Walker v. State, CR-18-614

• Decision Date: 27 February 2019
• Docket Number: No. CR-18-614,CR-18-614
• Citation: 2019 Ark. App. 130,571 S.W.3d 70
• Parties: Michael David Lee WALKER, Appellant v. STATE of Arkansas, Appellee
• Court: Arkansas Court of Appeals

2019 Ark. App. 130

571 S.W.3d 70

Michael David Lee WALKER, Appellant

v.STATE of Arkansas, Appellee

No. CR-18-614

Court of Appeals of Arkansas, DIVISION II.

Opinion Delivered: February 27, 2019

Knutson Law Firm, by: Gregg A. Knutson, for appellant.

Leslie Rutledge, Att'y Gen., by: Pamela Rumpz, Ass't Att'y Gen., for appellee.

ROBERT J. GLADWIN, Judge

Appellant Michael Walker appeals his convictions on charges of rape and sexual indecency with a minor for which he was sentenced to a total of forty-six years in the Arkansas Department of Correction. He argues that the circuit court erred in (1) denying his motion for a directed verdict because the State did not prove that the allegations occurred during the years alleged in the amended criminal information; (2) not allowing three witnesses to give their opinion testimony regarding the character for untruthfulness of the victim, pursuant to Arkansas Rule of Evidence 608 (2018); and (3) denying his motion for a mistrial. We affirm.

I. Facts and Procedural History

The offenses that were the bases for these charges were alleged to have occurred between 2004 and 2007 when the victim, appellant's nephew, C.R., was "around five or six," and again when C.R. was "six or seven." C.R. remained silent for many years because appellant told C.R. that if he ever said anything he would kill him.

The allegations came to light on August 6, 2015, after appellant punched C.R., and C.R. then telephoned police. Police arrived at the home appellant was sharing with his sister and C.R., but by that time, appellant had fled. The assistance of the United States Marshals was required to locate and apprehend appellant after he fled the state of Arkansas and texted his sister, Evannah Graves, that he had a gun and would kill police attempting to apprehend him.

Appellant was apprehended on September 15, 2015, and extradited from Oklahoma to Miller County, Arkansas. On September 30, 2015, appellant spoke to Investigator Patsy Dehart with the Miller County Sheriff's Department. At that time, appellant admitted to behaviors against C.R. that were consistent with C.R.'s allegations that formed the bases for the above-described charges. It is undisputed that appellant was over eighteen at the time of the incidents. Due to the passage of time, there was no physical evidence, and there were no eyewitnesses.

During trial, appellant attempted to introduce opinion testimony under Rule 608(a) regarding C.R.'s character for untruthfulness from C.R.'s mother, Davida Stewart; C.R.'s brother, Jonathon Walker; and C.R.'s aunt, Evannah Graves. After discussion and a proffer from each of the proposed witnesses, the circuit court allowed testimony as to C.R.'s character for untruthfulness, in the form of reputation evidence, only from Jonathon. Jonathon testified that he told appellant in a phone call that if C.R. went "through with this ... [he was] beating the f* * * out of him." Jonathon continued by saying that C.R. knew the truth and that if he did not do the right thing when he testified, he would "whip his ass." In addition, Jonathon testified that C.R.'s reputation is that he is "untruthful." Although not allowed to testify regarding C.R.'s character for untruthfulness, Stewart did unequivocally testify that she was backing appellant at trial and was "not backing her son here today."

On rebuttal, the State recalled Investigator Dehart, who testified that C.R.'s mother cooperated in the investigation to locate appellant after he fled from Arkansas. In response to the question from the State, "[S]o she helped you as much as possible in finding [appellant?]" Investigator Dehart replied, "She gave us the names of other victims as well." Appellant moved for the statement to be struck, and the circuit court immediately informed the jury accordingly. Appellant's counsel approached the bench and requested a mistrial. After discussion, the circuit court indicated that it would admonish the jury and that during the admonishment, it would "look and see if there is any particular response from any juror that gives the court pause." The admonition read:

All right, ladies and gentlemen of the jury, in the last session when there was a question and answer session by the State with the witness Patsy Dehart, Ms. Dehart gave an unsolicited comment that was made in her testimony. And the Court is admonishing you that you will disregard the statement, okay, and it can play no role in your understanding and deliberations in this case, okay. Is there anyone who is unable to do that? That's not a right or wrong answer, but if you are unable to do that then we need to know that right now, okay. Is there anyone who is unable to do that?

