Radford v. State, CACR08-666 (Ark. App. 6/24/2009)
| Decision Date | 24 June 2009 |
| Docket Number | CACR08-666. |
| Parties | Leland Allen RADFORD, Appellant, v. STATE of Arkansas, Appellee, |
| Court | Arkansas Court of Appeals |
Appeal from the Crawford County Circuit Court; [No. CRO7-246], Honorable Gary Cottrell, Judge.
Affirmed.
After the jury in his first trial could not reach a verdict, Leland Radford was retried and convicted of second degree sexual assault and attempted second degree sexual assault of a seven-year-old girl. The child's babysitter was Radford's daughter. The crimes allegedly took place at his home. In well-argued briefs, Radford asserts seven errors in his trial. These alleged errors (and their subpoints) range from voir dire to sentencing. The thorniest issue is a matter of evidence: over Radford's objection, the circuit court admitted and played for the jury part of a videotape of the child—who testified at trial—being questioned by a forensic interviewer at the Child Safety Center.
1. We must consider Radford's sufficiency challenge first. Weston v. State, 366 Ark. 265, 268, 234 S.W.3d 848, 851 (2006). It fails. His directed-verdict motions were too general to preserve the specific argument he makes on appeal about the lack of proof on sexual gratification. Meadows v. State, 358 Ark. 396, 402, 191 S.W.3d 527, 530-31 (2004). On the merits, and as the State points out, sexual assault in the second degree does not include "for sexual gratification" as an element. Ark. Code Ann. § 5-14-125 (Repl. 2006). The alleged victim's testimony created a jury question on the crimes charged. Davis v. State, 362 Ark. 34, 39-40, 207 S.W.3d 474, 479 (2005).
2. Radford argues that a potential juror's answers during voir dire, which revealed family experiences with sexual abuse involving children, required the juror's exclusion for cause. The potential juror said that she could put those experiences aside and judge the facts impartially. The circuit court overruled Radford's objection. And the woman served on the jury.
Radford recognizes that the supreme court's decision in Spencer v. State, 348 Ark. 230, 238, 72 S.W.3d 461, 465 (2002) binds this court and requires us to affirm on this point. Under Spencer, when the potential juror said that she could put aside her preconceived notions and would be fair to Radford, the circuit court had discretion to seat her. The merits of Radford's suggested categorical rule—"in cases involving allegations of the sexual assault of a child, the trial court should exclude any potential jurors who have been victims of sexual assault or have family members who have been victims of sexual assault"—are for the Supreme Court to judge.
3. The circuit court allowed the girl's mother to recount the child's statements to her on the night that the child reported the alleged sexual assault. The court overruled Radford's hearsay objection to this testimony, accepted the State's argument that it was to show why the mother reported the allegations to authorities, and instructed the jury that the child's words were not offered for their truth but only as a basis for the mother's actions. No abuse of discretion occurred in handling this testimony this way. White v. State, 367 Ark. 595, 602-03, 242 S.W.3d 240, 247 (2006).
4. Radford also argues that the circuit court abused its discretion in ruling the alleged victim competent to testify. Chambers v. State, 275 Ark. 177, 179, 628 S.W.2d 306, 307 (1982). We disagree. The court found the girl competent at the first trial. At the start of her testimony in the second trial, she testified that she knew the difference between telling the truth and telling a lie. She demonstrated her knowledge by responding to the prosecutor's questions about the color of the microphone. She said that she had gotten a spanking for telling a lie in the past and did not normally tell lies. When the prosecutor asked her what would happen if she did not tell the truth today, she responded "I'll get in trouble." On this record, the circuit court did not abuse its discretion by concluding that the alleged victim was competent to testify. Ibid; see also Warner v. State, 93 Ark. App. 233, 238-39, 218 S.W.3d 330, 333 (2005).
