Taffner v. State, CR–16–1024

• Decision Date: 29 March 2018
• Docket Number: No. CR–16–1024,CR–16–1024
• Citation: 541 S.W.3d 430
• Parties: Chris Beason TAFFNER, Appellant v. STATE of Arkansas, Appellee
• Court: Arkansas Supreme Court

541 S.W.3d 430

Chris Beason TAFFNER, Appellant

v.STATE of Arkansas, Appellee

No. CR–16–1024

Supreme Court of Arkansas.

Opinion Delivered: March 29, 2018

Rehearing Denied May 10, 2018.

Kezhaya Law, Bentonville, by: Matthew A. Kezhaya, for appellant.

Leslie Rutledge, Att'y Gen., by: Brad Newman, Ass't Att'y Gen., for appellee.

COURTNEY HUDSON GOODSON, Associate Justice

Appellant Chris Beason Taffner (Taffner) appeals his conviction on two counts of rape and three counts of sexual assault in the second degree, for which he was sentenced to an aggregate term of 140 years' imprisonment. For reversal, Taffner argues that the circuit court erred when it (1) denied his motion for directed verdict, (2) excluded the testimony of Jonathan Zovak, (3) prevented him from conducting a reasonable cross-examination of one of the victims, and (4) denied his motion for a new trial after a juror had concealed her position as a court-appointed child advocate during voir dire. We affirm in part and remand for further proceedings.

I. Background

Taffner and his wife were adoptive parents to AT, BT, KT, JT, and NT, five children who came into the Taffner home through the foster-care system. Taffner and his wife also periodically fostered other children. The couple fostered MG from October 2014 to December 2014. In December 2014, BT overdosed on Oxycontin, which was provided to her by MG. MG was sent to a drug-treatment facility, and when she returned, the Taffners told her that they could no longer foster her. MG later alleged that Taffner had touched her breasts on two occasions. Consequently, the State charged Taffner with second-degree sexual assault based on MG's allegations. MG was at least fourteen at the time of the alleged offense. During an investigation of MG's allegations, BT alleged that Taffner had inappropriately touched her, and also that he had forcibly penetrated her and forced her to perform oral sex on him. Taffner was charged with two counts of rape and one count of second-degree sexual assault for the incidents involving BT, who was thirteen at the time of the alleged offense. KT initially denied any inappropriate touching or sexual contact but later alleged that Taffner often touched her breasts. Taffner was charged with one count of second-degree sexual assault for doing so when KT was under the age of fourteen.

On January 8, 2016, Taffner filed a motion in limine in which he sought to use specific instances of dishonesty to impeach the juveniles' testimony pursuant to Arkansas Rule of Evidence 608(b) and to offer evidence as to their reputation for honesty. The court held a hearing on the motion on January 12, 2016. At the hearing, Taffner argued that he should be allowed to question BT about false charges she had made against her biological father that had been investigated but found to be unsubstantiated. The hearing also involved other issues and ended without a ruling regarding BT's questioning.

On March 11, 2016, Taffner filed a motion to compel production of a Department of Human Services (DHS) file, which Taffner argued contained a report of a sexual-abuse allegation BT made against her biological father that was found to be unsubstantiated. That same day, the court ordered production of the file for an in camera review of its impeachment or exculpatory value. The file was brought to the court, and another hearing was held later that day. At that hearing, the court considered whether the DHS file should be produced to Taffner. The court noted that BT's biological father's rights had been terminated, and in the termination order, Judge Stacey Zimmerman stated that BT had disclosed sexual abuse by her father. The court found there was no evidence that BT had recanted her allegations by the time the termination order was entered, and the court further found "there is no need for me to examine the juvenile file." The court asked the State to prepare a written order reflecting the ruling.¹ The hearing then ended.²

Taffner's trial began on March 14, 2016, and ended on March 16, 2016. On the second day of the trial, the prosecution called BT as a witness. Before BT testified, the court excused the jurors, and the parties revisited the issue of which questions Taffner would be allowed to ask her. During the hearing, the court noted that Ark. R. Evid. 411, known as the rape-shield rule, prevented Taffner from questioning BT about her prior allegation of sexual abuse if BT continued to assert that the allegation was true. However, the court did allow BT to be questioned as to the truthfulness of her prior allegation against her biological father. BT was therefore questioned outside the presence of the jury, and she testified that her allegations of sexual abuse by her biological father were false. After BT's testimony, the circuit court ruled that when the jury returned Taffner could ask BT if she made an allegation against her biological father, if it was true, how long ago the allegation was made, and how old she was at the time. The court further said, "And that's it. Nothing like records that we've talked about in the past and then that's going to be the end of that subject matter." The trial resumed, and BT was questioned accordingly about her prior allegation against her biological father. When the defense asked BT if the prior allegation was true she said, "Now that I know the terms that they use, it is not true."

