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Griffin v. State

Court of Appeals of Arkansas, Division II

February 4, 2015


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[Copyrighted Material Omitted]

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Jeff Rosenzweig, for appellant.

Dustin McDaniel, Att'y Gen., by: Valerie Glover Fortner, Ass't Att'y Gen., for appellee.



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Appellant Kathy Gene Griffin appeals from her conviction for first-degree failure to report child maltreatment as a mandated reporter in violation of Ark. Code Ann. § 12-18-201 (Repl. 2009). She was sentenced by the jury to one year of probation and a $2500 fine. Griffin argues on appeal (1) that the circuit court should have granted a directed verdict because there was insufficient evidence to convict her under Ark. Code Ann. § 12-18-201; (2) that if this statute is ambiguous, it should be interpreted in her favor under the rule of lenity; (3) that the circuit court erred in refusing necessary and relevant jury instructions; and (4) that the circuit court erred by limiting the presentation of exculpatory evidence and the cross-examination of prosecution witnesses. We affirm.

Griffin was charged in June 2012 with violating Ark. Code Ann. § 12-18-201, failure to notify by a mandated reporter in the first degree. The information alleged that Griffin, on or about February 1, 2012, through March 14, 2012, had reasonable cause to suspect that a child had been subjected to child maltreatment and had knowingly failed to notify the child-abuse hotline. At the jury trial held in September 2013, the following evidence was presented.

Robert Shamburger, the father of the victim, M.K.S., testified that his daughter's birthday was on October 25, 1993, and that she had turned eighteen on October 25, 2011. According to Mr. Shamburger, on February 24, 2012, M.K.S. disclosed to him that she had previously had a sexual relationship with Kelly O'Rourke, a math teacher and volleyball coach at Mount St. Mary Academy in Little Rock, where M.K.S. had attended high school. M.K.S. indicated that this relationship had begun when she was sixteen and that it had recently ended. Mr. Shamburger immediately contacted his wife, Sarah Shamburger, who was also a teacher at Mount St. Mary. The Shamburgers testified that M.K.S. was extremely upset and depressed about the break-up and that she did not want them to report O'Rourke to the authorities. The Shamburgers met with O'Rourke on Sunday, February 26, 2012, and told her that she needed to resign from the school the next morning. Later that evening, the Shamburgers received a phone call from Griffin, who was employed at Mount St. Mary as a school counselor, dean of discipline, and athletic director. O'Rourke and Griffin were also long-term roommates. Griffin convinced the Shamburgers that, for the good of the school and their relationship with their daughter, they should not report the inappropriate relationship to the police at that time. Instead, Griffin stated that the Shamburgers should view the incident " as a bad breakup" and that they should wait until the end of the year, when Griffin and O'Rourke would quietly resign from the school.

The Shamburgers agreed to wait one week, stating that they had their hands full with M.K.S., who had become uncontrollable and suicidal. The following weekend, Griffin again phoned the Shamburgers and convinced them not to report O'Rourke for another week. The Shamburgers stated that they agreed to wait because Griffin was a trusted school official and an acquaintance. However, they had also been seeking counseling for M.K.S., and when Griffin phoned the Shamburgers on Friday, March 9, 2012, they told her that they had an appointment with a counselor the following Monday and that the counselor had informed them that she was a mandated reporter

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who would be required to notify the child-abuse hotline. On the morning of Sunday, March 11, Griffin phoned the Shamburgers and asked if a report would still be made if O'Rourke agreed to resign right away. Mr. Shamburger informed Griffin that the relationship would still be reported. Griffin then anonymously made a report to the child-abuse hotline and also told Diane Wolfe, the principal at Mount St. Mary, who made a second report to the hotline later in the day on March 11. On Monday, March 12, Mr. Shamburger testified that he and his wife met with the counselor, Bonnie Thomas, and then met with Wolfe and other school officials. According to Mr. Shamburger, that was the last day that Griffin and O'Rourke worked at Mount St. Mary.

O'Rourke also testified and admitted that she was M.K.S.'s teacher and coach and that she had a sexual relationship with M.K.S. from January 10, 2010, through January 2012. O'Rourke testified that she had pled guilty to first-degree sexual assault and that she had also pled guilty to violating the conditions of her suspended sentence by contacting M.K.S. while she was in prison. O'Rourke stated that she told Griffin, who was her roommate at the time, about the relationship on February 24, 2012, after M.K.S. had told her parents. According to O'Rourke, she had initially agreed to resign after meeting with the Shamburgers on February 26, 2012, but Griffin convinced them to give her a couple of weeks. O'Rourke testified that Griffin did not report her to the hotline until March 11, after Griffin was informed that a third party would be reporting the relationship, and that Griffin was upset about making the report because she felt that she would be sentencing O'Rourke to jail. When questioned as to whether Griffin was aware of her relationship with M.K.S. before February 24, 2012, O'Rourke testified that she had denied an inappropriate relationship with the girl when Griffin had inquired about it on several occasions prior to that date.

Gary Glisson, the administrator for the state child-abuse hotline, confirmed that there was an anonymous report made on the morning of March 11, naming O'Rourke as the offender and M.K.S. as the victim. The parties stipulated that this report was made by Griffin. Glisson stated that there was a second report made by Diane Wolfe on the afternoon of March 11 and a third report on March 12 by Bonnie Thomas. Glisson explained that the hotline operators do not investigate the reports but that they assign it to a law-enforcement agency for further investigation. Glisson testified that anonymous reports are acceptable as long as ample information is given to identify the relevant parties.

At the conclusion of the trial, Griffin was convicted by the jury of first-degree failure to notify by a mandated reporter, and she was sentenced to one year of probation and a $2500 fine. The judgment and commitment order was entered on September 26, 2013, and Griffin filed a timely notice of appeal.

In her first point on appeal, Griffin argues that the circuit court should have granted her a directed verdict, as there was insufficient evidence presented to show that she violated Ark. Code Ann. § 12-18-201. A motion for a directed verdict is a challenge to the sufficiency of the evidence. Wyles v. State, 368 Ark. 646, 249 S.W.3d 782 (2007). On appeal, the sufficiency of the evidence is tested to determine whether the verdict is supported by substantial evidence, direct or circumstantial. Id. In ...

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