FROM THE CRAWFORD COUNTY CIRCUIT COURT [NO. 17CR-16-842],
HONORABLE GARY COTTRELL, JUDGE
Lisa-Marie Norris, for appellant.
Rutledge, Atty Gen., by: Christian Harris, Asst Atty Gen.,
J. GLADWIN, Judge
Appellant Lenin Alejandro-Alvarez appeals his convictions on
charges of rape and sexual assault in the second degree. He
argues that the circuit court violated his Sixth Amendment
Confrontation Clause right to confront his accuser. Although
we find merit in appellants argument that the circuit court
erred by allowing a substitute analyst to testify on the
"data analysis" he performed on the results of the
initial analysts work, we nevertheless affirm because this
error was harmless.
August 2016, appellant and his wife, Maria Carmen del
Rodriguez Hernandez (V.C.s biological mother), registered
V.C. for fifth grade at City Heights Elementary School in Van
Buren. During the registration process, V.C. told the
schools assistant principal, Aimee McCabe, that she was
pregnant. Ms. McCabe, a mandated child-abuse reporter, called
the child-maltreatment hotline. Van Buren police detective
Jonathan Wear subsequently observed an interview of V.C.
conducted at Hamilton House in Fort Smith by a sexual-assault
nurse examiner, Ruth Dudding.
Wear arrested appellant following the interview, and the
State charged him in an information filed September 19, 2016,
with rape (victim less than fourteen years of age) pursuant
to Arkansas Code Annotated section 5-14-103(a)(3)(A) (Supp.
2017), a Class Y felony; and sexual assault in the second
degree (with a person less than fourteen years of age)
pursuant to Arkansas Code Annotated section 5-14-125(a)(3), a
Class B felony.
V.C. gave birth to baby K. in January 2017, buccal swabs from
the cheeks of V.C., K., and appellant were collected by Melea
McCormick, another sexual-assault nurse examiner at Hamilton
House. Detective Wear picked up those swabs and delivered
them to the Arkansas Crime Laboratory for a paternity
determination. Appellant filed a notice under Arkansas Code
Annotated section 12-12-313(d)(2) (Supp. 2015) to compel the
presence at trial of any person who "performed any
analysis upon any evidence submitted by the State or law
enforcement, which is to be submitted as evidence against
[appellant]." The State ultimately disclosed Maddison
Harrell, a forensic DNA examiner with the Arkansas Crime
Laboratory, who served as the administrative reviewer of the
work of Julie Butler, the analyst who had performed the
paternity test but had moved to North Carolina before trial.
A motion in limine was filed regarding the proffered expert
witness, Harrell, the substitute analyst for Butler.
trial, the circuit court qualified Harrell as an expert in
forensic DNA analysis.
Harrell acknowledged that he did not perform the
"initial testing" on the buccal swabs—
meaning that he did not "perform the lab work" for
the case— which had been performed by Butler. Harrell
explained that he had performed a "data analysis"
on the results of Butlers work— he "looked at all
the data and did a complete comparison" between the DNA
found in K.s buccal swab and appellants buccal swab,
"just like I would with any other case." He
testified that he looked at the raw data and every piece of
documentation and conducted a complete review of everything
in the case. Harrell indicated that every step of Butlers
lab work was documented, including "where it was done[,]
... which reagents were used[,]" and the
"physical location" where each step in the process
took place. Harrell testified that he was able to determine,
through reviewing Butlers raw data, that Butler had
conducted the initial testing correctly. Harrell testified
that based on his raw-data review, he was able to come to his
own conclusion as to the results of the DNA analysis and that
he "reached the same conclusion that [Butler] did."
Harrell confirmed that he documented his findings in a
report, and that report was admitted into evidence over the
objection of appellants counsel. Harrells report contains
an attestation that reads, in pertinent part, that the
reports results "relate only to the items tested and
represent the interpretations/opinions of the undersigned
analyst." Harrells opinion was that appellant
"cannot be excluded as the biological father of [K.]
when you take into consideration the contribution of
[V.C.,]" that is, the matches between K. and appellant
on the DNA markers ...