Sharp v. State , 479 S.W.3d 568 ( 2015 )


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  •                                 Cite as 
    2015 Ark. App. 718
    ARKANSAS COURT OF APPEALS
    DIVISION I
    No. CR-15-340
    Opinion Delivered   December 16, 2015
    FREDDIE L. SHARP III
    APPELLANT         APPEAL FROM THE MISSISSIPPI
    COUNTY CIRCUIT COURT,
    CHICKASAWBA DISTRICT
    V.                                               [NO. CR-2014-46]
    HONORABLE CINDY THYER,
    JUDGE
    STATE OF ARKANSAS
    APPELLEE        AFFIRMED
    M. MICHAEL KINARD, Judge
    Freddie L. Sharp III was tried by a jury and convicted of rape, for which he was
    sentenced to twenty-five years in the Arkansas Department of Correction. On appeal, he
    contends that the trial court erred in denying his motion for a directed verdict of acquittal;
    in refusing to allow introduction of evidence that another person had made sexual advances
    on the victim; in denying him allegedly exculpatory materials held by the State; in denying
    him access to the victim’s file at the Arkansas State Crime Laboratory; in not allowing him
    to review reports of child abuse involving the victim, and investigatory records associated
    with those reports, held by the Arkansas Department of Human Services; and in denying his
    motions for a continuance. We affirm.
    In the early evening hours of August 27, 2013, it was discovered that eleven-year-old
    J.W. was missing. After an extensive search in her rural Mississippi County community,
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    2015 Ark. App. 718
    J.W.’s body was found the next morning, face-down in a ditch filled with eighteen inches
    of water. It was later determined that the victim had been strangled to the point of
    helplessness, with the ultimate cause of death being drowning. A local teenager, Chris
    Sowell, was arrested and charged in circuit court with J.W.’s murder. Investigation at the
    State Crime Lab, however, disclosed sperm and other seminal fluid on and in the victim, but
    none of it could be linked to Sowell; in fact, he was excluded as a source of the material.
    Police obtained DNA samples from several other men in the community, including
    appellant, who was a neighbor of J.W., and sent those samples to the crime lab for
    comparison. All but appellant were excluded as the source. The sperm cell found on the
    victim’s outer labia matched appellant’s personal DNA profile, and another component part
    of semen found inside the victim’s mouth and vaginal canal (a protein known as P30)
    matched the genetic markers shared by appellant and the male relatives in his paternal lineage.
    Appellant was arrested for J.W.’s rape, charged in a different division of circuit court from
    Sowell, and ultimately convicted of the crime.
    I. Sufficiency of the Evidence
    Appellant first contends that the trial court erred in denying his motion for a directed
    verdict. Specifically, he argues that the State presented insufficient evidence to establish
    either the penetration element of rape or that appellant had the opportunity to have
    committed the offense. We disagree.
    As is pertinent here, a person commits the offense of rape if he engages in sexual
    intercourse or deviate sexual activity with another person who is less than fourteen years of
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    age. Ark. Code Ann. § 5-14-103(a)(3)(A) (Repl. 2013). “Sexual intercourse” means
    penetration, however slight, of the labia majora by a penis. Ark. Code Ann. § 5-14-101(11)
    (Repl. 2013). “Deviate sexual activity” means, in part, any act of sexual gratification
    involving the penetration of the anus or mouth of a person by the penis of another person.
    Ark. Code Ann. § 5-14-101(1)(A).
    A motion for a directed verdict is a challenge to the sufficiency of the evidence.
    Fernandez v. State, 
    2010 Ark. 148
    , 
    362 S.W.3d 905
    . When sufficiency is challenged on
    appeal from a criminal conviction, we consider only that proof that tends to support the
    conviction, and we view that proof and all reasonable inferences deducible therefrom in the
    light most favorable to the State. 
    Id. We will
    affirm if the finding of guilt is supported by
    substantial evidence. 
    Id. Substantial evidence
    is that which is of sufficient force and character
    to compel a conclusion one way or the other without requiring resort to speculation or
    conjecture. 
    Id. The weight
    of the evidence and the credibility of the witnesses are matters
    for the jury, not this court. Means v. State, 
    2015 Ark. App. 643
    , ___ S.W.3d ___.
    Circumstantial evidence may constitute substantial evidence. Smith v. State, 
    2010 Ark. App. 135
    , 
    374 S.W.3d 124
    . To be substantial, circumstantial evidence must exclude every
