Magar v. State, CR

• Citation: 308 Ark. 380,826 S.W.2d 221
• Decision Date: 24 February 1992
• Docket Number: No. CR,CR
• Parties: Dewey MAGAR, Appellant, v. STATE of Arkansas, Appellee. 91-277.
• Court: Arkansas Supreme Court

Page 221

826 S.W.2d 221

308 Ark. 380

Dewey MAGAR, Appellant, v. STATE of Arkansas, Appellee.

No. CR 91-277.

Supreme Court of Arkansas.

Feb. 24, 1992.

Arthur L. Allen, Little Rock, for appellant.

Pamela Rumpz, Asst. Atty. Gen., Little Rock, for appellee.

HOLT, Chief Justice.

On October 1, 1990, the appellant, Dewey Magar, was convicted of three counts of sexual abuse in the first degree and sentenced to three years for the first count and five years apiece for the remaining two counts, all sentences to run concurrently.

Magar asserts three points of error on appeal: 1) the trial court erred in denying his motion to suppress religiously privileged testimony under Ark.R.Evid. 505, 2) the trial court erred in denying his motion for a directed verdict in that the State's evidence was insufficient to sustain his convictions, and 3) the trial court erred in denying his motion for a mistrial after a witness for the State referred to prior uncharged conduct relating to him in violation of the trial court's order to refrain from such prejudicial commentary. None of these arguments has merit, and we affirm the judgment of the trial court.

Magar initially claims that the trial court erred in denying his motion to suppress religiously privileged testimony under Ark.R.Evid. 505. Prior to trial, Magar filed a motion to suppress testimony of Reverend John Rowe on the basis that the testimony was privileged under Rule 505, which provides as follows:

(a) Definitions. As used in this rule:

(1) A "clergyman" is a minister, priest, rabbi, accredited Christian Science Practitioner, or other similar functionary of a religious organization, or an individual reasonably believed so to be by the person consulting him.

(2) A communication is "confidential" if made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.

(b) General Rule of Privilege. A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a clergyman in his professional character as spiritual adviser.

(c) Who May Claim the Privilege. The privilege may be claimed by the person, by his guardian or conservator, or by his personal representative if he is deceased. The person who was the clergyman at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the communicant.

In reviewing a trial court's ruling on a motion to suppress, we make an independent determination based on the totality of the circumstances and reverse only if the trial court's ruling was clearly against the preponderance of the evidence. Cook v. State, 293 Ark. 103, 732 S.W.2d 462 (1987).

Magar was charged with sexual abuse in the first degree of three boys who were under the age of fourteen. At the hearing on the motion to suppress, Magar stated that the conversation at issue was made in confidence on the basis that he and Reverend Rowe had had many counseling sessions during the course of their time spent together at church and Reverend Rowe had assured him that their conversations were private. In essence, he acted in reliance on a purported established relationship of confidentiality between himself and Reverend Rowe when he discussed the issues later involved at his trial.

Reverend Rowe testified that he was the pastor at New Life Christian Fellowship, where the victims, their families, and Magar were members. He also related that after the parents of two of the boys told him that their sons had been sexually abused by Magar, he went to the church where Magar was involved in a music ministry practice, interrupted the music practice, and asked Magar to step into his office. He then confronted Magar with the allegations, whereupon Magar admitted that they were true.

Reverend Rowe also testified regarding the doctrines of his church: confession is not a tenet of his church and keeping evidence of a crime confidential is within the discretion of the pastor. His own practice was to keep confidential that information gained in a counseling relationship. Although he had had counseling sessions with Magar on prior occasions, he had not counseled with Magar for several months before the conversation at issue and considered this particular conversation "disciplinary in nature." Further, Reverend Rowe did not tell Magar that the conversation was confidential, nor did Magar ask that it be kept confidential.

