Brown v. State

• Decision Date: 04 November 2010
• Docket Number: No. CR 10–242.,CR 10–242.
• Citation: 2010 Ark. 420,378 S.W.3d 66
• Parties: Randy Paul BROWN, Appellant v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

2010 Ark. 420

378 S.W.3d 66

Randy Paul BROWN, Appellant

v.STATE of Arkansas, Appellee.

No. CR 10–242.

Supreme Court of Arkansas.

Nov. 4, 2010.

The Law Offices of J. Brent Standridge, P.A., Benton, by: J. Brent Standridge, for appellant.

Dustin McDaniel, Att'y Gen., by: Eileen W. Harrison, Ass't Att'y Gen., for appellee.

RONALD L. SHEFFIELD, Justice.

Appellant Randy Paul Brown appeals from a judgment and commitment order, entered on November 24, 2008, finding him guilty of one count of sexual assault in the second degree. Brown also appeals from an order denying his motion for posttrial relief, entered on January 21, 2009. On appeal, Brown argues that the trial court erred by (1) permitting thirty-five year old uncharged misconduct evidence to be admitted during the sentencing phase of the trial; (2) not granting appellant a reduction in sentence in that the jury's recommendation of sentence occurred as a result of passion and prejudice; and (3) denying appellant's motion for posttrial relief as the verdict was contrary to the law and evidence. On February 17, 2010, the Arkansas Court of Appeals affirmed Brown's conviction but reversed and remanded for resentencing. Brown v. State, 2010 Ark. App. 154, 377 S.W.3d 354. We granted review; thus, our jurisdiction is pursuant to Ark. R. Sup. Ct. 2–4 (2010).

On November 2, 2007, the State filed a criminal information against Brown, charging him with five counts of sexual assault in the second degree pursuant to Arkansas Code Annotated section 5–14–125 (Repl.2006). The charges arose out of allegations that Brown had sexually assaulted his next-door neighbor, B.R., who was eight years old at the time of the abuse. On November 14, 2008, after Brown learned that the State intended to call Lou Ann Turri as a witness, he filed a motion in limine, seeking to exclude her testimony pursuant to Arkansas Rule of Evidence 404(b). According to the motion in limine, Turri's proffered testimony was that when she was thirteen years old, thirty-four years prior to the alleged criminal conduct against B.R., she visited her cousin, Brown's wife, and Brown initiated sexual contact with her. The circuit court heard the matter at an omnibus hearing on November 18, 2008, after which it granted the motion. The court specifically found that while relevant, Turri's testimony would be more prejudicial than probative.

Following a two-day jury trial, on November 18 and 19, 2008, Brown was convicted of one count of sexual assault in the second degree.¹ At the conclusion of the State's case, Brown moved for a directed verdict, arguing that “the State ha[d] not made a fact question regarding the elements of the crime....” The court denied the motion. Brown renewed the motion for directed verdict at the close of his case, which was again denied.

After the jury verdict was announced, the circuit court held an in camera hearing in which the State indicated its intent to introduce Turri's testimony during the sentencing phase of the trial. The trial court heard the proffered testimony of Turri again as well as arguments by the State and defense counsel, after which it ruled that Turri's testimony was relevant in sentencing as evidence of the defendant's character and as an aggravating circumstance.

The jury heard testimony at the penalty phase, including that of Turri, and recommended the maximum sentence of twenty years' incarceration in the Arkansas Department of Correction. The circuit court then sentenced Brown in accordance with the jury's recommendation. On December 23, 2008, Brown filed a motion for posttrial relief, again asserting that it was error to admit Turri's testimony at sentencing. He sought a reduction in sentence, or, in the alternative, a new trial. The motion also sought a new trial on guilt because, according to Brown, the jury's verdict was contrary to the law and evidence because the State's witnesses “should not be credited.” The circuit court heard the motion on January 21, 2009, and announced its intention to deny the motion on all three points. An order denying the motion for posttrial relief was entered the same day.

On January 28, 2009, Brown filed a timely notice of appeal to the Arkansas Court of Appeals. A unanimous three-judge panel affirmed Brown's conviction and reversed and remanded for resentencing, finding that the circuit court erred in admitting Turri's testimony at the sentencing phase of the trial.² The State filed a petition for review, which was granted on April 29, 2010. When this court grants review, we treat the appeal as if it were originally filed in this court. See, e.g., T.C. v. State, 2010 Ark. 240, 364 S.W.3d 53.

