Frank Paul Campbell v. State of Arkansas

2020 Ark. App. 480, 611 S.W.3d 230

Opinion

Cite as 2020 Ark. App. 480 Reason: I attest to the accuracy and integrity of this ARKANSAS COURT OF APPEALS document Date: 2021-07-15 11:35:50 Foxit PhantomPDF Version: DIVISION I No. CR-20-185 9.7.5

Opinion Delivered October 21, 2020 FRANK PAUL CAMPBELL APPELLANT APPEAL FROM THE CARROLL COUNTY CIRCUIT COURT, V. EASTERN DISTRICT [NO. 08ECR-14-92] STATE OF ARKANSAS APPELLEE HONORABLE GARY ARNOLD, JUDGE

AFFIRMED

N. MARK KLAPPENBACH, Judge

Appellant Frank Paul Campbell appeals from the denial of his petition for

postconviction relief. After a jury trial in the Carroll County Circuit Court, appellant was

convicted of two counts of second-degree sexual assault and one count of sexual indecency

with a child. He was sentenced to thirty years’ imprisonment. The charges were based on

allegations that appellant inappropriately touched his two teenage stepdaughters and that he

sent the younger stepdaughter an explicit story he wrote about a sexual relationship between

a stepfather and stepdaughter. This court affirmed appellant’s convictions in Campbell v.

State, 2017 Ark. App. 59, 512 S.W.3d 663. Appellant subsequently filed a petition for

postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37 asserting seven

claims of ineffective assistance by his trial counsel, Chris Flanagin. The circuit court held an

evidentiary hearing and denied appellant’s petition. We reversed and remanded for the circuit court to make sufficient written findings in accordance with Rule 37.3(c). Campbell

v. State, 2019 Ark. App 409. The circuit court entered an amended order, and appellant

now appeals the court’s rulings on five of his claims. We affirm.

We do not reverse the denial of postconviction relief unless the circuit court’s

findings are clearly erroneous. Kauffeld v. State, 2019 Ark. App. 29, 569 S.W.3d 348. A

finding is clearly erroneous when the appellate court, after reviewing the entire evidence, is

left with the definite and firm conviction that the circuit court made a mistake. Id.

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 v. Washington,

466 U.S. 668 (1984). Pursuant to Strickland, we assess the effectiveness of counsel under a

two-prong standard. First, a petitioner raising a claim of ineffective assistance of counsel

must show that his counsel’s performance fell below an objective standard of reasonableness.

Kauffeld, supra. A court must indulge in a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance. Id. Second, the petitioner must

show that counsel’s deficient performance so prejudiced petitioner’s defense that he was

deprived of a fair trial. Id. 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. Id. A reasonable

probability is a probability sufficient to undermine confidence in the outcome of the trial.

Id. 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.

2 Additionally, conclusory statements that counsel was ineffective cannot be the basis for

postconviction relief. Id.

I. Representation of Appellant’s Wife

Appellant first argues that counsel was ineffective because counsel had conflicts of

interest involving appellant’s wife, Amy Campbell. Amy’s daughters are the victims in this

case, and she testified for both the State and the defense. Amy was present at meetings

between appellant and counsel, and during the pendency of appellant’s case, counsel

represented Amy in a case brought by the children’s father. After appellant’s trial, counsel

sought a waiver from appellant so that he could represent Amy in a divorce action against

appellant. Appellant argues that counsel’s representation of Amy violated his duty to

appellant and that counsel placed his attorney-client relationship with a State witness above

his relationship with his client. Appellant contends that due to counsel’s representation of

Amy, counsel failed to cross-examine her on the potential liability of having filed a false

police report after she informed him of inconsistencies in a detective’s report. He also claims

that counsel failed to attempt to point out any inconsistencies in the victims’ testimony.

To prevail on a claim of ineffectiveness based on counsel’s conflict of interest,

appellant must demonstrate the existence of an actual conflict of interest that affected

counsel’s performance as opposed to a mere theoretical division of loyalties. Rackley v. State,

2014 Ark. 39. Appellant has the burden of proving a conflict of interest and showing its

adverse effects. Id. However, a defendant who shows that a conflict of interest actually

affected the adequacy of his representation need not demonstrate prejudice in order to

obtain relief. Id.

