Washington v. State

686 S.W.3d 61

2024 Ark. App. 134

Jerry Lee WASHINGTON, Appellant

v.STATE of Arkansas, Appellee

No. CR-23-483

Court of Appeals of Arkansas, DIVISION IV.

Opinion Delivered February 28, 2024

APPEAL FROM THE JEFFERSON COUNTY CIRCUIT COURT [NO. 35CR-21-276], HONORABLE ALEX GUYNN, JUDGE

Potts Law Office, Monticello, by: Gary W. Potts, for appellant.

Tim Griffin, Att’y Gen., by: Michael Zangari, Ass’t Att’y Gen., for appellee.

RAYMOND R. ABRAMSON, Judge

₁Jerry Lee Washington appeals his convictions from the Jefferson County Circuit Court. Following a March 2023 jury trial, Washington was found guilty of sexual assault in the second degree pursuant to Arkansas Code Annotated section 5-14-125(a)(3) (Supp. 2019); sexual indecency with a child pursuant to Arkansas Code Annotated section 5-14-110(a)(1)(A)-(C) (Supp. 2019); and sexual indecency with a child pursuant to Arkansas Code Annotated section 5-14-110(a)(2)(A). He was sentenced as a habitual offender to a $35,000 fine and forty years’ imprisonment. On appeal, Washington challenges the sufficiency of the evidence supporting his convictions and the circuit court’s admission of certain evidence. For the following reasons, we affirm.

On March 28, 2021, officers were dispatched to an apartment complex in Pine Bluff after it was reported that Washington had solicited an eight-year-old female, Minor Victim ₂(MV), to allow him to perform oral sex on her in exchange for five dollars. While officers were speaking to MV, Washington pulled into the parking lot in an SUV, but when a detective approached him, he jumped out and fled the scene. He was later arrested and charged.

Prior to trial, the State filed a notice of intent to admit evidence of Washington’s prior sex act with a Minor Witness (MW) in 2016. The State asserted that this prior act was relevant to Washington’s 2021 sex crimes, that MW’s testimony was admissible under the pedophile exception to Arkansas Rule of Evidence 404(b), and that evidence of this act was not barred by Rule 403 of the Arkansas Rules of Evidence. Washington responded that his alleged prior sex act with MW was insufficiently similar to his criminal conduct with MV, that the State could not establish an intimate relationship with both minors, and that any probative value of MW’s testimony was substantially outweighed by the risk of prejudice, barring it under Arkansas Rule of Evidence 403.

The circuit court considered the merits of the parties’ arguments at a pretrial hearing on February 8, 2023. At this hearing, then ten-year-old MV identified Washington, whom she called "Bogey," and stated that she was outside her grandmother’s apartment in 2021, when Washington offered her "five dollars if I let him … [l]ick my private part." MV further testified that on another occasion, Washington showed her a picture on his phone of "a man licking another girl’s private part."

MV stated that she was eight when these events occurred. She also recounted that Washington touched her "private part" in March 2021. Recounting this latter incident, MV ₃stated that she was alone outside playing when Washington approached her and then put his hand "[o]n top" of her vagina. Rosie Cannon, MV’s grandmother, also attested that Washington had been over to her apartment, where she and her granddaughter lived, on multiple occasions prior to March 2021, confirming that MV "kn[e]w him." Cannon further testified that she had known Washington for years, likening him to a "family member."

MW, then thirteen years old, also testified. MW also knew Washington as "Bogey," testifying that he is a former college boyfriend of her birth mother and that he lived with them in 2016. When asked about what Washington had done to her, MW explained that "he touched me in my … vagina" around the time she was six or seven years old.

The circuit court granted the State’s motion at the healing’s conclusion, ruling that Washington’s prior sex act with MW was "almost identical" to one of his 2021 charges, that her testimony was permissible under the pedophile exception, and that the probative value of this testimony was not substantially outweighed by any risk of unfair prejudice.

At trial, on March 13, 2023, MV again testified that Washington "touched [her] private part" through her clothing while she was outside her grandmother’s apartment in March 2021, opined that it was "[d]efinitely on purpose," and identified a vagina on a nude female anatomical figure introduced as a State exhibit. MV stated that on another occasion inside her grandmother’s apartment, Washington "showed [her] his thing." When asked to identify what Washington pulled out of his pants and exposed to her, MV circled the penis depicted on a male anatomical figure.

₄MV also attested that on March 28, 2021, Washington approached her while she was playing alone outside, and in a low voice, he offered "to give [her] five dollars to suck [her] private part."

