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Mondy v. State

Court of Appeals of Arkansas, Division III

May 22, 2019

DAVID MONDY APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL FROM THE JOHNSON COUNTY CIRCUIT COURT [NO. 36CR-17-112] HONORABLE BILL PEARSON, JUDGE

          Brett D. Watson, Attorney at Law, PLLC, by: Brett D. Watson, for appellant.

          Leslie Rutledge, Att'y Gen., by: Adam Jackson, Ass't Att'y Gen., for appellee.

          LARRYD. VAUGHT, JUDGE

         David Mondy appeals his conviction by a Johnson County Circuit Court of two counts of second-degree sexual assault. We affirm.

         On April 19, 2017, a Clarksville kindergarten class was learning about "good touches and bad touches" when six-year-old Z.P. yelled out "my daddy tickles my private parts." Counselor Laura Hyden testified at Mondy's trial that she then spoke to Z.P. outside of class and, as a result of that conversation, called the child-abuse hotline to report possible abuse.

         Z.P. testified that Mondy is her mother's boyfriend and that although he is not her biological father, she calls him "daddy." She testified that Mondy touched her "private parts" with his hand and his mouth. She demonstrated what she meant by "private parts" and explained that the touching occurred at her house and at an apartment where they had previously lived. Z.P. also testified that she had seen Mondy's private parts, had seen him touch his penis (she demonstrated this gesture by moving her hand up and down with a closed fist), and had seen "water" or "soap" come out of his penis.

         Prior to trial, the State requested and was granted permission to introduce evidence that Mondy is a registered sex offender as a result of a conviction that occurred seventeen years before trial. However, on the day of Mondy's trial, his half-sister M.B., who had been the minor victim in the previous case, told the prosecutor that she did not remember the events that led to Mondy's conviction. She also stated that she and Mondy had reconciled and that she did not want to testify against him. The State nevertheless called her as a witness, and the court overruled Mondy's objection that it was improper for the State to call her knowing that she would deny knowledge of the previous incident. M.B. testified that she was not allowed to have any contact with Mondy for several years but stated that she did not remember making allegations that Mondy had engaged in sexual contact with her as a child.

         Mondy testified that he had not engaged in any sexual acts with Z.P. but worried that she had inadvertently seen explicit photos that Mondy and Z.P.'s mother exchanged on their phones. He admitted that he is a registered sex offender as a result of allegations of sexual impropriety that M.B. made against him seventeen years ago. He described the nature of those allegations and denied that they were true. He claimed that his 2001 conviction for a sex offense against M.B. was the result of "a bad custody battle" with M.B.'s mother. He also claimed that Z.P.'s mother had coached her to make false allegations against him after he had ended their relationship.

         Mondy also presented the testimony of his ex-wife, Martha Mondy, who stated that she did not have concerns about him being around their eleven-year-old daughter. He also called several other witnesses who testified that they know him well and had no concerns that he could do the acts Z.P. described.

         The jury acquitted Mondy of rape but found him guilty of two counts of second-degree sexual assault. Mondy requested alternative-sentencing instructions, which the court rejected. The jury recommended that he be sentenced to twenty years' imprisonment on each count, to be served consecutively, and the court entered that sentence. Mondy filed a timely notice of appeal.

         A person commits sexual assault in the second degree if that person, being eighteen years of age or older, engages in sexual contact with another person who is less than fourteen years of age. Ark. Code Ann. § 5-14-125(a)(3)(A) (Repl. 2017). A victim's testimony may constitute substantial evidence to sustain a conviction of rape or sexual assault, even when the victim is a child. Gatlin v. State, 320 Ark. 120, 895 S.W.2d 526 (1995). The victim's testimony need not be corroborated, nor is scientific evidence required. Id.

         The admission or rejection of testimony is a matter within the trial court's sound discretion and will not be reversed on appeal absent a manifest abuse of that discretion and a showing of prejudice to the defendant. Hamm v. State, 365 Ark. 647, 652, 232 S.W.3d 463, 468 (2006). An abuse of discretion is a high threshold that does not simply require error in the trial court's decision but requires that the trial court acted improvidently, thoughtlessly, or without due consideration. Harris v. State, 2018 Ark.App. 219, at 8, 547 S.W.3d 709, 714.

         Mondy first argues that Hyden was impermissibly allowed to describe inadmissible hearsay when she testified about Z.P.'s outburst at school and her subsequent conversation with Z.P. that led Hyden to call the child-abuse hotline. Mondy objected below to the testimony, and the State argued that it was not being offered for the truth of the matter asserted but was being introduced to provide the background and basis for Hyden's subsequent action of reporting Mondy for suspected child abuse. The court allowed the introduction of the testimony with a ...


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