Price v. State

• Decision Date: 03 February 2010
• Docket Number: No. CA CR 09–508.,CA CR 09–508.
• Citation: 377 S.W.3d 324,2010 Ark. App. 111
• Parties: Nathaniel PRICE, Appellant v. STATE of Arkansas, Appellee.
• Court: Arkansas Court of Appeals

2010 Ark. App. 111

377 S.W.3d 324

Nathaniel PRICE, Appellant

v.STATE of Arkansas, Appellee.

No. CA CR 09–508.

Court of Appeals of Arkansas.

Feb. 3, 2010.

Richard Derek Barlow, Van Buren, AR, for appellant.

Karen Virginia Wallace, Little Rock, AR, for appellee.

KAREN R. BAKER, Judge.

[Ark. App. 1]A jury in Crawford County Circuit Court convicted appellant, Nathaniel Price, of two counts of rape as a habitual offender and sentenced him to thirty-five years' imprisonment in the Arkansas Department of Correction. Appellant presents the following four points of error: 1) that the trial court erred in denying his motion for directed verdict where the sum of the evidence, even when viewed in a light most favorable to the State, failed to amount to substantial evidence to justify appellant's conviction on two counts of rape; 2) that the trial court abused its discretion by allowing the testimony of Tiffany Spencer pursuant to Arkansas Rule of Evidence 404(b); 3) that Arkansas Rule of Evidence 404(b) violates a defendant's due-process rights guaranteed under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution by depriving a defendant of a fair and impartial trial; and 4) that the trial court [Ark. App. 2]abused its discretion in denying appellant's objection and motion for a mistrial with regard to the Arkansas State Police Investigator's double-hearsay comment concerning the alleged victim's disclosure at school that she was being sexually abused. We affirm. The first witness to testify at trial was Kristy Hewitt. Hewitt was the child victim's (K.L.'s) second-grade teacher at Alma Primary School. Hewitt testified that on October 31, 2007, a student in her second-grade class who had been playing with K.L. approached her and told her that K.L. had told her of the allegations against appellant. Hewitt spoke with K.L. to determine if K.L. had in fact said such things about appellant to her classmate, and K.L. said that she had. Hewitt then took K.L. to the school counselor, Sue Hamilton. Hamilton testified that K.L. disclosed to her the same things about appellant as she had disclosed to Hewitt.

Tara Flute, an investigator with the Arkansas State Police in the Crimes Against Children Division, testified that she interviewed K.L. on October 31, 2007. During that interview, K.L. told Flute that appellant, her mother's boyfriend, had been sexually abusing her. Flute used anatomical drawings during the interview, and K.L. was able to identify the names of the male and female genitalia. After the interview, Flute discussed K.L.'s statements with Hewitt and Hamilton.

Flute then went to K.L.'s home to find K.L.'s mother. When she arrived, appellant was there alone. Investigators read appellant his rights and then spoke with him about the incident. Flute testified that she asked appellant if he knew why they wanted to speak with him, and appellant answered that it was about the allegations that Dark's daughter (K.L.) had made. Flute [Ark. App. 3]testified that she found it odd that even though appellant told her that he babysat the children while Darla was at work and lived with Darla and her children for a year, he acted as if he could not recall K.L.'s name. Appellant told Flute that the reason K.L. made the accusation against him was because she was unhappy with him for making K.L. and her siblings follow certain rules. Flute testified that when Darla, K.L.'s mother, arrived at the home, she was shocked about the accusations. Darla confirmed the accusations with K.L., and she became “belligerent” and began cursing appellant. Darla told appellant to “get out of the house.”

Darla testified that she and appellant began their relationship in late 2005 or early 2006. Appellant lived with her and her other children, and she and appellant had a child together. She also testified that she worked the 2:00 p.m. to 10:00 p.m. shift at Mulberry Lodge, caring for mentally challenged residents. Appellant, who was disabled and unable to work, cared for Dark's children while she was working. On October 31, while at work, she received a call from the police asking her to come home. Darla testified that she believed what her daughter told police about appellant and that she was “very upset.”

