Spencer v. State
| Decision Date | 18 April 2002 |
| Docket Number | No. CR 01-619.,CR 01-619. |
| Citation | 348 Ark. 230,72 S.W.3d 461 |
| Parties | Darrell G. SPENCER v. STATE of Arkansas. |
| Court | Arkansas Supreme Court |
Philip C. Wilson, Sheridan, for appellant.
Mark Pryor, Att'y Gen., by: Katherine Adams, Ass't Att'y Gen., Little Rock, for appellee.
Appellant Darrell G. Spencer was charged under Ark.Code Ann. § 5-14-103(a)(4) (Repl.1997) with the rape of his five-year-old stepson, C.S. The State alleged Spencer engaged in sexual intercourse with C.S., who was less than fourteen years of age at the time. Spencer was specifically charged with having inserted his penis into C.S.'s mouth and anus. The State averred that, upon learning of this occurrence, C.S.'s mother called the Child Abuse Hotline and reported that Spencer had molested her son. Spencer was convicted of the charge and sentenced to life imprisonment. Our court has appellate jurisdiction of criminal appeals where life sentences are imposed. See Ark. Sup. Ct. R. 1-2(a)(2). Spencer raises three points for reversal, but none has merit.
We first consider Spencer's argument that the trial court erred in denying his motion for directed verdict, claiming the evidence was insufficient to prove rape. Interestingly, Spencer fails to discuss any of the evidence introduced at trial, much less suggest how the State's evidence was deficient. This fact aside, Spencer has failed to preserve this issue.
At the end of the State's case-in-chief, Spencer made a motion for a directed verdict, stating, The trial court denied the motion. At the conclusion of all of the evidence, Spencer renewed his motion for directed verdict, stating only that "I do need to renew my motion for a directed verdict and also to renew all the objections that I have for the previously stated reasons." The trial court again denied Spencer's motion.
Ark. R.Crim. P. 33.1(a) states that, (Emphasis added.) Further, Rule 33.1 states, in pertinent part, the following:
The failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required in subsections (a) and (b) above will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the verdict or judgment. A motion for directed verdict or for dismissal based on insufficiency of the evidence must specify the respect in which the evidence is deficient. A motion merely stating that the evidence is insufficient does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense.
(Emphasis added.)
This court has repeatedly addressed this issue and held that a directed-verdict motion "requires [a] movant to apprise the court of the specific basis on which the motion is made." Bowen v. State, 342 Ark. 581, 30 S.W.3d 86 (2000). Clearly, Spencer's motion for directed verdict, stating only that the evidence was insufficient, but not specifying in what respect it was deficient, was not specific enough to preserve the issue for review.
Next, we consider Spencer's assertion that the trial court abused its discretion in refusing to grant his motion in limine whereby he sought to exclude evidence of prior sexual acts with other children or of any pending charge of a similar nature. At pretrial hearings on Spencer's motions, the State presented the testimony of two of his daughters, S.S. and D.S., and of his first cousin, Cynthia Brown. S.S., who was almost twelve at the time of the hearing, testified that Spencer lived with her family until she was about five years old and he "made her touch his private areas," and on another occasion, "he stuck his private area in mine ... and when he got through he squirted white stuff all on my stomach." S.S. also said that the first of these acts occurred when she was three years old. D.S. testified that "Darrell Spencer touched me in a bad way by touching my pee-pee when I was three years old." The trial court ruled that this was admissible testimony because it fell within the pedophile exception to Ark. R. Evid. 404(b) and "involved similar dynamics." The trial court further ruled that the testimony had more probative value than prejudicial effect.
Just prior to trial, the State also offered the testimony of Cynthia Brown, Spencer's first cousin. Brown was thirty-three years old at the time of the pretrial hearing. She testified that she first had sexual contact with Spencer when she was four or five years old, and he was ten or twelve. She said that she was seven or eight years old when she started sexual intercourse with Spencer; he was fourteen. She related that she continued intercourse with him through her teen years. Brown further averred it had been ten years or longer since she had any contact with Spencer and longer than that since they had sexual contact with one another. Spencer objected to Brown's testimony as being so remote in time that the prejudicial effect would far outweigh any probative value. Spencer also complained that, unlike the present case, Spencer was a minor, not an adult, when some of Spencer's sexual conduct with her occurred. The court ruled that Brown's testimony would be admissible during the trial, because it showed a continuing episode on Spencer's part, and fell within Rule 404(b). The court also found that Brown's testimony was more relevant than prejudicial. At trial, S.S. and Brown testified, but D.S. did not. On appeal, Spencer argues that the trial court's ruling to admit the testimony of S.S. and Brown was error because the evidence was more prejudicial than probative. He asserts that the remoteness in time of these other events should have kept them from being admitted into evidence.
Rule 404(b), dealing with evidence of other crimes, wrongs, or acts, provides as follows:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
It is settled that the list of exceptions set out in Rule 404(b) is exemplary and not exhaustive. Mosley v. State, 325 Ark. 469, 929 S.W.2d 693 (1996). It is also well established that the rule permits introduction of testimony of other criminal activity if it is independently relevant to the main issue, that is, relevant in the sense of tending to prove some material point rather than merely to prove that the defendant is a criminal. Id.
In Mosley, the defendant was charged with having committed rape and incest against his nineteen-year-old daughter. During the State's case-in-chief, the trial court additionally admitted proof that, eleven years earlier, Mosley had pled guilty to carnal abuse of his six-year-old stepdaughter. The Mosley court concluded that evidence of a prior similar offense in cases where the charge involves unnatural sexual acts shows not that the accused is a criminal but that he has...
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