Berger v. State

36 S.W.3d 286, 343 Ark. 413, 2001 Ark. LEXIS 36
CourtSupreme Court of Arkansas
DecidedJanuary 25, 2001
DocketCR 00-210
StatusPublished
Cited by25 cases

This text of 36 S.W.3d 286 (Berger v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Berger v. State, 36 S.W.3d 286, 343 Ark. 413, 2001 Ark. LEXIS 36 (Ark. 2001).

Opinion

TOM Glaze, Justice.

Appellant Russell Berger was convicted by a jury of two counts of rape of a five-year-old boy, D.C. He received two consecutive life sentences. Although he does not question the sufficiency of the evidence which led to his convictions, Berger does urge on appeal that the trial court erred (1) in allowing State witnesses to testify concerning Berger’s proficiency in using computers; 2) in permitting the State to introduce pictures of his computer and its hardware and software; (3) in failing to grant a mistrial when the prosecutor made reference before the jury to the words “pornographic pictures”; and (4) in allowing two boys, T.G. and D.M., to testify that, prior to Berger’s sexual abuse of D.C., he had committed homosexual acts on them.

The significance of Berger’s points dealing with his computer proficiency and the pictures of his computer operation introduced at trial is grounded on the manner and means Berger used to induce D.C. to join in having sexual conduct. D.C. testified at trial that Berger “touched his privates, put his mouth on my front part ... a whole bunch, and put his front part in my back part.” D.C. added that Berger took “bad pictures of me, and he put them on his computer.” He also averred that Berger would sometimes get pictures of other people on the Internet.

While the State had D.C.’s testimony regarding how Berger utilized his computer when he sexually abused D.C., the State was unable to access Berger’s password to his computer to find any pictures that he may have entered. The State did offer testimony through four other witnesses that depicted Berger as a person who possessed a special expertise in operating a computer. Although Berger found such testimony objectionable, he waited until the State’s third witness, Conway Police Department Detective Chris Lewis, to interpose his objection. In fact, Berger’s objection came long after both D.C.’s mother, Ronna C., and Lewis had already identified pictures and offered related testimony describing Berger’s computer, its hardware, and software. The State’s first witness, Crystal Rhodes, Ronna’s friend, also had testified without objection as to Berger’s special computer knowledge and that D.C. told her Berger had taken a picture of him and put it on the computer. 1 This testimony and evidence regarding Berger’s computer acumen and the photos of his computer do not appear to contain prejudicial material, 2 but even if they did, Berger failed to preserve his objection to such evidence because he did not make an objection at the first opportunity. See Hale v. State, 343 Ark. 62, 31 S.W.3d 850 (2000).

Next, Berger asserts the trial court should have granted him a mistrial when the prosecutor inteijected a remark to which Berger objected. The prosecutor’s remark was made after State witness, Aaron Hoyt, testified that Berger was “pretty knowledgeable” with computers and that Berger had said that he had a collection of pictures on his computer. Hoyt also stated that Berger had asked him to delete certain files to which Hoyt had access. Hoyt said that he complied without looking at the contents. The following colloquy reflects the testimony Berger’s counsel elicited from Hoyt, which related to Hoyt’s having deleted Berger’s files and which prompted the prosecutor’s statement:

Q: You don’t have any idea or anything about this encryption what was on his files or anything of the sort, do you?
A: No, I don’t [know] what the contents of it were.
Q: Okay. And you don’t know whether the IRS is after him for — for his financial records could be encrypted, correct?
A: I didn’t ask. I didn’t want to know the contents but —
Q: All right. The truth of the matter is a lot [of] people encrypt their files, do they not?
A: I’m sure they do, yes.
Q: OK.
A: I — I myself don’t but I’m —•
Q: Right.
A: •— sure there are several that do.
Q: Right? Not everybody is an illegal pedophile or — or running from the IRS or anything like that, correct?
A: That’s correct.
Q: Okay. So, there is nothing abnormal about what the prosecutor is asking you, is there?
PROSECUTOR: Your honor, I would object if there’s pornographic pictures on that, you know —
Defense Counsel: Whoa, now, that’s the first time we’ve heard that term. Can we approach? (Emphasis added.)

Upon defense counsel’s request, the trial court admonished the jury that they were to “disregard the statement made by [the prosecutor] regarding pornographic pictures.”

We initially point out that, although Berger’s counsel exclaimed that the prosecutor’s mention of the term “pornographic pictutes” was new, he was in error. In fact, defense counsel, in his earlier cross-examination of D.C.’s mother, Ronna G, had asked Ronna whether D.C. had been in a pornographic situation when Berger had previously taken D.C.’s picture. Thus, it was Berger who first used such terminology. Nonetheless, after defense counsel objected, the trial judge admonished the jury to disregard the prosecutor’s remarks. We have held that such an admonition to the jury generally cures a prejudicial statement unless it is so patently inflammatory that justice could not be served by continuing the trial. Kemp v. State, 335 Ark. 139, 983 S.W.2d 383 (1998). Moreover, we have repeatedly held that the decision whether to grant a mistrial is a matter soundly within the trial court’s discretion, and this court will not reverse in the absence of an abuse of that discretion. See Davis v. State, 330 Ark. 501, 956 S.W.2d 163 (1997) (trial court’s refusal to grant a mistrial not erroneous, even when prosecutor asked defendant during cross-examination, “How long have you been a pervert?”). Considering the circumstances that occurred here, we conclude the prosecutor’s remark does not constitute reversible error.

Finally, Berger urges that error occurred at trial when the judge allowed two boys, who live in Englewood, Colorado, to testify that Berger had molested them in 1996, when he lived and worked in Englewood. Berger then lived in the basement of his employer’s house, and the sexual acts to which the boys referred occurred in the basement where Berger also kept his computer. Berger’s counsel argued below (and now on appeal) that the boys’ testimony should be excluded under Ark. R. Evid. 404(b) as being evidence of other crimes, wrongs, or acts that are inadmissible to prove his character or to show that he acted in conformity therewith. Citing the case of Mosley v. State, 325 Ark.

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Bluebook (online)
36 S.W.3d 286, 343 Ark. 413, 2001 Ark. LEXIS 36, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berger-v-state-ark-2001.