Hutcheson v. State

• Decision Date: 14 September 2005
• Docket Number: No. CA CR 04-1034.,CA CR 04-1034.
• Citation: 213 S.W.3d 25
• Parties: Deborah Broadway HUTCHESON, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Court of Appeals

213 S.W.3d 25

Deborah Broadway HUTCHESON, Appellant, v. STATE of Arkansas, Appellee.

No. CA CR 04-1034.

Court of Appeals of Arkansas, Division I.

September 14, 2005.

Dustin D. Dyer, Benton, for appellant.

Mike Beebe, Att'y Gen., by: Karen Virginia Wallace, Ass't Att'y Gen., for appellee.

ANDREE LAYTON ROAF, Judge.

Deborah Broadway Hutcheson was charged as an accomplice for two counts of rape and one count of second-degree sexual assault for acts committed against her daughter, A.M.H. A Saline County jury found Hutcheson guilty of all three counts and recommended a sentence of twenty-five years for each of the rape convictions and ten years on the second-degree sexual assault conviction. The jury also recommended that the sentences be consecutive. The trial judge accepted the jury's recommendations, and Hutcheson was sentenced to a total of sixty years' imprisonment. On appeal, Hutcheson argues that the trial court erred (1) in denying her motions for directed verdict because there is insufficient evidence to establish accomplice liability; (2) in overruling her objections during voir dire and allowing the State to improperly commit the jury to a position on factual situations; (3) in ruling that her co-defendant's statements made to the investigating officer were admissible as an exception to the hearsay rule; and (4) in instructing the jury on accomplice liability by instructing the jury that she had a legal duty to prevent criminal acts of sexual abuse as set out in Ark.Code Ann. § 9-27-303(35) (Supp.2003). We find no merit to these arguments, and we affirm.

Hutcheson is the mother of two children: A.M.H., the victim in this case, and Michael Hutcheson. Sometime in 1995, Hutcheson permitted Kenneth Ragan to live with her and her two children. For two years, Ragan sexually assaulted A.M.H., who was then eight or nine years old. Although A.M.H. reported the abuse to Hutcheson, Hutcheson did nothing, and no action was taken until A.M.H. reported the rapes to her school counselor. School officials reported the abuse to the Department of Human Services, and DHS opined that Hutcheson had been wrong in failing to report the abuse of her child. Charges were filed against Ragan, and he was convicted and incarcerated for the crimes committed against A.M.H. and another child.

Shortly thereafter, Hutcheson permitted Gary Anderson and his mother, Maxine Anderson, to live with her family. Anderson also sexually assaulted A.M.H., then ten years old, for a period of approximately five years. Hutcheson again turned a deaf ear to her daughter's complaints, opting instead to take A.M.H. to the doctor to get birth-control pills. After Hutcheson refused to help her, A.M.H. again reported the abuse to her school officials, and another DHS investigation was initiated. When Hutcheson learned that DHS had been contacted, she took A.M.H. and Michael and fled from Garland County to Benton, in Saline County. Although Anderson had been jailed for the sexual-assault allegations, upon his release, Hutcheson permitted him to move back with her family in Benton. Each time A.M.H. told Hutcheson about the assaults, Hutcheson instructed her not to tell anyone about what had happened.

When A.M.H. reported an incident of rape by use of a bottle to Hutcheson, Hutcheson refused to listen to A.M.H. and refused to seek medical attention for the child even though A.M.H. reported to her mother that she was bleeding and in pain. When Maxine Anderson witnessed Gary Anderson raping A.M.H., she reported the incident to Hutcheson, and A.M.H. asked Hutcheson to repair the door to her bedroom so that she could keep Anderson out. Hutcheson refused, and she did not call the police or seek medical attention for her A.M.H.

Approximately two months following the bottle incident, Anderson went to jail, and Hutcheson permitted Ragan to move back in with her and her children. Even though Ragan had already been convicted of molesting A.M.H. and was classified as a level-three-sex offender, Hutcheson allowed him to keep some of his belongings in A.M.H.'s room and sleep there on a few occasions. When asked why she permitted Ragan to sleep in A.M.H.'s room over her protests, Hutcheson responded, "Because really I didn't care." While living with the Hutchesons, Ragan was employed delivering newspapers. On at least four occasions, Hutcheson forced A.M.H. to accompany Ragan on his paper route from Benton to Hot Springs even though A.M.H. stated that she did not want to go, and the route lasted from 10:30 p.m. until 5:00 a.m. and A.M.H. had to awake for school at 7:00 a.m. During the drive from Benton to Hot Springs, Ragan molested A.M.H., then age fifteen, and on at least one occasion he pulled over and raped her. These incidents were also reported to Hutcheson, who again did nothing.

