John Lehman Lamb, Sr. v. State of Arkansas
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SUPREME COURT OF ARKANSAS
No. CR 07753
JOHN LEHMAN LAMB, SR.,
APPELLANT,
Opinion Delivered February 7, 2008
APPEAL FROM THE GREENE COUNTY
CIRCUIT COURT,
NO. CR200643,
HON. BARBARA HALSEY, JUDGE,
VS.
STATE OF ARKANSAS,
APPELLEE,
AFFIRMED.
ANNABELLE CLINTON IMBER, Associate Justice
John Lehman Lamb, Sr., was convicted by a jury in Greene County Circuit Court of
raping H.M., a fiveyearold girl, and sentenced to life imprisonment. Lamb now appeals
his conviction, arguing two grounds for reversal: (1) the circuit court erred in denying his
motion in limine to exclude certain testimony under Ark. R. Evid. 404(b), and (2) the circuit
court erred in denying his motion for directed verdict. Because Lamb received a life
sentence, we have jurisdiction over this appeal pursuant to Ark. Sup. Ct. R. 12(a)(2) (2007).
I. Sufficiency of the Evidence
Although Lamb did not challenge the circuit court’s directedverdict ruling in his
first point on appeal, double jeopardy considerations require this court to review his
directedverdict argument first. See Ramaker v. State, 345 Ark. 225, 46 S.W.3d 519
(2001). Lamb asserts that the circuit court erred in denying his motion for directed verdict
because the State did not present substantial evidence to prove that he raped H.M.
Specifically, he contends that rape requires penetration, and the only evidence of
penetration was H.M.’s uncorroborated testimony. He argues that H.M. lacked
credibility as a witness, and her descriptions of Lamb’s alleged actions were incredible
and unbelievable for a child of H.M.’s age. The State, however, asserts that there was
substantial evidence to support Lamb’s conviction because the uncorroborated testimony
of a rape victim is sufficient to support a conviction.
The State also argues that Lamb did not preserve this argument for appeal because
defense counsel failed to make a specific motion for directed verdict. In order to preserve
an issue for an appeal of a denial of a directedverdict motion, the issue must be stated
clearly and specifically to the circuit court. Phillips v. State, 361 Ark. 1, 203 S.W.3d 630
(2005). The reasoning underlying this requirement is that when specific grounds are
stated and the absent proof is pinpointed, the circuit court can either grant the motion, or,
if justice requires, allow the State to reopen its case and supply the missing proof. Id. A
further reason that the motion must be specific is that the appellate court may not decide
an issue for the first time on appeal and cannot afford relief that is not first sought in the
circuit court. Id. A party moving for directed verdict may not change his arguments on
appeal and is limited to the scope and nature of his arguments made below. See Hunter v.
State, 330 Ark. 198, 952 S.W.2d 145 (1997).
In the instant case, at the close of the State’s caseinchief, defense counsel moved
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for a directed verdict, stating:
Your Honor, at this time I would move for a directed verdict on behalf
of the defense. The court, with regard to issues of rape that have been alleged,
the State, with the exception of the testimony of the little child, offered no
proof with regard to the rape other than just the uncorroborated statements
made by my client which do not rise to the level of rape. It would certainly be
more in the regard of sexual assault.
At the close of all the evidence, defense counsel renewed the earlier motion for a directed
verdict.
The grounds for defense counsel’s directedverdict motion are essentially the same
as those now made on appeal—that is, the State did not offer any evidence other than the
victim’s testimony that supported the rape charge. Thus, because the only argument on
appeal is the same as that which was specifically raised in defense counsel’s directed
verdict motion and because a review for prejudicial error under Ark. Sup. Ct. R. 43(h)
(2007) is required in this case, we conclude that Lamb’s motion was specific enough for
purposes of appellate review.
A motion for directed verdict is treated as a challenge to the sufficiency of the
evidence. Ramaker v. State, supra. The test for such motions is whether the verdict is
supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is
evidence of sufficient certainty and precision to compel a conclusion one way or another
and pass beyond mere suspicion or conjecture. Id. On appeal, we review the evidence in
the light most favorable to the appellee and consider only the evidence that supports the
verdict. Id.
