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 ...