Chunestudy v. State

• Decision Date: 24 May 2012
• Docket Number: No. CR 11–1161.,CR 11–1161.
• Citation: 2012 Ark. 222,408 S.W.3d 55
• Parties: Joseph CHUNESTUDY, Appellant v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

2012 Ark. 222

408 S.W.3d 55

Joseph CHUNESTUDY, Appellant

v.STATE of Arkansas, Appellee.

No. CR 11–1161.

Supreme Court of Arkansas.

May 24, 2012.

Paul J. Teufel, Jonesboro, for Appellant.

Dustin McDaniel, Atty. Gen., Valerie Glover Fortner, Asst. Atty. Gen., for Appellee.

PAUL E. DANIELSON, Justice.

Appellant Joseph Chunestudy appeals the judgment and commitment order of the Green County Circuit Court finding him guilty of rape and sentencing him to life imprisonment. On appeal, Chunestudy argues that the circuit court erred by (1) allowing the introduction of prior and subsequent acts into evidence; (2) allowing the State to comment on Chunestudy's right to remain silent; (3) allowing a supervisor with the Arkansas State Police to testify as an expert and lay witness during the guilt phase of trial; and (4) denying his motion for a directed verdict. We find no error and affirm.

Chunestudy did not present a proper challenge to the sufficiency of the evidence; therefore, only a brief recitation of the facts is necessary. Criminal charges were filed against Chunestudy on November 19, 2009, alleging that he raped his minor daughter in Green County, Arkansas, between the dates of March 1, 2003, and April 27, 2005. A jury trial began on August 10, 2011.

At trial, the State presented evidence, including the testimony of the victim herself, that Chunestudy had an ongoing, long-term sexual relationship, including sexual intercourse, with his minor daughter. The abuse began when they lived in Oklahoma when she was only eleven or twelve and continued after they moved to Arkansas, including when they resided in Greene County. When Chunestudy and the victim lived in Greene County, she was between the ages of fifteen and eighteen. Chunestudy later married her when she reached maturity, and they moved to Craighead County. The victim eventually moved back to Oklahoma to live with her ex-stepmother, where she disclosed the abuse. Her ex-stepmother called the authorities to report the relationship, and an investigation began, which led to Chunestudy's arrest.

The jury found Chunestudy guilty of rape and sentenced him to life imprisonment. It is from that conviction and sentence that he now appeals.

We first address Chunestudy's argument that the circuit court erred in denying his motion for directed verdict. Although, in his brief, Chunestudy challenges the circuit court's denial of his motion for directed verdict as his last point on appeal, this court determines challenges to the sufficiency of the evidence before addressing other points on appeal due to double-jeopardy concerns. See Lacy v. State, 2010 Ark. 388, 377 S.W.3d 227. The State contends that Chunestudy did not preserve this argument for appeal and, regardless, that his argument is without merit. We agree with the State that this issue is not preserved for our review.

Chunestudy admittedly failed to renew his motion at the close of all the evidence. The plain language of Rule 33.1 requires that the motion be renewed at the close of all the evidence. SeeArk. R.Crim. P. 33.1(a)(c) (2011). The failure to do so operates as a waiver of any question relating to the sufficiency of the evidence to support the jury's verdict. See id. See also Davis v. State, 2009 Ark. 478, 348 S.W.3d 553;Cummings v. State, 315 Ark. 541, 869 S.W.2d 17 (1994). We interpret Rule 33.1 strictly. See Williamson v. State, 2009 Ark. 568, 350 S.W.3d 787;Grady v. State, 350 Ark. 160, 85 S.W.3d 531 (2002). Therefore, Chunestudy's failure to renew his motion for directed verdict at the close of all the evidence operated as a waiver of his challenge to the sufficiency of the evidence to support the jury's verdict, and the issue is not preserved for our review.

Chunestudy argues that the circuit court erred when it allowed the State to introduce evidence of other sexual activity with the victim prior and subsequent to the offense dates of which he was charged. Specifically, he contends that the evidence was inadmissible pursuant to Ark. R. Evid. 404(b) as character evidence that had no relevance except to show his propensity to commit the crime charged and that the prejudicial effect of the evidence outweighed its probative value under Ark. R. Evid. 403. The State avers that the circuit court's rulings should be upheld as such evidence not only corroborated the victim's testimony of what occurred in Greene County during the years relevant to the charge, but also demonstrated Chunestudy's proclivity for sex with her and his opportunity, intent, and plan. We agree with the State and uphold the circuit court's evidentiary rulings.