I. Sufficiency of the Evidence

Because Brown's third point on appeal is a challenge to the sufficiency of the evidence, double-jeopardy concerns require us to address it first. See, e.g., Cockrell v. State, 2010 Ark. 258, 370 S.W.3d 197;see also Murchison v. State, 249 Ark. 861, 874–75, 462 S.W.2d 853, 859 (1971) (motion for new trial on grounds the verdict is contrary to the evidence is a challenge to the sufficiency of the evidence).

On appeal, Brown contends that the jury's verdict finding him guilty of sexual assault in the second degree was contrary to the law and evidence. Specifically, Brown maintains, as he did at trial, that B.R.'s parents instructed her to say that Brown had touched her in order to extort money from him. According to Brown, B.R.'s parents were in difficult financial circumstances and fabricated the abuse allegations to recover a civil judgment from him. The State answers that sufficient evidence supports the verdict. We affirm.

The standard of review for a sufficiency-of-the-evidence challenge is well established; this court views the evidence in the light most favorable to the State and considers only evidence that supports the verdict. See, e.g., Carter v. State, 2010 Ark. 293, 367 S.W.3d 544. We will affirm a verdict if there is substantial evidence to support it. Id. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or another, without resorting to speculation or conjecture. Id.

Brown was charged with and found guilty of second-degree sexual assault, pursuant to Arkansas Code Annotated section 5–14–125:

(a) A person commits sexual assault in the second degree if the person:

(3) Being eighteen (18) years of age or older, engages in sexual conduct with another person who is:

(A) Less than fourteen (14) years of age; and

(B) Not the person's spouse.

Ark.Code Ann. § 5–14–125(a)(3) (Repl.2006).³ It is undisputed that B.R. was under the age of fourteen when the abuse occurred and that she was not Brown's spouse. Thus, the only disputed element of the second-degree sexual assault charge was whether Brown engaged in sexual contact with B.R. “Sexual contact” is defined by statute as “any act of sexual gratification involving the touching, directly or through clothing, of the sex organs, buttocks, or anus of a person or the breast of a female.” Id.§ 5–14–101(9). Finally, this court has held that in cases of sexual abuse, the jury can assume that the defendant had sexual contact with the victim for the purpose of sexual gratification, and it is not necessary for the State to directly prove that he was so motivated. Bryant v. State, 2010 Ark. 7, 377 S.W.3d 152.

The State's first witness was the victim, B.R. The prosecuting attorney asked her if she knew the difference between right and wrong, and B.R. answered affirmatively. She then testified that it was wrong to lie and that there were consequences for doing so. B.R. identified the parts of a male and female body, specifically referring to a vagina as a “pee pee” and breasts as “boobs.” ⁴ B.R. testified that the pee pee, boobs, and butt were private on a girl, and the penis and butt were private on a boy. She also told the jury that a “good touch” was a “hug or a pat or something like that” and a “bad touch is somewhere you're not supposed to touch.” The prosecutor then asked B.R. if anyone had ever given her a bad touch. B.R. responded affirmatively and named the defendant, Randy Brown.

B.R. testified that she knew Brown because he had been her neighbor. She said that she saw him often and that she would go to his yard and help him garden. B.R. told the jury that she felt Brown was trustful and she did not feel unsafe around him but that changed when “he touched [her] in the wrong place.” It was B.R.'s testimony that Brown touched her on her boobs and her pee pee more than one time. She said that she would sometimes go into Brown's house, and the touching occurred in the laundry room. According to B.R., Brown would touch her under her clothes and would say, “I love my [B.],” and “does that feel good?” B.R. also testified that once, in Brown's den, he lifted up her shirt and his shirt, and “his stomach touched [hers].”

B.R. also said that Brown “sat down on top of [her] and humped [her] moving back, moving forwards and backwards.” It was her testimony that his penis touched her through his clothes and that “he breathed really hard.” Next, B.R. told the jury that, on one occasion, she went to Brown's house to show his wife, Cathy, her “fluffy purple dress.” She said that when she got there, Brown said that Cathy was in the bathroom, and then he touched her pee pee with his hand. B.R. also testified that Brown had “kissed [her] pee pee.”

The prosecutor then asked B.R. why she did not tell anyone after the first time Brown touched her. She responded as follows: “I didn't understand what, I didn't know that could even happen to a little girl. And I didn't know what it meant. I didn't know it was bad. I didn't know.” B.R. testified that later she “just got a feeling” and that she told her mother after she “realized it was bad, just that feeling that makes you kind of aware.”

The State next called B.R.'s father, Andy. He testified that he had a good “neighborly...