Lowery v. State
| Decision Date | 14 November 2019 |
| Docket Number | No. CR-19-248,CR-19-248 |
| Citation | 586 S.W.3d 644,2019 Ark. 332 |
| Parties | Gerald Herbert LOWERY, Appellant v. STATE of Arkansas, Appellee |
| Court | Arkansas Supreme Court |
Joseph C. Self, Fort Smith, for appellant.
Leslie Rutledge, Att'y Gen., by: Brad Newman, Ass't Att'y Gen., for appellee.
Gerald Lowery was convicted by a Miller County jury of rape and second-degree sexual assault. He was sentenced to consecutive terms of life and 240 months in the Arkansas Department of Correction. On appeal, Lowery argues that the circuit court erred in (1) allowing testimony from his daughter under the pedophile exception and (2) allowing the State to inquire on cross-examination about a disputed police report. Our jurisdiction is pursuant to Arkansas Supreme Court Rule 1-2(a)(2).
On January 24, 2018, Lowery was charged by information for the rape and second-degree sexual assault of T.L. The offenses were alleged to have occurred during a time period from the fall of 2004 to the spring of 2005, when T.L. was less than fourteen years old.
Because Lowery does not challenge the sufficiency of the evidence, only a brief summary of the facts supporting his conviction are necessary. According to T.L.'s mother, Rhonda Lamb, she moved with to Texarkana, Arkansas, in 2004, when T.L. was six years old. Lamb and T.L. shared an apartment with Lowery and his girlfriend, Roshuanda Gant. Lamb, Gant, and Lowery worked for the Kirby vacuum-cleaner company, engaged in door-to-door selling. Lowery, who was a distributor, drove Lamb and Gant in a van to neighborhoods where they conducted sales calls. T.L. sometimes went with them, and she stayed in the van with Lowery.
T.L. testified that on one occasion, Lowery asked her if she wanted to sit on his lap and pretend to drive. While sitting on her lap, Lowery touched her "vaginal parts" with his hand over her clothing. She stated that she could feel his penis becoming erect. T.L. testified that she became scared and began to cry. Lowery told her to stop crying, threatened her mother's life, and told T.L. not to tell her mother what had happened. Lowery also told T.L. to perform oral sex on him. On another occasion when T.L. was with Lowery in the van, T.L. needed to use the restroom. Lowery took her to a gas station. While she was in the restroom, Lowery entered and rubbed her vagina.
T.L. also described two incidents that occurred at the Texarkana apartment. T.L. stated that she and Lowery's daughter were coloring on the living-room floor when he put her on his lap. She felt him "grow an erection." Another time when Lowery and T.L. were alone at the apartment, he called her into the living room and began touching her vaginal area outside of her clothing. He then put her on her knees between his legs and made her perform oral sex on him.
On appeal, Lowery first argues that the circuit court erred by admitting the testimony of Lowery's daughter, B.B., who also testified that Lowery sexually abused her when she was five or six years old. At a hearing conducted during the trial, out of the presence of the jury, Lowery made a two-pronged argument. First he asserted that B.B.'s testimony did not satisfy the conditions necessary to invoke the pedophile exception to Rule 404(b) of the Arkansas Rules of Evidence because there was not the requisite intimate relationship with the alleged victim in the case being tried. Secondly, however, he argued that because he was facing charges in Pulaski County over the conduct that would be the subject of B.B.'s testimony, it would force him to defend B.B.'s allegations, which would open him up to waiving his right to remain silent in the Pulaski County case. Thus, defending his case in Miller County would prejudice his case involving B.B.
