Brown v. State, CR 12–182.

2012 Ark. 399

424 S.W.3d 288

Bruce Wayne BROWN, Appellant,

v.STATE of Arkansas, Appellee.

No. CR 12–182.

Supreme Court of Arkansas.

Oct. 25, 2012.

Louis L. Loyd, Malvern, for appellant.

Dustin McDaniel, Att'y Gen., by: Kent G. Holt, Ass't Att'y Gen., for appellee.

DONALD L. CORBIN, Justice.

Appellant, Bruce Wayne Brown, appeals the judgment of the Garland County Circuit Court convicting him of the rape of B.B., his minor stepdaughter. As Appellant was tried and sentenced by a jury to a term of imprisonment for life, jurisdiction of his appeal is properly in this court pursuant to Ark. Sup.Ct. R. 1–2(a)(2) (2012). For reversal, he contends the circuit judge erred in not recusing and in making two separate evidentiary rulings. We find no error and affirm the judgment of conviction.

Appellant does not challenge the sufficiency of the evidence; therefore, we need not recite the evidence in detail. However, the following evidence is relevant to the issues presented on appeal. In June 2010, Appellant was charged by felony information with two counts of rape, with one count involving B.B. and the other involving G.B., his wife. The rape charge involving his wife was later nol-prossed. With respect to B.B., however, the information alleged that Appellant engaged in sexual intercourse or deviate sexual activity with his minor stepdaughter over the course of almost seven and one-half years from November 2, 2002, through April 27, 2010. The jury saw and heard testimony as well as scientific evidence. B.B. testified that Appellant used his penis and a dildo to penetrate her orally, vaginally, and anally on a weekly basis from the time she was ten until she was seventeen years old. B.B. stated that the first time Appellant raped her she was ten years old and was hospitalized for surgical repair to her vagina following that initial rape. She also testified that Appellant was in charge of disciplining her and used anal penetration as a form of punishment, leaving her bloody and incontinent. Arkansas State Crime Laboratory employees testified as to the results of the sexual-assault examination that was performed on B.B., as well as to the results of the scientific testing performed on items taken from the home where Appellant and his family lived. The employees testified that semen was found inside B.B.'s vagina, on her bed sheet and mattress, and on a blanket. They also testified that Appellant's DNA was found on the bed sheet and mattress. In addition, the jury also heard testimony from a registered nurse who was employed as a sexual-assault nurse examiner with Cooper Anthony Mercy Child Advocacy Center. The nurse testified that B.B. had a markedly abnormal exam, showing multiple occasions of penetrated trauma to her vaginal area. As noted, after finding Appellant guilty of rape, the jury sentenced Appellant to life imprisonment. Appellant timely filed this appeal, raising three points for reversal.

Appellant's first point for reversal is that the circuit court erred in denying his motion for the trial judge to recuse. Appellant moved for the recusal during a pretrial hearing on the State's motion to admit evidence under Rule 404(b) of the Arkansas Rules of Evidence. The request came just prior to the consideration of testimony from S.S., who ultimately testified at trial that when she was turning thirteen years old during the summer of 1991, Appellant had raped her while she was a guest of Appellant's brother's family on a camping trip at a nearby lake. The basis of Appellant's request for the trial judge's recusal was that the trial judge had served as a deputy prosecuting attorney on a case in 1991 in which Appellant had been charged with raping S.S. At the hearing, Appellant acknowledged that the charge had been nol-prossed, but argued that it would still be inappropriate for the trial judge to preside over a matter involving a case in which she had previously acted as a deputy prosecutor. Appellant requested that the trial judge recuse and that his case be reassigned to another judge that did not have knowledge of the witness S.S. or her particular case.

At the hearing, the trial judge stated that, even after seeing Appellant and S.S., she had no recollection of Appellant, S.S., or the 1991 case. The trial judge stated further that she felt she was not biased in any way because of that case, and thus denied Appellant's request that she recuse.

On appeal, Appellant maintains that S.S.'s testimony was clearly prejudicial, as the jury imposed the harshest penalty allowed by statute. Appellant argues that the refusal of the trial judge to recuse was therefore an abuse of discretion that prejudiced his right to a fair trial. He contends that the trial judge had a duty to recuse once she was made aware that she had been the deputy prosecutor in a previous case involving Appellant as the defendant and the prior victim as a potential Rule 404(b) witness in the present case.

