Beard v. State

2020 Ark. 62

594 S.W.3d 29

Anthony R. BEARD, Appellant

v.STATE of Arkansas, Appellee

No. CR-19-543

Supreme Court of Arkansas.

Opinion Delivered: February 13, 2020

Rehearing Denied March 19, 2020

Mark Alan Jesse, North Little Rock, for appellant.

Leslie Rutledge, Att’y Gen., by: Jacob H. Jones, Ass’t Att’y Gen., for appellee.

ROBIN F. WYNNE, Associate Justice

Appellant Anthony Beard was convicted of one count of rape and two counts of second-degree sexual assault and was sentenced to a term of life imprisonment plus forty years. On appeal, Beard argues that the circuit court erred in overruling his objection when an investigator testified that she found the allegations of sexual abuse were true and that the victims were credible. We reverse and remand for a new trial.

I. Facts

Beard and the mother of M.L. and T.M. were married in August 2008. While living in Perla, M.L. befriended another girl in the neighborhood, J.C. Among other jobs, Beard delivered newspapers and would occasionally take the children on his paper route. Beard and the mother of M.L. and T.M. divorced in early 2014. In September 2015, shortly after Beard picked up T.M. around her tenth birthday, T.M. told M.L., her mother, and her aunt that Beard had touched her inappropriately. After T.M. came forward with her allegations, M.L. came forward with allegations of similar conduct on the part of Beard. Jessica Bragg, an investigator with the Crimes Against Children Division of the Arkansas State Police, interviewed T.M. and M.L. at the Child Advocacy Center in Hot Springs. Bragg subsequently interviewed J.C. at the Child Advocacy Center. Beard was later charged with one count of rape by forcible compulsion of J.C., one count of sexual assault of J.C. when she was under the age of fourteen, one count of rape of T.M. when she was under the age of fourteen, and one count of sexual assault of M.L. when she was under the age of fourteen.

At the trial in December 2018, the State called Jessica Bragg as its first witness. During Bragg’s direct-examination testimony, the following exchange occurred:

[ PROSECUTOR ]: At the close of both of these investigations did you make a finding in both of them?

[ BRAGG ]: Yes, sir. I found true for all three victims—

[ DEFENSE COUNSEL ]: Your Honor, I'm going to object. Cox v. State .

(Bench conference)

THE COURT : Sir?

[ DEFENSE COUNSEL ]: She can't be telling these people (inaudible) telling the truth. I'm basing my objection on Cox v. State —

...

[ DEFENSE COUNSEL ]: Okay. I'm objecting to her telling the jury she got a true finding because that means these kids are telling the truth, and that’s not permitted by Cox v. State .

[ PROSECUTOR ]: She is required to make a finding. He did not ask her do you believe those children. He asked her what the factors are that determine whether or how she makes a finding. And that’s what she’s answered. It’s not—

THE COURT : Objection is premature. I'm overruling it.

[ DEFENSE COUNSEL ]: She made the statement that she found it to be true. That’s where Cox v. State comes in.

THE COURT : Over her investigation. But not on individual statement of the kids.

(End of bench conference)

THE COURT : You may proceed.

[ PROSECUTOR ]: I'll repeat my question. As to both of these investigations what were your findings?

[ BRAGG ]: My findings for [M.L.], [T.M.], and [J.C.], all three of them, I found true for sexual abuse.

[ PROSECUTOR ]: And what were the factors in these particular investigations that you used to determine a true finding?

[ BRAGG ]: All three of the girls, when they were interviewed at the Child Advocacy Center—

[ DEFENSE COUNSEL ]: I'm going to object, Your Honor.

THE COURT : What’s the basis of your objection?

[ DEFENSE COUNSEL ]: Cox v. State again, Your Honor. She’s fixing to go—

THE COURT : Well, Mr. Crain. You're premature. Hadn't even got to the point that you can raise [an] objection if they're making statements concerning the children. You understand the children will make their own statements, Mr. Davis. You understand that?

[ PROSECUTOR ]: Yes, sir.

THE COURT : You're deriving their testimony out of this witness, are you?

[ PROSECUTOR ]: No.

THE COURT : That’s what his objection is going toward, so.

[ PROSECUTOR ]: You can answer the question.

[ BRAGG ]: All three of the girls, they remained consistent in their interviews as well as detailed in their interviews and were very credible.

[ DEFENSE COUNSEL ]: Your Honor, I'm going to object. Cox v. State again.

THE COURT : Overruled.

[ DEFENSE COUNSEL ]: It’s also bolstering their testimony, Your Honor.

THE COURT : What, Mr. Crain?

[ DEFENSE COUNSEL ]: Bolstering their testimony.

