Brown v. State
| Decision Date | 14 June 2006 |
| Docket Number | No. CA CR 05-33.,CA CR 05-33. |
| Citation | 237 S.W.3d 95 |
| Parties | John H. BROWN, Appellant v. STATE of Arkansas, Appellee. |
| Court | Arkansas Court of Appeals |
David O. Bowden, Little Rock, for appellant.
Mike Beebe, Att'y Gen., by: Kent G. Holt, Ass't Att'y Gen., Little Rock, for appellee.
John H. Brown was charged in the Circuit Court of Saline County with one count of first-degree sexual assault under Ark. Code Ann. § 5-14-124 (Supp.2001). The charge was based upon a complaint by Brown's fifteen-year-old niece by marriage, who went with her parents to the Saline County Sheriff's office on August 4, 2003, to make the allegation against him. Brown was found guilty in a jury trial and was sentenced to twenty-five years in the Arkansas Department of Correction. Brown filed a motion for a new trial in which he asserted that, due to actions of the prosecuting attorney and certain rulings of the trial court, Brown had been deprived of fundamental fairness and due process of law and of his right to a fair and impartial trial.
Brown appeals his conviction and motion for new trial, which was deemed denied by the trial court. He raises five points: 1) that no substantial evidence supports the verdict, absent passion, prejudice, and speculation; 2) that the trial court erred by failing to require proper discovery and by failing to enforce its own discovery order; 3) that he was denied the right to a full, fair, and public trial; 4) that he was denied the right to a recognized defense and to a full and fair trial; and 5) that the State engaged in a prolonged, blatant, and repeated pattern of misconduct in order to inflame the passions of the jury against him. We find merit in the second point. Therefore, the case is reversed and remanded to the trial court.
The sufficiency of the evidence
As his first point on appeal, Brown contends that "there was no substantial competent evidence from which a rational finder of fact could find guilt beyond a reasonable doubt absent passion, prejudice and speculation." We do not reach the merits of this point because it is not preserved for our review.
The State's case-in-chief included testimony by Brown's niece, H.M., and by Dr. Jerry Jones, who examined her in July 2004. H.M. testified that in July 2003 she stayed with Brown and her aunt (Brown's wife) while H.M.'s parents relocated their home from Texas to Virginia, where her father took a job as a youth pastor. She stated that the sexual assault occurred on July 8, 2003. She said that at 3:56 a.m., as shown by a digital clock with a lighted dial, she awoke to feel Brown's hand in her pajama pants and his finger in her vagina. She stated that she had been sleeping on the couch in a zipped sleeping bag but that the bag had been pulled down to mid-thigh. She said that she told a friend about the incident, the friend told a second friend, and the second friend told her parents around three days later.
H.M. further testified that her parents took her to local authorities in Arkansas on August 4, 2003, where they made their complaint and were advised to have H.M. undergo a medical examination. She testified that she did not get the exam and that the family left Arkansas the next day. Dr. Jones testified that the findings of an examination he performed on H.M. at Arkansas Children's Hospital on July 7, 2004, were consistent with a history of suspected sexual abuse.
Brown moved for a directed verdict at the close of the State's case. The pertinent part of his motion was as follows:
That brings us down to the word of [H.M.]. Your Honor, the time line and her mannerisms, her demeanor the entire — the confusion as to dates, the fact that, at least even if unwittingly, the prosecution has given her the language and vocabulary for her testimony. All these things add up to testimony that's incredible and unworthy of belief.
I do not believe that they have made the elements of the crime and we would ask, therefore, for a directed verdict because a finder of fact, a reasonable finder of fact, could not find beyond a reasonable doubt based on the testimony that we have heard that this occurred in the way that they have alleged.
The trial court denied the motion, ruling that the basic elements of the offense "were set out by the witness and it really comes down to a credibility issue." At the close of all the evidence, Brown renewed his motion on the same grounds as previously alleged, and the trial court again denied the motion.
