Scaggs v. State

• Citation: 596 S.W.3d 562,2020 Ark. App. 142
• Decision Date: 26 February 2020
• Docket Number: No. CR-19-607,CR-19-607
• Parties: Scotty Joe SCAGGS, Appellant v. STATE of Arkansas, Appellee
• Court: Arkansas Court of Appeals

2020 Ark. App. 142

596 S.W.3d 562

Scotty Joe SCAGGS, Appellant

v.STATE of Arkansas, Appellee

No. CR-19-607

Court of Appeals of Arkansas, DIVISION II.

Opinion Delivered: February 26, 2020

J. Downum Law Office, PLLC, by: Justin E. Downum, for appellant.

Leslie Rutledge, Att’y Gen., by: Jason Michael Jonson, Ass’t Att’y Gen., for appellee.

ROBERT J. GLADWIN, Judge

Scotty Joe Scaggs appeals his conviction in the Marion County Circuit Court. A jury found him guilty of sexual indecency with a child, sexual assault in the second degree, and sexual assault in the first degree, and the court sentenced him to an aggregate term of twenty years’ imprisonment. Scaggs’s appeal addresses the sufficiency of evidence regarding only first-degree sexual assault, and he also challenges the circuit court’s admission of evidence pursuant to Rule 404(b) of the Arkansas Rules of Evidence 2019. We affirm.

I. Facts

Scaggs was charged by information alleging that he caused a female child, less than fourteen years old, to dance while naked and also engaged in deviate sexual activity with her. Scaggs was also accused of engaging in deviate sexual activity with a fifteen-year-old male. Before the jury trial on these charges, the State sought an evidentiary ruling on testimony it wished to introduce about Scaggs’s prior acts of a sexual nature, arguing that the evidence was admissible under Rule 404(b).

J.T., age twenty-three, testified that Scaggs is her father. She described an escalation of sexual contact with Scaggs that began when she was nine years old. She said that she was age ten or eleven when he first penetrated her with his fingers and his penis. She described Scaggs’s supplying alcohol to her during these years as well. She said that the last time penetration occurred, she was fifteen and a half years old, and she thought that he had impregnated her, but he had not. She said that she told her mother at that time, and law enforcement interviewed her, but no charges were filed. The circuit court ruled that this evidence was admissible under Rule 404(b).

At the jury trial, A.T., age eighteen, testified that when she was seven years old, she stayed at Scaggs’s house one night. Scaggs is her great uncle, and her cousins had asked her to stay there following a family gathering. She said that all the adults had left except for Scaggs, and he asked them to play "Truth or Dare." She said that Scaggs told the girls to strip naked and run back and forth throughout the house in front of him and the boys. She said that Scaggs "had us kiss our cousins and girls. And if the boys didn't watch then they were locked in the closets and bathrooms in the dark." She said that Scaggs was drunk and that he made the girls—her, J.T., S., and S.—go with him into the bedroom, strip naked, and dance on top of the dresser. She said that he also made the girls sleep in the bed with him that night, and he tried to put his fingers inside her vagina. She said that she got away from him, told him no, and got "in the floor." She said Scaggs told them if they ever came forward that he would severely punish them.

D.M., age twenty-six, testified that he had been Scaggs’s neighbor, had been hunting with Scaggs, and had dated J.T. He said that when he was fifteen years old, he stayed the night at Scaggs’s house with J.T., her sisters, and Scaggs. He said that Scaggs had been the only adult present and that they drank alcohol. He said after drinking for a couple of hours, everyone went to bed. He said that J.T. called him to her room, where she and Scaggs "announced the situation." D.M. said,

[Scaggs] had J.T. ask me if I wanted her to give me an HJ, which I think she was using slang for a hand job. And then J.T. asked if I let him put his mouth on my penis and eat her out. And I panicked, of course, and didn't know what to do. All of what I said ended up taking place, and I—halfway through I blacked out. And it’s just not something you forget.

D.M. said that when an investigator first asked him about this incident six or seven months after it had occurred, he lied and said that nothing happened because he did not want anyone to know. D.M. said that when he was contacted again in 2017, his perspective changed because he felt bad about not coming forward a long time ago. D.M. said that after the incident, he never went hunting with Scaggs or spent the night at his house again.

