APPEAL
FROM THE BENTON COUNTY CIRCUIT COURT [NO. 04CR-16-1814]
HONORABLE ROBIN F. GREEN, JUDG E.
Dusti
Standridge, for appellant.
Leslie
Rutledge, Att'y Gen., Pamela Rumpz, Ass't Att'y
Gen., for appellee.
WAYMOND M. BROWN, JUDGE.
Appellant
appeals from his conviction by a jury of sexual assault in
the second degree and rape for which he was sentenced to a
total of fifty years' imprisonment in the Arkansas
Department of Correction. On appeal, he argues that (1)
appellee did not prove that he committed sexual assault in
the second degree against A.H., (2) appellee did not prove
that he committed rape against H.M., and (3) it was
reversible error for the circuit court to allow the testimony
of Officer Nick Torkleson. We affirm.
On
December 2, 2016, a criminal information was filed charging
appellant with one count of sexual assault in the second
degree on information that "[o]n or about various dates
in 2009-2010, [appellant] did engage in sexual contact with
A.H.', who was under the age of fourteen and was not
[appellant's] spouse." An amended criminal
information was filed on May 16, 2017, adding one count of
rape on information that "[o]n or about 2009-2010, in
Benton County, [appellant] engaged in deviate sexual activity
with 'H.M.', who was less than fourteen years of
age."
An
Arkansas Rule of Evidence 404(b) hearing was held on December
18, 2017, to determine whether certain testimony from
Nicholas Torkleson should be admitted. Torkleson, a former
detective with the Rogers Police Department, testified to an
incident occurring on September 28, 2009, when appellant was
stopped for driving down the road while masturbating.
Appellant initially denied masturbating while driving but
admitted that he had done so "not a very long time
later[.]" Appellant had explained that he was a gay man
who had moved to the area from Kansas City and that one of
his friends in Kansas City had told him that he could
masturbate while driving down the road to find potential
partners.
What
"stood out in [Torkleson's] mind" was
appellant's statement during that encounter that "he
was extremely sexually frustrated because he missed his two
boys who he had not seen in years." Torkleson found the
comment to be "pretty alarming" and "pretty
jarring[, ]" specifically that appellant's
"sexual frustration related to these boys."
"[A] short time" after appellant made the comment,
Torkleson expressed his concern to appellant that a kid could
see appellant exposing himself while driving down the road,
to which appellant "volunteered that he was not
attracted to children." Appellant did not tell Torkleson
of "any specific steps he took to try to avoid a child
view of him." Torkleson did not ask appellant how old
his kids were; he did not even know if appellant had kids.
Appellant
then testified that his "boys" were 31 and 36 in
2009 and that he stopped having contact with them after his
divorce in 1979. His sons were "little boys" when
he last had "meaningful contact" with them. The
circuit court then made the following ruling:
I find that the statement made during the traffic stop will
be admissible. I find that it is independently relevant and
that it has a tendency to make the existence of any fact that
is a consequence to determination of the action before the
Court more or less probable than it would be without the
evidence in that it shows motive and the defendant's
state of mind, it shows his sexual proclivity towards as he
referred to them as his missing boys.
Find this on the basis, one, gender, that it's of male
gender; two, he says missing his missing boys [sic], which
also sets out an age; and, three, that he links missing boys
with his sexual frustration. This is sufficiently similar to
charges for which the defendant is standing before this
Court, the rape and sexual assault of two
young boys, and for these reasons I find that the probative
value does outweigh the prejudicial impact and it is of
independent relevance; therefore, the statement made during
the traffic stop will be allowed.
The
trial in the matter was held on December 20, 2017.
H.M.
testified that appellant is his great uncle-his mother's
uncle-and that appellant lived with H.M. and his mother in
"like, 2009" when he was nine years old. Everyone
had their own rooms. The situation "just went downhill
really fast, though." H.M. testified to appellant coming
into H.M.'s room, turning off his radio, sitting on his
bed, and talking to him. What happened next followed:
[Appellant] would start touching my penis, like, after, like,
my underwear was around my ankles. When this happened I was
laying down in my bed. [Appellant] would be like in the
middle, slash, like the foot kind of [sic]. My mom was home
but she was asleep. I know because I could hear her snoring.
