FROM THE LITTLE RIVER COUNTY CIRCUIT COURT [NO. 41CR-16-85]
HONORABLE TOM COOPER, JUDGE
Law Firm, by: Michael Kiel Kaiser and William O.
"Bill" James, Jr., for appellant.
Rutledge, Att'y Gen., by: Rebecca Kane, Ass't
Att'y Gen., for appellee.
F. WYNNE, ASSOCIATE JUSTICE.
James Friday appeals from his convictions for two counts of
rape for which he was sentenced to life plus forty years'
imprisonment in the Arkansas Department of Correction.
Appellant raises the following points on appeal: (1) the
evidence was insufficient to support either conviction; (2)
the trial court abused its discretion in denying his motion
in limine seeking to preclude reference to the prosecuting
witnesses as "victims"; (3) the trial court
erroneously closed the courtroom during voir dire in
violation of his fundamental right to a public trial; and (4)
the trial court abused its discretion in restricting his
cross-examination of witness David Hall about the
circumstances of his departure from a previous
law-enforcement job. Because appellant received a sentence of
life imprisonment, this court's jurisdiction is pursuant
to Arkansas Supreme Court Rule 1-2(a)(2) (2017). We affirm.
allegations arose in July 2016 while the victims, A.H. and
A.T., were attending a church camp. An investigation ensued,
and A.H. and A.T. were interviewed by the Crimes Against
Children Division of the Arkansas State Police. The State
charged appellant by felony information with two counts of
rape under Arkansas Code Annotated section 5-14-103(a)(3)(A),
engaging in sexual intercourse or deviate sexual activity
with another person who is less than fourteen (14) years of
age, which were alleged to have occurred on or about July 15,
2016, and one count of distributing, possessing, or viewing
matter depicting sexually explicit conduct involving a child,
first offense, under Arkansas Code Annotated section
5-27-602, which was alleged to have occurred on or about July
jury trial was held on June 26 and 27, 2017. A.H., who was
thirteen years old at the time of trial, testified that
appellant, her stepfather, began sexually abusing her when
she was five. The first time, he digitally penetrated her. He
continued and also "put his mouth on [her] girl
part"; she could not recall exactly how many times
appellant had touched her but stated that it was "a
lot." It usually occurred in her bedroom or in her mom
and appellant's bedroom, typically at night when everyone
else in the house was asleep. When A.H. was eleven, appellant
began penetrating her vagina and anus with his penis and also
making her "stick [her] mouth on his boy part."
A.H. also testified regarding text messages appellant sent
her and a video of her, made at appellant's direction,
walking across the hall wearing only a shirt. A.H. further
testified that appellant told her that if she ever told
anyone about what was going on, he would tell everybody that
it was her fault.
mother, Glenda Friday, testified that A.H. was four years old
when she and appellant met, and she testified to the
family's living arrangements and the couple's work
schedules. Glenda worked as a nurse and appellant did shift
work of varying schedules fifteen days out of the month. The
house that they lived in had the children's bedrooms on
one side and her and appellant's bedroom on the other.
She testified that when she told appellant there were
allegations that someone had molested A.H. and suggested that
it was him, he threatened to kill himself. Glenda further
testified that their sex life had gradually deteriorated and
that they had never had sex on the sheets that were collected
from A.H.'s room. She also stated that about six months
before the allegations came to light, she woke up at 5:00
a.m. and could not find appellant, although his truck was
there. After she looked for him and then went to the
bathroom, he appeared in the living room and told her that he
had fallen asleep in his truck.
who was fifteen at the time of trial, testified that A.H. is
her second cousin. She stated that when she was nine years
old and in the fourth grade, she attended school in Ashdown.
She testified that she spent the time between the end of
school and her parents' getting off work at Glenda and
appellant's house. While Glenda was at work and appellant
was the adult in charge of A.T., A.H., and A.H.'s older
sister, the girls usually ate something and then would
"all lay in his bed and play on [their] phones."