K.L., then nine years old, was next to testify at trial. She testified that in the evenings, while her mother was at work, appellant would tell her to go into her mother's bedroom. There, he told her to pull down her pants and panties, and he would “hump” her. She stated that appellant touched her beneath her clothes, got on top of her, and “humped” her while her legs were “open.” Appellant would tell her that she had “good p—y” while he was “humping” her. She stated it was painful when appellant was “[moving] up and down.” After appellant was [Ark. App. 4]finished, he would tell her to go to her bedroom and go to sleep and to not tell anyone. She explained that she was in the second grade when appellant began sexually abusing her. The first person she told of the abuse was her friend in her second-grade class. She then told her teacher, her school counselor, and the investigator of the abuse.

K.L. testified that she knew the difference between a “good touch” and a “bad touch.” She also testified that she knew the names of the male and female genitalia and that she could identify them on a drawing. She stated that she had seen appellant's private parts and stated that he stuck them in her “Va-gee-gee” and moved “up and down.” K.L. testified that after appellant moved in with her sibling and her mother, things were going well; however, after appellant “started humping [her],” she did not like him anymore.

Sue Stockton, a certified sexual-assault nurse, provides forensic examinations on children for the Children's Safety Center in Springdale, Arkansas. She testified that on November 2, 2007, she performed a head-to-toe medical screening on K.L. The exam was normal; however, she explained that it was not uncommon (ninety percent of the time) to not find any physical injury to a child who says that they have had “penis penetration or otherwise.” Because of the length of time that will often pass before a child will report a rape, any injury that may have occurred will have healed. Because K.L.'s physical examination did not reveal any injury, Ms. Stockton could not “say for sure that there was an absence of sexual abuse.” However, she testified that she did not expect to see any evidence in a child that had been penetrated numerous times, even on a child that had been raped within forty-eight hours before the exam. [Ark. App. 5]Stockton testified that most of the time, physical evidence would only appear where there was a “traumatic rape” involving “brutal physical force.”

Tiffany Renee Spencer, now twenty-six years old, testified that when she was a child, appellant and her mother were married. They lived together, and during that time, appellant “had sex with [her].” She stated that she first remembered it at the age of four and that the abuse occurred when appellant took care of her and her brother while her mother was working or attending school. On those occasions the abuse occurred in the mornings before he took her to school. Because she was so young when the abuse began, she could not remember whether it was painful. She testified that the abuse continued until she was twelve or thirteen years old and stopped when she would no longer let appellant do such things to her. Appellant and her mother separated when she was eleven years old, but appellant continued to come to the house and take her and her brother to school. Tiffany, who still lived with her mother, did not tell her mother of the abuse until she was twenty-five years old.

Following Tiffany's testimony, the State rested its case. Appellant's counsel moved for a directed verdict, arguing that “we'd move for a directed verdict of acquittal based upon the sufficiency of the evidence that the State has presented in its case in chief after having rested. We feel that there is insufficient evidence for the jury to reach—absence any physical evidence of any abuse, that the, er, he be acquitted based upon that basis.” The trial court denied appellant's motion. The defense then presented its case-in-chief beginning with Michelle Diane Randolph. Michelle testified that she had known appellant for approximately sixteen or [Ark. App. 6]seventeen years and that she and appellant lived together for eight or nine years, on and off. She explained that she and appellant were “sexually intimate.”

The defense also attempted to present the testimony of D.R. D.R. testified that she currently lived with her grandmother, but in the past, when she lived with her mother and father, her Aunt Michelle would babysit her on weekends while her parents worked. Her Aunt Michelle was then living with appellant. She explained that she would often stay with appellant (whom she called Uncle Nate) when her Aunt Michelle was “not around.” After the State's objection to the testimony, the trial judge sustained the objection noting defense counsel's objection.

Next, appellant testified on his own behalf. Appellant testified that he lived with Darla and her children around the time of October 2007. Appellant was on disability for a previous work-related back injury. Because he was unable to work, he took care of the children after Darla began working. He stated the he “never had any sexual contact with [K.L.] when [he] was babysitting her.” Appellant's only explanation for why K.L. would make such accusations against him was that she did not like that he made her follow his rules in the home, which resulted in him and K.L. not getting along. He stated that he did not know why K.L. was being “untruthful.” He testified that he and Dark separated because the bills were “not getting paid.”

Appellant also testified that he was previously married to Mona Price. When they married, Mona had a...