    reasonable hypothesis other than the accused’s guilt. 
    Id. However, the
    question of whether
    the circumstantial evidence excludes every reasonable hypothesis consistent with innocence
    is for the jury to decide. 
    Id. On review,
    the appellate court determines whether the jury had
    to resort to speculation and conjecture to reach its verdict. 
    Fernandez, supra
    .
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    Appellant’s argument that insufficient evidence of penetration was presented is
    without merit. “[P]enetration can be shown by circumstantial evidence, and if that evidence
    gives rise to more than a mere suspicion, and the inference that might reasonably have been
    deduced from it would leave little room for doubt, that is sufficient.” Fernandez, 
    2010 Ark. 148
    , at 
    8, 362 S.W.3d at 909
    (citing Young v. State, 
    374 Ark. 350
    , 
    288 S.W.3d 221
    (2008)).
    In Fernandez, the supreme court held that the presence of P30 inside the anus of the victim
    constituted substantial evidence that penetration by a penis had occurred. Here, we have
    evidence of P30, a component of semen, inside the victim’s mouth and vaginal canal. As in
    Fernandez, the P30 was matched to either appellant or some male who shared appellant’s
    paternal lineage. Moreover, there is also in this case proof that a sperm cell was found on the
    victim’s outer labia, further suggesting recent sexual contact, and that sperm matched
    appellant’s personal DNA profile “within all scientific certainty.” Appellant theorized that
    the P30 may have come from his urine and traveled into the victim’s mouth and vaginal
    canal when, on the day in question, appellant urinated into the ditch where the body was
    later found. Even appellant’s own expert witness, however, opined that such would not be
    possible. We conclude that the jury’s finding of penetration is supported by substantial
    evidence.
    Appellant also argues that there is no substantial evidence that he had the opportunity
    to commit the rape. His argument is based on a time line that he insists demonstrates that
    his whereabouts were accounted for during the time that the crime could have occurred.
    However, appellant’s version of his whereabouts between 4:30 p.m. and sometime after 9:00
    4
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    2015 Ark. App. 718
    p.m. on the day in question depends on the testimony of appellant, his wife, and his nine-
    year-old daughter. Of course, the jury did not have to believe the testimony of any witness,
    much less that of appellant and his immediate family. See 
    Fernandez, supra
    . Moreover, there
    was evidence that directly contradicted certain aspects of the testimony given by appellant
    and his family members regarding appellant’s asserted time line—for example, the victim’s
    father testified that he spoke to appellant around 6:30 p.m. and that appellant was alone in
    his Jeep; appellant, on the other hand, claimed that he was with his three children at that
    time. Appellant’s assertion of his lack of opportunity to commit the crime was clearly a
    matter of credibility for the jury to determine. We find no error in the denial of the motion
    for a directed verdict.
    II. Hearsay
    Appellant next contends that the trial court erred in refusing to admit the testimony
    of a neighbor that the victim had confided to the neighbor that, a few months earlier, Chris
    Sowell had made the victim uncomfortable on the school bus by touching her in an arguably
    sexual manner. The State objected because the proffered evidence contained hearsay.
    Appellant argues that the evidence was admissible under either of two hearsay exceptions
    found in Arkansas Rule of Evidence 804:
    (b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the
    declarant is unavailable as a witness:
    ....
    (5) Other Exceptions. A statement not specifically covered by any of the foregoing
    exceptions but having equivalent circumstantial guarantees of trustworthiness, if the
    court determines that (i) the statement is offered as evidence of a material fact; (ii) the
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    statement is more probative on the point for which it is offered than any other
    evidence which the proponent can procure through reasonable efforts; and (iii) the
    general purposes of these rules and the interests of justice will best be served by
    admission of the statements into evidence. However, a statement may not be admitted
    under this exception unless the proponent of it makes known to the adverse party
    sufficiently in advance to provide the adverse party with a fair opportunity to prepare
    to meet it, his intention to offer the statement and the particulars of it, including the
    name and address of the declarant.