5. Karen Blackstone, the forensic interviewer, testified at trial. Radford contends that the circuit court erred by allowing Blackstone to offer testimony that telegraphed to the jury her opinion that this child was credible. No expert may tell the fact-finder that the victim is telling the truth about the crime charged. Cox v. State, 93 Ark. App. 419, 422-23, 220 S.W.3d 231, 233-34 (2005) (collecting cases). This is error when done directly. E.g., Cox, 93 Ark. App. at 422, 220 S.W.3d at 233 (). And it is no less error when done indirectly. E.g., Logan v. State, 299 Ark. 255, 256-57, 773 S.W.2d 419, 420-21 (1989) (). The precedents do not specify our standard of review on this point.
At trial, Blackstone's testimony was a mixed bag. On direct, she first testified about what she looks for when interviewing a child. She said that she evaluates the child's credibility, competency, and cognitive development. Blackstone testified that if, when she is repeating and summarizing what the child has said, the alleged victim is comfortable enough to correct her, then that indicates that the child is telling the truth. Later in her testimony, Blackstone said that this child corrected her two or three times when Blackstone misstated or repeated incorrectly what the child had told her about the incidents. Blackstone concluded that the child was "not worried about trying to . . . tell me what I want to hear," and that Blackstone could not "suggest . .. something because she's correcting me." Radford did not object to this testimony until about thirty more questions had been asked and answered. Then, on redirect, the prosecutor asked Blackstone whether her goal was "to determine whether or not the allegations are true or not." Blackstone responded, "No, Sir."
Whether Blackstone's testimony crossed the line is a close question. This much is clear, however: Radford failed to object immediately when Blackstone came closest to vouching for the child's credibility by testifying that the girl was not worried about telling Blackstone what she (the examiner) wanted to hear and that the child was not suggestible. Cf., Cox, 93 Ark. App. at 421-22, 220 S.W.3d at 233-34. Radford's omission waived this issue. Hinkston v. State, 340 Ark. 530, 538, 10 S.W.3d 906, 911 (2000).
6. Radford also argues that the circuit court improperly considered his exercise of his constitutional right to a jury trial when it sentenced him to consecutive prison terms. "The question of whether multiple sentences will be served concurrently or consecutively is a decision left to the sound discretion of the trial court, not to be altered on appeal absent a clear abuse of that discretion." Bell v. State, 101 Ark. App. 144, 147, 272 S.W.3d 110, 113 (2008). A trial court may abuse its discretion in several ways. Throneberry v. State, 102 Ark. App. 17, 18, 279 S.W.3d 489, 490 (2008). Among those ways is "when an irrelevant or improper factor is considered and given significant weight." Ibid. (internal quotation omitted).
Here, the jury recommended that Radford serve his two sentences consecutively. Before the circuit court imposed sentence, it called for argument from both parties. Then this exchange occurred.
[Defense Counsel].
Radford relies on well-reasoned cases from other jurisdictions and the Eighth Circuit because no Arkansas precedent exists on point. He contends that the circuit court abused its discretion by fixing his sentence based on an improper factor—Radford's exercise of his constitutional right to a trial and then a retrial after his first jury deadlocked. The State counters that the circuit court meant the crimes themselves, not the two trials, when the court spoke of "the circumstances she's been placed under."
This is a troubling allegation of error. Here again, however, Radford's failure to object below is fatal to his argument on appeal. If Radford had objected, cf. Thornberry, supra, then the circuit court could have clarified its reasoning, and his point would be preserved for us whether the record got any clearer or not. As the record stands, Radford waived his sentencing argument. Hinkston, 340 Ark. at 538 10 S.W.3d at 911. The sentence was within the statutory range for the crimes, Ark. Code Ann. § 5-4-401 (Repl. 2006), and the concurrent/consecutive issue is committed to the circuit court's discretion. Ark. Code Ann. § 5-4-403 (Repl. 2006); Bell v. State, 101 Ark. App. 144, 147, 272 S.W.3d...
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