Rogers v. State

• Court: Arkansas Supreme Court
• Writing for the Court: RHONDA K. WOOD, Associate Justice
• Citation: Rogers v. State, 550 S.W.3d 387 (Ark. 2018)
• Decision Date: 12 July 2018
• Docket Number: No. CR-17-916,CR-17-916
• Parties: Edward Darnell ROGERS, Appellant v. STATE of Arkansas, Appellee

550 S.W.3d 387

Edward Darnell ROGERS, Appellant

v.STATE of Arkansas, Appellee

No. CR-17-916

Supreme Court of Arkansas.

Opinion Delivered: July 12, 2018

Hancock Law Firm, by: Sharon Kiel, Little Rock, for appellant.

Leslie Rutledge, Att'y Gen., by: Adam Jackson, Ass't Att'y Gen., for appellee.

RHONDA K. WOOD, Associate Justice

A Pulaski County jury convicted Edward Rogers of three counts of rape. On appeal, he challenges the sufficiency of the evidence, and he alleges the circuit court erroneously prohibited him from cross-examining one of the victims about her misdemeanor conviction for theft of property. We hold that the State presented evidence sufficient to convict Rogers of all three rapes. However, we find that the circuit court erred when it precluded Rogers's cross-examination of one victim's prior conviction. Nevertheless, we affirm because this error was harmless.

I. Facts

The State charged Rogers with the rape of four sisters, TB, MiB, MaB, and LW, who were all under eighteen at the time of the alleged offenses. For years, Rogers, who had a romantic relationship with their mother, lived with the girls. At trial, each sister testified about their specific sexual contacts with Rogers.

First, TB and MiB, seventeen-year-old twins, testified that Rogers acted like a father to them and that they called him "Daddy." They had known him since he began dating their mother when they were approximately five years old. At trial, they described how Rogers had raped them separately when they were thirteen, and they detailed his continued sexual contact with them. Both girls explained that the sexual contact primarily occurred when he had them alone, usually on a blow-up mattress, on the couch in the living room, or in his car. TB testified that Rogers used a "gold condom." She also testified that she witnessed Rogers sexually abusing her three sisters. MiB ultimately told her mother about the rape. MiB had behavioral problems and had run away from home. She told her mother that the reason for her behavior was that Rogers had raped her and her sisters.

MaB was sixteen years old at the time of trial. She testified that Rogers first touched her inappropriately when she was twelve years old in their living room. A few days later, when no one else was home, he raped her. She testified that he had used a condom with a gold wrapper. MaB testified that Rogers had raped her at least five times, either in the living room, her bedroom, or in his car. She also testified that she had loved Rogers and called him "Daddy" prior to the abuse.

The oldest sister, LW, was twenty-one years old at the time of trial. She also testified that she thought of Rogers as a father. She stated that when she was fourteen, Rogers raped her in her bedroom after school when no one else was home. Approximately one month later, he raped her again on the couch in the living room. LW testified that in total, Rogers had raped her five or six times. All four sisters testified that Rogers insinuated their mother would be harmed if they told her, and three of the sisters testified that Rogers threatened to kill himself should they inform their mother of his conduct.

The girls' mother also testified at Rogers's trial. She stated that Rogers was heavily involved in caring for the girls and that he acted as a father. In 2013, MiB told her that Rogers had touched MiB and TB inappropriately. At that time, neither of the girls disclosed that they had been raped. When the mother confronted Rogers, he told her that he had made a mistake and that it would not happen again. He moved out of the house, but the family continued to have contact with him. In November 2014, MiB disclosed to her mother that Rogers had raped her and her sisters. The mother stated that she talked to each of the girls individually and that they all confirmed the abuse. She again confronted Rogers. He told her that he had been abused as a boy, and he threatened to commit suicide. Although the mother admitted that the family struggled financially after Rogers moved out, she denied having encouraged her daughters to fabricate the allegations.

Rogers testified in his defense. He stated that he was the girls' father figure, but he denied ever touching them inappropriately. Rogers claimed that the mother had the girls manufacture the rape charges because she was mad at him.

A jury convicted Rogers of the rapes of MaB, MiB, and LW. The jury acquitted him of the rape of TB. He was sentenced to forty years' imprisonment for the rape of MaB and to two twenty-year terms of imprisonment for the rapes of MiB and LW. The jury recommended that the sentences run concurrently, and the circuit court accepted that recommendation. Rogers appealed to the court of appeals, and it reversed. Rogers v. State , 2017 Ark. App. 521, 536 S.W.3d 128. The State filed a petition for review, and we accepted review under Rule 1-2(e) of the Rules of the Arkansas Supreme Court. On review, we treat the case as if it had been originally filed in our court. Kilgore v. Mullenax , 2017 Ark. 204, 520 S.W.3d 670.

