APPEAL
FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. 72CR-17-657]
HONORABLE JOANNA TAYLOR, JUDGE.
King
Law Group PLLC, by: W. Whitfield Hyman, for appellant.
Leslie
Rutledge, Att'y Gen., by: Jason Michael Johnson,
Ass't Att'y Gen., for appellee.
OPINION
BRANDON J. HARRISON, JUDGE.
Chad
Graham was accused of engaging in sexual intercourse and
deviant sexual activity with his teenage daughter, D.C., on
multiple occasions in his Elkins, Arkansas, home and in his
Fayetteville, Arkansas, barbershop. A circuit court, sitting
as the trier of fact, convicted Graham of committing two
counts of rape and sentenced him to two concurrent
twenty-year terms of imprisonment in the Arkansas Department
of Correction.
On
appeal Graham does not challenge the sufficiency of the
evidence that the State presented or the circuit court's
finding of guilt. Instead, he argues that the court abused
its discretion when it admitted a photograph. The photograph
depicted a screenshot; and the screenshot was of text
messages that were stored on a separate cellular phone from
which the screenshot had been taken. Graham complains that
the cellular phone belonging to D.C., the victim, was in the
State's constructive possession and that the State's
failure to produce D.C.'s cell phone violated his
constitutional rights under the Fifth and Fourteenth
Amendments as applied by the United States Supreme Court in
Brady v. Maryland, 373 U.S. 83 (1963), and related
cases. He also claims that the circuit court should not have
referred to his daughter, D.C., as a "victim"
during the bench trial and that the circuit judge should have
recused from the case. We affirm the circuit court's
judgment.
I.
Graham
primarily challenges the court's decision to admit as
evidence State's exhibit no. 1, which is an 8 x 11 inch
piece of paper. Printed on that paper is what appears to be a
cellular phone's screen that displayed a text message. At
the top of the phone's screen (the one whose screen is
being photographed by a separate cell phone) appears
"Dad 4798718639." A third of the way down the
screenshot appears "Tue, 2016/07/26." On the left
side of the screenshot are lines that look like cracks across
a cell phone's physical screen or cover. Below the date
appear four text bubbles in alternating colors of yellow and
blue:
• "Want to make some money 2:59 AM" (yellow)
• "How 3:00 AM" (blue)
• "Let me inspect 3:01 AM" (yellow)
• "No 3:02 AM" (blue)
Graham argues that the exhibit was inadmissible for several
reasons and that he was "profoundly prejudiced" by
its admission during the trial.
Challenges
to the admissibility of evidence are left to the sound
discretion of the circuit courts, and we will not reverse a
circuit court's ruling on admissibility unless there has
been an abuse of discretion and a showing of prejudice.
Gulley v. State, 2012 Ark. 368, at 10, 423 S.W.3d
569, 576-77 (citing Davis v. State, 350 Ark. 22, 86
S.W.3d 872 (2002)). The abuse-of-discretion standard "is
a high threshold that does not simply require error in the
trial court's decision, but requires that the trial ...