Ralston v. State

2019 Ark. App. 175, 573 S.W.3d 607
CourtCourt of Appeals of Arkansas
DecidedMarch 13, 2019
DocketNo. CR-18-653
StatusPublished
Cited by10 cases

This text of 2019 Ark. App. 175 (Ralston v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ralston v. State, 2019 Ark. App. 175, 573 S.W.3d 607 (Ark. Ct. App. 2019).

Opinion

The trial in the matter was held on December 20, 2017.

H.M. testified that appellant is his great uncle-his mother's uncle-and that appellant lived with H.M. and his mother in "like, 2009" when he was nine years old. Everyone had their own rooms. The situation "just went downhill really fast, though." H.M. testified to appellant coming into H.M.'s room, turning off his radio, sitting on his bed, and talking to him. What happened next followed:

[Appellant] would start touching my penis, like, after, like, my underwear was around my ankles. When this happened I was laying down in my bed. [Appellant] would be like in the middle, slash, like the foot kind of [sic]. My mom was home but she was asleep. I know because I could hear her snoring. Me and mom's door- our rooms were next to each other.
[Appellant] would touch my penis with my clothes off. They were around my ankles. I would put them down because he told me to. When I say he, that is [appellant]. He would use his hand to touch me. His hand would slightly go up and down slowly. He didn't say anything to me when he would touch me. When he touched me he has [sic] his clothes on. This happened [one] time that I can remember. He told me not to tell nobody or he would hurt me and my mom.

H.M. also testified to "other things that [he] was not okay with" such as when appellant "put his hand on [H.M.'s] leg" or when appellant "put [H.M.'s] penis in [appellant's] mouth and he would, like, go up and down, kind of, too[.]" Appellant put his mouth on H.M.'s penis only once. H.M. stated that his clothes were around his ankles whenever appellant did these things and that appellant would threaten to hurt H.M. and his mother if H.M. told anyone. H.M. "didn't tell anybody about [appellant] coming into [his] room until [he] was in Vista Hospital. [He] didn't tell anyone because [he] was scared [appellant] would actually hurt [H.M.] and his mom" but he told at Vista Hospital (Vista) because he "felt safer." Vista is a mental hospital where H.M. received treatment in 2010. The first person H.M. told what had happened was his therapist at Vista. H.M. was ten at that time and "wasn't able to see this case through because [he] was scared of seeing appellant."

H.M. became aware of A.H. coming forward about allegations involving appellant in 2014, but he did not learn it from A.H. He did not talk to A.H. about what appellant did to him; "[t]hat wasn't something that was talked about a lot in [his] family." A.H. is the son of H.M.'s sister, Sheena Mendoza. H.M. and his sister lived with their mother, along with Sheena's children, among whom A.H. was included. When H.M. learned about A.H. coming forward, he felt that he "needed to do something[,] but [he] didn't know what to do." He eventually went back to the Children's Advocacy Center (CAC).1

*613H.M. also testified that he did not remember telling a Vista counselor that appellant touched his penis with his mouth, then qualifying that "[he] remember[ed] saying it, but [he didn't] think it happened to be honest." He "[didn't] believe" he told CAC workers that appellant performed oral sex on him though he did tell the same to the prosecutors. However, H.M. testified to having a "bad memory" and that he was "not able to remember exactly what [he] said in 2010 or 2014[,]"2 though H.M. unequivocally asserted that he remembered appellant touching H.M.'s penis with his hand and mouth in 2009. He "[did] not have any doubt" regarding those memories.

A.H. then testified. Appellant was someone A.H. would spend time with when A.H. went to his grandmother's house when he was in kindergarten. A.H. testified regarding his encounters with appellant that things happened to him that were "not okay with [A.H.]." Appellant would call A.H. over to appellant's lap, then appellant would "touch [A.H.'s] private part over [A.H.'s] clothes." Regarding the specifics, A.H. testified:

I said when I would sit on [appellant's] lap he would have a magazine. Like he would use, like, the magazine to, like, cover it up so that nobody would see it and then, like, just-I think, like, distract them or something, like, where nobody would notice him touching my private parts. When he touched my private parts he would use his hand. He was touching my penis. He touched me on top of my clothes. Sometimes there were other people in the room. They weren't able to see. They wouldn't see he was touching me because he was using a magazine, or, like, it was, like, a newspaper, sometimes a magazine. This happened a lot.... I never asked him to stop because I was, like, too young and I wasn't -- my brain wasn't, like, knowing, like, that's not good. I was in kindergarten and that young age. I didn't understand what was exactly happening.
I didn't tell anybody else about what [appellant] was doing at that time. I just didn't know, like, that it was, like, not good and not bad, but, like, it just wouldn't cross my mind.

A.H. did not disclose what happened to him until a couple years before the trial, after he learned about what appellant had done to H.M.; however, he and H.M. had not talked about what happened "in depth or in detail" as they "try to avoid" the topic. What appellant did "isn't something [his] family talks about very often." What appellant had done to A.H. "just came to him and [he] realized it." A.H. first told his grandmother, who then told A.H.'s mother, who spoke with A.H. when she arrived home from work. A.H. later talked to someone at the CAC. A.H. denied "[making] up this story so that [he] could get out of trouble" the night he first brought the allegations up.3

Cynthia McAfee-niece of appellant, mother to H.M., and grandmother to A.H.-confirmed that H.M. was nine when she and H.M. moved in with appellant. She was only in the home "about a month" before she moved out. During the time she lived with appellant, she noticed a difference in H.M.'s behavior, actually before they moved in, "probably three, four months, into [appellant] coming visiting *614[sic]." She noticed that H.M. was leaving the house without telling her because "he was not wanting to come home."4 H.M. begged her "several times" not to let appellant live with them; she thought H.M. did not like that there was going to be a father figure in the house. She learned that appellant had sexually abused H.M. from the 2010 investigation. She had not discussed the circumstances of what happened between appellant and H.M. with A.H.; she "[didn't] want to know."

Cynthia observed A.H. getting into appellant's lap while appellant was holding a book; she had seen A.H. get into appellant's lap and look through magazines. She had had "suspicions" of sexual abuse between appellant and A.H., but A.H. would deny that anything had happened and run off whenever she had asked him about it. However, she recalled a particular argument between her and A.H.:

He yelled at me one time and said-me and him had got into an argument and he said, "You'll never understand me, mom." I said, "Why?" He goes, "It's all because of [appellant]." I said, "Why? What do you mean [appellant]?" He goes, "It's just because of [appellant]," then he ran out the door and was gone for about three hours. The argument was over he didn't do his chores. He was supposed to do his chores before he went out to play and he hadn't done them, and I was trying to stop him from leaving.

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Cite This Page — Counsel Stack

Bluebook (online)
2019 Ark. App. 175, 573 S.W.3d 607, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ralston-v-state-arkctapp-2019.