Dowdy v. State

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SUPREME COURT OF ARKANSAS
No. CR-14-334

TERRY ALLEN DOWDY Opinion Delivered February 5, 2015
APPELLANT
APPEAL FROM THE GREENE
V. COUNTY CIRCUIT COURT
[NO. CR 2012-365]

STATE OF ARKANSAS HONORABLE RANDY F.
APPELLEE PHILHOURS, JUDGE

AFFIRMED IN PART; DISMISSED IN
PART.

KAREN R. BAKER, Associate Justice

A Greene County Circuit Court jury convicted Appellant Terry Allen Dowdy of two

counts of rape, three counts of sexual abuse in the second degree, and three counts of sexual

indecency with a child. Dowdy was sentenced to life imprisonment for each of the rape

convictions, twenty years’ imprisonment for each of the sexual-assault convictions, and six

years’ imprisonment for each of the sexual-indecency-with-a-child convictions, all running

consecutively. On appeal, Dowdy contends that the circuit court erred by allowing the jury

to hear evidence of prior bad acts, allowing Lea Ann Vanaman to testify, and by denying his

directed-verdict motions. Our jurisdiction is proper pursuant to Arkansas Supreme Court

Rule 1-2(a)(2), as this is a criminal appeal in which a sentence of life imprisonment was

imposed. We affirm in part, and dismiss in part.

I. Factual and Procedural History

At trial, Dowdy’s granddaughter, E.D., testified that for several years she would visit
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Dowdy on the weekends. She testified that Dowdy would “stick his fingers like down my

pants, or he would rub my pants on the outside of my clothes.” E.D. testified that Dowdy

stuck his fingers inside her vagina more than three times. E.D. testified that the incidents

occurred in 2010 and 2011. Specifically, E.D. testified that the last time Dowdy touched her

inappropriately was in April 2011. E.D. testified that she told her parents about the abuse

sometime during September 2011, when they began questioning her about cutting herself on

her arms. E.D. testified that she told her parents she was cutting herself because Dowdy was

molesting her. She further testified that she turned thirteen years old in 2011. E.D. also

testified that sometimes when she would walk into the kitchen, Dowdy would be

masturbating and “would just look at me.” She testified that this happened more than once.

In addition to E.D.’s testimony, the State presented testimony from several witnesses

under Arkansas Rule of Evidence 404(b). M.M. testified that Dowdy is her mother’s brother.

She testified that in 1977 or 1978, when she was seven or eight years old, Dowdy masturbated

in front of her and her sister. M.M. testified that Dowdy was about twelve years old when

this occurred. She further testified that when she was ten or eleven years old, Dowdy would

put his penis between her legs and “do his business” and fondle her breasts until he ejaculated.

L.W., M.M.’s sister, also testified. L.W. testified that when she was eight years old, Dowdy,

forced her to perform oral sex on him. She testified that when she was twelve years old,

Dowdy would “spoon” up against her and “mimic sex” until he “masturbated.”

In addition to M.M. and L.W., the State elicited testimony from J.W. J.W. testified

that she previously dated Dowdy’s son, J.D. She testified that in 2002, when she was sixteen

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years old, she lived with Dowdy and his wife, Sandy. J.W. testified that while she was living

there her boyfriend told her that Dowdy wanted to have sex with her, but she objected. J.W.

testified that her clothes were taken off and Dowdy performed oral sex on her and had sexual

intercourse with her. The final Rule 404(b) witness presented by the State was K.S. K.S.

testified that Dowdy is her uncle and that he had forced her to perform oral sex on him,

would masturbate while she sat on his lap, and that he had sex with her.

Finally, the State called Lea Ann Vanaman, a supervisor with the Arkansas State Police

Crimes Against Children Division. Over Dowdy’s objection, Vanaman testified that self-

harming is common among child abuse victims. Vanaman also testified that victims of sexual

abuse will continue to go around the abuser and that, on average, fifteen years passes between

the time of the alleged abuse and the victim’s first disclosure. She testified that she had not

met or interviewed E.D. and that E.D.’s cutting could be the result of something other than

sexual abuse.

After the State’s case, Dowdy moved for directed verdict. In his motion, Dowdy

contended that three of the charges for sexual indecency with a child were barred by the

statute of limitations. Dowdy contended that only the April 11, 2011 charge for sexual

indecency was not barred by the statute of limitations. He also argued that the State failed to

present sufficient evidence that Dowdy purposefully exposed himself to E.D. He contended

that E.D.’s testimony that she walked into the kitchen and Dowdy continued to masturbate

was not sufficient to show purposeful action. Finally, Dowdy contended that the State failed

to present sufficient evidence to support the rape charges because there was no evidence

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regarding deviate sexual activity, no allegation of sexual intercourse, and no proof of the

victim’s age. At the close of all evidence, Dowdy renewed these motions without presenting

any additional argument. The circuit court denied the motions for directed verdict. After

deliberation, the jury returned guilty verdicts on all counts and sentenced Dowdy as

previously stated. After this appeal was lodged but prior to submission of the case, Sandy

Dowdy notified this court that Dowdy died. On December 18, 2014, we granted her

petition to proceed with the appeal.1

On appeal, Dowdy contends that the circuit court erred in denying his motions for

directed verdict. He also contends that the circuit court erred in admitting the testimony of

the Rule 404(b) witnesses and the testimony of Lea Ann Vanaman.

