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Raheem v. State

Court of Appeals of Arkansas, Division III

December 12, 2018

JAMEEL RAHEEM APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SECOND DIVISION [NO. 60CR-17-2098] HONORABLE CHRISTOPHER CHARLES PIAZZA, JUDGE

          Terrence Cain, for appellant.

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

          DAVID M. GLOVER, JUDGE

         Jameel Raheem was tried by the court and found guilty of the offense of third-degree domestic battering, a Class A misdemeanor. He appeals, contending 1) the trial court violated his Sixth Amendment right to confront a witness against him, Megan Simmons, and 2) without Megan's testimonial hearsay statements, there was no evidence to sustain his conviction, and therefore his conviction should be vacated and the State barred from trying him again. We affirm.

         Sergeant Scott Miles responded to a call at a Valero gas station on June 1, 2017, where he found Megan Simmons lying on the ground and in distress. She reported Jameel Raheem, her boyfriend, had hit her legs with the broad side of a machete and had tried to choke her. Raheem was arrested after a machete was found on the floor of a truck registered to him. Dr. Darren Flamik treated Megan after she was transported to the hospital. She told Dr. Flamik that Raheem was the one who had hit her with the flat side of a machete and choked her.

         As time for trial approached, it became clear Megan was not willing to testify. Raheem filed a motion in limine to prevent Sergeant Miles and Dr. Flamik from testifying. His motion focused on Confrontation-Clause violations in addition to arguments the testimony did not qualify as hearsay exceptions.

         At the outset of the bench trial, Megan was not present, and defense counsel asked the court to address the motion in limine, arguing that none of the hearsay exceptions applied and that not only did those exceptions not apply, but there was also a fundamental constitutional right to confront a witness the State was attempting to evade. The State countered that it was premature for the court to rule on the admissibility of the testimony from Sergeant Miles and Dr. Flamik without hearing the context and substance of the statements. The trial court concluded the State could put the witnesses on, and if there was an objection, defense counsel could make it at that time based upon who the witness was, the time frame, and the circumstances under which it was made.

         Sergeant Miles and Dr. Flamik testified about what Megan Simmons told them had happened to her on June 1, 2017. When the State presented Sergeant Miles, defense counsel objected, but strictly on hearsay grounds. No mention was made of the Confrontation Clause. The trial court overruled the objection, concluding that the testimony about what Megan told the officer fell under the excited-utterance exception to the hearsay rule.

         Similarly, when Dr. Flamik was testifying about what Megan had told him, defense counsel again objected based on hearsay. The argument focused on Rule 803(4)- statements made for the purpose of medical diagnosis and treatment. No mention was made of the Confrontation Clause. The trial court overruled the objection.

         When the State rested, defense counsel moved for a directed verdict, arguing the only testimony indicating Raheem caused injuries to Megan came from hearsay testimony. The trial court denied the motion, and Raheem then testified in his own defense. Defense counsel renewed the motion at the conclusion of Raheem's testimony, and it was again denied.

         As his second point of appeal, Raheem challenges the sufficiency of the evidence supporting the verdict. We address this issue first because of double-jeopardy concerns. Drennan v. State, 2018 Ark. 328__, S.W.3d__ . We note at the outset Raheem misstates the manner in which our court reviews such challenges. He basically contends that because the testimony of Sergeant Miles and Dr. Flamik should not have been allowed, without it there was not sufficient evidence to establish that he was the assailant. However, in reviewing sufficiency challenges, all the evidence, including that which may have been inadmissible, is considered in the light most favorable to the State. Britt v. State, 2015 Ark.App. 456, 468 S.W.3d 285. We examine all the evidence submitted before we address alleged trial error. Briggs v. State, 2015 Ark.App. 364, 465 S.W.3d 24. We review the evidence in the light most favorable to the State as the prevailing party and affirm if the conviction is supported by substantial evidence. Id. Substantial evidence is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resort to speculation or conjecture. Id.

Arkansas Code Annotated section 5-26-305 (Supp. 2017) provides in ...

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