    ....
    (7) Child hearsay in criminal cases. A statement made by a child under the age of ten
    (10) years concerning any type of sexual offense against that child, where the
    Confrontation Clause of the Sixth Amendment of the United States is applicable,
    provided:
    (A) The trial court conducts a hearing outside the presence of the jury, and, with the
    evidentiary presumption that the statement is unreliable and inadmissible, finds that
    the statement offered possesses sufficient guarantees of trustworthiness that the
    truthfulness of the child’s statement is so clear from the surrounding circumstances
    that the test of cross-examination would be of marginal utility.
    Appellant’s argument regarding Rule 804(b)(7) is clearly unavailing. First, we cannot
    determine that appellant argued this exception to the trial court, and he cannot raise the issue
    for the first time on appeal. See Lacy v. State, 
    2010 Ark. 388
    , at 17–18, 
    377 S.W.3d 227
    , 238.
    In any event, by its own terms, that hearsay exception is limited to out-of-court statements
    made by a child under the age of ten years. Here, the victim was eleven years old at the time
    of her death, and the proffered witness testified that the victim made the statement to him
    within approximately four months of her death. She could not have been “under the age
    of ten” at the time of her alleged statement.
    Nor do we find reversible error in the trial court’s decision under Rule 804(b)(5). A
    trial court’s decision on the admission of evidence will not be reversed in the absence of an
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    abuse of discretion. Ross v. State, 
    2015 Ark. App. 613
    , ___ S.W.3d ___. Among other
    things, Rule 804(b)(5) conditions admission of hearsay on its having guarantees of
    trustworthiness equivalent to those of established exceptions and on the trial court’s
    determination that the statement is offered as evidence of a material fact. Here, according
    to the proffer, the child stated that Sowell had put his finger in a hole in her jeans on her
    upper leg and that “it creeped [her] out.” She was not upset when she made the statement
    to the witness, and she gave no further details. The witness took no action, such as
    informing the child’s parents or school or law enforcement authorities. The trial court
    thoughtfully considered the proffer and concluded that the statement did not carry substantial
    guarantees of trustworthiness. Moreover, there would appear to be little, if any, probative
    value to the evidence. The trial court could have concluded that whether Sowell may have
    made sexual advances on the child was not significantly material to the question of whether
    the child was raped on the day in question and, if so, whether it was appellant who raped
    her. This is particularly so here, where the only proof of rape consisted of seminal fluid and
    sperm found in and on the victim’s body and where, even according to appellant’s own
    expert witness, DNA testing completely excluded Sowell as the source. Finally, we note
    that, earlier in the trial, a police officer testified that the police had information that Sowell
    had made “sexual advances” on the victim on the school bus and that his behavior had made
    her uncomfortable. The proffered testimony would have added little, if anything, to the
    officer’s testimony. We cannot say that the trial court abused its considerable discretion in
    refusing to admit the neighbor’s proffered testimony or, in any event, that appellant suffered
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    any real prejudice as a result of its exclusion in light of the admission of the police officer’s
    similar testimony.
    III. Denial of Brady Materials
    Appellant next contends that he was denied discovery of exculpatory material by the
    State in violation of the due-process principle announced in Brady v. Maryland, 
    373 U.S. 83
    (1969). Specifically, appellant sought access to copies of all of the materials in the files related
    to the murder case that was pending against Sowell. As stated, the murder case against
    Sowell and the rape charge against appellant were proceeding in separate divisions of circuit
    court and were assigned to different judges. Because pretrial publicity was proving to be a
    problem, both judges entered “gag” orders prohibiting law enforcement officials, crime lab
    employees, parties, and attorneys from releasing any extra-judicial statements or interviews
    relating to the trials, parties, or issues in the trials. The judge in the Sowell case also drafted
    a protective order, referencing the gag order and allowing disclosure of the Sowell files to
    appellant Sharp and his attorney provided that they first sign the protective order, thereby
