Ralston v. State
Ralston v. State
Opinion of the Court
The trial in the matter was held on December 20, 2017.
H.M. testified that appellant is his great uncle-his mother's uncle-and that appellant lived with H.M. and his mother in "like, 2009" when he was nine years old. Everyone had their own rooms. The situation "just went downhill really fast, though." H.M. testified to appellant coming into H.M.'s room, turning off his radio, sitting on his bed, and talking to him. What happened next followed:
[Appellant] would start touching my penis, like, after, like, my underwear was around my ankles. When this happened I was laying down in my bed. [Appellant] would be like in the middle, slash, like the foot kind of [sic]. My mom was home but she was asleep. I know because I could hear her snoring. Me and mom's door- our rooms were next to each other.
[Appellant] would touch my penis with my clothes off. They were around my ankles. I would put them down because he told me to. When I say he, that is [appellant]. He would use his hand to touch me. His hand would slightly go up and down slowly. He didn't say anything to me when he would touch me. When he touched me he has [sic] his clothes on. This happened [one] time that I can remember. He told me not to tell nobody or he would hurt me and my mom.
H.M. also testified to "other things that [he] was not okay with" such as when appellant "put his hand on [H.M.'s] leg" or when appellant "put [H.M.'s] penis in [appellant's] mouth and he would, like, go up and down, kind of, too[.]" Appellant put his mouth on H.M.'s penis only once. H.M. stated that his clothes were around his ankles whenever appellant did these things and that appellant would threaten to hurt H.M. and his mother if H.M. told anyone. H.M. "didn't tell anybody about [appellant] coming into [his] room until [he] was in Vista Hospital. [He] didn't tell anyone because [he] was scared [appellant] would actually hurt [H.M.] and his mom" but he told at Vista Hospital (Vista) because he "felt safer." Vista is a mental hospital where H.M. received treatment in 2010. The first person H.M. told what had happened was his therapist at Vista. H.M. was ten at that time and "wasn't able to see this case through because [he] was scared of seeing appellant."
H.M. became aware of A.H. coming forward about allegations involving appellant in 2014, but he did not learn it from A.H. He did not talk to A.H. about what appellant did to him; "[t]hat wasn't something that was talked about a lot in [his] family." A.H. is the son of H.M.'s sister, Sheena Mendoza. H.M. and his sister lived with their mother, along with Sheena's children, among whom A.H. was included. When H.M. learned about A.H. coming forward, he felt that he "needed to do something[,] but [he] didn't know what to do." He eventually went back to the Children's Advocacy Center (CAC).
*613H.M. also testified that he did not remember telling a Vista counselor that appellant touched his penis with his mouth, then qualifying that "[he] remember[ed] saying it, but [he didn't] think it happened to be honest." He "[didn't] believe" he told CAC workers that appellant performed oral sex on him though he did tell the same to the prosecutors. However, H.M. testified to having a "bad memory" and that he was "not able to remember exactly what [he] said in 2010 or 2014[,]"
A.H. then testified. Appellant was someone A.H. would spend time with when A.H. went to his grandmother's house when he was in kindergarten. A.H. testified regarding his encounters with appellant that things happened to him that were "not okay with [A.H.]." Appellant would call A.H. over to appellant's lap, then appellant would "touch [A.H.'s] private part over [A.H.'s] clothes." Regarding the specifics, A.H. testified:
I said when I would sit on [appellant's] lap he would have a magazine. Like he would use, like, the magazine to, like, cover it up so that nobody would see it and then, like, just-I think, like, distract them or something, like, where nobody would notice him touching my private parts. When he touched my private parts he would use his hand. He was touching my penis. He touched me on top of my clothes. Sometimes there were other people in the room. They weren't able to see. They wouldn't see he was touching me because he was using a magazine, or, like, it was, like, a newspaper, sometimes a magazine. This happened a lot.... I never asked him to stop because I was, like, too young and I wasn't -- my brain wasn't, like, knowing, like, that's not good. I was in kindergarten and that young age. I didn't understand what was exactly happening.
