Butler v. State

Decision Date13 June 2002
Docket NumberNo. CR 01-487.,CR 01-487.
Citation349 Ark. 252,82 S.W.3d 152
PartiesEllis Charles BUTLER v. STATE of Arkansas.
CourtArkansas Supreme Court

David O. Bowden; and Hicks Law Firm, by: Rickey H. Hicks, Little Rock, for appellant.

Mark Pryor, Att'y Gen., by: Valerie L. Kelly, Ass't Att'y Gen., Little Rock, for appellee.

TOM GLAZE, Justice.

This second appeal follows an earlier appeal from seven convictions Ellis Butler sustained for rape and violations of a minor in the first-degree. We reversed and remanded Butler's convictions, holding the trial court abused its discretion in denying a continuance when a last-minute change in counsel prejudiced Butler's preparation for trial, because his counsel was not provided full discovery of the names of the victims who were allegedly sexually violated. See Butler v. State, 339 Ark. 429, 5 S.W.3d 466 (1999).

On remand, Butler requested that the various charges be severed because all of the charges involving one victim, B.J.M. were for rape, and the two other charges involved counts of violating two other girls, A.W. and K.H., who were minors. The State agreed to sever the counts "by victim," so the rape charges involving B.J.M. would be tried separately. Butler went to trial on three rape charges involving B.J.M., and was convicted on all three counts. He was sentenced to thirty-two years on each count, to run consecutively, totaling 96 years' imprisonment. Butler brings this appeal, arguing four points for reversal.

Butler first contends that the evidence was insufficient to sustain the rape charges. His argument is meritless. We have repeatedly held that, when a defendant challenges the sufficiency of the evidence convicting, the evidence is viewed in the light most favorable to the State, Dixon v. State, 310 Ark. 460, 839 S.W.2d 173 (1992), and only evidence supporting the verdict will be considered. McGehee v. State, 328 Ark. 404, 943 S.W.2d 585 (1997). This court has also held that the uncorroborated testimony of a rape victim is substantial evidence to support a rape conviction if the testimony satisfies the statutory elements. Williams v. State, 331 Ark. 263, 962 S.W.2d 329 (1998). Here, Butler was charged with rape under Ark.Code Ann. § 5-14-103(a)(4) (Repl.1997), which provides that one commits rape if he engages in sexual intercourse or deviate sexual activity with another person who is less than fourteen years of age. "Sexual intercourse" means "penetration, however slight, of the labia majora by a penis," and "deviate sexual activity" means "any act of sexual gratification involving ... [t]he penetration, however slight, of the labia majora or anus of one person by any body member or foreign instrument manipulated by another person." § 5-14-101(1)(B).

Butler was the "general overseer of Maturing Word Ministries, Universal Church of God." In February of 1997, Sergeant Bob Roten of the Sex Crimes Division of the Arkansas State Police became aware of allegations of sexual abuse in Shirley, Arkansas, involving Butler. Roten and another officer traveled to Shirley, where they spoke to Butler. They found that two girls, A.W. and K.H., who were students at Butler's school, had made allegations to school officials. After conducting this investigation, Roten learned that another girl, B.J.M., who was now living in Sylvester, Georgia, had previously made a statement, that contained allegations against Butler. B.J.M.'s statement matched the information Roten had received from A.W. and K.H.

B.J.M., who was nineteen and married at the time of the trial, was only nine or ten at the time of the first incident involving Butler. She testified that she met Butler in 1990 in Sylvester, Georgia, where she was introduced to him by her parents. Shortly after meeting Butler, her family moved to Shirley to help him start a ministry. Butler established the Universal Church of God in 1991, and also established the Universal Christian Academy, a ministry associated with the church. One day during the "cold months" of the 1991-92 school year,1 B.J.M. was alone in Butler's office with him when he grabbed her around the waist, laid her on the floor, and started kissing her. He then digitally penetrated her. She asked him what he was doing, and he said that he was "just playing" with her. Afterwards, he took the girl home and told her that she could not tell anyone what had happened.

B.J.M. and her family moved back to Georgia in August of 1993, but she saw Butler again when she returned to Arkansas in December of 1993, and stayed with Butler for a week. During that time, as they were leaving his office one night, he digitally penetrated her again. On another occasion, as they were driving home together, Butler pulled his car over on a dirt road that was close to his house; he put B.J.M. on the hood of his Mustang and had sexual intercourse with her. Afterwards, she returned to Georgia and never came back to Arkansas.

