FRANK P. CAMPBELL APPELLANT
STATE OF ARKANSAS APPELLEE
FROM THE CARROLL COUNTY CIRCUIT COURT, EASTERN DISTRICT [NO.
08ECR-14-92] HONORABLE SCOTT JACKSON, JUDGE
Anthony Pirani, for appellant.
Rutledge, Att'y Gen., by: Brad Newman, Ass't
Att'y Gen., for appellee.
MARK KLAPPENBACH, Judge
Frank Campbell was convicted of two counts of second-degree
sexual assault and one count of sexual indecency with a
child. The charges were based on allegations that appellant
inappropriately touched his two teenage stepdaughters (NB and
EB) and that he sent the younger stepdaughter (EB) a
fictional story about a sexual relationship between a
stepfather and stepdaughter. For these crimes, appellant was
sentenced to thirty years in prison. Appellant asserts two
points on appeal, contending (1) that the trial court abused
its discretion in permitting the jury to consider evidence of
messages and two stories that were sent electronically to EB
as well as a DVD recording of a police interview with
appellant; and (2) that there was insufficient evidence to
support his conviction for sexual indecency with a child. We
of an appellant's right to freedom from double jeopardy
requires a review of the sufficiency of the evidence before a
review of trial errors. Dillon v. State, 317 Ark.
384, 877 S.W.2d 915 (1994); Robinson v. State, 2016
Ark.App. 550, S.W.3d . In a challenge to the sufficiency of
the evidence, we review the evidence in the light most
favorable to the State and consider only the evidence that
supports the convictions. Cluck v. State, 365 Ark.
166, 226 S.W.3d 780 (2006). Evidence is sufficient if it is
of such character and force that it, with reasonable
certainty, compels a conclusion one way or the other without
resort to speculation or conjecture. Id. When
reviewing the sufficiency of the evidence, the court
considers all the evidence, whether admitted properly or
erroneously. Boyd v. State, 2016 Ark.App. 407, 500
S.W.3d 772. In order to preserve a challenge to the
sufficiency of the evidence in a jury trial, a criminal
defendant must make a motion for directed verdict at the
close of the evidence offered by the prosecution and at the
close of all the evidence. Ark. R. Crim. P. 33.1(a) (2016). A
motion for directed verdict shall state the specific grounds
therefor. Maxwell v. State, 373 Ark. 553, 559, 285
S.W.3d 195, 200 (2008). Without a circuit court ruling on a
specific motion, there is nothing for this court to review.
Id. Failure to abide by these procedural rules
renders any question of the sufficiency of the evidence
waived on appeal. Ark. R. Crim. P. 33.1(c); Bradley v.
State, 2013 Ark. 58, 426 S.W.3d 363.
person commits sexual indecency with a child if, being
eighteen years of age or older, the person solicits another
person who is less than fifteen years of age or who is
represented to be less than fifteen years of age to engage in
sexual intercourse, deviate sexual activity, or sexual
contact. Ark. Code Ann. § 5-14-110(a) (Repl. 2013). At
the conclusion of the State's case, appellant's
attorney argued to the trial court with regard to sexual
indecency that "[t]here are three counts of sexual
indecency with a child and we would assert there is
insufficient evidence for those three counts." No
specific element of the offense was challenged.
Appellant's attorney then argued that it was
"duplicative" to charge him with three counts
instead of a single count of sexual indecency with a child.
The trial court agreed with his argument on the
"duplicative" charges. The trial court denied the
motion for directed verdict on one count of sexual indecency
with a child. Appellant renewed his motion for directed
verdict at the close of all the evidence as to the single
count of sexual indecency with a child, adding that the State
had failed to prove "solicitation" where the story
sent to EB did not request or ask EB to do anything sexual.
appeal, appellant asserts that the State's evidence
lacked sufficient proof that he "solicited" EB, but
this argument is not preserved for appellate review. A motion
for directed verdict in a jury trial that is based on
insufficiency of the evidence must be made at the close of
the State's evidence and at the close of all the
evidence, and it must specify the respect in which the
evidence is deficient. Ark. R. Crim. P. 33.1(a). A motion
merely stating that the evidence is insufficient does not
preserve for appeal issues relating to a specific deficiency
such as insufficient proof on the elements of the offense.
