Baumann v. State

• Decision Date: 10 February 2021
• Docket Number: No. CR-20-415,CR-20-415
• Citation: 2021 Ark. App. 58
• Parties: ANTHONY BAUMANN APPELLANT v. STATE OF ARKANSAS APPELLEE
• Court: Arkansas Court of Appeals

2021 Ark. App. 58

ANTHONY BAUMANN APPELLANT v. STATE OF ARKANSAS APPELLEE

No. CR-20-415

ARKANSAS COURT OF APPEALS DIVISION II

FEBRUARY 10, 2021

APPEAL FROM THE BENTON COUNTY CIRCUIT COURT

[NO. 04CR-15-154]

HONORABLE ROBIN F. GREEN, JUDGE

AFFIRMED

ROBERT J. GLADWIN, Judge

Appellant Anthony Baumann appeals the Benton County Circuit Court's order denying his petition for postconviction relief pursuant to Rule 37.1 of the Arkansas Rules of Criminal Procedure (2020). Baumann argues in two points on appeal that his trial counsel was ineffective and that the circuit court erred in its rulings. We affirm the circuit court's denial of Baumann's petition for postconviction relief.

I. Procedural History

On May 21, 2015 a felony information was filed charging Baumann with one count of sexual assault in the second degree in Benton County Circuit Court based on an allegation that he assaulted his granddaughter's half sister, E.S. An amended felony information was filed on September 21, 2016, charging him with one count of sexual assault in the second degree and one count of rape.

At a hearing held on November 2, 2016, regarding the testimony of Baumann's daughter, Tanya Bridges (Tanya), the circuit court denied Baumann's motion to exclude the testimony pursuant to Arkansas Rule of Evidence 404(b). On June 6, 2017, Baumann moved to suppress certain testimony after the State sought to admit additional Rule 404(b) witnesses, and the circuit court determined that the additional Rule 404(b) evidence was inadmissible.

Baumann's jury trial was held on September 26-29, 2017, during which he successfully moved for a partial directed verdict and was acquitted on the rape charge. However, the jury found Baumann guilty of sexual assault in the second degree and sentenced him to twenty years in the Arkansas Department of Correction pursuant to a sentencing order entered on October 17. A notice of appeal was timely filed on October 12.

Baumann argued that (1) the circuit court erred by permitting Tanya to testify about similar acts of sexual assault pursuant to Rule 404(b); (2) the circuit court erred by refusing to exclude Tanya's testimony pursuant to Ark. R. Evid. 403; and (3) the State's questioning of detective Brian Hanna regarding other sexual-assault accusations against Baumann warranted a mistrial. This court affirmed on November 28, 2018, holding that the circuit court did not abuse its discretion by admitting Tanya's testimony pursuant to the "pedophile exception" to Rule 404(b). Baumann v. State, 2018 Ark. App. 564, at 13, 566 S.W.3d 494, 502. This court declined to consider Baumann's remaining arguments, holding that he did not obtain a clear ruling on his Rule 403 argument and did not move for a mistrial afterobjecting to Detective Hanna's testimony. Id. at 14-18, 566 S.W.3d at 503-05. Our supreme court denied his petition for review, and the mandate issued on January 17, 2019.

Baumann filed a timely petition for relief under Rule 37 on March 13, 2019, with the Benton County Circuit Court, with assistance of counsel, which alleged errors by trial counsel and contained a proper verification. In his petition, he alleged the following:

1. Trial counsel was ineffective in failing to request a mistrial after the State asked a detective to read a portion of the alleged victim's Children's Safety Center (CSC) interview, which had been excluded as Rule 404(b) evidence in the form of hearsay.

2. Trial counsel was ineffective in failing to establish for the jury a theory of the case for why the alleged victim, who was a minor, and other State's witnesses would have a motive to make false accusations that Baumann committed sexual assault and rape.

After two extensions, the State filed a response and brief in support on June 13, 2019. The circuit court did not hold a hearing on the matter but instead, following the parties' submissions, entered a five-page written order that denied relief on March 4, 2020.

