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Pafford v. State

Court of Appeals of Arkansas, Division II

December 13, 2017

JAMES CARL PAFFORD APPELLANT
v.
STATE OF ARKANSAS APPELLEE

         APPEAL FROM THE HEMPSTEAD COUNTY CIRCUIT COURT [NO. 29CR-15-112] HONORABLE DUNCAN CULPEPPER, JUDGE

          Benca & Benca, by: Patrick J. Benca, for appellant.

          Leslie Rutledge, Att'y Gen., by: Karen Virginia Wallace, Ass't Att'y Gen., for appellee.

          Abramson and Brown, JJ., agree.

          MIKE MURPHY, JUDGE

         A Hempstead County jury convicted appellant James Pafford of two counts of rape and two counts of sexual assault in the second degree. Pafford was sentenced to twenty-five years' imprisonment in the Arkansas Department of Correction on each rape conviction, to run consecutively to each other, and five years' imprisonment on each sexual-assault conviction, to run concurrently with the rape convictions. Pafford timely filed a motion for new trial, and the circuit court denied the motion by order. From that order, Pafford appeals.[1] We affirm.

         A. Facts and Procedural History

         Pafford sexually abused then twelve-year-old M.W. on two occasions in February 2015. Both encounters took place at Pafford's home. M.W. confided in his grandmother and a child-abuse-hotline call was made. Because M.W. lived primarily in the same home as Pafford, the call was of high priority and M.W. was immediately interviewed. From there, the investigation continued and was handed over to the state police. Pafford was charged with two counts of rape and two counts of sexual assault in the second degree. On February 9, 2016, the case proceeded to a jury trial where the following testimony was taken.

         Odia Russette, a sexual-assault nurse examiner, testified as an expert witness that she examined M.W. pursuant to the sexual-assault allegation. She first took his assault history when M.W. explained that his "[uncle had] been messing with [his] private parts." He detailed the two incidents to Russette. She read the report from the assault-history portion of the exam to the jury:

On the night of the Super Bowl, he told me to go in the bathroom and get it hard and come back and show him. He started messing with it. He started jerking me off. Last Monday I was staying the night with them. He woke me up. He said come here and feel this. He went and got the white pump. . . . He used it to make his stuff, his private parts bigger. He didn't have any clothes on. He pulled my underwear down and started jacking me off and started sucking on it. Then, he started putting his stuff in my face and . . . it was purple and swollen.

         After she read the history, Russette testified that she performed a full head-to-toe exam and she opined that the results neither refuted nor confirmed the history.

         M.W.'s older brother, G.H., testified. He explained that the Paffords lived three or four houses down from their house and that they celebrated birthdays and holidays together. He testified that when M.W. and his mom were not getting along, M.W. would stay with the Paffords. G.H. said that Pafford told him he could come live with the Pafford family and that he would buy G.H. a truck when he got older. However, G.H. felt uncomfortable and did not want to be there because Pafford would show him "guys' stuff" on Pafford's phone. Another time, G.H. said that he was taking a shower in Pafford's shower that had a clear glass door and that Pafford walked in wanting to see his "stuff." G.H. also cited other conversations in which Pafford would bring up inappropriate sex talk like "[talking] about [G.H.'s] pecker growing a lot."

         James Hardman, now twenty-four years old and married with four children, testified that he used to work for the Paffords because he needed money to pay off a fine. Pafford gave him a $1500 advance, a truck, and a phone. The relationship turned sexual when Pafford asked Hardman to make a video exposing his genital area; Pafford would try to touch Hardman's private area over his clothes, and he would ask to suck Hardman's genitals. He also testified to an event where he, Pafford, and a woman were engaged in sexual activity. Hardman was at the house while one of the incidents between M.W. and Pafford took place but was unaware it was happening. He further testified that Carrie Harris, M.W.'s mom, shot him in the arm when she found out he was there. After he had been shot, he quit working for Pafford.

         Harris explained that the Paffords had taken care of her and her children by paying the house note, bills, and whatever else they needed. She said that on the night of one of the encounters, she picked up M.W. from Pafford's house and that he smelled like "sexual lubricant." She approached M.W. about the issue, but he became upset and said no. Harris expressed her concerns to her mother (M.W.'s grandmother) and the grandmother approached M.W. about the issue and he confided in her.

         Jamien Crozier, now thirty-five years old, testified that when he was a teenager he lived with the Paffords because he came from a broken home. Crozier noted multiple incidents in which he walked in on Pafford and Crozier's friend, Greg Fitcher, during sexual activity. He said he was about fifteen or sixteen when the first sexual act between him and Pafford happened. He explained,

[It] was almost every day that he was giving sexual advances. . . . [If] I came in and asked him for something, he always expected something in return. He would always say, "You owe me now." I'd have my shirt off, or something, in the game room, and he'd come over there and try to rub my back and it would steadily advance until I would say, "Get away from me, " or "I am not gay." He responded, "I'm not gay, either. This is what friends do for each other."

         Corwin Battle also testified for the State, explaining that he works for the Arkansas State Police and is a computer forensic certified examiner. He was called to investigate the claims against Pafford. He testified that the police decided they needed to apply for a search warrant due to M.W.'s allegations that things were photographed and that he was shown things on an electronic device. When the police executed the warrant, they came across a cell phone and retrieved a picture of Pafford's erect penis from the phone. The photograph was admitted but not published to the jury. Battle additionally identified a picture of sex toys that were seized during the search of Pafford's home.

         M.W. testified and corroborated the previous testimony. He identified Pafford in the courtroom as his "Uncle James." M.W. explained the two incidents in more detail. M.W. authenticated the picture that Battle had found on the phone by describing the penis as "swole up, " "purple and bruised, " and he recognized Pafford's body because he was "always in them white socks." The State then published the picture to the jury.

         The defense put on three witnesses. The first, Evonne White, had been Pafford's housekeeper for twelve years. She testified that she never saw or suspected any suspicious sexual activity. G.G., Pafford's grandson, testified that his maternal grandfather had never done anything of a sexual nature to him or, to the best of his knowledge, his friends. Lastly, Jamie Pafford Gresham, Pafford's daughter, testified that her parents were always helping people in need.

         After the jury found Pafford guilty of all counts, he acquired new counsel and timely moved for a new trial. Pafford's arguments in support of a new trial were that there was jury misconduct; that an expert should not have been permitted to testify as to the credibility of the victim and his allegations; and that the trial court erred in allowing the introduction ...


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