FROM THE DREW COUNTY CIRCUIT COURT [NO. 22CR-15-58] HONORABLE
SAM POPE, JUDGE
Wesley Hall, Sarah M. Pourhosseini, Daniel N. Arshack, pro
hac vice, Nancy Rosenbloom, pro hac vice, and Amber
Fayerberg, pro hac vice, for appellant.
Rutledge, Att'y Gen., by: David R. Raupp, Sr. Ass't
Att'y Gen., and Ashley N. Louks, Ass't Att'y
Gen., for appellee.
M. GLOVER, Judge.
O'Hara Bynum was charged in Drew County Circuit Court
with the offenses of concealing birth and abuse of a corpse.
The circuit court granted Bynum's motion for directed
verdict as to the offense of abuse of a corpse. A jury, after
deliberating for only four minutes, convicted Bynum of
concealing birth, a Class D felony, and sentenced her to the
maximum sentence of six years in prison. Bynum appeals,
arguing the circuit court (1) erred in denying her motion to
dismiss, timely renewed as a motion for directed verdict,
both as a matter of statutory construction and constitutional
law; (2) abused its discretion in allowing discussion of
abortion, evidence of her abortion history, and evidence she
ingested medication before giving birth; and (3) erred in
allowing evidence of her purported admission during a
pretrial competency exam when competency was not an issue at
trial. We find merit in Bynum's argument that the circuit
court abused its discretion in allowing the discussion of
prior abortions, evidence of her abortion history, and
evidence that she ingested medication prior to giving birth;
therefore, we reverse and remand.
are no factual disputes. In early 2015, Bynum, a 37-year-old
divorced woman living with her mother, stepfather, brother,
and four-year-old son, T.B., outside of Monticello,
discovered she was pregnant. She believed her mother would
not allow her and T.B. to continue living in her home if her
mother learned Bynum was pregnant; therefore, Bynum did not
tell her mother about the pregnancy. However, Bynum told
friends, her attorneys, and her priest about the pregnancy
and of her intent to put the child up for adoption when it
March 27, 2015, when Bynum was more than thirty weeks
pregnant, she traveled to a hotel in Little Rock and met her
friends, Andrea Hicks and Karen Collins (the person whom she
wanted to adopt her baby), the next day. Driving to Little
Rock, Bynum ingested 44 casings from the drug Arthrotec,
which contained the drug Misoprostol; she believed the
Misoprostol would induce labor. Bynum's reasoning was it
was becoming more difficult to lie all the time, she was
getting larger, she was becoming attached to the baby, and
she was concerned she would not be able to give the baby up
if she carried it much longer. She claimed she was not trying
to hurt the baby but was just trying to safely deliver it.
Her plan was for Collins to take the baby to Children's
Hospital after delivery; however, Bynum did not go into labor
while in Little Rock. She returned home to Monticello, where
she ingested eight more Arthrotec casings. Then, on March 31,
2015, she learned from her attorneys, Sara Hartness and
Sandra Bradshaw, that Collins would not be able to adopt her
child due to domestic-abuse issues concerning her own
children and her ex-husband; that information did not
dissuade Bynum from pursuing other adoption alternatives with
went into labor in the middle of the night on April 1, 2015,
at her mother's mobile home. By herself, she delivered
the fetus, which was still in its intact amniotic sac, in the
bathroom after 3:00 a.m. She said although she called for her
brother, who was sleeping in the living room, he did not
answer, and she did not awaken any other person in the house.
According to Bynum, the baby did not move or cry, and she
concluded the baby was deceased. In her third interview with
Deputy Tim Nichols of the Drew County Sheriff's
Department, Bynum stated she placed the baby in plastic
sacks, put the bundle on a towel, cleaned up the bathroom,
and took the baby to her vehicle, where she placed it on the
front seat. She admitted she took those actions to keep her
mother from finding out about the birth. Bynum stated she
would have left the fetal remains in the bathroom if she had
"felt like getting kicked out of the house
immediately"; further, she placed the baby in the front
seat of her vehicle because her vehicle was parked in front
of the house and her mother always went out the back door.
recall of events was that she became lightheaded after
placing the baby in her vehicle, and she knew she could not
drive; so she went back inside and went back to bed. Her
mother awakened her a little after 6:00 a.m. Bynum got T.B.
