McGaugh v. State

678 S.W.3d 410

2023 Ark. App. 457

Coree MCGAUGH, Appellant

v.STATE of Arkansas, Appellee

No. CR-22-674

Court of Appeals of Arkansas, DIVISION II.

Opinion Delivered October 18, 2023

APPEAL FROM THE YELL COUNTY CIRCUIT COURT, NORTHERN DISTRICT [NO. 75NCR-20-80], HONORABLE JERRY RAMEY, JUDGE

James Law Firm, by: William O. "Bill" James, Jr., Little Rock, and Drew Curtis, for appellant.

Tim Griffin, Att’y Gen., by: A. Evangeline Bacon, Ass’t Att’y Gen., for appellee.

STEPHANIE POTTER BARRETT, Judge

₁Coree McGaugh was convicted by a Yell County Circuit Court jury of one count of rape and sentenced to thirty years in the Arkansas Department of Correction. On appeal, McGaugh argues that the circuit court erred (1) in denying his directed-verdict motion; and (2) in not declaring a mistrial when the jury informed the court that’ it was split 11–1, and the remaining juror was not willing to change his or her mind. We affirm.

McGaugh’s victim was his eight-year-old daughter, MC1, who, after a lesson on personal safety at her elementary school in April 2019, reported to her counselor that her father had been abusing her sexually for the past several months, The counselor reported the allegations to the Child Abuse Hotline, and Brittney Reed, an investigator with the Arkansas State Police Crimes Against Children Division, interviewed MC1, who disclosed the sexual-abuse allegations to Reed. MC1 was taken to The Hamilton House, a Child ₂Advoeaey Center in Fort Smith, for a medical examination as well as a forensic interview, Jennifer Canavan conducted a forensic interview with MC1 at The Hamilton House, and MC1 underwent a sexual assault nursing examination (SANE) with Malea McCormick.

McCormick testified at trial about her findings from MC1's examination. She stated that there was an area of whiteness on the hymen, which could indicate sexual abuse; but she also said that the majority of exams of children seen for sexual-assault exams with disclosures of sexual abuse do not have definitive findings because that part of the body heals from injury quickly, Although MC1 did not have any injuries to her anal area, McCormick stated that a lack of injury did not rule out sexual penetration. McCormick collected oral, vaginal, and rectal swabs from MC1; her underwear; and a blood-stain card for DNA purposes.

Jennifer Beaty-West, the DNA supervisor for the Arkansas State Crime Laboratory, testified that she received seven items in this case—vaginal swabs, oral swabs, rectal swabs, a cutting from the inner crotch of underwear, and a blood sample, all from MC1; a known oral sample from McGaugh; and a tape lift of MC1’s underwear. Beaty-West explained that in cases involving a female victim and an alleged male perpetrator, there is a secondary testing method called Y-STRs, which specifically looks at male DNA, but that the testing was only able to narrow down the DNA to a paternal line. She testified that male DNA was found on the vaginal, oral, and anal swabs but not enough to obtain a Y-STR profile to make a comparison to a known sample. However, the inner-crotch sample of MC1’s underwear contained sperm cells, and the tape lift of MC1's underwear indicated the presence of DNA ₃from two males: one was too limited to make a comparison, but the second was identified as consistent with McGaugh’s Y-STR profit, meaning that neither McGaugh nor his paternally related male relatives could be excluded as a contributor of that Y-STR profile.¹ Beaty-West stated that while she could never say conclusively how DNA evidence arrived on an item, a more direct, aggressive contact with a direct transfer of bodily fluids would more likely leave DNA behind.

MC1 testified that she had been living with her father in April 2019; at that time, she was eight years old and in the second grade. She said that she went to see her school counselor after the personal-safety lesson and told her that her father had been raping her for three to four months. MC1 testified that her father had been through a breakup with a girlfriend, and he first "fingered" her after she returned from weekend visitation at her mother’s house. She said that a day or two after that incident, they had intercourse in her bedroom; her father made her take her clothes off, he took his clothes off, and then he put his penis into her vagina while she was lying on the bed and he was standing in front of her. She said that her father would bribe her with food, toys, video games, or allowing her to go to her friends' houses if she would have sex with him. MC1 said that those encounters occurred often, but she did not tell anyone about them until April 2019 because she did not have the confidence to say anything until that time. She testified that she had intercourse ₄with her father the night before she told the counselor what was happening, and she had not bathed or changed her underwear before going to school the next day. MC1 denied that she was making up the allegations against her father.