No jury member indicated an inability to follow the admonition, and the trial proceeded.

Appellant was convicted of rape by a jury and sentenced to forty years, as well as sexual indecency with a child and sentenced to six years, with the sentences to be served consecutively pursuant to a sentencing order filed on February 8, 2018. He filed a timely notice of appeal on February 28, 2018.

II. Discussion

A. Sufficiency of the Evidence

Although it is his last point on appeal, because of double-jeopardy concerns, we must address appellant's sufficiency-of-the-evidence challenge first. Merchant v. State , 2017 Ark. App. 576, 532 S.W.3d 136. According to the amended criminal information, the alleged crimes occurred during the specific years of 2005 and 2007. At trial, appellant moved for a directed verdict at the close of the State's case and at the close of all the evidence as follows:

The Count 1 sets forth that during the years 2005 and 2007 in Miller County, Arkansas Defendant did unlawfully engage in sexual intercourse or deviate sexual activity although there's been, with an individual less than fourteen years of age. Your Honor, there's been testimony of no sexual intercourse, however there is testimony regarding deviate sexual activity, but how it was not stated with specificity when that occurred. So, in light of that fact, Your Honor, I would argue that there should be a directed verdict in this case because there's no evidence presented by the State that this instance occurred in 2005 and 2007.

Additionally, Your Honor, under Count 2, again although there's been an allegation made it doesn't state when it was made. Specifically, the criminal information specifies during the years of 2004 and 2007. There's no evidence of when these instances occurred. There was never, the only testimony about these occurrences came from the victim and he was unable by his own admission to reiterate to the Court or to the jury when these occurred.

Without evidence of when these instances of sexual indecency occurred or in the other case Count 1, when the deviate sexual activity occurred, they have failed to meet their burden in conformity with the information. In light of that fact, Your Honor, I would ask that the Court grant a directed verdict in this case because the State has not met their burden.

A directed-verdict motion is a challenge to the sufficiency of the evidence. Merchant , 2017 Ark. App. 576, at 2–3, 532 S.W.3d at 138. Our test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence. Id. Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id. On appeal, the evidence is viewed in the light most favorable to the State, and only the evidence supporting the verdict is considered. Id.

The substance of appellant's argument is that the State is required to prove all allegations contained in the amended criminal information; however, appellant concedes that the specific date or time when the crime occurred is not an element of the offenses charged. Accordingly, the circuit court's denial of appellant's motion for directed verdict was not erroneous. See Williams v. State , 331 Ark. 263, 268, 962 S.W.2d 329, 331 (1998) (holding that an information or other charging instrument is not defective if it sufficiently apprises the defendant of the specific crime with which he is charged to the extent necessary to enable him to prepare a defense). A variance between the wording of an indictment or information and the proof at trial does not warrant reversal unless the variance prejudices the substantial rights of the defendant. Johnson v. State , 55 Ark. App. 117, 932 S.W.2d 347 (1996). The record before us indicates that trial counsel failed to articulate how the variance between the dates alleged in the amended criminal information and the proof at trial prejudiced the ability of appellant to defend the case. Moreover, counsel concedes that this issue was not sufficiently preserved for appeal; accordingly, we affirm.

B. Refusal of Opinion Testimony Regarding Victim's Character for Untruthfulness

Appellant submits that the circuit court's misinterpretation of Arkansas Rule of Evidence 608 resulted in the erroneous decision to exclude opinion evidence regarding C.R.'s character for untruthfulness. Rule 608 provides:

(a) Opinion and Reputation Evidence of Character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

(b) Specific Instances of Conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for

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