Carter v. State

2020 Ark. App. 290

598 S.W.3d 875

Eric CARTER, Appellant

v.STATE of Arkansas, Appellee

No. CR-19-937

Court of Appeals of Arkansas, DIVISION II.

Opinion Delivered: May 6, 2020

Eric Carter, pro se appellant.

Leslie Rutledge, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.

KENNETH S. HIXSON, Judge

Appellant Eric Carter filed his pro se appeal after the Hot Spring County Circuit Court entered an order denying his petition for postconviction relief filed pursuant to Arkansas Rule of Criminal Procedure 37.1. Appellant generally argues on appeal that the circuit court erred in denying relief because his trial counsel was ineffective for failing to adequately investigate witnesses and for failing to call Dr. Dawn Parsons as an expert witness. We affirm.

I. Background

Before addressing the allegations of ineffective assistance of counsel, it is necessary to recite the evidence adduced at appellant’s trial. A Hot Spring County Circuit Court jury convicted appellant as a habitual offender for raping T.S., a thirty-one-year-old woman with learning disabilities and characteristics of autism spectrum disorder. Appellant had previously lived at T.S.’s address before she had moved to that address from Alaska. On April 20, 2016, appellant went to T.S.’s home and she invited him inside. After she asked him to leave, he refused. Appellant pinned T.S. to the sofa and penetrated T.S.’s vagina from behind with his fingers and then his penis. T.S. additionally sustained an injury to her shoulder, and there was a bite mark on her right breast. T.S. subsequently reported the incident to police after her mother came from Alaska to check on her in June 2016.

Jackie S. is T.S.’s mother. At trial, Jackie S. testified that T.S. has a learning disability and the I.Q. of a first grader. Jackie S. received legal guardianship of T.S. when T.S. turned eighteen. Although T.S. had lived in Alaska where Jackie S. resides, T.S. moved to Arkansas after Jackie S. had purchased a home for her. T.S. was taking care of her daily living needs, and Jackie S. was visiting in person about every three to six months in addition to regular video chatting. During Jackie S.’s June 2016 visit, T.S. showed her a bite mark, and Jackie S. observed that T.S.’s behavior had changed. Jackie S. explained that T.S. now acts afraid that something bad will happen to her again.

Dr. Regina Weiner, a licensed psychological examiner, testified that she had evaluated T.S. During the interview, Dr. Weiner observed that T.S. operated with a high level of anxiety. T.S.’s I.Q. was assessed at 46 for nonverbal, 43 for verbal, and 42 for full scale. A standard I.Q. is between 85 and 100. Regarding T.S.’s ability to describe an event that she experienced, Dr. Weiner indicated that T.S. was able to describe it using her own words and to tell you what happened. However, she may tell it out of order or have some problems explaining how many times something had happened. Dr. Weiner further testified that T.S. has characteristics of autism spectrum disorder. In terms of whether T.S. could give reliable testimony, Dr. Weiner opined that T.S. was able to talk, able to remember things that had happened to her, and not likely to deliberately lie. However, T.S. may have things confused and may not express herself well using her language skills. Therefore, Dr. Weiner opined that one may need to additionally corroborate her statements with other testimony and other forms of evidence.

T.S. testified that she was thirty-two years old at the time of trial. She identified appellant in the courtroom and testified that he had raped her at her home on the night of April 20, 2016. Prior to the rape, appellant had previously visited T.S. alone and had taken her to various locations, including the water department, in his gray car. She indicated that appellant had her hold his mail for him because appellant had previously lived at the home before she had moved there. T.S. additionally recalled a previous incident in which appellant took her to a cabin and showed her a "sex movie." Although appellant encouraged T.S. to touch his penis, T.S. refused and made him take her home. T.S. explained that on the night of the rape appellant had parked his car at her home. She told him to leave; however, appellant had told her that it was his home. T.S. testified that appellant had bitten her on her right breast and dug his fingernails into her left arm. Appellant pinned her over the couch and penetrated her vagina with his fingers and his penis. T.S. also testified that appellant had touched her anus. During the rape, appellant asked T.S. if she liked it and threatened her not to tell anyone of the rape or he would kill her.

