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ARKANSAS COURT OF APPEALS DIVISION IV No. CR-16-1071

C.J.M. Opinion Delivered: September 27, 2017 APPELLANT APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT V. [NO. 26JV-16-120]

HONORABLE TED C. STATE OF ARKANSAS CAPEHEART, JUDGE APPELLEE AFFIRMED

RAYMOND R. ABRAMSON, Judge

On June 14, 2016, the Garland County Circuit Court found C.J.M. and his

codefendant, K.B., guilty of rape and entered an adjudication order on June 20, 2016. We

note that this is a companion case to K.B. v. State,

, also handed down

today. On appeal, C.J.M. argues that (1) his rights under Brady v. Maryland,

(1963), and Arizona v. Youngblood,

(1988) were violated by the alleged

withholding and destruction of evidence that he claims may have been exculpatory; (2) the

circuit court erred by considering K.B.’s pretrial statement in adjudicating C.J.M.

delinquent, and (3) the circuit court abused its discretion by not excluding certain evidence

based on a violation of Arkansas Rule of Criminal Procedure 17.1 (2016). We affirm.

On March 1, 2016, a juvenile-delinquency petition was filed against C.J.M., alleging

that he committed the offense of rape. K.B. was also charged with rape against the same Cite as

victim. With the agreement of defense counsel, a joint-delinquency proceeding was held

for both C.J.M. and K.B. The circuit court found both C.J.M. and K.B. guilty of rape and

entered an adjudication order; the juveniles were sentenced to Division of Youth Services’

custody. C.J.M.’s timely appeal followed.

C.J.M. first argues that his due-process rights were violated under

and

As the State observes in its brief, a detailed recitation of the procedural history

is needed regarding this point on appeal. C.J.M.’s arguments concern text messages on the

victim’s cell phone. On May 12, 2016, the court held a motions hearing at which defense

counsel informed the circuit court that it had become aware that the victim’s cell phone

had been in the State’s custody since at least early March and that the defense wanted access

to the phone as soon as possible. The deputy prosecutor responded and informed the court

that the State did have possession of the cell phone but that it was his understanding that

the phone had been forensically examined, and there was nothing on it. The circuit court

ruled that pursuant to Brady, if the State found anything on the phone, it was under an

obligation to turn it over to the court. The court reduced several of its oral rulings to writing

in an order entered on June 2, 2016.

The cell-phone issue was again addressed at the beginning of the delinquency-

adjudication hearing on June 8, 2016. Defense counsel informed the circuit court that it

never received any information recovered from the cell phone. The deputy prosecutor

explained that Lieutenant Martin with the Garland County Sheriff’s Office was the

individual who had attempted to retrieve the information from the phone. Martin was

unable to retrieve any information from it because it had a broken “home” button. The

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deputy prosecutor informed the court that Martin had provided a letter explaining this to

defense counsel. Because the phone was inoperable, it was returned to the victim.

The deputy prosecutor further explained that he had emailed the court all

information gathered from the cell-phone provider as a result of a subpoena duces tecum,

which included “call logs and records, incoming and outgoing calls.” The court then

provided these call logs and records to defense counsel.

Defense counsel argued that the cell-phone provider should have had the content of

the victim’s text messages and that sending the phone to the defense’s own expert is

“definitely a start.” The circuit court then offered to grant the defense a continuance so

that it could conduct further investigation on the cell phone. Counsel for both K.B. and

C.J.M. stated that they did not want a continuance.

The next day, defense counsel moved to either dismiss the charges or hold a

contempt hearing based on alleged misconduct by the police and prosecutors regarding the

phone. The circuit court denied the defense’s motion, ruling from the bench,

I am not impressed with the way the phone and phone records were handled, but any problems could have been remedied with a continuance yesterday. You waived that, and I’m denying your motion. We are going to proceed.

When the victim testified, the court asked the parties if they wanted to look at the

cell phone to see if there was anything on it that was relevant to the proceeding. In court,

the judge connected the phone and manually searched for text messages on the phone from

February 24, 2016, through February 26, 2016. The court’s review of the phone revealed

that there were no messages on the phone between the victim and her friend J.Y. from the

day the rape occurred, February 24, 2016. However, the cell-phone-provider records

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showed that many messages were exchanged between the two on that date. Defense counsel

stated, “We’d like to make a record of the fact that the text messages from the 24th, the day

of, have been removed [by] someone.” The court again ruled that “this all could have been

taken care of with a continuance” and then made the phone part of the record.

Defense counsel reviewed texts from the phone during the hearing and then renewed

the motions to dismiss and sought a contempt hearing, arguing that, based on the cell-

phone-provider records, approximately 186 text messages between the victim and J.Y. from

February 24, 2016, had allegedly been deleted from the phone. The court again denied the

motion.

