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McDaniel v. State

Court of Appeals of Arkansas, Division I

February 28, 2018

JASON MCDANIEL APPELLANT
v.
STATE OF ARKANSAS APPELLEE

         APPEAL FROM THE CLEVELAND COUNTY CIRCUIT COURT [NO. 13CR-15-42] HONORABLE DAVID W. TALLEY, JR., JUDGE

          Robison & Zakrzewski, P.A., by: Luke Zakrzewski, for appellant.

          Leslie Rutledge, Att'y Gen., by: Rebecca Kane, Ass't Att'y Gen., for appellee.

          RAYMOND R. ABRAMSON, JUDGE.

         A Cleveland County jury convicted Jason McDaniel of first-degree sexual assault of a minor victim, M.F., and sentenced him to 30 years' imprisonment in the Arkansas Department of Correction. McDaniel now appeals his conviction, arguing that the trial court erred by admitting evidence of prior sexual acts between M.F. and him. We affirm.

         McDaniel was initially charged with four counts of first-degree sexual assault of the same minor victim for two acts that occurred in June 2015 and two acts that occurred in July 2015. The first two counts were nolle prossed by the State because the alleged sexual acts occurred outside the Thirteenth Judicial District. McDaniel was subsequently charged in the second amended information with two counts of first-degree sexual assault for engaging in sexual intercourse and/or deviate sexual activity with the victim, M.F., on July 6 and July 8, 2015. He was convicted on the first count and acquitted on the second count.

         McDaniel filed a pretrial motion and an amended motion in limine asking the trial court to exclude evidence of sexual acts between him and the victim occurring in June 2015. In his motion, McDaniel argued that evidence of sexual contact with the victim outside the Thirteenth Judicial District, including communications between him and M.F. via social media and text messages before July, were irrelevant or, in the alternative, barred under Arkansas Rule of Evidence 403 because the evidence was more prejudicial than probative of the counts charged and would only serve to mislead the jury. In its response, the State argued that evidence of sexual acts between M.F. and McDaniel in June 2015 were relevant as the conduct involved the same victim and the same res gestae.

         Although it was evidence relating to uncharged crimes, the State argued that it was also admissible under the exception to Arkansas Rule of Evidence 404(b) because it was "proof of motive, opportunity, intent, preparation, plan, knowledge, and identity." The State further maintained that the probative value of the uncharged acts and communications between appellant and the victim outweighed the danger of unfair prejudice because appellant denied having sexual contact with the victim, and the "[t]ext or other social media messages referring to or suggesting sexual activities by a man in his 40s with a 14 year-old girl are highly probative when that man is alleged to have sexual contact with that girl within a short time period of those messages." The trial court agreed and denied McDaniel's motion in limine.

         McDaniel's sole argument on appeal is that the admission of the evidence only served to inflame the jury because it fueled his conviction and resulted in the jury's sentencing him to the maximum term of 30 years' imprisonment for first-degree sexual assault under Arkansas Code Annotated section 5-14-124 (Repl. 2013). That statute provides, in pertinent part, that a person commits first-degree sexual assault if he or she engages in sexual intercourse with a person who is not the actor's spouse and the victim is less than eighteen years of age at the time of the offense and the actor was in a position of trust or authority over the victim. See Ark. Code Ann. § 5-14-124.

         Evidence adduced at trial indicated that the victim was one of three children of a single mother, Melanie Fitzgibbon. Fitzgibbon testified that she met McDaniel through her children's sports activities. Her younger daughter and McDaniel's daughter were on the same basketball and softball teams. McDaniel served as the coach of both teams, and M.F. assisted him. During the spring and summer of 2015, Fitzgibbon worked as a substitute teacher and took courses to obtain a master's degree. McDaniel volunteered to help her during this time by giving her children rides to practices and games. He also took M.F. to physical-therapy appointments and would occasionally give her a ride home from school. Fitzgibbon testified that she trusted McDaniel and thought he was an upstanding citizen of the community.

         M.F. testified that on June 2, 2015, her mother gave her permission to go to lunch with McDaniel. After lunch, he drove M.F. to a logging road where they both removed their clothes and almost had sexual intercourse inside his truck. M.F. testified that she became scared so they stopped. Later that day, M.F. and McDaniel exchanged several text messages including the following in which M.F. explained why she was uncomfortable:

[M.F.]: I had 2 reasons why I was.
[McDaniel]: Why?
[M.F.]: Cause you didn't have a condom & I'm scared to death of getting pregnant cause my luck I know I would & I was scared mom was wondering where I was. So ...

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