Stewart v. State

374 S.W.3d 811, 2010 Ark. App. 323, 2010 Ark. App. LEXIS 340
Court of Appeals of Arkansas·Decided April 14, 2010·No. No. CA CR 09-29·Published·Cited by 5 cases

Opinion

COURTNEY HUDSON HENRY, Judge.

|,A jury in Ashley County found appellant Steve Brian Stewart guilty of three counts of perjury, for which he received cumulative sentences totaling twenty years in prison. For reversal, appellant argues that the trial court erred (1) by admitting into evidence the transcript of the hearing at which he entered a guilty plea in federal court; (2) by denying his motion for a directed verdict; and (3) by denying his motion to enforce a plea agreement. This case returns to us after rebriefing to cure deficiencies in the abstract and addendum. Stewart v. State, 2010 Ark. App. 67, 2010 WL 180934. We now affirm.

The record reflects that appellant and members of his family, including his mother, his sister Shelley, and a child D.M., left New Orleans, Louisiana, in August 2005 because of Hurricane Katrina, and they relocated in Hamburg, Arkansas. On November 9, 2005, the prosecuting attorney in Ashley County charged appellant with thirteen counts of rape for 12having sexual intercourse with D.M., who was under the age of fourteen, and with one count of kidnapping the child. The events alleged in the information occurred between September 9 and October 30 in 2005. Appellant stood trial on those charges in June 2006, and he elected to testify in his defense. Appellant testified that he never had sexual intercourse with D.M.; that he did not take the child from Arkansas to Mississippi; that the child went missing on her own from Hamburg; and that he did not know the child’s whereabouts while she was missing. More specifically, appellant testified that he left D.M. with his mother on October 24, 2005, while he met a prostitute in Greenville, Mississippi. He said that he learned that the child was missing when he returned to Hamburg and that he thought that she had run away. Appellant testified that he drove to New Orleans to retrieve his family’s belongings and that D.M. appeared at his mother’s home there on October 27, 2005. He said that, despite knowing that there was an Amber Alert issued for D.M. and that he was suspected of sexually abusing her, he deposited the child with his sister, Angela, who had remained in New Orleans. Appellant maintained that he did not ask D.M. how she arrived in New Orleans and that he did not learn that she had been returned to Arkansas until October 31, 2005. The jury could not reach a verdict on the charges, and the trial court declared a mistrial.

On May 3, 2006, the United States Attorney for the Western District of Arkansas charged appellant with transporting a minor, D.M., across state lines for the purpose of | ¡¡engaging in sexual intercourse.1 On February 5, 2007, appellant appeared before the federal court and pled guilty to the charge as part of a negotiated plea between appellant, the federal government, and the Ashley County prosecutor. As an offer of proof, the Assistant United States Attorney, Kyra Jenner, recited the following predicate facts. Appellant’s sister, Shelley, had custody of twelve-year-old D.M. in Hamburg, and on October 24, 2005, appellant secreted the child to a motel in Greenville, Mississippi. Appellant left the child there and returned to Hamburg to create the impression that he and the child were not traveling together. From there, appellant transported D.M. to Poplarville, Mississippi, where he exchanged vehicles, and then he took her to New Orleans. Appellant and D.M. stayed with appellant’s sister, Angela, who operated an escort service. While in New Orleans, appellant engaged in sexual intercourse with D.M. Under oath, appellant stated that the government’s proof was “accurate and true.” The federal court accepted appellant’s plea, and in May 2005, the court sentenced appellant to a five-year term of imprisonment. In accordance with the plea agreement, the prosecuting attorney in Ashley County subsequently nolle prossed the rape and kidnapping charges that remained pending following the mistrial.

On June 1, 2007, the Ashley County prosecutor charged appellant with three counts of perjury, alleging that appellant knowingly made false material statements in his testimony at the jury trial held on June- 2, 2006. Prior to trial, appellant moved to enforce the plea agreement negotiated in the federal proceeding. In this motion, appellant asserted that, in | ¿exchange for his guilty plea in federal court, the prosecuting attorney in Ashley County had agreed not only to nolle pros the pending rape and kidnapping charges, but also not to pursue any further charges against the appellant. Thus, appellant sought dismissal of the perjury charges based on his understanding of the plea agreement. In addition, appellant moved in limine to prohibit the prosecution from introducing into evidence the transcript of the plea hearing in federal court. The trial court denied both motions after a pretrial hearing.

At trial, the State introduced into evidence the information containing the rape and kidnapping charges lodged in Ashley County, the mistrial order, and the order of nolle pros. The State also introduced the transcript of the federal plea hearing and a transcript of appellant’s testimony at the jury trial held on June 2, 2006. For the defense, Robert Depper, appellant’s former attorney, testified that appellant faced fourteen life sentences in state court on the rape and kidnapping charges and that the range of punishment for the federal offense was from five to thirty years in prison. Depper said that it was not unusual for a defendant to plead guilty in federal court to avoid harsher penalties in state court. In his testimony, appellant maintained that he testified truthfully at his previous jury trial and that he accepted his attorney’s recommendation to plead guilty to the federal charge. He said that he did not object to the offer of proof at the plea hearing so as to honor the plea agreement. The jury found appellant guilty on all three counts of perjury and fixed sentences of ten years on each count. The trial court ordered two of the ten-year sentences to be served consecutively and also directed that appellant serve his combined twenty-year sentence consecutively to the ^federal term of imprisonment. This appeal follows the trial court’s judgment and commitment order memorializing the perjury convictions and sentences.

As his second point on appeal, appellant argues that the trial court erred by denying his motion for a directed verdict. A motion for directed verdict is treated as a challenge to the sufficiency of the evidence. Elliott v. State, 2010 Ark. App. 185, 2010 WL 658841. We address this issue first, as an appellant’s right to be free from double jeopardy requires a review of the sufficiency of the evidence prior to a review of any asserted trial errors. Williams v. State, 368 Ark. 395, 214 S.W.3d 829 (2005). A person commits the offense of perjury if, in any official proceeding, he or she makes a false material statement, knowing it to be false, under an oath required or authorized by law. Ark.Code Ann. § 5-53-102(a) (Repl.2005). Arkansas Code Annotated section 5-53-106(b) (Repl.2005) provides that proof that the accused gave inconsistent statements is of itself evidence that one of the statements is false and that it is not necessary to sustain a conviction to establish which statement is false. The purpose of this statute is to relieve the state of the necessity of proving which statement is false, because obviously both cannot be true. Brown v. State, 288 Ark. 517, 707 S.W.2d 313 (1986).

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Stewart v. State, 374 S.W.3d 811, 2010 Ark. App. 323, 2010 Ark. App. LEXIS 340 (Ark. Ct. App. 2010).

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