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Pursuant to Arkansas Code Annotated § 514103(a)(3)(A) (Repl. 2006), a person
commits rape if he or she engages in sexual intercourse or deviate sexual activity with
another person who is less than fourteen years of age. Id. Deviate sexual activity is
defined as sexual gratification involving the “penetration, however slight, of the anus or
mouth of a person by the penis of another person.” Ark. Code Ann. § 514101(1)(A)
(Repl. 2006).
The following evidence was presented at Lamb’s trial. Lamb first became
acquainted with the victim’s mother, Dana Mathews, when she was a child. In 1999, the
two became reacquainted as adults, when Dana, who was living on the streets,
approached Lamb in Blytheville. Lamb took Dana into his home and eventually a
romantic relationship ensued. H.M. was born in July 2001, while Dana was living with
Lamb. Although Lamb was not H.M.’s father, Lamb did refer to himself as H.M.’s
godfather. For the next several years, Dana and Lamb maintained a romantic
relationship. During portions of their relationship, both were addicted to illegal drugs.
Lamb successfully completed treatment for his addiction, but Dana shifted between
treatment and prison. As a result, Dana lost custody of H.M. twice. By the time of the
charged offenses, however, H.M. was living with Dana in a home that Lamb had
procured for them in Paragould. Lamb routinely helped Dana care for H.M. by doing
such things as bathing H.M. and getting her ready for school in the mornings.
In December 2005, Stacy Shannon, H.M.’s aunt, called the local child abuse
hotline to report that Lamb had sexually abused H.M. Rhonda Thomas, a detective with
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the Paragould Police Department, and Chris Shelton, an investigator with the Arkansas
State Police, interviewed both H.M. and Lamb. H.M. denied any abuse during her initial
interview with the investigators, but, in later interviews she admitted to being abused by
Lamb. According to Thomas, H.M’s behavior during the first interview was that of a
child who had been coached to deny abuse. Meanwhile, Lamb was insisting that he was
innocent and demanded a polygraph test. Nonetheless, Lamb did admit that during the
1980s he had engaged in sexual acts with his two daughters and a neighborhood girl,
including “coaxing” his daughter into performing oral sex on him. The prior acts
occurred in Mississippi, and Lamb was never convicted for the abuse; instead, the matter
was handled in family court.
On December 13, 2005, Lamb voluntarily went to the Arkansas State Police office
in Jonesboro and submitted to an interview and polygraph test administered by
Investigator Pardo Roberts. After Lamb was shown the test results that indicated he had
been deceptive when answering questions about H.M., Roberts convinced him to make a
written statement. In the statement, Lamb admitted to occasionally bathing H.M. as a
favor to her mother, and because H.M. had not been washing herself properly, he used his
hand once to “inspect her vagina” and make sure she was clean.
That same day, Lamb decided to make a different statement to Rhonda Thomas in
an effort to clarify what he had done to H.M. In the taperecorded statement, Lamb said
that one day he was trying to get H.M. ready for school, and she was being difficult, so
he decided to discipline her. He pulled down her pants and laid her over his knee, but
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instead of spanking her bare buttocks, he “reached between her legs . . . and gently
rubbed her vagina.”
Roberts, Shelton, and Thomas all testified during the State’s caseinchief. In
addition, the two statements Lamb made to police and his admissions about sexually
molesting his daughters were presented to the jury. H.M. also testified for the State. She
stated that her “Uncle John,” as she called Lamb, put his “bad spot” in her mouth and
“peed” in her mouth. She described his “bad spot” as looking like an elephant trunk and
his “pee” as looking like “chicken noodle soup without the noodles or the chicken.”
H.M. also corroborated Lamb’s statement that one day he had rubbed between her legs
instead of spanking her.
The defense called two witnesses, H.M.’s former therapist and case worker, to
testify about their work with H.M. Donna Parker, the former therapist, testified that she
had worked with H.M. for two and onehalf years, and during that time she suspected that
H.M. had been sexually abused. Yet, even when pressed by the therapist, H.M. never
reported any abuse. The case worker, Lori Hoggard, also testified that H.M. had never
disclosed any abuse.