In its order, the circuit court denied relief on Baumann's first claim, that trial counsel was ineffective for failing to request a mistrial, finding that trial counsel was not ineffective in choosing not to move for a mistrial, because Baumann had not demonstrated that this decision fell below an objective standard of reasonableness. The circuit court, citing McClinton v. State, 2015 Ark. 245, 464 S.W.3d 913, noted that a mistrial is a drastic remedy available only when an error has occurred that is so prejudicial as to be beyond repair and to affect the fundamental fairness of a trial. The circuit court acknowledged Baumann's taking issue with certain testimony elicited by the State during a direct examination of Detective Hanna when he was asked to quote from a transcript of a CSC interview of the allegedvictim, E.S. The quote was truncated by an objection from trial counsel, and the proceedings moved on. The circuit court determined that this testimony, similar to the cases of Brown v. State, 2019 Ark. App. 36, 568 S.W.3d 312; and Marbley v. State, CR 07-06, 2007 WL 2660224, at *2-3 (Ark. App. Sept. 12, 2007) (unpublished), cited by the State, lacked any sort of context that would have made it so prejudicial to a jury as to merit a mistrial. To the extent the quote contained prejudicial information in referencing other alleged victims, the circuit court pointed out that the quote itself named "Tanya," another witness in the case, and not Baumann.

Further, the circuit court noted that other alleged victims referenced in the quote were made known to the jury at a later point in the trial and that trial counsel had referred to their allegations as false. The circuit court also stated that Baumann himself advocated for this trial strategy on Issue 2 of his Rule 37 petition. The circuit court found that, had it been made, a motion for mistrial would not have been granted, and absent a demonstration that such a motion would have been granted, there is no showing of prejudice. See England v. State, 2018 Ark. App. 137, at 4, 543 S.W.3d 553, 559. The circuit court further indicated that Baumann was acquitted of the rape charge on trial counsel's directed-verdict motion subsequent to the decision not to request a mistrial. The circuit court found, accordingly, that it was apparent that the decision not to request a mistrial was a fruitful trial strategy. The decision to not request a mistrial falls within trial strategy if supported by reasonable professional judgment. Sims v. State, 2015 Ark. 363, 472 S.W.3d 107; Camargo v. State, 346 Ark. 118, 55 S.W.3d 255 (2001).

Next, the circuit court rejected Baumann's second claim, that his trial counsel was ineffective for failing to establish for the jury a theory of the case for why the alleged victim, who was a minor, and other State's witnesses would have a motive to make false accusations that Baumann committed sexual assault and rape. The circuit court found that trial counsel was not ineffective when it did not specifically adopt the alternate theories proposed by Baumann, noting that the decision of which theory to pursue as a defense falls within the protections of trial strategy. Flowers v. State, 2010 Ark. 364, 370 S.W.3d 228; Howard v. State, 367 Ark. 18, 238 S.W.3d 24 (2006). The circuit court stated that trial counsel need not advance every argument or theory urged by the client, see Flowers, supra, nor specifically adopt every detail of every alternate theory that the Rule 37 petition proposes.

The circuit court found that, contrary to the Rule 37 petition allegation, the trial record denotes many occasions in which trial counsel did attack the credibility of E.S.: (1) Trial counsel called into question her credibility and motivations during voir dire, opening statements, and closing arguments; (2) During the cross-examination of E.S., counsel highlighted a number of inconsistencies in her allegations, including whether or not Baumann had performed oral sex, where Baumann was sitting or lying at the time, and other things; (3) During the direct examination of Baumann's wife, trial counsel elicited testimony about the times E.S. had lied during her time in Baumann's home; (4) Trial counsel pointed out personal vendettas that several witnesses and adult influences of E.S. had against the Baumanns, and their motivations to lie, including custody battles and past false allegations; (5) On multiple occasions, trial counsel linked the credibility of E.S. to other witnesses wholacked credibility. Specifically, trial counsel referred on multiple occasions to a missing recording of an initial disclosure between E.S. and her mother as a "rehearsal."

The circuit court found that it did not need to hold an evidentiary hearing to surmise whether this was an intentional strategy of trial counsel. During a bench conference regarding the relevancy of certain testimony, trial counsel explicitly stated that E.S.'s mother influenced the content of E.S.'s initial disclosure, that her mother did not like her children being at Baumann's home, and that the adults involved make up allegations during custody battles. The circuit court stated that Baumann's allegation that trial counsel did not establish a theory about why E.S. and other witnesses would lie is not supported by a review of the record. Finally, the circuit court found that Baumann had not demonstrated prejudice as trial counsel did, in fact, attack the credibility and motives of E.S. and certain other witnesses.

A timely notice of appeal was filed on March 27, 2020, and Baumann now appeals from the circuit court's denial of his Rule 37 petition.

II. Standard of Review and Applicable Law

Our supreme court reiterated the standard of review in postconviction-relief cases in Johnson v. State, 2020 Ark. 168, at 4-6, 598 S.W.3d 515, 519-20:

When reviewing a circuit court's ruling on a petitioner's request for Rule 37.5 relief, this court will not reverse the circuit court's decision granting or denying postconviction relief unless it is clearly

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