Cite as 2021 Ark. App. 58 Elizabeth Perry ARKANSAS COURT OF APPEALS I attest to the accuracy and DIVISION II integrity of this document No. CR-20-415 2023.06.22 12:47:48 -05'00' 2023.001.20174 OPINION DELIVERED: FEBRUARY 10, 2021
ANTHONY BAUMANN APPELLANT APPEAL FROM THE BENTON COUNTY CIRCUIT COURT [NO. 04CR-15-154] V. HONORABLE ROBIN F. GREEN, JUDGE STATE OF ARKANSAS APPELLEE AFFIRMED
ROBERT J. GLADWIN, Judge
Appellant Anthony Baumann appeals the Benton County Circuit Court’s order
denying his petition for postconviction relief pursuant to Rule 37.1 of the Arkansas Rules
of Criminal Procedure (2020). Baumann argues in two points on appeal that his trial counsel
was ineffective and that the circuit court erred in its rulings. We affirm the circuit court’s
denial of Baumann’s petition for postconviction relief.
I. Procedural History
On May 21, 2015 a felony information was filed charging Baumann with one count
of sexual assault in the second degree in Benton County Circuit Court based on an allegation
that he assaulted his granddaughter’s half sister, E.S. An amended felony information was
filed on September 21, 2016, charging him with one count of sexual assault in the second
degree and one count of rape. At a hearing held on November 2, 2016, regarding the testimony of Baumann’s
daughter, Tanya Bridges (Tanya), the circuit court denied Baumann’s motion to exclude
the testimony pursuant to Arkansas Rule of Evidence 404(b). On June 6, 2017, Baumann
moved to suppress certain testimony after the State sought to admit additional Rule 404(b)
witnesses, and the circuit court determined that the additional Rule 404(b) evidence was
inadmissible.
Baumann’s jury trial was held on September 26–29, 2017, during which he
successfully moved for a partial directed verdict and was acquitted on the rape charge.
However, the jury found Baumann guilty of sexual assault in the second degree and
sentenced him to twenty years in the Arkansas Department of Correction pursuant to a
sentencing order entered on October 17. A notice of appeal was timely filed on October
12.
Baumann argued that (1) the circuit court erred by permitting Tanya to testify about
similar acts of sexual assault pursuant to Rule 404(b); (2) the circuit court erred by refusing
to exclude Tanya’s testimony pursuant to Ark. R. Evid. 403; and (3) the State’s questioning
of detective Brian Hanna regarding other sexual-assault accusations against Baumann
warranted a mistrial. This court affirmed on November 28, 2018, holding that the circuit
court did not abuse its discretion by admitting Tanya’s testimony pursuant to the “pedophile
exception” to Rule 404(b). Baumann v. State, 2018 Ark. App. 564, at 13, 566 S.W.3d 494,
502. This court declined to consider Baumann’s remaining arguments, holding that he did
not obtain a clear ruling on his Rule 403 argument and did not move for a mistrial after
2 objecting to Detective Hanna’s testimony. Id. at 14–18, 566 S.W.3d at 503–05. Our
supreme court denied his petition for review, and the mandate issued on January 17, 2019.
Baumann filed a timely petition for relief under Rule 37 on March 13, 2019, with
the Benton County Circuit Court, with assistance of counsel, which alleged errors by trial
counsel and contained a proper verification. In his petition, he alleged the following:
1. Trial counsel was ineffective in failing to request a mistrial after the State asked a detective to read a portion of the alleged victim’s Children’s Safety Center (CSC) interview, which had been excluded as Rule 404(b) evidence in the form of hearsay.
2. Trial counsel was ineffective in failing to establish for the jury a theory of the case for why the alleged victim, who was a minor, and other State’s witnesses would have a motive to make false accusations that Baumann committed sexual assault and rape.
After two extensions, the State filed a response and brief in support on June 13, 2019.
The circuit court did not hold a hearing on the matter but instead, following the parties’
submissions, entered a five-page written order that denied relief on March 4, 2020.
