Warner v. State

APPEAL FROM THE VAN BUREN COUNTY CIRCUIT COURT [NO. 71CR-19-187] HONORABLE H.G. FOSTER II, JUDGE

Knutson Law Firm, by: Gregg A. Knutson, for appellant.

Leslie Rutledge, Att'y Gen., by: Joseph Karl Luebke, Ass't Att'y Gen., for appellee.

JOHN DAN KEMP, Chief Justice

Appellant Stanley Warner appeals a Van Buren Circuit Court order convicting him of raping six-year-old M.H. and sentencing him to an enhanced sentence of life imprisonment without parole. For reversal, Warner argues that substantial evidence does not support the conviction; the circuit court abused its discretion in admitting evidence of prior bad acts under the pedophile exception; and the circuit court abused its discretion in admitting M.H.'s recorded statement. We affirm.

I. Facts

Warner, whom M.H. knew as "Uncle Jeff," had lived in Clinton with M.H.; Bridget Holmes, M.H.'s mother; and Holmes's parents for approximately one week before the rape. Warner is related to the Holmes family through M.H.'s grandfather.

Investigator Thomas E. Johnson recounted the following facts in an affidavit supporting Warner's arrest warrant. On the afternoon of July 10, 2019, Holmes went to work and left M.H. in the care of her parents. That evening, M.H.'s grandmother went to bed, and he stayed up with his grandfather, who fell asleep on the couch. While his grandparents slept, Warner told M.H. to go to the back porch. There, he asked M.H. if he wanted to play a game during which M.H. would close his eyes, Warner would put something in M.H.'s mouth, and M.H. would guess what it was. According to Johnson, Warner "told the boy that it would be like a lollipop, but it didn't taste the same but that if he kept licking and sucking on it that he would get some juice out of it." M.H. closed his eyes, opened his mouth, and leaned toward Warner, who placed his penis in his mouth. Warner "told him not to bite it because it was covered with a chemical and would taste bad." The affidavit states that M.H. peeked and saw Warner's penis in his mouth. Warner suddenly removed his penis from M.H.'s mouth and went inside to find that M.H.'s mother was home.

Johnson interviewed Holmes, who stated that she had returned home from work, parked her car, and talked to her boyfriend on the phone. When she got out of her car, a motion light turned on. Holmes told Johnson that Warner "peeked around the corner from the back porch and said that he didn't even hear her pull up." According to Johnson, Holmes went inside the residence, placed her dinner in the microwave, and saw Warner and M.H. walk inside from the back porch. She stated that her son "had a strange blank look on his face," so she took him to her room and asked what had happened. Holmes told the officer that M.H. revealed that Warner "had him play a tasting game" and that Warner had put his

penis in M.H.'s mouth. Holmes and M.H.'s grandparents kicked Warner out of the house and reported the incident to law enforcement.

During a forensic interview at the Child Advocacy Center (CAC) in Conway, M.H. gave a recorded statement to Karli Potratz, a CAC forensic interviewer, with Johnson present. Johnson proceeded to the home of Warner's wife where he located Warner, took him into custody, and transported him to the sheriff's office. During an interview, Warner admitted being on the back porch with M.H. while the grandparents slept, but he claimed that he only stuck his thumb in the boy's mouth.

On September 11, 2019, the State charged Warner as a habitual offender with one count of rape, in violation of Arkansas Code Annotated section 5-14-103 (Supp. 2017), for engaging in sexual intercourse or deviate sexual activity with someone less than fourteen years of age. Prior to trial, the State moved to introduce evidence under the pedophile exception to Rule 404(b) of the Arkansas Rules of Evidence for purposes of proving Warner's proclivity toward sex acts with young children in his family. On January 3, 2020, the State moved to admit testimony from Megan Hudson, Warner's biological daughter, that he had engaged in multiple acts of sexual abuse from the time that she was five or six years old until the age of thirteen. The State asserted that Hudson was expected to testify that the abuse began when she was around five years old with Warner exposing his penis, causing her to "play with it" and that on more than one occasion, he inserted his penis into her mouth. She also planned to testify that the sexual abuse progressed to sexual intercourse when she was thirteen years old and spending the summer with him in New York. Also on September

11, 2020, the State moved to admit testimony from Melonie Griffin, Warner's younger sister, who was sexually abused by him when she was a young girl. Griffin was expected to testify that Warner would have her "play doctor" on him and force her to touch his erect penis and "kiss down there." Warner responded that this evidence was irrelevant and highly prejudicial. The circuit court ruled that the evidence was relevant and would be admitted under the pedophile exception.

