Weir v. State

2023 Ark. App. 368

675 S.W.3d 430

William WEIR, Appellant

v.STATE of Arkansas, Appellee

No. CR-22-612

Court of Appeals of Arkansas, DIVISION III.

Opinion Delivered September 6, 2023

Rehearing Denied October 18, 2023

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

Tim Griffin, Att'y Gen., by: Christopher R. Warthen, Ass't Att'y Gen., for appellee.

CINDY GRACE THYER, Judge

The State charged appellant William Weir with one count of rape after his then-twelve-year-old daughter, Minor Child 1 (MC1), alleged that he had digitally penetrated her on multiple occasions.¹ A Pope County jury found Weir guilty of rape and recommended a sentence of twenty-five years in the Arkansas Department of Correction, which the circuit court imposed in a sentencing order entered on March 18, 2022. Weir timely appealed, and he now challenges the sufficiency of the evidence supporting his rape conviction; in addition, he assigns error to three evidentiary rulings. We find no error and affirm.

I. Background

In May 2019, Weir took his family––consisting of MC1, her two brothers, her sister, and her stepmother, Michelle Weir––on a camping trip. The family slept close together, with Weir "spooning" MC1, which she described as "[her] back to his front." Weir would occasionally put his hands between MC1's thighs, telling her it was to keep his hands warm. One night during the camping trip, however, Weir put his hand inside MC1's pajama pants, rubbed her vagina, and then put two fingers inside her vagina.

After the camping trip, MC1 spent several days at a friend's house. When she came home, Weir told her that she needed to sleep and "cuddle" with him because she had been gone for such a long time. Weir and his wife were in the bed, as were MC1 and her older brother. During the night, Weir again digitally penetrated MC1's vagina despite her tossing and turning to try to get away from him. Weir eventually pinned her hands down and put his leg over her leg to restrain her and then continued to penetrate her with his fingers for most of the night. The next day, Weir punished MC1 for her "tossing and turning" the night before. Her punishment consisted of doing chores and, the next night, having to sleep in the same bed as Weir. That night, Weir assaulted MC1 again.

In June, the family went to visit Weir's sister, Janell Boyd, in Naperville, Illinois. Weir and his wife stayed for only a night or two, but the plan was for MC1 and her older brother to stay with their aunt for a couple of weeks. While they were there, MC1 confided to her aunt that Weir had abused her. Boyd then contacted her brother via Facebook Messenger and confronted him with the fact that she knew he had been touching MC1. Boyd told Weir

that she believed he was doing it only when he was drunk, but she knew he was doing it. Weir told her that he did not remember doing anything, but when Boyd reminded him about the camping trip, he told her "that would make sense that he did that on the camping trip because [MC1] acted really different with him afterwards, that she wasn't as affectionate and lovey with him anymore."

Weir then told Boyd that he wanted to apologize to MC1, and Boyd arranged for a second video chat. During this call, Weir apologized to MC1, but Boyd was not satisfied with the content or the sincerity of the apology. Boyd became angry and told him that MC1 had disclosed additional information about the frequency of the abuse, and she hung up.

Boyd then initiated yet another video chat, and this time she recorded the conversation. During that call, Weir told MC1, "I've got a lot of messed up emotions in all this myself, okay? And right now, I'm feeling like I need to defend my family, okay? And I'm sorry, [MC1]. It's not your fault. It's my fault." Boyd asked, "So you're not apologizing for what you did to her?" Weir replied, "I just did."

After that phone call ended, Boyd took MC1 to the Naperville Police Department to give a statement. The Naperville Police Department sent the report to the Russellville Police Department, which in turn contacted the Arkansas Child Abuse Hotline. The Crimes Against Children Division of the Arkansas State Police received the report from the hotline, and an arrest warrant was subsequently issued. While in jail following his arrest, Weir sent his wife an email in which he asked her to help with his bail and wrote, among other things, "[H]opefully they don't actually charge me with rape or I will get some serious time."

Prior to trial, Weir filed motions in limine to exclude both the recorded conversation between him and Boyd and the email he sent from jail. The court denied both motions, and the matter proceeded to a jury trial. As noted above, the jury convicted Weir of rape and sentenced him to twenty-five years in the Arkansas Department of Correction.

