Rye v. State

373 S.W.3d 354, 2009 Ark. App. 839, 2009 Ark. App. LEXIS 1055
CourtCourt of Appeals of Arkansas
DecidedDecember 9, 2009
DocketNo. CA CR 09-96
StatusPublished
Cited by10 cases

This text of 373 S.W.3d 354 (Rye 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
Rye v. State, 373 S.W.3d 354, 2009 Ark. App. 839, 2009 Ark. App. LEXIS 1055 (Ark. Ct. App. 2009).

Opinion

KAREN R. BAKER, Judge.

_jjA Crawford County jury convicted appellant, Lorri Jean Rye, of two counts of rape of her three-year-old son, in violation of Arkansas Code Annotated section 5-14-103 (Repl.2006). She received two ten-year sentences to be served consecutively. Appellant presents three arguments on appeal. First, she alleges that the trial court erred in denying her motion for a directed verdict. Second, she alleges that the trial court erred in admitting child-hearsay evidence because the presumption of unreliability and inadmissibility was not met under Arkansas Rule of Evidence 804(b)(7) (2009) and because the court failed to find that the ability to cross-examine a witness would have been of marginal utility. Third, she alleges that the trial court erred by accepting a legal stipulation to incompetency of a witness. Finding no error, we affirm.

| ¡Appellant was arrested and charged with two counts of rape, a Class Y felony. It was alleged that on or between October 10 and October 15, 2007, appellant engaged in sexual intercourse or deviate sexual activity with the victim, her son, who was less than fourteen years of age. Appellant was interviewed by detectives and during the interview, appellant gave officers a statement about the alleged incident. In those statements, she indicated that she placed her mouth on the child’s penis.

Prior to the trial, a hearing was held to establish the admissibility of child hearsay through the testimony of the child’s aunt, Helen Hawthorne. Ms. Hawthorne was the only witness at this hearing. She testified that appellant was married to her brother and that she watched the child-victim “a substantial portion of the time.” She stated that she kept the child during the day while appellant worked and, when necessary, she kept the child at night, on weekends, and even overnight. She testified that on October 17, while she was keeping the child, he made some concerning statements while sitting in her lap. Specifically, the child asked Ms. Hawthorne if she wanted to “play a game.” She responded that she would. The child then asked if she would want to “play with [his] weenie balls,” to which she responded, “No.” The child next asked if she wanted him to “play with [her] wee wee.” Again, Ms. Hawthorne responded, “No.” She explained to the child that she did not play such games. The child continued with his questions, asking such things as “Do you want me to put my weenie balls in your wee-wee?” and “Do you want to suck my weenie balls?” Ms. Hawthorne testified that she responded “No” each time the child asked a question, |Remphasizing to him that she did not “play those games.” The child’s next statement was, “Well, Mama does.” Ms. Hawthorne testified that the dialogue ended and the child climbed down from her lap and went to watch television. Ms. Hawthorne testified that she was “just devastated” and said that it made her “sick to [her] stomach.” She did not report the incident to authorities until October 19 because October 18 was the child’s birthday. She explained to authorities that the child made the statements only on October 17 and did not repeat the statements to her again. She also told them that she did not at any time after the incident question the child about the statements.

Ms. Hawthorne testified that she and appellant were “very close” despite the potential divorce between appellant and Ms. Hawthorne’s brother.1 The two had discussed the fact that Ms. Hawthorne would continue to keep the child even after the possible dissolution of appellant’s marriage. The parties stipulated that based on the victim’s age, he was unavailable due to incompetency. The court accepted the stipulation by the parties and, at the conclusion of the hearing, the court found that the child-victim was unavailable and that the hearsay testimony was within the child-hearsay exception in Arkansas Rule of Evidence 804(b)(7).

Ms. Hawthorne also testified at trial. She reiterated the statements made by the child to her on October 17. She testified that the child made the statements while sitting in her lap. He and Ms. Hawthorne were tickling each other, when the child “kind of hit [her] knee with his private area.” At that moment, the child said, “Oh, that hurt my weenie balls.” She ^explained to the child that “[they] don’t call them that.” The child’s response was, “Well, my Mama does.” She testified that the victim continued to ask her such questions as, did she want to “play with [his] weenie balls,” “put [his] weenie balls in [her] mouth,” or “put his weenie balls in [her] wee wee.” She told him that she did not play such games, and the child responded again, “Well, my Mama does.” Ms. Hawthorne stated that “he was just rubbing [himself] the whole time he said it and [she] just tried to be just as, you know, normal as possible because [she] didn’t want to just, you know, get irate with him or anything. So, you know, [she] didn’t know what to — so, [she] just got real sick to [her] stomach and everything. So, [she] said, no, let’s just watch TV, okay?” She was extremely upset. Because the child was excited about his birthday the next day, Ms. Hawthorne did not report the incident until October 19. On October 19, she spoke with Officer Wiley about the child’s statements.

Detective Perry of the Van Burén Poliee Department testified that he went to appellant’s home to speak with her about the allegations. When Detective Perry arrived, appellant and the child were home. He told appellant that he needed to speak with her about the allegations, and appellant “said nothing.” They went to the police station, where appellant was questioned. During a video-taped interview by Detective Perry and Officer Lindley, which was played for the jury, appellant initially denied that she touched the child “sexually.” Further into the interview, she admitted that she had placed her son’s penis in her mouth on two occasions when she thought he was asleep. Both officers testified as to appellant’s confession. She also stated that when she was a child, she was sexually abused by | .¡family members.

Dr. Paul Deyoub, a forensic psychologist, testified that he conducted a forensic evaluation of appellant. In the evaluation, he administered testing, including intelligence testing, personality testing, and a “Competency to Stand Trial Assessment.” He concluded that appellant did not have any mental illness and that she was of high-average intelligence, performing at the seventy-seventh percentile. Dr. Dey-oub testified that during the evaluation, appellant denied that she had committed the offense and that she did not indicate to Dr. Deyoub that she had been sexually abused by a family member.

After the State rested its case, appellant’s counsel made a motion for a directed verdict. In the motion, counsel stated,

Your Honor, since this is the end of the State’s case and they’re resting on their case, Your Honor, I move for a directed verdict ... I’m challenging the sufficiency of the evidence that the State has brought forward at this point in that, if the jury were to, that enough evidence has not been presented in such a way or an adequate amount to meet the burden to proceed forward at this point; that the jury’s, the information they have received from the State, would, that they would have to basically, güess or you know, as to the evidence presented, Your Honor. And that there’s just— there’s not enough evidence to go forward.

The trial court denied the motion.

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Cite This Page — Counsel Stack

Bluebook (online)
373 S.W.3d 354, 2009 Ark. App. 839, 2009 Ark. App. LEXIS 1055, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rye-v-state-arkctapp-2009.