Appellant would "finger" her under the covers and
place her hand on his penis. On one occasion, he put his
mouth on her vagina and put his tongue inside her vagina.
evidence presented at trial also included testimony that bed
sheets recovered from A.H.'s bedroom contained sperm
cells that within all scientific certainty came from
appellant. A search of appellant's and A.H.'s cell
phones revealed a video on appellant's phone that
appeared to show A.H. walking across the hallway wearing only
a shirt. Deleted messages from appellant's phone to
A.H.'s phone included statements such as "I want to
kiss your tits and a BJ." In addition, a sexual-assault
nurse examiner testified that she had performed an exam on
A.H. on July 19, 2016. The nurse's findings were
consistent with the history that A.H. had given.
noted above, the jury found appellant guilty of both counts
of rape, and he was sentenced to life plus forty years'
imprisonment in the Arkansas Department of Correction. This
Sufficiency of the Evidence
first point on appeal, appellant argues that "[t]here
was not substantial evidence that either of the alleged
victims was under 14 years of age at the time of the alleged
offenses." He takes issue with the fact that there was
no evidence at trial regarding the date of birth of either
victim and also argues that A.T., who was fifteen at the time
of trial, was fourteen on the date of the alleged offense as
charged in the information, which was less than a year before
court reviews a motion for a directed verdict as a challenge
to the sufficiency of the evidence, and we will affirm the
circuit court's denial of a motion for directed verdict
if there is substantial evidence, either direct or
circumstantial, to support the jury's verdict.
Williamson v. State, 2009 Ark. 568, at 3, 350 S.W.3d
787, 789. Substantial evidence is evidence forceful enough to
compel a conclusion one way or the other beyond suspicion or
conjecture. Id. In reviewing the sufficiency of the
evidence, we view the evidence and all reasonable inferences
deducible therefrom in the light most favorable to the State,
without weighing it against conflicting evidence that may be
favorable to the appellant and affirm the verdict if it is
supported by substantial evidence. Id. In order to
preserve a sufficiency-of-the-evidence challenge on appeal, a
timely, clear, and specific motion for directed verdict must
be made to the trial court pursuant to Ark. R. Crim. P.
33.1(c). Here, appellant argued in relevant part as follows:
The defendant would move for a directed verdict on each count
of rape. The state has failed to meet their burden.
Specifically, they have failed to establish that the
defendant, Michael Friday, engaged in sexual intercourse or
deviate sexual activity with a person under the 14 - under 14
years of age. There was inadequate testimony as to the age of
the victims and the age of the victims at the time of the
alleged sexual intercourse or deviate sexual activity.
. . . .
Your Honor, it's the defendant's position there was
never established dates of birth. They --. And defendant
believes that's necessary to convict a person of rape
under the age of 14.
circuit court denied the motion, and the defense rested
without presenting any evidence.
well established that the uncorroborated testimony of a rape
victim alone is sufficient to sustain a conviction. See,
e.g., Ward v. State, 370 Ark. 398, 400, 260
S.W.3d 292, 294-95 (2007). Here, A.H. testified that she was
five years old when appellant began raping her, and A.T.
testified that appellant raped her when she was nine years
old. There is no requirement under the statute, and appellant
cites no authority for the proposition, that the birthdates
of the victims must be established at trial. As for his
argument that A.T. was fourteen on the date contained in the
felony information, that argument was not made below and is
therefore not preserved for appellate review. Ark. R. Crim.
P. 33.1 (2017); Cockrell v. State, 2010 Ark. 258, at
9, 370 S.W.3d 197, 202 ("[A] party cannot change the
grounds for an objection on appeal but is bound by the scope
and nature of the arguments presented at trial."). We
affirm on this point.
References to "Victims"
appellant argues that the trial court abused its discretion
in denying his motion in limine seeking to preclude reference
to the prosecuting witnesses as "victims." Prior to
trial, appellant filed a motion to preclude the State or its
witnesses from referring to A.H. and A.T. as
"victims." At a ...