On appeal, Weir raises four arguments: (1) the evidence was insufficient to support his rape conviction; (2) the circuit court erred in admitting unauthenticated photographs of the campsite where the first rape occurred; (3) the court erred in denying Weir's motion to exclude the recorded conversation between him and Boyd; and (4) the court erred in denying his motion to exclude the jail email that he sent to his wife.

II. Sufficiency of the Evidence

In his first argument on appeal, Weir asserts that the circuit court erred in denying his motion for directed verdict. We treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Armstrong v. State , 2020 Ark. 309, 607 S.W.3d 491. In reviewing a sufficiency challenge, we assess the evidence in the light most favorable to the State and consider only the evidence that supports the verdict. Id. We will affirm a judgment of conviction if substantial evidence exists to support it. Id. Substantial evidence is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other without resorting to speculation or conjecture. Id. The credibility of witnesses is an issue for the jury, not the court; the trier of fact is free to believe all or part of any witness's testimony and may resolve questions of conflicting testimony and inconsistent evidence. Burns v. State , 2023 Ark. App. 309, 668 S.W.3d 566.

Rule 33.1(a) of the Arkansas Rules of Criminal Procedure provides that "[i]n a jury trial, if a motion for directed verdict is to be made, it shall be made at the close of the evidence offered by the prosecution and at the close of all of the evidence. A motion for directed verdict shall state the specific grounds therefor." Subsection (c) of the same rule provides that

[t]he failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required in subsection[ ] (a) ... above will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the verdict or judgment. A motion for directed verdict or for dismissal based on insufficiency of the evidence must specify the respect in which the evidence is deficient. A motion merely stating that the evidence is insufficient does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense.

It is well settled that Rule 33.1 is strictly construed. Richardson v. State , 2020 Ark. App. 25, 595 S.W.3d 1. A general motion does not satisfy the requirements of specificity mandated in Rule 33.1. Daniels v. State , 2018 Ark. App. 334, 551 S.W.3d 428. The reason underlying this rule is that when specific grounds are stated and the proof is pinpointed, the circuit court can either grant the motion or allow the State to reopen its case and supply the missing proof. Scott v. State , 2015 Ark. App. 504, 471 S.W.3d 236. Our appellate courts have been steadfast in holding that we will not address the merits of an appellant's insufficiency argument when the directed-verdict motion is not specific. Daniels , supra . Further, a party cannot enlarge or change the grounds for an objection or motion on appeal but is bound by the scope and nature of the arguments made at trial. Burns , supra .

At the close of the State's case, Weir moved for a directed verdict on the rape charge as follows:

Your Honor, the defense moves for a motion of a directed verdict because the evidence in all the inferences from the evidence considered in the light most favorable to the prosecution does not prove the prosecution's case beyond a reasonable doubt.

On the ... charge of rape, Your Honor, the State has failed to prove beyond a reasonable doubt that William Warren Weir committed rape by engaging in sexual intercourse or deviant sexual activity with another person, namely MC1. And that MC1 was less than 14 years of age at the time the alleged offense occurred.

On appeal, Weir argues that the circuit court should have granted his motion for directed verdict because MC1's testimony was "so clearly unbelievable that reasonable minds could not differ about it." Weir's directed-verdict motion, however, did not challenge the victim's credibility but was instead a general motion that failed to satisfy Rule 33.1 ’s requirements of specificity. As such, the specific arguments he presents to this court are not preserved for review.

Moreover, even if Weir's directed-verdict motion had been specific enough to preserve the arguments he now presents to us, we would still not reach the merits of his argument because he failed to renew his motion at the close of all the evidence. At the conclusion of the trial, Weir asked if he should renew his motion before or after the jury was instructed. The court replied that it was "okay to do it after the jury's retired." After the jury left the courtroom to begin deliberations, counsel renewed his motion, stating, "I don't think the State proved beyond reasonable doubt any of the ... allegations as prior stated, Judge." The court again denied the motion.

Rule 33.1 provides that...