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Rogers v. State

Supreme Court of Arkansas

October 25, 2018

EDWARD DARNELL ROGERS APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT [NO. 60CR-16-721] HONORABLE HERBERT T. WRIGHT, JUDGE

          Hancock Law Firm, by: Sharon Kiel, for appellant.

          Leslie Rutledge, Att'y Gen., by: Adam Jackson, Ass't Att'y Gen., for appellee.

          KAREN R. BAKER, ASSOCIATE JUSTICE

         On July 12, 2018, in Rogers v. State, 2018 Ark. 242, 550 S.W.3d 387, we affirmed the convictions and sentences of appellant, Edward Darnell Rogers. On July 12, 2018, Rogers filed a petition for rehearing and the State responded. We grant the petition for rehearing and issue the following substituted opinion.

         In February 2015, Rogers, was charged with four counts of rape. The victims, L.W., twins Mi.B. and T.B., and Ma.B. were all under the age of eighteen at the time of the alleged offenses. On February 8, 2016, Rogers was convicted by a Pulaski County Circuit Court jury of three counts of rape and sentenced to an aggregate sentence of forty years in prison. Rogers timely appealed to the court of appeals, which reversed and remanded the matter to the circuit court. The State filed a petition for review, and on January 25, 2018, we granted the petition for review. Upon granting a petition for review, this court considers the appeal as if it had been originally filed in this court. Pack v. Little Rock Convention Ctr. & Visitors Bureau, 2013 Ark. 186, at 2-3, 427 S.W.3d 586, 588. On appeal, Rogers presents two issues: (1) There is insufficient evidence to support his rape convictions of Mi.B., Ma.B., and L.W.; and (2) the circuit court erred by not allowing Rogers to impeach L.W. with a crime of dishonesty.

         I. Facts

         In 2003, Tia Bryant moved to a neighborhood in North Little Rock. Bryant has five children -one adult son and four daughters. The adult son did not live with Bryant. Rogers already resided in the neighborhood-living with his mother across the street from Bryant. The two met and began dating. In 2006, Rogers moved into Bryant's home with her and her four daughters, L.W., twins Mi.B. and T.B., and Ma. B. All four girls testified that Rogers acted as a father to them, took them to and from school, to extracurricular activities, and bought clothes and food for them. All four girls testified that Rogers began touching them inappropriately when they were young teenagers. They each testified to multiple sexual encounters, in their early teens, that included penetration.

         At trial, the following evidence was presented. The State called T.B., who was seventeen at the time of the trial, and she testified that she first met Rogers in 2003 when he began dating her mother and eventually moved in with them. She testified that she and her siblings thought of Rogers as a father and called him "Daddy." T.B. further testified that when she was thirteen, Rogers started "kissing and rubbing" on her while she was watching television in the living room late one night when everyone else was asleep. She threatened Rogers that she would tell her mother, and he stopped. T.B. testified that several days after this incident, Rogers set up his blow-up mattress in the living room and asked her to come sit with him. T.B. testified that after kissing T.B. on her face and breasts, Rogers then went out to his car and retrieved a gold condom. T.B. testified that he laid her down on the mattress and penetrated her with his penis. She further testified that she asked Rogers to stop and that she was crying the entire time. T.B. testified that after it was over, Rogers wrapped the used condom in a piece of paper and threw it into the trash. T.B. testified that two or three weeks later, Rogers asked her to go grocery shopping with him, drove to a dead-end street, grabbed a condom from the glove compartment, and again raped her. T.B. testified that he also performed oral sex on her. T.B. testified that Rogers raped her on seven or eight other occasions in her living room, and the rapes stopped when she fifteen or sixteen years old. T.B. stated that she threatened to tell her mother, but Rogers told her that he would hurt her mother and then kill himself.

         T.B. further testified that she witnessed Rogers abusing her sisters. One night, she was sleeping in the top bunk of the bedroom that she shared with Mi.B. and Ma.B., and she saw Rogers performing oral sex on Ma.B. On a later date, when it was only T.B. and Mi.B. in the house, T.B. heard a "clapping noise" and saw Rogers in the living room having sex with Mi.B. as Mi.B. was bent over the sofa. T.B. also stated that Rogers had shown her videos of her older sister, L.W., and Rogers having sex with L.W. on the couch. T.B. stated that Mi.B. disclosed the rapes to their mother one afternoon after school in November 2014, and T.B. confirmed that it had happened to T.B. as well. T.B. stated that Rogers had moved to a nearby home in October 2013 and that the abuse stopped at that time, although the family continued to have some contact with him until the allegations of rape were disclosed in 2014.