Me and mom's door- our rooms were next to each other.
[Appellant] would touch my penis with my clothes off. They
were around my ankles. I would put them down because he told
me to. When I say he, that is [appellant]. He would use his
hand to touch me. His hand would slightly go up and down
slowly. He didn't say anything to me when he would touch
me. When he touched me he has [sic] his clothes on. This
happened [one] time that I can remember. He told me not to
tell nobody or he would hurt me and my mom.
H.M.
also testified to "other things that [he] was not okay
with" such as when appellant "put his hand on
[H.M.'s] leg" or when appellant "put
[H.M.'s] penis in [appellant's] mouth and he would,
like, go up and down, kind of, too[.]" Appellant put his
mouth on H.M.'s penis only once. H.M. stated that his
clothes were around his ankles whenever appellant did these
things and that appellant would threaten to hurt H.M. and his
mother if H.M. told anyone. H.M. "didn't tell
anybody about [appellant] coming into [his] room until [he]
was in Vista Hospital. [He] didn't tell anyone because
[he] was scared [appellant] would actually hurt [H.M.] and
his mom" but he told at Vista Hospital (Vista) because
he "felt safer." Vista is a mental hospital where
H.M. received treatment in 2010. The first person H.M. told
what had happened was his therapist at Vista. H.M. was ten at
that time and "wasn't able to see this case through
because [he] was scared of seeing appellant."
H.M.
became aware of A.H. coming forward about allegations
involving appellant in 2014, but he did not learn it from
A.H. He did not talk to A.H. about what appellant did to him;
"[t]hat wasn't something that was talked about a lot
in [his] family." A.H. is the son of H.M.'s sister,
Sheena Mendoza. H.M. and his sister lived with their mother,
along with Sheena's children, among whom A.H. was
included. When H.M. learned about A.H. coming forward, he
felt that he "needed to do something[, ] but [he]
didn't know what to do." He eventually went back to
the Children's Advocacy Center (CAC).[1]
H.M.
also testified that he did not remember telling a Vista
counselor that appellant touched his penis with his mouth,
then qualifying that "[he] remember[ed] saying it, but
[he didn't] think it happened to be honest." He
"[didn't] believe" he told CAC workers that
appellant performed oral sex on him though he did tell the
same to the prosecutors. However, H.M. testified to having a
"bad memory" and that he was "not able to
remember exactly what [he] said in 2010 or 2014[,
]"[2] though H.M. unequivocally asserted that he
remembered appellant touching H.M.'s penis with his hand
and mouth in 2009. He "[did] not have any doubt"
regarding those memories.
A.H.
then testified. Appellant was someone A.H. would spend time
with when A.H. went to his grandmother's house when he
was in kindergarten. A.H. testified regarding his encounters
with appellant that things happened to him that were
"not okay with [A.H.]." Appellant would call A.H.
over to appellant's lap, then appellant would "touch
[A.H.'s] private part over [A.H.'s] clothes."
Regarding the specifics, A.H. testified:
I said when I would sit on [appellant's] lap he would
have a magazine. Like he would use, like, the magazine to,
like, cover it up so that nobody would see it and then, like,
just-I think, like, distract them or something, like, where
nobody would notice him touching my private parts. When he
touched my private parts he would use his hand. He was
touching my penis. He touched me on top of my clothes.
Sometimes there were other people in the room. They
weren't able to see. They wouldn't see he was
touching me because he was using a magazine, or, like, it
was, like, a newspaper, sometimes a magazine. This happened a
lot. . . . I never asked him to stop because I was, like, too
young and I wasn't -- my brain wasn't, like, knowing,
like, that's not good. I was in kindergarten and that
young age. I didn't understand what was exactly
happening.
I didn't tell anybody else about what [appellant] was
doing at that time. I just didn't know, like, that it
was, like, not good and not bad, but, like, it just
wouldn't cross my mind.