In its order, the circuit court denied relief on Baumann’s first claim, that trial counsel
was ineffective for failing to request a mistrial, finding that trial counsel was not ineffective in
choosing not to move for a mistrial, because Baumann had not demonstrated that this
decision fell below an objective standard of reasonableness. The circuit court, citing
McClinton v. State, 2015 Ark. 245, 464 S.W.3d 913, noted that a mistrial is a drastic remedy
available only when an error has occurred that is so prejudicial as to be beyond repair and
to affect the fundamental fairness of a trial. The circuit court acknowledged Baumann’s
taking issue with certain testimony elicited by the State during a direct examination of
Detective Hanna when he was asked to quote from a transcript of a CSC interview of the
alleged victim, E.S. The quote was truncated by an objection from trial counsel, and the
3 proceedings moved on. The circuit court determined that this testimony, similar to the cases
of Brown v. State, 2019 Ark. App. 36, 568 S.W.3d 312; and Marbley v. State, CR 07-06,
2007 WL 2660224, at *2–3 (Ark. App. Sept. 12, 2007) (unpublished), cited by the State,
lacked any sort of context that would have made it so prejudicial to a jury as to merit a
mistrial. To the extent the quote contained prejudicial information in referencing other
alleged victims, the circuit court pointed out that the quote itself named “Tanya,” another
witness in the case, and not Baumann.
Further, the circuit court noted that other alleged victims referenced in the quote
were made known to the jury at a later point in the trial and that trial counsel had referred
to their allegations as false. The circuit court also stated that Baumann himself advocated for
this trial strategy on Issue 2 of his Rule 37 petition. The circuit court found that, had it been
made, a motion for mistrial would not have been granted, and absent a demonstration that
such a motion would have been granted, there is no showing of prejudice. See England v.
State, 2018 Ark. App. 137, at 4, 543 S.W.3d 553, 559. The circuit court further indicated
that Baumann was acquitted of the rape charge on trial counsel’s directed-verdict motion
subsequent to the decision not to request a mistrial. The circuit court found, accordingly,
that it was apparent that the decision not to request a mistrial was a fruitful trial strategy.
The decision to not request a mistrial falls within trial strategy if supported by reasonable
professional judgment. Sims v. State, 2015 Ark. 363, 472 S.W.3d 107; Camargo v. State, 346
Ark. 118, 55 S.W.3d 255 (2001).
Next, the circuit court rejected Baumann’s second claim, that his trial counsel was
ineffective for failing to establish for the jury a theory of the case for why the alleged victim, who was a
4 minor, and other State’s witnesses would have a motive to make false accusations that Baumann
committed sexual assault and rape. The circuit court found that trial counsel was not ineffective
when it did not specifically adopt the alternate theories proposed by Baumann, noting that
the decision of which theory to pursue as a defense falls within the protections of trial
strategy. Flowers v. State, 2010 Ark. 364, 370 S.W.3d 228; Howard v. State, 367 Ark. 18, 238
S.W.3d 24 (2006). The circuit court stated that trial counsel need not advance every
argument or theory urged by the client, see Flowers, supra, nor specifically adopt every detail
of every alternate theory that the Rule 37 petition proposes.
The circuit court found that, contrary to the Rule 37 petition allegation, the trial
record denotes many occasions in which trial counsel did attack the credibility of E.S.: (1)
Trial counsel called into question her credibility and motivations during voir dire, opening
statements, and closing arguments; (2) During the cross-examination of E.S., counsel
highlighted a number of inconsistencies in her allegations, including whether or not
Baumann had performed oral sex, where Baumann was sitting or lying at the time, and
other things; (3) During the direct examination of Baumann’s wife, trial counsel elicited
testimony about the times E.S. had lied during her time in Baumann’s home; (4) Trial
counsel pointed out personal vendettas that several witnesses and adult influences of E.S.
had against the Baumanns, and their motivations to lie, including custody battles and past
false allegations; (5) On multiple occasions, trial counsel linked the credibility of E.S. to
other witnesses who lacked credibility. Specifically, trial counsel referred on multiple
occasions to a missing recording of an initial disclosure between E.S. and her mother as a
“rehearsal.”
