Bruce Wayne Devries v. State of Arkansas

2019 Ark. App. 478

• Court: Court of Appeals of Arkansas
• Decided: October 23, 2019
• Status: Published

Opinion

Cite as 2019 Ark. App. 478 Digitally signed by Elizabeth ARKANSAS COURT OF APPEALS Perry DIVISION II Date: 2022.08.04 11:26:23 No. CR-18-971 -05'00' Adobe Acrobat version: Opinion Delivered: October 23, 2019 2022.001.20169

BRUCE WAYNE DEVRIES APPEAL FROM THE SALINE APPELLANT COUNTY CIRCUIT COURT [NO. 63CR-17-335] V.

STATE OF ARKANSAS HONORABLE GRISHAM PHILLIPS, APPELLEE JUDGE AFFIRMED

PHILLIP T. WHITEAKER, Judge

Bruce Wayne Devries was convicted by a Saline County jury of one count of rape;

one count of sexual assault; three counts of video voyeurism; and thirty-two counts of

distributing, possessing, or viewing matter depicting sexually explicit conduct involving a

child. He was sentenced to forty years’ imprisonment for rape, twenty years’ imprisonment

for sexual assault, six years’ imprisonment on each count of video voyeurism, and ten years’

imprisonment and a $10,000 fine on each of the thirty-two counts of distributing,

possessing, or viewing matter depicting sexually explicit conduct involving a child. He

appeals his convictions, challenging the sufficiency of the evidence to support his

convictions and arguing that the trial court erred in allowing one of the victims to testify.

We affirm. I. Sufficiency of the Evidence

Devries’s first argument is a challenge to the sufficiency of the evidence of each of

his convictions. 1 When reviewing a challenge to the sufficiency of the evidence, this court

assesses the evidence in the light most favorable to the State and considers only the evidence

that supports the verdict. Id. We test the sufficiency of the evidence to determine whether

the verdict is supported by substantial evidence, direct or circumstantial. Wyles v. State, 368

Ark. 646, 249 S.W.3d 782 (2007); Boyd v. State, 2016 Ark. App. 407, 500 S.W.3d 772.

Substantial evidence is evidence that is of sufficient force and character that will, with

reasonable certainty, compel a conclusion one way or the other, without resorting to

speculation or conjecture. Hinton v. State, 2015 Ark. 479, 477 S.W.3d 517. With these

standards in mind, we consider the evidence presented to the jury relating to each

conviction.

A. Rape and Sexual Assault

Devries’s first challenge is to the sufficiency of the evidence to support his rape and

sexual-assault convictions. 2 He asserts that these crimes involved the same victim, CC, 3 his

now nineteen-year-old stepdaughter. At trial, CC testified that Devries began sexually

abusing her when she was in fifth grade while they lived in Kansas, it lasted through several

1 At the close of the State’s case and at the close of all the evidence, Devries moved for a directed verdict on all charges. 2 As to the rape and sexual-assault allegations, Devries moved for a directed verdict claiming that the victim’s testimony was not sufficient to support the charges since she had admitted making the same allegations falsely against her father in the past. 3 While CC was an adult when she testified at trial, she was a minor when the alleged abuse occurred.

2 interstate moves, and it continued while they were living in Arkansas. CC testified that the

abuse included inappropriate touching and digital penetration. CC admitted that she had

originally accused her biological father of being her abuser instead of Devries, but she did

so only because she was afraid of Devries. She reported that Devries had threatened that she

would be sent to foster care away from her family and that he would hurt her mother if she

told what had happened between them.

Devries argues that this evidence was insufficient to convict him of either rape or

sexual assault. He claims that because CC had previously accused her biological father of

abusing her and then subsequently changed her story to identify him as the abuser, she

cannot be believed. While he admits that a rape victim’s testimony alone is sufficient to

support a rape conviction, he claims CC’s credibility was “nonexistent” and therefore

cannot support a conviction. We disagree.

Our supreme court has held that the uncorroborated testimony of the victim alone

is sufficient to support a rape or sexual-assault conviction. Vance v. State, 2011 Ark. App.

413. Devries essentially requests that we assess CC’s credibility. In a sufficiency analysis, we

do not assess the credibility of witnesses, as this is an issue for the jury and not the court. Id.

The trier of fact is free to believe all or part of any witness’s testimony and may resolve

questions of conflicting testimony and inconsistent evidence. Id. Moreover, we have clearly

stated that inconsistencies in the testimony of a rape victim are matters of credibility for the

jury to resolve, and it is within the province of the jury to accept or reject testimony as it

sees fit. Perez v. State, 2016 Ark. App. 291, 494 S.W.3d 431. Here, the jury heard CC’s

testimony regarding her claims against Devries as well as her explanation as to why she had

3 initially accused her biological father. This inconsistency in her testimony was a credibility

determination best left for the jury to decide.

B. Video Voyeurism

Devries next challenges the sufficiency of the evidence to support his conviction of

video voyeurism. 4 The victims of these crimes are his adopted teenage daughters, AD and

PD. AD was thirteen and PD was twelve when they were adopted by Devries and CC’s

mother.