II. Sufficiency of the Evidence

Rogers's first point on appeal challenges the sufficiency of the evidence. He contends that the victims were not credible and that the prosecution presented no physical evidence of rape. The test for determining the sufficiency of the evidence is "whether the verdict is supported by substantial evidence, direct or circumstantial." Jeffries v. State , 2014 Ark. 239, 3, 434 S.W.3d 889, 893. We view the evidence in the light most favorable to the verdict, only considering that evidence which supports the verdict. Id. Testimony of a rape victim alone constitutes sufficient evidence to support a conviction. Hanlin v. State , 356 Ark. 516, 525, 157 S.W.3d 181, 187 (2004).

At Rogers's trial, all three sisters of whom he was convicted of raping testified that Rogers had sexual intercourse with them when they were minors. Specifically, MaB testified that Rogers began touching her inappropriately when she was twelve years old and had sexual intercourse with her just days after her thirteenth birthday. MiB testified that Rogers had forced sexual contact with her when she was thirteen, and later had sexual intercourse with her on several occasions. Finally, LW testified that she was fourteen years old when Rogers first raped her and that it occurred repeatedly.

Here, each victim's testimony, in isolation, constitutes sufficient evidence to support the corresponding conviction. However, in this case, there was more evidence than just the victims' isolated testimony. Rogers exhibited similar behaviors in each rape. Indeed, all four girls were roughly the same age when Rogers began sexually abusing them. Two of the four girls testified that Rogers used a gold condom during intercourse. Two of the girls testified that Rogers drove them to a dead-end street to have intercourse in the back of his car. All four girls shared similar sexual encounters with Rogers in their family living room, and each girl testified that Rogers instructed them not to tell their mother what he had done. Three of the girls testified that Rogers threatened to "kill himself" if they told.

Moreover, all three convictions are corroborated by eyewitness testimony. MaB testified that Rogers performed oral sex on her and MiB while they laid in the same bed. MiB testified to witnessing Rogers engage in penetrative intercourse with MaB. TB, the fourth sister, witnessed Rogers engaging in oral sex on MaB, having intercourse with MiB, and testified to watching a video of Rogers having intercourse with LW.

Viewing all the evidence in the light most favorable to the verdict, and only considering evidence which supports the verdict, we hold that Rogers's conviction is supported by substantial evidence.

III. Cross-Examination on Theft of Property Conviction

Rogers next argues that the circuit court erred in prohibiting his counsel from cross-examining LW about her misdemeanor conviction for theft of property under Arkansas Rule of Evidence 609(a) (2017)¹ which provides that

[f]or the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted but only if the crime (1) was punishable by death or imprisonment in excess of one [1] year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party or a witness, or (2) involved dishonesty or false statement, regardless of the punishment.

The admission or rejection of evidence is left to the sound discretion of the circuit court, and we will not reverse absent an abuse of discretion. Benson v. State , 357 Ark. 43, 160 S.W.3d 341 (2004).

During the cross-examination of LW, Roger's counsel approached the bench and explained that he intended to impeach LW. At that time, the following colloquy occurred:

DEFENSE COUNSEL : She has a misdemeanor conviction out of 2014 for theft of property. Before I impeach her for that, I want to make sure are y'all objecting on that?

PROSECUTOR : Yes. It's a misdemeanor, and it's over—I mean, it's over a year old.

DEFENSE COUNSEL : It's a misdemeanor, but it's in the matter that deals with truthfulness.

PROSECUTOR : Actually theft is not. If it was a forgery, or filing a false police report or something like that.

COURT : I agree.

Rogers argues this ruling was an abuse of discretion because a conviction of theft of property is a crime involving dishonesty and is therefore always admissible under Rule 609(a). In response, the State argues that the issue is not preserved because Rogers failed to proffer the facts underlying the conviction and failed to establish that the theft involved "dishonesty or false statement." We conclude that the circuit court erred.

This court has consistently held that theft crimes involve dishonesty, regardless of the facts underlying the particular offense. See, e.g. , State v. Cassell , 2013 Ark. 221, 427 S.W.3d...