I didn't tell anybody else about what [appellant] was doing at that time. I just didn't know, like, that it was, like, not good and not bad, but, like, it just wouldn't cross my mind.
A.H. did not disclose what happened to him until a couple years before the trial, after he learned about what appellant had done to H.M.; however, he and H.M. had not talked about what happened "in depth or in detail" as they "try to avoid" the topic. What appellant did "isn't something [his] family talks about very often." What appellant had done to A.H. "just came to him and [he] realized it." A.H. first told his grandmother, who then told A.H.'s mother, who spoke with A.H. when she arrived home from work. A.H. later talked to someone at the CAC. A.H. denied "[making] up this story so that [he] could get out of trouble" the night he first brought the allegations up.
Cynthia McAfee-niece of appellant, mother to H.M., and grandmother to A.H.-confirmed that H.M. was nine when she and H.M. moved in with appellant. She was only in the home "about a month" before she moved out. During the time she lived with appellant, she noticed a difference in H.M.'s behavior, actually before they moved in, "probably three, four months, into [appellant] coming visiting *614[sic]." She noticed that H.M. was leaving the house without telling her because "he was not wanting to come home."
Cynthia observed A.H. getting into appellant's lap while appellant was holding a book; she had seen A.H. get into appellant's lap and look through magazines. She had had "suspicions" of sexual abuse between appellant and A.H., but A.H. would deny that anything had happened and run off whenever she had asked him about it. However, she recalled a particular argument between her and A.H.:
He yelled at me one time and said-me and him had got into an argument and he said, "You'll never understand me, mom." I said, "Why?" He goes, "It's all because of [appellant]." I said, "Why? What do you mean [appellant]?" He goes, "It's just because of [appellant]," then he ran out the door and was gone for about three hours. The argument was over he didn't do his chores. He was supposed to do his chores before he went out to play and he hadn't done them, and I was trying to stop him from leaving.
Cynthia never discussed A.H.'s allegations with H.M. H.M. "was not able to see [his 2011] case [against appellant] through." He had been strong, but started shaking and said he "just [could] not do it" when he learned that appellant would be in the same room as him during the trial.
Sheena Mendoza, mother to A.H., testified that A.H. was six years old in 2009 depending on what time of year it was. At that time, her mother-Cynthia-would take care of her children, including A.H., while she worked. Appellant lived with Cynthia during that time. At the time H.M. disclosed his allegations against appellant, Sheena "wasn't aware of anything involving" A.H. She questioned A.H., but his answer was always no and she did not want to pressure him. She reasoned that "[A.H.] was young, maybe he didn't understand, and then [she] just let it go." But she would ask again a few months later.
Sheena's testimony confirmed how and to whom A.H. disclosed as well as his going to speak with someone at the CAC. It also confirmed Cynthia's testimony about how long Cynthia and H.M. lived with appellant. Sheena "honestly [had] told A.H. that [she didn't] personally want to hear all the details"; she "[does not] ask a lot of questions." The allegations H.M. made were "never a big topic" of discussion between Sheena and Cynthia "because [they] didn't want to talk about it." They never talked about the allegations around the children.
Detective Brian Hanna, with the Rogers Police Department, testified that he investigated the hotline report of A.H.'s allegations against appellant. A.H. was interviewed at the CAC, which is a "neutral environment" where children are "typically" taken; children are not interviewed by law enforcement. Hanna observed the interview on video. He formulated appellant as a suspect based on A.H.'s interview. Hanna interviewed Sheena separately from A.H., as well as H.M. In 2014, H.M. said he performed oral sex on appellant, *615but not that appellant performed oral sex on H.M. During his investigation, he learned that Sheena had asked A.H. "repeatedly" about whether appellant had done anything to him-which he found to be normal-however, he asked her and Cynthia to refrain from talking to the kids about the allegations to "protect the integrity of the investigation[.]" Following Hanna's testimony, Torkleson testified virtually identically to his Rule 404(b) -hearing testimony.
