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Whitney v. State

Court of Appeals of Arkansas, Division I

May 24, 2017



          David Hogue, for appellant.

          Leslie Rutledge, Att'y Gen., by: Pamela Rumpz, Ass't Att'y Gen., for appellee.

          MIKE MURPHY, Judge

         A Washington County jury convicted appellant James Whitney of eighteen counts of possession of child pornography in violation of Arkansas Code Annotated section 5-27-602 (Repl. 2013), and he was sentenced to consecutive thirty-year sentences on each conviction. On appeal, Whitney contends that sufficient evidence did not support his convictions and that transcripts of conversations occurring in a Yahoo chat room were improperly admitted at trial. We affirm.

         The charges came about when Whitney and Teena, Whitney's now ex-wife, got in a dispute requiring sheriff's deputies to be called. This incident led to the breakup of their marriage. Three days later, Teena called the deputies back to her house because she thought she saw Whitney driving by despite having a protection order in place. During this visit, Teena explained to the deputies that she saw child pornography on Whitney's computer and wanted the deputies to take his laptop. Five days later, Teena brought several other computers that she found in the house while packing to move out because she was concerned there might be child pornography on them as well. The state crime lab found more than twenty photographs of underaged nude females and Yahoo chat logs where Whitney had been conversing with other people over the Internet concerning sexual matters and requesting and offering pictures. These chats were graphic descriptions of Whitney sexually abusing his minor daughters with the cooperation of their mother.[1] The transcripts also established that Whitney was seeking to recreate the mother-daughter experience with a willing female and her underaged daughter.

         Teena testified first. She explained that the divorce was final and that nobody else had lived with them who would have had access to the computers since 2010. She also described signing a consent form to have the computers searched.

         Adam Wilson, the digital-evidence technician from the state crime lab, then testified that he had analyzed the computers. He explained how he had recovered the images and chats and how he had located Whitney's profile and username associated with the hard drive; and he testified to the date range of the images and chats he had recovered.

         Yvette Schrock, the detective in the child-crimes division, testified that she was assigned to the computer portion of the investigation. She explained that she had Teena sign a consent form to have the computers searched. Schrock testified that it appeared Whitney's intent was to receive and send pornographic images. She described the images found as pictures of "prepubescent females" who appeared to be under the age of eighteen.

         The first point on appeal is that there was insufficient evidence to support Whitney's convictions for distributing, possessing, or viewing matter depicting sexually explicit conduct involving a child.[2] On appeal, a motion for directed verdict is treated as a challenge to the sufficiency of the evidence. See Reynolds v. State, 2016 Ark. 214, at 3, 492 S.W.3d 491, 494. This court views the evidence in the light most favorable to the State and affirms if there is substantial evidence to support the verdict. Id. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Id. This court does not weigh the evidence presented at trial or assess the credibility of the witnesses, because those are matters for the fact-finder. Id. The trier of fact is free to believe all or part of any witness's testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id.

         Whitney first argues that the State failed to prove that he had actual or constructive possession of the computers because for an eight-day period his ex-wife had sole possession of the computers. However, the two computers that contained images of child pornography were found in a computer file that contained the name "Whitney" under "Documents and Settings." Additionally, testimony revealed that the images had been created in April and May 2010, and Teena testified that she and Whitney had lived alone since 2010 and that she had not used any of the computers since March 2010, after she had bought her own laptop. The jury was free to believe all or part of her testimony, and it chose to believe her.

         Whitney next argues that the State offered no evidence as to the actual ages of the children. Detective Schrock testified that each picture appeared to depict a prepubescent female, and the jury was provided with the pictures. The circuit court instructed the jury with the following, "In considering the evidence in this case, you are not required to set aside your common knowledge, but you have a right to consider all the evidence in the light of your own observations and experiences in the affairs of life." Because the jury was able to view the photos, taking into account the testimony and instructions, we hold that substantial evidence supported the verdict.

         The second point on appeal is that the circuit court erred in allowing the Yahoo chat transcripts to be admitted into evidence. A circuit court's ruling on relevancy and matters pertaining to the admissibility of evidence is left to the sound discretion of the circuit court and will not be reversed absent an abuse of that discretion. Sipe v. State, 2012 Ark.App. 261, at 10, 404 S.W.3d 164, 170. An abuse of discretion is a high threshold that does not simply require error in the circuit court's decision, but requires that the circuit court acted improvidently, thoughtlessly, or without due consideration. Id. Moreover, an appellate court will not reverse a circuit court's evidentiary ruling absent a showing of prejudice. Id.

         Whitney argues that the chats were not relevant to the charges because he was not charged with soliciting child pornography and that any probative value in the transcripts was outweighed by the prejudicial effect. The circuit court overruled Whitney's objection at the hearing, finding that the transcripts were relevant to "prove those items mentioned in ...

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