THE COURT : Well, she’s using that based on her investigation, Mr. Crain. I know where you're trying to go, but it’s not directed to that potential witness. That’s what she did in her investigation and her findings from that.

[ DEFENSE COUNSEL ]: She’s saying what their interviews were, Your Honor. She’s saying that—

[ PROSECUTOR ]: She did not say anything they said in their interviews, Your Honor—

[ DEFENSE COUNSEL ]: She doesn't have to say anything she said—

[ PROSECUTOR ]: —she simply said that they made a disclosure.

[ DEFENSE

COUNSEL ]: She didn't have to say anything she said. She’s saying her—I need to do this out of the jury—

THE COURT : You need to reread that case. But I'm overruling your objection at this point in time.

The State also called the three victims to testify at trial. M.L. testified that she and J.C. would play a game with Beard called dungeon, in which Beard would take one of the girls to his room and tickle her. She testified that she saw Beard try to pull down J.C.’s pants on one occasion. M.L. also testified that Beard sexually assaulted or attempted to sexually assault her on three separate occasions: once at Beard’s friend’s house; once in Beard’s bedroom, where he pulled down her pants, put lubricant on his penis, and rubbed it against her; and once on his paper route, when he tried to pull down her pants.

T.M., M.L.’s younger sister, testified that Beard touched her inappropriately while playing the dungeon game. She testified that on one occasion, Beard placed her on all fours on the bed, pulled down her pants, applied a lubricant, masturbated, and attempted to put his penis in her rectum. T.M. also testified that he made her sit on his penis while they were on his paper route, adding that it would go in a little bit, she would start crying, and he would stop. T.M. testified that Beard picked her up one day around her tenth birthday. On that day, she testified that they went to his house, where Beard attempted to put his penis in her rectum.

J.C. testified that she and M.L. were friends when they were about eleven years old. J.C. testified that Beard would pull her into his bedroom and touch her while they were playing the dungeon game. She testified that on one occasion, M.L. banged on the bedroom door with a hammer in an attempt to get her out when Beard was trying to pull down her pants. J.C. also testified that when she was seventeen years old, she contacted Beard, seeking to help him with his paper route. She testified that Beard forced her to have sex on at least two occasions. J.C. became pregnant with his child, who was born in April 2016.

Beard testified in his defense and denied the allegations. Beard testified that the mother of M.L. and T.M. told the victims to falsify the allegations against him after he refused to rekindle their relationship. He also testified that the victims’ mothers colluded to get the victims to falsify the allegations after they discovered J.C.’s pregnancy.

Following deliberations, the jury convicted Beard of the rape of T.M., second-degree sexual assault of M.L., and second-degree sexual assault of J.C. The jury acquitted Beard of the charge of rape by forcible compulsion of J.C. Beard was sentenced to life imprisonment and an additional forty years. Beard timely filed his appeal.

II. Analysis

For his sole point on appeal, Beard argues that the circuit court abused its discretion by allowing Bragg to testify that she found the victims’ allegations of sexual abuse were true and that the victims were "very credible." The decision to admit or exclude evidence is within the sound discretion of the circuit court, and we will not reverse a circuit court’s decision regarding the admission of evidence absent a manifest abuse of discretion. Price v. State , 2019 Ark. 323, at 11–12, 588 S.W.3d 1, 8.

We have consistently recognized that an expert’s or a witness’s testimony opining or directly commenting on the truthfulness of a victim’s statement or testimony is generally inadmissible.

Montgomery v. State , 2014 Ark. 122, at 5–6, 2014 WL 1096052. The rationale behind this rule is that such testimony invades the province of the jury, which alone determines the credibility of the witnesses and apportions the weight to be given to the evidence. Id. at 6. It is erroneous for the circuit court to permit an expert, in effect, to testify that the victim of a crime is telling the truth. Hill v. State , 337 Ark. 219, 224, 988 S.W.2d 487, 490 (1999).¹

The State concedes that the circuit court erred in admitting Bragg’s testimony about the victims’ credibility. The only issue, then, is whether such error was harmless. This court will declare the error harmless and affirm the conviction when the evidence of guilt is overwhelming and the error is slight. Buford v. State , 368 Ark. 87, at 91, 243 S.W.3d 300, 303 (2006). To determine whether the error is slight, we will look to see if the defendant was prejudiced. Id.

In other cases involving sexual assault, when the main evidence supporting conviction was the victims’ testimony and statements, we have declined to hold that the admission of testimony regarding the victims’ credibility was harmless error. In Johnson v. State , 292 Ark. 632, 732 S.W.2d 817 (1987), we concluded that the admission of a doctor’s testimony that the victim was telling the truth was prejudicial error...