Munson v. State, CR
| Decision Date | 15 January 1998 |
| Docket Number | No. CR,CR |
| Citation | 959 S.W.2d 391,331 Ark. 41 |
| Parties | James MUNSON, Appellant, v. STATE of Arkansas, Appellee. 97-247. |
| Court | Arkansas Supreme Court |
Agather C. McKeel, Charles V. Suphan, Little Rock, for Appellant.
Winston Bryant, Attorney General, Sandy Moll, Assistant Attorney General, Little Rock, for Appellee.
Appellant James Munson was convicted of violation of a minor in the first degree and sentenced to fifteen years in prison. The jury found that Mr. Munson violated his wife's fourteen-year-old sister who was visiting in the Munsons' home when the crime occurred. Mr. Munson asserts a "cumulative error" argument. We decline to consider that argument as Mr. Munson's abstract of the record does not demonstrate that any such argument was made to the Trial Court. Mr. Munson also contends that letters written by him to his wife should have been excluded from evidence on the basis of the marital privilege, Ark. R. Evid. 504. We hold that the letters were admissible as Mr. Munson was charged with committing a crime against a person who resided in the couple's home. We also reject Mr. Munson's several arguments concerning admissibility of evidence of Mr. Munson's earlier abuse of a former female stepchild.
Mr. Munson argues that the cumulative weight of the prosecutor's acts of misconduct, consisting of improper remarks and a discovery violation, was so prejudicial that he was denied a fair trial and he was entitled to a mistrial. An appellant asserting a cumulative-error argument must show that there were objections to the alleged errors individually and that a cumulative-error objection was made to the trial court and a ruling obtained. Welch v. State, 330 Ark. 158, 955 S.W.2d 181 (1997). As Mr. Munson's abstract does not demonstrate that a cumulative-error objection or motion was made to the Trial Court, we do not consider the argument further.
In the letters that Mr. Munson argues were erroneously admitted into evidence, Mr. Munson reminded his wife of their wedding vows, asked for her forgiveness, and stated that he had made a mistake but that it was not completely his fault. Mr. Munson moved to suppress the letters on the basis that they were privileged communications between husband and wife which were obtained without Mrs. Munson's consent. The Trial Court denied the motion to suppress on the basis of Ark.Code Ann. § 5-28-105 (now codified as § 5-28-104 (Repl.1997)) which states, in relevant part:
Any privilege between husband and wife ... shall not constitute grounds for excluding evidence at any proceedings regarding adult abuse, sexual abuse, or neglect of an endangered or impaired adult, or the cause thereof.
The statute was thus apparently interpreted by the Trial Court as presenting an exception to the privilege in cases of abuse of a minor as well as abuse of an adult.
We need not decide whether the statute was properly interpreted because Ark. R. Evid. 504(d) states an exception to the marital privilege when "... one spouse is charged with a crime against the person or property of ... (3) a person residing in the household of either." The evidence showed that the victim was visiting in the Munsons' home for one week. The question becomes whether she was "residing" there when the offense charged allegedly occurred.
Courts construe their own rules using the same means as are used to construe statutes. Gannett River States Pub. v. Arkansas Judicial Disc. & Disab., 304 Ark. 244, 801 S.W.2d 292 (1990). The fundamental principle used in considering the meaning of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning. Boston v. State, 330 Ark. 99, 952 S.W.2d 671 (1997); Rush v. State, 324 Ark. 147, 919 S.W.2d 933 (1996).
In statutory construction, it is settled that "reside" is an elastic term to be interpreted in the light of the purpose of the statute in which such term is used; "reside" is a term whose statutory meaning depends upon the context and purpose of the statute in which it occurs.
In Re National Discount Corporation, 196 F.Supp. 766, 769 (W.D.S.C.1961).
BLACK'S L AW D ICTIONARY 1308 (6th ed.1990) defines "reside" as follows:
Live, dwell, abide, sojourn, stay, remain, lodge. To settle oneself or a thing in a place, to be stationed, to remain or stay, to dwell permanently or continuously, to have a settled abode for a time, to have one's residence or domicile; ...