         Next, the State called Ma.B., who was sixteen at the time of trial. She testified that Rogers began touching her inappropriately when she was twelve or thirteen. Ma.B. testified that the first time she was raped, she and her sisters were helping their mother clean a back room of the house and that she was told to go get the broom. When Ma.B. went into the living room, Rogers was masturbating, and he asked her to come over to him. He then grabbed Ma.B.'s hand, placed it on his penis, and told her to move it up and down. Ma.B. stated that a few days later, when no one else was at home, Rogers began kissing and touching her, then he raped her. She testified that he used a condom with a gold wrapper. Ma.B. testified that Rogers raped her at least five times, either in the living room, in her bedroom, or in his car. She stated that on at least one occasion, Rogers had come into her room at night and abused her while her sisters were present. Ma.B. testified that Rogers had also raped her and Mi.B. one time while they were all in the living room. Ma.B. stated that Rogers told her that if she told her mother about the abuse, "it would hurt her." Ma.B. testified she did not disclose the rapes until her sister Mi.B. told their mother. Ma.B. testified that she had loved Rogers and called him "Daddy" prior to the abuse and that she had no reason to lie about it.

         Next, the State called Mi.B., who was seventeen at the time of trial; she testified that Rogers had helped raise her and her sisters. Mi.B. testified that when she was thirteen, Rogers pulled out his penis and told her to touch it and she said no. On another occasion, Mi.B. testified that her sister had caught her watching pornography, and Rogers asked her if she wanted to do any of those things from the video with him - she told him no and left the room. Mi.B. testified that one night when everyone else was asleep, Rogers showed her videos of him having sex with different women, and he then proceeded to rape her on the blow-up mattress in the living room. Mi.B. further testified about other times when Rogers raped her on the couch in the living room and in his car with the seat reclined. She testified that there was a total of six to seven rapes over the course of two weeks. According to Mi.B., she had also witnessed Rogers having sexual intercourse with Ma.B. one night while Mi.B. was sleeping next to her. Mi.B. testified that she had told her mother about the abuse while they were in the car one afternoon. She stated that she did not tell her mother earlier because Rogers had threatened to kill himself and hurt her mother. Mi.B. admitted that she had recorded a video recanting the allegations and stating that her mother was just angry with Rogers because he had left her. However, Mi.B. claimed that she had made the video only because she thought she would get paid money and could help her mother, who was struggling financially. Mi.B. testified that she was lying in the videos but not at trial. She admitted on cross-examination that she would lie whenever she felt like it.

         The State also called Marlon Raglin, who knew Mi.B. through Raglin's cousin. Raglin testified that Mi.B. had a crush on him and admitted that he had encouraged her to make the video. He stated that he knew Rogers through Deshawn Ford, who lived with Raglin. Raglin claimed that it was actually his cousin and Ford who had pushed Mi.B. to make the video and who had helped her film it. Raglin denied that he had been offered anything from Rogers in return for encouraging Mi.B. to recant the allegations. Raglin testified that Mi.B. had told him long before she made the video that the rapes did not occur and had asked him what to do. Raglin testified that he had told her "to help the guy out."

         The State also called Detective Ashley Noel with the North Little Rock Police Department, who testified that she had investigated the allegations against Rogers. She testified that she did not collect any physical evidence from the house because of the length of time between the alleged acts and the filing of charges and because she would have expected to find Rogers's DNA on many items in the house given that he had resided there for years.

         The State called L.W., who was twenty-one at trial; she testified that Rogers had lived with her family off and on beginning when she was ten and that she thought of him as a father. She stated that when she was fourteen, Rogers raped her in her bedroom after school when no one else was at home. L.W. also testified about another occasion approximately one month later when he raped her on the couch in the living room. In total, L.W. stated that Rogers had raped her five or six times and that the abuse stopped during her senior year in high school. She testified that she did not see him abuse her sisters and that she did not tell her mother about the rapes until she asked about them in November 2014. L.W. testified that Rogers had threatened to kill her mother and himself if she told anyone.

         The State also called Dr. Kristen Long, an emergency room physician at Arkansas Children's Hospital, who testified that she examined T.B., Mi.B., and Ma.B. on December 1, 2014. Dr. Long testified that she did not perform a full genital exam on the girls because the alleged rapes had occurred more than one year prior.

         Finally, the State called Bryant. Bryant testified that she had dated Rogers and that he had moved in with her in 2003 or 2004. Bryant testified that Rogers was heavily involved in caring for the girls and that he treated them like daughters. In late 2013, Bryant stated that Mi.B. told her that Rogers had touched her and T.B. inappropriately. Further, Bryant testified that the girls did not disclose at that time that they had been raped. Bryant testified that she confronted Rogers about the alleged inappropriate touching, and he told her that he "had made a mistake" and that it "would not happen again." Bryant testified that soon after this, Rogers moved out of the house although the family continued to have contact with him. Bryant testified that in November 2014, Mi.B. disclosed to her that Rogers had raped her and her sisters and that this was the reason why Mi.B. had recently run away. Bryant testified that she talked to each of the girls, one on one, and that they all confirmed the abuse. Bryant further testified that on the following day, Bryant told Rogers's sister about the girls' disclosure, and they called Rogers on speaker phone from Bryant's car. Bryant stated that Rogers was remorseful and wanted to talk to her, so she went and met with him. Bryant testified that Rogers told her that he had been abused by a relative when he was a boy, and he then threatened to commit suicide. Bryant testified that she encouraged Rogers to turn himself in to the police, and she also warned his mother that he might harm himself. Bryant testified that later that day, after she had picked up the girls from school, Bryant took the girls to the police station where they made a report about the rapes. Bryant testified that the family had struggled financially after Rogers moved out, but she denied that she had encouraged her daughters to fabricate the allegations. Bryant testified that she was not surprised that Rogers picked Mi.B. to offer money in return for recanting her accusations because she was a "follower" and was easily influenced. Bryant further testified that her daughters had experienced a lot of difficulties in overcoming the abuse, including having to be hospitalized for mental breakdowns and suicidal thoughts.

