Nelson v. State, CR 11–336.

• Decision Date: 13 October 2011
• Docket Number: No. CR 11–336.,CR 11–336.
• Citation: 2011 Ark. 429,384 S.W.3d 534
• Parties: Brian N. NELSON, Appellant v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

2011 Ark. 429

384 S.W.3d 534

Brian N. NELSON, Appellant

v.STATE of Arkansas, Appellee.

No. CR 11–336.

Supreme Court of Arkansas.

Oct. 13, 2011.

Gregory Karl Crain, Malvern, for appellant.

Dustin McDaniel, Att'y Gen., by: Rebecca Kane, Ass't Att'y Gen., for appellee.

DONALD L. CORBIN, Justice.

Appellant, Brian N. Nelson, appeals the judgment of the Grant County Circuit Court convicting him of four counts of sexual assault of a minor and sentencing him consecutively to 672 months' imprisonment in the Arkansas Department of Correction. For reversal, Appellant challenges the sufficiency of the evidence and the constitutionality of the Arkansas Rape Shield Statute, Ark.Code Ann. § 16–42–101 (Repl.1999); he also contends that his custodial statement should have been excluded and that evidence regarding the victim's character for truthfulness should have been admitted. As the constitutionality of the rape-shield statute is challenged, our jurisdiction is pursuant to Ark. Sup.Ct. R. 1–2(a)(1) and (a)(8) (2011). We affirm.

Appellant was charged with various counts and degrees of sexual assault against a minor. The victim, C.F., was a boy who was fourteen years old at the time of the assaults in 2008. C.F. testified at trial that on three separate occasions Appellant and he engaged in various forms of sexual conduct including masturbation, oral sex, and anal sex. Appellant also testified at trial, giving a slightly different version of events, but admitting to three occasions in which he and C.F. engaged in masturbation, oral sex, and anal sex. Both C.F. and Appellant testified that the two were neighbors, that Appellant hired C.F. to mow his yard, and that C.F. had spent the night in Appellant's home at the invitation of Appellant's then ten-year-old son. A Grant County jury convicted Appellant on four counts of sexual assault. Appellant presents four arguments for reversal of the judgment entered pursuant to the jury's verdict.

Appellant's first point for reversal is a very narrow and specific challenge to the sufficiency of the evidence. At the close of the State's case, Appellant moved for a directed verdict arguing specifically that the State had failed to prove that Appellant was in a position of trust or authority over C.F. or served as C.F.'s temporary caretaker. The circuit court denied the motion, recalling that there had been testimony that Appellant agreed and C.F.'s parents agreed that C.F. could spend the night at Appellant's home. The circuit court reasoned that the jury could use its collective wisdom to consider that testimony and determine if Appellant then became the temporary caretaker of C.F. At the close of all the evidence, Appellant renewed his motion for directed verdict as to the issue of Appellant being a temporary caretaker or person in position of trust and authority over C.F. The circuit court denied the renewed motion.

We treat a motion for directed verdict as a challenge to the sufficiency of the evidence. Vance v. State, 2011 Ark. 392, 384 S.W.3d 515. In reviewing a challenge to the sufficiency of the evidence, this court views the evidence in the light most favorable to the State and considers only the evidence that supports the verdict. Id. Substantial evidence is that evidence which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Id.

As relevant to this argument on appeal, Appellant was convicted of sexual assault in the first degree, a violation of Ark.Code Ann. § 5–14–124(a)(3) (Repl.2006), and of sexual assault in the second degree, a violation of Ark.Code Ann. § 5–14–125(a)(4)(A)(iii) (Repl.2006).¹ Under both statutes, the State had the burden of proving that at the time of the assault, Appellant was a “temporary caretaker” of the victim, or a “person in a position of trust or authority” over the victim. On appeal, Appellant contends that the evidence of these two statutory terms is insufficient because, although there was testimony that Appellant's then ten-year-old son had invited C.F. to spend the night at Appellant's home, nothing was offered to show that C.F.'s parents prearranged the circumstances of C.F.'s care while he stayed the night in Appellant's home.

This court observed in Bowker v. State, 363 Ark. 345, 214 S.W.3d 243 (2005), that the General Assembly had not defined these two statutory terms and that no Arkansas cases had defined these terms, thus the rules of statutory interpretation should be used in determining their meaning. This court went on to say as follows:

Until the legislature defines the term, we must look to the plain meaning of the term, “temporary caretaker.” “Temporary” is defined as “lasting for a time only; existing or continuing for a limited (usually short) time; transitory.” Black's LawDictionary 1504 (8th ed.1999). “Caretaker,” which is also defined as “caregiver,” means “a person, usually not a parent, who has and exercises custodial responsibility for a child or for an elderly or disabled person.” Black's Law Dictionary 225 (8th ed.1999).