"Sojourning" is defined as "something more than 'travelling,' and applies to a temporary, as contradistinguished from a permanent, residence." BLACK'S LAW DICTIONARY 1391 (6th ed.1990). A "lodging place" is defined as "[a] place of rest for a night or a residence for a time; a temporary habitation." BLACK'S L AW D ICTIONARY 941 (6th ed.1990).
In the context of Rule 504, the term "residing" applies to the circumstances of the victim in this case. She arrived in the Munsons' home on July 31, 1995, and the incident occurred four days later. Her temporary "residence" with the Munsons presented the same opportunity to Mr. Munson he would have had if the victim had intended to remain in the household indefinitely.
We hold that the victim in this instance was "residing" in Mr. Munson's household at the time of the incident, and thus the exception to the privilege for confidential communications between husband and wife applies.
Prior to marrying the sister of the victim in this case, Mr. Munson was married to another woman who had a daughter who thus became Mr. Munson's stepdaughter. He argues that the Trial Court erred in denying his motion to suppress the testimony of the former stepdaughter who testified that she was sexually assaulted and physically abused by Mr. Munson.
At a pretrial hearing, the Trial Court, citing the pedophile exception, denied Mr. Munson's motion to suppress testimony related to the alleged prior sexual assault. At trial, Mr. Munson renewed his motion to suppress the testimony of the former step-child, and the Trial Court reaffirmed its earlier ruling on the admissibility of the testimony.
The former stepchild, who was fourteen years old at the time of trial, testified that on March 7, 1993, when she was ten years old Mr. Munson sexually assaulted her by inserting his finger into her vagina. At the time that incident occurred, Mr. Munson was married to the child's mother. The child testified that she did not tell her mother about the incident until two days after it occurred because she did not want Mr. Munson to hurt her. She testified that she thought that he would hurt her because he had slapped her and her brothers on prior occasions. The deputy prosecutor asked: She responded in the affirmative, and the deputy prosecutor asked her to tell the jury about the incident. At that point, Mr. Munson objected on the grounds that allegations of other instances should have been discovered to him if such incidents were to be the subject of examination. The State responded that the defense was made aware of the witness and could have interviewed her. The Trial Court overruled the objection. The child then testified that, on another occasion when she and Mr. Munson were alone in a boat, he sexually assaulted her by inserting his penis into her vagina. She further testified that she did not tell anyone about this incident until she told the deputy prosecutor two days before trial. At the bench, the deputy prosecutor told the Trial Court that the second incident was not initially disclosed to defense counsel in discovery but that defense counsel was informed of it once the prosecutor learned of it.
The admission or rejection of evidence under Ark. R. Evid. 404(b) is left to the sound discretion of the trial court and will not be disturbed absent a manifest abuse of discretion. Jarrett v. State, 310 Ark. 358, 833 S.W.2d 779 (1992). Most recently, in Douthitt v. State, 326 Ark. 794, 800, 800, 935 S.W.2d 241, 244 (1996), we restated the rule as applied in cases of alleged sexual abuse of a child as follows: "This court has often said that 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 A.R.E. Rule 404(b)."
Mr. Munson raises several arguments to support his contention that the testimony of the former stepchild should not have been admitted. First, he argues that the testimony should not have been admitted because the allegations were never subject to any type of investigation; however, we do not consider this argument because Mr. Munson does not cite any authority to support it, see Polk v. State, 329 Ark. 174, 947 S.W.2d 758 (1997), and we do not consider it to be convincing.
Second, Mr. Munson argues that the testimony should not have been admitted because the allegations were of acts too remote in time and place and because there was no connection between the former stepchild and the alleged victim in this case. He cites Larimore v. State, 317 Ark. 111, 124, 877 S.W.2d 570 (1994), where we considered whether the Trial Court erred in refusing to...
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