After Torkleson's testimony, appellant moved for a directed verdict and dismissal of the charges against him. Regarding count one, sexual assault in the second degree, appellant argued that
[appellee had] not proven that [appellant] engaged in sexual conduct with A.H., who was less than 14 at the time of the alleged offense, and not his spouse. The only evidence presented has been the uncorroborated testimony of the alleged victim. The fact that he was living with [appellant] at the time of the alleged offense is only circumstantial, and the time frame is confusing because of his age at that time.
Regarding count two, appellant argued that
[appellee had] not proven that [appellant] engaged in deviate sexual behavior with H.M., who was less than 14 years of age at the time of the alleged offense. The only evidence presented has been his testimony; and, in fact, H.M. testified that he did not think that it happened and did not remember it happening when asked if [appellant] had touched him with his mouth.
The motion was denied. The appellant then testified.
Appellant stated that Cynthia was used to him "coming down on the weekends" and that he came down "all different days" once he retired, but asserted that "on average it was maybe every two months or so[,]" mainly for special occasions but "[a]ny excuse [he] could come up with to go down there and visit A.H." He denied talking to H.M. until he had made several trips down. He had not lived with children in his home since his divorce in 1979; however, he moved to Arkansas on April 1, 2009, and allowed Cynthia and H.M. to live with him. Sheena's children would be picked up by Cynthia and stay with her at appellant's home "between an hour or two hours" until Sheena got home from work. Sheena never came to the house; Cynthia always took the children to her.
Appellant testified to a litany of things he "never" did or which never occurred including: (1) he never ate dinner with Cynthia and the kids as a family, (2) he never sat in the living room with the children and watched TV; (3) A.H. "never sat in [his] lap after school"-that "never happened"; (4) he never babysat; and (5) he never allowed H.M. or A.H. to go in his bedroom to watch TV. He "absolutely, [he swore] to God he never touched A.H. on his penis" and that he did not keep magazines in his house because he "[didn't] believe in them" and was "totally against" them. He "absolutely [knew] of no reason" why A.H. would make his allegations up. There "wasn't ever a point that [he] went in H.M.'s room after Cynthia was in bed." Appellant stated that H.M. had "behavioral problems" when he moved in that Cynthia had told him about "from the first time [he] went down there." H.M. was already in counseling when appellant moved to Arkansas.
Regarding H.M.'s allegations, appellant testified, "[At] no point did I touch H.M. on the penis. Absolutely not on top of his clothes or under his clothes. As God as my witness I did not perform oral sex on him. I absolutely did not make H.M. perform oral sex on me." He further testified *616"[d]uring the five to six weeks or even before that when H.M. and Cynthia lived with me I never touched H.M. on the penis. I never touched A.H. on the penis. I never had H.M. touch my penis. I never put my mouth on H.M.'s penis." He denied that there was "any falling out with" H.M. or his mother, Cynthia.
With regard to his encounter with Torkleson, appellant recalled the stop and "vaguely" recalled his "chat" with Torkleson. Appellant had been "pretty upset that day" because he "had just lost his family." He said that he was a lonely, gay man who thought he had found a new family, but he had not. Appellant testified that he was "experimenting" with a friend's suggestion during that stop since there were no "gay churches" as there had been in Kansas City and he was too old for the bars being in his sixties when he moved to Arkansas. He testified that he "didn't remember" making the statement that he was "sexually frustrated because [he missed] his boys." However, he immediately followed up by saying, "I do remember saying that about my boys, but when I was talking about my boys I was talking about I would be ashamed if they knew I was getting a ticket for this but none-had nothing to do with sexual arousal." His boys were currently in their forties but were two- and five-and a half years old when he last had any contact with them.
