FROM THE BENTON COUNTY CIRCUIT COURT [NO. 04CR-16-1589]
HONORABLE BRAD KARREN, JUDGE AFFIRMED
Pinnacle Law Group, by: Matthew A. Kezhaya, for appellant.
Rutledge, Att'y Gen., by: Adam Jackson, Ass't
Att'y Gen., for appellee.
W. GRUBER, CHIEF JUDGE
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
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.
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.
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.
Fifth Amendment Right
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.
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-
counsel objected, at which point both counsel approached the
Defense Counsel: Your Honor, similar to what-he just said it.
He said without [appellant] ...