Sharon Scheel testified that she lived across the street from T.S. Scheel testified that T.S. was friendly and "mentally challenged." Scheel explained that she felt like she was putting puzzles together during conversations with T.S. Scheel testified that T.S. had seemed upset and told her about a sexual assault that occurred in April 2016. T.S. had also shown her the bite mark that was infected at that time. Scheel additionally had observed some bruises on T.S.’s arms. Although Scheel did not call the police after their conversation, she encouraged T.S. to do so. Finally, Scheel testified that she had seen appellant walking in the area on more than one occasion but stated that she had not personally observed appellant at T.S.’s home.

Donald Jordan testified that he also lived in a home across the street from T.S. Jordan explained that he had gotten to know T.S. since she moved in and has learned to understand her speech better over time. He would also assist her with her yard work. Although T.S. had never told him about the rape prior to law enforcement’s investigation, he noticed that her behavior had changed after April 2016. She would not talk to him or answer the door as she usually had. After law enforcement started investigating, T.S. told him about the rape.

Jordan additionally testified that appellant had lived in T.S.’s home before she had moved there. He further testified that he observed appellant alone at T.S.’s home on at least three occasions after T.S. had moved there. On one occasion, appellant approached T.S.’s driveway while Jordan was there. Appellant told Jordan that he was interested in the truck parked in the driveway, and Jordan told him that the truck was not for sale. Appellant further learned on that occasion that T.S. lived alone. On other occasions, Jordan observed appellant’s wife at the home as well. Although he was not certain of the exact date, Jordan observed appellant’s car outside T.S.’s home around midnight in April 2016.

Chasity Siratt testified that she previously was employed by the Malvern Police Department as a police-service representative. During her employment, she photographed the alleged bite mark on T.S.’s right breast, and the photographs were admitted into evidence. Officer Jack Seely testified that he was present when T.S. and her mother reported the rape and that his body camera recorded the interview. The video of the interview was played for the jury without objection.

Sergeant Frazier Ford testified at trial that he was involved in the investigation of T.S.’s allegations. During the investigation, T.S. identified appellant from a group of six photographs. Sergeant Ford further testified that T.S. was able to show him the route that appellant had taken when he drove her to the water department as she had alleged. He additionally testified that one of appellant’s cars was either gray or silver.

Mona Simms testified that she is a nurse practitioner and treated T.S. in February 2017 for pain in her shoulder. T.S. indicated that her shoulder had bothered her ever since the rape. Simms explained that T.S. was tearful and upset when explaining her injury and the incident that had caused the injury.

Testimony regarding two other rapes that appellant had allegedly committed in a similar manner against two other victims was offered at trial under Arkansas Rule of Evidence 404(b) as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. H.W. testified that appellant had raped her when she had been ill with bronchitis in March 2014. C.R., who has keratoconus, an eye disease, testified that she had reported to law enforcement that she had been raped by appellant in April 2014.

Shanah Nolen testified on appellant’s behalf. She explained that she had known appellant for twelve years and that they have one child together. Nolen testified that she did not know T.S.; however, she admitted that she and appellant had formerly lived at the address where T.S. was then living. She further admitted that she and appellant had gone to the address twice to collect their mail in April 2016. The second time they went was after T.S. had called her phone. Nolen alleged that on both occasions she had stayed in the car while appellant went to the door to collect the mail. Finally, Nolen testified that neither she nor appellant had been back to the address since those two times.

After all evidence was presented, the jury found appellant guilty of rape, and appellant was sentenced as a habitual offender to serve a total of 480 months’ imprisonment. After appellant’s conviction, he appealed, arguing that (1) the trial court erred by denying his motion for directed verdict; (2) the trial court erred in admitting Rule 404(b) evidence of prior rapes that he was alleged to have committed; and (3) the trial court erred in denying his motion for mistrial after the prosecutor spoke to members of the jury during a trial break. We affirmed appellant’s conviction but remanded to the trial court with instructions to correct the sentencing order. Carter v. State , 2019 Ark. App. 57, 568 S.W.3d 788. An amended sentencing order pursuant to our instruction was filed on March 14, 2019.

II. Petition for Postconviction Relief and Rule 37 ...