A.H.
did not disclose what happened to him until a couple years
before the trial, after he learned about what appellant had
done to H.M.; however, he and H.M. had not talked about what
happened "in depth or in detail" as they "try
to avoid" the topic. What appellant did "isn't
something [his] family talks about very often." What
appellant had done to A.H. "just came to him and [he]
realized it." A.H. first told his grandmother, who then
told A.H.'s mother, who spoke with A.H. when she arrived
home from work. A.H. later talked to someone at the CAC. A.H.
denied "[making] up this story so that [he] could get
out of trouble" the night he first brought the
allegations up.[3]
Cynthia
McAfee-niece of appellant, mother to H.M., and grandmother to
A.H.- confirmed that H.M. was nine when she and H.M. moved in
with appellant. She was only in the home "about a
month" before she moved out. During the time she lived
with appellant, she noticed a difference in H.M.'s
behavior, actually before they moved in, "probably
three, four months, into [appellant] coming visiting
[sic]." She noticed that H.M. was leaving the house
without telling her because "he was not wanting to come
home."[4] H.M. begged her "several times"
not to let appellant live with them; she thought H.M. did not
like that there was going to be a father figure in the house.
She learned that appellant had sexually abused H.M. from the
2010 investigation. She had not discussed the circumstances
of what happened between appellant and H.M. with A.H.; she
"[didn't] want to know."
Cynthia
observed A.H. getting into appellant's lap while
appellant was holding a book; she had seen A.H. get into
appellant's lap and look through magazines. She had had
"suspicions" of sexual abuse between appellant and
A.H., but A.H. would deny that anything had happened and run
off whenever she had asked him about it. However, she
recalled a particular argument between her and A.H.:
He yelled at me one time and said-me and him had got into an
argument and he said, "You'll never understand me,
mom." I said, "Why?" He goes, "It's
all because of [appellant]." I said, "Why? What do
you mean [appellant]?" He goes, "It's just
because of [appellant]," then he ran out the door and
was gone for about three hours. The argument was over he
didn't do his chores. He was supposed to do his chores
before he went out to play and he hadn't done them, and I
was trying to stop him from leaving.
Cynthia
never discussed A.H.'s allegations with H.M. H.M.
"was not able to see [his 2011] case [against appellant]
through." He had been strong, but started shaking and
said he "just [could] not do it" when he learned
that appellant would be in the same room as him during the
trial.
Sheena
Mendoza, mother to A.H., testified that A.H. was six years
old in 2009 depending on what time of year it was. At that
time, her mother-Cynthia-would take care of her children,
including A.H., while she worked. Appellant lived with
Cynthia during that time. At the time H.M. disclosed his
allegations against appellant, Sheena "wasn't aware
of anything involving" A.H. She questioned A.H., but his
answer was always no and she did not want to pressure him.
She reasoned that "[A.H.] was young, maybe he didn't
understand, and then [she] just let it go." But she
would ask again a few months later.
Sheena's
testimony confirmed how and to whom A.H. disclosed as well as
his going to speak with someone at the CAC. It also confirmed
Cynthia's testimony about how long Cynthia and H.M. lived
with appellant. Sheena "honestly [had] told A.H. that
[she didn't] personally want to hear all the
details"; she "[does not] ask a lot of
questions." The allegations H.M. made were "never a
big topic" of discussion between Sheena and Cynthia
"because [they] didn't want to talk about it."
They never talked about the allegations around the children.
Detective
Brian Hanna, with the Rogers Police Department, testified
that he investigated the hotline report of A.H.'s
allegations against appellant. A.H. was interviewed at the
CAC, which is a "neutral environment" where
children are "typically" taken; children are not
interviewed by law enforcement. Hanna observed the interview
on video. He formulated appellant as a suspect based on
A.H.'s interview. Hanna interviewed Sheena separately
from A.H., as well as H.M. In 2014, H.M. said he performed
oral sex on appellant, but not that appellant performed oral
sex on H.M. During his investigation, he learned that Sheena
had asked A.H. "repeatedly" about whether appellant
had done anything to him-which he found to be normal-however,
he asked her and Cynthia to refrain from talking to the kids
about the allegations to "protect the integrity of the
investigation[.]" Following Hanna's testimony,
Torkleson testified virtually identically to his Rule
404(b)-hearing testimony.
After
Torkleson's testimony, appellant moved for a directed
verdict and dismissal of the charges against him. Regarding
count one, sexual ...