II. Standard of Review

A motion for directed verdict is treated as a challenge to the sufficiency of the

evidence. Lamb v. State, 372 Ark. 277, 280, 275 S.W.3d 144, 147 (2008). Double-jeopardy

considerations require this court to review his directed-verdict argument first. Id. at 279, 275

S.W.3d at 146. When a defendant challenges the sufficiency of the evidence that led to a

conviction, the evidence is viewed in the light most favorable to the State. Stewart v. State,

362 Ark. 400, 403, 208 S.W.3d 768, 770 (2005). In reviewing a challenge to the sufficiency

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Arkansas Code Annotated section 16-91-104 provides, “[n]o appeals shall be taken
after the defendant’s death, and, upon his or her death, an appeal taken during his or her life
shall abate and shall not be revived.” Arkansas Rule of Appellate Procedure–1(c) provides,
“[u]pon the death of a defendant, the appeal shall not abate. The appeal shall continue on the
relation of a representative party as provided in Ark. R. Civ. P. 25(a).” The State filed no
response to Sandy Dowdy’s request to continue the instant appeal.

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of the evidence, this court determines whether the verdict is supported by substantial

evidence, direct or circumstantial. Morrow v. State, 2014 Ark. 510, at 4, ___ S.W.3d ___.

Substantial evidence is evidence forceful enough to compel a conclusion one way or the other

beyond suspicion or conjecture. This court views the evidence in the light most favorable to

the verdict, and only evidence supporting the verdict will be considered. Id.

A challenge to the sufficiency of the evidence is preserved by making a specific motion

for directed verdict at both the conclusion of the State’s case and at the conclusion of all of

the evidence. Brown v. State, 374 Ark. 324, 327, 287 S.W.3d 587, 589 (2008); Ark. R. Crim.

P. 33.1. The rationale behind this rule is that “when specific grounds are stated and the

absent proof is pinpointed, the circuit court can either grant the motion, or, if justice requires,

allow the State to reopen its case and supply the missing proof.” Brown, 374 Ark. at 327, 287

S.W.3d at 589 (citing Pinell v. State, 364 Ark. 353, 357, 219 S.W.3d 168, 171 (2005)).

Without a ruling from the circuit court on a specific motion, there is nothing for this court

to review. See Ashley v. State, 358 Ark. 414, 191 S.W.3d 520 (2004). Moreover, a party

moving for directed verdict may not change his arguments on appeal and is limited to the

scope and nature of his arguments made below. Lamb, 372 Ark. at 279, 275 S.W.3d at 146.

Finally, we note that the Double Jeopardy Clause prohibits retrial after a conviction has been

reversed because of insufficiency of the evidence. Wilcox v. State, 342 Ark. 388, 393, 39

S.W.3d 434, 437 (2000).

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III. Points on Appeal

A. Directed Verdict

At the close of the State’s evidence, Dowdy’s counsel moved for directed verdict as to

all counts. In the motion, counsel contended that the charge of sexual indecency with a child

was barred by the statute of limitations and that the State had not shown purposeful action.

He also contended that there was insufficient evidence of deviate sexual activity and that

there was “no proof of the victim’s age other than her testimony.” At the close of all

evidence, counsel renewed the motion for directed verdict without raising any additional

issues. On appeal, Dowdy contends that if the circuit court had not allowed prior-bad-act

testimony from multiple witnesses and had not allowed the irrelevant testimony of Vanaman,

then the evidence would have been insufficient to support Dowdy’s conviction.

Before this court, Dowdy seeks to change the basis of his directed-verdict motion on

appeal to include alleged errors relating to the admission of certain witnesses’ testimony. A

party is not permitted to change the scope and nature of a directed-verdict motion on appeal.

See Lamb, 372 Ark. at 279, 275 S.W.3d at 146. Therefore, we do not reach the merits of

Dowdy’s challenge to the denial of his motion to dismiss because he has changed the basis of

his argument on appeal.

B. Rule 404(b) Evidence and Vanaman Testimony

Dowdy’s next two points on appeal deal with the admission of evidence. The standard

of review on admission of evidence is abuse of discretion. O’Neal v. State, 356 Ark. 674, 683,

158 S.W.3d 175, 181 (2004). This court has stated that abuse of discretion is a high threshold

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that does not simply require error in the trial court’s decision, but requires that the trial court

act improvidently, thoughtlessly, or without due consideration. Threadgill v. State, 347 Ark.

