Cite as 2017 Ark. App. 341
ARKANSAS COURT OF APPEALS
DIVISION I
No. CR-16-964
Opinion Delivered: May 24, 2017
JAMES EDWARD WHITNEY
APPEAL FROM THE
APPELLANT WASHINGTON
COUNTY CIRCUIT COURT
V. [NO. 72CR-13-912]
STATE OF ARKANSAS HONORABLE MARK LINDSAY,
APPELLEE JUDGE
AFFIRMED
MIKE MURPHY, Judge
A Washington County jury convicted appellant James Whitney of eighteen counts
of possession of child pornography in violation of Arkansas Code Annotated section 5-27-
602 (Repl. 2013), and he was sentenced to consecutive thirty-year sentences on each
conviction. On appeal, Whitney contends that sufficient evidence did not support his
convictions and that transcripts of conversations occurring in a Yahoo chat room were
improperly admitted at trial. We affirm.
The charges came about when Whitney and Teena, Whitney’s now ex-wife, got in
a dispute requiring sheriff’s deputies to be called. This incident led to the breakup of their
marriage. Three days later, Teena called the deputies back to her house because she thought
she saw Whitney driving by despite having a protection order in place. During this visit,
Teena explained to the deputies that she saw child pornography on Whitney’s computer
Cite as 2017 Ark. App. 341
and wanted the deputies to take his laptop. Five days later, Teena brought several other
computers that she found in the house while packing to move out because she was
concerned there might be child pornography on them as well. The state crime lab found
more than twenty photographs of underaged nude females and Yahoo chat logs where
Whitney had been conversing with other people over the Internet concerning sexual
matters and requesting and offering pictures. These chats were graphic descriptions of
Whitney sexually abusing his minor daughters with the cooperation of their mother. 1 The
transcripts also established that Whitney was seeking to recreate the mother-daughter
experience with a willing female and her underaged daughter.
Teena testified first. She explained that the divorce was final and that nobody else
had lived with them who would have had access to the computers since 2010. She also
described signing a consent form to have the computers searched.
Adam Wilson, the digital-evidence technician from the state crime lab, then testified
that he had analyzed the computers. He explained how he had recovered the images and
chats and how he had located Whitney’s profile and username associated with the hard
drive; and he testified to the date range of the images and chats he had recovered.
Yvette Schrock, the detective in the child-crimes division, testified that she was
assigned to the computer portion of the investigation. She explained that she had Teena
sign a consent form to have the computers searched. Schrock testified that it appeared
1
According to the chat transcript, Whitney claimed that his minor daughters and
their mother had passed away due to a car accident several years after the alleged abuse of
his daughters had begun.
2
Cite as 2017 Ark. App. 341
Whitney’s intent was to receive and send pornographic images. She described the images
found as pictures of “prepubescent females” who appeared to be under the age of eighteen.
The first point on appeal is that there was insufficient evidence to support Whitney’s
convictions for distributing, possessing, or viewing matter depicting sexually explicit
conduct involving a child. 2 On appeal, a motion for directed verdict is treated as a challenge
to the sufficiency of the evidence. See Reynolds v. State, 2016 Ark. 214, at 3, 492 S.W.3d
491, 494. This court views the evidence in the light most favorable to the State and affirms
if there is substantial evidence to support the verdict. Id. Substantial evidence is that which
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. This court does
not weigh the evidence presented at trial or assess the credibility of the witnesses, because
those are matters for the fact-finder. Id. 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. Id.
Whitney first argues that the State failed to prove that he had actual or constructive
possession of the computers because for an eight-day period his ex-wife had sole possession
of the computers. However, the two computers that contained images of child pornography
were found in a computer file that contained the name “Whitney” under “Documents and
Settings.” Additionally, testimony revealed that the images had been created in April and
2
Although Whitney presents his challenge to the trial court’s denial of his motion for
a directed verdict as his second point on appeal, we must address such a challenge first for
purposes of double jeopardy. Sweet v. State, 2011 Ark. 20, 370 S.W.3d 510.