Chunestudy filed two motions in limine asking the circuit court to prevent the introduction of sexual acts between he and the victim that occurred outside of the dates alleged in the information—March 1, 2003 to April 27, 2005—the time the two lived in Greene County. The State responded with its own motion, asking the court to permit the admission of the same. The circuit court found the prior sexual acts were admissible but reserved ruling on any acts subsequent to those dates. During the course of trial, the court also allowed the introduction of sexual acts that occurred subsequent to the dates alleged in the information. Specifically, Chunestudy contests that the circuit court erred by admitting the following evidence: Chunestudy's marriage to the victim in Craighead County; Chunestudy's arrest for incest in Craighead County; Chunestudy's admission that he had sex with his daughter, the victim, after she turned eighteen; the victim's testimony about Chunestudy allowing her to watch pornography and engaging in sexual intercourse with her when the two lived in Oklahoma; the victim's testimony regarding Chunestudy's sexual intercourse with her that occurred in Mountain View, Arkansas, prior to their move to Greene County, Arkansas; testimony of the victim about events after she reached maturity, such as moving to Jonesboro, the marriage to Chunestudy, a pregnancy, and their divorce; and, the victim's testimony that covered sexual acts that occurred over a ten-year time period in multiple jurisdictions.

Rule 404(b) provides that

[e]vidence 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.

Ark. R. Evid. 404(b) (2011). Evidence is not admissible under Rule 404(b) simply to show a prior bad act. See Vance v. State, 2011 Ark. 243, 383 S.W.3d 325. In reviewing the admission of evidence under Rule 404(b), this court has observed that circuit courts have broad discretion in deciding evidentiary issues, and their decisions are not reversed absent an abuse of discretion. See Rounsaville v. State, 2009 Ark. 479, 346 S.W.3d 289. We review a circuit court's decision to admit evidence over a Rule 403 objection under an abuse-of-discretion standard as well. See Flanery v. State, 362 Ark. 311, 208 S.W.3d 187 (2005).

When the charge concerns the sexual abuse of a child, evidence of other crimes, wrongs, or acts, such as sexual abuse of that child or other children, is admissible to show motive, intent, or plan pursuant to Ark. R. Evid. 404(b). See Hathcock v. State, 357 Ark. 563, 182 S.W.3d 152 (2004). This is known as the “pedophile exception.” See id. We have approved allowing evidence of the defendant's similar acts with the same or other children when it is helpful in showing a proclivity for a specific act with a person or class of persons with whom the defendant has an intimate relationship. See Kelley v. State, 2009 Ark. 389, 327 S.W.3d 373. The rationale for this exception is that such evidence helps to prove the depraved sexual instinct of the accused. See id. For the pedophile exception to apply, we require that there be a sufficient degree of similarity between the evidence to be introduced and the sexual conduct of the defendant. See id. We also require that there be an “intimate relationship” between the perpetrator and the victim. See id.

Here, the victim's testimony fell squarely under the pedophile exception to Rule 404(b). The relationship between the victim and her father was clearly an intimate one. See White v. State, 367 Ark. 595, 242 S.W.3d 240 (2006). Furthermore, the similar acts she described were exactly of the same nature as the acts that occurred in the time frame listed in the information—it was an ongoing sexual relationship. We hold that the circuit court did not abuse its discretion in admitting this evidence.

We also do not find Chunestudy's Rule 403 argument convincing. Rule 403 provides that, “[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence.” Ark. R. Evid. 403 (2011). This court has noted that evidence offered by the State is often likely to be prejudicial to the accused, but the evidence should not be excluded unless the accused can show that it lacks probative value in view of the risk of unfair prejudice. See Eubanks v. State, 2009 Ark. 170, 303 S.W.3d 450 (2009).

In cases involving evidence subject to the pedophile exception, we have looked to the similarities between the alleged prior conduct and the charged conduct to determine whether they make the evidence probative on the issue of the accused's motive, intent, preparation, plan, and scheme. See id. When the similarities are significant, we have permitted the evidence, despite the prejudice to the accused. See id. We have also noted that the evidence is permissible when the similarities make it probative on the issue of the accused's deviate sexual impulses. See id.

As for the other evidence...