We initially note that Magar's reliance on State v. Sypult, 304 Ark. 5, 800 S.W.2d 402 (1990), is misplaced in that we stated in that case that when conflicts arise between the rules established by the court and legislation enacted by the General Assembly, the court will defer to the General Assembly only to the extent that the conflicting court rule's primary purpose and effectiveness are not compromised; otherwise, the court rules remain supreme. There simply is no similar conflict here with regard to Rule 505.

We find it significant, in this case, that Reverend Rowe sought out Magar to confront him with the allegations of sexual abuse conveyed to him by the parents of two of the victims. Although Reverend Rowe had counseled with Magar on previous occasions, the last occasion being several months before the conversation at issue, Reverend Rowe did not consider this to be a counseling session at all, but disciplinary in nature. The attendant circumstances support the trial court's decision that this was an accusatory situation initiated by Reverend Rowe that did not encompass spiritual counseling, thereby precluding Magar from excluding Reverend Rowe's testimony at trial.

Other courts have considered the privilege of religious communications and determined the applicability of the privilege on the facts of each case. Illustrative of the rationale denying the privilege are United States v. Gordon, 493 F.Supp. 822 (N.D.New York 1980) (citing Trammel v. United States, 445 U.S. 40, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980)) (it was emphasized that the privilege between priest and penitent is limited to private communications, a privilege recognizing "the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return," which facts and circumstances were not present where the challenged conversations related to business matters), and Burger v. State, 238 Ga. 171, 231 S.E.2d 769 (1977) (the ministerial privilege was not applicable to testimony of reverend, as witness for the state in a homicide prosecution, relating to conversational statements made to him by the defendant regarding the defendant's intent to kill his wife where the record showed that the statements by the defendant to which the witness testified were not made by the defendant in professing religious faith or seeking spiritual comfort or guidance).

In comparison, the privilege was upheld in People v. Reyes, 144 Misc.2d 805, 545 N.Y.S.2d 653 (Supp.1989), where a conversation between a priest and the defendant was a privileged communication, which the priest could not testify about before a grand jury, where the defendant was seeking some type of spiritual advice from the priest with the reasonable expectation that the conversation would be kept secret when the defendant went to the priest's church after a shooting.

In contrast to People v. Reyes, supra, Magar's communication was not made to Reverend Rowe in his professional character as a spiritual adviser and, given the circumstances of this case, we are unable to say that the trial court's denial of Magar's motion to suppress was clearly against the preponderance of the evidence.

Next, Magar claims that the trial court erred in denying his motion for a directed verdict in that the State's evidence was insufficient to sustain his convictions.

In Hodge v. State, 303 Ark. 375, 797 S.W.2d 432 (1990), we noted that in criminal cases on appeal where the appellant challenges the sufficiency of the evidence, we will affirm the trial court's decision if there is substantial evidence to support the findings. Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture.

Arkansas Code Ann. § 5-14-108 (1987) addresses sexual abuse in the first degree and provides in pertinent part that "(a) A person commits sexual abuse in the first degree if: ... (3) Being eighteen (18) years old or older, he engages in sexual contact with a person not his spouse who is less than fourteen (14) years old." Sexual contact is defined in Ark.Code Ann. § 5-14-101 (1987) as "... any act of sexual gratification involving the touching, directly or through clothing, of the sex organs, or buttocks, or anus of a person...."

In this case, the first victim told the jury that Magar had invited him to his house to look at Boy Scout uniforms. They went into Magar's bedroom to try on the uniforms, where Magar touched him "on the genitals through his clothing." The victim further testified as follows:

Q Okay. Good. Tell me about Mr. Magar offering to help you with your Boy Scout uniform.

A ... And we started trying on some of the pants. And when I was trying to fasten my pants he would always try to help me zip them and button them and every time I'd say I didn't need any help. And then after that he would feel around the crotch area seeing if it was too big. And one time he touched me on the genitals, but each time he'd try to do it real fast. So I wouldn't suspect anything. After, after I tried on some pants I was sitting in my shirt and underwear and he came over to me and said, "I like your underwear. Where did you get them?" I said, "My mom got them for me." He said, "I still like them." And around then I didn't feel very comfortable at that point. Then we started trying on some of the shirts...