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Lewis v. State

Court of Appeals of Arkansas, Division IV

January 30, 2019



          Pinnacle Law Group, by: Matthew A. Kezhaya, for appellant.

          Leslie Rutledge, Att'y Gen., by: Adam Jackson, Ass't Att'y Gen., for appellee.


         This case returns to us after we ordered rebriefing. Lewis v. State, 2018 Ark.App. 433. Ronald Lewis was found guilty by a Benton County Circuit Court jury of one count of rape and two counts of second-degree sexual assault for sexual misconduct with two minor boys. The jury sentenced him to forty years' imprisonment for the rape and five years' imprisonment for each count of sexual assault, to be served consecutively to each other and to the rape conviction. Lewis does not challenge the sufficiency of the evidence but brings two points on appeal challenging the testimony of one witness, Det. Travis Monson. Lewis argues that Detective Monson's testimony regarding appellant's right to remain silent violated his right against self-incrimination and his testimony by remote video violated appellant's right to confrontation. We hold that there is no error requiring reversal, and we affirm his convictions.

         Because appellant does not challenge the sufficiency of the evidence, only a brief recitation of the facts is necessary. Appellant was close friends with Shannon and Tim Barnhart, parents of CB, one of the victims in this case. The Barnharts considered appellant, and appellant considered himself, to be a surrogate grandfather to CB. The second victim, BD, was CB's best friend. Appellant lived in Missouri, but he performed construction work for Tim Barnhart in and around Springdale, Arkansas, where the Barnharts lived.

         Sometime in 2013, appellant discovered that CB, who was around nine or ten years old at the time, played baseball, and appellant told the Barnharts that he would like to come see the games. Shortly thereafter, appellant began attending CB's games and later started spending the night with the Barnharts when there were early morning games or weekend-long tournaments, at first on the living room couch and later on a mattress on the floor in CB's room. CB and appellant began spending more and more time together fishing, bowling, miniature golfing, and pursuing other similar sporting activities. This went on for several years, and appellant continued to spend more and more nights in the Barnharts' home. Sometime in 2015, CB's brothers moved out of the house, and CB moved into the vacated room. Appellant, who by then spent most nights at the Barnharts' home, stayed in CB's old room. In the summer of 2016, the Barnharts noticed that CB's attitude toward appellant had changed. They testified that he did not want to be around appellant; he did not want to sit by him; and he no longer laughed at his jokes. When the Barnharts questioned him, CB initially denied that appellant had ever touched him inappropriately; however, that summer he eventually admitted to them that appellant had touched him inappropriately.

         CB later disclosed in an interview with a Springdale Police Department detective that he had known appellant for several years, trusted him, and considered him a "best friend." He described the incidents of sexual abuse to the Arkansas State Police child investigator and to the detective. CB also told the detective that BD had spent the night and that appellant had also touched BD inappropriately. BD admitted to the investigator and to the detective that appellant had touched him inappropriately. After a trial at which both of CB's parents, CB's uncle, BD's mother, two detectives, CB, BD, and appellant testified, a jury convicted appellant of one count of rape and two counts of second-degree sexual assault. Appellant filed this appeal.

         I. Fifth Amendment Right

         For his first point on appeal, appellant contends that his Fifth Amendment right against self-incrimination was violated by Detective Monson's comments during the detective's testimony on appellant's silence. The State had sought and obtained a search warrant to search appellant's phone for data, including text messages, photos, emails, files, internet history, and other information. Detective Monson performed the data extraction on appellant's phone. As this raises an issue of constitutional interpretation, our review is de novo. Swain v. State, 2015 Ark. 132, at 5, 459 S.W.3d 283, 285.

         At trial, Detective Monson testified that he is a forensic officer with the Springdale Police Department and was assigned to the Internet Crimes Against Children Task Force in Fayetteville. He said that his primary function was to do forensic examinations and reports on cell phones, computers, and other digital devices from which data could be extracted. He then explained the three methods he used in extracting the information- including a logical extraction, a file-system extraction, and a physical extraction-depending on the phone's make, model, and software. He testified that he had performed an "advanced logical" on appellant's iPhone and was able to retrieve some videos and photos but no text messages. He testified that once the report was completed, it prompted for the "encryption passcode." At that point, defense counsel asked to approach the bench, explaining that he was concerned the witness was going to violate appellant's Fifth Amendment right not to self-incriminate by testifying that appellant refused to provide the passcode associated with his iPhone. The prosecutor said that she did not intend to ask the witness whether he asked appellant to provide the passcode, and examination of the witness continued. Detective Monson explained that it was possible that he had not been able to view all the information on the phone because it prompted him for an encrypted password, which he did not have. He said that he was able to extract over 100 images of CB from the phone. The State introduced six of those photos into evidence. They included photos of CB doing homework, CB sleeping, and a close-up of CB's face. At that point, the following colloquy occurred:

Prosecutor: I want to talk just a little bit about we talked about [appellant's] phone and how it's possible that you may not be able to get deleted messages off of the phone. Is that true for all iPhones?
Witness: No. I mean, there is-there is a chance, a small possibility. But in the case with [appellant's] phone, and without giving up the encryption password, I was only-

         Defense counsel objected, at which point both counsel approached the bench.

Defense Counsel: Your Honor, similar to what-he just said it. He said without [appellant] ...

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