At the close of the State's case, Taffner moved for a directed verdict with respect to the charge relating to MG. Taffner argued that MG was not a credible witness, but the court denied his motion. The trial proceeded to Taffner's presentation of his defense.

In his defense, Taffner sought to introduce the testimony of Jonathan Zovak, who would have stated that MG had a reputation for dishonesty. Taffner planned to introduce Zovak's testimony through Ark. R. Evid. 608(a), which allows the attack of a witness's reputation for truthfulness. The State argued that Zovak's testimony was barred by Ark. R. Evid. 411, the rape-shield rule, because Zovak was a convicted sex offender, and MG was his victim. The State reasoned that Zovak would need to be impeached by his conviction, which would then violate Rule 411's prohibition of the use of a victim's prior sexual conduct to attack a witness's credibility. According to the State, Taffner was attempting an "end-around" the rape-shield rule. Taffner argued that he was attempting to introduce the evidence through Rule 608(a) and did not plan to reference MG's sexual history; however, the court ruled Zovak's testimony inadmissible under Rule 411.

At the close of his case-in-chief, Taffner again moved for a directed verdict. Taffner raised a new argument that the State had failed to prove that his alleged touching of MG involved forcible compulsion. Taffner argued that without evidence of forcible compulsion, he could not be convicted of second-degree sexual assault for touching MG because she was over the age of fourteen at the time of the alleged offense. The circuit court denied Taffner's motion, and he was convicted of all counts.

II. Points on Appeal

A. Sufficiency of the Evidence

An appeal from the denial of a motion for directed verdict is treated as a challenge to the sufficiency of the evidence. Brunson v. State , 368 Ark. 313, 245 S.W.3d 132 (2006). Therefore, due to double-jeopardy concerns, we first address Taffner's argument that the circuit court erred by denying his motion for a directed verdict. Hicks v. State , 2017 Ark. 262, 526 S.W.3d 831.

Taffner argues that because MG was at least fourteen at the time of the alleged offense, the state failed to offer substantial evidence of forcible compulsion as required by Ark. Code Ann. § 5–14–125(a)(1) (Repl. 2013). That statute prohibits a person from engaging in sexual contact with another person by forcible compulsion. Sexual contact includes an act of sexual gratification involving the touching of the breast of a female. Ark. Code. Ann. § 5–14–101(10). Forcible compulsion is defined by Ark. Code. Ann. § 5–14–101(2) to include "physical force or a threat, express or implied, of death or physical injury to or kidnapping of any person." Arkansas Rule of Criminal Procedure 33.1 requires a challenge to the sufficiency of the evidence to be made by a motion for a directed verdict at the close of the State's case-in-chief and at the close of the defense's case-in-chief. Rule 33.1 requires the motion to "state the specific grounds therefor." Taffner moved for a directed verdict at both stages. However, Taffner did not argue a lack of evidence of forcible compulsion at the close of the State's case. The only argument he made with respect to MG was that she was not a credible witness. In fact, when he renewed his motion for a directed verdict at the close of the defense case, Taffner's attorney specifically said that he had a new argument. Taffner's attorney then went on to argue that there was no proof of a threat of serious bodily injury, death, or kidnapping of MG. The circuit court also recognized Taffner's "new argument" in denying the second motion. We agree that Taffner presented a new argument that the State failed to provide substantial evidence of forcible compulsion and therefore hold that it was not preserved for review.

B. Zovak's Testimony

Taffner next argues that the circuit court abused its discretion by excluding the testimony of Jonathan Zovak. According to Taffner, Zovak would have testified as to MG's reputation for dishonesty pursuant to Ark. R. Evid. 608(a), and Taffner argues that the testimony was not excludable under Ark. R. Evid. 411. Zovak had been convicted of fourth-degree sexual assault of MG. The State argued that Zovak should not be allowed to testify because in order to impeach Zovak, the State would be required to violate Ark. R. Evid. 411 by introducing evidence of Zovak's criminal history, which would in turn reveal MG's sexual history. The circuit court agreed with the State in...