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Harris v. State

Court of Appeals of Arkansas, Division III

October 31, 2018

DUAN JAMAL HARRIS APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL FROM THE MISSISSIPPI COUNTY CIRCUIT COURT, CHICKASAWBA DISTRICT [NO. 47BCR-17-64] HONORABLE CHARLES BRENT DAVIS, JUDGE

          Johnny Dunagin, for appellant.

          Leslie Rutledge, Att'y Gen., by: Pamela Rumpz, Ass't Att'y Gen., for appellee.

          ROBERT J. GLADWIN, JUDGE

         Appellant Duan Jamal Harris appeals his convictions of attempted rape and second-degree battery, for which he received consecutive sentences totaling 744 months in the Arkansas Department of Correction (ADC). He argues that evidence of swabs contained in a sexual-assault kit were admitted improperly at trial both (1) in violation of the Confrontation Clause and (2) without a proper chain of custody. We affirm.

         I. Facts

         On January 8, 2018, appellant was charged with rape in violation of Arkansas Code Annotated section 5-14-103 (Supp. 2017) and battery in the second degree in violation of Arkansas Code Annotated section 5-13-202 (Supp. 2017). The State also alleged that appellant was subject to an enhanced punishment pursuant to Arkansas Code Annotated section 5-4-501(c)(2) (Supp. 2017). He was accused of striking Kenneshia Wilson, then choking and attempting to rape her.

         At trial, Wilson testified that other than a brief conversation with appellant at the library and seeing him walk down the street, she had no relationship with him. She testified that on October 1, 2016, appellant entered her home and began physically assaulting her, including smashing her head into the refrigerator and repeatedly punching her in the face. Wilson stated that she tried to escape but that appellant prohibited her from leaving, dragging her away from the window by her hair. She testified that he attempted to have sex with her but was unable to obtain an erection. Wilson testified that she received a final blow to her forehead from appellant and lost consciousness.

         As part of a sexual-assault kit taken in this case, Amanda Frost took rectal, vaginal, and oral swabs from Wilson. Frost allegedly labeled the swabs and placed them in the sexual-assault kit, and the swabs subsequently were tested by the Arkansas State Crime Lab. Ultimately, the DNA on the rectal swab taken from the victim was matched to appellant within scientific certainty.

         The State attempted to introduce the swabs without calling Frost to testify, and appellant objected. Appellant asserted that the swab labels were hearsay and testimonial in nature, which entitled him to confront the witness who had taken and labeled the swabs before they could be admitted into evidence. He also objected on chain-of-custody grounds. The circuit court denied the motion, stating that it would permit testimony on the items in question and that "their admissibility would be determined later." When appellant renewed his motion, the circuit court ruled that the labels were not testimonial in nature and allowed admission of the swabs contained in the sexual-assault kit without testimony from Frost.

         The evidence in question was introduced, and the jury found appellant guilty of attempted rape and battery in the second degree. Appellant was sentenced pursuant to a sentencing order filed on January 22, 2018, to fifty years for attempted rape and twelve years for battery in the second degree, all time to be served consecutively, along with fines. He timely filed a notice of appeal on February 12, 2018.

         II. Standard of Review

         Circuit courts have broad discretion in deciding evidentiary issues, and their rulings on the admissibility of evidence are not reversed on appeal absent an abuse of discretion. Brigance v. State, 2018 Ark.App. 213, 548 S.W.3d 147. A de novo standard of review is applied to questions of ...


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