Lamb testified in his own defense, and, although he admitted to sexually abusing
his own children, he maintained his innocence in this case. He asserted that Stacy
Shannon’s allegations were complete falsehoods and that both of his statements to police
were untrue.
This court has repeatedly held that the uncorroborated testimony of a
rape victim that shows penetration is sufficient evidence for a conviction. See Gatlin v.
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State, 320 Ark. 120, 895 S.W.2d 526 (1995). This court has also held that a child
victim’s use of her own terms for body parts, rather than the correct anatomical terms, is
sufficient evidence if it demonstrates a knowledge of what and where those body parts
referred to are. See Tinsley v. State, 338 Ark. 342, 993 S.W.2d 898 (1999).
In the instant case, H.M. was under fourteen years of age when the alleged acts
occurred. Likewise, H.M.’s testimony provided sufficient evidence of penetration. In
her own terms, H.M. stated that Lamb put his “bad spot” in her mouth and “peed in her
mouth.” She described Lamb’s “bad spot” as looking like an elephant trunk, and his
“pee” as looking like “chicken noodle soup without the chicken or the noodles.” This
uncorroborated testimony alone was enough to prove that H.M. had knowledge of the
body parts she described, that penetration of her mouth occurred, and that Lamb was
sexually gratified by the act. Lamb argues that H.M. denied any abuse during her
original statement to police, and, therefore, she was not a reliable witness. However,
questions of witness credibility are left to the discretion of the jury, and the jury is
entitled to believe or disbelieve the testimony of any witness. See Arnett v. State, 353
Ark. 165, 122 S.W.3d 484 (2003). Moreover, Lamb’s statements to police indicated that,
at the very least, he engaged in some sexual activity with H.M., which in turn could have
lent some credibility to H.M.’s testimony in the eyes of the jury. Accordingly, we affirm
the circuit court’s decision to deny Lamb’s directedverdict motion.
II. Rule 404(b) Objection
For his second argument on appeal, Lamb argues that the circuit court erred in
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denying his motion in limine to exclude evidence of his prior sexual acts with children.
He contends that the prior bad acts do not fit any of the exceptions to Arkansas Rule of
Evidence 404(b). He also asserts that his past sexual acts with children have no
independent relevance to the charged offense. The State argues that the evidence of
Lamb’s prior bad acts shows his proclivity towards sexual acts with young children.
Under Arkansas Rule of Evidence 404(b), any evidence of a person’s 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. Ark. R. Evid. 404(b) (2007). However, the evidence
may be admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident. Id.
The admission or rejection of evidence under Rule 404(b) is committed to the
sound discretion of the circuit court, and we will not reverse absent a showing of manifest
abuse of that discretion. See Jackson v. State, 359 Ark. 297, 197 S.W.3d 468 (2004).
Evidence offered under Rule 404(b) must be independently relevant to make the
existence of any fact of consequence more or less probable than it would be without the
evidence. See Cook v. State, 345 Ark. 264, 45 S.W.3d 820 (2001). In other words, the
prior bad act must be independently relevant to the main issue, in that it tends to prove
some material point rather than merely proving that the defendant is a criminal. See
Nelson v. State, 365 Ark. 314, 229 S.W.3d 35 (2006).
Our court has recognized a “pedophile exception” to Rule 404(b). We have
approved allowing evidence of the defendant’s similar acts with the same or other
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children 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. Flanery v. State, 362
Ark. 311, 208 S.W.3d 187 (2005). The rationale for this exception is that such evidence
helps to prove the depraved sexual instinct of the accused. Id.
In Flanery, supra, the defendant was accused of participating in sexual intercourse
and oral sex with a minor girl, who was staying in his home, and the circuit court allowed
his daughter to testify that several years earlier, when she was fourteen, the defendant
inappropriately touched her. Id. We held that the evidence was admissible in light of the
fact that both the victim and the witness lived in the defendant’s house, he was a father
figure to both girls, and the girls were similar in age at the time when they were abused.
