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Duvall v. State

Court of Appeals of Arkansas, Division III

February 28, 2018



          Terrence Cain; and Thompson Law Firm, PLLC, by: Theodis N. Thompson, Jr., for appellant.

          Leslie Rutledge, Att'y Gen., by: Ashley Argo Priest, Ass't Att'y Gen., for appellee.


         A 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.

         I. Overview

         Pretrial. 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.[1]

         In 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.

         Duvall 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.

         II. Trial Testimony

         K.D.'s 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.

         K.D. 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.

         She 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 that visit.

         K.D. 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.

         T.D.'s 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.

         L.A.'s 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 the penitentiary.

         T.G.'s 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 anything.

         III. The ...

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