986, 69 S.W.3d 423 (2002).

We have acknowledged that the remedy for improperly admitting evidence in to

reverse and remand the proceedings. See, e.g., Rios v. State, 262 Ark. 407, 557 S.W.2d 198

(1977) (reversing and remanding for the improper admission of evidence); see also Phavixay

v. State, 373 Ark. 168, 282 S.W.3d 795 (2008) (remanding for a new trial due to the

erroneous admission of evidence under Ark. R. Evid. 404(b)).

However, such a remedy is not available in this case because Dowdy is now deceased.

Pursuant to Arkansas Code Annotated section 16-89-103, if the indictment is for a felony, the

defendant must be present during the trial and judgment shall not be rendered until the

presence of the defendant is obtained. Ark. Code Ann. § 16-89-103(a). Because there is no

remedy this court can afford Dowdy, his assertions that the trial court erred in the admission

of evidence are moot. Mootness is “a threshold matter” that we address before the merits

are reached. Shipp v. Franklin, 370 Ark. 262, 266–67, 258 S.W.3d 744, 748 (2007). As a

general rule, the appellate courts of this state will not review issues that are moot. State v.

Fudge, 361 Ark. 412, 206 S.W.3d 850 (2005). A case becomes moot when any judgment

rendered would have no practical legal effect upon a then existing legal controversy. Franklin,

370 Ark. at 267, 258 S.W.3d at 748. Thus, Dowdy’s allegations of errors are moot in light

of the fact that the remedy for evidentiary errors is a new trial and that remedy is not available

to Dowdy. Therefore, we do not address Dowdy’s evidentiary points on appeal.

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C. Rule 4-3(i) Review

Dowdy was sentenced to life imprisonment; therefore, we are required by our own

Supreme Court Rules to review all adverse rulings to Dowdy made on motions, objections,

and other requests. See Davis v. State, 2009 Ark. 478, 15, 348 S.W.3d 553, 562; see also Ark.

Sup. Ct. R. 4-3(i). During his motion for directed verdict, Dowdy maintained that the

charge of sexual indecency with a child was barred, in part, by the statute of limitations.

Specifically, Dowdy contended that as a class D felony, sexual indecency was subject to a

three-year statute of limitations. See Ark. Code Ann. § 5-1-109(b)(2) (Repl. 2006). Counts

six, seven, and eight of the amended information, which was filed on November 13, 2013,

allege that the sexual indecency occurred “on or about January 1, 2008 and April 1, 2011.”

Dowdy argued that January 1, 2008 was not within the three-year statute of limitations. The

State responded that the charges were not subject to the three-year statute of limitations

because the offense was committed against a minor and had never previously been reported.

Ark. Code Ann. § 5-1-109(h) (Repl. 2006). The circuit court denied Dowdy’s motion. We

need not determine which statute of limitations applied to Dowdy’s charges because we

conclude that the charges were not barred even under the shorter three-year period.

In a criminal prosecution, the State must prove beyond a reasonable doubt that the

statute of limitations has not expired. See Ark. Code Ann. § 5-1-111(a)(4). When a statute-

of-limitations issue is reviewed on appeal, the appellate court views the evidence in the light

most favorable to the state. Talbert v. State, 367 Ark. 262, 273, 239 S.W.3d 504, 513 (2006).

A statute-of-limitations issue implicates jurisdiction to hear the case and cannot be waived.

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Doss v. Norris, 2010 Ark. 199, at 2. Neither Dowdy nor the State presents any argument

about this issue on appeal.

Here, our review of the record demonstrates that the amended information alleges

three counts of sexual indecency, and each count alleges that the act constituting the offense

occurred “on or about January 1, 2008 and April 1, 2011.” April 1, 2011, is clearly within

the three-year statute of limitations. Thus, the amended information, on its face, alleges that

the offenses occurred within the applicable limitations period. See, e.g., Martin v. Equitable Life

Assur. Soc. of the U.S., 344 Ark. 177, 183, 40 S.W.3d 733, 737–38 (2001) (“In order to prevail

on a motion to dismiss the complaint on the basis of limitations, it must be barred on its

face.”). Moreover, E.D.’s testimony that Dowdy touched her inappropriately in April 2011

is sufficient evidence to establish that the felony information was filed within the applicable

statute of limitations. See Talbert, 367 Ark. at 273, 239 S.W.3d at 514.

In conclusion, we do not address Dowdy’s argument that the circuit court erred in

denying his motion for directed verdict because he has changed his argument on appeal. We

do not address his remaining arguments because they are moot. The record has been

reviewed in accordance with Ark. Sup. Ct. R. 4-3(i), and no reversible error has been found.

Affirmed in part; dismissed in part.

Paul J. Teufel, for appellant.

Dustin McDaniel, Att’y Gen., by: Kathryn Henry, Ass’t Att’y Gen., for appellee.

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