Rehearing Denied March 27, 2019
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[Copyrighted Material Omitted]
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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, Atty Gen., by: Jason Michael Johnson, Asst Atty
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 courts
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
States constructive possession and that the States 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 courts judgment.
I.
Graham
primarily challenges the courts decision to admit as
evidence States exhibit no. 1, which is an 8 x 11 inch piece
of paper. Printed on that paper is what appears to be a
cellular phones screen that displayed a text message. At the
top of the phones 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
phones 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)
...