MICHAEL DUVALL, JR. APPELLANT
STATE OF ARKANSAS APPELLEE
FROM THE PULASKI COUNTY CIRCUIT COURT, SEVENTH DIVISION [NO.
60CR-16-3026] HONORABLE BARRY SIMS, JUDGE.
Terrence Cain; and Thompson Law Firm, PLLC, by: Theodis N.
Thompson, Jr., for appellant.
Rutledge, Att'y Gen., by: Ashley Argo Priest, Ass't
Att'y Gen., for appellee.
BRANDON J. HARRISON, JUDGE.
Pulaski County jury convicted Michael Duvall, Jr., on two
counts of rape, both against his daughter K.D. He was
sentenced to a total of sixty years' imprisonment; the
terms to run consecutively. He argues that the circuit court
erred in admitting the testimony of three witnesses under the
pedophile exception to Arkansas Rule of Evidence 404(b) and
that the State did not properly authenticate text messages it
used against him as evidence. We affirm.
In August 2016, the State filed a felony criminal information
charging Duvall with two counts of rape in violation of Ark.
Code Ann. § 5-14-103 (Supp. 2017). The State alleged
that Duvall engaged in sexual intercourse or deviate sexual
activity with K.D., a minor less than fourteen years of age,
on or about 1 January 2002 through 31 December 2010. The
second count alleged that Duvall engaged in sexual
intercourse or deviate sexual activity as a guardian of K.D.
on or about 1 March 2013 through 30 June 2013 when she was
less than eighteen-years-old.
March 2017, the State filed several notices of its intent to
use Rule 404(b) evidence and sought a pretrial ruling that
the testimony of L.A., T.D., and T.G. would be admissible
under the pedophile exception. It argued that evidence of
Duvall's prior acts of sexual misconduct would be
admissible to show his motive, intent, preparation, plan,
knowledge, absence of mistake, and any other relevant
purpose. The State said that L.A. would testify that in 1999
or 2000, when she was a minor residing in the same household
as Duvall, he showed her pornography and requested she take
her clothes off and allow him to look at her naked body. It
also alleged that L.A. performed oral sex on Duvall several
times over the course of a month. The State also stated that
T.D. is Duvall's biological daughter and that she would
testify that Duvall would often walk around naked and that in
2015 he requested that she take off her underwear and show
him her vagina over the FaceTime feature on her iPhone. The
proposed testimony of the third witness, twenty-one-year-old
T.G., was that when she was ten to twelve-years-old, Duvall
walked around naked in her presence and showed her a
pornographic movie. The State also said she would testify
that Duvall walked in on her once while she was showering and
touched her breast and buttocks.
filed multiple objections to the "late filed" Rule
404(b) notices and asked the court to exclude each of the
three witnesses' testimony for many rule-based and
constitutional reasons. During a pretrial hearing on 13 March
2017, the circuit court stated that it did not need to hear
from the three witnesses, that the State could use their
testimony, and that Duvall could cross-examine them and
"make proper objections at the time of their
testimony." The court also overruled Duvall's
detailed arguments, objections, and motions related to the
State's Rule 404(b) evidence.
Testimony. K.D., Duvall's daughter and the victim in
this case, was twenty years old at the time of the trial. She
testified that she lived primarily in North Little Rock with
her mother growing up but would visit Duvall on the weekends
when he lived in the area. She told the jury that when she
was approximately four-years-old and staying with her father,
he came downstairs without any clothes on and asked if she
wanted a peanut butter and jelly sandwich. K.D. said she
wanted a jelly sandwich, and her father lay on the floor and
put jelly on his penis and told her to lick it off. K.D. did
so but said that he pushed her head forcefully.
said it was normal for her father to walk around naked and
that he would shower with her when she was a child. She also
described events when her father made her stand naked in
front of a mirror while he would ejaculate on her, or she
would masturbate him. Duvall moved to Connecticut when K.D.
was around 11-years-old but would visit her in Arkansas.
During those visits, she said that she would stay in hotels
with her father where he would immediately take off his
clothes and masturbate. She would also visit him in
Connecticut where he performed oral sex on her.
testified that Duvall gave her a cellphone when she was in
eighth grade. He asked her to send him pictures, FaceTimed
her when she was getting in the bathtub, and would sometimes
tell her to do certain acts. She visited Duvall after he had
moved from Connecticut to Georgia when she was
fourteen-years-old. She said that he tried to insert his
penis in her vagina, that she told him it hurt, and he moved
off of her. She gave him massages while he was naked during
also described a visit Duvall made to North Little Rock when
she was sixteen-years old. She said that her father picked
her up from school and that they went to his hotel. He told
her to take her clothes off, face the television so he could
masturbate, and then inserted his finger into her vagina as
he performed oral sex.
Testimony. Seventeen-year-old T.D. testified that she is
Duvall's biological daughter but has a different mother
than K.D. She said that she would stay with Duvall in hotels,
and he would walk around naked all the time. From the time
she was ten-years-old until she was sixteen, he would have
her take off her top or bottoms to see how she was
"developing" after taking her swimming at the
hotel. T.D. testified that Duvall obtained and paid for her
cellphone. She complied with Duvall's request to see her
vagina over FaceTime. When she visited Duvall in Connecticut,
he walked in the room when she was taking a bath.
Testimony. L.A. testified that she is Duvall's
former sister-in-law, that he lived with her, her sister, and
her mother when L.A. was fourteen-years-old, which was
approximately seventeen years ago. She described Duvall's
asking her if she was a virgin and if she knew "what to
do" if she had a boyfriend. He showed her a video of her
sister performing oral sex on him and asked if he could teach
her how. She said yes, and he asked what her favorite type of
jelly was and then put strawberry jelly on his penis. He
complimented her that she was "better than [her] sister,
" and L.A. said that she had given him oral sex about
twenty times during the short time he had lived at the house.
He warned her not to tell anyone because he would end up in
Testimony. K.D.'s twenty-one-year-old cousin, T.G.,
testified that she and K.D. were around the same age and
spent a lot of time together when she was eleven or
twelve-years-old. She said that Duvall always walked around
naked and that the first time she went to his house, he was
naked and watching pornography and asked her to
"ejaculate him." She refused and walked on his back
instead. She also said that Duvall walked in while she and
K.D. showered, joined them, and washed them with a washcloth.
She said that Duvall gave her and K.D. money to not say