On cross-examination, MC1 admitted that prior to April 2019, she saw her mother only on the weekends; it bothered her because she had a hard time telling her mother goodbye; she wished she could see her mother more often; her mother wanted MC1 to come live with her; and MC1 had told her mother that she wanted to move in with her. MC1 also admitted that life was tough with her father because she had to clean the house and help take care of her younger twin siblings; that she did not like having to do chores at her father's house and had more fun at her mom's house; and that she had told her father she wanted to live with her mom.

After the State rested, McGaugh moved for a directed verdict on the basis that McGaugh was never identified by MC1 as the person who had raped her. The State countered that McGaugh had been identified as MC1’s father by several witnesses, and MC1 had referred to her father as the person who had raped her. Although the circuit court stated that it had no doubt there was enough testimony set forth that McGaugh was the person referenced in the allegations, it allowed the State to reopen its case, and MC1 identified McGaugh in the courtroom and as the person who had raped her, After that identification, McGaugh moved for directed verdict again, arguing that McGaugh was not timely identified as the person who had raped MC1. The circuit court denied the motion, finding that there had been sufficient evidence presented during the trial that McGaugh was the person against ₅whom the allegations had been made; furthermore, allowing the State to reopen its case and have MC1 identify McGaugh as the person who had raped her addressed that issue.

McGaugh then moved for a direct verdict on the basis that the State had failed to prove its case, arguing, "And that the State has failed to prove beyond a reasonable doubt that Coree McGaugh committed rape by engaging in sexual intercourse or deviant sexual activity with another person, namely [MC1], who is less than 14 years of age." This motion was denied by the circuit court.

Carla McGaugh, McGaugh’s mother, testified that she and MC1 had a close mother-daughter type of relationship, but she had not spoken to her since the night before MC1 accused her father of raping her. Carla said that MC1 was responsible for helping to pick up after herself, and although MC1 was not interested in taking responsibility for things like her homework or helping to pick up around the house, it was not a big deal. Carla noticed that MC1's attitude was always worse after she came home from visiting her mother; that MC1 had been untruthful on many occasions; and she believed MC1 did not want to live with McGaugh anymore. On cross-examination, Carla said that McGaugh told her that he had relinquished his parental rights to all three of his children after he was incarcerated; she opined, that McGaugh was devastated by MC1’s allegations, had hit rock bottom, and had given up.

The defense also called Fusha Brown, McGaugh’s sister, who testified that McGaugh is a wonderful father. She said that MC1 had gotten used to being number one, and there were some jealousy issues when her twin siblings were born and MC1 was asked to help with ₆more chores around the house. Brown also asserted that MC1 is not a truthful child and that she believed MC1 wanted to go live with her mother.

McGaugh waived his right to testify at trial, and the defense rested after Brown’s testimony. McGaugh renewed his directed-verdict motions, which were again denied by the circuit court. Jury instructions were read, and both the State and the defense gave closing arguments.

The jury retired to deliberate. During that time, the jurors sent several written questions to the judge, who responded that they had to refer to the testimony, evidence, and instructions provided in relation to the questions. The next note from the jurors stated that they were split 6–6 and could not come to an agreement; the circuit court instructed the jury to continue deliberations. The jurors sent another note stating, "Eight four," and the judge, with agreement from both the State and the defense, gave the jury the "dynamite instruction," which stated that it was in the best interest of both the State and the defense for this jury to arrive at an agreement, if at all possible, because a hung jury meant a continuance of the case and a delay of justice. The instruction further provided that, under the oath taken as jurors, they were obligated to render verdicts in accordance with the law and evidence; that every effort should be made to harmonize their views on the merits of the case, giving due consideration to the views and opinions of all the jurors; but that no juror should surrender his or her sincere beliefs in order to reach a verdict. The circuit court then returned the jurors to the jury room for further deliberation.

₇Later that night, the jurors sent a note that they were still "stuck" at 8–4, and the foreman told the...