5 The circuit court found that it did not need to hold an evidentiary hearing to surmise
whether this was an intentional strategy of trial counsel. During a bench conference
regarding the relevancy of certain testimony, trial counsel explicitly stated that E.S.’s mother
influenced the content of E.S.’s initial disclosure, that her mother did not like her children
being at Baumann’s home, and that the adults involved make up allegations during custody
battles. The circuit court stated that Baumann’s allegation that trial counsel did not establish
a theory about why E.S. and other witnesses would lie is not supported by a review of the
record. Finally, the circuit court found that Baumann had not demonstrated prejudice as
trial counsel did, in fact, attack the credibility and motives of E.S. and certain other
witnesses.
A timely notice of appeal was filed on March 27, 2020, and Baumann now appeals
from the circuit court’s denial of his Rule 37 petition.
II. Standard of Review and Applicable Law
Our supreme court reiterated the standard of review in postconviction-relief cases in
Johnson v. State, 2020 Ark. 168, at 4–6, 598 S.W.3d 515, 519–20:
When reviewing a circuit court’s ruling on a petitioner’s request for Rule 37.5 relief, this court will not reverse the circuit court’s decision granting or denying postconviction relief unless it is clearly erroneous. Kemp v. State, 347 Ark. 52, 55, 60 S.W.3d 404, 406 (2001). A finding is clearly erroneous when, although there is evidence to support it, the appellate court after reviewing the entire evidence is left with the definite and firm conviction that a mistake has been made. Id., 60 S.W.3d at 406.
When considering an appeal from a circuit court’s denial of postconviction relief on a claim of ineffective assistance of counsel, the sole question presented is whether, based on a totality of the evidence under the standard set forth by the Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668 (1984), the circuit court clearly erred in holding that counsel’s performance was not ineffective. Sparkman v. State, 373 Ark. 45, 281 S.W.3d 277 (2008). In making this
6 determination, we must consider the totality of the evidence. Howard v. State, 367 Ark. 18, 238 S.W.3d 24 (2006).
The benchmark for judging a claim of ineffective assistance of counsel must be “whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686. Pursuant to Strickland, we assess the effectiveness of counsel under a two-pronged standard. First, a petitioner raising a claim of ineffective assistance must show that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment to the United States Constitution. Williams v. State, 369 Ark. 104, 251 S.W.3d 290 (2007). A petitioner making an ineffective-assistance-of-counsel claim must show that his counsel’s performance fell below an objective standard of reasonableness. Springs [v. State], 2012 Ark. 87, 387 S.W.3d 143. A court must indulge in a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. Id., 387 S.W.3d 143.
Second, the petitioner must show that counsel’s deficient performance so prejudiced petitioner’s defense that he was deprived of a fair trial. Id., 387 S.W.3d 143. The petitioner must show there is a reasonable probability that, but for counsel’s errors, the fact-finder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. Howard, 367 Ark. at 18, 238 S.W.3d at 24. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id., 238 S.W.3d 24. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id., 238 S.W.3d 24. “[T]here is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one.” Strickland, 466 U.S. at 697.
Arkansas Rule of Criminal Procedure 37.3(c) provides that an evidentiary hearing
should be held in a postconviction proceeding unless the files and record of the case
conclusively show that the prisoner is entitled to no relief. Mancia v. State, 2015 Ark. 115,
at 3, 459 S.W.3d 259, 263. The circuit court, in its discretion, can deny postconviction
relief without a hearing if it concludes that the petitioner is entitled to no relief. See id. Rule
37.3(a) (2020), states that
[i]f the petition and the files and records of the case conclusively show that the petitioner is entitled to no relief, the [circuit] court shall make written findings to
7 that effect, specifying any parts of the files, or records that are relied upon to sustain the court’s findings.
Without the specific findings, there can be no meaningful review in this court
because this court determines whether the findings are supported by a preponderance of the
evidence. Rackley v. State, 2010 Ark. 469, at 3. We are not required to scour the record in
a Rule 37.1 appeal to determine if the petition is wholly without merit when there are no
written findings. Id. When a hearing is not held, it is the function of the circuit court to
make written findings. Id.