    acknowledging the terms of the protective order and the fact that violation of it could result
    in a contempt citation. The judge in appellant’s case then “adopted” the protective order
    as her own in appellant’s rape case. Appellant’s counsel refused to sign the order. On appeal,
    appellant contends that he was denied the Sowell files and, thereby, denied exculpatory
    materials.
    We do not completely understand appellant’s reasons for not signing the protective
    order. Had he done so, he would have received the files. He insists that signing the order
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    would have constituted “entering an appearance” in the murder case pending against Sowell
    and would have somehow tainted appellant by “publishing the fact that [appellant’s] case was
    related to Sowell’s case or that he was a co-defendant of Sowell or that he was implicated in
    the murder of J.W.” However, one enters an “appearance” when he comes into court as
    a party or interested person or as a lawyer for a party or interested person. Black’s Law
    Dictionary 118 (10th ed. 2014). All appellant was asked to do, on the other hand, was
    acknowledge the protective order and the potential consequences for its violation. Rule 19.4
    of the Arkansas Rules of Criminal Procedure, entitled “Protective Orders,” provides as
    follows:
    Upon a showing of cause, the court may at any time order that specified disclosures
    be restricted or deferred, or make such other order as is appropriate, provided that all
    material and information to which a party is entitled must be disclosed in time to
    permit his counsel to make beneficial use thereof.
    The court on more than one occasion even suggested that appellant’s signing of the order
    could be done under seal so that the public would not be aware that he had done so. It
    appears to us that the trial court correctly determined that appellant refused to comply with
    a simple and authorized condition and that his refusal was the only reason that he did not
    have access to the requested information. We find no reversible error.
    IV. Denial of Access to Crime Lab File on Victim
    Appellant’s argument that he was erroneously denied information from the victim’s
    file at the State Crime Lab is without merit for the same reasons discussed in Point III above.
    The only impediment to his access to the requested information was his unreasonable refusal
    to sign the protective order.
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    V. Denial of Access to Child-Abuse Reports
    Appellant also argues that the trial court erred in refusing his request to review reports
    and records held by the Arkansas Department of Human Services (DHS) regarding allegations
    that J.W.’s parents had abused her. After requiring that DHS be provided notice and an
    opportunity to be heard on whether the information should be released, the trial court then
    held a hearing. Counsel for DHS stated that it had received reports accusing J.W.’s father
    of educational and medical neglect and accusing the child’s mother of inflicting cuts and
    bruises. There were no reports of sexual abuse and no reports implicating either appellant
    or Chris Sowell in any abuse, and the reports against J.W.’s parents were deemed by
    investigators to be “unsubstantiated.” The trial court took the matter under advisement,
    stating that it would receive the DHS files in camera and decide whether any of the material
    was relevant and should be turned over to appellant. The court agreed to make any
    information deemed irrelevant a part of the record on appeal.
    Appellant’s argument is unavailing. First, appellant’s contention that the trial judge
    “determined the files should not be released as it was her opinion there was nothing in those
    files that were useful to [appellant]” is unsupported by the record. Appellant cites us to one
    page in the abstract and two orders in the addendum for the quoted argument. However,
    those portions of the record reflect that the trial court was going to review the reports in
    camera and decide their relevance. We have been pointed to nothing in the record showing
    that the matter was ever raised again by appellant. And, despite the trial court’s stated
    willingness to include in the record on appeal any information that might be deemed
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    irrelevant, we find no such information in this record and no objection below to its absence.
    Therefore, we have before us no final ruling on appellant’s motion and no proffer of the
    reports in question for this court to review. One must obtain a ruling to preserve an issue
    for appeal, Richards v. State, 
    2009 Ark. App. 721
    , and must also proffer evidence for review
    before we can determine whether one has suffered any prejudice. Brown v. State, 