J.T. testified that Scaggs is her father and corroborated A.T.’s and D.M.’s testimony. Before J.T. testified regarding the proposed Rule 404(b) evidence, Scaggs’s defense counsel asked for a limiting instruction for the jury, and the circuit court agreed to instruct on AMI Crim. 2d 203-A. The court and counsel settled on the following language as part of the instruction: "This evidence is merely offered as evidence of motive and proclivity towards a specific act with minor children."

J.T. then testified that her sexual contact with Scaggs began when she was nine years old, and it continued until she was fifteen years old. She explained that her mother worked late nights and was not home and that Scaggs would be drinking. She described the escalation of sexual contact with Scaggs, which began with him touching himself and playing with her vagina and then progressed from oral penetration to vaginal and anal intercourse. She said,

It happened until I was 15. It happened all the way through my parents’ divorce and through their separation. It happened at every house he lived in after that. It got to where it would happen every weekend, because we went over there every weekend. Every weekend he would buy alcohol and scary movies and things like that and we would all drink and party. I mean, nine, ten years old, we would all drink and party, and it would happen every time.

There were no adults in the house while anything was happening. And he was not always drunk when it happened. There was several times where he would go and take a nap and things would happen then. He would tell me to go lay down with him while he took a nap, and things would happen at that point.

J.T. said that when she was fifteen years old, she "told" because she mistakenly thought she was pregnant. She said that she gave an "interview" and related the situation with D.M., but she did not mention anything about the episode with A.T. On cross-examination, she admitted that she first told the Child Advocacy Center that Scaggs had been forceful the "first time" and that he had picked her up and thrown her on the bed. She said that this was what she told herself for a long time because it was easier for her to believe that "it was forced" than for her to accept that she just lay there and pretended like nothing was happening. A video recording of her interview was played for the jury, and she admitted that she had been untruthful in it.

At the close of the State’s evidence, Scaggs’s defense counsel moved for a directed verdict. Counsel argued regarding first-degree sexual assault that the State had to prove Scaggs was in a position of trust or authority over D.M. and that there had been insufficient evidence to support that conclusion. Counsel argued that D.M. had been at Scaggs’s house "hanging out with his girlfriend" and that D.M. testified that Scaggs was not his chaperone or babysitter and that his parents did not know or arrange for him to be at Scaggs’s house. The circuit court denied the motion. The motion was renewed and denied at the close of the defense’s case.

The State proposed a jury instruction containing the definition of "a person in position of trust or authority" and in regard to "temporary caretaker." Scaggs’s defense counsel objected. The circuit court denied the instruction and allowed the State to proffer it. The jury returned a guilty verdict on all three charges, and the circuit court sentenced Scaggs to imprisonment for concurrent terms of twenty years for sexual assault in the first degree, ten years for sexual assault in the second degree, and five years for sexual indecency with a child. Scaggs filed a timely notice of appeal, and this appeal followed.

II. Sufficiency of the Evidence

To be guilty of sexual assault in the first degree under Arkansas Code Annotated section 5-14-124(a)(1)(D) (Supp. 2019), a person must have engaged in sexual intercourse or deviate sexual activity with someone under eighteen years of age who is not the actor’s spouse, and the person must have been a temporary caretaker or in a position of trust or authority over the victim.

A motion for a directed verdict is treated as a challenge to the sufficiency of the evidence. Estrada v. State , 2011 Ark. 3, 376 S.W.3d 395. The test for such motions is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. Id. On appeal, appellate courts review the evidence in the light most favorable to the State and consider only the evidence that supports the verdict. Id.

A sexual-assault victim’s testimony may constitute substantial evidence to sustain a conviction for sexual assault. Brown v. State , 374 Ark. 341, 288 S.W.3d 226 (2008). The victim’s testimony need not be corroborated, and the victim’s testimony alone, describing the sexual contact, is enough for a conviction. SeeColburn v. State , 2010 Ark. App. 587. The credibility of witnesses is a matter for the jury’s consideration. Tryon v. State , 371 Ark. 25, 263 S.W.3d 475 (2007). Where the testimony is conflicting, we do not pass upon the credibility of the witnesses and have no right to disregard the testimony of any witness after the jury has given it full credence, where it cannot be said with assurance that it was inherently improbable, physically impossible, or so clearly unbelievable that reasonable minds could not differ thereon. Davenport v. State , 373 Ark. 71, 281 S.W.3d 268 (2008). Furthermore, the jury

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