The petitioner has the burden of pleading “in concise, nonrepetitive, factually
specific language” at least one cause of action that is cognizable under the rule, and the
petitioner must plead facts that support his or her claim. Ark. R. Crim. P. 37.1. It is in an
evidentiary hearing that the petitioner has the burden of producing evidence to support his
or her claims. Id.
III. Discussion
A. Failure to Request a Mistrial
Baumann first argues that the circuit court erred when it found without a hearing
that trial counsel was not ineffective for failing to request a mistrial after the State asked
Detective Hanna to read a portion of E.S.’s CSC interview, which was previously excluded
Rule 404(b) evidence in the form of hearsay. He submits that the State should not have
made the request and that he was greatly prejudiced in a way that “exceeded the bounds of
fairness.” Because he claims that he was denied a fair trial, Baumann argues that the Rule
37 petition should have been granted.
8 We hold that the circuit court did not clearly err by concluding that trial counsel’s
decision not to make a meritless motion for a mistrial was not ineffective assistance. Despite
Baumann’s allegation that trial counsel should have sought a mistrial after the State attempted
to introduce allegedly previously excluded evidence of other sexual misconduct involving
him, his daughter, and his granddaughters, the circuit court rejected his claim, finding that
“a motion for mistrial would not have been granted”; thus, he fails to make the requisite
showing of prejudice.
As acknowledged by Baumann, a petitioner for postconviction relief who alleges that
trial counsel was ineffective for failing to move for a mistrial must show that the motion
would have been meritorious because failing to make a meritless motion is not ineffective
assistance. E.g., Blackwell v. State, 2017 Ark. App. 248, at 8, 10, 520 S.W.3d 294, 301–02.
See also Hogan v. State, 2013 Ark. 223, at 5–6; Thompson v. State, 2013 Ark. 179, at 5; Walton
v. State, 2012 Ark. 269, at 5. A mistrial is a drastic remedy that should be employed only
when the error complained of cannot be cured by an instruction to the jury and only when
justice cannot be served by continuing the trial. E.g., Cunningham v. State, 2013 Ark. 304,
at 6, 429 S.W.3d 201, 207.
There is no precise rule that dictates when a circuit court is justified in granting a
motion for a mistrial. Of course, “[a] mistrial is a drastic remedy that should be granted only
when justice cannot be served by continuing the trial” and “should be employed only when
the error cannot be cured by an instruction to the jury.” Cunningham, 2013 Ark. 304, at 6,
429 S.W.3d at 207. An admonition or instruction is inadequate when the “prejudicial
9 statement” “is so patently inflammatory that justice could not be served by continuing the
trial.” Hamilton v. State, 348 Ark. 532, 542, 74 S.W.3d 615, 621 (2002).
Baumann has not demonstrated that the challenged testimony warranted a mistrial.
The circuit court was in the best position to assess the impact of the challenged testimony
on the proceedings, and as the circuit court correctly found, Detective Hanna’s testimony
was not sufficiently prejudicial to merit a mistrial. The challenged testimony referenced
“Tanya,” not Baumann, and evidence of sexual acts between Baumann and his daughter,
Tanya, had already been ruled admissible. Further, the jury had already heard about E.S.’s
CSC interview. Baumann makes no showing that, in light of these facts, an admonition to
the jury could not have cured the admission of Detective Hanna’s testimony and obviated
the need for a mistrial.
The State urges that Baumann cannot show, as he must under Strickland, that trial
counsel’s decision not to make a meritless motion prejudiced him. He has made no showing
that there is a reasonable probability that the outcome of his trial would have been different
absent the challenged testimony. The jury learned about Baumann’s proclivity for sexual
acts with ten-year-old girls from the testimony of both E.S. and his own daughter, Tanya,
during the guilt phase as well as from the testimony of his niece in the sentencing phase.
Additionally, as the circuit court correctly found in its order denying relief, trial
counsel’s decision not to move for a mistrial inured to Baumann’s benefit when he was
acquitted of the more serious charge of rape. Baumann has failed to show either that trial
counsel’s performance was deficient or that he was prejudiced by trial counsel’s decision not
to seek a mistrial; accordingly, the circuit court properly rejected his claim, and we affirm.