         On behalf of the defense, Rogers's sister, Tamara Rogers, testified that she lived with her mother across the street from Bryant. Tamara understood that Rogers had moved out of Bryant's home only because there was no room once Bryant's son's family came to stay with them. Tamara testified that the Bryant family had continued to maintain a close relationship with Rogers until he was arrested on the rape charges. She confirmed that Bryant had told her about the rape allegations before notifying the police and that Bryant had phoned Rogers in her presence to confront him. However, Tamara testified that she listened to their entire conversation and that her brother did not ever admit to the allegations.

         Further, additional neighbors and family members of Rogers testified that they had witnessed him interacting with the girls, including in 2014 after Rogers had moved out of Bryant's home, and they testified that they had never noticed any unusual behavior either by the girls or by Rogers. All of these witnesses spoke highly of Rogers and were surprised by the rape charges. Comel Hackett testified that she knew Rogers and that she worked with L.W. at Target. Hackett stated that when she learned about Rogers's arrest, he asked L.W. if Rogers had raped her, and she told him "no."

         Finally, Rogers testified in his defense and denied the allegations. Rogers testified that he met Bryant in 2003 or 2004 and moved in with her after several years of dating. He testified that he was a father figure to the girls and denied ever having touched them inappropriately. Rogers testified that he had moved out in October 2013 because some of his money "went missing" and no one confessed to taking it. He testified that Bryant was angry with him for moving out but that, at first, their relationship continued. He also testified that he continued to maintain a relationship with the girls. Rogers stated that the weekend before he was arrested, he was across the street at his mother's house with his new girlfriend, and Bryant kept calling his cell phone. Rogers testified that when he finally spoke with Bryant, she told him to get that "bitch" away from her house. Rogers claimed that Bryant had the girls make up the rape charges because she was mad at him. Rogers testified in his defense and denied all of the allegations. He also testified that he moved out because someone was stealing money from him and that Bryant fabricated the accusations because she was jealous he was seeing someone else.

         Following deliberations, the jury convicted Rogers of three counts of rape against Ma.B., Mi.B., and L.W. He was found not guilty of raping T.B. The jury sentenced Rogers to twenty years' imprisonment for raping L.W. and Mi.B. and forty years' imprisonment for raping Ma.B., to be served concurrently. This appeal followed.

         II. Points on Appeal

         A. Sufficiency of the Evidence

         For his first point on appeal, Rogers contends that substantial evidence does not support his convictions and sentences. We treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Whitt v. State, 365 Ark. 580, 232 S.W.3d 459 (2006). When reviewing a challenge to the sufficiency of the evidence, this court assesses the evidence in the light most favorable to the State and considers only the evidence that supports the verdict. Gillard v. State, 366 Ark. 217, 234 S.W.3d 310 (2006). We will affirm a judgment of conviction if substantial evidence exists to support it. Id. Substantial evidence is evidence which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Ricks v. State, 316 Ark. 601, 873 S.W.2d 808 (1994). Further, circumstantial evidence may provide a basis to support a conviction, but it must be consistent with the defendant's guilt and inconsistent with any other reasonable conclusion. Edmond v. State, 351 Ark. 495, 95 S.W.3d 789 (2003). The credibility of witnesses is an issue for the jury and not the court. Burley v. State, 348 Ark. 422, 73 S.W.3d 600 (2002). 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. Id. Upon review, this court's role is to determine whether the jury resorted to speculation and conjecture in reaching its verdict. Ross v. State, 346 Ark. 225, 57 S.W.3d 152 (2001); Phillips v. State, 344 Ark. 453, 40 S.W.3d 778 (2001). Finally, "in rape cases, we have held that there is sufficient evidence to support a conviction if the victim gives 'a full and detailed accounting of the defendant's actions.' White v. State, 367 Ark. 595, 599, 242 S.W.3d 240, 249 (2006). Uncorroborated testimony of a rape victim is sufficient evidence to support a conviction. See Gillard v. State, 366 Ark. 217, 234 S.W.3d 310 (2006). Inconsistencies in the rape victim's testimony are matters of credibility that are left for the jury to resolve. See id. The jury may accept or reject testimony as it sees fit. See id." Ward v. State, 370 Ark. 398, 400, 260 S.W.3d 292, 294-95 (2007).

         Rogers was convicted of rape under Ark. Code Ann. § 5-14-103, which provides in pertinent part:

(a) A person commits rape if he or she engages in sexual intercourse or deviate sexual ...

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