The defense relied on the allegedly deleted text messages in its cross-examination of

State witnesses in its motion to dismiss and in closing arguments. After C.J.M. and K.B. had

been adjudicated delinquent based on their commission of the rape, they filed a joint motion

for a new trial, alleging, in part, misconduct by the prosecution relating to the cell phone.

After a hearing, the motion for new trial was denied.

On appeal, C.J.M. now contends that “withholding and destruction of apparently

useful evidence violates the Due Process Clause of the Fourteenth Amendment under the

spoliation doctrine and [Brady].” He maintains that, with respect to the contents of the cell

phone, the State breached its duty under Brady,

, and Youngblood,

,

to preserve potentially exculpatory evidence.

We agree with the State that C.J.M.’s arguments relating to the contents of the cell

phone are waived on appeal. The circuit court repeatedly offered C.J.M. continuances so

that he and his codefendant could investigate the contents of the cell phone. C.J.M. rejected

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these offers to allow K.B. and him additional time to investigate. Because additional

investigation would likely have provided C.J.M. with the allegedly deleted texts, and he

refused offers of a continuance made for that purpose, he has waived his arguments on appeal

about the court’s rulings as to the contents of the victim’s cell phone. See, e.g., Clemons v.

State,

,

; Tester v. State,

,

(2000).

C.J.M. next argues that the circuit court erred by considering K.B.’s statements in

adjudicating him and finding him guilty of rape. 1 We do not find merit in this argument.

The circuit court ruled before the adjudication hearing that it would consider the statement

only as to K.B., and that the statement would not be considered as evidence against C.J.M.

C.J.M.’s claim on appeal that the circuit court did, in fact, consider the statement in

adjudicating him delinquent is unsubstantiated.

The statements were the subject of a motion to suppress by K.B. and a motion to

exclude by C.J.M. The court denied K.B.’s motion to suppress the statements, finding that

although they were made in custody, they were “not subject to the Miranda warning because

they weren’t being questioned as extemporaneous statement and it would be admissible

against [K.B].” The court held in abeyance C.J.M.’s motion to exclude the statements for

use against him until counsel for both defendants decided whether they wanted the two

juvenile-delinquency adjudications heard together. At a later hearing, when defense counsel

1 The statements at issue were: “Is [C.M.] coming too?” and “How can it be rape if our penises weren’t out?”

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informed the court that they were proceeding with a joint trial on the two defendants, the

court ruled that the statements “would only be admissible against the declarant.”

The circuit court ruled before the adjudication hearing that K.B.’s statements would

not be considered against C.J.M. The circuit court is presumed to know and follow the law.

E.g., Haynes v. State,

,

(2003); Whitener v. State,

,

(2006). Furthermore, in cases tried without a

jury, the circuit court is presumed to have considered only competent evidence, and this

presumption is overcome only when there is an indication that the court did give some

consideration to the inadmissible evidence. E.g., Marshall v. State,

,

(2000). Here, there is no indication that the circuit court disregarded its

own ruling and gave consideration to the statements by K.B. in adjudicating C.J.M.

delinquent. As such, we hold that C.J.M.’s second point on appeal is without merit.

C.J.M.’s final argument is that the State failed to comply with Arkansas Rule of

Criminal Procedure 17.1. We hold that this point is not preserved for our review. C.J.M.

maintains that the State violated the circuit court’s order that the cell phone be delivered to

the court and that the court’s subsequent admission into evidence of the remaining text

messages recovered from the cell phone was an abuse of discretion. However, C.J.M. never

made a specific objection under Rule 17.1 of the Arkansas Rules of Criminal Procedure,

and there is no ruling from the court regarding this argument. Additionally, when the circuit

court admitted a disc containing the text messages recovered from the victim’s phone,

C.J.M. did not object to the admission of that evidence.

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To preserve an argument for review on appeal, there must be a specific objection

made to the circuit court that is sufficient to apprise it of the particular error alleged. Maciel

v. State,

,

. It is well settled that arguments not raised at

trial will not be addressed for the first time on appeal, and parties cannot change the ground

for an objection on appeal but are bound by the scope and nature of the objections and

arguments presented at trial. See, e.g., Smith v. State,

,

(2003). Because C.J.M. did not make his appellate argument below, it is not preserved

for appeal. Accordingly, we affirm.

Affirmed.

VAUGHT and HIXSON, JJ., agree.

Seth Bowman, for appellant.

Leslie Rutledge, Att’y Gen., by: Kathryn Henry, Ass’t Att’y Gen., for appellee.

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