Magness v. State

• Court: Arkansas Court of Appeals
• Writing for the Court: ROBIN F. WYNNE
• Citation: Magness v. State, 2012 Ark. App. 609, 424 S.W.3d 395 (Ark. App. 2012)
• Decision Date: 31 October 2012
• Docket Number: No. CA CR 12–71.,CA CR 12–71.
• Parties: John Wesley MAGNESS, Appellant v. STATE of Arkansas, Appellee.

2012 Ark. App. 609

424 S.W.3d 395

John Wesley MAGNESS, Appellant

v.STATE of Arkansas, Appellee.

No. CA CR 12–71.

Court of Appeals of Arkansas.

Oct. 31, 2012.

Jouett Law Firm, Fayetteville, by: Jason Andrew Jouett, for appellant.

Dustin McDaniel, Att'y Gen., by: Brad Newman, Ass't Att'y Gen., for appellee.

ROBIN F. WYNNE, Judge.

John Wesley Magness appeals from his convictions on multiple charges by a Van Buren County jury. He makes the following arguments on appeal: (1) that his conviction on charges of sexual assault in the fourth degree and possession of a firearm by certain persons are not supported by substantial evidence; (2) that the trial court erred by denying his motion for a mistrial based on alleged juror misconduct; and (3) that the trial court erred by denying his motions to suppress or exclude certain physical evidence as well as his custodial statement. We affirm the judgment of the trial court.

On December 5, 2009, the Van Buren County Sheriff's Department received a report that V.W., who was fifteen years old, had left home with her belongings. Her parents informed authorities that appellant had worked for them and had been terminated from that employment after they noticed a bond forming between appellant and V.W. While driving down the road on which appellant lived, Investigator Jeffrey Bittle came across V.W. and appellant, who were in an embrace on the side of the roadway. When he asked the two who they were, the girl refused to answer and the man identified himself as “Shane.” When Bittle asked the girl if she was the missing juvenile, she began to cry, and Bittle had her sit in the back of his vehicle. The man fled into the woods. V.W. informed Bittle that she and appellant had sexual relations on three occasions and indicated that appellant's DNA from two of those encounters would be present on the bed sheets located on the floor of the bedroom in his residence. Bittle requested and received a warrant to search appellant's residence for the following items: bed sheets, bed linens, pillow cases, and clothes that could contain DNA evidence. The warrant erroneously stated that the items would be subject to seizure under Arkansas Code Annotated section 5–64–401, which pertains to possession of controlled substances. The report of return of the search warrant stated that the following evidence was seized from appellant's residence: bed linen found in a living room chair, men's underwear found in the floor of the first bedroom closet, bed linen found in the first bedroom floor, pornographic books with hand-written notes found in the night stand in the bedroom, and bed linen found on the bed in the second bedroom.

After appellant was apprehended, he was interviewed by Bittle and Investigator Bob Leal with the Arkansas State Police Crimes Against Children Division. Prior to the interview, appellant signed a written waiver of his Miranda rights. During the interview, appellant first denied having intercourse with V.W. but later admitted to engaging in intercourse with her. Appellant, who was forty-six years old at the time, also admitted that he knew she was fifteen years old.

Appellant was charged by information with four counts of sexual assault in the fourth degree, one count of possession of a firearm by certain persons, two counts of fleeing, and one count of resisting arrest. Prior to trial, appellant filed a motion to suppress in which he sought to suppress his custodial statement and evidence taken following the search of his residence. At the suppression hearing, Bittle testified that he and Bob Leal interviewed appellant and that he explained appellant's Miranda rights and had him sign the form. According to Bittle, appellant never asked to speak to an attorney.

Bittle testified that, as he was recovering bed linens off of the floor in appellant's bedroom, he saw the pornographic written material in an open drawer in the night stand. He further testified that when he took V.W. back to appellant's residence to retrieve her belongings prior to obtaining the search warrant, he saw a gun that was “head high” right as the front door was opened. He stated that he retrieved the gun for safety purposes because appellant had not been apprehended at that time. Bittle knew at the time he took the gun that appellant was a convicted felon.

Leo Phillips testified that he owns the cabin in which appellant was staying and that appellant was living there while doing some work for him and his wife. The gun taken from the cabin belongs to Mr. Phillips and had been in the cabin for a year or so.