B.J.M.'s testimony constituted sufficient evidence to support the three rape convictions. She was born on March 10, 1981, and, therefore, was under the age of fourteen at the time of the events during the 1991-92 school year and again in December of 1993. She testified that Butler digitally penetrated her on two different occasions, and had sexual intercourse with her once. Although Butler contradicted her testimony, the jury was free to believe all or part of the victim's testimony and disbelieve Butler's assertions. See Sera v. State, 341 Ark. 415, 17 S.W.3d 61 (2000).

Butler's second point suggests the trial court erred in failing to grant his mistrial motion when a juror, Keith Latimore, revealed for the first time during jury deliberations that he knew something about Butler's earlier trial. Latimore did not raise his hand when defense counsel asked jurors on voir dire if they had heard anything about the case. During deliberation, the jury sent a note to the trial judge that one of the jurors (Latimore) raised the question of Butler's prior trial and that Latimore was concerned abut Butler's having served three years in jail. The jury wanted to know the implications of Latimore's concern. The trial judge had Latimore come into his chambers, where the following exchange occurred:

COURT: Are you Mr. Latimore?

LATIMORE: Yes, sir.

COURT: 1 guess you're aware of the question that was raised?

LATIMORE: Yes, sir.

COURT: Are you the one that raised the question?

LATIMORE: Yes, sir.

COURT: Mr. Latimore, did — do you recall going through voir dire and the question being asked if any of you know anything about this case?

LATIMORE: Yes, sir.

COURT: Do you recall your answer?

LATIMORE: Yes, sir.

Court: And what was your answer?

LATIMORE: That I didn't. I thought it was prior than what was presented from the media. I didn't know anything outside of what I saw or read in the paper. I thought everybody that was here knew — knew about what had happened.

COURT: So you didn't think that it applied to any information at all, just what had happened since he had been arrested this time?

LATIMORE: No, sir.

COURT: Well, what kind of information did you disclose to the other jurors?

LATIMORE: We were discussing — I mean, by then everybody had already made up their minds and they asked me how did I feel. I told them, you know — I told them I believe that ...

COURT: Well, I don't know want to know what your vote was, Mr. Latimore.

LATIMORE: Okay. Okay.

COURT: I just want to know what you told them.

LATIMORE: I told them that I — that he had already served three years and apparently something wasn't right the first time or we wouldn't be back here a second time. So before we put a man up for life or whatever, I don't know what we're going to do, but we need to think real close this time and get it right and don't make the same mistakes that they made the first time.

COURT: All right. You can go back.

Butler moved for a mistrial, stating that an instruction by the trial court to the jury could not cure the prejudice caused by Latimore's actions, and that the jury was "weighing more than just the evidence ... presented in the case." The trial judge took Butler's motion under advisement, and after the jury recessed overnight, the judge ruled the next day as follows:

In looking back on that, of course, the sole issue of whether I declare a mistrial is whether the prejudice occurred. And if that prejudice is so powerful that it can't be corrected by some admonition or something else, the supreme court and the court of appeals are real clear that a mistrial is something that is to be avoided if possible as an extreme remedy. My reading of what he said is that everybody had their mind(s) made up already and it was kind of like Regis Philbin saying, "Is that your final answer." And they — I think, you know — you just have to speculate, really, to know what was going on, but they were inquiring of him, because he was the only African American on the panel, how did he feel about it. And that's my opinion. I think at that point, he was advising the jurors they needed to use extra caution and that — in my opinion, that really inured to the benefit of the defendant.

Now, they've asked a question, so at that point, I've asked a question. I'm going to find that if there is prejudice it's merely speculative and based on what he said, I don't find that there is any prejudice.

After the trial court's ruling, the court cautioned the jurors to read again the instructions given them before and at the close of trial. It further told the jurors that it was their duty to determine the facts from the evidence produced at trial and to apply the law contained in the jury instructions to the facts when rendering its verdict. When none of the jurors indicated they could not follow the court's instructions, the jury returned to its deliberations. Sometime afterwards, Latimore told the bailiff that he wanted to speak to the judge, and the judge, by note, asked Latimore, "What do you want to...

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