    368 Ark. 344
    , 
    246 S.W.3d 414
    (2007). In any event, appellant’s argument in the trial court was that
    “educational” and “medical” neglect might somehow be probative of who raped the victim.
    No effort is made by appellant on appeal to connect those dots or to otherwise demonstrate
    how such information would fall into any of the categories of discoverable material under
    Ark. R. Crim. P. 17.1.
    VI. Denial of Motions for Continuance
    Appellant’s final contention is that the trial court erred in denying his motions for
    continuance. Specifically, he argues that his trial should have been continued until after
    disposition of the murder case against Sowell and disposition of the contempt charge against
    appellant’s attorney for allegedly violating the protective order.1 Again, we see no reversible
    error.
    A continuance should be granted only upon a showing of good cause and only for so
    long as is necessary. Ark. R. Crim. P. 27.3. A motion for continuance is addressed to the
    sound discretion of the trial court, whose decision will not be reversed on appeal absent a
    1
    The motion seeking to have counsel held in contempt accused him of going to the
    crime lab and knowingly seeking from lab employees information covered by the protective
    order without having first signed the order.
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    clear abuse of that discretion. Elliott v. State, 
    2012 Ark. App. 126
    , 
    389 S.W.3d 100
    . The
    appellant bears the burden of establishing not only that the trial court abused its discretion
    in denying the motion for continuance, but he must also show prejudice that amounts to a
    denial of justice. 
    Id. Appellant’s argument
    that his trial should have been continued until after disposition
    of the Sowell murder charge was based on appellant’s insistence that such was the only way
    for him to have access to the Sowell file. He argues that, had his case been continued, he
    could have had access to the Sowell file because, upon disposition of the murder case, it
    would have ceased to be “investigatory.” However, the State made it clear that it planned
    to try appellant before Sowell regardless of whether appellant was granted a continuance, and
    appellant cites nothing to support the proposition that the trial court could force the State
    to alter those plans. Moreover, as discussed in Points III and IV above, the Sowell file was
    already available to appellant many months before his trial. All he had to do to secure the
    file was sign the protective order, which requirement sought nothing more than
    acknowledgment by appellant and his attorney of the gag order and the possible
    consequences for violating it. We find no abuse of discretion in the court’s denial of a
    continuance on this basis.
    Nor can we conclude that the trial court abused its discretion in denying appellant’s
    motion to continue the trial until after his attorney’s contempt hearing. The motion was
    based on appellant’s insistence that having the contempt matter “hanging over the head of
    [his] counsel as he questioned witnesses and put on evidence,” and worrying whether “those
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    questions or that evidence would subject him to further contempt charges,” constituted good
    cause for a continuance. However, appellant did not make any proffer to the trial court,
    either when the continuance motion was made or in his motion for a new trial based on this
    argument, regarding what he would have done differently at the trial but for the contempt
    charge. Nor has he provided any specific argument in this regard on appeal. Without such
    information, we cannot determine that appellant suffered any prejudice. See Ferrell v. State,
    
    325 Ark. 455
    , 462, 
    929 S.W.2d 697
    , 702–03 (1996). Moreover, it appears that the protective
    order dealt with statements to, or interviews with, media outlets and dissemination of
    materials through public communication or social media. It does not seem particularly
    reasonable to us that the order could be read to prohibit appellant from presenting relevant
    evidence in a court of law. In any event, counsel surely could have sought a ruling from the
    court, without reasonable worry about being held in contempt, before asking any questions
    or introducing any evidence that he deemed potentially troublesome.
    Affirmed.
    GLADWIN , C.J., and ABRAMSON , J., agree.
    Chet Dunlap, for appellant.
    Leslie Rutledge, Att’y Gen., by: Kristen C. Green, Ass’t Att’y Gen., for appellee.
    13
    

Document Info

Docket Number: CR-15-340

Citation Numbers: 2015 Ark. App. 718, 479 S.W.3d 568

Judges: M. Michael Kinard

Filed Date: 12/16/2015

Precedential Status: Precedential

Modified Date: 1/12/2023