Ark. R. Crim. P. 33.1(c). Rule 33.1 is strictly construed.
Pratt v. State, 359 Ark. 16, 194 S.W.3d 183 (2004).
An appellant must make a specific motion for a directed
verdict that advises the trial court of the exact element of
the crime that the State has failed to prove. Conley v.
State, 2011 Ark.App. 597, 385 S.W.3d 875.
Appellant's failure to make a specific motion for
directed verdict at the close of the State's case renders
this point not preserved for our review.
other point on appeal concerns the evidentiary rulings by the
trial court that permitted the State to introduce into
evidence a DVD of appellant's interview with the police,
the content of certain electronic messages, and the content
of two stories transmitted electronically to EB. We affirm
the discretionary rulings of the trial court.
review evidentiary rulings using an abuse-of-discretion
standard, and trial courts are afforded wide discretion in
evidentiary rulings. See Hawkins v. State, 348 Ark.
384, 72 S.W.3d 493 (2002). Our court will not reverse an
evidentiary ruling absent a showing of error and resulting
prejudice. Nelson v. State, 365 Ark. 314, 229 S.W.3d
appellant contends that, although the statements that he made
during his police interview recorded on the DVD were
admissible, the actual DVD recording constituted inadmissible
hearsay. Specifically, appellant argues in his brief that the
questions of the interviewer, the visual location of the
scene, and other sensory sights and sounds on the DVD
exceeded the scope of appellant's statements and
constituted inadmissible hearsay. We reject this argument for
several reasons. A trial court does not abuse its discretion
by admitting out-of-court statements that are not offered for
the truth of the matter asserted. Buchanan v. State,
315 Ark. 227, 866 S.W.2d 395 (1993). The interviewer's
questions were not offered for the truth of the matter
asserted but were questions to place appellant's
admissible answers into context. See Dirickson v.
State, 104 Ark.App. 273, 279, 291 S.W.3d 198, 202
(2009). In addition, a physical object is not a statement,
and it is therefore not subject to the hearsay rule. See
Taylor v. State, 88 Ark.App. 269, 197 S.W.3d 31 (2004).
The visual location of the scene of the interview and the
sights and sounds associated with the scene were not
statements and thus are not subject to the hearsay rule.
Moreover, appellant does not present any discernible
prejudice resulting from allowing the DVD into evidence when
his incriminating statements were conceded to be admissible,
and we do not reverse in the absence of demonstrated
appellant contends that the trial court abused its discretion
in permitting the State to ask EB about the contents of
emails or messages she received in relation to the explicit
stories sent to her. EB testified that the messages asked her
if she had any suggestions for the story, that the story was
about a stepdaughter having sexual fantasies that included
her stepfather, and that the story contained the use of
commas instead of periods in certain places indicating to her
that appellant was the sender. EB related that one message
asked her if she had any of her own fantasies. EB stated that
she no longer had the electronic messages because she deleted
them or the sender's account had been
deleted. Appellant objected on the basis that this
testimony went to the "controlling issue" on sexual
indecency with a child and was thus inadmissible without the
original documents. The State responded that the documents
were lost or destroyed and that Ark. R. Evid. 1004 permitted
this evidence to be admitted by other evidence of the
contents. The trial court permitted EB to testify about these
matters, and this ruling was not an abuse of discretion.
Rule of Evidence 1004(1) states that "[t]he original is
not required, and other evidence of the contents of a
writing, recording, or photograph is admissible if: . . .
[a]ll originals are lost or have been destroyed, unless the
proponent lost or destroyed them in bad faith." There is
no evidence, nor has it been alleged, that the police or the
State lost or destroyed the electronic communications or that
any loss or destruction was in bad faith, and as such, other
evidence of the contents was admissible. Dirickson,