3 Counsel testified at the Rule 37 hearing that appellant wanted Amy at their meetings

and that his representation of Amy did not create a conflict of interest because Amy did not

believe the charges against appellant were true. The circuit court found that appellant failed

to show an actual conflict and failed to cite any specific instances in which the alleged

conflict adversely affected him. Appellant has still not specified what adverse effects

occurred, such as what testimony counsel could have elicited from Amy on cross-

examination had he not represented her. Amy testified at the Rule 37 hearing that she had

informed counsel of inaccuracies in the police report, but she did not remember anything

specific that she had a problem with. Counsel testified that arguing there was a faulty

investigation based on inaccuracies in police reports was not a winning theory because the

victims, not the detective, were going to testify about their allegations. Appellant has also

not identified any inconsistencies that counsel failed to identify in the victims’ testimony.

Accordingly, we conclude that appellant has failed to show that a conflict of interest actually

affected counsel’s performance.

II. Failure to Object During Closing Arguments

Appellant next argues that counsel was ineffective for failing to object and move for

a mistrial or a curative instruction after the prosecutor made three inflammatory remarks

during closing arguments. When it is alleged that counsel was ineffective for the failure to

make a motion or an argument, the petitioner must show that the motion or argument

would have been meritorious because the failure to make an argument that is meritless is

not ineffective assistance of counsel. Blackwell v. State, 2017 Ark. App. 248, 520 S.W.3d

294. A reversal of a judgment due to remarks made by counsel during closing arguments is

4 rare and requires that counsel make an appeal to the jurors’ passions and emotions. Houghton

v. State, 2015 Ark. 252, 464 S.W.3d 922. Experienced advocates might differ about when,

or if, objections are called for since, as a matter of trial strategy, further objections from

counsel may result in comments seeming more significant to the jury. Id. Because many

lawyers refrain from objecting during opening statement and closing argument, absent

egregious misstatements, the failure to object during closing argument and opening

statement is within the wide range of permissible professional legal conduct. Howard v. State,

367 Ark. 18, 238 S.W.3d 24 (2006). Here, the circuit court found that appellant had failed

to demonstrate that counsel’s decision not to object was an error and not a strategic choice

as counsel testified. The court further found that appellant had failed to demonstrate that

any motions had a likelihood of success or that he suffered any prejudice.

Appellant contends that the prosecutor made two improper statements in the

following portion of her rebuttal closing argument:

Mr. Flanagin talked a lot about how Frank’s gotten to be 40 and really hadn’t done anything wrong. Did you hear somebody testify to that? Because I didn’t. I didn’t hear anybody get on the stand and say he’s not done anything wrong, that he doesn’t have a criminal history. I sure didn’t hear the two daughters he’s got get on the stand and say, “Well, nothing happened to us.” I didn’t hear one person get on the stand and say, “Frank’s a good guy.”

Do not assume, because you didn’t hear something bad about his past in here, that there isn’t anything there. Okay? We’re talking about facts that were presented to you. Those are the things you are going to rule on.

Appellant claims that the prosecutor improperly shifted the burden when she said that

appellant’s own daughters did not testify, and she implied that appellant had committed

other offenses when she stated that the jury could not assume there was nothing bad in his

past. Counsel testified that based on the way the prosecutor finished the statement quoted 5 above, it did not rise to the level to warrant his objecting and drawing more attention to

the statements. Appellant recognizes counsel’s reasoning but contends that after “numerous

inflammatory statements,” “it crosses from strategy to ineffective assistance.” Appellant’s

allegations are conclusory and are not supported by convincing argument or citation to

authority. Turner v. State, 2016 Ark. 96, 486 S.W.3d 757. Furthermore, we do not

recognize cumulative error in allegations of ineffective assistance of counsel. Id.

Accordingly, appellant has failed to show that counsel’s failure to object fell outside the wide

range of permissible professional legal conduct.

The third alleged improper comment occurred when the prosecutor stated the

following to the jury:

Now’s the time to stand up and look Frank Campbell in the face and say, “We adhere to society’s rituals. You don’t get to have sex with little kids. You don’t get to send them sexually exploitive material in an effort to get a sexual relationship with them. You don’t get to go into their rooms at night and touch their butts. You don’t get to rub their breasts in their own home. It’s not okay.”