Following appellant's testimony, appellant rested his case. He then renewed his motion for directed verdict asserting that appellee failed to prove that appellant engaged in sexual conduct with A.H. on count one of sexual assault in the second degree and failed to prove that appellant engaged in deviate sexual behavior with H.M. on count two of rape. He specifically argued that H.M. "gave uncorroborated and inconsistent testimony and he, in fact, testified that he did not think it happened or it did not happen, or he didn't remember it happening that [appellant] had touched him with his mouth." The renewed motion was denied. The jury subsequently found appellant guilty as charged, sentencing him to twenty years' imprisonment on the charge of sexual assault in the second degree and thirty years' imprisonment on the charge of rape, to be served consecutively. The circuit court entered a sentencing order reflecting the same on January 5, 2018. This timely appeal followed.
This court treats a motion for directed verdict as a challenge to the sufficiency of the evidence.
Appellant's first argument on appeal is that appellee failed to prove that he committed sexual assault in the second degree against A.H. He argues that "it is not clear that [A.H.] stayed and was 'sitting' in [appellant's] lap ... [that] neither A.H. nor the grandmother's testimony is even consistent with lap sitting." He asserts that "there was no indication by any of the [appellee's] witnesses that a kindergartener sitting in a lap reading a book after school (the facts viewed in the most favorable light to the [appellee] ) is wrong or inappropriate." Accordingly, he argues that appellee failed to prove the sexual-gratification element of sexual assault in the second degree. This court does not agree.
Sexual assault in the second degree is committed when a person who is eighteen years of age or older engages in sexual contact with another person who is less than fourteen years old and not the person's spouse.
Testimony revealed that A.H. was in kindergarten at the time of the occurrences with appellant, well below the fourteen-year-old threshold for the charged crime. It is undisputed that appellant was not married to A.H. A.H. testified that appellant (1) touched him through his clothes on multiple occasions-sometimes in the presence of others-by placing A.H. on appellant's lap and using a magazine to shield appellant's hand touching A.H.'s penis through A.H.'s clothes. A sexual-assault victim's testimony may constitute substantial evidence to sustain a conviction for sexual assault.
Appellant's second argument is that appellee did not prove that he committed rape against H.M. While acknowledging that the uncorroborated testimony of a rape victim that shows penetration is sufficient evidence for a conviction, appellant argues that H.M.'s testimony is not sufficient to support a finding of penetration.
A person commits rape if he or she engages in sexual intercourse or deviate sexual activity with another person who is less than fourteen years of age.
H.M. testified that appellant's mouth was on H.M.'s penis and that he would "go up and down" and that he placed his hand on H.M.'s penis and that "his hand would slightly go up and down slowly." The uncorroborated testimony of a child-rape victim is sufficient evidence to sustain a conviction.
Appellant's third argument is that it was reversible error for the circuit court to admit the testimony of Nick Torkleson. Appellant argues that the evidence was not admissible because (1) it was bad character evidence; (2) the pedophile exception does not apply; (3) there was no "other purpose" for which the evidence could be used; (4) the evidence was not independently relevant pursuant to Rule 403; alternatively, (5) the evidence was more prejudicial than probative; and (6) inclusion of the evidence was not harmless error.
Pursuant to Arkansas Rule of Evidence 404(b), "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith."
Rule 403 states that "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."
The admission or rejection of evidence under Rule 404(b) is committed to the sound discretion of the circuit court, and we will not reverse absent a showing of manifest abuse of discretion.
This court addresses together appellant's first, third, and fourth sub-arguments-that Torkleson's testimony was bad character evidence, there was no "other purpose" for which the evidence could be used, and the evidence was not independently relevant pursuant to Rule 403, respectively. The circuit court admitted the evidence on the very limited finding that the statement was "sufficiently similar" to "show sexual proclivity towards missing or towards boys and sexual frustration by not being around them." It made no reference in its ruling to appellant's sexuality or method of attracting partners. The circuit court even excluded any evidence of the outcome of the September 28, 2009 encounter. We cannot hold *620that the circuit court admitted the evidence as bad character evidence.