At trial, AD, who was sixteen at the time, testified generally that Devries made her

uncomfortable and made sexual remarks all the time. Specifically, she observed him

watching her through the bathroom window when she was taking a shower, she found a

baby monitor in the corner of the bathroom and in her bedroom, and she found holes in

the walls between her room and his. She stated that he repeatedly texted her and asked for

nude photographs.

Fifteen-year-old PD also testified generally about her relationship with Devries. She

testified that he made numerous inappropriate sexual comments to her and engaged in

inappropriate touching. As to the video-voyeurism charges, PD specifically testified that she

once caught Devries using his phone to video her from underneath her bedroom door.

Detective Dustin Hamm of the Benton Police Department investigated several

electronic devices owned by Devries. From Devries’s cell phone, Hamm was able to recover

several videos. One of the videos was clearly a video taken from underneath PD’s closed

4 As to the video-voyeurism charges, Devries moved for a directed verdict claiming that the victims—his children—did not have an expectation of privacy from their parents.

4 bedroom door. In that video, PD is seen walking back and forth wearing only her bra and

panties. At one point, Devries panicked and turned the phone around and showed his face

on the video. He then turned the camera back around and started filming her again.

A person commits the crime of video voyeurism if he uses “any camera, videotape,

photo-optical, photoelectric, or any other image recording device for the purpose of secretly

observing, viewing, photographing, filming, or videotaping a person present in a residence,

place of business, school, or other structure, or any room or particular location within that

structure, if that person (1) [i]s in a private area out of public view; (2) [h]as a reasonable

expectation of privacy; and (3) [h]as not consented to the observation.” Ark. Code Ann. §

5-16-101(a) (Supp. 2017).

Devries does not challenge the inappropriateness of the videos; instead, he argues

that the children had no expectation of privacy in their parents’ home. In support of his

claim, he cites Grant v. State, 267 Ark. 50, 589 S.W.2d 11 (1979), in which our supreme

court held that a foster parent could consent to the search of the defendant child’s bedroom.

He points to language in that opinion in which our supreme court stated, “A child, either

dependent or emancipated (having reached his majority) does not have the same

constitutional right or expectation of privacy in the family home that he might have in a

rented hotel room. . . .” Id. at 55–56, 589 S.W.2d at 14.

We find his argument unpersuasive. Grant was a Fourth Amendment search-and-

seizure case. This case, on the other hand, involves multiple sexual offenses involving a

child and child pornography. The victims in this case were in private areas of their home,

and the jury was presented with evidence that they had not consented to Devries’s actions.

5 His sole argument for reversal is that under Grant, his children did not have a reasonable

expectation of privacy in his home. We disagree. Even if these children do not have a

reasonable expectation of privacy in their family home for purposes of the Fourth

Amendment, under the facts of this case, they clearly had a reasonable expectation that

Devries would not view, film, or photograph them behind their closed bedroom and

bathroom doors in the manner and for the purpose in which did. Devries has cited no

convincing authority to compel us to hold otherwise. We will not reverse when a point on

appeal is unsupported by convincing arguments or sufficient citation to legal authority. Coger

v. State, 2017 Ark. App. 466, 529 S.W.3d 640; Ressler v. State, 2017 Ark. App. 208, 518

S.W.3d 690; Watson v. State, 2015 Ark. App. 721, 478 S.W.3d 286.

C. Distributing, Possessing, or Viewing Sexually Explicit Conduct Involving a Child

Devries also challenges the sufficiency of the evidence supporting his conviction for

possession of child pornography. Consistent with his motion for directed verdict, Devries

claims that the State failed to prove he was responsible for downloading or requesting the

sexually explicit images of the children found on his cell phone. He does not challenge the

conclusion that the images on his phone constituted sexually explicit conduct involving

children.

We conclude that the evidence presented here was sufficient to convict Devries. AD

testified that Devries asked her to send nude photos to him. PD testified that Devries would

buy things for her friends in exchange for photos and that he had once bet her that he could

get her friend to send him nude photos, which he later showed her. Detective Hamm

testified that he found at least thirty-two images that undeniably depicted children and that

6 the timestamps on the photos, when compared with Devries’s cell-phone-usage history,

indicated that it was unlikely anyone other than Devries had downloaded them. Based on

this evidence, the jury had sufficient evidence to find that Devries had downloaded the

images.

II. Admissibility of Evidence

Lastly, Devries argues that the trial court erred in allowing CC to testify because her

testimony was so conflicting that there was no probative value to it. Devries, however, did

not make this objection at trial. In fact, he requested and was allowed to introduce CC’s

inconsistent testimony at trial in order to impeach her. We will not consider arguments

that are raised for the first time on appeal, and a party is bound on appeal by the nature and

scope of the objections and arguments presented at trial. Lopez-Deleon v. State, 2014 Ark.

App. 274, at 6–7, 434 S.W.3d 914, 918.

Affirmed.

ABRAMSON and GLADWIN, JJ., agree.

Terry Goodwin Jones, for appellant.

Leslie Rutledge, Att’y Gen., by: Rachel Kemp, Senior Ass’t Att’y Gen., for appellee.