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Ralston v. State

Court of Appeals of Arkansas, Division IV

March 13, 2019



          Dusti Standridge, for appellant.

          Leslie Rutledge, Att'y Gen., Pamela Rumpz, Ass't Att'y Gen., for appellee.


         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 ...

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