Lowery concedes that there is no merit in his "intimate relationship" argument and expressly abandons it on appeal. However, he still pursues the second prong of the argument he made to the circuit court. He admits that it is a novel argument and that there are no Arkansas cases on point. Nonetheless, he asserts that in the case at bar, the prior act was charged, and the charges were pending in Pulaski County. Accordingly, he was faced with saying nothing at his trial in Miller County and allowing the allegations by B.B. to stand unanswered, or answering them and perhaps providing evidence to the Pulaski County Prosecuting Attorney. He was unrepresented in the Pulaski County matter at the time, but his trial counsel nonetheless considered the pending Pulaski County case as part of his strategic calculus: "While we have a right to confront the witness, the way I confront this witness is going to be, or could be, potentially completely different than the way his attorney in Pulaski County attempts it because he has a confrontation issue. I'm not defending that one. I got to defend what happened to [T.L.] Therefore, the thrust of his argument is not that what was introduced was unfairly prejudicial, but rather when and where it was introduced. Lowery concedes that B.B.'s testimony is relevant character evidence under Arkansas Rule of Evidence 404(b). However, he asserts that the circuit court erred in its application of Arkansas Rule of Evidence 403 because the probative value—testimony concerning events that took place more than ten years before was substantially outweighed by its prejudicial effect.
We review a circuit court's evidentiary rulings for an abuse of discretion. Flanery v. State , 362 Ark. 311, 208 S.W.3d 187 (2005). Under Arkansas Rule of Evidence 403, a circuit court must weigh the probative value of the evidence against its prejudicial effect. Rule 403 states: "Although 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 considerations of undue delay, waste of time, or needless presentation of cumulative evidence." In Berry v. State , 290 Ark. 223, 233, 718 S.W.2d 447, 453 (1986), we accepted the definition of "unfair prejudice" stated by the advisory committee's commentary to Federal Rule of Evidence 403, which describes it as an "undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one."
Rule 403 functions to prevent undue prejudice in the trial in which the evidence in question is sought to be introduced. The intent of the rule is to prevent the trier of fact from being swayed by evidence that obscures the issue before it. Rule 403 does not concern the prejudice to a litigant in some in other proceeding. The circuit court in Miller County only has the jurisdiction to control the receipt of evidence in that trial. It cannot control the admission of evidence in a Pulaski County trial. Furthermore, Lowery has failed to articulate how allowing B.B. to testify burdens his right to confront B.B. when she will presumably be the complaining witness in the Pulaski County trial. Lowery will not be bound to employ the same strategy to impeach B.B. as he used in the case-at-bar. If anything, Lowery will be in a stronger position because any variance in B.B.'s testimony will be fertile grounds for impeachment. Accordingly, we hold that the circuit court did not abuse its discretion when it rejected Lowery's argument that the admission of B.B.'s testimony might potentially affect trial strategy by an attorney who had not yet been retained for a trial that was not yet scheduled.
We next consider Lowery's second point on appeal in which he argued that the circuit court abused its discretion by allowing the State to inquire on cross-examination about a disputed police report. Additional facts are necessary to illuminate this point.
The State sought to call Lowery's niece, Michelle Nash, to offer character evidence against Lowery pursuant to the pedophile exception in Arkansas Rule of Evidence 404(b). Out of the hearing of the jury, Nash testified that she was currently a parole officer for Miller County, but she had lived in the home with Lowery during part of her childhood. She stated that she was interviewed by Detective Shane Kirkland, but emphatically denied telling him that she had been a victim of Lowery when she was 5 years old. Kirkland told her that another uncle had told him she had been a victim, but she told him it was 40 years ago and that she did not know anything about it. Subsequently, she discovered from a newspaper story that Kirkland was quoted as saying that, ...
To continue reading
Request your trial
-
Kellensworth v. State
...court, and appellate courts will not reverse that decision absent a manifest abuse of discretion. See, e.g. , Lowery v. State , 2019 Ark. 332, at 7, 586 S.W.3d 644, 649 ; Jackson v. State , 2018 Ark. App. 222, at 4, 547 S.W.3d 753, 756. This evidentiary standard encompasses the scope of cro......
-
Lowery v. State
...was six years old at the time. He was sentenced to consecutive terms of life and 240 months’ imprisonment. We affirmed. Lowery v. State , 2019 Ark. 332, 586 S.W.3d 644. The evidence at trial revealed that T.L. had moved with her mother, Rhonda Lamb, to Texarkana in 2004 and lived there thro......
-
Kitchell v. State
...held that an abuse of discretion may be established when the circuit court erroneously interprets or applies the law. Lowery v. State , 2019 Ark. 332, 586 S.W.3d 644. While the rules of evidence still apply during the sentencing phase of a trial, certain evidence is relevant and admissible ......