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Carter v. State

Court of Appeals of Arkansas, Division IV

January 30, 2019



          Gregory Crain, for appellant.

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

          KENNETH S. HIXSON, Judge.

         Appellant Eric Jamar Carter appeals after he was convicted by a Hot Spring County Circuit Court jury of rape and was sentenced as a habitual offender to serve a total of 480 months' imprisonment. On appeal, appellant contends that (1) the trial court erred by denying his motion for directed verdict; (2) the trial court erred in admitting evidence of prior rapes that he was alleged to have committed pursuant to Arkansas Rule of Evidence 404(b) (2017); and (3) the trial court erred in denying his motion for mistrial after the prosecutor spoke to members of the jury during a trial break. We affirm appellant's conviction but remand to the trial court with instructions to correct the sentencing order.

         I. Relevant Facts

         In summary, appellant was charged and subsequently convicted as a habitual offender for raping T.S., a thirty-one-year-old woman with learning disabilities and characteristics of autism spectrum disorder, in violation of Arkansas Code Annotated section 5-14-103 (Supp. 2017). Appellant had previously lived at T.S.'s address before she had moved to that address from Alaska. On April 20, 2016, appellant went to T.S.'s home around midnight, and she invited him inside. After she asked him to leave, he refused. He pinned T.S. to the sofa and held her arms behind her back as she yelled for him to leave. While he held her down over the sofa, appellant penetrated T.S.'s vagina from behind with his fingers and then his penis. T.S. additionally sustained an injury to her shoulder, and there was a bite mark on her right breast. T.S. subsequently reported the incident to police after her mother came from Alaska to check on her in June 2016.

         Before trial, the State filed a preliminary motion to determine the admissibility of testimony regarding two other rapes that appellant had allegedly committed in a similar manner. The State alleged that the testimony was admissible under Arkansas Rule of Evidence 404(b) as it was introduced as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Appellant filed a response alleging that the evidence was irrelevant, that the probative value was substantially outweighed by the danger of unfair prejudice, and that the alleged rapes were too separated in time, making them unduly remote and therefore inadmissible. A hearing was held on June 26, 2017.

         At the hearing, H.W. testified that appellant approached her on the evening of March 11, 2014, when she was walking home from work in Malvern, Arkansas. She had stopped to rest on the church steps because she was ill with bronchitis. Appellant demanded that she come with him, and when she refused, he grabbed her by the arm and forced her down the steps with him. H.W. explained that appellant dragged her across the street to a row of houses. At one point, appellant allowed her to answer her phone when one of her friends, Laycon Clark, called her. She was able to provide Clark with some detail to be able to find where she was by lying to appellant that she was giving her friend directions to someone else's home. Appellant subsequently took her into the mud room of one of the houses, pinned her against the wall, and penetrated her vagina with his fingers. After he pulled out a knife and warned her not to try anything, he released her arm and penetrated her vagina with his fingers a second time. When H.W. recognized Clark's vehicle passing by the house, she kicked appellant in the groin and escaped. H.W. testified that she waited until the next day to report the incident to law enforcement.

         Breanna Turner and Laycon Clark testified that they were H.W.'s coworkers and that they were looking for H.W. on the night of the incident. Turner explained that when she was driving home after work, she saw H.W. walking home. Although Turner attempted to get her attention, she was unable to do so. Instead, she called Clark to see if Clark had H.W.'s phone number so that she could offer H.W. a ride home. Later, Turner met up with Clark, and they both started driving around to find H.W. Clark testified that she eventually was able to reach H.W. on the phone. Thereafter, she was able to find H.W., and H.W. ran and jumped into her car. Clark observed that H.W. was breathing heavily and was very upset.

         Lieutenant Dorata Delacruz testified that he had participated in the investigation after H.W. reported the incident to law enforcement. Based on H.W.'s description of the man, law enforcement prepared a photograph lineup of six individuals, one of them being appellant. H.W. identified appellant as the man who had assaulted her. Lieutenant Delacruz testified that there were reports that H.W. occasionally had episodes of sleepwalking; however, H.W. testified that she was not asleep during her encounter with appellant. Lieutenant Delacruz further testified that he had interviewed appellant during the investigation. The video of that interview was played for the court and admitted into evidence.

         During that interview, appellant denied the allegations. At first, appellant told Lieutenant Delacruz that he did not see any girl on the night of the incident while he was exercising and walking in the area where the alleged incident had occurred. Later, however, appellant admitted that he saw a girl in a car who was looking for a friend. After he subsequently saw another girl during his walk, he told the second girl that he thought someone was looking for her. He further explained that the second girl walked behind him and had a conversation with him for a little bit. He denied grabbing the second girl and instead claimed that she ran off after he told her that he thought the people in the car and the police were looking for her.

         C.R. testified that she had reported to law enforcement that she had been raped by appellant in April 2014. She has an eye disease, keratoconus, and is unable to see very well. On the night of the incident, C.R. was at her apartment with her boyfriend, Tommy White, and her three children, who were asleep. Appellant, identifying himself as "Lazy," had walked down the street and started a conversation with them. Eventually, C.R. and White invited appellant inside. After thirty or forty-five minutes, White left to go to the store to buy cigarettes, and appellant left at the same time and started walking away. A few minutes later, C.R. answered the door after she heard a knock. C.R. testified that appellant was at the door. Although she told appellant to leave, appellant refused to do so and entered the apartment. Eventually, appellant pushed C.R. and pinned her down and bent her over onto a television stand. He pulled her pajama pants down and proceeded to rape her by first sticking his fingers and then his penis into her vagina. He fled the apartment when White's headlights appeared in the front window. Subsequently, appellant returned to the apartment, and White struck appellant with a flashlight. C.R. reported the incident to law enforcement the next morning. She admitted that she did not call law enforcement the night of the incident because they had been using drugs that night.

         White testified at the hearing and corroborated C.R.'s version of events. Furthermore, Trooper Kyle Sheldon and Sergeant Frazier Ford testified that they had investigated the incident after it was reported. Sergeant Ford testified that he had previously heard the nickname "Lazy" being associated with appellant. He presented a photograph lineup, and both White and C.R. identified appellant.

         Jessica Jackson, one of C.R.'s neighbors and appellant's cousin, testified that she did not believe C.R. had been raped. Her stories to law enforcement and to the court were ...

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