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Fukunaga v. State

Supreme Court of Arkansas

April 14, 2016

ALVIN T. FUKUNAGA, APPELLANT
v.
STATE OF ARKANSAS, APPELLEE

          APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT. NO. 60CR-12-284. HONORABLE BARRY SIMS, JUDGE.

         JEFFREY MARX ROSENZWEIG.

         DAVID ROBERT RAUPP.

         VALERIE GLOVER FORTNER.

         ATTORNEY GENERAL.

         RHONDA K. WOOD, Associate Justice. WYNNE, J., concurs.

          OPINION

          RHONDA K. WOOD, Associate Justice

         After a jury trial, Alvin Fukunaga was convicted of rape and sentenced to ten years in prison. He contends that he received ineffective assistance of counsel when his defense attorney failed to object to testimony that allegedly bolstered the victim's credibility. The circuit court rejected this claim. We affirm the circuit court's judgment.

         In March 2012, Alvin Fukunaga was charged with rape. His step-granddaughter had alleged that Fukunaga started sexually abusing her when she was twelve years old. At trial, the victim, then twenty-three, repeated these allegations and also testified that Fukunaga had raped her multiple times when she was sixteen. The victim also identified a mole on Fukunaga's upper thigh, something she noticed in the course of the abuse.

         A sheriff's deputy also testified. The deputy described, briefly, his experience investigating " hundreds" of sexual-abuse allegations. The deputy testified that it was " very, very difficult for [the victims] to bring out what has occurred to them because it was very traumatic to them." The deputy stated that, in his experience, abuse victims sometimes disclose the abuse long after the fact for fear of breaking up a family unit. Finally, in response to the prosecutor's inquiry whether " someone who suffers sexual abuse has repressed or they just bury deep down," the deputy responded as follows:

They do bury deep down. And, you know, during the interview process, I may mention something that will cause them to click and say, okay . . . you know what, that reminds me of something else. And so it depends on the interview also on how that is going. . . . My questions may cause them to recall something else that, you know, they have been held way deep down inside.

         Fukunaga's defense counsel never objected to this line of questioning. However, on cross-examination, the deputy admitted that he was neither a psychologist nor an expert on " the nature of memory."

         The jury found Fukunaga guilty. On direct appeal, our court of appeals affirmed his conviction. See Fukunaga v. State, 2014 Ark.App. 4. After the court of appeals issued its opinion, Fukunaga filed a petition for postconviction relief at the circuit court. Fukunaga argued that he received ineffective assistance of counsel because his defense counsel failed to object to the deputy's testimony. A hearing was held on the petition. There, defense counsel testified that he thought the deputy's testimony was admissible and, regardless, that he could " neutralize it on cross-examination." Counsel also noted that " as a general rule in my trial practice I try not to object very much at all . . . if I can get the same result through something other than an objection."

         The circuit court issued a written order denying Fukunaga's claim of ineffective assistance of counsel. Among other things, the circuit court held that defense counsel's failure to object was based on trial strategy and that his performance was therefore not deficient. Because this finding is not clearly erroneous, we affirm on this basis alone. SeeState v. Lacy, 2016 Ark. 38, at 4, 480 S.W.3d 856, ___ (" We do not reverse ...


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