Appellant argues that the remark about “sex with little kids” improperly appealed to the

jurors’ passions and emotions because he was not charged with having sex with children.

Although appellant was not charged with having sex with the teenage victims, he was

charged with engaging in sexual contact with them and with soliciting a thirteen-year-old

child to engage in sexual intercourse, deviate sexual activity, or sexual contact. The supreme

court has held that “send a message” themes from the prosecutor in closing arguments are

not improper. Lard v. State, 2014 Ark. 1, 431 S.W.3d 249. Considering the conduct with

which appellant was charged, we hold that the message regarding “sex with little kids” is

not an egregious misstatement.

6 Furthermore, as in Houghton, supra, the jury here was instructed that remarks made

during closing arguments are not evidence and to disregard any argument, statements, or

remarks of the attorneys that had no basis in the evidence. We hold that the circuit court

did not err in finding that appellant failed to demonstrate defective representation that

prejudiced his defense such that he was deprived a fair trial.

III. Failure to Make a Proper Directed-Verdict Motion

Appellant next argues that counsel was ineffective for failing to preserve a sufficiency-

of-the-evidence argument on his conviction for sexual indecency with a child. In our

opinion affirming appellant’s convictions, we held that appellant’s sufficiency argument was

not preserved for appellate review because he had failed to make a specific motion for

directed verdict at the close of the State’s case. To prevail on a claim of ineffective assistance

of counsel on the basis of counsel’s failure to preserve an issue for appeal, a petitioner must

show that, had the issue been preserved, the appellate court would have reached a different

decision. Strain v. State, 2012 Ark. 42, 394 S.W.3d 294. In the case of a directed-verdict

motion, the petitioner must demonstrate that the appellate court would have found that the

evidence adduced at trial was insufficient to support a conviction and would have

overturned the conviction for that reason. Id.

Appellant fails to address the evidence and explain why it was insufficient to support

his conviction. He states only that the evidence was “not sufficient.” This argument is

conclusory and cannot be the basis for postconviction relief. Kauffeld, supra. When an

appellant does not allege in what regard the circuit court’s rulings on ineffective-assistance

7 claims were clearly erroneous, his arguments fail. Flemons v. State, 2016 Ark. 460, 505

S.W.3d 196.

IV. Failure to Interview Witnesses, Call Certain Witnesses, and Investigate the Case

Appellant argues that counsel was ineffective for failing to call witnesses during the

sentencing phase or even investigate whether suggested witnesses had any beneficial

testimony to offer. He specifically argues that he would have benefited from the testimony

of his sister, Sheryl Ruff, and his friend, Shawn Wright. Ruff testified at the Rule 37 hearing

that she would have testified that appellant was a good father; Wright said that he would

have testified about occasions when appellant had helped him. Both were cross-examined

about their knowledge of appellant’s two prior felony convictions and a prior harassment

conviction of a “sexually threatening nature.” Counsel testified that he did not believe the

witnesses’ testimony would add anything “worthwhile” and that it would open the door to

“egregious” evidence about appellant’s prior sexual-harassment conviction, which would

make him “look terrible” to the jury. The circuit court found that the witnesses would

have been subject to cross-examination by the State that would have elicited damaging

testimony about appellant’s prior convictions that would otherwise have been inadmissible.

Accordingly, the court found that appellant did not demonstrate that counsel’s performance

fell below the required standard or caused prejudice.

Matters of trial strategy and tactics, even if arguably improvident, fall within the realm

of counsel’s professional judgment and are not grounds for a finding of ineffective assistance

of counsel. Williams v. State, 2011 Ark. 489, 385 S.W.3d 228. Thus, even though another

attorney may have chosen a different course, trial strategy, even if it proves unsuccessful, is

8 a matter of professional judgment. Id. The decision whether to call particular witnesses is

a matter of trial strategy that is outside the purview of Rule 37. Id. Trial counsel must use

his or her best judgment to determine which witnesses will be beneficial to the client. Id.

