Holland v. State

2020 Ark. App. 434

JIMMIE HOLLAND APPELLANT v. STATE OF ARKANSAS APPELLEE

No. CR-20-74

ARKANSAS COURT OF APPEALS DIVISION I

September 23, 2020

APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT

[NO. 72CR-16-2498]

HONORABLE JOANNA TAYLOR, JUDGE

AFFIRMED

KENNETH S. HIXSON, Judge

Appellant Jimmie Holland was convicted in a jury trial of rape committed against AG. Holland was sentenced to thirty-three years in prison. Holland now appeals, arguing that the trial court erred in allowing the State to offer the victim's "surprise testimony" of penetration because such testimony violated Ark. R. Evid. 403, violated due process, and was a discovery violation pursuant to Brady v. Maryland, 373 U.S. 83 (1963). Holland further argues that the trial court erred in denying his motion for mistrial and his posttrial motion for new trial based on the same arguments above regarding the victim's challenged testimony. Holland also challenges the evidence supporting his conviction. We affirm.

Arkansas Code Annotated section 5-14-103(a)(1) (Repl. 2013) provides that "[a] person commits rape if he or she engages in sexual intercourse or deviate sexual activity with another person [b]y forcible compulsion." In the felony information charging Holland with rape, the State specifically alleged that Holland committed rape by engaging in sexual intercourse with another person by forcible compulsion. "Sexual intercourse" is defined as "penetration, however slight, of the labia majora by a penis." Ark. Code Ann. § 5-14-101(11) (Repl. 2013).

Holland's primary argument on appeal is that the victim should not have been permitted to testify about penetration because her allegation of penetration was not disclosed by the State in the materials it provided during discovery. For this reason, we will discuss the relevant reports that were generated and were made available to the defense prior to trial before our review of the trial testimony.

On the morning after the alleged rape occurred, AG went to the hospital, where she was subsequently interviewed by Officer Justin Collins. Officer Collins made a report of the interview.

According to Officer Collins's report, AG had met Holland on a dating website called Tinder about a week earlier. After about a week of exchanging text messages, AG and Holland agreed that they would meet in person. At first they had planned to meet for drinks somewhere, but AG was having dinner with friends and was running late that night, so they agreed to instead meet at AG's house.

AG told Officer Collins that after Holland arrived at her house, she and Holland watched movies and drank some whiskey. Sometime later, AG lay down to go to sleep and Holland started kissing her, rubbing her breasts, and putting his hand in her underwear. Holland asked AG to put on something more comfortable, and AG changed into a pair ofshorts and a t-shirt. Holland continued to touch her then removed her underwear and began performing oral sex. Holland began to penetrate AG with his finger, but he was being too aggressive and AG told him it hurt and to stop. AG stated, however, that she was fine with the oral sex. AG began touching him with her hand and reciprocated the oral sex. This went on for a while, and then they were lying in bed next to each other.

According to AG's account, Holland asked her if she had a condom. She told him she could get one from her roommate but that she did not have one. AG tried to explain to him that she did not want to have vaginal sex because she was not on birth control. Officer Collins's report states:

Holland then got on top of her and tried for vaginal sex. She said she was on her back and Holland was on top of her and he was trying to force his penis inside of her. AG said she was telling him "no" and she began to squeeze her thighs together to prevent him from penetrating her. She said she continued to tell him multiple times and then she began crying whenever he continued to force himself on her. She said when she began crying he had gotten mad. He sat up and stopped. She said that during this time she was sitting in bed crying and Holland was extremely angry. She stated he was mad and yelling at her.

AG stated that after Holland yelled at her for a while, she laid facing the wall, and Holland began trying to penetrate her from behind. She stopped him again. They argued a second time, and Holland got very loud and threatened to do property damage at the residence.

Eventually AG and Holland lay down to sleep, during which time Holland was rubbing AG and trying to penetrate her with his finger, but AG tensed up and he was unable to. Holland left early the next morning, and after that AG went with her roommate to the hospital.

