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Friday v. State

Supreme Court of Arkansas

November 29, 2018

MICHAEL JAMES FRIDAY APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL FROM THE LITTLE RIVER COUNTY CIRCUIT COURT [NO. 41CR-16-85] HONORABLE TOM COOPER, JUDGE

          James Law Firm, by: Michael Kiel Kaiser and William O. "Bill" James, Jr., for appellant.

          Leslie Rutledge, Att'y Gen., by: Rebecca Kane, Ass't Att'y Gen., for appellee.

          ROBIN F. WYNNE, ASSOCIATE JUSTICE.

         Michael 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.

         The 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 21, 2016.[1]

         Appellant's 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.

         A.H.'s 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.

         A.T., 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.

         The 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.

         As 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 appeal followed.

         I. Sufficiency of the Evidence

         For his 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 trial.

         This 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.

         The circuit court denied the motion, and the defense rested without presenting any evidence.

         It is 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.

         II. References to "Victims"

         Next, 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 ...


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