Appellant testified that at the time he signed the Miranda form and was interviewed, he had not slept in two days and had not had any food or water. He claimed that he asked for an attorney twice before he was interviewed. He also claimed that he was told that if he answered their questions there would be no charges filed.

The trial court stated that appellant moved to suppress his statement because he asked for an attorney. The trial court found that there was no evidence to support appellant's claim and denied the motion. The trial court denied the motion to suppress the gun because it was removed for safety reasons. The trial court also denied the motion to suppress the pornographic materials because they were in plain view during the execution of the search warrant.

On December 14, 2010, appellant filed a motion to dismiss without prejudice in which he argued that the search warrant was defective because it cited Arkansas Code Annotated section 5–64–401. The trial court treated the motion as one to suppress the items seized during the search and found that the citation to section 5–64–401 was a scrivener's error, as the rest of the affidavit in support of the warrant dealt with facts leading up to the discovery of DNA evidence, and denied the motion.

Appellant filed a motion in limine on June 17, 2011, in which he sought to exclude from trial certain evidence, including the DNA results from the bed linens seized from his residence and the pornographic materials taken from his residence. He argued in the motion that the items were not relevant, their prejudicial nature outweighed their probative value, and they were cumulative. The trial court denied the motion as to the DNA results and the pornographic material.

After the jury was sworn in, appellant moved for a mistrial, arguing that witnesses for the State were “visiting with” the jury. Bittle admitted to talking to jurors outside but denied that he was talking to them about the case. He was asked a question regarding the health of a former sheriff, and he answered it. Clovis Lewis, one of the jurors, testified that he had a conversation with officers but also denied that it had anything to do with the case. He stated that the conversation would not affect how he felt about the case. Another juror, James Burns, also testified that he talked to the officers but it had no connection to the case and was about the former sheriff. The trial court denied appellant's motion for a mistrial.

During the trial, V.W. testified that on December 5, 2009, she was fifteen years old. She testified that after she went to appellant's residence, she indicated that she did not want a romantic relationship with him, and he told her that if she did not do what he wanted she would have to leave. He then disrobed her and himself, and they had intercourse. V.W. stated that the two of them went to a party at a neighbor's house and that they had intercourse again during the party. V.W. testified that she told appellant that she was fifteen years old. She admitted to telling Mr. Phillips that she was nineteen at appellant's request. V.W. said that she smoked, drove a car, and was applying to college at the time. She denied ever telling appellant that she was nineteen. She testified that she saw a gun in appellant's residence but that he never picked it up or said anything about it. She stated that no one else was staying there with appellant until she got there.

V.W.'s mother testified that she told appellant that V.W. was fifteen years old. Mary Simonson, a forensic DNA examiner with the Arkansas State Crime Laboratory, testified that vaginal swabs taken from V.W. contained a mixture of DNA from both V.W. and appellant.

Jeffrey Bittle testified that as he was searching for V.W. after she was reported as a runaway, he encountered appellant and V.W. embracing in a ditch by the side of the road. He put V.W. into his vehicle, and appellant fled into the woods. Bittle testified that while he was executing the search warrant, he saw an open drawer with sexually explicit magazines inside. He also testified that a rifle was removed from the residence that was right in front of the door. The State moved to introduce the pornographic material. The trial court noted appellant's previous objection to the introduction of the material, overruled it, and admitted the material into evidence. Bittle testified that, during his interview of appellant, appellant denied knowledge of the gun taken from the cabin. He stated that appellant eventually admitted to having sexual relations with V.W. and indicated that he knew she was around fifteen years old. According to Bittle, appellant had been fed and given a chance to sleep prior to the interview.

The parties stipulated before the jury that appellant was a convicted felon. After the State rested, appellant moved for a directed verdict on the sexual-assault charges, arguing that the State failed to introduce any official documentation indicating V.W.'s age. He also moved for a directed verdict on the felon-in-possession-of-a-firearm charge, arguing that the State failed to prove that he had actual care and control or dominion over the firearm. The trial court denied the motions.

Leo Phillips testified that V.W. told him she was eighteen or nineteen years old. He also testified that the gun found in the cabin was his and that he did not...