Brown argues on appeal that his conviction was based on "the word of a confused and contradictory complaining witness, a minor who had been coached by her family, the prosecution team and the inept questioning of the investigating team of the investigating officers." He asserts that no rational finders of fact, without resorting to speculation and without having had their passion inflamed so as to overbear their logic, could find beyond a reasonable doubt that the events described by the victim actually happened.
A motion for a directed verdict is a challenge to the sufficiency of the evidence. Martin v. State, 354 Ark. 289, 119 S.W.3d 504 (2003). On appeal, the evidence is viewed in the light most favorable to the State, considering only the evidence that supports the verdict. Id. The testimony of the victim alone may constitute substantial evidence to support a conviction for sexual assault. E.g., id. The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id. It is well-settled that it is the job of the jury, as fact finder, to weigh inconsistent evidence and to make determinations in credibility. Warner v. State, 93 Ark.App. 233, 218 S.W.3d 330 (2005).
Brown's motions for directed verdict asserted that the victim's testimony was incredible and that the State had not "made the elements of the crime." The appellate court will not review a motion for a directed verdict if it merely asserts that the State has failed to prove the elements of the crime and does not specify the missing element. E.g., Miller v. State, 328 Ark. 121, 132, 942 S.W.2d 825, 831 (1997). Arguments regarding witnesses' credibility provide no basis for the appellate court to reverse a trial court's denial of a motion for a directed verdict. See Weber v. State, 326 Ark. 564, 933 S.W.2d 370 (1996) (). Thus, the first point on appeal is not preserved for our review and we will not address it.
As his second point on appeal, Brown contends that the trial court erred by failing to require that discovery be properly made and by failing to enforce the court's own discovery order. Specifically, he contends that the State should have revealed to him a calendar that was used to help the victim remember events of the summer in which the alleged assault took place. He points to the requirement of Rule 17.1(d) of Ark. R.Crim. P. (2006), that the prosecutor shall, promptly upon discovering the matter, disclose to defense counsel any material and information within his knowledge, possession, or control, which tends to negate the guilt of the defendant as to the offense charged. The calendar was not revealed to Brown in discovery. When the victim testified at trial that the calendar indeed existed and Brown asked that he be allowed to see it, the trial court denied his request on the basis that it was the prosecutor's work product.
Brown maintains that information he obtained in the course of his investigation caused him to believe that the victim had formulated a diary, journal, or some sort of similar document "that would be related to days and dates of occurrences." He notes that the State's amended information, filed on August 9, 2004, alleged that the assault occurred on or about July 1-15, 2003, but the date given in the original information, filed on November 17, 2003, was July 15, 2003. He also points to contradictions within the victim's trial testimony about the date of the assault. He asserts on appeal, as he did in the trial court, that the establishment of a time line was crucial to his defense because the date that was first alleged could not be reconciled with the summer schedule of the victim's family and was during a time that Brown was hospitalized.
Various motions and responses between the parties followed the filing of the original information. On June 29, 2004, the State wrote in response to a discovery motion by Brown:
1. The defendant produced an order requesting the State to produce documents the defense claims [are] crucial to his case. Specifically, the defendant request[s] from the victim, diaries, journals, notebooks, letter, photographs, drawings, notes, memoranda or any other document or writing written by her relating to the facts of this case between the dates of July 1, 2003, to August 1, 2003.
....
3. There is no proof that the items the defendant request[s] are in existence. If they exist, they are not part of the State's file and the State has not sought to include them.
4. Considering of course the items the defendant requests exist, the State is under no obligation to produce them.
(Emphasis added.)
The trial court found on June 30, 2004, that Brown's motion "to cause certain witnesses for the State and those associated with them to provide documents crucial to his case" was well-taken. The court stated in its written order:
The complaining witness, H.M., is hereby ordered to provide to the Defense any diary, journals, notebooks, letters, photographs, drawings, notes, memoranda or any other document or writing composed by H.M. relating to the facts of this case or to Defendant John...
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