When assessing a trial counsel’s decision not to call a particular witness, we must take into

account that the decision is largely a matter of professional judgment that experienced

advocates could endlessly debate, and the fact that there was a witness or witnesses who

could have offered beneficial testimony is not, in itself, proof of counsel’s ineffectiveness.

Id.

Counsel articulated sound bases for not calling these witnesses as a matter of trial

strategy; thus, the circuit court’s ruling is not clearly erroneous. In determining whether a

defendant is prejudiced by counsel’s decision not to introduce certain evidence, it is

necessary to consider all the relevant evidence the jury would have had before it as a result

of a decision to introduce the evidence, not solely the evidence the defendant claims was

mistakenly kept out. State v. Thompson, 2017 Ark. 50, 510 S.W.3d 775. Appellant argues

that counsel could have made motions to try to prevent the State from asking the witnesses

questions about the harassment conviction, but he provides no legal basis for such a motion.

Accordingly, he has not shown that counsel’s performance was deficient and resulted in

prejudice.

V. Failure to Move for a Severance of the Charges or to Request a Continuance

Appellant argues that counsel should have taken action when an amended

information was filed thirty-five days before trial. The amended information added three

counts of sexual indecency with a child based on the allegation that appellant sent a sexual

9 story to his stepdaughter to solicit her to engage in sexual activity with him. Appellant first

argues that counsel should have moved for a continuance when the amended information

was filed. He claims that he was “days away” from being able to have his charges dismissed

for violation of his speedy-trial rights; that counsel could have made a good-faith argument

that the late filing changed the nature of the defense; that counsel erroneously assumed that

the defense would have been forced “to take the time”; and that the State would have been

forced to try only the original charges to not be in violation of his speedy-trial rights.

Counsel testified that he did not move for a continuance when the sexual-indecency

charges were added because appellant was adamant that he wanted his trial without delay

and because counsel could not claim unfair surprise. Counsel said that the prosecutor had

told him months before that the charges were going to be added. Counsel said that a

continuance would have been charged to the defense and that the new charges did not alter

his trial strategy.

Appellant contends that the continuance would have benefited him because it would

have created speedy-trial issues for the State, but his claims concerning speedy trial and who

the time would be charged to are conclusory and without citation to authority.

Accordingly, they provide no basis for relief.

Appellant also contends that counsel should have moved to sever the charges.

Counsel testified that he chose not to move for severance because the same evidence would

be admitted in both trials under the pedophile exception, and appellant was likely to be

convicted and face consecutive sentences and habitual-offender status at a second trial.

Appellant argues that counsel did not consider that appellant may have wanted to testify on

10 only some of the charges. He also argues that counsel could have tried to keep the story

evidence out of a trial on the sexual-assault charges. Even if the story was admissible,

appellant argues that counsel could have sought jury instructions to limit the use of evidence

of one charge to support a conviction on the other.

In support of his argument, appellant cites only a case from the Supreme Court of

Washington, State v. Sutherby, 204 P.3d 916 (Wash. 2009), which held that counsel had no

legitimate strategic or tactical reason for failing to move to sever charges of child rape and

molestation from charges of possession of child pornography. The court held that it was

highly likely that the evidence of possession of child pornography would not have been

admissible in a separate trial for child rape and molestation because it did not involve the

same victim. Here, however, if the sexual-assault charges were severed from the sexual-

indecency charges, both trials would have involved the same victim, appellant’s younger

stepdaughter. Appellant cites no authority to rebut counsel’s claim that the evidence of each

crime would have been admissible in separate trials under Arkansas’s pedophile exception

to Rule 404(b).

Regarding counsel’s strategic decision, a similar decision not to seek a severance was

made in Chambliss v. State, 2011 Ark. 12, in order to avoid a harsher sentence at the second

trial. The supreme court held that counsel’s statements established that the decision was a

matter of trial strategy and that it was supported by reasonable professional judgment. The

same is true here. Accordingly, the circuit court did not err in denying postconviction

relief.

Affirmed.

11 HARRISON and HIXSON, JJ., agree.

Autumn Tolbert, Attorney at Law, by: Autumn Tolbert, for appellant.

Leslie Rutledge, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.