FROM THE SCOTT COUNTY CIRCUIT COURT [NO. 64CR-14-104]
HONORABLE JERRY D. RAMEY, JUDGE.
AND DISMISSED IN PART; AFFIRMED IN PART
James Law Firm, by: William O. "Bill" James, Jr.,
Rutledge, Att'y Gen., by: Valerie Glover Fortner,
Ass't Att'y Gen., for appellee.
KENNETH S. HIXSON, Judge.
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. We reverse and dismiss in
part and affirm in part.
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.
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.
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.
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.
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.
Counts 1-10, Sexual Assault in the Fourth Degree
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
Counts 11 and 13, Sexual Assault in ...