FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. 72CR-13-912]
HONORABLE MARK LINDSAY, JUDGE
Hogue, for appellant.
Rutledge, Att'y Gen., by: Pamela Rumpz, Ass't
Att'y Gen., for appellee.
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.
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. The transcripts also established that
Whitney was seeking to recreate the mother-daughter
experience with a willing female and her underaged daughter.
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.
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.
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.
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. 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
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.
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.
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.
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 ...