Devault v. State

2021 Ark. App. 269

JOSHUA ADAM DEVAULT APPELLANT v. STATE OF ARKANSAS APPELLEE

No. CR-20-391

ARKANSAS COURT OF APPEALS DIVISION III

May 26, 2021

APPEAL FROM THE VAN BUREN COUNTY CIRCUIT COURT

[NO. 71CR-1845]

HONORABLE H.G. FOSTER, JUDGE

AFFIRMED

KENNETH S. HIXSON, Judge

Appellant Joshua DeVault appeals after he was convicted by a Van Buren County Circuit Court jury of rape. He was sentenced to serve three hundred months' imprisonment in the Arkansas Department of Correction. On appeal, appellant does not challenge the sufficiency of the evidence for his conviction. Instead, he argues that his conviction should be reversed and remanded for a new trial because the circuit court erred in limiting his cross-examination of the victim's mother, Sasha Hughes. We affirm.

I. Relevant Facts

Appellant and Sasha Hughes¹ were married in 2011. Ms. Hughes has two daughters, M.W. and G.S.; appellant has another daughter; and appellant and Ms. Hughes have a sontogether. At the time of the rape, appellant, Ms. Hughes, and the four children lived together in a two-bedroom home. On the night of July 5, 2017, appellant raped his stepdaughter, M.W. The next day, M.W. broke down and told her mother that appellant had come into her room during the night and raped her as he had done many times before. Ms. Hughes took M.W. to the police department and then to Arkansas Children's Hospital for a sexual-assault examination. Appellant was subsequently arrested and charged by amended felony information with rape in violation of Arkansas Code Annotated section 5-14-103(a)(4)(A)(i) (Repl. 2013), a Class Y felony. A jury trial was held on November 15-16, 2019.

Shortly after the arrest and before the results of the rape kit that confirmed the presence of appellant's DNA were released, Ms. Hughes sought an order of protection against the appellant. During a hearing for the order of protection, Ms. Hughes testified regarding the rape and whether she believed M.W.'s account. Ms. Hughes stated, "I'm on her side. And I want to show I am there for her. Whenever I look at things from an unbiased standpoint, I don't see any evidence and some of the things she says don't line up." In a hearing before trial below, appellant argued that he intended to use the transcript from the order-of-protection hearing to impeach Ms. Hughes as a prior inconsistent statement. The circuit court took the matter under advisement.

At trial, Robert Leal, a former investigator for the Van Buren County Sheriff's Office, testified that he had been assigned in July 2017 to investigate appellant's case. When he learned that M.W. alleged that appellant had sexual contact with her within the last twenty-four hours, Mr. Leal immediately sent her to Arkansas Children's Hospital for a sexual-assault examination and to have a rape kit conducted.

Emily Davis, a nurse practitioner for University of Arkansas for Medical Services at the campus of Arkansas Children's Hospital, testified that she has specialized training as a sexual-assault-nurse-examination (SANE) nurse and that she examined M.W. She described M.W.'s demeanor as tearful before and during the examination. Nurse Davis testified that she did not notice any physical signs of trauma during her examination; however, she stated that she would not expect to see any physical signs of tearing or trauma to a fourteen-year-old girl who had already started her period if she had "typical" sexual intercourse with a man. She explained that typical intercourse meant not forceful. Therefore, Nurse Davis explained that the lack of physical findings neither confirmed nor negated a history of sexual abuse. During the examination, Nurse Davis collected several swabs and included them in the sealed rape kit for analysis.

Dr. Charlotte Renee Willis testified that M.W. was her patient at Arkansas Children's Hospital. She and her team made the decision to order the rape kit based on the history that was presented to them. Dr. Willis testified that she was in the room when Nurse Davis examined M.W. Dr. Willis agreed with Nurse Davis's findings and stated that there were no physical findings present. She further testified that under 5 percent of abused children will have abnormal findings on just a physical examination.

