Johnson v. State

25 S.W.3d 445, 71 Ark. App. 58, 2000 Ark. App. LEXIS 563
Court of Appeals of Arkansas·Decided September 13, 2000·No. CA CR 00-18·Published·Cited by 16 cases

Opinion

Wendell L. GRIFFEN, Judge.

James Johnson and his wife, Robin Johnson, received a joint jury trial on charges relating to the sexual abuse of Robin’s daughter. James was convicted of two counts of rape, two counts of sexual abuse, and terroristic threatening. Robin was convicted of permitting the abuse of a child. James argues the evidence was insufficient to sustain his convictions. Robin argues that the trial court erred by denying her motion to sever the trial, by allowing the State to elicit testimony from her daughter with leading questions, and by denying her motion to suppress statements made during her interview with police. We disagree, and affirm on all points.

On Sunday, January 10, 1999, Sheila Slaughter, a teacher at Eagle Heights Elementary School in Harrison, Arkansas, was working in her classroom when she heard a child crying. That child was Robin’s then eight-year-old daughter, who told Slaughter that she was upset because her stepfather would not let her pray at the table. She also told Slaughter that her stepfather had molested her. Slaughter relayed the information to the victim’s teacher, Cindy Newton. Newton told Pam Jones, the school’s counselor. Jones reported the suspected abuse. Rebecca Madden of the Arkansas State Police and Troy Holton of the Harrison Police Department conducted an investigation.

Detective Holton interviewed the victim, who informed him that her stepfather had sexually abused her. The victim also told Holton that she had informed her mother of the abuse, but her mother did not believe her. On January 15 Dr. Eric Spann examined the victim, and confirmed that she had been sexually abused, as recently as three months prior to the examination.

James was charged with two counts of rape under Arkansas Code Annotated section 5-14-103 (Repl. 1997), two counts of first-degree sexual abuse under Arkansas Code Annotated section 5-14-108 (Repl. 1997), and first-degree terroristic threatening under Arkansas Code Annotated section 5-13-301 (Repl. 1997). Robin was charged with permitting abuse of a child under Arkansas Code Annotated section 5-27-221 (Repl. 1997).

Robin filed a motion to sever the trial and a separate motion to suppress statements she made during her interview with police. The trial court conducted a hearing on both motions and denied these motions. Robin renewed her motion to sever after the jury panel had been sworn. The trial court again denied her motion.

During trial, Robin’s attorney obtained a continuing objection to the leading questions the State asked in eliciting testimony from the victim. The court overruled these objections and allowed the State to ask leading questions. At the close of the State’s evidence and at the close of all of the evidence, appellants moved for directed verdicts on the charges against them. James’s counsel argued that the victim’s testimony failed to establish that the incidents testified to by the victim occurred within the time alleged in the charges. The State moved to amend the charges contained in the affidavit to comport with the facts as testified to by the victim in court. The trial court allowed the amendment, over James’s objection. James’s counsel then asked for a directed verdict on the ground that the victim had not testified as to the conduct supporting the second sexual-abuse charge. The trial court denied James’s motion.

Robin’s counsel argued that the only evidence connecting Robin to the incidents were the inconsistent statements made by the victim. The trial court denied her motion for a directed verdict, noting that “the Court doesn’t grant directed verdicts on the basis of inconsistency in the testimony.”

A jury found both appellants guilty. James was sentenced to serve a total of fifty years in the Arkansas Department of Correction, and Robin was sentenced to serve six years.

I. Appellant James Johnson

A. Charges and Standard of Review

James was charged with rape for engaging in sexual intercourse with a child six years of age during the school year 1996-1997, and engaging in deviate sexual activity (oral sexual penetration) by forcible compulsion with a person younger than fourteen years old in early January 1999. He was also charged with first-degree sexual abu.se for purposely engaging in acts of sexual touching or fondling of a girl less than eight years old during the school year 1997-1998; and for touching his mouth to the genitalia of a girl less than eight years old during the 1996-1997 school year. Finally, the State charged him with terroristic threatening for threatening to cause physical injury to the victim to prevent her from reporting the abuse.

A motion for a directed verdict is treated as a challenge to the sufficiency of the evidence. See Killian v. State, 60 Ark. App. 127, 128, 959 S.W.2d 432, 433 (1998). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, whether direct or circumstantial. See id., 959 S.W.2d at 433. When reviewing a denial of a directed verdict, we will look at the evidence in the light most favorable to the State, considering only the evidence that supports the judgment or verdict. See Darrough v. State, 330 Ark. 808, 810, 957 S.W.2d, 707, 708 (1997); Killian, supra at 128, 959 S.W.2d at 433. We will affirm if there is substantial evidence to support a verdict. See Ryan v. State, 30 Ark. App. 196, 786 S.W.2d 835 (1990). Evidence is sufficient to support a verdict if it is forceful enough to compel a conclusion one way or another. See Hall v. State, 315 Ark. 385, 868 S.W.2d 453 (1993).

B. Witness Competency

James argues that the victim’s testimony was insufficient to sustain his convictions for rape, first-degree sexual abuse, and ter-roristic threatening, because the trial court failed to follow the proper procedure to determine the competency of the witness, and because her testimony was inconsistent. He maintains that under Harris v. State, 238 Ark. 780, 384 S.W.2d 477 (1964), it is reversible error for the trial court to fail to exclude the testimony of a child witness where the inconsistencies and irreconcilable conflicts in the child’s testimony bear on essential elements of the crimes and render the witness unable to transmit to the jurors in a reasonable, clear, and coherent manner what she saw, heard, and felt.

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Johnson v. State, 25 S.W.3d 445, 71 Ark. App. 58, 2000 Ark. App. LEXIS 563 (Ark. Ct. App. 2000).

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