3
Cite as 2017 Ark. App. 341
May 2010, and Teena testified that she and Whitney had lived alone since 2010 and that
she had not used any of the computers since March 2010, after she had bought her own
laptop. The jury was free to believe all or part of her testimony, and it chose to believe her.
Whitney next argues that the State offered no evidence as to the actual ages of the
children. Detective Schrock testified that each picture appeared to depict a prepubescent
female, and the jury was provided with the pictures. The circuit court instructed the jury
with the following, “In considering the evidence in this case, you are not required to set
aside your common knowledge, but you have a right to consider all the evidence in the
light of your own observations and experiences in the affairs of life.” Because the jury was
able to view the photos, taking into account the testimony and instructions, we hold that
substantial evidence supported the verdict.
The second point on appeal is that the circuit court erred in allowing the Yahoo chat
transcripts to be admitted into evidence. A circuit court’s ruling on relevancy and matters
pertaining to the admissibility of evidence is left to the sound discretion of the circuit court
and will not be reversed absent an abuse of that discretion. Sipe v. State, 2012 Ark. App.
261, at 10, 404 S.W.3d 164, 170. An abuse of discretion is a high threshold that does not
simply require error in the circuit court’s decision, but requires that the circuit court acted
improvidently, thoughtlessly, or without due consideration. Id. Moreover, an appellate
court will not reverse a circuit court’s evidentiary ruling absent a showing of prejudice. Id.
Whitney argues that the chats were not relevant to the charges because he was not
charged with soliciting child pornography and that any probative value in the transcripts
was outweighed by the prejudicial effect. The circuit court overruled Whitney’s objection
4
Cite as 2017 Ark. App. 341
at the hearing, finding that the transcripts were relevant to “prove those items mentioned
in Rule 404(b), opportunity, intent, preparation, plan, knowledge, things of that nature[.]”
We agree.
Rule 401 of the Arkansas Rules of Evidence defines relevant evidence as “evidence
having any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the
evidence.” Ark. R. Evid. 401. Arkansas Rule of Evidence 402 further provides that
“[e]vidence which is not relevant is not admissible.” Ark. R. Evid. 402. Even relevant
evidence may be excluded if its probative value is substantially outweighed by the danger
of unfair prejudice. Ark. R. Evid. 403. Evidence of other crimes, wrongs, or acts may not
be admitted to prove the character of a person in order to show that he acted in conformity
therewith, but it may be admissible to prove motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident. Ark. R. Evid. 404(b). In Van Sickle
v. State, where defendant was charged with battery in the second degree of a child, we found
no abuse of discretion when the circuit court admitted into evidence a photograph showing
severe bruises on another child after being spanked by defendant. 16 Ark. App. 143, 145,
698 S.W.2d 308, 309 (1985). We explained that even though the photograph was shocking
and prejudicial, the jury could have concluded that the child in the picture had been severely
beaten, and that fact would be highly probative of the issue of defendant’s intent and lack
of mistake or accident. Id.
Although the evidence in this case was inflammatory to a certain extent, the
transcripts were relevant to show that Whitney did not mistakenly have the pictures on his
5
Cite as 2017 Ark. App. 341
computer. The transcripts put him behind the keyboard and connected him to the images.
The transcripts reflected that Whitney admitted possessing pictures of his daughters and of
other young girls. Like the photo in Van Sickle, the transcripts are shocking and prejudicial,
but they were also highly probative toward establishing Whitney’s intent and lack of mistake
or accident. Overall, the transcripts established that Whitney had knowledge and was fully
aware that the pictures were on the computer. Therefore, we cannot say that the circuit
court abused its discretion.
Affirmed.
VIRDEN and WHITEAKER, JJ., agree.
David Hogue, for appellant.
Leslie Rutledge, Att’y Gen., by: Pamela Rumpz, Ass’t Att’y Gen., for appellee.
6