Judges must refrain from presiding over cases in which they might be interested in the outcome, in which any party is related to them by consanguinity or affinity within such degree as prescribed by law, or in which they may have been counsel or have presided in any inferior court. Ark. Const. amend. 80, § 12. In the predecessor version of this constitutional provision, this court has interpreted the language “may have been of counsel” to be a reference to the case being tried. Jordon v. State, 274 Ark. 572, 626 S.W.2d 947 (1982) (interpreting Ark. Const. art. 7, § 20 (repealed by Ark. Const. amend. 80), and citing Bledsoe v. State, 130 Ark. 122, 197 S.W. 17 (1917)). Accordingly, this court has held that “it is not, in and of itself, error for a trial judge to preside over a case involving a defendant whom the judge previously prosecuted.” Irvin v. State, 345 Ark. 541, 553, 49 S.W.3d 635, 643 (2001).

Judges must also perform their duties impartially, without bias or prejudice. Ark.Code Jud. Conduct R. 2.2 & 2.3(A) (2012). Judges are presumed to be impartial, and the person seeking the recusal bears the burden of proving otherwise. Owens v. State, 354 Ark. 644, 128 S.W.3d 445 (2003). The trial judge's decision not to recuse is a discretionary one and will not be reversed on appeal absent an abuse of that discretion. Id. To decide whether there has been an abuse of discretion, this court reviews the record to determine if prejudice or bias was exhibited. Id.

Our review of the record reveals there was no bias or prejudice exhibited by the trial judge toward Appellant. Appellant argues, however, that simply bringing the judge's attention to what he asserts was a potential conflict, that she had once served as deputy prosecutor against him for a crime involving the potential Rule 404(b) witness, was enough to warrant recusal. This argument is without merit. As argued by the State and discussed in detail under Appellant's second point for reversal, the circuit court's ruling on the potential Rule 404(b) witness was a ruling well within the court's discretion. “The mere fact that some rulings are adverse to the appellant is not enough to demonstrate bias.” Gates v. State, 338 Ark. 530, 545, 2 S.W.3d 40, 48 (1999). Likewise, the mere fact that a judge previously prosecuted a defendant for a separate crime is not by itself grounds for recusal. Irvin, 345 Ark. 541, 49 S.W.3d 635. In addition, a judge need not recuse because that judge had previously prosecuted the defendant for a separate crime that was to be used for sentence-enhancement purposes. Turner v. State, 325 Ark. 237, 926 S.W.2d 843 (1996).

In deciding not to recuse, the trial judge noted that considerable time had passed since 1991, and that she did not remember either Appellant or the witness, even after seeing them in the courtroom. This court has noted that a trial judge has a duty not to recuse from a case where no prejudice exists. Owens, 354 Ark. 644, 128 S.W.3d 445. Thus, if there is no valid reason for the judge to disqualify herself, she has a duty to remain on the case. Id.

Here, Appellant has not demonstrated actual bias. And he has not demonstrated that the trial judge was required to recuse simply because she had acted as deputy prosecutor in the 1991 case involving the Rule 404(b) witness. Under our case law, the trial judge's previous prosecution of Appellant itself does not require recusal, and Appellant has not demonstrated actual bias or prejudice. We therefore perceive no reason to hold that the trial judge abused her discretion in denying Appellant's request that she recuse.

As his second point for reversal, Appellant contends that the circuit court erred in admitting testimony under the pedophile exception to Rule 404(b) and under Rule 403. The State filed a motion in limine to introduce testimony from several females who alleged that Appellant had raped them approximately twenty years ago. The State first sought the admission of testimony from M.M., who stated she was eighteen at the time Appellant raped her in 1989. The circuit court did not allow M.M. to testify at trial because she was not a minor at the time of her rape. Over Appellant's objection, the circuit court ultimately allowed two witnesses to testify at trial, H.W. and S.S., who stated they were both minors at the time Appellant raped them. H.W. testified that Appellant raped her during the summer of 1990 when she was thirteen years old and living with her mother's sister, Angela Brown, who was married to Glen Brown, Appellant's brother. As previously noted, S.S. testified that Appellant had raped her while she was thirteen years old and a guest of Sheila and Keith Brown, who was another of Appellant's brothers, on a family camping trip at a nearby lake. The circuit court ruled that only H.W. and S.S. would be allowed to testify at trial, as they were both minors and of similar age to B.B. when she was first raped. Appellant argues on appeal that the circuit court abused its discretion in allowing...