Following Ragan's arrest, Hutcheson gave a taped statement, in which she admitted that she was jealous of her daughter; that she did nothing when her daughter reported that Anderson and Ragan were assaulting her; that she did not care that A.M.H. was being assaulted because she was jealous of her; that she refused to confront her daughter's assailants because she feared that they would leave; and that she needed Ragan and Anderson for transportation and income. During the statement, Hutcheson also admitted that she used A.M.H. to keep men around the house and to keep income coming in. Hutcheson was tried and convicted in the Saline County Circuit Court on April 1, 2004, and this appeal ensued.

For her first point on appeal, Hutcheson argues that the trial court erred in denying her motions for directed verdict because there is insufficient evidence establishing accomplice liability. For her fourth point on appeal Hutcheson argues that the trial court erred in instructing the jury on accomplice liability by instructing them that she had a legal duty to protect A.M.H. from criminal sexual acts as set out in Arkansas Code Annotated § 9-27-303(35) (Supp.2003). Because these two points are related, we have discussed them together.

A motion for a directed verdict is a challenge to the sufficiency of the evidence. Lowry v. State, 90 Ark.App. 333, 205 S.W.3d 830 (2005). On appeal from the denial of a motion for directed verdict, the sufficiency of the evidence is tested to determine whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Circumstantial evidence may provide the basis for support of the appellant's conviction, but it must be consistent with the appellant's guilt and inconsistent with any other reasonable conclusion. Nelson v. State, 84 Ark.App. 373, 141 S.W.3d 900 (2004). Substantial evidence is that evidence which is of sufficient force and character to compel a conclusion one way or the other beyond suspicion or conjecture. Lowry, supra. This court considers only the evidence supporting the guilty verdict, and the evidence is viewed in the light most favorable to the State. Id. Determinations of credibility are left to the jury. Nelson, supra.

A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense, he solicits, advises, encourages, or coerces the other person to commit it; or aids, agrees to aid, or attempts to aid the other person in planning or committing the offense; or having a legal duty to prevent the commission of the offense, fails to make proper effort to do so. Ark.Code Ann. § 5-2-403(a)(1)-(3) (Repl.1997). Factors relevant in determining whether a person is an accomplice include the presence of the accused near the crime, the accused's opportunity to commit the crime, and association with a person involved in the crime in a manner suggestive of joint participation. Releford v. State, 59 Ark. App. 136, 954 S.W.2d 295 (1997). Typically, mere presence or negative acquiescence and passive failure to disclose a crime are neither separately nor collectively sufficient to make one an accomplice. Lear v. State, 278 Ark. 70, 643 S.W.2d 550 (1982). Further, knowledge that a crime is being or is about to be committed usually cannot be said to establish accomplice liability; nor can the concealment of knowledge, or the mere failure to inform the officers of the law when one has learned of the commission of a crime. Id. In short, absent a legal duty, presence, acquiescence, silence, knowledge, or failure to inform an officer of the law is not sufficient to make one an accomplice. Scherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1988).

In this case, Hutcheson was convicted as an accomplice of two counts of rape and one count of second-degree sexual assault.¹ On appeal, she argues that the trial court's ruling is erroneous because the State did not show that she aided, or agreed to aid, attempt to aid, solicit, advise, or encourage Anderson or Ragan in their acts against her daughter. Relying on Scherrer, supra, Hutcheson first points out that mere presence at the scene of a crime does not make her an accomplice and further asserts that neither her knowledge that the crimes had been committed, nor her concealment of knowledge makes her an accomplice. We disagree.

In Scherrer, supra, the appellant was found guilty of first-degree murder for the rape and murder of Debbie Watts. Terry Harrison, the appellant's accomplice, and Billy Ivey were the principal witnesses at the trial. Id. Their testimony essentially established that the appellant raped Watts, cut her throat, and then put her body in a nearby canal. Id. The supreme court held that the evidence showed that Harrison was clearly an accomplice but that Ivey was not. Id. The evidence established that Ivey was present at the scene, witnessed the crime, and failed to notify the police, but did not participate. Id. The jury found that Ivey was not an accomplice, and the supreme court affirmed. Id.

The proposition set out in Scherrer, supra, is correct: mere presence or knowledge, or...