Detective Scott O'Dell did not personally interview AG, and he relied on Officer Collins's report to prepare an affidavit for probable cause to arrest Holland. In Officer O'Dell's affidavit, he wrote:

As they were lying in bed next to each other Holland asked her if she had a condom. She stated no and would try to get one from her roommate. AG stated Holland began trying vaginal sex with her and she tried to explain to him that she did not want to have sex without a condom because she was not on the pill. AG stated Holland became angry, got on top of her, and tried to have sex. AG said he was trying to force his penis inside her as she was saying no. She told him no several times and when he continued to try to force his penis into her vagina she began to cry. This also made Holland angry.

AG underwent a sexual-assault examination at the hospital, and the report from the examination was also made available to the defense prior to trial. Nurse Sue Stockton conducted the examination. During the course of the examination, Ms. Stockton asked AG what had happened. In Ms. Stockton's report, she documented oral sex and digital penetration. However, the report noted, in grid format, an "X" checking the corresponding box labeled "Attempt" for the category "Penetration of vagina by penis." Ms. Stockton's report also gave a narrative of the events, with the following excerpt:

Then he got on top of her and she stopped him because he didn't have a condom. Then he became angry and said why aren't you on birth control. She felt she had to explain. He got on her again and she said, "no - no," she started crying. He got off and got behind her and attempted anal sex. She told him "no." He began yelling a lot and belittling her.

Prior to trial, Holland was also provided with the State's crime-lab reports. The serology report noted that vaginal swabs of AG were negative for semen but positive forP30. The DNA report noted that Holland's DNA was not found on the vaginal swabs but that his DNA was detected on the shorts AG had been wearing that night.

At a pretrial hearing, the prosecutor and defense counsel discussed the possible content of the State's witnesses' testimony. The prosecutor stated that the State was maintaining an open-file policy. The prosecutor also stated, "I just assumed Holland's attorneys are calling the witnesses to see what they are going to testify to because a lot of this is not actually in the reports, but a lot of it is based on my conversation with them." Holland's counsel acknowledged that he had not attempted to call the victim but stated that the State's witnesses do not have to talk to him. Holland's counsel suggested that all of the State's witnesses' statements would need to be disclosed in discovery to be presented at trial to avoid a "trial by ambush."

As the trial date grew near, Holland filed a motion in limine to limit discovery and exclude nondisclosed evidence.¹ Shortly thereafter, the parties discussed via email whether there would need to be a hearing on the motion. In this email exchange, the prosecutor stated that "there's been nothing new in this case for a very long time." Holland's counsel responded, "All I'm trying to do is make sure no witnesses, reports, etc. are added." Holland's counsel advised that a hearing would be unnecessary unless the State had an objection, and the prosecutor responded, "I don't need one."

Subsequently, less than two weeks prior to trial, there was a final email exchange between the parties pertaining to discovery. A summary of these emails is as follows:

HOLLAND'S COUNSEL: We have very limited information from the alleged victim in this case. Hence filing multiple discovery motions. I just want to verify that you don't intend to offer any evidence other than what we have, i.e., Collins's report. We have no audio, video, or written statements from her.

PROSECUTOR: Regarding her statements, I don't believe there is anything outside of the police reports by Collins and O'Dell. I intend to put her on the stand to testify based on what she experienced.

HOLLAND'S COUNSEL: So you intend on her testifying to any experience outside the police report? I am asking because it would be my position that she cannot testify to anything that is outside discovery. I'm not suggesting that is what you intend to do, but do [want] to clarify.

PROSECUTOR: She will testify based on her experience of the events as she remembers them. Just standard witness testimony, nothing different. She will be limited to her experience and how she responds to the questions asked.

HOLLAND'S COUNSEL: This is a simple question. Is she going to possibly say anything that is not contained in the discovery? I'm not trying to be cagey at all, but there is not much about her allegation in the file. I have brought this up multiple times on and off the record for that very reason. It is my basic contention that she cannot just get up at trial and start testifying to her "experience" that the defense has not been privy to through discovery. I would hope you would agree with that premise. If not, we need to have a hearing about it.

PROSECUTOR: I can't say exactly what she will say and, as a former prosecutor, you know that I cannot be expected to provide everything a witness is going to say in

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