both girls were
in Mr. Munsonþs care at the time that the incidents occurred.
     Fourth, Mr. Munson argues that the pedophile exception is not
satisfied in this case because the two children did not live in the
same household.  The rule has been specifically stated as follows:
þ[W]e [have] approved allowing evidence of similar acts with the
same or other children in the same household when it is helpful in
showing a proclivity for a specific act with a person or class of
persons with whom the defendant has an intimate relationship.þ 
Mosley v. State, 325 Ark. 469, 473, 929 S.W.2d 693, 696 (1996).  In
Davis v. State, 325 Ark. 96, 925 S.W.2d 768 (1996), we recognized
that the pedophile exception only requires that the victims have
lived in the same household as the defendant.  The exception does
not require that the victims live together in the same household.
     In his fifth argument, Mr. Munson contends that the testimony
should not have been admitted because it does not establish that he
had a proclivity to commit a specific act with a person or persons
with whom he had an intimate relationship.  In a related argument,
he contends that the testimony should not have been admitted
because it did not provide insight into the relationship and
familiarity of the parties or their disposition and antecedent
conduct towards each other.  No authority is cited for these two
contentions, and they are unconvincing because the testimony of the
former step-child showed that Mr. Munson has a proclivity toward
sexually assaulting young girls in his care or household. 

                     b.  Discovery violation
     Mr. Munson also argues that the Trial Court erred in admitting
the former step-child's testimony about the occasion upon which Mr.
Munson inserted his penis into her vagina because he was not
informed of the testimony prior to trial.  The State has no
obligation to discover to defense counsel the substance of the
anticipated testimony by Stateþs witnesses. Sanders v. State, 317
Ark. 328, 878 S.W.2d 391 (1994). 

                       c.  Physical abuse
     Mr. Munson argues that the former step-child's testimony that
Mr. Munson slapped or hit her should not have been admitted because
it did not satisfy the pedophile exception and because the
probative value of the testimony was outweighed by unfair
prejudice.  Rule 403.  He also argues that the testimony does not
show proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.  Rule
404(b).  We do not consider this argument as there was no objection
to the testimony at trial.  Instead, defense counsel objected when
the State asked whether there was an incident þother than in the
bedroomþ in which Mr. Munson þdid anythingþ to her."  The basis of
the objection was that the State had not informed the defense about
any such incident.  Parties may not change their grounds for
objection on appeal, and they are bound by the scope and nature of
the objections and arguments presented at trial.  Evans v. State,
326 Ark. 279, 931 S.W.2d 136 (1996).
     Affirmed.