APPEAL
FROM THE NEVADA COUNTY CIRCUIT COURT [NOS. 50CR-16-121,
50CR-16-122, 50CR-16-123, AND 50CR-16-124] HONORABLE RANDY
WRIGHT, JUDGE
Joseph
C. Self, for appellant.
Leslie
Rutledge, Att'y Gen., by: Adam Jackson, Ass't
Att'y Gen., for appellee.
RITA
W. GRUBER, CHIEF JUDGE
This
case originated on September 26, 2016, when four felony
informations were filed against Timmy Dale Jester in the
Nevada County Circuit Court. In case No. CR2016-121, Jester
was charged with rape under Ark. Code Ann. § 5-14-103
(Supp. 2017) and second-degree sexual assault under Ark. Code
Ann. § 5-14-125. Jester was charged with second-degree
sexual assault under Ark. Code Ann. § 5-14-125 in case
Nos. CR2016-122 and CR2016-124. In case No. CR2016-123,
Jester was charged with rape pursuant to Ark. Code Ann.
§ 5-14-103. Each case involved a different victim who
was alleged to be less than fourteen years old. Before trial,
the circuit court granted the State's motion for joinder
of the cases for trial.
A
Nevada County Circuit Court jury convicted Jester of one
count of rape in violation of Ark. Code Ann. § 5-14-103
and three counts of sexual assault in the second degree in
violation of Ark. Code Ann. § 5-14-125. He was sentenced
to 300 months' imprisonment for the rape conviction and
60 months' imprisonment on each of the sexual-assault
convictions. The circuit court ordered the sentence for the
rape conviction to run consecutively to one of the sentences
for sexual assault, and the other two sexual-assault
sentences were to run concurrently with those sentences.
Pursuant
to Anders v. California, 386 U.S. 738 (1967), and
Arkansas Supreme Court Rule 4-3(k)(1) (2017), Jester's
attorney has filed a motion to be relieved as counsel
alleging that this appeal is without merit. Counsel also
filed an accompanying no-merit brief containing an abstract
and addendum of the proceedings below. In the brief, counsel
includes all potentially adverse rulings and explains
"why each adverse ruling is not a meritorious ground for
reversal." Ark. Sup. Ct. R. 4-3(k)(1).[1] On December 27,
2017, Jester filed pro se points for reversal primarily
alleging that each of the four alleged victims was lying. On
September 6, 2018, Jester filed additional pro se points
adding ineffective-assistance-of-counsel arguments as well as
arguments that no DNA evidence was introduced, that the
alleged victims were all coached by the same child-advocacy
person and gave almost the exact testimony, and that opinions
of the alleged victims and their families were shared with
the public on social media. The State has filed a brief in
response to each set of Jester's pro se points as
required by Rule 4-3(k)(3).
In
compliance with the directives of Anders and Rule
4-3(k)(1), counsel for Jester contends that he has thoroughly
reviewed the record in this case and has found no error that
would support an appeal. As required by Rule 4-3(k), the
reasons the adverse rulings provide no meritorious grounds
for appeal are discussed in the brief. Counsel has abstracted
and briefed all adverse rulings, which included adverse
rulings during jury selection, adverse evidentiary rulings,
the denial of the directed-verdict motion, and the denial of
the motion for new trial.
In his
original pro se points, Jester argues how each of the four
victims lied in her testimony. In its response, the State
fairly characterizes Jester's pro se points as a
challenge to the sufficiency of the evidence. The State
contends that a challenge to the sufficiency of the evidence
is not preserved for appeal because he failed to make a
specific directed-verdict motion at trial. In order to
challenge the sufficiency of the evidence on appeal, a
specific directed-verdict motion identifying the elements not
proved by the State must be made at both the close of the
State's case-in-chief and at the close of all the
evidence. See Ark. R. Crim. P. 33.1; Eastin v.
State, 370 Ark. 10, 15, 257 S.W.3d 58, 62-63 (2007).
Alternatively, the State responds that there is sufficient
evidence to support the convictions, noting that Jester's
allegations that the victims lied goes to the credibility of
each victim's testimony and that the testimony of the
victim describing the sexual contact need not be corroborated
and is enough to sustain the conviction. See Jeffries v.
State, 2014 Ark. 239, at 5, 434 S.W.3d 889, 893
("[I]t is the function of the jury, not the reviewing
court, to evaluate the credibility of the witnesses and
resolve any inconsistencies in the evidence."); see
also Europe v. State, 2015 Ark.App. 460, at 4, 468
S.W.3d 792, 795 (stating the principle that the
uncorroborated testimony of a rape victim, which is
sufficient to support a conviction if the testimony satisfies
the statutory elements of rape, also applies to sexual
offenses other than rape).
In his
additional pro se points, Jester makes nine allegations. In
its response, the State accurately notes that six of the
points involve allegations of ineffective assistance of
counsel.[2] Claims of ineffective assistance of
counsel will not be considered on direct appeal unless the
issues have been considered by the circuit court. Gordon
v. State, 2015 Ark. 344, at 4, 470 S.W.3d 673, 675. In
the remaining three points, Jester contends that no DNA
evidence was introduced, that the alleged victims were all
coached by the same child-advocacy person and gave almost the
exact same testimony, and that opinions of the alleged
victims and families were shared with the public on social
media. The State responds that the three remaining arguments
were not argued in the circuit court and are thus not
preserved for appeal. The law is well settled that to
preserve an issue for appeal, a defendant must object at the
first opportunity. Id. The State contends that to
the extent Jester's assertion that no DNA evidence was
introduced is a challenge to the sufficiency of the evidence,
it previously addressed the issue in response to Jester's
original points and which we addressed above. Finally, the
State also asserts that Jester does not allege a trial error
occurred in regard to his pro se point that the opinions of
the victims and their families were shared with the public on
social media and further that Jester's counsel objected
to and successfully removed jurors who had been influenced by
social media, as addressed in counsel's no-merit brief.
We agree with the State that Jester's pro se points do
not support an appeal because they are either not preserved
or do not support reversal.
The
test for filing a no-merit brief is not whether there is any
reversible error but whether an appeal would be wholly
frivolous. House v. State, 2015 Ark.App. 280. Based
on our review of the record and the brief presented, we find
that there has been compliance with Rule 4-3(k) and that
there is no merit to an appeal. We also conclude that there
is no merit to Jester's pro se points. Consequently, we
grant counsel's motion to withdraw and affirm the
convictions.
Affirmed;
motion to withdraw granted.
Gladwin and ...