10 B. Failure to Establish a Theory for Witness Motive to Make False Allegations
Baumann next argues that the circuit court erred when it found without a hearing
that trial counsel was not ineffective for failing to establish a theory of the case for why the
alleged minor victim, E.S., and other State witnesses would have motive to make false
allegations that Baumann committed sexual assault and rape.
“Trial counsel’s decision regarding what theory of the case to pursue represents the
epitome of trial strategy.” Flowers, 2010 Ark 364, at 4, 370 S.W.3d at 232; see also Lee v.
State, 2017 Ark. 337, at 16, 532 S.W.3d 43, 56. “This is true even where the chosen strategy
was improvident in retrospect[,]” and trial counsel “need not advance every argument urged
by his client.” Flowers, 2010 Ark. 364, at 5, 370 S.W.3d at 232. However, “strategic
decisions must still be supported by reasonable professional judgment, pursuant to the
standards set forth in Strickland.” State v. Barrett, 371 Ark. 91, 96, 263 S.W.3d 542, 546
(2007).
In evaluating the reasonableness of counsel’s trial strategy, courts look at whether trial
counsel’s decisions were consistent with the evidence, including information provided by
the client. See Vickers v. State, 320 Ark. 437, 898 S.W.2d 3026 (1995). It is the petitioner’s
burden to “sufficiently identif[y]” “a different sequence of events that counsel might have
successfully adopted as an alternative theory of the case.” Bowerman v. State, 2015 Ark. 350,
at 5, 470 S.W.3d 267, 270. In addition, a petitioner must show that if counsel had adopted
his proposed theory of the case, there is a reasonable probability that the jury’s decision
would have been different. Id. at 6, 470 S.W.3d at 271.
11 Baumann argues that trial counsel never developed a theory that E.S. had motive to
lie about the sexual-assault allegations but rather merely pointed out inconsistencies in her
testimony. He maintains that there is a significant difference between pointing out
inconsistencies, which could merely suggest that E.S. could not remember details, and
developing a theory that she was motivated to lie about the sexual-assault allegation. Because
there was neither physical evidence that established that a sexual assault or rape had occurred
nor any other evidence besides E.S.’s testimony, the trial essentially turned on credibility.
Baumann submits that well before trial, he and his wife provided trial counsel with
information regarding motivation as to why E.S. and other witnesses would lie about the
sexual assault. Regarding E.S.’s motive to lie, Baumann asserts that the entire story was
designed so that she would be able to continue to live with her father, Joe, instead of her
mother, Erika Shirley. Erika stated in her May 5, 2015 interview that E.S. did not want to
leave, was “adamant” about living with her father, had “always been a daddy’s girl,” and
according to a DHS report dated August 24, 2014, did not like her mother. And E.S. knew
about the allegations made against Baumann before almost anyone else because her
grandmother admittedly told her about the allegations.
Baumann argues that trial counsel was ineffective by failing to develop a theory that
E.S. had motivation to lie because it would have elicited information that cast doubt on her
credibility in a trial that trial counsel knew would end up being a “swearing match” between
E.S. and Baumann. He maintains that this case was entirely dependent on the jury’s believing
his testimony over that of E.S., and trial counsel cannot be said to have used reasonable
professional judgment in failing to elicit evidence and develop a theory of the case that
12 reflected poorly on E.S.’s credibility. He urges that if this relevant, admissible evidence and
theory had been developed for the jury, the jury could have believed him and acquitted
him on all charges.
We disagree and hold that the circuit court did not clearly err in finding that, contrary
to Baumann’s claim, trial counsel’s theory of the case did attack E.S.’s credibility and motives
as well as those of other witnesses. Baumann’s Rule 37 petition specifically alleged that trial
counsel should have challenged E.S.’s credibility by presenting evidence that she accused
Baumann of sexual assault only after learning about other allegations against him from her
grandmother. The Rule 37 petition also alleged that trial counsel should have argued that
E.S.’s mother; E.S.’s grandmother; Baumann’s daughter, Tanya; and his ex-wife had all
made false claims of sexual abuse. As the circuit court correctly found, however, trial counsel
not only attacked E.S.’s credibility but also “pointed out [the] personal vendettas that several
witnesses and adult influencers of E.S. had against” Baumann.
