Graham v. State

          Rehearing Denied March 27, 2019

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          APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. 72CR-17-657], HONORABLE JOANNA TAYLOR, JUDGE

         King Law Group PLLC, Fort Smith, 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, 83 S.Ct. 1194, 10 L.Ed.2d 215 (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) ...