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Dowdy v. State

Supreme Court of Arkansas

February 5, 2015

TERRY ALLEN DOWDY APPELLANT
v.
STATE OF ARKANSAS APPELLEE

APPEAL FROM THE GREENE COUNTY CIRCUIT COURT [NO. CR 2012-365] HONORABLE RANDY F. PHILHOURS, JUDGE

Paul J. Teufel, for appellant.

Dustin McDaniel, Att'y Gen., by: Kathryn Henry, Ass't Att'y Gen., for appellee.

KAREN R. BAKER, ASSOCIATE JUSTICE

A Greene County Circuit Court jury convicted Appellant Terry Allen Dowdy of two counts of rape, three counts of sexual abuse in the second degree, and three counts of sexual indecency with a child. Dowdy was sentenced to life imprisonment for each of the rape convictions, twenty years' imprisonment for each of the sexual-assault convictions, and six years' imprisonment for each of the sexual-indecency-with-a-child convictions, all running consecutively. On appeal, Dowdy contends that the circuit court erred by allowing the jury to hear evidence of prior bad acts, allowing Lea Ann Vanaman to testify, and by denying his directed-verdict motions. Our jurisdiction is proper pursuant to Arkansas Supreme Court Rule 1-2(a)(2), as this is a criminal appeal in which a sentence of life imprisonment was imposed. We affirm in part, and dismiss in part.

I. Factual and Procedural History

At trial, Dowdy's granddaughter, E.D., testified that for several years she would visit Dowdy on the weekends. She testified that Dowdy would "stick his fingers like down my pants, or he would rub my pants on the outside of my clothes." E.D. testified that Dowdy stuck his fingers inside her vagina more than three times. E.D. testified that the incidents occurred in 2010 and 2011. Specifically, E.D. testified that the last time Dowdy touched her inappropriately was in April 2011. E.D. testified that she told her parents about the abuse sometime during September 2011, when they began questioning her about cutting herself on her arms. E.D. testified that she told her parents she was cutting herself because Dowdy was molesting her. She further testified that she turned thirteen years old in 2011. E.D. also testified that sometimes when she would walk into the kitchen, Dowdy would be masturbating and "would just look at me." She testified that this happened more than once.

In addition to E.D.'s testimony, the State presented testimony from several witnesses under Arkansas Rule of Evidence 404(b). M.M. testified that Dowdy is her mother's brother. She testified that in 1977 or 1978, when she was seven or eight years old, Dowdy masturbated in front of her and her sister. M.M. testified that Dowdy was about twelve years old when this occurred. She further testified that when she was ten or eleven years old, Dowdy would put his penis between her legs and "do his business" and fondle her breasts until he ejaculated. L.W., M.M.'s sister, also testified. L.W. testified that when she was eight years old, Dowdy, forced her to perform oral sex on him. She testified that when she was twelve years old, Dowdy would "spoon" up against her and "mimic sex" until he "masturbated."

In addition to M.M. and L.W., the State elicited testimony from J.W. J.W. testified that she previously dated Dowdy's son, J.D. She testified that in 2002, when she was sixteen years old, she lived with Dowdy and his wife, Sandy. J.W. testified that while she was living there her boyfriend told her that Dowdy wanted to have sex with her, but she objected. J.W. testified that her clothes were taken off and Dowdy performed oral sex on her and had sexual intercourse with her. The final Rule 404(b) witness presented by the State was K.S. K.S. testified that Dowdy is her uncle and that he had forced her to perform oral sex on him, would masturbate while she sat on his lap, and that he had sex with her.

Finally, the State called Lea Ann Vanaman, a supervisor with the Arkansas State Police Crimes Against Children Division. Over Dowdy's objection, Vanaman testified that self-harming is common among child abuse victims. Vanaman also testified that victims of sexual abuse will continue to go around the abuser and that, on average, fifteen years passes between the time of the alleged abuse and the victim's first disclosure. She testified that she had not met or interviewed E.D. and that E.D.'s cutting could be the result of something other than sexual abuse.

After the State's case, Dowdy moved for directed verdict. In his motion, Dowdy contended that three of the charges for sexual indecency with a child were barred by the statute of limitations. Dowdy contended that only the April 11, 2011 charge for sexual indecency was not barred by the statute of limitations. He also argued that the State failed to present sufficient evidence that Dowdy purposefully exposed himself to E.D. He contended that E.D.'s testimony that she walked into the kitchen and Dowdy continued to masturbate was not sufficient to show purposeful action. Finally, Dowdy contended that the State failed to present sufficient evidence to support the rape charges because there was no evidence regarding deviate sexual activity, no allegation of sexual intercourse, and no proof of the victim's age. At the close of all evidence, Dowdy renewed these motions without presenting any additional argument. The circuit court denied the motions for directed verdict. After deliberation, the jury returned guilty verdicts on all counts and sentenced Dowdy as previously stated. After this appeal was lodged but prior to submission of the case, Sandy Dowdy notified this court that Dowdy died. On December 18, 2014, we granted her petition to proceed with the appeal.[1]

On appeal, Dowdy contends that the circuit court erred in denying his motions for directed verdict. He also contends that the circuit court erred in admitting the testimony of the Rule 404(b) witnesses and the testimony of Lea Ann Vanaman.

II. Standard of Review

A motion for directed verdict is treated as a challenge to the sufficiency of the evidence. Lamb v. State, 372 Ark. 277, 280, 275 S.W.3d 144, 147 (2008). Double-jeopardy considerations require this court to review his directed-verdict argument first. Id. at 279, 275 S.W.3d at 146. When a defendant challenges the sufficiency of the evidence that led to a conviction, the evidence is viewed in the light most favorable to the State. Stewart v. State, 362 Ark. 400, 403, 208 S.W.3d 768, 770 (2005). In reviewing a challenge to the sufficiency of the evidence, this court determines whether the verdict is supported by substantial evidence, direct or circumstantial. Morrow v. State, 2014 Ark. 510, at 4, ____S.W.3d ___. Substantial evidence is evidence forceful enough to compel a ...


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