Id. Then, in Hamm v. State, 365 Ark. 647, 232 S.W.3d 463 (2006), we again held that
the numerous similarities between the witness’s allegations and the victim’s allegations
made the evidence of the defendant’s prior bad acts admissible under the pedophile
exception. Id. Specifically, the girls were both the same age when the abuse began, they
both met the defendant at church and were under his supervision there, both frequently
visited his home, both reported that the abuse occurred while they were alone with him,
and he was not related to either girl. Id.
Here, there is certainly a connection between the evidence of Lamb’s prior abuse
of his daughters and his alleged abuse of H.M., that shows his proclivity towards sexual
acts with young girls. In both cases, Lamb occupied a caregiver role for the victims and
the sexual act alleged, oral sex, was identical. In sum, the evidence of Lamb’s prior
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sexual acts with his daughters tended to show his depraved sexual instinct.
Lamb argues that the prior sexual acts with children, which occurred almost
twenty years ago, are too remote in time from the charged acts to be relevant. Evidence
admitted pursuant to Rule 404(b) must not be too separated in time, making the evidence
unduly remote. See Nelson v. State, 365 Ark. 314, 229 S.W.3d 35 (2006). The circuit
court is given sound discretion over the matter of remoteness and will be overturned only
when it is clear that the questioned evidence has no connection with any issue in the
present case. Id. In Nelson, we held that, even though the defendant’s prior conviction
was fourteen years old, the evidence tended to show his intent to commit the charged
crime and was, therefore, not too remote in time to be relevant. Id. Similarly, in Flanery
v. State, supra, we held that the defendant’s prior bad acts, which occurred seven years
before the charged acts, were not too separated in time given the similarity of the two
cases that evidenced a proclivity towards sexual acts with young girls. Id.
Again, in this case, the similarities between Lamb’s admitted abuse of his
daughters and the alleged rape of H.M., tended to show Lamb’s intent to commit the
charged offense. Therefore, under our holdings in Nelson and Flanery, we conclude that
the prior bad acts were not too remote in time to be relevant here.
Lamb also challenges the admission of the priorbadacts evidence under Rule
403, contending that the prejudicial effect of the evidence outweighs its probative value
because the evidence that he previously molested young girls could be inflammatory to
the jury. Under Rule 403, the circuit court may exclude relevant evidence, if the
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probative value of the evidence substantially outweighs the danger of unfair prejudice to
the defendant. Ark. R. Evid. 403 (2007). We review a circuit court’s decision to admit
evidence over a Rule 403 objection under an abuse of discretion standard. Flanery v.
State, supra. In Flanery, we held that the amount of similarities that existed between the
witness’s allegations and the victim’s allegations made the evidence very probative on the
issue of the defendant’s deviate sexual impulses. Id.
Here, there are several similarities between the acts Lamb admittedly committed
against his daughters and the charged acts, which show his tendency for deviate sexual
impulses toward young girls. Moreover, the evidence that Lamb forced his daughter to
perform oral sex on him tends to corroborate H.M.’s testimony that he forced her to
perform oral sex. Thus, we cannot conclude that the circuit court abused its discretion in
admitting the evidence.
Finally, Lamb argues that the circuit court’s limiting instruction to the jury was
insufficient to cure any prejudice to Lamb because the evidence was so “patently
inflammatory.” After a review of the record, we could not find any objection to the
limiting instruction. It is a wellsettled rule that arguments not raised at trial cannot be
raised for the first time on appeal. Buford v. State, 368 Ark. 87, ___ S.W.3d ___ (2006).
Accordingly, we conclude that Lamb’s argument as to the limiting instruction was not
preserved for appeal, and we will not review it at this time.
III. Rule 43(h) Review
In compliance with Ark. Sup. Ct. R. 43(h), the record has been examined for all
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objections, motions and requests made by either party that were decided adversely to
Lamb, and no prejudicial error has been found. Doss v. State, 351 Ark. 667, 97 S.W.3d
413 (2003).
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