On September 17 and 18, 2020, Warner stood trial before a Van Buren County jury. M.H., who was seven years old at the time of trial, testified that when he was alone with Warner in 2019, "[h]e put his middle in my mouth." M.H. stated that he and Warner were "out back" on the porch and that it occurred at night. He stated that no one else was on the porch and that his mother had worked late. M.H. further testified that Warner told him to "close [his] eyes" and that he would "put something in [his] mouth that kind-and-if [he] sucked on it, [he] would feel some juice, and [Warner] says it's kind of like a lollipop, but don't bite it." M.H. testified that Warner told him to engage in this activity and to keep his eyes closed. He stated that he closed his eyes for "two seconds" before Warner put something in his mouth. He testified that he "peeked" by opening his eyes and saw "skin color and hair." M.H. also stated that girls do not have "middles" and circled a penis on a drawing that was introduced into evidence.

Hudson, who was thirty-three years old at the time of trial, also testified at trial. Over Warner's objection, she testified that she had lived with him "off and on" when she was five or six years old. She testified that Warner started "touching" her when she was six years old

and would ask her to touch his private area. She stated that she would touch his penis, and in turn, he touched her vagina and breasts. She testified that the sexual abuse progressed to oral sex when she was older and that he would use his tongue and fingers on her vagina. She also testified that he had sexual intercourse with her when she was eleven or twelve years old. She stated that this sexual abuse had occurred more than twenty years ago. The State then offered, and the circuit court received into evidence (1) certified records of rape and incest convictions from Arkansas entered in 2002; (2) certified records of two counts of sodomy from New York entered in 2000; and (3) a transcript of Warner's sworn statement given during the entry of his guilty plea to rape and incest in 2002.

Griffin also testified over Warner's objection. She stated that her brother, who was seventeen years older, began sexual contact with her when she was seven or eight years old. She testified that she and Hudson, her niece, would get on the bed with Warner, who was naked. He would ask the girls to "play doctor" on his private parts. Griffin stated that Hudson is four years younger. Griffin stated that "playing doctor" included "running toys . . . [u]p and down his penis" and "kiss[ing] boo-boos . . . [o]n his penis." Griffin also testified that Warner would sit naked behind her while brushing her hair and "try to push it up and underneath [her] bottom." She did not report these incidents, which occurred in the early to mid-1990s, to law enforcement.

At trial, the circuit court conducted an in camera hearing on the State's motion to introduce M.H.'s recorded statement, pursuant to Rule 803(25) of the Arkansas Rules of Evidence. After hearing counsel's arguments and reviewing a DVD of the recorded

statement, the circuit court ruled that M.H.'s recorded statement would be admitted into evidence, and the jury viewed it during Potratz's testimony. The State presented other testimony from Holmes; Johnson; Lindsey Heflin, a forensic DNA examiner from the Arkansas crime lab; and Deanna Griffin, Holmes's mother.

At the close of the State's case, Warner moved for a directed verdict and argued that the State failed to prove the elements of the rape offense. Warner also renewed his objection to M.H.'s recorded statement under Rule 803(25). The circuit court denied both motions. Warner did not present any witnesses and renewed his motion for a directed verdict at the close of the evidence. The circuit court denied the motion. After deliberations, the jury convicted Warner of one count of rape and sentenced him to an enhanced sentence of life imprisonment without the possibility of parole. On September 28, 2020, the circuit court entered a sentencing order reflecting the jury's conviction and sentence. Warner timely filed his appeal.

II. Rape Conviction

For his first point on...