Even Baumann acknowledges in his brief that trial counsel’s decisions regarding
which theory of the case to pursue represents the epitome of trial strategy. E.g., Sartin v.
State, 2012 Ark. 155, at 4, 400 S.W.3d 694, 697; see also Flowers, supra. Matters of reasonable
trial strategy do not constitute deficient performance. E.g., Fukunaga v. State, 2016 Ark. 164,
at 3, 489 S.W.3d 644, 646. Even when trial counsel’s chosen strategy proves improvident
in retrospect, Rule 37 is not an avenue to postconviction relief when reasonable professional
judgment supports counsel’s choice. See Sartin, 2012 Ark. 155, at 4, 400 S.W.3d at 697.
Additionally, trial counsel need not advance every argument urged by a client in order to
render effective assistance. Id.
13 Although Baumann argues to the contrary, we hold that the circuit court correctly
found that his claim was “not supported by a review of the record,” which contains “many
occasions on which trial counsel did in fact attack the credibility of E.S.” and the veracity
of other witnesses. During cross-examination, trial counsel confronted E.S. about
discrepancies between her testimony and her disclosures of Baumann’s sexual assault. Trial
counsel also presented testimony from Erika, E.S.’s mother, showing that (1) E.S. previously
lied about threats to Erika’s life; (2) Erika talked to E.S. about the assault in order to prepare
her for the CSC interview; (3) Erika was aware of Tanya’s allegations against Baumann
before E.S.’s initial disclosure; and (4) Erika had falsely accused her own stepfather of
molesting her. Trial counsel presented this testimony expressly to demonstrate that “these
people have a family history of making up stuff when they want something,” consistent with
the very theory of the case that Baumann now advocates.
Additionally, trial counsel provided Baumann and his wife ample opportunity to offer
the testimony about E.S.’s motivation that Baumann now suggests should have been elicited
at trial. He expressly asked Baumann to explain why the jury should not believe E.S.’s
statements regarding the sexual assault. Instead of explaining E.S.’s possible motivations to
lie, however, Baumann merely said, “I’ve always been with my wife and she’s the main
caretaker.” When questioning Baumann’s wife, trial counsel specifically asked her if she had
ever known E.S. to be dishonest and why she believed E.S. had lied about the sexual assault.
In response, Baumann’s wife testified that E.S. seemed to mature very rapidly in a short
period of time, but she offered the jury no information about why E.S. and other State
witnesses would lie about the sexual assault.
14 Baumann has failed to demonstrate that trial counsel’s performance was deficient and,
moreover, makes no showing, as he must, that trial counsel’s performance prejudiced him.
To the contrary, trial counsel pursued a theory of the case indistinguishable from the one
set out in Baumann’s Rule 37 petition and did attempt to elicit the type of testimony
Baumann now argues should have been presented at trial. The record indicates that the
information about which Baumann now complains was, in fact, before the jury and was
likely considered in its determination and was considered by the circuit court in its denial
of his Rule 37 petition. This point is merely an expression of his disagreement with how
the jury weighed the evidence that was before it. Because that is not a basis for Rule 37
relief, we affirm the circuit court’s finding on this issue as well. Accordingly, we hold that
the circuit court did not clearly err by rejecting Baumann’s claim.
In sum, trial counsel’s decisions at trial were professionally reasonable and within the
permissible scope of trial strategy given the circumstances. We therefore hold that Baumann
has failed to satisfy either prong of the Strickland test and affirm the circuit court’s denial of
his Rule 37 petition.
Affirmed.
MURPHY and BROWN, JJ., agree.
John Wesley Hall and Samantha J. Carpenter, for appellant.
Leslie Rutledge, Att’y Gen., by: Jason Michael Johnson, Ass’t Att’y Gen., for appellee.