Further, on the issue of temporary caretaker, we are guided by the court of appeals' reasoning in Murphy v. State, 83 Ark.App. 72, 117 S.W.3d 627 (2003). Murphy and Ray were convicted of first-degree sexual assault of a sixteen-year-old boy. On appeal, Murphy and Ray challenged the sufficiency of the evidence to support their convictions, which required the State to prove their status as temporary caretakers or persons in a position of trust or authority of the victim. The court of appeals cited with approval People v. Secor [279 Ill.App.3d 389, 216 Ill.Dec. 126], 664 N.E.2d 1054 (Ill.App.1996), for the definition of a person in a position of trust or authority in relation to the victim, and stated:

In Secor, the court affirmed a conviction of sexual assault against a fourteen-year-old victim who was spending the night with the appellant's son in their home. The appellant was not a stranger to the victim, but rather a friend and neighbor of the victim's family. The court determinedthat although the appellant and victim were not related, their relationship raised a strong inference of trust and supervision; and further, that the appellant's function in that relationship could be characterized, at a minimum, as that of a babysitter or chaperone. This situation is analogous to the instant case. Under the facts of this particular case [Murphy ], we find that there was sufficient evidence from which the jury could have determined that the appellants were in a position of trust or authority in relation to the victim.

Id. at 353–54, 214 S.W.3d at 248 (quoting Murphy v. State, 83 Ark.App. 72, 80, 117 S.W.3d 627, 632 (2003)).

In the present case, the testimony was undisputed that Appellant hired C.F. to mow his yard on numerous occasions. It was also undisputed that C.F. spent the night in Appellant's home at the invitation of Appellant's son. C.F.'s father testified that on two occasions, he and C.F.'s mother agreed that C.F. could stay the night. C.F.'s father explained that he knew that C.F. had been working for Appellant mowing his yard and that he thought Appellant would take care of C.F. C.F.'s father acknowledged that he never gave any instructions to Appellant on how to care for C.F. other than a request that Appellant refrain from drinking alcohol around C.F. C.F.'s father testified that he trusted Appellant to take care of C.F. Applying Bowker and the cases discussed therein to the present case, we conclude that the foregoing constitutes substantial evidence that Appellant was a temporary caretaker of C.F. or a person in a position of trust or authority over C.F.

As we did in Bowker, we conclude that Appellant fulfilled the role of “temporary caretaker” or “person in a position of trust or authority,” as Appellant was in a position to care for C.F. while C.F. was staying overnight in Appellant's home. Although there was no proof offered as to the specific details of care C.F.'s parents expected Appellant to provide, there was testimony that C.F.'s father trusted Appellant to care for his son. There is additional evidence in this case from which the jury could have concluded that Appellant stood in a position of trust and authority over C.F. as one who hired C.F. to mow his yard. Accordingly, there is substantial evidence to support the jury's verdict for first- and second-degree sexual assault, and the circuit court did not err in denying Appellant's motion for directed verdict based on insufficient proof of the element of “temporary caretaker” or “person in a position of trust or authority” over the victim.

Appellant's second point for reversal is a constitutional challenge to the Arkansas Rape Shield Statute, Ark.Code Ann. § 16–42–101 (Repl.1999). Appellant filed a motion with the circuit court and argued below, as he does in his brief on appeal, that according to the recent decision in Johnson v. Rockwell Automation, Inc., 2009 Ark. 241, 308 S.W.3d 135, the statute is unconstitutional per se in violation of the separation-of-powers clause in the Arkansas Constitution, article 4, section 2, and in violation of the grant of authority to this court to establish rules of pleading, practice, and procedure in amendment 80, section 3.

As he was required to do, Appellant notified the Attorney General's office of his challenge to the statute, and the Attorney General's office chose not to appear at the hearing on Appellant's motion. The circuit court ruled from the bench at the hearing and denied Appellant's motion, reasoning that, unlike the two portions of the Civil Justice Reform Act of 2003 at issue in Johnson, which specifically mandated that certain evidence be considered and that certain evidence be excluded, the rape-shield statute allows the judge to make the ultimate decision of whether the challenged evidence is relevant and admissible. Despite Appellant's...