Bynum v. State
| Decision Date | 02 June 2021 |
| Docket Number | No. CR-20-444,CR-20-444 |
| Citation | 2021 Ark. App. 298,626 S.W.3d 154 |
| Court | Arkansas Court of Appeals |
| Parties | James N. BYNUM, Appellant v. STATE of Arkansas, Appellee |
Weimar Law Office, by: DeeAnna Weimar, for appellant.
Leslie Rutledge, Att'y Gen., by: Jacob H. Jones, Ass't Att'y Gen., for appellee.
Appellant James N. Bynum was convicted in a jury trial of one count of second-degree sexual assault committed against T.H. and one count of second-degree sexual assault committed against C.P. T.H. and C.P. were minors when the offenses were committed. For these offenses, Bynum was sentenced to two concurrent five-year prison terms.
Bynum now appeals, raising four arguments for reversal. His first and third arguments challenge the sufficiency of the evidence supporting his convictions. Bynum's remaining two arguments assign error with respect to the jury instructions and the sentencing order entered by the trial court. We affirm.
This case has a long history and has been to our court twice before. In 2015, Bynum was sentenced to 100 years in prison after a jury found him guilty of ten counts of fourth-degree sexual assault committed against A.H. and one count each of second-degree sexual assault committed T.H. and C.P. On appeal, this court affirmed the second-degree sexual assaults committed against T.H. and C.P., but we reversed and dismissed the ten convictions for fourth-degree sexual assault committed against A.H. because all of these charges were filed after the applicable statute of limitations had expired. See Bynum v. State , 2017 Ark. App. 41, 511 S.W.3d 860 ( Bynum I ).
After our mandate in Bynum I was issued, Bynum timely filed a motion for postconviction relief with the trial court pursuant to Arkansas Rule of Criminal Procedure 37.1. The trial court denied Bynum's Rule 37 petition. However, we reversed the trial court's denial of postconviction relief holding that Bynum received ineffective assistance of counsel because his trial counsel had failed to move to dismiss the charges relating to A.H., all of which were clearly barred by the statute of limitations. See Bynum v. State , 2018 Ark. App. 477, 561 S.W.3d 755 ( Bynum II ). We held that charging Bynum for twelve offenses instead of two was prejudicial to Bynum as was A.H.’s testimony about the ten time-barred allegations. Id. Accordingly, we reversed and remanded for a new trial on the second-degree sexual-assault charges concerning T.H. and C.P.
After being retried on November 1, 2019, the jury again convicted Bynum of one count each of second-degree sexual assault committed against T.H. and C.P. From these convictions, this third appeal (Bynum III ) arises.
Because all the arguments raised in this appeal are related to the contents of the amended information filed by the State on October 25, 2019, it is necessary to recite the amended information in its entirety. The October 25, 2019, amended information states:
As will become more relevant in our discussion infra of the points raised in this appeal, the October 25, 2019, amended information differs in two important respects from the September 23, 2015, information that was filed prior to the first trial in this case. In the bold print following each "COUNT," the 2015 information referenced " Ark. Code Ann. § 5-14-125(a)(1), (3)(A), (4)(A)(iii) & (b)(1)," whereas the 2019 amended information references " Ark. Code Ann. § 5-14-125(a)(6) and (b)(1)." (Emphasis added.) It is undisputed that subdivision (a)(6) of the second-degree sexual-assault statute has no application to this case, and it provides:
Ark. Code Ann. § 5-14-125(a)(6) (Repl. 2013). The other difference between the criminal informations is that the 2015 information alleged that the separate offenses occurred on or about "March 1, 2013 through July 31, 2014" and "January 1, 2003 through February 11, 2014," whereas the 2019 amended information alleged that the separate offenses occurred on or about "March 1, 2013 and July 31, 2014" and "January 1, 2003 and February 11, 2014." (Emphasis added.)
Before setting forth the pertinent testimony at this trial, it is important to note how the jury was ultimately instructed in relation to the second-degree sexual-assault charges. The jury was not instructed on Ark. Code Ann. § 5-14-125(a)(6). The jury instructions were instead modeled after Ark. Code Ann. § 5-14-125(a)(3), which provides:
Ark. Code Ann. § 5-14-125(a)(3). "Sexual Contact" is defined 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." Ark. Code Ann. § 5-14-101(10) (Repl. 2013).
Bynum's wife testified that Bynum was born in 1961 and that she had been married to him for twenty-eight years. She further testified that Bynum had never been married to either T.H. or C.P.
T.H. testified that he was friends with Bynum's son and that he lived with the Bynums for a period of time in the summer of 2013, when T.H. was eleven years old. T.H. stated that there were some nights when Bynum would touch his genitals. T.H. stated that the first time it happened they were staying in a hotel in Hot Springs and that he and Bynum were in the same bed. On that occasion, Bynum put his hands in T.H.’s boxers and touched his genitals. T.H. testified that after that, a similar incident occurred at Bynum's house. T.H. stated that he was sitting in a recliner with Bynum when Bynum "put his hands in my pants and ... started playing with me like he did in Hot Springs."
On cross-examination, T.H. stated that he did not remember the dates these incidents occurred. Appellant's counsel produced hotel receipts showing that T.H. and Bynum's Hot Springs hotel stay was on June 7 and 8 of 2013. Based on these receipts, T.H. agreed that the incident in Hot Springs occurred on June 7 or 8 of 2013, and T.H. stated that the incident at Bynum's house happened two weeks after that.2
C.P. testified that when he was eleven or twelve years old, he was on a youth basketball team coached by Bynum. C.P. indicated that this was in either 2002 or 2003. C.P. stated that during this time, he would be with Bynum at basketball tournaments, on hunting trips, and at Bynum's house. C.P. testified about an incident that occurred at Bynum's house. C.P. stated, "I don't remember exact dates or anything like that" but said that it happened while he was sleeping in Bynum's bed. C.P. testified that he was lying on his right side, that Bynum was lying on his right side directly behind him, and that Bynum "had his hand down my pants and was putting...
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