United States District Court, E.D. Arkansas, Pine Bluff Division
PROPOSED FINDINGS AND RECOMMENDATIONS
JOE J. VOLPE, Magistrate Judge.
The following recommended disposition has been sent to Chief United States District Judge Brian S. Miller. Any party may serve and file written objections to this recommendation. Objections should be specific and should include the factual or legal basis for the objection. If the objection is to a factual finding, specifically identify that finding and the evidence that supports your objection. An original and one copy of your objections must be received in the office of the United States District Court Clerk no later than fourteen days from the date of the findings and recommendations. The copy will be furnished to the opposing party. Failure to file timely objections may result in a waiver of the right to appeal questions of fact.
If you are objecting to the recommendation and also desire to submit new, different, or additional evidence, and to have a new hearing for this purpose before either the District Judge or Magistrate Judge, you must, at the time you file your written objections, include the following:
1. Why the record made before the Magistrate Judge is inadequate.
2. Why the evidence to be proffered at the new hearing (if such a hearing is granted) was not offered at the hearing before the Magistrate Judge.
3. The details of any testimony desired to be introduced at the new hearing in the form of an offer of proof, and a copy, or the original, of any documentary or other non-testimonial evidence desired to be introduced at the new hearing.
From this submission, the District Judge will determine the necessity for an additional evidentiary hearing. Mail your objections and "Statement of Necessity" to:
A Faulkner County jury found Petitioner, Byron Kevin Beaver, guilty of three counts of raping his son between the dates of January 2010 and August 2011. (Doc. No. 6-4.) Mr. Beaver was sentenced to three consecutive thirty-year terms of imprisonment for a total of ninety years in the Arkansas Department of Correction. ( Id. )
He filed a direct appeal of his conviction raising the sole argument that there was insufficient evidence of penetration for the third count. Beaver v. State, 2014 Ark.App. 188 *1. The Court of Appeals affirmed, quoting the then-eight-year-old victim's testimony at trial:
I call that body part that I just touched there [a penis] the tenders. I use my tenders for going to the bathroom. I'm okay. When I say that [Petitioner] would touch my tenders, he would use his hand to touch my tenders, sometimes. There were other body parts that he would touch my tenders with. He would use his mouth. As to how he would touch my tenders with his mouth, he would go up and down with his mouth. When he would go up and down with his mouth, my tenders were in his mouth... This happened at my house, at the lake house... It happened in my room and my parents' [room]. When he would touch my tenders, when his mouth would be on my tenders, this would happen in the bed... It was just [Petitioner] and I in the room where this happened in my house. I remember it was at nighttime.
I have an Aunt Sherry... [Petitioner] touched me in Aunt Sherry's house. I remember I was in the bedroom at Aunt Sherry's house. When I was at Aunt Sherry's house, he would touch me the same way he did almost every time... There were other places besides Aunt Sherry's house and my lake house that my dad touched me. That was at the White River and the deer camp... I call that the bottoms. My dad touched me there. That happened at the White River only; that only happened at the White ...