dressed, and her mother took him to school. Bynum ate a bowl
of cereal and texted Hartness, who advised her to go see a
doctor. Bynum had to wait until 8:00 a.m., when the
doctor's office opened, to make an appointment; she
attempted to see two doctors, but was unable to secure an
appointment for that day with either of them. In the
meantime, Hartness called a funeral home and was advised to
have Bynum take the fetal remains to the hospital. Bynum
arrived at Drew Memorial Hospital at approximately 10:40 a.m.
on April 1. The fetal remains were subsequently examined by a
medical examiner at the Arkansas State Crime Lab, where it
was determined that the fetus was stillborn.
of the Evidence
appeal, a motion for directed verdict is treated as a
challenge to the sufficiency of the evidence. Stearns v.
State, 2017 Ark.App. 472, 529 S.W.3d 654. Our court
views the evidence in the light most favorable to the State
and affirms if there is substantial evidence to support the
verdict; only evidence supporting the verdict will be
considered. Id. Substantial evidence is evidence
forceful enough to compel a conclusion one way or the other
beyond suspicion or conjecture. Kauffeld v. State,
2017 Ark.App. 440, 528 S.W.3d 302. Our court does not weigh
the evidence presented at trial or assess the credibility of
the witnesses, as 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 evidence. Mercouri
v. State, 2016 Ark. 37, 480 S.W.3d 864. When reviewing a
sufficiency-of-the-evidence challenge, appellate courts
consider evidence both properly and improperly admitted.
Means v. State, 2015 Ark.App. 643, 476 S.W.3d 168.
Code Annotated section 5-26-203(a) (Repl. 2013) provides that
a person commits the offense of concealing birth "if he
or she hides the corpse of a newborn child with purpose to
conceal the fact of the child's birth or to prevent a
determination of whether the child was born alive."
argues Arkansas Code Annotated section 5-26-203(a) cannot
apply to the facts of this case because the statute
"does not criminalize a woman's choice to withhold
the fact of pregnancy or a stillbirth from her own mother,
" and the State "presented no proof of hiding or
prevention of the determination of whether there was a live
birth." Bynum argues she did not conceal the delivery of
her stillborn child, as she disclosed the fact she had
delivered the child by contacting her attorney via text,
seeking medical assistance, and taking the fetal remains to
the hospital within hours after the delivery, thereby
facilitating the determination that it was a stillbirth.
Bynum contends this statute seeks to punish people who seek
to permanently conceal a birth, not those who do not
immediately tell their mothers about a stillbirth. She
alleges that section 5-26-203(a) does not include a
requirement to report a stillbirth, much less prescribe a
time limit for doing so.
that sufficient evidence supports Bynum's conviction
under the statute. To support a conviction under this
statute, the State must prove that a person hid a
newborn's corpse with purpose (1) to conceal the fact of
the child's birth; or (2) to prevent a determination of
whether the child was born alive. One's intent or purpose
at the time of an offense, being a state of mind, can seldom
be positively known by others. Turner v. State, 2018
Ark.App. 5, ___ S.W.3d ___. Since intent cannot ordinarily be
proved by direct evidence, jurors are allowed to draw on
their common knowledge and experience to infer intent from
the circumstances. Id. Because of the difficulty in
ascertaining a person's intent, a presumption exists that
a person intends the natural and probable consequences of his
or her acts. Id.
Bynum admitted she hid her stillborn child from her mother
when she wrapped the child in plastic sacks, laid the bundle
on a towel, placed it in the front seat of her vehicle, and
locked the car. Bynum testified she knew her mother would not
see the stillborn child because her mother left the house
through the back door, not the front door, and Bynum's
vehicle was parked in front of the house. The statute does
not specify how long a newborn's corpse must be concealed
to be found guilty of this offense, nor does it provide for
the prospect that a person can conceal a birth by hiding the
corpse temporarily but then can be exempt from the
statute's dictates if he or she reveals the birth to a
person a few hours later.
the evidence in the light most favorable to the State, as we
must, we hold that the jury, as the finder of fact and the
assessor of witness credibility, could, on the evidence
presented, determine that Bynum purposely concealed the fact
of the child's birth when she hid the corpse of her
stillborn child in her vehicle, thus committing the offense
of concealing birth. Therefore, we affirm on this point.