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Bynum v. State

Court of Appeals of Arkansas, Division I

January 25, 2017

JAMES BYNUM APPELLANT
v.
STATE OF ARKANSAS APPELLEE

         APPEAL FROM THE SCOTT COUNTY CIRCUIT COURT [NO. 64CR-14-104] HONORABLE JERRY D. RAMEY, JUDGE.

         REVERSED AND DISMISSED IN PART; AFFIRMED IN PART

          The James Law Firm, by: William O. "Bill" James, Jr., for appellant.

          Leslie Rutledge, Att'y Gen., by: Valerie Glover Fortner, Ass't Att'y Gen., for appellee.

          KENNETH S. HIXSON, Judge.

         Appellant James Bynum appeals after he was convicted by a Scott County jury of ten counts of sexual assault in the fourth degree and two counts of sexual assault in the second degree. He was sentenced to serve a total of 1200 months in the Arkansas Department of Correction. On appeal, appellant contends (1) that the ten counts of sexual assault in the fourth degree should be reversed and dismissed as time-barred by the statute of limitations and (2) that the trial court erred in denying appellant's motion for directed verdict on counts one through ten, count eleven, and count thirteen.[1] We reverse and dismiss in part and affirm in part.

         There were three minor victims of appellant's sexual assaults, A.H., T.H., and C.P. A.H. testified that he was friends with one of appellant's sons, who is his age. A.H. stated that appellant had repeatedly sexually abused him between twenty and fifty times since he was the age of fourteen. Appellant was charged with ten counts of sexual assault in the fourth degree of A.H, Counts 1-10.

         T.H. testified that he was thirteen at the time of trial. He testified that he had been friends with another one of appellant's sons and that he had been living with appellant's family during the summer of 2013 for approximately four weeks. T.H. testified that during that time, appellant touched his "private parts" on two occasions-once in a hotel room during a vacation trip with appellant's family to Hot Springs and another at appellant's home on a recliner after he had fallen asleep on the recliner with appellant. Appellant was charged with one count of sexual assault in the second degree, Count 11.

         C.P. testified that he was twenty-four years of age at the time of the trial and that he was friends with one of appellant's sons. C.P. met appellant after he had begun playing basketball at the Boys and Girls Club when he was ten years old. C.P. also played basketball on appellant's team from age eleven through fourteen. During that time, C.P. would join appellant and other children on hunting trips, to gun shows, and to the zoo. C.P. testified that he woke up in the middle of the night at appellant's home to appellant touching him in his shorts and putting his hand on his "privates." C.P. testified that a second incident took place in a hotel room in Tulsa, Oklahoma, after having traveled for a gun show. He testified that he woke up on that occasion to appellant trying to perform oral sex on him. Appellant was charged with one count of sexual assault in the second degree, Count 13.

         Detectives Horatio Gonzalez and Alicia Gordon had been investigating the allegations made against appellant for over two years. Detective Gonzalez testified that he had interviewed many individuals during the course of the investigation. Officer Gary Klepper, a school-resource officer, testified that he knew appellant and was his friend. Officer Klepper explained that he had been involved in the investigation involving C.P. and that C.P. had told him that appellant made sexual advances on two separate occasions.

         Although appellant did not testify, he had numerous character witnesses testify on his behalf, including his wife, sons, and friends. After hearing all of the evidence presented at trial, the jury found appellant guilty of Counts 1-10 regarding A.H., Count 11 regarding T.H., and Count 13 regarding C.P. Appellant was sentenced to serve 72 months' imprisonment for each count of sexual assault in the fourth degree and 240 months' imprisonment for each count of sexual assault in the second degree, all to be served consecutively, for a total of 1200 months' imprisonment. This appeal followed.

         I. Counts 1-10, Sexual Assault in the Fourth Degree

         Appellant first alleges that the ten counts of sexual assault in the fourth degree against A.H. should be reversed and dismissed as time-barred by the statute of limitations. The ten counts of sexual assault in the fourth degree were solely in relation to allegations made by A.H. A.H.'s date of birth is in May 1989, and the statute of limitations for the prosecution of sexual assault in the fourth degree relevant at the time for these charges as set out in Arkansas Code Annotated sections 5-1-109(b)(2) and (h) (Supp. 2009) required prosecution within three years of his eighteenth birthday. See Ark. Code Ann. § 5-1-109(h)(12). Consequently, the State was required to prosecute appellant by May 26, 2010; however, charges were not filed until September 23, 2015. Clearly, the charges were filed over five years after the statute of limitations had expired. Although appellant failed to make a statute-of-limitations challenge before the trial court, the issue may be considered for the first time on appeal because it implicates a court's jurisdiction to hear the case and cannot be waived. See Dowdy v. State, 2015 Ark. 35; Leek v. State, 2012 Ark.App. 699. Because the State did not file charges for sexual abuse in the fourth degree in a timely manner, we must reverse and dismiss appellant's convictions for Counts 1-10.

         I. Counts 11 and 13, Sexual Assault in ...


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