Secondly, the timing of the statement aligned with the timing of appellant's sexual encounters with A.H. and H.M., and the jury could have found it to form the basis for a purpose other than conformity with bad character, such as intent or proof of motive or intent to sexually assault and/or rape young boys. Finally, because appellant's statement referenced sexual frustration involving boys at a time when other testimony revealed that he was having sexual encounters with little boys, the statement was independently relevant. No error occurred.
Appellant's second argument is that the pedophile exception does not apply as said exception "has not been expanded to include evidence of a defendant's similar acts with an adult." This argument misunderstands the circuit court's ruling for it did not admit appellant's statement to Torkleson because he was driving while masturbating to pick up consenting adult men, but solely because appellant voluntarily made a statement linking his sexual frustrations with being unable to see boys.
The "pedophile exception" to Rule 404(b) allows evidence of prior sexual conduct with children to show the defendant's proclivity for a specific act with a person and helps show the depraved sexual instinct of the accused.
The admitted statement was made by appellant, of his own volition, in 2009, which was around the same time he began his sexual encounters with A.H. and H.M., according to their testimony. His stated sexual frustration stemmed from not seeing his "boys," a term which appellant testified he used to refer to his own sons with whom he had a close relationship prior to his divorce from their mother. When he last encountered his "boys", they were "little" with one son being five and a half years old when he last saw him, around the same age as A.H. when appellant began assaulting him. While the circuit court did not expressly state that it was ruling for appellee under the pedophile exception, its reference to appellant's sexual proclivity as the basis for admitting *621the evidence demonstrates that it ruled pursuant to said exception. This court holds that there was no abuse of discretion; we find no error.
Appellant's final arguments are that the evidence was more prejudicial than probative and that inclusion of the evidence was not harmless error. Appellant cites this court to Purdie v. State
Beyond the victims' testimony was appellant's own testimony, which at best, could be seen as not helpful to his case. The fact-finder need not lay aside its common sense in evaluating the ordinary affairs of life and may consider and give weight to any false, improbable, and contradictory statements made by the defendant to explain suspicious circumstances when determining criminal knowledge and intent.
Affirmed.
Gruber, C.J., and Hixson, J., agree.
H.M. had gone to the CAC after he first reported his encounters with appellant to his therapist in 2010.
He also testified that he lied to the people at Vista to "try to get them to do what [he] wanted" after speaking of a lie he told about hearing voices in an attempt to get released from Vista, which led to a longer stay.
A.H. was in the middle of an argument with his grandmother when he first told what happened between him and appellant.
Appellant had been visiting regularly-"every other weekend"-before he, Cynthia, and H.M. moved in together.
In his testimony, appellant references A.H. and Sheena in these statements. However, he meant H.M. and Cynthia based on his immediately following statement regarding the waffle incident. All witness testimony involving the waffle incident, no matter the witness, made it clear that H.M. was involved in the waffle incident, not A.H., and Cynthia is H.M.'s mother, not Sheena. Appellant later testified that this reason referred to H.M. and not A.H.
Thompson v. State ,
Id. at 4-5,
Gilton v. State ,
Echoles v. State ,
Id. at 5-6,
McPherson v. State ,
Lowe v. State ,
Wiseman v. State ,
McDaniel v. State ,
Id. at 5-6,
Id. at 6,
McPherson v. State ,
Dolson v. State ,
Rayburn v. State ,
Dolson ,
Id. at 7,
Rayburn v. State ,
Hortenberry v. State ,
Henington v. State ,
Woods v. State ,
Worsham v. State ,
Reference
- Full Case Name
- Lawrence RALSTON v. STATE of Arkansas
- Cited By
- 10 cases
- Status
- Published