While she did not see the sex acts committed against her granddaughter, Cannon stated that, in retrospect, she should have been concerned because Washington brought MV treats without her permission and, after watching her play, would spend "long" periods of time in the bathroom of her apartment.

Moreover, the State presented evidence concerning MV’s disclosure on March 28, 2021. One of the officers dispatched to the scene, Detective Deshawn Bennett, testified that he arrived within minutes, and Washington’s SUV pulled into the apartment parking lot while officers were speaking to MV. However, Detective Bennett was unable to speak to Washington because he "jumped out and ran" into the apartment complex. An investigator confirmed that MV’s allegations against Washington were similar to the earlier ones made by MW.

Washington moved for a directed verdict as to each of the alleged offenses at the close of the State’s case-in-chief, arguing that its witnesses' testimony was insufficient to support the convictions. Washington did not testify on his own behalf and rested without presenting any evidence. The circuit court denied Washington’s motion for directed verdict. The jury found Washington guilty on each charge. His timely appeal is properly before this court.

Because of double-jeopardy concerns, we first address Washington’s challenge to the sufficiency of the evidence. See Bolen v. State, 2023 Ark. App. 373, at 20, 675 S.W.3d 145, ₅156. On appeal, Washington argues that the circuit court erred by denying his directed-verdict motions because MV’s testimony regarding his sex crimes was "improbable and unbelievable[.]"

[1–5] A motion for a directed verdict is treated as a challenge to the sufficiency of the evidence. E.g., id. at 20, 675 S.W.3d at 156. On review, this court views the evidence in the light most favorable to the State and considers only the evidence that supports the verdict. E.g., id. at 20, 675 S.W.3d at 156. We will affirm a conviction if there is substantial evidence to support it, and evidence—either direct or circumstantial—is substantial if it compels a conclusion and passes beyond mere speculation or conjecture. E.g., Milton v. State, 2023 Ark. App. 382, 675 S.W.3d 173. This determination, along with the credibility of witnesses and the weight of the evidence presented at trial, is left to the jury. Id. at 6. 675 S.W.3d at 177. It "is the function of the jury, and not the reviewing court, to evaluate [such] and to resolve any inconsistencies in the evidence." Bolen, 2023 Ark. App. 373, at 21, 675 S.W.3d at 156.

[6, 7] We note, as is the case here, in sex-crime prosecutions, a victim’s testimony need not be corroborated to support conviction. E.g., Bahena v. State, 2023 Ark. App. 261, at 3, 667 S.W.3d 553, 555-56. We have consistently held that a victim’s testimony alone amounts to substantial evidence that will support a conviction if the testimony adequately specifies the acts prohibited by law. E.g., Langlois v. State, 2023 Ark. App. 263, at 8-9, 666 S.W.3d 884, 889. And such testimony is substantial evidence of guilt "even when the victim is a child." McCauley v. State, 2023 Ark. 68, at 4, 663 S.W.3d 383, 386. In accordance with these ₆standards, the evidence presented at trial clearly substantiated that Washington sexually assaulted and engaged in sexually indecent acts with MV.

Washington was convicted of second-degree sexual assault pursuant to Arkansas Code Annotated section 5-14-125(a)(3). Under this subdivision (a)(3), a person commits sexual assault in the second degree if being eighteen years of age or older, he "[e]ngages in sexual contact with another person who is … [l]ess than fourteen (14) years of age" and not the person’s spouse. Id. Sexual contact "means any act of sexual gratification involving the touching, directly or through clothing, of the sex organs … of a female[.]" Ark. Code Ann. § 5-14-101(11) (Supp. 2019).

[8] At trial, then ten-year-old MV testified that Washington touched her vagina while she was outside playing in March 2021, opining he did so "[d]efinitely on purpose." Washington argues otherwise, but MV’s testimony specifically described and—alone—substantiated that he engaged in prohibited sexual touching of MV and, thus, committed second-degree sexual assault. See, e.g., Bynum v. State, 2017 Ark. App. 41, at 8, 511 S.W.3d 860, 865. Also, while not required, Detective Bennett’s testimony that Washington fled from the scene on March 28, 2021, further supports each of Washington’s convictions since flight is evidence of consciousness of guilt. See, e.g., Hunt v. State, 2015 Ark. App. 53, at 5-6, 454 S.W.3d 771, 774-75.

The evidence likewise substantiated that Washington twice committed sexual indecency with a child. Washington was convicted of one count for having engaged in sexually indecent behavior with MV pursuant to Arkansas Code Annotated section 5-14-₇110(a)(1)(A)-(C), which provides that a person commits sexual indecency with a child if, being eighteen years or older, he solicits another person who is less than...