Grant Hupp testified that he had previously worked as a forensic DNA analyst at the Arkansas State Crime Laboratory. While employed there, he examined vaginal, rectal, andoral swabs along with a known DNA sample taken from M.W. Mr. Hupp testified that he found two individual's DNA on the vaginal swab. The first was M.W.'s, and the other DNA profile was retained for comparison purposes at a later date. Lieutenant Frank Bricklin Lewis testified that he obtained a DNA sample from appellant by swabbing the inside of each of his cheeks. Alexa Harrod, a DNA analyst at the Arkansas State Crime Laboratory, testified that appellant's DNA matched the DNA found on the vaginal swab within scientific certainty. Ms. Harrod explained that "within all scientific certainty" means a 1 in 19.4 nonillion chance in the Caucasian population. On cross-examination, Ms. Harrod admitted that a serology test was not conducted to determine if the DNA found was skin, saliva, or semen. However, she explained that a serology test was not standard procedure at that time if DNA was found. She further explained that the samples were retained and that someone else could have requested a serology test to be performed if desired.

Before Ms. Hughes testified, the State again raised the issue of whether appellant was permitted to introduce the copy of the transcript from the separate order-of-protection case. The State argued that it should be suppressed under Arkansas Rules of Evidence 401 and 403. Although appellant argued that it should be allowed to prove a prior inconsistent statement, the State explained that it must still be excluded under the other rules of evidence and that whether M.W. was telling the truth was ultimately for the jury to decide. After both parties had orally argued their positions, the circuit court ruled as follows:

We started all this when Mr. Brown [on behalf of the State] moved to suppress reference to the order of protection hearing and what happened in the order of protection hearing. Ms. Byrd [defense counsel] responded that she wanted to go intoprior inconsistent statements that were made within the context of the order of protection hearing. I said that prior inconsistent statements can absolutely be used, consistent with the rules of evidence but there would be no reference to the order of protection. We have continued to talk about it some more and the issue was put forward, well, wait a minute, let me question, is it your opinion that she is going to want to impeach her with, that is not an admissible question. I agree that is not an admissible question. I understand Ms. Byrd disagrees with that and you have expressed why on the record. My thought was yesterday morning that I kind of made it clear that we weren't going to go into mom's changing opinion of different things and that we were not going to go into mom's decision ---- I think I even said it is not relevant whether mom thinks two and two equals four or now she thinks two and two equals five. It doesn't matter. So we are not going to talk about the order of protection proceeding. If there have been prior inconsistent statements made by any witness that the rules of evidence allow them to be used, they will be used and they will be used consistent with the rules of evidence. The question about her mom believing or not believing will not be asked. I do not believe that is relevant. I think it is highly prejudicial. The question about whether in mom's opinion different things add up will not be asked. There are too many problems with that. One, it is mom's opinion; two, it really doesn't raise the ultimate issue; three, it presupposes that everybody knows what things mom is aware of that she thinks why and don't join up. I don't know what mom knows. I don't know that anybody does. I don't know that mom knows everything that she knows and she certainly doesn't know what she doesn't know so taking it from the top: Not going to talk about the order of protection. Prior inconsistent statements of a witness can be used consistent with the rules of evidence. The question about mom's opinion as to believing or not believing the victim will not be asked. The question about things adding up and questions of that nature that require mom's opinion will not be asked. Mom can absolutely be asked consistent with the rules of evidence about fact questions. I'm not saying mom can't be questioned but she can't be questioned about the things that I said she can't be questioned about.

. . . .

What I'm saying is, you cannot ask her conclusory questions. You can't ask her does this add up. You can't ask her is this consistent, is it inconsistent. You can't do that. We let people do that lots of times because it doesn't hurt it and it makes things go smoother, but when it comes down to the lick log, the jury is the trier of fact, they are the ones who are going to determine whether two pieces of evidence, statements, whatever, are consistent or inconsistent. Mom's opinion is not relevant and will not be asked or sought or laid out there in any way. Fact questions are different.

After the circuit court's ruling, appellant proffered the transcript for our record on appeal.

Ms. Hughes testified that she has known appellant for approximately half of her life. They began living together in 2009 and were married on July 13, 2011. At the time of the rape in 2017, appellant, Ms. Hughes, and the four children were living in a two-bedroom house with a bonus room in Quitman, Arkansas. Fourteen-year-old M.W. slept in one of the bedrooms alone. Appellant routinely worked late and did not come home until after Ms. Hughes was already asleep. Ms. Hughes admitted that she is a heavy sleeper. Ms. Hughes testified that in ...