Bonds v. State
| Decision Date | 13 June 1988 |
| Docket Number | No. CR,CR |
| Citation | 751 S.W.2d 339,296 Ark. 1 |
| Parties | John Russell BONDS, Appellant, v. STATE of Arkansas, Appellee. 88-4. |
| Court | Arkansas Supreme Court |
J. Blake Hendrix, Asst. Atty. Gen., Little Rock, for appellee.
Appellant John Russell Bonds was convicted of rape of his youngest daughter and incest against his eldest daughter and sentenced to a life and ten-year term, respectively, the sentences to run concurrently. He argues five points for reversal. We find no error and affirm the judgment of the trial court.
Bonds contends that the trial court erred in permitting the state to introduce evidence of sexual contact he had with his daughters other than that for which he was Rule 404(b) provides in pertinent part as follows:
charged in violation of Ark.R.Evid. 404(b). We disagree.
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.
In Sullivan v. State, 289 Ark. 323, 711 S.W.2d 469 (1986), we held that if evidence of prior acts of sexual contact between an accused and his step-daughter is relevant to show the rape of which appellant was accused had occurred, the evidence is admissible under Rule 404(b). Accordingly, since evidence of prior acts of sexual contact between Bonds and his daughters was relevant to show that the rapes and acts of incest of which Bonds was accused had occurred, the evidence was admissible.
Bonds argues that he was not adequately notified of the charges against him in violation of the sixth amendment to the United States Constitution and Art. 2, § 10, of the Arkansas Constitution because the rape and incest informations failed to specify the persons against whom and the specific dates on which the crimes were allegedly committed. We disagree.
The felony information charging Bonds with rape provided in pertinent part as follows:
[T]he State of Arkansas Charges John Russell Bonds with the crime of violating Ark.Stat.Ann. Section 41-1803(C) [Ark.Code Ann. § 5-14-103 (1987) ] Rape, to-wit: The said Defendant, in Van Buren County, Arkansas, on repeated occasions, engaged in sexual intercourse and deviate sexual activity with another person who was less than fourteen (14) years of age, against the peace and dignity of the State of Arkansas. A Class Y Felony.
The state amended the information to state that "said conduct by the defendant as alleged occurred within three years immediately preceding the filing of the original information."
The felony information charging Bonds with incest stated in pertinent part as follows:
[T]he State of Arkansas Charges John Russell Bonds with the crime of violating Ark.Stat.Ann. Section 41-2403 (Ark.Code Ann. § 5-26-202 (1987) ] (INCEST) committed as follows, to-wit: The said Defendant(s), in Van Buren County, Arkansas on or about the _____ day of ________, 19___, did unlawfully, feloniously, and being 16 years of age or older, had sexual intercourse and/or deviate sexual activity with a person he knew to be a descendant, step-child, or adopted child, against the peace and dignity of the State of Arkansas.
During a recess after the jury was sworn but before testimony was taken, the state made it clear that it would prove that the acts of incest for which Bonds was charged occurred within the three-year statute of limitations [Ark.Code Ann. § 5-1-109 (1987) ].
Although it is better and safer practice to include in an information or indictment the date on which or the time frame in which an offense occurred, it is not necessarily fatal to an indictment or information if such data is not included, unless time is an essential element of the offense. See Kirkham v. City of North Little Rock, 227 Ark. 789, 301 S.W.2d 559 (1957). See also Grayson v. State, 92 Ark. 413, 123 S.W. 388 (1909); Threadgill v. State, 99 Ark. 126, 137 S.W. 814 (1911).
Under the facts of this case, it was not necessary that the state include in the rape and incest informations the dates on which the offenses occurred. First, it is clear that time is not an essential element of rape, Huffman v. State, 288 Ark. 321, 704 S.W.2d 627 (1986), or incest. Secondly, the state informed Bonds that the rape for which he was charged took place within three years immediately preceding the filing of the original information and that the acts of incest for which he was charged Since he did not make the argument below, we will not address Bonds' contention that his constitutional rights were violated in that the indictments failed to include the names of the victims of the crimes. Gooden v. State, 295 Ark. 385, 749 S.W.2d 657 (1988). We do not consider issues raised for the first time on appeal. Id.
took place within the statute of limitations. Furthermore, in crimes of this nature against family members, as compared to offenses against victims with whom the accused had no prior contact, an accused is more likely to be aware of the specifics of the charges against him and therefore better able to prepare [296 Ark. 5] his defense.
Bonds contends that his convictions violated the double jeopardy clauses of the United States and Arkansas Constitutions based upon the following argument:
Of the multitude of incidents testified to against the defendant it is as reasonable as not that the jury believed only one daughter on one separate instant which may or may not have occurred after the child turned fifteen. The burden is on the state to prove the defendant guilty. But which charge, if any, did they prove?
Bonds has failed to support his double jeopardy contention with convincing argument or any citation of authority. He has in effect asked us to research the law on the subject. Therefore, we will not consider his assignment of error. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).
Bonds argues that the trial court erred in not admitting into evidence a "writing log" compiled by his youngest daughter. We hold otherwise.
On cross-examination, the defense and the daughter had the following dialogue:
Q. Do you keep any type of diary?
A. We had to keep a writing log for English. It was like fifteen minutes every Friday we would write stuff in it about how the week was.
Q. And this was for English.
A. Uh-huh.
Q. Did you hand those things in?
A. We hand--she didn't--she wouldn't read them, and she never--we didn't hand them in; she just checked to make sure we did it. We didn't hand it in. I had an assignment that I had to turn in, but--
* * *
Q. You did keep a diary, though, didn't you, that you wrote your secret thoughts in?
A. Not a diary.
Q. Well, you wrote them down.
A. In a writing log.
The defense then attempted to introduce the log for impeachment purposes stating:
Your Honor, these writings were writings that I think she admitted--she stated she did it for English class, but when she looks at them they are not--they are notes about boys, who she's in love with, some thoughts of little girls is not going to tell someone else, especially their parents. They don't want anyone else to look at it; it's their secret thoughts.
But in all this time there's not one mention of anything, not one, of her father of anything--trouble with her father or this abuse in all these writings. Now she tells how...
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